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 A 
 PRACTICAL TREATISE 
 
 OF 
 
 THE L A \y 
 
 OF 
 
 VENDORS S, PURCHASERS 
 
 OF 
 
 ESTATES 
 
 BY 
 
 EDWARD BURTENSHAIV SUGDEN, Esq, 
 
 OF LINCOLN'S INN, BARRISTER AT LAW, 
 
 n<lN.£ FIDEI VENDITOREM, NEC COMMODORUM SPEM AUGERE, VEC INCOMMO- 
 DORUM COGNITIONBM OBSCURARE OPORTuT. 
 
 ValcrxHs Maximus, 1. vii. c. 1 1. 
 
 THE FIFTH EDITION, 
 
 LONDON ; 
 
 miKTED FOB J. BDTTEIOVORTH, 43, FLEET-STKEET. 
 1818.
 
 T 
 
 Sa33Zv 
 
 J'rinled l)y R. Wii.ks, 
 89, Chaucerj-L;iae.
 
 CHiVRLES BUTLETt, Esq. 
 
 THIS WORK 
 
 RESPECTFrLLY IXSCniBED 
 
 HIS SIKCEUE FllIEXD, 
 
 AND VERY OBEDIENT SERVANT, 
 
 THE AUTHOH. 
 
 7'832S7
 
 
 ADVERTISEMENT. 
 
 THE present Edition contains all the late Cases. The 
 number of them rendered it a considerable task to incor- 
 porate them in the original Work. The writer rcgretst 
 that he has not been personally able to pay much attention 
 to the Work in its progress through the Press. 
 
 Lincoln's Inn, 
 
 September A', 1818
 
 CONTENTS. 
 
 Page 
 
 Introduction ...... 1 
 
 CHAPTER I. 
 
 OF SALES BY AUCTION AND PRIVATE CONTRACT. 
 
 I. Of the Auction Duty : . . 12 
 
 II. Of Puffing 18 
 
 III. Of the Particulars and Conditions of Sale 24 
 
 IV. General Observations ... 35 
 
 V. Duty on Appraisements ... 43 
 
 CHAP. II. 
 
 OF SALES UNDER THE AUTHORITY OF THE COURTS OF 
 
 EQUITY. 
 
 Sect. 1. Of the Proceedings from the Advertisements 
 
 to the Convcya7ice . . . 44 
 
 Sect. 2. Of opening the Biddi7igs ; and of rescinding 
 
 the Contract . . . . o^i 
 
 CHAP.
 
 Vlll CONTENT S. 
 
 CHAP. in. 
 
 OF PAROL AGREEMENTS AND PAROL EVIDENCE. 
 
 Sect. 1. Of the hiterests which are within the Statide ()2 
 Sect. 2. Of the Form and Signature of the Agreement 71 
 
 I. JVJiat is a sufficient Agreement . ibi 
 
 II. WIuLt is a sitfficient Signature by the 
 Party or his Agent , . 83 
 
 III. JFho is an Agent lawfully au- 
 thorised . . . . 87 
 
 Sect. 3. Of Parol Agreements not wit/mi the Statute 91 
 
 I. Sales by Auction before a Master . ib. 
 
 II. Agixements admitted by Answer . 93 
 
 III. Part Performance, Ssp. . . 97 
 Sect. 4. Of the Admissibility of Parol Evidence to 
 
 vary or annul xvritten Instrum£nts . 115 
 
 I. Where there is not any Ambiguity . ib. 
 
 II. Where there is an Ambiguity . .134 
 
 III. Where a Term is omitted or varied by 
 Mistake or Fraud . . ,110 
 
 CHAP. IV. 
 
 OF THE CONSEQUENCES OF THE CONTRACT. 
 
 Sect. 1. Of the Rule in Equity, that the Purchaser 
 is entitled to the Estate from the Time 
 of the Contract . . . .154 
 
 Sect. 2. Of Specific Performance . . . 173 
 
 I. With respect to the Vendor , . ib. 
 
 II. wail respect to the Agreement itself 182 
 Sect. 3. Of the Bemedies for a Breach of Cuntraet 195 
 
 CHAP.
 
 CONTENTS. JX 
 
 CHAP. V. 
 
 OF THE CONSIDERATION. 
 
 Sect. 1. Of unreasonahle and inadequate Conside- 
 rations . . . . . 22 t 
 
 I. Of unreasonahle Considerations . ib. 
 
 II. Of inadequate Considerations . 22o 
 
 III. Of Inadequacy x^here the Conveyance 
 
 is executed . . . . 227 
 
 IV. Of Inadequacy ivhere the Interest is 
 revef^sionary .... 229 
 
 Sect. 2. Of the Failure of the Consideration before 
 
 the Conveyance . . . 235 
 
 I. Of Loss by Fire, ^c. . . . ib. 
 
 I I . Of the Death of the Per so n, for an An- 
 
 nuity upon n'hose Life the Estate "icas 
 sold ..... 238 
 
 CHAP. VI. 
 
 OF THE PARTIAL EXECUTION OF A CONTRACT WHERE 
 A VENI>OR HAS NOT THE INTEREST WHICH HE PRE- 
 TENDED TO SELL; AND OF DEFECTS IN THE QUANTITY 
 AND QUALITY OF THE ESTATE. 
 
 Sect. 1. fVJiere the Vendor has not the Interest 
 
 which lie sold .... 2-i'5 
 
 I. In wJiat Cases the Vendor may enforce 
 
 a part Performance . . . ib. 
 
 II. In what Cases the Purchaser may en- 
 force it . .... 255 
 
 Sect. 2. Of Defects in the Quality of the Estate . 201 
 Sect. 3. Of Defects in the Quantity of the Estate 271 
 
 CHAP.
 
 C O N T E N T S. 
 
 CUAP. VII. 
 
 OF THE TITLE WHICH A PURCHASER MAY REQUIRE. 
 
 Page 
 
 I. q/'t/ic Root of the Title ... 279 
 
 II. Of the Prochiction of the Lessor's Title 280 
 
 III. Of equitable and doubtful Titles; of 
 
 Fines to bai^ Dower ; and of equitable 
 Jointures .... 286 
 
 IV. Of equitable Reeoverie^s where the Te- 
 
 nant to the Precipe has the legal Estate 309 
 \. Of a Title under the Statutes of Limi- 
 tations 314 
 
 CHAP. VIII. 
 
 OF THE TIME ALLOWED TO COMPLETE THE CONTRACT. 
 
 Sect. 1. Of Delays occasioned by the Neglect of 
 
 either Party .... 328 
 
 Sect. 2. Of Delays occasioned by the State of the 
 
 Title . . . . 334 
 
 CHAP. IX. 
 
 OF THE ABSTRACT AND CONVEYANCE ; THE ASSIGN- 
 MENTS OF TERMS ; ATTESTED COPIES AND COVENANTS 
 FOR TITLE TO WHICH A PURCHASER IS ENTITLED ; 
 OF SEARCHING FOR INCUMBRANCES ; AND OF RELIEF 
 IN RESPECT OF INCUMBRANCES. 
 
 Sect. 1. Of the Abstract and Conveyance . S49 
 
 Sect. 2. Of Assignments of Terms . . 355 
 
 I. What
 
 CONTENTS. XI 
 
 Page 
 
 I. What Terms may he used upon an 
 
 Ejectment . . . . 355 
 
 II. Of the Merger of Terms . 361 
 
 III. At whose Expense to he assigned, and 
 where Assignments may he dispensed 
 with . . . . . ^^Q 
 
 IV. Of the Protection afforded hy a Term 
 assigned to attend . . . 371 
 
 V. Where Terms attend the Inheritance hy 
 
 Implication . . . . 381 
 
 VI. Of the Nature of a Term assigned to 
 attend .... . 385 
 
 Sect. S. Of attested Copies .... 388 
 
 Sect. 4. Of Covenants for Title ... 393 
 
 Sect. 5. Of searching for Incumhranees . 399 
 
 I, For Judgments . . . . ib. 
 
 II. For registered Instruments and An- 
 
 nuities 405 
 
 Sect. 6. Of Relief from Incumhranees . . 409 
 T. JV7ie7'e the Purchase-money has not heen 
 
 paid . . . . . ib. 
 
 11. Where it has heen paid . . 410 
 
 And therein of Defects in the 
 Title to the Estate, 
 
 CHAP. X. 
 
 OF INTEREST AND COSTS. 
 
 Sect. 1. 
 
 Sect. 2. 
 
 Of Interest . . . . 
 
 419 
 
 I. In what Cases payahle 
 
 ib. 
 
 II. At what Rate . 
 
 429 
 
 Of Costs . . 
 
 431 
 
 
 chap.
 
 Xll C O N T E N T S. 
 
 CHAP. XI. 
 
 or THE OBLIGATION OF A PURCHASER TO SEE TO THE 
 APPLICATION OF THE PURCHASE-MONEY. 
 
 Page 
 
 Sect. 1. Of this Liability with Reference to real 
 
 Estate 436 
 
 Sfxt. 2. Of this Liribility with Reference to Lease- 
 hold Estates .... 453 
 
 CHAP. XI. 
 
 'iF THE VENDOR'S LIEN ON THE ESTATE SOLD FOR THK 
 PURCHASt-MONEY, IF NOT PAID. 
 
 I. Ln what Cases raised . . . 459 
 
 II. tVhether it extends to third Persons 467 
 
 III. Against whom it will he cnfoixcd 4tTi 
 
 CHAP. XIII. 
 
 OF THE CONSTRUCTION OF COTENANTS FOR TITLE. 
 
 Sect. 1. JVhere they run with the Land . 477 
 
 Sect. 2. Of their general Construction . 481 
 
 I. To what and against whose Acts general 
 
 and limited Covenants extend , 482 
 
 II. In what Cases restrictive Words ex- 
 
 tend to all the Covenants in the Deed 488 
 
 III. To what Remedy the Purchaser is 
 entitled hi case of a Breach , 497 
 
 CHAr.
 
 CONTENTS. XlU 
 
 CHAP. XIV. 
 
 OF th£ persons incapable of puhciiasing. 
 
 Page 
 
 Sect. 1. Of Persons incapable of purchasing by the 
 
 general Rules of Laiv . . 500 
 
 I. An absolute Incapacity . . ib. 
 
 II. An Incapacity to hold, although an 
 
 Ability to purchase . . . 501 
 
 III. An Incapacity to purchase ^ except sub 
 modo ..... 502 
 
 Sect. 2. Of Purchases by Trustees, Agents, Sff. 504 
 
 I. Where avoided .... ib. 
 
 II. How they may be rendered valid . 51 i 
 
 1. JVliere the Trust is for Creditors ib. 
 
 2. Where it is for Persons sui juris 515 
 
 3. WTiere it is for Persons not sui juris 51 6» 
 
 III. Of the JUeinedy against the Trustee, &f. ib. 
 
 CHAP. XV. 
 
 OF JOINT purchases; PURCHASES IN THE NAMES 01 
 THIRD PERSONS ; AND PURCHASES WITH TRUST-MO- 
 NEY *, AND OF THE PERFORMANCE OF A COVENANT 
 TO PURCHASE AND SETTLE AN ESTATE. 
 
 Sect. 1. Of Joint Purchases . . . 523 
 
 Sect. 2. Of Purchases in the Nojnes of Third 
 
 Persons . . . 530 
 
 I. In the Names of Strangers . ib. 
 
 II. In the Name of a Child, Grandchild, 
 
 or Wife . . .535 
 
 Sect, 3. Of Purchases with Trust-Money . 543 
 Sect. 4. Of the Perjormance of a Covenant to pur 
 
 chase and settle an Estate . 545 
 
 CHAP.
 
 XIV CONTENTS. 
 
 CHAP. XVI. 
 
 OF THE PROTECTION AND RELIEF AFFORDED TO FURCHA- 
 SERS BY STATUTES, AND BY THE RULES OF EQUITY. 
 
 Page 
 
 Sect. 1. Of fraudulent and Voluntary Settlements i 
 and Settlements xvith Powers of Revo- 
 cation . . .551 
 
 I. Of Fraudulent Settlements . ib. 
 
 II. Of Voluntary Settlements . 554 
 
 III. Of their becoming valid by matter ex 
 post Dicto . . . 564i 
 
 IV. or Settlements with Powers of Revo- 
 cation . . .575 
 
 Sect. 2. Of Protection from Charitable Uses 577 
 
 Sect. 3. Of Protection from Acts of Bankruptcy 578 
 
 I. Under the old Statutes . . ib. 
 
 II. Under the Act of 46 George III. 580 
 Sect. 4. Of Protection from Judgments and Recog- 
 nizances . . . 584 
 
 I. In tJw Case of Freehold Estates ib. 
 
 II. In the Case of Leasehold Estates 590 
 III O-^ Recognizances . . 595 
 
 Sect. 5. Of Protection from unregistered Deeds, S^p. ib. 
 
 I. Wliat Memoj^ial is 7'equired by the re- 
 
 gistering Acts . . . 598 
 
 II. What Deeds ought to be registered 603 
 
 III. Of the Exceptions in the Acts 604 
 
 IV. Of the equitable Doctrine on the Acts 
 
 in regard to Notice . . 606 
 
 Sect. 6. Of Protection from Acts of Papistry 613 
 
 Sect. 7. Of Protection from Defects in Recoveries 617 
 Sect. 8. Of Protection frwn Defects in Sales for 
 
 Land-Tax . ... 618 
 
 Sect. 9. Of Equitable Relief and Protection 620 
 
 I. Where
 
 C O X T F N T S. XV 
 
 Page 
 
 I. Where the Purchaser Juts not Notice 620 
 
 II. The Eject of Notice . . 629 
 
 CHAP. XVII. 
 
 OF NOTICE, 
 
 I. Of actual Notice - . . 636 
 
 II. Of Constrictive Notice . . 638 
 
 III. Of Evidence of Notice . . 656 
 
 CHAP. XVIII. 
 
 OF PLEADING A PURCHASE. 661 
 
 APPENDIX OF MS. CASES, &c. 
 
 { 
 
 No. 1.) 
 
 No. 2. >- Notices under the Auction Duty Acts 
 No. 3.) 
 
 No. 4. Conditions of Sale . . . ib. 
 
 No. 5. Agreements to he executed at a Sale by Auction 5 
 No. 6. Agreement for Sale by Private Contract . 6 
 No. 7. Bratt v. Ellis . . . . 8 
 
 No. 8. Jones v. Dyke . . . . 9 
 
 No. 9. Wyatt v. Allen . . . . 11 
 
 No. 10. Morshead v. Frederick . , . ib. 
 
 No. 11. Ex imrte Tovikins . . .13 
 
 No. 12. Observations on the Annuity Act, and on rais- 
 ing the legal Rate of Interest . ] 3 
 No. 13. Cousswakcr v. Sezvell . , . . 19 
 No. 14. Clay v. Sharpe . . .20 
 
 No. 15.
 
 XVI 
 
 CONTENTS. 
 
 Ko. 15. Belch V. Harvey 
 
 No. 16. The Kmg v. Smith 
 
 No. 17. Attoimey-general V. LocJdcy 
 
 No. 18. Brett v. Saxvhridge 
 
 No. 19. For shall v. Coles 
 
 -vy ^^ Burton and others v. Todd \ 
 
 No. 20. \ 
 
 Todd V. Gee and others ) 
 
 No. 21. Rea v. Williams 
 
 No. 22. Lechmere v. Lechmere 
 
 No. 23. Fairfield v. Birch 
 
 No. 24. Shane v. Cadogan 
 
 No. 25. Bury v. Bury 
 
 
 Page 
 
 . 
 
 22 
 
 « 
 
 24 
 
 • 
 
 32 
 
 • • 
 
 35 
 
 • 
 
 41 
 
 
 42 
 
 
 44 
 
 
 45 
 
 
 48 
 
 
 49 
 
 
 60 
 
 INDEX 
 
 63 
 
 ZKSSX
 
 INDEX TO CASES 
 
 CITED OR INTRODUCED. 
 
 Xoie, " V." follows the name of the plaintiff: " and," the name of the 
 
 defendant. 
 The Cases printed in italics are either cited or stated from MSS. or have 
 
 been examined ^vith the Register's book, or searched for without 
 
 success. 
 
 Pa-e 
 
 A. 
 
 
 Abbot v. Gibbs 
 
 436 
 
 Abbot and Rex 
 
 14 
 
 Abbot and Jebb * 
 
 437 
 
 Abdy V. Loveday 
 
 623 
 
 Abel and Doe 
 
 222 
 
 Abingdon (Lord) and Child 424, 
 
 429 
 Abney and Merry . 639 
 
 Aburrow and Bennett, A pp. No. 
 
 24 
 Acherley v, Acherley . 530 
 Ackerman and Brand . 656 
 Acland v. Gainsford 40, 425, 429 
 Acton and Cage 362, 363 
 
 192 
 !, 186 
 104 
 204 
 377 
 
 Acton V. Pierce 
 Adams and Daniel 
 Adams and Dickenson 
 Adams and Greenaway 
 Adams and Hill 
 
 Page 
 
 Adams v. Weare . 224 
 
 Adcock V. M( rtens . 32 
 
 Addison v. Dawson . 503 
 
 Adkinson and Hall . 622 
 
 Advocate General and Walker 15 
 Ailsbie and Holmes 391 
 
 Alam V. Jourdon . 658 
 
 Alcock and Jcudwine . 197 
 
 Alcockand Knoll^s . 166 
 
 Aldrich v. Cooper . 470 
 
 Aidrige and Floyd . 157 
 
 Alilridi^e and Mesnard 27 
 
 Allan V. IJower . 1 10 
 
 Allen V. Anthony ; 650 
 
 Allen V. Btnnet 71, 72, 78, 84, 
 
 89 
 
 Allen and Bull . 203 
 
 Allen (Lord) and Cane 507, 516 
 
 Allen and (iarbrand » f)02 
 
 b Jllei*
 
 xnii 
 
 INDEX TO CASES. 
 
 P.ige 
 Allen nnrl !Vi/a(t . 37, 88 
 
 Alexander and Crackford 156, 
 
 196 
 Alley T. Dfschamps 329, 330, 
 
 333 
 Alloyn V. Allpyn , 156, 162 
 
 Allinglon and BotflfT 176 
 
 AIlini;ton (Lord) and Nappcr 498 
 Alliston and Stewart 34, 250, n. 
 
 251 
 Allpass V. Watkliis . 212 
 
 Alsop V. Patten . 104 
 
 Alston and Taylor . 534 
 
 Alt and Bramley * 21 
 
 Althain (.Lord) v. the E-irl of 
 Anglesea . 533 
 
 Altham's case . 134 
 
 Ambrose v. Ambrose 39, 45, 530 
 Amcourt V. Elever . 214 
 
 Amy's case . 9 
 
 Aucaster (Duke of) and Earl 
 
 of Tyrconnel . 29 
 
 Anderson and Lord Ormond 75 
 Anderson and Peters . 417 
 Anderton and RoI)inson . 410, n. 
 Andover (Lady) and Sir 
 
 James Lowther 342, 419 
 Andrew v. Wrigley 454, 457, 458, 
 
 635 
 Andrews and Back . 5U 
 Andrew's case . 277 
 
 Andrews and Charles 224, 305, 
 
 459 
 Andrews and Doe . 657 
 
 Andrews v. Emerson 54 
 
 Andrews t. Emmott, App. No. 24 
 Andrews and Lever 530 
 
 Andrews aid Maddison 534 
 
 App, No. 24 
 
 I'ags 
 AnJe-rca 'Earl oO and Lord 
 
 Aliham . 533 
 
 An-;Ifsia 'Eiirl of) v. Annes- 
 
 ley . 131 
 
 Aimcsley and Earl of Angle- 
 sea . 131 
 Anneslfv V. Ashurst . 52 
 Anriesliy v. Mtigorids;e , 33 
 Annesley and Errington 182 
 Antiesley (I/ord) and Hoven- 
 
 dcn 320, 321, 322, 323 
 Anncsley (Lord'* and Saund- 
 ers . 222, 253 n. 322 
 Anonymous (2 Cha. Ca. 19) 414 
 Anonymous (2 Cha. Ca. 53) 180 
 Anonymous (2 Cha. Ca. 136) 645 
 Anonymous (2 Cha. Ca. 161)662, 
 n. 665, 666 
 Anonymous (2 Cha. Ca. 20S) 612 
 Anonjmous (1 Fretra. 486) 103 
 Anonymous (1 Freem. 450) 483 
 AnonymoBS (2 Freem. 106) 273, 
 409, 412 
 Anonymous (2 Freem. 128) 202, 
 114,535 
 Anonymoos (2 Freem. 137) 6^9 
 Anonymous (2 Freem. 155) 173 
 Anonymous (1 Vern. 318) 641 
 Anonymous (1 Ventr, 361) 64, n. 
 
 63 
 Anonymous (2 Ventr. 46) 483 
 Anonymous (2 Ventr. 361, 
 
 No. 2) . 401,664 
 
 Anonymous (2 Ventr. 361, 
 
 JVo. 3) . 530 
 
 Anonymous (Carth. 15) 522 
 
 Anonymous (Mosc, 96) 436,441 
 Anonymous (Sel. Cha. Ca. 57) 544 
 Anonymous ^Skin» 159) 151 
 
 Anony-
 
 INDEX TO CASES. 
 
 X» 
 
 Page 
 Anonymous fSkin. 404) G56 
 
 Anonymous {5 Vln. 22, pi. 
 
 38, 4 Gf-o. . 12-9 
 
 Anonymous 5 V'in. Abr, 521, 
 
 |.l. 32) . 528 
 
 Anony;iuu]s 5 Viii, Abr. 522, 
 
 pi. 38) , 110 
 
 Anonymous 5 Vin. Abr. 5^3) 
 
 pi. 40) . 110 
 
 Anonymous (1 Show. 90) 315, n. 
 Anonynious (1 Salk. 153) 438, n. 
 Anonymous ill Mod. 5) 387 
 
 Anonymous (1 Lord Raym. 
 
 182. . 68 
 
 Anonymous (1 Str. 95) 135 
 
 Anonymous (3 Atk, 270) 659 
 Anonymous (LoiFt. 460; 483 
 
 Anonymous 1 Bro. C. '<■'. 
 
 158. 6 Ves. Jun. 24, 
 
 cltnl i . 227 
 
 Anonymous ( Dougl. 384, 
 
 cited) 141, n. 
 
 Anonyinous (2 Dick. 497, n.) 219 
 Anonymous (1 V'cs. Jun. 453) 
 
 51,57 
 Anonymous (2 Ves Jun. 286) 57 
 Anonymous (2Ves. Jun. 335) 48 
 Anonymous (2 Ves. Jun. 487) 54 
 Anonymous (5 Ves. Juti. 148) 54 
 Anonymous (6 \cf. Jun. 21, 
 
 cited) . 227 
 
 Anonymous (6 Ves. Jun. 470 
 
 cit.d) . 110 
 
 Anonymous (6 Ves. Jun. 513) 57 
 Anonymous (1 Tiea. Eq. 
 
 211, n.r) . 259 
 
 Anonymous (3 Kast, 340, 
 
 cited) . 16 
 
 Anonymous (Contract, MS.) 296 
 
 Page 
 Ano7uimous'V(Ac\\co^ MS,) 48, ti. 
 Anonymous (Ch. 25 July, 
 
 1808) . 30 
 
 Anonymous (1 Camp. Ca. 
 
 491,0.) . 583 
 
 Anonymous { L. I.Hall, 16 
 
 July, 1816, .AIS.) 50, 2CI 
 Ansell and Mere:, . 116 
 
 Ansley and Farebrothi r . 17 
 Anspach (Margrariire of) v. 
 
 Noel . 200 
 
 Anthony and Allen . 650 
 
 .'\ppletonv. Binks . 42 
 
 Apj^owell r. Monnoux . 478^ n. 
 Arctibold and Magrane 186, 194 
 Archer and Doe . 633 
 
 Ardtsuijev. Bennet . 157 
 
 Aidglassfi (Earl of) t. Mus- 
 
 eharnp , 230 
 
 Arkwriglit and Crosby, App. No, 
 
 12 
 .\rmiger V. Clarke . 196 
 
 Armitage and Mason 88, 92, 186 
 Armitage and Pilling . 658 
 Arnald v. Aniald • 165 
 
 Arnold and Hechinall . 622 
 .Vrnold and Lee , 478, n. 
 
 A mot V. Biicoe . 659 
 
 Arthur and IMacnamara . 217 
 Jrl'vigsia'l ai d Tyrer . 347 
 Arundel v. Didlake . 462, n, 
 
 Arundd and Day . 662, n. 664 
 Aslidi)\vii and Slileman . 561 
 
 Aslilin and (t reaves 
 A^'hurst and Aunesley 
 .\.slil>y V. IJ.iillie 
 Ashley ami Hirvey 
 Ashtoti and Nash 
 Astley and Dixon 
 
 32, 116 
 
 52 
 
 638, 640 
 
 653 
 
 484 
 
 200 
 Asion
 
 XV 
 
 iKDj:x TO CA.sT:;:s 
 
 Pare 
 Aston V. Aston . 66'2 
 
 Aston and Culpppper 436, 450, 
 
 641 
 Aiston V. Curzon - 665 
 
 Atcheileyv. Virnon 154, 156, 
 
 157 
 Afrliison v. Dirkson . 236, n. 
 Atkin> and Hope . 116 
 
 AikipN V. Howe . 528 
 
 Atkinson and Borates . . 270 
 Attorns) -General v. Back- 
 house' 519, n. 650 
 Attornpy-Genfral v. Bagg 538 
 Altorncy-Gentral v. Cast 
 
 Flate Glass Company 136 
 Attorney-General and Cliris- 
 
 tie 17,18 
 
 Altorney-Genpral v. Day 52, 92, 
 
 170 
 Attorney. Gfneral v, Lord 
 
 Dudley . 510 
 
 AltorneyGeneral v. Forster 140 
 
 Attorney-General v. Gower 256, 
 
 638, 664 
 
 Attorney-General v. Griffith 
 
 519. n. 
 
 A tlornev. General v. Parker 140 
 
 Attorney-General v. Sands 364, 
 
 374, 375, 382, 385, 388 
 
 Jttornei]- General v. Scott, 
 
 378, n. 
 Attorney-Generaland Tiirux- 
 
 ton 385,387,388 
 
 Attorney General v. Vigor 104 
 AtvTOod and Molh , 231 
 
 Aubrey v Fisher . 30 
 
 Anriol and Mills . 499 
 
 Austen and Davies , 626 
 
 Austen V. Halsey . 471 
 
 Awbrey v. Kf f n . 410 
 
 Aylesford's (Mil 1 o(^ case 99 
 Ay lid V. Murray . 515 
 
 B. 
 
 Back v. Andrews . 611 
 
 Back and Turner . 623 
 
 Cackhoust" and Altorncy«-Gf- 
 
 neral . 5 19 n. 650 
 
 Backhouse and Bedford . 606 
 Baddall and Gibbons 462, 471 
 Baden v. Earl of Pembroke 
 
 155. 387 
 Bagenal and Whaley 80, 99 
 
 Bagg and Attorney. CJeneral 538 
 liaglehole v. Walthers . 267 
 
 Baikie t. Chandltss . 403 
 
 l',ailey v. Ekins . 411 
 
 Baileij and flar/s . 244, 291, 356 
 PaHey v. Tyrer . 347 
 
 Bai'ie and Ashley 638,6^0 
 
 Bailey V. Chai.-Tiieau . 51 
 
 Bailifis, &c. of TcHkesbnry 
 
 V. Bricknell . MO 
 
 Baily and Lamas . 525, 526 
 
 Baily and Stent . 235 
 
 Haily and Stevens . 173 
 
 Bail ton and Lambert . 508 
 
 Baker v. Child . I79 
 
 Baker and Cuthbrrt 
 
 Baker v. Dlbdiri 
 Baker v. Moroarj 
 Baker v. Paine 
 Baker and Smith 
 Baker and Squire 
 Baldwin v. Boulter 
 Baldwin and Cane 
 
 246, 443, 
 
 447 
 
 301 
 
 46 
 
 151 
 
 530 
 
 225 
 
 241 
 
 35, 289 
 
 Baldwin
 
 IXDEX TO CASES. 
 
 233 
 99 
 439 
 £44 
 562 
 92 
 515 
 320 
 478 
 198 
 
 Baldwin and Echliff 
 Baldwin and Lloyd 
 Baldwin V. Roclifort 
 Balfe and K iiie 
 Balfour V. Wclland 
 Balgney v. Hamilton 
 Ball T. Bunford 
 Ball and Symonds 
 Ballard and Crowe 
 Ballard and llercy 
 Bally V. W<^lls 
 Balmanno v, Lumiey 
 Banbury (Karl of) and Bisco 652 
 
 Banes and Croyston . 93 
 Banks v. Sution 377, 378, n. 
 
 Barber and Davy . 425 
 
 BarbtT and Lea . 70 
 
 Barchiifil :ind Low . 228 
 
 Barker aiid Bramp*on , 665 
 
 Barker V. liill . 155 
 
 Barker v. Hoiford . 48 
 
 Barker v. Harper . 50 
 
 Barkley and Jones , 214 
 
 Barksdale V. Morgan . 277 
 
 Barnard (Lord) and Vane 409, 
 
 639 
 Barnardiston (Sir J.) v. Lin- 
 good . 230 
 Barnes t. Crowe . 163 
 Barnes and Freeman . 355 
 Barnfather v. Jordan . 502 
 Barns V. Canning . 611 
 Barnston and Stackhouse 321 
 Barnwell v. Harris 244, 279, 290, 
 295, 298 
 Barrett V. Blake . 47 
 Barnett v. Gomesserra 99, 225 
 Barrington V. Horn . 179 
 Barrow and Hilton , 203 
 
 XXI 
 
 Paje I 
 
 196 I Barry v. Lord Barryraore 
 437,''438 I Barry and Cowran . 55, n. 
 Barry and Pliillimore 85, 86, 89 
 Barrymore (Lord) ;md Uarry 88 
 Barstow and Kilvin^iton l46 
 
 Barllett v. Pici^ersgill 97, 531, 
 
 534 
 Bartleft v. Tucfiin . 336 
 
 Barton and Buckland, App. No. 
 
 24 
 Barton v. Fifzgerald 
 Barton and Richards 
 
 Bartschand Kitchen 
 Baiwick and S.iy 
 liascoi V. Serra 
 Bisket V. Pierce 
 Basket V. Nosworthy 
 Basset and Upton 
 BatHinan and Cox 
 Biteinan v. I'liilips 
 Biti man and Stephens 
 Bateinan v. Siiore 
 B:ilh (Earl of) v. Sherw: 
 Battaly and Edlin 
 Baugh V. Price 230, 
 
 IJawden anil Right 
 Baxter and Larl 
 gaxtt r V. Le«is 
 B.i> li> V. Manning 
 Bayli'^ V. Newton 
 Ihyl y v.Schofield 
 B.iyne and Trimmer 
 Baynham v. Guy's Hof;p 
 lieahle v. Dodd Ap| 
 
 Beake and Wiseman 
 Bian and 1 1 lull 
 Beard and Chandler 
 Beard and llii'lit 
 
 490, 494 
 208, 349, 
 
 352, 400 
 140 
 181 
 653 
 355 
 
 621, 66-i 
 
 554 
 
 544 
 
 71 
 
 228 
 
 525, n. 
 
 It 193 
 628 
 
 231,628 
 536 
 285 
 216 
 279, n. 
 539 
 384 
 471 
 
 al 139 
 Xo. 24 
 231 
 455 
 293 
 218 
 Beard
 
 XXll 
 
 INDEX TO CA&ES. 
 
 Page 
 Tleard and If^afcoft App. n. 
 
 Beardsham and Davje 154, 156, 
 
 161 
 BeatnifiTv. Smitli . 611 
 
 Beaucleik (Lord) and Cant 659 
 Beaumont and Nfdiiam 552 
 
 Beauruin and Turner 209. 244 
 Ceazely and Welford 80, 85, 654 
 Bechinall v. Arnold . 622 
 Bcckot and Cliatcr . 70 
 
 Beckct V. Cord ley . 654 
 
 Beckfonl v. Beckford . 535 
 Beckford v.Wade 314, 321 
 
 Bedford V. Barkhoiise . t506 
 
 Bedford (Earl of) and Clarf 625 
 Bedford (Duk.- of) and Char- 
 wood 64, n. 79, 88 
 Bedwtll and Townley 169, 425 
 Beech and Taylor . 98 
 Belch V. Harvey . 321 
 Bell V. Ciuidall . 622 
 Bell and Hutchinson . 5 
 Bell V. Howard 131, 333 
 Bell V. Phyn . 525, v. 
 Bell and Scott . 562 
 Bellamy v. Liversidge . 308 
 Bella is ( I ally) v. Compton 533 
 Bpllew V. Hussel . 507 
 Beilringer and Rex l40 
 Belworlh v llap^il . 243 
 Bennet V. Aburrow, App. No. 24 
 Bennet and Allen 71, 1% 78, 84, 
 
 '89 
 Bennet ayid Ardesoife^ or 
 
 Wilson . 157 
 
 Bennet College v. Carey 40, 189> 
 
 431 
 Bennett and Ilarnell . 46 
 
 Bennett and Lawes . 168 
 
 Bennet v. JNJayhew , 543 
 
 Bepnet v. Masgrove . 567 
 
 Page 
 Bennet, ex parte 504,505,508,518 
 
 497 
 665 
 652 
 627 
 437 
 202 
 665 
 230 
 230 
 24, 329» 
 
 Bennett and Hughes 
 Bennett and Kelsall 
 Bennett and Moore 
 Benson and Turton 
 B«'nyon v. Cidlins 
 Berkeley v. Daule 
 Berkeley and Weston 
 Bernai v, Donegal 
 Bernt-y v. Pitt 
 i^erry v. Young SO, 37, 
 
 350, 389, 390 
 Best V. Stamford . 382 
 
 Betesworth ( Dr.) v. Uf an and 
 
 Ch.:pterof St. Paul's 192 
 I5ethill and Floyd . 277 
 
 Betfle an.'! Webb . 216 
 
 Bevant v. Pope . 303 
 
 Beversham and Tyler . 276 
 Bevill's case . 319 
 
 Bevis and Whitchurch 82, 95, 96, 
 98, 99 
 Bexvvell V. Christie , 19 
 
 Bickerslali' and llayiies . 484 
 
 Bicknell and Kvans 369, 480, 624, 
 
 658 
 Biddulph V. St. John 611, 654, 
 
 659 
 Bidlake and Arundel 462, n. 
 
 Bill and Humble 434, 437, 454, 
 
 457 
 Binoham v. Bingham , 222 
 
 Binion (!^ir G.) v. Stone 538 
 
 Binks and Appieton . 42 
 
 Biuks V. Lord Rokehy 251, 437 
 B:n-('d V.Coleman 99,116 
 
 Biri h V. Blagrave . 539 
 
 Birch and Fairfield 560, App. 
 No. 23 
 Birch and Fox „ 201 
 
 Birch
 
 INDEX TO CASES. 
 
 XXlll 
 
 Birch V. Jlayr.es 
 Hirch and Watyon 
 Birch V. Wright 
 Birch n>id IFool 
 
 199 
 
 55 
 
 220 
 
 526 
 
 Birkh.'ul uiul Wortiey , 614 
 Birt and Mh.I.t . 665 
 
 Bisco V. Eirl of Banbury 652 
 Blsco V. Bret . 199 
 
 Biscoe and Aruot . 659 
 
 Biscoe V. i^t-rkius . 630 
 
 Biacket V. Lanijlnnds . 662 
 
 Blackburn v. Gre^sou 463, 466, 
 
 474 
 Blackburn V. Scholes . 37 
 
 BlacUstone and Lavender 562, 
 
 574 
 Blackwelland Boyer 54, 248 
 
 Blackwood and Macartney 428 
 Blades v. Blades . 61 1 
 
 Blagdea v. Bradbear 73, 78, 
 
 79, 88, 92, 97 
 Blagrave and Birrh , 539 
 
 Blake and Barrett . 47 
 
 Blake v. Sir Edward Hunger- 
 ford . . 621 
 Blake and D'Arcy 377, 378, n. 
 Blake and Earl of MaccU'S- 
 
 field . . SB 
 
 Blake's case . . 322 
 
 Blakestone v. Martyn . 405 
 
 Elakey V. Porter . 211 
 
 Bland and Doe . 136 
 
 Blandist and Miller 102, 114 
 
 Blankley V. Winstanley . 140 
 
 Blemeriiass't v. Peirsori . 128 
 
 Blenni'r!i:isset T. Day . 507 
 Bliss and Vancouver 9, 202, 250, 
 431,432 
 Bloodworth and Radford 580 
 
 Pasc 
 Blount V. Blount 421, 424, 425 
 
 429 
 Blur.dell V. Brettargh . 235 
 
 Blyih V. Elmh. rst . 199 
 
 rJlyihinor*- and Parker . 66/ 
 
 Boake-i and Kingdoine . 658 
 
 B mriliiian v Mostyn . Ill 
 
 Bodirj^ton and U ilker . 645 
 
 Bodmin v. V< ndebendy, or 
 
 Rotherhnm 377, 378, 379, 664 
 Eogan ani SrC Show 1 272 
 
 Bolin;^l)iok''s(Lf)rdj ca,e 261 
 
 Bolton (Lord) and Deverel 280, 
 
 284 
 Bond and Chapman 386, 387 
 
 Bond V. Hopkins . 323 
 
 Band V. K^nt . . 460 
 
 Bond and Wright . 198 
 
 rivnham, or Thompson ^ and 
 
 Williams - 343 
 
 Bonner v. Johnston 200, 20i 
 
 Bonnet v. Sadler . 191 
 
 Bonney v. Ridgard 455, 456, 457 
 Boone V. Eyre . 327 
 
 Boore and Marquis of Hert- 
 ford , . 340 
 Booth and Cooke . 139 
 Booth and Whale . 456 
 Boothby v. Walker . 201 
 Boston and the King 97, 534 
 Bosworth and Stratford 74 
 Boteler t. AlHngton . 176 
 Botelers and Hearn 461, 462, 
 
 474 
 B;)tting V Martin 
 Bottoraiey v. Lord Fairfax 
 Booghlon V. Jewell 
 BoultiT and Baldvvin 
 Bourne and Hunt . 
 
 Bovie's (Sir Ralph) case 
 
 66 
 379 
 390 
 241 
 315 
 561 
 Bo^cn
 
 XXIV 
 
 IXDEX TO CASES. 
 
 Page 
 Bowden aiifl Jones . ^70 
 
 Jjovvx'ii v. Morris 42, 72 
 
 Bower and Allen . 102 
 
 Bowerbankand De Havilland 427 
 Bowers V. Cator . 99 
 
 Bowes V. Heaps . 232 
 
 Bowes and Lady Strathmore 
 
 (Term Rep.) . 163 
 
 Bowes and Lady Strathmore 
 
 (Ves.Jun.) . 480 
 
 Jjoiohs V. Atkinson . 270 
 
 Bowles V. Rogers 33, 154, 342, 
 
 474 
 Bowles V. Stewart 6, 7, 323 
 
 Boydell v. Drummond . 79 
 
 Boyer v. Blackwell 54, 248 
 
 Boys and Diggs . , 641 
 
 Brace y. Duchess of Marlbo- 
 rough . 404, &S5 
 Bracebrldge v. Cook 364 
 Bradbear and Blagden 73, 75,78, 
 79,88,92,97 
 Bradley and Westcott, App. No. 
 
 24 
 Bradshaw v, Bradshaw 200 
 
 Bradshazv u. Midgeley 429 
 
 Bradstreet and Shannon 113 
 
 Bragg and Calton . 427 
 
 Braithwaite and Howard 88 
 
 Bramah and Wheeler , 41 
 
 Bramley T. Alt . 21 
 
 BramptoH v. Barker 665 
 
 Brand v. Ackerman . 656 
 Brandlyng v. Ord . 635 
 
 Brandon and Fluit . 182 
 
 Brandt and Dews 228, 231 
 
 Bratt V. Ellis 36, 207, -08 
 
 Bray and Lowndes 217, :'89 
 
 Brayljxokc (Lord) v. Inskip 
 
 296, 453, 624 
 
 Paze 
 Brayne and MoHett . 66 
 
 Uff-achand Doe . 218 
 
 Br^-e V. Ilolbech 410, 415 
 
 BiPtand Hisco . 199 
 
 Bret V. Sawhridge . 386 
 
 lircton L" and Hargrave 638 
 
 Brftt V. Marsh . 417 
 
 Brettarghand Blundi-ll 235 
 
 Brewer and King . 563 
 
 Bricknt'll and BailliTs, &c- of 
 
 T<'wkesbury . 140 
 
 Bridges and Ivingdome 541 
 
 Brightwen and Doe . 295 
 
 Brig's case 189, 207, 410 
 
 Bringloe and Mallom 503 
 
 Briscoe and Haddleston 73, 74 
 Brlstow and Waddington 6^ 
 
 Brockett and Oxwick . 275 
 Brockhur,>t and Whitbread 9^,Q9 
 Brockwell and Winter . 65 
 
 Brodiev. St. Paul , 7Q 
 
 Brook (Earl) v. Bulkeley 630 
 Brooke and Parker . 655 
 
 Brookes v. i^ord Whitworth 203 
 Brooks V. Day . 408 
 
 Brooks V. Snaith . 54 
 
 Broome v. Monck 157, 162, 170, 
 
 172 
 Brotherton v. Hatt 638 
 
 Broughtitn v. Conway . 492 
 Brown ▼. Brown , 489 
 
 Brown T. Carter . 565 
 
 Brown and Chapman 141, n. 
 
 Brown and Elliot . 524 
 
 Brown and Evans . 228 
 
 Brown V. Frost . 196 
 
 Brown and Fain . 185 
 
 Brown v, Fenlon 3, 34, 38, 246, 
 254,263,424 
 Brown v. Gibbs . 377 
 
 Broton r. Kelty 201, 202 
 
 Brown
 
 INDEX TO CASES. 
 
 XXV 
 
 Vas,e 
 ft rown and Good rick 313 
 
 Brown V. Jones 556, 562 
 
 Brown and Langley 151 
 
 Brown V. Raindle . 178 
 
 Broxcn and Rob son . 156 
 
 Brown and Street . 211 
 
 Brown and Temple 349, n. 
 
 Browne and Kenny 629, 653 
 
 Browne v. Odea . 628 
 
 Brown V. Southhouse 427 
 
 Browning and Burdon 97 
 
 Browning v. Wright 145, 482,491 
 Brownlow (Lord) and Frank- 
 lin . 150, 290 
 Bruce v. Rogers . 228 
 Bruce and Warwick 70 
 Bruslifield and Howes 487 
 Bruyn's (Sir John) case 277 
 Brydges v. Duchess of Chan- 
 
 dos . 159, n. 
 
 Brydges and Philips . 313 
 
 Brymer and Washington App.No. 
 
 24 
 Bubb's case . 155 
 
 Buck V. Lodge . 201 
 
 Buckhouse v. Crossby 71, 73, 130 
 
 Pajre 
 Buckmaster v. Harrop 89, 92, 
 
 108, 109, 170 
 
 Bucknell and Weakley 
 
 Bucks (Earl of ) v. Drury, or 
 Drury v. Drury 
 
 Budgin and Christ's Hospi- 
 tal 
 
 Bulkeley and Earl Brook 
 
 Bull V. Allen 
 
 Buller V. Buller 
 
 551 
 
 306 
 
 542 
 630 
 203 
 170 
 
 Buller and Mart lock 52, 88, 259 
 
 Buller V. Waterhouse 
 Bullock and Feme 
 Bullock and Rex 
 Bullock T. Sadlier 
 Bullock V. Thorne 
 Bumbord and Ball 
 Burdon v. Browning 
 Burdon v. Kennedy 
 Burg's (Lady) case 
 Burgess V. Wheate 
 Burgh V. Francis 
 Burgh V. Wolf 
 Burgis and Rawlins 
 Burke V. Crosbie 
 Burke V. Dazcson 
 
 574 
 
 101,114 
 
 583 
 
 552, 664 
 
 575 
 
 562 
 
 97 
 
 400, 595 
 
 . 564 
 
 . 241 
 
 626 
 
 623 
 
 IGI 
 
 46 
 
 569 
 
 Buckhurst's (Lord) case 394 Burlace (Sir John) v. Cook 
 
 Buckingham (Marquis of ) 
 
 and Curtis . 196 
 
 B\Jckingham ( Earl of) v. 
 
 Drury 305, 306, 307, n. 
 
 Buckingham (Duke of) and 
 
 Philips . . 191 
 
 Buckingham and Smallcomb 591 
 Buckland v. Barton App. No. 
 
 24 
 99 
 193 
 568,569 
 186, 187, 272, 
 273, 275 
 
 Buckland and Floyd 
 Buckle and Cannel 
 Buckle V. Mitchell 
 Buckley and Hill 
 
 Burnaby v. Grifiia 
 Burnam and Smith 
 Burrell's case . 
 
 Burrough v. Martin 
 Burrough v. Skinner 
 Burroughs's case 
 Burroughs v. Elton 
 Burroughs v. Oakley 
 Burroughs and Saunders 
 Burrowes v. Lock 
 
 622, 667 
 176,432 
 . 331 
 553 
 9 
 37 
 542 
 . 525 
 200 
 509 
 6, 10, 225, 
 625 
 "Burrows
 
 XXVI 
 
 INDEX TO CASES. 
 
 Burrows and Iiocs > 43 
 
 Burrows ntul Wiilkor 5U 
 
 Burt and Doc . 133 
 
 Burting V. Stonard . 454 
 
 Burton an-l Scorbrough 431 
 
 Burfonv. To /f/ 426, A pp. No. 20. 
 Burj/ V. Uuri/ C39, 652 App. 
 
 No. 25 
 Bushell V. Busholl 606, 6l0 
 
 Butcher t. Butcher (Ves. Jun.) 
 
 106 
 Butcher v. Butcher (New 
 
 Rep.) 138 
 Butcher t. Stapely 99, 637 
 
 Bute (Earl of) and Sir John 
 
 Eden . 139 
 
 Butler and Lawrensoo 188, 
 
 n. 259 
 Butler V. Swinnerton 485, 486 
 Butterwick and Rob « 148 
 Buxton V. Cooper 4, 185, 224 
 Burn and Price 510, 520 
 
 Byrne and Dillon 595, n. 
 
 Byron and Creswell . 306 
 
 C. 
 
 Cadman v. Horner 183, 227 
 
 Cadogan (Lord) and Lord 
 
 Montford . 628 
 
 Cadogan and Sloane . 563 
 Cage V. Acton 362, 363 
 
 Calcraft t. Roebuck 9, 252, 255, 
 420, 429, 433 
 Calland and Roie 250, 287 
 
 Callaway v. Ward , 153 
 
 Calthorp V. Ueytoii . 484 
 
 Calton V. Bowerbank 427 
 
 CaUerley r. Williams 276, 432 
 
 Pas* 
 
 Calvert and Doe . 295 
 
 Camden (Earl) and Oarrick 50 
 Camclford (Lord) and Smith 530 
 Camfield v Gilbert 207, 208, 209 
 Cammeyer and Rucker 88, 89 
 Campbell v. Campbell 389 
 
 Campbell V. Walker 504,510,516 
 Campion v. Cotton . 542 
 
 Cane T. Lord Allen 507,516 
 
 Cane v. Baldwin 35, 289 
 
 Cannel v. Buckle . 193' 
 
 Canning and Barns . 641 
 
 Cant V Lord Beauclerk 66SF 
 
 Capel V. Girdler 158, 382, 383 
 Capp V. Topham . 16, 17 
 
 Capper and Mortimer 226, 239 
 Card y. Jatfray . 75 
 
 Carding and Lord Verney 630 
 Careless and Stewart . 96 
 
 Carey and Bennet College 40, 
 189,431 
 Carill and Lowther . 8S 
 
 Carleton and Lowther 612, 635, 
 
 610 
 Carlisle {Earl of) and Lech- 
 mere 546, 547, 543 
 Carpenter and Sorrell 641, 64? 
 Carr ex parte . 5 
 Carr and Hill . 176 
 Carr and Wedderburne 88 
 Carroll and Savage 100, 113, 163^ 
 
 544 
 Carter and Brown 5^ 
 
 Carter v. Home - 525 
 
 Carter v. Pritchard . 662 
 
 Cartwright and Denn , 630 
 Caruthers v. Caruthers 306, 307 
 Carwarden and Parry 567 
 
 Gary t. Carj , 510 
 
 C«ryll
 
 INDKX TO CASES. 
 
 xxvn 
 
 VMryM and Hayes 
 
 Oaso'i V "ound 
 
 Caioii ani Stadd 
 
 Cass I. iiudv'le 
 
 Cass v.Wau^r house 77, 8!, 275 
 
 Cast Marc Gld><s Company and 
 
 thi' Atlonu'y G; neial 136 
 Castle and Ho va.d 19, 21, 23 
 CsiSweU ev par/e Aj)p. No. 24 
 Gate-by a mI Mountford 483 
 
 Cator aM(l B )i.vHi<» , 99 
 
 Cator atiil Jackson , 15 
 
 Cat()r V. Kar) of Pembroke 416 
 Cavan (Lady) V. Pulteney 488 
 Cave and Payne , 34 
 
 Cavf-ndi-h V. Worsley 176 
 
 Caz'nov.- atui Mall 325, 326 
 
 Chai^iii au and Baillif 49 
 
 Chalit- aid (riirthshore 305, 546 
 ChaMib.il.iiii and (.ox 429, 432 
 Cham'jerlui-' and Fell 97 
 
 Chamlierlaini- v. Cliaml)tr!aiiie 136 
 ChatnJjcrlaine and ( hjlips 141, n. 
 Chsmb^rsV. Grffiths 247,248 
 Champion v. Ilummer 75 
 
 Chan l< lor V. Lopus 3 
 
 Chandler v. IJeard 293 
 
 Chandlf-ss ^nd iWikie 408 
 
 Chant'o- (l)n;hess of) and 
 
 Bivdg-s . 159, n. 
 
 Chando- ( I ).)ke of) v. Talbot 30 
 Chaplain k. Southgate . 484 
 Chapl'ti 111(1 I'atem . 478 
 
 Chapmin V. Bond . 387, 388 
 Cha; man v, lirowti . 141, n. 
 Chapman v. Emery 556, 566 
 
 Chapman V. (ol)-on . 623 
 
 Chapman v. Tanner . 459 
 
 Charles t. Andrews 224, 305, 459 
 
 Pajp Page 
 
 333 Charlton y. Low 378,388,621 
 665 Cliarlewuod v. the Duke of 
 659 Bedford 6}, n. 79, 88 
 
 236 Char! wood V.Morgan 279, n. 
 
 Charnells and Siddon 622 
 
 Chater v. Beckett , 70 
 
 Cherry and Ferrars 5G5^ 635, 652 
 ("hi sney's case . 365 
 
 Chest. I field T. Jansseen 231 
 
 Chetham v. Grugeon . 5S 
 
 Cheney's (Lord) case 134 
 
 Child V. Lord Abingdon 424,429 
 Child and Baker . 179 
 
 Child V. Godolphin . 94 
 
 Child and Lord Irnham 141, 149, 
 150, 191 
 Chirton's (Walter de) case 532 
 i'.ldity and Williams 305,307, lu 
 ' 'idvall V. Nicliolls . 611 
 
 C!iolmoiull#'y (Marquis) Y. 
 
 L )rd Clint()4i . 322 
 
 Cholmomlleij and Orford 627 
 
 Cholmondley and Pitt 382 
 
 Cliolmondeley (Earl of) and 
 
 Lord Walpole . 135 
 
 Chomley's case , 534 
 
 Christie and . . 263 
 
 Christie r. Attorney-General 17, 
 
 18 
 Christie and Boxwell . 19 
 Christ's Col. V. Widdringfon 659 
 Christ's Hospital v. Dudgin 542 
 Chnrch v. Lejjeyt . 205 
 
 v.'hiirchill ex parte . 505 
 
 Churchill v. G rove 400, 645 
 
 Churchman v. Harvey App. No. 24 
 Chufr and Sidby , 484 
 
 Care V. Earl of Bedford . 635 
 Clare v. Clare * App. n . 
 
 c 2 Clark
 
 XXVlll 
 
 INDEX TO CASES. 
 
 Clark and Fallagcr . 199 
 
 Clark V. I lack well 101,114 
 
 Clark and Kirk, or Heisler 565 
 Clarke and Arraiger . 196 
 
 Clarke V. Elliott SCO, 201 
 
 Clarke and Gibson 199, 200, 201 
 Clarke and Goodwin . 219 
 Clarke v. Grant . 120 
 
 Clarke and Smith . 21. 23 
 Clarke v. Terrel . 73 
 
 Clarke v. Wilson . 200 
 
 Ciavell and East India Comp. 565 
 Clay V. Clay . 320, 321 
 
 Clay V. Sharp . 301 
 
 Clayton and Fife 26, 117, 203 
 
 Clayton v. Lord Wilton 
 Clayworth and Cooke 
 Clements and Hamilton 
 Clerk V. Clerk 
 Clerk V, Nettleship 
 Clerk V.Wright 
 Clerk and Younsj 
 
 559 
 658 
 228 
 503 
 562 
 75,99 
 6, 185, 225, 
 226 
 Clifford V Laughton . 275 
 Clifton V. Walraesley , 140 
 Clinan v. Cooke 75, 77, 88, 108, 
 111, 275 
 Clinton v. Trefusis . 58 
 
 Clinton (Lord) and Marquis 
 
 Cholmondley , 322 
 
 Qissel and Leakins . 3 
 
 Clobery a?id Ker . 251,252 
 Clowes and Higginson 26, 30, 76, 
 92, 122, 186, 203, 272 
 Clynn v. Litter . 166 
 
 Coare t. Creed . 13 
 
 Cock V. Richards . 141 
 
 Cocker and Fludyer 422, 432 
 Ctjckes V. Sherman . 635 
 
 Paic 
 Cofiin T. Cooper . 338 
 
 Coghill V. Holmes App. No, 24 
 Coke V. Wilcocks . 666 
 
 Coldcot V. Hidp, or Hill 144, 
 
 145, 497 
 Cole V. Gibbons 230,231 
 
 Cole and Pordage 39, 108 
 
 Cole V.White . 99,100 
 
 Coleman and Binsted 99, 116 
 
 Coleman v. Upcot . 71, 73, 74 
 Coles and Forshall 408, 586, 
 587, 588,601 ; App. x\o. 19 
 Coles and Hunt . 401 
 
 Coles V. Trecothick 73, 85, 88, 
 89, 92, 106, 186, 225, 240, 
 505, 512 
 Collet v. De Gols 372, 645, 646, 
 647, 648 
 Collett and Lloyd 329, 331, 339, 
 n.; 345, 429 
 Collet v. Thompson . 209 
 
 Collet v. Wollaston . 225 
 
 Collett and Shore . 392 
 
 Collinge's case . 433 
 
 Collins and Benyon . 437 
 
 Collins and Robson . 128 
 
 Colman v. Sarrell App. No. 24 
 Coltman and Dolin , 563 
 
 Colton V. Wilson . 308 
 
 Colvile V. Parker . 556 
 
 Co7ner v. WalUcy 168, n, ; 420, 
 421, 426, 429, 447, 448, 465 
 Commissioners of Appeals in 
 
 Prize Causes and Willis 427 
 Corapton and Lady Bellasis 533 
 Compton and Ford . 73 
 
 Compton V. Richards . 29 
 Comyn and O'Gorman 565 
 
 Conolly V. Parsons J9, 20, 21 
 Conraa
 
 INDEX TO CASES. 
 
 XiXl 
 
 Page 
 Conran v. Barry . 55, n. 
 
 Constable and Waljcer 89, 92, 
 
 133, 208 
 Conway and Broughton 492 
 
 Conway t. Shrimpton 224 
 
 Cook and Bracebridge 364 
 
 Cook and Sir John Burlace 622, 
 
 667 
 Cook and Fountain • 365 
 Cook and Wallace . 353 
 
 Cook V. Booth . 139 
 
 Cook and Clinan 75, 77, 88, 108, 
 
 111,275 
 Cooke V. Clayworth , 658 
 Cooke V.Cooke . 158, 382 
 Cooke V. Fowndes , 489 
 
 Cooke and Hockin . 277 
 
 Cooke and Milligan . 258 
 Cooke and Mussell . 79 
 
 Cooke T, Tombs 70, 78, 80, 81, 99 
 Cookson and Whelpdale 515, 519 
 Cooper and Aldrich . 470 
 
 Cooper and Buxton 4, 185, 224 
 Cooper and Coffin , 338 
 
 Cooper V. Denne l 287 
 
 Cooper V. Smith • 75, 79, 84 
 Coote V, Mammon , 639 
 
 Cooth V. Jackson . 96, 99 
 Cope and Glover . 481 
 
 Coppard and Harrison 308 
 
 Coppin V, Coppin 162, 462, n. ; 
 467,470,471,472,473 
 Coppin V. Fernyhough 286, 652 
 Corbet and Ewer 398,454,456, 
 
 458 
 Corder v. Drakeford .' 70 
 Corder and Mason 254, 259, 286 
 Corder v. Morgan . 301 
 
 Cordley and Beckett 654 
 
 Page 
 Cordwell v. Mackrill . 655 
 Cornelius and Simmons 102 
 
 Cornish v. Rowley . 327, 336 
 Cornwall v. Williams . 189 
 Cornwall :s's case . 636 
 
 Corpe and Drcxze . 253, 298 
 Coryton and Hellier 141, n. 
 
 Cory V. Gerteken . 625 
 
 Costigan V. Hastier . 185,190 
 Cotter V. Layer , 165, 166 
 Cotterell v. Hampson 437 
 
 Cotterell v. Button 315,317 
 
 Cottington v. Fletcher 95, 531 
 Cotton and Campion , 542 
 Cotton V. Everall '. 436, n. 
 Cotton V. King , 556 
 
 Cotton V. Lee . 71 
 
 Couch V. Stratton . 305 
 
 CourtowD (Lord) and Under- 
 wood . 610, 634 
 Coussniaker v. Servell 299 
 Coward v. Odingsale . 333 
 Cowell V. Simpson , 461 
 Cowper V. Stiles , 114 
 Cox V. Bateman , 544 
 Cox V. Chamberlain 429, 432 
 Cox V. Paxton , 544 
 Cox and Sheldon . 611,639 
 Cox and Swan . 215 
 Craddoch and Lake . 524 
 Cragg V. Holme . 184 
 Craig V. Hopkins . 411, n. 
 Crane v, Drake . 456 
 Crawford and Gordon . 229 
 Crayford V. Crayford . 497 
 Creasy and Haycraft 5, 625, n. 
 Creed and Coare . 13 
 Crcspigny v. Wittenoon App. 
 
 No. 12 
 CreswtjH
 
 XXX 
 
 INDEX TO CASES. 
 
 CreBwell r. Byron , 306 
 
 CreswHI anH Watts . 624 
 
 Crc'llicrt anil H.irding . 65 1 
 Crewe v. D.ck^u 287, 452 
 
 CrJpps V. Kcade . 410 
 
 Crisp hikI Crii^o * 15 
 
 Crisp V. H.ath . 401 
 
 Crisp V. Pratt . 541 
 
 Crisp*' and Lloyd . 286 
 
 Croflvfoid V. Alexander 156, 196 
 Crockford aud Knight 74, 84. 
 
 217 
 Crockford T. Winter . 427 
 Croft V. SIpe . App. No. 24 
 Crofton V. Ormsby 565, 630, 650 
 Crokfr and Lfgge . 262 
 
 Crompton and Sale . 586 
 
 Crop V. Norton 189, 190, 528, 
 532, 534 
 Crosbie and Burke . 46 
 
 Crosby V ■• iddleton , 151 
 Crosby v. P^rcy , 211 
 
 Croiby v. Wadsworth 62, 66, 69, 
 
 70 
 Crosly and Arkwright App. 
 
 No. 12 
 Cross T. Faiistenditch . 573 
 Crossby and Buckhouse 71, 73, 
 
 130 
 Crosse V, Young , 482, 484 
 Crowe V. Ballard « 515 
 
 Crowe and Barnei . 163 
 
 Crowther and Tawney 78 
 
 Croyston v. Bane» , 93 
 
 Cruso V. Crisp • 16 
 
 Crutchley v. Jernlngham * 200 
 Cuffv.Penn . 116 
 
 Culpepper t. Aston 436, 450, 641 
 Cttudall and Bell . 622 
 
 face 
 Cunningham t. Williams 48 
 
 Cunynghame and Rose 75,80, 
 
 162 
 Ctirrer or Comer v. fVa'klci/ 447 
 Curteis and Pincke 215, 250, 331, 
 
 339 
 Curtis V. Price . 46 
 
 Cuitis and Williamson . 437 
 Curtis V. Marquis of Bucking 
 
 ham . ' 1S6 
 
 Curwyn V. Milner • 230 
 
 Corzon and Aslon , 665 
 
 Custance and Holmes 625, n. 654 
 Calhbert V, Btker 246, 443, 447 
 Cutler T. Simons . 201 
 
 D. 
 
 Dalby and Rex , 534 
 
 Dale V. Liiter • 257 
 
 Dale V. Sollet , 206 
 
 Dalton V. Hammond , 352 
 Daly and Kennedy 46, 377, n. 
 
 399, 633 
 Daly T. Osborne . 199 
 
 Darao* and White 225, 226 
 
 Dancer and Ebrand . 541 
 Dane and Emanuel . 153 
 
 Daniel v. Adams 88, 179, 181, 
 
 186 
 Daniels v. Davison 156, 204, 254, 
 
 650, 652 
 Dannah and Wright , 91 
 
 DanTers and Doe . 323 
 
 Danvers and Hunt . 484 
 
 D'Arcy t. Blake 377, 378, n. 
 Dare t. Tucker . 30, 389 
 Darkjn v. Marye • 50 
 
 Darley v, Singleton .- 238 
 
 Darris's
 
 INDEX TO CASKS. 
 
 XXXI 
 
 Page 
 Darrb's case . 156 
 
 Dashwood and Musgrave 178 
 Daubiiz an-l Pye , 498 
 
 Davenport and Vale , 46 
 
 Davidson v, Gardner . 508 
 Davie T. Deardsham 154, 156, 
 
 161 
 Davie v. SachevereJI , 484 
 Davis V, Austen , 626 
 
 Davis and Denton , 545 
 
 Davii V, Owen . 73 
 
 Davis and Shirley . 262 
 
 Davis and Selkrig . 525, n. 
 Davis V, Earl of Strathmore 588 
 Davis V. Hone . 184, 185 
 Davis V. Jonei , 181 
 
 Davis and Swift . 536, 537 
 Davis and Thomas 137, 146, 153, 
 Davis and Whitworth . 154 
 Davison and Daniel 156, 204, 254, 
 650, 6S2 
 Davis's case , 221 
 
 Davy 7, Barber , 419, 424, 
 
 425 
 Davys t. Howard . 547 
 
 Dauh and Berkeley ; 202 
 
 Dawes V. King . 3 
 
 Dawson and Addison * 502 
 Dartson and Burke , 569 
 
 Dawson and Frame . 101 
 
 Dawson v. Masiey . 511, 658 
 Day V. Arundel . 662, n. 664 
 Day and Attorney-General 52, 92, 
 
 170 
 Day and Blennerhasset , 507 
 Day and Brooks . 408 
 
 Day V. Fynn . 274 
 
 Day and Newman , 225 
 
 D«tc«n r. Smith $46, i\J» 548 
 
 Paga 
 Dean I ordj and Kinalrd 3, 4, n. 
 Dean and Leech . 565 
 
 Define v. Rastron , 226 
 
 Deardon and Keene . 295, 320 
 Debar and Taylor , 493 
 
 De Barnales r. Fuller . 427 
 De Barnalis v. Wood . 428 
 De Faria and Gowland 230, 231, 
 
 232 
 De Gols and Collett 372, 645, 
 646, 647, 648 
 De Graves V. Smith . 5 
 
 De Havilland t. Bower- 
 bank , 427 
 DeheW and Saunders . 621 
 Delane V. Delane ^ 531 
 Deiigne and Saunders • 622 
 De la Cour and Haigh . 153 
 Denn v. Cartwright . 630 
 Denn r. Kemeys . 366 
 Denn and Ireton , 607 
 Denne and Cooper , 287 
 Denew v. Deverell , 30 38 
 Denison and King , 533 
 Denny and Hamilton . 527 
 Denton v. Davies . 545 
 Denton v. Sienarf or Sew- 
 ard . 99^ 204 
 Derby Canal Company v. Wil- 
 
 mot . 589 
 
 Derivali and Doicse : 381 
 Derrison and Shipply , 78, 86 
 Deschamps and Alley 329, 330, 
 
 333 
 D'Esterre and Wheeler . 9S> 
 Deverall and Remington . 219 
 Deverell v. Lord Bolton 280, 284 
 Deverell and Denew . 30, 38 
 Deverell and Lord Oueruleton 28} 
 Detion*
 
 XX\11 
 
 INDEX TO ca.sj::>. 
 
 Pa e 
 
 Devonshire (Ditke of) and 
 
 Marquis of Normanby 83, 
 111, 192, 194 
 Dovrcux and Winter , 179 
 V>^vf(\nt;y ex parte . 321 
 
 Dews V. Brandt . 228,231 
 
 Dias and City of London . 24 
 Dibbin and Baker, . 301 
 
 Dichfield and Ulrich . 136 
 
 Dickin and Crewe . 287, 452 
 Dickens and Morecock . 608 
 Dickenson v. Adams . 105 
 Dickengon v. Dickenson 294, 439 
 Dickenson v. Heron 342, 422, 
 429, 433 
 Dickenson v, Lockyer . 454 
 Dickenson v. Shaw . 536 
 
 Dickenson and Atchison 236, n. 
 Diggsv. Boys . 641 
 
 DIghton and Lan« . 544 
 
 Dike V. Ricks . 450 
 
 Dillon T. Byrne . S95, n. 
 
 Dillon V. Lemaa . 316 
 
 Dillon and O'Fallon . 616 
 Divett and Powell . 120 
 
 Dixon V. Astley , 200 
 
 Dixon and Stammers . 140 
 Dobson V. Leadbeater , 663 
 Dodd and Beable . App. No. 24 
 Dodd and Iline 608, 61 1, 640 
 Doe V. Abel . 222 
 
 Doer. Andrews , 657 
 
 Doe, r. Archer , 633 
 
 Doe. V. Bland . 136 
 
 Doe T. Brightwen ; 295 
 
 Doe V. Breach . 218 
 
 Doe V.Burt . 135 
 
 Doe y. Danvers . 822 
 
 Doe V. Calrert . 295 
 
 
 Page 
 
 Doe V. Hogg 
 
 600 
 
 Doe V. Hopkins 
 
 555 
 
 Doe V. James 
 
 i 552 
 
 Doe V. Jesson 
 
 316,317 
 
 Doe V. Jones 
 
 315 
 
 Doe V. Lawder 
 
 218 
 
 Doe V. Lpa 
 
 118 
 
 Doe V. Lufikin 631, 632, 651 
 Doe V. Manning . 655 
 
 Doe T. Martin . 7, 574 
 
 Doe V. Martyr : 5o5, 564 
 
 Doev. Micklem , 141, n. 
 
 Doe V. Morris . 551 
 
 Doe V. Oxenden . 135 
 
 Doe T. Pegge . 370 
 
 Doe T. Perkins • 9 
 
 Doe T. Philips . App. No. 12 
 Doe V. Pott . 160, n. 
 
 Doe V, Pioutledge . 552,565 
 Doer.Sayer . 218 
 
 Doev. Scote . 371 
 
 Doer. Smith . 218 
 
 Doev. Staple . 370 
 
 Doe V. Sybourn . ib. 
 
 Doe V. Wroot . 370 
 
 D'Oliff and S. S. Company 142 
 Dolinv. Coltman . 563 
 
 Dolland and Lyster : 400, 524 
 Dolman (Sir Thomas) and 
 
 Smith . 3S9 
 
 Dolphin and Eyre . 611, 666 
 Donald and East India Com- 
 pany . 193, 658, 650 
 Donegal and Bernal . 230 
 Donovan and Pitt . 33-8 
 
 Dormer v.Parkhurst . 323 
 Douglas V. VVaad , 556^ 566 
 Douglas V. Whitrong , 168 
 Douglas T. Yallop . 408 
 
 Downes
 
 iNEir.X to CASES. 
 
 XXXlll 
 
 Pago 
 Downes and Wood 416, 521 
 
 t)0TOSc V. Derivall 381, 382 
 
 Dowson and Pickering 270 
 
 ttoyley v. Countess of Powis 39 
 Drake and Crane i 456 
 
 Drakeford and Corders 70 
 
 Draper's Company v. Yardly 652 
 Drewe ». Corp 253, 298 
 
 t>rewe v. Hanson 248, 250 
 
 Drewe and Payne . 591 
 
 Druramond and Boydell 79 
 
 Drummoud and M'Leod 456 
 
 Drury and Drury, or Earl of 
 
 Bucks 305, 306, fi07, n. 
 
 Drury v. Man . 352 
 
 Du Cane ex parte . 507 
 
 Duckenfield v. Whichcott 3 
 
 Dudley (Lord) and Attorney- 
 general . 510 
 udley V. Dudley * 377 
 Dudley v. Folliott 4 482 
 DuffelU. Wilson . 243 
 Dumbell ex parte 504, 505 
 Dunbar v. Fredennick 521, 630 
 Dunch V. Kent . 436 
 Dunsany (Lord) and Latouche 
 
 606, n. 610 
 Dunsfordand Eyre . 5 
 
 Durand and Hart . 136 
 
 Durdin and Gaskell 642 
 
 Durell and Noble . 277 
 
 Durham (Bishop of) and Mor- 
 tice • .56 
 Dursley (Lord) y. Fitzhard- 
 
 inge . . 629 
 
 Dutch V. Warren , 206 
 
 Dntton and Cotterell 315,317 
 Dt/er V. Dyrr 530, 534, 536, 539 
 
 Pa-e 
 Dyer t. Hargrave 246, 264, 334, 
 
 425 
 Di/er and Pried . 263 
 
 Dyer V Pulteney . 156 
 
 Dt/fce and J»nes 36,207, 208 
 Dyke v. Sylvester . 296 
 
 E. 
 
 Earl V. Baxter . 285 
 
 Early. Rogers 146, 148, n. 
 
 Earle and Hungerford 574 
 
 Earl and Senbouse 566, 655 
 
 Earle and Wing . 278 
 
 East India Company v. Clavell 
 
 565 
 East India Company v. Don- 
 ald 193,658,659 
 East India Company v. Ilcns. 
 
 ley . 36 
 
 Eaton V. Lyon 139 
 
 Eaton and York , 522 
 
 Ebrand V; Dancer 541 
 
 Echllff V. Baldwin 196 
 
 Edden v. Read * 207 
 
 Edelph and Pitts , 635 
 
 Eden (Sir J.) v. the Earl of 
 
 Bute , 139 
 
 Edlin V. Batty . 628 
 
 Edmunds and Powell 25, 26, 117 
 Edney and Jones 25, 28, 37, 117 
 Edwards ejjj«r/e , 621 
 
 Edwards and Elliot 212,466,474 
 Edwards v. Harvey 432 
 
 Edwards v. Heather 225 
 
 Edwards v. Hodding , 37 
 
 Edwards and Ilollis 61, n. 65, n. 
 
 193 
 
 d 
 
 Edwards
 
 'XX.XIV 
 
 INPEX TO CA3ES'. 
 
 Page 
 Edwards and Ilollis, or Whit- 
 ing . 98 
 Edicards V. ISVLeay . 416 
 Edwar Is mid Moore 96 
 Fxlwards and Perry ■ 481 
 Effinghiin (Lord) and Lord 
 
 Portsmouth . S20 
 
 Kg»rton and Head , 662 
 
 Egerton V. Mathews 71 
 
 Eggington V. Flavel . 48 
 
 Kgremont (Lord) v. Hamilton 321 
 Ekins and Baily 44l 
 
 Ekins V. Trcsham • 3,4 
 
 Eldorton and Lansdown 49 
 
 Elderton and Spurrier 37, 427 
 Eldridge t. Porter . 199 
 
 Eleyer and Atncourt . 214 
 Eiiason and Parr , 564 
 
 EUard V. Lord Landaflf 186, 185, 
 
 190 
 Elliot V. Brown . 524 
 
 Elliot V.Edwards 212,466,474 
 Elliot V. EHiot 535, 537, 539 
 
 Elliot V. Merryinan 436,441, 
 442, 458 
 Elliott and Clarke 200, 201 
 
 Ellis and Urutt S6, 207, 208 
 Ellis and Knight App. n. 
 
 Ellison V. Ellison App. No. 24 
 Elmherst and Blyth 199 
 
 Elton and Burroughs 525 
 
 Emanuel v, Dane . 153 
 
 Emerson and Andrews 49 
 
 Emerson and Riddle . 527 
 Emery and Chapman b%b 
 
 Emery v.Wase 178, 180, 227, 
 
 234 
 
 Emmerson v, Heelis 42, 70, 79, 
 
 86, 88, 90, 249 
 
 Emmott and Andrews App. No.- 
 
 24 
 Erhart Rnd Gunuis 25,26,117 
 l']rrington V. Annesley 183 
 
 Krrington and Randall 517, 519 
 Kstcourt V. Estcourt 3o5 
 
 Evans T.Bicknc'U 369,480, 624, 
 
 658 
 Evans V. Broun . 228 
 
 Evans v.GrilTifh . 231 
 
 Evans v. Llurliyn . 229 
 
 Evans and Peacock 231, 232 
 
 Evelyn v-. Evelyn . 170 
 
 Evelyn v. Templar 555^ Sb^^ 562 
 Eieralland Cotton 436, n. 
 
 Everard and Rex • 276; n. 
 Ewer V. Corbett 398, 454, 456, 
 
 458 
 Ewer and White . 321 
 
 Exeter (Bishop of) and Hill 
 
 552, 556, 563 
 Exeter (Bishop of) and Wy. 
 
 vill . 239 
 
 Eyles and Hooper 532 
 
 Eylis and Hanger 224, 245 
 
 Eyre and Boone . 327 
 
 Eyre v. Dolphin 611, 66d 
 
 Eyre v. Dunsford , 5 
 
 Eyre v. Iveson . 93 
 
 Eyre and Poplam 16, 108, 19I, 
 
 334 
 
 r. 
 
 Fagg's case, or Fagg 'and 
 
 Sherley . 622 
 
 Fane v, Spencer , 285 
 
 Fainv. Brown . 185 
 
 Fairchild v, Newlahd 615 
 
 Fdjrclaiis
 
 TNDEX TO CASTAS. 
 
 TCXXy 
 
 Page 1 
 
 I 
 Fairclaiir V. New land . 614 
 
 Fairfax (Lord) and Bottom- 
 ley . . 379 
 Fairfield v. Birch 560, A pp. 
 No, 23. 
 Falkener and Morse 625 
 Falkland (Lady) and Strode 138 
 Fallon ex parte App. No, 
 
 12 
 Farebrothcr V. Ansley 17 
 
 Farguson t. Maitlaud 229 
 
 Farmer V. I'ogers 148, n. 
 
 Farmer v. Robinson 88 
 
 Farmer and Shelling . 138 
 Farmer V. Wardell . 231 
 
 Firquhar and M'Queen 249, 250, 
 298, 429, 633, 654 
 Farr V.Newman . 456 
 
 Farrel and Whitmel 191 
 
 Farrer v. Farrer • 144 
 
 Farrer v. Niglilingal 206, 243 
 Fauconberge and Filzgarald 640 
 Fausset and Whitfield 627 
 
 Faustenditch and Cross 573 
 
 Fawcett and Longcliamps 135 
 
 Fawell V. Heells 462, 475 
 
 Featherstonhaugh v. Fenwick 
 
 191,525 
 Feilder v. Studley 145, 497 
 
 Fellv. Chamberlain 97, 118, 534 
 Fenhoullet and Scott 383 
 
 Fenton and Brou:n 3, 34, 38, 246, 
 254, 263, 424 
 Fenwick and Featherstou. 
 
 haugh 191,525 
 
 Feoffees of Herriott's Hos- 
 pital V. Gibson • 77 
 Fergus T. Gore . 56 
 
 Par-- 
 Fermor's ca?e . 633 
 
 Fermor and F« rrers S65 
 
 Feme V. Bullock 101,114 
 
 Fern J hough and Coppin 2?6^ 
 
 ()5-J 
 Ferrers v. Cherry 565, 635, 63'ji 
 Ferrers V. Fermor 3u5 
 
 Ferrers and Hanning . 62 1 
 Ferrers (Lord) and Upton 
 
 54, 57 
 Field and Yea 
 Fielder v. Higginson 
 Fielding and Lewes 
 Fielding and Philips 
 Fife V. Clayton 
 Fifield and Twigg 
 Fildes V. Hooker 
 
 391 
 433 
 . 666 
 214 
 26, 117,203 
 50 
 197, 283, 284, 
 291,293 
 536, 537 
 613 
 
 Finch V. Finch 
 
 Finch v.Newuham 
 
 Finch V. Earl of Whincht-kca 
 
 399 
 flngal {Lord) V. Ross 104 
 
 Finch and S'opcr 287, 588 
 
 Finlay and Flood 121 
 
 Fishe V. Rogers . 352 
 
 Fisher and Aubrey 30 
 
 Fitzgerald and Barton 490, 494 
 Fitzgerald v. Fauconberge 6n0 
 Fitzgerald v. Foster 
 Filzgerald and Spurrier 
 Fitzhardinge and Lord Durs- 
 
 ley 
 Flavell and Eggington 
 Fleetwood V. Cjireea 
 Fleetwood's (Sir Gerrard) 
 
 case 
 
 Fletcher and Cottington P5, 531 
 i d 2 Fletcher 
 
 22 
 97 
 
 629 
 48 
 
 200 
 
 591
 
 XXX VI 
 
 INDKX TO CASES. 
 
 Page 
 
 Fletcher and Ilurd . 485 
 
 Flctclicr and Long 245 
 
 Fletcher and Orlebar 154, 308, 
 
 589 
 rielthpr and Sibson . 623 
 
 Fletcher V. Siflloy , 5^2 
 
 Fletcher V. Toilet 176 
 
 rieureau v. ThomhiU 189, 207, 
 208, 427 
 Flexny and Kellick 504 
 
 tlint V. Brandon . l82 
 
 flood and Fryer , 541 
 
 Flood V, Finlej- . l2l 
 
 Florence and Tanner 652 
 
 Floyd V. Aldridge . 15^ 
 
 Floyd V, Bethill . 277 
 
 Floyd V. Buckland . 99 
 
 Floyer v. Sherrard . 228 
 
 Fludyer v. Cocker 422, 432 
 
 Fohaine's (Lady) case 1 54 
 
 Foley and Moore . 139 
 
 Foley V. Percival 155, l68, n. 
 Foljambe and White 284. 308, 
 
 432 
 FoUiot and Dudley 482 
 
 Foorde and Hayes App. No. 24. 
 Foot V. Salway . 11 8 
 
 Forbes (Lord) V. Nelsoa 611 
 
 Ford V. (^ompton 73 
 
 Ford and Fordyce 254 
 
 Fardyce v. Ford 254, 332 
 
 Foreman and Wilson 544 
 
 Forester and Waldron 424, 430 
 Forester V. Lord Leigh 526 
 
 Foshall V. Coles 408, 586, 587, 
 588,601, App. No. 19. 
 Forster and Attorney-general l4o 
 Forster and Fitzgerald 22 
 
 Forster V. Forster 549 
 
 Ff.rstcrv. Hale 78, 111, 527 
 
 Foster and Ji'idon 173 
 
 Fort and Wilde 209. 288, 327, 
 372, 426, 428 
 Forth and Haniaon . 635 
 
 Foster V. Mil pes , 484 
 
 Foster and Norman 495 
 
 Fosttr and Savage . 624 
 
 Fothergiil V. Fothergill App. No. 
 
 24 
 Foulkes and Owen (6 Ves. Jun.) 
 
 505 
 Foulkes T. Owen (9 Ves. Jun.) 
 
 58 
 
 Fountain v. Cook , 365 
 
 Fountain and Young 657 
 
 Fournicr and Bishop of Wln- 
 
 fhtster 656 
 
 Forcle v. Freeman 71, 73, 82 
 
 Fowler and Pechell 219 
 
 Fowndes and Cooke 489 
 
 Fox V. Birch . 201 
 
 Fox V . M ackreath 504, 5 1 9 
 
 Foxcraft v. Lister . 99 
 
 France t. Dawson . 101 
 
 Francis and Burgh , 626 
 
 Francis V. Wigzell . 502 
 
 Frank v. Marshall 661 
 
 Franklin v. Lord Brownlow 
 
 155, 290 
 Frederick and Morshead 59 
 
 Freebody V.Perry . 201 
 
 Freeland and Sayle l76 
 
 Freeman and Barnes . 355 
 Freeman and Fowle 71/ 7Z, 82 
 Freeman and Parsons (Revo- 
 cation) 159 
 Freeman
 
 IX'DEX TO CASES. 
 
 XXXVll 
 
 Pa.2;e 
 
 Freeman and Paslcy . 5 
 
 Freeman v. Taylor 400, n. 
 
 Frewen v. Relfe . 178 
 
 Fro^t and Broicn . 196 
 
 Fry T Porter . 637 
 
 Fry and Wilklns 31 
 
 Fryer v» Flood . 54l 
 
 Fullager T. Clark , 199 
 
 Fullarton and Watts 159 
 
 Fuller and De Bernales 427 
 
 Furgason v. Maitland 229 
 
 Fursman and Radcliffe 657 
 
 Fyme and Day . 274 
 
 G. 
 
 Gainsford and A eland 40j 425, 
 
 429 
 Gainsford v. GiiiTith 494 
 
 GaiUkill and Parnther 37 
 
 Gale and Lang , 324 
 
 Gallmore and Moss 221 
 
 Galloway (Lord) and Stedman 
 
 343 
 Galton V. Hancock , J 58 
 
 Gape T. Handley I 140 
 
 Garbrand t. Allen . 502 
 
 ffardiner and Goldson 641 
 
 Gardner and Davidson 508 
 
 Gardner v. Lord Towsend 546 
 Garden ex parte . 71 
 
 Garland and Smith 570 
 
 Garraway and Meynell 634 
 
 Garrick v. Earl Camden 50 
 
 Carrions ▼. Swift . 211 
 
 Garrions and Ward 39 1 
 
 Garth and Hughes • 663 
 
 Garth v. Ward . 641 
 
 Garthshore ▼. Chalie 305, 5 16 
 Garlside v. Ishcrwood 228 
 
 Pac-e 
 Garfslde and Tipping . 5i 
 
 G.'iscoigne v. Stut 595, n. 
 
 Gascoigne v. Thwing 530, 532 
 Gaskarth v. Lord Low ther 74,172 
 
 430 
 Gaskellv. Durdin . 642 
 
 Geddes and Havelock 2 14, 32i> 
 Gee and Todd 426, App. No. 
 
 20 
 Gee and Todd 204, 252 
 
 Geli V. Vermedum 173 
 
 Gennor y. Mucmahon 151 
 
 George and Howell l80, 185,190 
 George v.Milbanke ^64, 627 
 Gerteken and Cory 625 
 
 Gervoye's case , 303 
 
 Gery and Milnes 234 
 
 Gibbon and Prideaux 159 
 
 Gibbons v. Baddall 462, 47 1 
 
 Gibbons and Cole 230, 231 
 
 Gibbs and Abbot . 436 
 
 Gibbs and Brown , 377 
 
 Gibson and Chapman 623 
 
 -Gibson v. Clarke 1 99, 200, 20 1 
 Gibson and Feoffees of Heri- 
 
 ott's Hospital 29, 77 
 
 Gibson and Jeyes , 516 
 
 Gibson and Lake 523, 524 
 
 Gibson V. Lord Montford l56 
 
 Gibson v, Paterson 
 Gibson V, Smith 
 Giffard v. Hort 
 Gifford V, Nugent 
 Gilbert and Cam6eld 
 
 328, 329 
 276 
 46,633 
 455, 456 
 :07, 208, 
 209 
 Girdlcr and Capcl 158,382,383 
 Glaister v. Hewer 541, 542 
 
 Glazier and Goodright l68 
 
 Glazebrook t, Woodrow 2l4 
 
 Glover V. Cope • '^^1 
 
 Godolphin
 
 xxxviu 
 
 INDEX TO CASES. 
 
 )*agc 
 
 Godolphin and Child 94 
 
 Godolphin (Lord) and Duke 
 
 of Marlborough 48 1 
 
 Goldson V, Gardiner 641 
 
 Goman v. Salishuri/ , l29 
 
 Gomeserra and Barret 99, 225 
 
 Gompcrtz v, • 199 
 
 Gooch and Owen . 38 
 
 Gooch's case . 554 
 
 Goodale and Middleraore 477 
 Goodinge v. Goodinge l38 
 
 Goodisonv. Nunu t 2l4 
 
 Goodrick V, Brown 313 
 
 Goodright v. Glazier 168 
 
 Goodright v, Hodges 534 
 
 Goodright ▼, Jones , 322 
 
 Goodright T, Mcwes 556 
 
 Goodright V. Sales , 38l 
 
 Goodtitle V, Meredith 163 
 
 Goodtitle v. Morgan 412 
 
 Goodtitle t. Jones 320, 371 
 
 Goodtitle v. Pope . 220 
 
 Goodtitle T. Saville 168, n. 222 
 Goodwin v. Clarke • 219 
 
 Goodwin and Hooper 57 
 
 Goodwin V, Lister 173,175 
 
 Goodwin and Pimm 322 
 
 Gordon v. Crawford 229 
 
 Gdrdon (Lord Wm.) v. Mar- 
 quis of Hertford 121 
 Gordon v- Trcvalyaa . 76 
 Gore and Fergus . 56 
 Gore V. Stacpole . 46 
 Gore V. Wigelsworth 630 
 Gorge's (Lady) case 535, 540, 
 
 543 
 Goring T. Nash 559, App. No, 
 
 24 
 Gosdcn and Ramsbottom 121 
 
 Page 
 Gosnold and Shepherd . 140 
 Goudge and Lane 141, n. 
 
 Gough and Shine 621, 628 
 
 Gough V, Stedman . 661 
 
 Gould and Nichols 231, 232 
 
 Gould V. Okenden . 229 
 
 Gower and Attorney-general 
 
 256, 638, 664 
 Gower and Ryder . 56 
 
 Gowland v. Da Faria 230, 231, 
 
 232 
 Gowland and May'er , 166 
 Graham r. Grahanv 622 
 
 Graham?. Sime • 352 
 
 Granger v. Worms 28 
 
 Grant and Clarke • 120 
 
 Grant and Halsey 244, 292 
 
 Grant and Hamilton . l88 
 Grant v. Munt , 263 
 
 Grant V. Pendleton 136 
 
 Grant v. Shills . 464 
 
 Gray and Hatton ; 71 
 
 G ray me T, Gray me : l77 
 
 Greaves t. Ashlia 32, 116 
 
 Green and Fleetwood 200 
 
 Green v, Jackson • 408 
 
 Green v. Lowes , 435 
 
 Green V.Smith 154,170 
 
 Green t. Wood , 333 
 
 Greenway v, Adams 204 
 
 Greene v. Lambert 48l 
 
 Greenhill V. Greenhill 156 
 
 Greenstead's (East) case 577, 578, 
 
 637 
 Gregory v, Gregory 530 
 
 Gregory r, Mighell 99, 234 
 
 Gregson and Blackburn 463, 466, 
 
 474 
 Gregson t. Riddle 344, 345 
 
 Greswold v, Marsham 401, 645 
 
 Grey
 
 INDEX TO CASES. 
 
 XXXIX 
 
 Page 
 toy (Lord) r. Lady Grey 535, 
 
 538 
 Crillin and Burnaby 176, -^32 
 Griffin r, stanhope 561,574 
 
 Griffin V. Tailor . 179 
 
 Griffith and Attorney. general 
 
 519, n. 
 Griffith and Evans , 231 
 
 Griffith and Gainsfoid 494 
 
 Griffith and Lloyd 51,396 
 
 Cr/ffilk and Wood 156, 220, 257, 
 
 413 
 Griffiths and Chambers 247, 248 
 Griffiths and Spratley 228 
 
 Griffith and Twisleton 230, 232 
 Groobham and Jones 553 
 
 rove and Churchill 400, 645 
 Grore and Michaux . 503 
 
 Crave and Watt , 504 
 
 Graeber and KnatchbuTl 249 
 
 Grugeon and Chetham 55 
 
 Growsock V, Smith 215,424 
 
 Guest V. Homfray 245 331, 341 
 Gunnis v. Erhart 25, 26, 1 17 
 Gunler v.Halsey 82,98 
 
 Gutteridge and Simpson 304 
 
 Gnyon and Smith 436, 447 
 
 Gay's Hospital and Baynham 
 
 139 
 Gwillim V, Stone 204, 282 
 
 Gwyne ex parte 40, 459 
 
 Gwynnev. Heaton 228,230 
 
 Gyles and Moyse • 522 
 
 Hackwell and Clark , lOl 
 Iladdenham (Inhabltarttf of) 
 V, Rex , 502 
 
 Paee 
 Haddon's case * 179 
 
 Hagedon v. Laing 327 
 
 Haigh T. De la Cour 153 
 
 Halcott V. Markant , 544 
 Kale and Forster 78, 111,527 
 Hales case 17, App, No, 23 
 
 \:Ia\\ ex parte . 557 
 
 flail V. Adkinson . 622 
 
 Hall V. Cazenove 325, 326 
 
 Hall V. Hardy 179, 180, 193 
 
 Hall V. Jenkinson 200 
 
 Hall and Keach 281,551 
 
 Hall T Noyes 504, 520 
 
 Hall V. Smith 8, 334, 652 
 
 Hall V. Warren 182, 190, 234 
 Hall and Wheate . 28/ 
 
 Hallelt and Pennell 54?, 548 
 
 Halspy and Austen 471 
 
 Hahey v. Grant 244, 292 
 
 Halsey and Gunter . 82, 98 
 Hamilton and Oalgney 544 
 
 Hamilton v. Clements 228 
 
 Hamilton v. Denny . 527 
 
 Hamilton and Lord Egremont 321 
 Hamilton v. Grant . 188 
 
 Hamilton and Hobhouse 599 
 
 Hamilton v. Royse 610, 652, 653 
 Hamilton v. Worley . 170 
 Hammond and Dalton 352 
 
 Hammond v. Hill . 487 
 
 I lammond v. Toulmin 499 
 
 Hampson and Cotterell 437 
 
 Hancock and Galton . 158 
 Hancock and Spurrier 237, 238, 
 
 333 
 Handley and Gape . 140 
 
 Hanger v. E) les 224, 245 
 
 Hankin and Hicks . 36 
 
 Banning v. Ferrers . 624 
 
 Banning and Trent 287 
 
 Han<?oii
 
 ^\ 
 
 INDEX TO CAJiKS. 
 
 llan^^on ex parte . 474 
 
 Hanson and Drewe 218, 250 
 
 Hanson and Macdonald 308 
 
 Hanson v. Uobi rdeau 38, 40 
 
 Hapoll and Bel worth 243 
 
 Harbert's (Sir William) ease 405 
 Hai-court ▼. Knowel . 622 
 Hardcastle and Sparrow 160, n. 
 Hardin;; v. Cretliorn 654 
 
 Harding v. Nelthorpe 415, 416 
 Harding v. SulFolk . 134 
 
 Hardingham v. Nicholls 664 
 
 H-irdmau and Omerod 124, 437 n. 
 
 443 
 Hardwicke v. Mynd 437, 453 
 Hardwicke (Lord) v, Vernon 515, 
 
 517 
 Hardwood v. WalKs 143 
 
 Hardy and Hall 179, 180, 193 
 Hardy v. Reeves 655, 666 
 
 Hare and Haynes 142, 149 
 
 Hare v. Shearwood 142, 149 
 
 Harford v. Furrier 
 Hargrave v. Le Breton 
 Hargrave and Dyer 
 Hargrave and Sedgwick 
 Harmood v. Oglander 
 Harnell and Bennett 
 Harnett v. Yielding 
 
 236 
 638 
 246 
 180 
 320 
 46 
 182, 185, 
 189, 260 
 Harper and Barker . 50 
 
 Harrington and Robinson 585 
 Harrington v, Wheeler 333 
 
 Harris and Barnwell 244,279, 
 290, 295, 298 
 Harris V. Ingledew 665 
 
 Harris and Pope • 184 
 
 Harrison ex parte , 504 
 
 Harrison v. Coppard 308 
 
 Harrison ▼. Forth 1 635 
 
 Pa;.;<J 
 
 Harrison T. Southcote 460, 4H, 
 
 616 
 Harrison v. Wright 195 
 
 Harrop and Buckmaster 89, 92, 
 108,*109 
 Hart V. Durand • 136 
 
 Hartley v, Pehall , 288 
 
 Hartly v. Wilkinson 94 
 
 Harvey v. Ashley , 653 
 
 Harvey and Churchman, App. No. 
 
 24. 
 Harvei/ and Belch . 321 
 
 Harvey and Edwards 432 
 
 Harvey v. Harvey . 149 
 
 Harvey (Sir Thomas) v.Mon- 
 
 tagae . • 643 
 
 Harvey v, Parker 176 
 
 Harvey v. Philips , 391 
 
 Harvey v. Young . 3 
 
 Harvy v. Woodhouse 622 
 
 Hastier and Costigan 185, 190 
 Hatchet and Watkins 662 
 
 Hatt and Brotherton 6d& 
 
 Hatton V. Gray . 71 
 
 Hatton v. Jones ^ 552 
 
 Havelock v. Geddes 214, 325 
 Haw and Levy . 206 
 
 Hawkins v, Holmes ' 86, I OS 
 Hawkins v. Kemp 216, 453 
 
 Hawkins v. Obeen 173,175 
 
 Hawkins and Polyblank 362 
 
 Hawkins and Taylor , 458 
 Haxeley and Staughton 180, n, 
 Hay craft v. Cressy 5, 625, n^ 
 Hayes v, Bickerstaff 484 
 
 Hayes v. Caryll , 333 
 
 Hayes v. Foorde App. No. 24 
 Hayes t. Kingdome 524 
 
 Haynes and Birch . 199 
 
 Haynes v. A) re 142,149
 
 INDEX TO CASES. 
 
 xll 
 
 Page 
 
 llayx T. Bailey 224, 291, 35G 
 
 Hay ward V. Lomax . 417 
 
 Hajwartl and Stf phonsoH 554 
 
 Head v, Egerfon . 662 
 
 Head and Lady Teynham 175, n. 
 
 Headloy v, Roadhead 471 
 
 Heaps and Bowes . 232 
 
 Heard v. Wadham 214, 215 
 
 Hearn v. Botelers 461, 462, 47 i 
 
 Hearn v. Toralin 10, 218, 243 
 
 Hearn and Woollam . 120 
 
 Hearn v. James . 73 
 
 Hearne and Sloman . 656 
 
 Hearne v. Tenant . 328 
 
 Heath and Crisp . 401 
 
 Heath v. Heath . 287 
 
 Heath and Schneider , 27 
 
 Heather and Edwards 225 
 
 Heathcote v. Paignon 228 
 
 Heaton and Gwynne 228, 230 
 
 Hedges and O'Herlihy 76, 108, 
 
 191 
 Heells and Emerson 42, 70, 79, 
 - 86, 88, 90, 249 
 Heelis and Faweil 462, 475 
 
 Hegau V, Johnson . 218 
 
 H«isier and Clark . 565 
 
 Hellier and Coryton 141, 11. 
 
 Henderson v. Wild 462, n. 
 
 Hendon (Lord of the manor of) 
 
 and Rex . S52 
 
 Hendon and Waller , 88 
 
 Hcnkle v. the R. E. A. Office 
 
 141, 150 
 Hemmlngton and StandWy 216 
 Hensley and East India Com- 
 pany . . 36 
 Herbert ex parte , 647 
 Herbei t's (Sir Wm.) case 405 
 Hercy v. Ballard . . 320 
 H«riott's Hospital (Feoffees of) 
 V. Gibson . 2Q 
 
 Heme v. Jleeres 
 Heme and Sloman 
 HeroTi and Dickenson 
 
 ; 229 
 
 656 
 
 342, 42^ 
 
 429, 433 
 
 544 
 
 Heron t. Heron 
 Hertford (Marquis oQ v. 
 
 Boore . 340 
 
 Hertford (Marquis of) and 
 
 Lord William Gordon 121 
 Hervey v Howes App. No. 24 
 Hesse V. Stevenson 145, 487, 495 
 Hewer and Glaisttr 541, 542 
 
 Heygate and Ilulme , 163 
 Heylyn v. Heyl^n , ]64 
 
 Heyton and Calthorp 484 
 
 Hibbard and Smith 155, 459 
 
 Hibbert v. Shee , 243 
 
 Hickford v. Maclun 404 
 
 Hickman and Peterson 628, 629 
 Hickman and Earl of Plymouth 
 
 544 
 Hicks V. Hankin . 36 
 
 Hick (Sir Harry) v. Philips 224, 
 
 253 
 Hide and Coldcot . 497 
 
 lliern v. Mill . 649 
 
 Higginson v. Clowes 26, 30, 7G, 
 
 92, 117, 119,186,203,272 
 Higginson and Fielder 4g3 
 
 HIggins V. the York Buildings 
 
 Company ijQj 
 
 Hilbertand Wallinger 199,250 
 Ililes and Jenkins 197, 335 
 
 Hill V. Adams , 377 
 
 Hill and Barker . I55 
 
 Hill V. Buckley 186, 187, 272, 
 273, 275 
 
 Hill V. Carr 
 
 176 
 
 Hill and Coldcott 144, 145, 497 
 Hill T. Bishop of Exeter 552, 556, 
 
 563 
 
 Hill and Hammond 487 
 
 r Hill
 
 xiii 
 
 INDEX TO CASES, 
 
 Hill and Lewes 
 Hill anil Nott 
 
 ill V. Simpson 
 Hill V. Worselt^y 
 
 Tagc! 
 547 
 230,233 
 
 455 
 611 
 
 Hillary v. Waller 285, 295, 370. 
 App. No. 24 
 Hilton V. Barrow . 203 
 
 Hinde v. White-house 75, 77, 78 
 79, 89, 92 
 Hinev. Dodd 608,611,640 
 
 Hinton v. Hinfon . 178 
 
 Hitchins v. Lander 412 
 
 Hithcox V. Sedgwick 372, 621. 
 645,. 648 
 Hitchcox and Underwood 225 
 lloare v. Parkf r , 662 
 
 HoHbs aiul Walton 659 
 
 Hobhouse V. Hamilton 599 
 
 Hobs V. Norton . 624 
 
 Hoby V. Roebuck 68 
 
 Hockin V. Coolu? 277 
 
 Hodding and Edwards 37 
 
 Hodges and Good right, or 
 
 Langfielde 533, 534 
 
 Hodges T. Jones 
 Hodges y. Templer 
 Hodgson V. Le Bret 
 Hodgson and Kendray 
 Hogg and Doe 
 Hogg v. Snaith 
 Holbech and Bree 
 Holdstvorlh V, Holdsworlh 
 Holford and Barker 
 Holford and Lane 
 Holland and Rex 
 Hollings and Matthews 
 HoUis V. Edwards 
 
 54 
 587 
 
 86 
 
 42 
 
 600 
 
 116 
 
 410,415 
 
 470 
 
 48 
 370 
 501 
 410 
 
 61, n. 65, n. 
 
 193 
 
 Mollis V. Whiteing or Edwards 98 
 
 Holme and Cragg . ]84 
 
 Holmes ? Ailsbie 
 
 391 
 
 Holmes v. Cogliill App. No. 21 
 ilolmes V. Custance 625, n. 654 
 Holmes and Hawkins 86, 1C8 
 
 Holmes and I'oultney 68 
 
 Holt V. Holt .. 382 
 
 Homfray and Guest 245, 331, 341 
 Iloiip and Davis 184, 185 
 
 H >tieycomb v. Waldron 603 
 
 Hooker and Fildes 197,283, 
 
 284, 291,293 
 Woofer ex parte , 106 
 
 H. oper V. Evles . 532 
 
 Hooper V. Godwin . 57 
 
 Hooper v. llamsboltom 476 
 
 Hope V. Atkins . 116 
 
 Hopkins and Bond 32? 
 
 H»pkinsand Craig 411, o. 
 
 Hopkins and Doe , 55Z 
 
 Hopkins and Howard 6,185, 194: 
 Hopson V. Trevor . 195 
 
 Horde and Taylor . 319 
 
 Horford v. Wilson . 43 
 
 Horn and Barrington 179 
 
 Horn and Carter . 525 
 
 Horn V. Horn App. No. 12 
 
 Horn and JellifF . 580- 
 
 Horndon (Inhabitants of) and 
 
 Rex . 66 
 
 Home and Moyl . 102 
 
 Horner and Cadman 183, 227" 
 
 Horner and Mayor of Hull App. 
 
 No. 2i 
 
 Horniblow v. Shirley 244, 292 
 
 Horsfall and Waller . 211 
 
 Hort and Giffard 46, 685 
 
 Horwood and Underbill 22S- 
 
 Horton and Nannock App. ^^o. 24 
 
 Hosier v. Read , 133 
 
 Hoskins and Trenchard 496 
 
 Hovedeu v. Lord Annesley 320, 
 
 321, 322, S23 
 
 HoughtO!«
 
 IXDXX TO CASES. 
 
 xliii 
 
 Houghton ex parte 
 Hougiiton V. Ilushlfy 
 Howr and NichoUs 
 How V. Stiles 
 How V. Wei don 
 
 Pa;2;e 
 
 530, 536 
 590 
 375 
 365 
 
 622 
 
 Howard and Bell 131, 333 
 
 Howard v. Braithwaite 88 
 
 Howard V. Castle 19, 21, 23 
 
 Howard and Darys -. 5-i7 
 
 Howard and Hopkyng 6, 185, 
 
 194 
 Hoicard v. Powell 457, 652 
 
 Howe V. Howe . 530 
 
 Howell V. Goorge 180, 185, 190 
 UovivU T. Richards 493 
 
 Howes V. Biushfield 487 
 
 Howland v. Norris 244, 251, n. 
 
 420 
 Huddlestone v. Briscoe 73, 74 
 Hudson and Wfightson 606 
 
 ^ughes ex parte 52, 505, 518, 
 
 628 
 Bughcs T Bennett , 497 
 
 Hughes V. Garth . 663 
 
 Hughes V. Kearney 426, 464 
 
 Hughes and Rann 83, 124 
 
 Hughes V. Robotham 364 
 
 Hulme V. iieygate . 163 
 
 Hull (Mayor ofj v. Horner App. 
 No. 24 
 Humble V. Bill 437,454,457 
 
 Humble and Savage 454 
 
 Hungate v. Hungate 530 
 
 Hungerford (Sir Edward) and 
 
 Blake . 621 
 
 Hungvrford v, Erie 574 
 
 Hungerford and Mildmay 263 
 
 Hunt V. Bourne . 315 
 
 Hunt V. Coles . 401 
 
 Hunt T. Danver» . 484 
 
 Hunt and Maftook 
 Hunt and Mackrell 
 Hunt and Simmons 
 Hunt V. Silk 
 
 Page 
 
 243 
 424 
 410 
 206 
 
 Hunter ex parte . 32,33 
 
 Hunter v. Wilsons 236, n. 
 
 Hundngford and Woods 170 
 
 Huntley and Jaques 625 
 
 11 urd V. Fletcher 481,485 
 
 Hussey and Revel . 236 
 
 Hutchinson v. Bell . 5 
 
 Hutchinson and Moulton App. 
 No. 24 
 Hutchinson v. Johnson 590 
 
 HuUhiusonand Rastel 97, 534 
 HuKou V. Lewis App. No. 12 
 Hylliard ex parte . 215 
 
 Helton and Ramsden 56.1 
 
 T. 
 
 Ibbotson T. Rhodes . 9, 659 
 Iggulden V.May . 139, 140 
 Inchiquin (Earl of) and Coun- 
 tess ofShelburn 139, 150 
 Inge V. I^iipplngwell . 129 
 
 Ingledew and Harris 665, 666 
 Inskip and Lord Braybroke 296, 
 453, 624 
 Ireson v. Donn . 607 
 
 Irnham (Lord) v. Child 141, 149, 
 150, 191 
 Irons V. Kid well . 612 
 
 Iseham v. Morrice • 355 
 
 Isherwood and Gartside 228 
 
 tthel T. Totter . 86 
 
 Ithell T. Bcane . 455 
 
 lyeson and Eyre ', 93 
 
 e J. 
 
 Jackson's
 
 xliv 
 
 INDEX TO CxVSi:S 
 
 Pa.-e 
 J. 
 
 Jackson's case . 630 
 
 Jackson V. Cator . 151 
 
 Jackson and Cooth 96, 99 
 
 Jackson v. Green . "108 
 
 Jackson v. Lever 226, 239, 241 
 Jackson ▼. Pftrie . 219 
 
 Jackson and Rich 126, 127, 150 
 Jackson and Smith . 200 
 
 Jackson and Saunderson 78, 84 
 Jackson and Tenant 436, n. 
 
 Jacob and Rowntree . 462, n. 
 Jaffray and Card . 75 
 
 Jakeman and Shaw 146, 212 
 
 James ex parte 510, 514, 518, 
 
 528 
 James and Hoe . 255 
 
 James and Plearne . 73 
 
 James v. Morgan . 224 
 
 James and Sir Samuel Romill_y 289 
 James v. Shore . 24^ 
 
 Jansen and Chesterfield 231 
 
 Jaques V. Huntley . 625 
 
 Jason V. Jervis . 557 
 
 Jeanes v. VVilkins . 595 
 
 Jebb T. Abbot . 437 
 
 Jefferies v. Small . 524 
 
 Jeffrey and \awser . 165 
 
 Jeffries and Montague , 167 
 Jellify. Horn . 580 
 
 Jendwine v. Slade . 2C6 
 
 Jenkins v. Hiles 197, 335 
 
 Jenkins v. Keymes 176, 557, 558, 
 
 572 
 Jenkihson and Hall . 200 
 Jenkinscn v. Pepys 26, 119 
 
 JenkinsoH v. Watts 159, 160, n. 
 Jenner V. Tracey , 321 
 
 Jennings v. Hoptoa 
 Jennini!- v. Moore 
 J<'Miiini;s V. Selltck 
 Jer.Ion V. Foster 
 J'-rrii Jtjan and Willis 
 
 199 
 639 
 62^ 
 173 
 228 
 
 Jerningham and Outchlny 200 
 Jerrard v. Saunders 621, 622, 
 
 665, 667 
 Jerries and Peles , 492 
 
 Jerv's and Jason . 557 
 
 J ess on and Doe . 316,317 
 Jfudwino V, Alcock . 197 
 
 Jevon and Noel , 303 
 
 Jewell and Boughfon . 390 
 Jeyes and Gibson . 416 
 
 Johnes and l.loyd . 46 
 
 Johnson and Bonner . 200 
 Johnson and Egan . 218 
 
 Johnson and Hutchinson . 590 
 Johnson v. Johnson 213, 249 
 
 Johnson v Legard 560, 570 
 
 Johnson v. Mason 353, 410 
 
 Johnson v. Nott . 498 
 
 Johnson and Proctor 490, 491 
 Johnson and Seweil . 58 
 
 Johnson and Stausfield 89, 92 
 
 Jolland V. Stainbridge 406, 611, 
 
 637, 659 
 Jolliffe and Mertins 635, 652, 
 
 662 
 Jones V. Barkley . 214 
 
 Jones and Brown 556, 562 
 
 Jones T. Bowden . 270 
 
 Jones and Davis . 181 
 
 Jones iuid Doe . 315 
 
 Jmes V. Dyke 36, 207, 208 
 
 Jones V. Edney 25, 28, 37, 117 
 Jones and Goodright . 322 
 Jones and Goodtitle 320, 371 
 
 Jones
 
 INDEX TO CASES. 
 
 xlv 
 
 
 Pas? 
 
 
 Page 
 
 Jonps V. Groobham 
 
 553 
 
 Kemeys and Denne 
 
 ;■ 366 
 
 JoiH-s and Hifton 
 
 552 
 
 Kemp and Hawkins 
 
 216, 453 
 
 J«nes and Jli)dij;e3 
 
 54 
 
 Kemp and Robson 
 
 656, 657 
 
 Jones anJ King 
 
 478 
 
 Kemys and Proctor 
 
 90 
 
 Jones and Morphett 
 
 99 
 
 Kendar and Milward 
 
 . 544 
 
 Jones V. Marsh 
 
 561 
 
 Kendray v. Hodgson 
 
 42 
 
 Joaes and Matthews 
 
 435, n. 
 
 Kennedy and Burdon 
 
 400, 595 
 
 Jones and Mosgridije 
 
 . 215 
 
 Kennedy v. Daly 46, 377, n. 399, 
 
 Jones V. Newman 
 
 134 
 
 
 633 
 
 Jones V. Price 
 
 331 
 
 Kenny v. Browne 
 
 629, 653 
 
 Jones V, Ryde 
 
 410 
 
 Kent and Bond , 
 
 460 
 
 Jones T. Sherifle 
 
 ; 152 
 
 Kent and Dunch 
 
 436 
 
 Jones V. Stanley 
 
 634 
 
 Kent and Wirdman 
 
 255 
 
 Jones V. Thomas 
 
 665 
 
 Kenyon (Lord) and Middleton 563 
 
 Jordan and Barnfalher . 502 
 
 Ken) on V. Sutton 
 
 161 
 
 Jordan v Savage 
 
 305 
 
 Ker 1). Clobery 
 
 251, 252 
 
 Jordan t. Sawkins 
 
 127 
 
 Ketsey's case 
 
 502 
 
 Jordan and Shenton 
 
 195 
 
 Keymes and Jenkins 
 
 176,557, 
 
 Jordan and Alam 
 
 658 
 
 
 558, 513 
 
 Joynes v. Stathain 
 
 120 
 
 Keys and Vernon 
 
 5 
 
 Jukes and Maidment 
 
 279, n. 
 
 Kidby and Luther 
 
 161 
 
 Julian and Rayner 
 
 202 
 
 Kidd and Roake 287, 338, b. 
 
 
 
 Kidder and Rider 
 
 530, 533 
 
 
 
 Kidwel and Irons 
 
 612 
 
 K. 
 
 
 Kilvington and Barstow 
 
 146 
 
 
 
 Kinaird (Lord) v. Dean 
 
 3, 4, n. 
 
 Kancy and Watts, or 
 
 Mutts 454 
 
 Kine v. Balfe 
 
 99 
 
 Kayc V. Waghorn 
 
 129 
 
 King (The). See Rex. 
 
 
 Kearney and Hughes 
 
 464 
 
 King v. Brewer 
 
 563 
 
 Keeble and Wildegos 
 
 615 
 
 King and Cotton 
 
 556 
 
 Kcech V. Hall 
 
 28], 581 
 
 King V. Dennison 
 
 538 
 
 Keech ?. Sandford 
 
 509 
 
 King and Dawes 
 
 3 
 
 Keen and Awbry 
 
 410 
 
 King V.Jones , 
 
 478 
 
 Keen v. Stukeley 
 
 224 
 
 King T. King 
 
 211 
 
 Keen t. Deardon 
 
 295, 320 
 
 King and Noble 
 
 490 
 
 Kellick T. Flexny 
 
 504 
 
 King and Smith 
 
 320 
 
 Kelly V. Powlet 
 
 136 
 
 King V. Wlghtman , 
 
 246 
 
 Kelsall T. Bennett 
 
 665 
 
 Kingdome y. Boakf 
 
 658 
 
 Kelf^ and Broxsn 
 
 201 
 
 Kingdome ▼. Bridges 
 
 541 
 King-
 
 xlvi 
 
 INDEX TO CASES. 
 
 page 
 Kingdome and Hayes • 524 
 Kiiigdon V. Nottlc . 478 
 
 Kuigslet/ V. Young . 289 
 Kingston (Duchess of) and 
 
 Meadows . 665 
 
 Kirk V. Clark . 565 
 
 Kirk V. Webb . 532, 544 
 
 Kirkham V. Smith . 176 
 
 Kirtland t. Pounsctt 10, 209, 218 
 Kirton and Wren 24, 50, 5 ] 
 
 Kitchen v. Bartsh . 140 
 
 Klinitz V. Surry . 39 
 
 Rnatchbull v. Gruber 249 
 
 Kuight ex parte 175, n. 
 
 Knight V. Crockford 74, 84, 21 7 
 Knight V. Ellis . App. n. 
 
 Knight and Morris , 213, n. 
 Knollys V. Alcock . 166 
 
 Knott ex parte 369, 480, 621 , 
 645, 646, 648 
 Kaowel and Harcourt 622 
 
 Knubley and Wilson 499 
 
 L. 
 
 Laccy ex parte . 504, 517, 518 
 Lacon v. Merlins 98, 99, 105, 
 170, 426, 459 
 Lade v. Holford : 370 
 
 Lade v. Lade . 530 
 
 Laindon (Inhabitants of) and 
 
 Rex . 116 
 
 Laing and Hagedon , 327 
 
 X,a}ce V, Craddock , 524 
 
 Lake v. Gibson . 523, 524 
 Lake and Wood . 68 
 
 Laitias V. Baily • 525, 526 
 Latobe and Williams . 667 
 
 Page 
 Lambers v. Ikiiiton , 508 
 
 Lambert and Greene . 38 1 
 Lamplugh v. Lamplugh 5'i5, 537, 
 
 538 
 Landaffand Ellard 183, 185, 190 
 Lander and Hitchens . 412 
 Lane v. Dighton . 544 
 
 Lane v. Gondge . 141, n. 
 
 Lanii and Lowndes 250, 261 
 Lang V. Gale . 324 
 
 Langfield v. Hodges . 533 
 
 Langford t. Pitt . 162, 335 
 Langford and Presta ge 508,511 
 Langham v. Nenny App. No. 24 
 Langham and Prodgers 564, 565 
 Langlands and Blacket . 662 
 Langley v. Brown , ISl 
 
 hangley v. Lord Oxford 436, n. 
 
 458 
 Langs tafFe and Scott . 191 
 Langton and North . 382 
 
 Langton v. Tracey . 554 
 
 Lansdown v. Elderton . 49 
 
 Lansdown ▼. Lansdown ; 222 
 Latham ex parte . 226 
 
 Latouche v. Lord Dunsany 606, n. 
 
 610 
 Laude and Lawson . 11 
 
 Laughton and Clifford . 275 
 Lavender v. Blackston 562, 574 
 Lawder and Doe . 218 
 
 Lawes V. Bennet . 168 
 
 Lawrence and Whichcote 504 
 188, n. 
 259 
 118 
 165, 166 
 70 
 
 118 
 Lea 
 
 Lawrenson v. Butler 
 
 Lawson v, Laude 
 Layer and Cotter . 
 hta. V. Barber 
 Left and Doe
 
 INDEX TO CASES, 
 
 xlvii 
 
 Page 
 Lpa and Osborn . 625 
 
 Leadbeateraud Dobson , 663 
 Leake V. Morrice . 98,103 
 I^akins v, Clissel 3 
 
 Leatt and Stabback . 301 
 
 Le Bret and Hodgson . 86 
 Le Breton and Hargrave 138 
 
 Lechmere v. Earl of Car. 
 
 lisle 546, 5-17, 548 
 
 Lechmere (Lord) and Lewis 196 
 224,333,346 
 Lechmere and Speldt . 626 
 Lee T.Arnold . 478, n, 
 
 Lee and Cotton . 71 
 
 Lee V. Markham , 656 
 
 Lee and Oxley , 56S 
 
 Lee and Stanley . App. n 
 Lee and Tapp . 5, 625, n. 
 Lee and Walwyn 622, 661, 662 
 Leech T. Dean . 566 
 
 Leech v. Leech . 554 
 
 Lees V. Burrows • 43 
 
 Lefebury and Winged 155, 192, 
 
 630 
 Legal T. Miller , 131, 132 
 
 Legardv. Johnson 561, 570 
 
 Legate v. Sewell , 176 
 
 Legeyt and Church . 205 
 Legge V. Croker . 262 
 
 Leicester (Earl of) case App. 
 No. 24 
 Leigh (Lord) and Forrester 526 
 Leigh and Lutkins . 470 
 
 Leigh and Oswald App, No. 24 
 Leigh T. Winter . 574 
 
 Leman and Dillon . 316 
 
 Leman ex pattc . 621 
 
 Lench v. Lench 530, 532, 533, 
 
 544 
 Le Neve and Norris . 520, 639 
 
 Page 
 
 Le Neve v. Le Neve 611, 612, 
 
 638 
 Lennon v. Napper « 184, 328 
 Leonard v, Leonard • 222 
 Lesley's case . 509 
 
 I^ver (Sir Darry) v. Andrews 530 
 Lever and Jackson 226, 239, 241 
 Lever and Pag« . 663 
 
 Levy V. Haw . 206 
 
 Levy V. Lindo • 346 
 
 Lewes v. Fielding • 666 
 
 Lewes V. Hill . 547 
 
 Lewis and Baxter . 216 
 
 Lewis and Hutton App. No. 12 
 Lewis v.Lord Lechmere 196, 224, 
 333, 346 
 Lewis V. Madocks . 545 
 
 Lichden v. Winsmore . 361 
 Lightburne v. Snift . 46 
 
 Lill and Stadt , 71 
 
 Lilly V. Osborne , S4l 
 
 Linwood ex parte • 
 
 Lindo and Levy . 346 
 
 Lindsay v. Lynch , 76, 101, 109^ 
 Lindsay v. Talbot . 655 
 
 Lingwood and SirJ.Barnadis. 
 
 ton . 230 
 
 LIppingwcll and Inge . 129 
 Lister and Dale . 257 
 
 Lister and Foxcraft . 99 
 
 Lister and Goodwin . 173,175 
 Lister v. Lister . 518 
 
 Lister and Sikes , 155, 173 
 Littler and Clynn . 166 
 
 Liversidge and Bellami/ 308 
 
 Llewellyn v. Mackworth 819, 323 
 Lloyd ex parte . 627 
 
 Lloyd V. Baldwin . 437. 438 
 Lloyd V. Collet 329, 331, 339, n.' 
 345, 429 
 Lloyd
 
 xlviii 
 
 INDEX TO CASKS, 
 
 Pa;c 
 Lloyd V. Crispe , 2S6 
 
 Llojd V. GrillltU . 51,390 
 Llojf] V. Johnes . 46 
 
 Lloyd V. Road, see Loyd. 
 Lloyd and Smith 38, 200, 201 
 Lloyd V. '^piilet 530, 531 
 
 Lloyd V Tomkles 484 
 
 Liuellyn and Evans 
 Loaring ex parte 
 Lock and Burro>fes 
 
 Lockey v. Lockey 
 ockyerand Dickenson 
 odge and Hack 
 
 Loggon and Pickett 
 
 229 
 
 465 
 
 6, 10, 225, 
 
 625 
 
 99 
 
 454 
 
 201 
 
 229 
 
 417 
 
 305 
 
 24 
 
 Lomax and Hay ward 
 
 Londen and Vizod 
 
 London (City of) and Dias 
 
 London (City of) and Rich- 
 mond 
 
 London (City of) v. Smithy 
 Treasurer of the W. I. 
 
 224 
 
 DC. 
 
 529 
 
 London and Tendrins 
 
 188 
 
 Long V. Fletcher . 
 
 245 
 
 Longchamps v. Fawcett 
 
 135 
 
 Longdate and Vizard 
 
 305 
 
 Lopus and Chandelor 
 
 3 
 
 Loved ay and Abd/ • 
 
 623 
 
 Low and Barchard 
 
 228 
 
 Low and Charlton 378, 388, 
 
 621 
 
 Low and Smith . 
 
 649 
 
 Lowe T. Manners . 
 
 199 
 
 Lowe and Koe . 
 
 177 
 
 Lower and Weal « 
 
 176 
 
 Lowes and Greea . 435, n. 
 
 Lowes V. Lush . 155, 
 
 289 
 
 Lowndes v. Bray 217, 
 
 289 
 
 Lowndes r. Lane 250, 
 
 261 
 
 Lowther (Sir James) v. Lady 
 
 Andover , 342,419 
 
 Lowther v. Carrill , 86 
 
 Lowlher v. Carlelon 612, 635, 
 
 610 
 Lowther (Lord) and Gas- 
 
 karth 74, 172, 430 
 
 Lowther v. Lowther 225, 455, 
 
 504 
 Loyd V. Read . 538, 541 
 
 Loyes v. Rutherford 263 
 
 LntTkin and Doe 631, 632, 651 
 Luffkin V. Nunn . 632 
 
 Lukey V. O'Donnel . 226 
 
 Luniley and Balmanno 198 
 
 Lumley v. Reisbeck . 220 
 
 Lush and Lowes 155, 289 
 
 Lush V. Wilkinson , 542 
 
 Luther v. Kidby 161 
 
 Lutkins v. Leigh . 470 
 
 Lutwych V. Winford . 46 
 
 Luxton V. Robinson. . 210 
 
 Lyddall v. Weston . 296, 298 
 Lyfford and Swannock 377, 379 
 Lynch and Lindsay 76, 101, 109 
 Lyon and Eaton . 139 
 
 Lysney V. Selby 5,281,412 
 
 Lyster v. Doliand 400, 524 
 
 Lytton T. Lytton . 322 
 
 M. 
 
 Maberly t. Robins 213, 428 
 
 Macartney t. Blackwood 428 
 
 Macclesfield (Earl of) v. 
 
 Blake . 58 
 
 Macdonald v. Hanson 308 
 
 Macghee ▼. Morgan , 228 
 
 Machia and Hickforfl 404 
 
 Macfarlan
 
 INDEX TO CASES. 
 
 Xli 
 
 IX 
 
 Page 
 M.icfarlan an 1 Moses . 206 
 
 Mackenzie and York Build- 
 ings Company 504, 505, 
 510, 517,520 
 Mackintosh and Bateman 525, n. 
 Mdckrel] T. Hunt . 424 
 Mackreth and Fox 504, 519 
 Mickreth v. Marlar 342 
 Mackreth v. Symmons 459, 461, 
 466, 474 
 Mackreth and Waring 282 
 Mackrill and Cord well 655 
 Mackworth and Llewellyn 319, 
 
 323 
 Maclachland and Tenipler 408 
 M'-Lcay and Edzcards 416 
 
 Macleod and Drummond 456 
 
 Macma/ion and Gciinur 151 
 
 Macknamara v. Arthur 217 
 
 Macnamaraand Rigby (6 Ves. 
 
 Jun. 117) . 57 
 
 Macnamara and Rigby (6 Ves, 
 
 Jun. 468) . 58 
 
 Macnamara and Rigby (6 Ves. 
 
 Jun. 515) . 46 
 
 Macnamara v. Williams 203 
 
 Mac Queen v. Farquhar 249, 250, 
 298, 429, 433, 654 
 Maddin and Pelly . 530 
 
 Maddison v. Andrews 534, App. 
 No. 24 
 Maddox v. Maddox 638, 656 
 
 Maddox and Orrell . 322 
 
 Madocks and Lewis , 545 
 Magdalen College case 553 
 
 Magrave v. Archbold 186, 194 
 Maidment v. Jukes 279, n. 
 
 Main V. Melbourn 39, 106, 333 
 Maitland and Furgason 229 
 
 Maitland v. Wilson . 664 
 
 Maiden v. Mcnell . 624 
 
 Page 
 Mallom V. Bringloe . 503 
 
 Mammom and Coote 639 
 
 Man and Drury . 352 
 
 Manners and Lowe . 199 
 
 Manning ex parte . 420, 424 
 Manning and Baylis 279, n. 
 
 Manning and Doe . 555 
 
 Manselt v. Mansell . 630 
 
 ManseU v, Price • 135 
 
 Mapes and Foster . 484 
 
 Marbury an;l Tarback 573 
 
 Markant and Halcott . 544 
 Markham and Lee . 656 
 
 Marlar and Mackreth 342 
 
 Marlhorongh (Duchess of) and 
 
 Brace . 404, 665 
 
 Marlborough (Duke of) v. 
 
 Lord Godolphin 481 
 
 Marlow T. Smith . 287, 294 
 Marsh ex parte . 506 
 
 Marsh and Brett . 417 
 
 Marsh and Jones . 561 
 
 Marsh and Wade 222, n. 
 
 Marshall v. Frank , 661 
 
 Marsham and Greswold 401, 645 
 Martin and Botting . 66 
 
 Martin and Burrough 9 
 
 Martin and Doe 7, 574 
 
 Martin v. Smith 210, 216 
 
 Martin and Style , 642 
 
 Martin and Watts . 57 
 
 Martyn and Blakeston . 405 
 
 Martyr and Doe 555, 564 
 
 Martyr and Powell 420, 432 
 
 Marwood v. Turner 313 
 
 Marye and Darkin . 50 
 
 Mascall and Norton 193 
 
 Mason V. Corder 254, ^59, 28() 
 Mason V. Armitage 88, 92, 186 
 Muson and Johnson 353 
 
 Massey and DawsoQ 511, 658 
 f Mibsey
 
 IKDCX TO CASES. 
 
 Massey and Roberts 3", \0 420 
 Mathers awl IVmb.T 26,31, 142, 
 152, 219,659 
 Matthews nnrl Ejjerfon 71 
 
 Matthews V. HoIIings 410 
 
 Matthews v. Jones 455, n. C55 
 Matfhews and Moss 32, 40, \'J8 
 Miitlhews V. Siubbs 46 
 
 Matthews V. Wallrtjn 608 
 
 Mattock V. ?!unt . 243 
 
 Maund and Watkins 584- 
 
 Maundrell v. Maundrell 302, 378 
 IVTaunsfield's case . 304 
 
 "May and Iggulden 139, 140 
 
 Jtlayer v. Gowland , l66 
 
 IMayer and Wright 656 
 
 Mayhew and Bennet 543 
 
 Mayhow and More 634, 664 
 
 Maynard's (Serj.) case 409 
 
 Jloyoss and Spurrier 429 
 
 Mead and Oneal . 470 
 
 Mead T. Lord Orrery 45S, 457 
 Meadows v. Duchess of King- 
 
 stoik . 665 
 
 Meale and Seagood 75, 80, 104, 
 
 107 
 Mease v. Mease , 116 
 
 Meder t. Birt . 665 
 
 Medlicott V. O'Donel 231,321, 
 
 520 
 Medlicott and Toole 59 
 
 Meredith and Goudtilte 103 
 
 JVIe<»res and Heme 229 
 
 Meers (Sir Thomas) and 
 
 Lord Stcurton 338 
 
 Meers (Sir Thomas) v. Lord 
 
 Stourton . 338 
 
 Melbourn and Main 39, I06, 333 
 MeUer and Paine 236, 279, 331, 
 
 339 
 .Melli»h T. MelUih 141, n. 
 
 Mellish V. Motteux 2(30 
 
 Melsiiigtoij (Lord) and Rosa. 
 
 mond . 149 
 
 Meiiill and Maiden (jZi 
 
 Merceau atul Preston 117 
 
 Meres v. Ans»-U ► 1 1 6' 
 
 Merry v. Abney . 631) 
 
 Merryman and Clliott 436, 441,. 
 442, 458 
 Mortens V. Adcock . 32 
 
 Mert^-ns v. Joliffe 635, 652, 660 
 Mertins and Lacon 98, 99, 105, 1 70 
 Mesnard v, Aldridge 27 
 
 Metcalfe v. Pulvtrtoft 566, 5/*, 
 
 64S 
 Mefcalf V. Schotey 400 
 
 Meynell t. Garrawajr 634 
 
 Michaux t. Grove . 503 
 
 Micklein and Doe 141, o, 
 
 Middlemore v. Goodale 477 
 
 Middleton and Crosby 151 
 
 Middleton v. Spicer . 155 
 
 Middleton (Lord) v. Wilson 76 
 Middleton (Lord; and Pullen I77 
 Midgeley and Bradihdzo 4?9 
 
 Mighell and Gregory QQ 
 
 Milbanke and George 564, 62'7' 
 Mildmay v. Hungerford 163 
 
 Mildraay v. Mildmay €64 
 
 Miles and Thompson SSS 
 
 Mill and Hiern . 649 
 
 Millard's case . 622, 6G4 
 
 Miller v. Blandist 102, 114 
 
 Miller and Legal 131, 132 
 
 Miller and Rex , 140 
 
 Milligan V.Cooke . 258 
 
 Millington and Williams 37^ 
 
 Mills and Auriol . 499 
 
 Mills and Milner 155. 157, 162 
 Milner and Curwjn , 230 
 Milner
 
 INDEX TO CASES. 
 
 U 
 
 Page 
 
 Milnrr T.Mills loG, i^;, 162 
 Mihifs V. Gery . SS-l 
 
 Milward and Kondar 544 
 
 MilwarJ V. Esrl Tlianet 330,340 
 Minet ex par (e . 71 
 
 Minor cjf /Jarre . 48,237 
 
 Mitrhel! aiul ikickl*- 568,5^9 
 
 Mi(rhH,l V Nf-ale 237,352,353 
 Mitrh'il and Richardson 662 
 
 Mitlonl V Mitford . 653 
 
 Milton and Roe 558, 560, 563 
 Murcatta v. Mirrgatroyd 654 
 
 Motji^rid^f V Jones . 215 
 
 I^lolfsw.nU V. Opie , 57 
 
 Moleyn'h i Sir John De) case 404 
 Mollett V, IJrayiie . 66 
 
 Monck anil Broome 157, 162, 
 170, 172 
 Monnnux and Appowel 478, n. 
 Monta^u<' and Sir Thomas 
 
 riarvpy . 643 
 
 Montt-squieu r. Sandys 516 
 
 Montford (Lord) and Gibson 156 
 TMontague v. Jefferies 167 
 
 Montford (Lord) v. Lord Ca- 
 
 dogan , 628 
 
 Modre V. Bennet . 652 
 
 Moore v. Edwards , 96 
 
 Moore t. Foley . 139 
 
 Moore and Jennings . 639 
 Moore and Pollexfen 154, 429, 
 
 459, 468, 470, 471, 473, 474 
 Moore and Stokes 7S, 84, 86 
 
 Moore and ildgoose 615,616 
 More V. Mayhow 634, 664 
 
 Moorecock v. Dickens , 608 
 Morgan ex parte 505, n. 517 
 
 Morgan and Baker , 46 
 
 organ and BarksdaU 277 
 
 Morgan and CbarUood 279» n. 
 
 Page 
 
 Morgan and Ccr! r . 301 
 
 Morgan and G<'.odtit!e 412 
 
 Morgan and James . 22-1 
 
 Morgan and M'Ghee 228 
 
 Morgan and Pearson . d^'lo 
 Morgan and Uandall 527, 561 
 Mor-an v, Shaw 199, 200 
 
 Morgan v. Ttdcastle . 277 
 Morgan and Walters . 9S 
 
 Morgan and Wynn 335, 433 
 
 Morison v. Turnour 84, 86 
 
 Morony v. O'Dea . 232 
 
 Morphea v. Jo7ies , 99 
 
 Morrel and Woodman 537,539 
 Morrice v. Bishop of Durham 56 
 Morrice and Iseham • 355 
 Morrice and Leake 98, 103 
 
 Morris and Bowen 42, 72 
 
 Morris and Doe . 551 
 
 Morris (see Norris) v. How- 
 land. 
 Morris v. Knight . 213, n. 
 Morris and Lord Portmore 149 
 Morris v. Preston . 261 
 
 Morris v Stephenson . 179 
 Morris and Staines 31, 352, 432 
 Morris and Twining 19,24,186, 
 227, 253 
 Morse v. Falkener 625, 626 
 
 Morse v. Royal 23 1 , 520, 521 
 Morshead v. Frederick . 59 
 Mortimer v. Capper 226, 239 
 Mortimer V. Orchard 99, 109, 
 
 658 
 Mortley and Ransbottom 79 
 
 Mortlock V. Buller 52, 88, 182, 
 187, 225, 227, 259 
 Moses and Goodright . 556 
 Moses V. Macfarlan , 206 
 
 Moss T. GalUmore • 221 
 
 f 2 MoH
 
 lii 
 
 INDKX TO CASES. 
 
 Moss V. Mattl'.ews 
 
 Pa;;o 
 
 32,40, 198 
 
 663 
 111 
 231 
 38,89,91 
 266 
 167 
 
 483 
 
 56 
 
 102 
 
 522 
 
 38 
 
 Mosse and Trevannian 
 Mostyn and Boardnian 
 IVloth V. x\Uwood 
 Motivos and Simon 
 ^lottt'ux and Mtllish 
 Montague v. Jeffries 
 Moulton V. Hutchinson App. No. 
 
 21 
 Mountfordv. Catesby 
 Moxon and Price 
 Moyl V. Home . 
 
 JNloyse V. Gyles 
 Muggridge and Annesley 
 Mulgrave (Lord) and Sheffield 
 
 287, 338 
 Mulgrave (Lord) and Phipps 
 
 App. n. 
 Mumroa v. Mumma 535, 538, 539 
 Munns and Nerwin 482, 491 
 
 Munt and Grant . 263 
 
 Murgatroyd and Mocatta 654 
 Murray and Ay lifFe . 515 
 
 Murray v. Palmer 229, 232, 521 
 Muschamp and Earl of Ardglasse 
 
 230 
 Musgrave v. Dash wood 
 Musgrove and Bennet 
 Mussell V. Cooke 
 Mutts V. Kancle 
 Myddleton v. Lord Kenyon 
 
 178 
 567 
 79 
 454 
 563 
 
 M>nd and Hardwicke 437, 453 
 
 N. 
 
 Nairne t. Prowse 460, 463, 475, 
 
 557 
 Nannock v. Horton App. n. 
 
 Napper v. Lord AUingtou 498 
 
 Na{)per and Lennon 1 81, 3i^8 
 
 Nasi) V. Ashton . 48 1 
 
 Nash and Coring 559, App. No. 
 
 24 
 Nash V. Turner ". 211, n. 
 
 Naish and 'lourville 627, 634 
 
 Neal V. V'iney . 70 
 
 Neale and Mitchel 287, 352, 353 
 Neale v. Parkin . 273 
 
 Nedham v. Beaumont 552 
 
 Needham and Nordea 590, n. 
 Needier v. Wright . 629 
 
 Nelson and Lord Forbes 611 
 
 Nelson V. Nelson 146, 275 
 
 Nelthorpe and Harding 415, 416 
 Nelthrope v- Pennyman 60 
 
 Nenny and Langham App. No. 
 
 •24 
 Nervin v. Munns 482, 491 
 
 Nettleship and Clerk . 562 
 Neve and Norris 520, 639 
 
 NeviU and William 101,114 
 
 Newell V. Ward . 441 
 
 Newland v. . 588 
 
 Newland and Fairchlld 615 
 
 Newland and Fairclaim 614 
 
 Newman and Farr , 455 
 
 Newman and Day . .225 
 
 Newman and Jones . 135 
 Newman v. Rogers , 333 
 
 Newnham and Finch . 443 
 Newport's (Andrew) case 564 
 Newstead v. Searles 556, 638 
 
 Newton and Baylis . 539 
 
 Newton v. Preston 530, 531, 532 
 Newton and Waddy 277 
 
 Newton and Wheeler 83, 179 
 NichoUs and Chivall . '611 
 NichoUs and Hardingham 664 
 NichoUs
 
 INDKX TO CASES. 
 
 liii 
 
 P.ge 
 Nicholls V. How . 375 
 
 Nicols V.Gould 231,232 
 
 Niijtifingal and Farrer 206^ 213 
 Nisbit and Scott , 54 
 
 Nixon ex parte . 41 
 
 Noble v.Durell . '2.77 
 
 Nobler. King . 490 
 
 Noel V. Weston . 294 
 
 Noel V. Je?on . 303 
 
 Norcliff ?. Worsley . 176 
 
 Norden v, Needhain 590, n. 
 
 Norfolk (Duke of) v. Wort. 
 
 ley 28, 34, 39, 42, 207, 
 
 . 263, 274 
 
 Norman v. Foster . 495 
 
 Norman and Wood . 526 
 
 i^annanby (Marquis of) v, 
 
 Duke of Devonshire 83, 
 
 114,192, 194 
 
 Norris and Rowland 244, 251, n. 
 
 420 
 Norris v. Le Neve 520, 639 
 
 Norris and Schneider . 84 
 North V. Langton . 382 
 
 Northwick (Lord) and Tait 57 
 Norton and Crop 189, 190, 528, 
 532, 534 
 Norton and Hobbs . 624 
 
 Norton V, Mascall , 193 
 
 Nosworth and Seymour 663 
 
 Nosvrorthy and Bassets 621, 664 
 Nott V. Hill . 230, 233 
 
 Nott and Johnson , 498 
 
 Nottle and Kingdon . 478 
 Notts V. Shirley . 161 
 
 Nourse t. Yarworth • 386 
 Noyes and Hall 504, 520 
 
 Nugent V. Gifford 455, 456 
 
 NuDD and Coodiaon 214 
 
 Nuiin and Luff kin 
 Nurton v. Nurton 
 Nutt and White 
 
 O. 
 
 Pajre 
 632 
 454 
 235 
 
 Oakley and Burroughs . 200 
 Obeen and Hawkins 173, 175 
 
 O'Brien and Roche . 231 
 
 O'Connor v. Spaight 127 
 
 Odea and Browne . 628 
 
 O'Dea and Morony . 232 
 
 O'Dell V. Wake . 589 
 
 Odingsale and Coward 333 
 
 O'Donel and Medlecott 231, 321, 
 
 520 
 O'Donnell and Lukey 226 
 
 O'Fallon V. Dillon . 616 
 
 Ogbourne and Pitcairne 132, 151 
 Oglander and Harmood 320 
 
 O'Gorman v. Comyn . 565 
 O'Hara v. O'Neil . 530 
 
 O'Herlihy v. Hedges 76, 108, 
 
 191 
 O'Kenden and Gould . 229 
 Oldfield V. Round 22, 262, 266 
 Oldin y. Samborne « 511 
 
 Olive and itephens . 563 
 
 Omerod v, Haidman 124, 338, 
 437, 443 
 Oneal v. Mead , 470 
 
 Oneby V.Price . 175 
 
 O'Neil and O'Hara . 530 
 
 Onions V. Tyrer • 165 
 
 Only V. Walker . 659 
 
 Opie and Molesworth . 57 
 Orchard and Mortimer 99, 109, 
 
 658 
 O'Reilly
 
 \ir 
 
 INDEX TO CASES. 
 
 O'Reilly V. Thompson . 101 
 Ord and Rratidlyng . 635 
 
 Orford and Cholmondley 627 
 
 Orlebar v. Fletcher 154, 308, 589 
 Ormsby and Crofton 565, 630, 
 
 650 
 Ormonfl (fjOrd) v. Anderson 75 
 O'RoiirlcH V. Percival 72, 190 
 Orrell v. MadfJox . 322 
 
 Orrtry (Lord) and Mead 455, 
 
 457 
 Ortread v. Round . 180 
 
 Osboin and Daly . 199 
 
 Osborn V. Lea , 625 
 
 Osborn and Lilly • 641 
 
 Osborne and Roll . 478, n. 
 Osbourne and Rex . 140 
 
 Osgood V. Strode 558, App. Nu.24 
 Ossoulston {Lord) v, Deverell 
 
 283 
 Oswald V. Leigh App. No. 24 
 Owen V. Davies 73, 182, 419, 
 
 425 
 Owen T. Foulks (6 Ves. Jun, 
 
 630, n, 6) . 505 
 
 Owen V. Foulkcs (9 Ves. Jun.) 58 
 Owen V. Gooch . 38 
 
 Owen V. Parry .' 18 
 
 Oxford (Lord) and La' ?htf 436, 
 n. 458 
 Oxenden and Doe . 135 
 
 Oxford (Lord) t. Lady Rodney 
 
 170 
 Oxley T. Lee , 568 
 
 Oiwick V. Brockets , 275 
 Oiwick V. Plummer , 651 
 
 P*g« 
 
 P. 
 
 Page V. Lever . 663 
 
 Page and Sharp , 351 
 
 Paignoii and Ileathcote 228 
 
 Paine and Baker . 151 
 
 Paine v. Meller 236, 279, 33 1 , 
 
 339 
 Paine and Bishop of Winches- 
 ter . 432, 641 
 Palmer and Murray 229, 232, 521 
 Palsey v. Freeman . 5 
 Parker and Attorney. General 140 
 Parker v. Blythn)ore » 667 
 Parker v. Brooke . 655 
 Parker and Colvile . 556 
 Parker and Harvey * 176 
 Parker and Hoare . 662 
 Parker and Preston . 54 
 Parker v. Stainland , 69 
 Parker v. Serjeant . 556 
 Parker and Bishop of Worces- 
 ter . 622 
 Parkes ▼. White . 504 
 Parkhurst and Dormer 323 
 Parkin and Neale . 273 
 Parkins v. Titut . 352 
 Parks V. Wilson . 195 
 Parnther v. Gaitskill , 37 
 Parr v. Eliason , 564 
 Parry v. Carwarden , 567 
 Parry and Owen , 18 
 Parsons t. Freeman (Revoca- 
 tion) . 159 
 Pai-sons V. Conolly 19, 20, 21 
 Parteriche and Powlet . 116 
 Partington « ;)ar/tf 53, 55, n. 
 Pasle/
 
 INDEX TO CASES, 
 
 Iv 
 
 Paslpy V, Freeman . 5 
 
 Pate and Urmston . 412 
 
 Paternoster and Web . 67 
 Paterson and Gibsoa 328 , 329 
 Paton V. Rogers . 199 
 
 Patten and Alsop . 104 
 
 Patterson v. Slaughter 667 
 
 Paul v.Wilkins . 155 
 
 Paxton and Cox . 541 
 
 Payne v. Cave . 34 
 
 Payne v.Drewe . 591 
 
 Peachefs (Sir John) Case 532 
 Peacock V. E?ans . 231, 232 
 Peacock T. Thewer . 577 
 
 Peake ex parte . 462 
 
 Pearson t. Morgan , 625 
 
 Pearson v. Pulley , 321 
 
 Pechell V. Fowler . 219 
 
 Pegge and Doe • 370 
 
 Pehall and Hartley . 288 
 
 Peirce and Acton . 193 
 
 Peles V. Jervies . 492 
 
 Pelly V. Maddin . 530 
 
 Pember t. Mathers 26, 31, 142, 
 152,219,659 
 Pembroke (Earl oQ and Baden 
 
 155,387 
 
 Pembroke (Earl oQ and Cator 
 
 416 
 
 Pembroke's (Earl oO case 388 
 Pendleton T. Grant . 136 
 
 Pen gall {Lord) v. Ross 104 
 
 Penhallow and Smartle 536 
 
 Penhules and Treswallen 277 
 
 Penn and Cuff . 116 
 
 Pennill v. Hallett . 547, 548 
 Penny man and Nelthorpe 60 
 
 Pentland r. Stokes . 610 
 
 Pepys and Jenktnson 26, 119 
 Perciral and Foley 155, 168, n. 
 
 Page 
 Percival and O'Rourke 72, 190 
 Percy and Crosby , 211 
 
 Perkins and Biscoe ; 630 
 
 Perkins and Doe . 9 
 
 Ferry v. K J wards . 484 
 
 Perry and Freebody . 201 
 Perry v. Phelips 484, 544 
 
 Pefers r". Anderson . 417 
 
 Peterson v. Hickman . 628 
 Pctrie and Jackson , 219 
 
 Pljelips and Perry , 544 
 
 Philips and Bateman . 71 
 
 Philips T. Brydges . 313 
 
 Philips V. Duke of Bucking- 
 ham . 191 
 Philips and Doe App. No. 12 
 Philips V. Fielding 210, 214 
 Philips and Haryey . 391 
 Philips and Sir Harry Hick 253 
 Philips V. Redhel . 652 
 Philips V. Chamberlaine 141^ n. 
 Philips and Lady Saltown 285 
 Phillimore v. Barry 85, 86, 89 
 Phipps V. Lord Mulgra?e App. n. 
 Pbyn and Bell . 525, n. 
 Pickering v. Dowson 270 
 Pickersgill and Bartlet 97, 531, 
 
 534 
 Pickering v. Lord Stamford 306 
 Pickett V, Loggon . 229 
 
 Pierce and Basket . 355 
 
 Pierce and Smith . 355 
 
 Pierson and Blemerhasset 123 
 Pigott V. Waller 161, 163, App- 
 No. 23 
 Pilling V. Annitage . 658 
 Pimm T, Goodwin . 322 
 
 Pinchard and Withers l79 
 
 Plncke T. Curleis 215, 250, 331, 
 
 339 
 Pindar
 
 Ivi 
 
 INDKX TO CASES. 
 
 Page 
 
 297 
 132, 150 
 
 230 
 . 382 
 
 638 
 162.335 
 
 635 
 
 Pindar v. Wuiidsworth 
 Pitcairne v. Ogbounie 
 Pitt and Berney 
 I'iit V. Cholmondley 
 Pitt V. Donovan 
 Pitt and I.angfordI 
 Pitts V. Edelph 
 Piatt (Lady) v. Sleap 
 Pledwell and Thomas . 
 
 PluniMor and Oxwith 
 Plummer and Champion 
 Plymouth (Earl of) v. Hick 
 
 man • 
 
 Pole V. Pole 
 PoUexfen v. Moore 154, 429, 
 
 459,468,470,471,473,474 
 Poly blank v. Hawkins 362 
 
 Poraeroy ex parte , 41 
 
 Pomfret (Earl of ) v. Lord 
 
 Windsor . 320 
 
 Poole V. Rudd . 39 
 
 Poole V. Shergold 236, 247, 248 
 
 362 
 587 
 651 
 
 75 
 
 544 
 540 
 
 Pope and Bevant 
 Pope and Goodtitle 
 Pope T. Harris 
 Pope T. Root . 
 
 Pope V. Simpson 
 Popham V. Eyre 
 
 303 
 
 220 
 
 184 
 
 226, 240 
 
 308, 333 
 
 76, 108. 191, 
 
 334 
 
 533 
 
 39, 108 
 
 211 
 
 Popham and Roe 
 Pordage v. Cole 
 Porter and Blakey 
 Porter and Fry . 
 
 Porter and Eldridge « 
 Portman v. Willis 
 Portmore (Lord) t. Morris 
 Portsmouth (Lord) v. Lord 
 Effingham 
 
 637 
 199 
 593 
 149 
 
 320 
 
 Pott and Doe 
 
 160, n. 
 
 Potter aad Itltel . 86 
 
 Potter V. Potter 108, 162, 171, n' 
 Potts V. Webb . 331,315 
 
 Poultney v. Holmes . 68 
 
 Pounsett and Kirtland 10, 209, 
 
 218 
 Powell v.Dwett . 120 
 
 Powell V, Edmunds 25, 26, 1 17 
 Powell and llozcorth 457, 652 
 Powell V. Martyr 420, 432 
 
 Powell V. Powell . 176 
 
 Powell V. Seabourne . 498 
 Powell and Stratford . 149 
 Powell and Thomas . 415 
 
 Powis (Countess of) and Doy- 
 
 ley . 39 
 
 Powlet and Kelly , 136 
 
 Powlett and Parteriche 116 
 
 Pratt and Crisp . 541 
 
 Prestage v. Langford 508, 511 
 Preston and Merceau . 117 
 Preston and Morris . 261 
 Preston v. Parker . 54 
 
 Preston and Newton 530, 53 1, 532 
 Preston v. Tubbin , 640, 641 
 Preswick and Walker 473, 474 
 Price and Baugh213,214,215,601 
 Price V. Byrn . 510, 520 
 
 Price and Curtis . 46 
 
 Price V.Dyer 122, 129, 132, 
 
 263 
 Price and Jones . 331 
 
 Price and Oneby . 175 
 
 Price and Mansell , 135 
 
 Price V. Moxon . 56 
 
 Price y. Price . 665 
 
 Priddy v. Rose . 627 
 
 Prideaux t. Prideaux 54, 55 
 
 Prideux ?. Gibbin . 159 
 
 Pritchard
 
 INDEX TO CASES. 
 
 Ivi 
 
 11 
 
 Page 
 662 
 146 
 
 490, '19 1 
 
 90 
 
 90 
 
 542 
 
 5G4, 565 
 
 PfitcharJ and Carter 
 
 i'ritcliard v. Quinchant 
 
 i'ructor v, Juhnson 
 
 Proctor and Kemys 
 
 Proctor and White 
 
 Procter V. Warren 
 
 Prod^ers r. Langliam 
 
 Prowse and Nairn 460, 463, 475 
 
 557 
 Priijean and Smart - 164 
 
 PulUn V. Lord Middleton 177 
 
 PiilUy and Pearson . 321 
 
 Pulteney and Lady Cavan 488 
 
 Tulvertoft and Metcalfe 566, 573, 
 
 643 
 Pulvertoft T. PuWerloft 562, 573 
 
 Pulteney and Dyi r 
 Purrierand Harford 
 Putbury v. Trevalian 
 Vye f. Da u buz 
 P^ke V. Williams 
 
 Q. 
 
 Quaintreli v. Wright 
 Quincey and Scrafton 
 (Quinchant and Pritchard 
 Quincy cjc jturfe 
 
 136 
 
 236 
 
 160, n. 
 
 493 
 99 
 
 135 
 
 603 
 
 146 
 
 30 
 
 n. 
 
 Riulcline V, Fur<!man 657, n. 
 
 Uadclitre v. Warrington 284, 329, 
 332, 337 
 Radd and Taylor 141, 150 
 
 Radford v. Bloodworth 580 
 
 iUdford T. Wilson 176, 177, 665 
 Radford and Young . 361 
 
 Pa5e 
 
 Radnor (Earl of; v. Shafto 
 
 168, n. 171 
 
 Radnor v.V^endebendy,or Ro- 
 
 theram 377,378,379 
 
 Raindle and Brown . 173 
 
 Raleigh's (Sir Walttr) case 539 
 
 Ivamsbottom v. Golden . 121 
 
 RamsboUom t. Mortley 79 
 
 Ramsbottom v. Tunbridge , 82 
 
 Itamsdon v. Uylton , 561 
 
 Randall v. Errington 517, 519 
 
 Randall v. Morgan 527,561 
 
 Randall and Tajjpenden 208 
 
 Rann v. Iluglu'S . 83, 124 
 
 Rapier and Spy mour , 136 
 
 Raslall and Wilson . Cob 
 
 Rastfcl V. Hutchinson 97,531 
 
 Rastron and Dean . 226 
 
 Rawlins v. Burgis . 161 
 
 R3^^KSOl^ ex parte . 621 
 
 Raymond v. Webb . 52 
 
 Rayner v. Julian . S03 
 
 Rea V. Wiliiams . 522, 523 
 
 Read and Edden . £07 
 
 Read and Hosier . 123 
 
 Read and Loyd . 538,541 
 
 Read and Smith . 616 
 
 Read and Wagstaff . 6b4 
 
 Read ?. Ward . 579, 580 
 
 Reade and Cripps . 410 
 
 Reade and Roe , 370 
 
 Redding v. Wilkes . S9 
 
 Redhel and Philips . 652 
 
 Redington v. Redington 530, 53^^ 
 
 537, 538, 539 
 
 Reed ?. Williams . 654 
 
 Ueeves and Hardy . 655,656 
 
 Reid V, Shergold . 622 
 
 Reisbetk and Lumle/ . 220 
 
 RelfeandFrewen . 178 
 
 g Reining.
 
 Iviii 
 
 SSDZa I'O CAoES. 
 
 Remington v. Devcrall 
 Revel V- Hussey 
 Rex V. Abbot 
 Rex V. Bellringer 
 Rex V. Boston 
 Rex ▼. Bullock 
 Rex V. Dal by 
 Rex V. Everard 
 
 rage 
 
 . 219 
 
 236 
 
 14 
 
 110 
 
 97,534 
 
 583 
 
 534 
 
 276, 11. 
 
 Rex V. Lord of the Manor of 
 
 Hendon . 352 
 
 Rex T. Holland : 501 
 
 Rex T. Hollier . 376 
 
 Rex T. Inhabitants of Horn- 
 don . 66 
 Rex V. Inhabitants of Iladden- 
 
 hara . 502 
 
 Rex T. Inhabitants of Lain- 
 
 don . 116 
 
 Rex V. Miller . 140 
 
 Rex T. Osbourne . 140 
 
 Rex V. Inhabitants of Scam- 
 
 nonden . 1 1 "i 
 
 Rex V. Smith 372, 374, 376 
 
 Rex T. Inhabitants of Standon 66 
 Rex V. Sciow . 154, n. 
 
 Rex. V. St. John . 376 
 
 RexT. Varlo . 140 
 
 Rex V. Withers . 656 
 
 Reynolds ex parte 50 i, 505, n. 
 518,519 
 Rhodes and Ibbotson . 9, 659 
 Rich V. Jackson . 126, 127, 150 
 Rich T. Rich (2 Ch. Ca.) 281 
 
 Rich V Rich (Cro. Eliz.) . 497 
 Richards v. Barton 208, 349, 352, 
 
 400 
 Richards and Cock • 141 
 
 Richards and Compton . 29 
 Richards and Howell , 493 
 
 Richardson V. Mitchd] . 662 
 Richardson and Turnor . 41 
 Richmond and City of Lou. 
 
 don . 22-i 
 
 Ricks and Dike . 450 
 
 Riddle v. Emerson . 527 
 
 Riddle and Grcgson 341, 34:* 
 
 lUdor V. Kidder . 5'iO, 533 
 Ridgard and Bonncy . 453 
 456, 4-57 
 Ridler V. Ridlcr . 503 
 
 Rigby V. Macnamara (6 Vcs. 
 
 Jun. 117) . 5?" 
 
 Rigby v. Macnamar;i (6 Yc?. 
 
 Jun. 466) . 38 
 
 Rigby T. Macnamara (6 Vcs. 
 
 Jun. 5l5) . 46 
 
 Right V. Bawden . 536 
 
 Right T. Beard . 218 
 
 Ripley V. Waterworth . IbS 
 Risney V. Selby . 281,412 
 Rivers V. Steele . 644 
 
 Roach and Rowe , 638 
 
 Uoach V. AVadham 479, 480 
 
 Roadliead and Headley 4?1 
 
 Roahde and Sharpe 432, 589 
 
 Roake v. Kidd . 287, 338, n. 
 Rob V. Butterwick . 148 
 
 Roberdeau and Hanson . 38. 40 
 Roberts v. Massey 39, 40, 420 
 Roberts v. AVyatt . 32, 350 
 Robinson v, Anderton . 410 
 Robinson and Farmer . 88 
 Robinson t. Harrington 585 
 
 Robinson and Luxton 210 
 
 Robotham and Hughes 364 
 
 Robson V. BroKit . 156 
 
 Robson V. Collins . 128 
 
 Robson V, Kemp ; 656, 657 
 
 Roche
 
 •INDEX TO CASES, 
 
 lix 
 
 PaRC 
 Hochev. O'Brien . 2SI, 521 
 Siochford and Baldwin 233 
 
 Rodney (Lady) and Lord 
 
 Oxford . 170 
 
 Roe V. Lowe . 177 
 
 .Roe V. Mition . 558, 560, 563 
 iloe V. Fopham . 533 
 
 Roe V. Reade . 370 
 
 Koo V. Rowleston • 3l8 
 
 Iloebuck and Calcraft 9, 252, 255, 
 420, 429, 433 
 Roebuck and Hoby - 68 
 
 Rogers and Bowles 33, 154, 342, 
 
 474 
 Rogers and Rruce . 228 
 
 Rogers and Earl 146, 148, n, 
 Ivogers and Farmer 148, n. 
 
 Rogers and Fishe . 352 
 
 RogtTS and Newman . 333 
 Rogers and Pdton . 199 
 
 ;ftogers V. Seale . 667 
 
 Rogers V. Skillicorne ." 437 
 Rokebi/ ( Loyd) and BU ks 231, 
 
 437 
 Roll V.Osborne . 478, n. 
 
 Romilly (Sir Sarnuel) v. Jaaies 
 
 289 
 Rondeau v. Wyatt . 89, 96 
 Root and Pope . 226, 240 
 Rorke v. Webb . 506 
 
 Rosamond v. Lord Melsington 1 49 
 Rose V. Calland . 250, 287 
 Rose V. Cuuynghame 75, 80, 159, 
 162, 170 
 Jlosc and Priddy . 627 
 
 Rosewell and Smith . 623 
 
 Jioss and Lord Pcni^uil, or 
 
 F'mzal , 10 i 
 
 Page 
 Ross V. Ross '. 170 
 
 Roswell V. Vaughan 281, 412 
 
 Uotheram and Radnor, or 
 
 Bodman . 377, 378 
 
 Round and Cason . 665 
 
 Round and Oldfield 22, 262, 266 
 Round and Ortread . 180 
 
 Routledge and Doe 552, 565 
 
 Rowe and Atkins ^ 528 
 
 ■Rowe V. Roach . 638 
 
 Rowe V. 'IVed . 96 
 
 Rowlston and Roe • 316 
 
 Rowley and Cornish . 827 
 Rowntree v. Jacob 462, n. 
 
 Royal E. A. Office and Henkle 
 
 141, 150 
 Royal and Morse 231, 520^521 
 Royse and Hamilton 640, 652^ 
 
 653 
 Uucker v. Cammeyer 88, 89 
 
 Rudda.nd.Poolfi . 39 
 
 Rudele and Cass , 236 
 
 Rushley and Ilougbtyq 590 
 
 Russel and Bellew . 507 
 
 Rushworth's case . 273 
 
 Russell and Stokes . 479 
 
 Russell and Western 71,78,86, 
 170, n. 225,256 
 Russell and Webb . 479 
 
 Rutherford and Loyfs 263 
 
 Rutland's (Countess of) case 128 
 Rutland (Duchess of) and 
 
 Wakrman 51,308,396, 
 397 
 Ryallv. Ryall , 532,544 
 
 Ryde and JoMfs , 410 
 
 Ryder t. Gowor , 56 
 
 Ryder T. Wai;tr J65, 166 
 
 Sabcrton
 
 Lv 
 
 hNDEX 10 CASKS 
 
 Paic 
 
 s. 
 
 Sabrr/nn v. Salerlon App. r. 
 
 Saclieverell aiij Davie . 481 
 Ridlcr an;: B nuu'tt . 191 
 
 .Sadlier and Bullock 552, 664 
 
 Saint Aiban's (Duke oO v. 
 
 S.iore 195,210,214,217 
 ?aiiit Cross (Master of) v. 
 Lord Howard de AVal- 
 den . 277 
 
 Saint Juhaand Biddulph 611, 654> 
 
 659 
 Saint John (Lord) v. Lady 
 
 Saint John « 563 
 
 Paint Juhn and Rex . 376 
 
 Saint John t. Bishop of Win- 
 ton . 1S8 
 5aint Paul and Brodie . 76 
 Saint Paul's (Dean and Chap, 
 ter of) V. Dr. Betesworlh 
 
 192 
 {Sale V. Crompton . 586 
 
 Sales and Goodright . 381 
 Salisbury and Goman . 129 
 Salisbury (Lord) v. Wilkin- 
 son . 427 
 Saltown (Lady) v. Philips 285 
 Sahvay and Foot 118 
 Samborne and Oidin 511 
 Sanders v. Deligne 622 
 Sauderson v. Walker 540 
 p and ford and Keech 509 
 Sandford and Willet l6l, n. 
 Sands and Attorney. Gen«/ral 
 
 364,374,375,382, 385,388 
 Sandys atid Montesquieu 5l6 
 
 ^angon v. Williams l76 
 
 Sarrell and Colman 
 
 App. N.,», 
 2i 
 Savag.- V.Carroll iCO, 113, 163, 
 170, 541 
 Savage v. Foster . 624 
 
 Savage v. Humble . A'->\ 
 
 Savage and Jordan . 305 
 
 Savage V. Taylor 166,628 
 
 Savage v, WhitbreaJ 393 
 
 Savile V, Sivile 58, 224 
 
 Saville and Go odtitlc 168, n. 
 
 Saunders v. Lord Annesley 
 
 222, 253. n. 322 
 SaundersY. Eurrougfis 509 
 
 Saunders v, Dchew . 621 
 
 Saundtrs aad Jerrard 621, 622 
 665, 667 
 SauMderson V. Jackson 78,84 
 Sawbridge and Br el 386 
 
 Saw bridge and Wanby 93 
 
 Sawkins and Jordan 127 
 
 Say v, liarwick , l8i 
 
 Say and Seal's (Lord) case 656, 
 
 657 
 Sayer and Doe . 218 
 
 Sayle v. Freeland . 176 
 
 Scammonden (lahabitants of ) 
 
 and Rex , 115 
 
 Scarborough (Earl of) and 
 
 Worsley 640,641,644 
 
 Schneider V. Heath 27,268 
 
 Schneider v. Norris . 84 
 
 Schofield and Bayly 584 
 
 Scholes and Blackburn 37 
 
 Scholey and Metcalf 400 
 
 Scholey and Scott . 400 
 
 Schulenburgh and Spenceley p57 
 Scorbrough v. Burton 43 1 
 
 Scoit
 
 IX43EX TO CASES. 
 
 XI 
 
 Page 
 '^Vo// and Attorney General 
 
 377, n. 
 562 
 371 
 383 
 191 
 54 
 400 
 197, 250 
 288 
 455 
 . 603 
 539 
 
 ScoU V. Dfll 
 Scott and Doe 
 Scoft V. Fenhoullett 
 Scott V LatigstafTe 
 Scott V. Niibitt 
 Scott \, Scholey 
 Scott and Stapyltoa 
 
 Scott V. Tyler 
 
 Scrafton v, Quincey 
 
 Soroopp V. Scroope 
 
 Scrughan and Tardiffe 461, 463, 
 
 466 
 Pcabourne v. Powell 498 
 
 Seafortli (Lord) ex parte 33 
 
 Seagoadv. Meale 75, 80, 104, 
 
 107 
 Scale and Rogers , 6(j7 
 
 Seam:inv. Vawdrey 271,296,298 
 Searles ami Xewstead 556,638 
 SedJon v. Senate 
 Sedgwiok v. Hargrav^ 
 Sedgwick and ilithcox 
 
 184, 490 
 180 
 
 J72, 62j, 
 
 645, 648 
 Selby V. Chute . 484 
 
 Selby and Lysney, or llisney 5, 
 
 281, 412 
 Silby V. Selby . 85 
 
 Selkrig v. Davies . 525, n. 
 
 Sell^rk and Jennings 622 
 
 Senate and Seddon 484, 490 
 
 Senliouse v. Earle 566, 655 
 
 S'TJoantand Parker . 556 
 
 Serra and Bascoi , 653 
 
 Seton V. Slade 71, 156, 215, 331* 
 
 335, 346 
 Sezcard, or Slczczrt andDtn- 
 
 Seward t. Willock 216, 337 
 
 Setvellund Coussmaher 29 
 
 S' w< 11 V, Johnson • S3. 
 
 Sf^well and Legate . 176 
 
 Snymonr v. Nusworth 663 
 
 Seymour V. Rapier , 13d 
 
 Sliufto and Earl of Radnor 
 
 168, n. 171 
 Shales V. Shales 535, 537, 539 
 Shalmon and Spalding 436^ 437 
 Shannon v. Bradstreet 113, 182 
 Shapliind v. Smith 
 Sliuip V. Page 
 Sharp e and Clay 
 •iiarpe v. Roahde 
 Shaw and Dickenson 
 Shaw V. Jakeman 
 Shaw and Morgan 
 Shaw V. Wright 
 Shearwood and Hare 
 Shee and Uibbert 
 Sheffield V. Lord Mulgrave 287, 
 
 338 
 Shelbnrne (Conntess) and 
 
 Earl of inchiquin 139, 141, 
 150 
 Sheldon V. Cor 6 11, 639 
 
 Shc41ey's case . 309 
 
 Shelling Y. Farmer . 138 
 
 Shenton V. Jord:in . 195 
 
 Sheppard v. GosnoKl 143 
 
 Shcriard and Flower 228 
 
 SheritFe and Jones . 152 
 
 287, 
 
 311 
 
 
 351 
 
 
 301 
 
 432 
 
 589 
 
 
 535 
 
 146, 
 
 212 
 
 199, 
 
 200 
 
 
 294 
 
 142 
 
 ,149 
 
 . 
 
 243 
 
 ton 
 
 Shergold and P.;ol.' 236, 247, 248 
 Shergold and Rt id , 62'i 
 
 Sherly v. Fagg , 622 
 
 Sherman and Cockes 63i 
 
 Slierwin and E.irl of Bath 193 
 
 Shills and Grant . 46 1 
 
 Shine V. Gough 
 
 99, 2041 Shipraan v. Thompson 
 
 621, 628 
 
 351 
 
 Shipp( y
 
 IXll 
 
 IxNDEK TO CASES. 
 
 Pa-c 
 bhippey v. Derrisoh 86 
 
 Shirley v. Davics . 262 
 
 Shirley and Tlorniblow 244, 292 
 Shirley and Notts . l6l 
 
 Shirley and Skipwitlj 391 
 
 Shirley v. Stratton 185, 224, 270 
 Shirley T. Watts ^ 591 
 
 Shore and Duke of St. Al- 
 
 ban's 195,210,214.217 
 
 Shore and Bateman 525, n. 
 
 Shore T.Collett . 392 
 
 Shore and James . 2 19 
 
 Shovel (Sir C.) v. Bogari 272 
 
 Shrimpton and Conway 224 
 
 Slmm and Taylor . 31 
 
 Sibson V. Fletcher 623 
 
 Siddon v. Charnells . 622 
 
 Sidley and Fletcher . 542 
 
 Sikes V. Lister . 155, 173 
 
 Silcock and Sntll . 323 
 
 Silk and Hunt . 206 
 
 Silvester and Dyke 2^6 
 
 SIme and Graham . 352 
 
 Simmons V. Cornelius 102,114 
 Simmons V. Hunt . 410 
 
 ^imonsv. MotiTOS 38, 89,91 
 Simons and Cutler . 201 
 
 Simpson and Cowell 461 
 
 Simpson v. Gutteridge 304 
 
 Simpson and Hill . 455 
 
 Simpson and Pope 308, 333 
 
 Simpson and ^V'hor^vood 227, 
 
 333 
 Sims and Wiltshire . 3/ 
 
 Singleton and Darluy 228 
 
 Skfclton and Saiith . 42l 
 
 Skelton's case 199 
 
 Skctt V. \\ hitmorc . 53} 
 
 Skil icorne and Rogers 43' 
 
 Skinner and Lurrou^ h 37 
 
 Skinner V. acy . 220 
 
 Skipwith V. Shirley . 391 
 
 Pag* 
 Slade aqd Jendinie . 206 
 
 Slade aiid Seto 7U l56, 2l5. 331, 
 
 335, 34/3 
 Slaughter and Patterson 667 
 
 Sleap and Lady Plait 362 
 
 Slee and Croft App. No. 24 
 
 Sloanc V. Cadogan . 563 
 
 Sloman v. Ilcrne . 656 
 
 Sloperv. Fish . 287, 588 
 Smalwood and AV^alker 441, 641 
 Small and Jeffereys , 524 
 
 Smallcomb v. Buckingham 591 
 Smart v. Prujean , 164 
 
 Smartle v. Penhallow . 53G 
 Smith V. Baker . 530 
 
 Smith and Beatniflf , 611 
 
 Smith V. Burnam . S31 
 
 Smith V. Lord Camelford 530 
 
 Smith V. Clarke . 21, 23 
 
 Smith and Cooper 75, 79, 84 
 
 Sni'th and Deacon 546, 547, 548 
 Smith and Doe • 218 
 
 Smith and De Graves . 5 
 
 Smith V. Sir Thomas Dolman 339 
 Smith V. Garland . 570 
 
 Smith and Gibson . 276 
 
 Smith and Green 154, 170 
 
 Smith and Growsock 2155 424 
 Smith V. Guyon . 436, 447 
 Smhk and Hall 8, 334, 652 
 
 Smith T. Hiblard . 155, 174, 308, 
 
 429, 459 
 Smith V. Jackson . 200 
 
 Smith V. King . 320 
 
 Smith and the King 372, 374, 
 
 376 
 Smith and Kirkham . 176 
 
 Smith V. Lloyd 38, 200, 201 
 
 Smitii V. Low . 649 
 
 Smith and Marlow 287, 294 
 
 Smith and Martin 210,216 
 
 Smith V. Pierce . 355 
 
 Smith
 
 IXDEX TO CASES. 
 
 Xlll 
 
 Pa-e 1 
 
 ^mith {Treasurer of the 
 jr. L n. C.) V. the City 
 
 of London 
 Smith V. Read 
 Smith V. Rosewell 
 Smith and Shaplacd 
 Smith V. Skelfon 
 
 Smith r. Smith , 
 
 306 
 
 Smith V, Spooncr 
 
 638 
 
 Smith (Lady) and Symms 
 
 353 
 
 Smith and Tomlinson 458 
 
 ,628 
 
 Smith V. Turner 
 
 100 
 
 Smith and Voli 
 
 102 
 
 Smith V. Watson 
 
 80 
 
 Smith (Sir William) v. 
 
 
 Wheeler 
 
 453 
 
 Smith T. Wilkinson 
 
 530 
 
 Smith V. Woodhouse 
 
 214 
 
 Snag's case . 
 
 664 
 
 Siiaith and Brooks 
 
 54 
 
 Snaith and Hogg . 
 
 116 
 
 Snell V. Silcock 
 
 323 
 
 Sneliing v. Squint 
 
 645 
 
 Snow and Rex . 154, n. 
 
 Sollet and Dale 
 
 206 
 
 Solomon v. Turner 
 
 153 
 
 Some V. Taylor 
 
 277 
 
 Sorrell V, Carpenter Gil, 
 
 643 
 
 Sorrell and Williams 
 
 607 
 
 Southcote and Harrison 460, 
 
 461 
 
 
 616 
 
 Southcote and Sweet 
 
 635 
 
 Southgatc and Chaplain 
 
 484 
 
 Southouse and Browne 
 
 427 
 
 S.S. Company V. D'Olilf 
 
 142 
 
 Sowden v. Sowden 
 
 546 
 
 Spaight and O'Connor 
 
 127 
 
 Spalding v. Shalmer 436, 
 
 437 
 
 Sparrow v. Ilardcastle 160, n. 
 
 Speldt V. Lechmcre 
 
 626 
 
 Spenceley v. Sthulenbargh 
 Spencer and Vane 
 
 529 Spencer t. Venacre . 
 
 616 Spencer's case , 
 
 623 Sperling v. Trevor 
 287, 311 Spicer and Middleton 
 
 421 Spiliet and Lloyd 
 Spooner and Smith 
 Spratley v UrilTuhs 
 Spurrier V. Elderton 
 Spurrier v. rilzgeruld 
 Spurrier v. Hancock 
 
 Vn%ft 
 
 657 
 
 28 5 
 
 580 
 
 478 
 
 299 
 
 155 
 
 530, 53 1 
 
 638 
 
 228^ 
 
 37, 427 
 
 97 
 
 237, 308, 
 333 
 429 
 645 
 225 
 
 206, 210 
 301 
 
 Spurrier v. Mayoss 
 Squint and Sneliing 
 Squire v. Baker 
 Squire v. Tod 
 Stabback v. Leatt . 
 Stackhouse v. Barnston 321 
 
 Stacpole and (lore , 46 
 
 Stacy and Skinner . 220 
 
 Stadd V. Cason . 659 
 
 Stadtv. Lill . 71 
 
 Stainbridge and Jolland 40(5,611, 
 
 637, 659 
 Staines t. Morris 31, 352, 432 
 Stamford and Best . 382 
 
 Stamford (Lord) and Pickering 
 
 306 
 Stammers V. Dixon . 140 
 
 Standen and Standen App. No. 24- 
 Standley V. Ilenimington 216 
 
 Standon (Inhabitants of) and 
 
 Ilex . fiG 
 
 Stanford and Walton 633 
 
 Stangroom and Marquis of 
 
 Townsend 119,120,123, 
 
 273 
 
 Stanhope's (Lord) case 250 
 
 Stuiihope and G riifin 56 1 , 574 
 
 Stanliope
 
 I\.1V 
 
 inIjlx to cases. 
 
 Page 
 
 Staiihoiic V. Earl Verney 368, 
 475, 627 
 Staniland and ParTter . 69 
 
 Stanley and Jones . 631 
 
 Stanley v. Lee . App. u. 
 
 Stansfield v, Johnson 89, 92 
 
 .Stapely and Butcher 99, 637 
 
 Staple and Doe . 370 
 
 gtapylton V. Scott 197, 250, 288 
 Statham and Joynes . 120 
 Staughton v. Ilaivley 180, n. 
 
 Stedman v. Lord Galloway 343 
 Scedman and Gough . 661 
 Steed V. Whitaker . 640 
 
 Steel and Wray . 535 
 
 Sleek and Rivers .■ 614 
 
 Stent V. Baily . 235 
 
 Stephens v. Batemaa 228 
 
 Stephens v. Olive . 563 
 
 Stephens r. Stephens App. n 
 
 Stephens V. Truman App, No. 24 
 Stephens and Vernoa . 40 
 
 Stephenson v. Hayward 554 
 
 Stephenson and Morris 179 
 
 Sterens V. Baily . 173 
 
 Stevenson and Hesse H5 
 
 Stewart V. AUiston 34, 250, n. 
 
 251 
 Stewart and Bowles 6, 7, 323 
 
 Stewart v. Careless , 96 
 
 Slezcarf, or Seward and Den- 
 ton . 99, 204 
 Stibbert and Taylor 630, 652 
 Stileman v. Ashdowti 540, 561 
 Slile and Taylor . 555 
 Stiles V. Cowper , 114 
 Stilfs and How , 365 
 Stokts V Moore 6 
 Stokes and Pentland , 610 
 rStokes V. Russell . 479 
 
 Pa;© 
 
 Stonard and Curtlng . 45-r 
 
 Sfuiie and Sir George Biuloti 538 
 Stone and Gwilliin 204, 282 
 
 Story V Lord Windsor 634, 662, 
 663, 664 
 Stourton (Lord) v. Sir Thomas 
 
 Meers . 3C8 
 
 Stoiirton ( Lord) and Sir T. 
 
 Meers . 333 
 
 Stowe'scase . 276, u. 
 
 Stradling and Wills 99, ICO 
 
 Stratford v. Bosworth . 74 
 
 Stratford v. Powell . 149 
 
 Strathmore (Lady) V. Bowes 
 
 (Term Rep.) 163 
 
 Strathmore (Lady) v. Bowes 
 
 (Ves.Jan.) . 48Q 
 Strathmore (Earl of) and Davis 
 
 583 
 Stratton and Couch . 305 
 
 Stratton and Shirley 185,224, 270 
 
 Stretton and , 4!} 
 
 Street v. Brown , 211 
 
 Stringer and White 558, 571, 622 
 Strode V. Lady Falkland 13S 
 
 Strode and Osgood 556^ App. 
 No. 21 
 Stuart ex parte , 391 
 
 Stubbs and Matthews , 46 
 Stubbs and Wall . 227 
 
 Studley awd FeilJer • 145 
 
 Stukely and Keen , 224 
 
 Stut and Gascoigne 595, n] 
 
 Style V. Martin , 642 
 
 Sut^'olk and Harding . 134 
 
 Sutton and Banks 377, 378, n. 
 Sutii'U and Kenyoa . 161 
 
 Su r) and Klinitz 39 
 
 Swdine and Zouch . 498 
 
 Swan V. Cox • 215 
 
 Swannock
 
 IXDrTT TO CASF.S. 
 
 I^y 
 
 
 
 Page 
 
 Swannock v. Lyfortl 
 
 377, 
 
 379 
 
 Swan's case 
 
 
 486 
 
 Swpet V. Southcote 
 
 , 
 
 635 
 
 Swift V, Davis , 
 
 536, 
 
 537 
 
 Swift and Garnons 
 
 • 
 
 211 
 
 Swift and I/ulitl)iiriie 
 
 
 46 
 
 Swiniier<o» ami ButUr 
 
 485, 
 
 486 
 
 Syborn and Doe 
 
 , 
 
 370 
 
 Sylvester and Dyke 
 
 . 
 
 296 
 
 Sjmmons and Mackreth 459,461, 
 
 
 . 466, 
 
 474 
 
 Symms v. Lady Smith 
 
 . 
 
 353 
 
 Symonds v. Ball 
 
 « 
 
 92 
 
 Symondson v. Tweed 
 
 93 
 
 111 
 
 Tailor and Griffin , 179 
 
 Tait V. Lord Nortliwick 67 
 
 Talbot and Duke of Cliandos 30 
 Talbot and Lindsay . 656 
 
 Tankard r. Wade . 370 
 
 Tanner and Chapman 459 
 
 Tatmer t. Florence . 652 
 
 Tapp V. Lee . 5, 625, n. 
 
 Tappenden v. Randall 208 
 
 Tarback v. Marbury . 57 S 
 Tardiffe v. Scrugham 461, 463, 
 
 466- 
 
 Tatem v. Chaplin , 478 
 
 Tayler V. Waters . G6 
 
 Taylor v. Alston . 53^ 
 
 Taylor v. Beech . 96 
 
 Taylor v. Debar , 498 
 
 Taylor and Freeman 400, n. 
 
 Taylor v. Hawkins . 458 
 
 •Taylor v, liorde . 319 
 
 Taylor v. Radd . 141, 150 
 
 Taylor and Savage 166, 628 
 
 Taylor v. Shum , 31 
 
 Page 
 Taylor and Some . .S77 
 
 Taylor v. Stibhert 630, 652 
 
 3a///or V. Sale . 553 
 
 Taylor v. Taylor 535, Sii? 
 
 Taylor v. Wheeler . 625 
 
 Tawuey V. Crowther . 78 
 
 Teasdale ?. Teasdale 625 
 
 Tedcastle and Morgan 277 
 
 Teed and Rowe . 9l5 
 
 Tempest's case , 480 
 
 Templar and Evelyn 555^ 556 
 
 662 
 Templar and Hodges . 687 
 Templar v, Maclachlau 4C^ 
 
 Temple V. Brown . S49, n. 
 Tenant and Hearne . 3^ 
 
 Tenant v. Jackson 436, n. 
 
 Tendring T. London . 18B 
 T'.rrel and Clarke . 73 
 
 Terrie's case . 365 
 
 Teynham (Lady) v. Head 175, n. 
 Thanet (Earl ol) and Mil- 
 
 ward • 330, 340 
 
 ThcUusson V. Woodford 164 
 
 Thewer and Peacock 577 
 
 Thicknesse v. Vernon 522 
 
 Thistle Nvood ex parte 228, 232 
 Thomas y, Davis 137, 146, 153 
 Thomas and Jones . 665 
 
 Thomas v. Pledwell , 587 
 
 Thomas v. Powell . 415 
 
 Thomas v. Thomas . 135 
 
 Thomas and Wynne , 353 
 Thomlinson v. Smith '158, 628 
 Thompson and O'Reilly 101 
 
 Thompson v. Towne , 155 
 Thompson, or Douham and 
 
 IViliutms . 343 
 
 Thompson and Shipman 353 
 
 Thomson and Collet . 209 
 
 b Thomsoa
 
 Ixvi 
 
 INDEX TO CASES. 
 
 Pag. 
 
 Thomson r. Miles 210, 211, 243, 
 
 335 
 Thorne and Bullock . 575 
 Thornhill v. Flureau 189, 207, 
 208, 427 
 Thruxton v. Attorney-Gene- 
 ral 385, 387, 388 
 Thwing and Gascoigne 530, 532 
 Thynn v. Thynn . b":^! 
 
 Tickner V. Tickner . 16! 
 
 Tiffin V. Tiffin 381, 382, 386, 387 
 Tinny v Tinny 116, 30 1 
 
 Tipping V Gartside • 51 
 
 Titus and Parkins . 352 
 
 Tod and Squire 206, 210 
 
 Todd and Burton . 426, 
 
 App. No. 20 
 Todd To Gee 426, App. No. 20 
 Todd V. Gee 201,252 
 
 Toilet and Fletcher . 176 
 
 Tollett y. Toliftt . 141, n 
 
 Tombs and Cooke 70, 78, 80, 81, 
 
 99 
 Tomkies and Lloyd « 484 
 Tomkins ex parte 60, App. No. 1 1 
 Tonkins v. White . 249 
 
 Tomlin and Hearn 10, 218, 243 
 Toole V. Medlicot . 99 
 
 Topham and Capp . 16,17 
 Tourvillev. Naish . 627,634 
 Toulmin and Hammond . 499 
 Townley v. Bedwell 169, 425 
 Towne and Thompson . 155 
 Townsend and Gardner 546 
 
 Townsend and Mackintosh 525, n. 
 Townsend (Marquis of) v. 
 
 Stangroom 119, 120, 123 
 
 142, 273 
 
 Toanscnd v. Townsend 202 
 
 Townsend v. Townsend (Bro. 
 
 C. C.) 320 
 
 Tr;icey and J'nnpr . 321 
 
 Traft-y and Ltd, to i 554 
 
 Trecotliii k and Coles 73, 85, 88, 
 89,52. 106, 186,225, 240, 
 505, 512 
 Tredennick and Dunbar 521, 630 
 Trtfu-iis V, Clinton . 58 
 
 Tr'inchard v Hoskins 496 
 
 Trent v Hanning . 287 
 
 Tresham and Ekins . 3 
 
 Tr< s'«vallen v Pcnhules 277 
 
 '!"revali<)n and Pufl>ury 160, n. 
 Trevalyon and Gordon 76 
 
 Trevanian v. Mosse . 663 
 
 Trevor and Hopson . 195 
 
 Trevor and Sperling . 299 
 
 I rimmer v. Bayne . 471 
 
 TrimuePs (Commissioner) 
 
 case . 156 
 
 Truman and Stephens App. 
 
 No. 24 
 Tubbln and Preston 640, 641 
 
 Tiichin and Rartlett . 336 
 Tucker and Dare 30, 389 
 
 Tunbridge and Hamsbottom 82 
 Turn, r ex parte . 437 
 
 Tur erv. Back . 623 
 
 Turner v. Beaurain 209, 244 
 
 Tnrner and Marwood 313 
 
 Turner and Nash 211, n. 
 
 Turner v. Richardson , 41 
 Turner and Solomaa . 153 
 Turner and Smith , 100 
 
 Tumour and MorlsoD 84, 86 
 
 Turtoa v. Benson , 627 
 
 Tweed and Sjmondson 93, III 
 Twigg V. Fifield , 50, 424 
 Twining
 
 INDEX TO CASES. 
 
 Ixvii 
 
 Page 
 fwialngT. Morris 19,24, 186, 
 227, 253, 254 
 Twisleton v. Griffith 230, 232 
 Twyford v. Warcup , 273 
 
 Tyler V. Bevtrshara , 276 
 
 Tyler and Scott . 455 
 
 Tyrconnel v. Dake of Ancag- 
 
 ter . 29 
 
 7'ifrei V. ArtingstaJl, or Bailetf 347 
 Tyrer and Onions . 165 
 
 U. 
 
 Ulrich V. Ditchfield , 136 
 Underbill v. Horwood 228 
 
 Uoderwood v. Lord Courtown 
 
 610,634 
 Underwood t. Hithcox 225 
 
 Upcot and Coleman 71, 73, 74 
 Upton V. Basset , 552 
 
 Upton V. Lord Ferrers 54, 57 
 
 Upton and Watson . 200 
 
 Urmston t. Pate . 412 
 
 V. 
 
 Vale T. Davenport . 46 
 
 Vancouver t. Bliss 9, 202, 250, 
 
 431, 432 
 
 Vane t. Lord Barnard 409, 410, 
 
 639 
 Vawdrey and Seaman 27], 296, 
 
 298 
 Vawser V. Jeffrey . 165 
 
 Venacre and Spencer , 580 
 Vendabendy and Bodmin, or 
 
 Radnor 377, 378, 379, 664 
 
 Varlo and Rex . Ho 
 
 \aughan and Roswell . 412 
 X'ermedum and Gell . I73 
 Verney (Lord) v. Gaming 630 
 V'ernpy (Earl) and Stanhope 368, 
 
 475, 627 
 Veriif-r T, Winstanley 223,228 
 Vf'rnon ex parte . 173,530 
 Vernon and A»clierley 154, 157 
 Vernon and Lord Hardwicke 
 
 515,517 
 Vernon v. Keys , 5 
 
 Vernon t. Stephens , 40 
 
 Vernon and Tliicknesse 522 
 
 Vernon t. Vernon • 157 
 
 Vigor and Attorney General 164 
 Villiers t. Villiers . 386 
 
 Vincent and West . 58 
 
 Viney and Neal , 70 
 
 Vizard v.Longdale . 305 
 
 Vizod V. Londen . 305 
 
 Vol! V.Smith . 102, 114 
 
 W. 
 
 Waad and Douglas 
 
 553, 566 
 
 Waddington v. Bristovr 
 
 69 
 
 Waddy v. Newton 
 
 277 
 
 Wade and Beckford 
 
 314, 321 
 
 Wade T. Marsh 
 
 222, n. 
 
 Wade and Tankard 
 
 370 
 
 Wadham anc Heard 
 
 214, 215 
 
 Wadham and Roach 
 
 479, 480 
 
 Wads\vorth and Crosby 
 
 62, 66, 
 
 
 69, 70 
 
 Wndsworth and Pindar 
 
 297 
 
 Wager and Ryder 
 
 165, 166 
 
 Waghorn and Kaye 
 
 129 
 
 h 2 
 
 Wagstatfe
 
 kviii 
 
 IKDEX TO CASES. 
 
 Page 
 Wagstaffe v. Read . 664 
 
 Wain V. Warlters . 71 
 
 Wake and O'Dell . 589 
 
 ^akeman v. Duchess of Rut- 
 land . 51,308,396,397 
 WaItlen(Lord Howard de) and 
 
 Master of St. Cross 277 
 Waldron v. Forester 424, 430 
 
 WaldroH i.nd Ilonoycomb 603 
 Walker v, Advocate-General 15 
 "Walker V. Burrows . 5!l 
 
 Walker and Boothby . 201 
 Walker and Campbell 504,510, 
 
 516 
 
 Walker?. Constable 89, 92, 133, 
 
 208 
 
 Wttiker and Onljr • 659 
 
 Walker v; PresWick 473, 474 
 Walker v. Smalwood 441, 641 
 Wklker atid Sanderson 540 
 
 Walker v. Walker 84, n. 120 
 
 Wcdkli^ und Comer, or Currer 
 
 168, n. 420, 421, 426, 429, 
 447,448, 465 
 Wall V. Stubbs . 227 
 
 Wallace v. Cook . 353 
 
 Waller v. Hendon . 88 
 
 Waller and Hiltarii 285, 295. 370, 
 App. No. 24 
 Walter T. Hsrsfall . 211 
 
 Waller and Pigott 161, 163, App. 
 No. 23 
 WalleV V. Walley . 628 
 
 Walli'nger v. Hilbert 199, 250 
 Wallis and Hardwood 143 
 
 Wallwyn v. Lee 622, 661, 662 
 Wallwyn and Matthews 608 
 
 Walmesley and Cliftoa 140 
 
 Pise 
 VV^alpole (Lord) v. Earl of 
 
 Cholmondeley 135 
 
 Walters and Ba^lehole 267 
 
 Walsh V. Whitcomb .. 35J 
 Walters V.Morgan , 96 
 
 Walton V. Hobbs . 659 
 
 Walton V. Stanford . 633 
 
 Wanby V. Sa^ bridge . 93 
 
 ^^'arcup and Twyford 27^ 
 
 Ward and (fdllaway . 154 
 Ward and Garth . 641 
 
 Ward T. Garnons . 391 
 
 Ward and Newell . 441 
 
 Ward and Head 579, 58? 
 
 Ward and Waring . 170 
 
 Warden and Farmer . 1231 
 Waring v. Mackreth , 282 
 Waring v. Ward « 170 
 
 Warlters and Waio . 71 
 
 Warner's case . 501 
 
 Warren and Dutch . 205 
 
 Warren and Hall 182, 190, 234 
 Warren and Proctor . £42 
 Warrington and Radclifie 284, 
 329, 332, 337 
 Warwick V. Bruce . 7G 
 
 Warwick V. Warwick 640, 655 
 Wase and Emery 178, 180, 227, 
 
 234 
 Washington y. Bryiber App. 
 
 No. 24 
 Watkins and Allpass . 212 
 Watkins v. Hatchet . 662, n. 
 Watkins t. Maund . 584 
 
 Waterhouse and Buller 573 
 
 Waterhouse and CaSs 77, 81, 275 
 Waters and Tayler • 66- 
 
 Waterworth and Ripley 168 
 
 Watt
 
 INDEX TO CASES, 
 
 Ixix 
 
 Page 
 Walt V. Grove , £01 
 
 Watts V. Cresswell . 624 
 
 Watts V. Fullarton . 159 
 
 Watts and Jenkinson 159, 160, n. 
 Watts V. Kai\cy . 454 
 
 Watts V. Martin . 57 
 
 Watts and Shirley . 591 
 
 Watson V. Birch _ . 55 
 
 Watson and Smith , 80 
 
 W-itson T, UiJton . 200 
 
 Wa^laiid and Wildgoose 636 
 
 AN'ealiley v. Bucluiell 551 
 
 Weal V. Lower . 176 
 
 Weare and Adams . 224 
 
 Webb V. Paternoster , 67 
 
 Webb V. Bettel , 216 
 
 Webb and Kirk 532, 544 
 
 Webb and Potts . 345 
 
 Webb and Raymond . 52 
 Webb V. Rorke , 506 
 
 Webb V. Russell 362, 479 
 
 Wedderburne v. Carr . 88 
 Weldon and How . 622 
 
 Welford V. Beazely 80, 85, 654 
 Wtiland and Balfour 439 
 
 Wills and Bally . 478 
 
 West V. Vincent , 58 
 
 Wesicvtt and Beard . App. n. 
 Westcottand Bradley App. No. 24 
 Western v, Russell 71, 78, 86, 
 170. n. 225, 256 
 Weston ?. Berkeley . 665 
 Weston and Lyddal 296, 298 
 
 Weston and Noel . 294 
 
 WLale T. Booth . 456 
 
 Whaley t. Bajg^tial . 80, 99 
 
 Whalley v. Whaley . 628 
 
 Wheute and Burgess . 241 
 Wheate t. Hall . 287 
 
 Pa-e 
 Wfioeler v. Bratnah , 41 
 
 Whecier v. D'Estorre 99 
 
 Wheeler and Harrington 333 
 
 Wheeler v. Newton 83, 179 
 
 Wheeler and Sir William Smith 453 
 Wheeler and Taylor . 625 
 Whdpdale V. Cookson 514, 519 
 Whichcote v. Lawrence 504, 510 
 Whichcott and Duckenfield 3 
 
 Whitackre V. Whitackre 504 
 
 Whitaker and Steed . 640 
 
 Whitbread v. Brockhurst 96, 99 
 VVhitbread and Savage 393 
 
 Whitchurch ?. Bevis 82, 95, 96, 
 
 98,99 
 Whitchurch t. Whitchurch 181, 
 382, 383 
 Whitcomb and Walsh 353 
 
 White and Cole . 99, 100 
 
 White v. Damon 225, 226 
 
 White V. Ewer . 321 
 
 White T. Foljambe 284, 308, 432 
 White V. Nutt . 235 
 
 White V, Proctor . 90 
 
 White and Parkes . 504 
 
 White V. Stringer 553, ^77, 622 
 White and Tomkins . 249 
 
 While t\ White , 162 
 
 White V. Wilson . 54, 56 
 
 Whitehouse and Hiade 75, 77^ 78, 
 
 89,92 
 Wbiteing, or Edwards, and 
 
 Hollis . 98 
 
 Whitfield V. Fausset . 627 
 Whitmel v.-Farrel . 194 
 
 Whitmore's case . 168 
 
 Whitrong and Douglas 168 
 
 Whlttmoie and Skett 531 
 
 Whittaker
 
 Ixx 
 
 INDEX TO CAfty.J. 
 
 Pac 
 Wbittaker v. Wl.Utaker 163, 172. 
 
 342 
 Whitworth (Lord) and Brookes 
 
 203 
 Whitworth v. Davis . 154 
 
 Wborewood v. Simpson 227, 333 
 Whorvvooii t. Whorwood 546, 547, 
 
 548 
 Widdrington and Christ's Coll. 
 
 659 
 Wigg V. Wigg . 634 
 
 Wightinan and King . 246 
 Wiglesworth and Gore 630 
 
 Witzell and Francis . 502 
 VVihers V. Pfichard . 179 
 
 Wilcocks and Coke . 666 
 
 Wilcocks V. Wilcocks 546 
 
 Wild and Henderson 462, n. 
 
 Wilde V. Fort 209, 288, 327, 372, 
 n. 426, 428 
 W'ildgoose v. Moore 615, 616 
 Wildgoose v. Wayland 636 
 
 W"ildigo8 V. Keeble . 615 
 
 Wilker v. Bodington . 645 
 Wilkes and Reding . 99 
 
 Wilkins V. Fry . 31 
 
 Wilkins and Jeanes , 595 
 
 Wilkins and Paul . 155 
 
 Wilksv. Wiiks . 548 
 
 Wilkinson and Hartly 94 
 
 Wilkinson and Lush 542 
 
 Wilkinson and Lord Salisbury 427 
 Wilkinson and Smith 530 
 
 Willan V. Willan . 186 
 
 Willet V. Sandford . 161, n. 
 William V. Nevil 101,114 
 
 Williams and CaWerley 276, 432 
 Wniiami V. Chitty 305, 307, n^ 
 Williams and Cornwall 189 
 
 Williams aud Cunningham -iS 
 
 Williiims V. Lnmhe . 667 
 
 Williams and Macnamara 203 
 Williams t. Millington 37 
 
 Williams and Fyke . 99 
 
 Williams and Kea 522, 523 
 
 VVillianis and Reed . 654 
 
 Williams and Sangoo 176 
 
 Williams v. Sorrell . 607 
 
 Williams v. Thompson^ or Bonhani 
 
 343 
 Williams v. Wiirnms . 666 
 Williams and Wray . 377 
 Williams and Wynn 377, 442 
 
 Williamson v. Curtis . 437 
 Willis V. the Commissioners of 
 
 Appeals in Prize Causes 427 
 Willis T. Jernegan . 228 
 
 Willis and Portman. . 593 
 Willis T, Willis 530, 533 
 
 Willock and Seward 216, 337 
 Willoughby v. Willoughby 367, 
 371,375,621,654 
 Willowe's case . 352 
 
 Wills V. Sfradling 99, ICO 
 
 Wilmot V. Derby Canal Com. 
 
 pany . 589 
 
 Wilson V. Bennett . 146 
 
 Wilson and CoUon . 308 
 
 Wilson and Clarke . 200 
 
 Wilson and DuflFell . 243 
 
 Wilson V. Foreman ; 544 
 
 Wilson and Horford , 43 
 
 Wilson T. Knubley , 499 
 
 Wilson and Maitland 664 
 
 Wilson and Lord MidiUton 7^ 
 Wilson and Parks . 195 
 
 Wilson and Radford 176, 177, 
 
 665 
 Wilson
 
 INDEX TO CASES. 
 
 Ixxi 
 
 Pa^e 
 Wilson and Rastali . 656 
 
 Wilson and White 54, 56 
 
 Wilson V. VVormol 564, 591 
 
 Wilsons and Hunter 236, n 
 
 Wilton (Lord) and Clayton 559 
 Wiltshire v. Sims , 37 
 
 Winch V. Winchester 121, 274, 
 275, 432 
 Winchelsea (Earl of) and Finch 
 
 399 
 Winchester (Bishop of) t. 
 
 Fournier . 656 
 
 Winchester (Bishop of) t. 
 
 Paine . 432, 641 
 
 Winchester and Winch 121, 274, 
 275, 432 
 Windsor (Lord) and Earl of 
 
 Pom fret . 320 
 
 A\ iudsor (Lord) and Story 634, 
 662, 663, 664 
 Winford and Lutwych 46 
 
 Wing T. Earle . 278 
 
 Winged v. Lefebury 155, 192, 630 
 Winsmore and Lichden 361 
 
 Wiastanley and Blankley 140 
 Winstanley and Venner 223, 228 
 Winter v. Brockwell . 66 
 Winter and Crockford 427 
 
 Winter V. DcTreux . 179 
 
 Winter and Leigh , 574 
 
 Winton (Bishop of) and St. 
 
 John . 158 
 
 Wirdman v. Kent : 255 
 
 Wiseman's case . 554 
 
 Wiseman y. Beake . 231 
 
 Withers and Rex . 656 
 
 Withers v. Withers . 530 
 
 Wittenoon and Crespigny App. 
 No. 12 
 
 Page 
 Wolf and Burgh 623 
 
 If'jod V. Birch, or Norman 526 
 VVo..UndDe B-males 428 
 
 Wood V. Dl wii«-'- 
 IVuod V. Gi iffi, h 
 
 416 521 
 
 156,220,257, 
 
 413 
 
 Wood and Green 
 Wood T. Lake 
 IVoodJ'oid and Tliellusson 
 WoodliouSH and Hirvy 
 Woodhouse iind Smith 
 Wood if 's case 
 Woodman v. Morrell 537, 539 
 Woodrow and G'azebrook 214 
 Woods V. Huntingford 
 Woollam V. Hearn . 
 
 WoUaston and Collet 
 Worcester (Bishop of) v. 
 
 Parker 
 Worley and Hamilton 
 Wormal and Wilson 
 Worsley and Ilill 
 Worsley and Cavendish 
 Worsley and Norcjiff 
 Worsley v. Earl of Scar- 
 borough 640, 641, 644 
 Wortley and Duke of Nor- 
 folk 28, 34, 39, 42, 207, 
 263, 274 
 Wortley v. Birkhead 
 Wray v. Steel 
 Wray v. Williams 
 Wren t. Kirton 
 Wii^ht ex parte 
 Wright T. Bond 
 Wright and Browning 145, 482, 
 
 491 
 
 Wright and Birch . 220 
 
 I Wright and Clerk . 75,99 
 
 ' Wright 
 
 33.^ 
 68 
 163 
 622 
 214 
 556 
 
 170 
 120 
 225 
 
 622 
 170 
 564, 591 
 641 
 176 
 . 176 
 
 644 
 535 
 377 
 24, 50, 510 
 626 
 198
 
 Ixxii 
 
 INDEX TO Cx\SES. 
 
 Wright 7. Dannah . 91 
 
 Wrijjilt and Harrison 195 
 
 "Wriglit V. Mayer . 656 
 
 Wriglit and Nt-cdier . 629 
 Wright and Quaintr«ll 135 
 
 Wright and Sha\v . 29^^ 
 
 Wrighlson v* Hudson 606 
 
 Wrigley and Andrevr 454, 457, 
 458, 635 
 Wroot and Doe . 370 
 
 Wyatty. Allen . 37,88 
 
 Wyatt and Roberts 32, 350 
 
 Wyatt V. Rondeau 89, 96 
 
 Wynn v. Morgan 335, 433 
 
 Wyun V. Williams 377^ 442 
 
 Wynne v. Thomas . 353 
 
 Wyvill V. Bishop of Exeter 239 
 
 Y. 
 
 Yallop ex parte • 
 
 Yallop and Douglas . 
 Yardly and Draper'^ Com 
 
 pany 
 Yarworth and Nourse 
 Yea V. Field 
 Yeayely r. Yearely 
 Yielding and Harnett 
 
 626 
 408 
 
 652 
 386 
 391 
 641 
 182, 185, 
 189, 260 
 522 
 
 York V. Eaton 
 
 York B. Company v. Mac. 
 
 kcnzie 504, 505, 510, 
 
 517, 620, 
 
 Psge 
 York B. Company and Hig- 
 
 gins . 401 
 
 Young and Berry 30, 37, 32-3, 
 
 329, 330, 389, 390 
 
 Voungv. Clerk 6, ]85, 225, 
 
 226 
 Toung and Crosse 482, 484 
 
 Young and Fountain 657 
 
 Young and Harvey . 3 
 
 Young and Kings ley 289 
 
 Young V. Radford . 364 
 
 Young V. Young . 145 
 
 Ybar Books. 
 
 30 E, 324 a. 
 42 E. 3. 11a. 
 47 E.3. 18 a. 
 
 31 Ass. pi. 6 
 
 38 Ass. pi. 4 
 42Ass.pl. 17 
 
 2 H. 4. 8 b. 
 14 a. pi. 5 
 
 39 H. 6. 35 
 
 7 E. 4. 14 b. 
 26 H. 8. T. pi. 11. 
 
 Z. 
 
 Zagury v. Fumell 
 Zouch T> Swaine 
 
 404 
 
 ib. 
 277 
 591 
 
 ib. 
 404 
 
 ib. 
 
 ib. 
 
 595, n. 
 
 179 
 
 483 
 
 237 
 496 
 
 TABLE
 
 iXDT.X TO CASKS. 
 
 Ixxiii 
 
 IMBLE OF STATUTES CITED. 
 
 Pase 
 
 EDWARD I. 
 
 13. c. 19, Administration 435, 593 
 33. Measures . 276 
 
 EDWARD III. 
 
 
 4. c. 7. Executors 
 
 593, n. 
 
 31- c. 11, Administration 
 
 593 
 
 HENRY VIII. 
 
 
 21 . c. 5. Administration 
 
 594 
 
 24. c. 4. Measures 
 
 276 
 
 27. c. 10. S.3. Merger 
 
 365 
 
 s. 7. Dower 
 
 303 
 
 32. c. 2, Limitation of Time 
 
 279, 
 
 
 315 
 
 Pa'e 
 32. c. 9, Sale of pretended 
 
 Titles . 241 
 
 — C.34, Covenants 477, n. 
 
 478, n. 
 
 ELIZABETH. 
 
 13. C.5. Fraudulent CoHTey- 
 
 ances. Creditors 540, 
 542 
 13, c. 4. Crown debtors 372, n. 
 13. c. 7, Bankruptcy 578 
 
 27. C.4. ^ Fraudulent Con- -541 
 30. c. 18. > veyances. Pur- J 551 
 s. 3.-' chasers. ^553 
 
 43. c. 4. Charity , bll 
 
 43, c, 8, Administration 594 
 
 ni uuj:>
 
 Ixxlv 
 
 INDEX TO CASES. 
 
 Page 
 
 CHARLES IJ. 
 
 22. Sc 23. c. 10. Distribution 594 
 
 29. c. 3. s. ]. Leases 61, 87 
 
 s. 2. Leases . 61 
 
 s. 3. Grants 61, 87 
 
 H.4. Parol agreements 
 
 68, 87 
 8, 7 Declaration of 
 
 Trusts 527 
 
 & B. Resulting Trusts 
 
 530 
 s. 10. ExecQtion 401 
 s. 14. 15. Judgments 585 
 s. 16. Execution 590 
 s. 17. Parol agree- 
 ments 75, 87, 92 
 s. 18. Recognizances 595 
 — s. 25, Distribution 594 
 
 WILLLVM and MARY. 
 
 3. c. 14. Devises 434, 499 
 
 4. &5. c. 20. 1 Judg. j-585 
 «fit8.c.36.s.3.5 raents t 
 
 587 
 
 WILLIAM III. 
 
 11 and 12, c. 4. Papist Pur- 
 chasers 503, 613, 614 
 
 JAMES I, 
 
 21. c. IG. Limitation of Time 
 
 279,314,315 
 
 Pa?t 
 
 21. c. 19. s. 9. Judgments 
 
 against Bankrupts 583 
 21. c,I9, Bankrupts 541 
 
 s. 14, Purchasers 
 
 from Bankrupts 57'-. 
 21. 0. 24, Debtors dying in 
 
 Execution 589 
 
 ANNE. 
 
 2, & 3. c. 4. Registry 595 
 5.0.18.) (-407,595, 
 6.C.35.I ^"^''''y i 596 
 7. c. 19. Infant Trustees 162 
 7. c. 20. Registry 596, 601, 602 
 
 GEORGE I. 
 
 3. C.18. Papist Vendors 613 
 9. C.7. s, 4. Churchwardens 501 
 
 GEORGE XL 
 
 7. c. 20. Ejectments 220 
 
 8. c. 6. s. 33. Registry 407, 595 
 14. G. 20. Recoveries 617 
 
 GEORGE IIL 
 
 17. C.26. Life Annuities 
 
 17.C.50.S.S. 
 19. c. 56,5.11. 
 
 S.12. 
 
 s. 13. 
 
 s. 14. 
 
 s. 15. 
 
 27. c. 13. s. 36. 
 
 28. c. 37. s. 19. 
 
 S.20. 
 
 ^ -^ 
 
 3 
 
 App. 
 No. 12 
 . 35 
 18 
 14 
 12 
 ib. 
 13 
 12 
 18 
 14 
 
 29. o
 
 INDEX TO CASES. 
 
 Ixxv 
 
 Page 
 
 29. 0. 36, s. 4. Papist Vendors 
 
 
 
 613 
 
 31. c. 32. Papists 
 
 • 
 
 503 
 
 37. c. 14. 
 
 
 ' 12 
 
 41. c. 109. S.2. 
 
 CO 
 
 C 
 
 505 
 
 42. C.93. s. 1. 
 
 O 
 
 14 
 
 s. 2. 
 
 3 
 < 
 
 15 
 
 42. c. 116. s. 113,, 
 
 
 I 13 
 
 43. c. 30. Papists 
 
 , 
 
 503 
 
 Page 
 12 
 
 43. c. 75' Lunatics 
 
 45. c. 30. Auctions , 
 
 46. c. 135. Purchasers from 
 Bankrupts 580 
 
 49. c. 121. s. 19. Leases in 
 
 Bankrupts 41 
 
 49. c. 121. S.2. Purchasers 
 
 from Bankrupts 580, 583 
 53% c. 141. Life Annuities App. 
 No. 12 
 182, n. j 55. e. 184. Appraisement 43
 
 THE LAW 
 
 VENDORS AND PURCHASERS 
 
 ESTATES: 
 
 INTRODUCTION. 
 
 iVloRAi. writers insist («), that a vendor is bound, in foro 
 vonscientice, to acquaint a purchaser with the defects of 
 the subject of the contract. Arguments of some force 
 have, however, been advanced in favour of tlie contrary 
 doctrine ; and our law does not entirely coincide with this 
 strict precept of morality {h). 
 
 If a person enter into a contract, with full knowledge 
 of all the defects in the estate, the question cannot arise : 
 scientia enim utrinque par pares fac'it contrahentes (c). 
 
 So if, at the time of the contract, the vendor himself was 
 not aware of any defect in the estate, it seems, that the 
 purchaser must take the estate with all its faults ; and can- 
 not claim any compensation for them. 
 
 (a) Cic. de OlF. 3. 13. Grotius Thilos. toI. 1. b. 3. ch. 7. 
 de Jure Belli ac Pacis, L, 2. c. 12. (6) Vide infra, ch. 6. 
 s. 9. PufTcndorf de Jure Naturaj (c) Grotius de Juro Belli ar Pa- 
 ct Gentium, L. 5. c. 3. S.2. rutTtn- cis, L. 2. c. 12. s. 9, 3. PufTen- 
 dorf de OflT. L. 1 . c. 15. s. 3. Va- dorf de Jure Natura> et Gentium, 
 leriusMaximug. L.8.C. II ; ctvide L. 5. c. 3. s. 5. 
 Deuteron. xxv. 14. Palcy's Mor. 
 
 u And
 
 2 INTKODUCTIOX. 
 
 And even if tlie purcliaser was, at the time of tlie 
 contract, ignorant of tlic defects, and the vendor was 
 acquainted with them, and did not di.sch).sc them to the 
 purchaser ; yet, if they were patent, and could ha^e been 
 discovered by a Aigihint man, no rehef will be granted 
 against the vendor. 
 
 The disclosure of even patent defects in the subject of 
 a contract, may be allowed to be a moral duty ; but it 
 is what the civilians term a duty of imperfect obligation, 
 VigilantUms, non doimientibus jura siihveniunt, is an 
 ancient maxim of o\u- law, and forms an insurmountable 
 barrier against the claims of an hnprovidcnt purchaser. 
 
 In this respect, equity follows the law. But it ha? 
 been decided, that if a ^endor, during the treaty, indus- 
 triously prevent the purchaser from seeing a defect which 
 might otherwise have easily been discovered, he is not en- 
 titled to the extraordinary aid of a court of equity : and 
 it is conceived, that he could not even sustain an action 
 against the purchaser for a breach of the contract. 
 
 And if a vendor know that tliere is a latent defect in 
 his estate, which the purcliaser could not, by any attention 
 "vyliatever, possibly discover, it is not clear that he is not 
 bound to disclose his knowledge, although the estate be 
 sold, expressly subject to all its faults (i/). 
 
 By the civil law vendors were bound to warrant both 
 the title and estate against all defects, whether they were 
 or were not conusant of them. To prevent, however, the 
 inconveniences which would have inevitably resulted from 
 this general doctrine, it was qualified by holding, that if 
 the defects of the subject of tlie contract were evident, or 
 the buyer might ha^ e known them by proper precaution, 
 he could not obtain any relief against the vendor. 
 
 The rule of the civil law also was, " simplex cotnmen- 
 
 (f/) See post^ ch. 6. s. 2, 
 
 dutio
 
 INTRODUCTION. 3 
 
 dntio non ohUgatr If the seller merely made use of those 
 expressions, which are usual to sellers, who praise at ran- 
 dom the goods which they are desirous to sell ; the buyer, 
 who ought not to have relied upon such vague expres- 
 sions, could not upon this pretext procure the sale to be 
 dissolved {e). . 
 
 The same rule prevails in our law ( /*), and has received 
 a very lax construction in favour of vendors. It has been 
 decided, that no relief lies against a vendor for having 
 falsely affirmed, that a person bid a particular sum for the 
 estate, although the vendee was thereby induced to pur- 
 chase it, and was deceived in the value (g). 
 
 Neither can a purchaser obtain any relief against a ven- 
 dor for false affirmation of value (//) ; it being deemed 
 the purchaser's own folly to credit a nude assertion of 
 that nature. l»esidcs, value consists in judgment and 
 estimation, in wliicli many men differ (i). So, where a 
 churcli lease was descril)ed in the particulars of sale, as 
 being nearly of equal value with a freehold, and renew- 
 able every ten years, upon payment of a sinall fine, the 
 purchaser was not allowed any abatement in his purcliasc 
 money, although the fine was very considerable, and it 
 w\as proved that the steward of tlie estate had remon- 
 strated witli tlie vendor before the sale, upon his false de- 
 scription (A). 
 
 But if a vendor affnni, that the estate was valued by 
 persons of judgment, at a greater price than it actually 
 
 (f) 1 Dam. 85. See Duckenfield v. AVhiclicott, 2 
 
 ( / ) Chandelor v. Lopus, Cro Clia. Ca. 204. 
 
 Jac, 4. ^ (i) See Ekins v. Trosliam, I 
 
 {g) 1 Rol. Abr. 10I.pl. 16. See Lev. 102 ; reported 1 Sid. 146, by 
 
 1 Sid. 146; Kintiaird v. Lord the name of Leakins v. Clissel. 
 
 Dean, stated infra, n. ; Dawes v. (A) IJrown v. F< iiton, Rolls, 
 
 King, I Stark. 75. 23 June, 1807, M.S.; S.C. 14. 
 
 {h) Harvey V. Young, \ el?. 20. Ves. Jun. 141. 
 
 B 2 v.M^.
 
 INTRODrCTION". 
 
 Avas, and the purchaser act iqion such misrepreseutatioii^ 
 the vendor cannot compel the execution of the contract 
 in equity (/), nor would he, it should seem, he permitted 
 to maintain an action at law for non-performa)ice of the 
 
 agTeement. 
 
 And a remedy will lie against a vendor, for falsely 
 afih-ming- that a greater rent is paid for the estate than is 
 actually reserved (w) (I) ; because that is a circumstance 
 within his own knowledge. The purchaser is not hound 
 to inquire further : for the leases may be made by parol, 
 and the tenants may refuse to inform the purchaser wh^ 
 rent they pay ; or the tenants may combine with the land- 
 lord, under whose power they frequently are, and so misin- 
 form and cheat the piu*chaser. It has been decided also, 
 after great consideration {n), that a purchaser may recover 
 against a vendor for false affirmation of rent, although he 
 did not depend upon the statement, but inquired what the 
 estate let for. However, where it can be satisfactorily 
 proved, that the purchaser did not rely upon the vendor's 
 assertion, a jury would undoubtedly give trifling damages. 
 
 (I) Buxton V. Cooper, 3 A(k. 1118. 1 Salk. 211. S. C. nom. 
 
 383. S.C. M.S. Risney v. Selby. 
 
 (»i) Ekins V. Tresliam, tibisi/p. (») Lysney v. Selby, ubi sup. 
 
 Lysney v. Selby, 2 Lord Raym. 
 
 (I) In the 1st vol. of Coll. of Decis. p. 332, the follow'mg case is re- 
 ported : — An heritor having solemnly affirnied to his tacksman at setting 
 the lands, that there vvas paid, by the preceding tenants, for each acre, a 
 great deal more than really was paid, and thereby induced him to take it 
 at a very exorbitant rate, whereby he was leased ultra dimidlum ; yet con- 
 tinued to possess two years before he complained. The Lords found the 
 alledgeance of circumvention and fraud, both in consilio and in cveiitu, not 
 sufficient to reduce the tack, and that the tenant should have informed Jmn- 
 self better zchat was the true rent, and not have relied on the setter's 
 assertion, and ought to have tried the quality of the ground, and, his eije 
 being his merchant, lie had none to blame but himself, especially now that 
 he hid acciuic&ct'd two years, Kinaird v. Lord Dean, 
 
 It
 
 INTRODUCTION. 5 
 
 It seems tliat the same remedy will lie against a person 
 not interested in tAeprope?ii/, for making a Mse representa- 
 tion to a purchaser of value or rent, as might be resorted 
 to in case such person were owner of the estate (oj ; but 
 the statement must be made fraudulently, that is, with an 
 intention to deceive ; whether it be to favour the owner, 
 or from an expectation of advantage to the party himself, 
 or from ill-will towards the other, or from mere wanton- 
 ness, appears to be immaterial (pj. 
 
 And in cases of this nature it will be sufficient proof of 
 fraud to shew, first, that the fact, as represented, is false : 
 secondly, that the person making the representation, had 
 a knowledge of a fact contrary to it. The injured party 
 cannot dive into the secret recesses of the other's heart, 
 so as to know whether he did or did not recollect the fact ; 
 and therefore, it is no excuse in the party, who made the 
 representation, to say, that though he had received infor- 
 mation of the fact, lie did not, at that time, recollect it fgj. 
 
 A purchaser is not liable to an action of deceit for mis- 
 representing the seller's chance of sale, or the probability 
 of his getting a better price for his commodity than tlie 
 price which such proposed buyer offers (r). Nor is a 
 purchaser bound to acquaint the vendor with any latent 
 advantage in the estate : for instance, if a purchaser has 
 discovered that there is a mine under the estate, he is not 
 bound to disclose that circumstance to the vendor, altliougli 
 he knows the vendor is ignorant of it (s). Equity will 
 not, how^ever, interfere in favour of a purchaser v.lio has 
 
 (o) Pasley V. Freemen, 3 Term n. ; Hutchinson v. Bell, 1 Taiinr. 
 
 Rep. 51; Eyre v. Dunsford, 1 558 ; De Graves v. SmUli, 1 Camp. 
 
 East, 318 ; Ex parte Carr, 3 Ves. Ca. 533. 
 
 and Bea. 108. {q) Burrowes v. Lock, 10 Ves, 
 
 (/>) Il.iycraft t. Creasy, 'i East, Jnn. 470, per Sir Wm, Grant. 
 
 02; Tapp V. Lep, 3 Bos. an<li'iill. (/) See Vernon v. Keys, 12 
 
 367; :ind see 6 Ves. Jun. 186, East, G32, 
 
 13 Ves. Jun. 13 1 ; 12 East, 6:' }, (v) Shc 2 Bro. C.C. -ICO. 
 
 B 3 misre-
 
 INTRODUCTIOK. 
 
 misrepresented tlic estate to any person wlio Iiacl a desire of 
 pureliasing- it (t). 
 
 The same rules apply to ineumbrances and defects in 
 the title to an estate, as to defects in the estate itself. 
 Both law and equity require the vendor to deliver to the 
 purchaser the instrument by which the incumbrances 
 were created, or on which the defects arise ; or to ac- 
 quaint him with the facts, if they do not appear on the 
 title-deeds. If a vendor neglect this, he is guilty of a 
 direct fraud, which the purchaser, however vigilant, has 
 no means of discovering : and Lord Hardwicke laid it 
 down {u), " that even if an attorney of a vendor of an 
 estate, knowing of incumbrances thereon, treat for his client 
 in the sale thereof, without disclosing them to the pur- 
 chaser or contractor, knowing him a stranger thereto, but 
 represents it so as to induce a buyer to trust his money 
 upon it, a remedy lies against him in equity {x) : to which 
 principle it is necessary for the court to adhere, to pre 
 serve integrity and fair dealing between man and man ; 
 most transactions being by the intervention of an attorney 
 or solicitor." 
 
 The same observation applies, and indeed with much 
 greater force, to the attorney or agent of the purchaser. 
 It can, however, seldom happen, that the attoraey or agent 
 of the purchaser, is conusant of any incumbrance on the 
 estate intended to be purchased, unless he be employed by 
 both parties ; which the same person frequently is, in order 
 to save expense. This practice has been discountenanced 
 
 (/) See Howard v. Hopkyns, 2 Burrowes v. Lock, 10 Ves. Jun. 
 
 Atk. 371 ; and Young y. Clerk, 470; and Bowles v. Stewart, 1 
 
 Free. Cha. 538. Sch. and Lef. 227. 
 
 (?/) Per Lord Hardwicke, 1 Ves. (.r) It seems clear tliat relief 
 
 9G ; and see 6 Ves. Jun. 193; miglit now be obtained at law.
 
 iNTPvODUCTION. 7 
 
 hy the courts (?/), and is often productive of the most senous 
 consequences ; for it not rarely happens, tliat there arc in- 
 ■cumbranoes on an estate wliich can only be sustained in 
 equity, and wliich will not bind a purchaser who obtains 
 the legal estate, unless he had notice of them previously to 
 completing his pin-chasfo. Now notice (:::) to an agent, 
 although one concerned for both parties, is treated in equity 
 as notice to the purchaser himself; and, therefore, if the 
 attorney kno^v of any equitable incumbrance, the pur- 
 chaser will be bound by it, although he himself was not 
 aware of its existence. 
 
 And by these means, a purchaser may even deprive him- 
 self of the benefit to be derived from the estate lying 
 in a register county : the register may be searched, and 
 no incumbrance appear; yet if the attorney have notice 
 of any unregistered incumbrance, equity will assist the 
 incumbrancer in establishing his demand against the pur- 
 chaser {a). 
 
 Another }X)wcrful reason why a purchaser should not 
 employ the vendor's attorney is, that if the vendor be guilty 
 of a fraud in the sale of the estate, to which the attorney 
 is privy, the purchaser, although it be proved that he was 
 innocent, will be responsible for the misconduct of his 
 agent (6). In one case (c) a purchaser lost an estate, for 
 whicli he gave nearly 8000/. merely by employing the 
 vendor's attorney, who was privy to a fraudulent disposi- 
 tion of the purchase money. 
 
 With the exception of a vendor, or his agent, sup- 
 pressing an incumbrance, or a defect in the title, it seems 
 clear, that a purchaser cannot obtain relief against a ven- 
 dor for any incumbrance, or defect in the title, to which 
 
 (y) See 6 Ves. Jun. 631. ii. Sch. and Lff. 227. 
 
 (a) See injra, ch. 17. (c) Doe v. Martin, 4 IVnn 
 (rt) See infra, ch. 16, I 7. Rep. 39. 
 
 (b) St-e Bowles v. S(\v;ii(, I 
 
 B 4 his
 
 8 INTilODUCTlON. 
 
 his covenants do not extend; and tlierefoie if u pur- 
 chaser neglect to have the title investigated, or his coun- 
 sel overlook any defect in it, he appears to be without a 
 remedy {d). 
 
 To sum up the foregoing obseriations, a purchaser is 
 entitled to relief, on account of any latent defects in the 
 estate, or in the title to the estate, wliich were not disclosed 
 to him, and of which tlie vendor, or his agent, was aware. 
 In addition to this protection afforded him by the law, 
 a provident purchaser will examine and ascertain the 
 quality and value of the estate, and not trust to the de- 
 scription and representation of the vendor, or his agents ; 
 he will employ an agent and attorney not concerned for 
 the vendor, and will have the title to the estate inspected 
 by counsel (I). 
 
 Where it is stated upon a sale, even by auction, that the 
 estate is in lease, and there is no misrepresentation ^ the pur- 
 chaser will not be entitled to any compensation, although 
 there are covenants in the lease contrary to the custom of 
 the country ; because, whoever liuys with notice of a lease, 
 is held conusant of all its contents {e). This rule, it should 
 seem, ought, as between a vendor and purchaser, to have 
 been confined to a contract actually executed by the con- 
 veyance of the estate and payment of the purchase money ; 
 but as the point has been thus decided, no person having 
 
 {d) Seeposf. cli. 9 1807, MS.j S. C. Ves. Jun.42(5. 
 
 (e) liall V. Smith, Rolls, 18 Dec. 
 
 (I) This can seldom be effectually done, unless the abstract be carefully 
 compared with the title-deeds : in doing m hich, the attention should be par- 
 ticularly directed to the descriptions of the parties, the recitals, the parcels, 
 and the covenants for quiet enjoyment, free from incumbrances ; wliich 
 frequently lead to incumbrances andfacts which have been suppressed. This 
 should be particularly attended tOy asapurchaser is bound by every deed 
 or fact, to which an instrument in his possession leads, by recital or de- 
 scription. See post. ch. l6. 
 
 notice
 
 INTRODUCTION. 9 
 
 notice of any lease, or that tlie estate is in the occupation of 
 tenants, should sign a contract for purchase of the estate 
 without first seeing the leases, unleSvS the vendor will stipu- 
 late that they contain such covenants only, as are justified 
 by the custom of the country. 
 
 With respect to incumbrances, it remains to remark, 
 that if a purchaser suspect any person has a claim on the 
 estate which he has contracted to buy, he should inquire 
 the fact of him, at the same time stating that he intends to 
 purchase the estate; and if the person of whom the inquiry 
 is made has an incumbrance on the estate, and deny it, 
 equity woidd not afterwards permit him to enforce his de- 
 mand against the purchaser ( /'). 
 
 The enquiry should be made before proper witnesses, and 
 as a witness may refresh his memory by looking at any 
 paper if he can afterwards swear to the facts from his o^^^l 
 memory ; it seems advisable that the witnesses should take 
 a note of what passes {g). 
 
 Y\nierc difficulties arise in making out a good title, the 
 purchaser should not take possession of the estate, until 
 every obstacle is removed. Purchasers frequently take 
 this step, imder an impression, that it gives them an ad- 
 vantage over the vendor ; but this is a false notion ; such a 
 measure would, in most cases, be deemed an acceptance of 
 the title (h\or v/oidd at least be a ground to leave it to a jur\ . 
 to consider whether the party had not taken possession v.itli 
 an intention to wave all objections. 
 
 If, however, the objections to the title be remediable, 
 and the purchaser be desirous to enter on the estate, lie 
 
 (/ilbbeston v. Rhodes, 2 Vern. Ca. 112. 
 
 554 ; Amy's case, 2Cha. Ca, 128, (/*) See 3 P. Wms. 193 ; Cal craft 
 
 cited. T. Roebuck, 1 Ves. Juxi. 22(i ; 
 
 (^) See Doe V. Perkins, 3 Term 12 Vcs. Jun, 27 ; and Vaiicou- 
 
 Rpp.749, and thp cases there cited; tit v. Bliss, 11 Ves. Jun. 461. 
 
 Biirrough v. Martin, 1 Camp. 
 
 may
 
 10 IKTIIODUCTIOX. 
 
 may in most cases vcntm-c to do so ; provided the vendor 
 will sign a memoraiiduin, importing that the possession 
 taken by the purchaser, shall not be deemed a waver of the 
 objections to the title, or be made a gi-ound for compelling 
 him to pay the purchase money into court, in case a bill be 
 filed, before the conveyance to him is executed. And a pur- 
 chaser may, with the concurrence of the vendor, safely take 
 possession of the estate, at the time the contract is entered 
 into, as he cannot be held to have waved objections, of which 
 he was not aware ; and if the purchase cannot be completed 
 on account of objections to the title, he will not be bound to 
 pay any rent for the estate, unless perhaps the occupation of 
 it has been beneficial to him (i). 
 
 A purchaser of any equitable right of which immediate 
 possession cannot be obtained, should, previously to com- 
 pleting his contract, inquire of the trustee, in whom the 
 property is vested, whether it is liable to any incumbrance. 
 If the trustee make a false representation, equity would 
 compel him to make good the loss sustained by the pur- 
 chaser, in consequence of the fraudulent statement {k). 
 When the contract is completed, the purchaser should 
 give notice of the sale to the trustee. The notice would 
 certainly affect the conscience of the trustee, so as to make 
 him liable in equity, should he convey the legal estate to 
 any subsequent purchaser ; and it would also, perhaps, give 
 the purchaser a priority over any former purchaser, or incum- 
 brancer, Avho had neglected the same precaution (/). 
 
 It is very usual for auctioneers to prepare the particulars 
 and conditions of sale ; but this a vendor should never per- 
 mit, as continual disputes arise from tlie mis-statements 
 consequent upon their ignorance of the title to the estate. 
 
 Where an estate has been in a family for a long time, 
 
 (i) Hearn v. Tomlin, Peake's (X) Burrowes t. Lock, 10 Ves. 
 
 Ca. 1.92; soeKirtlandT,Pouiisett, Jun. 470. 
 
 2 Tauut. 1 15. (/) VUe infra, ch, 16. 
 
 or
 
 INTRODUCTION. 1 1 
 
 or tlie title lias not been recently investigatetl, it might he 
 advisable for the owner to have an abstract of his title sub- 
 mitted to counsel, and any objections uhich occur to it, 
 cleared up, previously to a contract being entered into for 
 sale of the estate. By this precaution the vendor will pre- 
 vent any delay on his part, which might impede the sale 
 from being carried into effect by the time stipulated ; and 
 ^vill, in many cases, avoid the expencc necessarily attend- 
 ing tedious discussions of a title. Another advantage of 
 this measure is, that if there should be any defect in the 
 title which cannot be cured, it would be known only to the 
 agents and counsel of the vendor. It is of the utmost im- 
 portance to keep defects in a title, from the knowledge of 
 persons not concerned for the owner. It has frequently 
 happened, that persons concerned for jiurchasers, have com- 
 numicated fatal defects in a vendor's title, to the person 
 interested in taking advantage of them, by which many 
 titles have been disturbed. 
 
 tllAl
 
 [ 12 ] 
 
 CHAPTER I. 
 
 OF SALES EY AUCTION AND TRIVATE CONTRACT. 
 
 1. JDy three Acts (a) of his present Majesty's reign, a duty 
 is imposed of id. for every twenty shilhngs of the purchase- 
 money, which shall arise or be payable by virtue of any sale 
 at auction in Great Britain, of any interest in possession or 
 reversion, in any freehold, copyhold, or leasehold lands, te- 
 nements, houses, or hereditaments. 
 
 But sales by way of auction, of estates under the decree of 
 the Court of Chancery, or Exchequer, in England ; or of 
 the courts of Great Sessions in Wales ; or of the Court of 
 Session, or Exchequer, in Scotland (6), are not liable to the 
 duty ; nor do the acts extend to auctions held on the account 
 of the lord or lady of any manor, for granting copyhold or 
 customary lands, for lives or years ; or to any auction held for 
 the letting any estate for lives or years to be created by the 
 persons on whose accounts such auctions shall be held (c) (1) : 
 ncitlier does the duty attach upon the purchase-money of any 
 estate, sold under a sheriff's authority, for the benefit of 
 creditors, in execution of any judgment ; nor to the pur- 
 chase-money of any bankrupt's estate, sold by order of the 
 assignees under any commission of bankruptcy {d). And, 
 
 (a) 27 Geo. III. c, 13. s. 36; (6) 19 Geo. III. c. 5d. s. 13. 
 
 37 Geo. III. c. 14. and 45 Geo. (c) Id. s. 14. 
 
 III. c. 30. (rf) Id. s. 15, 
 
 (1) This mode of letting estates is adopted by the City of London, and 
 some other public bodies. 
 
 lastly,
 
 OF SALES BY AUCTION, &C. 13 
 
 lastly, no auction duty is paya])le in respect of monies pro- 
 duced by sale of estates, sold by auction, for the redemption 
 of land tax (e). 
 
 By an order of Lord Rosslyn's {f), it is directed, that 
 upon application by a mortgagee of a bankrupt's estate, the 
 mortgaged estate shall be sold before tlie commissioners, or 
 by public auction, if they shall think fit. And it has been 
 decided (g), that a sale of a mortgaged estate by auction, 
 under this order, is liable to the auction duty, and is not 
 ■vvithin the exception in the acts of sales of bankrupts' 
 estates by the order of the assignees. This decision was 
 made at 7iisi pi^ius, and, perhaps, cannot be supported. 
 The legislature intended that the creditors of bankrupts 
 should have the advantage of selling the estates by auction 
 without being charged with the auction duty. Now this 
 intention is, in the case under consideration, clearly sub- 
 verted by the decision in Coarc v. Creed. The argument 
 was, that the sale was by the mortgagee, and so not part of 
 the bankrupt's estate. But if the money produced by sale 
 of the pledge is insufficient to cover the mortgagee's debt, he 
 of course resorts to the general effects for a dividend on the 
 residue. If the pledge produce more, the surplus sinks 
 into the general fund ; so that assuming, as the legislature 
 clearly did, that the auction duty is in substance a charge 
 on the land, it, in this case, takes so much from the bank- 
 rupt's property, distributable for the benefit of his credi- 
 tors. It was considered to be clear, however, that where the 
 estate was sold by order of the assignees, with the consent of 
 the mortgagee, no duty would })e payable, l^\\t it has been 
 decided that a sale by assignees of an estate in fee, which 
 was in mortgage for a term of years, was liable to the auction 
 duty, because the assignees sold the whole estate, and they 
 
 (c) 42 Geo. III. c. 116. s. llcJ. (g) Coare v. Creed, 2 Esp. Ca. 
 
 (j) A Bic. C. C. al Ihc did. 699. 
 
 had
 
 14"^ OF SALES 15 V AUCTION 
 
 had only tlie equity of rcdciiiption (Zt). jiiit tlie act of par- 
 liament draws no siicli distinction. jNlost l)ankrupts' estates 
 are in mortgage ; and the exception woukl indeed he ilhi- 
 sory, if it only extended to estates npon which there was 
 no incumbrance. The simple question however is, whether 
 sucli a sale is not a hoiia fide sale bv order of the assig- 
 nees ? v^' ^^rt^ /^t^tt^ /c<^ /^ (-^y 
 
 The auctioneer, agent, or seller by commission, is bound 
 to pay the auction duty, which lie may deduct out of the 
 money he receives at the sale. If he receives none, he may 
 recover it from the vendor by action. 
 
 But if the owner of estates sold by auction, or any other 
 person on his behalf, buy in the same, without fraud or 
 collusion, no auction duty will become payable (/) ; pro- 
 vided notice he given in Avriting (A-) to the auctioneer be- 
 fore such bidding, signed by the owner and the person in- 
 tended to be the bidder, of the latter being appointed by 
 the former, and having agreed accordingly to bid at the 
 sale for his use (/) ; and provided the delivery of such notice 
 be verified by the oath of the auctioneer, as also the fairness 
 of the transaction to tlic best of his knowdedge. 
 
 Neither \y{SS. the duty be payable where the estate is 
 bought in by, or by the order of tlie ste^vard [m) or known 
 agent of the owner, actually employed in the management 
 of the sale of such estate ; but notice in writing of his in- 
 tention must be given by the steward or agent, if he him- 
 self bid, or by him and the bidder, if he appoint a person 
 to bid {n) ; and the delivery of such notice must be verified 
 in the same manner as the delivery of a notice given by the 
 
 (/?) PlC'x v. Abbott, Excbeq. Appendix, No. 1. 
 
 Mkhas.T. is 10. MS. (m) 42 Geo. III. c. 93. s. I. 
 
 (z) 19 Gto. III.c. 56, s, 12, («) See forms of such notices, 
 
 (/.) 28 Geo. 111. c. 37. s. 20. Appendix, Nos. 2 and 3. 
 
 (0 See a form of such notice, 
 
 owner.
 
 AND PRIVATE CONTRACT. 15 
 
 owner. And to exempt a vendor from payment of the 
 dutv, every notice must at the time appointed by law for 
 the auctioneer's passing his account of the sale, be produced 
 by the auctioneer to the officer authorised to pass the ac- 
 count of such sale ; and also be left with the officer (o). 
 
 It is not necessary that the sale should be a regiJar 
 auction. The acts apply to every mode of sale, whereby 
 the highest bidder is deemed to be the purchaser. There- 
 fore, where after an auction at which there was no bidding, 
 the seller's agent stated that he should be ready to treat for 
 the sale by private bargain, and the meeting broke up ; 
 and the agent shortly afterwards w ent into a private room, 
 with several of the persons who attended the sale, and he 
 stated that the highest offi^r above 50,000/. would be ac- 
 cepted; and offers were accordingly made to him, and he 
 liaving opened them said that the one which was the 
 highest tco 7/ W be accepted, jirovided the tei^ms of pen jm ent 
 could be (idjusted, and these terms having been adjusted, 
 the bargabi zvas coni'luded the foUoxjci)ig day ; this was 
 held tt be within the act. The agent put himself under an 
 obligation to treat with all the persons assembled, and to 
 give the estate to the highest bidder. The question was 
 not, whetlicr this was what was usually called a sale by 
 auction, but whetlier for the purposes of this act every tiling 
 must not be considered as much a sale where the contract 
 was with various persons, witli an engagement to let the 
 highest bidder be the purchaser. He might Jiave taken 
 any individual he pleased and concluded a bargain with 
 him ; tliat would have been a transaction of a different kind : 
 but here he treated with a number, and came under an en- 
 gagement to acce])t the highest offer (/;). 
 
 Any thing in tlie nature of a bidding is within the acts ; 
 
 (o) 12 Cto. 1 1 I.e. 93, 5. 2. iDowc, in. 
 
 Q>) Walker v. Advocate Genl. 
 
 and
 
 16 OF SALES BY AUCTION 
 
 iiR(l therefore where the owner put the price under a 
 candlestick in the room, (which is called a dumb bidding), 
 and it was agreed that no bidding should avail if not equal 
 to that, it was holden iq) to be within the acts ; as being 
 in effect an actual bidding of so much, for the purpose of 
 superseding smaller biddings at the auction. >^^^ ^^i^-/^ 
 
 So in the case of a female auctioneer who continued silent /y. 
 during the whole time of the sale, but whenever any one bid, 
 she gave him a glass of brandy. The sale broke up, and 
 in a private room he that got the last glass of brandy was 
 declared to be the purchaser. This was decided to be an 
 auction {r). 
 
 But to bring a bidding within the Acts, the sum must 
 be named by the party eo intuitn, with a view to the pur- 
 chase of the estate. Therefore, in the case of Cruso v. 
 Crisp (s), it was decided, that inUting-up an estate in lots 
 at certain prices, was not a bidding within the acts ; but 
 this has since been doubted by Lord Eldon {t), and al- 
 though it would be difficult to hold the transaction to be a sale 
 within the act, yet of course although the owner intends only 
 to put up the estate at a certain price, and not to bid for it 
 m case of an advance, a previous notice of his intention 
 should be given. 
 
 If an estate be bought in by the owner, and proper 
 notices were not given of his intention to bid, the sale v,ill 
 be held real, and the duty must be paid, however fair the 
 transaction may be. The duty is made a charge on the 
 auctioneer, which he must pay if the proper notices were 
 not given. It is not given by way of penalty. In one case, 
 an auctioneer who had neglected io reguire proper notices 
 was compelled to pay 5 or 6000/. out of his own pocket 
 for the duty, although he had not received any part of it 
 
 (9) See the case cited, 3 East, ($) 3 East, 337. 
 
 340, Capp V. Topham, infra, {t) 1 Dowe, 114. 
 
 (r) 1 Dowe, 115. 
 
 liom
 
 AND rinVATE CONTRACT. 17 
 
 from tlic owners, nor liad charged any eoinmissioii, as the 
 estates were not actually sold (w). A^^^^^-^*^ ^ /i/>-(<^J 
 
 And a statement by an auctioneer to the vendor or liis 
 a^ent, that he has done what is necessary to avoid payment 
 of the duty, will amount to a warranty, although the duty 
 become payable not by the default, but by the ignorance 
 or mistake of the auctioneer. 
 
 Thus, in the late caseof Capp v.Topham (.r) an auctioneor 
 put up an cotate, and by the conditions of sale reserved a 
 dumb bidding (7/) to the owner, which was his mode of 
 saving the payment of the auction duty. The owner's soli- 
 citor, Avith the privity of the auctioneer, placed a ticket 
 containing the price in figures, under a candlestick, on a 
 table in the auction-room. A person who attended on be- 
 lialf of the owner, asked the auctioneer if he had taken 
 the proper preciiution to avoid the duty, if there was 71 o 
 sale. The auctioneer said, it was his mode to fix a price 
 under the candlestick, and if the bidding should not come 
 up to the ])rice, there was no sale or duty. There were 
 several biddings, but under the price fixed, and the auc- 
 tioneer was compelled to pay the duty {z). lie then 
 brought an action against the owner for recoverv of tlie 
 money as paid to his use ; but the statements by the auc- 
 tioneer were holden to amount to a warranty, and judg- 
 ment was given for the defendant. Lord Kllenborough 
 said, that even if there was no warranty on the part of the 
 auctioneer, and it was only a mutual error between him 
 and the vendor, he could not call upon his com})anion in er- 
 ror for a contribution (a). So that in cases of this nature 
 the burden will remain upon the person ujjon whom it is 
 
 (m) Christie v. Atty. Gen. 6 Bro, (z) See Christie v. Atty. Gen. 
 
 r, C, by Toml. 520 ; see 3 Ves. vli sup. 
 
 Jun. 625, n, (a) See Farebrother v Ansley, 
 
 (z) 6 K*st, 392 ; 2 Smith, 413. 1 Camp. V. P. 343. 
 
 (v/) / idf supra. 
 
 chariTcd.
 
 18 or SALE& BY AUCTION 
 
 charged. And it even seems to have been considered, that 
 if an auctioneer, through ignorance, adopt an improper 
 mode of saving the duty, upon an undertaking by the seller 
 to save him harmless, the duty must be paid by the auc- 
 tioneer, and he cannot recover under the undertaking, be- 
 cause it is illegal to indemnify against penalties (b). But 
 to this it may be objected, that the duty attaches as a 
 charge, and is not imposed as a penalty (c). 
 
 If the vendor's title prove bad, the auction duly ^vill 
 be allowed ; provided complaint thereof be made before 
 the Commissioners of Excise, or two justices of the peace 
 within whose jurisdiction such sale was made {d), with- 
 in twelve calendar months after the sale, if the same 
 shall be rendered void in tliat time ; or otherwise with- 
 in thrcD men til s after the discovery of the o^vner having 
 no title O). Eut the commissionei s will not allow the 
 duty unlc?s they think that the Vendor has used his 
 utmost exertions to make a good title. An appeal, how- 
 ever, lies from tlie judgment of the commissioners : but 
 as the King never pays costs, they fall upon the vendor, 
 and in many cases would amount to more than the duty 
 itself. 
 
 II. According to Cicero (/*), a vendor ought not to ap- 
 point a puffer to raise the price, nor ought a purchaser to 
 appoint a person to depreciate the value of an estate in- 
 tended to be sold. And Huber lays it do\Mi(^\. that if 
 a vendor employs a puffer, he shall be compelled to sell the 
 estate to the highest bona fide bidder ; because it is against 
 
 {h) Owen t. Parry, Sitt. West. (rf) 19 Geo. III. c. 55. s. 11. 
 
 Dec. 6, cor. Lord Elleoboroiugh. (e) 28 Geo. III. c. 37. s. 19. 
 
 (c) Christie T.Afty. Gen. 6 Bro. (/) De Off. L. 3. 
 
 P.C. by Toml. 5'10, d supra, is) rrselectiones, xTiii. 2, 7. 
 
 the
 
 AND PHIVATE CONTP.ACT. 19 
 
 the faith of the agreement, by which it is stipulated that 
 the highest bidder shall be the buyer. 
 
 In Bexwell v. Christie (i^), Lord Mansfield and the 
 other Judges of B. R. followed the rule of the civil law, 
 and treated a private bidding, by or on the behalf of the 
 vendor, as a fraud ; but the legislature, by the subsequent 
 statutes, imposing a duty on sales of estates by auction, 
 seems to have been of a different opinion, and even to have 
 sanctioned it. Lord llosslyn, who was present at the 
 making of the Act, remarked in the case of Connolly v. 
 Parsons, that (z) the Acts of Parliament go upon its being 
 a usual thing and a fair thing for the owner to bid. The 
 pressure, when the tax was imposed, was by embarrassing 
 people who chose to dispose of their goods by auction if 
 tliey chose to be purchasers, by the tax falling upon them. 
 His Lordship added, that he thought it would have oc- 
 curred either to Lord Thurlow or to him, when the ex- 
 ception in favour of the owner was proposed, that the case 
 v/ould not exist, as the owner could not be a bidder ; or 
 that, for his attempting to do what he could not by law, 
 it would be just that he should pay the duty. It was 
 very wrong to the public to let that clause stand, if at the 
 time it was understood that the owner bidding was doing 
 an illegal thing. The Acts do not require an open notice, 
 but only a private notice to the auctioneer, and an oath to 
 prev-ent the setting-up a bidding for the owner that the 
 biddgx might evade paying the duty. 
 
 Lord Kenyon, however, in the case of Howard v. Castle, 
 where the piirchaser was the only real bidder, and there 
 were several puffers (Ar), clearly coincided with Lord 
 Mansfield's opinion ; and held, that unless it was publicly 
 
 (;j)H. 16Geo. III. Cowp.395. 642. See Twining v. Morris, 2 
 (i) See 3 Vcs. Jun. 628. Bro. C. C. 326 ; and see 3 Term 
 
 (/) 3G Cieo. 111. 6 Ttrm Hop. Hep. 93, 93. 
 
 c il ];nowu
 
 20 OF SALES BY AUCTION 
 
 knowi that the owner intended to bid, it was a fraud upon 
 the pttrchaser, and consequently no action would lie against 
 him for non-performance of his agreement. The Acts of 
 Parliament, he thought, did not intend to interfere with 
 thiK point, but to leave the civil rights of mankind to be 
 judged of as they were before. And Grose J. also ex- 
 pressed his opinion, that the doctrine was not in the least 
 impeached by the Acts of Parliament. 
 
 But in the case of Conolly v. Parsons {/), Lord Rosslyn 
 said, he fancied the foregoing case turned on the circum- 
 stance that thete was no real bidder ; and the person re- 
 fused instantly. It was one of those trap auctions which 
 are so frequent in this city. The reasoning Avent large 
 certainly ; and did not at all convince him. He said, he 
 should wish it to undergo a re-consideration ; for if it was 
 law, it would reduce every thing to a Dutch auction, by 
 bidding downwards (I). He felt vast difficulty to compass 
 
 (0 3 Ves.Jun.625, n. 
 
 (I) A sale of this nature is thus conducted : The estate is put up at a 
 high price, and if nobody accept the offer, a lower is named,^ and so the 
 sum fust required is gradually decreased, 'till some person close with th« 
 oflVr. Thus there is of necessity only one bidding for the estate, a motle 
 of sale which, in this country, would attract few bidders. In some coun- 
 ties in England a singular mode of sale of estates for redemption of land- 
 tax is adopted ; the auctioneer states the sum of money wanted, and 
 the number of acres to be disposed of, and the person who wiM accept 
 the least quantity of land for the s^im required, is declared the purchaser ; 
 so that the persons bid downwards, until some one name a quantity of 
 land less than any other will take. 
 
 The manner of conducting sales by auction of the post-horse duties is 
 at once Dutch and English. The duties are put up at a large sura, named 
 in thti particulars, and the sale is then conducted in the same manner as a 
 Dutch auction: bat when any person actually bids, others may adraxice 
 on that bidding, atxJ the highest bidder is declared the purchaser ; just as 
 if the sale had been conducted in the usual way. 
 
 the
 
 AND PllIVATE CONTRACT. 21 
 
 the reasoiiing, tliat a person docs not follow his own judg- 
 ment because otlier persons bid ; that the judgment of one 
 person is deluded and influenced by the biddings of others. 
 The facts of the case of Conolly v. Parsons do not appear 
 in the report ; but I learn, that there was a contest be- 
 tween real bidders, after the person, employed to bid on 
 the part of the vendors, had desisted from bidding. The 
 suit was compromised by the purchaser paying a con- 
 siderable sum of money to the vendor to release him from 
 the contract ; and consequently Lord Rosslyn did not give 
 judgment ; but it seems he was clearly of opinion, that 
 the sale was valid. 
 
 And in the later case of Bramley v. Alt (vi), where an 
 estate was put up to sale by public auction, and an agent 
 for the vendor bid to 75/. an acre, without public notice 
 of his intention to do so; and after a contest with real bid- 
 ders, the estate was bought at 101/. 176'. an acre; Lord 
 Alvanley, then IVIaster of the Rolls, decreed a specific per- 
 formance with costs. And he concurred with I^ord Rosslyn 
 in coiisitkring the case of Howard v. Castle only as a deci- 
 sion, that where all the bidders except the purchaser are 
 puffers, the sale shall be void. 
 
 In the last case on this subject, («) it appeared, that as- 
 signees of a bankrupt had put up the estate to sale by auc- 
 tion. It Avas proved that a bidder was employed on their 
 parts to bid up to, but not to exceed 750/. the sum for 
 which the estate was actually sold. The Master of the 
 Rolls held, that the assignees had not committed any fraud ; 
 they did not em])loy the bidder for the purpose, generally, 
 of enhancing the price, but merely to prevent a sale at an 
 undervalue, and they stated, previously, what they con- 
 ceived to be the true value, below which the lot ought not 
 
 (m) 3 Vi«. Jun. 62C. («) Smith ▼. Clarlie, 12 V*b. 
 
 Jun.477. 
 
 c 3 to
 
 22 OF SALES BY AUCTION 
 
 to be sold. His Honour treated the case of Howard v. 
 Castle, as having proceeded on the ground of plain and 
 direct fraud ; and said, that in a similar case he should 
 come to a similar conclusion. 
 
 Upon the whole, then, it is clearly settled, that a bidder 
 may be privately appointed by the owner in order to pre- 
 vent the estate from being sold at an undervalue. And 
 it has been decided, that if there were real bidders at a 
 isale, it must be supported although the bidding imme- 
 diately preceding that of the purchaser was fictitious (o) ; 
 and where public notice has been given, the contract will 
 be binding on the purchaser, although there was no con- 
 test between real bidders ; but only the purchaser and the 
 person employed to bid, bid against each other (p). It 
 should seem that the rule would be the same, even where 
 public notice had not been given, provided the bidder was 
 appointed only to protect the vendor's interest. 
 
 But it seems, that where the person is employed, not for 
 the defensive precaution, with a view to prevent a sale at 
 an undervalue, but to take advantage of the eagerness of 
 bidders to screw up the price, that will be deemed a fraud 
 {q). Ts^either do the cases authorize the vendor to appoint 
 more than one person on his behalf. It seems highly pro- 
 per that a vendor should be permitted to appoint a person 
 to guard his interests against the intrigues of bidders ; but 
 it does not follow that he may appoint more than one. 
 The only possible object of such a proceeding is fraud. It 
 is simply a mock auction ; and, notwithstanding Lord 
 Rosslyn's impression, it is universally felt and acknow- 
 ledged, that the judgments of most men are deluded and 
 
 (o) S. C. 1813, the ViccChancellor seemed 
 
 (p) Oldfield V. Round, 5 Vef, rather to be of opinion that the 
 
 Jui). 508. appointment of one puffer was, ia 
 
 (q) See 12 Ves. Jun, 483. In no case, bad. 
 
 Fitzgerald t. Forstcr, 3l6.t July, 
 
 influenced
 
 AND PRIVATE CONTRACT. 2S 
 
 influenced by tlie biddings of others. As far as any aid is 
 sought from the auction duty acts, in support of private 
 biddings on behalf of the owner, it is clear that they do 
 not authorize or sanction the appointment of more than one 
 person. In the report of Conolly v. Parsons, it is stated, 
 that persons were employed to bid, and did bid for the 
 vendors ; but the fact is, that one person only was employ- 
 ed by them, and actually bid on tlieii- behalf The JSl aster 
 of the Rolls observed, in the late case of Smith v. Clarke, 
 that he did not see, that if several bidders were employed 
 by the vendor, in that case, a court of equity would com- 
 pel the purchaser to carry the agreement into execution'; 
 for that must be done merely to enhance the price. It 
 was not necessary for the defensive purpose of protection 
 against a sale at an unden'alue (r). 
 
 But although an original purchaser will not be bound 
 where a fraud has been practised in the biddings, yet if he 
 transfer his contract, a strong case of fraud must be made 
 out against the original purchaser, to enable the court to 
 give the benefit of it to his assignee, who was not induced 
 through competition to give the price (s). 
 
 If the particulars or advertisements state (as they fre- 
 quently do), that the estate is to be sold without reserve, 
 it seems clear that the sale would be void against a pur- 
 chaser, if any person were employed as a puffer, and actu- 
 ally bid at tlie sale. 
 
 It is generally understood, that some person will bid on 
 the part of the owner ; and it therefore seems to deser^-e 
 consideration, whether it would not, in most cases, be ad- 
 visable to give public notice of the owner's intention, pre- 
 tiously to the sale. Where public notice is given, the 
 mode least liable to objection seems to be that of reserving 
 
 (OSce 12 Ves. Juii.483; and (s) Sec 12 Ves. Jun. 484. 
 
 see 8 Term Rfp, 93, 93, 
 
 c i a bidding.
 
 24 OF SALES nv Ar( TroM 
 
 a bidding, or stipulating' in the conditions of sale, tliat the 
 owner may hid once in tlic course of the f^alc [t). It may 
 here, hoAvevcr, he proper to observe, that buyinf^ in an 
 estate, Cvspccially where it is done without public notice, 
 mostly prejudices a I'uture sale. This was exemplified in 
 the sale of an estate before one of the Masters in Chancery, 
 whcic 23,000/. was hoiia fide bid, and the estate was 
 bought in by the agent of the vendor ; afterwards there 
 were three other sales in the INIaster's office ; and the con- 
 sequence of the estate having been bought in, deterring 
 others from bidding, was, that on the two first occasions no 
 more was offered than 12,000/. and 6,000/. ; and the estate 
 finally sold for 1,>,000/. (u). 
 
 III. The particulars and conditions of sale (a^) next 
 claim our attention. 
 
 It seems that tlie judges will so construe them as to en- 
 deavour to collect the meaning of the parties, ^vithout in- 
 cumbering themselves with the technical meaning of the 
 words. 
 
 Thus where (y) the city of London let an estate by auc- 
 tion for a term of years, according to certain conditions of 
 sale, by which it was stipulated, that the purchaser should 
 pay a certain 7'ent before the lease was granted, which he 
 accordingly agreed to do ; the Court of King's Boiich held, 
 that though the money to be paid could not be strictly 
 called a rent, the relation of landlord and tenant not hav- 
 ing then commenced, yet the parties intended the money 
 
 (/) See Co\Vp. 397. (.r) See a form of them, Ap- 
 
 {ii) See 6 Ves. Jun, 629 ; peudix, Xo. 4. 
 Wren V. Klrton, 8 Ves. Jun. 502; (?/) City of London v. Dias, 
 
 and see Twining v. Morris, 2 Bro. Woodfall's L. and T. 241. 
 C. C. 326. 
 
 should
 
 AND PRIVATE CONTRACT. 25 
 
 should be paid, and it must be paid accordingly. Lord 
 Kenyon said, he had always admired an expression of Lord 
 Hardwicke's, " tliat there is no magic in words." 
 
 Great care, however, should be taken to make the par- 
 ticulars and conditions accurate ; for the auctioneer cannot 
 contradict them at the time of sale, such verbal declarations 
 being inadmissible as evidence. 
 
 Thus, where estates were put up to sale by auction (::;), 
 and in tlie printed particulars of sale were stated to he free 
 from all incumbrances ; they were bought by a person 
 who, discovcrhig that there was a charge on the estate of 
 17/. per annum, refused to complete the purchase, in con- 
 sequence of which an action was brought by the vendor ; 
 and although lie offered to give in e\idencc, that the auc- 
 tioueer had publicly declared from his pulpit in the auc- 
 tion-room, when the estate was put up, that it was charged 
 in tlic manner above specified, yet the court of C. B. re- 
 fused to admit the evidence, as it would open a door to 
 fraud and inconvenience, if an auctioneer were permitted 
 to make verbal declarations in the auction-room, contrary 
 to the printed conditions of sale ; and the plaintiff was non- 
 .suited. And this rule prevails in favour as well of the seller 
 as of the purchaser {a). 
 
 The same rule of course prevails in equity, where the 
 person setting up the parol evidence is plaintiff. Upon the 
 sale of an estate by auction, the particular was equivocal 
 as to the woods : but it was clear the purchaser was to 
 pay for timber, and timber-hke trees. There was a large 
 underwood upon the estate. At the sale, the article being 
 ambiguous, the auctioneer declared, he was only to sell 
 the land ; and every thing growing upon the land must be 
 
 (5)Gunnisv.Erhart,in. Black, (a) PoweHf. Edmunds, 12Easf, 
 
 289 ; see Jones v. Ediiey, 3 Campb. 6, 
 Ca. 285. 
 
 paid
 
 26 OF SALES BY AUCTION 
 
 paid for. The defendant , the purchaser, insisted he was 
 only to pay for timber, and timber-like trees, not for plan- 
 tation and underwood. The declaration at the sale was 
 distinctly proved ; but it was detciinined by the court of 
 Exchequer, that the parol evidence was not admissible {h). 
 
 Nor when the seller is plaintiff can parol evidence be 
 admitted on his behalf, of the declarations at the sale, 
 although the purchaser by the written agreement bind 
 himself to abide by the conditions and declarations made 
 at the sale (c). 
 
 But a question has been raised, whether, if by a colk- 
 teral representation a party be induced to enter into a writ- 
 ten agreement, different from such representation, he may 
 not have an action on the case for the fraud practised to lay 
 asleep his prudence {d). 
 
 And if the pm*chaser have particular personal infor- 
 mation given him of an incumbrance, it seems that the 
 parol evidence may be admitted {e). The evidence may 
 f)e uged in equity as a defence against the specific perform- 
 ance if the parol variation was in favour of the defendant, 
 and the plaintiff seek a performance in specie according to 
 the written agreement {f). 
 
 If it be the custom in a public auction-room, to paste 
 up the conditions of sale in tlie room, and the auctioneer 
 announces that the conditions are as usual, they will, if 
 pasted up, according to the usual custom, be binding on 
 
 (6) Jenkinson v. Pepys, 6 Ves. Black. 289 ; and see Pember y. 
 
 Jun. 330, cited; 15 Ves. Jun.521, Mathers, 1 Bro. C. C.52> Fife v. 
 
 stated. Clayton, 13 Ves. Jan. 546, where 
 
 (c) Higginson v. Clowes, 15 the particular was altered before 
 Ves. JuD. 516. the sale, 
 
 (d) See Powell v. Edmunds^ (/) Higginson r, Clowes, ubi 
 12 East, 6. iup, 
 
 (e) Gunnis t. Brhart, I H. 
 
 the
 
 AND PRIVATE CONTRACT^ 27 
 
 the purchaser, although he did not see them (g). This can 
 seldom, however, happen upon a sale of estates. 
 
 The late Mr. Bradley recommended, that where it is 
 understood, at the time of sale, that the vendor has only 
 a doubtful title, a provisional clause, to the following 
 effect, should be inserted in the conditions of sale, and 
 articles of purchase ; which would be sufficient, he thought, 
 to obviate any doubt that might otherwise arise at the 
 sale : 
 
 " That if the counsel of the purchaser shall, on the ex- \ ^ 
 amination of the title, be of opinion, that a good title and I )t2^^i?^f^y 
 conveyance cannot be made of the purchased premises, \ ' Jm^ ^ 
 within the time limited by the articles for carrying the 
 same into execution ; in that case the same articles shall 
 he discharged, and not furtlier proceeded in on either 
 side." 
 
 The estate cannot be too minutely described in the par- 
 ticulars ; for although, as Lord Thurlow observed, it is 
 impossible that all the little particulars relative io the 
 quantity, the situation, &c. should be so specifically laid 
 down, as not to call for some allowance and consideration, 
 when the bargain comes to be executed {h) ; yet if a person, 
 however unconversant in the actual situation of his estate, 
 will give a description, he must be bound by that, whether 
 conusant of it or not (i). 
 
 Lord EUenborough has observed, that a little more fair- 
 ness on the part of auctioneers, in the forming of their par- 
 ticulars, would avoid many inconveniences. There is always 
 f ithcr a suppression of the fair description of the premises. 
 
 (^)Mesnardv.Aldn(lge,3Esp. (i) See 1 Ves. Jun. 213, per 
 
 Ca. 271. Lord Thurlow ; Schneider t. 
 
 (A) S«e 1 Ves. Jun, 224, per Heath, 3 Camp. Ca. 506. 
 Lord Thurlow. 
 
 or
 
 28 Ol SALllS JJV AUCTION 
 
 or there is somctliinc^ stated wliicli does not belonpj to tliein ; 
 and in favonr of justice, considering liow little knowledge 
 tlie parties have of the thing sold, much more particidarity 
 and fairness niight be expected. The particulars, his TiOrd- 
 ship added, arc in truth like the description in a policy of 
 insurance, and the buyer knows nothing but what the party 
 comnuinicatcs (A'). 
 
 In one case (/) the conditions of sale stated a house to be 
 " a free public- house." The lease contained a covenant to 
 V- take beer from the lessors ; but the auctioneer read over the 
 whole lease in the hearing of the bidders, but he stated 
 erroneously, that tlie covenant had been decided to be bad. 
 The purchaser brought an action to recover his deposit. 
 Lord Elleuborough said, that in the conditions of sale this 
 is stated to be " a free public-house." Had the auctioneer 
 afterwards verbally contradicted this, he should have paid 
 very little attention to what he said from his pulpit. Men 
 cannot tell what contracts they enter into if the wTitten 
 conditions of sale are to be controuled by the babble of the 
 auction-room. But here the auctioneer, at the time of the 
 sale, declared, that he warranted and sold this a free public- 
 house. Under these circumstances a bidder was not bound 
 to attend to the clauses of the lease, or to consider their 
 legal operation. 
 
 AVhere a lease is sold, the purchaser is not bound to 
 complete his purchase if any part of the buildings demised 
 have been removed, although he heard the lease read, and 
 the particulars did not comprise the building in ques- 
 tion (w). 
 
 (k) See 3 Smith, 439 ; and sec Ca. 284, 
 
 Duke of Norfolk r. Worthy, 1 (w)G ranger v. Worms, 4 Gdqap. 
 
 Camp. Ca. 337, and post, Ca, 83, 
 
 (Z) Jones V. Edney, 3 Camp. 
 
 In
 
 aXd puivatf. contract. 2f) 
 
 111 stating an estate to be of any given " clear" yearly - 
 rent, the i)arties sliould attend to the meaning of the word 
 *' clear," in an agreement between buyer and seller; which 
 is, clear of all outgoings, incumbrances, and extraordinary 
 charges, no^according to the custom of the country, as 
 tythes, poor-rates, church-rates, &:c. which are natural charges 
 on the tenant (//). 
 
 The mere exhibition of a plan of a new street, at the 
 time of the sale of a piece of ground to build a house in 
 the line of the intended street, does not amount to an 
 implied contract to execute the improvements exhibited on 
 the plan, where the written contract is silent on that 
 liead (o). 
 
 Where the timber and other trees are to be taken by the 
 purchaser at a valuation, it should be stated accurately for 
 what trees he is to pay. 
 
 In a case where there were several lots, it was stated 
 after two of them, that the timber on them was to be paid 
 for. The particulars were silent as to the timber on the 
 other lots, which was of considerable greater value ; but 
 there was a general condition that all the timber, and tim- 
 ber-like trees, down to 1^. per stick inclusive, should be 
 taken at a fair valuation. The purchaser of the lots to 
 which no statement was annexed, claimed the timber 
 without paying for it ; and the iSIaster of the Rolls thought 
 tliat a purchaser might be so fairly impressed witli that 
 idea, notwithstanding the general eondition, that he re- 
 
 (h) Eail of Tyrconncl v. Duke tal t. Gibson, 2 Dow. 301 ; see 
 
 of Ancaster, Ambl. ii37, '2 Ves. Comptoii v. Uicliards, 1 Price, 
 
 500. 27. 
 
 (o) Feoffees of Heriott's Ilospi- 
 
 fused
 
 fiO or SAi-i::> bv auction 
 
 lused to compel him to perform the contract according to 
 the Keller's construction (p). 
 
 But although it should be merely stipulated that the 
 purchaser shall pay for timber, yet he must pay for trees 
 not strictly timber, if considered go, according to the custom 
 of the country (q). 
 
 It is proper, also, to make some provisicm as to articles 
 not properly fixtures. Lord Ilardwicke said, that if a man 
 sells a house where there is a copper, or a brew-house where 
 there are utensils, unless there was some consideration given 
 for them and a valuation set upon them, th^y would not 
 pass (r). 
 
 When the title-deeds cannot be delivered up, some 
 provision should be made as to the expense of the attested 
 copies, and the covenants to produce them, which will 
 otherwise fall upon the vendor (5) ; and where the estate 
 is sold in many lots, and the title-deeds are numerous, 
 nearly the whole purchase-money may, perhaps, be ex- 
 hausted. In one case, the lots were more than 200, and 
 the copies came to 2000/. 
 
 If the estate is leasehold, and the vendor cannot pro- 
 cure an abstract of the lessor's title, this fact should be 
 stated in the conditions {t). 4 
 
 A purchaser of a leasehold estate must covenant with the 
 vendor to indemnify him against the rent and covenants in 
 the lease, although he is not expressly required to do so by 
 
 (p) Higginson t. Clowes, 15 478. 
 
 Ves. Jun. 516, (5) Darev. Tucker, 6 Ves. Jun. 
 
 (9) Duke of Giandos v, Talbot, 460 ; and Berry t. Young, 2 Esp, 
 
 2 P. Wms. 601 ; Anon. Ch. 25. Ca. 640, n. Sec post, c. 9. 
 
 July, 1808 ; and see Aubrey v. (0 See post, cli. 7 ; and see 
 
 Fisher, 10 East, 446. Dtnew v Dcvcrell 3 Campb. 
 
 (r) ^M parte Quincey, 1 Atk. 451. 
 
 the
 
 AND FRIVATE CONTRACT. 31 
 
 tlie coiiditions of sale {.t) ; and it will not vary the case tlmt 
 he is not entitled to any covenants for title : for example, 
 ■where the sale is by an executor of an assignee {y) ; hut 
 assignees of a bankrupt selling a lease which was vested in 
 him, cannot require the purchaser to enter into such a cove- 
 nant for their indemnity, or the indemnity of the bank- 
 rupt (z). 
 
 And although a purchaser is not required by the con- 
 ditions of sale, to give an indemnity against the rent and 
 covenants, and an assignment is actually executed with- 
 out any indemnity being given ; yet, even a verbal agree- 
 ment by the purchaser, before the sale, to secure such 
 indemnity, will be carried into a specific execution, if it be 
 distinctly proved (a). 
 
 Where a vendor is only an assignee of a leasehold 
 estate, and is not bound by covenant to pay the rent, and 
 perform the covenants in the lease, his liability to do so 
 ceases upon his assigning the estate over (b), and conse- 
 quently, in such case, there is not any thing for a pur- 
 chaser to indemnify against; unless it should be consi- 
 dered that an assignee is bound to indemnify his assignor 
 against the rent and covenants under an implied contract 
 — a question which has been discussed, but not I believe 
 decided. 
 
 It should always be stated in the conditions, that the 
 conveyance shall be prepared by, and at the expense of, 
 the purchaser (c). 
 
 (x) See Pembfer V. Mathers, 1 U)Wnkiris v. Fry, 1 Mer,244. 
 
 Bro. C. C. 52 J and see post, ch. («) Pi'niber v. Mathers, 1 Pro. 
 
 4, as to the obligation of a pur- C. C. 52 ; and see post, ch. 3. 
 
 chaser of an equity of redemption (h) See 1 Trea. Eq, 2d Ed. p. 
 
 to indemnify the vendor against 350, and Fonbi. d. (y) ibui. and 
 
 the mortgage money. see Taylor v. Shuin> 1 Bos. and 
 
 (y^ Staines v. Morris, 1 Vcs. Pull. 21. 
 
 and Deain, 8. (c) Sec post, ch. 4. 
 
 TllC
 
 32 OF sALi:s ny atction' 
 
 The usual condition, " that if the purchaser shall fail 
 to (•oni])lv with the conditions, the deposit shall be forfeited, 
 and the proprietors be at liberty to re-sell the estate ; and 
 the deticiencTi if any, by such sale, together with all 
 charges attending the same, shall be made good by the de- 
 faulter," should never be omitted. It forme a lien on the 
 estate for the purchase-money, &c. and if the purchaser 
 do not comply with the conditions, the vendor may, by 
 virtue of this stipulation, re-sell the estate, and recover the 
 deficiency and charges from the purchaser {d). And if tiie 
 money produced by the second sale, exceed the origiiial 
 pvuchase-money, the purchaser who has violated the agree- 
 ment will not be entitled to the surplus, but the Acndor 
 himself will be entitled to retain it. 
 
 A stipulation in a contract that in case the vendor can- 
 not deduce a good title, or if the purchaser shall not pay 
 the money on the appointed day, the agreement shall be 
 void, docs not enable either party to vitiate the agreement, 
 by refusing to perform his part of it : the seller may avoid 
 the contract, if the purchaser do not pay the money ; the 
 purchaser may avoid it, if the seller do not make a title ; 
 or the contract will be void, if the seller cannot make a 
 title ; but it is not sufficient for him to say that he can- 
 not (^). 
 
 If the purchaser, after breaking the condition, become 
 bankrupt, and the estate is re-sold at a loss, the expenses 
 of the sale, &c. being in the nature of unliquidated da- 
 mages, cannot be proved under the commission ; but as 
 the vendor has a lien on the estate, lie may apply the 
 money produced by the last sale of the estate, first, in 
 
 id) Ex parte Hunter, 6 Ves. ride 7 V«s. Jun. 275 ; sec 
 
 Jun. 94; and see Moss v. Mat- Greaves t- Ashlin, 3 Camp. 466. 
 
 thews. 3 Vet. Jim. 279 ; .Mertens («) Roberts v, Wyatt, 2 Taunt. 
 
 Y. Adcock, 4 fisp, Ca. 251. sed 268. 
 
 payment
 
 AND PRIVATE CONTRACT. 33 
 
 payment of those articles wliicli it is just he should re- 
 ceive, but which he could not prove under the bank- 
 ruptcy ; then, towards payment of the original purchase- 
 money ; and the balance may be proved under the com- 
 mission f/;. 
 
 In a recent case (^) a leasehold house and furniture 
 had been sold for 4,370/. and the assignment ivas executedy 
 but neither it nor tlie lease, nor possession, had been deli- 
 vered, and the purchaser, declining to complete the contract, 
 the sellers brought an action and recovered the whole amount 
 of the purchase-money and costs. The purchaser became a 
 bankrupt, and the assignees took possession of the house. 
 The seller tlien sold the house and furniture at a considera- 
 ble loss, and Lord Eldon considered that they were enti- 
 tled to a lien for the amount of the sale and costs, and to a 
 proof for the difference, although it was insisted that they 
 were concluded by their action. 
 
 The condition which has now become almost univetsal, 
 that any mistake in the description of the estate, &:c. shall 
 not annul the sale, will only guard against unintentional 
 errors. 
 
 This was decided by Lord Ellcnborough in a case 
 where the estate was stated in the particulars to be ahout 
 one mile from Horsham. It turned out that the estate 
 was between three and four miles from that place. Upon 
 an action brought by the purchaser for recovery of the 
 deposit, it was insisted that the effect of the misdescrip- 
 tion was saved by the condition, which provided that no 
 error or mis-statement should vitiate the sale. But T^ord 
 JEllenborough said, that in cases of this sort he should 
 always require an ample and substantial performance of 
 the particulars of sale, unless they were specifically cpia- 
 
 (/) i/JT pa; ie Hunter, 6 Ves. (^) Ex parte \joiA St.ifortli, 1 
 
 .Tun. 9i; Bowles v. Rogers, ibi(f. Hose, 306, 
 95, n. 1 Cooko, 123. 
 
 I) litied.
 
 84 OF SALES BY AUCTION ' 
 
 liried. Here there was a clause inserted, providing tiiat 
 an error in the description of the premises should not vi- 
 tiate the sale, but un allowance should be made for it. 
 This he conceived was meant to guard against unintentional 
 ctrors, not to compel the purchaser to complete the con- 
 tract if he had been designedly misled. His Lordship 
 therefore left it to the Jury, whether this was merely an 
 erroneous statement, or the misdescription w as \Nilfully 
 introduced, to make the land appear more valuable from 
 being in the neighbourhood of a borough town. In the 
 former case, the contract remained in force, but in the 
 latter case, the plaintiff was to be relieved from it, and 
 was entitled to recover back his deposit. The plaintifT 
 had a verdict, so that the Jury must have thought the 
 misdescription fraudulent (h). 
 
 A bidding at a sale by auction, may be countermanded 
 at any time before the lot is actually knocked dovai {i) : 
 because the assent of both parties is necessary to make 
 the contract binding ; that is signified, on the part of the 
 eefller, by knocking down the hammer. An auction is 
 not unaptly called locus pce7iitentice. Every bidding ifs 
 nothing more than an offer oil one side, which is not bind- 
 ing on either side till it is assented to. If a bidding was 
 binding on the bidder before the hammer is do^vn, he 
 vrowld be bound by his offer, and the vendor would not, 
 which can never be allowed. 
 
 The countermand of a bidding would, in some cases, 
 prove of the most serious consequences, and it might 
 therefore be advisable to stipulate in the conditions of 
 sale, tliat no persons shall retract their biddings. 
 
 (/t) Duke of Norfolk V. Worthy, and Bea. 377 3 Stewart v. Allis. 
 1 Camp. Ca. 337 ; see Fenton v. ton, 1 Mer. 26. 
 Brown, 14 Ves. Jun. 144 ; 1 Ves, (?) Payne v. Cave, 3 Term 
 
 Rep. 148. 
 
 Although
 
 AND PRIVATE CONTRACT. g5 
 
 Although the duty is by the Acts imposed on the ven- 
 dor, yet he is not restrained from making it a condition of 
 sale, that the duty, or any certain portion thereof, shall 
 be paid by the purchaser over and above the price bidden 
 at the sale by auction ; and in such case the auctioneer is 
 required to demand payment of the duty from the pur- 
 chaser, or such portion thereof as is payable by him un- 
 der the condition ; and, upon neglect or refusal to pay the 
 same, such bidding is declared by the Acts to be null and 
 void to all intents and purposes (A) (I). 
 
 It is usual to make some provision respecting the pay- 
 ment of the auction duty, as that the vendor and pur- 
 chaser shall pay it in equal moieties, and indeed, where 
 the purchase-money is liable to the duty, a stipulation of 
 this nature should never be omitted, \inless the vendor in- 
 tend to pay the wliole duty himself If the seller cannot 
 make a title, the purchaser can recover from him the auc- 
 tion duty which he has paid (/). 
 
 The other provisions which ought to be inserted in con- 
 ditions of sale, are so well known as not to require notice. 
 
 IV. It frequently happens that estates advertised to ])e 
 sold by auction, are sold by private contract, instead of 
 being brought to the hammer, and tlie sale is not an- 
 nounced to the public till the day fixed for the auction, 
 and even sometimes not till the auctioneer's appearance in 
 the auction-room. Kotice of an intended sale by auc- 
 tion 
 
 (/.) 17 Geo. in. c. 50. s. 8. (/) Cano v.Baldvvin, 1 Stark. 65. 
 
 See 7 Ves. J.jn. 345. 
 
 (I) This provision seoms very objoolionablp. It miglit be oontetidrd, 
 thut if a purchaser disliked his bargain, his refusal to pay the auction duly 
 would annul the sale, and throw the av hole expense attending it on the 
 vendor, whose estate would atill remain uiis)ld. It there be any founda- 
 
 tiuii 
 D'J.
 
 36 OF SALES BY AUCTION 
 
 tioii is said to be a contract with all the world ; and the 
 parties to whom the notice is addressed ought not to be put 
 to the expense and trouble of attending the auction unless 
 the sale is to take place. It should be stated, therefore, in 
 the advertisements, that the estate will be sold by auction 
 at the place and time fixed upon, unlesrs previously sold 
 hy private contrctct; in which case notice of the sale shall 
 be immediately given to the public ; and notice should be 
 given accordingly. 
 
 If an auctioneer sell an estate without a sufficient au- 
 thority, so that the purchaser cannot obtain the benefit of 
 his bargain, he (the auctioneer) will be compelled to pay 
 all the coats which the purchaser may have been put to, 
 and the interest of the purchase-money, if it has been un- 
 productive (771). 
 
 If an attorney or agent bid more for an estate than he 
 was empowered to do, he himself would be liable ; but 
 it seems that his principal would not (n). But unless he 
 w^ere expressly limited as to price, and not enabled to go 
 beyond the limits of his authority, his principal would be 
 bound (0). 
 
 Where the principal denies the authority, and the agent 
 is compelled to perform the agreement himself, because 
 he cannot prove the commission, he may afterwards file a 
 bill against his principal, and if the principal deny the 
 authority, an issue will be directed to try the fact ; and^ if 
 the authority be proved, the principal will be compelled 
 
 (»i) Bratt T. Ellis, MS. Jones v. (0) Hicks t. Hankin, 4 Esp. Ca. 
 
 Dyke, MS. App. Nos, 7, 8. 114; see East India Company v. 
 
 (n) See Ambl. 498; 10 Ves. Hensley, 1 Esp. Ca. 112. 
 Jun.400. 
 
 (iun for this argument, the clause in question should not be permitted to 
 stand in its present shape. 
 
 to
 
 AXD PRIVATE CONTRACT. 37 
 
 to take the estate at the sum, which he authorized the agent 
 to bid (p). 
 
 If an auctioneer give credit to the vendee, or take a 
 bill, or other security, for the purchase-money, it is en- 
 tirely at his own risk : the vendor can compel him to 
 pay the money {q). As between an agent for the seller 
 and a purchaser, it seems that an agent with an undisclosed 
 principal may vary the terms of payment after the sale is 
 completed. The principal may interfere at any time be- 
 fore payment, [but not to rescind what has been before 
 done. This is essential to the safety of purchasers. But 
 if a man sell, acting as a broker, the moment the sale 
 is completed he is fundus officii. The terms of the con- 
 tract cannot then be altered except by the authority of the 
 principal {?'). 
 
 If a purchaser pay his money to the agent of the vendor 
 before the time when the latter is authorized to receive 
 it, he makes that agent his own for the purpose of paying 
 over the money to the right owner (i).' 
 
 The auctioneer should not part with the deposit until 
 the sale be carried into effect [t)', because he is considered 
 as a stake holder, or depositary of it (u). In a late case, where 
 the auctioneer was also the attorney of the seller, and paid 
 over the money to the seller, after he knew that objections 
 to the title had been raised, an action against him for the 
 deposit was sustained, but the judges cautiously abstained 
 from pointing out the duty of an auctioneer in any other ^^,^-/f.A 
 case {x\ y ^ 
 
 (p) ^^y^^ ^« Allen, MS. App, (/) Burroughv. Skinner, 5 Burr. 
 
 No. 9. 2639; Berry v. Youn.-, 2 Esp. Ca. 
 
 (q) Williams v. Millington, 1 6iO, n. ; Spurrier v. Elderton, 5 
 
 Hen.Blackst. 81 ; see Wiltshire r. Esp.Ca. 1; and see /jo*/, ch. 10. 
 
 Sims, 1 Camp. N. P. 258. (u) Jones v.Edney, cor. Lord 
 
 ( r) See Blackburn T.Scholes, 2 Ellenbojough. 4 Dec. 1812. 
 
 Campb. 343. (j*) See Edwards v. Hoddiiig, 
 
 (*) See Pariithcr t. Gaitskill,13 5 Taunt. 815, 1 Marsh. 377. 
 
 East, 432. D3 But
 
 88 OF SALES JJY AUCTION 
 
 But if upou a l)ill filed for an injunction, the court or- 
 der the deposit to he paid into court, it will, it seems, be 
 after deducting his charges and expenses (?/), although per- 
 haps this deserves re-consideration ; for the purchaser's deposit 
 may not ultimately be the fund out of which the auctioneer's 
 charges are to be paid. 7*' 
 
 In a case where 1000/. was paid as a deposit to an auc- 
 tioneer according to the conditions of sale, and the vendor op- 
 posed two motions by the purchaser, in an original and cross- 
 cause filed concerning the contract, for payment of the depo- 
 sit into court, and the auctioneer became a bankrupt, the loss 
 was holden to fall on the vendor, although the second motion 
 had succeeded, and the day named for payment of the money 
 into court was subsequent to the bankruptcy (z). And per- 
 haps a loss by the insolvency of the auctioneer will, in every 
 case, fall on the vendor, wiio nominates him, and whose agent 
 he properly is (a). 
 
 And unless an auctioneer disclose the name of his prin- 
 cipal, an action will lie against him for damages on breach 
 of contract ( V). 
 
 If an auctioneer do not insert usual clauses in the conditions 
 of sale, whereby the sale of the estate is defeated, he cannot 
 recover any compensation from the vendor for his services ; 
 and it is immaterial that he read over the conditions of sale 
 to the seller, who approved of them. The same rule of 
 course applies to negligence generally on the part of the auc- 
 tioneer, whereby the sale is defeated (c). 
 
 Where a man is completely the agent of the vendor, a 
 payment to him is in law a payment to the principal ; and 
 
 {y) Annesley v.Muggridge, 1 593, Smith v. Lloyd, 1 M add. 618. 
 
 Madd. 593. (6) Hanson T.Roberde8u,Peake''s 
 
 {z) Browne v.Fenton,ete coat. Ca, 120 ; see Simon t. Motives, 3 
 
 Rolls, 23 June, 1807, MS. ; S.C. Burr. 1921 ; Owen v. Goocb, 2 
 
 14 Ves. Jun. 141. Esp. Ca, 567 ; 12 Ves. Jun. 352, 
 
 (a) See 2 H.Blackst. 592 ; 13 484. 
 
 Ves. Jun. 602; 14 Ves. Jun. 150} (c) Denew v. Deterall, 3 
 
 Annesley, V. Muggridge, 1 Madd. Campb. 461, 
 
 in
 
 AND PRIVATE CONTRACT. 39 
 
 in an action against the latter for recovery of the deposit, it 
 is immaterial whether it has actually been paid over to him 
 or not {d). 
 
 It may here be remarked, that a deposit is considered 
 as a payment in part of the purchase-money (e), and not 
 as a mere pledge ; which was also the rule of the civil 
 law, where money Was given ; but, if a ring, &c. was 
 given by way of earnest, or pledge, it was to be return- 
 ed (/). 
 
 If, pending a suit for specific performance, a deposit be 
 laid out in the public funds under the authority of the 
 court, it will be binding on both vendor and vendee ; and, 
 if laid out without opposition by the seller, it must be pre- 
 sumed to be with his assent ; and, in either case, he must 
 take the stock as he finds it (g). 
 
 If a purchaser is entitled to a return of his deposit, he is 
 not compellable to take the stock in which it may ha\e 
 been invested, unless such investment were made under 
 the authority of the court, or with his assent. And an 
 assent will not be implied against a party because notice 
 was given to him of the investment, to which he made no 
 reply (h). Therefore, where the deposit is considerable, 
 and it is probable that the purchase may not be com- 
 pleted for a long time, it seems advisable for the parties 
 to enter into some arrangement for the investment of 
 the deposit, ^^-/n^^^l^ /^'~ ^^ ^i^^..^^. 
 
 As a vendor will not be subject to any loss by the invest- 
 ment of the purchase-money in tlie funds without his as- 
 sent, so he will not be entitled to any benefit by a rise in 
 
 (J) Duke of Norfolk v. Worthy, (/) Vinnius, L. 3, 24. 
 
 1 Camp. N. P. 337. (g) Poole v. Rudil, 3 JJro. CC. 
 
 (c) Pordage v. Cole, 1 Saund. 49; and see Doylt-y v, the Couri. 
 
 319; see Main v. Melbourn, 4 less of Fowls, 2 Bro. C.G 32, 1 
 
 Ves. Jun. 720 j Kliiiitz v. Surry, Cox, 206. 
 
 5 Esp. Ca. 267 j Ambrose v. Am- (A) Roberts v. Massey, 13 Ves. 
 
 brose, 1 Cox, 194. Jun. 561, 
 
 D 1 the
 
 40 OF SALES BY AUCTION. 
 
 the funds, although the purchaser gave him notice of the 
 investment ; tmlcss Kc (the vendor ) agreed to he bound by 
 tlie ap])ropriation. Sir WilHam Grant has observed, that 
 a deposit does not impose a liabiHty or responsibiHty upon 
 the party to whom notice of it is given ; throwing upon 
 him any risk as to the principaL The principal remains 
 entirely at the risk of the party making the deposit. He 
 cannot by depositing the money with his bankers, throw the 
 risk of their credit upon the other parties. They are not 
 called upon to express their opinion of that bank, or to say 
 any thing upon the subject. There is no difference be- 
 tween that and a deposit at the Bank of England, or a con- 
 version of the money into stock ; as the one party has no 
 more right to make the other consent to have the fund laid 
 out in stock than in a private bank (i). 
 
 No objection can be made to the whole of the deposit 
 required by the conditions, not being paid by the pur- 
 chaser ; if the vendor, after the sale, agree to accept a less 
 sum (A). 
 
 Although the deposit be forfeited at law, yet equity 
 will, in general, relieve the purchaser, upon his putting the 
 vendor in the same situation as he would have been in had 
 the contract been performed at the time agreed upon {l\ 
 But if a bill by a purchaser for a specific performance is 
 dismissed, the court cannot order the deposit to be returned : 
 as that would be decreeing relief {7n), 
 
 It is well settled, that assignees of a bankrupt are not 
 bound to take what Lord Kenyon calls a damnosa hceri- 
 dita.s, property of the bankrupt, which so far from being 
 valuable, would be a charge to the creditors ; but they may 
 
 (i) Roberts v. Massey, nbi sup, {/) Vernon v, Stephens, 2 P. 
 
 Acland v. Oainsford, 2 Mad. 28. Wms. 663 Moss v. Matthews, 3 
 
 (A)Ha»sonv.Roberdeau,Peake's Ves. Jun. 279, 
 
 Ca. 120 ; see ex parte Gwynne, (m) Bennet College t. Carey, 3 
 
 12 Ves. Jun. 378 5 and 1 Campb. Bro. C. C. 390. 
 Ca.427. 
 
 make
 
 AND PRIVATE CONTRACT. 41 
 
 make their election ; if, however, they do elect to take to 
 the property, they cannot afterwards renounce it, because 
 it turns out to be a bad bargain n\ This observation is 
 made as an introduction to a late case o), in which it was 
 decided that the assignees of a bankrupt could not be 
 charged as assignees of the lease, where they had not en- 
 tered into actual possession, but merely put up the property 
 to sale by auction without stating to whom it belonged, or 
 on whose behalf it was sold, and no person bid at the sale : 
 the court considered this as a mere experiment to enable the 
 assignees to judge, whether the lease were beneficial or npt, 
 and compared it to a valuation by a surveyor. If the as- 
 signees do accept the property, the bankrupt is by a late 
 act {p relieved from the rent and covenants, and the lessor 
 is enabled in a summary way to compel the assignees to 
 make their election either to accept the same or deliver 
 up the lease and possession of the estate. Upon this pro- 
 vision there is a great contrariety of opinion, whether the 
 effect of a disclaimer by the assignees, is to vest the property 
 in the bankrupt or the lessor. 
 
 Immediately after sale of an estate by auction, an agree- 
 ment {q) to complete the purchase should be signed by the 
 parties or their agent, because sales by auction of estates arc 
 within the statute of frauds [r) ; and consequently, the 
 contract could not be enforced against either of tlie parties 
 who had not signed an agreement. Although a man pur- 
 chase several lots, yet a distinct contract arises upon each 
 lot, and consequently if no lot is of the value of 20/. no 
 stamp is necessary, although altogether they are of more 
 
 («) See 7 East, 342. see ex parte Pomeroy, 1 Rose, 57; 
 
 (o) Turner v. Richardson, 7 ex parte Nixon, 1 Rose, 'H5. 
 East, 336; WIieelei\,v. Bramah, Zy (</> See a form of an agrefiment, 
 
 Campb. 340. ^v>^X^. >'<a2^t^j.\ppendix. No, 5. 
 
 (p) 19 Geo. III. c. 121, s. 19 ; (;) See post, ch. 3. 
 
 value
 
 42 OF SALKS JIY AUCTION 
 
 value (5), but they may all be comprised in one agree- 
 ment. 
 
 The abo^•c observation in regard to the necessity of a 
 written agreement, of course applies to sales by private 
 contract (/) ; as indeed do all the foregoing observations, 
 wlucli do not in their nature apply exclusively to sales by 
 auction. 
 
 As agreements for sale of estates arc generally entered 
 into by the attornies of the parties, it may in this place 
 be proper to observe, that where an attorney enters into 
 an agreement on behalf of his principal, the agreement 
 should be made and signed i n th e name ofjthe principal 
 h^ him, as^ attorney : for if an attorney covenant in his 
 own name for himself, his heirs, &c. he will himself be 
 personally bound, though he be described in the instru- 
 ment as covenanting for, and on the part of his prin- 
 cipal {u)} 
 
 Where an estate is sold in lots, whether by public auc- 
 tion or private contract, the vendor should take attested 
 copies of the parcels included in the different convey- 
 ances ; in order to satisfy a cautious purchaser of any part of 
 the estate, that no part of the estate bought by him, is in- 
 cluded in any of the conveyances to the other purcha- 
 sers. 
 
 It may here be observed, that if a man agree to 
 get another so much for his estate, and actually pro- 
 vide a purchaser with whom the o^vner agrees for the 
 sale of the property, at the sum stipulated, and a de- 
 posit is paid, the first agreement will be performed, al- 
 though the piuchaser cannot perform the agreement if 
 
 {s) Emmerson v. Heelis, 2 148 j Kendrayr, Hodgson, 5 Esp. 
 
 Taunt. 38. Ca . 228 ; see Duke of Norfolk t. 
 
 (OSeepos?, ch. 3 ; see a form Worthy, 1 Camp. N. P. 337; 
 
 of an agreement, Appendix, N0.6. Bowen r, Morris, 2 Tannt. 375. 
 
 (w) Appleton T. Binks, 5 East, 
 
 the
 
 AND PRIVATE CONTKACT. 
 
 tlic seller let him off, and retain the deposit as a forfei- 
 ture (a'). 
 
 V. By a late act (?/), the following duties are imposed 
 upon every valuation or appraisement of any estate, or ef- 
 fects, real or personal : or of any interest therein, or of the 
 annual value thereof; viz. where the amount does not exceed 
 50/. a duty of 9.S. 6d. ; where it exceeds 50/. but does not 
 exceed 100/. a duty of 5s. ; where it exceeds 100/. and does 
 not exceed 200/. a duty of 10^. ; where it exceeds 200/. 
 and does not exceed 500/. a duty of 15.?. ; and where it 
 •exceeds 500/. a duty of 20.y. 
 
 (jt) Horford v. Wilson, ITaunt. (y) 55 Geo. III. c. 184; see 
 
 12, Lees F. Burrows, 12 East, 1, 
 
 CHAP.
 
 [ 44 ] 
 
 CHAPTER 11. 
 
 OF SALES UNDER THE AUTHORITY OF THE COURTS OF 
 
 EQUITY. 
 
 SECTION I. 
 
 Of the Proceedings from the Advertisements to the 
 Conveyance. 
 
 We have already seen, that sales under the decrees of 
 the Court of Chancery, or Exchequer, are not liable to 
 the auction duty, and that public notice of a vendor's in- 
 tention to bid for the estate is not necessary, where a single 
 bidder is employed to prevent the estate from being sold 
 at an under value ; it follows, that no notice need be given 
 previously to the sale of an estate under a decree, of the 
 vendor's intention to buy -in the estate, if a particular price 
 be not bid for it. At the same time it must be observed, 
 that where a fraud is committed on the purchaser by puffing 
 at the sale, it cannot be supported any more than a sale by 
 auction under similar circumstances {z). 
 
 Where an estate is directed to be sold before a master, 
 the particulars of sale are prepared by the plaintiff's solici- 
 tor : after they are allowed by the master, the advertise- 
 ment for sale must be prepared, either by the plaintiff's so- 
 licitor, or by the master's clerk, and the signature of the 
 master must be obtained to authorize the insertion of the 
 advertisements in the Gazette. There are always two ad- 
 vertisements (a) : in the first po time is appointed for the 
 
 («) Vide supra, p. l8. (a) 2 Fowl. Prac. 305. 
 
 sale.
 
 OF SALF.S UNDER THE AUTHORITY, &C. 45 
 
 sale. About three weeks or a month after the insertion of 
 the first advertisement, a warrant must be taken out to fix 
 a time for the sale, and it must be served on all the parties' 
 clerks in court. The warrant being attended, the master, 
 with the approbation of all parties, will fix the time ; and 
 the second advertisement, which is usually called the pe- 
 remptory advertisement, stating the time, must then be pre- 
 pared, and inserted in the Gazette (b). The estate may 
 be sold either before the master ; or, if from the situa- 
 tion and nature of the estate the sale ought not to take 
 place in town, it may be sold in the country before the 
 master's clerk, or any other person authorised by the 
 master (c). 
 
 The plaintiff's solicitor should attend at the sale, which 
 is conducted in the following manner : The master's clerk 
 prepares a particular of the lots to be sold, with spaces 
 between each lot. The lots are successively put up at a 
 price offered by any person present, and every bidder must 
 sign his name and the sum he offers, in the space on the 
 particular, under the lot for which he bids, and formerly 
 2.9. 6d. was paid to the master's clerk for every bidding ; 
 but that regulation, which had a tendency to damp the 
 sale, has lately been very properly abolished, and in lieu of 
 the half-crowns, a sum is allowed to the clerk, as part 
 of the expences attending the sale. The best bidder is of 
 course declared the purchaser. If any lots are not sold, 
 they must be again advertised for sale {d). 
 
 The payment of a deposit, and the investment of it in the 
 funds, arc governed by the same rules as are adhered to 
 where the contract is between party and party {e). 
 
 The court will on motion discharge the purchaser, and 
 
 {b) Sre 1 Turner's Practice hy Fowl. Pract. 306, 307. 
 Ven. 127. (e) Hdc supra, p. 39; Am- 
 
 (c) See 2 Fowl. Prac. 305. brosc ?. Ambrose. 1 Cox. 19 1. 
 
 (d) See 1 Turn. Prac. 129 ; 2 
 
 substitute
 
 46 OF SALES r*:DER THE AITHOUITV 
 
 substitute any other person in his stead ; but this will not 
 })e (lone unless sucli person pay in the money, and an af- 
 Hdavit be made tliat there is no undcr-bargain, for the new 
 purchaser may give the other a sum of money to stand in 
 his place, and so deceive the court (/). Fonnerly the 
 practice seems to have been to require the consent of all 
 tlie parties in the cause, as well as the consent of the origi- 
 nal purchaser (g). 
 
 Although more of an estate is sold than is necessary for 
 the purposes of the trust by virtue of which the decree was 
 made, yet the purchaser can make no objection to it, the 
 decree being a sufficient security to him, as it cannot ap- 
 pear but that it was right to sell the whole. If, how- 
 ever, the decree were, that the master should sell Green- 
 acre, and he sells Blackacrc, an objection to the sale \Aoiild 
 be good (A) ; although it seems that it may be laid down 
 as a general rule, that a purchaser shall not lose the bene- 
 fit of his purchase by any irregularity of the proceedings 
 in a cause (i). If a decree is obtained by fraud, it may, of 
 course, be relieved against (A) ; and it has been said that a 
 purchaser is bound to see, that, at least as far as appears on 
 the face of the proceedings before the coiu-t, there is no fraud 
 in the case (/) ; but, if the court itself is imposed upon, it 
 would be a strong measure to imphj notice of the fraud to 
 the purchaser, from the very proceedings before the court. 
 
 (/) Rlgby V. M'Namara, 6 Ves Scho. and Lef. 566; Burke v. 
 
 Jun. 515; Vale v. Davenport, 6 Ciosbip; 1 Ball and Beat. 489; 
 
 Ves. Jun.615, Lightburne v. Swift, 2 Ball and 
 
 (g) Mathews y. Stubbs, 2 Bro. Beat 207 ; see Baker v. Morgan, 
 
 C. C. 291. 2 Dowe, 526. 
 
 (h) Lutwych v. Winford, 2 Bro. (/) Kennedy v. Daly, 1 Schoales 
 
 C. C. 248. and Lefroj, 355 ; Giffard v. Hort, 
 
 (0 Lloyd T. Jolines, 9 Ves. ib. 
 Jun. 37 ; Curtis v. Price, 12 Ves. (/) Gore v. Stacpole, 1 Dowe, 
 
 Jun. 89; Bennett v. Harnell, 2 30. 
 
 But
 
 OF THE COURTS OF EQUITY. 47 
 
 But a person liaving a legal lien, as a judgment creilrtor 
 not coming in under the decree, would not be bound by it, 
 and might proceed against the purchaser, unless he obtained 
 a legal interest overreacliing the lien, in which case the claim 
 being merely in equity, the court would protect the purcha- 
 ser buying under its decree (7??), or rather would not lend itsi 
 aid to the judgment creditor against him. 
 
 In sales by auction or private agreement, the contract is 
 eomplete when the agreement is signed; but a different 
 rule prevails in sales before a master ; the purchaser is not 
 considered as entitled to the benefit of his contract till the 
 master's report of the purchaser's bidding is absolutely 
 confirmed ; and I shall now proceed to show what steps a 
 purchaser must take to obtain an absolute confirmation of 
 the master's report. 
 
 The purchaser must, first, at his own expense, procure 
 a report from the master, of his being the best bidder for 
 the lot he has purchased. After the report is filed, and 
 an office-copy of it taken by the purchaser, he must, at 
 his own expense, apply to the court by motion, of which 
 no notice need be given (w), that the purchase may be coiv 
 firmed. Upon this application the order will be con- 
 firmed nisi (0), that is, unless cause be shewn against the 
 same in eight days after service. The purchaser must, at 
 his own expense, procure an office-copy of this order from 
 the register. If no cause be sho^Mi within the eight days, 
 the purchaser must, at his own expense, apply to the court 
 to confirm the report absolutely, which will be done of 
 course (p), on an affidavit of the service of the order (q), 
 and a certificate of no cause having been shown. Tlic ecr- 
 
 (♦«) Barrett v. Blake, 2 Ball (/)) For a form of tlic order, see 
 
 and Heat. 351. 2 Fowler's I'racf. 311. 
 
 (m) See Parker's Ani^Iysis, 141. (y) For forms of the aflidarit, 
 
 (0) For a form of the order, see s«'e 2 Turn. Tract- 503, 522. I'ar- 
 
 2 Fowler's Fract. 308, ker's Anal. 98 j 2 Fowl. Tract 3)0. 
 
 tificatc
 
 48 OF SALES UNDER THE AUTHOKITY' 
 
 tificate is obtained from the register by application to the 
 entering clerk, and leaving the order nisi the day before. 
 Notice of this application need not be given (r). 
 
 The bidder not being considered as the purchaser until 
 the report is confirmed, is not liable to any loss by fire or 
 otherwise w^hich may happen to the estate in the interim 
 [s), nor is he until the confirmation of the report compellable 
 to complete his purchase {t) ; but upon the report being 
 confirmed he will be compelled to carry the contract into 
 execution (w). 
 
 If the purchaser neglect to complete his purchase, the 
 practice is, to confirm the report, and then if the pur- 
 chaser is supposed to be responsible, to get an order to 
 inquire whether the party can make out a good title (a?), 
 and if he can, to obtain an order upon the purchaser to 
 complete his purchase {y) ; (I) but if the purchaser is 
 unable to complete his purchase, then on the report being 
 confinned, it is moved to discharge him from the bid- 
 ding {z), and notice of this motion must be given to the 
 
 (r) See 1 Turn. Pract. 129. (r) Notice must be given of tli^ 
 
 (*) Ex parte Minor, 11 Ves. motioo for this order. For a 
 
 Jun. 559 ; see 13 Ves. Jun. 518. form of the notice, see 2 Turner, 
 
 (t) Anon. 2 Ves. Jun. 335. 650. 
 
 (») Barker t. Holford, and (3/) See 2 Fowl. Pract. 3 1 8, 325. 
 
 Eggington v. Flavel, 2 Anstr. 344, (s) Cunningham r. Williams, 2 
 
 cited. Anstr. 344. 
 
 (I) A motion was made before Lord Erskine, that the purchase-money 
 should be paid in by the purchaser. The purchaser did not appear. Af» 
 ter consulting the Register, who had searched for precedents, and ex- 
 pressing his unwillingness to do any thing to prejudice sales by the court, 
 the Chancellor refused the motion^ but ordered the title to be referred to 
 the master, and then, he said, if a good title could be made, he would 
 compel payment of the money according to the usual practice. Anon. 
 Ch. 2-2d July, 1806, MS. 
 
 purchaser
 
 OF THE COURTS OF EQUITV. 49 
 
 purchaser (a). But a purchaser will not be permitted to 
 baffle the court ; and therefore, instead of discharging 
 the purchaser from his bidding, the court will, if required, 
 make an order that he shall, within a given time, pay the 
 money, or stand committed (b). 
 
 \Vlien the report is absolutely confirmed, the pur- 
 chaser is entitled to a conveyance on payment of the pur- 
 chase-money, and may, after giving notice of his inten- 
 tion (c), apply to the court for leave to pay his purchase- 
 money into the Bank {d), and to be let into possession 
 of the estate ; but this application should of course not 
 be made until the title be approved of {e). When the 
 money is paid according to the order, the purchaser 
 must, at his own expense, obtain a certificate of the pay- 
 ment of it. 
 
 If the estate be subject to an incumbrance, which ap- 
 pears upon the report, the purchaser should, after giving 
 notice of his intention ( /'), apply to the court for leave to 
 pay off the charge, and to pay the residue of the purchase- 
 money into the Bank. But where an incumbrance on the 
 estate does not appear on the report, and any of the par- 
 ties refuse, or are incompetent to consent, a purchaser can- 
 not apply any part of his purchase-money in discharge of 
 the incumbrance, though perhaps, if the parties be all com- 
 ])etent to consent and do consent, it may be done {g). 
 
 AVhere two or more persons purchase one lot, the money 
 must be paid altogether, the court will not allow them to 
 
 (a) For a form of the notice, see mouey into the Bank, see 1 Turn. 
 2 Turn. Pract. 651. Pract. 210 ; and for a form of the 
 
 (b) Lansdown v, Elderton, 14 order, see 2 Fowl. Pract. 313. 
 Xls. Jun. 512. (c) See 2 Fowl. Pract. 317. 
 
 ((•) For forms of the notice, see (/) For a form of such notice, 
 2 Turn. Pract. 647 ; Park. Anal. see 2 Turn. Pract. 6 18. 
 140. (fr) V. Slretton, 1 Ves. Jun. 
 
 (</) For the mode of paying the . 266, 
 
 E pay
 
 ^ or SALES UNDEIl THE AUTHORITY /I 
 
 pay tbcir proportions separately, on account of the confu- 
 sion which might ensue (A). 
 
 A purchaser under a decree is entitled to be let into 
 possession of the estate from the quarter-day preceding 
 his purchase, paying his money before the following one 
 (/). But this rule does net apply to a colliery, which is 
 considered as a trade. The profits arc settled monthly, 
 and therefore the purchaser is entitled to the profits only 
 from the commencement of the month in which he pur- 
 chased, paying his purchase-money in the course of that 
 month (/c). ^ 
 
 A purchaser is not entitled to the rents for a period beyond 
 the quarter-day preceding the pa}inent of his money, merely 
 because he has been ready to complete his purchase, and had 
 his money ready lying dead in a banker's hands, for he might 
 have moved to pay the money into court, when it would have 
 been laid out, and this if done by special application, would 
 not have been an acceptance of the title (/j. 
 
 If a purchaser enter into possession, he Avill be compelled 
 to pay the money into court, although he entered with the 
 permission of the parties in the cause. The court only can 
 give such permission (/«). 
 
 When the report is absolutely confirmed, and every 
 thing arranged, the draft of the conveyance must be 
 drawn by the purchaser's solicitor, and either settled by 
 the master, if the parties insist upon it, or, which is more 
 customary, by a conveyancing counsel of whom the mas- 
 ter approves. Sufficient time must be allowed for copies 
 to be made for such parties in the cause as require them, 
 and then warrants must be taken out to proceed OH the 
 
 (/T) Darkiti F. Marye, 1 Anst. 22. (A) Wien v. Kirton, 8 Ves. 
 
 (0 Twigg V. Fifield, 13 Ves. Jun. 502. 
 
 Jun. 517 ; see Garrick v. Earl (/)Barker v. Harper, Coop. 32. 
 
 Catndea, 2 Cox, 231. j vide post, (m) Aiion. L. I. Hall, l6 July, 
 
 ch. 10. 1816. MS. 
 
 draft.
 
 OF THE COURTS OF EQUITY. 51 
 
 draft. The master's clerk will, at the purchaser's ex- 
 pense, ingross the deed, procure the report or certificate 
 of its beijig allowed, and then deliver the deeds to the 
 purchaser, and it is usual to obtain the master's signa- 
 ture to every skin. The report must be filed, and an office- 
 copy of it taken {}i). 
 
 It is usual, however, to so word decrees, that the draft 
 shall not go before the master unless the parties differ. 
 Where this mode is adopted, the business is transacted in 
 the same way as upon a sale by private contract, unless 
 the parties cannot agree, in which case, resort is had to 
 the master. 
 
 When the deeds have been properly executed by all ne- 
 cessary parties, an affidavit of the due execution of them 
 must be made, and filed in the affidavit office, and an office- 
 copy of the affidavit must be taken : this being done, the 
 money directed to be paid in consequence thereof, may be 
 procured in the usual manner (o). 
 
 If the parties disagree as to the necessary parties, &c. 
 to the conveyance, tlie master will report his approbation 
 of the di-aft, as settled by him. To this report exceptions 
 may be taken (/>), and tlien the question will come before 
 the court in a regular way. 
 
 So if the parties differ as to the validity of the title to 
 the estate, the master must make his report upon tlie title, , 
 
 to which exceptions may in like manner be taken (</). 7i^^^^ 
 
 If an estate directed to be sold before a master, is sold by ' C^/ 
 
 private contract, or in any other manner contrary to the 
 order of the court, and not actually conveyed to the pur- 
 chaser, the court will not take notice of the sale, but will 
 direct the estate to be sold before the master according to 
 
 {n) 1 Turn. Pracf. 115. Pract. 328 ; Wakeman v. Duchess 
 
 (o) 1 Turn. Pract. 145. of Rutland, 3 Ves. Jun. 504. 
 
 (/>) Lloyd V. Griffith, 1 Dick. (7) For forms of exceptions, see 
 
 103 J Tipping v.Garlside, 2 Fowl. 2 Turn. Pract. 589. 
 
 E '^ the
 
 nQ 
 
 OF SAI-r..S UNDER THE AUTHOIIITY 
 
 the decree (?•). And a person who lias notice of tlie decree 
 cannot be advised to purchase the estate unless it be sold 
 before the master (s) : And the money should be paid into 
 court and not to the party {t). 
 
 If an estate be sold contrary to the order of the court, ami 
 the purchaser had notice of the decree, he will have no 
 remedy ; but if he bought without notice, he may recover 
 at law for breach of the agreement (u). 
 
 A sale before a master is not within the statute of frauds, 
 and after confirmation of the master's report of the best 
 purchaser, the sale will be carried into effect even against 
 the representative of the purchaser, although he did not 
 subscribe ; the judgment of the court taking it out of the 
 statute (x). 
 
 And even if the authority of an agent not being admitted 
 cannot be proved, yet if the mastei-'s report could be con- 
 firmed, the sale would be carried into execution unless 
 some fraud were proved (y). 
 
 (r) Annesley v. Ashurst, 3 P. 
 Wms. 282 ; see and consider ex 
 parte Hughes, 6 Ves. Jiin, 617, 
 
 (s) See 2 Vol. Ca. and Opin, 
 224, 225. 
 
 (0 See 2 Scho. and Lef. 581. 
 
 (m) Raymond t, Webb, Lofft, 
 66; See Mortlock v. Duller, 10 
 Ves. Jun. 314. 
 
 (j) Attorney.General v. Day, 1 
 
 Ves. 218. 
 (^)S.C. 
 
 SECT.
 
 OF THE COURTS OF EQUITY. .53 
 
 SECTION IT. 
 
 Of opening the BkUings, a7ul of rescinding the Contract. 
 
 1 HUS far we have traced a sale before a master where 
 no opposition is made to the absohite confirmation of the 
 master's report of tlie best bidder, and the sale is regu- 
 larly concluded. But where estates are sold before a 
 master under the decree of a court of equity, the court 
 considers itself to have a greater power over the contract 
 than it would have were the contract made betvrecn party 
 and party (,-) ; and as the chief aim of the court is to 
 obtain as great a price for the estate as can possibly be 
 got, it is in the liabit of opening the biddings after tlie 
 estate is sold. It seems to have been tliought that the 
 same rule may be extended to sales under a commission of 
 bankruptcy {a). This, howover, never has been done, 
 nor is there any reason to apprehend that so mischievous 
 an extension of the rule will ever take place. 
 
 Where a person is desirous of opening a bidding, he 
 must, at his own expense, apply to the court by motion 
 for that purpose, stating the advance offered. Xotice of 
 the motion must be given to the person reported tlie pur- 
 chaser of the lot, and to tlie parties in the cause (6). If 
 the court approve of the sum offered, the application will 
 be granted, and, on the order being drawn up, entered 
 and served, a new sale must be had before tlie master. 
 
 (i) See 1 P. Wms, 747- (^) I' or «i form of the notice, see 
 
 (a) Ex parte Partington, 1 IJall 2 Turn, Vract. 619, 650, 
 RnJ Beatty, 209. 
 
 E 3 The
 
 54 
 
 OF SALES UNDEll THE AUTJIOJIITV 
 
 The order is made at tlic expense of the person opening 
 the hiddings, and he must bear tlie expense of paying in 
 his deposit, and pay the costs of the first purchaser (c) : 
 and interest at the rate of 4/. per cent, on such part of the 
 purchase-money as the master shall find to have lain 
 dead {(f). 
 
 INlere advance of price, if the report of the purchaser 
 heing the best bidder is not absolutely confirmed, is suf- 
 ficient to open the biddings, .and they will be opened more 
 than once, even on the application of the same person, if 
 a sufficient advance be offered (c) ; but the court T^•ill 
 stipulate for the price, and not permit the biddings to be 
 opened upon a small advance ( /' ) ; and, although an ad- 
 vance of 10 per cent, used generally to be considered suffi- 
 cient on a large sum, yet no such rule now prevails (g) ; 
 but in the case of a sale under a creditor's suit, the court 
 permitted the biddings to be opened, upon an advance of 
 5 per cent, on 10,000/. {Ji^,^^:^ ^^;^::^ ^^^^Z^^. 
 
 The determinations on this subject assume a very dif-'=^-'^^' 
 ferent aspect when the report is absolutely confirmed."^. 
 Biddings are in general not to be opened after confirma- ^ ^^ 
 tion of the report (i) : increase of price alone is not suf- 
 
 (c)2Fowl.Pract. 318; 1 Tur- 
 ner's Pract. 131. 
 
 (rf) This was directed on open- 
 ing the biddings for Gen. Birch's 
 estate, MS. 
 
 (e) Scott v. Nlsbitt, 3 Bro. C. 
 C. 475 ; Hodges v. Jones, 2 Fowl . 
 Pract. 318 ; see Baillie v. Chaig. 
 neau, 6 Bro. P.C. by Toml. 313 ; 
 Preston v. Barker, \b Vee. Jun. 
 140. 
 
 (/) Anon. 1 Ves, Jun. 453 ; 
 Anon. 2 Ves. Jun. 487 } Upton v. 
 
 Lord Ferrers, 4 Ves, Jun. 700; 
 and Anon. 5 Ves. Jun. 148. 
 
 (§■) Andrews V. Emerson, 7 Ves. 
 Jun. 420; White t. Wilson, 14 
 Ves. Jun, 151. 
 
 (//) Brooks v.Snaith, 3 V^es. and 
 Bea. 144, 
 
 (0 2 Ves. Jun. 53 ; Scott t. 
 Nisbitt, 3 Bro. C.C. 475 j Boyer 
 V. Blackwell, 3 Anstr. QbQ ; Pri- 
 deau\ V. Prideaux, 1 Bro.C.C. 287, 
 2 Ves Jun. 53 j 1 Cox, 35. 
 
 ficient,
 
 OF THE COURTS OF EQUITY, 55 
 
 ficiciit, liowever large, althougli it is a strong auxiliary 
 argument where there are other grounds. 
 
 In a case ( A), however, before Lord Rosslyn, this rule, 
 although so frequently acknowledged and acted upon, was 
 not attended to, but biddings were opened after the report 
 was absolutely confirmed, merely on an advance of price. 
 This case is now completely overruled. 
 
 But very particular cirumstanees may perhaps induce 
 the court to open the biddings after confirmation of the 
 report, if the advance be considerable (I). 
 
 Thus, in a case ( / ) where the owner of the estate (who 
 joined in a motion for the purpose of opening biddings 
 after the report was absolutely confirmed) was in prison 
 at the time of the confirmation, and it appeared that he 
 would have opened the biddings before confirmation of 
 the report, had he been able, and had even directed per- 
 sons to bid more thakt^what the estate sold for, who de- 
 ceived him, and an advance of 4,000/. (being more than 
 one-fourth of the original purchase-money) was offered, 
 the biddings were opened on the deposit of the 4,000/. 
 being made. 
 
 Strong as the circumstances in this case were, Lord 
 Eldon, in a late case, expressed great disapprobation of the 
 decision, and determined generally, that after a purchaser 
 has confirmed his report, unless some particular principle 
 
 (/f)Chetham v. Grugeon, 5 Ves, sup.vihan Lord ConHiiissioiier. 
 
 Jun.86 ; and see his Lordship's de- (0 Wafsoii v. Birch, 2 \'ts. 
 
 cision inPrideaux V. Prideaux.Jiti Jim. 51 ; 4 Bro, C.C. 172. 
 
 (I) In Ireland a sale under a decree was actually set aside aftfr the pur- 
 chaser was put in possession, and the conveyance to him executed and re- 
 gistered, because another person offered 200/. more than the purchaser 
 had paid, Conranv. Barry, Vern. and Scriv. 111. See £j?/3rt;7<; Parting- 
 ton, 1 Bill and Beatty, 209. 
 
 E 4 arises
 
 56 OF SAI.ES UNDER THE AUTHOllITY 
 
 arises out of his character, as connected witli the owner- 
 ship of the estate, or some trust, or confidence, or his own 
 conduct in obtaining his report, the bidding ought not to 
 be opened (7«). 
 
 And Lord Redesdale, also, in a case before him, held 
 that biddings could not be opened after the report was 
 absolutely confirmed, unless, on the ground of fraud on 
 the part of the purchaser. And he considered it to the 
 advantage of suitors, to observe greater strictness in open- 
 ing biddings, as it would prociu-e better sales (??). 
 
 In a still later case, Lord Eldon adhered to the same 
 rule, and said that he could not do a thing more mis- 
 chievous to the suitors than to relax farther the binding 
 nature of contracts in the master's office : half the estates 
 that are sold in the court being thrown away upon the 
 speculation thai there will be an opportunity of purchasing 
 them afterwards by opening the biddings (o). 
 
 Fraud will of course be a sufficient ground for opening 
 the biddings. Therefore, if the parties agree hot to bid 
 against each other (p), or a survey be made of an estate 
 with some degree of collusion with the tenants ' q , and 
 it misrepresents the value and quality of the estate, and 
 some of the purchasers are aware of this fraud in making 
 the survey, and the owner is ignorant of it ; or the pur- 
 chaser of the estate be partner with the solicitor of the 
 cause, and is in possession of some particular knowledge 
 to the benefit of which the other parties were entitled (?') ; 
 in all these cases the court would open the biddings, al- 
 though the report had been absolutely confirmed. 
 
 (m) Morice v. the bishop of (/>) ?ee 2 Ves. Juii. 52. 
 
 Durham, 11 Ves. Jun. 57. (q) Ryder v. Gowe-rj 6 Bro. P, 
 
 (n) Fergus v. Gore, 1 Schoales C. 148 ; and see 2 Ves. Juu. 53, 
 
 and Lefroy, 350, (?•) Price v. Moxon, July 14, 
 
 (o) White V. Wilson, 14 Ves. 1754jbefore Lord Hard wicke ; see 
 
 Jun. 151, 6 Bro.P. C. 155, 2Ves, Jun. 54, 
 
 Where
 
 OF THE COURTS OF EQUITY. 57 
 
 AVliere tlie biddings are opened, the advance is ordered 
 to be deposited immediately {s\ and the costs of the 
 jjurcliaser to be paid by the persons opening the bid- 
 dings (t); but the court will not direct the master to 
 allow a specific expense i^tf). 
 
 If the biddings are opened, the estate may be allotted 
 for sale in a different manner to wliat it at first was (x). 
 
 As the biddings are opened for the benefit of the suitor, 
 no other person will be favoured in that respect. 
 
 Thus, upon a motion to open a bidding of 5,020/. {y) 
 upon the ground of mistake as to the time of sale, and an 
 over-bi^lding of 150/. ; the Lord Chancellor refused it, 
 saying, he would not open it for a less sum than 500/. and 
 that the circumstance that the bidder was too late, was no 
 ground at all. 
 
 The person who is desirous of opening the biddings hav- 
 ing been present at the sale, is no objection to their being 
 opened, althougli a greater advance may, on that account, 
 be required (z). Nor is it material that the applicant is en- 
 titled to a part of the produce of the estates (a^. 
 
 A man opening the biddings on behalf of a person 
 not in existence, will himself be decreed to be the pur- 
 chaser (h). 
 
 WTiere a person is permitted to open the biddings upon 
 the usual terms, paying the costs, and making a deposit, 
 and the estate is bought by another person, the person 
 opening the biddings is entitled to take back his deposit-: 
 
 (i) Anon. 6 V< ?. Jun. 513. (=) Rigl)y v.M'Namara, 6 Ves. 
 
 (/) See Watts ?, Martin, 4 Hro. Jim. 117; stc Tait v. Lord North- 
 
 C.C. 113 .andsee ibid. 178 ; Up- wick, 5 Ves. Jun. 655 ; scel5 Ves. 
 
 ton V. Lord Ftrrpre,4Vcs. Jun. 700. Jun. 14. 
 
 (w) Anon. 2 Ves, Jun. 286. (a) Hooper v. Goodwin, Coop.95. 
 
 (j.) Watti-y. Martin, 4 Bro. C. (b) Molesworth y. Opie, 1 Dick. 
 
 C. 113. 289, 
 
 (y) Anon. 1 Ves. Jun. 453. 
 
 but
 
 58 OF SALES UNDER THE AUTHOIUTV 
 
 l)ut he is not entitled to an allowance for his costs, as they 
 are in the nature of a premium paid by him for the oppor- 
 tunity of hidding (c). 
 
 Under special circumstances, liowever, they might be 
 allowed. If a person come forward for the benefit of the 
 family, and the estate at the first sale was knocked down 
 by mistake, or sold at a great undervalue, he will be allowed 
 his expenses (</). 
 
 It seems, that if a person purchase several lots of an es- 
 tate, and the biddings are opened as to one, he shall have 
 an option to open them all (e). 
 
 The authority which the court has over these contracts, 
 enables it in a proper case to relieve the purchaser as well 
 as the suitor. 
 
 Therefore, where the contract is inequitable, the pur- 
 chaser, on submitting to forfeit his deposit, will be dis- 
 charged from his purchase (J). AVhere, however, the 
 contract is not inequitable, a purchaser must proceed in 
 his purchase, and will not be permitted to forfeit his de- 
 posit, and abandon the contract, however disadvantageous 
 it may be. 
 
 Thus, on an application to the court by the persons who 
 opened the biddings for General Birch's estate (g), to for- 
 feit their deposit, which was resisted by the creditors for 
 whose benefit the estate was sold ; the court held the piu*- 
 chasers to their bargain, and would not permit them to re- 
 
 (c) Rigby V. M'Namara, 6 Ves. Ves. Jiin. 6. 
 
 Jun. 456 ; Earl of Macclesfield v. (e) See 2 Anstr. 657, 
 
 Blake, 8 Ves. Jun. 214 ; Trefusis (/) Savile v. Savile, 1 P. Wms, 
 
 V, Clinton, 1 Ves. and Beam. 361. 745, 
 
 (c/jEarl of Macclesfield V. Blake, (g) MS. and see SewellT.John- 
 
 ubisup,; Owenv. Foulks, 9 Ves. son, Bunb. 76. 
 Jun. 348 J West v. Vincent, 12 
 
 sciud
 
 OF THE COURTS OF EQUITY. 59 
 
 scind tlic contract, although they had given a price which 
 "vvas considered much beyond the vahie of tlie estate. 
 
 But where the purchaser lias by mistake given an un- 
 reasonable price for the estate, the court will in a proper 
 case totally rescind the contract. 
 
 This equity was enforced in the case of ISIorshead v. 
 Frederick [h), where it appeared that Smiths' the bankers, 
 were tenants in possession of the house in question, for 
 which they paid two rents, one a groinid rent of 5QL 
 to the defendant, and the other an improved rent of 210/. 
 to a third person. The house was directed to be sold, 
 under a decree ; and the plaintiffs, by a broker, treated 
 for the purchase of it, and employed him to value it. The 
 broker had an interview \\\\\\ the attorney concerned in 
 the sale, who stated, that the rent payable for the house 
 was the 56/. and the broker valued the estate accordingly. 
 A written agreement was not entered into, but the contract 
 was approved of by the master, and the money paid into 
 the Bank. Tlie purchasers then moved the court to rescind 
 the contract, on the ground of mistake, and the broker 
 proved that the purchasers had not informed him of the 
 rent of 210/. and that he was ignorant of the existence of 
 it at the time he made his valuation. And the court or- 
 dered the purchase-money to be re-paid, and rescinded the 
 contract. This, however, may be considered a strong case. 
 It might be argued that the purcliiisers' only equity was 
 their own negligence. 
 
 Although the solicitor in the cause buy-in an estate merely 
 to prevent a sale at an undervalue, yet if he acted without 
 authority he will not be discharged from his purchase. 
 Lord Eldon has said, that it would be a very wholesome 
 rule to lay down, that the solicitor in the cause should have 
 nothiiis: to do with the sale ; as the certain effect of a bid- 
 
 *& 
 
 (/t) Ch. 20 Feb, 1816. MS. App. No. 10. 
 
 ding
 
 60 
 
 OF SALES UNDEE THE AUTHOKl'JV, &;C. 
 
 ding by the solicitor in the cause is, that tlie sale is imme- 
 diately chilled (i). 
 
 The same rule has heen applied to assignees of a bank- 
 rupt, who, without authority, bought-in an estate ordered 
 to be sold by the court upon a petition of a mortgagee {^k). 
 
 (^) Nelthorpe V. Pennyman, 14 
 Ves. Jim, 517. 
 
 ii) Ex parte Tomkins, Ch. 23d 
 Aug. 1816. MS. App. No. 11. 
 
 
 
 /- 
 
 CHAP-
 
 [ 61 ] 
 
 CHAPTER ITT. 
 
 OF PAROL AGREEMENTS AND PAROL EVIDENCE. 
 
 W ITH a view to prevent main^ fraudulent practices 
 which were commonly endeavoured to be upheld by per- 
 jury, it was enacted by the 29 Car. 2. c. 3. usually called 
 the statute of frauds, that (/) " all leases, estates, in- 
 terests of freeholds, or terms of years, or any uncertain 
 interest of, in, or out of any messuages, manors, lands, te- 
 nements, or hereditaments, made and created by livery and 
 seisin only, or by parol, and not put in writin^j3y^ihe 
 parties so making or creating the same, or theiragents 
 thereunto lawfully authorized by^ writing, shall have the 
 effect of leases or estates at will, any consideration for mak- 
 ing any such parol leases or estates notwithstanding." 
 But, nevertheless, leases not exceeding three years, where- 
 upon^ the reserved rent should amount to two- third s ofjhc 
 full improved value, were excepted (w). The act then 
 requires the assignment, grant, and surrender of existing 
 interests to be made by ^vriting (n) ; and then (o) enacts 
 that " no action shall be brought, whereby to charge any 
 person upon any agreement made upon any contract, or 
 sale of lands, tenements, or hereditaments, or any interest 
 in, or concerning them (I), unless^ the agrecmeiitL upon 
 
 (0 Sect. 1. («)Sect, 3. 
 
 (m) Sect. 2. (o) Sect. 4. 
 
 (I) ''Or upon any agreement not to be performed within a year j" 
 wliich clause does not extend to any agreement concerning lands. Hollis 
 V. Edwards, 1 Vern. 159. It is quite clear, that an agreement for sale 
 of lands must be in writing, altiiough the contract is to be performed the 
 next day. ^e^ /S -T-jt^^^-^^i^-*^ o- ^l^^^fi^
 
 t)2 OF rAi:f)J. AGREEMENTS. 
 
 which sucli action shall be brought, or some mem oiandiim 
 or note thereof, shall be in writing, and signed by the party 
 to be charged therewith, or some other person the reunto b y 
 him lawfully authorized."^^ 
 
 In treating of these legislative provisions, we may con- 
 sider — 1, AVhat interests are within the statute — 2, What 
 is a sufficient agreement — 3, A^''hat agreements will be 
 enforced, although by parol ; and — 4, In what cases parol 
 evidence is admissible to vary or annul written instru- 
 ments. 
 
 SECTION T. 
 
 Of the Interests rvJiich are rdthin tlie Statute. 
 
 Jt was observed, in the case of Crosby v. Wadsworth (p), 
 that collecting the meaning of the first section by aid de- 
 rived from the language and terms of the second section, 
 and theexiception therein contained, the leases, &c. meant 
 to be vacated by the first section, must be undci'stood as 
 leases of the like kind with those in the second section, 
 but which conveyed a larger interest to the party than for 
 a term of- 3 years^ and such, also, us were made under a 
 rent reserved thereupon; and the court, therefore, de- 
 termined, that a sale of a standing crop of mowing grass, 
 then growing, \yas not within the first section of the sta- 
 tute, because neither of the foregoing circumstailccs were 
 to be found in the agreement, although, as the agreement 
 conferred an exclusive right to the vesture of the land 
 during a limited time, and for given purposes, it was, the 
 court held, a contract or sale of an interest in, or at least, 
 an interest concerning lands. 
 
 It was not, however, necessary in the above case, to 
 
 (;>) 6 East, 610. 
 
 decide
 
 OF PAROL AGREEMENTS. 63 
 
 decide upon the precise construction of the first section, wliich 
 seems in this respect to be co-extensive with the fourtli, 
 and, consequently, every interest which is within the fourth 
 section is equally within the first, unless it come within the 
 saving of the second section. The first and second sections 
 appear to enact, that all interests actually created without 
 writing, shall be void, unless in the case of a lease not ex 
 ceeding three years, at iparly rack-rent, which exception 
 must have been introduced for the convenience of mankind, 
 and under an impression that such an interest would not be 
 a sufficient temptation to induce men to commit perjury. 
 Perhaps, therefore, the first section ought to extend to every 
 possible interest, which is not within the exception in the 
 second clause. If an estate, of whatever value, should be 
 conveyed to a purchaser by livery of seisin, without writing, 
 tlic act would avoid the estate, although the purchaser 
 had paid his money. An actual lease for any given number 
 of years, whether with or without rent, or any interest un- 
 certain in point of duration, must, it should seem, equally fall 
 within the provision of the first section, and cannot be sus- 
 tained unless it come within the saving in the second section. 
 This, however, of itself, would not have prevented all 
 the evils which the act intended to avoid; for, although 
 actual estates could not be created, yet still ]iarol agree- 
 ments might have been entered into respecting the future 
 creation of them. To remedy this mischief, the provi- 
 sion in the fourth section was inserted, which, it is con- 
 ceived, relates not to contracts or sales of lands, &:c. but 
 to any agreement made upon any contract or sale of 
 lands, &c. (I), and as agreements were more to be 
 
 dreaded 
 
 (I) This appears to be the true reading of the statute, although this 
 Lraiuh of the fourth section has been sometimes read as a distinct clause, 
 
 iit
 
 64 OF PAROL AGREEMENTS. 
 
 dreaded tlian contracts actually executed, no exception was 
 inserted after the fourth section, similar to that which 
 follows the first section, and consequently an agreement 
 by parol, to create even such an interest as is excepted in 
 the second section, would be merely void. 
 
 If this be the trtle construction of the act, it answers 
 
 the 
 
 in which case the word agreement is dropped, and tlie clause runs thus, 
 '' no action to be brought upon any contract or sale of lands, &c." See 
 Anon. 1 Ventr. 361, and 6 East, 611 ; but this clause seems to be go- 
 verned by the preceding one in the same section, as to agreements made 
 upon consideration of marriage. The statute says no action to be 
 brought, " to charge any person upon afiy agreement made upon any 
 consideration of marriage, or upon [any agreement made upon] any 
 contract or sale of lands, &c." The words betwt^f n crotchets niu>t, it 
 is submitted, be implied. At (he same time, there is certainly ground to 
 contend, that the clause would have the same operation if not governed 
 by the words in the preceding clause. 
 
 The statute seems to have been strangely misunderstood in tlie case of 
 Charlewood v. Duke of Bedford, 1 Atk. 497, the report of which agrees 
 with the register's book. The object of the bill was to compel the per- 
 formance in specie of a parol agreement^ by the Duke's steward, to grant 
 a lease. The case, therefore, fell within the fourth section, but the de- 
 fendent pleaded the first, and to bring his case within it, stated the words 
 of the statute at the close of that section, to be '* Jiny contract for making 
 buch lease, or any former law to the contrary notwithstanding.'' The 
 words really are " any consideration, &c." The framer of the plea must 
 have adopted an error which has been sometimes entertained, that the 
 lirst section relates to leases, and the fourth to sales, and this notion 
 compelled him to alter the statute in the way he did, for he could not 
 otherwise have brought his case within it. It is cbservafble, that Lord 
 C B. Comyns, before whom the cause was heard, did nof. notice the 
 mistake. 
 
 Lord Keeper North seems to have entertained the erroneous opinion 
 above noticed ; for, in a case which came before him on a parol agree- 
 ment for a lease, he said, that the difficulty that arose upon the act was, 
 that it makes void the estate, but does not say the agreement itself shall 
 be void, and therefore, though the estate itself is void, yet, possibly, the 
 
 agreement
 
 OF PACOL AGREEIMENTS. 65 
 
 tlic piii*posGS for \\]iii'li it was passed, anil tlie question in 
 all cases must be — is the interest in dispute actually cre- 
 ated by tlie parties, or docs the contract rest in fieri f If 
 it be actually created, it is avoided by the first section, 
 unless saved by the second. If it be not actually created, 
 the agreement cannot be enforced by reason of the fourth 
 section, whatever be the nature of it. But if the first 
 section were to be restrained beyond tlie express provisions 
 of the second section, tlien, althougli every parol agree- 
 ment for any interest in lands v/ould l)e void, yet many 
 estates miglit still be actually raised by parol. The first 
 section, liowcvcr, seems to embrace interests of every de- 
 scription, whilst the exception relates only to leases of a 
 partienlar description. One consequence of qualifying 
 all tlie interests specified in the first section, in tlic manner 
 proposed by the aid derived from the second section, 
 would be, that an estate in fee might still, as formerly, 
 be conveyed by livery of seisin without writing. But if 
 the doctrine sliould even be confined to leases, yet it 
 would open a considerable door to perjury. If the two 
 requisites are to concur, to bring a lease within the first 
 section ; namely, a larger interest than that mentioned in 
 the second section, and a reserved rent, then it should 
 seem that a lease by parol for 1000 years without rent 
 would be valid, notwithstanding the statute. If even one 
 
 agreement matf xiihsist^ so that a man may recover <laiiiai;cs at law for the 
 non-perforin:\iice of it ; and if so, he should not doij!)t to decree it in 
 equity ; and he actually sent the parties to law, in order io have the 
 point decided, and for that purpose directed the defendant to admit the 
 agreement; Ilollis v. Edwards, I Vern. 159. The plaintilF was of course 
 nonsuited in the action, and thereupon Lord North dismissed the bill. 
 His impression before the trial must, it should seem, have been, that the 
 first section related to leases, and the fourth only to sales ; or at least, he 
 must have thought that the fourth did not embrace a<freemenls for 
 
 leases. 
 
 F Olilv
 
 66 OF PAROL AGREEMt:NTS. 
 
 only of these requisites be essential, yet cases of iinport- 
 ancc may be taken out of the act ; an estate, liowever 
 valuable, may be claimed under a parol lease for any 
 term short of three years without rent. This is the temp- 
 tation to perjury which the statute intended to remove. 
 And this mischief must necessarily follow, that if the 
 parties swear to an agreement for such an interest, it will 
 be within the statute ; whereas, if they swear to an actual 
 demise, the case will be taken out of tht statute. 
 
 The construction suggested in Crosby v. "Wadsworth, of 
 the 1st section of the statute, has since been attempted to 
 be extended to the 3d section. It has been contended 
 that the leases mentioned in the 3d section, as requiring 
 to be assigned by writing, must be intended such leases 
 as are required by the 1st and 2d sections of the statute 
 to be created by deed or writing, viz. leases conveying a 
 larger interest to the party than for a term of 3^ years ; 
 but the Lord C. Barou, at 7iisi prizes, ruled otherwise, 
 and appears to have held that although an interest was 
 created by parol, by virtue of the 2d section, yet it can- 
 not be assigned without a note in writing, by reason of 
 the 3d section {q). And even a tenancy from year to 
 year, created by parol, cannot be surrendered, although 
 by mutual consent by-parol (i*). 
 
 But it has been decided, that a mere license is not 
 within the first section of the statute of frauds. This was 
 decided in the case of Wood v. Lcike [s). A parol 
 
 (9)SeeBo<tingT Martin^I Camp. Brwkwell, 8 East 308; Rex ▼. 
 
 Ca. 13. butqu. wlutlier the agree- Inhabitantsof Standon, 2 Mau.and 
 
 merit or the assignment wan by pa- Selvr. 461' ; Tayler t Waters, 2 
 
 ro\. Marsh. 551; 7 Taiint. 374; Rex v. 
 
 (r) MoUelt V. Brayne, 2 Camp. Inhabitants of Horndon, 4 Mau- 
 
 ^ ^ M^<<?1-^ Ca. 103.x audSehv, 562. 
 
 /, yr V/ (0 ^j'yj -J ; and see Winter v. 
 
 V, ^«/7*<.w«^ ^ ,.raytj:. z,>o , ''^/irM^.^t)',^ <^ ^^^^-t^e^^rt^ agreement 
 
 ■^i'-O^e 

 
 OF PAP.OL AGREEMEXTS. 67 
 
 af^eement was entered into for liberty to stack coals on 
 part of a close for seven years, and that during this term 
 the person to whom it was granted should have the sole 
 use of that part of the close upon which he was to have 
 the liberty of stacking coals (I) ; Lee C. J. and Den- 
 nison held the agreement to be good. They relied upon 
 the case of Webb and Paternoster ( t), where they said it 
 is laid down, that a grant of a license to stack hay upon 
 land, does not amount to a lease of the land. As the 
 agreement in tlic present case >vas only for an casement, 
 and not for an interest in the land, it did not amount to 
 a lease, and consequently it was not within the statute of 
 frauds. Mr. Justice Forster concurred in opinion, that 
 the agreement did not amount to a lease, but he inclined 
 to be of opinion, that the words in the statute, any un- 
 certain interest in land, did extend to this agreement ; 
 but Lee and Dennison thought those words related only 
 to interests, which were uncertain as to the time of their 
 duration. After time taken to consider, it was holden, 
 that the agreement was good for the seven years. 
 
 The case referred to in Palmer, does not seem to bear 
 out the judgment in the above case : the decision turned 
 upon another point, but Montagu and Haughton both 
 thought, that that interest in that case was such as bound 
 the land in the hands of a subsequent lessee. That case 
 arose before the statute of frauds, and it would require a 
 considerable stretch to make it apply to a case since the 
 statute. No one will deny, that these cases are within the 
 mischief against which the legislature intended to guard. 
 In Wood and Lake, the plaintiff was to have the sole use of 
 
 (0 Fnlm.71. 
 
 (I) Sayer is but an inaccurate reporter. It is not state il, but it should 
 jeem, that an annual payment was reserved in rp^pect of the easement. 
 
 F 2 the
 
 68 OF PAKOr- AGREEMENTS. 
 
 tlic part of tije laud U(H)i) which he should stack hi.s coals. 
 How is this to be distinguished in substance from an ac- 
 tual demise for seven years ? It appears to be in tlie very 
 teeth of the statute, which extends generally to all leases, 
 csldtca or interests. The statute expresses an anxious 
 intention to embrace interests of every description. How- 
 can it be argued, that a license not countermandablc, and 
 which confers the sole use of a place on a man, is not an 
 interest within the statute? Upon -what principle is it, 
 that the person entitled to such an easement may main- 
 tain trespass ? This relaxation of the statute holds out a 
 strong temptation to a man in ])ossession of land, under a 
 parol agreement, to commit perjm-y, in order to insure to 
 himself a more permanent interest in the land than the 
 statute would permit him to claim, were the real trans- 
 action disclosed. The case of AVood v. Lake has, however, 
 been followed in several recent cases. 
 
 It has been decided, that if, after a lease has been granted, 
 the landlord makes improvements on the estate, in consider- 
 ation of an agreement to pay an additional sum per an- 
 num, the sum is not rent, and the agreement is collateral 
 to the lease ; and may therefore be recovered upon, although 
 by parol (?/). 
 
 The 4th section of the Act extends as well to interests 
 created de novo out of an estate, as to subsisting interests. 
 Tlierefore an agreement for an assignment of a lease will 
 not be binding, unless made in writing (.r). 
 
 In a case in Lord Raymond (?/), Treby, Chief Justice, 
 reported to the other justices, that it was a question be- 
 fore him at a trial at iiisi priiis at Guildhall, whether the 
 
 (u) Hoby v. Roebuck, 1 Marsh Poultney v. Holmes, 1 Str. 405. 
 433. {y) Anon. 1 Lord Raym. 182 ; 
 
 {x) Anon. 1 Ventr. 361 i see see Hob, 173, 1 Atk. 175. 
 
 sale
 
 OF PAHOL AGREEMENTS. 69 
 
 sale of timber, growing u])on the land, oiigiu to be in 
 ^vl•iting, by the statute of frauds, or might be by parol ? 
 And he was of opinion, and gave the rule accordingly, 
 that it might be by parol, because it was but a bare diat- 
 tel; and, to this opinion, Mr. Justice Powell agreed. 
 Tliis decision, however, may be thought to be overruled 
 by the late case of Crosl)y v. AVadsworth (z), where a sale 
 of a standing crop of mowing grass then growing was held 
 to be within tlie statute. 
 
 The distinction between tliem appears to be, tliat, in 
 this case, the exclusive right to the vesture of tlic land 
 was conferred during a limited period, whilst, in the for- 
 mer case, only a mere right of entry to cut and carry away 
 the trees would ha^/c been lield to pass. Indeed, it does 
 not appear by whom the trees were to be felled and car- 
 ried away. 
 
 In a recent case, however, the court expressed its disin- 
 clination to extend the case of Crotsby v. AVadsworth, 
 whi<.'h one learned judge referred to the circumstance, 
 that the grass was growing, and therefore the purchaser 
 had an intermediate interest in the land while the crops 
 were growing to maturity, before they were gathered. 
 Therefore a sale of potatoes in the groujid, and which had 
 never been severed, at so much a sack, to be taken away 
 immediately, was held not to be witliin the statute ; be- 
 cause the contract was confined to tlie sale o^ potatoes, 
 and nothing else was in the contemplation of the parties. 
 They were to be taken immeiUatehj, and it was quite ac- 
 cidental if they derived any further advantage from being 
 in the land. The purchaser had only an accommodation, 
 and no interest in the soil. The land was considered as a 
 mere warehouse for the potatoes {a). 
 
 {z) G East, 602, el supra; 11, per Mansfield C. J. 
 
 Watldington ▼. Bristow, 2 Bos. (a) Parker v.Stauiland, 1 1 East, 
 
 and Pull. 452 j aud see 2 Taunt. 362, 
 
 F 3 In
 
 70 OF PAROL AGREEMENTS. 
 
 In a case decided in tlic same tenn in the Coninion Pleas, 
 where growing turnips were sold, but no particular time 
 was stated for their removal, nor did it appear what the 
 degree of their maturity was, the court, without advert- 
 ing to these circumstances, held it to he a sale of an inte- 
 rest in land within the statute {b). It must be admitted 
 to be very difficult to distinguish the cases. 
 
 In a still later case (c), where potatoes stated to be then 
 growing; on 3^ acres of land, were sold by parol, at the rate 
 of 25/. per acre, to be dug and carried away by the purchaser, 
 but no thne was appointed for that purpose, it was decided 
 that the contract was not within the statute. Lord 
 Ellenborousrh said, that if this had been a contract con- 
 ferring an exclusive right to the land for a time, for the 
 pui*pose of making a profit of the growing surface, it would 
 be a contract for sale of an interest in or concerning lands, 
 and would then fall unquestionably within the range of 
 Crosby v. Wandsworth. But here is a contract for sale of 
 potatoes at so much per acre, the potatoes arc the subject 
 matter of sale, and whether at the time of sale they were 
 covered with earth in the field or in a box, still it was a sale 
 of a mere chattel ; it falls therefore within the case of Par- 
 ker V. Stanyland, and that disposes of the point on the sta- 
 tute of frauds. 
 
 If an entire agreement be made for the sale of real and 
 personal estate, and the agreement as to the land be within 
 the statute and void, it cannot be supported as to the per- 
 sonal property which was sold with it {d). 
 
 (b) Emerson V. Heelis, 2 420 ; Lea t. Barber, i^. 425, cited ; 
 
 Taunt. 38. see Chater v.Beckett 8 Term Rep. 
 
 (c) Warwick T. Bruce, 2 Mau. 201; and see Neal t. Viney, 1 
 
 and Selw. 205. Camp. Ca. 471 ; Corder v. Drake- 
 
 {d) Cooke V. Tombs, 2 Anst. ford, 3 Taunt. 382. 
 
 SECT
 
 OF PAROL AGREEMENTS. 
 
 SECTION II. 
 Of the Form and Signature of the Agt^eeineni. 
 
 V> E may now consider, first, what is a sufficient agree- 
 ment; 2dly, what is a sufficient signature by the party 
 or liis agent ; and 3dly, who \\ill be deemed an agent 
 lawfully authorized. And, 
 
 rii*st then, it is to be observed, that the statute re- 
 quires the_wnting to be signed onjx^ t lie pe rson to be 
 charged; and therefore, if a bill be brought against a 
 person who signed an agreement, he will be bound by it, 
 althougli the other party did not sign it, as the agreement 
 issigned by the jperson to be charged {e). This point has 
 been established by the concurrent authority of the Lord 
 Keeper Nortli, Lord Keeper Wright, Lord Chancellor 
 Hardwicke, Lord C. B. Smith, and Bathurst and Aston, 
 Justices, when Lords Commissioners, Lord Chancellor 
 Thurlow, Lord Chancellor Eldon, and Sir Wm. Grant. 
 Tiie legislature has expressly said, that the agreement shall 
 be binding if signed hy the pa?'ty to he cJuirged ; and as 
 
 (e) Hatton V. Gray, 1 Cha. Ca- ters, 5 East, 10 : Egerton v. Mat. 
 
 164 ; Cotton v. Lee, 2 Bro. C. C. thews, 6 East, 307, which do not 
 
 564; Coleman v. Upcot, 5 Viii. impeach this doctrine; see parti- 
 
 Abr. 527. pi. 17 ; Buckhouse v. cularly 5 East, 16; and Allen v. 
 
 Crossby,2Eq. Ca.Abr.32.pl. 44; Bennet, 3 Taunt. 169. As to 
 
 Seton V. Slade, 7 Ves. Jun. 265 ; Wain v.Warlters, sec Stadt T.Liil, 
 
 Fowle V. Freeman, MS. 9 Ves. 9 East, 348, 1 Camp. Ca. 242 ; 
 
 Jun. 355. S. C. ; see 1 Scho. and Ex parte Minet, 14 Ves. Jun« 
 
 Lef. 20; and 11 Ves. Jun. 592; 189; Ex parte G ax Aom^ 15 Ves. 
 
 W^estern r. Russell, 3 Ves. and Jun. 286 ; Batcman v. Philips, 15 
 
 Bea. 187; and see Wain v. War!- East, 272 y^^-^^J^-t^ , v^^^^/^ 
 
 F 4 ^ ^.^ •^F^.e^^^
 
 72 OF PAllOI. AGREEMENTS. 
 
 Lord H.'irdwic'.ke lias observed, the word parlij iu the sta- 
 tute is not to ])C construed imrty as to a deed, but person 
 in general ( /') ; but there have been instances in vs hich the 
 want of the signature to the agreement by the party seek- 
 ing to enforce it has been deemed a l)adge of fraud (,e) ; but, 
 perliaps, the transaction ought not to be viewed in tliat 
 light, unless the other party called on the party who had 
 not signed to execute it, in v^^hich case a refusal to sign 
 might be held to operate as a repudiation of the contract {h). 
 
 In a late case, Lord C. J. Mansfield observed, that in 
 equity a contract signed by one party would be enforced, 
 and it was not clear that it was different at law (i), The 
 rule in equity, it is conceived, is founded simply on the 
 words of the statute, which must be equally binding on 
 the courts of law. There is not an objection \\hich can 
 be made to the rule as applicable to an action at law which 
 will not apply with equal force to a suit in equity. In a 
 later case, accordingly, upon the 17th section, the same 
 learned judge observed, that every one knows it is the 
 daily practice of the Court of Chancery to establish con- 
 tracts signed by one person only, and yet a court of equity 
 can no more dispense with the statute of frauds than a 
 court of law can (k). Lord Eldon has observed, that equity 
 has not upon these points gone farther than courts of law : 
 what is the construction of the statute, what within the 
 legal intent of it will amount to a signing, being the same 
 questions in equity as at law. Upon that point, equity pro- 
 fessing to follow the law, if a new question should arise, his 
 Lordship said, that he would rather send a case to a court 
 of law (/). 
 
 (/) Sees Atk. 503. 374. 
 
 (g-) See O'Rourke v. Percival, (/;) Atlen t. Bennet, 3 Taunt. 
 
 2 Ball and Beatty, 58. 176. 
 
 (/O S«e2 Ball and Beatty, 371. (/) 18 Ves. Juu. 183. 
 
 (i) Bowen v, Morris, 2 Taunt, 
 
 If
 
 OF PAHOL AGREEMENTS. 73 
 
 If a written agreement has been in part executed, it 
 seems that an agreement subsequently entered into between 
 the parties, and reduced into writing, will bind them both, 
 if signed bjr^^ne qf[^thein (w). 
 
 A receipt for the purchase money may constitute an 
 agreement in writing Avithin the statute (n) ; and it has 
 frequently been decided, that a note or letter will be a 
 sufficient agreement to take a case out of the statute (o) ; 
 biit_eyery agreement must be stamped bef ore it can be 
 read (p) ; and, as this ought to be done, the court will 
 permit the cause to stand o^er to get the agreement 
 stamped, and will assist either party in obtaining it for 
 that purpose. 
 
 Thus, in Fowle v. Freeman {q), the agreement was sent 
 by the vendor to his attorney, with a letter written at the 
 bottom, directing him to prepare a technical agreement. 
 The vendor afterwards refused to perform the contract, and 
 the attonicy would not deliver the agreement to the pur- 
 chaser for the purpose of getting it stamped, contending, 
 tliat it was a private letter to him ; but the court, on motion, 
 ordered it to be delivered to the purchaser for that pui"pose. 
 
 But if the affreement is admitted bv the answer so as to 
 dispense with Ihe necessity of proving it, the office copy 
 of the bill, or, if the defendant refuse to produce it, the 
 record itself, may be read in support of the plaintiff's case, 
 and need not be stamped, nor can the fact of the agree- 
 ment not being stamped be taken advantage of (?-). 
 
 (w) Owen V. Davles, 1 Ves. 82. (q) Rolls, March 8, 1801, MS. 
 
 (n) Coles V. 'I'recothick, 9 Ves. 9 Ves. Jun. 351. S. C. but not re- 
 
 Jun. 234 ; Blagden v. Bradbear, ported as to this point ; Sec vifra, 
 
 12 Ves. Jun. 166. ch. 4. s. 3 ; Clarke t. Terrel, 1 
 
 (o) C oleman v. Upcot, 5 Vin. Smith's Rep. 399 ; Coles t. Treco- 
 
 Abr. 527. pi. 17 ; Burkhouse v. thick, 9 Ves. Jun. 234. 
 Crossby, 2 Eq. Ca. A br. 32. pi. 44. (r) Huddleston t. Briscoe, 1 1 
 
 (p) Ford V. Compton ; Hearne Ves. Jun. 583. 
 
 V James, 2 Bro. C.C. 32, 309. 
 
 If
 
 74 OF PAllOL AGllEEMENTS. 
 
 If, upon a treaty for sale of an estate, the o^vncr write 
 a letter to the person wishing to huy it, stating, that if 
 he parts with the estate it shall be on such and such terms 
 (specifying them) ; and such person, upon receipt of tlie 
 letter/ accepts the terms mentioned in it, the owner will 
 be compelled to perform the contract in specie (.s). 
 
 So, if a man (being in company) make offers of a bar- 
 gain, and then write them down and sign them ; and ano- 
 ther person take them up and prefer his bill, that will be a 
 sufficient agreement to take the case out of the statute (/). 
 
 But if it appear that, on being submitted to any person 
 for acceptance, he had hastily snatched it up, had refused 
 the owner a copy of it ; or if, from other circumstances, 
 fraud in procuring it may be inferred, it seems that in 
 case of an action it will be left to the jury to say whether 
 it was intended by the defendant, at first, to be valid 
 agreement on his part, or as only containing proposals in 
 writing, subject to future revision {u) : and if the aid of 
 eipiity be sought, these circumstances would have equal 
 weight with the court. So in every case it must be con- 
 sidered, whether the note or correspondence import a con- 
 cluded agreement : if it amount merely to treaty, it will 
 not sustain an action or suit {x). 
 
 The nete or writing must specify the terms of the 
 agreement, for otherwise all the danger of perjury 
 which the statute intended to guard against, would be 
 let in. 
 
 Thus, upon the sale of nine houses which were in 
 mortgage, the vendor wrote a letter to the mortgagee to 
 this effect : " Mr. Leonard, pray deliver my writings to 
 
 (*) Coleman v. Upcot, 5 Vin. Esp. Ca. 189. 
 
 Abr. 527. pi. 17. see Gaskarth v. (x) HuddlestoD t. Briscoe, 11 
 
 Lord Lowther 12 Ves. Jan. 107. Ves, Jun. 583. Stratford t. Bos. 
 
 (I) S. C. Per Lord Chancellor. worth, 2 Ves. and Bea, 341. 
 
 (u) See Knight t, Crockford^ 1 
 
 the
 
 OF TAEOL AGREEMENTS. 75 
 
 the bearer; I having disposed of them. Am, &c." The 
 vendor afterwards refused to perfonn the contract, and 
 pleaded the statute of frauds to a bill filed by the pur- 
 chaser for a specific performance, and the plea was allow- 
 ed ; because it ought to be such an agreement as specified 
 the terms thereof, which this did not, though it was 
 signed by the party ; for this mentioned not the sum that 
 was to be paid, nor the number of houses that were to be 
 disposed of ; whether all, or some, or how many ; nor to 
 whom they were to be disposed of; neither did this let- 
 ter mention whether they were disposed of by way of sale 
 or assignment of lease (?/). 
 
 So where (~^, upon a parol agi'eement, the vendor sent 
 a letter to the purchaser, informing him that, at the time 
 he contracted for the sale of the estate, the value of the 
 timber was not known to him, and that he ( the purchaser) 
 should not have the estate, unless he would give a larger 
 price ; Lord Hardwicke held, that the letter could not be 
 sufficient evidence of the agreement, the terms of it not be- 
 ing mentioned in the agreement itself. 
 
 So in a recent case, where an auctioneer's receipt for 
 the deposit was attempted to be set up as an agreement, 
 the IMaster of the Rolls rejected it, because it did not state 
 the price to be paid for the estate ; and it could not be col- 
 lected from the amount of the deposit, as it did not appear 
 what proportion it bore to the price (a). 
 
 And here we may notice a case where an agreement was 
 
 (i/)Seagoodv.MeaIe, Prec. Cha. Smith, 15 East, 103, all three 
 
 560jRose v.Cunynghame, 11 Ves. cases on the 17th section. 
 Jun.550; Card v. Jaffray, 2 Scho. (s) Clerk t. VVright. 1 Atk. 12; 
 
 and Lef. 374 ; Lord Ormond v. and see Clinan t. Cooke, 1 Scho. 
 
 Anderson, 2 Ball and Beat. 363. and Lef. 22. 
 and see Champion r. Pluromer, 1 (a) Blagden v. Bradbear, 12 
 
 New Rep. 252; Hinde v. White- Ves. Jun. 466. 
 house^ 7 East, 558. Cooper t. 
 
 executed
 
 76 OF PAROL a(;ree^ients. 
 
 executed whicli referred to certain covenants wliicli liad 
 been read, contained in a described paper, which, in fact, 
 contained tlie terms of the agreement. It appeared that 
 all the covenants contained in that paper had not been 
 read ; and which of them had been read, and wliich had 
 not was the difficulty, which could only be sohcd by 
 parol testimony ; and Mr. Justice Bullcr held clearly that 
 SAich evidence was inadmissible ( h), as it would introduce 
 all the mischiefs, inconvenience, and uncertainty the sta- 
 tute was designed to prevent; and Lord Redesdale has 
 since mupialificdly approved of this decision (c). 
 
 Neither will a performance be compelled on a note or 
 letter, if any error or omission, however trifling, appear in 
 the essential tenns of the agreement. 
 
 Thus in a case (^/ 1 (I) before Lord Hardwicke, the 
 bill was brought to have a specific performance of an 
 agreement, from letters wliich had passed between the 
 parties. It appeared, that a certain number of years pur- 
 chase was to be given for tlie land, but it could not be 
 
 {b) Brodie v. St. Paul, 1 Ves. (d) Lord Midd!e(on v. Wilson^ 
 
 Jun. 326 ; Higginson v. Clowes, el e contra Chan. 1741, MS.: S.C^ 
 
 15Ves.Jun.516; Lindsay v. Lynch, Loft't, 801, cited ; See 9 Ves. Jun. 
 
 2 Scho. and Lef. 1. 252 ; Slokes v. Moore, 1 Cox,2i9, 
 
 (c; 1 Scho. and Lef. 35 ; and see l'ov»ham v. Eyre, Lofft, 786 ; Gor- 
 
 O'Herlihy v. Hedges, ibid^ 123. doii v. Trevalyan, 1 Price, 64. 
 
 (I) The case is in Reg. Lib. 1741, fo. 260, by the name of Lor4Mid- 
 dleton V. Eyre. The estate was sold by an agent to Dr. W^ilson, by parol, 
 and the parties appear to have bound themselves by letters, the particulars 
 of which, however, do not appear in the Register's book. The parties 
 beneficially interested, afterwards sold the estate for a greater price, to 
 Lord Middleton, who filed a bill for a specific performance of the agree- 
 ment, and Dr. Wilson filed a cross bill. The cross bill was dismissed 
 with costs, and in the original cause a specific performance was decreed. 
 The point in the text is not stated in the Register's book. 
 
 ascertained
 
 OF PAROL AGREEMENTS. 77 
 
 ascertained whether the rents upon a few cow-gates were 
 .5s. or Is. ; and although there was no other doubt, Lord 
 Hardwicke held, that such an agreement could not be 
 carried into execution. He said, that in these cases it 
 ought to be considered, whether at law the party could re- 
 cover damages ; for if lie could not, the court ought not 
 to carry such agreements into execution. 
 
 Lord C. J. jManslield lately observed, that there had 
 been many cases in Chancery, some of which he thought 
 had been carried too far, where the court had picked out 
 a contract from letters, in which the parties never cer- 
 tainly contemplated that a complete contract was con- 
 tained (e). 
 
 But although a letter do not in itself contain the whole 
 agreement, yet_jf it actually refer to a writing that 
 does Uiat will be^siifficient, aUliough such writing is not 
 signed^ 
 
 Thus in a case where an estate was advertised to be let 
 for 3 lives, or 31 years, aud an agreement was entered 
 into for a lease, in which the term for which it was to be 
 granted was omitted ; Lord Redesdale held, that if the 
 agreement had 7'eferred to the advertisement, parol 
 evidence might have been admitted to shew what was the 
 thing (namely the advertisement) so referred to, for then 
 it would be an agreement to grant for so much time as 
 was ex])ressed in the advertisement ; and then the identity 
 of the advertisement might be proved by parol evidence 
 ( /). And the Master of the Rolls, in a late case, expressed 
 Ills opinion, that a receipt which did not contain the terms 
 of the agreement, might have been enforced as an agree- 
 ment, had it referred to the conditions of sale, which 
 
 ((■) 3 Taunt. 172. Whitehouse, 7 East, 558 ; Feofloes 
 
 (/) See Clinan V. Cooke, iScho. of Ilerriot's Hospitalj y. Gibson, 
 
 and Lef. 22; and see Cass v. Wa- 2 Dow, 301. 
 
 terhouse, Prec. Cha, 29^ Hinde t. 
 
 %vould
 
 78 OF PAIJOL AGREEMENTS. 
 
 would have entitled the court to look at them for the 
 terms (g). 
 
 So an agreement not containing the name of the buyer 
 may be made out by connecting it with a letter from the 
 buyer on the subject [h). 
 
 In a case (i) where an agreement for sale was reduced 
 into writing, but not signed, owing to the vendor having 
 failed in an appointment for that purpose; the vendee's 
 agent wrote to urge the signing of the agreement ; and 
 the vendor wrote in answer a letter, in which, after stat- 
 ing his having been from home, he said, " his word should 
 always be as good as any security he could give." And 
 this was held by Lord Thurlow to take the case out of 
 the statute, as clearly referring to the written instrument. 
 The ground of this decision was, that the vendor had 
 agreed, by writing, to sign the agreement. If he had 
 said he never would sign it, he could cot have been 
 bound ; but if he said he never would sign it, but would 
 make it as good as if he did, it would be a promise to 
 perform it; if he said he would never sign it, because 
 he would not hamper himself by an agreement, it woiild 
 be too perverse to be admitted {k). It appears, however, 
 that Lord Thurlow was diffident of his opinion in this 
 case ; and Lord Redesdale has declared, that he had often 
 discussed the case, and he could never bring his mind to 
 agree with Lord Thurlow's decision, because he (Lord 
 R.) thought the true meaning of the agreement was, *' I 
 will not bind myself, but you shall rely on my word (/}." 
 
 (g) Blngdenv.Bradbear, 12Ves. C. C. l6l, 318 ; and see Forster 
 
 Jun, 466; aud see Shippey v. Der- v. Hale, 3 Ves. Jun. 696 ; Cooke 
 
 rison, 5 Esp. Ca. 190 ; Hiade v. v. Tombs, 2 Anstr, 420 ; Saunder- 
 
 Whitehouse, 7 East. 558. son v. Jackson, 2 Bos; and Bull. 
 
 (k) Allen V. Beanet, 3 Taunt. 238, aud 9 Ves. Jmi. 250. 
 
 169; Western v. Russell, 3 Ves. {k) Per Lord Thurlow, 3 Bro. 
 
 aniBea. 187. C.C, 320. 
 
 (t) Tawuey T.Crowtherj 3 Bro. {1} See 1 Scho. and Lef. 34. 
 
 But
 
 OF PAROL AGREEMENTS. 79 
 
 But in these cases there must be a clear reference to the 
 particular paper, so as to prevent the possibility of one 
 paper being substituted for another (w). 
 
 And if the agreement is defective, and the letter refers 
 to a different contract from that proved by the opposite 
 party, the letter cannot be adduced as evidence of the 
 contract set up. The letter must be taken altogether, 
 and if it fakify the contract proved by the parol testimony, 
 it mW not take the case out of the statute (n). 
 
 As we shall hereafter see, an auctioneer is an agent 
 lawfully authorised for the vendor and purchaser within 
 the statute. Upon the sale of estates by auction, a de- 
 posit is almost universally paid, for which the auctioneer 
 gives a receipt, referring to the particulars, or indorsed 
 on them, and amounting, in most cases, to a valid agree- 
 ment on the part of the vendor within the statute (o). 
 And it seems that a bill of sale, or entry by the auctioneer, 
 of the account of the sale in his books, stating the name 
 of the owner, the person to whom the estate is sold, and 
 the price it fetched, would be deemed a sufficient memo- 
 randum of the agreement to satisfy the statute (p). This 
 however, it clearly would not, unless it either contained 
 the conditions of the sale and the particulars of the pro- 
 perty, or actually referred to them, so as to enable the 
 court to look at them (</). 
 
 A note, or letter, written by the vendor to any third 
 person, containing directions to carry the agreement into 
 
 (m^ Boydell v. Drummond, 11 sell v. Cooke. Prer. Cha. 533; 
 
 East, 142. Charlewood v. Duke of Bedford, 
 
 (n) Cooper v. Smith, 15 East, lAtk. 497. Ramsbottom v. Mort- 
 
 103- ley, 2 Mau. and Solw. 445. 
 
 (o) See Blagden v. Bradbear, l2 (q) Blagden v.Bra<ihea.r,ubis?ip. 
 
 Ves- Jun. 466, e/ jupra. Hinde v. Whitohouse, 7 East, 
 
 (p) See Einmerson t. Heclis, 2 558. 
 Tauot. 38, et infra ; but sec Mus- 
 
 execution.
 
 80 OF PAROL ACiUEEMENTS. 
 
 execution, will, subject to the bcfore-mcutioued rules, be 
 a sufficient agreement to take a case out of tlie statute 
 (?'). This was laid down by Lord Hardwicke, who said, 
 that it had been deemed to be a signing within tbe sta- 
 tute, and agreeable to the provision of it. And the point 
 was expressly determined, in the year 1719, by the court 
 of Exchequer (-v). — Upon an agreement for an assign- 
 ment of a lease, the owner sent a letter specifying the 
 agreement, to a scrivener, with directions to draw an as- 
 signment pursuant to the agreement; and Chief Baron 
 Bury, Baron Price, and Baron Page, Avere of opinion, 
 that the letter was a writing within the statute of frauds. 
 And the same doctrine appears to apply to a letter writ- 
 
 ^U ^.j^t^" by ^ pui'chaser ( t). 
 
 /^ (^1 In Cooth V. Jackson {iC) Lord Rosslyn put the case of 
 
 a bond of reference to a surveyor, the price to depend 
 upon his valuation, only to ascrtain how much an acre 
 the purchaser was to pay for the land. And his Lord- 
 ship said, he should conceive that not to be within the 
 statute. 
 
 But rent-rolls, particulars of estates, abstracts, &c. de- 
 livered by the vendor on the treaty for sale, will not be 
 considered as an agreement, although signed by him, and 
 containing the particulars of the agreement ; nor will let- 
 ters written, or representations made by him, to creditors, 
 concerning the sale, receive that construction. 
 
 Thus, in a case {x) where A agreed by parol with B 
 for the purchase of lands; shortly afterwards, a rent-roll 
 was delivered to A, which B dated and altered in his 
 
 (r) Welford 1. Beazely, 3 Atk. {t) Rose v. Cunyngliame, j1 
 
 503 ; see Seagood t. Meale, Prec. Ves. Jun. 550. 
 Cha. 560 ; Cooke v. Tombs, 2 (u) 6 Ves. Jun. M. 
 
 Aostr. 420. (at) Whaley v. Bagenel, 6 Bro. 
 
 (*) Snaith v. Watson, Bunb. SB^ P. C. 45. 
 S.C, MS. 
 
 own
 
 or PAEOL AGREEMENTS. 81 
 
 own hand- writing ; and it was entitled, " I^ands agreed 
 to be sold by B to A from, kc. at twenty-one years pui-- 
 c'hase, for the clear yearly rent." An abstract of the title, 
 also stating the contract, wa,s delivered by A's agent, and 
 also further particulars and ])apers at different times. B 
 also wrote to several of his creditors, informing them that 
 he had agreed with A for the sale of the estate, at 21 
 years purchase; referred tenants to A as owner of the 
 estate ; and set up the contract as a bar to an elegit. B 
 afterwards refused to perform the agreement ; and to a 
 bill filed for a specific performance, pleaded the statute 
 of frauds, and the plea was allowed. 
 
 So, in a latter case (?/), upon a bill filed by a vendee, 
 for a specific performance of a parol agreement for salo 
 of lands ; it appeared that the vendor gave the purchaser- 
 a particular of the property to be sold, with the terms 
 and conditions, all iu his own hand-writino-, and sio'ned 
 by him ; and it was afterwards delivered by agreement 
 of both parties, to an attorney to prepare the conveyance 
 from ; w'ho prepared a draft, and brought it to the par- 
 ties, and they read over and approTcd of it, and agreed 
 to execute the same, whenever a fair copy coidd be wTit- 
 ten out. The defendant, however, refused to fulfil his 
 part of the agreement, and pleaded the statute of fvauds 
 to the bill ; and, as the particular was delivered at the 
 outset of the treaty, no agreement being then made, the 
 court held it could only be delivered as a list or catar 
 loguc of the matters for sale, to enable the purchaser to 
 form a proper estimate of tlicir value ; tliat tlio signing 
 the particular could have no other effect tlian to gi\e it 
 authenticity, as a true list of the items then offered for 
 sale ; and that the subsequent acts could not affect the 
 
 (^) Cooke V, Toinbsj 2 Aust. 120; ami see Cass v. WulerbousCi 
 
 Itcc. Cha. 29, 
 G original
 
 ^3 OF TAROL A(niEEMENTS. 
 
 original iiuturc of the j .articular, and turn it into an 
 agrecnicnt. 
 
 Altlioiigh an agreement be reduced into ^vriting, by a 
 > person present at tlie making of it, yet if the parties do 
 not sign it, tliey will not be l)ound by it (r.). 
 
 If an agreement contain all the terms, the sending of it, 
 as instructions to a person to prepare a proper agreement, 
 will not be deemed an intention to extend the agreement, 
 but merely to reduce it into technical language. 
 
 Thus, in Fowlc v. Freeman {a), after some treaty for 
 the purchase of an estate, certain terms were agreed upon 
 and written do^Mi by Freeman the vendor, and afterwards 
 written out by him, as an agreement, ^iz. — " March 
 12th, 1803. I agree to sell to IMr. Fowle, my estate, &c. 
 for the sum of 27,000/. upon the following conditions, 
 &c." ( stating them ). Freeman signed this agreement, 
 and read it to FoAvle, who approved of it. Freeman then 
 underwrote a letter to his solicitor in town to the follow- 
 ing effect : — " Sir, please to prepare a proper agree- 
 ment for INIr. FoAvle and me to sign, and send it to me at 
 this place. You will also deliver to JMr. Everett," the 
 gentleman who carried the letter to toAAii, *' an abstract of 
 my title-deeds for his examination. As soon as the title- 
 deeds are approved of, he engages to lend me 5,000/. 'till 
 Michaelmas next." The letter was signed and dated by 
 him, and was delivered by INIr. Everett to the solicitor in 
 town. Freeman afterwards refused to perform the agree- 
 ment ; and, to a bill filed by Fowle for a specific -pci' 
 formance, pleaded the statute of frauds. The JNIaster of 
 the Rolls held, that if the attorney had prepared an agree- 
 
 (ci) Gunter v. Halsey, Ami)'. 2 Mau, & Selwr. 434. 445. 
 5865 Whitchurch V. Bevis, 2 Bro. («) Rolls, Sth March, 1804, 
 
 C. C. 559 ; Ramsbottom v. Tun. MS, 9 Ves. Juh. 351. S. C. 
 bridge, Ramsbottom r. Mortley, 
 
 meiit.
 
 OF PAROL AGREEMENTS. 83 
 
 inciit, according to tlic letter, Freeman would have been 
 eoiiipelled to execute itj and tlie attorney could not alter 
 tlie agreement itself in anj' one respect, A letter or pro- 
 posal will^ do, altliougli the party repents, and many de- 
 crees have been founded merely on letters. If this objec- 
 tion were to hold, he said, it might be contended, that if 
 an agreement contained a reference to title-deeds to be for- 
 mally executed, it would not do ; apd his hpnour decreed f\ 
 specificjjgrformaiice. 
 
 II. We are next to consider what is a sufficient sig- 
 nature by the party or his agent. Before the statute of 
 frauds, an agreement, although reduced into writing an^ 
 signed, was not considered as a written agreement unless 
 sealed ; but it was regarded as a parol agreement, and tho 
 writing as evidence of it ( b). 
 
 It has been justly said, that the same rule prevails 
 since tlic statute of frauds (r) ; for the law of England 
 recognizes only two kinds of contracts, viz. specialties 
 and parol agreements, which last include all writings nut 
 under seal, as well as verbal agreements not reduced into 
 writing {(I). In the case of Wheeler v. Newton {e), the 
 agreement not having been sealed, seems to have been 
 insisted upon, as leaving the case within the statute : and 
 Lord Commissioner llawlinson said, that agreements ia 
 writing, though not sealed, had some better countenance^ 
 since the statute of frauds and neriuries\ thjm they liad 
 beiore. ^ ^';^i*-«-^*-»-.. /tUy^ cy t^rc^r,.^^^^ ^«-*< -"^-^^ ^ ^*j^ /i> ^^ 
 
 This doubt must have arisen from the common law doc- ^^^'^/i'-^ 
 
 (!>) See 1 Cha. C.i. Hr,. Rep. 350, n. S. C. MS. In io(. 
 
 (c) See INIarquis of Normanby v. vcrhia. 
 Dukfof lX'voiishire,2Freem.2l6. (^) Prec. Cliu. J6, 
 
 ((/) llann v. Iluglits, 7 Term. 
 
 c; \l trine
 
 84 OF PAROL AGREEMENTS. 
 
 triiic before noticed, tliat an agreement not under seal is 
 simply a parol agreement, and the writing evidence of it ; 
 but there certainly was no foundation for the doubt : tlic 
 statute makes signing only requisite to the validity of a 
 written aorecment, and it is now clearly established, that 
 scaling is not necessary ; and if a man be in the lial)it of 
 printing or stamping instead of writing his name, he would 
 be considered to have signed by his printed name (/). 
 
 The signature required by the statute, is to have the 
 effect of giving authenticity to the idiole instrument ; and 
 where the name is inserted, in such a manner as to have 
 that effect, it does not much signify in what part of the 
 instrument it is to be found {g). 
 
 Therefoi-e, the signing the name at the beginning of 
 the agreement, will take it out of the statute ; as if a 
 person write the agreement himself, and begin, " A B 
 agrees to sell, &c." and this is only in analogy to the case 
 of a testator writing his name at the beginning of his will, 
 which is equivalent to his signing it ; and yet the statute 
 expressly requires a signature {h). 
 
 And such a signature will be sufficient, although a place 
 be left for a signature at the bottom of the instrument {i) ; 
 (I), and yet, as Lord Eldon has observed, it is impossible 
 
 (/) Saundersoa v. Jackson, 2. 3 Bsp. Ca. 182 j 9 Ves. Jua. 248; 
 
 Bos. & PulK 238. Schneider V. and Sauiideison v.Jackson, 2 Bos. 
 
 Norris, 2 Man and Selv. 286. and Pull. 238 ; see Cooper v. 
 
 (S-)VideStokesv. Moore, stated Smith, 15 East, 103; Morisoa 
 
 infra ; Alien v. Bennet, 3 Taunt. v. Tumour, 18 Ves. Jun. 175. 
 169. (0 Saunderson v. Jai^kson, ubi 
 
 (/«) Knight v.Crockford,,! Esp. ^ sup, 
 Ca. 189. and see 1 Ero. C.C. 410 ; 
 
 not 
 
 (1) This question frequently arises upon wills of personalty. Walker 
 V. Walker, decided by the Court of Eelegates, 19th Feb. 1605. Ann 
 
 Walker
 
 OT PAROL AGIlEEME^'TS. 85 
 
 not to sec that the insertion of the name at the hep-in- 
 iiing was not intended to be a signature, and that the 
 paper was meant to be incoinplcte till it was further 
 signed. 
 
 And if the party know the contents of tlie agreement, a 
 subscription, as a witness, is a sufficient signing (k). 
 
 So, where a clerk of an agent, duly authorized to treat 
 for a princij)al, signed an agreement thus, " Witness A B, 
 for C D, agent to the seller,'' it was holden to be out of the 
 statute (Z). And it is sufficient, it sccn-tis, if the initials of 
 the uame are set down (711). 
 
 But a letter without a signature of the name in some 
 way, cannot be brought within the statute. Therefore, a 
 letter ^vritten by a mother to her son, beginning " JMy 
 clear Nicholas," and ending " your affi?ctionatc mother," 
 with a fidl direction, containing the son's name and place 
 of residence, is not a good agreement within the sta- 
 tute (n). 
 
 And it seems that the signature of the purchaser, by 
 himself or his agent, on the back of the particulars and 
 
 (fc) Welford v. Beazely, 3 Atk. (??i)Phillimore v, Barry, 1 Camp. 
 
 503. See 9 Ves. Jim. 251. Ca. 51.3. 
 
 (/) Coles V. Trecothick, 9 Ves. (») Selby v. Selby, Rolls, iSj;, 
 
 Jun, 234; 1 Smith's Rep. 233. MS. 
 
 Walker made hvr will, comprising real and personal estate, whicli slie 
 signed and scaled, and then foUUd up with tliis indorsement ; " 1 sii;n<,d 
 and sealed my will to liave it nady to be vvitiiesstd the first 0|H)ortuiii(y 
 I could q"t i)ro[)er persons for it." The usual attistation ciau>e was 
 added, but not signed l)y any witness. At Ikt dialli the instrument was 
 found in h'.T drawer in the envelo[)e, and it was ilcdrmiiuci not to he a. 
 good will of the personal property, on the i;roun<!, that somt thing appear-- 
 ing by the aliestation clause, to be intended to be done, the instruint nt 
 \^as not complete as the last will of the testatrix. 1 Mcr. i03. 
 
 a 3 conditions
 
 86 OF PAllOI- AGREEMENTS. 
 
 conditions of sale, with the smn opposite to it, is a sufficient 
 compliance with the directions of the act (o). 
 
 And, as we ]ia\e seen, an agreement not signed, may 
 be supported by a signature to a writing referring to the 
 agreement. 
 
 ]5ut the mere altering the draft of the conveyance will 
 not take a case out of the statute (jp) ; neither will the \vrit- 
 ino- over of the whole draft by the defendant -with his own 
 hand be sufficient, as there must be a signature (fj). To 
 this rule we may, perhaps, refer the case of Stokes v. 
 IMoore (r); where the defendant wrote instructions for a 
 lease to the plaintiff, in these words, viz; " The lease re- 
 newed ; INIrs. Stokes to pay the King's tax ; also to pay 
 IMoore 24:1. a year, half yearly; JNlrs; Stokes to kee}) the 
 hoiise in good tenantable repair, &c." Stokes the lessee 
 filed a bill for a specific performance, and the court of Ex- 
 chequer held it not to be a sufficient signing, to take the 
 agreement out of the statute ; although it was not necessary 
 to decide the point. 
 
 I^ord Eldon is reported to have said, that he had some 
 doubt of the doctrine in this case (.v). 
 
 ]Mr. Baron Eyre appears to have put it on its true 
 grounds. He said, that the signature is to have the effect 
 of giving authenticity to the whole instrument, and if the 
 
 (o) Vide supra, and Hodgson v. 771, cited. 
 
 Le Bret, Camp. X, P. 233 ; Phil. (r) S:okes v. Moore, 1 Cox, 
 
 limore v. Barry, il). 513 ; cases on 219 ; Cox's n. to 1 P. Wnis. 771 ; 
 
 the 17lh sect. Kminersou v. Ilee- see 1 Smith's Rep. 214. 
 
 lis, 2 Taunt. 38. U) And see Emnier.^on v. Hee- 
 
 (p) Hawkins v. Holmes, 1 P. Un, 2 Taunt. 38, and observe how 
 
 Wm-:, 776, which overruled Low- tiie purchaser's name was signed 
 
 (herv. Carill, I Vern. 22!, See there; see also Morison v. Tur- 
 
 Sliippey V. Derrison, 5 Esp. Ca. nour, 18 \>s. Jun. 175; Westera 
 
 190. Y.Russell, 3 Ves. & Bea. 187, 
 
 (f/) Ithel V Potter, 1 P. Wms. 
 
 name
 
 OF TAIIOL AGREEMENTS. 87 
 
 name is inserted, so as to have that effect, lie did not 
 think it signified nincli in what part of tlie instrument it 
 Avas to he foimd : it was, perhaps, diffieult, except in tlio 
 case of a letter with a postscript, to find an instance where 
 a name inserted in the middle of a writin"- can well liavo 
 that effect ; and then the name heins; (renerallv found in a 
 2)articular place, hy the common usage of mankind, it may 
 very probably [qu. properly] have the effect of a legal sig- 
 nature, and extend to the whole ; hut he did not understand 
 how a name inserted in the body of an instrument, and 
 applicable to particular purposes, could amount to such 
 an authentication as is required hy the statute. 
 
 III. In considering what signature satisfies the requisi- 
 tion of the statute, wo have necessarily adverted to signa- 
 tures hy agents, and it will now he proper to consider ^vho 
 will be deemed an agent lawfully authorised within the 
 statute of frauds, to sign an agreement for the sale or pur- 
 chase of an estate. 
 
 In the 1st and 3d sections of the statute of frauds, which 
 relate to leases, &c. tlic writing is required to be signed by 
 the pai'ties making it, or their agent authorized bij icritiug. 
 This latter requisite is omitted in the -ith and 17th sec- 
 tions of the statute (Ij. Tlie legislature seems to have 
 taken this distinction, that where an interest is intended 
 
 (I) III a note io Mr. least's 7(Ii vol. p. r:)^^^ it is said, tliat by llio 1th 
 si'ct. to alVfct lanJs, (lio wciic must Ix- sii^iicd f)y an ac<'iit tliorcunfo law- 
 fully aiithorispcl by irridng, Sec, wliicii words '' hy wiilliiii" arc oniittc d 
 in the l7th st'ct. toucliiiig (lie sale of gooils. Tliis mistake must he at- 
 tributed to the hurry of tlie jircss, for the agent is in neitlior sect, re- 
 quired to be authorised by writing. 
 
 to
 
 88 
 
 or TAllOl. AGREEMENTS 
 
 to be actually i)as.se(l, the agent must be autuorised by 
 writing ; but tliat \^ bcrc a mere agreement is entered into, 
 the agent need not be constituted by writing; and there- 
 fore an agent may be authorised byparol to treat for, or 
 buy an estate, althx)ugh the contract^ itself nuist be in 
 Avriting (/). It is, however, in all cases, highly desirable 
 that t he age nt should have' a w ritten authority. Where he 
 has merely a parol authority, it must frequently be difficidt 
 to prove the existence and extent of it {?() ; although it may 
 ])e observed that his testimony will be received with great 
 caution against his signature as agent. If, however, at 
 the time of sio-ninir, he make a declaration that he has no 
 authority, his principal will not be bound (a:). 
 
 But althougli an agent is authorised to sell at a parti- 
 cular price, yet it seems tliat his clerk cannot contract 
 without a special authority or agreement for that pur- 
 pose (v/) ; wliich, however, need not be in writiiig. 
 
 The principal niay_ revoke the authority of the agent 
 at any time before an agreement is executed according to 
 the statute, although the agent has previously agreed t'gr- 
 bally to sell the property (.-) ; and an intended purchaser may 
 in like manner revoke his authority to his agent topurchase(«). 
 
 (0 Waller v. Hendon, 5 Vin. 
 
 Aijr.52i, pi. 45 ; Weddeiburne v. 
 C«rr, in thu Exclif qiuT, T T. 1775, 
 3 Wooddes, 427, cited ; Rucker 
 V. Cainineyer, 1 Esp. Ca. 105 ; 
 Coles V. Trt'cotiilck, 9 Vi^s. Jisn. 
 234 ; 1 Smitli's R<-p. 233 ; Barry 
 V. Lord Barrjniore, 1 Sclioales 
 and Lefroy's Rep. 28, cikd ; Cli- 
 iian V. Cooko, ihicL 22 ; EmtULTSoii 
 V. lleelis, 2 'I'aunt. 3?. 
 
 (u) Mortlock V. Eulier, 10 Vtes. 
 Juii. 292; see Daniel v. Adams, 
 Ambl. 495 : Charlcwood v. the 
 
 Duke of Bedford, 1 A lie. 497; 
 and see 5 Vin. Abr. 522, pi. 35 j 
 Wyatt V. Allen, MS. App. No. 9. 
 
 (.r) Howard v. Braithv^aite, 1 
 Ves. and Beam. 202. 
 
 (ij) Coles V. Trccotliick, 9 Vcs. 
 Jun. 234. 
 
 (:) See Farmer v. Robiison, 2 
 Cartipb. 339, n. 
 
 (fA) As to sales by anction, see 
 Blagden v. Bradbear, 12 Vts. Jun 
 467 ; Mason t. Arinit.i^^e, 13 Vts. 
 Jun. 25. 
 
 The
 
 DF PAROL AGREEMENTS. 
 
 89 
 
 Tlic statute requires every agreement as to lands, or 
 some memorandum, or note thereof, to be in writing, and 
 signed b// the 2)arfi/ to he diarged^ or some other person 
 fhcrcunU), (that is, to the signing thereof) {!)) by Jiim 
 authorised. And that as to goods, some note, or memo- 
 randum in writing of the bargain, shall be made and 
 signed by tlie parties to he charged by such contracts, or 
 their agents, thereunto authorised. And yet it lias been 
 decided, that the signature of tlie party to be charged by 
 himself or agent is sufficient, even in a contract for 
 goods ((•), although the other party has not signed, and 
 consequently is not bound ; so that there appears to 
 be no difference between tlie two clauses of the statute, 
 in regard to the appointment and power of an agent. 
 
 It has, howcA er, been repeatedly decided, that an auc- 
 tioneer is the agent of both parties upon a sale of goods, 
 so as to be enabled to bind them both under the sta-- 
 tute {(I) ; Avhilst, on the contrary it has been decided, 
 and lately seemed to be the prevailing opinion, that the 
 auctioneer is not the agent of the purchaser u^wn a sale by 
 auction of estates, so as to be authorised to bind him by 
 setting down in writing the terms of the contract {e). 
 but in a late case, upon the sale of an interest within the 
 4th section, the Court of Common Pleas held, that the 
 
 (J,) Sep 1 Ves. and Beam. 207. 
 
 (r) Allf'n V Betitietj '.) Taunt. 
 169. 
 
 ((/) Simon T Motives, 3 Burr. 
 1921; 1^.11. Ni.l'ii. 280, 1 Blackst. 
 599 ; lliuker V. Cammeyer, 1 Esi>. 
 Ca. 105 ; Ilinde v. Wliitc-liousf, 
 7 J'.asf, 558 ; and see Ivondoau v. 
 Wyad, 2 II. Blackst. 67 ; and 1 
 Ca. and Opln. 112, 113 ; Philli- 
 morc V. Birry, i CaminCa. 513; 
 
 and see the oLservatlons in the 2d 
 edit, of this work, p. 5*7 — 64. 
 
 {<■) Stansfield v. Johnson, 1 E'.n. 
 Ca, 101 ; Walker v. Constable, 2 
 lisp. Ca. 659 ; 1 Bos. and Puli. 
 306 ; Buckmaster v. Ilarrop, 7 
 Vei. Jun. 311, 13 Ves. Jun.456 ; 
 Coles V. Trecodiick, 9 Ves. Jun. 
 234; 1 Smith, 257; see 13 Ves. 
 Jun. 473. 
 
 auctioneer
 
 90 OF TAllOL AC;JtEEMEN'rS. 
 
 auctioneer was an a<;ont for tlie purchaser, e\'Cn Upon a 
 sale of estates. Lord C J. IMansficld, in delivering judg- 
 ment, asked, by what autliority does he write down the 
 purchaser's name? By the autliority of the purchaser. 
 Iliesc persons bid, and announce their biddings loudly, and 
 particularly enough to be heard by the auctioneer. For 
 what purpose do they do this ? Tliat he may write down 
 their names opposite to the lots ; therefore he writes the 
 name by the authority of the purchaser, and he is an agent 
 for the purchaser (/*). In a later case l^), the Court of Com- 
 mon Pleas adhered to their former decision, and they con- 
 sidered the signature by the auctioneer of the purcliaser's 
 name alone, sufficient, although he was only an agent, to 
 bind the principal ; and the conditions expressly required, 
 that the highest bidder should sign a contract for the pur- 
 chase. The principal, however, was present, and did not 
 object to the signature by the auctioneer until after it was 
 made. The action in this case was brought for the auction 
 duty. Upon a bill filed by the seller for a specific perfonn- 
 ance, the INIaster of the liolls decreed it, following the de- 
 cisions in the Common Pleas, although his own opinion 
 was, that an auctioneer is not the agent of the purchaser {h). 
 The rule, therefore, may now be laid down generally, that 
 an auctionee r is an ag ent Jawfully authorized^ by^ the pur- 
 chaser. It was always clear, that an auctioneer, appointed 
 by a vendor, was a good agent for him within the statute (/). 
 
 And although a purchaser bid by an agent, yet the 
 auctioneer is still duly authorised to sign the agreement (/f). 
 
 (/) Emmersoii v. Heelis, 2 and Bea. 57. / /ac i^ ^aM .J^ 
 Taunt. 38 ; see 1 Cas. and Opin. (/) Vide supra. 
 
 142, 143. (A) Emmerson v. Heelis, 2 
 
 {S) White V. Proctor, 4 Taunt, Taunt. 38 ; Wliite v. Pioctor, 4 
 
 209. Taunt. 209. 
 
 (h) Kem)S v, Proctorj 3 Ves. 
 
 It
 
 br PAROL AGREEMENTS. 91 
 
 It seems that the agent must be a third person, and that 
 liicitlicr of the contractmg parties can be the agent of the 
 other (/). It woukl be difficult, however, to maintain this 
 proposition, where either party has an express authority from, 
 the other to sign the agreement on his behalf. 
 
 SECTION III. 
 0/ Parol Agreements not xdthin the Statute. 
 
 I. \V E have seen what is considered a sufficient agree- 
 ment to take a case out of the statute, but there are cases 
 in wliich the performance of an agreement will be com- 
 pelled, although the terms of it are not reduced into writ- 
 ing; for though the statute provided that no agreement 
 should be good, imless signed by the party to be bound 
 thereby, or some person authorised by him, yet on all the 
 questions upon that statute, the purport of making it has 
 ])ccn considered, viz. to prevent frauds and perjuries ; 
 and Avliere tliere has appeared to be no danger of either, 
 the courts have endeavoured to take the case out of the 
 statute {m). 
 
 I'pon this ground it was that in the case of Simon v, 
 INFotivos, Lord iMansfield, and INIr. Justice AVilmot, ex- 
 pressed a clear opinion, in which JNIr. Justice Yates was 
 inclined to couciu', that sales by auction were not witliiu 
 the statute, because the solemnity of that kind of sale pre- 
 
 (0 See AV right v. Daiuiali, 2 (;») See 1 Ves. 221. 
 
 Campb i:03. 
 
 eludes
 
 92 
 
 OF PAROL AfiHEEMENTfS. 
 
 eludes all perjury as to the fact itself of sale. The case, 
 however, which arose upon the sale of goods, Avas deter- 
 mined upon the ground of the constructive agency of the 
 auctioneer {?i), who had set down in writing the name of 
 the purchaser, &c. (o). 
 
 Succeeding judges have entertained a different opinion 
 on the great question, whether sales ])y auction are within 
 the statute of frauds, and it has accordingly been since fre- 
 quently decided, that sales by auction of estates are within 
 the statute (p). And although tlie point has never been 
 decided, yet, from the present temper of the courts, it seems 
 probable that it will be determined, that sales by auction, 
 even of goods, are within the statute. 
 
 But on the ground that there is no danger in such a 
 transaction of either fraud or perjury, a sale before a 
 master under the decree of a court of ecputy AN'ill be car- 
 ried into execution, although the purchaser did not sub- 
 scribe any agreement. The judgment of the court, in con- 
 firming the purchase, takes it out of the statute (q). 
 
 So if, under a reference to a master, an agreement be 
 made to lay out trust-money in the purchase of particular 
 lands, and the master make his report accordingly, and the 
 report be confirmed without any opposition by the owner of 
 the estate, the jmrchase will be carried into a specific execu- 
 
 (m) Vide supra. 
 
 (o) 3 Burr. 1921, Bull. Ni. Pri. 
 280, 1 Blackst. 599. 
 
 (;j)Stansfield v. Johnson, 1 Esp. 
 Ca. 101 i Walker v. Constable, 2 
 Esp- Ca. 659 ; 1 Bos. snd Pull. 
 806 ; Buckmaster v. Ilarrop, 7 
 Ves. Jun. 341 , affirmed on appeal, 
 Dec. 1806 ; Blagden v. Bradbear, 
 12 Ves. Jun, 466 ; and see Coles 
 V. Trecothick, 9 Ves. Jun, 249 j 
 
 Ilindev.Whitehouse, 7East, 5o8 
 Mason v. Ai-mitage, 13 Ves. Jun. 
 25; Higginson V. Clowes, 15 V^es. 
 Jun. 516. The case of Symonds 
 r. Ball, 8 Term. Rep. 151, turned 
 on the particular provisions of 
 another act of parliament. 
 
 {q) Attorney-general v. Day, 1 
 Ves. 218 ; and see 12 Ves. Jun, 
 472. 
 
 tion.
 
 OF PAROL AGREEMENTS. 93 
 
 tion, altliougli no agreement was signed by tlie vendor. 
 The sale is a judicial sale, wliicli takes it entirely out of the 
 statute (r). 
 
 II. It has been repeatedly determined in equity (.s), 
 that if a bill be brought for the execution of an agreement 
 not in writing, nor so stated in the bill, yet, if the defend- 
 ant put in his answer, and confess the agreement, that 
 takes the case entirely out of the mischief intended to be 
 prevented by the statute; and there being no danger of per- 
 jury, the court would decree it ; and if the defendant 
 should die, upon a bill of revivor against his heir the same 
 decree would be made as if the ancestor were living, the 
 principle going throughout, and equally binding the repre- 
 sentatives (/). 
 
 Lord Chancellor Bathurst, however, held that an agree- 
 ment, not in part performed, could not be carried into 
 execution, although confessed by the answer. In Eyre v. 
 Popham {i(), addressing himself to ISIr. Aml)lcr, he asked, 
 if there was any case in which there had been a decree 
 founded upon confession generally without a part per- 
 formed ? and ]Mr. Ambler replied, that in some of the 
 cases, the Chancellor had been mentioned to lla^'e said it, 
 but he never found a decree. In giving judgment, his 
 Lordship is reported to have said, " This is not an agrec- 
 
 (r) S. C. cited. 
 
 (s) CroystoH V. Banes,Prec.Cha. (/) Per Lord Hardwjtke, sec I 
 
 208 ; and see 1 Yes. 22K 441 j Ves. 221. 
 
 Arabl.586 ; Mose. 370; and Sy- (n) LoflFt. 808, S09 ; and see 
 
 nibndsou v. Tweed, Prec, Cha. Eyre v. Iveson, 2 Bro. C. C. 563^ 
 
 374; Gilb. Eq. Rep. 35; Wanby cited. 
 
 T. Sawbridge, 1 Bro, C. C, 41 J, 
 
 ment
 
 94 OF rAKOI. a(itiee:\ients. 
 
 mcnt in Avritiiifr, npoii tlic statute of frauds ; hut the 
 question is, wlietlier it is an agreement whicli so appears as 
 that the court will decree a performance. It has been said, 
 that it is a known rule in this court, that where an agree- 
 ment appears confessed, tlie court will decree a perform-, 
 ance, though no part has been performed : some dictum s 
 there have been, but IMr. Ambler confesses that he has 
 found no decree — that where the substance clearly appears, 
 though in parol, without any part performed, the court 
 will decree an agreement to be executed. I think it cannot 
 be possible ; this court cannot repeal the statute of frauds, 
 or any statute. The king has no such power, by the con- 
 stitution, entrusted in him ; and therefore there can be no 
 such power in his delegates. The only case I know that 
 takes a contract out of the statute is of fraud, and the 
 jurisdiction of this court is principally intended to prevent 
 fraud and deceit. AVhere a party has given ground to 
 another to think he had a title secured, the court will secure 
 it to him. The ground, therefore, in making and refiising 
 decrees, has been fraud. It can never be laid down by the 
 court, that where the substance appears it shall be executed. 
 It would not have been so at common law." 
 
 In the discussion of the foregoing case, neither the bar 
 nor the court appear to have been aware of a case before 
 Lord Chancellor JMacdesfield {.v), in which the defendant 
 having pleaded the statute of frauds to a bill seeking a 
 specific performance of a parol agreement, his Lordship 
 said, the plea was proper, but then the defendant ought, 
 by answer, to deny the agreement ; for if she confessed the 
 agreement the court would decree a performance, iiotxcith- 
 
 (x) Child V. Godolphin, 1 Dick. see Hartley v. Wilkinson, Irish 
 39 J 2 Bro. C. a 566, cited; and Term Hep. 357. 
 
 standing
 
 OF PAROL AGREEMENTS. 95 
 
 standing the atatute ; for that such confession wouM not 
 be looked upon as perjury, or intended to be prevented by. 
 the statute. And he, therefore, confirmed an order, that 
 the plea should stand for an answer, with liberty for the 
 l)laintift* to except thereto, and that the benefit thereof 
 .should be saved to the defendant until the hearing of the 
 cause. And I^ord HardAvickc appears to have entertained 
 the same opinion (?/). 
 
 In A\"hitchurch v. Bevis (::), Lord Thurlow at first 
 expressed his opinion, that the only effect of the statute 
 was, that an agreement should not be proved aliunde. 
 No evidence that could be given would sustain the suit if 
 the defendant answered and denied the agreement. In 
 this case the agreement was confessed, but the statute was 
 pleaded, and it was ultimately decided on its own parti- 
 cular circumstances. Lord Thurlow said, he meant to 
 determine upon the ground of this particular case; be- 
 cause it miglit become to be more seriously considere<l 
 what sort of a verbal agreement, notwithstanding the plea 
 of the statute of frauds, might be sustained, as being con- 
 fessed by the answer, so as the court v.ould carry it into 
 execution. His Lordship added, that he was prepared to 
 say, if there were general instructions for an agreement, 
 consisting of material circumstances to be hereafter ex- 
 tended more at large, and to be put mto the form of an 
 instrument, with a view to be signed by the parties, and 
 no fraud, but the party takes advantage of the locus i)cnU 
 tentuc, he should not be compelled to perform such an 
 agreement as that, xdien he insists tqxm the statute of 
 ^frauds. 
 
 (y) See Cottington v. Fletcher, (z) 2 Bio C. C. 559, 2 Dick. 
 
 2 Atk. 155 ; and see 3 Atk. 3; 6(W. 
 but see 4 Ves. Juu. 24, 
 
 It
 
 96 OF PAROL AGREEMENTS. 
 
 It is curious to observe the different opinions which 
 liave prevailed on this point. Lord IMacclesfield lield, 
 tliat if the agreement was confessed, even a plea of the 
 statute woukl not protect the defendant ; in which opinion 
 he seems to have been followed by I>ord Ilardwicke. On 
 the other liand, Lord Bathurst thought that, unless 
 there v.erc fi'aiid, an admission of the agreement ])y the 
 defendant would not enable the coiiFt to decree it, al- 
 though the defendant did not insist on the statute. Lord 
 Thurlow appears to have been of opinion, that if the 
 agreement was admitted, the statute could only l)e usccl 
 as a defence where tliere was a clear locus peniteiitice^ 
 but that evidence could not be admitted to falsify the de- 
 fendant's answer. 
 
 None of tlic foregoing opinions have, however, been at- 
 tended to. Mr. Baron Eyre seems to have led the .way in 
 holding, that if the defendant, by his ansv;er, insisted 
 upon the statute of frauds, a specific performance could not 
 be decreed, although he confessed tlie agreement [h). 
 And Lord Thurlow, notwithstanding his opinion in AVhit- 
 church V. Bevis, said, in the prior case of Whitebread 
 V. Brockhurst, that it should rather seem that if the de- 
 fendant confesses the agreement in his answer, but insists 
 upon the statute, it would be more simple and conform- 
 able to reason to say, that the statute should be a bar to 
 the plaintiff's claim (c) ; and these opinions have been 
 adopted by Lord Rosslyn and Lord Eldon {d) ; and Sir 
 AVilliam Grant actually decided, that the statute may be 
 uaed as a bar to the relief, although the agreement be ad- 
 
 (b) Stewart V. Careless, 2 Bro. Jun. 23 j Cooth v. Jackson, 6 
 C. C. 564, 565, cited ; Walters v. Ves. Jun. 12 ; Row v. Teed,' 15 
 Morgan, 2 Cox, 369. Ves. Jun. 375 ; see Rondeau,' r. 
 
 (c) See 1 Iko. C. C 416. ?? Wyatt, 2 H Biackst. 63 ; and 1 
 
 (d) Moore V. Edwards, 4 Ves. Ro<e, 300. 
 
 niittcd
 
 OF PAROL AGREEMENTS. 97 
 
 lYiitted (c). It is immaterial, lie said, what admissions are 
 made by a defendant insisting upon the benefit of the 
 statute, for he throws it upon the plaintiff to show a com- 
 plete written agreement; and it can no more be thrown 
 upon the defendant to supply defects in the agreement, 
 than to supply the want of an agreement. 
 
 Where, however, a defendant has, by answer, admitted 
 the agreement, and submitted to perform it, he cannot, 
 by an answer to an amended bill, plead the statute of 
 frauds (J). 
 
 If the defendant deny the agreement, he may be tried 
 for perjury; but a conviction will not enable equity to 
 decree a performance of the agreement (g) (I) ; and there- 
 fore, as the plaintiff cannot avail himself, in any civil 
 proceedings, of the conviction of the defendant, he is a, 
 competent witness to prove the perjury (//). 
 
 III. There are other cases taken out of the statute, not 
 so much on the princi})le of no danger of perjiuy, as that 
 the statute was not intended to create or protect fraud. 
 Lord Keeper North appears to have- entertained a float- 
 ing opinion, although he does not s^em to have ever actu- 
 ally decided the point, that if the plaintiff laid in his bill, 
 
 (e) Blagden v. Bradbear, 12 Cox, 15; see Rastol v, Hutcliii\- 
 
 Ves. Juii. 4G(J J see also 2 Ball son, 1 Dick,^4, and Fell v. Cham- 
 
 and Beat. 349. b. rlain, 2 Dick, 484; Burdon v. 
 
 (/) Spurrier v. Fitzgerald, 6 Browning, 2 Taunt. 520. 
 
 Ves. Jun. 548. (h) The King v. Boston, 4 F.ast, 
 
 (g) Bartlett v. Pickcrsgill, 4 572. 
 Burr. 2255, ,4 East/577, n b. ; 1 
 
 (I) It appears that the plaintilfin Fell v. Chamberlain did preftr a Mil 
 of indictment for perjury against the defendant ; and the Master of the 
 Rolls granted an order to the .six clerks to delircr the bill and answer, 
 interrogatories, and depositions of witnesses to a solicitor, in order to 
 be produced at the trial. Ueg. Lib. A. 1772, fo. '196. 
 
 11 that
 
 98 or rAi{()i. agreements. 
 
 that it was part of tlic a<^rcciiient, that the agreement 
 sliouhl be put into writing, it wonhl take the case out 
 of the statute (i). In a case before I^ord 'IMiurlow (A"), 
 this Joctrinc was stated at the bar ; and in answer to it, 
 his Lordship said, lie took tliat to be a single case, and to 
 luive been overruled. If you interpose the medium of 
 fraud, bij xvhlc/i the agreement is prevented frovi being 
 put into writing, I agree to it, otherwise I take Lord 
 North's doctrine, ' that if it had been hiid in the bill, 
 tliat it \vas part of tlie agreement that it should be put 
 into writing, it would have done,' to be a single decision, 
 and contradicted, though not expressly, yet by the current 
 of opinions." 
 
 So wliere agreements have been carried partly into exe- 
 cution, the court will decree the performance of them, in 
 order that one side may not take advantage of the statute, 
 to be guilty of fraud (/) (I). 
 
 An agreement will not be considered as 2)artly executed, 
 unless the acts done are such as could be done with no 
 other view or design than to perform the agreement, or 
 perhaps, to speak more correctly, with tlie view of the 
 agreement being performed ; and if it do not appear but 
 the acts done might have been done with otlier views, the 
 agreement will not be taken out of the statute (7/'?). 
 
 (/) HoUis V. Whiteing, or Ed- (/) See 1 Vos 221 ; Taylor r. 
 
 wards, 1 Vern, 151, 159 J Letike Beech, 1 A'es. 297. 
 
 V. Morrice, 2 Cha. Ca. 135. {m) Gunter v. flasley, Ambl. 
 
 (/;) Whitchurch V. Bevis, 2 Cro. 586 j Laoon v. Meitins, 3 A Ik. 1. 
 C. C, 565. 
 
 (I) The ground of relief in these cases is fraud, and that species of 
 fraud which is qpnusable in equity only; although it seems that the court 
 of Kinij's Bench once held, tliat where an agreement was partly exe- 
 cuted, it u^as ioially out of the statute. See 1 Bro. C. C 417. 
 
 Neither
 
 OF PAROL AGREEMENTS. 
 
 99 
 
 Xcither ^vill acts merely introductory, or ancillary to 
 an agreement, be considered as a part performance, al- , 
 thougli attended with expense. Therefore delivering an 
 abstract, giving directions for conveyances, going to view 
 the estate, fixing upon an appraiser to value stock, making 
 valuations, &c. (-«), will not take a parol agreement out of 
 the statute. 
 
 But if possession be delivered by the purchaser, the 
 agreement will be considered as in part executed (o) ; 
 especially if he expend money in building or improving 
 according to tlie agreement (p), for the statute should never 
 
 («) Cleikv. Wright, 1 Atk. 12; 
 \Vhitl)r('ad v. IJrockhurst, 1 Bro, 
 C.C. 412; Cole V.White, 1 Bro. 
 C. C. 409, cited ; Whitchurch v. 
 lievis, 2 Bro. C.C. 559 ; WhaU>y 
 V. Bagenal, 6 Bro. P. C. 645 ; 
 Cooke V. Tombs, 2 Anst. 420 ; 
 and see Cooth v. Juckson, 6 Ves. 
 Jiin. 12; and Redding ?. Wilkes, 
 3 Bro. C. C. 400. 
 
 {()) Butcher V. Stapely, 1 Vern. 
 363 ; I'yke V. Williams, 2 Vern. 
 455 ; Lockey v- Lockey, Prec. 
 Cha. 518 J Karl of Aylesford's 
 case, 2Str.783; Binstead v. Cole- 
 man, Bunb. 65, S. C. MS. in lot. 
 xcrbis ; Barrett v. Gomeserra, 
 Bunb. 04 J Lacon v. Merlins, 3 
 
 Alk. 1 ; Wills v. Stradling, 3 Vcs. 
 Jiin. 378 ; Bowers v. Cater, 4 Ves. 
 Jim. 91 ; Denton v. Stewart, .-Ith 
 July, 1786, cited in Mr, Fonbl. 
 note to 1 Trea, Eq. 175 (I); Gre- 
 gory V. Mighell, 18 Vcs. Jun. 
 328 ; Kine v. Balfe, 2 Ball and 
 Beat. 3 13 ; Morphett v. Jones, 
 Rolls Feb. 1818, MS. ^ / ^r-c^^/ //2^ 
 
 (/)) Foxcraftv. Lister, 2 Vern. 
 456, Gill). Fq. Rep. 4, cited ; 
 Colles, P.C. 108, reported J Floyd 
 V. Biickland, 1 Freem. 268 ; Mor- 
 timer V. Orchard, 2 ^'es, Jun, 
 243 ; Toole V. Mrdlicott, 1 Ball 
 and Beatty, 393 ; see Wheeler v, 
 D'Esterre, 2 Dow. 359. 
 
 (I) In this rase the plaintifl' not only purchased (he house, but also 
 llie furniture, for which she had actually paid ; and it appears by the 
 decree, that there was a receipt given by the defendant, thu conknts of 
 which, however, are not stated in the Re;;isfer's ?)OTik. The defendant 
 positively d<'nied the agreement, and insisted that (he plaintiff was only 
 tenant al will. Reg. Lib. A. 1785, fo. 552, by the name of Denlou v. 
 Seward ; ibhl. 717, by the name of Denton v. 5le\vart, 
 
 II i> be
 
 100 
 
 OF PAROL AGREEMENTS. 
 
 be so turned, construed, or used, as to protect or be a mean 
 of fraud {q). 
 
 Possession, however, must be delivered in })art per- 
 formance, for if tlie pure] laser o])tain it wrongfully, it 
 ■will not avail him (/•). And a possession which can be 
 referred to a title distinct from the agreement will not 
 take a case out of tlic statute. Therefore, possession by 
 a tenant cannot be deemed a part performance. The de- 
 livery of possession by a person having possession to the 
 person claiming under the agreement, is a strong and 
 marked circumstance ; but a tenant of course continues 
 in possession, unless he has notice to quit ; and the mere 
 fact of his continuance in possession (which is all that can 
 be admitted, for quo animo he continued in possession 
 is not a subject of admission) cannot weigh with the 
 court (*). 
 
 But if he pay an additional rent, although that is jwr sc 
 an equivocal circumstance ; for it may be that he sliall hold 
 only from year to year, the lease being expired ; yet there 
 may be other inducements. If, therefore, it be averred 
 that the landlord accepted the additional rent upon the foot 
 of the agreement, the acceptance upon the ground of the 
 agreement would not be equivocal at all. The landlord in 
 such a case must answer, whether it was accepted upon a 
 holding from year to year, or any other ground (/). 
 
 If it be part of such a contract with a tenant in posses- 
 sion, that money sliall be laid out, and it is one of the 
 considerations for granting the lease (the laying out which 
 must be then with tlie privity of the landlord) ; it is very 
 strong to take it out of the statute {u). But it is necessary 
 
 (9) See 3 Burr. 1919. Cha. 561, cited ; Savage v. Car- 
 
 (r) Cole v. White, 1 Bro. C.C. roll, 1 Ball and Beatfy, 265. 
 409, cited. (I) Wills v. Stradling, iibi sup. 
 
 (s) Wills V. Stradling, 3 Ves. («) S, C, 
 
 Jun. 378 ; Smith t. Turuerj Prcc. 
 
 that
 
 OF PAROL AGREEMENTS. 101 
 
 that the act should unequivocally refer to and result from 
 the agreement, and such that the party would suffer an in- 
 jury amounting to fraud by the refusal to execute that 
 agreement. Therefore, wlicre upon the faith of a promise 
 of a rcncAval, a tenant rebuilt a party-wall, the agreement 
 was held to be within the statute. The act done was equi- 
 vocal : for it would have taken place equally if there had 
 been no agreement. It was such also as easily admitted of 
 compensation, without executing the agreement. The mo- 
 ney expended miglit be recovered from the landlord, if it 
 was by tlie landlord that tlic expense was to be borne (x). 
 
 In a late case. Lord Redesdale thought, that it was ab- 
 solutely necessary for courts of equity, in tliese cases, to 
 make a stand, and not carry the decisions further (?/). 
 
 It is generally understood, tliat payment of a substantial 
 part of the purcliasc-money will take a parol agreement 
 out of the statute. How far this opinion is founded ap- 
 pears to be deserving of particular consideration. 
 
 There are four cases in Tothill, which arose previously 
 to the statute of frauds, and appear to be applicable to 
 the point under consideration ; for equity, even before 
 the statute of frauds, would not execute a mere parol 
 agreement not in part performed. In the first case {z), 
 which was heard in tlie 3 8th of Kliz. relief was denied, 
 " because it was but a preparation for an action upon tlie 
 case." In the two next cases {(i) which came on in the 
 9th of Jac. I. parol agreements were enforced, apparently 
 on account of the payment of very trifling parts of the 
 
 (x) Frame v. Dawson, 14 Ves. (jy) See 2 Selio. and Lef. 5. 
 
 Jun. 386 ; ^ee Liniisay v. Lynch, (z) William v. IS'evil, Totli. 135. 
 
 2 Scho. and Ltf. 1 j O'Keilly v, (a) Feme v. Bnilock,Totli. 206. 
 
 Thompson, 2 Cox, 271. 228 ; Clark v. Hack well, ibid. 
 
 H 3 purchase-
 
 102 Of I'AllOL AGREEMENTS, 
 
 piircliasc-moncy, but tlic particular circumstances of these 
 cases tlo uot appear. Tlic last case reported in Tothill {(/) 
 was decided in tlic 30th of Jac. I. and the facts are dis- 
 tinctly stated. The bill was to be relieved concerning a 
 promise to assure land of inheritance, of Avliicli there had 
 not been any execution, but only 5o.v. paid in hand, and 
 the bill was dismissed. This point received a similar de- 
 tennination, in the next case on the subject before the 
 statute, which is reported in Cha. Rep. (c), and was de- 
 termined in the 15 Cha. II. So the same doctrine was 
 adlicred to in a case which occurred three years after- 
 wards, and is reported in Freeman {d) ; for although a 
 parol agreement for a house, with 20s. paid, \vas decreed 
 withotit furtlicr execution proved, yet. it appears by the 
 judgment, that the relief would not have been granted if the 
 defendant, the vendor, had demurred to the bill, which 
 lie had neglected to do, but had proceeded to proof. The 
 last case I have met with previously to the statute, was de- 
 cided in the 21st Car. II. (c), and there a parol agree- 
 ment upon which only 20,9, were paid was carried into a 
 specific execution. This case probably turned, like the 
 one immediately preceding it, on the neglect of the de- 
 fendants to demur to the bill. It must be admitted, that 
 the foregoing decisions are not easily reconcileable, yet 
 the result of them clearly is, that payment of a trifling 
 part of the purchase-money was not a part performance 
 of a parol agreement. AVhether payment of a considerble 
 sum would have availed a purchaser, does not appear. 
 In Toth. 67, a case is thus stated : '• IMoyl v. Home, by 
 reason 200/. was deposited towards pajonent, decreed." 
 This case may, perhaps, be deemed an authority that, 
 
 (6) Miller V. Blandist, Toth. 85. (</) Anon 2 Frcem. 128. 
 
 (c) Simmons v. Cornelius, 1 (e) Vollv. Smith, 3 Ci»a. Rep. 
 
 Cha. Rep. 128. 16. 
 
 prior
 
 OF PAROL AGREEMENTS. 103 
 
 prior to the statute, tlie payment of a substantial part of 
 the purchase-money wouhl liave enabled equity to spcifically 
 })crform a parol agreement ; but it certainly is too vague to 
 be relied on. 
 
 Our attention is now called to the statute itself.. The 
 clause relating to lands declares generally, that no contract, 
 not in writin g^ shall be binding ; there is also a clause in 
 tlie act, which relates to sales of goods, which are de- 
 clared to be binding if somethiiigjs given in earnest to bind 
 the })argajn^_ 
 
 The first case in the books, subsequently to the statute, 
 is in Frecm. (/'), where it is stated, that a contract for 
 land, and a great jJart oi t\m money paid, is void since the 
 statute of frauds and perjuries ; but the party that paid 
 the money may, in equity, (I) recover back the mouc}'. 
 And for this, Freeman states, he saw Sir William Jones's 
 opinion under liis hand. This was about four years after 
 the act. The next case is Leak v. jNforrice (g), which 
 occurred in the same year ; the bill was to have an agree- 
 ment performed by tlie defendants ; which was, in eflect, 
 that the defendant sliould assign a term of years in his 
 house and certain goods, for ^00 guineas, whereof he 
 paid one in hand as earnest of the bargain, and tlirce days 
 after 19 guineas more; and part of the bargain was, that 
 it should be executed by writings, by a certain time. 
 The defendant pleaded the statute of frauds, and alledged 
 t]ie money was only paid for the lease, but confessed tlie 
 receipt of tlie ^0 guineas, and offered to repay tlicm. 
 !.()rd Keeper Xoith said, it was clear tliat tlie defendant 
 ought to repay the money, but overruk'd (lie plea on 
 anotlier ground. In this case, it does not .•!p])ear to have 
 occurred to eitlier the bar or tlie court, that ])r.yment of 
 
 (/) 1 Frceni. -186. pi. ()()1.. b. (^r) ~ ^-'l';>- C.i. 133; I Dick. 14. 
 
 (I) At lliis tl.iy it iii.iy b» rrcovtnil at la\\. 
 
 II i money
 
 lO-i OF PAltOI- AGREEMENTS. 
 
 money ^vou](l take a parol contract for lands out of the 
 statute. Tlie case of Alsop v. Patten (h), aiohc about 1 5 
 years afterAvards. Tliere a. joint lessee of a buildinj]^ lease 
 ao-reed to sell his moiety to tlie other lessee for four 
 guineas, and accepted a ])air of compasses in liand to 
 ])ind the bargain. The vendor pleaded the statute to a 
 bill filed by the purchaser for a performance in specie. 
 Lord Chancellor Jeifries ordered him to answer, and 
 saA-ed the benefit of the plea to the hearing, as the agree- 
 ment Avas, in some part, executed. In this case, unless 
 there was a part performance of the agi-eement, indepen- 
 dently of the mere delivery of the compasses, it is clear 
 that the court confounded the section of the statute by 
 which personal contracts arc binding, if earnest is paid, 
 with the clause relating to land. The next case is Seagood 
 V. J^Ieale (i), which arose 34 years after the case of Alsop 
 V. Patten. The case was, that upon a parol agreement 
 for sale of an estate for 150/. a guinea was paid, and the 
 payment of the guinea was agreed to be clearly of no con- 
 sequence in case of an agreement touching lands or houses, 
 the payment of money being only binding in cases of 
 contracts for goods. In this case we find the doctrine laid 
 down generally, that the payment of money is not a part 
 performance of a parol agreement for lands, and no dis- 
 tinction was taken, as seems sometimes to have been 
 thought, between the payment of a substantial part of the 
 purchase-money, and of a trifling portion. Then comes 
 the case of Lord Fingal, or Lord Pengal v. Ross, which 
 was decided by Lord Cowper, in the 8th of Anne (A) (I). 
 
 A agreed 
 
 (//) 1 Vern. -172. (4) 2 Eq. Ca. Abr. 46. pi. 12. 
 
 (/) Prcc. Cha. 5C0. 
 
 (1) It has been said, that this case is not to be found in the register's 
 book. See 4 Ves. Jun. 7i^I. The author himself has searched the re- 
 
 giijter's
 
 OF PAROL AGREEMENTS. 105 
 
 A agreed witli B to make him a lease for 21 years of lands 
 rendering rent, B paying A 150/. line. B paid 100/. in 
 part, then A refused to execute the agreement ; and upon 
 a bill tiled for a specific performance, the agreement was 
 held to be within the statute ; but the 100/. was decreed to 
 be refunded. The Lord Chancellor said, the payment of 
 this 100/. was not such a performance of the agreement on 
 one part, as to decree an execution on the other ; for the 
 statute of fraud.s makes one sort of contracts, viz. personal 
 contracts, good, if any money is paid in earnest. Now 
 that statute says, that no agreement concerning lands shall 
 be good, except it is reduced into v/riting ; and therefore, a 
 parol agreement, as it was in that case, would not be good 
 by giving money by way of earnest. Thus far no room 
 is left for doubt ; but in Lacon v. JNIertins (/), J^ord Hard- 
 wickc laid it down, that paying money had always been 
 considered as a part performance. This, however, was a 
 mere diet //>?/, it was not necessary to decide tlie question, 
 the cases on the subject were not cited, and another rule is 
 laid down too generally in the same rcjiort. A case, indeed, 
 is said to have been decided in 1750 (m), at which time 
 Lord Hardwicke was Chancellor, where the bill was to 
 compel the acceptance of a lease imder a parol agreement 
 upon a fine of 150/. and 16/. paid in part of the same ; and 
 the plea was overruled, without hearing the counsel for the 
 ])laintifF, and the decision, it is said, appears by the regis- 
 ter's book (I). But it does not appear from this statement, 
 
 whether 
 
 (/)3Atk. 1. Jun. 722, cited, 
 
 (wi) Dickinson v. Adams, !• Ves. 
 
 gister's calendars for 1709 and 1710 without success. The search was 
 made under the Letters L. (die plaintirt' being a lord) P. anti F. 
 
 (I) The author has searched the rcj;ister's calendars for 1750, with 
 great attention, williout meeting the ca^e. He met with only one case, 
 
 y> here
 
 106 OF PAllOL AGREEMENTS. 
 
 whctlicr there was or was not any other act or part perform- 
 ance ; and it is a sufficient objection to this decision, that 
 the plaintiff's counsel were not heard, as no one can deny 
 that the point was oi)en to argument. 'J'he next case is a 
 recent one (n\ in which Lord llosslyn held, that thx; 
 payment of a small sum, as live guineas, where the pur- 
 chase-money is 100/., would not take the case out of the 
 statute ; hut he seemed clearly of opinion, that payment of 
 a considerable part of the purchase-money would be suffi- 
 cient : and he treated the case of Lord Fint^al \. Jloss as 
 ill-determined. However, it was not necessary to decide 
 the question. The opinion was clearly extra-judicial, hi 
 the late case of Coles v. Trecothick ((f), where the purchase- 
 money was 20,000/. and 2,000/. were paid in part, the 
 point was treated at the ])ar as doubtful, and the court evi^ 
 dently declined giving an opinion on the subject. 
 
 Upon the whole, ft appears clearly, that since the statute 
 of frauds the payment of a small sum cannot be deemed a 
 part performance. The dicta are in favour of a consider- 
 able sum being a part performance, but this construction 
 is not authorised by the statute, and it is x)pposcd by a 
 case in which the contrary was decided upon the most con- 
 vincing grounds. On this subject Sir AVilliam Grant's 
 admirable judgment in Butcher v. Butcher (^j), must occur 
 to every discerning mind ; it turns on a subject so ap- 
 
 (h) Main v. Melboun, 4 Ves. Hooper 1 Mer. 7- 
 Jun. 720. (p) 9 Ves. Jun. 382. 
 
 (o) 9 Ves. Jun. 234. Ex parte 
 
 where the plaintifl's name was Dkkiiisoi), and there the defendant's 
 name was Baskerville ; and tlie case is on a different point. Reg. Lib. 
 A. 1750, fol. 5i5. Neither does a case in the same book, fo. 514, by 
 the name of Davids v. Adams, embrace the point in question. The 
 search was made nudi-r the letter A as well as the letter D. — Note, the 
 case perhaps turned on the priiicioit; stated in p. 90^ injru, 
 
 plicuble
 
 OF PAROL AGRKEMEKTS. 107 
 
 plicablc to the present, that his arguments with a slight 
 alteration directly hear upon it. To say that a coiisidcr- 
 nhlc share of the purcliase-money must be given, is rather 
 to raise a question than to establish a rule. What is a 
 considerable share, and what is a trifling sum ? Is it to be 
 judged of upon t mere statement of the sum paid, without 
 reference to the amount of the purchase-money ? If s(T 
 what is tlie simi that must be given to call for tlie inter- 
 ference of the court ? AVhat is the limit of amount at 
 which it ceases to be trifling, and begins to be substantial ? 
 If it is to be considered with reference to the amount of 
 the purchase-money, what is the proportion which ought 
 to be paid ? JMr. Booth also was impressed with this diffi- 
 cidty, although his sentiments arc not so forcibly expressed. 
 Where, he asks, will you strike the line ? ^Vnd who shall 
 settle the quantum that shall suffice in papnent of part of 
 any purchase-money, to draw the case out of the statute; 
 or ascertain what sliall be deemed so trifling as to Icyive the 
 case within it (</) ? 
 
 Since the above observations were written, a decision of 
 liord lledesdale's has appeared, injvhjch he held clearly 
 tliat payment o f pu rchasc-moneyjg; not a part performance, 
 and although his I^ordship did not advert to alFthe^ cases 
 on the subject, yet it is sincerely to be hoped that his deci- 
 sion will put the point at rest. He said, that it had always 
 been considered that the payment of money is not to be 
 deemed a part performance, to take a case out of the sta- 
 tute. Seasrood v. INIcale is the leading case on that sub- 
 ject ; there a guinea was paid by way of earnest ; and it 
 was agreed clearly, that that was of no consequence in case 
 of an agreement toucliing lands ; now, if payment of fifty 
 guineas would take a case out of the statute, payment of 
 one guinea would do so equally ; for it is paid in both 
 
 (7) 1 Ca and Opin. 136. 
 
 cases
 
 108 OF PAKOL AGllEEMEXTS. 
 
 cases as part payment, and no distinction can be drawn 
 (r) : but the great reason, his I^ordship added, why part 
 payment does not take such an agreement out of the sta- 
 tute, is, that tlic statute has said, that in another case, 
 viz. with respect to goods, it shall operate as a part per- 
 formance. And the courts have therefore considered this 
 as excluding agreements for lands, because it is to be in- 
 ferred, that when the legislature said it should bind in case 
 of goods, and were silent as to the case of lands, they 
 meant that it should not bind in the case of lands (.?). 
 
 But, even admitting that the payment of purchase- 
 money may be deemed a part performance, yet the pay- 
 ment of the auction duty, however considerable, will not 
 enable the court to decree a specific performance of a 
 parol agreement ; as the revenue laws cannot be held to 
 operate beyond their direct and immediate purpose, to af- 
 fect the property, and vary the rights of the parties not 
 within the intention of the act (t). 
 
 In some cases it has been decided, that acts done by the 
 defendant to his own prejudice, could be made a ground 
 for compelling him to perform the agreement ; but in a 
 late case {u) the IMaster of the Rolls held the contrary 
 where there is no prejudice to the plaintiff, because the 
 ground on which the court acts is fraud in refusing to 
 perform, after performance by the other party {.r) ; but 
 where the defendant has, for instance, paid the auction 
 duty or purchase-money, it is no fraud on the vendor, 
 
 (r) See .-xcc. Pordage v. Cole, («) Buckmaster v. Harrop, ?//*« 
 
 1 Saund. 319, sicp. See Hawkins v.Holmes, 1 P. 
 
 {s) Cilnau v.Cookr, 1 Scho. "Wms. 770 ; and seepo^/. ch. 4, n. 
 
 and Lef.22 ; and see O'Herlihy v. observations on Potter v. Potter. 
 Hedges, ibid. 123 j" 14 Ves. Jun. (.r) See Popham v. Eyre, Lofft 
 
 388. • 786 ; Clinan v. Cooke, 1 Scho. 
 
 (Z) Buckmaster V. Harrop, 7 and Lef.22; and O'Herlihy v, 
 
 \>s. Jun. 3 11 ; 13 Vcs. Jun. 156. Hedges, ibid. 123. 
 
 hit
 
 OF PAROL AGREEMENTS. 109 
 
 but I loss to himself, which ought not to be made a 
 grou id for a sj^ecific performance against his consent. 
 
 Where a person purchases several lots of an estate, in- 
 cluded in distinct articles^ of sale, a part performance jis 
 to one lot, will not be deemed a part_performancc as to 
 the other lots, and will therefore only take the agreement 
 out of the statute as to the lot in respect of which there 
 was a part performance (y). 
 
 Tt may liappen, that although an agreement be in part 
 performed, yet the court may not be able to ascertain the 
 terms, and then it seems the case will not be taken out of 
 the statute. If, liowever, the terms be made out satis- 
 factorily to the court, contrariety of evidence is not ma- 
 terial (r,), and the court will use its utmost endeavours to 
 get at the terms of the agreement. 
 
 In the case of JMortiiner v. Orchard {(i), where a parol 
 agreement with two persons had been in part perfonncd, 
 the plaintiff's witness proved an agreement different from 
 that set up by the bill, and the defendants stated an agree- 
 ment different from both. The Chancellor thought in 
 strictness the bill ought to be dismissed, but as there had 
 been an execution of some agreement between the parties, 
 and there were two defendants who proved the agreement 
 set up by their answers, he decreed a specific pcrfonnance 
 of the agreement confessed by the answers. 
 
 In one case where upon the faith of a parol agreement 
 a man entered and built, it was proved tliat the defendant 
 told the plaintiff that his word was as good as his bond, 
 and promised the plaintiff a lease when he sliould have 
 
 (^) Buckmaster v. Harrop, 7 (rt')2 Ves. Jun.2}3 ; see Lindsay 
 
 Ves. Jun. 341. t. Lynch, 2 Scho. and Lef. 1. 
 
 (:)See 1 Ves. 221. 
 
 rciicwccl
 
 110 OF PAROT- Ar:i^Kr.:^IF.NTS. 
 
 iciiewcd liis own from his landlord. Lord Chancellor 
 Jeffcrics said, that the defendant v/as iJjuilty of a fraud, 
 and onglit to he punished for it ; and so decreed a lease to 
 the plaintiff, thou^-k the terms were uncertam. It was, he 
 said, in the plaintiff's election for Avhat time he would hold 
 it, and he elected to hold durinj^ the defendant's term at 
 the old rent, but the plaint {ff wa^ to pay costs {h). 
 
 And in a case from Yorkshire, possession having been 
 delivered in pursuance of a parol agreement, and a dispute 
 arising upon the terms of the agreement. Lord Thurlow 
 • sent it to the master, upon the ground of the possession 
 being delivered, to inquire what the agreement was. The 
 difficulty was in ascertaining what the terms were. The 
 master decided as well as he could, and then the cause came 
 on before Lord llosslyn, upon further directions, who cer- 
 tainly seemed to think Lord Thurlow had gone a great 
 way, and either drove them to a compromise, or refused 
 to go on with the decree upon the principle upon which it 
 was made (r). 
 
 Lord Thurlow, however, appears to have formed a set- 
 tled opinion upon this point. For in Allan v. Bower (</), 
 where his Lordship considered the written memorandum 
 as evidence of a parol agreement, which was in part per- 
 formed (whether rightly or not {e) is immaterial to the 
 present question), he directed the master, 'who had refused 
 to admit parol evidence, to inquire and state what the pro- 
 mise was, that w^as mentioned in the memorandum, and 
 at what time the promise was made, and ^uchat interest 
 the tenant teas to acquire in the premises under such 
 promise ; and the master was to be at liberty to state 
 specially any particular circumstances that might arise 
 
 {V) Anon. 5 Via. Abr. 523, pi. cited by Lord Eldon. 
 40 ; and see anon. ib. 522, pi. 38. {d) 3 Bro. C. C. 149. 
 
 (c) Anon, 6 Yes. Jun, 470, (c) See 1 Sch. and Lef. 37.
 
 OF TAROL AGREEMENTS. Ill 
 
 on such enquiries, and the parties were to be examined on 
 interrogatories. In consequence of this order, evidence 
 was received wliich proved, that the tenant was to hold 
 during his life, and Lord Thurlow decreed a lease to be 
 executed accordingly. 
 
 So in a case before I^ord Redesdale where an agreement 
 in writing was held to be within the >«;tatute, because the 
 term for which it was to be gTanted was not expressed, 
 his Lordship said, he should have had great difliculty if 
 there were evidence of part performance. He viust haia 
 directed a further enquiry, for the party had not suggested 
 by his bill, that the agreement was for any specific term, 
 and the case stood both on the pleadings and evidence im- 
 perfect on that head ( /'). And in a late case before Lord 
 Eldon, he tliought the court must at least endeavour to 
 collect, if they can, what are the terms the parties have re- 
 feiTcd to {g). 
 
 I?ut in the case of Symondson v. Tweed (/<), it was laid 
 down, that in all cases where\ cr the court had decreed a 
 sj^ecific execution of a parol agreement, yet the same had 
 been supported and made out by letters in writing, arid tfte 
 particular tei'ms stipulated therein, as a foundation for the 
 decree ; otherwise the court would never carry such an 
 agreement into execution. And in a case before the late 
 Lord Alvanley, when JNIaster of the Rolls (/), lie is re- 
 ported to have said, " I admit my opinion is, that the court 
 has gone rather too far in permitting part performance, and 
 other circumstances, to take cases out of the statute, and 
 then, unavoidably perhaps, after establishing the agree- 
 ment, to admit parol evidence of the contents of thtut agrec- 
 
 (/) Clinan V.Cooke, IScho. and (//) Prec. Cha. 374j Gilb. Eq. 
 
 Ltf. 'Je Rep. 35. 
 
 (ir) lioardman v. Mostjn, 6 (?) Torster ?. Uule, 3 Ves. Juu. 
 
 Vv:s.Jun. 467. 712,713. 
 
 ment.
 
 112 or I'AUOL AGREEIMEKTS. 
 
 mciit. As to part perform ance, it iniglit be evidence of 
 some aoTccineiit, but of >vbat must be left to parol evi- 
 dence. I always thought the coiu-t went a great way. 
 They ought not to have held it c^ idence of an unknown 
 agreement, but to have had the money laid out repaid. 
 It ouglit to have been a compensation. Those cases are 
 very dissatisfactory. It was very right to say, the statute 
 should not be an engine of fraud, therefore compensation 
 would have been very proper. They have, however, gone 
 farther, saying, it was clear that there was some agree- 
 ment, and letting them prove it ; but how does the cir- 
 cumstance of having laid out a great deal of money prove 
 that he is to have a lease for ninety-nine years ? The com- 
 mon sense of the thing would have been to have let them 
 bring an action for the money. I should pause upon such 
 a case." And Lord Eldon has said, that perhaps if it 
 was res intcgra, the soundest rule would be, that if the 
 party leaves it uncertain, the agreement is not taken out 
 of the statute sufficiently to admit of its being enforced. 
 
 In a late case in Ireland, where after a part performance 
 of a parol agreement the purchaser died, and there was no 
 evidence of the amount of the price agreed on, or of the 
 quantity of estate to be conveyed. Lord JNlanners refused 
 to grant a reference for the purpose of ascertaining the 
 terms of the contract. There was, his Lordship said, no evi- 
 dence whatever of the terms, and the reference was sought 
 to supply the entire absence of this very material part of 
 the ease Where there is a coiitradictory evidence in a 
 case that raises a doubt in the mind of the court, that is to 
 say, where the case is fully proved by the party on whom 
 the onus of proof lay, but that proof shaken or ren- 
 dered doubtful by the evidence on the other side, there 
 the court will direct a reference or an issue to ascertain 
 the fact ; but where there is no evidence whatever, would 
 it not, he asked, be introducing all the mischiefs intended 
 
 to
 
 OF PAROL AGIlEE:irEXTS, 113 
 
 to be giiartled against by the rules cf tlie court in not ah 
 lowing evidence to be gone into after publication, and 
 liolding out an opportunity to a party to supply the defect 
 by fabricated evidence if he were to direct such an in- 
 quiry ? He therefore did not think himself at liberty from 
 the evidence in the case to direct tlie reference or issue 
 desired (k). 
 
 We caniLot but observe then, that considerable reluct- 
 ance is manifested to caiTy parol agreements into execu- 
 tion, on the ground of part performance, where the terms 
 do not distinctly appear ; but notwithstanding the case 
 before Lord Manners, there appears to be abundant autho- 
 ri^;^' to prove that the mere circumstance of the terms not 
 appearing, or being controverted by the parties, will not, 
 of itself, deter the court from taking tlie best measures 
 to ascertain the real terms. And we may remark, that it 
 can rarely happen, that an agreement cannot be distinctly 
 proved, where the estate is absolutely sold. ]Most of the 
 cases on this head have arisen on leases, where the cove-: 
 nants, &c. are generally left open to future consideration. 
 
 Whprje a parol agreement is so far executed as to entitle 
 either of tlie parties to require a specific execution of it, 
 it will be binding on the representatives of the other party 
 in case of his death, to the same extent as he himself was 
 bound by it (/). 
 
 In a case before Lord Redesdale (m) he held that a con- 
 tract by a tenant for life with a power of leasing, to 
 grant a lease under his power, was binding on the remain- 
 der man. In the course of the argument, a question was 
 put from the bar, whether, if tliis had been a case of a pa- 
 rol agreement in part performed, it could be enforced. 
 
 (Z) Savage v. Carroll, 1 Ball (/) Fidt tftfruj ch. i. 
 
 and Beatty, 265; See ib, ^OJ, (m) Shannon t. Bradstreef, 1 
 
 .550, 551. Scho. and Lef. 52. 
 
 1 III
 
 114 OF PAROL AGREEMENTS. 
 
 In answer to wliich Lord Ticdesdale expressed himself 
 thus: "Thcat, 1 tliink, would raise a very distinct question, 
 a question upon the statute of frauds ; and perhaps a re- 
 mainder man might be protected by the statute, tliough the 
 tenant for life would not. For the party himself is bound 
 by a part performance, of a parol execution of a parol agree- 
 ment, principally on the ground of fraud, which is personal. 
 Such a ground could scarcely he made to apply to the 
 case of a remainder man unless money had been expended, 
 and there had been an acquiescence after the remainder 
 vested, which were held by Lord Hardwicke, in Stiles v. 
 Cowper, 3 Atk. 692, in the ease of an actual lease under 
 a power, but with covenants not according to the power, 
 to bind the remainder man to grant a lease for the same 
 term with covenants according to the power." 
 
 These remarks may be closed by observing, that equity 
 seems to have been guided by nearly the same rules in com- 
 pelling a specific performance of parol agreements before 
 the statute (;?), as have been adhered to since ; but still, 
 the student cannot be too cautioirs in distinguishing the 
 cases which were decided before the statute from those 
 decided subsequently. INIucli confusion has arisen from 
 inattention to this point. 
 
 («) See Miller v. Blandist, Toth, Rep. 128 ; Anon. 2 Freem. 128 ; 
 
 85; William V. Nevil, ibid, 135; Vol! v. Smith, 3 Cha. Rep. 16; 
 
 Feme v. Bullock, ibid. 238, 200; and see Marquis of Normanby y. 
 
 Clark v. Ilackwell, ibid, 260; Duke of Devonshire, 2 Freem. 
 
 Simmons v. Cornelius, 1 Cha. 217, 
 
 SECT.
 
 OF PAUOL EYIDEXCE. 115 
 
 SECTION IV. 
 
 Of the Admissih'd'ity of parol evidence to vai'y or annul 
 zvritten instruments. 
 
 \Jy this learniiig we may treat under three heads. 1st, 
 where there is not any ambiguity in the written instru- 
 ment ; 2dly, wliere there is an ambiguity ; and, 3dly, 
 where a term of an agreement is omitted or varied in the 
 written instrument by mistake ov fraud .-^ And, 
 
 I. Previously to the statute of frauds, parol evidence 
 might have been given of collateral and independent facts, 
 which tended to support a deed. Thus, although a va- 
 luable consideration was always essential to the validity 
 of a bargain and sale, yet RoUe laid it down, that (o) 
 upon averment that the deed was in consideration of 
 money, or other valuable consideration given, the land 
 should pass, because the averment was consistent with the 
 deed. TJie same rule has prevailed since the statute of 
 frauds, Where in a conveyance 28/. only were stated to 
 have been received, parol evidence was admitted to prove, 
 that 2/. more were actually paid {p). And in a later case 
 parol evidence was received, that a sum of money was 
 paid as a premium in order to constitute the relation of 
 master and apprentice, although no mention of it was 
 made in the written agreement entered into between the 
 
 (o) 2 llo. Abr.786, (N.) pi. 1 ; (/>) Rex v, the inl.abitanfs of 
 
 and Sfe 1 Rep. 176, a. ScainmonJen, 3 Term Rep. 474. 
 
 1 2 parties
 
 116 or PAKOL EVIDKNCE. 
 
 parties {rj). In all these cases we observe, that the evi- 
 dence is not otl'ercd to contradict or vary the agreement, 
 but to ascertain an inde])end('nt I'act, v>liich is consistent 
 w'itli the deed, and which it is necessary to ascertain, with 
 a view to effectuate the real intention of the parties. 
 
 It is. liowever, clearly settled, that parol e\idencc is 
 not admissible to disannul and substantially vary a written 
 agreement ; for, as Lord Hardwickc obser\es, to add any 
 thing to an agreement in writing by admitting parol evi- 
 dence, is not only contrary to the statute of frauds and per- 
 juries, but to the rule of the common law before that statute 
 was in being (r). 
 
 Thus, in a leading case on this subject (,v), it appeared 
 that by an agreement iu writing, the grass and vesture of 
 hay from off a close of land, called Boreham's ^leadow, 
 were, to be taken by one Ansell. The subscribing Avitness 
 to the agreement proved the written agreement, and he and 
 another person deposed, that it was at the same time (when 
 the written agreement was made) agreed by the parties by 
 farol, that Ansell should not only have the hay from off 
 Boreham INIeadow, but also the possession of the soil and 
 produce of that and another close of land. The cause 
 was tried at nisi prius before Lord JMansfield, who ad- 
 mitted the evidence, and afterwards reported that he was 
 not dissatisfied with the verdict in consequence of it. But 
 Lord Chief Justice De Grey, and the other Judges of the 
 court of Common Pleas, held decidedly, that the evi- 
 
 (9) Rex V. the Inhabitants of Taunt 347, 
 
 La'nulon, 8 Term Rep. 379, and (4) Meres v. Ansell, 3 Wils. 
 
 see 2 Cha. Ca. M3. 275 ; and see Mease t. Mease, 
 
 (/•) Parteriche v.Powlet, 2 Atk. Cowp 47, Lofft.457 ; Cuff v.Penn 
 
 383 ; and see Tinney v. Tinney. 1 Mau. and Selw. 21, Greaves v. 
 
 3 .\tk. 8 ; Binstead v. Coleman, Ashlin 3 Campb. 426 ; Hope v. 
 
 liunb. 65 ; Ho5g y. Snaith, 1 Atkins 1 Price, 143. 
 
 dcncc
 
 OF PAROL EVIDENCE. 117 
 
 dence ^vas totally inadmissible, as it annulled and substan 
 tially altered and impugned the written agreement. 
 
 So in Preston v.Merceau (/), by an agreement in writing, 
 a house was let at 267. a year ; and the landlord attempted 
 to sliow, by parol evidence, that the tenant had agreed to 
 pay the ground-rent for the house to the original landlord, 
 over and above the 26/. a year ; but the court of Common 
 Pleas rejected the evidence. 
 
 And upon tlic general rule of law, as it seems, inde- 
 pendently of the statute of frauds, it has been determined 
 that verbal declarations by an auctioneer in the auction- 
 room, contrary to the printed conditions of sale, are in- 
 admissible as evidence, unless perhaps the purchaser has 
 particular personal information given him of the mistake 
 in the particulars (u). , 
 
 In a late case (.r), upon the sale of timber by a ^vritten 
 particular, which was silent as to the quantity, it was 
 attem])ted to show, that the auctioneer verbally warvant- 
 cd tlie quantity to be SO tons, and it was insisted that this 
 evidence ^va,s adniis.sible, because it did not contradict 
 the particulars, but merely supplied its defect in not 
 stating the quantity. But it was held that the evidence 
 was not admissible. Lord Ellenborough said, that the 
 purchaser ought to have had it reduced into writing at 
 the time, if tlie representation tlien made as to the quan- 
 tity swayed him to bid for the lot. Tf the parol evidence 
 were admissible in this case, he knew of no instance where 
 a party might not, by parol testimony, superadd any term 
 to a written agreement, which woidd be setting aside all 
 written contracts, and rendering them of no effect. Tlierc 
 
 (/) 2 niacksr. 1219. v. Clowts, 15 Vos. Jim. 5]6, 
 
 (») Crunnis v. Isrhart, 1 H. (.r) Powfll v. Edmunds, 12 
 
 RIackst. 289; see 13Ves. .Tun. East, 6; Jones v. Edney, 3 
 
 -171, ni;d infra; and Fife v. Clay- CaiDpb. 285. 
 
 too, 13 Vis. Jun. 5 ir> ; Hlgginson 
 
 1 'J was
 
 118 OF TAROL EVIDENCE. 
 
 was no (loubtj his Lordship added, that the warranty as 
 to tlie tjuantity of timber would not vary the agreement 
 contained in the written conditions of sak\ 
 
 So since the act of parhament for altering the stile, 
 a demise from IMichaelmas must be taken to be from new 
 ]\lichaelmas, and parol evidence cannot be admitted to show 
 that the parties intended it to commence at old iNlichael- 
 mas (/y). 
 
 The rules of evidence are universally the same in courts 
 bf law and equity. Therefore parol evidence, which 
 goes to substantially alter a written agreement, cannot be 
 received in a court of equity any more than in a court of 
 law (;:;). 
 
 Thus in tlie case of Lawscfil v< Laude (a), a bill was 
 brought to carry into execution an agreement between the 
 plaintiff and defendant, for granting to the defendant a 
 lease of a farm. The defendant objected to execute the 
 lease, because some land, called Oxlanc, agreed to be de- 
 mised, was left out of the lease. The plaintiff offered 
 evidence to prove, that it was left out by the particular 
 and joint direction of the plaintiff and defendant. Sir 
 Thomas Clarke held the evidence to be in direct contra- 
 diction to the statute of frauds, and therefore dismissed 
 the biU. 
 
 So in a ca^e before Lord Bathiirst (6) where a bill 
 v>\is filed for an injunctioji to stay proceedings at law for 
 a breach of covenant, in not assigning all the premises, 
 which the defendant insisted by an agreement in \vTiting, 
 and a lease in pursuance of it, were to be assigned. The 
 plaintiff stated by his bill, tliat though the agreement was 
 
 (v) Doe V, Lea, II Fast 312. (i) Fell v. Chamberlain,2 Dick 
 
 (s) See 3 Wils. 276 3 and see 484 ; I could not meet with the 
 Foot V. Sal way;, 2 Cha. Ca. 142. facts in the Register's Bock ; see 
 
 (a) 1 Dick, 346, Reg. Lib. A. 1772, fol. 1, 496. 
 
 for
 
 OF PAROL EVIDENCE, 119 
 
 for all the premises, yet the defendant, at the time of the 
 execution of the lease, agreed, that three pieces of land 
 should be excepted, and the plaintiff examined several 
 witnesses to prove the fact, which they did ; but the de- 
 fendant by his answer denied the fact, and insisted upon 
 tlie extent of the written agreement, and the parol evidence 
 being objected to at the hearing, it was not permitted to be 
 read. 
 
 And in an impoi'tant case beforc Lord Eldon (c) his 
 Lordship refused to execute an agreement with a varia- 
 tion attempted to be introduced by parol on the ground of 
 mistake, or at least of surprise, wliich was denied by the 
 answer. 5o in the late case of WooUam v. Hearn {d\ 
 where a specific performance was sought of an agreement 
 for a lease, at a less rent than that mentioned in the agree- 
 ment, which variation was introduced by parol, on the 
 ground of fraud and misrepresentation in the landlord ; 
 the evidence v^as read without prejudice, and the Master 
 of the llolls thouglit it made out the plaintiff's case; but 
 his honour held himself Iwund by the authorities, and ac- 
 cordingly rejected the evidence, and dismissed the bill. 
 And this doctrine has been distinctly recognized by Lord 
 Kedesdale {c). 
 
 So verbal declarations, in opposition to printed condi- 
 tions of sale, are inadmissible as evidence, in equity as wcM 
 as at law ( /'). 
 
 And if a material term be added by one party to a writ- 
 ten agreement after its execution, he destroys his own 
 rights under tlie instrument. But altliough tJiis doctrine 
 
 {x) Marquis of Towiisliiiul v. (/ ) J^nkinsnii 7. Pt-pys, 6 V^cs. 
 
 Stai^rooi*, 6 Ves. Juu. 328; sec Jun. 330, cited; 15 \'<s. Ju;i. a'Jl ; 
 
 1 Ves. Pnd Bra, 526, 527. 1 Vcs. ami Bea. 5'-8 ; see 15 Ves. 
 
 ((/) 7 Ves. Jun. 211. Jun. 171, 5 16; lligginson v. 
 
 (.) 1 Scho. and Ltl". 39, 3 Clowe?, 15 Vcs. Ju;i.516.
 
 l20 OF TARCyL tVlIiKNCE. 
 
 lias been referred to tlic statute of frauds, yet it .'^eems 
 rat]icr to depend on the piinci})les of tlie coininon law (fi;). 
 
 But when equity is called upon to exercise its peculiar 
 jurisdiction, by decreeing a specific performance, the pdrtu 
 to he chci7^gcd is to be let in to show, that, under the eir- 
 fcunistances, the plaintiff is not entitled to have the agree- 
 ment specifically performed (/?). 
 
 Therefore a defendant resisting a specific performance 
 of an agreement may prove by parol eiddence, that by fraud 
 the written agreement does not contain the real ternis (/). 
 Such evidence was admitted by Lord Hardwicke in Joynes 
 V. Statham (/.'), and in the late case of Woollam v. Hearn, 
 {/), before cited, the blaster of the Rolls said, that if it had 
 been a bill l)rought by the defendant for a specific perform- 
 ance, he should have been bound by the decisions to admit 
 tlie parol evidence, and to refuse a specific performance. 
 
 So Lord Hardwicke admitted that an omission by mis- 
 take or surprise, would let in the evidence as well as fraud ; 
 and Lord Eldou in a recclit ease actually admitted parol 
 evidence of surprise, as a defence to a bill seeking a per- 
 foi'mance in specie ; but his I^ordship said, that those pro- 
 ducing evidence of mistake or surprise^ in opposition to a 
 specific performance, undertake a case of great diflSculty 
 (w). In a later case the Master of the Rolls admitted 
 parol CA'idence on behalf of a dcfendantj to show a parol 
 promise at the time of signing the agreement to vary the 
 terms of it, and upon the evidence he dismissed the bill for 
 a specific performance of the written agreement (7?)^ 
 
 {g) Powell V. Divett, 15 East. {k) 3 Atk, 388. 
 
 119. (0 7 A'es.Jun. 211. 
 
 (/i) See 7 Ves. Jan. 219. {m) Marquis of 'I'ownshend v. 
 
 (/) See the cases cited infra, As Slangroom, 6 Ves. Juri'. 328. 
 
 to discharging or varying a written (;;) Clar]<e v. Grant, 14 Ves. 
 
 agreement by parol ; and see Wa!- Jun. 519^ Jjr.d see 15 Ves, Jun. 
 
 k< r V. Walker, 2 Atk. 98 ; and see 523, 
 6 N'es. Jun. Zol ^ n. " 
 
 And
 
 Ami wliore lands, wliicli upon admeasurement did not 
 I'outtiin thirty-six acres, were described in a particular to 
 contain forty-one acres by estimation, were the same more 
 or less, and the purchaser in answer to a bill for a specific 
 performance set up parol declarations of the auctioneer that 
 he sold it for forty-one acres, and if it was less, an abate- 
 hient should be made, his honour admitted the evidence and 
 dismissed tlie bill, because after such a declaration made by 
 the auctioneer, it was fraudulent and unfair in the seller to 
 insist upon the exccutioin of the contract, not giving the 
 defendant the benefit of that declaration (o). 
 
 So where by the mistake of the Solicitor the agree- 
 ment only rc(piired the ])urchasor to bear the expense of 
 the conveyance, whereas the real agreement was, that he 
 should also bear the expence of making out the title, the 
 INIaster of the Rolls admitted parol evidence of the real 
 agi-eement and of the mistake, and u])on the strength of 
 it his honour gave the plaintiff, the ])urchaser, his option 
 to have his bill, which was for a spceiiic performance accord- 
 ing to the term of the written agreement, dismissed, or to 
 have the agreement perfonncd in the way contended for by 
 the seller (p). 
 
 But in a case where a \vi-itten agreement for a lease was 
 varied in part by parol, and upon a bill filed by the tenant 
 for a specific performance of the original agreement, the 
 landlord set up a subsequent parol waver of the written 
 agreement, and a new agreement entered into at his solici- 
 tor's, every term of which was to the disadvantage of tlic 
 plaintiflP*, without any consideration for the variation : tlie 
 Master of the llolls decreed a specific performance according 
 
 (o) Winch V. Winchester, 1 FInlay, 2 Ball anti Realty 9 ; 
 
 \"t'S. and Beam. 375. Lord William Ciorilon v. Marquis 
 
 (p)Ramsbottom t. Cosden, 1 of Hertford, 2 Madd. 106. 
 
 ^es, a.ul Beam. l65 ; see Flood v. ./^^^ ^^ ^ ^U^^y- -
 
 122 OF PAROL liVIDENCE. 
 
 to tlie prayer of the bill. His honour considered the ca;>c 
 made out by the landlord (q) not a rvavcr of the contractf 
 but a variation by parol which had not been acted upon, and 
 which was made without consideration. The first parol va- 
 riation, it may be observed, was admitted, and the plaintiff 
 would have been willing to execute it. 
 
 And in a case where an estate was sold in lots, and at 
 the end of some of the lots only it was stated, that the tim- 
 ber was to be taken at a valuation ; but there was a general 
 condition that the timber should be paid for ; the seller's bill 
 for a specific performance, requiring the purchaser of several 
 lots to pay for all the timber, was dismissed, and parol evi- 
 dence of the declaration of the auctioneer that the timber on 
 all the lots was to be paid for, was rejected. The purchaser 
 then filed a bill against the seller for a specific perfoiTiianec, 
 according to his construction that he was to pay for the tim- 
 ber on the lots only to which a stipulation to that effect was 
 added. The seller, as defendant^ offered parol evidence of 
 the declarations by the auctioneer. The Vice Chancellor 
 agreed, that fraud, mistake, or surprise, would let in the evi- 
 dence as a defence ; but, no authority having decided that 
 evidence can be received except upon one of those grounds, 
 and these declarations in the case before his honour being 
 offered where the parties had contracted in wTiting upon a 
 subject distinctly adverted to in their written contract, which 
 made a provision for it, (whether explicit and satisfactory is 
 not material), the evidence of these declarations must be re- 
 jected, because there was no fraud, mistake, or surprise, and the 
 evidence was offered to contradict, explain, or vary tlie 
 written contract (r). It was not, however, necessai-y to de- 
 cide the point, and it may perhaps deserve re-consideration 
 whether the evidence might not be deemed admissible in 
 
 (f/) Price V. Dyer, MS. ?. C. (r) Clowes v. Iligginson, 1 Vcs. 
 
 17 Vfes. Jun. 356. and Bea. 524. 
 
 equity
 
 OF PAilOL EVIDENCt:* ISS 
 
 equity as a defence, simply on the ground that tlie plaintiff, 
 who ought to come into equity with clean hands, sought to 
 commit a fraud in evading to pay for the timber, although 
 the auctioneer declared that it was to be paid for. 
 
 The case before Lord Eh I on {s) shows the rule of equity 
 in a strong light; The landlord filed a bill for a specific 
 performance of the written agreement, varied by the parol 
 evidence ; the tenant filed a croBS^])ill for a specific perform- 
 ance of the written agrecmenti The result was tliat both 
 bills were dismissed ; the first because parol evidence was not 
 admissible as a foundation for a decree enforcing a specific 
 performance ; the second on the ground that such evidence 
 w'as admissible to rebut the equity of the ])laintifF in the se- 
 cond bill. 
 
 A similar case appears to have been decided by Lord 
 Chancellor JNIacclesfiekh The case has, I believe, never been 
 cited, and it requires some attention to get at the facts. 
 Tliey appear, however, to be, that the plaintiff in the first 
 bill sought a ajiecific })erformance of an agreement by him to 
 grant a lease to the defendant. The defendant «ct up a 
 parol agreement, by which he was to have liberty to grub 
 bushesi, and exhibited a cross-bill for a performance in specie 
 of the written agreement, witli the addition of a clause, to 
 grub bushes according to the parol agreement ; and both the 
 bills were dismissed, but without costs (/). 
 
 Upon the admissibility of parol evidence, as a defence to 
 a bill seeking a specific performance, Lord Redesdale has 
 forcibly observed, that it should be recollected wliat are the 
 \^;ords of the statute : " No person sliall be charged upon any 
 contract or sale of lands, unless the agreement, or some me- 
 morandum or note thereof, shall be in writing, and signed by 
 
 (s) Lord Townslieiid v. Sfan- I have searched tlie Register's 
 groom. books for this rase without success, 
 
 (0 Hosier v, Rriid, 9 Mod 8G; 
 
 the
 
 124 OF PAIJOL KVIDENYt. 
 
 the party to be charged therewith, or some other person 
 tliereuiito by hiin lawfully authorised." No person shall be 
 charged with the execution of an agreement who has not, 
 either by himself or his agent, signed a written agreement ; 
 but the statute does not say, that if a written agreement is 
 signed, the same exception shall not hold to it that did be- 
 fore the statute. Now, before the statute, if a bill had been 
 brought for specific performance, and it had appeared that 
 the agreement had been prepared contrary to the intent of 
 the defendant, he might have said, " That is not the agree- 
 ment meant to have been signed." Such a case is left as it 
 was by the statute : it does not say, that a written agreement 
 shall bind, but that an unwritten agreement shall not bind 
 (ic). And nearly the same observations upon the negative 
 AYords of the statute, w^re made by I^ord Chief Baron Skin- 
 ner in the great case of Rann and Hughes (x). 
 
 But if parties enter into an agreement which is correctly 
 reduced into writing, and at the same time add a term by 
 parol, equity cannot look out of the agreement, although 
 the person insisting ujion the parol agreement is a defend- 
 ant, and sets it up as a bar to the aid of the court in favour 
 of the plaintiff. 
 
 Thus, in Omerod v. Hardman (y), the vendor filed a bill 
 for a specific performance. It was not mentioned in the 
 written agreement at what time the purchaser was to 
 take possession of the estate ; but the purchaser, the defend- 
 ant, offered parol evidence to show% that it was at the same 
 time agreed, though not made part of the written agreement, 
 that he should be let into possession at a stated time ; aiid 
 he resisted a performance of the agreement, on the ground 
 of possession not having been delivered to him according to 
 the parol agreement. ]Mr. Justice Chambre objected to the 
 
 (u) 1 Scho. and Lef. Rep. 39. '/) 5 Ves. Jun. 722. 
 
 (*; 7 Term lUp. 350, n, 
 
 evidence
 
 OF PATIOL EVIDENCE. 125 
 
 evidence being read. He said, that it was urged for the de- 
 fendant, that e\ idence may he read wliere the parol agree- 
 ment is not inconsistent witli the written agreement. This, 
 (that is the parol agreement, in the case before him) he added, 
 was to further the written agreement, and to secure what 
 was through carelessness omitted to be provided for in the 
 written agreement, viz. delivery of possession, according to 
 the custom of tlie country. Mr. Baron Graham said, that 
 the parol agreement coidd only be admitted where the 
 written agreement was not draAvn according to the intention 
 of the parties at the time. You cannot by parol add any 
 thing to what was the real agreement at the time, after that 
 has been correctly reduced into writing. And he entirely 
 agreed with INIr. Justice Chambrc, that the parol could not 
 be made to form part of the written agi-eement. 
 
 Lord Hardwicke is reported (z) to have said, that a plain- 
 tiff seeking a specific performance might enter into parol 
 evidence to show that the defendant was to pay the rent clear 
 of taxes, no mention being made of taxes in the agreement ; 
 because it was an agreement executory only, and, as in leases, 
 there were always covenants relating to taxes, the master 
 would enquire what the agreement was as to taxes, and 
 therefore the proof would not be a variation of the agreement. 
 And this extra-judicial opinion appears to have been approved 
 of by two enlightened judges (a), one of whom (6) laid it down, 
 that parol evidence was admissible to prove collateral matters 
 concerning which nothing was said in the agreement, as who 
 was to put the house in repair, or the like. 
 
 (a) 3 Atk. 389, 390 ; but see 4 (a) See 2 Blackst. 1250 j 7 Ve?. 
 
 Bro. C. C. 518 ; 6 Ves. Jun. 335, Jun. 221. 
 n ; I'Scho, and lef. Rep. 38. [b) Mr. Justice Blackstoue. 
 
 But
 
 126 OF PAROL EVIDENCE. 
 
 But notwitlistuiKliiig tlicso dicta, it has been expressly 
 decided, tluit ])ar(d evidence of even collateral matters, such 
 as the payment of taxes, &'e. which arc of the essence of the 
 agreement, is inadmissible both at law and in equity. Thus 
 in Rich v, Jackson (r), it appeared that William Stiles and 
 A'\'illiam Jackson entered into a treaty for the lease of a 
 house belonging to Stiles, and in a conversation betv/een 
 them on the subject, Jackson offered 80/, a-year rent, and 
 that he would pay all the taxes, which Stiles agreed to ac- 
 cept. An agreement was drawn up by Jackson, in his own 
 hand-writing, in which no notice was taken of taxes. Rich, 
 who claimed under Stiles, refused to execute a lease unless 
 the rent was made payable clear of taxes, and Jackson the 
 defendant, who claimed under AVilliam Jackson, refused to 
 accept such a lease, Jackson having paid some money for 
 land-tax, brought an action in the court of Common Pleas 
 for the recovery of it, the plaintiff ha\ ing refused to deduct 
 it in the payment of the rent. The cause was tried at 
 Guildhall before Lord Rosslyn, then Lord Chief Justice of 
 <tlie Common Pleas. The defendant was suffered to give 
 parol evidence of the red agreement, and his Lordship gave 
 credit to the veracity of the witnesses, notwithstanding which 
 he rejected the evidence, and directed a verdict to be given 
 for Jackson, with costs ; and upon an application to the court 
 of Common Pleas, the court approved of the verdict, and re- 
 fused a rule to show cause why the same should not be set 
 3side. 
 
 In this branch of the case, therefore, the point was so- 
 lemnly decided in a court of lav/, and the same determination 
 was afterwards made upon the same case in a court of equity. 
 Rich being defeated at law, filed his bill for a specific per. 
 formaucc of the agreement, varied by the parol evidence ; and 
 .the cause came on to be heard before Lord Rosslyn, then 
 
 {c) 4 Uro. p. C. 514, 6 Vc-s. Jun. 334, n. 
 
 Lord
 
 OF PAROL EVIDENCE. 127 
 
 liOrd Chancellor, who said, that the prior conversations and 
 the manner of drawing up the agreement by one party, and 
 signing it by another, would have no influence. The real 
 question was, whether in equity any more than at law, the 
 evidence ought to be admitted ; whether there is any distinc- 
 tion in a court of equity, where a party comes to enforce a 
 written agreement by obtaining a more formal instrument, 
 and to add, in doing that, a term not expressed in the written 
 agre§ment, and of such a nature as to bear against the written 
 agreement. He had looked into all the cases, and could not 
 find that the court had ever taken upon itself, in executing a 
 written agreement by a specific perfonnance, to add to it by 
 any circumstance that parol evidence could introduce. And 
 he accordingly dismissed the bill, but without costs. 
 
 Indeed Lord Rosslyn appears to have made a similar de-- 
 cision in a case prior to that of Ridi v. Jackson, The case 
 to which I allude is Jordan v. Sawkins (d) ; where a bill was 
 filed for a specific performance of a lease, and it was stated, 
 that there was a memorandum annexed to the original agree- 
 ment, that the tenant (I) was to pay the Lnid-tax (which, 
 it must be presumed, was not signed, and was therefore 
 only tantamount to a parol agreement). The cause was 
 heard before the Lords Commissioners Eyre, Ashurst, and 
 Wilson, who decreed a performance of the contract with 
 the variation, that it was to be at a clear rent of 40/. 
 xvithout deducting land4ax. The cause was re-heard be- 
 fore Lord Rosslyn, who said, that if the agreement had 
 
 yd) Jordan v. Suwkins, 3 Bro. and Lef. 305 ; and see the cases 
 C (/. 388, 1 Ves. Jun. 402 ; and injra^ as to the discharge of a parol 
 see O'Connor v. Spaight, 1 Schu. agreement. 
 
 (I) In the report, the name of the landlord b, by mistake, printed for 
 that of the tenant. 
 
 been
 
 been camcd into execution as it originally stood, tlic land- 
 lord must have paid the land-tax. The court could not 
 specifically perform an agreement with a variation, and, 
 he therefore reversed tlie decree and dismissed the "bill, 
 
 Ah a term agreed upon by parol cannot be added to a 
 written jigrcement, by a parity of reason a written agree- 
 ment cannot be varied by parol. 
 
 This was decided by Lord Thurlow in a branch of the 
 last mentioned case (c). It appeared that a lease was 
 agreed by writing to be granted of a house for 21 years, 
 to commence from the 21st of April, 1791, and that it 
 was afterwards agreed by parol, that the lease should com- 
 mence on the 24th of June instead of the 21st of April. 
 To a bill filed by the tenant for a specific perfonnance of 
 the written agreement, varied by the parol agreement, the 
 statute of frauds was pleaded, and Lord Chancellor 
 Thurlow held, that the different period of commencing the 
 lease made a material variation, as it gave the estate from 
 the owner for so many months longer, and therefore he 
 allowed the plea. 
 
 The rule of law is, ?iihtl tarn comenicns est nahirali. 
 cequitati, unumquodquc dissolvi eo Ugamine quo Ugatwn 
 est : and therefore, in general, as we have seen, an agree- 
 ment in writing cannot be controlled by averment of the 
 parties, as it would be dangerous to admit such nude aver- 
 ments against matter in writing (/). This was an impe- 
 rative rule, previously to the statute of frauds ; and the 
 statute required that " all agreements upon any contract 
 or sale of lands, &c. should be in MTiting." Now, as Lord 
 
 (e) S-^e Robson v, Colliii?,, 7 5 Co. 25 b ; Blemerhasset v. Pier- 
 Ves. Jun. 130. son, 3 Lev. 234. 
 
 (/) Countess of Rutland's case, 
 
 Hiirdwicke
 
 OF PAROL EVIDENCE, 129 
 
 Hardwicke observed, an agreement to wave a purchase 
 -contract, is as much an agreement concerning lands as the 
 /original contract (g) ; notwithstanding -which it is univer- 
 sally considered, that an agreement in writing concerning 
 land may be discharged, although it cannot be varied by 
 l)arol {h). And in a late case, where all the authorities 
 were mentioned, but in which it was not necessary to de^ 
 cide the point (?), the Master of the Rolls appeared to 
 consider that a written agreement might be abandoned by 
 |iarol. 
 
 The first case on this head, is a short note in Vernon 
 (A"), where the precise point occurred, and the Lord 
 Keeper held, that the agreejnent might be discharged by 
 parol, and therefore dismissed the bill, which was brought 
 to have the agreement executed in specie. The next case 
 is reported by Viner (Z). The case was, that A leased a 
 house to B for eleven years, and was to allow 20/. to be 
 laid out in repairs ; the agreement was reduced into 
 writing, and signed and sealed by both parties. B re- 
 paired the housCp and finding it to take a much greater 
 sum than the 20/. told A of it, and that he would never- 
 theless go on and lay out more money if he would eur 
 large the term to 31 years, or add 14, or as many as B 
 sliould think fit. A replied, that they would not fall out 
 about that, and afterwards declared that he would en- 
 large the term, without mentioning the term in certain. 
 The question was, \yhether this new agreement, made 
 
 C^r) 2 Eq. Ca. Abr. 33. (i) Price v. Dyer, MS. rJnils. 
 
 (/t) 1 Ves. Jun. 404 ; 4 Bro. S. C. 17 Ves. Juu. 356 post. 
 
 C. C. 519 ; 6 Ves. Jun. 337. n ; (k) Gonian v, Salisbuiy, 1 Vorti. 
 
 9 Ves. Jun. 250 ; 3 WooJdes. 210. I could nut discover any 
 
 428, s. iv. ; Rob. on Stat, of trace of this cause in the Uegis- 
 
 Frauds, 89 ; and Inge v. TJppiiig. ter's boojc. 
 
 Y/ell, 2 Dick. 469 j but see Kaye (/) Auon. 5, Vin. L':,'. pi. 38. 
 
 v» Waghorn, 1 Tauut. '128. 4 Geo. 
 
 K by
 
 l.'iO OI PAROL EVIDENCE. 
 
 by paro], wliich varied from tlic "written agreement, slioukl 
 be carried into exeeution notwithstanding tlie statute of 
 frauds. The Master of the llolls said, tliat before the 
 statute, a written agreement could not be controlled by a 
 parol agreement, contrary to it, or altering it ; hut this 
 xvas a neiv agreement^ and the laying out the money was 
 a part performance on one part, and ought to be canicd 
 into execution, and built his decree on these cases : first, 
 where a parol agreement was for a building lease, and be- 
 fore it was reduced into writing, the lessee began to build, 
 and after differing on the terms of the lease, the lessee 
 brought a bill, and the lessor insisted on tlic^ statute of 
 frauds : tlie Lord Keeper dismissed tlie bill, but the plain- 
 tiff was relieved in JJom. Proc. ; and the second was a case 
 in Lord JefFries's time. 
 
 Then came the case of Buckhousc and Crosshy before 
 Lord Hardwicke (w), where, to a bill filed by a purchaser 
 for a specific performance, the vendor insisted the con- 
 tract had been dlschcoged by a parol, and the case of 
 Goman v. Salisbury was cited by his counsel as an au- 
 thority in his favour. The LorJ Chancellor, under the 
 circumstances, decreed for the plaintiff, witli costs ; and 
 declared, that though he would not say that a contract in 
 writing would not be waved by parol, yet he should ex- 
 pect in such a case very clear proof; and the proof in 
 tlie present case he thought very insufficient to discharge 
 a contract in writing ; and observed, that the statute of 
 frauds and perjuries requires that " all contracts and 
 agreements concerning land should be in writing." TCow, 
 an agreement to wave a purchase contract is as- much an 
 agreement concerning lands as the original contract. How- 
 ever, he said, there was no occasion now id determine this 
 Xioint. 
 
 {m) 2 Eq. Ca, Abr. 32, pi, 41. 10 Geo. 2. 
 
 And.,
 
 OF TAEOL EVIDEXCE. 131 
 
 Aiul, in anotlicr case, Lord Hardwicke is reported to 
 }\ave said, that it was certain that an interest in land could 
 not be pa?'ted xvith, or rcavecl hy naked parol, xnihout 
 rv}'iti?ii^' ; yet articles mig^ht, by parol, be so far waved, 
 that if the party came into equity for a specific execution, 
 such parol wa\'er would rebut the equity which the party 
 before had, and prevent the court from executing them 
 specifically (;?). 
 
 The case of Legal v, ISIiller (o), comes next in point of 
 time. Tlie agreement was for taking a house at 32/. per 
 annum, and part of the agreement was, that the owner 
 should put the house in repair. It was afterwards disco- 
 vered not to be worth wliile barely to repair the house, but 
 better to pull it down ; and therefore, without any alteration 
 in the written agreement, the house was pulled down by 
 consent of the tenant, apprised of the great expense it 
 would be to the landlord ; and therefore an agreement was 
 made by parol only, on the part of the tenant, to add 8/. 
 per annum to the 32/. The tenant brought a bill for spe- 
 cific performance, on the foot of the written agreement, by 
 which he was to pay only the 32/. rent. The defenchmt, 
 by his answer, set up the parol agreement. Sir Jolm 
 Strange said, such evidence is frequently suffered to bo 
 read, especially to rebut such an equity as now insisted on 
 by the bill, as where the agreement is in part carried into 
 execution, parol evidence is allowed to prove that ; or xchcre 
 it is a hard agreement ; and the court maij, therefore^ 
 decree against the iiTittcn agreement, as in 1 J^cjni. 240, 
 (Goman v. SnJishnnj) • and the single question being 
 here, whetlier tlie court sliould decree a specific performance 
 of the agreement, tlie plaintiff insists upon, and being 
 Jiatisfied, from the parol evidence, that it should not, the 
 
 (ii) Bell V. llowanl, 9 .Mod. Aiineslcy, 4 Bro. r,C. 421. 
 ;J02; aud sec Larl of A'lglcscii v. (o) ^ Vcs 299. 
 
 ]i 'i court
 
 V^2 01 PAROL EVIDENCE. 
 
 t'oiirt must dismiss the bill. And in the subnequent case of 
 Pitcairne v. Ogbournc (/;), Sir Jolm Strange referred to 
 this decision, and approved of it. 
 
 ' In the late case of Price v. Dyer (q), wliicli has already 
 been mentioned, where a parol waver of a v.Titten agree- 
 ment was set up as a defence to a specific performance, 
 Sir William Grant was of opinion, 1st, that there was not 
 an abandonment of the agreement, but that there was 
 merely a variation ; and 2d, that as the variation was 
 Avithout a consideration, and had not been acted upon, it 
 was not a good defence to the plaintiff's demand. His 
 honour, after premising that the original wTitten agree- 
 ment was binding, and had not in his opinion been waved, 
 added, that he inclined to think the effect of a clear 
 abandonment by parol, would be to discharge the writ- 
 ten agreement. But in the cases cited, the parol agree- 
 ment put an end to the transaction, and restored the par- 
 ties to their original situation. Here there was a mere 
 variation. The question then was as to the variation. 
 Variations acted upon as in Legal v. JMillcr, would be a 
 l;ar ; that is a fraud. But his Honour's opinion was, that 
 verbal variations were not a sufficient bar where the situa- 
 tion of the parties in all other respects remained unaltered. 
 Tlie defendant had lost nothing ; would lose nothing. He 
 had only lost what he had gratuitously gained. His Ho- 
 nour, therefore, decreed a specific performance of the origi- 
 nal agreement, but without costs. 
 
 I have thought it of great importance to bring all the 
 cases which I have met with on this point fully before the 
 reader, who will not fail to perceive, that in every case, 
 except that in Viner, the party insisting upon the parol 
 ap-reement, vras not requiring the aid of the court, but 
 
 (j)) 2 Ves. 375. Jun. 356. 
 
 (o) MS, Ilollsj S. C. 17 Vc5. 
 
 merely
 
 OP PAEOL EVIDENCE. 133 
 
 tnerely set up the agreement as a bar to a specific pcrforir.- 
 ance ; and therefore, in strictness, these cases belong to the 
 class before discussed, where the court will admit the ev:- 
 dence to rebut the plaintiffs equity, although it would be 
 inadmissible as a ground for relief. In the case in Viner 
 indeed, the person relying on the parol agreement was 
 plaintiff; but tlie new agreement was in part performed by 
 him, and tlie JMaster of the Rolls of that day expressly 
 founded his decree on that ground. No case seems to go 
 beyond that. In the case of Price and Dyer, tiic parol 
 agreement was not, imder the circumstances, held to be a 
 sufficient defence. 
 
 AVhether an absolute parol discharge of a vvritten agree- 
 ment, not followed by any other agreement upon which the 
 parties have acted, can be set up even as a defence in 
 equity, seems questionable. The result of the authorities 
 as to a parol variation, appears to be, 
 
 1st, Tliat evidence of it is totally inadmissible at la^v. 
 
 2dly, That in equity the most unequivocal proof of it 
 •will be expected. 
 
 3dly, That if it be proved to the satisfaction of the 
 court, and be such a variation as the court will act upon, 
 yet it can only be used as a defence to a bill demanding a 
 specific performance, and is inadmissible as a ground to 
 eompcl a specific performance, unless, 
 
 4thly, There has been such a part performance of the 
 new parol agreement, as would enable the court to grant its 
 aid in the case of an original independent agreement, and 
 tlien in the view of equity, it is tantamount io a written 
 agreement. 
 
 In considering the point under discussion, the reader 
 will be careful not to confound the foregoing cr.ses with 
 the case of Walker v. Constable (r). There the original 
 
 ir) 2 Esf. 659, 1 Bos. ani Pell. 306. 
 
 .ngrcgm^cnt 
 
 -^t^ -^-X
 
 I'M- OF PAROL EVIDENCli. 
 
 agreement was a parol agreement ; and tlie question \Si\% 
 Avlietlier, being abandoned, parol evidence conld be given 
 of it. Lord C. J. Eyre held, that tlie existence and the 
 terms of the agreement must be proved before it conld be 
 proved to be abandoned, and upon tliat it was sufficient 
 to say, that bchig hi itTiting (I) the instrument itself 
 must l)e produced, and parol evidence of it was inadmis- 
 sible. 
 
 II. The next branch of our subject, although the most 
 trite, is not perhaps, therefore, less difficult. Lord Chan- 
 cellor Bacon says {s) there are two sorts of ambiguities 
 of words, the one is ambfguitas patens, and tlic other 
 latens. Patens, he adds, is that which appears to be am- 
 Inguous upon the deed or instrument ; latens is that which 
 seenH certain, and without ambiguity, for any thing that 
 appears upon the instrument, but there is some collateral 
 matter out of the deed that breeds the ambiguity. 
 
 A latent ambiguity may be assisted by parol evidence, 
 because the ambiguity being raised by parol, may fairly 
 be dissolved by the same means, according to the general 
 rule of law. Therefore, if, previously to the statute, a 
 man having two manors, both called Dale, had conveyed 
 the manor of Dale to another, evidence might liave been 
 given to prove which manor was intended to pass {/), 
 and such evidence is still admissible : this lias been repeat- 
 er) Max. p. 82. Reg. 23. 6S ; Altham's case, 8 Rep. 155, a. j 
 (0 2 Ro. Abr. 676, pi. 11 ; and anil Harding v. Suffolk, 1 Clia. 
 see Lord Cheney's case, 5 Rep. Kep. 74, 
 
 (I) That is, in contemplation of laiv, for it is not deemed an agree-* 
 ment unless reduced into writing, 
 
 cdly
 
 or PAROL EVIDENCE. 135 
 
 oclly decided (?/). So, on the same principle, parol evidence 
 is always received, to shew what is parcel or not, of the 
 thing conveyed (.r). 
 
 In some cases a latent anihiguity may he fatal. Parol 
 evidence may he addnced to prove the amhiguity, Avhen 
 none sufficiently satisfactory can he offered to explain 
 it (?/). And to render parol evidence admissihlc in these 
 cases, a clear latent amhiguity must he tirst sheAMi.— 
 Evidence which merely raises a conjecture is insufficient iz). 
 
 But althougli a latent amhiguity may he aided hy 
 parol evidence, yet a patent am))iguity cannot he aided hy 
 extrinsic evidence, hecause that would in effect he to pass 
 •without deed, what hy the law, can he passed hy deed only. 
 Of this Lord Chancellor Eacon ohserves, infinite cases 
 might he put ; for it holdcth generally, that all amhiguity 
 of words, hy the matter within the deed, and not out pt' 
 the deed, shall he helped hy construction, or in some cases 
 by election, hut never hy averment^ hut rather shall make 
 the deed void for uncertainty. 
 
 In jNIansell v. Price, personal estate was settled in trust 
 for Price the defendant, and Catherine his wife, for tJicir 
 lives, and the life of the survivor of them, and then for 
 their issue, with a power to the wife to dispose of 1500/. 
 purt of the monies, to any persons she pleased. She cx- 
 ei'cised this power by giving the money to Sir Edward 
 
 (u.) Jones v.Newman, 1 B^acksf. tiiat tlie testator nuant to pass 
 
 fi3 ; 3Wils. 276 ; 2 Afk. 239, 2-^0, some not within the doscrrption. 
 
 373; 1 Bro. C.€. 311. see Doe v. Oxenclen, 3 TauiT. 
 
 (t) Quaiiitrell v.Wright, Bunli. 147. 
 
 '2?\.; Longchamps v. Fawcclt, (j,-) Thomas v. Tlioinas, 6 Term 
 
 I'eake's Ca. 71 ; Dof v. Burt, 1 Rep. 671. 
 
 T«rna. Hep. 701; Anon. 1 Sir. (z) See Lord Walpolo v. the 
 
 95 i but where there is propr-rt/ Karl of Cholinoiu!t.!eVj 7 Toiui 
 
 to satisfy (he words of the will, it Rep. 138. 
 cannot Ue she \v J) by [laiol evidence 
 
 K h JNIansell;
 
 130 OF PAllOL EVIDENCE. 
 
 iManscli, in trust to pay 1000/. to A Avlieii &lie slioiikl 
 attain 21, or marry ; but if she died before 21 ^ or mar- 
 riage, then it should be to such uses as E should appoint. 
 And the other 500/. she directed to be paid to C in ex- 
 actly the same terms as before. Tile bill was filed by the 
 guardian {jf A and C, infants, to have the money paid^ 
 and to be put out for them to have the interest thereof im- 
 mediately. '^OY the defendant Price, it was insisted that 
 iie was in titled to the interest of 1500/. until it should 
 become payable. The first question wasj whether parol 
 evidence could be admitted to explain the intention of Ca- 
 therine Price what sliould become of the interest till the 
 times of payment, for if that could be admitted, there was 
 isufficient to prove the husband should not have it. And 
 the IMaster of the Rolls was of opinion that such evidence 
 tould not be read (a). 
 
 So in Kelly v. PoWlet (h), the question was, whethei' 
 plate passed under a bequest of household furniture. Tiie 
 drawer of the will said, it was 7iot intended ; but his c\U 
 dence was refused, and the plate was held to pass. 
 
 Again, iii a case in the Exchequer (c), it appeared that 
 by an act of parliament cast plate-glass was directed to be 
 squared into plates of certain dimensions. The question 
 wasj whether certain plates were in the shape directed by 
 the act. The Attorney-general at the trial produced books 
 explaining the process and terms of art in the manufac- 
 ture, and the defendants offered evidence to prove the 
 
 (.:?) MS T. Term 8 and 9 Geo. celve has overruled Pendleton v. 
 
 2 ; and see Hart v. Durand, 3 Grant, 1 Eq, Ca. Abr.233, pi. 2; 
 
 Aiistr.684;Charaberlain&v.Cham- 2 Vern. 517; aud see 1 Bro. C.C, 
 
 berlaine, 2 Freem. 52; Ulrlch v. 350, 351; Seymour v. Rapier, 
 
 Ditchfield, MS. 2 Atk.372, where Biinb. 28; Doe v. Bland, U 
 
 the evidence was not received. East, 441. 
 
 (/;) I Bro. C. C. 47Fj cited; (c) Attorney-general v. the Cast 
 
 Ambl. 605, reported, which I con- Pkle-Glass Company, 1 A nstr. 3 9. 
 
 technical
 
 bV 1>AE0L EVIDENCE. ISf 
 
 technical meaning in the trade of the word squaring glass ; 
 the evidence was, however, refused, and a verdict found 
 against the defendants : and upon a motion for a new trial, 
 l^ord Chief Baron Eyre said : In explaining an act of 
 parliament, it is impossible to contend that evidence should 
 be admitted, for that would be to make it a question of 
 I'hct, in place of a question of law. The judge is to direct 
 the jury as to the point of law, and in doing so must form 
 his judgment of the meaning of the legislature, in the same 
 manner as if it had come before him on demurrer, when no 
 evidence would be admitted. Yet on demurrer a judge 
 may well inform himself from dictionaries or books, on the 
 particular subject concerning the meaning of any word. If 
 he does so at 7iisi prius, and shews them to the jury, they 
 arc not to be considered as evidence, but only as the 
 grounds on which tlie judge has formed his opinion, as if 
 he were to cite any authorities for the point of la^v he lays 
 {iovni. 
 
 So parol evidence is inadmissible to restrain the legal 
 operation of general words in an instrument. Therefore 
 it cannot be admitted to prove, that a particular estate 
 was not intended to pass under general words sufficient to 
 comprise it. 
 
 Thus in Davis v. Thomas (^), a husband and wife being 
 seised of settled estates in the county of Pembroke, bought 
 an estate in the same county, called Rigman Hill, which 
 was conveyed to them, and the survivor in fee. The 
 husband having prevailed on the wife to join with him 
 in suffering a recovery of the settled estates, in order to 
 enable him to mortgage them, gave the attorney cm- 
 ])loyed to suffer the recovery, a particular description of 
 the settled estates which did not comprise Iligman Hill ; 
 
 (J) Rpg. Lib. 1757, fol. 33, 34 ; et injra. 
 zoo Tliom:!"? V- D.ivi'. 1 Dick. 301, 
 
 and
 
 1S8 OF i'Aiu;!, i:viDr.Ncii:. 
 
 and it clear/// ajipcuiTcl from .sc\tn-al drcuinstaiicG.s, tliat 
 lie Lad not any intention to comprise that estate, tlic title- 
 deeds of Avhicli were in liis wife's custody. The attorney, 
 fearful of not comprising the wliole estate, and not know- 
 ing tliat Rignian Hill had hccn purcha:-^ed, added general 
 ■VAords sufficient to comprise tliat estate. The recovery 
 was suffered to tlie use of the jiusband in fee, who after r- 
 wards mortgaged the estate by the same description. The 
 husband by his will gave all his estates to his wife for life. 
 She survived him, and after Iier death the heir at law of 
 the husband brought an ejectment against the persons 
 claiming Rigman Hill, under tlie wife, which came on to 
 be tried at tlie April Great Sessions for Pembrokeshire, iji 
 1756. Parol evidence was offered by the defendant, to 
 show that it was not intended to comprise liigman Hill in 
 the recovery and mortgage ; but it was refused, and the 
 plaintiff had a verdict. 
 
 So in Slielling v. Farmer (f ), ^vlicre to a release in pur- 
 suance of an award, the plaintiff would have called the 
 arbitrators to prove, that they refused to take into consi-? 
 deration a particular fact, although the award and release 
 contained general words sufficient to take in all. Eyre 
 C. J. would not suffer any evidence to be given to contra^ 
 diet the deed. 
 
 And in tlie very recent case of Butcher v. Butcher (/) 
 general words in a release, were held not to extend to a 
 certain bond of indemnity : and Lord Chief Justice Mans- 
 field, at Guildhall, refused to admit parol e\idence to 
 show the intention of the releasor to release the bond. 
 And upon a motion for a new trial, the Court of Common 
 Pleas intimated a strong opinion, that no evidence could 
 
 ((?) 1 Str. 646; see Strof'e V. Goodinge, 1 Ves. 231. 
 Latly Falkland, 2 Vern, 621, 3 (/) 1 New Rep. 112. 
 
 ^h^.. Rep. 90 J and Goodin^e v. 
 
 be
 
 Of parol evtdenck. 13^ 
 
 be admissible to explain the release, since the doubt, if any, 
 was amhiguitCis patens ; and in consequence of this intima- 
 tion, the counsel for the plaintiff declined arguing the case. 
 
 But as we shall presently see, the effect of general 
 words may be restrained in a court of equity, on tlie ground 
 of mistake, where it is .satisfactorily proved. 
 
 It still remains to observe, that courts botli of law and 
 equity constantly advert to the situation of the parties, 
 &rc. in order to enable them to construe ambiguous or ill- 
 penned instruments, although parol evidence of the in- 
 tention of the parties could not be received, and this has' 
 been sanctioned by a leading case in the House of 
 Lords {g). 
 
 In one case {h) where it was doubtful whetlier a cove- 
 nant for renewal extended to a perpetual renewal, and the 
 parties had renewed four times successively under tlie cove* 
 nant. Lord iSIansiicld and tlie other judges of tlie King*s 
 liencli held, that the parties themselves had put a con- 
 struction upon the covenant, and were therefore bound bv 
 it. Lord Alvaniey, who was in the cause, said, when 
 Master of the Rolls, that he was ne\er more amazed than 
 at this decision, and that Mr. Justice Wilson, who ar- 
 gued with him, was astonished at it (?') ; and ! is Lordship 
 more than once expressed his marked disapprobation of 
 tliis doctrine {k). Lord Eldon (/), and the present 
 Master of the Rolls {m) have both also dissented from it ; 
 and Lord C. J. JMansfield in a late case observed, tliat it 
 
 (it) Sir John Eden v. the Earl 3 Ves. 295, and see 2 Vos. Juii. 
 
 of Bute, 7 Bro. P. C. 745 ; see 418. 
 
 Countess of Shelbnrne v. the Earl {k) See Eaton v. Lyon, 3 \'es. 
 
 o/ Inchiquin, 1 Bro. C. C. 338. Jim. 690. 
 
 (/i) Cook V. Booth, Cowp. 819 ; (/) See Iggulden v. May, 9 Ves. 
 
 and see J Blackst. 1249 i 1 New Jun. 325. 
 
 li«'p. 42. See Peake on Evid. (^«j See Moore t. Foley, 6 \'es." 
 
 r;.. 2. J HI). 232. 
 
 (/) Baynham v.Oiiy'a Ilospifal, 
 
 was
 
 140 
 
 Of PAKOL EVIDENCE. 
 
 Was a case Avliicli had been impeached upon all occat^ions (n). 
 And it appears to be now clearly settled, that in the con- 
 structioii of an agreement or deed, the acts of the parties 
 cannot he taken into consideration (o). 
 
 Where, however, the words of an ancient statute or in- 
 strument are doubtful, cotcmporancous usage, although 
 it cannot overturn the clear words of the instrument, will 
 be admitted to explain it ; for jus et norma loquendi is 
 governed by usage, and the meaning of things spoken or 
 written must be as it hath constantly been received to be 
 by common acceptation {p). This has been .determined in 
 many cases, and such evidence accordingly received [q). 
 And in a late case on this subject. Lord Ellenborougli 
 said, it was in constant practice at 7iisi prius to rccci\ c 
 evidence of usage to explain doubtful words in old instru- 
 ments ; and it would be difficult to show any just ground of 
 distinction between the information Vvliich a judge might 
 receive to aid his judgment in bank and at nisi prius (/•). 
 
 III. The last division of our subject relates to the juris- 
 diction of equity, in correcting mistakes and fraudulent 
 omissions in agreements and deeds (I). 
 
 In 
 
 («) See 2 New Rep. 452. 
 
 (o) See Clifton v. Walmsley, 5 
 Term Rep. 564 j and see Iggul- 
 den V. May, 7 East, 237. 
 
 (p) Sheppard v.Gosnold, Vaugh. 
 169. 
 
 {q) Rex V. Var!o, Cowp. 246 ; 
 Gape V. Handley, 3 Term Rep. 
 228, n. Blankley t. Winstanley, 3 
 Term Rep. 279 ; Rex v. Bell- 
 ringer, 4 Term Rep. 810; Rex 
 
 T. Miller, 6 Term Rep. 268 ; and 
 see Attorney-general v. Parker, 2 
 Atk. 576 ; Attorney-general v. 
 Forster, lOVes. Jun. 335 ; Kitchiii 
 T.Bartch, 7 East, 53; Bailifls,&c. 
 of Tewkesbury v. Bricknell, 2 
 Taunt. 120. 
 
 (r) Rex v. Osbourne, 4 East 
 327 J and jce Stammers v. Dixon, 
 7 East, 200. 
 
 (I) Even at law the palpable mistake of a word will not defeat the 
 intention of the parties. Ju a case in the Common Pleas, where the 
 
 couuitiou
 
 OF PAUOL EVIDENCE. 141 
 
 In Heiikle v. the Royal Exchange Assurance Office (,9), 
 Lord Hardwiclve said, tliat no doubt but equity had ju- 
 risdiction to relieve in respect of a plain mistake in con- 
 tracts in writing, as well as against frauds and contracts ; 
 so that if reduced into writing, contrary to tlie intention 
 of the parties, on proper proof tliat would be rectified; 
 lie thought, however, tliat in tliese cases there should be 
 the strongest proof possible. In a case which was much 
 agitated before Lord Thui>ow, he laid do^ni the rule 
 with great latitude, that if a mistake appears, it is as 
 mucli to be rectified as fraud {t). So in another case be- 
 fore the same Chancellor, he said that he thought it im- 
 possible to refuse, as incompetent, evidence which went to 
 prove that the words taken down were contrary to the 
 concurrent intention of all parties. To be sure his Lord- 
 ship added, it must be strong, irrefragable evidence, but h^ 
 did not think he could reject it as incompetent (u). 
 
 Lord Eldon, observing upon these dicta, said, that Lord 
 Tliurlow seemed to say that the proof must satisfy the 
 
 (s) 1 Ves. 317. Earl of Inchiquin, 1 Bro. C. C, 
 
 (/; Taylor V. Iladd, 5 Ves. Jun. 338; and see Cock v. Richards, 
 
 595, cited. 10 Ves. Jun. 441. 
 (w) Countess of Shelbiirn v. the 
 
 condition of a bond was, that it should be void if the obligor did nnl 
 p:iy ; and performance being pleaded on the ground of literal expression, 
 the court held the plea bad. Anon. Dougl. 384- cited, 2d edition ; see 
 I Dow, 147. It seems clearly settled, that words evidently omitted in 
 a will by mistake, may be supplied, both at law and in equity, 'I'oliett v 
 Tollett, Ambl. 194 ; Coryton v. Ilellier. 2 Burr. 923, cited; and Doe 
 V. iNIicklem, 6 East, 486 ; see Lane v. Goudge, 9 Ves. Jun. 225 ; Mel- 
 lish V. Mellish, and Philips v. Chamberlain, 4 Ves. Jun. 45. 51; but 
 liowever evident the mistake may be, the words will not be supplied if 
 the testator's manifest intention would be defeated by the insertion of 
 thorn. Chapman v. Brown, 3 Burr. lG26j £ee iiVes. Jua. 363. 
 
 coiut
 
 142 OF PAirDI- KVIDF.XCE. 
 
 court Avhnt was tlic conciiiTcnt iiitciitioii of ail parties ; 
 and his Lorilsliip added, it vnist never he forfi^ot to what 
 extent the defendant, one of the parties, adnids or denies' 
 the agreement. In the case before Lord Kldou ix), a 
 specific performance of an agreement was souj^lit, with a 
 variation attempted to be introduced by ])aro], on the 
 ground of mistake and surprise, whicli was positively de- 
 nied by the defendant. And his Lordship said, that he 
 Avould not say, that upon the evidence without the answer, 
 he should not have had so much doubt whether he ought 
 not to rectify the agreement as to take more time to consi- 
 der whether the bill should be dismissed ; but as the agree- 
 ment was to be considered witli reference to the answer by 
 which he had positively denied it, his Lordship dismissed 
 the bill, but without costs. 
 
 Lord Eldon's decision precisely accords with Lord Thur- 
 low's opinion, which he rightly construed. For in Lord 
 Iruham v. Child {y), it was observed by Lord Thurlow, 
 that if a mistake be admitted, the court would not overturn 
 the rule of equity by varying the deed ; but it would be an 
 equity dehors the deed. Then it should be proved as 
 much to the satisfaction of the court, as if it were admitted : 
 " The diJjicuUy of this is so great, that there is no in- 
 stance of its prevailing against a party insisting there 
 teas no 7uisfake." 
 
 Where the court cannot satisfy itself of the fact, an 
 issue may be directed to try the question. Thus, in the 
 case of the South Sea Company v. D'OlifF, {z), D'Oliff 
 agreed not to carry goods under certain circumstances ; and 
 if information was given in two months after return home 
 
 (.•c) Marquis of Townjhpnd v. v. Hare, 1 Hen. Blackst. 659. 
 
 Slaiigrjom, 6 Ves. Jiin, 328. (z) 2 Ves. 377, .0 Ves. Jun. 
 
 Iij) 1 Bro. C, C. 92; and see 601, cited; and see Pember r. 
 
 Hare V. Shear«ood, 3 Bro. C. C. Mathers, 1 Bro. C. C, 52. 
 168, 1 Ves. Jun. 211; and Haynes 
 
 that
 
 OF PAHOL EVIDENCE. 143 
 
 that he had done so, he was to pay certain stated damao-es. 
 The instrument was not drawn np until on board the sliip, 
 and in a great hurry, and executed there by D'OlifF; who 
 wlien he got out to sea, and read it over, found it was six 
 months instead of two ; and brought a bill to be relieved 
 against that variation in tlie instrument, the company hav- 
 ing brought an action on it. Lord King sent it to an issue : 
 it was tried on a question, whether it was the original 
 agreement it should be two instead of six months. A ver- 
 dict was given in favour of the plaintiff, that the agreement 
 was designed to be in two, and in consequence of that. Lord 
 Talbot made a decree to relieve the plaintiff against any 
 difficulty by the variation. 
 
 The hesitation with which parol evidence is received 
 in equity to correct even mistakes in agreements and deeds, 
 is strongly exemplified by a case before Sir AVilliam 
 Fortcscue {a). Previously to marriage an estate was a forced 
 to be settled on the intended husband for life, remain- 
 der to the wife for life, remainder to the sons succes. 
 sively in tail male, remainder to all the daughters. In- 
 structions were given to an attorney to draw tlie settle- 
 ment, who drew it as far as the limitations to the sons, 
 where he stopped, and said, then go on as in Pippin v. 
 Kkins ; whicli was a precedent he delivered to liis clerk, 
 to go on from that limitation, and was a right settlement 
 to the issue male and daugliters by that wife ; but the 
 clerk drew the settlement to all the daughters of the 
 husband, without restraining it to tliat marriage : it was 
 executed with tliis mistake : the question arose between 
 an only daughter of that marriage and cliildrcn of the 
 husband's by the second wife. The draught of the at- 
 
 (rt, Ilarwood V. Wallis, 2 Ves. 195, cited. 
 
 torney
 
 144 OF TAKOL EVIDENCE- 
 
 torney was proved, and the settlement in Pippin v. Ekins ; 
 Init the court would not admit parol evidence of the attor- 
 ney to be read, and held that the other evidence could not 
 do ; that nothing appearing in writing under the hands of 
 the parties, the settlement could not be altered. And Sir 
 Thomas Clarke is rpported to have said (6), that as to the 
 jiead of the mistake, he did not give a positive opinion, 
 but he did not think the court had relied upon parol e\'u 
 dence singly. 
 
 But whatever difficulty there may be of admitting parol 
 evidence singly, yet it is always admitted w^here it is corro-i 
 berated by other evidence, 
 
 Tliis doctrine was carried a great way in the case of 
 Dr. Coldcot v. Serjeant Hide (c). Dr. Coldcot having- 
 purchased church lands in fee, under the title of Crom- 
 well, sold them to the defendant's testator, and entered 
 into general covenants for the title. Upon the Restoration 
 the estate was avoided, and upon an action on the cove- 
 nants, damages to the value of the purchase-money were 
 recovered, A bill was then tiled to be relieved against 
 the recovery at law, which suggested a surprise up«n the 
 plaintiff, in getting him to enter into general covenants, 
 and that it was declared by the parties, when the deed 
 was executed, that it was intended Dr. Coldcot should 
 not undertake any further than against himself; and i/ie?'e 
 being some 'proof of this dccIaratio?i, it was decreed by 
 the Lord Chancellor and IMaster of the Rolls, that the 
 defendant should acknowledge satisfaction on the judgment, 
 and pay costs. And the reporter says, a like case to this 
 between Farrer and Farrer was heard and decreed after the 
 same manner, about six months ago. 
 
 A ca^e, nearly similar, occurred about eleven years aftcr- 
 
 ih) 1 Dick. 295. 173 M Sid. 238, cited j 14 Car. 
 
 (f) 1 Cha. Ca, 15; 2 Frecm. U 
 
 '^Aards
 
 OF PAROL EVIDEXCE. ] 4.> 
 
 wards {(I) ; but it appeared that all tlie covenants except tl^c 
 one upon wliioli jud<>'n'ient had been obtained at law, v.'crc 
 restrained to tlie acts of tlie vendor, and that the vendor 
 aold only such estate as he had. 
 
 This last case was quoted in a case in the Common Pleas 
 before Lord Eldon (<?), who thought the decision must 
 have b{*eTi made on the ground of the intent of the parties 
 appearing on the instrunfent, since that intent, and the 
 consequent legal eiicet of the instrument could only be col- 
 lected from the instrument itself, aiid not from any thing 
 dehors. In a still later case in the same court (/), Lord 
 Alvanley , thought, under the circumstances of the case, 
 that tlie application was made to the court of Chancery to 
 correct the mistake, in the sr.me manner as applications arc 
 made to tlint court to correct marriage articles where clauses 
 arc inserted contrary to the ii;tent of the parties. It seems 
 clear, however, that the relief in this case v^^as founded on 
 parol evidence that the vendor sold only such estate as he 
 hrid, corroborated as it v. as by the form of the deed and 
 tlie subject of tlie contract. Such evidence was received in 
 tlie prior case of Dr. Coldcot and Serjeant Hide, and is still 
 clearly admissible. 
 
 Tlius in Young v. Young (g), the plaintiff married 
 Ijucy, a defendant, and an infant ; the husband stated, or 
 (Ircv; bv way of instructions to his attorney, what the 
 wiiSs fortune then was, and agreed to add as mucli to 
 be settled in strict settlement, and likev.ise stated that tlic 
 intended wife had a pre;q)ect of an additional tbrtune ; to 
 which he agreed provided it did not exceed 1,000/., to 
 add a like sum to be likewise settled strictly, and 
 
 (r/)Field<rv.!stu(lI<'y. Finch, go. and Pull. 575. 
 (r) Browning T.Wri-lit, 2 Bos. (ii) I Dick. 295, cited; see 1 
 
 and Pul!. 26. Dick. 303, 304. 
 
 (J ) 1 1(•s^c V. Stcvtnsun, 3 Cos. *" 
 
 L he
 
 146 or PAROL EVIDENCE. 
 
 lie to have tlic excess. The settlciuent vvtis prcparetl 
 according to the instructions ; but the sohcitor having, 
 in tlie margin oi' the draft, added double the sum, the 
 settlement was prepared and executed according to that 
 mistake. , Parol evidence was admitted to ])r()ve the mis- 
 take ; that is, the settlement was first shewn to dilFer from 
 the written instructions, and parol evidence of the comisel 
 and attorney was then received, to prove the mistake. 
 
 This equity was administered in the case of Thomas v. 
 Davis before cited {h), where it clearly appeared, that the 
 estate in question was not intended to be comprehended 
 in the general words. This appeared from many cir- 
 cumstances, but particularly from the description of the 
 estate, given by the husband to the attorney by way of 
 instructions, which described the lands particularly, and 
 did not include Kigman Mill; and the attorney proved 
 that he did not know of this estate, and that he intro- 
 duced general words, merely to guard against any wrong 
 or imperfect description of the lands actually intended to 
 pass. It v^-as objected, that the admission of the attor- 
 ney's evidence was in direct contradiction to the statute of 
 frauds ; but Sir Thomas Clarke v,as clear it miglit be read, 
 and accordingly admitted it (I.) 
 
 So in llogers v. Earl (/), instructions were given, pre- 
 viously 
 
 (h) supra, p. 137, 1 Dick. 301, 205 ; see Prltchnrd v Quinchant, 
 
 Rf'g. Lib. B. 1757, fol. 33, 34. A^nbl. 147 ; 5 Ve?. Jun. 596. ri. 
 
 (/■) 1 Dick. 294. Note the facts (a) and Barstow v. Kilviiigton, 5 
 are not stated in the report ; they Ves. vTun. 593 ; and see Nelson v. 
 are extracted from the Register's Nelson, NeIs>Cha. Rep. 7 3 Shaw- 
 book ; see Heg- Lib. B. 1756, fol. v. JaUeman, 4 East, 201, 
 
 (I) The judgment is very inaccurately stated in the report. After ad- 
 dressing hir.iseif to the general words, the Master of the Rolls is stated 
 to have said,, Do these words comprise Redmond [Rigman] Hill ? I do 
 
 not
 
 or PAROL EYIDE>'CE. 147 
 
 Tiously to marriage, for a settlement of the wife's estate 
 OB tlie Iiiisbaud, during his life, if he and his "vvifc should 
 so long live, remainder to tlie wife for life, remainder to 
 the Issue of tlie marriage in strict settlement, remainder 
 to such uses as the wife should appoint ; and a draft of a 
 settlement was drawn accordingly. And after the limi^r 
 tation to the husband it stood thus : And immediately 
 after the decease of the husband, then to the wife, &c, ; 
 and proper limitations were inserted to trurstees to preserve 
 contingent remainders. AVhen the wife saw the draft, 
 tliinking she was jjqst child-bearing, she objected to the 
 limitations to the issue, and they were directed to be 
 struck out. The Attorney, by mistake, not only struck 
 out those limitations, but also the limitation to the wife, 
 for life, and the subsequent limitation to trustees to ])re- 
 serve, and the deed was executed without the mistake be- 
 ing discovered, whereby, as the bill stated, the said power 
 for aj)pointing the reversion of the premises was made to 
 take phice on the decease of the plaintiff generally, though 
 tlie limitation to him was only during the joint lives. The 
 ^ ife exercised her poAver by deed, in favour of her husband 
 during his life, and then by will gave him the fee, and 
 then died in his life time. Pier heir at law insisted that 
 the use resulted to him during the husband's life, and 
 that there being no trustee to preserve contingent re- 
 mainders, the devise in the will as an execution of the pow- 
 er not taking into. effect till the determination of the parti- 
 cular estate was void, and brought an ejectment against 
 
 not think they do include llcdmond Ilili ; but other words do. Tf lUd- 
 nioiid Hill vvas not intended, why was (he wife to join ; and wliy diii s!ie 
 join? 1 his is absulule noiiS(;iise. The wife joined hecause !-he w;is in- 
 terested in (he settled estates ; and the oj,inion of tlie court was, that 
 (he i^emral words did include Rigman Hill. 1 he editor's niari^iiial ab- 
 btr.'Ct oi (his case shows how didicult it is (o understand (he rejiort of it, 
 
 I, 2 the
 
 148 or TATIOL EVIDENCE, 
 
 the husband, and obtained a verdict (I). Tlic husband 
 then filed a bill for an injunction, and to rectify the mistake 
 in the settlement. Tlie defendant, by hif; answer, urged 
 that the draft of the settlement might have been altered 
 witli a view to support the husband's claim, and insisted 
 that parol evidence could not be received ; but Sir Thomas 
 Clarke decreed, that the power appeared to have been de- 
 sio'ned so far to extend as to enable her to dispose of the 
 interests in the estates after the determination of the cover- 
 ture, and during the life of her Inuiband, as well as to dis- 
 pose of the inheritance of the estates after her husband's 
 decease, and ordered the settlement to be rectified accord- 
 ingly ; but without costs on cither side. 
 
 In the last case upon this subject(/i'), a conveyance of 
 a portion of Church tythes upon a purchase was made, con- 
 trary to what was considered to be the true construction of 
 tlie written agreement ; subject to a proportion of the rent 
 reserved by the lease of the tythes, and upon proof that this 
 was done, by the mistake of the ^urcliasef s attorney, and 
 that the rent had not been demanded for several years ; the 
 deed v.as after the lapse of several years, rectified and made 
 conformable to the written agreement. 
 
 If a settlement be made contrary to the intention of the 
 parties, merely to prevent a forfeiture, (II), parol evidence 
 
 is 
 
 (A)Rob. v.Buttervvicl<,2Price, 190. 
 
 (I) The first point at least was clear at law, hut the defendant set up 
 an old term as a bar to the plaintilf's right to ncover. The defence, 
 however, did not succeed. See Farmer, dem. Earl v. Rogers, 2 Wils. 26. 
 
 (H) In this case the settlement was to prevent the estate from being 
 sequestend on account of the husband having been in arms for Charles 
 the First. The decree was made in the reign of James his son. So 
 
 tlat
 
 is atlmis jible of the real intent of tlie parties (/), and the 
 settlement Vvdll be rectified in conformity with it. 
 
 AVhere parties omit any provision in a deed, on the im- 
 pression of its being- illeg-al, and trnst to each other's ho- 
 nour, they must rely upon that, and cannot require tlic de- 
 fect to be supplied by parol CAidence. 
 
 Thus in Lord Imliam v. Child (/;/), it appeared that I^ord 
 Irnham treated with Child for sale of an annuity. Upon 
 settling the terms, it was agreed th:it the annuity should 
 be redeemable ; bnt botli parties supposing that this ap- 
 pearing upon the face of the transaction would make it usu- 
 rious, it vras ain-ced that the o-rant sliould not have in it a 
 clause of redemption ; and it was accordingly drawn and 
 executed without such a chuise. Lord Thurlow refused to 
 supply the omission. .'V similar decision was made by JNIr. 
 Justice Bidler, when sitting in Chancery for the Ijord Chan- 
 cellor {)i} ; and two similar determinations were made by 
 Ijord Kenyon, when Master of the Ilolls (o). 
 
 Upon these cases Loid Kldon observes, that they went 
 
 (/) Hirvcy V. Harvey, 2 Clia. (n) H.ire r. SliearwooJ, I Ves. 
 
 Cu. 180, decided tlie same way, Jun. 241,3 Bio. C. C. IbS ; see 
 
 first by Sir Karb )ttle Grimstuii, and cutisider Hayues v. Hire, 1 
 
 then by Lord Nottingliam, and af- llin. li'ackst. b59. (I). 
 
 tervvards l)y Lord Clianctllor J(.f- ('^j Lord P>>rtmore v. Morris, 
 
 fries ; and see FKzgib. 213, 214 : 2 Dro. C.C. 21^, 1 II, n B a, kst. 
 
 see Stratford v Po-.vell, 1 Ball und 663,664 ; Rosamoiid v.Lord Md- 
 
 Beatty, 1. singfon, 3 Ves. Jun. iO. n. 
 
 (m; 1 Bro. C.C. 92. 
 
 that as (o the /,-«/ ;/t of tlie forf" ihin- it is fv'di nf, tliat t!u- relief of cqu'ty 
 would not have been atloriU'd, for llic [uirpo^e of ui>hoiliiig the settle- 
 ment, exrept under tlie llestoration I 
 
 (I) Perhaps this case doi'S not bel jii^ to th;,>- lino of rase>, but s! ou'd 
 be classed with those in which a term is oiuiitcd by mistake; of w' i li 
 ■,'V/t' snpa^ 
 
 L '3 u}>on
 
 upon an iudisputitbly clear ])rincjj)lc, that tlic parties tlicl 
 not moan to insert in the ag;rceuient a provision for re- 
 ileni})tion, hecaufse they were all of one mind that it would 
 he usurious ; and they desired tlie court to do not what 
 they intended, for the insertion of tliat provision Avas di- 
 rectly contrary to tlicir intc ution ; hut tliey desired to be 
 put in tlie same situation as if tliey liad been better in- 
 formed, and consequently had a contrary intention. Tlic 
 ansA\er is, they admit it was not to be in the deed ; and 
 why was the court to insert it, where two risks had occur- 
 red to the parties ; tlic danger of usury, and the danger of 
 trusting to the honour of tlie party ? 
 
 Biit frjiiid is in equity an exception to every rule. In 
 tlie case of Lord Irnham v. Child, L/ord Thm'low distinctly 
 said, if the agreement had been varied by fraud, the evi- 
 dence would be admissible. If the bill stated that the 
 clause was intended to be inserted, but it was suppressed 
 by fraud, he could not refuse to hear evidence read to esta- 
 blish the rule of equity. Lord Kenyon advanced the same 
 doctrine in the cases before him, and 3Ir. Justice BuUer also 
 thought that parol evidence was, in such cases, admis- 
 sible ij)). 
 
 The only difficulty iii these cases is, to ascertain what 
 shall be deemed fraud. If parties merely agree to a tenn, 
 and then execute an instrument in which that term is 
 omitted, without objecting to the omission of it, the court 
 cannot relieve the injured party (q). So where a lessor 
 drew a lease for one year, instead of 21, and then read it 
 for 21 years, the lessee brought his bill to be relieved-; but 
 
 (p) And see Taylor v.Radd, 5 the Karl of Lichiquiii, I B.o. C.C. 
 
 Ves. Jun. 395, cited ; Heiikie v. 338. 
 
 R. K. A. Office, Ves. 317 ;an 1 (q) See Rich v. Jacksao. 4 Bra. 
 
 see Pitcairne v. O^bourne, 2 V^es. C.C. 514, cl suprd, p. 126. 
 375 ; Countess of Shelburne v. 
 
 as
 
 OF TAIIOL EVIDENCE. 1.51 
 
 fis lie could read, it was deemed his o\\ii folly ; and as the 
 case was within the statute, his hill was dismissed with costs 
 (r). Again, where in a lease the right to enter, cut, and 
 carry away the trees, was reserved to the lessor, the lessee 
 went into parol evidence to shew that that was contrary to 
 the original agreement, and proved a conversation previ- 
 ously to the execution of tlie lease, in w^hicli the landlord 
 assured the lessee he should not cut the timher, and only 
 reserved it in order that all his leases might be uniform. 
 The plaintiff's pounsel, however, gave up this part of the 
 hill at the hearing {s), and I^ord licsslyn treated it as clearly 
 wrong. So I am told that in a very recent case at law (/), 
 where a xvarrant of attorney was given to confess judg- 
 ment on the assurance of the creditor that no execution 
 should issue for tliree years, and execution was, contrary to 
 this parol agreement, issued immediately, the court inclined, 
 that as the defendant knew^ the contents, and had suffici" 
 cnt time to read tlie warrants of attorney, they could not 
 relieve ; and yet a court of law considers itself to ha\"e a 
 considerable controlling power over its own judgments, en- 
 tered up under warrant of attorney, where the party enter- 
 ing them up has been guilty of a fraud (//). The case, 
 however, went off on another ground. 
 
 In the Countess of Slielhurne v. the Earl of Inchi- 
 quin {x) Lord Thurlow said, if two persons intrust a third 
 person to dr;iw up minutes of their intention, and f-.uc)i 
 person does not draw them according to such intention, that 
 case might be relieved, because that v.ould be a kind of 
 fraud. 
 
 (7-)Aiion. Skin. ]r)9. («) -Soc 1 H. Blacksl. 663,66-! 
 
 (s) Jackson v.Cator, 5 VCs.Jun. (.r) 1 Hro. C.C. 3 30 ; and see 
 
 688. Crosby v. Middlrtun. 3 Clia.Re;-. 
 
 (/) Gcnnor v.Macmalion, M.T. 99 ; Lan-lcy v. Hrowii, '2 Aik. 
 
 1806; B. R. 5 J 13 ik'T V. Pain. , 1 Vcs. 1 ;(k 
 
 K And
 
 xJ2 oi i\\i;()i, i:vipi, :<(::. 
 
 And it is said, tliatin llic case of .loiics \, biicriflc {/j)j 
 there were lieads of an intended lease taken V»y an attorney 
 in ^v^ting ; l)ut upon proof that some other clauses were 
 agreed on between the parties at tlie same time, the court 
 decreed tliat tliose clauses should be put into the Icr.se, not- 
 ^vitllstanding the counsel on the otlier side strenucusly 
 insisted on the statute of frauds. 
 
 And if either party object to a conveyance, on the 
 ground of the term of the agreement being omitted, and 
 the other party promise to rectify it, ^vhiereupon tlie deed 
 is executed, a specific performance of the promise v, ill be 
 enforced. 
 
 Thus in Pcmbcr v. Itlathcrs (2^, a bill was filed for a 
 specific performance of a parol agreement by a purchaser 
 of a lease under written conditions, to indemnify tlic 
 vendor against the rent and coAcnants ; and it was ob- 
 jected, on the part of the defendant, that the CA'idcnce was 
 inadmissible, upon the ground that where the parties 
 have entered into a wiitten agreement, no parol evidence 
 can be admitted to increase or diminish such agrccniciit. 
 Tlie rule, I^ord Thurlow said, was right ; but v.hcre tlic 
 objection vvas originally made, and promised by the other 
 party to be rectified, it comes amongst the string of cases 
 where it is considered as a fraud. Then the evidence is 
 admissible. There being some doubt as to the fact, Lord 
 Thurlow ordered it to go to law^ upon an issue vliethcr 
 there was such a promise on the day of the execution of 
 the agreement. Upon the trial the jury found there was 
 such a promise ; and the plaintiff had a decree for a specific 
 performance. 
 
 So we have before seen, tliat where it is stipulated that 
 the agreement shall be reduced into writing, and either 
 
 (7/) 9 Mod. 88, cited. (z) 1 Bro. C. C. 52, see H Ves. 
 
 Jur. 524. 
 
 party
 
 OF PAEOI, EvibENcr. 153 
 
 party fraudiilehtly prevents the agTecmciit from hcino- 
 put into -vviiting, equity will perhaps relieve the injured 
 party {a). 
 
 And it is perfectly clear that where fraud is distinctly 
 proved, or the jury infer it from tlie circumstances, an 
 ai;-rccnient is invalid at law, as well as in equity {h) ; but 
 the reducing the agreement to writing is, in most cases, an 
 argument against fraud. 
 
 But it must be remarked, tliat a deed will not be recti- 
 fied in equity on the ground of n^iistake or fraud, to the 
 prejudice of a bona fide purchaser, without notice. 
 
 Thus in the case of Thomas v. Davis (c), although the 
 lands passed at law, yet as tlie mistake was clearly proved, 
 the words were restrained as between the person claiminp- 
 under the wife, whose estate vras comprised by mistake, 
 and the heir of the husband to whom the estate had passed 
 ])y the error ; but the same equity was not administered 
 against the mortgagee, who w'as left in possession of the 
 legal right which the generality of the conveyance had in- 
 vested him with. 
 
 (a) Vidcsujn-a, \u 58. 1 Staik. 51. 
 
 (/>) Hai^li V. Dft la Cour, 3 (c) Supra, p. 137. Reg. Lib, 
 
 Cumpl...319; Kmamirl V. Daii", 3 B. 1757, UA. 33, 31; 1 Di( k^ 
 
 ( amplV. '199 ; S lonioii v.Turm r, 301, 
 
 CIIAl'.
 
 [ ^-^ ] 
 
 CIIAPTi:!! iV. 
 
 or Tin: c(jnseque>:cf..s of -vwk contract. 
 
 SECTIOxNf I. 
 
 Of the lliile hi EquHjj, thai the PiiirJiascr is entitled to 
 the Estate from the Time of the Contract. 
 
 JjjQUiTY looks upon tilings agreed to be clone, as actu- 
 ally performed (a), (I) ; consequently, when a contract is 
 made for sale of an estate, equity considers the vendor as a 
 trustee for tlic purchaser of the estate sold (6), and the pur- 
 chaser as a trustee of the purchase-money for the vendor (c). 
 Therefore the contract will not be discharged by tlic 
 bankruptcy of either the vendor (c7)'or vendee {e) (II). But 
 
 (a) Francis's iSlasims, max. 13. (t) G.reen v. Smilii, ubi supra ; 
 
 1 Trf-a. Eq, (lu6, f. 9 ; see Culla- I'oli.-.xfeii v. Moorr, 3 Atk. 272. 
 vayv. Ward, 1 Ves. 318, cited. {d) Orlibar v. Fittclicr, 1 P. 
 
 {h) Atche?l<y v. Vernon^ 10 Wms. 737. 
 Mod. 518 ; Davit' v, B^!•.^d^ila!l1, ie) See 3 \'es, Jun. 235 ; and 
 
 1 ('ha. Ca. 39 ; and Lady Fo- Uov.les v. Rogers, 6 \'os. Jun. 
 
 haiue's case, cited /in/;, and see 1 05 n. Wliitrt ortli v. Davis, i W-s. 
 
 Term. Rrp. 601 ; and Gieeii v. aisd Bca. ,'^45. 
 Smitl), 1 Atk. 572. 
 
 (I) A lessee insured Ids house, the lease expired, and he contracted for 
 a new lease. Then the house was burned, and the ofTice insiafed, tliat 
 at tlie time of ])uriung it was not the plainlifl's house; I>ut Lord Lhnn- 
 rellor King, and aftervrar(!s tlie House of Lords, held olherw i^'. Si'e 
 printed cases, Dom. Proc. 1730. 
 
 (II) As to the elVect of an extent subsequently to a contract, see Rex 
 V. Snow, 1 Priccj 220j cited 
 
 an
 
 or TITJ: COXSEQl'EXCES or THE COXTEACT. 155 
 
 nn act of baiikiuptcy upon ^vllich a commission has not 
 isrsiicd, will prevent tlic execution of tlie agreement, as 
 neither a huyer nor a .seller can be assured that a commission 
 may iiot i^suc in due time, in \vliieli ease he couhl not re- 
 tain the estate or money ag;ainst the assignees (/*). 
 
 F-o the death of the \Tndor or vendee before tlie convey- 
 ance (z^') or surrender (// ', or even before tlie time agreed 
 upon for con^.pleting the contract, is in equity immate- 
 rial (/*). 
 
 If tlie ^•cndor di-e before payment of the purchase-money, 
 it v.ill fi:o to his executors^ and form part of his assets (A*) ; 
 and even if a vendor reserved the purchase-money, pay- 
 able as he shall appomt by an instrument, executed in 
 a particular manner, and afterwards exercise his po^ver, the 
 money v.ill, as between his creditors and appointees, be 
 assets (/). 
 
 If tlie estate is under a contract for sale at the date of the 
 will, a demise of it to be sold for a charity, will give the 
 purchase-money to the charity, notwithstanding the mort- 
 main act, as it is called {?//). 
 
 A vendee being actually seised of the estate in contem- 
 plation of equity, must, as we shall hereafter see, bear any 
 loss which may ha])})en to the estate between the agreement 
 and conveyance, and will be entitled to any benefit which 
 
 (/) Lowps V. Lush, Franklin 541, pi. 28; IJ.idr n v. Eail of 
 
 V. Lord Browiiluw, 1 J \'e,s. Juii. i*enil)iokf', 2 V'fin. 213 ; Buhb's 
 
 547. 650. case, <2 I'Vct-m. 3^ ; Smith v. Hib- 
 
 (^) Paul v.Wilk ins, Toth. ]L6. hard, 2 Dick. 712; FoU-y v. IVr- 
 
 (A) Baik.i V. liill, '2 Cha. R<p cival, 4 Dm. C. C. 419 ; ami see 
 
 113. (iill). Lex I'LTetor, 213. 
 
 (i) Winged V. Lefcljury, 2 I'.q. (/j Thompson v. Towne, 2 Vein. 
 
 Ca. Ahr. 32, pi. 13 ; cases cited 319. 166. 
 
 (I'llc, n. 1). (///; Middlefon v. Spicer, 1 Br(;. 
 
 (h Sik<- V. Lister, 5 Vin. Abr. C. C. 201. 
 
 mav
 
 156 
 
 OF 'I III:. COXSEQUEXCKS 01' 
 
 may accrue to it in the iiitciini {n) ; but, if he obtain 
 possession of the estate before he has paid the purchase- 
 money, and begin to cut timber, equity will grant an in- 
 junction against liini (o). 
 
 If the purchaser was tenant at will of the estate, the 
 contract determines the tenancy. And even if he was te- 
 nant for a term certain, tlie agreement determines the rela- 
 tion of landlord and tenant, and in equity,( at least, the 
 landlord cannot call for rent {p). 
 
 It is a consequence of the same rule, that a purchaser 
 may sell or charge the estate, before the conveyance is 
 executed {(j) ; but a person claiming under him must 
 submit to perform the agreement hi futo, or he cannot be 
 relieved (r). 
 
 So he may devise the estate, if freehold (6'), before 
 the conveyance ; and if copyhold, before the suiTender (/) ; 
 and that, althousyh the estate is contracted for at a future 
 day {ti'', or the contract is entered into by a trustee 
 for him {a'), and the devisee will be entitled to have the 
 
 (w) See post, cli. 5. 
 
 (o) Crockford v. Alexander, 15 
 A'es. Jun. 138 
 
 (p) Daniels v. Davison, 16 Vcs. 
 Jun. 2i9. 
 
 iq) Seton v. Slade, 7 Ves. Jun. 
 265; and see 1 Vt-s. 220 ; aiid 6 
 Ves. Jun. 352. V\ ood v. Crilfilb^ 
 12 Feb. 1818, MS. see post. 
 
 (r) See Dyer v. Pulteney, Bar- 
 nard. Rep. Ci a. 160; a V: ry par- 
 ticular case 
 
 {ii) Darrib's case, 3 Salk. 85; 
 Miluer V. Mills, Mose. 123 ; Al- 
 loy n V. Alley n, Mose. 262 ; Atclu 
 frk-y V. Vernon, 10 Mud. 518; 
 
 G'bsun V. Lord Montfon^, 1 V'ts. 
 ^85. 
 
 (/) Davie V. Deardsham, 1 Cha. 
 Ci. ^.9; Nels. Cha. Hep. 76; 3 
 Cha. K.p. C ; Greenhi!! v. (iretn- 
 hill,2Vern.679; Free. Cha.3-C; 
 Attherley v. Vernun, 10 Mod. 
 518; Ilobson v. Brovv!'^ Ocf. 1740 
 S P. ; and see 9 V^es. Ju:i.5;0. 
 
 (u) Commissioner Til.iiuel's 
 cabc, Mose. 265, cited ; and see 
 Atcherley v. Vernon, 10 Mod* 
 518; Gibson V. Lord Monlfort, 1 
 Ves. 485. 
 
 (x) Greenhill v. Gretnliill, 2 
 Vern. 679. 
 
 estate
 
 THE CONTRACT. 157 
 
 estate paid for out of tlie personal estate of tlie pur- 
 chaser (?/). 
 
 Tlie rule that an estate contracted for may be devised 
 before it is conveyed, cr surrendered to the pu.rcliaser, lias 
 now become a land-mark, and could not be shaken with- 
 out endang'oring the titles to lialf tlie estates in tlie king- 
 dom. The applicability of the rule to freehold estates 
 has, I believe, never been questioned, but in i\rdesoife 
 V. Bennet {z), where the ]^,oint arose as to a copyhold 
 estate, Sir Thomas Sewell decided the case en another 
 ground, and appears to have avoided sanctioning the rule 
 in question ; and in a manuscript note of this case by the 
 name of W^ilson v. Bennett, it is said that the JNIaster of 
 the Bolls was of opinion that the copyhold estate did not 
 pass by the will. Tliis opinion was clearly extra-judi- 
 cial, and cannot be deemed subversive of the numerous 
 cases wliieli have established tlie contrary doctrine ; ajid, 
 indeed, in a case before Sir Tliomas Sewell, a few years 
 after that of Ardesoif v. Bennet, he seems to allude to a 
 devise of a copyhold estate contracted for, as sanctioned by 
 practice (a). 
 
 An estate contracted for, will pass by a general devise 
 of all the lands purchased by the testator, although lie may 
 liavc purchased some estates whicii have been actually con- 
 veyed to liim, and would therefore of themselves satisfy the 
 words of the will (/>). 
 
 On the other hand, it seems tliat estates recently pur- 
 chased cntd actually conveyed, will pass with estates con- 
 tracted for, by a general devise of all the manors, &c, for 
 the purchase whereof tlic testator has already contracted 
 
 {i/) Miln* r V Mills, Mose. 123 ; (o) Floyd v. Aldridge, 1777, 5 
 
 Broom V. Moiick, 10 Ves. Jun. East, 137 cilf^l ; ani! fee X'ernoii 
 
 507. V. Vfrnr.n, 7 Tavf, H. 
 
 (z) 2 Dick. 403, and see 15 (A) AlclicrU-y v. Vornon, 10 
 
 Ves, Jun. 391, 392, n. Mud. 5 IS. 
 
 aiidf.
 
 158 OF THE CONSEQUEXCES OF 
 
 and agreed (c), (1). But a devise of estates " for the 
 jnirehasc whereof the testator has o/ilij eontraetcd and 
 agreed," would not pass estates actually conveyed to him 
 before tlie will, unless perhaps they were recently purcliascd, 
 andtlie testator had not contracted for. any other estate. 
 
 If a man possessed of a term of years, contract for the 
 purchase of the inlieritanee, the term, by construction of 
 ccpiity, instantly attends the inheritance; and therefore, 
 by a devise of the estate subsequently to tlie contract, the 
 fee-simple would pass, althougli not actually conveyed, and 
 the term as attendant on it (<'/). 
 
 And if the purchaser had, preA iously to tlie purchase, 
 made his will, by a general bequest in which the term 
 would liave passed, yet the legatee will not be entitled to 
 it, although the bequest be not expressly revoked ; because 
 the term, by the construction of equity, attended the inhe- 
 ritance immediately on the purchase of the fee, and it must 
 therefore follow it in its devolution on the heir or devisee (e). 
 
 The same rule, it seems, must prevail where the term is 
 even sjjecificfalli/ bequeathed ; for if the fee had been actually 
 conveyed, the conveyance would have operated as a revoca- 
 tion if) ; and as the vendee is seised of the fee in contem- 
 plation of equity, although the conveyance be not executed, 
 the same rules ocight to be adhered to in each case. 
 
 Althougli the estate may, subsequently to the will, be 
 
 (c) St. John V. Bishop of Win- 1804. MS.; 9 Ves, Jun. 509; 
 ton, Cowp. 94 ; LofFt^ 113, 34g ; Cooke v. Cooke, 2 Atk. 67. 
 
 S. C and 2 Blackst. 930. (e) Capel v. Girdler, iibi sup. 
 
 (d) Per Sir Wnn. Grant, incasii (f) Gallon v. Hancock. 2 Atk- 
 Capel V. Glriller, Rolls, 16 May, 424, 427, 430. 
 
 (I) This, honever, must depend upon the particular circumstances of 
 each case. The case referred to can scarcly be cited as a binding autiio- 
 ri'y establishing a gpneral rule. It seems that the House of Lords was 
 taken by surprise in affirming the judgment.
 
 THE CONTRACT. 159 
 
 GOiivcycd, or surrendered, eitlier to the purchaser (g), or to 
 a trustee for hhn (//), yet tliat will not operate as a revocation 
 of his will (I). The legal estate will of course descend to 
 
 the 
 
 (g) Parsons v. Freeman, 3 Atk. (h) Jenkinson v. Watts, Lofft 
 
 741, Ami). 116; and see 1 Yes. 609, reported ; cited nom. Watts 
 
 Jun. 256 ; 2 V'es. Jun. 429, 602; v. Fullarton, Dougl. 718; Rosev. 
 
 6Ves. Jun.220;8 Ves. Jun. 127; Cunyn-hame, 11 \e>. Jun. 550. 
 and Pridcux v. Gibbiii, 2 Cha. Ca. 
 144. 
 
 (1) In Brydgos v. Duchess of Chandos 2 Ve.';. Jun. 429, Lord Rosslyn, 
 in treating of this point, said, " Another case is supposed to arise, in which 
 this court determines upon a principle of equity, it is not said directly 
 against the rule of law, but without attending to what the law would be ; 
 that is (he case where au equitable estate is devised, and after the will 
 the legal estate is taken, the court has said that does not revoke tht will. 
 It is dilTicult to state that, at this time of day, in a court of law, which 
 could uot look at the equitable interest, but looks only rt the Kgal : but 
 as the legal interest is only a shadow, the justice of the case is very evi- 
 dent ; but it is a decision in couformitj' to the like case at law. The very 
 case occurred at law in Roll. Abr. 616. pi. 3. Cestui que use, before the 
 statute of uses, devises ; afterwards the feoffees made a feotTment of th« 
 land to the use of the divisor ; and after the statute the devisor dies ; the 
 land shall pass by the devise ; because after the feoffment, the devisor had 
 the same use which he had before. That is exactly the case of an equita. 
 ble estate devised, and a conveyanc(^ taken afterwards of the legal estate ; 
 and this court was so far from determining without considering what the 
 rule of law would be, that here is the very point decided by a court of 
 law." 
 
 The case referred to is thus stated in Roll;—'' Si liome aiant feffees a 
 son use devant Icstotut de 27 //. 8. ust devise le Icn-c al aiiter, and puis 
 Ics fejfees font fcjj'inenl del lerrc al tisc del devisor and puis Icstatul Ic 
 devisor morusl, le tcrre passcra per le devise, car apres le fcffmcnt le 
 devisor avoit mesmc I'use que il aioit devant." 
 
 The case then appears to be this. The cestui que use made his Avill, 
 and thefeolfees afterwards made a feofliiient of the lands to his uic ; that 
 iSj enfeoffed other persons to the use of him. This appears by the reason 
 
 fiiven
 
 IGO OF TJIK CONSEQUENCES Ol' 
 
 the heir at law, and lie will in equity be deemed a mere 
 trustee for the devisee, unless tlie de\iscc tliinking the estate 
 
 did 
 
 piven for Ihf decision, nnniely, •'because after th<' frofinifnt the liovisor 
 had t!ie same use wliicli he had before." Wliercas, if l!ie facts of tlic- 
 case were as Lord Rosslyn supposed, t!u; devisor would, bt-fure the fcofl- 
 meiit, have been a mere cestui que use, entitled at law to neither Jm* in 
 re, nor jus ud rem; and after the feofl'ment he would have been actually 
 clothed wUh the legal seisin of the estate; the case, therefore, s^'eins only 
 a decision that where a man devises an equitable estate, a transfer of the 
 legal estate to other persons, in trust for him, is not a revocation of h';s 
 will. And such is still the rule of law (Doe v. Pott, Dougl. 2d Edit. 
 710) as well as of equity, Jenkinson v. Watts, LoHTt, 609. 
 
 It may, however, be objected, that the devisor did not die till a''ter the 
 statute ol'uses; and therefore admitting the force of the foregoing remarks, 
 it still appears that the legal estate was, by the operation of the act, vested 
 in the devisor. To this it may be answered, that the statute was ex. 
 pressly passed to prevent alienation of estates by devise, allliough it de. 
 flared that wills made before the statute, by persons who were or should 
 be dead before the 1st of May, 1536, should not be invalidated by the 
 Act We must therefore presume that the devisor died before that time ; 
 otherwise the will would have been void by virtue of the Act itself, as 
 was expressly decided in a case where cestui que use before the sta- 
 tute devised the use ; and then came the statute, whch transferred the use 
 into possession ; and although the testator survived the statute of ivills, 
 yet the operation of the statute of uses was holden to be a revocation, 
 because the use teas thereby goiie. 1 Rol. Abr. 616, (R) pi. 2 Putbury 
 V. Trtvalion, Dyer, 142, b.— Indeed the statute of uses could not have 
 come in question in the above case, if the feoffment had been made to the 
 devisor himself. 
 
 Lord Kardwicke seems to have construed the casein Roll in the same 
 manner as Lord Rosslyn did, (see Sparrow v. Harucastle, 3 A(k. 798, 
 Ambl. 224), altiiouglj he appears to have been struck with the reason 
 given for the decision ; in explanation of which he is in Atkins stated to 
 have said, " The use at law was the beneficial and profitable interest, the 
 same as a trust in equity, and which remained in the same manner after 
 the feoffment as before, and the feoffees there granted the dry legal estate 
 to the devisor." In Ambler, his Lordship is reported to have said, " Thus 
 the law considers two interests in the land ; the legal estate, and the use : 
 now the use remains the same at the making the devise, aod at the death 
 
 of
 
 THE CONTRACT. 
 
 161 
 
 did not pass by the will, perniit the heir to take the estate, 
 and acquiesce in this for a long while ; in which case equity 
 will not relieve him (/), 
 
 But in analogy to the decisions upon legal estates (k) it 
 hag been held, that a devise of a freehold estate contracted 
 for is revoked by a subsequent conveyance to the usual uses 
 to bar dower (/). If, however, it were stipulated in the 
 
 (i) Davie v. Beardsharo, 1 Cha. 
 Ca. 39 ; and see Pigott f. Waller, 
 7 Ves. Jun. 98. 
 
 (k) See Tickner v. Tickner, 3 
 Atk. 742, cited ; Kenyon v. Sut- 
 ton, 2 Ves. Jun. 600, cited ; aud 
 Nott V. Shirley, ibiJ. 604, n ; and 
 see 2 Ves. Jun. 429, 600 ; 6 Ves. 
 Jun. 219; 8 Ves. Jun. 115, 211; 
 
 10 Ves. Jun. 249, 256 ; see also 
 Luther V. Kidby, 3 P. Wms. 170, 
 n. and observe the distinction. 
 
 (/) Rawlins ▼. Burgis, 2 Ves« 
 and Bea. 382. There was an ap- 
 peal to the Lord Chancellor, which 
 was for particular reasons with- 
 drawn. It is a point of great inte- 
 rest and nicety. 
 
 of the devisor : and therefore accepting the grant of the feoffees makes no 
 alteration in it." 
 
 Lord Hardwicke's attempt to reconcile what he conceived to be the 
 decision in this case, with the reason given for it, evinces the impossibility 
 of making them consistent. According to his argument, the equitable 
 interest was not merged by its union with the legal estate, but still sub- 
 sisted in the contemplation of law. 
 
 In the case of VVillet v. Sandford, 1 Ves. 186, Lord Hardwicke classed 
 the different interests in land into three kinds : First, the estate in the 
 land itself; the ancient common law fee. Secondly, the use ; which was 
 originally a creature of equity ; but since the statute of uses, it draws 
 the estate in land to it ; so that they are joined, and make one legal estate. 
 Thirdly, the trust ; which the common law takes no notice of^ but which 
 carries the beneficial interests and profits in this court, and is still a 
 creature of equity, as the use :x:as before the statute. 
 
 This judicious classification proves (what indeed could not be doubted), 
 that the true principles of this subject were familiar to this great master 
 of equity, and that he was led into a false argument by endeavouring to 
 account for a principle which did not exist. 
 
 Upon the point in this note, see further, n. (a) to 2 V^es. and Bea. 385, 
 and note (I) to Treat. Powers, 2d edit, p. 145. ^r £J^/'^-^ /^ ^*^2 
 
 M contract
 
 162 or THE CONSEQUENCES OF 
 
 contract tliat tlic estate .should l)e conveyed to the purclm^r 
 in fee, or to such uses as he should appoint, a conveyance to 
 uses, to bar dower, would not, it is apprehended, operate as 
 a revocation of the Avill. 
 
 Estates contracted for after the will, will not pass by it 
 {m) ; nor will lands pass by the will, although con^•cyed to the 
 purchaser subsequent to his will in pursuance of a contract 
 irrior to the xt'ill, uidess it was a valid binding* contract {n). 
 But in these cases the heir at law will be entitled to have 
 the estate purchased for his own benefit, out of the personal 
 estate of his ancestor (o), and that, although he unite in 
 himself the three characters of vendor, heir, and executor {pY 
 The estate will, however, be assets in the hands of the heir. 
 
 So if the purchaser die intestate, the heir will in like 
 manner be entitled to have the estate purchased for him : 
 and if his ancestors die before the conveyance is executed, 
 the heir may devise, charge, or sell the estate, in thesame 
 manner as the ancestor himself might ha^e done {q). 
 
 If the executor complete the purchase, and take the con- 
 veyance in his own name, he will be a trustee for the heir 
 or devisee (r). And if the assets cannot be got in, and the 
 real representative pay for the land out of his own pocket, 
 he may afterwards call upon the personal estate to reim- 
 burse him {s). So, if the personal estate is insufficient to 
 perform the contract, and the agreement is on that account 
 
 (m)Langfort] v. Pitt, 2 P.' Wms. \rins. 224 ; Broome v. Moutk, 10 
 
 629 ; Allcyn v. Alleyn, Mose. 62 ; Vps. Jun. 597. 
 
 Potter V. Potter, 1 Ves. 437 ; and (p) Coppin v. Copp'm, Sel. Cha, 
 
 see 1 Atk. 573 ; AVhite v. White, Ca. 28 ; 2 P. Wms. 291. 
 
 2 Dick. 522 ; Pveg. Lib. B. 1775, {q) Langford v. Pitt, 2 P. Wms. 
 
 fol. 650. 629. 
 
 («) Rose V. Cunyngharae, 11 {)) Alley n v. Alleyn, Mose. 
 
 Ves. Jun. 550. 262. 
 
 (o)Milnerv. Mills, Mose. 123; (^) See 10 Ves. Jun. 614, 615. 
 and sse 2 P. V/ms. 632 j 3 P. 
 
 rescinded.
 
 THE CONTRACT. 103 
 
 rescinded, yet the heir or devisee will, it should seein, be en- 
 titled to the personalty as far as it extends. Ami it has been 
 decided, that if by reason of the complication of the testator's 
 affairs, the purchase-money cannot be immediately paid, and 
 the vendor for that reason rescinds the contract, yet on the 
 coming in of the assets, the devisee of the estate contracted 
 for, may compel the executor to lay out the purchase-money 
 in the purchase of other estates for his benefit (/). 
 
 But if the heir not being entitled to have the estate paid 
 for out of the personal estate, actually obtain and apply the 
 personal estate in payment of the purchase-money ; the per- 
 sons entitled to the personal estate will not be entitled to 
 the lands, but only to a charge on it for the amount of the 
 money wi'ongly applied {u). 
 
 Any codicil executed according to the statute of frauds, 
 Avill amount to a republication of a prior will of lands ; and 
 therefore, if a purchaser, previously to a contract, make a 
 general devl<ie of all his latids, and after the contract exe- 
 cute a codicil, according to the statute of frauds, unless an 
 intention appear not to affect it (.r), the after-purchased 
 estate will pass under the devise in the will, although lega- 
 cies only are given by the codicil, and no notice is taken of 
 the estate (?/). 
 
 It has been thought that this rule would not apply where 
 the devise in the will is of " the estates of wliich I am fioxv 
 seised ;" but the codicil makes the will speak as from the 
 date of the codicil, and therefore there seems to be no solid 
 ground for the supposed distinction. 
 
 (0 Whittalw V. WHittaker, 4 7 Term Ren. 182; 2 Bos. and 
 
 iJro. C.C. 31. ; Broome v. Monck, Pull. 500. 
 
 10 Ves. Jun. 597. Hde infra. (ij) B.irni'S v. Crowe, I Ves. 
 
 («) Savage v. Carroll, 1 Ball .7>;n. 486; Pigott v. Waller, 7 
 
 and Beatty, 265 j see post, ch. 15, "\'cs, Jun. 98 ; Goodtitle v. Me- 
 
 «. 3, redith, tl Maw. and Sei\r. 5 ; 
 
 (r) Lady Stralhmorc v. Bowes, Ilulmo v. Ilcygato^ 1 Mer. 285 
 
 M ^ And
 
 164 OF THE CONSEQUENCES OF 
 
 And if a purchaser, previously to a contract, by a will 
 duly executed according to the statute, direct his after-pur- 
 chased lands to be conveyed to the uses of his will, and make 
 a provision for his heir at law, and afterwards die without 
 republishing his will, and the after-purchased lands devolve 
 on the heir at laAV, equity will put the heir to his election, 
 and not permit him to take both the descended estate, and 
 the provision made for him by the will [z). 
 
 In purchasing, therefore, of an heir at law who claims an 
 estate conveyed to his ancestor after the date of his will, the 
 purchaser should be satisfied of three points : viz. 1st, That 
 the contract was not entered into by the testator previously 
 to making his will. 2dly, That no codicil was afterwards 
 executed by him, according to the statute of frauds, by 
 which the lands, although not in contemplation, passed. 
 And, Sdly, if the will affects to pass all the estates which 
 the vendor might thereafter acquire, that the heir at law 
 does not take any interest under the will. 
 
 And here we may observe, that if a man make a dispo- 
 sition by will of all his copyhold estates, generally, and 
 afterwards purchase other copyhold estates, and surrender 
 them to the uses declared by his will (a), or even to the uses 
 declared by his will of and concerning the same (6), the 
 after-purchased estates will pass under the general devise, 
 although the will ^vas not re-published. Therefore, where 
 a copyhold estate has been surrendered to the use of a will, 
 and the purchaser is buying of the heir at law, who claims 
 in the absence of any devise subsequently to the purchase by 
 
 (z) Thellusson v. Woodford, since been so decided at wm'junKj. 
 MS. 13 Ves. Jun. 209, affirmed In {b) Attorney.general v. Vigor, 
 
 Dom. Proc. > and see Treat, of 8 Ves. Jun. 256 ; see Smart t. 
 
 Powers, Ch, 6, Sect. 2, Div. II. Prujean, 6 Ves. Jun. 565; and the 
 
 («) Heyiyn v. Heylyn, Cowp. last edit, of Gilbert on Uses, n, 
 
 130, Loat. 604, This point has (5), p. 72. 
 
 his
 
 THE CONTRACT. l66 
 
 Ills ancestor, lie must he satisfied that the estate did not pass 
 under any general devise in a will prior to the purchase. 
 
 From the time of the contract, the purchaser, and not 
 the vendor, being owner of the estate in equity, it follows, 
 that if a man devise his estate, and afterwards contract 
 for the sale of it, the devise will thereby be revoked in 
 equity {c). 
 
 And even where an estate was by a will directed to be 
 sold, and the money to be paid to certain persons, and the 
 testator himself afterwards sold the estate, it was held, 
 that the legatees were not entitled to the money produced 
 by the sale {d). 
 
 If, however, an agreement be such as a court of equity 
 will not carry into execution against the representatives, 
 there seems ground to contend that it will not revoke the 
 will, because the agreement can operate as a revocation in 
 equity only ; and therefore if equity will not sustain the 
 agreement in respect of which the will is held to be re- 
 voked, there appears to be no solid reason why the devise 
 of the estate should not take effect. In Onions v. Tyrer 
 (e), the Iword Chancellor held, that a second will devising 
 lands to the same person as the former, and revoking all 
 fonner wills, but not duly executed, should never revoke 
 the former will, so as to let in the heir; nay, if by the lat- 
 ter will the 'premises in question had been given to a third 
 person, it shoidd never have let in the heir, in regard the 
 meaning of the second will was to give the second devisee 
 what it had taken from the first, without any eonsklcr- 
 athn had to the heir ; and if the second devisee took no- 
 thing the first would have lost nothing. 
 
 (c) Rydor v. Wa;er, nnd Cotter (J) Arnald v. A maid, 1 Bro.C. 
 
 V. Layer, 2 P. Wms. 332, 623 ; C. 40l, 2 Dick. 615. 
 
 and see2 Ves. Jun.436 ; Vawser (e) i 1' Wms. 345 ; see 7 Ves. 
 
 V. Jeffrey, 16 Ves. Jud. 519. Jun. 379. 
 
 M 3 These
 
 166 OF THE CONSEQUENCES OF 
 
 These principles oiiglit perhaps to he referred to the 
 words of tlie statute of frauds ( /') ; hut still as an agi-ee- 
 irient is only an equitahle revocation, the same reasoning ap- 
 plies to the case heforc us. AVhere a man contracts for the 
 sale of liis estate, he intends to increase his personal estate, 
 and not to henefit his heir ; and if the court will not carry 
 the agreement into a specific execution for the benefit of 
 the personal estate, " the personal estate takes nothing, and 
 the devisee can have lost uothinir." 
 
 In the two cases (g) in which it has been holden, that 
 an agreement will revoke a will in equity, it makes a term 
 of the proposition, that the agreement amount in equity 
 to a conveyance. And it should seem that Lord Eldon 
 is of this opinion, for in Knollys v. Alcock (^), where it 
 was contended that an agreement in equity is a revocation 
 only where it can be performed, his Lordship did not deny 
 the rule as stated, but shewed, that the agreement in that 
 case was such as equity would perform (/), (I), and in 
 Clynn v. Littler {k), Lord IMansfield laid it down, that cove- 
 nants had never been allowed to be revocations, unless uclbcre 
 the covenantee has a right to a speeific pcrifoiinanec. 
 
 'Whether an abandonment of an agreement will prevent 
 
 (/) See Tow. Dev. 641, cd ; and see Mayer v. Gowland 
 
 (g) Ryder v. Wager, and Cotter 2 Dick 563 -, see also 2 Ves.Jun. 
 
 V. Layer, ubi sup. 436. 
 
 (/?) 7 Ves. Jun. 558. There was (?) See Savage v. Taylor, For. 
 
 an appeal from the decision in this 234. 
 
 case, which has been compromi?- {k) I Blackst. 345. 
 
 (I) Note. It appears by an abstract of the title to the esta^.-ia^e- 
 spect of which the litigation in Savage v. Taylor was commenced, that 
 the heir at law of the testator in his answer to the bill of the devisee in- 
 sisted, that if the will was originally valid, yet it was revoked bythe ar- 
 ticles for sale, although the court ought not to carry them into ex- 
 ecution. 
 
 the
 
 ''^'^ "^ THE CONTUACT. IC? /« *?'^^,- 
 
 ^/ 
 
 tlio contract from operating as a revocation of a prior will, 
 seems to be a more doubtful point. In the case of Knollys ' 
 V. Alcock, before referred to, it was also contended, that 
 an agreement which was abandoned, was not a revocation 
 in equity ; but Lord Eldon said, he did not admit that if 
 there is an agreement in equity which at the moment is a " 
 completely operative revocation, a subsequent abandon- 
 ment will of necessity set up the will. His Lordship 
 added, that he did not say whether it would be so or not, 
 or he was of opinion he could not raise the question in the 
 case before hirn^ as the agreement v»\is never abandoned. *^ 
 In the first case in the books (/), in which the question 
 arose, whether a covenant to convey an estate dtnised, 
 should operate at law as a revocation of the will, it was 
 liolden, that such a covenant without more, was not any 
 revocation of the will ; because perhaps the devisor's inten- 
 tion would alter before performance of the covenant. At 
 law, therefore, a contract does not revoke the will ; but a 
 conveyance in pursuance of the contract woidd of course 
 operate as a revocation, or to speak more technically, as an 
 ademption. Now it may be contended, that the same rule 
 must prevail in equity, aiud that a contract for sale ought 
 not to affect the validity of a prior will, until it is carried in- 
 to execution, or which in equity is tantamount to a conveyance, 
 until the court decree a specific performance of it. While 
 an agreement rests in fieri, and the validity of it has not 
 been acknowledged by a decree, it seems equitable that the 
 owner should be at lil)erty, with the concurrence of the otlier 
 party, to alter his mind. Indeed in the absence of inten- 
 tion, there seems to be no weiglity distinction between nn 
 agreement which has been abandoned, and an agreement 
 wliich ecpiity will n*ot perform. If a man make a second 
 will wit]u)ut expressly revoking the first, ami afterwards can- 
 
 (/) IMontuguo V. Jcfl'rics, I Uo. Abr.Glj, (P) i>I. 3. 
 
 M i cel
 
 168 OF THE CONSEQUENCES OF 
 
 ccl the second will, the first is revived, the second will bing 
 considered only intentional {m) ; and although it is true that 
 a will is ambulatory till the death of the testator, yet the same 
 ground may be taken in support of a will impliedly revoked by 
 an agreement afterwards abandoned. Why should not a mere 
 agreement be deemed ambulatory till it is completed, when 
 it is clear that the parties may rescind the agreement, and 
 the estate of the devisor is not altered so as to effect a revo- 
 cation at law ? 
 > A^" >^z^ When an estate is contracted to be sold, it is in equity 
 •/«' ^ {^J considered as converted into personalty from the time of 
 the contract (I) ; and this notional conversion takes place, 
 although the election to purchase rests merely with the 
 purchaser {n). ,, 
 
 Thus in a case before Lord Kenyon, at the Rolls (o), 
 Whitmore demised to Douglas for seven years, with a 
 covenant, that if the tenant, after the 29th of September, 
 1761, and before the 29th of September, 1765, should 
 choose to purchase the inheritance for 3000/., Whitmore 
 would convey to him (II). In 1761, before any election, 
 
 (7/1) Goodrightv.Glazier,4Burr. S. C. cited 16 Ves 253, 254 nora. 
 
 2512. Douglas v. Whitroiig ; Ripley?. 
 
 («) Lawts V B-imett, 7 Ves. Waterwerth. 7 Ves. Jun. 425. 
 JuD. 43G ; ]4 Ves. Jun. 596 cited j (o) Whitinore'scase, ubi sup. 
 
 (I) The decision in the case of Foley v. Percival, 4 Bro. C. C. 419, 
 seems to depend on the personal estate having been charged with the le- 
 gacies ; and the dictum of the Lord Chancellor, that an estate con- 
 tracted to be sold, is not converted into personalty, where it will disap- 
 point the testator's intention as to the payment of legacies charged upen 
 the estate by his will, appears not to be warranted by either principle or 
 authority. The case of Comer t. Walkley, 2 Dick 649, is misrcported. 
 See post. ch. 9. 
 
 (II) As to rights of preemption given by will, and the mode in which 
 they will be carried into execution, see Earl of Radnor v. Shafto, 11 
 Ves. Jun. 448; as to a right of preemption of timber, which a Ies8ee is 
 authorised to cut down, see Goodtitle v. Saville, 15 East, 87. 
 
 Whitmore
 
 THE CONTRACT. I69 
 
 Whitmore died, and left all his real estate to Bennett in 
 fee, and all his personal estate to Bennett and his sister 
 equally. In 176.5, before the time mentioned, Waller, who 
 purchased the lease and benefit of the agreement from Dou- 
 glas, called on Bennett to convey for 3000/. ; which convey- 
 ance was made in consideration of that sum. Afterwards 
 the sister and her husband filed a bill against the represeut- 
 ative of Bennett, claiming a moiety of the 3000/. and inte- 
 rest, and it was decreed accordingly. 
 
 This case has been recently followed by Lord Eldon(^). 
 But it must be observed, that until the option is declared, 
 the rents belong to the heir or devisee. 
 
 Upon the same principle it has been determined, that if 
 a man having a timber estate, agree to sell a given quantity 
 per annum to be chosen by the buyer, although the owner 
 die, and the option is in the buyer, yet the timber cut 
 after the owner's death, however large in quantity, will be 
 part of his personal estate {q). 
 
 The rule established by these decisions must frequently 
 subvert the vendor's intention; where therefore a vendor 
 intends the estate, as between his real and personal repre- 
 sentatives, to be deemed real estate, a declaration to that 
 effect should be inserted in the agreement for sale. 
 
 Disputes also, often arise between the real and personal 
 representatives where a person purchases an equity of re- 
 demption ; the real representative mostly claiming to have 
 tlie mortgage money paid off out of the personal estate, and 
 the personal representative resisting the demand. Unless 
 the mortgage money form part of the consideration money 
 for the estate, or the purchaser, by communication with the 
 mortgagee, clearly take the mortgage debt on himself, as be- 
 tween his heir and executor, it will be considcrd a charge on 
 
 (J)) Townley v. Bcdwell, 14 (5) See 7 Ves. Jud. 487. 
 
 Ves. Jun 591. 
 
 the
 
 170 
 
 OF THE CONSEQUENCES OF 
 
 tlie land ; the mere covenanting •with tl'.e mortgager to pay 
 the debt, will not make it liis personal dcl^t ; and conse- 
 quently his personal estate, as between the heir and execu- 
 tor, will only be tlie auxiliary fund for payment of it {r). 
 
 In cases of this nature C(piity always adverts to the in- 
 tention of the purchaser, and disputes on this subject may 
 therefore be prevented, by the insertion of a short decla- 
 ration in the purchase deed, whether the personal estate 
 of the purchaser shall or shall not, as between his heir and 
 executor; be the primary fund for payment of the mortgage 
 money. 
 
 But (to return to the point under consideration) if upon 
 the death of the vendor a title cannot be made (I), or there 
 was not a perfect contract, or the court should think, the 
 contract ought not to be executed, in all these ca,ses there 
 is no conversion of real estate into personal in consideration 
 of the court, upon which the right of the executor on the 
 one hand, and of the heir or devisee on the other, depends ; 
 and therefore the estate will go to tl>e heir at law of the 
 vendor, in the same manner as if no contract had been en- 
 tered into (.S'), and the heir or devisee of the purchaser ■saiU 
 not be entitled to the money agreed to be paid for the 
 laiuls, or to have any other estate bought for him (/). The 
 
 (r) On this point see Evelyn v. 
 Evelyn, 2 V. Wms, 659 ; and the 
 cases in Mr. Cox's note ; to which 
 add, Hamilton v. Worley, 2 Ves. 
 Jan. 62 ; Woods v.UuntingfordjiJ 
 Ves. Jun. 128 ; Buller v.BuUer, 5 
 Ves. Jun. 517 ; Waring v. Ward, 
 5 Ves. Jun. 67O, and 7 Ves. Jun. 
 332, and Lord OxforH v. Lady 
 Rodney, 14 Ves. Juu 41/. 
 
 (s) Lacon v.Mertins, 3 Atk.l ; 
 Attorney.general v. Day, 1 Ves. 
 218 ; Buckmaster v, Harrop, 7 
 Ves. Jun. 341 ; and see 8 Ves. Jun. 
 274 ; Rose t. Cunynghame, 1 1 
 Ves. Jun. 550. 
 
 (0 Oreen v. Smith, 1 Atk. 373 ; 
 Broome v. Monck, 10 Ve?. Jun. 
 597 ; Savage v.Carroll, 1 Ball and 
 Beatty, 265. FtJe supra. 
 
 (I) But if the purchaser himself is alive, he may elect to take the es- 
 tate, Western V. Russell, 3 Ves. and Bea, 1S7. 
 
 coiu:t
 
 THE CONTRACT. 171 
 
 court cannot speculate upon what the deceased party would 
 or would not have done ; but, in these cases, the inquiry 
 must be, whether at his death a contract existed, by which 
 lie was bound, and wliich he would be compelled to per- 
 form. That alone can give the heir of the purchaser a 
 right to call for the personal estate to be applied, or to the 
 personal representative of the vendor, a right to call upon 
 his heir. The question must be the same, whether a pur- 
 chase or a sale is insisted on. Was the ancestor himself 
 bound ? Was there sucli an agreement as converts the real 
 estate into personal, or tlie personal estate into real ? (u) 
 (I). On this ground it has been decided, that where a 
 man had a right of preemption of an estate under a will, 
 and did not accept the offer in his life-time, or denote any 
 intention by his will to do so, there was no subsisting con- 
 tract, by virtue of which the right passed to the real repre- 
 sentative, so as to enable him to call upon the personal es- 
 tate to pay for the estate, as if it had been contracted for 
 (cT). So where upon a parol treaty, the purchaser filed his 
 bill for a specific performance of it, and the vendor sub- 
 mitting to perform it, a decree was made, that the purchaser 
 should pay the money into the Bank by a given day, or the 
 bill should be dismissed : and the purchaser paid the money 
 
 («) Per Sir Wm. Grant, 7 Ves. (x) Earl of Radnor v. Shafto, 
 
 Juii. 344, 345. 11 Ves. Jun. 448. 
 
 (I) Fido supra, p. 112. Note in Polftr v. Potter, 1 Ves. 438, a bill 
 was filed to compel execution of the parol agreement in the testator's 
 life-time; his agent gave a note for payment of part of the purchase- 
 money, and let the estate as he pleased. Possession of the estate must, 
 therefore, have been delivered to him. And the INIaster of the Rolls 
 expressly said, that the agreement was so far carried into execution, eyen 
 before the will, as to supply the want of writing. This case, thereforp, 
 like the others, only proves, that a binding contract in the testator's 
 lifsptime will be enforced. 
 
 according
 
 172 OF THR CONSEQUENCES OF 
 
 according to the decree ; in a question between his heir and 
 devisee it was determined, tliat the estate did not pass by 
 a general devise in his will, whicli was made prior to the 
 payment of the money {y). It will be observed, that in this 
 case, neither of the parties was bound at the time the bill 
 was filed ; and if the purchaser had not paid the money, 
 his bill would have been dismissed, and, in that event, no 
 contract would ever have existed. It was therefore clear, 
 that the inception of the contract was upon payment of the 
 money, and the will, therefore, having been made before 
 the contract, could not affect the estate. 
 
 But if an estate directed to be bought, but not actually 
 contracted for, is not, or cannot be bought, yet the money 
 must be laid out in other lands for the benefit of the devi- 
 see {z). And where a testator intends that the devisee of 
 the contracted estate shall have another estate of equal va- 
 lue in case a good title cannot be made to the one contract- 
 ed for, an express declaration to that effect should be in- 
 serted in the will. 
 
 By this time we must have observed, that the foregoing 
 ndes, as to the conversion of the estate, apply to those 
 cases only vvhere a court of equity will decree a specific per- 
 formance ; for if equity will not interfere, and the vendee be 
 left to his remedy at law, the rules of law, and not those of 
 equity, must then prevail, and consequently neither the 
 vendor nor his heir would be considered as a trustee for the 
 purchaser, but would only be subject to an action for breach 
 of contract. 
 
 f^^) Gaskarlh V. Lord Lowther, Bro. C. C. 31; and see 2 Atk. 
 12Ves. Jun 107. 369; Broome v. xMonck, 10 Ves. 
 
 (2) Whittaker v. Whittaker, 4 Jun. 597. f^ide supra. 
 
 SECT.
 
 THE CONTRACT. l73 
 
 SECTION ir. 
 
 Of Specific Performance. 
 
 1 HE preceding observations lead us to inquire, in what 
 cases a court of equity will decree a specific performance ; 
 which, for the purposes of this work, may be comprised un- 
 der two heads. First, with respect to the vendor. Se- 
 condly, with respect to the agreement itself. 
 
 I. First, then, if a man, seised in fee simple, or pur autre 
 vie (a), contract for the sale of his estate, and die before 
 the conveyance is executed, his heir at law will be decreed 
 to perfonn the agreement in specie, although he covenanted 
 for himself only, and not for his heirs (b). 
 
 But, if the heir at law be an infant, it appears by son^c 
 authorities {c) that he will not be deemed a trustee for the 
 purchaser within the 7tli Ann, c. 1 9 ; because, it is said, the 
 Act does not extend to trusts raised by the construction of 
 ec^uity, and consequently no conveyance can be obtained 
 until the infant attains twenty-one. — On examination of 
 the authorities, it will, however, appear, that the provi- ' 
 sions of the Act have been extended to a much more objec- 
 tionable case, and that this construction owes its origin ra- 
 ther to inadvertence than principle. 
 
 (a) Stevens v. Baily, 2 Freem. Abr. 541, pi. 28 ; Goodwin t. Lis. 
 
 199, cited ; Nels. Cha. Rep. 106. tor, 3 P. Wms. 387 ; S. C. MS.; 
 
 reported ; see Anon. 2 Freem. 155- Hawkins v. Obecn, 2 Ves. 559 ; 
 
 (i) Gcll v.Vermcdum, 2 Freem. Fearne's Post/tuma, 236 ; Jerdon 
 
 199. T. Foster, 1 Sand, on Use5, 283 
 
 (c) See Ex parte ^'ernon, 2 P. cited, 3d edit. 
 
 Wms 549 ; Sikcs v. Lister, 5 Vin. 
 
 In
 
 174 OF TIIK CONSEQUENCES OF 
 
 In a modern case, in wliich tins point arose {d), a man 
 devised liis estate, and afterwards contracted for the sale 
 of it, but died before the contract was carried into execution, 
 leaving an infant heir at law ; and, according to the report. 
 Lord Thurlovv, upon coimdcration^ declared the infant was 
 a trustee within the Act of Ann, and directed him to con- 
 vey to tlio purchaser, the will of the vendor not having been 
 proved and established against the heir at law; which, it 
 appears from the original papers in the cause, was owing to 
 the inattention of the solicitor who attended the execution 
 of the commission. 
 
 This case, as reported, is a direct authority that an infant 
 heir at law, who by construction of ccpiity is a trustee for a 
 l)iu'chaser, is also a trustee within the statute of Ann. The 
 decision being of great importance, and tlie accuracy of the 
 book in which it is reported being very questionable, I traced 
 the cause in the register's book, and have been favoured with 
 a perusal of the original papers in the suit. In the copy of 
 the decree in this case, and in the decree as entered in tlie 
 register's book, it is observable, that no notice is taken of the 
 infant ; but it merely contains the usual direction, " that all 
 proper parties, as the master shall direct, do join in convey- 
 ing, &c." It appears, however, by the register's book, that 
 upon motion the decree was varied, by omitting the direc- 
 tion, that Smith, as heir at law, should convey, and that all 
 all other necessary parties should also convey, and by insert- 
 ing the usual direction, " that all necessary and proper par- 
 ties, as the master shall direct, do convey :" which proves 
 that the decree is correctly stated in Dickens, 
 
 I have not been able to learn Avhethcr Lord Thurlow 
 altered his opinion, or npon what ground the decree was 
 varied ; but it seems to have been occasioned by the im- 
 possibility of obtaining a conveyance fro-m the lieu* at law, 
 
 (rf) Smith T. Hibbard, 2 Dick, 780, 
 
 who
 
 . THE CONTRACT. I75 
 
 ulio went to the East Indies very young, and had not been 
 since licard of. The conveyance was not executed till many 
 years after the decree, when the heir at law, if he was alive, 
 must have been between 30 and 40 years of age ; but he was 
 su}3posed to be dead, and another person joined in the con- 
 veyance, as the heir at law of the vendor. The presumption, 
 therefore, is, that Lord Tliurlow continued of the same 
 opinion, but varied the decree, for the convenience of the 
 j)arties : and it is to be hoped that his Lordship's decision 
 . will be followed in future cases. For notwithstanding Lord 
 Talbot's doubt {c), it has been decided, that an infant may 
 convey under the statute of Ann, in pursuance of a decree 
 of the court (/') ; and it is a simple act of legislation to de- 
 clare, as Lord King is reported to have done, that he would 
 in the case before him, hold the statute to apply to construc- 
 tive trusts, but that he never would do so in future (^). If 
 the court were, in cases of this nature, to require a bill to be 
 iiled, the interests of the infant would be before the court, 
 and could be taken care of If, on the contrary, I^ord 
 Thurlow's decision be not attended to, the most serious in- 
 convenience must frequently ensue, inasmuch as the pur- 
 chaser would be at liberty to rescind the coutract. (I). 
 
 (e) Goodwin T. Lister, 3 P. Pov. 239 ; and Hawkins v. Obeen, 
 Wms. 387 J S. C. MS. 2 Vcs. 559. 
 
 (f ) Oaehy v. Price, Fearne's (g) See Goodwin v. Lister. 
 
 (I) Ex parte Knight. Lady Tcynham v. Head, 21 January, 1799, 
 Chan. Two daughters devisees in fee. The estate was sold under a de- 
 cree for payment of testator's specialty debts. The surviving daughter, 
 and two so!is, coluirs in gavelkind of the other, were nia:lt* convey- 
 ing parties in tiie conveyance to the purchaser. One son dit d without 
 having executed the conveyance, leaving an infant heir, who \^as decreed 
 t« be a trustee for the purchaser, and conveyed accordingly. 
 
 An
 
 176 
 
 OF THE CONSEQUENCES OF 
 
 All agreement by a man seised in tail is, of course, bind- 
 ing on himself, but it cannot be enforced against the issue 
 in tail, if no fine or recovery was levied or suffered, although 
 the ancestor covenanted for that purpose (A), and received 
 part, or even the whole of the purchase-money, and a decree 
 was made against him to levy a fine, or suffer a recovery ; 
 and he died in contempt, and in prison, for not obeying the 
 decree (i) : the ground of which determinations is, that the 
 issue in tail claim pe?^ formam doni, from the creator or 
 author of the estate tail ; and therefore, though in the power 
 of tenant in tail by a particular conveyance, that not being 
 done, the court cannot take away the right they derive, not 
 from the tenant in tail, but from the author of the estate 
 tail (k). 
 
 A distinction has, however, been taken, where the an- 
 cestor is only equitable tenant in tail ; and the court will in 
 that case, it is said, relieve against the issue (Z), because 
 equitable estates tail are mere creatures of the court, and not 
 within the statute de donis ; and there certainly seems 
 ground to contend that the court would compel a specific 
 performance against equitable issue in tail, where a decree 
 has been made in the ancestor's life-time. But as late au- 
 thorities [m) have settled that an equitable estate tail in free- 
 
 (A) Cavendish v. Worslty, Hob. 
 203 ; Ross v. Ross, 1 Cha. Ca. 
 171 ; Sayle v. Freeland, 2 Ventr. 
 350; Jenkyns v. Keymes, 1 Lev. 
 237 ; which have overruled the 
 dictum'm Hill v.Carr, 1 Cha. Ca. 
 294. 
 
 H) Powell, V.Powell, Prec. Cha. 
 278 J Weal v. Lower, 2 Vern. 
 306. cited ; Sangon v. Williams, 
 Gilb. Eq. Rep. 104, cited ; and see 
 1 Ves, 224. 
 
 (Jc) See 2 Ves. 634. 
 
 (/) Norcliffe v. Worsley, 1 Cha. 
 Ca. 234 ; Sayle v. Freeland, 2 
 Ventr. 350 ; and see 1 Pow. Contr. 
 126. 
 
 (»») Legate v, Sewell, 1 P. Wras, 
 91 5 Harvey v. Parker, 10 Vin. 
 Abr. 266, pi. 6, affirmed in Dom. 
 Proc, J Kirkham v. Smith, Ambl. 
 318; Radford V. Wiljon, 3 Atk. 
 815 ; Boteler v. Allington, 1 Bro. 
 C. C. 72 ; Burnaby v. Griffin, 3 
 Ves. Jun. 266 ; and see Fletcher v. 
 Toilet, 5 Yes, Jun. 13. 
 
 hold
 
 THE CONTRACT. 177 
 
 holds cannot be barred by a mere deed, but only by a fine or 
 rccoverv ; it seems that equity could not consider such issue 
 to be bound by a mere agreement entered into by their an- 
 cestor. 
 
 The same observations seem to apply to legal and equi- 
 table estates tail in cojiyholds, for a legal intail can only 
 be barred aecordino- to the custom of tlic manor of which the 
 co2)yhold estate is holden ; and perhaps the better opinion is, 
 that the same steps must be taken to bar an equitable estate 
 tail in copyholds, as must be pursued in the case of a legal 
 intail. Lord Hardwicke, however, appears to have thought 
 (n) that a mere surrender was in every case sufficient to bar 
 an equitable estate tail in copyholds ; but the contrary opi- 
 nion is entertained by the profession, and appears to be au- 
 thorized by a case cited in several books from the papers of 
 the late Mr. Powell (o), in which it was held, that a cove- 
 nant by a tenant in tail in equity of a copyhold, in his mar- 
 riage settlement, to surrender his copyholds to uses in strict 
 settlement, was not of itself sufficient to dock the equitable 
 intail ; for if such an intail be created, a recovery in the court 
 baron is necessary to dock it ; it being a rule, that the saine 
 steps must be taken to bar an equitable estate in tail, as 
 would be requisite to bar it, were it a legal estate tail{p) (1). 
 
 Indeed the power of tenants in tail, to bind their issue, 
 
 (n) Radford v. Wilson, 3 Atk. (o) Hale's cas<', Ch. lltb, Dec. 
 
 315; and see (he judgment of Lord 1764; and ste Roe v. Lowe, 1 
 
 Chanrf-Uoi- Apsley, in Graynie v. Llenry Blackst. 446. 
 
 Grayme, 1 Watk. Gop. 180; and (p) And see 1 Watk. Copyh. 
 
 see I'ow. Contr. 126 ; see Pullen 181 3 1 Preston on Convey. 155. 
 V. Lord Middleton, 9 Mod. 483. 
 
 (I) Note ; this a[)ijeara to be an extract from Mr. Kooth's ojiinion on 
 this case. The case itself appears to li:ive been tlecided on the ground 
 that the remainder-man claiming in vqwity under the covenant for the 
 settlement was a mere volunteer, 
 
 N ought
 
 178 OF THE CONSEQUENCES OF 
 
 ouglit to be the same, whether the estate be freehokl or 
 copyhold, aiitl whcth.cr tlie iiitail be legal or equitable ; the 
 analogy prcsciTed between legal and equitable estates tail, 
 and between limitations in freehold and copyhold estates, 
 ought to be adhered to in this instance^ 
 
 Where by the custom of a manor, and it is the custom of 
 most manors, a tenant is complete master of his estate, in- 
 dependently of his wife, and can by his own act alone bar 
 her free bench ; an agreement by him for sale of his estate 
 will be enforced against the wife, if he die before it is carried 
 into execution {q). 
 
 But an agreement for sale of a freehold estate could not 
 be carried into execution against a widow entitled to dower. 
 The distinction is founded upon this ground ; that a hus- 
 band has it in his power, during his life, to sell his copyhold 
 estates, and thereby bar his wife's expectancy ; but if a wife's 
 right to dower once attaclies on a freehold estate, no act of 
 the husband's alone can divest it. 
 
 Equity will enforce an agreement by a joint tenant for 
 sale of his share against the survivor, if the articles amount 
 to an equitable severance of the jointure (r) : and a cove- 
 nant to sell, though it does not sever the joint tenancy at 
 law, will in equity {s). 
 
 An agi-eement by afe?7iecoveji for sale of her estate, can- 
 not be enforced either at law or in equity (/), unless the 
 estate be settled to her separate use, so as to enable her to 
 
 ( g) Hinton v, Hinton, 2 Ves. Vcrn. 45, 63. See 2 Ves. 634. 
 631, 638 J Ambl.277; Brown t. (s) See 3 Ves. Juu, 257; 
 
 Eaindle, 8 Ves. Jun. 256, which Frewen t. Relfe, 2 Bro. C. C. 
 
 over-ruled Musgrave v.Dashwood, 220. 
 2 Vern. 45, 63. (0 Emery v. Wase, 5 Ves. Juu. 
 
 (r) Musgrave v. Dashwood, 2 846. 
 
 dispose
 
 THE co>;tjiact. 179 
 
 dispose of it as if she were sole ; nor Avill an agreement by 
 ]ier lnis])and bind her [u). Of the .incapacity of a married 
 woman, or lier luisband, to bind her real estate, unless by a 
 fine or recovery, there is a striking instance in the year 
 books in the reign of Edward the Fourth {x). A woman 
 cestui que use and her husband joined in the sale of her 
 estate ; the wife received the money, and she and her hus- 
 band begged her feoffee to convey the estate to the purchaser* 
 which lie accordingly did. Tlic husband died, and then the 
 wife filed a bill against the feoffee for a breach of trust. 
 The cause was heard in the Exchequer Chamber, before tlie 
 Chancellor and the judges of both benches, who held, that 
 the sale was in fact the sale of the husband ; that the receipt 
 of the money by the wife was immaterial, and the sale was 
 void ; that the trustee was answerable for the breach of trust ; 
 and as the purchaser knew he was buying a manied woman's 
 estate, that the wife might recover the estate from him. 
 
 If, however, an husband agree to convey his wife's estate, 
 he will, according to some cases, be compelled to perform the 
 agreement in specie {y) ; because it has been said, it is to be 
 presumed, that the husband, where he covenants that his wife 
 shall levy a fine, has first gained her consent for that pur- 
 pose (z) ; but this does not seem to be the true ground, for 
 although the wife swear by her answer that she never assented 
 to the agreement, yet the husband will not be let off (c/). 
 The principle upon which the court proceeds, seems to be 
 
 (m) See Daniel v. Adams, Ambl. Stephenson, 7 Ves. J tin. 474 ; see 
 
 495 ; 1 Eq. Ca. Abr. 62, pi. 2, Wlieelrr v. Newton, Free. Cha. 
 
 side note, wliich correct the t//c- , 16; ILuUlon's caso, Totb. 205 j 
 
 turn in Baker v. Child, 2 \'i'rn. and see GrilUn v. Taylor, i&. 106 ; 
 
 61. tbit. 164'^. 
 
 (.r) 7 r. IV. 11 b. (:) Winter V. Dtvrenx, 3 P. 
 
 (;/) Hall V. Hardy, 3 I'. Wms. Wms. I'JO, n. B. 
 
 187 ; Barrington v. Home, 2 Eq. (a) Wihers v. Tinchurd, 7 Ves. 
 
 Ca. Abr. 17, pi. 7; Morris v. Jiin. 157, cited. 
 
 N 2 this,
 
 180 OF THE CONSEQUENX'ES OV 
 
 this, that if a person undertakes that another shall do a cer- 
 tain act, he is hound to procure hiin to perform it ; and, there- 
 fore, where a father covenanted tjiat liis son, who was tlien under 
 age, should convey lands to a purchaser, he v/as decreed 
 to procure the son to convey on his coming of age {b). (I). 
 
 There have heen instances of committins: the husband to 
 the Fleet, until the wife should convey the estate ; but if 
 he should make it appear, that Itc could not prevail on his 
 wife to join, it seems that he must of necessity be discharged, 
 upon placing the vendee in the same situation as if the 
 agreement had never been executed {c). 
 
 In a late case {d) Lord Eldon seemed of opinion, that 
 if this alarming doctrine were perfectly 7'es Integra, he 
 sliould hesitate before he would hold the husband bound 
 to procure the wife to join. His Lordship said, that if 
 a man chooses to contract for the estate of a married wo- 
 man, or an estate subject to dower, he kno^vs the pro- 
 perty is her's altogether, or to a given extent. The 
 purchaser is bound to regard the policy of the law ; and 
 what right has he to complain, if she who, according to 
 law, cannot part with her property but by her own free 
 will, takes advantage of the locus poenitentice : and why 
 is he not to take his chance of damages against the hus- 
 
 (J) Anon. 2 Cha. Ca. 53. Ves. Jun. 846 ; and see Sedgwick 
 
 (c) See note to Hall v Hardy, v. Hargrave, 2 Ves. 57. 
 
 3 P. Wms 187 ; Ortreadv.Round, {d) Emery v. Wase, 8 Ves, Jun. 
 
 4 Yin. Abr. 303, pi. 4 ; 8 Ve5. 505, and see 16 Ves. Jun. 367. 
 Jun. 510 ; and Emery v. Wase, 6 Howell v. George, 1 Madd. 1. 
 
 (I) And it is no plea to an action nt law for breach of the agreement, 
 to say, that the third person had nothing to do with it, or no estate iu 
 it, for the defendant hath undertaken to procure it, and must at his 
 peril.— Staughton v llawley, M. I W» and M. Rot. 662, B. R. judg- 
 ment in H. after. MS. 
 
 band ?
 
 TTin CONTRACT. 181 
 
 liand? And after shcv.iiig tlie absurdity which must arise 
 by adhering to the contrary doctrine, his Lordship added, 
 that tliere Avas difficulty enougli to make him pause, be- 
 fore he should follow the two last authorities ; and he 
 was not sure, whether it was not proper to have the judg- 
 ment of the House of Lords, to determine which of the 
 decisions on this point ought to bind us. 
 
 And it now seems perfectly clear, that this jurisdiction, 
 is to be very sparingly exercised (I), and that equity will 
 eagerly seize on any reasonable ground as a bar to the aid 
 of the court (e). Indeed in a late case {f) in the coiut of 
 Common Pleas, where an action was brought on a covenant 
 by a husband, that he and his wife would levy a fine, and 
 he could not procure her concurrence, the learned Chief 
 Justice said, that the covenant upon which the action was 
 brought, was such as the court of Chancery would not now 
 enforce ; and he added, that nothing could be more absurd 
 than to allow a married woman to be compelled to levy a 
 fine, tlu'ougli the fear of lier husband being sued and thrown 
 into jail, when the general principle of the law is, tliat a 
 married woman shall not be compelled to levy a fine. This 
 observation of Lord Chief Justice ^Mansfield, must have 
 considerable influence on this subject, although, as we 
 have seen, it is not settled, that equity will, in every case, 
 refuse to compel the husband to procure his wife's con- 
 currence. 
 
 An agreement by a lunatic cannot of course be carried 
 into a specific execution ; but the change of the condition 
 
 (e) See Ortread v. Round, 4 Ainbl. 495. 
 Vin. Abr. 203, pi- 4 ; Emery v. (/) Davis v. Jones, 1 New Rep. 
 
 W&se, ubisup,', Daniel v. Adams, 267. 
 
 (I) Upon (his expression Lord Eldon observes, that certainly it h very 
 satisfactory to be informed, that it is, and it is not to be done. 8 Ves. 
 Jun. 516. 
 
 n3 of
 
 182 OF THi: COXSEQUENCES OF 
 
 of a person entering into an agreement by becoming luna- 
 tic, •will not alter the riglit of the parties ; ^vhich will be 
 the same as before, provided tlicy can come at the remedy. 
 As if the legal estate is vested in trustees, a court of equity 
 will decree a specific performance ; and the act of God will 
 not change the right of the parties ; but if the legal estate 
 be vested in the lunatic himself, that must prevent the 
 remedy in equity, and leave it at law (g). (I) ; unless the 
 pm'chaser is satisfied with the enjoyment of the estate whicli 
 a decree will give him, and chooses to encounter the incon- 
 venience of leaving the legal estate outstanding in the lu- 
 natic, in which case a specific performance will be decreed 
 in his favour (/^). 
 
 If trustees, under a power of sale, make a legal con- 
 tract for sale of the estate, the contract binds the estate ; 
 and thougli, by the deaths of parties, the power should be 
 extinguished, yet the contract must be executed by those 
 who have got an interest by the extinguishment of the 
 power (i). 
 
 II. Secondly, We are to consider the rules by which 
 equity is guided in granting a specific performance, with 
 reference to the agreement itself. 
 
 We shall, in the subsequent chapters of this treatise, 
 have occasion to consider rather at large in what cases equity 
 will or will not enforce a specific performance of an agree- 
 
 (5-) Owen V DavieS;, 1 Ves. 82. (j) Mortlock v. Euller, lOVfs. 
 
 (A) Hallv. Warren, 9 Ves. Jun. Jun. 292; and see Shannon v. 
 605; Bradstreet, 1 Scho. and Lef. 52. 
 
 (I) It is much to be regretted, that the late act of 43 Geo. III. c. 75, 
 Sid not provide for this case, by enabling the commiftee to convey, under 
 (lie direction of the court, on payment of the purchase.money. 
 
 ment
 
 THE CONTRACT. 183 
 
 meiit for sale of an estate ; and it will in this place, there- 
 fore, be sufficient to state the general rules by which equity 
 is guided in compelling the specific performance of agree- 
 ments. 
 
 The original foundation of these decrees was simply 
 this, that damages at law would not give the party the 
 compensation to which he was entitled ; that is, would not 
 put him in a situation as beneficial to him as if the agree- 
 ment were specifically performed. On this ground the 
 court, in a variety of cases, has refused to interfere, 
 where from the nature of the case the damages must ne- 
 cessarily be commensurate to the injury sustained {k), as, 
 for instance, in agi-eements for the purchase of stock, it 
 being the same thing to the party, w^here or from whom 
 the stock is purchased, provided he receives the money that 
 will purchase it. These cases shew what were the grounds 
 on which courts of equity first interfered, but they have 
 constantly held that the party who comes into equity for a 
 specific performance, must come with perfect propriety of 
 conduct, otherwise they will leave him to his remedy at 
 law (/). 
 
 The decreeing a specific performance is a matter of dis- 
 cretion, but it is not an arbitrary, capricious discretion ; it 
 must be regulated upon grounds that will make it judi- 
 cial (m). And undoubtedly every agreement, of whicli there 
 should be a specific execution, onglit to be in writing, cer- 
 tain, and fair in all its parts, and for adequate consider- 
 ation {n). 
 
 (/f) Errington v. Annesley, 2 (7/1) Pc-r Lord Eldon, see 7 V''es. 
 
 Bro.C.Ca 341. Flint v.Brahdon, Jan. .35 ; and see 3 Atk. 188 ; 4 
 
 8 Ves. Jun. 363 ; Mitf. PI. 109. Burr. 2539. 
 
 (/) Harnett v. Yielding, 2 Scho, {11) Per Lord Hardwloke, sec I 
 
 and Lef. 553 [misprinted in the Ves. 279 ; and see 3 Atk. 386. 
 
 book] per Lord Redesdale ; and Kllard v. Lord F^landaff, 1 Ball 
 
 see Cadman V, Horner, 18 Ves. and Bcatty, 2iJ. 
 Jun. 10. 
 
 N dfc Equity
 
 ^ 
 
 •^'-^184? "OF THE CONsmUE]NCES OF - / /, ^ 
 
 Equity will not decree a specific peiforimancc of an 
 agreement made in a state of intoxication, although the 
 party was not drawn in to drink by tlie plaintiff; nor will 
 it decree the agreement to be delivered p ; but will leave 
 
 ^ the parties to their remedy at law (o). 
 
 ^ A court of ecpiity frequently decrees a specific per- 
 formance where the action at law has been lost by the 
 default of the very party seeking the specific pcrfomiancc, 
 if it be not^vithstauding conscientious that the agreement 
 should be performed, as in cases where the terms of the 
 agreement have not been strictly performed on the part of 
 the person seeking specific performance ; and to sustain an 
 action at law, performance must be averred according to the 
 verv terms of the contract. Nothing but specific execution 
 of the contract, so far as it can be executed, will do justice 
 in .such -a case (^). 
 
 Althougb damages may be recovered at law, yet equity 
 is not, therefore, obliged to decree a specific performance ; 
 but the court will judge on the whole circumstances of the 
 case, whether it be such an agreement as ought to be carried 
 into effect ; for a jury, upon inquiry, may find very small 
 damages, and then it would be very hard to carry such an 
 ao'reement into execution in equity, when it would be 
 greatly to the prejudice of the party against whom it should 
 be decreed to be executed {q). 
 
 In a case where a man was entitled to a small estate 
 under his father's will, given on condition that if he should 
 sell it in 25 years, half the purchase-money should go to 
 
 (o) Cragg V. Holme, 18 Ves. Napper, ib. 684. 
 
 Jun. 14 cited; see Say v. Barwick, {q) Per Lord Haidwicke, MS; 
 
 1 Ves. and Bea. 195. see Pope v, Harris, Lofft, 79Ij 
 
 (p) Davis V. Hone, 2 Scho. and cited. 
 
 Lef. 347. 741. See Lennon v. 
 
 his
 
 THE CONTEACT. 1^5 
 
 his brother ; he agreed, in writing, to sell it, and after- 
 wards refused to carry the sale into execution, pretendin**- 
 to have been intoxicated at the time. A bill was brouo-ht 
 against him to compel a specific performance ; and Lord 
 Hardwicke held, that Avithout the other circumstance, 
 the hardsliip alone of losing half the purchase-money, if 
 carried into execution, was sufficient to determine the 
 discretion of the court not to interfere, but leave them to 
 law (r). 
 
 Nor will equity interpose, if the party v,lio is called 
 upon to do tlic act is not lawfully competent to do it ; for 
 that amongst other inconveniences would expose^ him to a 
 new action for damages (,v). 
 
 Eut although a covenant ought not' to'be performed liter- 
 ally, yet equity will execute it according to a conscientious 
 modification of it, to do justice as far as circumstances will 
 permit {t). 
 
 Suppressio veri, as well as .siiggestio falsi, is a ground 
 to rescind an agreement, or at least not to carry it into 
 execution {n), and even an industrious concealment, durino- 
 a treaty, of the necessary repair of a wall to protect the 
 estate from a river, which was a considerable outgoing, has 
 been deemed a sufficient ground to v;ithhold the aid of 
 equity {jc) from a vendor. So where there is a mistake 
 between the parties as to what was sold, the court ^vill not 
 
 (r) Fain v. Crown, 2 Vcs. 307, {t) Davis v. Hone, 2 Scho. aad 
 
 cited. Costigan v. Hastier, 2 Scho Lef, 348. 
 
 and Lef. 160 j see 2 Ball and (w) See Buxton v. Cooper, 3 
 
 Beat. 283 ; Howell v. George, i Atk. 383 ; S.C. MS. ; Howard v. ^^ r<i-»^.^i^ 
 
 Madd. 1. Hopkins, 2 Atk. 371 ; Young v." f^^'^"^'^ 
 
 (v)Harnettv, Yielding, 2 Scho. Clerk, Prec.Cha. 138 ; 1 Trea.Eq. ''V/r. 
 
 and Lef. 554; Ellardv.Lord Llau- ch.ii.s. 8 ; 1 Ball and Bca(ty,2ll. 
 
 dafr, 1 Ball and BeaUy, 241. See (x) Shirley v Stratton, 1 Bro. 
 
 post p. 189. C.C. 410: 
 
 interfere
 
 186 OF THE CONSEQUENCES OF 
 
 interfere in fa\our of either party (?/). P^ven mere surprise 
 on third persons at a sale by auction, has been deemed 
 suilificnt to prevent the court from assisting a purchaser, 
 as where the known agent of the seller l)id for the estate 
 on- behalf of the purchaser, and other persons present think- 
 ing he was bidding as a puffer on the part of the vendor, 
 were deterred from bidding (z). So, in a recent case, 
 where the purchaser, previously to the sale by auction, 
 told the vendor that he would have nothing to do with the 
 estate, but afterwai-ds went to the sale, where lie was co?i- 
 sidered hy f/ie company as a puffer (I), and bid SOOOZ* 
 for the estate, which was knocked down to him at that sum 
 from the misapprehension of the person appointed to bid 
 for the vendor, who ought to have bid 9000/. and the mis- 
 take was instantly explained, a specific performance w\as 
 refused {a). 
 
 If an agent, employed to sell an estate, sells it in a man- 
 ner not authorised by the authority given to him, a specific 
 performance will not be decreed against the principal, al- 
 though the estate be sold for a greater price than he required 
 for it (J)). At least it is clearly settled, that if an agent is 
 empowered to sell an estate by public auction, a sale by 
 
 (3/) See 1 Ves. Jun. 211 ; 6Ves, 72 ; Magrane v.ArchboId, 1 Dowe, 
 
 J un. 339 ; 13 Ves. Jun. 427 ; Hig- 107. 
 
 ginson V. Clowes, 15 Ves. Jun. («) Mason v. Armitage, 13 Ves. 
 
 5 16 ; Clowes V. Higginson, 1 Ves. Jun, 25. See Hill v. Buckley, 17 
 
 and Bea, 52 ± ; Harnett v. Yield- Ves. Jun. 394. 
 
 ing, 2 Scho. and Lef. 554. (/>) Daniel v. Adams, Ambl. 
 
 (;) Twining T. Morris, 2 Bro. 495; et vide a dictum hy Lord 
 
 CO. 326 i see 6 Ves. Jun, 338 ; Eldon in Coles v. Trecothitk, 1 
 
 10 Ves. Jun. 305, 313, 398 ; and Smitli's Rep. 247, 
 see Willanv. Willan, 16 Ves, Jun. 
 
 (I) This is stated in the judgment, but qu, whether it appeared in 
 evidence. 
 
 private
 
 THE CONTRACT. 187 
 
 })iivatc contract is not -within his authority. For although 
 tlic owner may liave fixed the price, yet the estate might 
 liave sold for more at a public auction. But if an agent is 
 directed to sell an estate by private contract, and he dis- 
 close of it by public auction for a larger sum than the prin- 
 cipal required, it still seems open to contend that the pur, 
 chaser may enforce a specific performance of the contract, 
 unless some particular reason should occur to induce the 
 court to refuse its aid. 
 
 In JMortlock v. Buller (r), Lord Eldon said, he should 
 hesitate long, before he should state as a clear proposition, 
 that wliere the title to a specific performance is founded 
 in a gross breach of trust by an agent to his principal, a 
 court of equity would assist the plaintiflF in the purpose 
 of availing himself of tliat breach of trust : and whether 
 the principle would not authorise the court to leave him to 
 law, and not to let him come for a remedy beyond that. 
 There were, his Lordship added, dicta enough well to au- 
 thorise that. 
 
 And where trustees for sale of an estate enter into a con- 
 tract which would be deemed a breach of trust, equity will 
 not only refuse to interfere in favour of the purchaser, but 
 Avill even at the suit of the cestuis que trust, restrain the 
 trustees from executing the contract, and the purchaser will 
 be left to his remedy at law (cZ). 
 
 If a person entitled in default of execution of a power of 
 sale, contract to sell the estate, not as owner but merely as 
 the agent of the trustees, and the contract could not, under 
 the circumstances, have been carried into execution against 
 the trustees, it will not be enforced against the agent, al- 
 
 ((•) 10 Ves. Jun. 292 ; and see Jitn. 292. Sec Hill v. Buckley, 17 
 
 (lie close of the judgment. Ves. Jun, 39 i^ /Jt.,cM^,c~*^ *- ^U. 
 
 {,1} Mortlock V. Buller, 10 Ves. /,-'--- . ^ ^x/^.^^^ 
 
 though
 
 188 Ui' TJIE CONSEQL'KXCES OF 
 
 thoudi lie liimbclf bccoinc entitled to the estate before the 
 decree (e), (I). 
 
 AVlicre a person t;ikcs upon himself to contract for tlic 
 sale of an estate, and is not a})solute owner of it, nor has 
 it in his poAver by the ordinary course of law or equity to 
 make himself so ; though the owner offer to make the seller 
 a title, yet equity will not force the buyer to take it, for 
 every seller ought to be a hotia fide contractor ( /") : and it 
 would load to infinite mischief if one man Averc permitted 
 to speculate upon the sale of another'.^ estate. Besides, the 
 remedy is not mutual, which perhaps is of itself a sufficient 
 objection in a case of this nature. In Armiger v. Clarke 
 {,g), a tenant for life contracted to sell the inheritance ; after 
 liis death, his son, who was entitled to the estate in remain- 
 der, and was not bound by his father's covenant, brought a 
 bill for a specific performance against the piuchaser, and it 
 was dismissed chiefly upon this principle, that the remed. 
 was not mutual. -^* iJ«-n^~ ^^r^-^ y^ • ^ 
 
 And on the other hand, where a hona fide vendor has 
 not a title to the estate, the court will not, in favour of the 
 purchaser, decree an impossibility, but will leave the pur- 
 chaser 
 
 (c) Mortlock V. BuUer, lO Ves. knowing himself not to have any 
 
 Jun. 292. title, has been allowed to enforce 
 
 (/ ) Tendring v. London, 2 Eq. the contract by procuring a title 
 
 Ca. Abr. 680. pi. 9. See 10 Ves. before the report. 
 
 Jun. 315; and query, whether (^) Bunb. Ill ; see ^os/, ch. 6. 
 
 there is any case, in which a man, Hamilton v. Grant, 3 Dow, 33. 
 
 (I) From the papers in this cause, it seems that Mr. BuUer treated 
 with Mr. Mortlock as the owner of the estate, and this appeared from 
 the receipt for the purchase.money, where the estate was called, " the 
 property of John Duller, Esq.'' and Mr Mortlock had not any knowledge 
 whatever that the estate was in settlement. See Lawrensoa v. Butler, 1 
 Scho. and Lef. 13. 
 
 Since this note was written, an action brought by Mr. Mortlock 
 
 against
 
 THE CONTEACT. 189 
 
 cliaser to his remedy at law upon the articles (/i) ; aiul, 
 although he must necessarily obtain a verdict, it" lie liave 
 recourse to law, yet he would obtain nominal damages only 
 (/), for a purchaser is not entitled to any compensation for 
 the fancied goodness of his bargain, which he may suppose i 
 he has lost. 
 
 But where the purchaser is willing to take tlie title, 
 such as it is, it is apprehended that he may do so. In a 
 late case [k), Lord Redcsdale said, that the plaintiff in 
 equity must shew that in seeking the performance ]ie does 
 not call upon the other party to do an act which he is not 
 lawfully competent to do ; for, if he docs, a consequence 
 is produced that quite passes by the object of the court in 
 exercising the jurisdiction, which is to do more complete 
 justice. If a party is compelled to do an act which he is 
 not lawfully authorised to do, he is exposed to a new 
 action for damages at the suit of the person injured by 
 such act, and therefore if a bill is filed for a specific perform- 
 ance of an agreement made by a man who appears to liave 
 a bad title, he is not compellable to execute it, unless the 
 party seeking performance is willing to accept such a title 
 as he can give, and that only in case where an injury woidd 
 be sustained by the party plaintiff, in case he were not to 
 get such an execution of the agreement as the defendant 
 can give. His Lordship took the reason to be this, among 
 (others, not only that it is laying the foundation of an action 
 
 {h) Crop T.Norton, 2 Atk. 74 ; IMaclist. 1078 ; and see 3 Bos. and 
 
 9 Mod. 233 ; Cornwall v. Wil- Pull. 167 ; see Brig's case. Palm. 
 
 Hams, Colles, P. C, 390; Bennot 364. Vide posl. 
 
 College V. Carey, 3 Bro. C.C. 390. {k) Harnett v.Yeilding, 2 Scho. 
 
 (j) Fleaureau v, Thoinhill, 2 and Lcf. 549 see post. 
 
 against Mr. Buller, for breach of contract, came on for (rial, when it was 
 compromised on terms very advantageous lo the phiintill'; see 2 Ball and 
 Beatty CO ; and see 2 Dow. 518. 
 
 at
 
 190 OF THE CONSEQUENCES OF 
 
 at law, in v.liicli damages may be recovered against the par- 
 ty, Imt also that it is by possibility injuring a third person, 
 by creating a title with which he may liave to contend. 
 
 It is, however, the received opinion, that the purchaser 
 may elect to take the title, such as it is, although no injury 
 would be sustained by him in case the agreement were not 
 executed, nor does the rule seem to lead to the difficulty 
 which has been apprehended ; for in such a case the cove- 
 nants must of course be so framed as not to leave the seller 
 exposed to an action on account of the flaw in the title .; but 
 where the conveyance would be merely void, and might em- 
 barrass persons claiming under the same title as the seller, 
 equity seems to refuse its aid on substantial grounds (/). 
 
 But where a tenant for life with a power of sale, first 
 settling other estates of equal or better value, sold the es- 
 tate under an apprehension, that he liad\power to convey 
 the fee, the court refused to compel him to settle another 
 estate, in order to enable him to complete his contract (m). 
 
 To enable the court to decree a specific performance 
 against a vendor, it is not, however, necessary that he 
 should have the legal estate ; for if he haf an equitable 
 title, a performance in specie will be decreed (n), and he 
 must obtain the concurrence of the persons seised of the 
 legal estate. 
 
 Although, as we have seen, a vendor cannot demand the 
 aid of equity, unless he is a bona fide contractor, yet the 
 circumstance that the purchaser is a nominal contractor, 
 and purchases in trust for another person, is immaterial; 
 for it happens, in a vast proportion of cases, that the con^ 
 tract is entered into in the name of a trustee (o), and the 
 
 (/) See Ellard v. Lord Llaridaff, («) Crop t. Norton. 2 Atk. 74 ; 
 
 1 Ball and Beatty, 244 ; see see Costigan v. Hastier, 2 Scho. 
 
 O'Roinke V. Percival, 2 Ball and and Lef. 160. 
 
 Beatty, 56. (o) Hall v.Warren, 9 Ves. Jun. 
 
 (m) Howell v. George, 1 605. 
 Madd. 1. 
 
 mere 
 
 \
 
 THE CONTRACT. 
 
 191 
 
 mere fact of a quarrel having taken place between the 
 vendor and the real purchaser, totally unconnected with 
 tlie subject of the contract {j)), or even a bare refusal by 
 the vendor to deal with the real contractor (q), is not a suf- 
 ficient ground to refuse a performance in specie of the agree- 
 ment. 
 
 But if a person apply to purchase an estate, and the 
 vendor expressly refuse to treat with him, unless the 
 money is paid down, which he is« unable to do, but pro- 
 cures some other person to purchase the estate on his 
 account, it seems clear, that at least the time appointed 
 for payment of the money, will be deemed of the very 
 essence of the contract (/'). So if a person apply to pur- 
 chase an estate on behalf of A, for whom tlie vendor has 
 a great value or affection, and the vendor is induced to 
 take less for the estate than he otherwise would have 
 done; or even perhaps, without this circumstance, the 
 agreement cannot be enforced against the vendor, if it be 
 made on belialf of any other person than A ; but if A. 
 will patronize the sale, execution of the agreement muj^t 
 be compcllcd^although he may sell the estate the next day 
 to the fraudulent purchaser (s). 
 
 The case of Scott v. LangstafFe {t), was decided on 
 the same principle. A purchaser of a house adjoining 
 to a house occupied by the vendor, agreed with the vcn- 
 
 (;,)S.C. 
 
 ( q) Lord rrnliam v. Cliild, 1 
 Dro.C. C. 92. 
 
 (r) Popham v. Eyrp, Lofl't, 786; 
 Mr. Brown's note of tliis case 
 evinces the danger of relying on 
 short notes of cases ; see I Bro. 
 C. C. 95, n. ; see O'llerlihy r. 
 Hedges, 1 Schoales and Lefroy's 
 Rep. 123 ; but note, that case was 
 between landlord and tenant f' and 
 
 see Featherstonhaugh v. Fenwick, 
 17 Ves. Jun. 298. 
 
 (s) Philips V. Duke of Biicklng- 
 ham, 1 Vern. 227. In Mr. Ra'ith- 
 by's rdir. it is said that a specific 
 performance was decreed. The 
 principle however is now well es- 
 tablished. 
 
 (0 Loirt, 797, 798, cited j and 
 sec Bonnctt t. Sadler, 14 Ves. Jun. 
 527. ■ 
 
 dor
 
 192 OF THE CONSEQUENCES OF 
 
 dor, tliougli it was not made part of the written con tracts 
 that he would not lease the house to any person not 
 agreeable to him. T^angstaffc applied for a lease and 
 stated that he kneAV the vendor intimately, and that there 
 would be no objection to grant him a lease. The vendor, 
 however, disapproved of Langstaff'e, and, so far from 
 knowing- him intimately, had only seen him at a tavern. 
 lA)rd Camden said, this was the case of Philips v. the 
 Duke of Buckingham. Nobody, who had read that case, 
 could easily forget it. And his Lordship set aside the 
 agreement which Langstaffe had obtained, with costs. 
 
 A similar case is mentioned in Hawkins's life of John- 
 son, which was also decided on the authority of Philips's 
 case. Peele the bookseller had a house near Garrick's at 
 Hampton. Peele had often ^iiid, that as he knew it would 
 be an accommodation to Garrick, he had given directions 
 that at his decease he should have the refusal of it. On 
 Peele's death, a man in the neighbourhood applied to his 
 executors, pretending that he had a commission from a 
 friend or relation of Peele's, who lived in the country, to 
 buy the house at any price, and he accordingly obtained a 
 conveyance of it to a person nominated by him under a 
 secret trust for himself. Garrick liled a bill against him, 
 and the purchase was decreed fraudulent, and set aside 
 
 with costs. 
 
 V^ In some cases (u) it has been holden, that where no action 
 at law will he to recover damages, equity will not execute 
 the agreement in specie ; for equity will never make that a 
 good agreement, which is not so by law : but, in other cases 
 (tt'), the contrary has been holden, and relief been given ac- 
 cordingly. 
 
 (u) The Marquis of Normanby 23, noiis ; and Fonbl. n (c) to 1 
 
 T. Duke of Devonshire, 2 Freein. Trea. Eq. 138, and n. (h) to [>. 
 
 216 ; Dr. Betesworth v. Dean and 204, ibid. 
 
 chapter of St. Paul's, Sel. Cha, Ca. (w) Winged v. Lefebury, 2 Eq. 
 
 66; and see 2 Eq. Ca Abr. 15, Ca. Abr. 32, pi. 43 ; Acton v. 
 
 '-^«^ 
 
 it^tiir. ^ ^^^tr^>^ ^t^^e^ -'/^ /CrV^ X^<^ -u^,^^ <C^^ _
 
 Tlin CONTRACT. 193 
 
 Perhaps tlie following distinctions are authorised by the 
 eases, and will reconcile them. 
 
 First, That although the agreement he void at law, yet 
 a specific performance will he decreed, if there is a clear 
 ground for the interference of equity, according to the ge- 
 neral rules of the court ; and, however unqualifiedly the con- 
 trary rule may liave been laid down, there is not (that I am 
 aware of) any case clearly entitled to the aid of the court, to 
 which this rule has been successfully opposed as a bar to the 
 relief, 
 
 Thus a bond from a woman to her intended Iiusband has 
 been enforced in equity, although void at law by the inter- 
 marriage ; and an agreement for sale of an estate has been 
 decreed against an heir at law, although his ancestor died 
 before the time appointed to convey the estate, and there- 
 fore no action would lie against him. In the first of these 
 cases, the impropriety of the security was deemed immate- 
 terial ; for it was sufficient that tlie bond was a written evi- 
 dence of the agreement of the parties, and the agreement 
 being upon a valuable consideration, ought to be executed 
 in equity. The decision in the other case depended upon 
 the doctrine, that the articles were a lien upon the land ; 
 the contract being a purchase in equity. But, 
 
 Secondly, Equity cannot contradict or overturn the 
 grounds or principles of law {x) ; and therefore, in many 
 cases, it must be considered whether damages could be 
 recovered at law, and the court will be guided by tlie 
 result iy). 
 
 Tluis agreements for sale of an estate have (as wc have 
 
 Fierce, 2Vern. 480^ Canntl v. 213. 
 
 Buckle, 2 1\ VVms. 2 13 ; Norton (.r) See 2 P. Wms. 753 ; F.arl of 
 
 V. Mascall, 2 Veni. 24 j and Hall Bath t. Shorwin, 10 Mod. 1, 
 
 V. Hardy, 3 P- Wms. 187. See (^) See HoUis v. Edwards, 1 
 
 Eabt Iiulia Company v. Donald, 9 Veru, 159. 
 
 \'es. Juii. -7 J ; 1 Smith's Hep. 
 
 o already
 
 lOi- OF THE COXSEQUENCKS OF 
 
 already f^ccu) been decreed on mere letters wliicli have passed 
 between the parties, but not unless all the terms of the agree- 
 ment Averc tliercin specified ; and even lliis was going a great 
 wav. In tlic first case, iheretbre, in which even a trilling 
 omission appeared in tlic letters, it was natural to pause be- 
 fore the performance of the agreement was decreed, and to 
 ascertain whether damages could be recovered at law : for 
 tlic statute of frauds and perjuries must receive the same 
 construction in a court of equity as in a court of law, unless 
 in the case of fraud, &:c. when equity interposes and relieves 
 against tlic abuse, or allays the rigour of the law^ 
 
 The case of the Marquis of Normanby v. the Duke of 
 Devonshire, was, I believe, the first in which this point 
 occurred ; and according to a manuscript note, it appears 
 that Lord Somers called in the two chief justices on the 
 point, whether the party, on the letters which had passed 
 could have recovered damages at law ? They were of 
 opinion that he could not, and Lord Somers accordingly 
 dismissed the bill. 
 
 So there are very few cases in ^vhich a court of equity can 
 decree a performance of an agreement upon which there can 
 be no action at law, according to the ttords of the articles^ 
 and the events that have happened {z). 
 
 A proviso, in a contract for sale, that if either party break 
 the agreement, he shall pay a sum of money to the other, 
 will only be considered in the nature of a penalty {a) ; and 
 consequently a specific performance will be decreed, just as 
 if no such proviso had been inserted. The defendant will 
 
 ■ {%) Whitmel v. Farrel, 1 Ves. 371 ; see 2 Scho. and Lef. 684 ; 
 256. and ftlagrave v. Archbold, 1 
 
 (a) Howard v. Hopkins, 2 Atk. Dowe, 107, 
 
 not
 
 THE CONTRACT. 195 
 
 not be allowed to forfeit the penalty, and get rid of the 
 agreement (b). 
 
 Where an action is brought for the recovery of tlie pe- 
 nalty, to entitle the party bringing it to recover, he ought 
 punctually, exactly, and literally, to have completed his 
 part (c). And, it has been said, that if, for breach of an 
 agreement, to which a penalty was annexed, either party re- 
 cover damages at law beyond the penalty, equity will relieve 
 against the verdict, on papnent of the penalty only id) ; but 
 this does not appear to be well founded, for, if the party 
 liavc two remedies at law, one for breach of contract upon 
 the covenant, or agreement, toties qtiotics ; the other for 
 the penalty at once (6'), there appears to be no pretence for 
 equity to relieve ; although where large damages have been 
 recovered at law, under a covenant which it was unconscien- 
 tious strictly to enforce, the party may be relieved in equity, 
 upon offering to perform the covenant according to consci- 
 ence : but even this seems, in some measure, to be usurping 
 tlic province of a jury, and the equity is administered with 
 great caution. 
 
 SECTION III. 
 
 Of the Remedies for a Breach of Contract 
 
 If either the vendor or vendee refuse to perfonn "^he con- 
 tract, the other may bring an action for breach of contract, or 
 
 (i) Ilopson V. Tntvor, 1 Str. T32 ; but the reporter adds a query, 
 
 533, 2 P. Wins. 191 ; Parks v. for this scorns an extraordinary 
 
 Wilson, 10 Mod. 515. opinion. 
 
 (r) Duke of St. Albans v. Shore, (c) See Harrison v. Wright, 13 
 
 1 II.Blackst.270. East, 343 
 
 (r/) Shenton v. Jordan, Buiib. 
 
 O 2 file
 
 396 OI THE CONSEQUENCES OF 
 
 file a bill for a specific performance {f) ; altliough it appears 
 to have been formerly thought that as a vendor only wants 
 tlic purchase-money, his remedy was at law ig). 
 
 If a bill be filed for a specific perfonnance, the court will 
 injoin either party not to do any act to the injury of the 
 other. Therefore, if the purchaser is in possession, and has 
 not paid the money, the court will grant an injunction against 
 Ids cutting timber {Ji) ; so, on the other hand, the vendor 
 will be restrained from conveying away the legal estate in 
 the property ; because such a measure might put the pur- 
 chaser to the expense of making another party to the 
 suit {i) ; and, a fortiori, he will be restrained from selling 
 the estate to a third person {k). So injunctions may be 
 granted against the agents of the parties. But an injunction 
 will not be granted against a person who is not a party to 
 the suit ; and, in a late case, in which, upon a bill filed by a 
 seller for a specific performance, and an injunction again&t 
 the purchaser's proceeding at law to recover the deposit from 
 the seller's attorney, to whom it was paid, the present Vice 
 Chancellor refused the motion, with costs, because the attoy 
 ney was not a party to the suit (Z). 
 
 In all cases where a bill in equity is filed for a specific 
 performance, either party may in general, if he please, ha^e 
 a reference as to the title. The vendor is entitled to this 
 privilege in order to enable him to make out a title before a 
 lyiaster. The purchaser is allowed this right, in order that 
 lie may have the title assvu*ed in a manner he otherwise coidd 
 not. As to a purchaser, tlie court never acts upon the fact. 
 
 (/) Lewis V. Lord Lechmere. ID {i) Echliflf r.Baldwin, 16 Ves. 
 
 Mud. 503. '^ Jun 267. 
 
 (g) See Armiger y. Clarke, (t) Curtis v. Marquis of Buck- 
 
 Buab. 111. ingham,3 Ves. andBea 168. 
 
 (/^) Crockford V.Alexander, (/) Brown v. Frost, E.T. 1818; 
 
 15 Vcs.JuD. 138. MS. 
 
 that
 
 that a sat isfactoiy abstract was delivered ; unless tWjmty ,^^-7^:-^!?^ 
 has dearly bound himself to accept the title upon the ah- ♦ • \.- 
 stract ; but though the abstract is in the hands of the party yL.-^ Z^^ Bi 
 who says he cannot object to it, yet he may insist upon a 
 reference ; because^ by the production of papers, which can 
 be enforced, and by the examinations and enqidries whieli 
 can be made, by virtue of the decree, the title may be ex- 
 amined in -a, manner it never could upon a mere abstract (w). 
 Kither party may however wave this right. /Q 
 
 If, after tlie confirmation of a report in favour of sl title, 
 a new fact appear, by which the title is affected, the title 
 will be referred back to the master («). In a case where the 
 seller of a leasehold estate produced the leasehold title, whicli 
 the master thouglit sufficient, and reported accordingly ; and 
 the court held, that the lessors title ought to liave been 
 proflueed, and sent it back to the master to review his re- 
 port ; tlic seller had liberty given to him to produce the free- 
 hold title. And it was considered that the purchaser was 
 at liberty to enter into objections to the leasehold title, whicli 
 were not taken upon the former discussions before the mas- 
 ter (o). And, upon the objections being afterwards taken, 
 the bill was dismissed (;;). ^^^ 4^/J,,^^ji ^ y. ^ /^ 
 
 A purchaser may file a bill for a specific peiformancef al- 
 though it appears by the abstract, that tlie vendor has no 
 title, and yet unless he chooses to take the title, the court 
 cannot force it upon liim, on the ground of his having filed 
 the bill witli a knowledge of tlie objection (^). 
 
 Where objections arc made by a purchaser, evidently with 
 a view to gain time, the court itself will e \tcr into the con- 
 
 (/«) See Lord Eldon's jutlgment -12 }. 
 
 in Jenkins v. Hiles, 6 Ves. Jun. (js) S. C. V. C. "d April, 1818. 
 
 653. MS. ^ /ko,^^^^, /^y 
 
 («) Jeudwine V. Aicock, 1 Mad. '<j^ Stapylton v. l^cotf, 16 Ws. 
 
 597. Jun. 2712. 
 
 (o) Fildes ▼. Hookor, ii Mer. 
 
 o 3 sideration 
 
 c^
 
 198 OF THE CON'SEQUENOES OF 
 
 sidciation of the objection?, without refcmng the title to a 
 master. So where a bill is filed by a purdiaser, the vendor, 
 the defendant, has been allowed, after answer, and before the 
 liearii]<^ of tlie cause, to move, that an enquiry may be di- 
 rected as to the title, and at v/hat time the abstract was de- 
 livered, and wliether it was sufficient. This was allowed, 
 in order to enable the court to dispose of the cause with dis- 
 patch (s). Again, where a vendor files a bill for a specific 
 performance, and the purchaser submitted to perform the 
 contract if a good title could be made, asserting that upon 
 the abstract a good title could not be made, it was, upon the 
 motion of the plaintiff, referred to the master, to enquire 
 v/hethcr a good title could be made, and whether it appeared 
 upon the abstract, that a good title could be made (/). Lord 
 Eldon has observed, that some degree of irritation was ex- 
 cited in the court, by persons called land-jobbers, contracting 
 for estates without any intention of paying for them, and 
 setting up defects of title, merely with the view of gaining 
 time to dispose of them : and, on that ground, Lord Rosslyn 
 V7as prevailed upon to direct a reference of the title imme- 
 diately, on motion ; and there is not much mischief in that 
 upon a simple case of specific perfbrmance, where there is 
 nothing more; but the relief may be so modified and qua- 
 lified, with reference to the nature and object of the contract, 
 that unless it is purely that point, great difficulty may 
 arise {u). 
 
 In a later case, I^ord Eldon directed a reference of the 
 title upon the bill of a vendor before iJie cuiswer was put 
 in. The bill was a mere averment of the contract, putting 
 no special fact in issue, and the court considered the plaintiff 
 as undertaking to do all such acts, for the purpose of exe- 
 
 (s) Moss V.Mathews, 3 Ves. Jun.39. 
 Jun. 279. («) 17 Ves. Juii. 278. 
 
 (0 Wrl-ht ?. Bond, 11 Ves. 
 
 cuting
 
 THE CONTRACT. 199 
 
 cutiiig what the court thinks right, as if the answer was in, 
 and the cause brought to a licaring. "With that under- 
 taking, if they cannot state any objection to the perform, 
 ance, and the reference is merely to look into the title, his 
 Lordship did not apprehend the answer to be necessary be- 
 fore that reference (.r). v^ V^^^^S^ , ^^ y^^^^ .^^-v ^ ^.^t^^ 
 But in every case where the answer, upon reasons, solid or ^'%^^^**^ * 
 frivolous, insists, that the agreement ought not to be exe- :y /fc«-^. 
 cuted, the court must first dispose of the question raised (//). 
 Therefore, where the question simply was, whether the ven- 
 dor of a leasehold estate was bound to produce the lessor's 
 title, a motion by the purchaser for a reference to the master 
 upon the title was refused (,~). So where the defendant the 
 purchaser, alleges laches on the part of the plaintiff, as a 
 ground for his not being compelled to perform the agree- 
 ment, the court will decide the question raised, before the 
 title is referred to the master (c/). 
 
 And it is not now the general practice, to make an enquiry J^ y^AL /s '^ 
 ah ante at what time the plaintiff could make a title {l))/y " ^^^^ 
 Tf, upon the usual reference to the blaster, to inquire whe- /g»^^^ /.^ 
 ther the seller can make a good title, he report in the affir- 
 mative, it rnay with a view to costs, be referred back to the ^^-^^^^^^^ 
 IMaster, to inquire whether a good title could have been 
 made at the filing of the bill; and if not, when it was that 
 a good title could be made (r), and this reference may be 
 niade as well after a decree, as after an intcrlocutorv order. '<^ A-^-t^- ^ 
 
 A • ^^ /^ 
 
 (x) Balmanno v. Lumley, 1 Vcs. Jun. 278. ^ ^ 
 
 Vt's. and Beam. 221. (a See BIyth v. Elmherst, xihi 
 
 («) Blyth V, Elmherst, 1 Vcs. 47/p. Skelton's casp, 1 Ves.and Bea^ 
 
 nnd Ream. 1 ; sie Paton v. Roj^er?, 5l7; Wallini^er v. Hilliert, iMer. 
 
 iUid. 351 ; Biscoe v. Bret, 2 Vcs, 101; Lowe v. Manners, 1 .Mer. 19. 
 
 and Bea. 377 J Fullagar V. Clark, (/;) Cibson v. Clarke, 2 \\s. 
 
 18 Ves. Jun. 481; Morgan v. and Bea. 103; see Jemiiiigs v. Hop- 
 Shaw, 2 Mer. 138.<?^^^1^f2?:;L,t""> 1 ^^^^'^'d' 2H- 
 
 (k) Gompertz v. , 12 (t) Daly T.Osborne, 1 Mer. 
 
 Vcs. Jun. 17j see Eklridge V. Por- 382; Birch v, Haynes, 2 Mer. 
 
 ter, 14 Ves. Juu. 139 \ and see 17 -IM. 
 
 o 1 Where
 
 ^200 or THE CONSEQUENCES OE 
 
 Where the piitrshaser has been a long time in possession 
 of tlie estate, and of tlie abstract, ^vit1lout objecting to the 
 title, a specific performance will be decreed at once without a 
 reference as to tlie title (r/). 
 
 A new practice has sprung up, by ^vhich certainly some 
 suits have been quickly disposed of, but which has been a 
 great surprise upon many parties, I allude to the practice 
 of ordering a purchaser in iiossession of the estate upon 
 motion to pay the purchase-money into court. This, under 
 special circumstances, has even been done before answer {c) ; 
 but the purchaser has, in some cases, had the option to pay 
 the money, or give up possession ( /') ; in others, an occupation 
 rent has been set, deducting interest on the deposit {g) ; and, 
 in others, a receiver has been ajipointcd [It). 
 
 This rule has been adopted where the possession has been 
 given under a mutual apprehension that the title could be 
 immediately made good (?) — where the purchaser had a 
 sort of mixed possession with the vendor, and had paid part of 
 the purchase-money, was insolvent, and had attempted ^vith- 
 out effect to sell the estate (/r)— where the purchaser approv- 
 ed of the title and prepared a conveyance, and then raised 
 objections (/) — where the purchaser had been guilty of 
 laches, and cut underwood {ni). Even in a case where it ap- 
 
 {d) Fleetwood v. Green j lo Ves. liott, 1 Mad. 606. 
 
 Jun. 594; Margravine of Ans- (J) Gibson v. Clarke, 1 Ves. and 
 
 pach V. Noel, 1 Madd. 310. Bea. 500 ; see 1 Mad. 607. 
 
 (c) Dixon V. Astley, 1 Mer.133 ; rA:)Hall v.Jenkinson, 2 Ves, and 
 
 see Burroughs v. Oakley, I Mir. Bea. 125. 
 
 52, 376. (I) Watson t. Upton, Coop. 02, 
 
 . -yj if] Clarke v. Wilson, 15 Ves. n. but see Bonner v. Johnston, 1 
 
 Cu<.^^^/ ^ ^^^ ' Smith V, Lloyd, 1 Madd. Mer. 366 5 and see Cnitchky v- 
 
 ^ Aa.<<^. /;jr 83 ; Morgan v. bhaw, 2 Mer. 158. Jtrningham, 2 Mer. 502. ^ 
 
 (g) Smith V. Jackson, 1 Mad. (?«) Burroughs v. Oakley, 1 
 
 618 ; Smith t. Lloyd, 1 Mad. 83. Mer. 52, 376 ; Di.von v* Astley, I 
 
 (h) Ilall V. Jenkinson, 2 Ves. Mer. 133, 378. n ; Bradshaw v. 
 
 ^id Bea. 125; see Clarke V. El- Bradshaw, 2 Mer. -192. 
 
 peared 
 
 ^ /^^«X*^.^ a^^ -^Hi: /L*^*^<,^jt,^ ^y^ rfi^f^ ^<;- ^Zf-^i>^..^^ ^y^ e>
 
 f ilE CONTRACT. 201 
 
 ^iearccl on the face of the abstract, that the title was bad, 
 but the purcliaser liad sold and conveyed the estate to ano- 
 iher purchaser (jt). So where from circumstances an accept- 
 ance of the title was infeiTcd (o) — 'again where a time was 
 fixed for payment of the purchase-money by instalments, 
 and the property was a coal m'mc {p). — In all these cases 
 the rule has been applied, and if the estate be sold under a 
 decree, the purchaser, if he enters into possession, will be 
 compelled to pay his purchase-money into court, unless he 
 entered with the express consent of the coui't (q). 
 
 But where the sale is not by the court, and the seller has 
 thought proper to put the purcliaser into possession with 
 an understanding between them, that he shall not pay his 
 money until he has a title, the purchaser cannot be called 
 upon to pay the money into court in this summary way (?), 
 nor can the payment be compelled where the vendor gives 
 possession without stipulation (,s), or the purcha«cr was in 
 possession under another title, before the contract (/) ; or 
 the possession was given independently of the contract, and 
 the seller has been guilty of laches (w), although in such 
 cases the purchaser may make himself liable to the demand, 
 by dealing improperly with the estate, c. g. cutting trees, or 
 selling it to another person {x). 
 
 Perhaps two simple rules may be deduced from the cases : 
 let, Where the possession is not taken under the contract, o^- 
 is consistent with it, and the purchaser has not dealt im- 
 
 (?i) Brown V. Kelty, L. I. Hall, (r) Gibson v. Clarke, 1 Vts. 
 
 July 1816. MS. nnd Hea. 500. 
 
 (o) Boothby V. Walker, 1 Mail. ( .v) Clarke v.EllIott, 1 Mad. 606. 
 
 197 ; and see Siiatli v. Lloyd, 1 {t) Frepbody v. IVrry, Coop. 
 
 IMad. 83. 91 ; Bonner v. Johnston, 1 Mer. 
 
 (p) Buck V. Lodge, 18 Vt?. 450. 306. 
 
 tq) Anon. L. L Hill ; l6 July [it) Foxy. Birch, 1 Mer. 105. 
 
 J'^ie. MS. (J- CutlcrT.Siinons.2Mer.l03 
 
 f,e^ ^ «^*yP*r^ properlv
 
 i202 Of THE CONSEQUENCES OF 
 
 properly with tlic Cotatc, the cause must take its regular 
 course. 
 
 But 2(1, If the possession hy the purchaser, without pay- 
 ment of tlic money, is contrary to the intention of the parties, 
 or is held according to it, but tlie purchaser has exercised 
 improper acts of ownership, for example, cutting timber, by 
 which the property is lessened in value, or selling the estate, 
 by which the first seller's remedy is complicated without his 
 assent ; in such cases, the court will interpose and compel the 
 purchaser to pay the purchase-money into court. 
 
 AVhere the sum is large, the court has allowed a long day, 
 for instance, three montlis for payment of the money-iy) ; 
 and under proper circumstances, the time will be enlarged (;i). 
 
 Although the defendant, by his answer, put in issue an ob- 
 jection to the title, and both parties examine witnesses to 
 the point before the hearing, yet, upon a reference to the 
 master, both sides may produce further evidence before 
 him {a). 
 
 If the seller has vested in him legally, or equitably, all 
 the interest in the estate, it cannot be objected to the jNIas- 
 ter's report in favour of the title, that the legal estate is out- 
 standing, although in a lunatic, against whom no commis- 
 sion has issued. The vendor has the power, provided he will 
 take the means necessary for the pui-pose, of making a good 
 title. If he neglect this, the question will properly arise 
 when the IMaster comes to settle the conveyance {b). 
 
 Where an estate is sold in lots to different persons, the 
 vendor cannot include them in one bill, for each party's 
 case is distinct, and must depend upon its own peculiar cir- 
 
 (7j) Townslicnd v. Townslicisil, lor, Townshend v. Towiislieiid. 
 
 L.I. Hall, March 3, l8l7, Master (a) Vancouver v. Bliss, 11 Ves. 
 
 of the Rolls for the Ld. Chan. MS, Jun. 458. 
 
 (~i Brown V. Kelty, Michael- (h) Berkeley v, Daub, 16 Vcs, 
 
 mas Term, 1816. MS., the Vice Jun. 380. 
 Chancellor for the Lord Chancel- 
 
 cumstances,
 
 THE CONTEACT. 203 
 
 t: am stances, and tliorc niust be a distinct bill upon each 
 contract (c). In demurring to a bill against distinct pur- 
 chasers, as multifarious, the defendants need not deny 
 combination id), although that was formerly deemed essen- 
 tial {c). 
 
 If the purcliaser's deft.^nce to a bill for a specific perform- 
 ance rest merely on the want of title in the vendor, he ought 
 to depend on his answer, and not to file a cro;:S bill to have 
 the agreement delivered up ; because th^ vendor can make 
 no use of the contract if he have no title {f). And a pur- 
 chaser sliould not make the stewards or receivers of the ven- 
 dor parties to his bill for a specific performance ; for al- 
 though, as we have already seen, the vendor is deemed a 
 trustee for the purchaser, yet this rule d"oes not extend to 
 the agents of the vendor {g). 
 
 Where the plaintiff in a bill for a specific perfoimancr 
 cannot prove his agreement, as laid ; but the defendant, 
 who proves the agreen\ent to be different, offers to perform 
 specifically the agreement which he represents, the court 
 will execute the agreement as proved by the answer, with- 
 out a cross bill, altliough the plaintiff should wish to have 
 the bill dismissed (A), if the court think the defendant enti- 
 tled to a specific performance (/). 
 
 But, if a plaintiff insist upon a particular construction of 
 a contract, and the court decides against him, he will not 
 be allowed a specific performance according to the con- 
 struction against which he lias contended. It is not like 
 the case of a plaintiff, calling upon the court, to construe 
 
 (r) Rayner v. Julinii, 2 Dick. Jun. 28.'. 
 
 -677 ; Brookes V. Lord Wliilwortli, (g) Macnamara r. A\ iUiams, 6 
 
 J Mad. 86. Vps. Jun. U?. 
 
 (rf) Brookes v.Whitworth, 1 Mad i'//) Fife v. Clay (on, ISWs Jun. 
 
 8G. SAG. 
 
 (r) Bull V Allen, I'ljnh 69. f?) Iliggiiison V. Clowes, 15 Ves. 
 
 {/ Hilton V Barrow, 1 Vr'^. Jun. 516. 
 
 and
 
 OOi nr TIIK COXSEQUKN'CES OF 
 
 and execute an agi-ccmcnt, according to the true coubtruc- 
 tion ; suggesting tluit uliicli he conceives to be bo (A). 
 
 If a purcliaser have recourse to equity, and it appear 
 that the vendor lias, since the fiUng of the bill, sold the es- 
 tate to another person, the court \vill, it has been deter- 
 mined, refer it to a Master, to inquire %vhat damage the 
 purchaser has sustained ; and the sum \\hich shall be found 
 due, together ^vith costs, will be directed to be paid to him 
 (■/). Equity, however, cannot give the purchaser any com- 
 pcnsatioUj where he fdes a bill to have the contract delivered 
 up on account of the defective title of the vendor. But he 
 will obtain a decree for delivering up of the contract, with- 
 out prejudice to his remedy at law for breach of it (m). 
 
 In a recent case upon a specific performance, where Lord 
 Eldon refused to direct an issue or an enquiry before the 
 Master with a view to damages, hit Lordship said, that the 
 plaintiff must take that remedy if he chooses it at law. In 
 Denton v. Stewart, the defendant had it in his power to 
 perform the agreement, and put it out of his power pend- 
 ing the suit. The case, if it was not to be supported upon 
 that distinction, was not according to the principles of the 
 court (;/). 
 
 In a late case (o) where a seller had, after a contract for 
 sale, sold at an advance to another person, the bill filed by 
 the first purchaser, prayed, that if the second purchaser 
 bought without notice, the seller might account to the plain- 
 tiff for the advanced price. It was not necessary to decide 
 the point ; but Lord Eldon observed, that the estate by the 
 
 (k) Clowes V. Iligginson, 1 Ves. 393. 
 
 and Bea. 524. (m) Gwillim v. Stone, 14Ves. 
 
 (/'; Denton V. Stewart, 1 Cox, Jun. 128. 
 
 2o8; 1 Ves. Jun. 329, 17 Ves. (n) Todd v. Gee, 17 Vc-s. Jun. 
 
 Juu 276, cited J Re^'. Lib A. 1785, 27:^: /f^r^^^^^i^J;^i^.2, 
 
 fol 552, 717 ; supra, p. CO, n. (o] Daniels v. Dayison, 16 Ves. 
 
 Grcenvay V Adam?, 12 V'cs Ju-i. Jun, 2-19. 
 
 first
 
 THE CONTRACT. 205 
 
 first contract, becoming the property of the vendee, the ef- 
 fect was that the vendor was seised as a trustee for him ; 
 and the question then woukl be, whether the vendor slioukl 
 be permitted to sell for his own advantage the estate of 
 which he was so seised in trust, or should not be considered 
 as selling it for the benefit of that person for whom by the 
 first agreement lie became trustee, and therefore liable to ac- 
 count. The ultimate decision was, that the first purchaser 
 was entitled to a specific performance against the seller and 
 the second purchaser, the latter being considered to take 
 subject to the equity of the first purchaser, to have a con- 
 veyance of the estate at the price which he agreed to pay 
 for it ip). 
 
 It may here be observed, that if an exception taken to a 
 report, that a good title cannot he made, be overruled, the 
 vendor should obtain an order for the exception to stand 
 over ; as, if disallowed, it would appear upon record that a 
 good title could not be made (q). 
 
 If the abstract be not delivered in time or objections arise 
 to the title, the vendee may bring an action at law for non- 
 perfonnance of the agreement, in which case the -vendor's 
 remedy (if he can insist on the contract being specifically 
 perfonned) is to file a bill for a specific performance, and an 
 injunction to restrain the proceedings at law ; and the ven- 
 dor may file his bill for a performance if? specie, althougli tlic 
 vendee may have recovered his deposit at law. If an in- 
 junction be granted, the court will not dissolve it, without 
 the Master's report as to the title, wliere the action is 
 brought on the ground of want of title (?•). 
 
 If a purchaser, upon a bill being filed for a specific per- 
 formance, pay the purchase money without putting in an 
 answer, and afterwards discover that a fraud was committed 
 
 (;>) 17 Vps Jun 433 ir) Cluirrh Y Lejfyfj 1 Price, 
 
 (q Set- I Wv Jim 567. 30J. 
 
 in
 
 206 OF THE CONSEQUENCES 01 
 
 ill the sale, he is not prcchided from bringing an action for 
 damages, if he come recently after discovery of the decep- 
 tion (.S'). 
 
 Where the purchaser has paid any part of the purchase- 
 money, and the seller does not complete his engagement, so 
 that the contract is totally unexecuted, he, the purchaser, 
 may affirm the agreement, by bringing an action for the 
 non-performance of it, or he may elect to disaffirm the agree- 
 ment ab initio, and may bring an action for money had and 
 received to his use (t). 
 
 In tliis latter action, however, the plaintiff cannot recover 
 more than the money paid, although the estate has risen in 
 value ; while on the other hand, it may perliaps be thought, 
 that if the estate has experienced a diminution in value, he 
 can only recover the damages he sustained by the estate 
 not being conveyed, that being the only money retained by 
 the defendant against conscience ; and therefore the plain- 
 tiff, ex cequo ct bono, ought not to recover any more {ii). 
 
 The right to disaffirm the agreement is in some cases of 
 great importance. Thus if an agent enter into an agreement 
 on behalf of his principal, but on the face of the agreement 
 the agent appears to be the real purchaser, and is so consi- 
 dered by the vendor, the principal cannot at law it seems 
 enforce the observance of the agreement, nor will he be lia- 
 ble for non-performance of it. But if the purchaser actually 
 pay the deposit, although through the medium of his agent, 
 and the vendor does not complete his engagement, so that 
 the contract is rescindable, he himself may maintain an ac- 
 tion for recovery of the deposit, which \vill be considered as 
 
 (s) Jendwiae v. Slade, 2 Esp. Levy v. Haw, 1 Taunt. S5. 
 Ca. 257. (?/) See Moses v. M'Farlan, 2 
 
 (0 See 2 Burr. 1011; Farrer Burr. 1005, Dutch v. Warren, 
 
 V. Nightingal, 2 Esp Ca. 639 ; ib. 1010, cited, and Str.406 ; S.C. 
 
 Hunt V. Silk, 5 East, 449 ; Squire Dale ?. SoUet, 4 Burr. 2133, seil 
 
 V. Tod, 1 Camp. N. P. 293 ; see qu. 
 
 money
 
 THE CONTRACT. 207 
 
 money received by tlie vendor to the use of the real pur- 
 chaser {•t}. 
 
 Where a purchaser rests his action on a defect in the 
 title, it is not sufficient to show that the title has been 
 deemed insufficient by conveyancers, but he must prove the 
 title bad {y). 
 
 If he succeed in proving the title bad, he will, according 
 to the counts upon which he recovers, obtain a verdict either 
 for his deposit, or for damages, which in most cases would 
 be regulated by the amount of the deposit. 
 
 If he declare on the common money counts, he of course 
 cannot obtain any damages for the loss of his bargain ; and 
 even if he affirm the agreement by bringing an action for 
 non -performance of it, he will obtain nominal damages only 
 for the loss of his bargain (r,), because a purchaser is not 
 entitled to any compensation for the fancied goodness of 
 his bargain which he may suppose he has lost, where the 
 vendor is, without fraud, incapable of making a title. 
 
 And in a late case («), where an auctioneer who had ad- 
 vanced some money on an estate, sold it by auction after 
 the authority from his principal had expired, and the prin- 
 cipal refused to confirm the sale, the Court of Common Pleas, 
 in an action brought by the piu'chaser, in which he declared 
 on the agreement, and for money had and received, &c. 
 would not allow him damages for the loss of his bargain, al- 
 tliough it was proved that the estate was worth nearly twice 
 the sum which he gave for it. 
 
 Nor in a case of this nature is a purchaser entitled to any 
 compensation, although he may be a loser by having sold 
 
 (x) Duke of Norfolk v. Wor- Blackst. 1078, and see 3 Bos. and 
 
 thy, 1 Camp. Ca. 337, see Edilcii Pull, 167 ; sec Brig's case^ Palm. 
 
 V. Read, 3 Campb. Ca. 338. 3ul. 
 
 (i/) Camfitld V, Gilbert, i Esp. (a) Brdlt v. Ellis, MS. Appcii- 
 
 Ca. 221. dix, No 7 ; and .see Jones v. Dyke, 
 
 (i) Flureau v. Tiiornliill, 2 MS. Appendix, No. 8. 
 
 out
 
 208 
 
 OF TJIE CONSEQUENCES OF 
 
 out of the funds, wliicli may have risen in the mean time, 
 because he Iiad a cliancc of gaining as well as losing by a 
 fluctuation of the price {b). 
 
 But a purchaser is entitled to interest on his deposit (c) ; 
 and if the residue of the purchase-money has been lying 
 ready without interest being made by it, he is entitled ta 
 interest on that [d). Where the plaintiff recovers under 
 a special count on the original contract, which, we have 
 seen, affmns the agreement, interest will be given as part 
 of the damages for non-performance of the agreement: 
 where he recovers under a count for money had and received, 
 which disaffirms the contract, and to which is mostly added 
 a count for interest, it may, it should seem, be recovered aa 
 damages sustained by the plaintiff, by reason of the money 
 having been withheld from him. If, however, the original 
 contract is void, as if it be a parol agreement for the sale of 
 lands, the purchaser, it seems, can only recover his deposit in 
 an action for mpney had and received, and will not be al- 
 lowed interest {e). 
 
 Where the plaintiff declares on the original contract, and 
 lays the expences incurred in investigating the title, &c. as 
 special damages, he will be entitled to recover them as 
 such (y). In one case Lord EUenborougli threw out 
 a, doubt upon this (g), but in a subsequent case before 
 his Lordship, in which Gibbs, C. J, then at the bar, was 
 
 {I) Flureau v, Thornhill, 2 
 Blackst. 1078. 
 
 (c) See cb. 10, infra. 
 
 ((/) Fleureau v. Thornhill, iibi 
 
 (e) Walker V. Constable, 1 Bos. 
 and Pull. 306. In this case, how- 
 ever, the rule was laid down gene- 
 |-ally, that interest could not be re- 
 covered iaxiu action for money had 
 
 and received j and see Tappenden 
 T. Randal], 2 Bos. and Pull. 472, 
 sed qii. ; and see ch, 10, infra. 
 
 (/) Fleureau v. Thornhill, ubi 
 sup. / Richards v. Barton, 1 Esp. 
 Ca. 268 ; Bratt v. Ellis, Jones r. 
 Dyke, App. Nos. 7 and 8. 
 
 (g) Cainlield v. C5ilbert, 4 Jlsp. 
 Ca. 221. 
 
 counsel
 
 THE CONTRACT. 5?09 
 
 foiinsL^ for tlie veiHlor ; tlie defendant, a purcliaser, oljtainecl 
 a verdict for his deposit witli interest, and the expc7iscs of 
 invest (gathig the title, without argument, it being admitted, 
 that the title was defective {h) : in a still later case, they 
 were also recovered by a purchaser (i) ; and there are other 
 cases not reported in which I am told such expenses have 
 been recovered. If the rule were otherwise, it would induce 
 many persons upon speculation to offer an estate for sale, 
 knowing the title to be bad ; and yet, in a late case at nisi 
 prius, IMansfield, C. J. held, that the purchaser was not en-r 
 titled to recover back the expences of investigating the 
 title (A-). 
 
 But clearly the expences cannot be recovered under a count 
 for money had and received ; and Lord Ellenborough has 
 decided that they cannot be recovered under a count for 
 money paid, &c. to the defendant's use, as the money is ex-'^r 
 pcndcd for tlie purchaser's own satisfaction as to the title 
 which he is about to take (/). ,,, 
 
 AVhcre a vendee brings an action on account of tlio 
 agi'eement not having been completed, he will be compelled 
 to give the vendor a particular of every matter of fact which 
 lie means to rely upon at the trial, as having been a cause 
 of his not being able to complete the purchase ; but he is not 
 bound to state in hi?; particular any of the objections in point 
 of law arising upon the abstract {m). 
 
 But where no particular has been obtained, the plaintiff 
 is not confined to the objections which he may have stated 
 
 (A) Turner v. Beaurain, Sitt. other autliorlties, and too large a 
 
 Guildh cor. Lord Ellpnborough, construction according to other 
 
 C. J. 2d June, 1806. MS. authorities appears to have been 
 
 (/) Kirtland v. Pounsctt. 2 put on the statute of Elizabeth. 
 
 Taunt. 145, see p. 146. {I) Camfield v, Gilbert, 4 Ksp. 
 
 (/c) Wilde V. Fort, 4 Taunt. Ca.221. 
 
 334 ; Koto, the C, J. also ruled, {m) Collet v. Thomson, .'5 Bos, 
 
 (hat interest on the deposit is not and Pull. 246. 
 recoverable, which ii contriry io 
 
 r to
 
 210 OF THE CONSEQUENCES OF 
 
 to tlie defendant, })nt may take advantage of any other, 
 wliicli may entitle him to recover as for hreacli of the agree- 
 ment {n). 
 
 To entitle a vendor to sustain an action for breach of con- 
 tract, it has been said, that he must show -what title he has ; 
 it not being sufficient to plead that he has been always ready 
 and willing, and frequently offered to make a title to the estate 
 (o). In a late casc{p), however, where a vendor averred, that lie 
 luas seised in fee, and made a good and satisfactory title to 
 the purchaser of the estate, by the time specified in the condi- 
 tions of sale, it was held sufficient, and that it was not necessary 
 for him to shew how he deduced his title to the fee. And 
 the court seemed of opinion, in opposition to the prior cases, 
 that a vendor need not display his whole title on the record. 
 This decision, without working an injustice, will in most 
 cases render it unnecessary to load the pleadings with the 
 title of the vendor. 
 
 But even if the title is set out, yet the execution of the 
 title-deeds need not be proved, because that is never re- 
 quired of a vendor (q). This was decided by Lord Kenyon 
 at 72isi prills. To prove the plaintiff's title to a right of 
 way sold, the deeds were produced ; and it was objected, that 
 tlie deeds themselves should first be made e\idence, by pro- 
 ducing the subscribing witnesses. But Lord Kenyon ruled 
 it not to be necessary. He said, he would never allow 
 where the question was respecting a title, that the party 
 should be called upon to prove the execution of all the deeds 
 deducing a long title ; that it was never mentioned in the 
 abstract, or expected, in making out a title in any case of a 
 
 {n) Squire v. Tod, 1 Camp. Ca. 620. 
 
 293. (jy) Martin v. Smith, 6 East, 
 
 (o) Philips V. Fielding, 2 H. 555 ; 2 Smith, 543 ; and see Co 
 
 Blackst. 123 j and see Duke of St. Litt. 303, b. 
 
 Albans t. Shore, 1 H. Blackst. (?) Thomson T. Miles, 1 Esp. Ca. 
 
 270] Luxtou T. Robinson, Dougl. 181. 
 
 purchase,
 
 THE CONTRACT. 211 
 
 purchase, more particularly wliere possession lias accompa- 
 nied them : he therefore admitted them without proof of the 
 execution (/•). In a late case, however, before Lord C. J. 
 JNIansfield, at nisi prius, where in assumpsit upon an agree- 
 ment to purchase a leaf<ehold house, it appeared, that the 
 plaintiff, the vendor, was the third or fourth assignee of the 
 term ; and it was contended, that he need only prove the ex- 
 ecution of the last assignment ; it was ruled otherwise ; and 
 he was compelled to prove the lease and all the mesne as- 
 signments (.v). Lord Kenyon's decision was not however 
 adverted to ; and as that clearly coincides with the practice 
 in these cases, it can scarcely be considered as overruled (I). 
 
 If the agreement is in the hands of one of the parties, or 
 his attorney, equity, in case a bill is filed, will compel it to 
 be delivered up to the other party, in order that it may be 
 stamped (/). So, in case of an action, if only one part of 
 the agreement has been executed, the party, in whose pos- 
 session it is, shall be compelled to produce it to the other 
 party (//). And if there are even two parts, but one only is 
 stamped, the party having the unstamped part may give se- 
 condary evidence of the contents of the agreement, if the 
 other, after notice, refuse to produce the stamped part {x). 
 
 Wliere a contract is not completed merely on account of 
 
 objections to the title, and the vendor thinks his title good, 
 
 (r) Thomson v. Miles, 1 Esp. 386; Batetnan v. Philips, 4 Taunt.' 
 
 Ca. 184. 157 ; King v. King, ib. 666j Street 
 
 (.«) Crosby v. Percy, 1 Carap. v. Brown, 1 Marsh, 610. 
 
 Ca.303. (v) Garnoiis v. Swift, 1 Taunf, 
 
 (/) Supra, p. 73. 507} see SValler y. Horsfall, 1 
 
 (u) Blakey v. Porter, 1 Taunt. Camp. Ca. 501. 
 
 (I) The vendor's counsel, cited Najh t. Turner, 1 Gsp. Ca. 217; but 
 Mansfield, C. J. thought thut it did not apply. 
 
 r 2 ].C
 
 212 OF THE CONSEQUENCES OF 
 
 he seldom lias recourse to equity, but brings an action at 
 law for nonperformance of tlie agreement. 
 
 It becomes therefore material to consider, whether courts 
 of law can take cognizance of equitable objections to a title ; 
 because, if they cannot, a purchaser should in such cases file 
 a bill in equity : he might otherwise be compelled to pay 
 damages for not accepting a title, which, although good at 
 law, might be invalid in equity. 
 
 The action which a vendor must bring, being founded 
 upon the equitable circumstances of the case between the 
 parties, it seems that a court of law may in such action 
 take cognizance of equitable objections to a title ; and if 
 there were any, ought not to permit the plaintiiF to recover. 
 
 In a recent case (?/), the court of B. R. woidd not pennit 
 the assignees of a bankrupt to recover money from his trus- 
 tees, because the deed by which the trusts were created, al 
 though perhaps void at law, would probably be restored, and 
 set up again by a court of equity. The court, I am in- 
 formed, said they would not permit the assignees to recover, 
 as it would be to no purpose. It would be merely dri\ang 
 the trustees to the other side of the hall, where they would 
 most likely regain the property. This case seems in point ; 
 the same observation would apply to a vendor endea^'oiuring 
 to obtain the pm'chase-money where there were equitable ob • 
 jections to his title : the court would naturally say, cui bono, 
 when the purchaser can compel you to re-pay it in equity ? 
 
 Lord Kenyon held, that a court of law could not enter 
 into equitable objections td a title tv/iC7^e the pnrchasei- is 
 j)laint'ijf {z) ; but Lord Alvanley {a) decided, that if a pur- 
 chaser would be liable in equity, he is entitled to recover his 
 deposit at law. The last case is certainly a very strong au- 
 
 {y) Shaw v. Jakeraan, 4 East, Rep. 516. 
 201. (a) Elliott V. Edwards, 3 Bos. 
 
 (;) Allpass V. Watkinsj 8 Term and Pulh 181. 
 
 thority.
 
 THE CONTRACT. 213 
 
 tliority, because no judge sitting in a court of law could be 
 more averse than Lord Alvanlcy was, to assume any equita- 
 ble jurisdiction [h). His decision has been followed in a 
 recent case, which has set the point at rest (c). Lord C. J. 
 Gibbs said, that the question was, whctlier the contract were 
 merely for a good title, or for a legal and equitable title. 
 Now the words of the condition were, that a good title should 
 be made out at the vendor's expence. AVhat can the mean- 
 ing of that be, except that there shall be a good title both 
 at law and in equity ? The vendor, therefore, not ha^ ing 
 made out a good equitable title, the contract on the part of 
 the defendant is broken. It is true that we are in a court 
 of law, but we are oir the question whether the contract 
 have been complied with. According to the defendant's 
 doctrine, if an estate be. devised to A. B. and [in tvn^t fur~\ 
 C. it might be sold by ^V. and B. only, since they could 
 give a legal title to it without the concurrence of C. And, 
 if this principle were to be followed up, the defendant might 
 bring an action for the remainder of the purchase-money ,\ 
 The rest of the court concurred with this opinion, ^Ir. Jus- 
 tice Chambre observing, that there was no reason why ques- 
 tions respecting equitable titles should not come incidentally 
 before a court of law. 
 
 Before quitting this subject, it mur-t be remarked, that in 
 .agreements for purchase, the covenants are construed accord- 
 ing to the intent of the parties ; and they are therefore al- 
 ■\vays considered dependent, where a contrary intention does 
 not appear (d), (I). The true rule. Lord C. J. ^Lansfield, in 
 
 a late 
 
 (b) See Johnson v. Johnson, 3 (</) As to where covf^iiants are 
 
 Bos. an I Pull. 162. precccUnt, and ^vherc (l<'[)<rnkiit, 
 
 (t) Maberly V.Robins, 1 Marsh. si-t^ Mr. Serjeant Williams's note 
 
 258 ; 5 Taunt. 625. (I; to 1 .Saiinil 320. 
 
 (1) In Morris t. Knight, T. 2 Jac. 2. B. II. there were mutual cove- 
 nants: one a^recil to pay a sum of moiioy for a lease for )<^iirs ; the other 
 
 l> 3 coveu.intcd
 
 214 OF THK CON'SECiUKXCKS OF 
 
 a»latc case (r), said, uas, tliat it is not tlie employment of 
 any particular word wliicli determines a condition to be pre- 
 cedent, but the manifest intention of tlie ])artics- 
 
 Thc old law was certainly in favour of. the contrary doc- 
 trine {f) ; but if, as Lord Kenyon observed, the courts Avere 
 to hold otherwise than tliey now do, the greatest injustice 
 mig'lit be done; for supposing, in the instance of a trader 
 wlio had entered into a contract for the sale of an estate, 
 -'flTat between the making of the contract and the final exe- 
 cution of it he were to become a bankrupt, tlie vendee might 
 be in the situation of having had payment enforced from 
 him, and yet be disabled from procuring the property for 
 which he had paid {g). 
 
 If, therefore, either a vendor or vendee wish to compel 
 the other to observe a contract, he immediately makes his 
 part of the agreement precedent ; for he cannot proceed 
 against the other without an actual perfonnance of the agree- 
 ment on his part, or a tender and refusal. 
 
 Thus a vendor cannot bring an action for the purchase- 
 money, without having executed the conveyance, or offered 
 to do so, unless the purchaser has discharged him from so 
 doing {h) ; but if the purchaser gi\ e a bill of exchange, or 
 
 (c) Smith V. Woodhousp, 2 New Glazcbrook v. Woodrow, 8 Term, 
 
 Rep.233j seeHavelockv. Gcddes, Rep. 366; and Heard v. Wnd- 
 
 10 East, 555. ham, 1 East 619 ; and see Am - 
 
 (/) 8 Term Rep. 370, 371. court v. Elever, 2 Kel. B. R. 159. 
 
 {g) See Duke of St. Albans, v. {h) Jones v. Barkley, D0115. 
 Shore, 1 H. Black. 270 ; Gooilis- - 681; Philips v. Fielding, 2 H. 
 
 son V. Nuun, 4 Term, Rep. 761 ; Black. 123 ; and see 3 East, 44 J. 
 
 covenanted that he should enter in twenty days, and that he would make 
 a demise thereof, from, <&c. and tlie plaintiff brought an action for non- 
 payment of the money before the demise made, held not good, for the 
 lease is the consideration : so judgment for the defendant. IMS. 
 
 I 
 
 other
 
 THE CONTRACT. 215 
 
 other security, for tlie purchase-money, payable at a certain 
 clay, he must pay it ^vlien due, and cannot resist the pay- 
 ment even in the case of a hill of exchange, on the ground 
 that there was no consideration for the drawing of the bill, 
 because the seller has refused to convey tlie estate accord- 
 ing to the agreement. But he will have his remedy upon 
 the agreement for the non-execution of the conveyance (/). 
 
 On the other hand, a purchaser cannot maintain an ac- 
 tion for breach of contract, witliout having tendered a con- 
 veyance, and the purchase-money (A- \ 
 
 This last position has, liowever, been rendered doubt- 
 ful by some recent dicta of the judges (/), that it is in- 
 cumbent on the vendor to prepare and tender a convey- 
 ance ; which, as a general rule, certainly seems to have 
 prevailed when the simplicity of the common law reigned, 
 and ])osscssion was the best evidence of title ; but upon 
 modifications of estates being introduced, which were un- 
 known to tlie common law, and which brought with them 
 all the difficulties which surround modern titles, it became 
 necessary to make an abstract of the numerous instru- 
 ments relating to the title, for the purpose of submitting 
 it to the purchaser's counsel ; and it then became usual 
 for him to ])repare the conveyance. This practice has con- 
 tinued, and is now the settled rule of the ])rofcssion : the 
 rule is, indeed, sometimes departed from, but this seldom 
 happens except in the country, nnd then it always arises 
 from consent, or express stipulation. 
 
 (i) Spe Moi;gri(lge v. Jones, U Curteis, 4 Bro. C. C. 332 ; Mac. 
 
 East, 486 ; 3 C^mp Ca. 38 : and doiiald, C- B in CJrowstMk v 
 
 see Swan v. Cox, 1 Marsh. 176 Smith, 3 Anstr. 8/7 ; I-ord Keii- 
 
 (k) See 1 Ksp. Ca. 191 ; tx parte yon, in Il^-ard v. Wadham 1 East, 
 
 Halliard, 1 Atk. 117. ()27 ; and Lord Eldon, in Seton 
 
 (// Lord Rosslyn, in Pincke v v. Slade, 7 \"es. Jan. '278. 
 
 )' 4 la
 
 216 OF THE CONSEQUJLKCKb Oi 
 
 In a late case {m), this point came distinctly before the 
 court of Exchequer, and it was, in conformity to the prc- 
 (>ent practice of the profession^ decided, that the pur- 
 chaser, and not the vendor, is bound to prepare and ten- 
 der the conveyance. And in V^^'ebb v. Bettcl {n\ the 
 f>anic rule was expressly recognized by Wiiidhain J. and 
 denied by no one He said, *' that where a person is ta 
 execute a conveyance generally, there the counsel of the 
 purchaser is intended to draw it, and then the purchaser 
 ought to tender it." 
 
 It is settled, that if a conveyance is to be prepared at 
 the expense of purchaser^ he is bound to tender it {()). 
 Ts^ow it is admitted on all hands, that the expense of the 
 conveyance must be borne by the purchaser, if there be 
 no express stipulation to the contrary. Therefore, where 
 there is no such stipulation, the purchaser is bound to ten- 
 der the conveyance. 
 
 Upon the whole, notwithstanding the recent dicta to 
 the contrary, as the precise point came before the court of 
 Exchequer, in Baxter v. Lewis, and their decision accords 
 with the uniform practice of conveyancers, which has al- 
 ways met with the greatest attention in courts of justice 
 0;), w^e may perhaps be warranted in saying, that the pur- 
 chaser, and not the vendor, ought to prepare and tender the 
 conveyance. 
 
 If the purchaser is required by the agreement to prepare 
 the conveyance, it is clear that the vendor may maintain 
 an action, or file a bill, without tendering a conveyance 
 iq) ; and therefore, to prevent all doubt on this point, 
 
 (?n) Baxter v. Lewis, 1 Forrest's (o) Seward v. Willock, 5 East, 
 
 Rep. Excheq. 61 ; and see Mar. l&S 
 
 ill V. Smith, 2 Smith 543 ; but {p) See 2 Atk. 20S ; 1 Term 
 
 n. Standley v.Henninnton, 6 Taurit. Rep. 772 ; Wilmot 218 
 
 .-j6l. ('/) Hawkins v. Kvmp, 3 East, 
 
 (?0 1 LcY. 44. 410. 
 
 it
 
 THE CONTRACT. 217 
 
 it seems advisable to stipulate in the agreement or condi- 
 tions of sale, that the conveyance shall be prepared by, 
 and at the expense of, the purchaser. A purchaser must, 
 however, prepare the conveyance, although it is merely 
 declared that the conveyance shall be at his expense (r). 
 
 Eut although a purchaser is expressly required to pre- 
 pare a conveyancej yet if a bad title be produced, he m^^y 
 maintain an action for recovery of his deposit, without ten- 
 dering a conveyraicc (.v). So where a vendor has, by sel- 
 ling the estate, incapacitated himself from executing a con- 
 veyance to the first purchaser, that renders further expense 
 and trouble on his part unnecessary ; and he may accord- 
 ingly sustain an action without tendering a conveyance, or 
 the purchase- money (/). 
 
 Although a seller's bill for a specific performance be dis- 
 missed, yet he may in general, still bring his action at law, 
 for breach of the agreement ; and there arc instances of sel- 
 lers recovering damages, in such cases, where the court re- 
 fuses its interference, and yet thinks, that the seller is en- 
 titled to enforce his contract at law ; it is usual to add a de- 
 claration to the decree, dismissing the bill, that it is with- 
 out prejudice to the plaintiff's remedy at law. A\''licre such 
 a declaration is not added, equity will restrain the seller 
 from bringing an action in a proper case, for example, where 
 the bill was dismissed because the seller had no title (u). 
 
 A\ here a purchaser is let into possession, on a treaty for 
 purchase, he does not become tenant to the seller ; and if 
 the seller cannot make a title, it is doubtful whether an ac- 
 tion will, under any circumstances, lie against the purchaser. 
 
 (r) Seward v. WiUock, 5 East, (0 Knight v. Crockfortl, 1 Esp. 
 
 198. Ca. 189 ; see Duke of St. Albans 
 
 (v) Seward v.Wlllock, ubi sup ; v. Shore, 1 H. HUick 270. 
 
 S. P. ruled by Lord Ellpiiborough («) M'Nan ara v, Arthur, 2 Ball 
 
 C J. in LowndpR v. Bray. Sitt, and Bt-^t. 319. 
 afttrT.T. ISIO. 
 
 It
 
 S18 OF THE CONSKQUKXCKS OF 
 
 It is settled that the action will not lie, where the occupa- 
 tion has not been beneficial to him (.v), beyond the more 
 protection from the inclemency of the weather, and if he 
 paid the money, of which the seller might ha\e made inte- 
 rest, although the jury expressly find, that the value of the 
 house, during the occupation of the purchaser, exceeds the 
 interest of the money paid, yet the seller cannot recover (//) ; 
 for it is impossible to make the rules of law depend on tlic 
 balance of loss or gain in each transaction : one party must 
 take back his money, and the ocher take back his house. 
 A contract cannot arise by implication of law, under circum- 
 stances, the occurrence of w^hich neither of the parties ever 
 had in their contemplation. 
 
 But as the possession is in these cases lawful, being 
 witli the assent of the seller, an ejectment will not lie against 
 the purchaser without a demand of possession, and refusal 
 to quit (s) ; imless upon 'jwssession being given to him, he 
 agreed to quit possession, if he should not pay tlic purchasc- 
 monev on a given day, or the like ; in which case, an ejectment 
 will lie, W'ithout notice, on non -performance of his agi-ee- 
 ment. The agreement operates in the same manner as a 
 clause of re-entry on breach of covenant in a lease [a). 
 
 A writ of nc exeat regno does not lie against a pur- 
 chaser who has not paid the purchase-money, upon \\h 
 
 (x) Ilearne v. Tomlirij Feake's 8. The same doclrine is extended 
 
 Ca. 192. to aa ugreemtnt for a lease, Doe 
 
 (y) Kirtland t. Pounsett^ 2 v. i^mith, 6 East, 530; Doe v. 
 
 Taunt. 145. Brtacb, 6 Esp, Ca. l06. In the 
 
 {%) Right V. Beard, 13 East, latter case, it seems to deserve re- 
 
 210 • see He"an v. Johnson, 2 consideration, upon substantial 
 
 Taunt. 148} Doe v. Lawder, 1 grounds, which will readily occur 
 
 Stark. 308. ^'^ ^^^ learned reader. 
 
 («) Doc V. Saycr. .3 Camp, Ca.' 
 
 thrcatcninor
 
 THE CONTRACT. 219 
 
 tlireatcniiig to go abroad^ unless the vendor's title has been 
 accepted, and tlie piu-chaser has no property here (h). 
 
 If a man convey his estate to trustees to sell and pay debts, 
 and afterwards file a bill to stop the sale, on tlie ground tliat 
 the trustees, by giving shorter notice of the intended sale 
 than was usual, and other circumstances, would materially 
 injure the sale, the court will not grant an injunction upon 
 the filing of the bill, to restrain the sale, although it is 
 sworn that'' the sale is to be made the next day. It is not 
 one of those cases in which on account of irreparable injury 
 to the i^laintiff, the court proceeds in this summary way. 
 If the trustees shall be guilty of a breach of trust in making 
 the proposed sale, they will be answerable to the plaintiff 
 for the damage sustained (r). 
 
 Where a man sells an estate for an annuity, without any 
 agreement being made respecting the security to be given 
 for it, he is entitled to have it secured, not only upon the 
 estate, but also by the bond of the purchaser, and a judg- 
 ment to be entered up against him {d). *^^ ^^''■^^'^'^■^■^^^ ^^ 
 
 A purchaser of an estate subject to incumbrances, must CAfy_ 
 indemnify the vendor against them, although he did not 
 expressly engage to do so. 
 
 Thus a purchaser of a leasehold estate must covenaift 
 with the vendor to indemnify him against the rents and 
 covenants in the lease, althougli he is not required to do so 
 by the agreement for sale {c). 
 
 So, although a purchaser of an equity of redemption 
 enter into no obligation wdth the party from whom he 
 purchases, to indemnify him from the mortgage-money, 
 
 (h) Query, if this docs not re- 550. 
 
 ooncile the cases— Goodwill v. ((i) Remington v. Devcrall, 2 
 
 Clarke, 2 Dick. 497 j and Anon. Aiistr. 550. 
 
 Ih'ii. note ? See Jackson v. Pe« (f) IVmbcr v, Mathers, 1 Bro, 
 
 trie, ]0 Ves. Jun. 16-1. C. O. b'l, et supra, p. 31. 
 
 {c) Pechfll V. Fo\vl(,r, 2 Anstr, 
 
 yet
 
 220 Ot^ THE CONSEQUENCES OF iir^i^^fC^ ^ yPf^ 
 
 yet equity, if lie receives the possession, and has the pro- 
 fits, would, independently of contract, raise upon his con- 
 science an obligation to indemnify the vendor against the 
 personal obligation to pay the mortgage-money ; for being 
 become owner of the estate, he must be supposed to intend 
 to indemnify the vendor against the mortgage (/). 
 
 And, if a purchaser who has not obtained a conveyance 
 sell to another, the second purchaser is without entering into 
 a co^'enant, bound to indemnify him, against any costs in- 
 
 ^T-curred in proceedings for his benefit {g). 
 
 ^ It seems that where a mortgagor has agreed to convey 
 his equity of redemption to the mortgagee, the proceed- 
 ings in an ejectment by the mortgagee cannot be stopped 
 under the 7 Geo. II. c. 20, for tlie effect of it would be to 
 strip the mortgagee of his legal title, which might let in 
 a posterior equitable right to the prejudice of the mort- 
 gagee, though he should thereafter obtain a decree for the 
 performance of the agreement (Ji). But the relief will be 
 granted to the mortgagor, where the mortgagee 1ms not 
 taken any steps to complete his contract for the purchase of 
 the equity of redemption (?'). 
 
 A purchaser of an estate let to a tenant from year to 
 ^ear may, without a new contract, or any act corresponding 
 to attornment, recover the rent ; and nothing would be a 
 good defence in an action brought for it, but the fact that 
 he did not know of the sale, and had paid his rent before to 
 his lessor (A'). So, if the estate is in lease, the purchaser 
 is entitled to the benefit of covenants entered into by tl:e 
 
 (/) See 7 Ves. Jun. 337 per (/) Skinner v. Stacy, 1 Wils, 
 
 Lord Eldon. 80. 
 
 {g) Per Lord Eldon, in AVood v. {k) See 1. Vern. and Scriv. 289. 
 
 Griffith, 12 Feb. 1818. MS. Birch v. Wrighf, 1 Term Rep. 
 
 (/O Goodtitic T. Pope, 7 Term 378 ; seeLumlfy v. Rtisbeck, 15 
 
 Rpp. 185, East, 99 
 
 lessee
 
 THE CONTRACT, 221 
 
 lessee with the vendor (/), and may recover for a breacli of 
 the covenants before his time, if he is seised of the reversion 
 during the continuance of the term {m) ; and he may, after 
 notice to the tenant of the conveyance, distrain for rent in 
 arrear {n), wlicther the estate be freehold or leasehold (I). 
 
 If 
 
 (/) St'e past, ch. 13, sect. 1, 529, 2(1 odit. 
 n. (I). («) See Moss v. Gallimorc, 
 
 (?h) Davis's caso, M. T. 42 Ceo. Doug!. 279. 
 3. Woodfall's Lanci. and 'JY-nt. 
 
 (I) It was recently proposed to deprive all middle men even in 
 England^ of the right to distrain for rent in arrear. Thus suppose, a 
 building lease to be granted hy John to James, for 99 years, at 10/. 
 a year ; James builds a valuable house, and underlets to Joseph, for 40 
 years, at i0l7. a year ; and Joseph underlets to Jacob, for 30 years, at 
 120/. a year ; it is manifest, that James has the greatest interest in the 
 property ; and, as the law now appears to stand, he can distrain for his 
 rent, notwithstanding the last underlease. This right was proposed to 
 be taken from him ; but the measure was dropped. 
 
 In support of the measure, it was contended, that none but the original 
 lessor is entitle.l to distrain for rent, according to the law of England • 
 aud therefor", that in the case which I have put, James would not be 
 affected by the act ; because he would not, as the law now stands, be en- 
 titled to distrain. The argument, which was managed with great inge- 
 nuity, was rested upon the statute of quia emptores, and so-ie passages in 
 Coke upon Littleton. AV'hen it is considered, that the right of distress, 
 in the case above supposed, has never been disputed, it will not be mat- 
 ter of surprize, that the attempt to show that the practice is illegal did 
 not succeed. That rent may be distrained for, although fealtv is not in, 
 cident to it, is laid down in Co. Litt. 142 b. ; and it seems to be clear, 
 that distress is incident to every rent at common law, xvlicre the lessor 
 has a reversion ; and that a reversion of a single day is, for this purpose, 
 as operative as a reversion in fee. In the year book, 14 Kdw. 3, p. 8. 
 Finchden thought, that if a lessee leased a// his estate rendering rent, he 
 could not distrain ; he had no reversion. In the 2d Edw. 4. p. 11, the 
 ▼ery objection was taken, where the lessor had a reversion ; because it 
 was only the reversion of a chattel ; but it was held, that he had a right
 
 222 OF THE COXSEQUENCKS OF 
 
 If a person liaving a right to an estate, purchase it of 
 another person, hcing ignorant of his own title ; equity will 
 compel the vendor to refund the purchase-money with interest, 
 ^ y from the time of bringing the bill, although no fraud appear (o). 
 
 ^^^ If a lease be granted with power to the lessee to cut, and 
 ^^^ QP sell the timber, and the lessee is required xdien and so often 
 as he intends to sell the timber, or any part thereof, to gwc 
 notice to the lessor to whom the preemption was given ; the 
 lessee having a bona fide intention to cut down all the tim- 
 ber, may give a general notice to the lessor, and if the lessor 
 decline to purchase the timber, the lessee may cut it down 
 at intervals, and need not repeat the notice {p). 
 
 (o) Bingham v. Bingham, I Ves. Beatty, 171. 
 
 J 26 ; see Lansdown v. Lansdown, {p) Goodtitle v. Saville, I5 East, 
 
 Mose. 364 ; Saunders v. Lord An- 87 j see Doe v. Abel, 2 Maw. and 
 
 nesley, 2 Scho. and Lef. 101; Selw. 541. 
 Leonard v. Leonard, 2 Ball and 
 
 to distrain. In Brooke's Abridgement, Distress, case 45, and Rents, 
 case 17, it is laid down, on the authority of this case, that if a man lease 
 for 20 years, and the lessee leases over for 10 years rendering rent, there, 
 if he grant the rent over to another man, he cannot distrain ; because he 
 has not the reversion of the term, which gives the right to distrain : con- 
 trary, if he had granted to him, the reversion and the rent. Note the 
 diversity. In Wade v. Marsh, Latch 211, it was held, that the lessor 
 having only a reversion for years, may, by the common law, distrain for 
 the rent, by reason of the reversion, which causes privity. These cases 
 appear to be quite decisive. The only difficulty has been to find a case ; 
 for the point has not been doubted for centuries. It is to be hoped, 
 therefore, that the right of mesne landlords to distrain for rent will not 
 be violated, on the ground, that it depends upon a practice not sanc- 
 tioned by law, and which ought to be abolished j but if it shall appear as 
 it is alleged, that the remedy has been the source of great oppression 
 against the tenantry of Ireland, the Legislature will, I confidently hope, 
 extend its protection to so valuable a race of men, as far as may be con. 
 sistent with a due regard to the rights of landlords : for, as Justice 
 Twisdeu observed^ we must not steal leather to make poor men's shoes. 
 
 A bona
 
 THE CONTRACT. 
 
 223 
 
 A bona fide purchase of an interest will not be converted 
 into a loan, on account of a power to re-purchase being given 
 to the seller, although at an advanced price ; but, if tlie pur- 
 chaser instead of taking the risk of the subject of the con- 
 tract {c. ^. an annuity) on himself, take a security for re- 
 payment of the principal, that will vitiate the transaction, 
 and render it a mere mortgage security (</). 
 
 It may here be observed, that the grant of the office of a 
 •steward of a manor for life, is not revoked by a subsequent 
 sale of the manor, but is binding on the purchaser ; although, 
 as Lord, he will be entitled to the custody of the Court 
 Holls. In purchasing a manor, therefore, the instrument 
 by which the steward was appointed should be called for. 
 This is a precaution which has never been attended to. 
 
 (q) Vernrr v. Winstanley, 2 Scho. and Lef 393. 
 
 
 
 
 
 
 ^^^^^-^ „ 
 
 , ^ 
 
 
 
 
 
 
 CHAP. 
 
 /^
 
 ( 224 ) 
 
 CPIAFJ'ER V. 
 
 OF THE CONSIDERATION 
 
 SECTION I. 
 
 Of wireasonahlc and ijiadequate Considerahons 
 
 *» c 
 
 I. It seems that a court of equity cannot refuse to assist a 
 vendor merely on account of the price being unreasonable (a) : 
 antl a specific performance will certainly be enforced, if the 
 price was reasonable at the time the contracti^as i^de, how 
 disproportionabl„e soever it may afterwards l^ecome. 
 
 If, however, 4^ man be induced to give an unreasonable 
 price f(ir an estate, by the fraud (6), or gross misrepresenta- 
 tion (c), o£ the'vendor ; or by an industrious concealment of 
 a defect in the estate {d)^ equity will not compel him to per- 
 form the contract. 
 
 (a) City of London V. Richmond, 
 2 Vorii. 421 ; Hanger v. Eyles,"«2 
 E:i. Ca. Ab. 689 ; Hick v. Philips, 
 •►Prer. Gha. 575, 21 Vin. Abr. (E) 
 n. to pi. 1.; Keen v. Stiikeley^ 
 Gilb. Eq, Rep. 155, 2 Bro. P. C. 
 396 ; Charles v. Andrews, 9 JVIod. 
 151 ; Lewis v. Lord Lechmere, 10 
 Mod. 503 ,- Saville v. Saville, 1 P. 
 Wms. 745 I Adams v, Weare, 1 
 
 »Bro. C. C. 567 * Und the cases as 
 to inadequacy of price cited Infra. 
 
 (b) See James v. Morgan, 1 Lev.' 
 1^], a case at law. Conway V» 
 Shrimptofl 5 Bro. P. C. last edit. 
 187. 
 
 (c) 3uxton T. Cooper, 3 Atk, 
 383. 
 
 (d) Shirley v Stratton, 1 Bro 
 C. C. liO. 
 
 \ And
 
 OF THE COXSIDEllATIOX. 225 
 
 And where these circumstances do not appear, but the 
 estate is a grossly inadequate consideration for the purcliase- 
 nionev, equity will not relieve citlier party. Thus in a case 
 at the Rolls before Lord Alvanley, by original and crops bill, 
 the estate was represented on the one hand of the value of 
 9 or 10,000/. ; and on the other of only 5,000/. The con- 
 tract was for 6,000/., and 14,000/. at the death of a person 
 aged 65. Lord Alvanley said, it was not a case of actual 
 fraud ; but it was insisted the bargain was grossly inade- 
 quate ; and the inadequacy was very great : it was impossible 
 upon the whole evidence to make the estate to be worth 
 more than 10,000/.; though he ought not to tlecree a per- 
 formance, yet as no advantage was taken of necessity, &c. ho 
 was not warranted to decree the vendor to deliver up the 
 contract, the only inconvenience of which would be, that an 
 action would lie for damages ; and he accordingly dismissed 
 both bills (6^). 
 
 Indeed few contracts can be enforced in equity where the 
 price is unreasonable, because contracts are not often strictly 
 observed by either party ; and if an unreasonable contract be 
 not performed by the vendor, according to the letter in every 
 respect, equity will not compel a performance iji specie ( /'). 
 
 II. It appears to be settled, that mereinadequacy of price 
 is not a sufficient ground for a court of equity to refuse its 
 assistance to a purchaser (g), particularly where the estate is 
 sold by auction (//). 
 
 (e) Day v. Newman, 2 Cox, Free. Cha. 538 ; Barret v. Gome- 
 
 77 ; 10 Vo?. Jim. 300, cited ; and sprra, Bunb 94; Underwood v. 
 
 9pp Squire v. Baker, 5 Vin. Abr Hithcox, 1 Ves. 279 ; Mortljck y. 
 
 549, pi. 12. Buller, 10 Ves. Jun. 292; and 
 
 ( /) ^^^ thf cases cited in n.(a), Lowfher v. T.o vthtr, 13 Vcs. Juir. 
 
 (tJile^ and Edwards t. Headier, 95 ; V/estern t. Ri.i:»sell, 3 Ves. 
 
 Sel. Cha. Ca. 3. and Beq. 187. 
 
 f^-) Coles V. Trecolhick, 9 Ves. (A) White v. Dwnon, 7 Vts, 
 
 Jun. 231; Burrows v. Lock, 10 Jim. 30; see Collet v. Wollaston, 
 
 Ves. Jan. 170; sec Young y. Clark, 3 Bra C, C. 228. 
 
 Q In
 
 226 OF THE CONSIDKRATION. 
 
 Ill White V. Damon, however, although llic estate was 
 r^old by auction. Lord llosslyn dismissed the bill merely 
 on account of the inadequate price given for the cfjtatc, 
 Aiz. 1120/. and it was worth 2000/. ; but on a rehearing 
 before Lord Eldon, although the decree was affirmed 
 upon a different ground, yet his Lordship said, he was 
 inclined to say that a sale by auction, no fraud, surprise, 
 &c. cannot be set aside for mere inadequacy of value. It 
 would be very difficult, he said, to sustain sales by auc- 
 tion, if the court would not specifically perfonn the agree- 
 ment. And in a subsequent case (/), his Lordsliip ex- 
 pressed the same opinion, and referred to tlie case of Whitfe 
 V. Damon. 
 
 But if an uncertain consideration (as a life annuity) be 
 given for an estate, and the contract be executory, equity it 
 seems will enter into the adequacy of the consideration {k). 
 
 Althoiigli a purchaser is not bound to acquaint the ven- 
 dor with any latent advantage in the estate (/), yet a con 
 cenlment, for the puqiose of obtaining an estate at a grossly 
 inadequate price, may be deemed fraudulent. 
 
 Thus in the case of Deane v. Rastron (ni), an agreement 
 was made for sale of land at a half-penny per square yard. 
 The price was in all about 500/. the real value 2,000/. 
 The purchaser went out to an attorney, got him to calcu- 
 hite the amount, and desired him not to tell the vendor 
 how little it was ; then carried the agreement to the vendor, 
 r.nd prevailed on him to sign it immediately. The court of 
 Exchequer said, the desire of concealment would be such a 
 fraud as to void the transaction, as parties to a contract arc 
 
 (?)Ex parte Latham, 7 Ves. (/) See 2 Bro. C. C 420. 
 
 Jan. 35, note. (tw) 1 Anstr. 64 ; and see Young 
 
 (A) Pope V. Root, 7 Bro. P. Ci v. Clerk, Prec. Cha. 538 ; Lukey 
 
 184 ; Mortimer v. Capper, 1 Bro. v O'Donnell, 2 Scho. and Lef- 
 
 C. C. 156 ; and Jackson v. Lever^ 46G. 
 S Bro. C. C. 605. 
 
 supposed
 
 OF THE CONSIDEHATIOX. 227 
 
 supposed, in equity, to treat for ^vhat they tliiuk a fair 
 price. 
 
 So a misrepresentation by tlie purchaser, who was the 
 agent of the seller, of the value of the estate, although it 
 operated only to a small extent, has been held to be a suf- 
 iicient defence against a bill for a specific performance ; for 
 to entitle a person to call for the aid of a court of equity, he 
 must go there with clean hands (n). 
 
 Where neither of the parties knows the value of the 
 estate, at the time the contract is entered into, no inade- 
 quacy of consideration will operate as a bar to the aid of 
 equity in favour of the purchaser. 
 
 Thus, in a case (o) where a common was to be inclosed, 
 one man having a right of common, agreed, before the 
 commissioners had made any allotment, or any one could 
 know what it was to be, to sell his allotment for 20Z. Af- 
 terwards it turned out to be worth 200/. Sir Joseph Jekyll 
 said, the contract ought to be enforced, as no one could 
 know what the allotment would be ; and both parties were 
 equally in the dark ; but it might he different if the cii'' 
 cvvistances had been knoivn to the plaintiff'. 
 
 But, whether an estate is sold by auction, or by private 
 agreement, equity will be as vigilant in discovering an 
 excuse for refusing to perform the contract, v.here the 
 price is inadequate, as it will where the consideration is 
 unreasonable {,p). 
 
 III. A conveyance executed will not, however, be easily 
 
 (?») Cadman T. Horner, 1 8 V'es. Vern, 136; Emery v. W:vsp, 5 
 
 Jun. 10 ; Wall V. Stubbs, 1 Madd. Ves. Jun. 846, 8 Ves. Jun. 505 ; 
 
 80. Twining v. Morris, 2 Bio. C C, 
 
 (o) Aoon. 1 Bro. C. C. 158, G 326 ; and st'e the cases cited in n. 
 
 Ves. Jun. 24 cited ; but see 2 Atk, (a) supra and see Mortlock v. 
 
 134. IJulIer, 10 Ves. Jun. 292. 
 
 {J)) Whorwood v. Simpson, 2 
 
 Q 2 set
 
 228 
 
 OF THE CONSIDERATION. 
 
 f;et aside on account of the inadequacy of tlie considera- 
 tion ; for there is a great difference bet^veen establishing 
 and rescinding an agreement (q). It is not sufficient to 
 set aside an agreement in equity, to suggest weakness and 
 indiscretion in one of the parties who has engaged in it ; 
 for supposing it to be in fact a very hard and unconscion- 
 able bargain, if a person will enter into it with his eyes 
 open, equity will not relieve him upon this footing only, 
 unless he can shew fraud in the party contracting with 
 him, or some undue means made use of to draw him into 
 such an agreement (r). To set aside a conveyance, there 
 must be an inequality so strong, gross, and manifest, that 
 it must be impossible to state it to a man of common 
 sense, without producing an exclamation at the inequality 
 of it (.y). The truth is, that in setting aside contracts, on 
 account of an inadequate consideration, the court proceeds 
 on fraud. In all such cases, however, the basis must be 
 gross inequality in the contract, otherwise the party sell- 
 ing cannot be said to be in the power of the party buying ; 
 unless actual imposition is proved by gross inequality, other 
 circumstances of fraud will pass for nothing ; the basis 
 must be gross inequality {t). 
 
 {q) See Dews v. Brandt, ScJ. 
 Cha. Ca. 7 ; Cases Dom. Proc. 
 1728 ; Hamilton v. Clements, Cas. 
 Dom. Proc. 1766. 
 
 (r) Per Lord Hardwicke, Wil- 
 lis T. Jernegan, 2 Atk. 251. 
 
 (*) Per Lord Thurlow in 
 Gvrynne v. Heaton, 1 Bro. C. C. 
 1 : and see Stephens v. Bateraan. 
 1 Bro. C. C. 22; Floyerv. Sher- 
 ard Ambl. 18 ; Jleathcotev. Paig- 
 non, 2 Bro. C, C. 167 ; and the 
 cases there cited ; Sprutley v. 
 
 Griffiths, 2 Bro. C. C. 179. n. ; 
 Low V. Barchard, 8 V'es. Jun. 133 ; 
 Underhill v. Horwood, 10 Yes. 
 Jun. 209, 14 Ves. Jun. 28 ; Ven- 
 ner t. ^Vinstanley, 2 Scho. and 
 Lef. 393 ; Mac Ghee v. IMorgan, 
 Bruce V. Rogers, ib. 395 ; Darley 
 V. Singleton ', 1 Wight. 25 ; 
 Evans V. Brown, ib. 102 ; Ejc 
 parte Thistlewood, 1 Rose, 290. 
 (t) Per Lord Thurlow, in Gart- 
 side V. Isberwoodj 1 Bro. C. C. 
 558. 
 
 But
 
 OF THE CONSIDERATION. 220 
 
 But a conveyance obtained for an inadequate consider- 
 ation, from one not conusant of his right, by a person who 
 had notice of such right, will be set aside, althougli no ac- 
 tual fraud or imposition is proved (u). 
 
 So if advantage is taken of the distress of the vendor, 
 the sale will be set aside {x) ; and tliis was done in one 
 case, although the purchaser was really nui to great ha- 
 zard, and was to •be at great expense and trouble in many 
 foreseen and unavoidable law-suits about tlie estate, the 
 issue of which was very doubtful (y). 
 
 The reader will perceive that in this chapter a distinc- 
 tion is taken between contracts in fieri, and contracts 
 actually executed ; but in the £ase of Coles v. Trecothick 
 (2), Lord Eldon appears to have been of opinion, that no 
 such distinction exists. His Lordship said, that unless the 
 inadequacy of price is such as shocks the conscience, and 
 amounts in itself to conclusive and decisive evidence of 
 fraud in the transaction, it is not a sufficient ground fo?' 
 7'efush2g a spccijlc performance. 
 
 IV. In treating of inadequacy of price, we must he 
 careful to distinguisli the cases of reversionary interests, 
 the rules respecting which, especially where an heir is the 
 vendor, depend upon pnnciplcs applicable only to them- 
 selves, and not easily definable {a). The heir of a fam.ily 
 
 («) Sf>e Evans v. Luollyn, 2 (y^l Gordon v. Crawford, before 
 
 Bro. C. C. ]50; and the casos the House of Lords, Gro. and Rud . 
 
 eited in the next note. oif Law and Eq. p. 92, pi. 1-6 ; 
 
 (*•) Ilerne v. Mcers. 1 Vern. Printed Ca«es Oowi. i'ror, 17?0. 
 
 465, 1 Bro. C. C I76. n. ; Gouhl (t) 9 Ves. Jun. 234 ; sedqu. and 
 
 V. Okenden,4 Bro, P. C. by Toml. se»; the cases cited in this .chapter. 
 
 193 ; Farguson v. ]Maithnd, Gro. {a) See 9 Ves. Jun. 2J3 ; 2 
 
 an<l Kud. of Law and Eq. p. 89, Pow. Contr. 181; 3 Woodd< 9, 
 
 pi. 1 ; Pickett v. Loggon, 14 \es. 460. s. 7. ; Gilb. Lex Procfor, 
 
 215 ; Murray v. Palmer, 2 Scho. 291 : 1 Trea. Eq. c. 11. s. 12, and' 
 
 and Lcf. 474. I^Ir. F.mblanqe's notes, ibid. 
 
 a 3 Jcalinix
 
 230 Oli' THE CONSIdEliATlON. 
 
 dealing for an expectancy in that family, bliall be distin- 
 guished from ordinary ca.sesj and an unconscionable 
 bargain made ^vith him, shall not only be looked upon 
 as oppressive in the particvdar instance, and therefore 
 avoided, but as pernicious in principle, and therefore re- 
 pressed (6). There are two powerful reasons why sales of 
 reversions by heirs should be discountenanced; the one* 
 that it opens a door to taking an undue advantage of an 
 heir being in distressed and necessitous circumstances (c), 
 which may perhaps be deemed a private reason : the other 
 is founded on public policy, in order to prevent an heir from 
 shaking off his father's authority, and feeding his extrava- 
 gancies by disposing of the family estate (c?). Every case 
 of this nature mustj however, depend on its own circum- 
 stances ; the courts profess not to lay do^^'n any particular 
 rules, lest devices should be framed to evade them. 
 
 The circumstance of the heir being unprovided for, will 
 not prevail much in the purchaser's favour : the remoteness 
 or uncertainty of the interest is not material, if the terms 
 be unreasonable ; nor can much stress be laid upon the 
 pmchaser incurring the risk of the loss of his money, in 
 case the heir die before he come into possession ; nor will 
 the acquiescence of the seller during the continuance of the 
 same situation in which he entered into the contract pre- 
 judice him (e). 
 
 The adequacy of the consideration is considered with re- 
 ference to the time of the contract and not to the event, 
 
 (i) Per Lord Thurlow, 1 Bro. Prince, 1 Wils. 320; Gwynne v. 
 
 ex. 10 ; see Nott v. Hill, 1 Vern. Ileaton, 1 Bro. C. C. 1 ; Bernal 
 
 167, 2 ^'ern. 27 ; Berney v. Pitt. v. Donegal, 3 Dom. 333. 
 
 2 Vern. 14 ; Earl of Ardglasse v, (c) Sir John Barnardiston v, 
 
 Muscharap, 1 Vern. 237 ; TuiUe- Lingood, 2 Atk. 133. 
 
 ton V. Griffith, 1 P. Wras. 310 ; (d) Cole t. Gibbons, 3 P. Wms. 
 
 Curwyn v.Milner, 3 P. Wms. 293, 290 ; see Barnard, Cha. Rep. 6. 
 
 n. (C); Sir John Barnardiston t. (c) Gowland v. De Faria, 17 
 
 Lingood, 2 Atk. 133 ; Baugh v. Vcs, Jiin. 20.
 
 or THE CONSIDERATION^ 231 
 
 and the burden lies on the purchaser in these cases to show 
 that a full and adequate consideration was paid {f). 
 
 A very anxious protection is also extended by equity to 
 persons selling reversionary interests, who are not lieirs, al- 
 though certainly the same reasons do not occur in support 
 ofit(^). 
 
 But a ho na fide sale of a reversionary estate cannot be 
 set aside, whether the vender be an heir or not {Jl), unless 
 fraud or imposition be expressly i)roved, or be implied 
 from the inadequacy of the consideration, or other cir- 
 cumstances attending the sale (/), although in a late case 
 it was deemed sufficient to avoid the contract ( /j ) , that tlie 
 consideration was not equal to the calculated value in the 
 tables. If the bill be delayed for a great length of time 
 (/), or the vendor, with full notice of all the circum- 
 -stances, and of his right to set aside the contract, confirni 
 the piu'cliase (w), equity will not relieve against the sale, 
 althougli the aid of the court coidd not originally have 
 been withheld. 
 
 Where a sale is set aside on account of the inadequacy 
 of the consideration, it is upon the principle of rcdcmp- 
 
 (/)Gowland v. De Faria, %ihi appealed from, but the suit was 
 
 i?;//). Evans V. Griffith, Farmer v. compromised by Gowland (the 
 
 Wardell, 17 Ves. Jun. 24, cited ; seller) paying the costs and a sum 
 
 Medicott V. O'Donel, 1 Ball and of money to De Faria (the pur- 
 
 Beatty, 156. chaser) beyond the sum decreed 
 
 (g) Wiseman v. Reako, 2 Vern. to liipi at the Rolls. 
 
 ] 21 ; Cole V. Gibbons, 3 r.Wms. (/) Moth v. AtwOod, 5 Ves 
 
 290. Jun. 815; but see Ruche v. 
 
 (70 Dewsv. Brandt, Sel. Ca. O'Brien, 1 Ball and Beatty, 330, 
 
 Cha. 8 ; and see 1 Bro. C.C. 6. {m) Cole v. Gibbons, 3 I'.Wms. 
 
 (/) Nicois V.Gould, 2 Ves. 122; 290; Chesterfield v. Jans-en, I 
 
 Gwynne v. Heaton, I Bro. C. C. Atk.^SOl, 2 Ves. 549 ; see Baucli 
 
 1 Peacock v. Evans, l6 Ves. v. Price, 1 Wils. 320; Morse ▼. 
 
 Jun. 512. Royal, 12 Ves. Jun. 355; Roche 
 
 (Jc) Gowland V. De Faria, 17 v. CBrieo, 1 Ball and Beatty, 
 
 Vcg. Jun. 20. The decisiou was 330 
 
 Q *i tioil,
 
 
 ^iV Tin: CON&IDLKAllOX. 
 
 tioii, and the conveyance will stand as a security for tile 
 piincipal and interest, and even costs {n) ; bnt compound 
 interest will not be allowed, however long the purchaser 
 has been kept out of his money (o) ; in many cases, thcrc- 
 foj?c, the seller is not merely relieved against the contract, 
 but a coufiiderable benefit is given to him at the expense 
 of the purchaser. In a late case where interest had been 
 paid on the purchase-money, the payments were considered 
 to be of principal and not interest, and the seller was 
 cliarged with interest on all the sums received by him^ 
 whether received as interest or as prmcipal {p). 
 
 So the purchaser will be allowed for lasting and va- 
 luable improvements, and will not like a mortgagee be 
 cliarged with what without wilful default he miglit ha\e 
 made {q). 
 
 The rules on this head ha\ c a strong tendency to stop 
 altogether the sale of reversions ; but as this is not possi- 
 ble, they must necessarily have the effect of preventing 
 the 8ale of reversions at their fair market value. It is per- 
 fectly well kno\\Ti that reversions upon sales, even by 
 auction, fetch on an average only two-thirds of the sum 
 at which they are valued in the tables : according to the 
 late case of Gowland v. De Faria (?*), this does not seem 
 to operate in a purchaser's favour, although the value of 
 
 (n) Twiselton v. Griffith, 1 P. 
 Vms.SlO; Gwyune v. Heaton, 
 1 Bro. C.C. i ; Peacock t. Evans, 
 16 V^es. Jun. 512; Bowes v. 
 Heaps, 3 Ves, and Bea. 117 ; but 
 in Nicols V. Gould, 2 Ves. 423, 
 Lord Hardwicke thought he could 
 not set aside the purchase without 
 making the purchaser pay costs ; 
 and see Baugh v. Price, 1 Wils, 
 920 ; Gowland v. De Faria, Ves. 
 
 \7 Jun. 20 ; Morony y. O'Dea, 
 1 Ball and Beatty, 109, and the 
 Reporters' note. •^'^-J^T^T*^ '^x 
 (o) Gowland t. De Faria, 17/ 
 Ves. Jun. 20. 
 
 (;)) Murryv. Palmer, ? Scho. and 
 Lef. 474. 
 
 iq) S. C. 
 
 (r) Supra p. 2-31, and note, see 
 Ex parte Thistle wood, 1 Rose 290. 
 
 a thing
 
 OF THE CONSIDERATION. ^33 
 
 a tiling is at last not to be regulated •by calculation, but 
 as it is vulgarly ternicd by wliat it "vvill fetch. Experience 
 has shewn that under the most favourable circumstances 
 rc\crsions ivill not fetch their calculated value, whicli only 
 allows the purchaser 5 per cent, interest, notwithstanding 
 that his money may be locked up for many years. It seems 
 therefore an equity not founded on reason or convenience, 
 which in these cases enquires the calculated value of the 
 subject of the cont) act instead of its value according to the 
 well known market price. The effect of such an equity 
 must ultimately be to injure the very persons in whose 
 favour it was introduced. Reversions ^vill never fetch their 
 calculated value. Fair purchasers will not dare to purchase 
 them at their market price, and consequently they will be 
 thrown into the grasp of usurers, who will give very in- 
 adequate considerations for them, running the risk of a suit, 
 in which event they will stand in as good a situation as if 
 they had given the fair market price for them. r^^ yi^/'r ^C^^ 
 
 It must be remarked, that we have no certain rule byy^ ^t^ /W.) 
 which the inadequacy of a consideration can be ascer- 
 tained. Our law, indeed, hath in one instance {s) adopted 
 the rule of the civil law ; by which no consideration for an 
 -estate was deemed inadequate, which exceeded half the real 
 value of the estate ; and Lord Nottingham wished the rule 
 universally prevailed in England (/ ) . 
 
 If it be agreed, that the price of an estate shall be fixed 
 by a third person, and such person accordingly name the 
 5um to be paid for the estate, equity will compel a per- 
 formance in specie ; but if the referee do not act fairly, 
 or a valuation be not carefully made, execution of the 
 contract will not be compelled ; especially if there be any 
 
 {s)Fide Duke 177; ct infra, 120; 1 Treaf. Eq. 119 ; Grodus 
 Ch. 16 ; and see Baldwin v. Roch- de Jure Belli nc Pads, 1. 2. c.l2, 
 fort, 2 Vfs. 517, cited. B. 12. 
 
 (0 See Nolt V.Hill, 2 Cha Ca 
 
 other
 
 934 or lilE CONSiDERATIOK. 
 
 otlicr ground iipoii which the court cau fasten, as a bar to 
 its aid (w). 
 
 Ey the civil law, also, a price \vas considered sufficiently 
 certain, if it was to be fixed by a person named, and such 
 I)erson accordingly fixed the sum : but it appears by the 
 Institutes (x), " Intet^ veteres satis abundegue hoc dubita- 
 tiir, constaretne vejiditio, an non'' 
 
 If an agreement be made to sell at a fair valuation, the 
 court will execute it although the value is not fixed. For 
 as no particular means of ascertaining the value are pointed 
 out there is nothing to preclude the court from adopting 
 any means adapted to that purpose (?/). 
 
 But where parties agree upon a specific mode of valua- 
 tion, as by two persons, one chosen by each, unless the 
 price is fixed in the way pointed out, the court cannot en- 
 force the performance of the agreement, for that would be 
 not to execute their agreement, but to make a new one for 
 them {z). 
 
 In this respect our law accords with the civil law {a). 
 The same rule is adopted in the code Napoleon (^). 
 After stating that the price ought to be fixed by the par- 
 ties, it adds, " II pent cependant etre laisse a I'arbitrage 
 d'un tiers : si le tiers ne veut ou ne pent fair I'estimation il 
 n'y a point de vente." 
 
 If the medium of arbitration or umpirage is resorted to 
 for settling the terms of a contract and fails, equity has no 
 jurisdiction to determine that though there is no contract 
 at law, there is a contract in equity. If, therefore, the 
 
 (?/) Emery v.Wase, 5 Ves. Jun. (s)MilneS v, Gery, 14 Ves. Jun. 
 
 316, 8 Ves. Jun. 505; Hail v. 400; Gregory v MighelL 18 Ves. 
 
 W.rren, 9 Ves. Jun. 605. Jun. 328.1;'::r3::;:i#±^ "^T' 
 
 (r) III. xxiv. 1. For the cases (c) Vide supra. "^^^^^^J^^ " 
 
 arising out of this rule, mde Via- {h) Code Civil, LiC 3, Tit. 6, 
 
 nlus, 674. Q^s^ 1, s. 1592, 
 
 \y) See M Ves. Jun. 407, 
 
 instrument
 
 f)F THECOT^SIDEItATION. 235 
 
 instrument assume that the award shall' bind the parties 
 personally, the deatli of one of them before the award -will 
 of course be a countermand of the submission at law, and 
 equity cannot enforce the contract (c). But a party may 
 bind himself by acquiescing in an award not made in the 
 manner required {d). 
 
 SECTION II. 
 
 Of the failure of the Consideration hefore the 
 Conveyance. 
 
 t, A. VENDEE^ being equitable owner of the estate from 
 the time of the contract for sale, must pay the consider- 
 ation for it, although the estate itself be destroyed between 
 the agreement and the conveyance ; and on the other Iiand, 
 he will be entitled to any benefit which may acclue to tlie 
 estate in the interim {e). 
 
 Nevertheless this doctrine, however it may seem to flow 
 from the rules mentioned in the preceding chapter, has ne- 
 ver been decided till lately. 
 
 For in Stent v. Baily if), the Master of the Rolls said, 
 " If I should buy a house, and before such time as by 
 the articles I am to pay for the same, the house be burnt 
 down by casualty of fire, I shall not in equity be bound for 
 the house." ^^ / ^^'^^^ .f^^ ^ x'^^^"'^"^!^ 
 
 So upon a sale of a leasehold for lives (^), previously to^^/^^. .. j^ 
 tlic conveyance, one of the lives dropt ; and although Lord X^^^o^y^ 
 
 (c) Blundf II V. Bretfargh, 17 (e) See 2 Pow. on Contracts, 61, 
 
 Ves. Jun. 232; and see 6 Ves. (/ ) J P. Wms.220. 
 
 jun. 34. (^) White V. Nutt, 1 P. Wms^ 
 
 ((i)Ser 17 Vcs. Jnn. 211. 62. 
 
 Keeper
 
 236 or THE CONSIDERATIOK. 
 
 Keeper Wriglit decreed a specific performance, yet the 
 report states, that he seemed to think, that if all the lives 
 had been dropt before the conveyance, it miglit have been 
 another consideration, for that the money ^vas to be paid 
 for the conveyance, and no estate being left, there could be 
 110 conveyance. 
 
 The case of Cass v. Riidele, as it is reported in Venion 
 (A), is an authority against the dictum of the Master of 
 the Rolls, in Stent v. Baily ; but it appears (i) that the 
 case is mis-stated in Venion, and that the decree was founded 
 on a good title having been conveyed. 
 
 In a late case {k), however, where A had contracted for 
 the purchase of some houses which were burned down 
 before the conveyance, the loss was holden to fall upon 
 him, although the houses were insured at the time of the 
 agi-eement for sale, and the vendor permitted the insurance 
 to expire without giving notice to the vendee ; Lord Eldon 
 being of opinion, that no solid objection could be founded 
 on the mere effect of the accident ; because, as the party 
 by the contract became in equity the owner of the pre- 
 mises, they were his to all intents and purposes (I). This 
 
 (h) 2 Vern. 280. 349 ; and see Poole v. Shergold, 2 
 
 (OSee IBro C,C. 157. n. ; and Bro. C. C 118; Revel v. Ilussey, 
 
 see n. to Raith. edit, of \^ernon. 2 Ball and Beat. 280, Harford v, 
 
 {Ic) Paine v. Meller, 6 Ves. Jiin. Purrier, 1 Madd, 532. 
 
 (I) It) the 2d vol. of Coil, of Decis. p. 56, are the two following 
 cases: — The peril of a house sold, and thereafter burnt, was found to be 
 the buyer's, though the disposition bore an obligement to put the buyer 
 in possession, because the buyer did voluntarily take possession and re- 
 build the house, and likewise was infeft before the burning. Hunter v, 
 Wilsons. — A house bought being burnt, the Lords found, that the pro* 
 perty being transferred to the buyer, by his being infeft, and the keys 
 being offered to hi&i, the acciJental lo?s must follow the buyer, al- 
 though there was a part of the prjce unpaid, there being a difference 
 about i<, which was referred tp some friends to be determined, apd 
 which they had not icme when the burning happened, Atchison v. 
 PlcLson . 
 
 ilccisioii
 
 OF THE CONSIDERATION. 237 
 
 decision proceeded on the only principle upon which it caai 
 be supported — that the purchaser was in equity o^vner of 
 tlic estate. And therefore, in a case where a similar acci- 
 dent happened to an estate sold before a master , and the 
 report had only been confirmed nisi, the loss was holden to 
 foil on the vendor (/). 
 
 Lord Eldon's decision in Paine and ISIeller, exactly 
 accords with the doctrine of the civil law. Indeed it is 
 remarkable, that this very case is put in the Institutes (m). 
 " Cuin autem emptio et venditio contracta sit, periculuvi 
 rei venditce statim ad cjnptorem pertinet, tamctsi adhuc 
 ea res emptori tradita non sit. Itaque si — aut cedes 
 totce, vel aliqua ex parte, iiiceridio consumptce fuerint — 
 ejfipto?is damnum est, cui nccesse est, licet rein nonfue- 
 rit nactus, pretium solver^e." 
 
 It is hardly necessary to remark, that although the court 
 will enforce a specific performance, notwithstanding tlie 
 estate is destroyed, yet this will not be done unless tlie 
 title- be good, or the purchaser has, previously to the acci^ 
 dent, waved any objections to it. 
 
 The case of Paine v. Meller, may be considered as hav- 
 ing also settled, that a purchaser would be entitled to any 
 benefit accruing to the estate after the agreement, and be- 
 fore the conveyance ; for Lord Eldon said, " If a man 
 had signed a contract for a house upon that land whicli 
 is now appropriated to the London Docks, and that house 
 was burnt, it would be impossible to say to the purchaser, 
 willing to take the land without the house, because mud) 
 more valuable on account of tliis project, that he should not 
 have it." 
 
 This also appears to have been admitted in a case (//) 
 
 (0 Ex parte Minor, ll Ves. Jure Nattircc ct Centrum^ 1. 5. c. 
 
 Jun. 559. Vide p. 48 ; see Za- 5. s. 3. 
 gury V. Furnell, 2 Campb. 240. (;;) Spurrnr v, Hancock, 4 V«s. 
 
 {m) III. xxiv. 3. Read Pull, dc Juii. 667 ; and iee 1 P Wms. 62. 
 
 >\}iere
 
 238 OF THE CONSIDERATION. 
 
 \vhere a man contracted for the purchase of a reversion, and 
 afterwards the lives dropped before the contract ivas carried 
 into execution ; for, although the court did not decree a 
 specific performance, they proceeded entirely on the laches 
 and trifling- conduct of the pui-chaser, and never even hint- 
 ed that the contract should not be performed on account of 
 the lives having dropped. 
 
 Indeed this point flows from the decision in Paine v. 
 Meller ; and it was the rule of the ciAdl law, that the pur- 
 chaser should benefit by the accretion to the estate before 
 the conveyance : nam el conuiiodum ejus esse debet cujus 
 ycnculum est (o). 
 
 These cases suggest tlie observation that, in agrees 
 ments for the purchase of houses, some provision should 
 be made for their insurance until the completion of the 
 contract. 
 
 II. It equally foUoAvs, from the general rule of equity, 
 by which that which is agreed to be done is considered as 
 actually performed, that if a person agree to give a con- 
 tingent consideration for an estate, as an annuity for the 
 life of the vendor, and the vendor die before the conveyance 
 is executed, by which event the annuity ceases, yet the 
 purchaser will be entitled to a specific performance of his 
 contract. This, we observe, is a much stronger case than 
 that before discussed. There a loss was actually sustained, 
 and the only question was, upon whom it should fall. 
 But in this case, if performance of the agreement were 
 not compelled, the parties would stand in precisely the 
 same situation as before the contract ; whereas, by perform, 
 ing the agreement, the estate is given to the purchaser, 
 without his paying any consideration for it. A steady 
 adherence to princi];)le compels the court to overlook the 
 
 (o) lost, uhi sup, 
 
 hardship
 
 OF THE COXSIDEEATION. 239 
 
 hardship of this particular case, and the doctrine tests upon 
 high authorit}'. 
 
 Thus in the case of Mortimer v. Capper (j9), A con- 
 tracted to sell an estate to B for 200/., and 50/. a year an- 
 nuity ; and two days after the contract was reduced into 
 miting, A was found drowned ; the Lord Chancellor di- 
 rected an enquiry as to the value of an annuity for the life 
 of A, in order to introduce the question, whether an estate 
 being disposed of for an annuity, which is a contingency, 
 the contract shall fall to the ground, if no payment of the 
 annuity shall be made. He said, that he thought, if the 
 price were fair, the contract ou{^ht not to be cut down, 
 merely because the annuity, which was a contingent pay- 
 ment, never became payable. 
 
 The parties in the above cause were so well satisfied 
 with the opinion of the court, that they never, it is said, 
 brought it back for further directions (g). 
 
 So in a later case (r), where A sold an estate by auc- 
 tion in consideration of a life annuity (I), the first pay- 
 ment to be made on the 25th of December, 1787; but in 
 case he should die before the 29tli of September, 1787, 
 up to which time he was to receive the rents, tlie contract 
 should be void. A died on the 1st of February, 1788, 
 after a sudden and short illness of only two days ; and 
 owing to some delays, the conveyances were not executed. 
 The quarter's payment, due at Christmas, was tendered to 
 the vendor's agent by the purchaser, a few days after it 
 became due ; but the agent declined receiving it, saying, 
 
 (/•: 1 Bro. C. C. 156 ; sec Wy. (q) SeeS Bro. C.C. 609, sed qu. 
 
 vill V. Bishop of Exeter, 1 Price, (r) Jackson v. Lever, 3 Bro. 
 
 292. C.C. 605. 
 
 (I) See Appendix No. 12 for a statement of the new Annuity Act, 
 and an eiKiuiiy into the expeJieiity of ri»i>iii^' the Icgnl rate of interest, 
 
 that
 
 240 or THE CONSIDERATION. 
 
 that the conveyance would be soon completed, and that it 
 ^vas not necessary for the j)urchascr to make such payment 
 in the mean time. On the first hearing, Lord Thurlow 
 said, he did not sec that if an annuity was contracted for, 
 why the consideration should not be paid. It was, he said, 
 objected, that the contract could not be carried into execu- 
 tion viodo et forma, and that had great weight where there 
 liad been no payment. His Lordship afterwards made his 
 decree for a specific performance, on payment of the an*ears 
 of the annuity, the consideration for the purchase of the 
 estate. 
 
 'i'lic case of Paine v. ISIellcr bear;, on this point also. 
 Lord Eldon, in delivering judgment, said, that as to the 
 annuity cases, and all others, the true answer had been 
 given ; that the party has the thing he bought, though no 
 payment may have been made ; for he bought subject to 
 contingency. And in the later case of Coles v. Trecothick, 
 his Lordship expressed the same opinion (*). 
 
 But if in a case of this nature, a payment of the annuity 
 become due before the death of the vendor, and the purchaser 
 neglect to make or tender it, he cannot insist upon a spe- 
 cific performance. 
 
 This was decided by the case of Pope v. Root [t). A 
 contracted with B for the sale of an estate to him, in con- 
 sideration of a life annuity, and the completion of the 
 agreement was delayed by the illness of a mortgagee, who 
 was to have been paid off. Two days after the time men- 
 tioned for completing the purchase, A met ^\ith an accident, 
 and died within a few days. By the terms of the contract, 
 the first payment of the annuity became due previously to 
 the death of A, but it vvas not paid or tendered. And Lord 
 Chancellor Bathurst dismissed the bill for a specific per- 
 
 (0 Sec 9 Vcs, Juii. 'Jib. (/) 7 Bro. P, C. 184. 
 
 formance.
 
 O? THE CONSIDERATION^. Qil. 
 
 farmance, and the decree was affirmed in the House of 
 Lords {u)» (I). 
 
 The reader ^vill ob9er\T, that the decisions in the cases of 
 iVIortiincr v. Capper and Jackson v. Lever, do not iiifriiig^e 
 upon that of the House of Lords, in the prior case of Popti 
 V. Root, but reduce the rules on this subject to an eq li table 
 and uniform standard ; for the only case in which a purehaser 
 cannot require the assistance of equity, is where he has by 
 laches forfeited his right to its aid, namely, where a pay- 
 ment of the annuity became due, and he neglected to pay or 
 tender it. 
 
 To obviate all doubt, it seems advisable in agreements for 
 purchase, where the consideration is an annuity for the life 
 of the vendor, to expressly declare, that the deatli of the 
 vendor, previously to the completion of the contract, shall 
 not put an end to it, altliough a payment of the annuity 
 shall not have become due, or having become due, shall not 
 have been made or tendered ; but that, on tlie contrary, tlie 
 purchaser shall be entitled to a conveyance, on paj-mcut of 
 the annuity up to the death of the vendor. 
 
 In the cases just dismissed, the purchase?', by the death 
 of the vendor, obtained the estate without paying any, or 
 only a nominal consideration for it. Perhaps a case may 
 arise where the vendor having received the purclu;se-n^oney> 
 may, by the death of the purcliaser, be entitled to retain tlie 
 estate also, although he may not be his heir. This case was 
 put in the argument of Buigess v. Wiicate (a?) : a purchase, 
 
 (u) Se< Lord Bathurst's decision l56, cited. 
 
 in Baldwin v. Boulter, 1 Bro. C.C. (x) I Blackst. 123. 
 
 (1) One ^^^ittT tias tliought, that (Ii*» inac'fquary of ihe conside-^ition 
 JnflueiietU Inis decision j see 2 Pow oti (Contracts, 76- but it does not 
 appear that any inadequacy waB actually prored, 
 
 R and
 
 24)2 OF THE COMSIDERATIOy. 
 
 and the money paid by tlie purchaser, who dies without 
 heir, before any couvjyanca. It wars said, if the lord could 
 not clain the esta'c:*, and pray a conveyance, the vendor 
 would hold tho estate he has bson paid for, and keep the 
 monoy too. Sir Thomas Clarke, in delivering his onnion, 
 said, that ho thouf^ht the lord could not }^ray the convey- 
 ance ; to say he could was beg^in^ the question. And as to 
 the vendor's keeping both the estat? and the money, it was 
 anala;^)'.!] to v/hat equity do^s in another case; as wh3re a 
 conveyance is made preaiatiir^ly, before money paid, the 
 money is considered as a lien on that estate in the hands of 
 the vendee. So v/here money was paid prematurely, the 
 money would be considered as a lien on the estate in the 
 hands of the vendor, for the personal representatives of the 
 purchaser ; which would leave things in statu quo. 
 
 It may be doubted, however, whether this case, if it 
 should ever arise, would b: decided according to Sir Thomas 
 Clarke's opinion. Where a lien is raised for purcliase mo- 
 ney under the usual equity (//), in favour of a vendor, it is 
 for a debt really due to him, and equity merely provides a 
 security for it. But in the case under consideration, equity 
 must not simply give a security for an existing debt ; it must 
 first rahe a debt against the express agreement of the par- 
 ties. The purchase-money was a debt due to the vendor, 
 which upon principle it would be difficult to make him re- 
 pay- What power has a court of equity to rescind a legal 
 contract like this? The question might perhaps arise if 
 the vendor was seeki?ig relief in equity, but in this case he 
 must be a defendant. If it should be admitted that the 
 money cannot be recovered, then of course he must retain 
 the estate, also, until some person appear who is by law en= 
 titled to require a conveyance of it. 
 
 (5/) Fide infrOf ch, 12. 
 
 CHAP.
 
 ( 243 ) 
 
 CHAPTER VJ. 
 
 OF THE PARTIAL EXECUTIOX OF A CONTRACT, WHERE 
 A VENDOR HAS NOT THE INTEREST WHICH HE PRE- 
 TENDED TO SELL ; AND OF DEFECTS IN THE QUAN- 
 TITY AND QUALITY OF THE ESTATE. 
 
 SECTION I. 
 
 JV/icre the Vendor has not tJie Interest 'which he sold. 
 
 I. VV HERE a person sells an interest, and it appears that 
 the interest which he pretended to sell was not the true one ; 
 as, for example, if it was for a less number of years than he 
 had contracted to sell, the purchaser may consider the con- 
 tract at an end, and bring an action for money had and re- 
 ceived, to recover any sum of money which he may have 
 paid in part performance of the agreement for the sale : and 
 the vendor offering to make an allowance j^ro tan to Vvill 
 make no difference ; it is sufficient for the plaintiff to say, it 
 is not the interest which I agreed to purchase {a). 
 
 But in a late case {b) at nisi prius, where the agreement 
 was to sell " the unexpired term of eiglit years lease and good 
 will," &c., and it appeared, that at the date of the agreement 
 the unexpired term in the lease was only seven years and 
 
 (fl) Karrer v. Nightingal,2 Esp. bert t. Shfc, 1 Campb. C'a. 113; 
 Ca. 639 ; and see llearn ». Tom- see also D;ifl'ell v. Wilson, il/. 401 ; 
 lin, Peiike's Ca. 192 ; Thomson v. and see cli. 8^ infra. 
 Miles, 1 lisp. Ca. 18 1 ; MaUotk v. (6) Celworth v.Hapell, 4 Camp. 
 
 Hunt, B. R. 15 Feb. 1806 j Hib- Ca, HO, 
 
 R 2 seven
 
 
 -'.t'l or THE PAHIIAL EXECUTION 
 
 cevcn inant}ir5, I^ord Ellcnborough said, that the pai'ties 
 (:;ould not be supposed to have meant that there was the 
 exact term of eig-lit years unexph-ed, neither more nor leso, 
 by a single day. The agreement must therefore receive a 
 reasonable construction, and it eeems not unreasonable that 
 the period mentioned in the agreement should be calculated 
 from the last preceding day when the rent was payable, and 
 including therefore the current half year. Any fraud or 
 material misdescription, though unintentional, would vacate 
 the agreement, but the defendant might here have had sub- 
 stantially what he agreed to purchase. 
 
 So where a house was sold by auction, and no notice was taken 
 of a fee farm rent of 56\ 4(2. charged upon that and upon other 
 property, to a very great amount, the purchaser brought an 
 action for breach of the agreement, and Sir Vicary Gibbs 
 for the vendor, the defendant, declined arguing the point (c). 
 
 But, notwithstanding that the vendor has a different in- 
 terest to what he pretended to sell, equity will> in some 
 cases, compel the purchaser to take it. 
 
 Tluis, although the estate is charged with trifling incum- 
 brancer, which cannot be discharged, yet it seems that 
 under some circumstances, if a satisfactory indemnity can be 
 o-iven against them, equity v/ill compel a specific perform- 
 ance (if), (I). This, however, is evidently a jurisdiction 
 which cannot be too cautiously exercised. In a late ease, 
 Lord Eldon said, that he d i not appTehend, that the court 
 
 (c) Turner t. Beaurain, Sltt. 59 ; Halsey t. Grant, Horniblow 
 
 Guildh. cor. Lord Ellenl)orough, T.Shirley, 13 Ves. Jun. 73, 81 j 
 
 C.J.2riJuri'«,18C6; and see Barn. and see B'i-nwell t. Harris, 1 
 
 well V. Harris, 1 Taunt. 430. Taunt. 430 ; see also Hays t. Bai. 
 
 {d) Howland t. Narris, 1 Cox, ley, stated in ch. 7, ^^ost. 
 
 (I) Al 'hough it seems evident that this equity would be enforced in a 
 case, for instance, like Turner and Beanrain, yet the cases referred to 
 are not decisive authorities in favour of ih 
 
 cculd
 
 OF A GO>rTRACT. 245 
 
 'Tould compel the purchaser to take an indemnity, or the 
 Ycndor to give it (e). 
 
 So, although the vendor may not be entitled to the estate 
 for the number of years which he contracted to sell, yet, if 
 the deficiency were not great, equity would certainly decree 
 <a perfonnance of the contract at a proportionable price (/" ). 
 
 But if the number of years be considerably less than the 
 vendor pretended to sell, equity, so far from interfering in 
 his favour, will assist the piurchaser in recovering any de- 
 posit which he may have paid. 
 
 Thus in Long v. Fletcher {g), A pretending he had a 
 term of 16 years to come, in a house, agreed to sell it to E, 
 and B paid 100/. part of the consideration-money, down. 
 B entered, but finding that A had only a term of six years 
 in the house, brought his bill to have an account, his money 
 refunded, and the bargain set aside ; and accordingly B was 
 decreed to account for the profits, and the consideration- mo- 
 ney to be refunded, and B, upon his own account, to have 
 tenant allovv'anccs made him. 
 
 So, if a purchaser contract for what is stated to be an 
 original lease, and it turn out to be an underlease for tlie 
 whole terra, wanting a few days, it should seem that equity 
 would not compel the purchaser to perform the contract. It 
 is impossible, from the nature of the thing, to make any 
 compensation for the reversion outstanding, and yet it may 
 become very valuable ; and it is of gieat importance to a 
 purchaser of a lease not to have any third person stand be 
 tween him and the owner of the inheritance {h). 
 
 It frequently happens that a contract for a leasehold estate 
 is not carried into execution at the time appointed, and the 
 
 (e) See 1 Ves. and Beam. '225. (g) 2 Eq. Ca. Abr. 5, pi. 4. 
 
 (/) See Guest y. Homfray, 5 (A) Fide infra y where an under. 
 
 Vcs, Jun, 818; and see Hanger T. lease \fili be enforced against a 
 
 Eyles, 21 Viu. Abr. (A) pi. 1 ; 2 vendor under an agreement tt» 
 
 Eq. Ca. Abr. 689 ; see also 10 Ves. assign, dlr II. 
 Jun. 306 J 13 V«s. Jun. 77. 
 
 E 3 vendor
 
 tl6 or THE PARTIAL EXECUTION 
 
 vendor continues in possession. The estate of course daily 
 decreases in value, and a question constantly arises, whetlier 
 the purchaser shall be compelled to pay the full price origi- 
 nally agi'eed to be given for the estate, or vvliat arrangement 
 shall be made bet\v'een the parties. 
 
 In a late case (i) where this point arose, the late Master of 
 the Rolls said, the reasonable course which he should adopt, 
 was, that for the time elapsed before the execution of the 
 agreement, in consequence of the pendency of the suit, in- 
 terest should be paid by the purcbascr,ard a rent should be set 
 iqx>n the promises in respect of the possession of the vendor. 
 
 This rule at once provides for the interests of both par- 
 ties, and accords with the maxim of equity, by which that 
 which is agreed to be done, is considered as actually per- 
 formed. The purchase-money, from the time of the contract, 
 belongs to the vendor, wlio is entitled to interest on it while 
 it is retained by the purchaser. The estate from the same 
 time belongs to the purchaser, who is entitled to a rent for 
 it while it is occupied by the vendor. 
 
 In Cuthbert v. Baker (A-), the quit rents of a manor were 
 stated in the particukrs of sale to be 2l. a year, ar-d they 
 amounted to only 30.9. a year ; but a performance in specie 
 was decreed, and it was referred to the master to ascertain 
 what compensation should be allowed in respect of the de- 
 ficiency. 
 
 Where an estate is sold by auction, or before a master, in 
 lots, and the vendor has not a title to all the lots sold, equity 
 ^mll compel the purchaser to take the lots to which a title 
 can be m.ade, if they are not complicated with the rest ; and 
 will allow him a compensation pro tanto. 
 
 (i) Dyer v. Hargrave, 10 Ves. v. Browne, 14 Ve«. Jun. 144. 
 Jun. 505 J see and consider King (A) Reg. Lib< A. 1790, fol. 442. 
 
 V, Wightroan, 1 Aost. 80; Fentoa 
 
 ThuR
 
 OF A CONTRACT. 247 
 
 Thus in Poole v. Slicrgold (/), a man l>ccame the pur- 
 •chaser of several lots of an estate, to two of Avhich uo title 
 oould be made. And upon the master's report Lord 
 Kenyon said, he must take it for granted, these two lots 
 were not so complicated with the others, as to entitle the 
 purchaser to resist the whole ; and therefore decreed a specific 
 performance pro tcmfo. 
 
 But if a title cannot be made to a lot which is compile 
 cated with the rest, the purchaser will not be compelled to 
 accept the lots to which a title can be made. 
 
 Thus in Poole v. Shergold, before cited, Lord Kenyon 
 said, if a purchase was made of a mansion-house in one lot, 
 and faims, &e. in others, and no title could be made to the 
 lot containing the mansion-house, it would be a ground to 
 rescind the whole contract. 
 
 Lord Kenyon seems afterwards to have gone a step fur- 
 ther, and to have been of opinion, that such a contract ought 
 not in any case to be C7ifo?-ccd against a purchaser. 
 
 For sitting in a court of law {m) he held, that the per- 
 formance of a contract for the sale of some houses ought not 
 to be comi)elled, as a title could not be made to all the 
 houses bought ; and this, notwithstanding they were sold in 
 separate lots. He said, when a party purchases sc^ cral lots 
 of this description at an auction, it must be taken as an entire 
 contract ; that is, that the several lots arc purchased with a 
 view of making them a joint concern. The seller therefore 
 shall not, in case of any defect in his title to one part, 
 be allowed to abandon that part at his pleasure, and to hold 
 the purchaser to his bargain for the residue. From such a 
 doctrine n.uch injustice might result, as the part to v.liich a 
 seller could not make a title might be so circumstanced, that 
 without it the other parts would be of little, perhaps of no 
 
 (/) 2 Bra. C.C. 118; 1 Cox, (m) Chambers T. Griffiths, 1 
 
 273 ; 8e« 6 Ves. Jun. 676. Esp. Ca. 149. 
 
 R 4 value;
 
 248 OF THE PARTIAL EXECUTION 
 
 value ; or it might leave it in the power of the seller, or any 
 oth^.' poison who might come to the possession of such part, 
 to deprive the purchaser of every degree of enjoyment or be- 
 neficial use of that part which lie had purchased. He added, 
 that a case under cireumstancea precisely similar to the pre- 
 sent, had been decided before liim, when Master of the Rolls. 
 That, on that case coming before him, he had found that his 
 predecessor there, Sir Thomas Sewell, had ruled contrary to 
 the doctrine he was now delivering ; but that he at the 
 Rolls had over-ruled Sir Thomas Se^'cll's determination, 
 with the general approbation of the bar. 
 
 And the court of Plxchequcr appear to have been of the 
 same opinion as Lord Kenyon. For in a case (n) where a 
 person purchased several lots of an estate sold under a de- 
 cree of the court, and the biddings were afterwards opened as 
 to one lot, the court were of opinion, that he had an option 
 to open the biddings as to the rest of the lots. 
 
 In a late case (o), in which most of the authorities on this 
 head were cited, the cases of Chambers v. Griffiths, and 
 Boyer v. BlackwcU, were not noticed ; but I learn that Lord 
 Eldon afterwards mentioned from the bench that he had 
 met with the case of Chambers v. Griffiths ; and he desired 
 it to be understood, that he \^s not of the same opinion as 
 Lord Kenyon ; and, in a still later case. Lord Eldon ex- 
 pressed an opinion that Lord Kenyon's rule would not be 
 follov.cd 'inless it co\dd be shewn that there was an under- 
 standing hat the pure! laser was not to take any of the lots 
 unless '0 could obtain them all (/;). 
 
 The rules laid down in Poole v. Shergold must therefore 
 ?till be consist red the law of the coiu-t. It is indeed re- 
 rrarkablc^ that in Chambers v. Griffiths, Lord Kenyon 
 should have overlooked his decision in Poole v. Shergold ; 
 
 (n) Boyer t. Blackwell, 3 Anstr. Jun. 675. 
 657. (>) 16 July, 1816, MS. 
 
 irore
 
 OP A contracTv 249 
 
 more especially as it in a great measure obviated the objec- 
 tions vvhich he made to a partial execution by a court of 
 equity of a contract for puichase of several lots of an estate. 
 The doctrine, however, could not apply to an action at law, 
 because although the same man purcliase several lots at an 
 auction, yet a distinct contract arises upon each (q). Cham- 
 bers V. Griffiths car, not therefore be maintained as an autho- 
 rity even for the legal rule. 
 
 Where an estate is sold in one lot, cither by private con- 
 tract, or public sale, and the vendor has not a title to the 
 whole estate, he cannot enforce the contract at law (r), 
 unless perhaps a separate value was put on different parts 
 of the estate, in which case the contract in favour of justice 
 may be considered distinct. At law neither a vendor can, 
 on an entire contract, recover part of the purchase-money, 
 where he cannot make a title to the whole estate sold ; nor 
 would a purchaser be suffered in a court of law to say, that 
 he would retain all of which the title was good, and vacate 
 the contract as to the rest : such questions being subjects 
 only for a court of equity (5). 
 
 But if the part to which the seller has a title was the 
 purchaser's principal object, or equally his object with the 
 part to which a title cannot be made, and is itself en in- 
 dependent subject, and not likely to be injured by the other 
 part, equity will compel tlie pmchascr to take it at a pro- 
 portionate price ; and in these cases it will be refeiTcd to the 
 master, to inquire, " whether the part to which a title 
 cannot be made, is material to the possession and enjoyment 
 of the rest of the estate" (/). 
 
 (j) Emmerson v. Hcelis, 2 and Pull. 162, 
 Taunt. 38; Janifs v. Shore, 1 (/) M'Qiioen t. Farquliar, 11 
 
 tUrk. 426. Ve:,. Jun. if^? ; U('g. Lib. B. 1804, 
 
 (r) Tomkins v. White, 3 Smith, fol. 1095 ; Knatchbull t. Grueber, 
 
 435. 1 Madd. 153. 
 
 (-♦) Johnson v. Johnson, 3 BosJ 
 
 Thus
 
 250 or THE PARTIAL EXECUTION 
 
 Thus in a case (u) before Sir Thomas Sewell, a man 
 who had contracted for the purchase of a liouse and wharf, 
 was compelled to take the house, although he could not 
 obtain the wharf; as it appeared that his object was to 
 carry on his business at the wharf ( I ) ; which, Lord 
 Kenyon said, was a determination contrary to all justice 
 and reason (d). 
 
 And in the late case of Drewe v. Hanson {w), which 
 arose upon the sale of an estate, together with the valua- 
 ble corn and hay tythes of the whole parish, it appeared, 
 that the principal object of the purchaser was the com 
 tythes, and that half tlic hay tythe belonged to the vicar, 
 and the other half was commuted for by a payment of 2/. 
 per annum, the nature of which did not appear. Upon the 
 facts, as they tlien appeai'ed, Lord Eldon would not give 
 judgment, but he seemed clearly of opinion that the hay 
 tythe, if not of great extent o?^ of such a nature as to pre- 
 judice the corn tythe, was a subject for compensation : but 
 otherwise not, as the purchaser would not get the thing 
 which was the principal object of his contract {x). 
 
 So in a case {y) where a man had articled for the pur- 
 ^ cbase of an estate tythe-free, but which afterwards appeared 
 
 («) S»'t' 6 \'t'S Jun.678;7 Ves. (i/) Lord Stanhope's (a-.p, 6 Ves, 
 
 Jun. 270, cited; and see M 'Queen Juu 678, cifpd: Lo^nd. s v. Lane, 
 
 T. Farqiaiar, 1 1 Ves. Jun. 467. 2 Cox, 364 ; 6 Vcs. Jun 676, cited, 
 
 (4») 1 Cox. 274, but sf»- Pim-ke t. Curti* s, cited, 
 
 (wj 6 V« s. Juii. 675, iLid : and n't' Rose v. Callaud, 5 
 
 (X) Sif \ aiKODver V. Elisp, II Ve.«. Jun. 186 ; U'aliin^erv, HiL 
 
 Ves. Jun. 458 ; Stapj-lton v. bcett, berf, 1 Mer. 104, 
 
 13 V»*. Jun 4'25. 
 
 (I) This ( ase has l)e<*n frequently disapiroved of, and would not have 
 been so dei-ided at this day. J^ee 1 Esp Ca. 152; 6 V. 5. Jun. 679 ; 13 
 Ves. Jun. 78, 228, 427 ; In S ewart v. Alliuion, 18 Ves. Jun. 26, Lord 
 Eldon txprtsst'd hirasilf niucli more strongly against the principle of 
 tbese casei, than appears bj the report. 
 
 to
 
 or A CONTP.ACT, £51 
 
 to be subject to t}'theR, Lord Thiirlow decreed a specific per* 
 formance, althoiio;h the purchaser proved, that his object 
 was to buy an estate tytlie-free (I). 
 
 This, however, to us? Lord Eldon's words (2;), is a pro- 
 digious strong measure in a court of equity to say, as a dis- 
 creet exercise of its jurisdiction, that the contract shall be 
 performed, the defendant swearing and positively proving 
 that he would have had nothing to do with the estate if 
 not tythc-free. And in the case of Ker v. Clobery (a), where 
 the estate was sold before the master, and the particulars stated 
 that " the whole of the above lands are only subject to a 
 modus for tythe hay of 21. per annum. Lord Eldon was of 
 opinion, that a pui'chascr of an estate stated to be tythe free, 
 or subject to a modus, could not be compelled to take it with 
 a compensation, if the estate is not tythe free. His luordship 
 said, that he had m decided in a case from Yorkshire, in 
 which he had told the purchaser if he wovdd take the estate 
 with a compensation, he must undertake to pay the tythes to 
 the vendor. The question therefore is now at rest. 
 
 In a later case, upon a sale before a master, where the par- 
 ticular stated about 33 acres to be tythe free. Lord Eldon held, 
 that the principle laid down in Ker v. Clobery did not apply (6). 
 
 In a late case, where the estate was described as let on a 
 ground-lease at so much per annum, and it tunied out 
 that the lease was at rack-rent, Lord Eldon would not sup- 
 port the sale, although there was the usual clause, that er- 
 rors or mis-statements should not annul the sale (c). 
 
 In a case where the particular described the estate as 412 
 
 (3)S<c. 6 Ves. Jim, 679; and E.T. 1818, MS. 
 
 see 17 V.'s. Jmi. 280. (c) Stt-wart v. Alliston, 1 Mer. 
 
 (a) 26 Mar. 1814, MS. 62. 
 (6) Binks T. L'»r(l Rokeby, 
 
 (I) h riD.v appears by ihe report of the case published by Mr. Cox, 
 that the estate was only subject tu a moaey-payment of l-iUy in lieu of 
 tythes. Howland t. Norrls, 1 Cox, 59. 
 
 Acrcs,
 
 A/f^trtf-c \fy 
 
 252 or THE PARTIAL EXECUTK)N 4, ^^^^^ . 
 
 acres, 227 of which were tythe-f:e?, paying a very small 
 modus ; and it appeared that part of the estate represented 
 to bo tythe-free, was subject to tythes which the owner was 
 . willing to sell, Lord Eldon said, that the allegation was, 
 that ^Z%1 acres " are tythc-frce, paying a very small modus," 
 not stating a positive exemption from tythes ; and wli^re 
 the contract is to sell an estate tythe-free, the vendor not 
 representing himself to have title to the tythes, without 
 entering into the question, whether the purchaser ought 
 to be compelled to take it if not tythe-free ; yet, if he 
 chooses to take it, he cannot compel the vendor to buy the 
 tytlies, if there is a positive title to them in pernancy ; all 
 he can have is compensation {d). 
 
 If a purchaser, with notice of a defect in a title to a 
 part of the estate which is complicated with the rest, or 
 which is the principal object of his contract, take possession 
 of the estate, and prevent the vendor from making a title, 
 lie ivill be compelled to perform the contract, notwithstand- 
 ing that he insisted upon the objection at the time he enter^ 
 (^). A deduction from the price will, however, be allowed 
 him, although the situation of the land will not perhaps be 
 taken into consideration. 
 
 A purchaser will not be compelled to take an undivided 
 part of the estate contracted for. Therefore, if a man con- 
 tract with tenants in common for the purchase of their es- 
 tate, and one of them die, the survivors cannot compel the 
 purchaser to take their shares, unless he can obtain the 
 share of the deceased. 
 
 Nor will a purchaser be compelled to take a leasehold 
 estate, for however long a term it may be holden, where he 
 has contracted for a freehold (I). Lord Alvanley express- 
 ed 
 
 (rf) Todd T. Gee, 17 Ves, Jun. bery, supra. 
 273 ; qu. how is the compensation («) See Calcraft r. Roebuck, 1 
 
 to be estimated ? See Ker v. Clo. Ves. Jan. 221. 
 
 {^l Although a purchaser cannot, and certainl/ ought not, to be com- 
 
 pcU«d
 
 OF A C02^ TRACT. S53 
 
 ed a clear oj^inion on this point ( /) ; and it has since 
 been ex2)ressly detciniincd by Sir VViliiam Grant (^■) (I). 
 
 Neither is a purchaser compellable to accept a copyhold 
 estate in lieu of a fi-eehold {h) (II). 
 
 (/) See 4 Bro. C. C. 497 ; 1 Ves. (A) See Th itiing v. Morrice, 2 
 
 Jun. 226. Bro. C. C. 32G ; and Sir Hurry 
 
 f^) Drewe v. Corp, 9 "Ves. Jiin, Hick v. Philips, Free. Cha. 572. 
 368; and see 13 Ves. Jun. 78, 
 
 p«iied to take an estate held for a terra of ;y ears, however long it may 
 be, whf-re he has contracted for a fee, yet a willing purchaser may safely 
 accept it; and by the following means may gain tlu fee. In the first 
 place, the term should be assigned to a trustee, then a feoffment of the 
 lands should be executed ; and after the feoflinent, the trustee to whom 
 the term is assigned, should declare that he will stand possessed of the 
 lands during the term, in trust to attend the inheritance according to the 
 uses crealed by the feoffnx-nt. Thir mode will glye the purchaser a 
 good title against all persons except thi lessor, or reversioner ; and as 
 he can claim tio title tiil the expiratic . of the t' rm, tlio title will he sub- 
 stanti.illy good against all the world, if the term be a long one. At the 
 •ame time it is evident, that there are certain privileges attached to a 
 freehold estate, which could not br claimed by Ihe purchaser in deroga- 
 tion of ihr rights of »lie reveraloMor. Indeed th's mode of making a title 
 should only be r^^sorted to where ik is not knoivu who is the lessor, or 
 reversioner. S-^e Blunders v. Lord Annislr-y, 2 S-^ho. and Lef. 73. There 
 vrould be no difficulty in holding such a feoffment void, bs fraudulent, but 
 it would be qii te iinposi-ible to hold it a forfeiture of the term in the trustee ^ ^.^n^ 
 
 (I) This case is a very strong authority. The vendor was entitled to 
 a term of four thousand ytars, vested i\ a trustee for hin, and also to a 
 mortgage of the revcrsi n in fee • xpt'claiit upon th»' term ^vhich wai 
 vested in himself atid forfeited, b»i not foreclosed. The person claim. 
 ing under the mortgagor of tlit: reversion refused to rel'ise, and there- 
 upon ti.e bill was dismissed. Lib. He-. A. 1803. fol. 290. 
 
 (II) In the case of ^ir Harry Hick v. P-lIips, on account r' the un- 
 reasonable pii-.« at which the eMate was . o!d. afp.c... performance 
 was refu'i r, iiUhou^'i i1 ^ viml'' ' ••' ' tc ^ ; jcure an ic .anchisement 
 of the copyholds J Ki'clOMod. £0^; but Ui.» r-je cannot be considrred 
 as an anthori'y, txctpt oti tl:«' gi»<ucd of the p.rice beiug uiir-.T^nndble, 
 for equity will in oidiiiary cases grant Jx<i vendor flmo Lo procure th« 
 fee. See infroj Ch. 8,
 
 25* OF THE PAHTIAL EXECUTION 
 
 But if an estate is sold as copyhold, and represented as 
 equal in value to freehold, it seems that thi vendor will 
 be compelled to perform the contract, althont^li the estate 
 prove to be actually freehold (i). If, however, the con- 
 tract for the sale of a supposed copyhold, stipulate that 
 the sale shall be void if any part is freehold, the subject 
 must ba proved as described, and the circumstance of 
 the seller himself, after the first contract, selling the es- 
 tate to another as copyhold, is not conclusive evidence 
 against him {k). 
 
 So it is said, that a purchaser of an existing lease, is not 
 bound to take a new lease instead of the old one, because 
 the purchaser would become an original lessee, instead of an 
 assignee ; and might therefore be subject to burdens, to 
 which he would not have been liable in the latter charac- 
 ter (/). 
 
 If a vendee proceed in the treaty for purchase after he is 
 acquainted with the nature of the tenure, and do not ob- 
 ject to it, he will be bound to complete his contract, and 
 cannot claim any compensation on account of the difference 
 in value. 
 
 Thus, v^here an estate was sold as freehold, with a 
 leasehold adjoining {m), and it turned out on examination 
 that 62 acres were leaseliold, and only 8 freehold ; yet, 
 as the purchaser proceeded in the treaty after he was 
 in possession of this fact, and did not object to the nature 
 of the property, he was held to have waved the ob- 
 jection. 
 
 And if a purchaser do object to the tenure, yet, if he 
 
 (i) Twining v. Motr'cp, 2 Bro. (/) Mason v. Corner, 2 Mursb, 
 
 C.C. 326; and se Browne v. 332 
 
 Fenton, sup. p. 3, (?«'' Kordyce v. Ford, 4 Bro. 
 
 (Ic) Daniels V. Davison, 16 Ves. C.C. 194 ; and st-e 6 Ws. Jan, 
 
 Jan. 2 19. 670 ; 10 Ves. Jun. 508. 
 
 /^u'.^t^^ ^ /^Uz.^ proceed
 
 OP A CrONTRACT. t55 
 
 pri:)cecd in the treaty, it sscins that he will be compelled to 
 idka the estate, on bsiii^ allowed a compensation (n). 
 
 In the case of Wirdman v. Kent (o), upon a bill filed 
 by vendors for a specific performance, it appeared that 
 part of the lands sold to the purchaser had been previously 
 sold to one Pavey; a spjciuc performance was however 
 decreed, and, as to the lands terricrcd to the defendant, 
 but which had been sold to Pavey, that the plaintiffs should 
 procure Pavey to release them to the defendant or convey 
 a like qiiintUij oflaml^ ofeqwd value to the defendant. 
 
 The particular circumstancei of this case do not appear 
 iu the report ; but it must be presumed, that the land sold 
 to Pavey was not the object of the purchaser ; and that 
 other laud in the neighbourhood, of equal value, would 
 suit him as well. Indeed, in one report of tliis case (p), it 
 is said, that the giievances complained of were disregarded 
 as frivolous. 
 
 To guard against the niles established by tlie foregoing 
 decisions, an express declaration should be inserted in all 
 agreements for purchase of estates, that if a title cannot 
 be made to the whole estate, the purchaser shall not be 
 bound to perform th? contract pro to;z/o ; and a similar 
 provision should be made where an estate is bought free 
 from tythes, or with any other collateral benefit, which the 
 purchaser may ^ish to secure. , cpy ^ ^ - ^ z» -^ 
 
 11. Having considered in what cases a vendor may^^-^ ^^^ 
 compe^ a performance pro tanto of an agreement, which *-^x-/<^. 
 he is unable wholly to perfonn ; we may now inquire iiwCUTld/ ^ 
 what instances a purchaser may insist upon a part perform-'^ ^^"/j^^, -^ 
 
 («) Ste Calcraft V. Koebucli, 1 (o) 1 Cro. C. C. 140.^>,^/^/]7 ^^j^ 
 
 Vei. Jun. 221. (p) 2 Dick. 594. ^-^^:^ ^.^^
 
 256 or TffE tahtial execxttiojj 
 
 ance of an agreement, which the vendor cannot execute 
 in toto. 
 
 And first, it seeins that in every case where an agree- 
 ment would be in part executed in favour of a vendor, 
 there is much greater reason to afford the aid of the court 
 at the suit of the purchaser, if he be desirous of taking 
 the part to which a title can be made. A nd a purchaser 
 may, in some cases, insist upon ha^dng the part of an 
 estate to which a title is produced, although the vendor 
 could not compel him to purchase it: it is true, gene- 
 rally, but not universally, that a purchaser may take 
 what he can get, with compensation for what he cannot 
 have iq). 
 
 Thus we have seen, that if tenants in common contract 
 for the sale of their estate, and one of them die, the survi- 
 vors cannot compel the purchaser to take their shares, unless 
 he can obtain the shares of the deceased. But the converse 
 of this proposition does not hold ; for it seems that the pur- 
 chaser may compel the sui-vivors to convey their shares, al- 
 though the contract cannot be executed against the heir of 
 the deceased (?*). So even where a vendor has not a title to 
 a part of the estate, and consequently cannot enforce the ac- 
 ceptance of it, yet the purchaser may elect to take it with 
 the title such as it is (.9). 
 
 If a man, having partial interests in an estate, chooses 
 to enter into a contract, representing it, and agreeing to sell 
 it, as his own, it is not competent to him afterwards to say, 
 though he has valuable interests, he has not the entirety ; 
 and therefore the purchaser shall not have the benefit of the 
 contract. For the person contracting under these circum- 
 stances is bound by the assertion in his contract: and if the 
 
 (q) 1 Ves. aud Beam, 358, per (r) Attorney .general t. Gowcr 
 
 Lord Eldon. Western ?, Russel!, 1 Ves. 218. 
 3 Ves, and Sea, 187, is) Vide infra, 
 
 yen dee
 
 OF A CONTRACT. 257 
 
 Vendee chooses to take as much as he can have, he has a 
 I'ight to that, and an abatement {t). 
 
 Therefore in a case where the estate was sold for 21 
 years, and represented as held under a church lease, usually 
 renewed every seven years, and it appeared that the seller 
 was only entitled for life to part ; the purchaser filed a bill 
 for a specific performance with a reduction. The seller in- 
 sisted that the purchaser might have an option to put an 
 end to the contract, but that he (the seller) ought not to be 
 compelled to take less than the stipulated price. The decree, 
 however, was for a specific perfonnance, with a reduction 
 of the purchase-money, the interest of the seller being less 
 valuable than it had been represented to the purchaser {21). 
 Jjord Eldon has since observed, that the consequence cf 
 this decision was, that if the lives should endure beyond tho 
 period of twenty-one years, the purchaser would have the 
 premises as well as the compensation. In that respect the 
 case was new, and deserved great consideration. The Lord 
 Chancellor added, that in a conversation which he liad 
 with the Master of the Rolls, they inclined to think it 
 might be right upon this reasoning, that the estate was 
 purcbnsed subject to a contingency affecting its immediate 
 value; he could not carry it to market, he could do nothing 
 with it that would make it absolute property in him as if 
 he had an absolute term of twenty-one years ; but as the 
 compensation might be aggravated enormously, beyond the 
 actual value, so it might be much too sma^, and the court 
 would throw the chances together. The only other course 
 was to adopt the principle of indemnity, either by taking 
 security or laying hold of part of the purchase-money, with 
 
 (/) fer Lord Eldon, 10 Ves. and see 2 Vcs. Jun. 439, zce.per 
 
 Jun. 31, 516. The same doctrine Lord Roislyn. 
 
 was laid down by his Lordship in (u) Dale v. Lister, 16 Ves. Jun. 
 
 Wood T. Griffith, 12 Feb. 1818 j 7, cited. 
 
 s a view
 
 i:53 OF THE r-AETIAL EXECUTION 
 
 a viev/ to compensation if the case should arise, and that 
 was open to this difficulty, that the property held subject 
 to the question of indemnity remains unsaleable, unmar- 
 ketable, and of infinitely less value than it would other- 
 wise be. 
 
 In a later case (x), upon a sale of leasehold for lives, the 
 representation by the seller was held to amount to this : 
 that the lessee thereof upon lives, under a church lease, 
 grantetl the lease in question, with cxjvenants, binding liis 
 real and personal representatives to procure renewals to 
 make the complete term sold. It appeared, however, that 
 the covenant to renew v.as limited, and not binding to the 
 extent mentioned, the estate being in settlement, and the 
 covenants not general. The purc/uiser filed a bill for a 
 specific performance, with an allowance. In effect the 
 di^erence was between a covenant by tire lessor binding all 
 his assets real and personal ; and a covenant which only 
 bound that property which the lessor might permit to go 
 from, him to his son, who would be entitled to the property un- 
 der the settlement. Lord Eldon felt great doubt vvhether 
 that could be made the subject of a valuation. The pur- 
 chaser, however, only desired an indemnity upon a real 
 estate, or by part of the purchase-money to be kept in 
 court ; the sellers receiving the dividends. The Lord 
 Chancellor decreed a specific performance, and dirr-cted 
 an enquir)' what was the difference between the ■. alue of 
 the interest actually sold^ and that represented, and such 
 difference to be deducted from the purchase-money ; and 
 if the master should find that he was unable to ascertain 
 such difference in value, or if tlie purchaser should choose 
 to take the title with a sufficient indemnity, he might, and 
 the decree was affirmed upon a rehearing. 
 
 But the general rule, independently of special circiun- 
 
 (x) Milligan v. Cooke, 16 Ves, Jun. V 
 
 Stances,
 
 OF A CONTRACT. ^9 5 
 
 Stances, is, that the court can neither compel a purchaser to 
 take an indemnity nor a vendor to give it (?/). 
 
 Although a purchaser may in most cases insist upon 
 taking the interest which the vendor can give him, yet it 
 seems that equity will not decree an under-lease on 
 an agi-eement to assign, though it appear that the as- 
 signment cannot be made witliout a forfeiture ; for the 
 defendant, in agreeing to assign, might intend to discharge 
 himself from covenants to which he would continue liable 
 by the under-lease {z). This is, however, a defence which 
 a vendor can seldom set up against a purchaser's 
 claim, where the purchaser chooses to accept an under- 
 lease; for an assignee of a lease almost invariably cove- 
 nants to indemnify his vendor from the rent and covenants 
 in the lease, and from these covenants he cannot of course 
 discharge himself by an assignment, any more than by fin 
 under lease. 
 
 So it has been determined by Lord Redesdale, that 
 where, at the time of the contract, the purchaser is fully 
 aware that the vendor cannot execute the agreement, and, 
 consequently, cannot enforce the performance of it; there 
 the agreement must be presumed to have been executed 
 under a mistake, and the purchaser cannot insist upon a 
 performance as to the interest to which the vendor may be 
 actually entitled (u). 
 
 And in a case where a tenant for life, with a power of 
 leasing for 21 years at a rack-rent, agTced to execute a lease 
 for 21 years, and a further lease for 21 years at any time 
 during his life, consequently to execute a lease for 21 years, 
 
 (y) 1 Ves. and Beam. 225 ; yide 332. 
 
 post, ch 7. ^'"^^(^J^^^^^^ («) Lawrenson v. Butler, I 
 
 (a) Anon. E. T. 1790, Fonbl, Scho. and Lef. 13 ; see Mortlock 
 
 n. (r) to 1 Trea. Eq. 21 1 , 2J. edit. v. Duller, 10 Ves. Jud 292. 
 see Mason v. Corder, 2 Marsh. 
 
 s 2 «\hatever
 
 260 or THE PARTIAL EX.ECUTION 
 
 whatever miglit be the increased value of the property at 
 the time the lease should be granted; Lord Redesdale con- 
 sidered it a contract to act in fraud of the power, and that 
 the lessee was not intitled to a specific performance. To 
 obviate this objection the lessee offered to take a renewed 
 lease for 21 years, if the lessor should so long live ; but Lord 
 K^desdale tlioni^ht that this was one of those cases where 
 the plaintiff had no right thus to qualify the contract he 
 insisted upon: there was nothing in the case to shew that 
 satisfaction in the form of damages was not an adequate 
 Toniedy for him. If he had been put into a situation from 
 which he could not extricate himself, the defendant might 
 be called on to make the best title in his power, but nothing" 
 could be more mischievous than to permit a person who 
 knows that another has only a limited power, to enter into 
 a contract with that other person, which, if executed, would 
 be a fraud on the power, and when that was objected to, to 
 say, " I will take the best you can give me." A court of 
 equity ought to say, to persons coming before it in such a 
 way, " make the best of your case with a jury." (h) 
 
 It should be observed that there was another point in the 
 above cause, and the decree was pronounced after consider- 
 able doubts. It seems difficult to reconcile the opinion ex- 
 pressed by Lord Redesdale ^v^th the current of authorities. 
 It was not a necessary consequence of the contract that the 
 lease agreed to be granted would be a fraud on the power, 
 and the purchaser was willing to take the interest which the 
 seller was enabled to grant without risk to himself or injury 
 to the remainder-men. 
 
 If in a case of this nature, the purchaser, on the faith of 
 the agreement, put himself in a situation from which he 
 cannot extricate himself, and is therefore willing to for^o a 
 part of his agreement, that is a circumstance to induce a 
 
 (A) Htrnet t, Yeilding, 2 S«ho, and Lef. 549, vide supra, p. 189. 
 
 court
 
 or A CONTRACT- -261 
 
 court of equity to give relief. Thus in a case before Lord 
 Tliurlow, the incumbent of a living had, with full know- 
 ledo-e of the title, contracted with the tenant in tail, in 
 remainder after a life estate, for the purchase of the advow- 
 son, and on the faith of that agi-eement had built a much 
 better house than he would otherwise have done ; the tenant 
 for life would not join in suffering a recovery, and conse- 
 quently a good title could not be made. Lord Thurlow 
 held, that as the purchaser had, upon the faith of the con- 
 tract, built a good house on the glebe, he ought to have the 
 utmost the vendor could giv€ him ; and therefore directed 
 the vendor to convey a base fee, by le^7ing a fine with a 
 covenant to suffer a recovery whenever he should be enabled 
 to do so by the death of the tenant for life (c). 
 
 If the vendor has granted a lease of the estate which is 
 void by force of a statute, the court ^vill not, on the request 
 of the purchaser, consider the lease as valid, and allow liim 
 a compensation in respect of it (r/). 
 
 SECTION II. 
 
 Of Defects in the Quality of the Estate. 
 
 In most cases on this head the rule " caveat emptor'' 
 applies, and therefore, although there be defects in the 
 estate, yet, if they are patent, the purchaser can have no 
 relief (e). 
 
 Thus, where a meadow was sold without any notict? of a 
 footway round it, and also one across it, which of course 
 
 (c) Lord Bolingbrokc'i case, (e) See the latroductory Chap. 
 cited, 1 Scho. and Lef. 19 ; n. (a). ter ; and see Lowndes v. Lane, 2 
 
 (d) Morris v, Preston, J Ves. Cox. 363. 
 Jun. 547. 
 
 s 3 lessened
 
 2G3 OF DEFECTS IN THE QUALITY 
 
 lessened its value, Lord Rosslyn decreed [a specific perform- 
 ance with costs, as he could not, he said, help the purchaser 
 who did not choose to inquire (/). It was not a latent de- 
 ject. Lord JNIanners has said that he believed the bar was 
 not very well satisfied ^vith the decision, although, as he 
 observed, the purchaser was undoubtedly extremely negligent 
 not to look at the estate before he purchased it (g). 
 
 And here a case {k) may be introduced, where the sub- 
 ject of the contract was a house on the north side of the 
 River Thames, supposed to be in the county of Essex, but 
 which turned out to be in Kent; a small part of which 
 county happens to be on the other side of the river. The 
 purchaser was told he would be made a churchwarden of 
 Greenwich, when his object was to be a freeholder of Essex; 
 yet he was compelled to take the house. 
 
 This decision, however, seems to be opposed by a case 
 before Lord Talbot. An agreement was entered into for 
 the purchase of a house for a coffee-house. It was found 
 that a chimney could not be made convenient for a coffee- 
 house ; but nevertheless, the vendor filed a bill against the 
 purchaser, to compel him to perform the agi'ecmcnt. Lord 
 Talbot dismissed the bill, merely because the tenant would 
 he obliged to take it for a purpose he did not want (i). 
 
 But it may be remarked, that it is no bar to a specific 
 performance, that the conveyance will not have the operation 
 which the vendor thought it v.ould. Thus where a tenant 
 for life of a copyhold purchased the reversion in the hope of 
 extinguishing contingent remainders, and afterwards finding 
 that the conveyance would not affect the remainders, brought 
 a bill to be reheved against the security which he had given 
 
 (/) Oldfield V. Round, 5 Ves. Exchequer, 6 Ves. Jun 678» 
 
 Jun. 508. cited. 
 
 (g) 1 Ball and Eeatty, 250 ; (t) 1 Vos. 307; and see 13 
 
 and see Logge v, Croker, t^. 506. Ves. Jun, 78= 
 
 (.^) Shirley v, Davics, io the 
 
 for
 
 or THE r.sTATF. <2€3 
 
 for the purchase-money ; the court gave him liis option either 
 to pay the principal, interest and costs, or to have his hill 
 dismissed with costs {k). 
 
 So in a case where, under the legal construction of the 
 terms of an agreement for a lease, the option to determine 
 the lease was in the lessee only, and it v;as argued against a 
 rpeeific performance, that this was contrary to the intention, 
 the Master of the Rolls said that a specific performance of a 
 written agreement cannot bo denied, because the meaning of 
 the parties does not appear (/). 
 
 But where a vendor gives a false description of the estate, 
 the purchaser may at law rescind the contract. As if an 
 estate is stated to be but one mile from a borough towT., and 
 it turns out to be between three and four, the contract is 
 voidable by the purchaser (7;^). And the same rule must 
 prevail in equity where the misdescription, as in this case, is 
 not from the nature of it a subject of compensation. 
 
 So in a case where the estate was described to liave lately 
 undergone a thorough repair, whereas it was iu a complete 
 state of ruin, and ordered to be pulled down by the district 
 surveyor, the purchaser was allowed to rescind the contract (71). 
 And where the state of the repairs was falsely represented, 
 by the seller knowing that the house had the dry rot, without 
 communicating that fact to the purchaser, upon a bill filed 
 by the seller, a specific performance was decreed with a com- 
 pensation to the purchaser {0). *" ^^^ ^^^ ^ 
 
 But if the purchaser knev; that the description was false, /^ ^/ (^y^^ 
 he cannot, it seems, take advantage of it either at law or in 
 equity. 
 
 {Ji) Mildmay t. Hungerford, 2 p 33 j and see Fenton v. Browne, 
 
 Vern. 243. 14 Ves. Jun. 1 44, v. Christie, 
 
 (0 Price V. Dyer, MS. ; Rolls. 1 Salk. 28, by Evans. ^ ylf^t^ yi,^^^^^^ 
 S. C. 17 Ves. Jun. 356 («) Loyes v. Rutherford, K. B: ^ 
 
 (m) Duke of Norfolk T. Wor- 16 May 1809. 
 thy, 1 Camp. C», 337, 'cide ruprc, (o) Grant t. Munt, Coop. 173. 
 
 s 4 Thus
 
 264 OF DEFECTS IN THE QUALITY 
 
 Thus in a case before Sir William Grant {p), where an 
 estate was described as being within a ring fence, it ap- 
 peared, that the estate was intersected by other lands, 
 and did not answer the description, but that the purchaser 
 knew the situation of the estate ; his honour (after express- 
 ing a doubt whether sucli an objection was a subject of com- 
 pensation, as it was not certain that a precise pecuniary value 
 could be set upon the difference between a farm compact in 
 a ring fence, and one scattered and dispersed with other 
 lands,) said, that the puroliaser was clearly excluded from 
 insisting upon that as an objection to complete the contract. 
 He saw the farm before he purchased ; he had lived in the 
 neighbourhood all his life. This variance was the object of 
 sense ; he must have known whether the farm did lie in a 
 ring fence or not ; and upon the same ground, that the pur- 
 chaser could not get rid of the contract on account of the 
 difference in the description of the farm, his honor deter- 
 mined he could not be entitled to compensation. If a com- 
 pensation was given to him, he would get a double allowance; 
 for if he had knowledge that what he proposed to purchase 
 did not answer the description, it must be taken that he bid 
 so much the less. 
 
 This case, we observe, went a step further than either the 
 case before the court of Exchequer, or that before Lord 
 Rosslyn, in neither of which was there any warranty or false 
 description. But in this case it was expressly stated, that 
 the whole estate was within a ring fence; but the Master of 
 the Rolls thought that circumstance immaterial, as the pur- 
 chaser knew the description vv^as false; and his honor appears 
 to have groimded his decision on the doctrine, that even at 
 law a warranty is not binding where the defect is obvious, 
 and put the cases of a horse with a visible defect, and a 
 house without a roof or windows warranted as in perfect re- 
 pair. 
 
 (p) Dyerv. Hargrave, IG Ves. Jun. 505. 
 
 But
 
 OF THE ESTATE. 265 
 
 But where a particular description is given of the estate, 
 which turns out to be false, and the purchaser cannot be 
 proved to have had a distinct knowledge of the actual state 
 of the subject of the contract, he will be entitled to a com- 
 pensation, although he may be compelled to perform the 
 contract. 
 
 Thus, in the case before the Master of the Rolls, the 
 particular described the house as being in good repair, and 
 the farm as consisting of aiable and marsh land, in a high 
 state of cultivation. It appeared, however, t-^at the house 
 was not in good repair, and that the land w^as not hi a high 
 state of cultivation. The judgment contains the facts of 
 the case, and is highly satisfactory. His h nor said, 
 " These objections are such as a man may have an indistinct 
 knowledge of, and he may have some apprehension that, in 
 those respects, the premises do not completely coi-respond 
 with the description, and yet the description may :iot be so 
 completely destroyed as to produce any great difference in his 
 offer. As to the marsh land, it is very uncertain, whether, 
 by any view, it was possible for him to judge of that. It is 
 stated by many witnesses, that the season of the year wa» 
 just at the breaking of a frost, and represented that no man 
 could, at that time, say whether the land was well or ill cul- 
 tivated. So he may have seen some trifling defects in the 
 house, and might not intend to make tlie objection if thev 
 turned out to be nothing more than they appeared upon the 
 surface. He might consider them too trivial, and not mean 
 to claim compensation for an objection so insignificant. But 
 afterwards, when he came to examine, according to this evi- 
 dence, he discovered that the house was materially defective, 
 and very much out of repair. Admitting that he might, by 
 minute examination, make that discovery, he was not driven 
 to that examination ; the other party having taken upon him 
 to make a reprcRentation: otherwise he would be exonerated 
 
 fiom
 
 2QG OF DEFECTS IN THE QUALITY 
 
 from the consequence of that in every case where, hy minute 
 examination, the discovery could he made. The purchaser 
 is induced to make a less accurate examination hy the repre- 
 sentation which he had a right to believe. This purchaser, 
 therefore, is entitled to compensaticn for the defects of the 
 house, and the cultivation of the marsh land." 
 
 But notwithstanding that the foregoing case has establish- 
 ed, that the repairs necessary to a house are a subject of 
 compensation, although the house is described to be in good 
 repair, yet his honor seemed to admit, that if the purchaser 
 wanted possession of the house to live in at a given period, 
 by which time the repairs could not be com'jileted, he ought 
 not to be bound to complete the contract (q). 
 
 Where the defect is a latent one, and the purchaser can- 
 not by the greatest attention discover it, if the vendor be 
 aware of it, and do not acquaint the purchaser with the fact, 
 he may set aside the contract at law, although he bought the 
 estate with all faults (?'); and equity will not enforce a 
 specific performance (s). 
 
 This was decided at law by Lord Kenyon at nki prius^ 
 upon the sale of a ship. It was insisted, for the seller, that 
 the rule caveat emptor appHed; but Lord Kenyon said, that 
 there are certain moral duties, which philosophers have 
 called duties of imperfect obligation, such as benevolence to 
 the poor, and many others, which courts of law do not en= 
 force. But, in contracts of all kinds, it is of the highest 
 importance that courts of law should compel the observance 
 of honesty and good faith. This was a latent defect, which 
 the plaintiffs could not, by any attention whatever, possibly 
 discover; and which the defendants knowing of ought to 
 have disclosed to the plaintiffs. The terms to which the 
 
 (q) Vide infra, Ch. 8. (*) Oldfield T. Round, 5 Ves. 
 
 (r) Mdlish V. Mottcux, Peake's Jan. 508. 
 Ca. 115. 
 
 plaintiffs
 
 OF THE ESTATE. 2G7 
 
 plaintiffs acceded, of taking the ship \nth all faults, and 
 vrithout warranty, must be understood to relate only to 
 those faults which the plaintiffs could have discovered, or 
 which the defendants were unacquainted \nth. 
 
 In a late case {t) the same point arose before Lord Ellen- 
 borough at }iisi "prins', but ultimately it was not necessary 
 to decide it. Lord Kenyon's decision was cited. Lord 
 EUenborough said, that he could not subscribe to the doc- 
 trine of that case, although he felt the greatest respect for 
 the authority of the Judge by whom it was decided. Where 
 an article is sold with all faults, he (Lord EUenborough) 
 thought it was quite immaterial how many belonged to it 
 within the knowledge of the seller, unless he used some 
 artifke to disguise them, and to prevent their being dis- 
 covered by the puj'chaser. The very object of introducing 
 such a stipulation is, to put the purchaser on his guard, and 
 to throw upon him the burthen of examining all faults, both 
 secret and apparent. A man may be possessed of a horse 
 he knows to have many faults, and wish to get rid of him, 
 for wliatcver sum he would fetch. He desires his servant to 
 dispose of him; and, instead of giving a warranty of sound- 
 ness, to sell him mth all faiths. Having thus laboriously 
 freed himself from responsibility, is he to be liable, if it be 
 aftenvards discovered that the horse was unsound ? Why 
 did not the purchaser examine him in the market when ex- 
 posed to sale ? By acceding to buy the horse with all faults, 
 he takes upon himself the risk of latent or secret faults, and 
 calculates accordingly the price which he gives. It would 
 be most inconvenient and unjust if men could not, by using 
 the strongest terms which language affords, obviate disputes 
 concerning the quality of the goods which they sell. In 
 a contract such as this, his Lordship thought there was no 
 firaud, unless the seller, by positive means, renders it impos- 
 
 it) Baglehole v. Walteri, 3 Camp. Ca 154 ; leo 1 Ball wd Bcatty, 515. 
 
 sibU
 
 268 or DEFECTS IN THE QUjLLITY 
 
 sible for the purchaser to detect latent faults ; and he madt 
 no doubt, that this would be held as law when the question 
 should come to be deliberately discussed in any court of jus- 
 tice. 
 
 In a still later case upon the sale of a ship. The particu- 
 lar stated amongst other things, that the hull was nearly as 
 good as when launched. And after stating when she was 
 to be seen, added, " with all faults as they now lie." Then 
 followed an inventory of tho stores, to which the following 
 declaration was added, " the vessel and her stores to be taken 
 with all faults as they now lie, without any allowance for 
 weight, length, quality, or any defect whaUoever.^' The 
 ship was quite unseaworthy. She belonged to underwriters 
 to whom she had been abandoned. The agents for the sale 
 must have known her defects, and she was kept constantly 
 afloat, so that her defects could not be discovered. The 
 person who framed the particular had not examined the ves- 
 sel [u). Mansfield, C. J. said that these words were Aery 
 large, to exclude the buyer from calling upon the seller for 
 any defect in the thing sold, but if the seller was guilty of 
 any positive fraud in the sale, these words will not protect 
 him. There might be such fraud either in a false repre- 
 sentation, or in using means to conceal such defect. He 
 thought the particular w^as evidence here by way of repre- 
 sentation, that states the hull to be nearly as good as when 
 launched, and that the vessel required a most trifling outfit. 
 Now was this true or false? If false it was a fraud, which 
 vitiates the contract. What was the fact ? The hull was 
 worm-eaten, the keel was broken, and the ship could not be 
 rendered seaworthy without a most expensive outfit. The 
 agent says, that he framed this particular without knovdng 
 any thing of the matter. But it signifies nothing whether 
 % man represents a thing to be different from what he knows 
 
 iu) ScliBeid«r v* Heath, 3 Ctmp, €•• 506. 
 
 it
 
 OF THE ESTATE. 2G9 
 
 it to be, or whetlier he makes a representation wlilcli he does 
 not know at the time to be true or false, if in point of fact 
 it turns out to be false. But besides this, it appears here, 
 that means were taken fraudulently to conceal the defects in 
 the ship's bottom. These must have been known to tlie 
 captain, who was to be considered the agent of the owners, 
 and he evidently, to prevent their being discovered by per- 
 sons disposed to bid for her, removed her from the ways 
 where she lay dry, and kept her afloat in the dock till the 
 sale was over. Therefore, consistently with the decided 
 cases upon this subject, the learned judge was of opi- 
 nion, that the purchaser was entitled to recover back his 
 deposit. 
 
 In a case which occurred a few months before, upon the 
 sale of a ship, where the court held that in point of fact 
 there was no fraud, Mr. Justice Heath said, tliat the 
 meaning of selling " with all faults," is, that the purchaser 
 shall make use of his eyes and understanding to discover 
 what faults there are. He admitted that the vendor was not 
 to make use of any fraud or practice to conceal faults. The 
 learned judge adhered to the doctrine of Lord Ellcnborough 
 above-stated without any difficulty. Mr. Justice Chambre 
 held there must be evidence of fraud to enable the court to 
 depart from the WTitten agreement. Mr. Justice Gibbs 
 agreed with Lord Ellenborough's doctrine. Even if there 
 had been a representation it would not have availed. He 
 held, that if a man brought him a horse and made any re- 
 presentation whatever of hi? quality and soundness, and 
 afterwards they agreed in writing for the purchase of the 
 horse, that shortened and corrected the representations, and 
 whatsoever terms were not contained in the contract would 
 not bind the seller. But the learned judge agreed that 
 fraud would not be done away by the contract, and he men- 
 tioned the case of a sale of a house, where the seller being 
 
 can-
 
 ^70 OF DEFECTS IN THE QUALITY 
 
 conscious of a defect in a main wall plaistered it up and pa* 
 pered it over, and it was held that as the seller had expressly 
 concealed it, the purchaser might recover (x). As the law 
 now stands, unless there be actual fraud, the WTitten con- 
 tract cannot be avoided. 
 
 But the ground and basis of an action in a case of this 
 nature, tor recovery of a deposit, where the contract is in 
 fie?i; or oi' damages, where the contract is actually executed* 
 is the scienter ; and therefore, if the vendor was not aware 
 of the defect, he will not be answerable for it. Nor will 
 trifling defects be sufficient foundation for such an action. 
 
 Thus in a case {y) where a purchaser brought an action 
 against a vendor, to recover damages for having sold him a 
 house knowing it had the dry rot ; it appeared, that the 
 house was situated in a clayey soil, and that the floor lay 
 near the ground, by which some of the timbers had rotted ; 
 but the vendor was not aware of the defects, and the pur- 
 chaser was nonsuited. Lord Kenyon said, the circum- 
 stances that had been proved in this case might be de- 
 scribed by a word that was used by one of the witnesses ; 
 they were mere bagatelles. If these small circumstances 
 were to be the foundation of an action, every house that 
 ^was sold would produce an action. If a broken pane 
 of glass that might be found in a garret window, perhaps, 
 had not been described by the seller, it would be the ground 
 of an action. If he was to consider himself as a witness in 
 the cause, he could say he had met with something of this 
 kind, and he never thought himself imposed upon, because 
 now and then some rotten boards and rotten joists might be 
 found about a house. Besides, there was no imposition, no 
 mala fides in this case. 
 
 {x) Pickering y. Dowson, 4 (y) Bowles T# Atkinson, N. P. 
 
 Taunt. 779 ; see Jones t. Bowden, MS. 
 1^.847. 
 
 Although
 
 Ot* THE ESTATE. 271 
 
 Although the purchaser might, with proper precaution, 
 have discovered the defect ; yet if, Juring the treaty, the 
 vendor industriously conceal the fact, equity will not assist 
 him. 
 
 Thus, upon a suit for a specific penormance, the defence 
 was, that the estate was represented to the defendant as 
 clearing a neat value of 90/. per ann. and no notice was taken 
 to him of the necessary repair of a wall to protect the estate 
 from the River Thames, which would be an out-going of 50/. 
 per ann. And it appearing, upon evidence, that there had 
 been an indiistrious concealment of the circumstances of the 
 wall during the treaty, the Lord Chancellor dismissed the 
 bill, but vdthout costs (z). 
 
 And here a case may be mentioned, where an estate ap- 
 peared to be subject to a light of entry to dig for mines; 
 the purchaser did not object to the title on this ground, 
 but insisted upon a specific or '"jnaance with a compensation, 
 which was accordingly decreed {a). 
 
 SECTION III. 
 
 Of Defects in the Qiimitity of the Estate. 
 
 If a purchaser of an estate thinks he has purchased hona 
 Me a part which the vendor thinks he has not sold, that is 
 a ground to set aside the contract, that neither party may be 
 damaged; because it is impossible to say, one shall be forcecl 
 to give that price for part only which he intended to give for 
 the whole ; or that the other shall be obliged to sell the 
 
 (t) Shirley t. StmttOD, 1 Bro. (a) Seaman t, Yawdrey, 16 Vei. 
 
 C. C 440. Jun. 390, 
 
 whole
 
 272 Of I>ErKCTS IN THE QUANTITY 
 
 wliole for what he intenled to be the price of part only (5), 
 Upon the other hand, if both understood the whole was to 
 he conveyed, it must be conveyed. But again^^ if neither 
 understood so, if the buyer did not imagine he was buy- 
 in £? any more than the seller imagined he was gelling 
 the part in question, then a pretence to have the whole con- 
 veyed, is as contrary to good faith on his side, as a refusal to 
 sell would be in the other case (c). 
 
 If an estate be sold at so much per acre, and there is a 
 deficiency in the number conveyed, the purchaser will be 
 entitled to a compensation, although the estate was estimated 
 at that number in an old survey (d). 
 
 The rule is the same though the land is neither bought 
 nor sold professedly by the acre ; the presumption is, that 
 in fixing the price, regard was had on both sides to the 
 quantity, which both suppose the estate to consist of. The 
 demand of the vendor, and the offer of the purchaser, are 
 supposed to be inAuenced in an equal degree by the quan- 
 tity, which both believe to be the subject of their bargain. 
 The general rule therefore is, that where a misrepresenta- 
 tion is made as to the quantity, though innocently, the right 
 of the purchaser is to have what the vendor can give, with 
 an abatement out of the purchase-money, for so much as the 
 quantity falls short of the representation {e). 
 
 But w'here the lands m a conveyance are mentioned to 
 contain so many ?.cres by estimation^ or the words " more 
 or less" are added, if there be a small portion more than the 
 quantity, the vendor cannot recover it ; and if there be a 
 small quantity less, the purchaser cannot obtain any coin- 
 
 ' (6) See 13 Ves. Jun. 427 ; and 389. 
 
 Bee Higginson t. Clowes, 15 Ves. (d) Sir Cloudesly Shovel t. Bo- 
 
 Jun. 616, stated as to this point, gan, 2 Eq. Ca. Abr, 688. pi. 1. 
 
 8upra, p 26 (c)Hill t. Buckley, 17 Ves. 394. 
 
 (c) Per Lord Thurlow. See 1 Per Sir William Grant, 
 Ves. Jun. 21 1 § and see 6 Ves^ Jun. 
 
 pemation
 
 OF THE ESTATE. 273 
 
 peusation in respect of the deficiency (/*). Indeed a case 
 is said to have been decided, where a man conveyed his land 
 by the quantity of 100 acres, were it more or less, and it 
 was not above 60 acres ; but the purchaser had no relief, 
 because it was his own laches (g). 
 
 That however was the case of an actual conveyance. 
 Where the contract rests in Jleri, the general opinion has 
 been that the purchaser, if the quantity be considerably less 
 than it was stated, will be entitled to an abatement, altliougli 
 the agreement contain the words Tnore o?' less, or by est una ^ 
 Hon (h), 
 
 But in a late case, where the estate was stated to contain 
 % estiviation 41 acres, he the same more oi^ less ; and upon 
 an admeasurement, the quantity proved to be only between 
 35 and 36 acres; and the purchaser claimed an abatement : 
 the late IMaster of the Rolls decided against the claim. His 
 Honor said, that tlie effect of the words " more or less"' 
 added to the statement of quantity had never been yet ab- 
 solutely fixed by decision ; being considered sometimes as 
 intending to cover only a small difference the one way or 
 the other ; sometimes as leaving the quantity altogetlier un- 
 certain, and throwing upon the piu*chaser the necessity of 
 satisfying himself with regard to it. In this instance, the 
 description was rendered still more loose by the addition of 
 the words " by estimation." The estimated extent of ground 
 frequently proves quite different from its contents by actual 
 admeasurement. It cannot be contended, that the terms 
 " estimated'* and *' measured" liave the same meaning. If 
 a man was told that a piece of land was never measured, 
 but was estimated to contain 41 acres, would that represent- 
 ation be falsified, by shewing, that wlicn measured it did not 
 contain the specified number of acres. The only contradic- 
 
 if) ''^^y'^rtJ V VVarrup, Finch, v. Parkin, 1 Esp. Ca. 229, 
 
 310; >♦ • Marquis of I'ownshend {(() Anon. _ Freein. 106. 
 
 V. Stangruom, 6 Ves. Jun. 3>8; (/i) Hill v. Buckley, 17 Vfll. 
 
 JlU8hworth*8 case, Clay. 46 ; Neale 394. 
 
 T tion
 
 i7i OF DEFECTS iS THE QUANTITY 
 
 tion to tliat propositiori would be, tliat it had not been cstf-^ 
 mated to contain so much (i). 
 
 The case of Day v. Fynn {k) however seems a considera- 
 ble authority that at least the words more or hss ought only 
 to clear a small deficiency where the contract rests in fieri. 
 There in ejectment, the plaintiff declared on a lease for 
 years of a house, and 30 acres of land hi D ; and that J. S. 
 did let to hiivhthe said messuage and 30 acres, by the name 
 of liis house in 13, and ten acres of land tliere, sive plus sive 
 minus :■ it was moved in arrest of judgment ; because 
 that 30 acres cannot pass by the name of I' acres, dve 
 plus sive minus ; and so the plaintiff had not conveyed 
 to him 30 acres, for when ten acres are leased to him 
 sive plus sive minuSj these words ought to have a rea- 
 sonable construction to pass a reasonable quantity, either 
 more or less, and not twenty or thirty acres more. Yel- 
 verton agreed for the word 10 acres, sive plus sive ^ninus-, 
 ought to be intended of a reasonable quantity, more 
 or less, by a quarter of an acre, or two or three at most ; but 
 if it be 3 acres less than 10, the lessee must be contented 
 ivitli it. Quod Fenner and Crook concesserunty and judg- 
 ment was staid. 
 
 But however the rule may be finally settled, yet a seller 
 knomng the true quantity, would not be allowed to practice 
 a fraud, by stating a false quantity, with the addition of th« 
 words " more or less," or the like ,/). 
 
 If an estate be represented as containing a given quan- 
 tity, although not professedly sold by the acre, the circum- 
 stance that the purchaser was intimately acquainted with the 
 estate, would not necessarily imply knowledge of its exact 
 contents; while a particular statement of the quantity would 
 naturally convey the notion of actual admeasurement ; and 
 
 (i) Winch V. Winchester, 1 Veg. (/) "<••' D e of N.r oik v 
 
 and Beam, 375. Worthy, 1 Cain. Ca. 337. jwprff, 
 
 (t) Owen, 133 ; anrl sfe the p. 34, and \ Ves, apd lieatn. 377. 
 cufes cited aboie. 
 
 therefore
 
 OF THE ESTATr. O'jf; 
 
 ^lerefore the court would not be warranted in inferring tlmt 
 the purchaser knew the real quantity (;«}. For, if the pur- 
 chaser did know the real quantity, of course he coiild not 
 claim any allowance for the deficiency. / 
 
 The principle upon which an abatement in these cases is 
 made, is, to place the parties in the situation in which they 
 would have stood, if there had been no misrepresentation. 
 Therefore where a man purchased a wood, wliich was, by 
 mistake, represented to contain nearly 26 acres more tliaa 
 it did, but the purchaser was, in the coiu-se of the ncgotia- 
 tion, furnished with the value of the woods qua wood, so 
 that he obtained theright quantity of wood but not of soil, the 
 abatement was decreed to be only so much as soil covered witli 
 wood would be worth, after deducting the value of the wood (7?\ 
 
 Where lands are shown to a purchaser as part of his 
 purchase, he will be entitled to them, although expressly 
 excepted in his conveyance by name, provided he did not 
 know them by that name (o). 
 
 So if a man purchase an estate by a particular, and in the 
 conveyance part of the land is left out, equity will relie\ e 
 him ip) ; but it must be clear that he did purchase by the par- 
 ticular, because it is not a writing within thestatute of frauds; 
 and therefore, unless that be the case, or the agreement 
 can be otherwise proved, the court cannot relieve (rj). 
 
 On the other hand, the court will equally relieve a 
 vendor, where more land has passed than was contracted 
 for ; although in an early case (r) (I) tliis relief was de- 
 
 (w) Winch V, AVinchester, 1 Clia. Rep. 7. 
 
 Ves. and Beam. 375. ^ (q) Cass v. Waterliouse, Prec. 
 
 (n) Hill T. Buckley, 17 Ves. Cha. 29; see Clinan. Cooke, i 
 
 Jun. 394. ^ Scho. and Lef. 22 ; and see ch 3, 
 
 (o) Oxwick V. Brockett, 1 Eq. supra; and 2 Dow. 301. 
 
 Cft. Abr. 355. pi. 5. (r) Clifford v. Laughton, Toth. 
 
 (p) Prec. Cha. 307, arguendo ; 83. 
 and see Nelson v. Nelson, Nels. 
 
 (I) Probably the defendant had purch;wed without notice from tt» 
 Jint p\ircljaser, 
 
 T Hi nied ;
 
 276 OF DEFECTS IN THE QUANTITY 
 
 nied ; because the defciidc'iiit v/as a purcliaser upon vi^ 
 luable consideration. But it is now clear, that if land be 
 expressly conveyed, or pass by general words, which was not 
 mentioned in the particular by which the purchase was 
 made, or was not intended to be conveyed, the purchaser 
 will be decreed to re-convey it (.?). 
 
 -And where a purchaser took a conveyance of an estate 
 from his own instructions, he was held not to be entitled to 
 lands answering the general description in the advertise- 
 ments of sale, but which were not included in his convey- 
 ance, nor in a more particular description from which he 
 prepared his instructions {t). 
 
 To come to a right conclusion on this branch of our sub- 
 ject, we must be informed that an acre does not always 
 contain the same superficial quantity of land. The word 
 acre at first denoted, not a deteraiined quantity of land, but 
 any open ground or field. It afterwards signified a measured 
 portion of land, but the quantity varied, and was not fixed 
 until the statute (I) de terris mensurandis (w), according to 
 which an acre contains 160 square perches; so that every 
 acre is a superficies of 40 perches long, and four broad ; or 
 in that proportion, be the length or breadth more or less. 
 The length of the perch was, previously to the statute of 
 Edward, fixed at five yards and a half, or sixteen feet and a 
 half, by the statute called compositio 'ulnarwn et perti- 
 
 {s) Tyler v. Beversham, Finch (m) 33 Edw. I. j and see 24 H. 
 
 80, 2 Cha. Ca. 195 ; see Gibson 8, c. 4. 2 Inst, 737 ; Co. Litt. 69, 
 
 ▼. Smith, Barnard, Cha. Ca. 491. a ; Spelm. Gloss, v. acra, pqriicaia 
 
 (/) Calverleyv. Williams, 1 V'es. terrce , pertica^ pes forestcB rodu 
 
 Jun. 210. terrce. Cow. Interp. v. Acre. 
 
 (I) It was formerly holden not to be a statute, but only an ordinance, 
 Stowe's case, Cro. Jac, €03 ; but this bas since been orer-ruled, Rex r. 
 Everard* 1 Lord Pvaym, 638, 
 
 carum
 
 OF THE ESTATE. 277 
 
 carum {x), and the act of Edward must of course be con- 
 strued with reference to this standard. Lord Kenyon seems 
 to have thought it impossible to contend, that a custom 
 should prevail that a less space of ground than an acre 
 should be called an acre [y) ; but in severjU places the perch 
 is measured with rods of different lengths, and notwith- 
 standing Lord Kenyou's dictum^ consuetudo loci est ohser- 
 vanda (z), so that a greater or less space of ground than a 
 statute acre may, in compliance with the custom of the place 
 where the land lies, be called an acre. In some places the 
 perch is measured by a rod of twenty four feet, in some by 
 one of twenty feet (a), and in others by one of sixteen 
 feet (b). And we are now to enquire in what cases the cus- 
 toDi of the country in this respect shall or shall not prevail. 
 
 In adversary -writs tiic number of acres are accounted 
 according to the statute measure (c), but in fines, and 
 common recoveries, which are had by agreement and consent 
 of parties^ the acres of land are according to the customary 
 and usual measure of the country, and not according to the 
 statute (d). 
 
 So, which is more to cur present purpose, where a man 
 agrees to convey (c), or actually conveys {J') any gixcu 
 
 (x) See 4 lust. 274. (c) Andrew's case, Cro, Eliz. 
 
 (^) Noble V. Durell, 3 T. Rep. 476, cited. 
 
 271 ; and see Hockin t. Cooke, 4 (d) Sir John Bruyn'scase, 6 Co. 
 
 T. Rep, 314 J Master of St. Cross b7, a. cited ; Waddy v. Newton, 8 
 
 V. Lord Howard de Walden, 6 T. Mod. 276 ; see Floyd v. Bethill, 1 
 
 Rep. 338. Ilolls Rop. 420, yA. S ; and see 
 
 (s) 6 Rep. 67, Ji. Treswallen t. l\nliules, 2 Rolls 
 
 (a) Crompt. on Courts, 222, Rep. 66; 12 Vin. p. 240. 
 
 who cites a case in tlie Exchequer, (e) Some v. Taylor, Cro. Eliz, 
 
 celated to liim by one of the Ba- 665. 
 
 rons;andalso 47 E.3, [fo. 18, a, (/)47E. 3, 18, a. pi. 85 j 6 
 
 pi. 35.] ; and see BarLsdale v. Co. 67, a. ; Morgan ▼. Tedcastle, 
 
 Morgan, 4 Mod. 185. Poph. 55; Floyd v. B.thill, 1 Rolls 
 
 (6) Co. Litt. 5 b. J see Dalt. c. Rep, 420, pi. 8 ; Andrew's case, 
 
 112,5,25. Cro. Eliz. 176, cited. 
 
 T 3 number
 
 S78 OF DEFECTS IN THE QUANTITY OF THE ESTATE. 
 
 number of acres of land, wliieh are known ])y estimations 
 or limils, there the acros shall be taken according to the 
 estimation of the country where the land lies, be they more 
 or less than the measure limited by the statute ; for they 
 pass ajs they are there known, and not according to the 
 measure by statute. 
 
 But if a man possessed of a close containing twenty 
 acres of land by estimation, which is not eighteen, grant 
 ten acres of the same land to another, there the gi-antee 
 shall have ten acres according to the measure fixed by the 
 statute, because the acres of such a close are not known by 
 parcels or metes, and bounds, and so this case differs from 
 the one immediately preceding it (g). And it is said, that 
 if one sells land, and is obhged that it contain twenty 
 acres, the acres shall be taken according to the law, and not 
 according to the custom of the country {h). 
 
 (g) Morgan T.Tedcastle, Poph. (h) Wing t, Earle, Cro, EHz, 
 
 "^-^i 267; 
 
 CM>.^«
 
 .{ 279 ) 
 
 CHAPTER VII. 
 
 ^F THE TITLE WHICH A PURCHASER MAY REQUIRE. 
 
 I. J\ puPvCHASER has a riglit to require a title commenc- 
 ing at least 60 years previously to the time of his pur- 
 chase ; hecause the statute of limitations {a) (I) could not 
 in a shorter period confer a title. In Paine v. IMeller 
 {b), Lord Eldon seemed to be of opinion, tr.at an abstract 
 not going further back than 43 years, was a serious objec- 
 tion to the title. 
 
 E\cn CO years are not sometimes sufficient. For instance, 
 if it Uiay reasonably be presumed from the contents of the 
 abstract, that estates tail were subsisting, the purchaser may 
 demand the production of the prior title. The statutes of 
 limitations cannot in sucli case be relied on ; remainder men 
 having distinct and successive rights, upon which at least the 
 statute of James can only begin to operate as they fall into 
 possession. It may be thought even in the common case of 
 a man claiming by descent, a reversion expectant upon par- 
 
 (a) 32 H.n.VllI.c. 2,21 Jac. well v. Harris, 1 Taunf. -130. 
 J. c. 16. Fide poit, and see Barn- (b) 6 Vts. Jun. 349. 
 
 (1) The courts however are so anxious to protect a long possession 
 that no plaintitT is enfitleil to su little favour as u piaintitf in a writ of 
 right; stc Charlwood v. Morgan, Haylis v. MaaDiog^ 1 New, Rep, 64, 
 233 3 M»idinent t. Jukes, 2 New. Uep. 429. 
 
 S 4 ticulftr
 
 i8() br IHE TITLE WHICH 
 
 ticular estates created by his ancestor's will, that a writ of 
 right will not lie after 60 years from his ancestor's death, al- 
 though the particular estates have but recently determined. 
 But however this may be, the objection still remains, foi' 
 an ejectment may be brought at any time within '20 years 
 after the estate falls into possession. 
 
 So, if aii abstract begin with a conveyance by a person 
 who is stated to be heir at law of any person, the purchaser 
 may require proof of the ancestor's intestacy. 
 
 To pursue this point is, in this place, impracticable, so 
 numerous are the cases in which counsel are compelled to 
 tequire the production of the prior title. 
 
 Of course a purchaser may, after notice of a defect in 
 ihe title, by his conduct wave the objection ; but Lord Eldon 
 has determined, that where an abstract is laid before coun- 
 sel who approves the title, his approbation is not to be 
 taken as against the person consulting him, as a waver of 
 all reasonable objections. The court cannot compel a speci- 
 fic perfonnance, upon the ground of an opinion wliich it 
 may think wrongs The purchaser may either take an opinion 
 from some ether counsel, or the one first consulted may 
 correct his error in a further opinion (c). This, it may be ob- 
 served, was always the understanding of the profession. 
 
 li. Under tliis head we must consider the much agitated 
 jpointi whether a jpurchaser of a leasehold estate can insist 
 upon the production of the lessor's title. 
 
 The general practice of the profession is to call for an 
 abstract of the title, but a lessee is not often able to comply 
 with the demand. At the time the lease is granted, the 
 
 (c) Deverell t. Lord BoUon, 18 Ves. 505. 
 
 title
 
 A. PURCHASER MAY REQUIRE. SSl 
 
 iitle is rarely investigated^ or even thought of; and a lessor 
 cannot be advised voluntarily to submit his title to the 
 examination of strangers. As my Lord Eldon remarked 
 (cZ), the Newcastle case is a good lesson upon this subject 
 'of production. The corporation produced their charters to 
 Satisfy curiosity ; some persons got hold of them, and the 
 consequence was, the corporation lost 7,000/. a year. 
 
 The numerous cases in the books where lessees, and per- 
 sons claiming under them, have been evicted on account of 
 defects in the titles of their lessors, strongly evince the dan- 
 ger of taking a lease without investigating the landlord's 
 title. No title can be depended upon, however long the 
 estate may have been in the same family. There may be a 
 defect in a settlement, or the person in possession may have 
 a partial estate only, with a power of leasing. All the leases 
 of the Pulteney estate were set aside on account of a power 
 of leasing not having been duly pursued ; nor is this the 
 only estate of which the leases have been vacated. Besides, 
 mthout an abstract of the title, a purchaser cannot even 
 ascertain that the lessor had not mortgaged the ^state pre- 
 viously to granting the lease, in which case (as against the 
 mortgagee) the lessee, and consequently any purchaser from 
 him, would be a mere tenant at will (e)', and his only 
 remedy would be cither to redeem the mortgage, or tobrin"" 
 an action on the lessor's covenant for quiet enjoyment. 
 
 A lessee is a piu-chaser pi'o tantOy and it should therefore 
 seem that he is not only entitled to call upon the lessor for 
 an inspection of his title, but ^vould not meet with any fa- 
 vour if he neglected to do so ; for no one's misfortune is so 
 much slighted by the courts as his, who buys a thing in the 
 realty, and does not look into the title {/). In Kecch v. 
 
 (J) 8 Ves. Jun. 141. Cro. Jac. 196 ; aiid Lyiney v.Sel- 
 
 Ce) Keech t. Hall, Dougl. 21. by, 2 Lord Raym, 1118. 
 
 (/) See Raswel t, V»ughan, 
 
 HaU
 
 mt OF THE TITLE WHICH 
 
 Hall (;£^Jy Lord Mansfield appears to have taken it for 
 grante I, that a lessee has a right to examine the tit'e deeds* 
 The ease of Gwillim v. Stone (A), seems to lean the other 
 way, although there, the plaintiff seems to have mistaken 
 his remedy, and the decision in effect only was, that a man 
 entering under an agreement for a lease, before the lease is 
 granted, cannot call upon the other party to reimburse him 
 Jiis loss in case a title cannot be made : although certainly 
 Mr. Justice Lawrence appears to have thought, that the 
 mere agreement to grant the lease, did not warrant an im- 
 plied agreement to make a good title, or to deliver an ab- 
 stract. 
 
 ' In a later case, Gibbs C. J. thought at nisi ptius, that 
 the defendant was not bound to deliver an abstract under s 
 bare agreement to grant a lease for 21 years ; and Mr. 
 Justice Heath, after instancing the case of leases for three 
 lives, granted some years since in Devonshire, by a Duchess of 
 Bolton, who was mere tenant for life, but assumed to 
 have a power of leasing, and received fines to the amount of 
 29,000/., observed, that nevertheless it had never yet been 
 heard of, that a tenant for life was asked to show his title to 
 lease. The instance quoted shows the strong necessity of 
 the title being produced ; and there is no instance in which 
 a man acting under good advice, accepts a title from a tenant 
 for life, without the production of the settlement under 
 which he claims. However in this case, tlie Court consi- 
 dered that the cause originated in a dispute between the 
 two Attornies, and the Judges expressed their desire not to 
 decide the point, without affording an opportunity for a 
 review of their judgment. -^ *-V*-<^ ^ ^c^^T^. ^ 
 
 In the last case on this subject, where the agreement was 
 made to take a lease for 21 years at rack rent, the late Master 
 
 (g) Doug. 21 1 and see Waring 11 Ves. Jun. 343. 
 7. Mackreth, For. Es. Rep. 129, (A) 3 Taunt, 433.
 
 A FL'RCHASER MAY REQlilRE. 283 
 
 of the Rolls decided, that the intended lessor, who wat 
 plaintiff, could not enforce a specific performance, without 
 producing the original lessor's title {i). But it still remains 
 undecided, whether a p t ffenacor can, as plaintiff, call for the 
 original lessor's title. 
 
 The argument generally urged against the purchaser's 
 right to call for the lessor's title is, that a lessee is seldom 
 able to produce the title ; and, therefore, on the ground of 
 convenience, a purchaser must be presumed to know this 
 circumstance, and to buy, subject to an implied condition^ 
 not to call for the freehold title. But the answer to this is, 
 that the lessor's title is now generally required ; and where 
 the vendor cannot produce the title, it is usual to state the 
 ^fact in the particulars or agreement. Therefore, where that 
 statement is omitted, it is fair to presume that the vendor 
 is in possession of the title. There can be no inconvenience 
 in establishing the purchaser's right to call for the freehold 
 title ; for the vendor lias it in his power to prevent the claim 
 by an express stipulation. 
 
 Of course, if a vendor of a leasehold estate be unable 
 to procure the lessor's title, equity cannot assist the pur- 
 chaser (k), unless he will dispense with the production of 
 the title to the freehold. 
 
 The question under consideration arose in a recent case 
 in the court of Chanceiy, and Lord Eldon avoided deciding 
 the abstract point, although he certainly appears to hav« 
 thought that the better rule would be, that the purchaser is, 
 in the absence of an express stipulation to the contrary, 
 entitled to the production of the lessor's title. He intimated, 
 however, that if ever it should be his duty to decide a ques- 
 tion so important, he would call in the judges to his assist- 
 ance. 
 
 (t) FUdef T. Hooker, 2 M«r. 26 Maf, 1818, MS. 
 424. Lord Osiuliton t. Dertr^ll, (A) f/rfi suprOf p. 188, 
 
 7U
 
 2^i OF THi: TIT Li: WHlCli 
 
 The case before Lord Eldon has decided tliat tlic vendor 
 lannot demand a specific performance if tlie purchaser can 
 sho^v that the title to the freehold is not good, or that there 
 arc any incumbrances on it ; nor will equity afford its aid 
 against the purchaser, where the nature of the leasehold 
 title is misrepresented. The facts were these : the interest 
 was described as 50 years, the residue of a term free from 
 incumbrances, whereas it appeared that there were only 16 
 years to come of the old lease granted by Sir Richard Gros- 
 venor in 1722, and the residue of the 50 years was granted 
 by the trustees of Lord Grosvenor in 1791, as a reversion- 
 ary term for 3 i years. It appeared that, in 1785, the estate 
 in question was charged with jointures, mortgages, &c. 
 Lord Eldon held, that in these cases a purchaser should at 
 least know accurately what he is buying ; that in the case 
 before him, the title produced did not correspond with that 
 contracted for ; and tliat there was a wide difference between 
 the residue of a lease that has existed for a century with 
 possession under it, and a small residue of an old term, and 
 a reversionary lease granted by persons w^hose title from the 
 first lessor is not deduced. He also thought that he was 
 bound to look at the incumbrances, and therefore dismissed 
 the bill, but without costs {vi). 
 
 And, as we have seen, in the later case of Fildes v. 
 Hooker, it was determined generally, that a lessee cannot, 
 as plai7itiffl require a specific performance, without show- 
 ■ y ing a good title to the freehold. ^ 
 
 </cl v4ri-^ j£ ^ purchaser of a leasehold estate had notice, at the 
 
 /v./jr/- ^jjj[^g jjg entered into the contract for purchase, of the ven- 
 
 / -^^ dor's inability to produce the lessor's title, he would not 
 
 Ly/ aftenvards be allowed to insist on its productione Wher- 
 
 (fn) White T.Foljambe, 11 Ves. ton, 18Ves.50Sj and see Rad- 
 Jan. 337 ; Derer^li t. Lord Bol- cliffe t. Warrington, 12 Vci. Jun. 
 
 ever, 
 
 U/i/iffV
 
 A PURCHASEE MAY REQUIRE. 28.> 
 
 ever, tlierefore, a vendor of a leasehold estate has not an ab- 
 stract of tlie lessor's title, this circumstance should he men- 
 tioned in the particulars of sale, if sold by auction ; or in th^e 
 agreement, if sold by private contract. 
 
 But a purchaser of an estate held under a Bishop's lease, 
 cannot call for the lessor's title, (n) ^-^/^ ibcJA^X^jJ^^^ti^^ 
 
 It seems formerly to have been thought, that a plaintil&k* -ei^ v^'^ 
 in an ejectment for a leasehold estate, could not I'ecover^^^^ >^^ 
 unless the orio^inal lease and all the mesne assisrnments wcre^>*^^s'''**~ 
 
 9 ■c<.'x i^ -^ 
 
 proved; but this rule has been relaxed, and where tlie pos-^^-J, ^^^i^ 
 session has been uniform, the jury will be recommended iot/Z^z:/ /^f^ ^^ 
 presume any old assignments which have been lost {(^)'/^^'*^\ 
 It cannot, however, be laid down as a general rule, that a 
 purchaser of a leasehold estate can safely accept the titl^ 
 where any of the mesne assignments have been lost, altliougli 
 lie might be able to recover in ejectment if he actually did 
 purchase. Kvery case of this nature must depend upon its 
 own particular circumstances {p). 
 
 With respect to the title to renewa])le leaseholds, great 
 difficulty constantly occurs. All public bodies who grant 
 renewable leases, require the old lease to be given up before 
 they will grant a new one ; and when they once obtain pos- 
 session of a surrendered lease, they will not part with it, or 
 permit a copy of it to be taken. When the lessee sells, he 
 produces an abstract of the subsisting lease and subsequent 
 instruments. Now this is a title which it is impossible to" 
 
 326. Lady Saltoun v. Philips, ground rent, although he had not 
 sittings after T. T. 1813, cor. undertaken to produce the land- 
 Lord Ellenborough, where a pur- lord's title, 
 chaser rpcoT«-red his deposit, be- (n) Fane v, Spencer, 2 Mer. 
 cauie the seller claimed his lease 430. 
 
 subject to Lord Grojvenor's in- (o) Earl v. Baxter, 2 Blackst, 
 
 cumbraiices, and had stated that 1228; see 11 Ves. Jan. 350, 
 
 the lease wag only subject to the (p) Vide post ytiW^xy v. Waller. 
 
 accept,
 
 28'6 or THE TITLE %VHlCH 
 
 accept, however willing tlie purchaser may be, and althou^^M 
 ho may have waved calling for the lessor's title. Every 
 hase is stated to be granted in consideration of the sunren- 
 der of the former lease, and by means of this reference the 
 chain of title is kept up. The reference in the last lease to 
 the one immediately preceding, is notice of it to the pur- 
 chaser, and that again is notice of the one before that, and 
 so on to the first lease. And if in any of these leases the 
 lessee is described as devisee under a will, or there is any 
 thing to lead the mind to a conclusion that the lessee is not 
 absolutely entitled, the purchaser will be liable to the same 
 equity as the lessee was subject to, although he, the pur- 
 chaser, had no other knowledge of the fact, than the mentioa 
 in the lease of the surrender of the former lease, equity deem- 
 ing that sufficient to lead him to enquire into the title iq). 
 Harsh as this rule may seem, it is quite consistent with the 
 general principles of equity, and is imperiously called for in 
 this case, because public bodies generally renew with the 
 persou having the legal estate, and seldoni_sufe any trusts 
 
 ^J^U^ <Lc to appear on the lease , lest they should be implicated in the 
 
 ^Ilc :S!^<1^ execution of them. 
 
 ''uZI:^^^^ Although a piu'chaser buys with full notice that a title 
 
 ,"^ fc/v: ^ *^"cs on the seller and not on the purchaser to obtain the con - 
 
 ^ ^^^X^Sl ^"^9*' ^^ "^^^^ without the consent of a third person, yet 
 jUe^y.^ ^^5^sent. It cannot be inferred that the seller only agreed to 
 
 f)i^ vl4^^^^^ with his interest in the estate as far &s he was able m 
 
 ^lA^^'' " L ^f^^^^^ eiiable equity to enforce a specific performance 
 A"^^_,''ai'ainst a purchaser, the j:itle to the estate oyght, like . 
 
 jf U-^ (q) Coppln V. Fern) hougli, 2 249 ; Mason v, Corder, 2 Marsh, 
 
 Bro. C. C. 291 332 ; 1 Taunt. 9. 
 
 (r) Lloyd T, Crispc, I Taunt. 
 
 Cwsar's
 
 Ca3sar's wife, to* be free even from suspicion (.s) ; for il woald 
 be ail extraordinary proceeding for a court of equity to 
 compel a purcliaser to take an estate which it cannot war- 
 rant to him {t). It hatli, therefore, become a settled and 
 invariable rule, that a purchaser shall not be compelled 
 to accept a doubtful title {u) ; neither will he be forced 
 to take an equitable title, ia?) ; nor will a case be directed 
 to the judges as to the title, unless the purchaser be 
 willing that it should (?/); and even if a case should 
 be directed, and the judges were to certify in favour of 
 the title, yet a specific performance would not be decreed 
 unless the com't itself were satisfied of the equitable as vvcll 
 as the legal title of the vendor {z). And although the 
 judges certify in fjivour of the title, and there is no equitable 
 objection to it, yet if the point of law is very doubtful, the 
 pui'chaser may require another case to be directed, which it 
 seems Avill not be sent back to the same court (a). 
 
 The do^^/' generally turns upon a jwint of laAv,but tlie rule 
 equally applies to other cases. Therefore where a testator 
 who appeared to be seised of the entirety of an estate, devised 
 his undivided moiety, or half part of it, and all other his shares, 
 proportions, and interests if any therein ; and no evidence ap- 
 peared that he had not the entirety, and the vvords were sufK- 
 
 (5) vSee 2 Ves. 59. Vei. Jun. 80 ; Sloper v. Fish. 
 
 (0 Heath v. Heath, 1 Bro. C.C, Rolls, 29 Jul v, 1813; 2 Ves. and ^ 
 
 147. Eea. 145. ^^^1:^.^ ^^jj/l^J/. 
 
 (m) Mariow v. Smith. 2 P. (x) Cooper v. Denne, m6i 5«p. ; »^y. 
 
 Wms. 198; Mitchei y. Neale, 2 and see 2 Ves. Jun. 100; and 
 
 Ves. 679 ; ShapJantl v. Smith, 1 infra. 
 
 Bro. C. C. 74; Cooper t. I>enne, (j/) Roakc v. Kid. ubi sup, 
 
 4 Bro. C. C. 80 ; 1 Ves. Jun. (z) Sheffield v. Lord Mulgra?*, 
 
 665, S. C. ; Crewe v. Dicken, 4 2 Ves. Jim. 526. 
 
 Ves. Jun. 97 ; Kose v. Calland, 5 (a) Trent t, Hapniog, 10 V«f 
 
 Vee. Jun. 186 ; Roake v. Kidd, Jun. 500, 
 ibid. 647; Wheate t HtU ?7 
 
 cicnt,
 
 «S8 OF THE TITLE WHICH 
 
 cieiit, if lie had, to pass it; T^ord Eldon was of opinion that 
 tlie title was good, but he was also of opinion that this wag 
 not a reasonably clear marketable title, A\ithout that doubt as. 
 to the evidence of it, which must always create difficulty in, 
 parting with it, and therefore he refused to force the title on 
 a purchaser (6), 
 
 So there are many cases in which a jury will collect tha 
 fact of legitimacy from circumstances, in which it might 
 be attended with so much reasonable doubt, that equity 
 would not compel a purchaser to take it merely because 
 there was such a verdict. The court ought to weigh, whe- 
 ther the doubt is so reasonable and fair, that the property is 
 left in his hands not marketable (c). 
 
 And whore an action is brought against a purchaser for 
 non-performance of an agreement, a court of law will look 
 as anxiously to see that the title is clear of doubt as a court 
 of equity would. Therefore in a case before Lord Kenyou 
 at nisip7'ius (a), ^Yhere an objection was made to the title, 
 his Lordship said he would not then determine the point, 
 nor was it necessary to do so. He thought it a question of 
 some nicety ; but whether it was or not, he thought it equally 
 a defence to the action. When a man buys a commodity, 
 he expects to have a clear indisputable title, and not such a 
 one as may be questionable, at least, in a court of law (I), 
 No man is obliged to buy a law-suit ; and a verdict was 
 given for the purchaser. 
 
 ih) Stapyltoa v. Scott, 16 Vcs, (ci) Hartley v. Peahall, Peake's 
 
 Juo. 272 ; see 1 Ves. ar^B^. C. 131 ; Wilde v. Fort, 4 Jaunt. 
 
 ^3. /^Z-^^JlrJ^^ 334 ; sed qu. >vhetlier at law the 
 
 (c) Per Lord Eldon, See 8 judge is not ]l)oun(} to dppide tl}§ 
 
 Ves. Jun. 428, Foi"t. 
 
 (I) This expression seems to refer to the question, ■v?hether gqiiitgl?la 
 objections to a title are a defence at law Vide supra^ p. 212, 
 
 to
 
 A riTKCHASER MAY REQUIRE. 289 
 
 In a late case (c) v.']iere at law tlie same arc^imcnt was 
 Ur^ed on behalfof a purchaser wlio Avas plaintiff, Lord C. J. 
 Gibbs said, it was intimated that if any doubt could be cast 
 on the title of the vendor, the plaintiff would be entitled to 
 recover back his deposit. Nov/ if he had gone into a court 
 of equity, the chancellor would not perhaps liave obliged an 
 unwilling purchaser to ratify the contract. But if he come 
 into a coiirt of law to recover the deposit, on the ground of 
 an insufficient title, he must abide by the decision of that 
 court, and that is the difficulty wdiich the party had brought 
 iipon himself by coming into a court of law. 
 
 In a late case where the estate was sold without any notice, 
 that it was recently allotted under an inclosure act, and it 
 appeared that the commissioners had not made their atvard, 
 and tlic act contained no clause authorizing a sale before the 
 award ; Lord Ellenborough held, that the purchaser was 
 warranted in refusing the title if). But if the purcliascr is 
 at the time of the contract aware that the estate is in a pro- 
 gressive state of incloiiUre, and there is no ground to sup- 
 pose that the commissioners v/ill vary the allotments, assum- 
 ing their power to do so, the purchaser will be compelled to 
 take tlie title although the av;ard is not executed (g). 
 
 Where an act of bankruptcy has been committed, the 
 purchaser ciinnot be compelled to take the title, althougli 
 the vendor sw'ear that he owes no debt upon which a com- 
 mission can issue, and the purchaser cannot disprove the 
 statement. The ground of this determination was, the im- 
 ])ossibility of ascertaining that there was not such a debt as 
 \vould support a commission {h). And upon thci same prin- 
 
 (e) Rjiiiilly V. James, 1 Marsh. S. C. 17 Ves. Ju!i,463, airirniid on 
 
 600. an appi'al, by. Lord Kidori. The 
 
 (/) T.'nvndes v.Hray, Sitt. after act autliorizt'il a sale before the 
 
 T. Ti'iK^ 1810. Cane V. B lid win, award. 
 
 1 btark. 65.^ /$a.^^ . C}^^-OS^>/ . ('''' Lowe v. Lush, li W.<. Juri. 
 
 {g) Kingsley v. Younij, MS. 517. 
 
 L' ciple.
 
 290 OF THE TITLE WHICH 
 
 t'iplc, a purchaser wlio has become bankrupt ca;niot compel ' 
 a conveyance of the estate to Inm ; because he cannot satisfy 
 the vendor that he will be entitled to retain the purchase- 
 money (/). 
 
 So, where an estate is sold subject to a rent, which, al- 
 though not so stated, appears to be only a part of a larger 
 rent charged on that and other property, the purchaser will 
 not be bound to take the title, although for many years the 
 apportioned rent has been received : — an apportionment by 
 ciecd must be shewn. It is the duty of the vendor to give the 
 ]nu-cliaser a complete formal discharge of all the further rent 
 that the house was ever liable to. Although an apportion- 
 ment maybe presumed, yet as IMr. Justice Chambre observed, 
 the question here is not what may be presumed, but whether 
 a purchaser is compellable to accept a purchase, where his 
 title rests only on presumption, which may be rebutted by 
 other evidence. And Lord Chief Justice JMansfield said, 
 that a court of equity would not decree a specific perform- 
 ance in a case like this, unless the seller could procure the 
 ground-landlord to apportion the rent, by joining in an 
 assignment of the lease; in which assignment the appor- 
 tioned rent should appear (A,-). 
 ^ So where the estate agreed to be leased was comprised Avitli 
 others in an original lease, under which the lessor had aright 
 to re-enter for breach of covenants, so that the under lessee 
 might be evicted without any breach on his part, it was held 
 by the present Vice Chancellor, that he was not bound to 
 accept the title with an indemnity. Plis honor observed, 
 that where a party comes for a specific performance, he de- 
 sires the court to give the party the specific subject. Now 
 
 (i) Frantlin V. Lord Brownlovr, (A) Barnwell v. Harris, 1 
 
 14 Ves. Jun. 550. Taunt. 430. 
 
 ^ ^/i;Ar^^C<^J--*^W^, /iCr/^^t^^<- c^^i^A -^/^^^ /^^^
 
 A rURCHASEIl MAY REQUIRE. 291 
 
 here lie could not secure the possession of the subject upon 
 the terms agreed upon. But he offers an imJcriniity. Tl^e 
 lessee might be evicted, and therefore it was compensation 
 and not indemnity that was offered. I will give you the 
 subject of the contract not with a sure title, but with a 
 compensation in case^ of eviction. It was not a case for 
 an indemnity, and the court could not compel a performance 
 with a compensation (/). 
 
 In a late case {vi) upon a purchase, it was agreed, that 
 if there should be found any fee farm rents, or quit rents, 
 chargeable on the same, an allowance should be made at the 
 rate of 30 years purchase on ihe amount thereof. It ap- 
 peared that the estate, with others of great value, was 
 charged with a perpetual rent of 40 marks, originally re- 
 served to the crown ; but a similar rent was granted to 
 trustees, in fee, in the usual v/ay, out of a part of the estate 
 not sold, of nearly 10 times the annual Aalue of the rent, as 
 an indemnity to the other estates against the rent. It was 
 objected, that this charge prevented the seller from making a 
 good title. It was argued, on the part of the seller, that 
 this was the precise case in which a purchaser vrould be com- 
 pelled to take the title with an indemnity. Equity looks 
 only to the substantial execution of the contract ; and here 
 the rent was not, in suhstancei a charge on the land. It 
 was not like the case of a lease, where non-payment of the 
 rent, or non-performance of the covenants, might avoid the 
 estate of the person who was required to accept the indem- 
 nity ; but this was the simple case of a money pajment, 
 which would, of course, be accepted from the owner of the 
 estate exclusively charged with it, byway of indemnity; and 
 which estate would always be liable to answer any payment 
 made on account of the rent by the persons intended to be 
 indemnified against it. The objection, if allowed, would 
 
 (/) Tildes V. HoolaBr, 3d Apiil, (w) Hays v. Djilcy. Rolls, 10 
 1818,MS, S ^ *-^^ ./03-, Aug. 1813, MS. ride infra. y<' <^'^^e^..-.y.«»^x -* 
 
 ^ u i> afTeci f^^^^' / ^
 
 292 OF THE TITLE WHiCir 
 
 affect lialf the titles in tlic kingdom. It applies to nearly 
 all the estates which came into the hands of the Crown on 
 the dissolution of the monasteries. Dickenson v. Dickenson 
 (ji) was a stronger case ; for there the purchaser wascompelled 
 to take the title, although the Judge was of opinion, that if 
 in the event the fund should turn out deficient for payment 
 of the infants' legacies, they must still have recourse to the 
 estate for the deficiency. The ground of the decision must 
 have been, that there \\^3 no chance of the fund proving de- 
 ficient. Halsey v. Grant (o), is a direct authority in favour 
 of the seller ; and there the indemnity fund was not so large 
 with reference to the amount of the charge as the present ; 
 and although Horniblow v. Shirley (j)), was a case of com- 
 pensation, and not of indemnity, yet it appears that Lord 
 Alvanley said, that if such an objection was to prevail, a pur- 
 chaser of a portion of a large estate would always be at 
 liberty to get rid of a contract (q): In the present case, the 
 purchaser did not object to the estate being charged with a 
 fee farm rent, provided he was paid its value. Here the 
 rent is charged only in point of form ; and therefore he can 
 require no allowance. On the part of the purchaser it was 
 argued, that the clause relied upon, on the other side, was 
 evidence that the purchaser was not to take the estate sub- 
 ject to any rent, unless it could be sold to him ; and the 
 estate would always be liable to the fee-farm rent, notwith- 
 standing the indemnity. The JMaster of the Rolls was of 
 opinion, that the clause in the agreement referred to a rent 
 charging the estate sold only, and not to a rent charging it 
 and other estates ; and that the JMaster was justified in con- 
 sixlering the rent as an objection to the title. As to the 
 question of indemnity, his Honour observed, that Halsey 
 and Grant was certainly a case of indemnity ; and Horni- 
 
 (n) 3 Bro. C.C, 19. (p) 13 Ves. Jiin. 8. 
 
 (0) 13 Ves. Jun. 73; (y) 13 Ves.Jun.75. 
 
 blovv'
 
 l)Iow aftfl Shirley a case of compensation ; but lie doubted 
 whether the deed executed in order to relieve the estate in 
 fjuestion, could be considered such an indemnity as a pur- 
 chaser ought to be compelled to accept, nor should he decide 
 whether in this case any indemnity could or ought to ]je 
 given by the vendor against such fee-farm rent, lie sliould 
 leave that to be decided when tlie cause came on to be heard 
 thereafter. (^ 
 
 In the case of Fildes v. Hooker {r) the present ^^ice 
 Chancellor observed, that the utmost length of indemnity 
 was, that if a good title can be made subject to an incum- 
 brance, the purchaser shall take the title, with a security 
 protecting him against the incumbrance. He did not know 
 that the Court had gone so far, and he sliould not be dis- 
 posed to follow such a rule, because the purchaser is entitled 
 to an estate free from incumbrance. It would be difficult to 
 convince him that such a rule was right. 
 
 It hath been before observed, that a purchaser will not 
 be compelled to take an equitable title ; but this rule dors 
 not extend to estates sold before a master under the decree 
 of a court of equity. For in this case, although the legal 
 estate is outstanding, and cannot be immediately got in, yet 
 if the person seised of the legal estate is a party to the suit, 
 the court will compel the purchaser to accejit the title, and 
 will decree generally that the legal tenant shall convev, 
 and that the purchaser shall in the mean time Iiold and 
 enjoy. 
 
 And even where the legal estate is vested in an infant, the 
 court will compel the purchaser to complete his contract on 
 tlie usual decree, that tlie infant shall convey wlien he comes 
 of age, unless he tlicnshcxcs cause to the contranj ; and that 
 tlic purchaser shall in the mean time hold and eijoy. 
 
 Tims in a case (.s) where, upon sale of an estate before a 
 
 (/■) :U April, I8l8, MS. (j) Ch. .M.S. ; see Cliaiidkr v. li aid, 
 
 3 /A-a^^^. /n0^ 1 Dick. 392. 
 
 u3
 
 ^^^^^^gj^ ^^^ OI THj: TITLE WHICH U*e C^^.^ k;, 
 
 master, in pursuance of a decree nnder Lord AValtliam'.s 
 \vill, the purchaser objected to the title, on the ground of 
 tlic legal estate being in an infant ; Lord ]losslyn, -vvithout 
 the least hesitation, compelled the purchaser to take the 
 title, making his decree for the infant to convey in the usual 
 form ; because, as the purchaser bought under the decree, 
 ^ he was bound to accept such a title as the court could make 
 
 liim (^). And 1 learn that in a case of this nature. Lord 
 Ilosslyn would not sanction an application by the purchaser, 
 at his own expense, for an act of parliament to divest the 
 infant of the legal estate. ^ 
 
 15ut although a purchaser under a decree, will be com-;'^' 
 pelled to accept a title of this nature, yet, if he sell the 
 estate, the court will not enforce a specihc performance against 
 the second purchaser. 
 
 This was also decided by Lord Rosslyn. The purchaser 
 of Lord Waltham's estate sold the estate to a person wIiq 
 objected to the title upon the same ground as he had ob- 
 jected to it, and refused to complete the contract. The 
 first purchaser very confidently filed a bill for a specific per- 
 formance, but Lord Ilosslyn dismissed it ; because such 
 second purchaser did not buy under the decree, and there- 
 y _•-/' J^^*^ ^^^^ ^^^ compellable to accept an equitable title. 
 
 / ^^ I J ) ^^^^^ reason why a piu-chascr under a decree is compelled 
 A ^ to take an equitable title seems to be this, that the court 
 
 has bound the right pf the party in whom the legal estate 
 is vested, and will not permit him to take advantage of it. 
 This, however, is not the case where the legal estate is in an 
 infant ; as it makes part of the decree, that he shall convey 
 when he comes of age, unless he then shev^s cause to the 
 contraj^y. 
 
 (i) But note, a purchaser under v. Smith, 2 P. Wms. 198 ; Shaw 
 a decree will not be compelied to t. Wright, 3 Ves. Jun. 22; Noel 
 t^kQ VL doubtful title, See Marlow v. Weston, Coop. 138. 
 
 In
 
 A rURCHASER JNIAY REQUIRE. 295 
 
 In favour of tlie rule, by whicli a purcliaser uutlcr a decree 
 is compellable to take an equitable title, it may be said, tliat 
 it facilitates sales under the decrees of the court; but the in- 
 justice of it is too glaring. The decree of a court of equity 
 acts in personam, and not like a judgment at law, hi rem ; 
 and it is possible that the court may never be able to com- 
 pel tlie person seised of the legal estate to convey it to the 
 purchaser. 
 
 Although an estate is not sold under a decree, and the 
 legal estate app&ars to be outstanding, and cannot be got 
 in, yet, if the circumstances of the case are such as would 
 induce a court of law, under those grounds upon which pre- 
 sumptions are in general raised, to presume a reconveyance, 
 the purchaser will be compelled to take the title {^u). Re- 
 conveyances have been frequently presumed upon trials at 
 law in favour of justice; but this doctrine was never applied 
 to a contract between a vendor and purchaser, until the late 
 case of Plillary v. Waller ; which certainly has not met with 
 the approbation of the Bar. The decision has occasioned 
 considerable difficulties in practice. -iVs no man can say 
 where exactly the line is to be drawn, at what period the 
 presumption is to arise, and what circumstances are sufficient 
 to rebut it ; each party puts his owa construction on almost 
 every case which arises. This, of course, leads to endless 
 discussion and expense, and the very parties in whose 
 favour the doctrine was introduced, ultimately feel how 
 much it would have been to their interest, that the general 
 rnle of the profession had not been relaxed. This rule was, 
 that a vendor was bound to get in all outstanding legal 
 
 (u) Hillary v. Waller, 12 Vei. who claims the boiKfit of the pro. 
 
 Jun. 239 ; but see Keene v. Dear- Kumptioii, is not sulhcit'iit of itself 
 
 don, 8 Ea£t, 218 ; Doe v. liright- (o raisie it ; aiui see Barnwi H v. 
 
 wen, 10 East, 583, Avhich shew Ilarrii, I Taunt, 430; Doe v. Cai- 
 
 that the circumstance of the vert, 5 Taunt. 170. 
 tquitablc estate being in the person 
 
 u i estates.
 
 'i96 OF THE TITLE WHICH 
 
 estates, wliicli were not barred by the statutes cf limitation.'. 
 The certainty of the rule amply compensated for any in(li- 
 vidual hardship v/hich it might sometimes occasion. 
 
 We have seen, that a purchaser cannot be compelled to 
 take a douhlful title; but. nevertheless, he will not be per- 
 mitted to object to a title on account of a bare possibility ; 
 because a court of equity, in carrying agreements into exe- 
 cution, governs itself by a i^joral certainty : it being im.pos- 
 sible, in the nature of things, there should be a mathema-r 
 tical certainty of a good title. 
 
 Therefore suisgesi'ions of old intails, or doubts what is- 
 sue persons have left, v/liethcr more or fewer, are never 
 allowed to be o])jcctions of such force as to overturn a title 
 to an estate (tc). 
 
 So where' {oc)^ upon a purchase, it appeared that the estate 
 had been originally granted by the crown, in which grant 
 there was a reservation of tin, lead, and all royal mines, A^■ith- 
 out a right of entry ; yet, as there had been no search made 
 for royal mines for 111 years, and, upon examination, the 
 probability "was great there were no such mines, and the 
 crov.n, for want of a right of entry, could not grant a 
 licence to any person to enter and work them. Lord Hard- 
 wicke decreed a specific performance. 
 
 Again, in a recent case {?/), where a man articled for the 
 purchace of an estate, with some valuable mines, and would 
 not complete his contract • because the mines were under a 
 comxmon, v.-hcrein others had a right cf common, and con- 
 
 (r:;) See 2 Alk. 20, per Lord 19 ; see Seaniea v. A'awdrey, 15 
 
 Ilarcl'.vicke : and see Lord Bray- Ve*. Jun. 390, 
 
 broke V. ! nslip, 8 Ves. Jun. 417, (y) Anon. Clian. 7th Sept. 
 
 Dyke v.SiU-esur, 12VesJun. 126. 1803. MS. 
 
 (x) Lvddrd V. Weston, 2 Atk. 
 
 sequently
 
 A PURCHASER MAY REQUIRE. 297 
 
 scqiiently he would be subject to actions for sinking shafts 
 to work the mines ; Lord Eldon, after shewing the impro- 
 bability of any obstruction from the commoners, 'said, that 
 in c<ise such an action were brought, be should think a far- 
 tiling quite damages enough ; and therefore decreed a per- 
 formance m specie. 
 
 This case, like the last, must be considered to have 
 turned on the improbability of the purchaser being dis- 
 turbed ; otherwise it seems to have gone to the utmost verge 
 of the law ; for although such trifling damages could only be 
 recovered, yet that would not be ground for a nonsuit, as 
 was decided in tlie late case of Pindar v. Wadsworth {z). 
 The estate, therefore, would subject the purchaser to litiga- 
 tion, whenever malice or caprice might induce any of the 
 jcommoners to commence actions against him. 
 
 So a mere suspicion of fraud, which cannot be made out, 
 will not enable a purchaser to reject the title. This was 
 decided by Lord Eldon in a case vrhcre, under an exclusive 
 power of appointment, a fithcr appointed to one son in fee ; 
 and then the father and his wife and the son joined in con- 
 veying to a purchaser, and the money was expressed to be 
 paid to them all. The title was objected to on the ground 
 .of an opinion, by which it appeared, that the father first 
 sold the estate, and then the appointment was devised to 
 make a title, and the purchase deed recited that the con- 
 tract was made with the father and son. And it was insisted, 
 that if the father derived any benefit from the agreement, 
 or even made a previous stipulation, that his son should join 
 liim in a sale, which there appeared the strongest reason to 
 apprehend, it v/ould have been a fradulent execution. But 
 Lord Kldon overruled the objection, as it did not appc;.v 
 that the estate sold for less than its value, or tliat the son 
 got less tlian the value of his reversionary interest, but 
 
 (^) 2 East, 15 i. 
 
 mcrciv
 
 298 OF THE TITLE WHICH 
 
 merely that he, as the owner of tlic reversion, acceded to the 
 purchase {a). 
 
 But if any person has a claim upon the estate which he 
 7}ia7/ enforce, a purchaser cannot he compelled to take the 
 estate, however improhablc it may he that the right will he 
 exercised. Thus in the case of Drewe v. Corp (b), the ven- 
 dor was entitled to an ahsolutc term of 4000 years in the 
 estate, and also to a mortgage of the reversion in fee, which 
 was forfeited, but not foreclosed. It was decided, that the 
 purchaser w^lio had contracted for a fee, was not hound to 
 take the term of years. Nor was he compelled to take the 
 title on the ground of the vendor having a forfeited mort- 
 gage in fee of the reversion, although it was evidently highly 
 improbable that any one would ever willingly redeem a for- 
 feited mortgage of a diy reversion expectant upon an abso- 
 lute term of 4000 years. 
 
 So in a late case (c), where in 1704 the estate w-as sold, 
 with a reservation of salt-works, &c. with a right of entry, 
 and the estate was sold in 1761, and no notice taken of the 
 reservation, and the right had never been exercised : the 
 Master of the Rolls was of opinion that non-user did not in 
 this case laise the inference, that the right was abandoned, 
 and consequently the purchaser was entitled to take the ob- 
 jection, and liis honour distinguished this from the case of 
 Lyddal v. Weston {d)\ first, because it was not alledged that 
 there was no probability of mines, it was rather admitted 
 that there were : secondly, here w^as the reservation of a 
 right of entry upon the want of which Lord Hardwicke 
 laid stress in that case, In the case before his honour, the 
 purchaser chose to consider this not as an objection to the 
 title, but as a ground for compensation, and it was decreed 
 accordingly^^</f:^ ^^u^ A'^-^ ^ -^^ fcy^ 
 
 {a) M'Queen T. Farquhar, 11 (l) Vide supra, -^.^SZ, 
 
 Ves. Jun. 467 ; seepost, ch. 17 ; (c) Seaman v, Vawdrey, 16 Ves. 
 
 and see Barnwell y. Harris, 1 Jun.. 390. 
 
 Taunt. 430. id) Supra, i>.29e, 
 
 AVheiQ
 
 A rUP.CHASEU MAY REQUIRE. 299 
 
 Wlicrc an abstract begins with a recovery to bar an intail, 
 it is usual in practice to call for the deed creating the intail, 
 in order to see that the estate tail and remainders over, if 
 any, were effectually barred (I). Eut if the deed is lost, 
 and possession has gone witli tlie estates created by the re- 
 covery, for a considerable length of time, and the presump- 
 tion is in favour of the recovery having been duly suffered, 
 the purchaser will be compelled to take the title, although 
 the contents of tlic deed creating the intail do not actually 
 appear {c). 
 
 Where a vendor is tenant in tail, with reversion to liim- 
 self in fee, and the reversion has vested in different persons, 
 a common recovery is generally required by a purchaser ; bc' 
 cause that bars the remainder, while a fine lets it into pos- 
 session, and thereby subjects the wliolc fee to any incum- 
 brance which before affected the reversion only. But unless 
 some incumbrance appear, or the title to the reversion is not 
 clearly deduced, the court will not compel a vendor to suffer 
 a recovery, on account of the mere probability of the rever- 
 sion having been incumbered, 
 
 Thus in a late case (/), upon an exception to the master's 
 report in favour of the title, the objection to the title was, 
 that one Elizabeth Baker ouglit to join in a recovery ; the 
 title being derived from John Paine, who, in 1693, limited 
 the estate to the use of himself for life ; remainder, subject 
 
 (e) Coussmaker v. Sewell, Cli. (/) Sperling v. Tieror, 7 \'cs. 
 
 4th May, 1791, MS. Appendix, Jun. 497. 
 No. 13. 
 
 (I) This makes it advisable in deeds to make a tenant to the piecip*", 
 or to lead tiie usfs of tines, to rccile so niiicli of the instrument nnd( r 
 whicli the tenant in tail claims, as will manifest his power of barring <hc 
 estate tail and remainders over, 
 
 to
 
 300 oy THE title whicii 
 
 to a term, to uses which never arose ; remainder, to his 
 daugliters in tail; remainder to liimself in fee. Under 
 these limitations Elizaheth, an only daughter, hecame 
 seised in tail, with the immediate reversion to her father, 
 who made a will, not executed so as to pass real estate, 
 whereby he devised all his estate to his second wife. Upon 
 his death Elizabeth his daughter entered, and levied a fine. 
 She had issue a daughter, Elizabeth, who married William 
 Baker. They had issue one daughter, Elizabeth Baker. 
 From her the estate was purchased under a decree, and by 
 mesne purchases became vested in the plaintiff. The defen- 
 dant, the purchaser suggested, tliat the ultimate remainder 
 in fee might have been by deed or will disposed of by John 
 Paine, or by any other person to whom it might have de- 
 scended ; and if the same should have been so disposed of, 
 it could then be barred only by Elizabeth Baker. The 
 Lord Chancellor held a recovery not necessary. 
 
 It will occur to the learned reader, that, notwithstanding 
 the defendant's suggestion, it was highly improbable that 
 the reversion was disposed of by John Paine in his life- 
 time, such an interest not being marketable ; and as he de- 
 vised all his estate by his wiD, there was no ground to pre- 
 sume that he made another will. Upon his death, there- 
 fore, the reversion descended to his daughter, who by licr 
 .tine reduced it into possession, and consequently no incum^ 
 brance could afterwards be created upon it, as a reversion 
 distinct from the particular estate. 
 
 At this day it frequently happens, that in deeds securing 
 debts on real estate, the estate is authorised to be sold witli- 
 out the assent of the owner, in case default is made in pay- 
 ment of the money on the day named. Such a security is- 
 so far a mortagage, that tlie owner may at any time before a 
 sale require a reconveyance upon paying the money due ; and 
 in consequence of the old rule, that once a mortgage always 
 
 a mort-i
 
 A PURCHASER MAY REQUIRE. 301 
 
 a mortgage, tlic o-\vner is in these cases usually required to 
 join in the conveyance, which he is mostly unwilling to do ; 
 his object being to prevent a sale. But it has been decided 
 by Lord Eldon, that the objection cannot be sustained, and 
 this decision was made in a case where the deed was in form 
 a regular mortgage with a power of sale, and the mortgagor 
 in his answer stated that he actually resisted the sale as 
 having been made without his consent and at an undervalue 
 ( g ). This has been followed in many later cases, and is now 
 an established rule {h). 
 
 It is clear that a woman is barred of her dower both at 
 law and in equity, by a legal term created previously to her 
 right of dower attaching on the estate, of which an assign- 
 ment has been obtained by a purchaser to attend the inheri- 
 tance {i). For although she can recover her dower at law, 
 it will be with a ccsset exccutio during the term, and equity 
 will not remove the bar. But notwithstanding that a pur- 
 cliaser can obtain an assignment of an outstanding term, 
 which will bar the vendor's wife of her dower, a fine is always 
 required from the vendor and his wife at his expense. 
 
 Upon the authority of the anonpnous case before Lord 
 Eldon, before cited {k), it perhaps might be doubted, whe- 
 ther a court of equity would not enforce a purchaser to ac- 
 cept the title without a fine. It must at the same time be 
 observed, that in that case the vendor could not make the 
 title perfect; whereas in the case under consideration a ven- 
 
 (g) Clav V, Sharpe and others, 46, which was taken from a hasty 
 
 Ch. Mich. Term. 1802. Lib. Rog. noto on a Itiff, is not, wlien at- 
 
 A 1802. fo. 66. Appendix. No. 14. tcutivd) (vinsulcred, au authority 
 
 {h) BaktTT. Dibbin, Dibbin v. the othr-r >s;iy. 
 
 Baker, Exch. April 20, 1812, MS. (i) Vide infra, c!i. 9. 
 
 Cordtr V. iMorgan, 18 Ves. 344. (/.) Supra, p. 296. 
 Note Sfabback v. Leatt, Coop. 
 
 dor
 
 302 OF THE TITLE WHICH 
 
 dor can remove every difficulty at a trifling expense ; ^vincli 
 circumstance would cei-tainly Iiavc gi'cat weiglit -with a court 
 of equity. In a late case, however, Lord Eldon put the 
 very point. He said, that if a husband entered into a con- 
 tract to sell an estate, not contracting for more than to make 
 a good title ; no specialty about dower ; but the master's 
 report was in favour of the title, on the gi-ound that a tenn 
 was outstanding which might be assigned; the court rcoitld 
 make the purchaser take the title, as the ti'ustees might 
 convey (/). This was only an obiter dictum, and with all 
 the respect due to the judge from whom it fell, is open to 
 much observation. In the first place it assumes what has 
 ne^er been decided, that equity would compel trustees of a 
 term with notice of the wife's right, to assign the tenn to a 
 purchaser, so as to exclude the title of dower. The court 
 would probably feel great reluctance in making such a deci- 
 sion. It is one thing to say, that when a purchaser has ob- 
 tained an assignment of a term, he may avail himself of it 
 as a protection against the wife's dower, ** because such was 
 the general practice and opinion of conveyancers" {m) ; and 
 another, for equity to say that, as a discreet exercise of its 
 jurisdiction, it will compel trustees to assign the term to a 
 purchaser, in order to exclude the widow. In INIaundrell 
 V. Maundrell, the INIaster of the Rolls forcibly observed, 
 that a purchaser, merely as such, has no equity whatsoever 
 against the widow, claiming by title prior to, and both le- 
 gally and equitably as good as his. The term, if it continued 
 outstanding, is as much attendant in equity upon dower, as 
 the remaining interest in the inheritance ; and therefo-re 
 ought not to be set up by the latter against the former (;?). 
 But admitting that equity would compel trustees to assign 
 the term, yet two weighty reasons present themselves why a 
 
 (/) See 10 Ves. Jun. 261, 262 («) b'ee Ve». Jun. 579. 
 
 {m) Vide infra, Ch. 9 
 
 purchaser
 
 ^^ , y A PURCHASER MAY REQUIRE. ^^ SCC , . 
 
 purchaser should not be compelled to rely on the tenn. The ^^ ' 
 cue, that he would be at the expense of keeping the term" 
 on foot ; the other, that if a writ of dower should be brought 
 ap;ainst him, and the term were even to protect liim against 
 the widow's claim, yet he must pay the costs of the action '^ 
 &c. These are the reasons why a fine is in practic e insistec 
 
 Ihe wife ot a trustee m tee, or of a mortffawe m fee^f-^,i^ /kV- 
 a forfeited mortgage, is at law entitled to dower; but a nne^^i^'^-J^^^^ 
 is on that account never required by a purchaser ; becausc,-^lr-T£/^^ <yz^ 
 if the wife of a trustee or a mortgagee were to be so ill ad- "'^^ *^ ' 
 vised as to prosecute her legal claim, equity would, at this!^7^ir^ ^ ^^ 
 day, undoubtedly saddle her with all the costs (o). ^^>^ X,J -^ 
 
 But where the wife of a vendor has only an cqmia}jle*^T^^^~^i^^ 
 jointure, some gentlemen require a fine ; this practice isyt«; -iivi' c^.^^.^. 
 however, discountenanced by the majority of the professionS/^. -^ 
 
 i^. 
 
 / ^C-i 
 
 and if a woman equitably barred of her dower, should brin^^^^^i,^^,^^ ^ 
 
 a writ of dower, it seems clear that equity would, pi'otect tlie'2^^^'*. -^^^ 
 purchaser, and condemn the widow in costs.jgi,^^^^^^^;^^^^^^^^^,^^ 
 But it is objected by the advocates for a fine, thafTnnii^^^.^^.J^ ^Ijty 
 fund upon which the equitable jointure is charged, should^'^*^*/*'^-**^^^ 
 be evicted from the jointress, she could then claim her t^o^^'^^^^ijzj;]!^'^^*^^ 
 out of any real estate of which she would otherwise hsiVo^f^yC^^^^^^ 
 been dowable. And this objection seems equally to appiy*^ *^?*^*^ 
 to a legal jointure. For it is by the statute of uses {p), by i^Z^^^^^- 
 which jointures are made bars to dower, declared, that if^TS^^^t^na 
 any woman be lawfully evicted from her jointure, or any;^^ 'V^ ^6cr 
 part thereof, without any fraud or covin, then she shall be 
 endowed of as much of the residue of her Inisband's tene- 
 ments or hereditaments whereof she was before dowable, as 
 the same lands and tenements so evicted shall amount to. 
 
 {o) See Noel v. Jevon ; Levant See Gervoyes's case. Mo. 717. pi. 
 V. Pope, 2 I'rcem, 43, 71. 1002 ; and see 4 Co. 3 b. 4 Bio. 
 
 (p) 27 Hen. VIII. c. 10. s. 7. C. C. 506, n. 
 
 When
 
 304 or THE title which 
 
 Wlieii the first edition of tliis work was publislicd, tlic 
 aiitlior was not aware of any case in which this doctrine was 
 expressly established, but he stated, tliat no reason appeared 
 why a jointress evicted of her jointure should not recover 
 lier dower out of lands sold by her husband, of whicli she 
 would have been dowable at common law ; and that if so, 
 although the wife of a vendor had a /rg-^Z jointure, a pur- 
 chaser ought to insist on a fine, unless he was satisfied that 
 the title to the jointure lands was good. He remarked, 
 however, that this was never attended to in practice, and that 
 he never heard that the objection was taken, which made him 
 apprehensive he had fallen into an error. The point could 
 not, he thought, so long have escaped notice. But he con- 
 cluded that, whether a jointress, evicted from a legal join- 
 ture, could claim her dower out of lands sold by her hus- 
 band, of whicli she was dowable at common lav/, or whether 
 she was entitled to no relief against a purchaser, it seemed 
 clear, that, unless in the case of a legal jointure a purchaser 
 could call for the title to the jointure lands, or require a 
 fine, he could not do so in the case of an equitable jointure, 
 where the wife was adult at the time of the marriage ; for 
 there could be no doubt but that equity would act in strict 
 analogy to legal jointures. 
 
 Since the publication of the first edition, the author has 
 met with Maunsfield's case, whicli was adjudged in the 28th 
 of Eliz. iq). There a jointure was conveyed to the wife 
 before the coverture, and during the covertm*e the husband 
 purchased other lands, and aliened them again, and died : 
 the land which the mfe had in jointure was evicted, and 
 the wife had dower of the lands which were purchased, and 
 
 (7) Harg. n. 8 to Co, Litt. 33, Sir Edward Coke's Commentary, 
 
 a, stated from a MS. commentary See Simpson v. Gutteridge, 1 
 
 on Litt. supposed to have been Madd.609» 
 written before the publication of 
 
 aliened
 
 A PURCHASER MAY REQUIRE. 205 
 
 aliened by the husband at the time when she was barred of 
 
 lier action of dower. This case expressly decided the poiift 
 
 before discussed, as to a legal jointure ; and equity must, in *^y^<^ — -' 
 
 this respect, follow the law.QyThe author's present impres- ^ '-^Zv^iS^J 
 
 sion therefore is, that where an estate would be subject to the "^^ /^/^ 
 
 dcwer of the vendor's wife, if she were not barred by a join- ^' 
 
 lure, whether legal or equitable, tlie vendor must either pro- 
 
 cure his wife to levy a fine of the estate at his o^^•n expense. 
 
 Or mu3t produc e a satisfactory title to the j ointure lands.' ^'^<- ^^ ^^v^ 
 
 And this is no more than is constantly required where 2CS\/<'<-- «^^»«-^<: 
 
 estate has been taken in exchange. The vendor is com- ^ *^/J 
 
 felled to produce the title not only to the estate sold, but^^*5^ ^^^i 
 
 also to the estate given by him in exchange. The sam^^^Jy;^*'^^ 
 
 principle applies to the case under consideration. ^El'S^^ ^^&:^ ^j^ 
 
 Equity appears to consider any provision, however inade- 
 quate or precarious it may be, which an adult, previously to 
 marriage, accepts in lieu of dower, a good equitable jointure 
 (?•) : and will in some cases even implij an intention to bar 
 the wife of her dower; thus where a proN-ision was made for the 
 livelihood and maintenance of the wife after her husband's 
 death, although it was not expressed to be in bar of dower, 
 vet it was holden to be a bar in eciuity, on the implied inten- 
 tion of the parties {s), 
 
 (r) Jordan v. Savage, Bar, Abr. S, cife.l; reported, 2 Kel. Cha. Ca, 
 
 Jointure, (B) 5. Charles v. An- 17 nom. Vizod v. Louden; see 2 
 
 ♦Irews, 9 Mod. 152; Williams v. Com. Dig. 148 ; Estcourt v, Est- 
 
 Chitty, 3 Ves. Jun.545,4 Bro.C. court, 1 Cox, 20; see Tinny v. 
 
 C. 513. This was admitted by the Tinny, 3 Atk. 8 ; Conch v. Stat- 
 
 c'ounsel for the appellants in ton, 4 Ves. Jun. 391 ; and Garlh- 
 
 Drury v. Drury ; see 5 Bro. P, shore v. Chalie, 10 Ve*. Jun. 20 ; 
 
 C.581. see Sugd. □. C) to Glib, on Uses, 
 
 is) ^'i7:^rd v, T.ongdnlp. 3 Atk p. 33''. 
 
 X But
 
 306 Ot THE TITLI^ WHICH 
 
 But ill a case where a leasehold estate was settled before 
 marriage upon the intended wife " in rccompencc, and bar 
 of dower, and for a provision for her," and the Imshand had 
 no real estate, it was held tliat the wife's right to thirds was 
 vot- barred (/). For, as the declared object was to bar her 
 of dower, no implication coidd be admitted, that she was to 
 be barred of thirds also ; the direction that the settlement 
 was for a provision for her, only expressed the effect of the 
 settlement, and eould not be deemed evidence of an inten- 
 tion to bar her of a right which was not named. 
 
 So, as infants are within the statute of Henry VIII. {u), 
 ajid may be barred of dower at law, they may in like man- 
 ner be barred by an equitable jointure {a.'). 
 
 But an equitable provision in bar of dower will not bind 
 an infant, unless it be as certain a provision as her dower. 
 Therefore a settlement of an estate upon an infant for life, 
 after the death of her husband and any third jjcrsoji, will 
 not be a good bar, as the stranger may survive the wife (y). 
 So a provision that the personal estate shall go according to 
 the custom of London, in bar of dower, or any provision of 
 that nature, vaW not be deemed an equitable bar of dower to 
 an infant, on account of the uncertainty and precariousness 
 of the provision (;:;). 
 
 Supposing an equitable jointure to be merely charged on 
 stock vested in trustees, and the wife to have been married 
 underage, there seems reason to contend, that if' the fund 
 should he wasted hy the trustees, equity would not restrain 
 
 (0 CresvvtII V. Byron, 3 Bro. (t) See the cases, ante, n. (f), 
 
 <\ C. 362 ; see Pickering v. Lord (y) Caruthers v. Caruthers, 4 
 
 Stamford, 3 Ves. Jun, 332. Bro. C. C. 500. 
 
 («) Drury V. J3rury, or, Earlof {z) Smith r. Smith, 5 Ves. 
 
 Bucks V. Drury, 5 Bro. P. C.570, J nn, 1 89, 
 
 4 Bro. C.C. 506, n.; Wilmot, 177. - 
 
 tlj«
 
 A ptJircHASER May require. 307 
 
 i\\e wife from i^roceediiig for licr dower ; and in that case a 
 purcliaijer would certainly be entitled to a fine (I). 
 
 In Caruthers v. Caruthers (a). Lord Alvanley, then blas- 
 ter of the Rolls, addressing himself to what was and what 
 was not an equitable bar of dower to an infant, put the case 
 of a charge in bar of dower made upon an estate with a bad 
 title, and held tliat it would be no bar. Therefore, whatever 
 opinion may be entertained on the general question, a pur- 
 chaser must be satisfied of the title to the lands upon which 
 the equitable jointure of Sifemc covei^t married under age 
 IS charged. And where the settlement rests in covenant, 
 the purchaser should not complete his contract until the 
 covenant be actually performed ; for an alienation by the 
 husband of the fund out of which the jointure is to arise, 
 will be deemed an eviction of the fund, and consequently 
 the wife will be let in for her dower {h). 
 
 It aj^pcars from some manuscript opinions, that Mr. 
 Fearne frequently advised a purchaser to take a fine from 
 a vendor and his wife, although she was legally barred of her 
 dower by settlement. To use his own words in an opinion : 
 " It may not be improper to have a fine from Mr. H. and 
 his wife, notwithstanding she is barred of dower by settle- 
 ment. I frequently advise such a step to preserve the pur- 
 chaser at any time from the difficulty of proving, or coming 
 at such settlement ; but as the fine is not necessary, it must 
 of course be at the purchaser's own expense, if he chooses to 
 liave it." 
 
 (a) 4 Bro. C. C 500 ; see 5 Ves. (*) Dniry v. Drury, 4 Bro. C. C. 
 Jun. 192. 506, n. 
 
 (I) lliia point does not appear to be decided either by Drury t- 
 Drury, or Williams v. Chitfy, 
 
 X 2 In
 
 308 or THE TITLE WHICIf 
 
 In the case of Pope v. Simpson (c ), Lord llosslyn appears 
 to have held, that persons purchasing from the assignees of 
 a bankrupt, have no right to expect more, tlian that the assig- 
 nees should deliver over such title as the bankrupt had. This 
 decision, however, "was opposed by prior cases {(1), and the 
 general rules of equity ; and in a late case I^ord Eldon ex- 
 pressly denied the doctrine advanced by Lord Rosslyn {e) : 
 and the Master of the Rolls has since actually decided, that 
 ^ A^'" y^^^signees stand in the situation of ordinary vendors (_/). 
 -, . , , Formerly, where a vendor claimed under a modem will, 
 C y by which the heir at law was disinherited, it was usual to 
 require the will to be proved in equity against the heir at 
 law {g) ; but this practice is now almost wholly discontinued. 
 In the case of Colton v. Wilson (/?), the purchaser was in 
 the first instance discharged from his purchase, on account of 
 the will not being proved against the heir at law ; but on a 
 rehearing he was compelled to take the title. This decree, 
 however, was made on the particular circumstances of the 
 case, and the point was by no means settled. In Bellamy v. 
 Liversidge (i), the title received the master's approbation, 
 although the \vill was not proved against the heir at law; 
 and upon exceptions to his report on that account coming on^ 
 Lord Kenyon, then Master of the Rolls, over-ruled thsm. 
 
 It is not unusual to require the heir at law to join i« the 
 eonvej^nce, if his concurrence can be easily obtained ; and 
 
 (c) 5 Ves. Juii. 145. see Harrison t. Coppard, 2 Cox, 
 
 {d) Spurrier T. Hancock, 4 Ves. 318, as to the custody of the 
 
 Jun. 667 ; and see Orlebar y. Flet- -will. 
 
 Cher, 1 P. Wmi. 737. (A) 3 P. Wms. 190. 
 
 (e) White v. Foljambe, 11 Ves, (i) Chan. 1 June, 1786, MS. ;. 
 
 Jun. 337; and lee 18 Ves. 512. and see Wakeman t. Duchess of 
 
 (/) M'Donald t. Hanson, 12 Rutland, 3 Ves. Jun. 233. 8 Bro. 
 
 Ves. Jun. 277. P. C. 145 ; sed vide Smith v.Hib- 
 
 {§) See Fearne's Pesfhuma, 234 j bard, 2 Dick. 730, 
 
 where
 
 A PURCHASEll ^lAY HEQUIRE. SQf) 
 
 Avlicre he is a party to a conveyance in any other character, 
 he is invariably made a conveying party, in his cliaracter oi' 
 heir at law; although, in strictness, this could not be insisted 
 upon. 
 
 If it should even be thought that a modern ^vill must be 
 proved against the heir at law, yet it seems clear that equity 
 would not compel the vendor, at the suit of the purchaser, 
 to prove the will per testes. The objection, therefore, 
 under any construction, could only be set up by a purchaser- 
 as a defence to a specific performance. 
 
 IV. There is a serious objection frequently taken to titles, 
 which it may not be improper to consider in this place. 
 
 The objection to Avhich I allude is, that an equitable re- 
 covery is void where the equitable tenant to tlie precipe has 
 the legal estate. In support of this objection, it is urged, 
 that where the legal freehold is limited to one for life, with 
 an equitable remainder to the heirs of his body, the estates 
 cannot coalesce so as to make the parent tenant in tail, not- 
 withstanding that he has the beneficial, and couseqiienlly the 
 equitable estate for life; and therefore, upon (lie same prin- 
 ciple, tlie legal tenant for life cannot be considered as seised 
 of an equitable estate, distinct from liis legal estate, so as to 
 support the recovery as a good equitable recovery. 
 
 In answer to this argument, it may be said, that the rea- 
 son why the equitable remainder to the heirs of tlie body 
 cannot coalesce with the legal estate for life is, that the rule 
 in Shelly 's case requires both estates to l)e legal. This is au 
 imperative rule of law, which courts of equity can no more 
 cicpart from than they can alter the niles of descent, l^uitv, 
 however, follows the law ; and therefore, if both estates are 
 equitable, they will unite in the same manner as it' lliey were 
 Jegal estatPS. But as ]\lr. Fcarne, with hi^ usual ability, 
 
 X 'J observes,
 
 310 or THE TITLE WUlCil 
 
 observes, wlicii botli tlic estates arc not legal, tlic a])plication 
 of a legal const met km, or operation of a 7'ule of law, ^v]^cll 
 must equally affect hoth, seems to be excluded l)y one of the 
 objects of that construction not being a subject of legal 
 cognizance. So when both arc not equitable estates, their 
 combination seems to be out of the reach of an equitable 
 construction to "vvhich one of the estates is not adapted {k). 
 
 Now this difficulty does not occur in the principal case. 
 The equitable estate tail has no existence in contemplation 
 of law, but depends wholly on the rules of equity for its 
 support. And therefore there is no rule of law which says^, 
 that the recovery shall be void. Equity, with respect to 
 equitable recoveries, adheres as nearly as iliay be to the mode 
 of barring intails prescribed by tli€~law.'- In this instance 
 the analogy is strictly preserved, for the tenant to the jyrez 
 cipe has the equitable estate of freehold. And if a court 
 of equity were to hold a recovery bad, on the ground of the 
 equitable tenant to the precipe having the legal estate, it 
 would only make another deed necessary. The tenant for life 
 would convey to a third person in trust for himself, before he 
 made a tenant to the precipe, and by this simple expedient 
 Tanquish the objection. 
 
 In a manuscript opinion, given by IMr. Fearne, on this 
 point, in which he held the recovery to be good, although the 
 equitable tenant to the p?r cipe had the legal estate, he fii'st 
 adverts to the analogy preserved between legal and equitable 
 recoveries, and then proceeds thus : *' The principle applies 
 with no less force, where wc suppose the tenant for life to be 
 of the legal estate, for his oxvii bene-fii. For then the 
 equitable interest is involved in the Ugqli and of conse- 
 quence all that is required by the said rule of analogy is had 
 in his concurrence, viz. the concurrence of the person en- 
 titled to the beneficial interest or pernancy of the pjrojits 
 
 (k) Cont. Remainders, p. 78, 5lb edit. 
 
 of
 
 A PURCHASER ^fAY REQUIRE. 311 
 
 of tlie immediate estate of frceholtt If the concurrence of 
 a person entitled to the mere beneficial interest of freehold 
 will answer the rule of analogy to the requisite extent for 
 barring equitable estates tail and remainders, can there be 
 a doubt in regard to the competency of the person entitled 
 mt merely to that degree (f interest, but to a amiprehend- 
 ing greater estate, adequate even to the purpose of barring 
 legal estates and remainders ? The analogy supposes that 
 a recovery by an equitable tenant in tail will bar the equit- 
 able estate tail and remainders, and reversion, even \vhere, if 
 the estate tail and remainders had been legal, such recovei'y 
 twuld not have barred them for want of a legal tenant to 
 the precipe ; because that analogy in the one case substitutes 
 an equitable tenant in the place of a legcd ojie in the other. 
 Now, can the same rule of analogy ever deny to a recovery 
 by a tenant in tail of an equitable estate the same effect iu 
 barring his estate tail and the subsequent equitable remain- 
 ders and reversion, as it xvould have had if all those estates 
 /tad been legal? Such a doctrine would be outrunning the 
 analogy, and the very ground for its adoption, iu disabling 
 those very persons from barring equitable estates tail and re- 
 mainders, who might have barreil them if they had been 
 legal, instead of equitable. This would scarcely be recon- 
 cileable with the well-known maxim of " equitas seqnitur 
 legem'' 
 
 If the objection cannot be supported upon principle, much 
 less can it be sustained upon authority. On the one hand, 
 it has never been said that such a recovery is void, except in 
 the case of Shapland v. Smith (/), where I^rd Thurlo\v is 
 made to say, that Christopher had only an equitable estate 
 for life, and the s\ibsequent estate being executed, b.e had an 
 equitable estate for life, and a legal remainder in tad, 
 which could not unite ; and of course, tlicrc could not be a 
 
 (/) I Bro. C. C. 78. 
 
 X ^ good
 
 312 OF THE TITLE WHICH 
 
 good tenant to the precipe, cand the recovery sufFercd v.as 
 void ; it being ncccssar\% in order to nuike a good tenant to 
 the precipe, that tliere sliould be a legal estate for life, rvith 
 a legal reve?'sion in tail, or an equitable estate for life, with 
 an equitable reversion in tail. Upon the latter dictuvi, Mr. 
 Fcarne, in the opinion Vjefore referred to, )<jserves, that he 
 could not hesitate in iruputing it to the rome inaccuracy or 
 misapprehension of the reporter to which other un\van-ant- 
 able positions in the saine case must, as he conceived, be 
 ascribed. That case came before the court in consequence of 
 his opinion, taken by the intended purchaser, in which he 
 had objected to the title on the ground of Shapland's taking 
 only an eqiiilable estate for life, and the limitation to the 
 heirs of his body operating h^n, contingent legal reinainder 
 to such heirs; the equitable andlegj^l estates being incapable 
 of that union which was requisite to vest the latter at all 
 in him, or give him an estate tail of any kind. Baron E}Te 
 inclined against the obj ection ; but on a rehearing Lord Thurlow 
 admitted it, and the insufficiency of the recovery depended, as 
 he (IMr. F.) understood, not on the want of a good tenant to 
 the precipe, but the want of an estate tail in Shapland. 
 And the report accordingly in the margin states, that it was 
 not an estate tail in C. S. though the report itself makes the 
 chancellor speak of it as a legal reiuainder in tail i?i him. 
 jMr. Feanic concludes by saying, that " therefore he could 
 lay no sort of stress on any vague expressions in su<:h a re- 
 port.'' And indeed it seems clear, that the ground of Lord 
 Thurlow's judgment was, the impossibility of the estates 
 imiting, the one being equitable, and the other legal ; and 
 that his observations on legal and equitable recoveries are 
 misstated in the report. A slight emendation will make 
 the sentence, which refers to this doctrine, correct. It may 
 be read thus : " It being necessary, in order to make a good 
 tenant to the precipe, that there shcnid be a legal estate for 
 
 life,
 
 A PURCHASER MAY REQUIRE. 31S 
 
 life, X\:here there is [instead of with] a legal rcrversion in 
 tail ; or an equitable estate for life, vchere there is [instead 
 of with] an equitable reversion in tail," And this sentence, 
 as corrected, by no means implies that a legal tenant for life, 
 for his own benefit, has not an equitable estate for life, suf- 
 ficient to support an equitable recovery. 
 
 If then we remove this dictum of Lord Thurlow, as it 
 stands in the report, there is no authority in tiie books in 
 support of the objection. But, on the other hand, we have 
 Lord Alvanley's authority, that where tJie equitable tenant 
 for life has also the legal estate for life, that is no objection 
 to the recovery. And this obscrv.ition was not lightly made, 
 for his Lordship repeated it in the cour&e of his judgment 
 {m). And indeed the very point appears to have been de- 
 cided in the l6th year of Charles II. iu a case where a man 
 was legal tenant for life by conveyance ; and afterwards the 
 reversioner and ancestor covenanted, in consideration of blood, 
 to settle the estate on him in tail ; so that in equity he had 
 a trust in tail in the estate. And the court confiniicd a re- 
 covery suffered by him, although at the time of suffering it 
 he was but tenant for life in law ; and this although it iicas 
 objected that he ought first to have exhibited his bill, and 
 have had his estate deared to him in tail accoi'ding to the 
 articles {n). 
 
 But, even admitting this objection, it cannot be extended 
 to a case where the equitable tenant for life, who makes the 
 tenant to the precipe, is legal tenant in fee. The estates are 
 perfectly distinct. He is not legal and equitable tenant for 
 life, but tenant in fee of the legal estate, and tenant for life 
 of the equitable interest (o). 
 
 (m) Philipj V. Brydges, 3 Ves, 180; 1 Cha. Ca. 49. 
 Jun. 126, 128. o) Marwood t. 'I'unirr, 3 \\ 
 
 (/t^Coodrick v.RrowD> 2Frepin. Wnii, 171. 
 
 V. Tt
 
 314 OF THE TITLE WHICH 
 
 V. It so often becomes necessary to consider in wliat cases 
 an uninterrupted possession creates a title, that the introduc- 
 tion of a few general observations on the operation of the 
 statutes of limitations, may not be deemed impertinent (I). 
 
 I. Then, the statutes of limitations operate by way of 
 bar to the rcmedyy and not, like the statute of fines, as a 
 bar to the I'ight (p). Therefore, although a person is barred 
 of one remedy, yet he may pursue any other remedy which 
 may afterwards accrue to him. Thus, where a tenant in tail 
 discontinued for thjce lives, and the issue in tail was barred 
 
 {p ) See Beckford v. Wade, 17 Vcs. Jun. 87. 
 
 (I) By the 21 Jac. I. c, 16, s. 1, 2, it was enacted that all writs of for- 
 medon in descender, formedon in remainder, and formedon in reverter of 
 any manors, lands, tenements, or other hereditaments whatsoever, at any 
 time hereafter, to be sued or brought by occasion or means of any title or 
 cause hereafter happening, shall be sued and taken within 20 years next 
 after the title and cause of action first descended or fallen, and at no time 
 after the said twenty years j and that no person or persons shall, at any 
 time hereafter, make any entry into any lands, tenements, or heredita- 
 ments, but within twenty years next after his or their right or title 
 ■which shall hereafter first descend or accrue to the same ; and in default 
 thereof, such person so not entering, and their heirs, shall be utterly ex- 
 cluded and disabled from such entry after to be made, any former law or 
 statute to the contrary notwithstanding. Provided nevertheless, that if 
 any person or persons, that is, or shall be entitled to such writ or writs, 
 or that hath or shall have such right or title of entry, be, or shall be at 
 the time of the said right or title, first descended, accrued, come or fallen, 
 within the age of one and twenty years, feme coverts, non compos inen^ 
 tis, imprisoned or beyond the seas, that then such person and persons, 
 and his and their heir and heirs, shall or may, notwithstanding the said 
 twenfy years be expired, bring his action, or make his entry, as he might 
 have done before this act, so as such person and persons, or his or their 
 heir and heirs, shall within ten years next after his and their full age, 
 dijcoverture, coming of sound mind, enlargement out of priion, or coming 
 into this realm, or death, take ben.efit of, and sue forth the same, and at 
 no time after the said ten years. 
 
 of
 
 A PIJRCKASETI MAY REQUIRE. 315 
 
 «f his formcdon by tlie 21 Jac. I. {q) ; afterwards by the 
 deaths of the three tenants for life, a right of entry accrued 
 to the issue, who entered, and his entry was held lawful (r). 
 
 2, It has frequently been thought that the rights of in- 
 fants, /^;«^<? coverts, persons in prison, and beyond sea, are 
 saved by the act of 32 Hen. VIII. (i); but on examination 
 it will appear, that the sanngs extended only to persons who 
 laboured under any of those disabilities at the time the sta- 
 tute rras made (/) (I). 
 
 3. The saving clause in the act of James (II) only ex- 
 tends to the persons on whom the xi^t first descends ; and 
 therefore^ when the time once begins to run, nothing can stop 
 it (w). So tli^t on the death of a person in wliose life the 
 time first began to run, his heir must enter within the resi- 
 due of the ten years, although he laboured under a disability 
 at the death of his ancestor. 
 
 In the late case of Cottercll v. Dutton {iv), a tenant in 
 tail died, leaving the issue in tail a feme covert ; wlio died 
 under coverture and left issue two sons both infants, the 
 eldest attained twenty-one and died without issue, leaving 
 his brother under age, who did not sue forth his \vrit of 
 formedon within ten years after he attained 21, and more than 
 twenty years had elapsed after the right had first descended. 
 
 (.J-) Cti. 16. (/) S<>e Bro, Readini', p. 60. 
 
 (r) Hunt V. Bourne, Lutw. 781: {u) Doe v. Jones, 4 Term 
 
 2 Salk. 422 j Com. 124 ; 1 Bro. P. Tlep. 300. Cotterell v. Dutton, 4 
 
 C. 53. Taunt. 826. 
 
 (*) Ch. 2. (x) 4 Taunt. 826. 
 
 (I) Tn evon (he last edition of Bacon's abrldgemont, it is stated gene- 
 rally, that the act of 32 Men. VIIF. hath the usual saving for infants 
 femes coverts, persons in prison, and beyond the sea. 
 
 (II) iVb/f, Dublin, or any other place in Ireland, is a place within 
 the meaning; of the saving of tbe rights of persons beyond (he sea». Anon. 
 J Show. W. 
 
 It
 
 31(5 or THE titlj: which 
 
 It was held that he was barred by the statute. The ground 
 of this decision was, that the time began to run against the 
 eldest son when he attained twenty-one, and no subsequent 
 disability could stop it ; therefore he and his heirs had only 
 ten years from his attainment of twenty-one. This case 
 overruled a notion which had been entertained by some, that 
 issue in tail have distinct and successive rights under the 
 statute, and were not to be barred like the heirs of fee- 
 simple estates. This, however, was decided otherwise. Mr. 
 Justice Heath said that there was no such difference between 
 the issue in tail and other heirs, as was supposed : fomiedon 
 in the descender was expressly mentioned in the first clause 
 of the statute. 
 
 In the case of a fine, it was formerly thought, that if a per- 
 son died under a disability, his heir was excepted out of the 
 statute of fines, by the proviso {y) ; although the contrary 
 has been determined by a modem case {z). In the statute of 
 James, the legislature being aware of this point, expressly 
 provided for the death of the person to whom the frst right 
 should descend ; and, therefore, where a person, to whom 
 the right first descended, dies under a disability, his heir 
 must enter within ten years after his death («). 
 
 In the case of Doe v, Jesson (b), the person upon whom 
 the right first descended was presumed to have died in 1785, 
 ainder a disability, leaving his heir also under a disability. 
 The disability ceased in 1792, but the ejectment was not 
 brought till 1804; more than twenty years had elapsed since 
 the death of the person last seised, and more than ten 
 years had elapsed after the cesser of the disability of the 
 plaintiff; and the court determined that the ejectment was 
 
 {y) See Cruise on Fines, 258, (a) See Jenkins, 4 Cent. pi. 97 ; 
 
 and the cases there cited. Doe v. Jesson, 6 East, 80. 
 
 (s) Dillon V Lemao, 2 H. Black. {h) 6 East, 80, 
 
 584. 
 
 out
 
 A PURCHASER MAY RECiLtlRE. 817 
 
 Out of time. Lord Ellciiborough held that tlie person 
 tlirough whom the lessor of the plaintiff* claimed, being 
 under a disability at his father's death, when his title first 
 accrued, and dying under that disability, the proviso in the 
 second clause of the statute, (where r< sort is to be had to it to 
 extend the period for m [iking an entry beyond the twenty 
 years) required the lessor of the plaintiff* as heir to her brother, 
 to make her entry within ten years after his death. The 
 word death in that clause must mean and refer to the death 
 of the person to whom the right first accrued, and whose 
 heir the claimant is, and the statute meant that the heir of 
 every person, to which person a right of entry had accrued 
 during the period of disability, and who died under such 
 disability, (notwithstanding the twenty years from the first 
 accruing of the title to the ancestor should have before ex- 
 pired). Mr. Justice Lawrence ?!?>.; gave his opinion that tlie 
 ten years to the heir run from the death of the party dying 
 under the disability. 
 
 It will appear that it was not necessary for the court to 
 decide from what period the ten years should run ; for more 
 than ten years had elapsed from the time the heir who 
 brought the ejectment attained twenty-one, when her disabi- 
 lity ceased. In the late case of Cotterell v. Dutton (c), 
 where this doctrine was stated, the court was of opinion that 
 the heir has ten years after the disability ceases, not fi-om 
 the death of the ancestor who died under a disability. 
 " The ten years do not run at all while there is a continu- 
 ance of disabilities." This certainly appears to be the true 
 construction of the statute, and it is the construction which 
 has invariably been adopted in practice. 
 
 It seems that where no account can be given of a person 
 within the exceptions in the act, he will be presumed to be 
 dead at the expiration of seven years from the last account 
 of him {d). 
 
 (f) 4 Taunt. 826. (,/) Doe r. Jcsson, ubi sup. 
 
 The
 
 318 OF THE TITLE WHIG II 
 
 The disability of one coparcener will not preserve tlic 
 title of the other, who must enter within twenty years after 
 the title accrues, although during the whole time her copar- 
 cener laboured under a disability (e). 
 
 4. It is generally conceived, that a possession for 60 years 
 creates a good title against all the world. Thus Judge 
 Jenkins (/') lays it down, without qualification, " that a 
 peaceable possession for 60 years makes a right; for 21 Jac. 
 I. ch. 16, takes away the entry and assise; 32 Hen. VIII* 
 takes away the writ of i»ight and the formedon." So INIr. 
 Justice Blackstone says (g), that the possession of lands in 
 fee simple and uninterruptedly for 60 years, is at present a 
 sufficient title against all the world, and cannot be impeached 
 by any dormant claim whatsoever." This, however, jNIr. 
 Christian remarks, in a note to the above passage, is far from 
 being universally true; for an uninterrupted possession for 
 60 years will not create a title, where the claimant or de- 
 mandant had no right to enter within that time ; as where 
 an estate in tail, for life, or for years, continues above 60 
 years, still the reversioner may enter and recover the estate. 
 
 Perhaps this remark is not sufficiently pointed. Black- 
 stone certainly did not mean, that the lawful possession, 
 during 60 years, of a tenant in tail, for life, or for years, 
 would operate as a bar to the reversioner's title, but he 
 alluded to a clear adverse possession for 60 years. 
 
 However, even in this light, his position admits of ex- 
 ceptions. It is possible that an estate may be enjoyed ad- 
 versely for hundreds of years, and may at last be re- 
 covered by a remainder-man. For instance, suppose an 
 estate to be limited to one in tail, with remainder over to 
 another in fee, and the tenant in tail to be barred of his 
 remedy by the statutes of limitations, it is evident, that, 
 
 (e) Roe V. Rowlston, 2 Taunt. (/) 1 Cent. pi. 49. 
 441. is) 3 Comm. 196. 
 
 as
 
 A PURCHASER MAY REQUIRE. 319 
 
 as Ills estate subsists, the remnlnder-ma'rCs right of entry 
 cannot take place until the failure of issue of the tenant in 
 tail, which may not happen for an immense number of years. 
 
 This doctrine is illustrated by the great case of Taylor v. 
 Horde [h), where an estate was settled on several persons 
 successively in tail ; remainder to A in fee ; and one of the 
 remainder-men in tail, being out of possession, brought an 
 ejectment, which was held to be barred by the statute of 
 limitations. Afterwards all the tenants in tail died without 
 issue, and the then heir at law of A brought an ejectment, 
 within twenty years from the time his remainder fell into 
 possession, and he recovered the estate. 
 
 5. After passing the act of 32 Henry VIII. and before 
 that of the 21 Jac. I. although a man had been out of pos- 
 session of land for sixty years, yet if his entry was not tolled, 
 he might enter and bring any action of his own possession (i). 
 Some writers have thought this still to be law (A"), but the 
 rule in this respect was altered by the statute of James ; by 
 which no person can now enter except' within 20 years after 
 his title accrues. 
 
 6. The rule in equity, that the statute of limitations docs 
 not bar a trust estate, holds only as between cestui que trust 
 and trustee, not between cestui que trust and trustee on one 
 side, and strangers on the other ; for that would be to make 
 the statute of no force at all, because there is hardly an estate 
 of consequence without such a trust, and so the act would 
 never take place. 
 
 Therefore, where a cestui qu^e trust, and his trustee, are 
 both out of possession for the time limited, the party in pos- 
 session has a good bar against both (/). 
 
 {h) 1 Burr. 60; 5 Bro. P. C. Christian's n. to 3 Black. Com 
 
 247; Cow per, 689. 196. 
 
 (i) Ste Bevill'scasp, 4Co. II, (/) Per Lord Hardwicke, in 
 
 b. casti Llfwollyn v. Mackworth, 
 
 (A) See Wood's Inst. 557 ; and Barnard. Rep, Cha. 445 ; 15 Vin. 
 
 7 Although
 
 320 OF THE TITLE M'HICH 
 
 7. Although the statute cannot, as between the trustee 
 and cestui que t7^sty operate as a bar to tlie latter, yet the 
 trustee may, in some cases, be barred by the possession of the 
 cestui que trust, or those claiming under him (m). A cestui 
 que trust is as a tenant at will to the tmstee, and his pos- 
 session is the possession of the trustee {n) ; aiid, therefore, 
 unless under very particular circumstances, time could not 
 operate as a bar (o). Where a cestui que trust sells or 
 devises the estate, and the vendee or devisee obtains pos- 
 session of the title deeds, and enters, and does no act recog-' 
 nising the trustee's title, there is great reason to contend 
 that this is a disseisin of the trustee, and, consequently, that 
 the statute will operate from the time of such entry. This 
 is a point which daily occurs in practice ; but it rarely 
 happens, that a purchaser can be advised to dispense with 
 the conveyance of a legal estate, where the defect will appear 
 on the abstract when he sells. And where there has been 
 any dealing on the legal estate, and it has been recenth 
 noticed in the title deeds as a subsisting interest, it is clear 
 that a pui'chaser must consider it as such (j)). 
 
 8. The statutes of limitations certainly cannot operate as 
 between cestuis que trust; but it seems that equity, in 
 analogy to the statute, will hold time a bar {q) ; and indeed 
 
 125,n. topi. l;andseeTownsend 199; 8 Ves. Jun. 106; see 2 Mer. 
 
 V. Townsend, 1 Bro. C. C. 550; 360. 
 
 Clay V. Clay, 3 Bro. C. C. 639, n. ; (n) See 1 Ventr. 329. 
 
 Ambl. 645 ; Hercy t. Ballard, 4 (o) See 3 Mod. 149 j Earl of 
 
 Bro. C. C. 469 ; and Harmood v. Pomfret v. Lord Windsor, 2 Ves. 
 
 Oglander, 6 Ves. Jun. 199 ; 8 472 ; Keene v, Deardon, S East, 
 
 Ves. Jun. 106 ; Hovenden v. Lord 248; Smith v. King, 16 East, 283. 
 
 Annesley, 2 Scho. and Lef. 629. (p) See Goodtitle v. Jones, 7 
 
 (m) See Lord Portsmouth v. Term Rep. 47, 
 
 Lord Effingham, 1 Ves. 430; Har- {q) See Harmood v. Oglander, 
 
 mood Y, Oglander, 6 Ves. Jun, ubi sup^ 
 
 that
 
 /. prriCiTASEr. may nr.Quir.E. 221 
 
 thai cqiiitaLlc lig-lits in gciicnil will, by the like analogy, Le 
 afiectcd by time in tlic same mariiier as legal estates (?'}. 
 
 Tiiis is exempliMed, in some degree, by the rules respect- 
 ing an equity of redemption, which is a mere creature of the 
 «ourt {s). 
 
 In Clay v. Clay (/), Lord Camden laid down tliis doctrine 
 very clearly. He said, " as often as parliament has limited 
 the time of actions and remedies, to a certain period, in legal 
 proceedings, the court of Chancery adopted tliat rule, and 
 applied it to similar cases in equity. For when the legisla- 
 ture has fixed the time at law, it would have been prepos- 
 terous for equity (which by its own proper authority ahvays 
 maintained a limitation) to countenance laches beyond the 
 period that law had been confined to by parliament. And, 
 therefore, in all cases where the legal right has been barred 
 by parliament, the equitable riglit to the same thing has been 
 concluded by the same bar." 
 
 In Beckford v. Wade {ti), the late Master of the Rolls, in 
 delivering judgment said, that it is certahily true that no 
 time bars a direct trust as between cestvi que trust and 
 trustee : but if it was meant to be asserted that a court ot 
 equity allows a man to make out a case of constructive trust, 
 at any distance of time after the facts and circumstance 
 happened out of which it arises, he was not aware that there 
 was any ground for a doctrine so fatal to the security of pro- 
 perty as that would be ; co far from it, that not only in cir^ 
 
 (?) Spc 1 Atk. 476 ; and Stark- r. Ilan-fy, 3 P. Wms. 287 , n. ; 
 
 house V. IJarn'ston, 10 Vcs. Jun. bfif a full uote of this case, Ap^ 
 
 466; HoTendi'D T. Lord Annesl<y, p'pHijt, No. 15. 
 2 Scho. and L' f . 630 ; \joti\ Egre- (0 3 Bro. C C. 63°, n. ; Ambl. 
 
 mout y. I!»miI(on, 1 Hall atid 615 ; and sef Kx partf Dfvvdnor,, 
 
 BpaKy, 516. 15 Ves. Jim, 496 ; Mcdlicoft v. 
 
 (j) Wliit.- V. Ewf-r, 2 Ventr. O'Dond. 1 Bull nnd B<-Tly, 156. 
 340 ; Pearson T. Tulky, ICha.Ca. («) 17 Vt». Jun". 97; see 2 
 
 102 j Jfinncr t. Traccy, and Celch Jlari^r. Jur. Kxc p. 394. 
 
 T cumstnTJcr"
 
 r>3,'-' • OF THE TITLE WHICH 
 
 rumstaiices where the length of time would render it extremely 
 difficult to ascertain the true state of the fact, but where the 
 true state of the fact is easily ascertained, and wliere it is 
 perfectly clear that relief would originally have been given 
 upon the ground of constructive trust, it is refused to the 
 party, who after long acquiescence, comes into a court of 
 equity to seek that relief. 
 
 And it seems that even in cases of fraud, where the facts 
 constituting the fraud are known, where there is no subsisting 
 trust or continuing influence, the same principle will apply (tt). 
 
 But whilst tlie equity of redemption subsists, the question 
 to whom it belongs must remain open : and therefore mere 
 possession without title will not give any person a right to 
 redeem {x). The right belongs to him who shows a title, 
 although he has been out of possession upwards of twenty 
 years. 
 
 The legal provisions are so strictly adhered to, that persons 
 labouring under any of the disabilities specified in the statute 
 of limitations, will be allowed the same time as they would 
 be entitled to in the case of a legal claim ( y). 
 
 9. These observations may be closed by observing, that 
 i'ew cases occur in which a title depending on the statute of 
 limitations can be recommended. The bare receipt of rent 
 is no ouster, for it is a contradiction in terms, that a man by 
 wrong should have my right {z) ; so the non-pa}Tnent of rent 
 is no ouster, and therefore the operation of the statute must 
 
 (a;) 1 Ball and Beatty, 166. (z) Gilb. Ten. 97; see ace. 
 
 (t) Cholmondeley T. Clinton, 2 Goodri^ht v; Jones, Cruise on 
 
 Mer. 173. Fines, 3d edit. 295 ; Doe r. Dan- 
 
 (y) Lytton v. L) tton, 4 Rro. C. vers, 7 East, 299 ; and see Orreli 
 
 C. 44J. Two cases on this point v. Rladdox^ Ruunington's Eject, p. 
 
 -f T'LJ. Tt^-i*- y^, "0^ depending ,"^ Pimm t, 458; Saunders t. Lord Annesley^ 
 
 I. ' Cifv^fu*^*''^ Goodwin, before Lord Eldon, and 2 Scho. and Lef. 73 ; see and con- 
 
 i'^ 0^^ ^^'*' . Blake's case before Lord INIau- sidcr HoTenden t. Lord Aunesley, 
 
 LjrC^^'-'^ '*' ncrs in Ireland ; see 2 IMer. 240. 2 SdiO, and Lef. 623. 
 
 /p'^1 ■ frequently
 
 A PURCHACr-R AIAY REQUIRE. 3i?3 
 
 frequently be prevented by tlie existence of a lease granted 
 by the person whose interest, or the interest of persons claim- 
 ing under him, is wished to be barred. So {a) tliere may 
 be a pase where the circumstance of concealing a deed shall 
 pj-event the statute from barring ; but then it must be a vo- 
 luntary and fraudulent detaining ; for to say that merely 
 having an old deed in one's possession shall deprive a man 
 of the benefit of the Act, is going too far, and would be a 
 harsh construction of a statute made for the quieting of 
 possessions. 
 
 (fl) Per Lord Hardwicke in Siicll ▼. Silcock, 5 Ves. Jun; 469 ; 
 
 caiu Llewliyn v. Mackwortli, Bowles v. Stewarf, 1 Schoale'8 
 
 Barnard. Rep. Cha. 445 ; 15 Vi<i. and Lefroy's Rep. 209 ; Bond r. 
 
 Abr. 126, pi. 8; 2 tq. Ca. Abr. Hopkins, i6. 413. Ilovenden v. 
 
 579, pi. 9, and see Dormer v. Lord Anncsley, 2 Sho, and Lef. 
 
 Pttikhurst, 3 Alk. 124 : see a!-o C07. 
 
 Y 2 CHAP.
 
 I r..i ] 
 
 U 
 
 C HA FTLR Vlil. 
 
 \ 
 
 oi- THE TIME ALLOWED TO COMPLETE THE CONTRACT 
 
 1 N sales by private agreement, it is usual to nx a time for 
 completing the contract. In such a contract the word month 
 may be constmed either lunar or calendar, according to the 
 intention of the parties to be collected from the whole instru- 
 ment taken together (a). The time fixed is, at law, deemed 
 of the essence of the contract (6) ; for it is the duty of tiie 
 roller to be ready to verify the abstract on the day on which 
 :*; was agreed that the purchase should be completed ; and 
 1: he have not the title deeds in his possession, or the abstract 
 r^et forth a defective title, the purchaser may resist the- com- 
 pletion of the contract, and may recover his deposit. 
 
 In a late case however (c) upon a sale by auction, the 
 conditions stipulated that the abstract should be delivered to 
 : ';e purchaser xvithin afoi'tnight, and should be retiurned at 
 the end of iiico months ; that a draft of the conveyance should 
 be delivered to the purchaser within three months, and be re- 
 turned to the seller within four months ; and that the re- 
 i:.",ainder of the purchase-money should be paid on the 24 th 
 
 (a) Lsng T. Gale, 1 Mau. and 640. n. 
 f^tl^^. ill. (c) Lang v.Ga>, I Mau- a^.d 
 
 (/.) j5orrr v. Ydim^, 2 Fsp. Ca. Sd^Tc III.
 
 OF TIME ALLOWED TO CO:\IPLi:'IE THE CONTIL-^CT. 
 
 on 
 
 {lay of Jane then next, [which was five montlis after I'he 
 sale] wlien the purchaser should receive his conveyance dulv 
 executed hy all parties; to be prepared by the seller's attvu- 
 uev; at the expense of the purchaser. It was contended tliat. 
 the stipulation in regard to the deliver}^ of the conveyance 
 was not a condition precedent, and it uas compared to the 
 caise of Hall v. Cazenove {d), where a charter party contained 
 a covenant by the owner, that the ship should sail on a spe- 
 cified day, and the owner afterwards brought an action of 
 covenant for the freight, it was held that he need not aver 
 that the ship sailed on that day, although the defendant 
 ithe freighter) covenanted to pay the freight in consideration 
 of every thing above mentioned. It was not necessary to 
 decide the point, but Le Blanc, J. said, that it was clear 
 that it was a condition precedent that a draft of the convey- 
 ance should be delivered to the purchaser ; the question was, 
 'whether it must be done by a particular day. It ^^as iica 
 necessary, however, to enter upon that question, if it were, 
 it miglit perhaps be material to advert to the rule, that where 
 a condition does not go to the whole consideration (c) of ti o 
 contract, but to a part only, it is not a condition precedent, 
 Bayley, J. was of the same opinion. It was not a condition 
 precedent that the draft should be delivered by a partixjulcr 
 day, for he did not consider tlie precise time of the delivci / 
 a& an essential ingi'cdient in that condition which was me'^i.t 
 only to secure a delivery witliin a reason r:ble time. 
 
 The general opinion has always been, that the day fi.KC:'5. 
 was imperative on the parties at hnv. ''I'his v.as so laid 
 down by Lord Kenyon, and has never been doubted in 
 practice. The contrary rule would lead to endhss difh- 
 • ulties. In the above case, for example, the different tinirs 
 ;.^>pointed, 1, for delivery of the abstract ; 2, for the ieju^ii 
 
 iti) 4 Fnst, 477. Kasf, "K • i 
 
 ^ ^ of
 
 S26 OF THE -IIMK AI.T.OV) ]:n 
 
 of it ; 3, for the delivery of iJie conveyance ; 1, for 0\c rcimii 
 of I'lt and, 5, for the completion of tlic purchase, vere all 
 links of the same chain, and if one link were broken, tlic 
 whole chain would be destroyed. If the time appointed for 
 tlie delivery of the conveyance was not an essential ing-rc- 
 dient, but was meant Only to secure a delivery within a 
 reasonable time, it follows that the same rule must apply to 
 the time fixed for the return of it, and also to the time ap- 
 pointed for the completion of the purchase. The effect of 
 this rule would be, that the aj)pointment of a day would ha'^e 
 no effect, and in every case it mu:^t be referred to a jury to 
 consider whether the act was done v/ithin a reasonable time. 
 The precise contract of the parties would be avoided, in order 
 to introduce an uncertain rule, which would lead to endless 
 litigation. This cannot be compared to a case like Hall v. 
 Cazenove. There the ship did sail v.ithout being counter- 
 manded, and the substance of the covenant was considered to 
 be, that the ship should go to the place named on freight 
 and return again, and if the freighter sustained any damage 
 by reason of the ship not having sailed on the particular day, 
 he might recover it by bringing an action on the covenant. 
 "The covenants in favour of justice v;ere not considered as 
 dependent on each other. It would be monstrous that the 
 .ship should be permitted to sale to the place named, and re- 
 turn again, and yet not cam any freight, because it did net 
 sail on the day appointed. So where covenants go only to a 
 part of the consideration, and a breach may be paid fcr in 
 damages, the defendant has a remedy on the covenant, and 
 shall not plead it as a condition precedent. If A covenant 
 with B to build a house for him according to a certain plan, 
 and B covenant with A to pay for the house so built, it is 
 rl ear,- notwithstanding som.c authorities to the contrary, that 
 if A build a house, although not strictly according to the 
 plan, yet B must pay for it, and may recover in a distinct 
 action against the builder for any damage sustained by the 
 
 departnire
 
 TO COMPLETE THE COXTPaCT. 327 
 
 departure from the plan. Tlie justice of this is evident But 
 in the case under consideration, the agreements go to the 
 whole consideration oiv both sides ; they are mutual condi- 
 tions ; the one precedent to the other {/). If the draft of 
 the conveyance for instance is not delivered on the day ap- 
 pointed, the party who ought to deliver it has broken his 
 agreement, and cannot therefore recover upon it at law. This 
 works no injustice ; for the further execution of the contract 
 is at once stopped ; the seller retains his estate, and the pur- 
 chaser his purchase-money, and the party making default is 
 liable, as he ought to be, to an action for breach of his en- 
 gagement. It is to be hoped, therefore, that the day 
 appointed will always be deemed of the essence of the con- 
 tract at law. It has so been held in a recent case in the 
 Common Pleas (^). And in a later case upon a sale of 
 goods, where fourteen days were allowed from the day of sale 
 to the purchaser to clear away the goods, the seller was not 
 prepared to deliver them the day after the sale to the pur- 
 chaser, who applied for them ; and it was lield, that he (the 
 seUer) had broken his agreement, and could not recover 
 against the purchaser, who refused to perfonn the con- 
 tract {h). 
 
 'But equity, which from its peculiar jurisdiction is enabled 
 to examine into the cause of delay in completing a pur- 
 chase, and to ascertain how far the day named was deemed 
 material by the parties, will in certain cases carry the agree- 
 ment into execution, notwithstanding that the time ap- 
 pointed be elapsed ; for, as Lord Eldon remarks, tlie title to 
 an estate requires so much clearing and enquiry, that unless 
 substantial objections appear, not merely as to the time, h\\\ 
 
 (/ ) Boone T, Eyre, 1 H. (//) H'iS*^o° v. Laing, I Xfarsli. 
 
 Blackst. 273 ; ste 10 East, .564. 5\A ; aud see Corn'sh v. HowIr\ , 
 
 ig) Wild« V. Forlr, 4 Taunt. post* 
 334. _ 
 
 Y i ?.n 
 
 \
 
 S'i8 OF Tiin TIME A;.^o^\•En 
 
 an alteration of circumstances affectiug the value of the thiuj;: 
 or objections arising out of circumstances, nOf nierehj as to 
 the time, but the conduct of the parties during the time ; 
 unless the objection can be so sustained, many of the cases go 
 tlie length of establishing, that the objections cannot be 
 maintained (i). Perhaps there is cause to regret that even 
 equity assumed this power of dispensing with the literal 
 performance of contracts in cases like these. 
 
 Objections on account of delay seem divisible into tv/O 
 kinds. The one where the delay is attributable to ike 
 neglect of either party ; the other where the delay is unavoid- 
 ably occasioned by the state of the title ; and of each of these 
 we sliall treat in its order. 
 
 V 
 
 SECTION I. 
 Of Delay -^ occcibioncd by the Neglect of ekher Parly. 
 
 1 JtE time fixed on for the completion of a contract, was 
 formerly paid less attention to in equity than it now is, . 
 v~hich seems to have arisen fi-om the case of Gibson v. Pa- 
 terson (/:), v.-here, according to the report, a specific perfonn- 
 anee was decreed in favour of the plaintiff, the vendor; 
 without any regard had to his negligence in not producing 
 liis title-deeds, &c. xvithin the time limited. And Lord 
 
 'i. Per Lord Eldon, see 7 V'es. ncn r, Rapper, 2 Scho. jnd LeT. 
 Jhtj. 274 ; and s<;e H^-aTJ^C v. Tf- 683. 
 
 :;dnr, 13 Vcs. J-.m. 1:^7 3 jct Lmj. '{k) 1 Atk. V2. 
 
 Kard^^icke
 
 TO COMPLETE THE CONTRACT S59 
 
 Jlardwicke is rqwrtcd to have said, that most of the case? 
 which were brought into the court, relating to tlie execution 
 of articles for the snie cf an estate, were of the same kind, 
 and liable to that objection ; but that he thought there was 
 nothing in the objection. 
 
 It appears, however, that this case is mis-reported ; for 
 Lord Kosslyn, in Lloyd v. CoUctt (/), said he had looked 
 ?.nto the case of Gibson v. Paterson, in which the reporter 
 ii'ad made Lord Hardwicke treat the time as totally mma- 
 lorial He said, it v,as to be observed, that the circumstances 
 (f that case, of which he had taken a copy, did not call for 
 any such opinion. The purchaser, who hung back, had 
 bought an estate in mortgage. The contract took place in 
 November, and was to be completed in February ; in that 
 rime, therefore, the mortgage could only be paid oiF by treaty 
 with the mortgagee. Upon the facts it appeared, that ap- 
 j^dication had been made to the mortgagee, who consented 
 to take his money. Drafts of conveyance were made, and 
 countermanded by the purchaser. He had, after the con- 
 tract, demised })art of the estate to the vendor at a rent : 
 and upon application being made to him, every thing being 
 ready, he said he would be off the bargain ; he had no money 
 to pay for it ; and if they attempted to force him, he would 
 go to Scotland to avoid it. Lord Rossl^Ti added, there 
 could not be the smallest argument upon it, nor the least 
 doubt about the decree. 
 
 But whatever opinion I^ord Hardwicke entertained 0:1 
 tills subject (;«), it is now settled, that a man cannot cail 
 lywn a court of equity for a specific performance, unless he 
 has shown himself ready, desirous, prompt, and eager ; and 
 
 (7) 4 Ves. Jun. 690, n. ; and AII«y v. Deschampj, 13 Vest. Jim. 
 tfe •> nro. C.C. 497 ; see Radclirte 225. 
 
 therefore
 
 330 Of THK TIME ALLOWED 
 
 therefore time alone is a sufTicient bar to the aid of the 
 court. 
 
 Thus in a case (n) where the parties difFered as to the 
 construction of an agreement, and after a delay of seven 
 years, one of the parties filed a bill for a specific performance, 
 it was dismissed merely on account of the staleness of the 
 demand. 
 
 A bill for a specific performance is an application to the 
 discretion, or rather to the extraordinary jurisdiction of 
 equity, which cannot be exercised in favour of persons who 
 have long slept upon their rights, and acquiesced in a title 
 and possession adverse to their claim. Due diligence is 
 necessary to call the court into activity, and where it does 
 not exist, a court of equity will not lend its assistance ; it 
 always discountenances laches and neglect (o). 
 
 If the vendor be not ready with his abstract and title 
 deeds at the day fixed, the purchaser may avoid the agree- 
 ment at law. 
 
 Thus in a case (p) where upon a sale it was agreed that 
 a good title should be made out by the i Qth ot July ; in the 
 beginning of July the purchaser called on the vendor to show 
 him the title deeds ; but he not having them in his posses- 
 sion, gave the purchaser an abstract of the title, which did 
 not contain any of the deeds; and although it was suggested 
 that an application ought to have been made to the vendor 
 at an earlier period, yet Lord Kenyon ruled otherwise, as 
 the seller, he said, ought to be prepared to produce his title 
 deeds at the particular day. 
 
 This rule does not, however, prevail in equity ; for it is 
 there considered equally incumbent en the purchaser to 
 
 («) Milward v. Earl of Thanet, and Beatty, 68. 
 
 5 Ves. Juii. 720, n. (b' ; see Alley (p) Berry v. Young, 2 Esp. Ca. 
 
 V. Deschamps, 13 Ves. Jun. 225. 610, n. ; vide supra^ p. 322. 
 
 (o) Per Lord Manners, I Ball 
 
 ask
 
 TO COMPLETE THE C01<TRACT. SSl 
 
 ask for the abstract, as for the vendor to delivei' it. And, 
 therefore, if a purchaser do not call for the abstract before 
 the time agreed upon for its delivery (q), or do not ask for 
 it until it has become impossible to execute the agreement 
 by the day fixed (r), equity will consider the time as waved. 
 
 So, if the piu-chaser receive the abstract after the day ap- 
 pointed, and do not at the time object to the delay, he can- 
 not afterwards insist upon it as a bar to a performance in 
 specie (.5*) 
 
 It is, however) clearly settled, that a specific performance 
 shall not be Enforced, where ho steps have been taken by the 
 vendor, although in proper time urged by the purchaser to 
 do so, and the purchaser, immediately when the time is 
 elapsed, insists upon his deposit, and refuses to perform the 
 agreement. 
 
 This was decided in Lloyd v. CoUett {t) ; the case was, 
 that on the 10th August, 1792, tlie defendant contracted 
 for the purchase of the estate, the purchase to be completed 
 on or before the 25th of March, 1793, and had frequently 
 between those times applied for an abstract of title, but 
 could not obtain one. Shortly after the 25th of March, 
 1793, the purchaser applied for his deposit, with interest, 
 from the 10th of August, 1792, when he paid it ; and after- 
 wards repeatedly applied for it before the 10th of June 
 1793, when he brought an action for the deposit. On the 
 l6tli September, 1793, an abstract was delivered ; the pur- 
 chaser was then out of town, and on his return, on the 25th 
 
 (7) (Juost T. Homfroy, 5 \^'S. (0 -1 Rro, C. C. 469 ; 4 Vcf. 
 
 Jun. 818. Jim. 689 ; seeo Ves. 7*^7 ; 7 Wg. 
 
 (r) Jones V. Price, 3 Aii.'tr, J:in. 278 ; and see I'liuke v. Cur- 
 
 924. teip, stated infra i ToKs v. Webb, 
 
 {s) Smith V. Hurnnn, 2 Ansfr. 4 Br ). C. ('. 3'^0, cited; ami 
 
 51:7 ; and see Sv-ton v. SIndc, 7 T-i nc T. McU'.r, 6 Ves Juu, 349. 
 
 Vcs. Jun. 2b5. /i/.4^rf^ V^/^'/ '^ ' ''^'-^••' ^-yy^. 
 
 of
 
 '33^1 OF 'rili^ TIMi: AI.LO'.VJJ) 
 
 of October, wrote, insisting that he would not complete hisi 
 purchase. On the 6th of November tlie bill was filed by 
 the vendor for a specific performance, and for an injunction to 
 restrain the proceeding at law. Lord liosslyn said, the 
 cxjnduct of parties, inevitable accident, &c. might induce the 
 eourt to relieve ; but it wa« a different thing to say, that the 
 appointment of fi day was to have no effect at all, and thai 
 it was not in the power of the parties to contract, that if the 
 aoreement was not executed at a particular time, the parties 
 should be at liberty to rescind it. And he therefore consi- 
 dered the contract as at an end. 
 
 But where a vendor has proceeded to make out his title, 
 and has not been guilty of gross negligence, equity will assist 
 liim, although the title was not deduced at the time ap- 
 pointed. 
 
 Thus in Fordyce -^^ Ford (w), the purchase was to bo 
 completed on the 30th July, 1793. The abstract was not: 
 delivered until the 8th, and the treaty continued until tl'^e 
 l^oth of Septem-ber, on v;hich day the deeds were delivered, 
 and eveiy difficulty cleared up ; when the purchaser reftised 
 to proceed, alleging that he wanted the estate for a residence 
 for the last summer, and insisting he was not bound tc go on, 
 on account of the delay. The IMastcr of the Rolls said, 
 the rule certainly was, that where in a contract either party 
 had been guilty of gross negligence, the court v.'ould not 
 lend its assistance to the completion of the contract ; but in 
 this case he thought there had been no such negligence, and 
 decreed accordingly ; adding, that he lioped it would not be 
 gathered from thence, that a man was to enter into a cor\- 
 tract, and think he was to have his ovm time to make cut 
 his title. 
 
 The rules on this subject apply, as they ought to do, to 
 
 (x) 4 Bro. C. C. ^94; P-;'<1- rlilTe v. Warr'ngtor, 13 Ves. Ju". 
 
 ;ach
 
 TO COMPIJETE THE COKTRACT. fiSS 
 
 sicfh party. And therefore, where a purchaser permits a 
 long time to elapse, without evincing a fixed marked inten- 
 tion to carry his contract into execution, he will be left to 
 his remedy at law, although he may have paid part of the 
 purchase-money. He is not to be suffered to lie by, and 
 speculate on the estate rising in value {cc). Nor will he be 
 assisted by equity, where he has made frivolous objections to 
 the title, and trifled, or shown a backwardness to perform 
 his part of the agreement, especially if circumstances are 
 altered (y.) And where the price is unreasonable or inade- 
 quate, or the contract is in other respects inequitable, equity 
 will not assist either party, if he has permitted the day ap- 
 pointed for completing the contract to elapse without per- 
 forming his part of tlie agreement {z). 
 
 The time, however, is more particularly attended to in 
 sales of reversions ; for it is of the essence of justice that 
 such contracts should he executed immediately, and without 
 delay. No man sells a reversion who is not distressed for 
 money ; and it is ridiculous to talk of making him a com- 
 pensatiou by giving him interest on the purchase-money 
 during the delay (a). 
 
 So time is very material where the estate is sold in order 
 IQ pay oflP any incumbrance bearing a higher rate of interest 
 
 (x) Harrington V. Wheeler, 4 632; Bell t. HowarJ, 9 Mod. 
 
 ^"es. Juii. 686 J Alley v. Dvs. 302; ahd Main v. Mclboiirn, 4 
 
 champs, 13 V<f. Jun. 225. Ves. Jun. 720. 
 
 (y) Hayes v. Caryll, 1 Bro. P. (c) fu/e a«/*,cli. 5 ; aiidWhor- 
 
 C. 27 ; 5 Vin. Abr. 538, pi. 18 ; wood v. Simpson, 2 Vern. 186 ; 
 
 Sijurrier v, Hancock, 4 Ves. Jun. Lewis v. Lord Lechmere, 10 Mod, 
 
 t67 ; Pope V. Simpson, 5 Ves. 503. 
 
 Jun. M5; and Coward ?. Odin^- (a) Newman v. Rogerj, t liro. 
 
 «.ale, 2 Eq. Ca. Abr. 688, pi. 5 ; ('. C. 391 ; and see Spurrit-r f. 
 
 iiU'i r-pc Green v. Wood^ '2 Voju. Hancock. ^. W?. Jun. 667. 
 
 th;m
 
 334 or THK TIME ALtOWED 
 
 than the vendor is entitled to receive, in respect of the pnr^ 
 ch^ge-money, during the delay (b). 
 
 SECTION II. 
 
 Of Delays occasioned by the State of the TitU:. 
 
 It may be laid do\^'n as a general proposition, that a delay 
 accounted for on the ahove gTound will not prevent a specific 
 perfonnance being decreed, where the time fixed for com- 
 pleting the contract is not material. Thus if an estate wa^ 
 described as in good repair, and it turned out to be in bad re- 
 pair, and several months may be required to repair it, yet 
 the purchaser cannot resist the contract on the ground of 
 time, unless it could be clearly shewn, that he wanted pos- 
 session of the house to live in at a given period, by which 
 time the repairs could not be completed (c), So if the estato 
 is in lease, and it was stated that the purchaser would be 
 entitled to possession several months before the lease actu- 
 ally expire, yet he cannot rescind the agreement, unless the 
 personal occupation of the estate was essential to him at the 
 time appointed {d). 
 
 Where time is not material, and the title is bad, but the 
 defect can be cured, if 'the vendee is un\villing to stay, the 
 vendor should file a bill in equity to enforce the perform-, 
 ance of the contract {e) ; for it is sufficient if the party 
 
 (6) Popham r. Eyr?, LofTf, Dec. 1807, MS., S. C. 14 Ves. 
 
 786; and see a case cited in 2 Jan. 426 ; and see 13 Ves. Jun. 
 
 Scho. and Lef. 604. 77 . 
 
 (c) See Dyer T. Hargrave, 10 (<?) See 6 Ves. Jun. 655 ; 10 
 
 Ves. Jun. 505, supra p. 246. Ves. Jun, 315. 
 
 {d) Hal! T. Smith, Koils, 18 
 
 entering
 
 TO COMPLETE THE CONTRACT. 335 
 
 entering into articles to sell has a good title at the time of 
 the decree ; the direction of the court being, in all these 
 cases, to enquire whether the seller can^ not whether he 
 could, make a title at the time of executing the agree- 
 ment. 
 
 This principle was followed in a case of frequent reference 
 (/). And in a late case [g), the vendor, at the time he filed 
 the bill for a specific perfonnance, had only a temi of years 
 in the estate, of which he had articled to sell the fee simple, 
 and after the bill was filed, procured the fee by means of an 
 act of parliament ; and as the day on which the contract 
 was to be carried into execution was not material, a specific 
 performance was decreed. 
 
 The same rule prevails at law, where no time is fixed for 
 completing the contract y and an application for the title 
 has not been made by the purchaser, previously to an action 
 by the vendor for breach of contract. For in Thompson v. 
 Miles {/«), a man agreed to sell a term, of which he stated 40 
 years to be unexpired. It appeared there were only 39, but 
 by an agreement endorsed on the lease, the lessor agreed to 
 add one year to the unexpired term. This agreement was 
 dated after an action brought by the vendor for damages on 
 breach of agreement; and Lord Kenyon ruled, that the 
 vendor having at that time a good title, was suflficient. His 
 Lordship said, that it had been solemnly adjudged, that if a 
 party sells an estate without having title, but before he is 
 called upon to make a conveyance, by a private act of })arlia- 
 ment gets such an estate as will enable him to make a title, 
 that is sufficient : that here the plaintiff being enabled to 
 make a title, and the defendant never having applied for it, 
 he should not be allowed to set up against the plaintiflf'a want 
 
 (/) Langford v. Pitt, 2 P. {g) Wynn v. Morgan, 7 Ves. 
 
 Wms. G29 ; and see Jenkins t. Jun. 202. 
 
 Hiles, 6 Ves. Jun. b4b ; Seton v. (A) 1 Eip. Ca. 184, 
 Sitde, 7 Ve«. Jun. 2b3 
 
 of
 
 336 01' IHE TIME ALLOXVtD 
 
 of title, though the power of making that title v/as obtaine<l 
 after the action was brought. 
 
 But if the vendor cannot verify his abstract at the time ap- 
 ^.ointcd, or if he produce a defective title, and the purchaser 
 bring an action for recovery of the deposit, the vendor having- 
 a title at the time of the trial will not avail him. Thus in 
 Cornish v. Rowley (i), where a purchaser sought to recover 
 his deposit, it appeared, that the abstract of the title began i:i 
 the year 1793, and after reciting that the deeds relating t> 
 the estate had been lost, stated a fine and nonclaim. Upon 
 enqiiir\% it was found that the fact of the deeds having 
 been lost was not true. The counsel for the defendant said 
 they were ready to make out a good title. Lord Kenyon 
 said, that the vendor must be prepared to make out a good 
 title on the day '^"hen the purchase is to be completed. In- 
 dulgence, he X7as aware, was often given for the purpose oi 
 procuring probates of wills, &c. But this indulgence was 
 voluntary on the part of the intended purchaser. It is the 
 duty of the seller to be ready to verify his abstract at the da> 
 on which it was agreed that tlie purchase should be com- 
 pleted. If the seller deliver an abstract, setting forth a de- 
 fective title, the plaintiff may object to it. No man was 
 ever induced to take a title like the present. A fine and 
 nonclaim are good splices to another title, but they will not 
 do alone. There are many exceptions in the statute in favour 
 of infants, femes covert, &c. As a good title was not made 
 out at the day fixed, he should direct the jury to find a ver- 
 dict for the deposit, vdth interest up to that day. And a ver- 
 dict was found by the jury accordingly. 
 
 So in Eartiett v. Tuchin (A), assignees of a bankrupt sold 
 an estate, and no time xvas fixed for completing the purchase 
 The purchaser upon a supposed defect of title abandoned 
 
 (i)^B. R. Midd. Sitt. after M. ' U:) 1 Mnrsb. 533. 
 T. 40 G. ill. ] Sehv. N. P. 160. 
 
 tiie
 
 TO COMPLETE TIJE CONTRACT. 337 
 
 tlie contract ; afterxcards the commission was super sodeJ, 
 and a new one issued, under which the same assignees were 
 L'hosen. It was held tliat the purchaser might rescind the 
 contract, for at the time he gave notice of his abandonment 
 of the contract, the assignees could not make out a good title. 
 And in a late case (/), the facts were, that upon a sale it ^vas 
 agreed that the purchase-money should be paid on or before 
 Lady-day, 1803, on having a good title. The vendors were 
 assignees of a bankrupt who claimed under a will. I'^hey 
 thought that he had an estate tail under the will, and that 
 therefore they could make a title; but under the devise he 
 only took for life, with contingent remainders over. The 
 l)ankrupt, however, being heir at law of the testator, could 
 make a title by levying a fine, and was wiling to join; but 
 these facta were not stated in the abstract delivered, or com- 
 municated to the purchaser until a fortnight before the 
 assizes. The court, after shewing that the bankrupt took 
 only an estate for life under the devise to him, said, as it was 
 .stated, that previous to the time fixed for payment of the 
 money, and completion of the purchase, or indeed till near 
 tlie time of trial, no information was given to the purchaser 
 that the bankrupt was heir at law of the testator, but the 
 title of the assignees appeared to have been delivered in, on 
 the supposition of the bankrupt being tenant in tail, they 
 thought that the defendant had failed in making good the 
 agreement on his part ; and that thereupon a right of action 
 at law had accrued to the plaintiff. How far the title since 
 communicated might in another course of proceeding in 
 another place, render the present proceeding abortive; and 
 whether the plaintiff might not be ultimately compelled 
 
 (/) Seward v, "Willock, 5 Easf, 12 Ves. Jun. 326, where the pur- 
 
 198 ; I Smith's liep. 390, S. C. ; chaier rccovercJ at luw. y- 
 and see Radcljffe v, Warrington, 
 
 Z 10
 
 :V,i^ OF THE TIME ALLOWED 
 
 to fulfil his agreement, was not for them in that action to 
 decide (I). 
 
 In an early case {m) the Court of Chancery carried this 
 doctrine very far ; for at the time of the articles for sale, or 
 even when the decree was pronounced. Lord Stourton, the 
 rendor, could not make a title, the reversion in fee being in 
 the crown ; and yet the court indulged him with time more 
 than once for the getting in the title from the crown, which 
 could not be effected without an act of parliament, to be ob- 
 tained in the following session ; how^evcr, it was at length 
 procured, and Sir Thomas Meers decreed to be the purchaser 
 (II) ; and even at this day, although the Master report 
 against the title, yet if it appear that he will have a title 
 upon getting in a term, or procuring letters of administra- 
 tion, &c. the court will not release the purchaser ; but 
 will put the vendor under terms to complete his title 
 speedily {n). 
 
 And "where a purchaser enters into, or proceeds in a treaty, 
 after he is acquainted with defects in the title, and knows 
 that the vendor's ability to make a good title depends on 
 the defects being cured, he will be held to his bargain, 
 although the time appointed for completing the contract is 
 expired, and considerable further time may be required to 
 make a good title. 
 
 (7«)Lord Stourton v. Sir Thomas man, 5 Ves Jun, 722. 
 Meers, stated in 2 P. Wms. 631 ; (n) Coffin v. Cooper, 14 Ves. 
 
 and see Slieffield v. Lord Mulgrave, Jun. 205. 
 2 Ves. Jun. 526 ; Omerod v. Hard- 
 
 (I) [t should seem that he could not be compelled to take the title, 
 for equity does not countenance the destruction of contingent remaind- 
 ers. See rioake v Kidd, 5 Ves. Jun. 647. 
 
 (II) Note, it appears that Sir Thomas Meers was mortgagee of the 
 estate; (see Sir Thomas Meers v. Lord Stourton, 1 P. Wms. 46;) and it is 
 therefore probable that at the time he entered into the contract, he vas 
 aware of the defects in the title, 
 
 Tlius
 
 TO COMPt.ETE THE CONTRACT. 339 
 
 Thus in a case (o) where it was agreed upon a piu'chase, 
 that it shouU be completed on the 5th April, 1792, it ap- 
 peai-ed that the purchaser had applied for an abstract at the 
 latter end of January, or the beginning of February, which 
 not being sent to him, he, after the expiration of the time 
 for the completion of tlic piu-chase, applied for his deposit, 
 saying, that he should not proceed in his purcliase. About 
 the 21st of yipril, an abstract was sent him, and it appeared 
 that a suit in Chancery must be detemiined before a title 
 could be made, upon which he again declared he would not 
 proceed in the purchase, and again required his deposit. In 
 Trinity term he brouglit an action for his deposit, and, on tlie 
 Cth of jSTovember, the bill w^as filed. The purchaser, by his 
 ans^'cr, stated that the suit ^vas >still depending, and that 
 questions of law had arisen, which then stood for argument 
 in tlie court of King's Bench. 
 
 The Lords Commissioners Ashurst and Wilson, granted 
 an injunction, which was continued by Lord Kosslyn, who 
 said, in these contracts (sales by auction) in general, the 
 time of completing the contract is specified, and a deposit 15 
 paid; and if the title is not made out by the time, the ven- 
 dee is entitled to take back his deposit. But in this case 
 the vendee was apprised qfi/ie title depending o?i the ahi- 
 Utyofthe vendors to make a good title, which itself de- 
 pended on the event of a Chancery suit, and was, not- 
 withsta7idi?ig, willing to go on xvith his purchase; there 
 had been a covimnnication of tlie delay of the suit, and the 
 present hill was filed after great delay (I). If the ven- 
 
 (o) Piiicke V. CurteJs, 4 Bro. Meller, 6 Vcs. Jun. 3-19 ; Sfe 
 C. C. 329 ; and see Smith v. Bur- Sn.ith r. Sir Thomas Dolman, 6 
 nam. 2 Anstr, 527 ; and Paine t. Bro. P. C. 291, by Tomlins. 
 
 (I) The jiii'gment shews the true ground of ihe decree ; but according 
 to tlje stale of facts in the report, the case was similar to that of I-luj J 
 V. Collet, stated supra, p. 329. 
 
 /^ C lice
 
 .'UO OF THE TIME ALLOWED 
 
 dee had called for his deposit at the end of the time limited 
 for completing the purchase, and insisted he would not go 
 on with liispurchasc, the court would not have compelled him. 
 The cause was afterwards heard hefore the Master of the 
 Rolls, who was also of opinion, that there had Been a suffici- 
 ent communication of the real state of the delay, and that 
 the purchaser had acquiesced in it, or at least not sufficiently 
 declared his dissent to go on witli the purchase ; and there- 
 fore it was referred to the Master to enquire as to the title. 
 
 So in Seton v. Slade (/?), it appeared that the purchaser 
 was aware of the objectioiTS to the title at the time he pur- 
 chased the estate, and afterwards accepted the abstract 
 within a few days of the time appointed for completing the 
 contract. He had, however, previously declared, that if the 
 title was not made out by the time, he would relinquish the 
 contract; and the day after the time appointed, he actually 
 applied for his deposit, alleging that the abstract, so far from 
 shewing a right in the vendor to convey, stated merely a 
 contract for the purchase by him, v/ithout noticing a suit ia 
 Chancery. But the purchaser having been aware of the 
 objections to the title, and having afterwards received th? 
 abstract, a specific performance was decreed. 
 
 Although a treaty may have Iain domiant for some time, 
 yet if the contract is not a.bandoned, a performance will be 
 decreed hi specie. 
 
 Thus in a case {q) where, upon objections to a title, the 
 treaty had proceeded for about two years, when the vendor's 
 solicitor wrote, calling for a distinct answer, saying, that 
 otherwise he must be under the necessity of filing a bill- 
 No answer was returned to the letter, nor was any notic* 
 given that the pm'chaser considered the contract as abandoned; 
 neither had he brought any action for the deposit. Ths 
 
 (n) 7 Ves. Jim. 265./.^ ^'^y^L*^/, Earl of Thanet, 5 Ves. Jun 
 ((/) Marquis of Hertford r. BodVe, tiO, n, (b). 
 5 V'es. Jun. 719; see Milward t. 
 
 bill
 
 TO C03IPLETE THE CONTRACT. Jtl 
 
 hiW was filed after a delay of about 14 months, and tlie de- 
 fendant registed a specific performance on the ground of 
 delay, by which, he stated, he had suffered material incon- 
 venience, having purchased the place as his residence, and 
 that he was induced to consider the contract as abandoned. 
 A specific performance was however decreed. 
 
 But if a purchaser object to the title, and declare he will 
 not complete the contract, and the vendor acquiesce in this 
 declaration, he cannot afterwards clear up tlic objections to 
 his title, and compel the purchaser to perform the agreement. 
 This was decided in the case of Guest v. Homfray (r). The 
 purchaser took objections to the title, and was informed that 
 no better title could be made ; whereupon he said, he would 
 not proceed in the purchase, and afterwards returned the 
 abstract, at the desire of the vendor, at the same time ac- 
 quainting him (the vendor) that he (the purchaser; still con- 
 sidered the contract was at an end. In about eight months 
 after this, the abstract was returned, \vith the objections 
 answered, and the bill was filed upon the defendant rcfusir.p; 
 to complete the contract. I3ut the bill was dismissed, 
 although it was clear that tho purchaser had almost all the 
 time wished to be off the bargain. Lord Alvauley, thc?i 
 Master of the Rolls, said, they should have cautioned tl^e 
 purchaser, and told him they were going on to make out ci 
 title. If they had done lAl that, and shewn a probable 
 ground to the purcliaser that they might make a good title. 
 Lord Alvanley said, he should perhaps not have thought e. 
 3car too long. 
 
 Where circumstances arc such that the purchasc-nioney 
 cannot be paid for a length of time, as if the purchaser die, 
 or become bankrupt before the contract be carried into-cfTect, 
 iivA his executors, or assignees, are not able to get in the 
 assets or cfFects, the vendor is entitled to require thq con- 
 
 (r)P5 Vos. Jun. 818. 
 
 7. '3 tract
 
 Si2 OF THE TIME ALLOWED 
 
 tract to he icscinckd, and he will be allowed lii:? cost.s (.s); 
 or he may demand a specific performance ; and if the de- 
 fendants are unable or unwilling to perform the contract, 
 that the estates may be resold ; and if the purchase-money 
 arising by the resale, together with the deposit, shall not 
 amount to the purchase-money, that the defendant may pay 
 the deficiency. — A bill for the latter purposes was filed by a 
 vendor against the assignees of a bankiiipt, and a decree 
 was made for resale. The deficiency upon that resale was 
 5016/. ; and the cause coming on for further directions. 
 Lord Rosslyn directed that sum to be proved under the 
 commission ; saying, the whole purchase-money was the debt, 
 and the vendor had a lien on the estate (t) ; which proving 
 by the resale deficient, the residue was to be proved under 
 the commission (ii). 
 
 In a late case, where an estate was sold by auction, in 
 crder to pay off incumbrances, under the usual condition^j 
 and the purchase was to be completed on the 25th of jMarch^ 
 1S05, the estate was sold for 123,000/. and the purchaser 
 paid only 4000/. as a deposit, when he ought to have paid 
 24,C00/. A short time previously to Lady-day he wrote a 
 letter to the vendors, acknowledging liis inability to pay, 
 and requesting them to join in a resale, offering to pay any 
 loss by the second sale. This they refused ; and he not 
 having the money ready, on the 27th of March, 1805, filed 
 a bill for a specific performance, evidently to gain time. The 
 vendors filed a cross bill ; and afterwards the purchaser be- 
 came a bankrupt, when the causes were revived. The ex- 
 penses of the vendors in payment of the auction duty, &:c. 
 
 (s) Mackreth v. ^.larlar^ 1 Cos, Dickenson v. Heron, infra, ch. 
 
 259 ; Cox's n. 1 to 2 P. Wms. 67 ; 10. 
 
 Vvliittaker v. Whit taker, 4 Ero. C. (/) J'ide supra, cli. 1, 
 
 C. 31 ; see Sir James Lowtiier v. («) Bowles v. Rogers, 6 Ves. 
 
 f.ady Andover, 1 Ero. C, C, 396 ; Jun, 95, n. 
 
 were
 
 TO COMPLETE THE CONTRACT. 343 
 
 were very considerable. The cross cause came on first, the 
 assignees of course could not bind themselves to pay the 
 money ; and the contract was decreed to be delivered up and 
 cancelled, so that the vendors became entitled to the 4000/. 
 deposit (iV). 
 
 We are now to consider whether equity will pennit the 
 parties to make time the essence of the contract. 
 
 In Williams v. Thompson or Bonham (?/), the bill was 
 to carry into execution the tiiists of a will, and for a specific 
 performance of an agreement by Bonham, to purchase a real 
 estate of the defendants. By the agreement, dated the 9tli 
 of .July, 1778, it was particularly expressed, " that in case a 
 good title to the premises, discharged from all claims and 
 demiuids whatsoever, should not be made out to the satisfic- 
 tion of Bonham within tln-ec years from the date thereof, 
 the agreement thereby made, so far as concerned tlie pm- 
 chase of the premises [for the agreement contained otlier 
 stipulations] should from thenceforth become void." Tiie 
 defendant was always ready to have completed his pur- 
 chase, but the trustees under the will were incapable of 
 making out a title without the aid of equity, and for tliat 
 purpose the bill in question was filed in February, 1781. 
 The cause came to a hearing on the 29th of June, 1782, 
 when the defendant (Bonliam) insisted, that the title not 
 liaving been made out at the time mentioned in the agree- 
 ment, he was discharged from his purcliasc. But Lord 
 Thurlow was of opinion, tliat the time fixed by the articles 
 for making a title to the defendant was only formal, and not 
 
 (t) Steadman v. Lord Gal. (y) 4 Bro.C.C. 331, cited ; XcwI. 
 
 loway, ct e conlra, Rolls, 9th Contr. 238, stated. See the Cuse 
 Feb. 1808. in Lib. K<>g. B. 1781, fal. 5o-l, 
 
 z 4, of
 
 341 Oi" THE Tl.ME ALLOWED 
 
 of the essence of the agreement ; and, as appears by t!ie Kc* 
 gister's book, he declared, that the three years being expired 
 was not a sufficient objection to the agreement being per- 
 fonned. 
 
 / This ease depends so much on its own complicated circum- 
 stances, as scarcely to admit of being cited as an authority 
 which should rule any other case. I find, from the Regis- 
 ter's book, that it wa« impossible to make a title without a 
 decree. The agreement, which was very long and special, 
 stated all the facts ; and it was expressly stipulated, thnt 
 the trustees should use their utmost endeavours to obtain a 
 decree, and the purchaser was immediately let into possession. 
 Now the bill was filed before the expiration of the three 
 years, no laches was imputed to the trustees, and it did not 
 appear that the purchaser had sustained any loss, or been 
 put to any inconvenience. It would therefore have been a 
 strong measure to have held, that the time was of the es- 
 sence of the contract. The purchaser entered into the con- 
 tract with full knowledge of all the obstacles in the y.ay of 
 makinga title; and vmless the purchase was completed, there 
 was no mode of indemnifying the trustees for the expense 
 incurred by the Chancery suit. 
 
 In the case of Gregsonv. Riddle (z), which was also be- 
 fore Lord Thurlow, the agreement was for a particular day ; 
 with a proviso, that in case the title should not be approved 
 in two months, the agi'eementwas to be void, and of no effect. 
 There was an outstanding legal estate, which could not be 
 got in by that time. A bill was filed for that pui-pose, to 
 have the legal estate conveyed. The defendant resisting, a 
 reference was directed, to see whether a good title could be 
 made ; Lord Loughborough, then Lord Commissioner, ex- 
 pressing an opinion, that the tciTns of tlie agreement were 
 
 (s) 7 Vcs. Jun. 268, ciUd. 
 
 torn-
 
 TO COMPLETE THE CONTRACT. 345 
 
 ooini)lied \vith (I). The report was in favour of the title. 
 The cause coming on before Lord Thurlow, the performance - 
 was still resisted. Lord Thurlow said, it had been often at- 
 tempted to get rid of agreements upon this ground, but 
 never with success. The utmost extent was to hold it evi- 
 dence of a waiver of the agreement ; but it never was held 
 to make it void. INIr. Mansfield, for the defendant, said, 
 the intention was clearly to make it void ; and that it would 
 be necessary to insert a clause, that notwithstanding the de- 
 cision of the court of Chancery, it should be void. Lord 
 Thurlow said, such a clause might be inserted ; and the 
 parties ivould be just as forward as they were then. 
 
 On this dictum it must be remarked, that the case did 
 not call for it, as the agreement appears to have been sub- 
 stantially performed within the time. And it is said, that 
 in Potts V. Webb, before Lord Thurlow, it being part oi" 
 the terms that the purchase should be completed by a certain 
 time, his Lordship thought that a good reason for not de- 
 creeing a specific performance {a). At the same time it 
 must be admitted, that Lord Thurlow entertained a floating 
 opinion, that time could not in general be made of the 
 essence of the contract. It does not appear, however, that 
 any case ever came before him in which he was called upori 
 to decide the point, and his opinion has not been lbll(Avcd iii 
 subsequent cases. 
 
 For in Lloyd y. Collet (6), in which the case of Grcgsou 
 V. Kiddle was cited, Lord Chancellor Loughborough said. 
 
 (a) -4 Bro. C, C. 330, cited. {b) 4 Bro. C.C. 469 ; 4 Ves. 
 
 Jun. 689 ; n. stated supra. 
 
 (I) The stipulation was, that in case tiie title should not be approved 
 of by the purchaser's counsel within two months, the articles should be 
 void. The diiUculty upon the title arose upon a settlement which the 
 seller insisted was voluntary, and not upon a mere outblauding legal 
 tstate. Ihcsclkr insisted upon beini at liberty to rerdnd the contract, 
 uiider the clause in the articlei;, 
 
 the
 
 S4G 01 THE TlMJi ALLOWED 
 
 the" conduct of tlie parties, inevitable accident, kc. might 
 induce the court to relieve ; but it was a different thing to 
 say, the appointment of a day was to have no effect at all, 
 and that it was not in the power of the parties to contract, i 
 that if the agreement was not executed at a particular time, 
 the parties should be at liberty to rescind it. 
 
 And in the late case of Seton v. Slade (c). Lord Eldon 
 said, he inclined much to think, notwithstanding what was 
 said in Gregson v. Riddle, that time may be made the es- 
 sence of the contract. 
 
 The case under consideration has been assimilated to a 
 mortgage, where, aitliough the parties may have expressly 
 stipulated, that if the money be not paid at a particular 
 time, the mortgagor shall be foreclosed, yet equity will per- 
 mit him to redeem, in the same manner as if no such stipu- 
 lation had been entered into. There does not appear to be 
 any analogy between the cases. In a mortgage such a de- 
 claration is inserted by the mortgagee for his own advantage ; 
 but as the land is merely a security for the debt, equity 
 rightly considers that a mortgagee ought only to require his 
 principal and interest, and not to obtain the estate itself, by 
 taking advantage of the necessities of the mortgagor. Once 
 a mortgage and always a mortgage, has therefore become a 
 maxim ; and under this axiom equity is indeed administered ; 
 the parties being put in possession of their respective rights 
 without detriment to each other. The same reasoning 
 seems to apply to relief against a penalty. But in an agree- 
 ment for sale of an estate, where it is expressly declared 
 that the contract shall be void if a title cannot be made by a 
 stated time, the parties themselves have mutually fixed 
 
 (c) 7 Ves. Jun. 265; and see 12 Ves. Jun. 333; 13 Vef. Jun. 
 Lewis V. Lord Lechmere, 10 Mod. 289 ; 2 Mcr. 140; Levy v. Lindo, 
 £03; see also 3 Ves. Jun. 693; 3 Mer. 81. /^/^^^ ^ A/A-^y 
 
 //' ^ '^<^^ - upon
 
 TO COMPLETE THE CONTRACT. 347 
 
 >ipon the time ; the bona fides of siicli a transaction seem 
 ■to be a bar to the interference of a court of equity ; and if 
 tlie contract be vacated by virtue of the agreement, the par- 
 lies will still be in the possession of their respective rights. 
 Wc may, therefore, perhaps, venture to assert, that if it 
 dearly appear to he fhe intention of the parties to an 
 agreement, that time shall be deemed of the essence of the 
 contract, it must be so comidered in equity (d). " ^ ^^ Ct^ ^a<: 
 
 ^A;*^^^ /^^^^ t/-^r^r/2 / Jk<^^c//:y^4 !,^/a .) /^' ^.^. ^•i.^^^'tr^ 
 
 J.,^^^ V/C^,, ^-^. |L i'/Z^ .-^^i^^Z r^/ ^^^}^v^y -^^-*^<^<^>^7Z^ 
 It remains to observe, that xvliere no time is limited flir^^^ ^ 'f-^s.J^ 
 
 the performance of the agreement ^ the cases considered 'j^*^,'*^^ 
 under the first division in this cliapter, "will assist the student "^^ *" 
 in forming a judgment in v.hat instances equity "svill assist 
 a party who has been guilty of laches, although every case 
 of this nature must in a great measure depend upon its own 
 particular circumstances. The cases classed under the se- 
 cond division apply, hovvcver, with greater force to cases 
 Vvhere no time is limited than to those where a day is fixed, 
 for in the former cases, the court has not to struggle against 
 an express stipulation of the parties. 
 
 A case came before the Lords Commissioners in 1792 
 (f), where no time was limited for performing tlie agree- 
 ment. The plaintiff was one of two devisees in trust to sell, 
 and pay debts, and had alone sold the estate (I), and entered 
 into articles with the defendant. The co-trustee afterwards 
 rcTused to join ; and there was a mortgagee who refused to 
 
 (</) See Appoiulix, No. 6. Lib. B. 1792, fo. 28. nom. Tvrti 
 
 (t) Tj'rer v. Artinjstall, Ncwl. v. Bailry. 
 Toiitr. 236 J see the caso in Reg. 
 
 (I) Tl:e estate was sold by auction tvith Inc coucurrcncc. of the othci 
 inislce, The plaintiflj liowtvtr, only Hgncd the agreement. 
 
 be
 
 a48 OF THE TIME ALLOWED, &C. 
 
 be paid off. Neither of these circumstances was disclosed to 
 the purchaser, and upon tliis delay in the title he proceeded 
 to brinff his action against the vendor for a breach of the 
 ^4^^^ agreement. The ph dntiff brought his bill to compel a spe- 
 ,.i!s^5^;?#*'^'rrfic performance, and to have the co- trustee join ; and the 
 mortgage redeemed, and to stay the action. The defendant 
 suffered an injunction to go against him for want of an an- 
 swer ; and having afterwards answered, a motion was made 
 to dissolve the injunction ; and the cause she\Mi by the 
 plaintiff was, the possibility of making a good title by this 
 very suit. The court held the purchaser bound, and con- 
 tinued the injunction. 
 
 In this case it appears from the Register's book, that the 
 purchaser insisted on his purchase, and that the injunction 
 should be dissolved ; which was certainly a very important 
 feature in the cause. It was not the case of a man merely 
 seeking to recover his deposit. It must, however, be re- 
 peated, that it is impossible to lay down any general rule 
 applicable to cases where no time is appointed for performing 
 the agreement.' Indeed, throughout this chapter, it has 
 been found impossible to treat the subject of it in an elc* 
 mentary manner. 
 
 CHAP.
 
 [ 349 ] 
 
 CHAPTER IX. 
 
 OF THE ABSTRACT AND CONVEYANCE : THE ASSIGN- 
 MENTS OF TEIIMS, ATTESTED COPIES AND COVENANTS 
 FOR TITLE, TO WHICH A PURCHASER IS ENTITLED ; 
 OF SEARCHING FOR INCUMBRANCES : AND OF RELIEF 
 TN RESPECT OF INCUMBRANCES. 
 
 SECTION I. 
 
 Of the Abstract and Conveyance, 
 
 1 HE vendor must at his own expense furnish the pur- 
 chaser \vith an abstract of his muniments (I), and deduce 
 a clear title to the estate. The abstract ought to mention 
 every incumbrance whatever affecting the estate, and should, 
 therefore, contain an account of every judgment by which 
 the estate is affected (a) ; but equity considers it complete 
 whenever it appears, that upon certain acts done, the legal 
 and equitable estates will be in the purchaser ; which may be 
 long before the title can be completed {b). 
 
 (fl) Richards v. Bartoo, 1 Esp. (ft) See 8 Ves. Juo. 436. 
 
 Ca.268. 
 
 (1) Formerly the title-deeds themselves were delivered to the pur- 
 chaser, and his solicitor prepared th^' abstract at his eipense ; and the 
 abstract was compared with the title-deeds by the counsel before wliom 
 it wai laid ; see Temple t. Brown^ 6 Taunt. CO, 
 
 The
 
 3,jO of tiik conveyance. 
 
 The abstract is delivered for the following piirposer. : 1st, 
 That the purchaser may see whether tlic title is such as he 
 will accept. He has also a right to it after he has taken an 
 opinion, in order to take another opinion in case he is not 
 satisfied with that, and for the puq)osc of taking further 
 objections, and of further considering the title. He must 
 have it too for another purpose, to assist him in preparing 
 liis conveyance, that he may sec who must be made parties, 
 what form of conveyance is expedient, what parcels are to be 
 inserted, and the like (c). As to the general property in the 
 abstract, it is hard to say, who may have it ; while the con- 
 tract is open, it is neither in the vendor nor in the vendee 
 absolutely ; but, if the sale goes on, it is the property of the 
 vendee ; if the sale is broken off, it is the property of the 
 vendor. In the mean time the vendee has a temporary 
 property, and a right to keep it, even if the title be rejected, 
 until the dispute be finally settled, for his o\m justification, 
 in order to shew on what ground he did reject the title (d). 
 If the purchase go off, not only is the abstract to be returned, 
 but no copy to be kept, lest it should be used for a mis- 
 chievous purpose (e) ; and although the purchaser pays for 
 the opinion, yet, for the same reason, that ought, it should 
 seem, to be returned with the abstract ( /). 
 
 In a case where the piu-chaser returned the abstract to 
 the seller, to answer the queries and opinion of counsel, it 
 was held, that he (the purchaser) might maintain trover 
 against the seller for the abstract, although the seller him- 
 self might ultimately be entitled to the abstract. The tem- 
 porary property of the pui'chaser in the abstract was sufficient 
 to enable him to maintain the action {g). 
 
 ( c ) See 2 Taunt. 276, per rence, J. 
 
 Manslield> C. J> (/) See and consider 2 Taunt= 
 
 (rf) 2 Taunt. 278, per Cham- 270, per Mansfield, C. J. 
 
 bre, J. (g) Roberts v. Wyatt, 2 Taunt. 
 
 (e) 2 Taunt. 277, per Law- 268. 
 
 The
 
 OF THE CONVEYANCE. 351 
 
 The seller is bound to produce the deeds, in order that 
 tlie abstract may be examined witli them, although they are 
 not in his possession, and the purchaser is not to be entitled 
 to the custody of them. But, if they are in the possession 
 of a third person, the purchaser's solicitor, it seems, must 
 send to the place where the deeds are, in order to examine 
 them with the abstract, and the seller must pay the cxpcnce 
 of the journey (//). (I). 
 
 The strict rule seems to be, that the vendor must procure 
 the fee to be vested either in himself, or a trustee for him ; 
 and that a purchaser is not compellable to bear the expense 
 of a long- conveyance, on account of the legal estate having 
 been outstanding for a length of time, or of the estate being 
 subject to incumbrances which are to be paid off (/). It is 
 not, however, very usual to insist upon this, unless the title 
 cannot be perfected without a private act of parliament ; in 
 which case, the expense of obtaining it is always borne by 
 the vendor. 
 
 Unless there be an express stipulation to the contrary, 
 
 (A) Sharp V. Page, Rolls, 1815, MS. (i) See 1 H. Blackst. 280. 
 
 (I) Sale by assignees of a bankrupt. A settlement of 1763 was in 
 the possession of a former purchaser, and there was only a covenant to 
 proiluce a copy of it. A bill was filed by the assignees for a specific 
 performance. The purchaser was informed that the settlement was In 
 the possession of a gentleman in the country, and might be seen thcrs. 
 lie was ready to covenant to produce it. The purchaser submitted to 
 the Master that it was the duty of the sellers to produce the deeds stated 
 in the abstract before the Master, or to the purchaser's solicitor in Lon- 
 don. The Master stated, that he would make enquiry of conveyancers, 
 what the practice in such cases was, and afterwards decided, that (hj 
 purchaser's solicitor ought to send fo Baldork, where the deeds were, to 
 compare the abstract with the seltlomeut, bit thit the sellers ought io 
 pay the expenccs of such journey. 
 
 the
 
 352 
 
 Ot XBTE CONVEYANCi:. 
 
 the expense of the conveyance falls on the purchaser (A:) : 
 who, as we have already seen, must in that case prepare and 
 tender the conveyance (/). The expense attending the execu- 
 tion of the conveyance is, however, always borne by the vendor. 
 
 If the estate be copyhold, the purchaser must bear the 
 expense both of the surrender to him and of his admis- 
 sion {i/i) ; and a vendor is not obliged to pay the fine due on 
 the admission of the vendee, although he covenant to sur- 
 render and assure the copyholds at his own costs and 
 charges {?i) ; because, it is said, the title is perfected by the 
 admittance, and the fine is not due till aftei' (o). 
 
 If a draft be altered by either party, although the altera- 
 tion be such as would be supported by the courts, yet the 
 Jraft as altered should not be ingrossed without a communi - 
 cation being first made to the other party ( p). 
 
 A piurchaser has a right to require the vendor himself to 
 surrender the estate, if copyhold, and to execute the convey- 
 ance, if freehold ; and he cannot be compelled to accept 
 either a surrender, or conveyance, under a power of attorne}'. 
 unless an actual necessity appears for it {q) ; for it tends 
 
 (/t) See 2 Ves. Jun. 155 ; and 
 note, this is the uniTcrsal practice 
 of the profession. 
 
 (/) Supra, ch. 4. 
 
 (m) Drury r. Man, 1 Atk. 95, 
 Saunders's edition. 
 
 (?i) Graham t. Sime, 1 East, 
 632. 
 
 (o) Dalfon v. Hamraondj 4 Co. 
 28, a. ; Rex v. Lord of the Manor 
 ftf Hendon, 2 Term Rep. 484; 
 aud see Fishe v. Rogers, 1 Ro. 
 Abr. 506; (A) pi. 1; 3 Burr, 
 1543} Lex Cust. p. 163 ; Wood's 
 Inst. p. 137} Gilj. Ten. 205; 1 
 Watk- Copjh. 286 ; sed qu, and 
 
 see Dalton v, Hammond, Cro. 
 Eliz. 779, Mo. 622, pK 851 ; and 
 supp. to Co. Copy. s. 10 ; and 
 Parkins v. Titus, MS. In the 
 first edition, the author cited 
 Willowes's case, 13 Rep. 1, as 
 subversive of the authorify of Dal- 
 ton V. Hammond, as reported in 
 Coke ; but upon further consider- 
 ation, he is satisfied that he was 
 wrong. 
 
 (p) See Staines v. Morris, 1 
 Ves. and B'^a. 15. 
 
 (q) Mit(hel v. Neale, 2 Ve?. 
 679 ; Richards v. Barton, 1 Esp, 
 Ca. 268; and see ibid. 115. 
 
 to
 
 OF THE CONVEYANCE. 3;>3 
 
 to multiply his proofs, and he may be put mider difficulties 
 by these means ; the letter of attorney may he lost, and the 
 party is obliged to prove the execution of it (?). A letter of 
 attorney may be revoked the next moment, that revocation 
 may be notified to tlie attorney without the purchaser's 
 knowledge, and then the conveyance would be void ; and the 
 purchaser's only remedy would be a suit in equity {s). 
 
 Besides, the vendor may be dead at the timxe the power 
 is exercised, and in tliat case the execution would be void, 
 as a power of this nature expires by tlie death of the prin- 
 cipal {f). For this reason, where a purchaser chooses to 
 permit the conveyance to be executed by attorney, the at- 
 torney should execute a declaration of trust, that he will 
 stand possessed of the purchase-money in trust for the pur- 
 chaser, until it citlier appear by satisfactory evidence, tliat 
 the vendor was alive at the time of the execution of the 
 deed, or if he shall be dead, until the estate is duly conveyed 
 to the purchaser. 
 
 As a purchaser cannot be required to take a conveyance 
 executed by attorney, so, on the other hand, if a vendor only 
 covenant to surrender or convey lands to a purchaser upon 
 request, he is not compellable to appoint an attorney for 
 that purpose {u). 
 
 Where the estate lies in a register county, the convey- 
 ance should be registered as soon as it is executed. Mr. 
 Hilliai-d remarks (x) that, by the statutes for registry there 
 is no time limited for registering deeds ; and that it is there- 
 fore obvious from an inspection of the acts, how necessary it 
 
 (r) See Johnson v. Mason, 1 (t ) Shipman v. Thompson, 
 
 Esp. Ca. 89. Wynne T. Thomas, Willes, 105, 
 
 (*) Per Lord llardwicke, in 565 ; Wallace v. Cook, 5 Esp. Ca 
 
 casu Mitchell v. Ncale, ubi sup. 117. 
 
 As to the revocation of a power («) Synims v. Lady Smith, Croj 
 
 of attorney, see Walsh v. Uhit- Car. 299, Godb. 445. 
 
 comb, 2 Esp. Ca. 565. (x) N. (2) to Shep. Touch. 1 1 6. 
 
 2 A 'i%
 
 3.)4 OF THE CONVEYANCE. 
 
 is, that deeds should he registered immediately on their 
 being executed: to enforce this the more strongly, he- adds^ 
 it may not be useless to consider, if a subsequent convcyanc« 
 or mortgage should be executed for a valuable consideiation^ 
 and from an almost momentary inattention or delay of the 
 first vendee, or mortgagee, in not immediately registering, 
 the second vendee or mortgagee should register first ; whether, 
 in such case, the first vendee, or mortgagee, doth not thereby 
 become in a worse situation than he would have hem by 
 Law, in case the registering acts had not been made. 
 
 It is very clear, that in the case put, the subsequent pur- 
 chaser or mortgagee, unless he had notice, would prevail 
 over the first vendee, or mortgagee. And it must be re- 
 marked, that by delaying to register his conveyance, a pur^ 
 chaser gives a prior incumbrancer, who may have neglected 
 to register his incumbrance, an opportunity of retrieving his 
 error, and thereby establishing his demand on the estate . 
 for the acts only say that deeds shall be void, unless such 
 memorial thereof is registered, as by the acts is directed^ 
 before the registering the memorial under which the svh* 
 sequent purchaser claims {y). 
 
 It appears, therefore, that there are two cogent reasons 
 why a memorial of the conveyance should be duly registered 
 immediately after the execution of the conveyance ; the one, 
 that a prior incumbrancer might, during the delay, register 
 his incumbrance ; the other, thai the delay might give an 
 unprincipled vendor an opportunity of selling the estate to a 
 bona fide vendee without notice ; who, if he registered his 
 deeds before the registry of the first conveyance, would cer- 
 tainly prevail against the fii'st purchaser. 
 
 (^) Vide infra in this chapter, and chapter \^. 
 
 SECT.
 
 [ S55 ] 
 
 SECTION II. 
 
 Of Assignvie7its of Terms. 
 
 A PUECHASEii may require an assignment of all outstand- 
 ing terms, of which lie could avail himself in ejectment, to 
 attend the inheritance ; and if the purchaser leave tlicm out- 
 stand '■n^, he ^nay not, perhaps, have the full e'^ijoymout of 
 his estate, without, at some future period, being himsel^ at 
 the expense of getting them in : for even a mortgagee would 
 be very unwilling to advance money on the estate, unless 
 the tei-ms were assigned, lest a subsequent mortgagee or 
 purchaser, without notice, should obtain an assignment of 
 them, and so over-reach the prior mortgage. 
 
 I. The position that a purchaser may require an assign- 
 ment of all outstanding terms of which he can avail himself' 
 in ejectment, to attend tlie inheritance, naturally ca'ils our 
 attention to the cases in wliich a term may be used upon au 
 ejectment. We have already seen that, in some cases, the 
 possession of the cestui que trust may operate as a bar to liis 
 trustee (2;). So where a purchaser is not, at the time of liis 
 contract, aware of the term, and its existence would endanger 
 or affjct his title, a fine levied, with five years nonclaim, 
 will operate as a bar to the tnistee of the tenn {a) ; alth.ough, 
 where the term is assigned in trust for the purchaser, a fine 
 levied will not affect it, because such a construction v.ould 
 be manifestly contrary to the intention of the parties {b). 
 But as the law on these points is not well settled, it may be 
 
 (z)Sir>rn, |), 320. 80, 1 Lev. 270; bt-e Smith r. 
 
 (a) ; .J.Hm v. Moriice, Cro. Vitice Carth. JOO; Basket r. 
 
 Car. 109, 5ih rcsol 2 V^-ntr. 329. I'cirto, 1 V'eriJ 226. 
 {b} Freeman t. Barne?, 1 Ventr. 
 
 2 A ^ \^\d
 
 '636 OV ASSIGNMENTS OF TLllMS. 
 
 laid dovni as a general rule, that nearly all terms for years, 
 however ancient, and notwithstanding any adverse possession 
 or fines, may be required by a purchaser to be assigned to 
 attend the inlicritance ; and where a tcim has once been as- 
 ?',fnied to attend the inheritance, although at a period very re- 
 mote, and it has been since treated as a subsisting term by de- 
 clarations in the subsequent deeds, that the person in whom 
 it is vested shall stand possessed of it in trust to attend the 
 inheritance, a purchaser can never be advised to permit the 
 term to continue outstanding, because it is clear, that it 
 may be used against him upon an ejectment. Nor is it any 
 answer to a purchaser's claim, that the term has already been 
 recently assigned to attend the inheritance. 
 
 Where tenns for years are raised by settlements, it is 
 usual to introduce a proviso, that they shall cease when the 
 trusts are at an end. In well drawn deeds this proviso al- 
 ways expresses three events : 1st, the trusts never arising ; 
 2dly, their becoming unnecessary or incapable of taking 
 effect ; or, 3dly, the performance of them. But it frequently 
 happens, in ill-penned instruments, that these events are 
 not accurately expressed, or not all provided for ; and in those 
 cases it must be seen whether, in the events which have hap- 
 pened, the term has ceased, for if it has not, the purchaser 
 must require aai assignment of the term. To illustrate this 
 doctrine, let us suppose a term for years to be created for 
 raisins: a sum of money for the first son of A, who shall 
 attain 21, and that it is declared by the deed, that when 
 tlie trusts are performed the term shall cease. Now, in this 
 case, if A should not have a son who attains 21, the trust3 
 would not have arisen, and consequently could not be per- 
 fonned ; and it seems that the term will not cease ; the 
 event which happened not being provided for in the decla- 
 ration for cesser of the term. 
 
 In a late case (c), which has already been referred to, it 
 
 (c) Hays v. Bailey, Rolls, 10th August, 1313> vide fupra^ p. 291. 
 
 appeared*
 
 OF ASPIGXMEIsTS OF TERAfS. 357 
 
 appeared, tlmt under a power, ^'Ir. AValsh Porter had, by 
 deed, charged the estate in question with tlie pa,yment of 
 5000/. to the children of his then intended marriage, at such 
 time or times, and in such proportions, and in such manner 
 as thereinafter mentioned. And, by the same deed, in fur- 
 ther exercise ot hi.s power, he appointed tlic estate to trustees 
 for 500 years, upon the usual trusts to raise the 5000/. pay- 
 able to sons at 21, and daughters at 21, or marriage, with 
 the usual provision t^r raising maintenance in the mean 
 time. And it was provided, that if no child should become 
 entitled to the portions, or if the person or persons to whom 
 the next estate of inlieritance of and in the said manor, 
 &c., in reversion or remainder, expectant on the determina- 
 tion of the said term of 500 years, shall, for the time being, 
 belong, do, and shall, well and truly pay, or cause to be 
 paid, unto the said Edmund Lambert and Thomas Gorman, 
 (the trustees of the term) or the survivor of them, or the ex- 
 ecutors or administrators of such Rur\ivor, or well and 
 sufficiontly, to his and their good liking, secure to be paid 
 the portion or portions hereinbefore provided, or intended to 
 be provided, for such child or children, or so much thereof 
 as shall be remaining unpaid (all sucli maintenance. an<l 
 interest as is hereinbefore mentioned ))eing first raised, and 
 satisfied) ; and in case all and every of the trusts dechu-cd as 
 aforesaid, of and concerning tlie said term, shall in all 
 things be perfoi-med and satisfied, or shall be discharged, 
 either by becoming incapable of being performed or by any 
 t.tlier means, and tlie trustees shall be paid tlieir expeiises, 
 tlien the term should cease. The portions were paid to ihe 
 ))ersonal representatives of the surviving tnistee, with all in- 
 terest and maintenance money up to the day of payment, 
 by the reversioner, '* in order," as it was declared, " to dis- 
 charge the estates from the povtions, and that the tenu 
 might cease by virtue of the iiroviso contained in the deed 
 vf rippointmcnt ;"' and a regular release was executed Ijy tlie 
 
 2 A 3 trustees
 
 358 OF ASSIGNMRNTS OF TEH^IS. 
 
 trustees of the tern upon receipt of the money. The tsiMe 
 was sal'.l, and the purchase completed. The purchaser soH 
 again ; and it appeared, that one of the children was still 
 underage; and, it was insisted, that the payment to the 
 trustees did not discharge the estate from the portions. 
 The seller filed a bill for a specific perfonnance. it was 
 argued, that the term in the event had ceased ; but th« 
 iate Master of the Rolls suggested that, although the 
 tenn might have ceased, yet the portions would still remain 
 charge 1 on the estate under the charge ni the deed. It was, 
 however, submitted, that the charge, and the term, and the 
 trusts of it, must all be taken together. The portions would 
 have been as much a charge oa the estate under the trusts 
 of the term as they were under the express charge. If the 
 term, xvhich was the legal and substantial security, was gone 
 at law, it was impossible for equity to say, that the charge 
 yet sMbsisted. The very intention of the parties would be 
 frustrated by such a decision. The portions were to be paid, 
 according to the charge, to the children in the manner after 
 mentioned ; and one mode afterwards mentioned, was a pay- 
 ment to the children tlirough the medium o^ the- JitfEtees. 
 The proviso was inserted to meet the very case which hap- 
 pened. The trustees were persons in whom the party 
 making the charge reposed conSdence ; and he, the creator 
 of the trust, had expressly provided, that if the reversioner 
 should be desirous to discharge the estate before the chiL 
 dren -rofre capable of receiving the portions (for, if they 
 were of age, the portions would, of course, be payable to 
 themselves) he mJght pay the money to the trustees for 
 them., or even secure it to the good liking of the trustees. 
 JEquity had no pov/er to say, that this was not a discreet 
 act ; and that the portions, although paid to the trustees 
 precisely as directed by the deed, should, for the greater 
 security of the infants, still reir>ain charged on the estate?. 
 The term had unquestionably ceased at law ; and the por- 
 tion^
 
 OF ASSIGNMENTS OF TERMS- S59 
 
 lions which it was raised to secure, had, of course, ceased 
 with it. In support of the objection, it was argued, that 
 the portions were not payable by the charge till the children 
 attained 21, and that they could not before that period \^ 
 paid to the trustees, so as to discharge the estate from them. 
 The late Master of the Rolls said, that he was inclined to 
 be of opinion, that the charge would run with tlie term 
 ■which would regulate the mode of payment ; but he doubted 
 whether the term would cease, for it was required, that *' all 
 such maintenance and interest should be first raised and 
 satisfied." Now maintenance was to be raised till the chil- 
 dren attained 21. Then how can it be said that that is 
 done until the child attained 21 ? That circumstance must 
 concur ; all the trusts must be performed ; it is in the con- 
 junctive. His Honour doubted therefore whether the charge 
 would cease. Under these circumstances, he should think 
 that the purchaser would not be forced to take the title : 
 and therefore he over-ruled the exception to the JNIaster'fc 
 report against the title. 
 
 This objection was not considered in the argument. It 
 might, had the point been made, have been insisted, that 
 the direction in the deed, that " all such maintenance and 
 interest being first raised and satisfied," mus. be confined to 
 maintenance and interest up to the time of payment of the 
 principal. The interest was the fruit of the principal ; and 
 when the principal was paid, it would yield interest, and that 
 would, of course, be the fund for maintenance. The ground 
 taken against the title makes the reversioner still liable to 
 pay interest under the charge in the deed, although he has 
 paid off the principal, which will produce interest. Could 
 he file a bill against the trustees to pay him the interest of 
 the 5000/. which he paid to them ? Could the trustees file 
 a bill against the owner of the estate for jMymUil ct the in- 
 terest, although they liad the 5000/. in the fmids ? And, 
 if not, does it not follow that the interest was no longer a 
 
 9. A i charge
 
 860 or ASSICNMENTS OF T£KMS. 
 
 charge on the estate ? The coiistruction, Avhicli tlepciuls on 
 the «-encral expression in tlie deed, wholly defeats the inten- 
 tion of the parties, that the reversioner might, at any time, 
 relieve the estate from the charge altogether, upon payment 
 of the portions. The power supposed to be reserved to the 
 owner is, to pay off the principal, and yet leave the estate 
 subject to the interest. The decision, in this case, proves, 
 that the charge of the interest is as serious an objection to 
 the owner's title as the charge of tlie principal. If, there- 
 fore, the payment of the principal has any operation, it is to 
 make the owner pay 10 per cent, interest instead of 5. Eut, 
 it is admitted, that the portions might be paid to the trus- 
 tees before the children attained SI. Now, as the mainte- 
 nance and interest were to be first raised and paid, it must 
 necessarily be intended, that the maintenance was such as 
 had already accrued ; for, how could the trustees raise by an- 
 ticipation what might never become due ? The proviso for 
 cesser embraced, 1st, the event of there being no child who 
 should become entitled to the portion ; 2(1, the payment of 
 the portions to the trustees ; 3d, the performance of the 
 trusts. There are some general words in the proviso which 
 are unskilfully introduced ; but this was the intention, and 
 the words are sufficient to effectuate it. The word, a?id, 
 introducing the 3d event, must, it is submitted, be read o?' ; 
 for the 2d and 3d events could not happen together. 
 
 Where a portion is secured by a term of years, and the 
 term is directed to cease upon payment of the money, and 
 the estate is sold before the portion is paid, it sometimes 
 happens that the purchaser is desirous to keep the term on 
 foot, and the following plan has been adopted for that pur- 
 pose. — A fictitious mortgage is first made of the term for 
 raising the portion, to a friend of the purchaser's, in which 
 the purchase is not noticed ; then the estate is conveyed to 
 the purchaser in the usual way, subject to the mortgage ; 
 and then, by a subsequent decd^ the supposed mortgagee 
 
 declare,"^
 
 OF ASSIGNMENTS OF TERMS. SGJ 
 
 declares that he has been paid off, and that lie Avill stand 
 possessed of the term in trust for the purchaser, and to attend 
 the inheritance. Now, this plan, altliough certainly inge- 
 nious, is, 1 fear, ineffectual. It is impossible to read the 
 deeds bearing date, as they necessarily must do, within a 
 day or two of each other, without seeing that the v.'holc pro- 
 ceetling is fictitious ; and if the term should be set up in 
 ejectment, it would be quite open to the adverse party to 
 insist that the deeds were nugatory. And when the fact is 
 once established, that the portion was paid off ^vithout a 
 bona fide mortgage, it should seem that the term must 
 cease, by force of the proviso in the deed creating it, and 
 that no artifice of the parties can keep it alive. 
 
 II. Wc may now consider shortly the leading rules on the 
 doctrine of merger of terms of years, without a knowledge 
 of which, the practical conveyancer must frequently be at a 
 loss to know of what terms to require an assignment. 
 
 Vv^hcre a term of years and the inheritance meet in one 
 person in the same right, the term is extinct. 
 
 So a man cannot, Sir Edward Coke says, have a term for 
 years in his own right, and a freehold in cnitci' droit, to con- 
 sist together {d) ; and he illustrates this rule by stating, 
 that where a man, lessee for years, take a feme lessor to wife, 
 the term is extinct. I^ut this position appears to be con- 
 tradicted by tlie case of Lichdcn v. AVinsmore (<), in wliicli 
 it was held, that if there be lessee for years, reversion for 
 life to A, a married woman, and the lessee grant his estate 
 to the husband, and then the wife dies, the term is not ex- 
 tinct, because the husband has the estates in several rights, 
 for the freehold was in the wife, and th.c husband was merely 
 
 i^) 1 Inst. 338, b J see 9 East, (c) 2 Rolls Rep. 472 ; 1 Ko. 
 
 372. Abr. DJI, pl.lO. Ben. 111. 
 
 fct'in'd
 
 362 OF ASSIGNMENTS OF IER.M?, 
 
 seised in her right ; or, to speak more correctly, the freehoid 
 was in the hushand and wife, althoiigl] in her right ( /). 
 
 And it is ch^ar, that if in a case like this, the coalition 
 be not occasioned by the act of the termor, the term will 
 not merge. '^Fbus, the descent of the fee upon the wife of 
 a termor foi years after the intermarriage \\ill not drown 
 the term, because the estates do not coalesce by the act of 
 the termor for years (^), and the term he holds in his own 
 right, and the freehold in right of his wife. This was de- 
 cided in the reign of James I. by Fleming, C. J. and F-nner 
 and Croko, justices, against the opinion of Wiiliaing, jus- 
 tice, who, even after judgment was given, said to the counsel 
 at the bar that, as clear as it was that they were at the bar, 
 so clear it was that the term was extinct ; and in other re- 
 spects expressed himself very violently, so that Sir Edward 
 Coke's doctrine was not over-ruled without opposition. 
 
 Where, however, a husband termor for years, seised of 
 the freehold in right of his wife, has issue by the wife, so 
 that he is entitled, in his own right, as tenant by th« 
 curtesy, there seems reason to contend that the term will 
 merge {k). 
 
 A term vested in a person as executor, W42y belong t« 
 him beneficially ; and it therefore seems, that if he purchase 
 the reversion, the term will be extinct ; although it is usual 
 in practice to require an assignment of such a term on a 
 future purcliase of the inheritance ; and this practice is sanc- 
 tioned by an obiter dictum of Lord C. J. Holt's, in Cage v, 
 Acton {i), where he admitted (as a point perfectly clear) 
 that if a man hath a term as executor, and purchases the 
 reversion, this is no extinguishment. But in Brooke's 
 
 (/) See Polyhlankv. Hawkins, (A) See 1 Balstr. 118. 
 
 Dougl. 329. (») 1 Salk. 326, Com. 69 j and 
 
 (g-) Lady Piatt v. Sleap, Cro, see Webb v. Russell, 3 Teroi Rep. 
 .Tac. 275 ; 1 Bulst. 118; Jcnk. 2d 393. 
 Cent. pi. 38. 
 
 Abridgment
 
 OF ASSIGNMENTS OF TEEMS. 863 
 
 .-\ bridgment it is in three several places (A- stated to have 
 Wen held by the judges Hales and Whorvvood, in -i Ed. 
 VI. that if a man has a lease for years as executor, and af- 
 terwards purchases the land in fee, the lease is extinct ; and 
 this position is cited and not denic-d in several cases {i), and 
 is adopted by Rolle in his Abridgment {in), bo in a case 
 in Leonard (w). Dyer explicitly laid down the same doctrine ; 
 and it has been treated as clear law, in two cases, one of 
 v/hich is reported by Hetly (o), and the other by Freeman 
 ip). Add m one case one of the judges tlyougiu, that even 
 the descent of the fee on the executor would mcri:-: the 
 term {q), ailhougli Lord Chief iiaroii Gilbert justly qu^-stions 
 this position {?). The rule, tliat a purdiase of the fee by 
 the executov shall merge the term, appears to be founti- d in 
 reason as well as upon authority ; for as far as his own intei-est 
 is concerned, there cannot be any reason why the term 
 jshould not merge. It is adn:itted, however, on all hands, 
 that the term shall not be extinct as to creditors, and tins I 
 am induced to believe, from Lord Ilaymond's report ot Cage 
 y. Acton, is all that Lord Chiei Justice Holt meant (.y), al- 
 thou'h iiis (uctiim is so generally stated in Comyn's and 
 Salkeki s reports of this case, -ic any rate, it was an obiter 
 did urn, and cannoc affect a uocLrine apparently so well 
 estubiished ; and it is therefore submitted to the reader, that 
 in a case of this nature the term must merge in the inherit- 
 ance, except r.K to creditors. 
 
 i5ut a man luay have a freehold in ]iis own riglit, and a 
 ^erm in auter droit {t). 
 
 (k) Br •. br. Kxiinguishmeot (o) Hct. 36. 
 
 #4, Leases Surrtnder 52. (p) 1 Freem. 289, pi. 338. 
 
 {Ij ':• l.ei . . i li Ro'lt's lU'p. [q) Sec 3 Lio. 112. 
 
 472. (ry See Uac. Al)r. Liases. ^R- 
 
 (Wj 1 i;o. Abr. 934, pi, 9. (*j 1 Loril t a) m. 520. 
 
 «?»• 4 L«o. 37, pi, 102. (0 1 IiiEt. 338, b. 
 
 Therefore
 
 oir{ or ASSIGNMEN'IS OF TEK-Mfe, 
 
 Therefore, if a man seized of tlie freehold interm:?rry v.itli 
 a woman termor for years, the term is not extinct, hnt the 
 husband is possessed of the term in right of his Wih, during 
 the coverture, because he has not done any act to destroy the 
 term, and it is cast upon him by the act of law (u). 
 
 So if the lessee grant the term to the wife of the leccor, it 
 \"ill not merge {.v). 
 
 Eut if a man possessed of a temi in right of his wife, 
 purchase the freehold, there seems ground to contend, that 
 the term will merge, inasmuch as the estates coalesce by his 
 own act, and not as in the case of Tnaniage, by the act of 
 law ; and accordir.gly in one case (if), Dyer held the wife's 
 term to be extinct by the husband purchasing the fee ; and 
 T-Ianwood, C. B. agreed with him : and the same doctrine 
 appears to have been held in a case reported by Moore (z). 
 Lord C. vj. Hobart, however, seems to have been of opinion, 
 that a purchase by the husband of the fee shoidd not cxtin- 
 gnisli the term {a), and in this opinion Lord C. J- Holt 
 appears to have coincided (b). 
 
 Upon the foregoing principle, if the lessee make the free- 
 holder his executor, the term will not merge (c). 
 
 It was formerly holdcn, that a term for years could not 
 merge in a term, for years ; but in Hughes v. Robothain (d)^ 
 it was determined, that if there be two termors, he who has 
 the less estate may surrender to the other, and the term \vill 
 merge in the greater : 2dly, that although the reversion be 
 
 (u) Rrarebridge v. Cook, Plo. (b) "^ee I Salk. 326. 
 
 Comm. 417 ; and f^ee 4 Leo, 38 ; (c 1 Iiisf. 338, b. ; 1 Froem. 
 
 Godb. 2 : Het. 36. 289, pi. 338 ; scp Attor oy.gene- 
 
 \^X) Bracebiidge v. Cook, Plo. ral v. Sands, 3 Cha. Rep. ]9. 
 
 Comm. 417. (d) Hughes v. Kobothani, Cro. 
 
 (t/) Godb. 2; 4 I eo. 38. Eliz. 302; sfe I?ac. Abr. Leases 
 
 (s) Mo. 54, y\. 157. fS) s. 2. ^^.^c/^^c^^ ^ /^/^/^^V - /^ 
 
 :«) Young V. Radford, Hob. 3. MZ/ ^^ '''*' ^v^^ A^^ 
 
 for
 
 OF ASSIGNMENTS OF TERMS. 365 
 
 for a les3 number of years than tlie term in possession, yet 
 the term in possession shall drown in that in reversion. 
 
 It remains to observe, that before the statute of uses {c), 
 if a termor for years was enfeoffed to uses, equity would not 
 compel him to execute the estate so as to deprive himself 
 of his term. The statute of Henry, by transferring the use 
 into a possession, would have destroyed the estates of ter- 
 mors who were enfeoffed to uses ; but to prevent this injus- 
 tice, an express saving was introduced into the act of the 
 rights of all persons seised to uses. Therefore, if a fine or 
 feoffment be levied or made to a lessee for years to the u£c 
 of others, the term will not be extinct, although if the sta- 
 tute had not been made, the term would have been extin- 
 guished at common law (/). So, where a term.or for years was 
 made a tenant to the precipe, it was held that, although the 
 freehold vested in him drowned the term until the recovery 
 was suffered, yet, when the recovery v/as pcriected, the term 
 should revive {g). And it seems that the same rule must 
 prevail where the conveyance is by lease and release, al- 
 though it has been strenuously argued, that as the lease 
 for a year is a surrender in law of the prior term, the sub- 
 sequent release to uses shall not bring the case within the 
 saving of the statute of uses. There appears, however, to 
 be no weight in this argument ; a lease and release being a 
 common conveyance, and deemed one assurance ; and from 
 one report of the case, in wliich the question arose, it seems, 
 that the judges (//) tliought that tlic term was not extin- 
 guished by the lease for a year (/). 
 
 (<')5!7 H. VIII. c. 10, 8 3. (;/)See3 Keb. 310. 
 
 (/) Chosney's case, Mo. 196> (0 Fountain ▼ Cook, 1 Mo<l. 
 
 T'l. 345, 7 Rep. 19 b., 20 a., 127 ; best reported Bac. Ahr. 
 
 cited. Leases, (R). S. C. by the name of 
 
 (g) Fi rrors V. Feimor, 2 Roll's How v. Sliles, 3 Keb. 283, 3C9 ; 
 
 Rtp. 245 ; Cro. J:ic. 643 ; Ttrrie's 2 Uy. 12C. 
 C3b.', 1 Veiitr 280, cited. 
 
 It
 
 366 OF ASSIGNMENTS OI" TERMS. 
 
 It may here be remarked, that a deed purporting to be 
 an assignment of an old tenn may, if that term has by any 
 accident ceased, operate as the creation of a new one. As 
 in the common <^se of an assignment of a term in which 
 the freeholder in reversion joins in granting, bargaining, sell- 
 ing, and assigning the term ; if the old term has become 
 void, it will be resuscitated by these words {k). 
 
 lit. The expense of the assignment of any terms of years 
 which a purchaser can require to be assigned to attend the 
 inheritance, must be borne by the purchaser himself, hut the 
 title to them must of course be deduced at the expense of the 
 vendor ; and if a term has never been assigiied to attend ths 
 inheritance, the vendor must bear the expense, not only of 
 deducing the title, but also of the assignment of the term 
 to a trustee of the purchaser's nomination to attend the in- 
 heritance. 
 
 The rule that terms of years which have never been as- 
 signed to attend the inheritance, must be assigned to a 
 trustee of the purchaser's nomination, at the vendoi^'s ex- 
 pense, is not acknowledged by some gentlemen of eminence, 
 who, on the contrary, insist that the purchaser must consider 
 the term either as a protection, or as an incumbrance. If 
 he deem it a protection, then they contend that he must 
 assign it at his own expense. If, on the contrar}', the pur, 
 chaser treat the term as an incumbrance, they admit that 
 the vendor must discharge the estate from it, and accordingly 
 offer to merge the term at his expense. The general prac- 
 tice of the profession, however, is certainly in favour of the 
 purchaser's right to require an assignment of the term to at- 
 tend the inheritance at the vendor's expense; and when it 
 is admitted that the vendor may be compelled to merge the 
 
 {k) See Deno t. Kemeyj. 9 East, 366. 
 
 term
 
 OF ASSIGNMENTS OF TEEMS. 3G7 
 
 term at his own expense, it seems very difficult to contend 
 that the purchaser may not insist upon its being assigned. 
 A refusal to assiirn may, under these circumstarices, be 
 thought to be a mere subterfuo-c to avoid the expense of the 
 assignmcn, and throw it upon the purcl^aser. If the pur- 
 chaser insi-st upon an assignment of the term, it seems clear 
 that the vendor cannot safely merge it, although tbo pur- 
 chaser refuse to bear the exp^^nse of the assignment. The 
 title appearing on the abstract, is that on wliich the pur- 
 chasf'r is to act, and consequently the vendor, after delivery 
 of tlie abstract, ought not merely of his own authoiity to do 
 any act to alter or affect the title ; and a trustee of a term 
 can scarcely be advised, after notice of a contract fcr sale of 
 the estate, (when he is by construction of equity become a 
 trustee for the purcliaser), to merge the term against the 
 cons?nt of his cestui que tniat, the purchaser. It would be 
 difficult, therefore, to establish any other rule than that which, 
 it is apprehended, is generally adopted by the profession. 
 
 In some cases, perhaps, assignments of tenns may be dis- 
 pensed with. 
 
 In Willoughby v. Willoughby (/), Lord Hardwicke laid 
 it down, " that where an old term had been assigned upon 
 an express trust to attend upon and protect the inheritance, 
 as settled by such a deed., or the uses of siich a settlement 
 desc ibedor refeiTed to particularly, as it sometimes ha])pens, 
 and iheconveyancer issatisficdtliat thoseusesof the inheritance 
 have erbeen barred till his new settlement or purchase is 
 made, he may very safely rely upon it, because the very assign- 
 ment carries notice of the old uses(I). Nay, where the asssign- 
 
 (/) 1 Term R.p. 763. 
 
 (1) <4U. this. I f iIk- |)iiso'( !iiin»iit;^ uncU'r llw j< Itli DMiif ihould sell 
 Ihf • s^ta' to t\v(i distinct |:iir(li im rs. who were equ ill^ iiiiiucent, it stems, 
 that llir s. CO ul jiiKcliunei, h) |> ^curing an assignment of the term, 
 might exclude the first purchaser during 'he term. 
 
 mciit
 
 ,)()S OF assignmj:nts or tlums. 
 
 incut lias been generally in trust to attend the inlieritancG, and 
 tlie parties approve of the old trustees, they may safely rely 
 upon it, especially in the cases of a purcliase or mortgage, 
 \vhere the title deeds always are, or ought to be taken in : 
 for if he has the creation and the assignment of the tenn in 
 Ijis own hands, no use can be made of it against him." 
 This, however, is never relied upon in practice. And a de- 
 claration of trust of a term never should be relied upon, 
 unless all the title deeds arc delivered to the purchaser. A 
 mere declaration of trust will not protect the possessioii 
 against a subsequent purchaser bona fide, and without 
 notice, \vho procures an assignment of the term ; and it has 
 even been held, that the custody of the deeds, accompanied 
 by a declaration of trust of the term, is, as against a bare de- 
 claration of trust, tantamount to an actual assignment (;/z). 
 Eut, as we shall presently see, a case may perhaps occur, in 
 which an assignment of a term would be a protection against 
 a declaration of trust of it, accompanied by the deeds ; so 
 that a prudent purchaser will scarcely ever dispense with an 
 actual assignment of an outstanding term. 
 
 Mr. Butler, in his learned and practical notes to Co. Litt. 
 lays down the following rules respecting the cases in which 
 a purchaser should or should not dispense with an assignment 
 of outstanding terms {n). 
 
 " 1st. It may be laid down as a general rule, that wherever 
 a term has been raised for securing the payment of money, 
 as the assignment of it by the trustee for the person entitled 
 to receive, to a trustee for the person obliged to pay the 
 money, is the best possible evidence of the payment of the 
 money, it may be reasonably required as such. 
 
 " 2dly. In case a term for years has been assigned to at- 
 tend the inhedtance, if, upon a purchase, all the deeds (a;? 
 
 (?n) Stinhope v. Earl Veriiey, («) See the 13th section of n. 
 
 Butler's n. (1) s. 13, to Co. Litt. (1) to 1st lost. 290, b. 
 290, b. 
 
 well
 
 OF ASSIGNMENTS OF TFHMS. 3C9 
 
 Well originals as counterparts) by which the term was created 
 or assigned, are delivered to the purchaser, and he is satisfied, 
 that the trustee in whom it is there said to be vested, has 
 made no prior assignment of it, and that the vendor has not 
 charged the estate with any intermediate incumbrance; it is; 
 difficult to say what possible use can be made of the term 
 against him, or what good can be answered by requiring an 
 assignment of it to a trustee of his owti, unless it be to satisfy 
 the requisitions of those to whom he may afterwards have 
 occasion to mortgage or sell the estate. 
 
 " 3dly. But if any of the deeds respecting the term are not 
 delivered to the purchaser, or if he is not satisfied of the 
 trustee not having previously assigned it, or of the vendor 
 having made no intermediate incumbrance, it seems prudent 
 to require an actual assignment of it to a trustee for him." 
 
 With respect to the second of the above rules, the atten- 
 tion of the purcliaser should be particularly called to the 
 requisite, that tlie vendor has not charged the estate with 
 any intermediate incumbrance. A vendor may, by fradu- 
 lent representations, induce a purchaser to believe, that tho 
 title deeds are destroyed or mislaid : and if a purchaser act- 
 ing under this impression should procure an actual assign- 
 ment of a term from the person in whom it was vested, it 
 seems impossible to contend, that the person in possession of 
 the deeds, although he claims a prior title to the inheritance 
 {()), has any equity against the subsequent purchaser, who 
 must not be prevented from making the best use he can of 
 the term. It is evident, however, that the person having 
 thus obtained an assignment of a term, must have consider- 
 able difficulty in using it as a sword to attack the possession 
 of his adversary (p). 
 
 'A purchaser may, in some cases, be entitled to tlic benefit 
 
 (o) See 1 Pow. Mort. 4th edit. (p) See cz parte Knott, 1 1 
 
 TjIO; ETans v. Blcknell, 6 Ve?. "^'es. Jan. 609. 
 
 Jun. 171. 
 
 S B of
 
 370 Oi AyblGNHIENTS OF rKRM«. 
 
 of an outstanding term, although he has neither an hm^- 
 mcnt of itr nor the possession of the deeds relating to it. 
 This doctrine will be discussed hereafter {q). 
 
 It may here be remarked, that where a term of years does 
 not necessarily apjTcar on the face oi" the conveyance, it should 
 be assigned to attend the inheritance by a separate deed, 
 and no notice should be taken of it in the conveyance of the 
 fee ; for the legal estate must prevail at law (r), and it is a 
 consequence of this rule, that where a term of years is as- 
 signed by the conveyance of the inheritance, or even men- 
 tioned in it as a subsisting tenn, the owner cannot .safely 
 bring an ejectment in his own name only, lest his acticQ 
 sliould be defeated by the production of the conveyance to 
 him, in which it would appear, that the legal estate w£S 
 vested in his trustee. And here we may correct the com- 
 auon eiror of excepting the term in the conveyance of tri©- 
 inheritance, as an incumbrance, although it is assigued to 
 attend by a separate deed. This practice is very incorrect, 
 for the term is a protection, and not a^ incumbrance; and 
 the exception in the conveyance eiFectually defeats the ad- 
 vantages whicli might otherwise be derived fi;om the terra 
 being assigned by a separate deed. 
 ^^ ///^ Where trustees ought to convey to the beneficial o^viier, 
 j'4^^ /^i ^t will, upon a trial, be left to the jury to presume, where 
 <^Jiirc^ s^^^^ ^ presumption may reasonably be made, that they have 
 a. fiC'\ conveyed accordingly, in order to prevent a just title from 
 being defeated by a matter of form (5). 
 
 (7) See/JOff. ch. 17. cases in Burr. Cowp, and Dougl. 
 
 (r) See Doe v. Wroot, 5 East, (*) Lade t. Holford, Bull. Ni. 
 
 132; and the cases cited in the Pri. 110, as explained in Doe v. 
 
 note to p. 138 ; which have over- Syboiim, 7 Term Rep« 2; and 
 
 ruled Mr. Justice Gundr/'s, Lord Koc v, Reade, 8 Term Rep. 118 ^ 
 
 Mansfield's, and Mr. Justice Bui- and see Doe v. Staple, 2 Term 
 
 ler's equitable doctrine as to terms Rep. 634 ; Tankard v Wade, Irish 
 
 of years; see Doe v. Pegge, I T. Term Rep. 162- and Hillary v. 
 
 Rep. 753, n. (a), and seyeial V/ailcr, 12 Ve?. Jun, 23?. 
 
 But
 
 5f assignments of terms. 371 
 
 But where the trustee of a term is not joined in an oject- 
 hicnt brought by his cestiti que trust, and the jury state in 
 a special verdict, or a special case, that the term still conti- 
 nues, the plaintiff cannot prevail at law, but \s\\\ be defeated 
 by the legal estate in his trustee (/). This must inevitably 
 happen where a tenn of years has been assigned to attend 
 the inheritance upon a purchase of the fee, and the pur- 
 chaser brings an ejectment in his own name only. It were 
 clearly too much to presume a surrender of a term which the 
 owner has so anxiouslj' kept distinct from the inheritance (w). 
 
 IV. The Importance of obtaining an assignment of all^/ ^.^.i/^ 
 Outstanding terms> cannot be too strongly impressal on pur- *^*' ^^^ 
 cliasers. If Ji purchaser has no notice, and happens to take X^J^ ^ 
 a defective conveyance of the inlieritance, defective eitlier by 
 reason of some prior conveyance, -or of some prior charge or 
 incumbrance, and if he also takes an assignment of the term 
 to a trustee for him, or to himself, where he takes the con- 
 veyance of the inheritance to his trustee, in both these cases 
 he shall have the benefit of the term to protect him ; that is, 
 he may make use of the legal estate of the term to defend 
 his possession, or, if he has lost the possession, to recover it at 
 common law, notwithstanding that his adversar)' may at law 
 have the strict title to the inheritance {x). 
 
 Lord Hardwicke was of opinion, that the protection 
 arising from a term of years assigned to a trustee for a pur- 
 chaser, should extend generally to all estates, charges, and in- 
 cumbrances, created intenncdiate between the raising of the 
 
 (0 Goodtitle t. Jones, 7 Term (u) See Doc y. Scott, II Easf, 
 
 Rep. 47 ; Roe y. Reade, 8 Term 478. 
 
 Rep. 118; and spo \)oe T, Staple, (x) Willoughby r.Willoughbf, 
 
 2 Term R«p. 684. 1 Term Rep. l^Z, per Lord Hard- 
 
 wicke ; anil je« for, 69, 
 2 B 2 tenn
 
 37^ OF a.'So1c;n.mlm'3 or terms. 
 
 term and the purcliase (//). And this doctrine, unqualified 
 as it is, seems correct. For as tlie term will prevail over a 
 strict title to the inheritance, it will of course be a protec- 
 tion against judgments, mortgages, and ull other incum- 
 brances and estates less than a fee; and it may, in like man- 
 ner, be used as a shield against an act {z) or commission [a) 
 cxf bankruptcy. 
 
 In the late case of the King v. Smith (&), however, the 
 Court of Exchequer held, that a term of years would not 
 protect a purchaser against crown debts, although he pur- 
 chased honafdCi and without notice (I). This point had 
 previously been considered by most of the leading characters 
 in the profession, some of whom have since filled the highest 
 judicial situations ; and the general opinion of the profession 
 appears to have been, that a purchaser might protect him- 
 self against crown debts, by a legal term of years created 
 pieviously to the right of the crown attaching on the estates, 
 wliere he had not notice, express or implied, of the debt due 
 to the crown, or of the vendor being an accountant to the 
 crown. They relied on the analogy between this ease, and 
 the general rule respecting judgments and recognizances, 
 
 (j/) See 1 Term Rep. 768. See post, chapter 17, this point 
 
 (z) Collet V. De Gols, For. 65. considered, 
 
 (a) Hithcox v. Sedgwick, 2 (6) Excheq. 2d March, 1804, 
 
 Vern. 156, reyersedin Dom, Proc. MS. Appendix, No. 16. 
 
 (T) It has been determined that in the case of a purchase for a valuable 
 consideration, without notice and without fraud or covin, from a sirnple' 
 contract debtor of the king, the lands are not bound by, such simple con- 
 tract debt. The King V. Smith, 1 Wight, 3^4. In that case, the general 
 words in the statute of 13 Elizabeth, c. 4, received a limited and proper 
 construction. In Wilde v. Fort, 4 Taunt. 334, in which it was not 
 necessary to decide the point, the rule was laid down with apparently too 
 much latitude, that every person who has received money belonging to 
 the crown, every accountant of the crown for money of the crown re- 
 ceived, falls within the act, ^ y • ■^ /0L ^
 
 or ASSIGN.MKNTS OF TERMf?. 373 
 
 aj^ainst wliieh a purchaser may protect himielf by an out- 
 standing legal estate, unless he liad notice of them previ- 
 ously to completing his purchase. The late Lord Kenyon, 
 in an opinion on this point, treated the right of the crown as 
 not superior to that of a subject. Indeed, the point may 
 i-iirly be said to have received what was tantamount to a 
 judicial decision, previously to the determination of the 
 Court of Exchequer. When the late learned Chief 
 Justice of the Common Pleas was Solicitor-general, he gave 
 an opinion in favour of the right of the crown to extend 
 lands in the hands of a mortgagee, although the legal estate 
 had never vested in the mortgagor, but had been con- 
 veyed to the mortgagee by the trustees in whom it had been 
 vested in trust for the mortgagor. The question under- 
 went great consideration, and it was discovered that there 
 was an old term of years, to tlie benefit of which the mort- 
 gagee was clearly entitled in preference to any other person, 
 although it was not actually assigned to a trustee for liim. 
 The case was again laid before the Solicitor general, wlio 
 then wrote an opinion, that the title of the mortgagee 
 would be preferred to that of tlie crown. He stated, that 
 upon a short enquiry before lie wrote his former opinion, it 
 had been represented to him, that estates held in trust for a 
 debtor of the crown, were usually seised under extents, and 
 were considered as bound by his debts in the same manner 
 as those of which he was legally seised. He had since de- 
 sired a further search to be made, and was then infonned 
 that no instances were to be found in which a trust estate of 
 such debtor fairly parted with to a pm-chaser without notice, 
 had been deemed to be liable to the debts of the cro\vn, and 
 in consequence of this information his opinion then inclined 
 in favour of the mortgagee. And he gave a similar opinion 
 on this point in the year 1801, so that he had not seen any 
 reason to alter his opinion after a lapse of nearly twenty 
 
 years. 
 
 2 B 3 The
 
 374 OF AtiSlGNMENTS 01' TERMS. 
 
 The principal grounds of tlie determination in tlic King 
 V. Smith were three r^— 1 .st, that the lands of a dehtor to the 
 crown might he extended into whatever liands they might 
 liavcheen aliened, subsequently to their becoming liable to 
 the crown ; 2dly, that tlie estates of which the dcl)tor was 
 cestui que trust f might be extended ; and 3dly, the decision 
 in the case of the Attorney-general v. Sands (c). The two 
 first positions of the court may be admitted to be law with- 
 out, as it should seem, at the same time admitting, that 
 a purchaser cannot protect himself against the crown, by an 
 outstanding legal estate. Indeed it was the third ground 
 upon \vhich the court principally relied, and built their de- 
 cree. 
 
 The determination in the case of the Attorney-general v. 
 Sands was, that the trust of a term attendant on the inherit 
 t<>nce v.as not forfeited by the felony of the cestui que trusty 
 because it was no more than an accessary to the inheritance, 
 which was not forfeited. In the King v. Smith, the Court 
 of Exchequer thought that the converse of this case must be 
 taken to be true. The term was not forfeited, because the 
 inheritance was not forfeited; but if the inheritance had been 
 forfeited, the term must have been forfeited. The case of 
 the Attorney-general v. Sands was decided in a court of equi- 
 ty, and appears wholly to depend upon the rules of equity 
 as to attendant terms; and on the like principle, it may be 
 thought that the same judges would have denied relief 
 against a purchaser, in a case similar to that of the King v. 
 Smith ; and that no such relief could at this day be granted. 
 If any remedy, therefore, lies against the purchaser, it must 
 be at law. Now at law the term in the trustee is a tenn in 
 gross. A legal title, prior to the right of the cro^vn, must 
 prevail at law; and the court ought not to advert to the 
 t;ust, only for the purpose of taking the protection of the 
 
 (c) Hard. 2 Freem. 3 Cha. Rep, 
 
 term
 
 OF ASSIGNMENTS OF TERMS. 375 
 
 t^rm from the bona fide object of tlie trust, for even tlie arts 
 of the law in introducing collateral warranties, discontinu- 
 ances, and non-claims to protect the possessio?i, and 
 strengthen the rights of purchaserSy have been the subject 
 of commendation from the great Lord Nottingham ; and it 
 is admitted that if the tenn be in gross, an assignment be- 
 fore any actual extent will stand good against the king s 
 debt {d). Lord Hardwicke's decision in AVilloughby v. 
 Willoughby is an elaborate ])erformance, and was certainly 
 pronounced after great consideration. Every point was ad- 
 verted to, and yet his Lordship lays the rule down generally, 
 that a purchaser may protect himself against all mesne in- 
 cumbrances by a prior legal term, and does not except the 
 case of the crown. And in pronouncing judgment in the 
 Attorney-general v. Sands, the Chief Baron observed, tluit 
 the term was only ke})t on foot to avoid incumbrances which 
 might affect the inheritance ; and yet, although he was dis- 
 cussing the rights of the crown, he did not seem to consider 
 that the term would not prc^•ail over crown debts. It is not 
 denied, thr.t in general wliere a term is attendant on the in- 
 heritance, if the King extendi the inheritance lie shall have 
 a right to the term (e), but the question here turns upon 
 what, it is conceived, ought to form an exception to that 
 rule, viz. a purchase by the person claiming the benefit of 
 the tenn bo?iaJide, and witliout notice of the claim of the 
 crown. 
 
 It remains only to observe, that in this commercial coun- 
 try, any decision that tends to clog the free alienation of 
 property, and to render the titles of fair purchasers insecure, 
 cannot but be productive of the most serious consequences, 
 aiul well demands the interference of the legislatiue, if the 
 law is too well settled to be overruled. 
 
 (d) 2 Vern.390. Nicholls t. How, 2 Vern. 3S9. 
 
 (') See the 2d resolution in 
 
 2 B i In
 
 376 OF ASSIGNMENTS Or TEKMS. 
 
 In a still later case (/), in wliich the case of King v. 
 Smith appears to have been forgotten, uhere a man having 
 a'^rccd before marriage to purchase and settle estates, entered 
 into bonds to the crown, and then made a purchase, and 
 afterwards settled the estate according to the articles, it was 
 held that a mortgage term assigned to attend upon the pur- 
 chase did not protect the inheritance against the crown debt, 
 because the settlevient was voluntary. There was no 
 covenant in the articles which specifically bound the lands. 
 The assignment of the term therefore could not, it was held, 
 defeat the right of the crown. 
 
 Mr. Butler justly observes, that " a term should never be 
 relied on, unless proof can be obtained easily, and at a small 
 expense, of the instruments and acts in law, which must be 
 proved to establish the creation and deduction of the term. 
 It should also be ascertained, that its situation is such as 
 enables the party entitled to it, to avail himself of it in eject- 
 ment ig)" And to enable the purchaser to avail himself of 
 the term, it is indispensably necessary that he should not 
 have notice, either express or implied, of the incumbrance or 
 title against which he is desirous of using the term as a pro- 
 tection. ]Mr. Powell, indeed, although he admits that tenns, 
 the purposes of whose creation are answered, and which ha^e 
 been expressly assigned to attend the inheritance, will not be 
 any protection to a purchaser of the inheritance who had 
 notice of any judgments, &c. yet contends, that where a pur- 
 chaser of the inheritance obtains a term in gross, the pur- 
 poses of whose creation were not answered at the time of the 
 
 (/) Rex T.St. John, 2 Price, (g) N. 1. s. 13, to Co. Litt. 
 
 317, See Rex v. Hollier, 2 Price, 290, b. 
 394. 
 
 purchase
 
 OF ASSIGNMENTS OF TERMS. 377 
 
 purchase (I), or a term the purposes of whose creation were 
 answered, but which liad not been expressly assigned to at- 
 tend the inheritance, but merely waited upon the freehold by 
 construction of equity, such purchaser can defend his pos- 
 session by the tenn, although he had notice of any interven- 
 ing judgment. 
 
 This is an attempt to establish a new distinction between 
 a term assigned upon an express trust to attend the inheri- 
 tance, and a term attendant by the construction of equity, ai? 
 attempt which Lord Hardwicke appears to have overruled in 
 the case of Willoughby v. Willoughby ; and it would be. 
 very imprudent for a purchaser of an estate in any case to 
 rely on a term of years, as a protection against any incum- 
 brance, of which he has express or implied notice. 
 
 It isj however, settled by a series of authorities (//), 
 that a purchaser may protect himself against the dov/er of 
 the vendor's wife, by a term created previously to her right 
 of dower attaching on the estate, although he had actual 
 notice of the marriage, and of her title to dower ; — a pro- 
 
 (h) Lady Radnor or Bodmin V. v. Sutton, 2 P. Wms. 700(11); 
 
 Fiotherham or Vendebendy, Prec. Hill v. Adaras, or Swannock v. 
 
 Chi. 65} 1 Vern. 179, 356; 2 Lyford, 2 Atk. 208, Ambl. 6; 
 
 Cha. Ca. 172, Show P. C. 69 ; Butler's n. (1) to Co. Litt. 208, a, ; 
 
 Brown v. Gibbs, Wray v, Wil- Wynn v. Williams, 5 Ves.JuD,I30 ; 
 
 Vnms, Dudley t. Dudley, Prec. D'Arcy t. Blake, 2 Scho. and 
 
 Cha. 97, 151, 241 ; aud seeBanks Lef. 387; and see supra, p. 301. 
 
 (I) In this case the purchaser could of course defend himself against 
 any subsequent incumbrancer to the extent of the subsisting charge on 
 the term at the time of the purchase. It has, indeed, been thriug • that 
 if there are two mortgagee!, nod the first in point of charge buy < i • in- 
 heritance, he lets in the other on the estate dischargfif of (he prior mort< 
 gage. See, however, Kennedy t. Dal), 1 Scho. 'nd hff 355. 
 
 (II) Note, this caie is generally thought to be oTtrrul'-d bnt Mr, 
 Powell hai endearoured to show, that it is not aflfected by In', r tUrisionf 
 *ce 2 Mort, 731, 4th edit.; and ia a manuscript note of the .VrM.,ncy. 
 
 tcction,
 
 378 OF ASSIGNMENTS OF TERMS. 
 
 tection, as we shall hereafter see (i) to which a purchaser 
 with notice is not entitled in any other instance, or against 
 any otlier person. 
 
 The term, however, must be actually assigned to a trustee 
 for the purchaser, if it is intended to be used as a bar to the 
 wife's dower (k) ; because, by the rules of equity, every 
 term attendant on the inheritance, follows it in its various 
 modifications, and in the charges and incumbrances which 
 attach on it, or are created in it (/); and therefore, 
 upon the marriage of a man seised of lands of inheri- 
 tance, in which there is a term outstanding, a right 
 of dower attaches on the inheritance, by the act of 
 law, and in equity the term is equally bound with the 
 inheritance; and as the claim of a purchaser is not more 
 favoured in equity than that of a dowress, a purchaser will 
 not be entitled to the benefit of an outstanding term, to the 
 prejudice and in exclusion of a dowress. Indeed the deci- 
 sion (m) that a purchaser could defend himself against a 
 claim of dower by a term assigned to a trustee for him, pro- 
 ceeded not on principle, but on the universal practice and 
 
 (e) Infra, ch. 16. (I) See Charlton v. Low, 2 P. 
 
 (A) SceMaundrellv.Maundrell, Wms. 328. 
 
 7 Ves. Jun. 567, 10 Ves. Jun. (m) Lady Radnor r. Vende- 
 
 216, particularly the close of the bendy, Show, P. C. 69. 
 judgment. 
 
 general v. Scott, penes auclorem (For. 138,) Lord Talbot is reported to 
 have said, that the reanon of the decree in Banks v, Sutton was different, 
 for there the direction of the will was, that the legal estate should be 
 conveyed to Sutton, and the wife married him on the expectation oif 
 that eitate, and it was a fraud in the husband not to call for the settle- 
 ment. See a fuller note of this case than that which is published, Ap« 
 pendix. No. 17. In the late case of D'Arcy v. Blake, 2 Scho. and 
 Lef. 387, it was said by the court, that what was thrown oat by Sir 
 Joseph Jekyll, in Banks t. Sutton, had been long overruled* 
 
 opinion
 
 OF ASSIGNMENTS OF TERMS. 379 
 
 epinion of conveyancers in that respect; for (n) the Court 
 of Chancery and House of Lords were of opinion, that if 
 they were not to permit that to be so, it would be to over- 
 turn the general rule wliich had been established and prac- 
 tised by many titles to estates, and tend to make such titles 
 precarious for the future. The same reason does not apply 
 where the purchaser neglects to take an assignment of the 
 term ; it having always been the general understanding and 
 opinion of conveyancers that, to protect against dower, the 
 term must be actually assigned to a trustee for the pur- 
 chaser. 
 
 In Swannock v. LifFord (o), Lord Hardwicke appears to 
 have considered it clear, and it was admitted at the bar, that 
 if a man before marriage conveys his estate privately, with- 
 out the knowledge of his wit'c, to trustees, in tnist for him- 
 self and his heirs in fee, that will prevent dower ; and it 
 ap^Kjars that this was practised by a reverend judge of equity, 
 Mr. Sergeant Mapiard, who made a lease to his servant the 
 day before his last marriage {p). But the counsel who 
 argued for the respondent in Radnor v. Vendebendv, before 
 the House of Lords, seem to have admitted, that if a hus- 
 band just before marriage, make a long lease on purpose 
 to prevent dower, and the woman eccpecting the privileges 
 ivhick the common law gives to ivomen married, survive 
 him, equity may interpose; and this doctrine has been dis- 
 tuictly recognized by a learned judge and author {g). Antl 
 as this opinion may be supported by weighty reasons, a pur- 
 chaser cannot, it is conceived, be advised to rely upon a legal 
 
 (;*) Per Lord Harwicke, see the court did not advert to a con. 
 
 Diitlcr's n. ubi sup. vryance made imvifdiatcly before 
 
 (o) Butler's n. (1) to Co. Litt. marriage, 
 208, a ; and see 2 P. "VVms. 709. {p) See Show, P. C. 71. 
 
 Not*', ill 'he case of Bottouiley (q) Gib. I, ex. Proctor. ii67. 
 
 T.'Lord Keiifiij, Prcr. (.'ha. 336, 
 
 estate,
 
 .'^80 OF ASSIGNMENTS OF TERMS. 
 
 estate, created in fraud of the rights of marriage, as a pro- 
 tection against the wife's dower (?). 
 
 It hath been just observed, that by the rules of equity 
 every term attendant on the inheritance, follows it in its 
 various modifications, and in the charges and incumbrances 
 which attach on it, or are created in it. Now it is a conse- 
 fjuence of this rule, that whenever the inheritance is con- 
 veyed or charged, the trustee of the term becomes a trustee 
 for the person in whose favour the estate is conveyed or 
 charged, to the extent of his claims on the estate. If tlie 
 trustee have notice of such purchase or incumbrance, his 
 conscience will be affected ; and if he assign the term to a 
 subsequent purchaser, or incumbrancer, it would be a breach 
 of trust, and he would in equity be decreed to make satis- 
 faction (s). A trustee, therefore, of a term to attend the in- 
 heritance, cannot be advised to assign the term to any pur- 
 chaser or incumbrancer, unless he is satisfied that his imme- 
 diate cestui que use has not done any prior act to charge the 
 inheritance (i^). 
 
 As a trustee ought to be satisfied, that the person by 
 vihose direction the term is assigned, is the person entitled to 
 require the assignment, it is usual, by way of authority to the 
 trustee, to recite all the instruments, &c. affecting the fee, 
 from the time the term was created to the date of the deed 
 of assignment; and this is very commonly done, even where 
 the term has been assigned to attend the inheritance. In 
 the latter case, however, such a recital is both unnecessary 
 and improper; for the trustee can only be affected by the 
 
 (r) As to settlements by women to apply to the point under con- 
 previously to marriage, in deroga- sideration. 
 tion of the marital rights; see (*) 1 Term Rep. 771. 
 Countess of Strathmore ▼ Bowes, (t) See 1 Pow. Mort. 507, 508, 
 2 Bro. C. C. 345, 1 Ves. Jun. 22, 4th edit.; Evans t. Bicknell, 6 Ves. 
 and the cases there cited, which Jun. 174. Ex parte Knotty 11 
 may be thought, U lome measure, Yes. Jun. 609. 
 
 «CtS
 
 OF ASSIGNMENTS OF TEli:\rS. 
 
 SSI 
 
 acts of his own cestui que trust ; and therefore, where ;i 
 tenn has been actually assigned to attend the inheritance, 
 on a future assignment . of it, it is only necessary to recite 
 the deed creating the tenn, that by divers conveyances and 
 assurances the fee became vested in A, (the person requiring 
 the assignment) ; and that by divers assignments and acts in 
 law, and ultimately by such a deed (the assignment to attend) 
 the term became vested in the trustee, in trust for A; and 
 then any instruments affecting the fee, since the last assign- 
 ment of the term, to attend the inheritance, should be re- 
 cited. 
 
 V. Before we quit this very interesting subject, let us 
 inquire in what cases a term of years will attend the inheri- 
 tance without an express declaration of trust for that pur- 
 pose {ii). 
 
 First then, it is a general rule, that whenever a term 
 would merge in the inheritance if united, it shall attend, if 
 in a different person, without an express declaration, by im- 
 plication of law founded on the statute of frauds {x). And 
 the custom of London shall not prevail over this operation 
 of law (2/). 
 
 Therefore, where a person purchases the inheritance in 
 his own name, and takes an assignment of a tenn in the 
 name of a trustee {z) ; or takes a conveyance of the fee in 
 
 (u) See an admirable opinion of 
 Mr. Fearne*s respecting terms of 
 years, 2 Coll. Jur. 297. Mr. 
 Powell has in the last editionof his 
 Treatise on Mortgages, inserted 
 this opinion without acknowledg. 
 ment; see 1 Mort. 483—489. 
 
 (x) See 1 Bro. C. C 70. 
 
 (y) Greene V. Lambert, IVern 
 2, cited ; Dowse y. Dcrivall, Hid, 
 
 104; 2 Vern. 57 ; Reg. Lib. A. 
 1683, fol. 283. It is said in the 
 decree, that the lease and convey- 
 ance were in law one conveyance ; 
 Rich V. Rich, 2Cha. Ca. IGO. 
 
 (=) Tiffin T. Tiffin, 1 Vern. 1. 
 2 Cha. 49, 55; Whitchurch v. 
 Whitchurch, 2 P. Wms. 236, 9 ; 
 Mod. 124, Gilb. Eq. Rep. 168 ; 
 Goodrisht ▼. Sales, 2 Will, 329. 
 
 the
 
 382 OF ASSIGNMEXtS OF TERMS. 
 
 the name of a trustee, and an assignment of a term in his o^^^n 
 name {a)\ in both these cases the term attends the inheri- 
 tance, unless there be an express declaration to the contrar\% 
 whether the tenn be purchased or obtained before or after the 
 purchase of the fee. And in general there is no difference 
 between an assignment of a term to a trustee, in trust to at- 
 tend the inheritance, and an assignment to a tnistee, in 
 trust for the purchaser, his executors, administrators, and 
 assigns {b). 
 
 So the same rule prevails where i man possessed of a term 
 for years contracts for the inheritance, for the vendor stands 
 seised in trust for the purchaser from the time of the con- 
 tract, (c). 
 
 And where, by reason of an intermediate tenn outstand- 
 ing, a term cannot merge, although vested in the pur- 
 chaser together with the fee, yet if the purchaser be entitled 
 to such outstanding term, even the term vested in the pur- 
 chaser, and which cannot merge, shall attend the inheritance, 
 wthout any express declaration for that purpose (<?)» 
 
 And even if the purchaser cannot obtain an assignment 
 of the whole term, yet, if a nominal reversion only, as a re- 
 version of a few days, be left outstanding, so much of the 
 term as is assigned to a trustee for the purchaser will be 
 deemed attendant on the inheritance, mthout any express 
 declaration for that purpose. But where the term is subject 
 to rents or charges in favour of other persons, whereby the 
 purchaser has not substantially the whole henejicial interest 
 in the estatey there an express declaration is necessary to 
 
 (a) North t. LangtoD, 2 Cha. (c) Capel v, Girdler,Rolls, 16th 
 
 Ca. 156; Dowse v. Derirall, 1 March, 1804, MS.; 9 Ves. J«o. 
 
 Vern. 104; Attorney-general tr. 509; Cooke t. Cooke, 2 Atk. 67,. 
 
 Sinds, 3 Coa. Rep. 19. Vide supra, ch. 4, 
 
 {h) Best T. Stamford, Free. Cba. (d) Whitchurch t. Whitchurch, 
 
 ^52; Titfin r. Tiffin, 1 Vern. 1 ; 2 P.Wms. 2369 ; Mod. 124; Gilb. 
 
 Holt ▼ Holt, I P.Win9.374,citedj Eq.Rep.l68; and see 1 Bro, C.C. 
 
 iPitt t. Cholmcmdley, Chancery, 9 170, 
 Not. I75I3 MB; 
 
 mvikc
 
 OF ASSIGNMENTS OF TERMS. 383 
 
 make the term attendant. The mere intent of the pur- 
 chaser to purchase the whole interest, and that the term 
 should attend the inheritance, will not vary the case. 
 
 The two last propositions appear to be established by the 
 case of Scot V. Fenhoullet {f). From the imperfect state- 
 ment of the facts in this case, it is difficult to understand 
 the ground of Lord Thurlow's decision; and it has been 
 generally thought, that the decree turned on the reversion, 
 which the purchaser could not get in {g). The facts, as 
 stated in Lord Thurlow's judgment, on the rehearing, re- 
 ported in Brown, are shortly these: Mrs. Rudgcr was seised 
 in fee of the estate, subject to two terme of years, upon 
 which it should seem small rents were reserved; which terms 
 were vested in trustees in trust for INIrs. Rudger for life, 
 and for raising certain annual and gross sums of moncy» 
 Sir Andi-cw Chad\\ick piu-chascd of Mrs. Rudger the fee- 
 simple estate, and so much of the tortus as related to it ; 
 and the trustees executed their power by gi-anting a deriva- 
 tive lease to trustees for Sir Andrew, with a nominal rever- 
 .sion (11 days) to themselves. Lord Thurlow admitted, 
 that Sir Andrew meant to purchase the whole interest, and 
 that his intent was, that the terms should attend the inhe- 
 ritance. If they did attend the inheritance in this case, it 
 must, his Lordship said, be by implication of law, as there 
 was no express declaration ; and, after shewing that the case 
 of Whitchurch v, Whitchurch {h) did not apply to tlie case 
 before him, because that there no interest was outstanding, 
 except in form ; he added, *' Sir Andrew Chadwick might 
 liave given these terms to a stranger, and if the inheritance 
 descended, the heir at law might demand the rents reserved 
 by the leases. It is said to be extremely plain, that Sir 
 
 (/) I liro. C. C. 6, 9. Dig. 513, 8. 17, and the margi. 
 
 (g) 3e« Capel r. Girdler, MS. nal abstract of the case in Brown. 
 aud 9 V>s Jj% 509, 1 Cruiie's (A) Supm. 
 
 Andrc\v
 
 584 or ASSIGNMENTS OF TERMS. 
 
 Andrew Chadwick meant to consolidate the intercuts : tlii.^ 
 is begging the question. It is true he meant to take tlic 
 largest interest he could, but by no means apparent that lie 
 meant to consolicLitc the interests. / lay no stress on the 
 days of the reversion^ for it was meant only as a nominal 
 7'eversion; they did not mean to reserve a substantial 
 iiiterest. It would be necessary there should be an express 
 trust to make this attendant on the inheritance ; the trans- 
 action docs not supply a necessary construction of law. It 
 is a very nice point, and a very new one; whether the 
 intent to purchase the whole interest is sufficient to make 
 the term attendant on the inheritance. The impossibility 
 he was under of puicJtasing the whole, rendered an 
 express declaration necessarij to mahe it attend the inhe- 
 ritance" Now, at first sight, it certainly does seem 
 impossible to reconcile those parts of the judgment whiclt 
 jire printed in italics. But it appears by an opinion of Mr. 
 Fearne's (i), in consequence of which the cause was reheard, 
 that rents were reserved by the leases granted by the trus- 
 tees to Sir Andrew Chadwick, and the usual covenants 
 were entered into by him, and the trustees were restrained 
 to that mode of making a title by their trust, which required 
 a reservation of rent, and the usual covenants. 
 
 This fact at once reconciles every part of the judgment. 
 Jjord Thurlow was of opinion, that the reversion of itself 
 was immaterial, but that the rents reserved by the leases 
 rendered an express declaration necessary to make the terms 
 attend the inheritance. And Mr. Fearne was also of 
 opinion, that the terms would not be attendant, if there 
 was any intervening beiiefioial interest in any third person, 
 to divide the ownership of the term irom the inheritance. 
 But as he was told, that the rents reserved to the trustees 
 upon the terms were afterwards purchased by Sir Andrew, 
 
 (i) 2 Collect. Jurid. 297. Ho. 6.
 
 or ASSIGN^MEXTS OF TERMS. 385 
 
 lie tbonglit the tcnris did attend the inheritance, although 
 there was not any express declaration for that purpose; and 
 he expressly delivered his opinion, subject to. this fact, 
 wliicli lie liad learned from verbal inforniation only. By 
 Lord Thurlow's decree on the rehearing, it appears clearly, 
 that the rents were not purchased, and consequently INIr. 
 Fcarne was misinformed in this respect. 
 
 Mr. Fearne's opinion on this point is very strongly 
 marked; for he thought, that if there was any intervening 
 outstanding interest between the ownership of the term and 
 the inheritance, even an express declaration of trust could 
 not make the terms attendant. This, however, was going 
 too far ; and Lord Thurlow, who had probably seen this 
 02)inion, addressing himself to the cases in which a term 
 v.ould attend the inheritance, said, that might be bv two 
 ways : first, by express declaration ; and tlien, whether the 
 trust would or would not merg-e, and whether the reversion 
 be real or only nominal, it must be attendant on the inlie- 
 ritancc. 
 
 We have seen that where a term attends tlu inlieritance 
 without any express declaration, it is by implication of law; 
 and this implication, like all implications of law, or equi- 
 table presumptions, may be rebutted by even a i)arol decla- 
 ration of the person in whose favour tlie implication or 
 presumption is made (/.•). 
 
 VL A term for years attendant on the inheritance, 
 whether by express declaration or by implication, is go- 
 verned by the same rules as the inheritance itself is subject 
 to. Therefore it will not be forfeited by the felony of the 
 owner of the inheritance (/) ; but if tlie inheritance escheat, 
 the term will go with it {in). 
 
 {k) Set? /)'U/. cli. 15. (in) Tliriixtou V, Attornrv-Ge- 
 
 (/) Attorriey.deneral v. Siuids ncral, 1 \cmi 340, 3i7. 
 
 3 Cha. R.p. 19; Hard. 188. 
 
 2 c So
 
 ;>S6 01 ASSIGNMENTS 01 TETvMS, 
 
 So it seems, that sucli a term cannot pass by a will not 
 executed according to the statute of frauds {n). But it 
 appears to liave been tliought, and the distinction, it is 
 conceived, may be supported on very solid gi-ounds, that 
 "vhere a term attends the inheritance merely by operatioit 
 m law, the o^vncr may eoqyressly bequeath it by a will 
 aot executed with the solemnities required by tlie sta- 
 tute (o). 
 
 It is clear, that where the devisor intended the inherit- 
 ance to pass, but, by reason of the informality of the \viil, 
 it descends to the heir, the tenn shall not go to the devisee* 
 but shall follow tlie inheritance in its devolution on tha 
 heir {p). 
 
 So where a termor for years having contracted for tiie- 
 fee, made his will, whereby, after reciting that he had 
 purchased the term, and contracted for the fee, a convey- 
 ance of which could not then be obtained, he declared, 
 that when a conveyance could be had, the estate should 
 be settled to the uses mentioned in his will, and directed 
 that the remainder of the term should remain and be 
 attendant on the inheritance. The person who contracted. 
 to sell the fee was not owner of it, and the owner sold it 
 to another person. Sir Joseph Jekyll held, that the tes- 
 tator intended to pass the inheritance; and although he 
 had it not, yet the term could not pass by the will, as 
 such a construction would be contrary to the testators- 
 Intention {q). 
 
 («) Tifiin 7. Tiffin, 2 Cha. Ca. (o) See 9 Mod. 127, and see 2 
 
 p. 49, 55 ; 2 Freem. 66 ; WhiU Collect. Jurid. 276, 
 
 church T. Whitchurchj Gilb. Eq. (p) Cases cited ante, n, (x). 
 
 Rep. 168; Villiers v. Villiers, 2 {q) Bret v. Sawbridge, 4 Bro. P, 
 
 Atk. 71, Note, Nourse v. Yar- C. 1736; andseeFearne's Ex. Dev, 
 
 worth, Finch, 155, -was before the by Powell, 145, n, (a). S. C. Ap- 
 
 statute of frauds, pcndix, No. 1^. This note of the 
 
 A..
 
 or APKICXMENTS OF TERMS. ,^8? 
 
 As tLo jnlierituiicc of an estate is not liable to simple 
 contract debts, it follows, on the principle before noticed, 
 tliat a term attendant on the inheritance is not pci-sonal 
 assets for the payment of debts (r), but it is generally stated 
 that such a term is 7xal assets : — This is, however, a very 
 incorrect expression : the term itself is not real assets, but is 
 merely attendant on the inheritance, which is. In Cliapman 
 V. Eond (6'), it appears to have been tliought, that although 
 the term was in a trustee, yet if it attended the inheritance 
 by construction of equity only, it should be assets in equity 
 for payment of the owner's debts, in like manner as a term 
 taken in his own name would be assets at law. But this 
 opinion is clearly overruled ; and vvhere the term is in a 
 trustee, the same rules prevail on this point, whetlier the 
 term be attendant by express declaration or not {i). In one 
 case it is made a query, whether if tenant in tail contract 
 debts by bond and die, and it can be made to appear that 
 some of his ancestors, who bought the estate, found an old 
 mortgage upon it for a long term of years, whicli war, kept 
 on foot to wait upon the freehold and inheritance, sucli lease 
 in equity would not be assets in the hands of the heir in 
 tail, for it is equity only makes such leases descend, and it 
 is the highest equity, that a man's debts sliould 1)e paid {ii). 
 There is not, however, the least foundation for this doubt. 
 Equity, in this respect, follows the law, and at lav; tlic estate 
 is not bound. 
 
 But where the inheritance is in trustees, and the o^-ner 
 
 case will, I hope, beaccrptable to ral, 1 Vern, 310; TifHn t. Tifn, 
 
 the reader. It contains a concise l\orn. 1. 
 
 statement of the fncfs, and Sir Jo- (i) 1 Vorn. I8S. 
 
 scph Jt-kvll's jud ■mtnf, wlsith is, (0 Badj n v. Karl of Pimbroke, 
 
 I bclif'Vf, not in print, nnd com- '2 Vcrn. 52, 213; 2 Trca. Eq. c. 
 
 prist's sonic iiUcrcstin;; remarks 1, s, G. 
 
 on exccntory bciiuests of terms. (:/) .'Vnrti. 11 Mod. p. 5 
 (r^ Thnixton r. Attorney, genc- 
 
 c c a -'''•s
 
 388 OF ATTESTED COPIES. 
 
 has u term in liiy own name, and dies indebted, the tevniy 
 ulthongli limited to attend the inheritance, will be liable to 
 debts, for it is assets at law (,r) ; and eqnity lierc follows tlie 
 law (?/), and therefore a pnrchaser should never take the 
 term in liis own name, if he do not wish his estate to be 
 personal assets. 
 
 If after the death of a person who has taken an assign- 
 ment of a t?rm in liis o^vn name, and a conveyance of the 
 inheritance ill the name of a trustee, his personal represen- 
 tative assign the term to attend the inheritance, it will cease 
 to be assets at law ; and the creditors or legatees will be en- 
 titled to satisfaction against the personal representative, as 
 for a devastavit ; and may, it should seem, even follow the 
 term in equity, unless as against a boJia ^tZ^^purchaser with- 
 out notice, against whom the tenii will not be severed or 
 disannexed from the inheritance in favour of the creditors 
 or legatees, although the purchaser did not take an assign- 
 ment of the term, or was even not aware of its existence {z). 
 
 SECTION III. 
 Of Attested Copies. 
 
 J HITS have we taken a cursory view of the doctrine re- 
 specting terms of years, a learning which demands the 
 
 (x)Thruxtonv. Attorney-gene- Pembroke's cas», 9 Mod. 125 
 
 ral, ubi sup. ; Chapman v. Bond, cited. 
 
 1 Vern. 188 ; Attorney.general v. (;) Charlton v. Low^3 P, Wnis. 
 
 Sands, Hard. 488. 32. 
 
 (/) See 2 Cha. Ca. 49 ; Earl of 
 
 practical
 
 OF ATTESTED COPIES. 389 
 
 practical conveyancer's peculiar attention ; and we are now 
 to consider in what cases a pnrcliaser is entitled to attested 
 copies of the title deeds. 
 
 If a purchaser cannot obtain tlie title deeds, lie is, as we 
 have ah-eady seen, entitled to attested copies of them at the 
 expense of tlie vendor, unless there he an express stipulation 
 to the contrary (a) ; and although he may not he entitled 
 to the possession of the deeds, yet he has a right to inspect 
 them, and the vendor nuist produce them for that pur- 
 pose {b). 
 
 Eut a purchaser is not entitled to attested copies of in- 
 struments on record. 
 
 This was decided in the case of Camjibcll v. Campbell (r), 
 Avhere the master, in taxing costs incurred l)y the sale of 
 considerable estates, disallowed the charges for attested 
 copies of deeds and documents upon record ; and u})on ex- 
 ceptions to his report on that account coming on. the Master 
 of tlie Rolls OA er-ruled them, and held that a pinxhaser was 
 not entitled to such copies at the expense of the vendor. 
 
 In some cases, however, a purchaser can obtain attested 
 copies even of instruments on record. For a purchaser is 
 entitled to examine the abstract with the original title deeds, 
 or with attested copies of them ; and, therefore, if a vendor 
 has not the instrument itself, and cannot obtain it, he is 
 bound to procure an attested -copy of it, to enable the pur- 
 chaser to ascertain that the a})stract is correct ; and when it 
 is obtained, the purchaser is of course entitled to it on the 
 completion of the purchase ; unless, indeed, tlic a endor re- 
 tains other estates holden under the same title- 
 In a case before I^ord Rosslyn, where there \\as an agvee- 
 ment, that the vendor should jn-oduce the original title 
 
 (a) Dare v.Tucler, 6 Vos. Jui). (/>) 1^ rry v. Voun.-, ubi sttp, 
 
 460; Bf.rr)' v. Young, 2 Ksp Ca. (c) Uollb sl;tirp;s after 
 
 610, n. 'I eim, 1793, MS. 
 
 2 c 3 deeds
 
 390 f)f ATTESTED COl'I£S. 
 
 deeds, his Lord.ship construed it, not only as an c-ngagement 
 to produce the title deeds, but as a normative stipidation, 
 that he should not give attested copies. This ^vas certainly 
 presuming a great deal. Lord Eldon has since thought 
 th.at the pressure of the stamp duties led to that decision 
 (d) ; aw?, it is probable, that a similar case would now re- 
 ceive a different determination, ...«•• ^ '• - 
 
 h\ a recent case, Lord Eldon compelled the vendor, at 
 his own. expense, to funiish attested copies, the purchaser 
 having had no intimation that he could not have the deeds. 
 For, his Lordship said, if he had notice that he .vas not to 
 liave them, he would regulate his bidding accordingly ; con- 
 ceiving tliat he was to bear the expense of procuring copies 
 (c). From this, it may be inferred, that notice that the 
 purchaser cannot have the deeds is tantamount to a stipu-: 
 lation, that he shall not be furnished with attested copies at 
 the seller's expence. The general practice of the profession, 
 founded on the decided cases, is, tliat the seller, in. the ab- 
 sence of an express stipulation to the contrary, is bound, at 
 his own expense, to furnish the purchaser with attested 
 copies : and Lord Eldon does not appear to l:ave intended 
 to establish a nev>' rule. 
 
 Where a purchaser cannot claim the title deeds, it is of 
 f^i-eat imr^ortance to him to obtain attested copies of them. 
 But attested copies are not of themselves suflicient security 
 to a purchaser, — they are indeed mere waste paper against 
 rtr^mgers, and cannot be used upon an ejectment, unless, 
 perhaps, as between the parties themselves. Therefore, in 
 eidel- to enable a purchaser to effectually manifest, and de- 
 ftnd his title and possession, he is also entitled, at the ex- 
 \>cTAie of liie vendor, to a covenant to produce the deeds 
 themselves, at tlie expense of the purchaser (f) ; which 
 
 (,'/) See 6 Vfs. JiiM.460. (/) Berry v. Yo>i!)q:, 2 Esp. 
 
 (c) B,-vig!;toii V. Jewell, 15 Vos. Ca. biO, n. 
 Jun. 176. 
 
 sliould
 
 OF ATTESTED COPIES. SQl 
 
 should, in most cases, be carried into efFect by a separate 
 deed. And where a vendor retains the deed by which tlie 
 estate he is sclhng was conveyed to him, (which is mostly 
 the case when it relates to other estates) it seems advisable 
 for the purchaser to ref^uire a memorandum of his purchase 
 to be indorsed on such deed. 
 
 And where the title deeds cannot be delivered, assignees 
 must, like any other vendor, give attested copies of them at the 
 expense of the estate, but their covenant for the product ion 
 ©f the deeds should be confined to the time of tlieir ecn- 
 tinuance as assignees (^). If, however, the covenant is so 
 confined, the purchaser should have som.e security that the 
 person who shall ultimately become entitled to the custody 
 of the deeds will covenant for their production. The proper 
 course seems to be for the assignees^ covenant to be mad^^ 
 determinable in case they sliall procure tlic person to whom 
 they shall deliver the deeds to enter into a similar covenant 
 with the purchaser. 
 
 It may here be remarked, that althoiigh a purchaser of" 
 part of an estate has taken a covenant for the production of 
 the deeds, yet, if they afterwards come into liis possession by 
 Ciccident, no person can recover them from him who has not 
 s better right to them than he has {h). 
 
 Supposing a purchaser to be entitled to the custody of the 
 deeds themselves, yet if any of them be lost, and the vendor 
 can deliver over copies which would be admitted as evidence 
 st law, the purchaser will be compelled to take the title (/). 
 But where a deed essential to the title is in the hands of a 
 
 (o-) Per Lord Eldon, Ex parte casts iii whicli tho execution of an 
 
 'itiiari, 2 Rose, 215. instrunntit will be prc^umcil, sto 
 
 (/i) VcaT. Field, 2 Term Hep. SUipwilh v. Miiiicy, 11 \'es. Jiin. 
 
 708. ^^i ; Ward v. Ciarnons, 17 \'e^. 
 
 (») Ifarvey v. Philips, 2 Atk. Jim. 13 I ; and see Holmes v. Ail*. 
 
 541. Sec anoplnion of Mr. Booth's, bic, 1 Madd. 551, 
 i> Ca. and Opin. 223. As to the 
 
 2 C i third
 
 392 Ol ATTK.STED CfJllEb'. 
 
 third person who is entitled to retain it, Mid wculd bj eoni- 
 pelled to produce it to the purchaser, tjie court will not com- 
 pel the purchaser to take the title unless the deed is deposited 
 for the benefit of all parties (/.•). 
 
 It frequently happens, that a person having a covenant 
 for production of the title deeds to his estate, sells only part 
 of the estate, and retains his purchase deed, and the covenant 
 to produce the deeds ; and in such cases I should conceive 
 the practice to he for the vendor to enter into the usiud 
 covenant for production of the title deeds in his posseg^ion, 
 Avhich of course wouhl include the original covenant to pro- 
 duce the deeds. But it seems that ^tlr. Fearne thought (/), 
 that a purchaser v/as, in cases of this nature, entitled to re? 
 (p.iire the vendor to covenant for the production of the deeds 
 to such an extent as the covenant in the vendor's possession 
 entitled him to the production thereof, unless he could pro-.- 
 cure a new covenant for that pm'pose, from his grantors, to, 
 the new purchaser ; but that such covenant from the vendor 
 should not be enforced, in case he produced the original 
 covenant to produce the deeds, Avhcn it should be required to 
 defend the purchaser's title. 
 
 It is not unusual to insert a proviso in a deed of covenant 
 to produce title deeds, for determining the covenant, in case 
 the vendor sell the part of the estate retained hv him, and 
 procure the pjGjson to Avhom the estate is sold, and tlie title 
 deeds are delivered, to enter into a similar covenant with the 
 iirst purchaser, for production of the title deeds, 
 
 ({) Shore t, Colleft, Coo;. _'3 1. (/) Toslh. 113, 
 
 :ECT,
 
 r 393 ] 
 
 SECTION IV. 
 
 Of Covenants fur Title, 
 
 1-ji:t .us now proceed to consider wliat covenants for title a 
 purcliascr is entitled to. 
 
 Tlic covenants usually entered into by a vendor seised 
 in fee, are, 1st, that lip is seised in fee ; 2dly, that lie has 
 power to convey ; 3dly, for quiet enjoyment by the purcha- 
 ser, his heirs, and asi;igns ; 4tiily, that the estate is free from 
 incumbrances ; and lastly, for further assurance (;/;). 
 
 Where a vendor has only a power of appointment, the 
 first covenant ought to be, that the ]iowcr v>as \<c\\ created, 
 and is subsisting ; and the other covenajits sliould he similar 
 to those entered into by a grantor seised in fee. In small 
 purchases the first covenant is sometimes omitted, which 
 may be safely done, for the first and second are synonymous 
 covenants. 
 
 It sometimes happens, that a purchaser consent;, to take a 
 defective title, relying for his security on the vendor's eo\ e- 
 Hants. JMr. Butler remarks, that where this is the case, th« 
 agreement of the parties should be particularly mentioned, 
 as it has been argued, that ::s the defect in (picstion is known, 
 it must be understood to have been the agreement of tiic 
 purchaser to take the title subject to it, and that tlio cove- 
 nants for the title should not extei\d to warrant it against 
 this particular defect («). And it may be further oliticrvcd. 
 
 (/«) 3(0/30?/, (h. 13. Lilt. 3S I. a. ; sec nlso Sav»^e v, 
 
 (//) ;^c.j Eutlti's n. (1) (o Co. Wl.itbicad, 3 Clia. Rq. 1 \. 
 
 that
 
 SQi OF COVEXAWTS FOR TITLJ". 
 
 tliat iu cases of tliis nature, unless the olDJection to the title 
 appear op the face of the conveyance, the agreement to in- 
 demnify against the defect, and the covenants to guard 
 against it, should be entered into hy a separate instrument 
 
 With respect to the persons against whose acts a vendor 
 is bound to covenant, it seems that, 
 
 1 St. A vendor who actually purchased the estate himself, 
 for money, or other valuable consideration, and obtained 
 proper covenants fcr |:he title, is not bound to enter into 
 covenants extending beyond his own acts (o). This, Mr. 
 'Fearne remarks (j)), is a practice founded in reason, where 
 the vendee obtains the full benefit of all the covenants in 
 the conveyance to the vendor, to the same extent as his 
 \endor has them, by obtaining the possession of the deeds 
 containing those covenants. When the vendor has parted 
 with his means of claim or remedy against his grantor for 
 breach of his covenants, and transferred them to the pur- 
 chaser, by delivery of the deeds, and such vendee comes uUo 
 the vendor's place, in that respect, by the acquisition of such 
 deeds, it would be unreasonable that the vendor should make 
 himself liable for any such breach. He, by departing -^vith 
 the means of remedy or compensation, must be understood 
 to have discharged himself from, and the vendee, by accept- 
 in c^ those means, to have taken upon himself the peril or risk 
 of, such breach, and the duty of enforcing its remedy or com- 
 pensation. 
 
 2dly. I^'Ir- Fearne, however, thought, that where a vender 
 retains the title deeds, he is bound to enter into covenants 
 extendinp" to the acts of the pcvsons against whose acts he is 
 indemnified by the deeds in his possession {q) ; but he also 
 thought these covenants should be qualified by the insertion 
 
 (o) See 2 Bos. and Full. 22; (p) Posth. 110. 
 
 and fee two cpins. in 3 Vc^y. Con- iq) See the Lord Buclihursi's 
 
 vrv. 206, 210, RSCj 1 Rep. 1.
 
 OF COVENANTS FOR TITIIl. S95 
 
 of a covenant on the part of the purchaser, that in case any 
 claim should he made under the vendor's cover.snts ngainst 
 the acts of the former owner, and lie (the vendoi) should 
 produce the deeds, in order to enable the purchaser to avail 
 himself of the covenants contained in thern, then no advan- 
 tage should be taken of the vendor's covenants. 
 
 Tliis, howcrvcr, is a distinction never attended to in prac- 
 tice ! if a vendor is entitled to retain the deeds, he enters 
 into the usual covenant for the production of tliem, but 
 never enters into more extensive covenants for the title, on 
 account of the retention of the deeds. 
 
 3dly. Where a vendor does not claim by purchase in 
 the vulgar and confined acceptation of that word (;) ; that it?v 
 By way of bargain and sale for money, or some other vali.ablt- 
 consideration, a purchaser is entitied to require com i ants 
 from such vendor, extending to the acts of the last puicl.aser. 
 i^'or instance, if I sell an estate which was devised to me, 
 and the devisor's fatlier purchased the estate, the covenants 
 for title are extended to the acts of the father (.s). Awd a 
 person claiming under a voluntary conveyance, is tcLsideved 
 in the same light as a devisee. So a pcison whose csir.te i» 
 sold under an order of a court of equity, or by a tii;si.v.e to 
 whom he has conveyed it upon trust to sell, is Lourd to 
 .covenant for the title in tlie same manner as he must have 
 done if he himself had sold the estate. 
 
 But although the universal cmd settled practice of con- 
 veyancers is, to extend covenants for the title to the Ltm cf 
 the last purchaser, yet tlic Court of Chancery apptars to 
 hold, that a person not claiming by purchase is ciiiy h. und 
 to covenant against his own acts, and tLose of the jtisor. 
 hnmcdiately preceding him (/). TI:e rule cstalhtht J b-; 
 
 (r) Set'2 Dlack. Comm. 'Jil. (/) Set- 3 AtK. n 7 ; o V*-,. 
 
 (1) Sro ace. two opiii. in Z Tow. Jim. 236 : and iie H V. s. 239. 
 
 frt-.Y '.m, '.'10. 
 
 practice
 
 3i)6 OF COVENANTS I- OK TITLE. 
 
 practice is undoubtedly the most reasouablc, for every pur- 
 cliaser is certainly entitled to a regular chain of covenants 
 for the title. No solid reason can be given, \vhy any line 
 siiould be drawn, Jiaid the covenants should extend to the 
 person only who immediately preceded the vendor ; and, 
 however the Court of Chancery may act upon this rule, tlie 
 practice of tlie profession has taken too deep a root to Ikj 
 easily extirpated. 
 
 4thly. Where an cstat'c is sold by trustees under a will, 
 and the money is to be applied in payment of debts, &c. and 
 the residue is given o\ er, a purchaser is not entitled to any 
 covenants for the title, because no line can well be drawn as 
 to the quantum^ uliieli would make a person liable to coac- 
 nant ; and therefore, if this rule were not settled, a person 
 ■who only took .5/. might as well be required to covenant, as 
 one who took a large sum («). 
 
 The same rule applies ex necessitate wlion an estate is 
 sold for similar purposes under an order of a court of equity. 
 If a different rule prevailed, the consequence would be, that 
 the estate could never be sold by decree, till the account was 
 taken of all the debts ; because, before tliat account was 
 taken, it could not appear who were to join in the convey- 
 ance, what was the number, and in what proportions they 
 were beneficially entitled : but it is the constant practice to 
 sell the estate in the first instance ; of course the title can be 
 made only by the trustees for sale, without calling in the 
 parties who are presumptively beneficially interested (.!'). 
 
 In both these cases, tlierefore, the purchaser is only 
 entitled to a covenant from the parties conveying, that they 
 have done no act to incumber. l>ut it is to be lamented, that 
 in these instances also the rule of the Court of Chancery 
 
 (?/) WaUeman t. Duchess of P. C. 1 15 ; and see Llo)d v, 
 Rutland, 3 Ves. Jun. 233, 50 1, Gritfith, Atk.264. 
 afRrmcd in Dom. Proc. 8 Bro. (f) See 3 Ves. Jua. 505, 506. 
 
 differs
 
 OF COVEXANTS FOR TITLE. 597 
 
 tliffers from the practice of the profession ; for it always has 
 been, and still is, the practice of the profession to make all 
 the ce.stuis que trust, whose shares of the purcliase-money 
 are in any^\ise considerable, join in covenants for the title, 
 according to their respective interests. 
 
 The rule of equity on this subject may of course be altered 
 by the agreement of the parties (?/) ; and therefore, in all 
 agreements for purchase of estates from devisees, &c. in tnist 
 to sell, tlie purchaser should stipulate, that such of the ^x^r- 
 sons entitled to the purchase-money as he may require, shall 
 join in the usual covenants for the title. Where, however, 
 the trust is to pay debts, or trifling legacies, which will ex- 
 haust the whole of the p\n-chase-money, it is obvious that 
 such a stipulation could not be carried into effect, and it had 
 tlierefoTC better be omitted. 
 
 It might, perliaps, be doubted whether equity would, in 
 a case of this nature, enforce a specific performance against 
 a purchaser wlio w-as ignorant, at the time he entered into 
 the contract, of there not being any person to covenant for 
 tlte title. To pretent any difficulty on this ground, it seems 
 advisable to state in the particulars of sale or agi'eement, that 
 the vendors are devisees in trust to sell, and that the money 
 is to be applied in payment of debts and legacies ; wliich 
 would be notice that the purchaser could not require co^ e- 
 nants for the title. 
 
 It must, however, be remarked, that the case of \\ akc- 
 man v. Duchess of Rutland is by no means an authority that 
 ccstuis qye trust of money to be produced b} the sale of 
 estates devised to trustees to sell, cannot in any instance be 
 required to covenant for the title, ^^'^]lcrc th.e money to 
 aiise by sale of the estate is absolutily given to two or morj 
 persons, they are substantially owners of thi- cst.nte. and 
 must accordingly covenant for the titk-. 
 
 (j/) See 3 \ es Jim. '. lu 
 
 So,
 
 39& Oi<^ COVENANTS 1 OK TiliJ. 
 
 So, even where the money is in the first place to be appil<:(( 
 in payment of debts, yet if they are all paid previously to the 
 sale, the ccsUds que trust must, it is conceived, covenraifc 
 for the title. 
 
 Upon this case another observation occurs. Lord llosslyn 
 seemed to think it dangerous to make the ccstuis que trust 
 parties to the conveyance ; he said, tl:e prudence of the com- 
 mon clause, that the receipts of the trustees shall be a dis- 
 charge to the purchaser, would be defeated, and the pur- 
 chaser would take upon himself the knowledge of all the 
 trusts of the v/ill (2). If this be so, conveyancers are indeed 
 reprehensible ; but as the purchaser buys under the will, 
 whether the cestuis que trust are or are not parties to tiie 
 conveyance, he is equally affected with the knowledge of the 
 trusts ; and yet, as cujus est dart ejus est cUsponere, it 
 cannot be supposed that equity would compel a purchaser to 
 see to the application of the purchase-money, when the tes- 
 tator himself has declared he shall not. In Ewer v. Corbet 
 (a), it was holden, that notice to a purchaser of a bequest of 
 a tenn did not signify, as every person buying of an exe- 
 cutor ischere he is named executor, necessarily must have 
 such notice. This resolution applies to the point in question, 
 and seems to place it beyond controversy. 
 
 Lastly, in conveyances by the crown, a purchaser is not 
 entitled to any covenants for the title ; and where an estate 
 is sold by assignees of a bankrupt, the purchaser is only en- 
 titled to a covenant from the assignees, that they have not 
 done any act to incumber the estate. 
 
 But a bankrupt is ahvays made a party to the convey- 
 r.nc3 of his estate, to prevent the difficulty which the pur- 
 chaser might otherwise be put to, in maintaining and 
 proving the title ; and the bankrupt is generally made to 
 
 (t) See 3 Ves. Jun. 235. {a) 2 P. Wms. 148, 
 
 enter
 
 OF SEARCHI^'G FOP. I::CUMBilA^XES. 399 
 
 enter into covenants for tlie title in the same maiiiier 
 iis lie woultl have done, had he sold the e£tate while sol- 
 vent. 
 
 SECTION V. 
 Ofsearck'mg for Incmtihrances. 
 
 iJt now comes in order to consider in what cases iriciirn- 
 brances should be searched for. 
 
 I. There are few cases in whicli judgments shoukl not 
 be searched for on the part of a purchaser ; and if there is 
 any reason to suspect the vendor, it is absolutely necessary 
 to search immediately before the conveyance is executed, 
 lest any judgments may have been entered up during the 
 treaty; although if any judgments should be entered up 
 after the purchase-money, being an adequate consideration, 
 is actually paid, equity w^ould relieve the purchaser against 
 tlie judgments, notwithstanding that they were entered up 
 previously to the execution of the conveyance ; the vendor 
 being, in equity, only a trustee for the purchaser, and a 
 judgment being merely a general lien, and not a specific lien 
 on the land : and this equity prevails, whether tlic judgment 
 creditor had or had not notice of tlic contract (6). -r^c ^^^~yi^^ 
 
 It seems advisable to ask the vendor, or his attornev, ;?/ 
 
 whether there are any incumbrances which do not ajipear on 
 
 (i/) See Ntls. Ch. Rep. 1S4 ; Ab. 118; and sec Kcnnetly v Da!v, 
 Fincli T. Earl of VVinchclsra, 1 P. 1 Scho. and Lcf, 373.. /^i^'^ ^ 
 Wm8,278j 10M<^d.4]8:llVin. /'^^^/U^-y< >J? ^..-<' ^. 
 
 the
 
 400 OF sEARcniXG roil ixc[:MTiUA>;cES. 
 
 the abstract ; for if he answer in tlie negative, tlic search for 
 judgments may be postponed until immediately before the 
 execution of tlic conveyance ; and if there are any judg- 
 ments, and the purchase cannot be completed on tliat ac- 
 count, the purcliaser can recover all his expenses from the 
 vendor (c). It should seem, liowever, that tlie purchaser 
 would equally be entitled to recover the expense of the con- 
 veyance, although he had not enquired after, or searched for 
 incumbrances before it was prepared. 
 
 A purchaser who, at the time of his contract, is seised of 
 the legal estate, as a mortgagee, need not search for judg- 
 ments subsequently to the mortgage, for an equity of re- 
 demption is not within the clause of the statute of frauds, 
 which will shortly come under our consideration; and it is, 
 therefore, not extendable {d) (I). And as the purchaser will, 
 by the contract, acquire equal equity with the judgment 
 creditor, and has already got the legal estate, his title can- 
 not be impeached. Some gentlemen of eminence even hold, 
 that notice of judgments entered up subsequently to the 
 mortgage will not affect the purchaser ; but it is conceived, 
 that if he purchase with notice, either express or implied, of 
 any judgment, the legal estate will not protect him in equity 
 against the judgment creditor. The judgment is a lien 
 upon the estate in equity (f), and confers a right on the crc- 
 
 (c) Richards v. Barton, 1 Esp. Scott v. Scholey, 8 East, 467 ; 
 
 Ca. 268 ; vide supra, ch. 4. Metcalf v. Scholey, 2 New I'rp. 
 
 (<i)Lysterv.Dolland,lVesJun. 461. 
 
 431 ; 3 Bro. C C. 478 ; and see (c) Churchill v. Grove, Nels. 
 
 Burdon V. Kennedy, 3 Atk. 739 ; Cha. Uep. 89 ; 1 Cha.Ca. 35. 
 
 (I) Kofe» An equity of redemption has been held to be assets under 
 the statute of frauds, 2 Freem, 115, pi. 130 ; although the determina- 
 tion appears not to have been acted upon. It were much easier to 
 tnaintain that an equity of redemption is extendable under the statute. — 
 Xute, the case of Freeman v. Taylor, 3 Keb. 307, Mas before tlie statute. 
 
 ditor
 
 OF SEAHCIIING for INrUMBRANOES. 101 
 
 tlitor to redeem a prior mortgage or other incumbrance {/'). 
 And by the first principles of equity, a purchaser, with no- 
 tice of any incumbrance, is bound by it in the same manner 
 as tlie person was of wliom he purcliased (g). And, 
 indeed, it has been expressly decided, that a mortgagee, 
 purchasing the equity of redemption, is bound by judgments 
 of which he has notice, although they were entered up sub- 
 sequently to the mortgage (//). 
 
 This doctrine prevailed before tlie statute of frauds, and 
 has been the observed rule of equity ever since ; and it is 
 said, that previously to the statute of frauds, a judgment 
 creditor was in like manner, and upon the same principles, 
 relievable in equity against a conveyance to trustees. And 
 by the 10th section of that statute it is enacted, that execu- 
 tion may be delivered upon any judt^ncnt, sta tute, or recosj- 
 nizance, of all such lands, vvc. as any other person or persons 
 shall be seised or possessed of in trust far him against whom 
 executio n is so sued , in the same manner as if he had been 
 seised of such lands, &c. of such estate as they be seised of 
 in trust for him at^ t he tim e of the cxecntion sited, and shall 
 be held discharged of the incumbrances of th e trustee . Upon 
 the construction of this statute it hath been holdcn, that if 
 a trustee has conveyed the lands before execution sued, 
 though he was seised in trust for the defendant ^t^tlielTme 
 of the judgment, the lands can not be taken in execut ion (?'). 
 Now it is clear, that where the fee is in trustees, the pur- 
 chaser would not 1}e bound by any judgment, upon whicli 
 no writ of execution had been sued, and of whicli he had 
 not notice. Eut here, as in the preceding case, the pur- 
 chaser, it is contended in practice, cannot be advised to rely 
 
 (/ ) See 2 Cha. Rep. 180. Vin. Abr. 52, (L) pi. 2. 
 
 (i,') See Anon. 2 Vcntr. 3CJ, (/) Hunt t. Coles, Com. 226 ; 
 
 TS'o. 2. see Illg'^ins v. Tlie York Build- 
 
 (/r) Greswold v. Marsham, 2 inf^s Company, 2 Atk 107. 
 Cha. Ca, 170; Crisp v. lleatli, 7 
 
 l n on
 
 402 or sEAiiciiixc roii ixcumbkances. 
 
 on the Icg-al estate in the trustees, wliere lie has notice ol 
 any subsequent judgments. JNIr. Towell (/.), however, en- 
 tertained a contrary opinion. After shewing that trust 
 estates can only be taken in execution by virtue of the Eta- 
 stutc of frauds, he contends, that where the legal estate is in 
 a trustee, notice to a purchaser of judgments is immaterial, 
 because the lands are not liable at la\v ; and, as cquiiu Jhl- 
 lows the law, no relief would be granted against the pur- 
 chaser, through the medium of a court of equity. 
 
 If the case of Hunt v. Coles be an authority, it must be 
 acknowledged that trust estates cannot be affected by any 
 execution sued upon a judgment after the trustee has con- 
 veyed away the lands. But admitting, that before the sta- 
 tute of frauds, an incumbrancer might be relieved against a 
 conveyance to trustees, it should seem to follow, that the 
 same equity must still be administered. It were difficult to 
 successfully contend, that the statute has concluded the 
 equitable relief. The registering acts expressly enrci, that 
 a purchaser shall not be bound by instruments, &c. unless 
 they are registered, notwithstanding which equity will 
 fasten on the conscience of a purchaser who bouglit with 
 notice of any unregistered incumbrance; and there is surely 
 greater reason to hold, that the jurisdiction of equity shall 
 not be barred by a statute which, merely gives a partial re- 
 medy at law without interfering with the equitable rights 
 of the parties. 
 
 The difficulty in the way of the relief would be, that no 
 case can be found, after the most diligent search, in which a 
 judgment creditor has been relieved against a conveyance to 
 trustees, where a purchaser had subsequently acquired the 
 legal estate. The author formerly thought that equity 
 would relieve against the purchaser, if he bought with 
 notice; but his confidence in that opinion has been shaken 
 by the want of authority in support of it. Tvothing but a 
 
 (/;) 2 Mort. 4lh Edit. p. 608. 
 
 judicial
 
 or SEARCHING FOR INCUMBRANCES. 403 
 
 jiulicial determination can set the doubt on this point at 
 rest, y 
 
 Where, however, an estate is conveyed to trustees upon 
 trust to sell, and pay debts, &c. and to pay the surplus of tlie 
 monies to arise by sale to the grantor, and the receipts oT 
 the trustees are made sufficieut discharges to the purcliasers ; 
 the better opinion is, that the purchaser is not boimd by 
 any subsequent judgments of wliich he has even express 
 notice. Great difference of opinion has prevailed in tlie 
 profession on this point. Those who hold that a purchaser 
 is bound by such judgments, rightly compare the interest 
 of the grantor in the estate to an equity of redemption. 
 But as such an interest is not extendable, the debt of tlio 
 judgment creditor can only, it should seem, affect the sur- 
 plus monies in the hands of the trustees, and is not a lion on 
 the estate itself. AVhen the receipts of the trustees are 
 once made a discliarge to tlie purchaser, there surely is not 
 any equity in a subsequent incumbrancer to require the 
 purchaser to see to the application of any part of tlie money. 
 The creditor stands, as to his debt, in the place of his debtor, 
 and consequently is entitled to have his debt discharged out 
 of the surplus monies in the hands of the trustees ; but he 
 cannot, it is conceived, claim a higher equity ; the contrary 
 rule would be productive of infinite inconvenience* 
 
 As a mortgagee seised or possessed of a legal estate need 
 not search for judgments; so a purchaser who obtains an 
 assignment of a legal subsisting term of years in trust to a'.- 
 tend the inheritance, may dispense with a searcli for judr. 
 ments, S:c. if he be assured that notice of any incumbrance 
 cannot be proved on him or any of his agents. But as notice 
 may be inferred from very slight circumstances, a purcha-er 
 cannot be advised in any case, or under any circumstances 
 to dispense with the usual searches. And even where lie dees 
 rclvonaterm of years, yet if itberccentlycreatod,incumbrancc3 
 should be scarclicd ibr previously to tho creiilion of the term. 
 
 2 u 'I It
 
 4()X or .SEAIiCHlXC lOK INCL'MKK AN'CKS. 
 
 It is, I bt'lievc, usual to scarcli for jiulgmciitf; against d. 
 vendor, only from the time lie piirciiaspd tlie estate ; "bu* 
 iliis praetice is not correct, because judgments bind aftc- 
 purchased lands, and will consequently affect such lands 
 even in the hands of a purchaser (/), 
 
 Judgments do not, it seems, bind leasehold estates till 
 v/rits of execution are taken out upon them, and delivered 
 to the sheriff {m). And yet, upon purchase of a leasehold 
 estate, judgments must be searched for ; because the sheriff 
 will not permit his ofilce to be searched for any writ of exe- 
 cution which may have been delivered there, lest the pur- 
 poses of the writ should be defeated by the party against 
 'ivhom it is issued absconding, or removing his goods. There- 
 fore, although the judgment will not of itself bind the 
 leasehold estate, yet the purchaser cannot safely completi>. 
 his contract, where he discovers a judgment, because he can- 
 not be satisfied that an execution issued upon it has not 
 been lodffcd w itii the sheriff. When we consider how manv 
 valuable leasehold estates are daily brought into the market, 
 v/e shall perhaps think that the legislature ^^•oulll do well 
 to enact, that writs of execution intended to hind leasehold 
 estates shall be docketed in like manner as judgments, and 
 that where the estate lies in a register county, they shall be 
 rc2fistercd. 
 
 Where only an equity of redemption of a term is pur- 
 ehased, the purchaser will not be afleoted by even an execu- 
 tion lodged, of which he had not notice, for such an interest 
 is not extendable under the statute of frauds, and certainly 
 the mere delivery of the v^rit to the sheriff would not be 
 implied notice to a purchaser. & 
 
 (0 See Sir Jolin de Moleyn's 30J : Hrckford v. Macliin, Wincli, 
 
 case, 30 E. 32 i, a.; 1 Ro. Abr. 84. per Jones, J ; and Brace v 
 
 892. p!. 14, 16; 42 E. 3. 11. a. ; Duchess of Marlborough, in 2d 
 
 42 Ass. pi. 17 ; 2 H. 4. 8 b. pi. Resol. 2 P. Wras. 492. 
 ■^2; 14, a. pi. 5 ; 2 Ro. Abr. 472. {m) Vide post, ch \6. 
 
 (F) pi. 3. : Shop. Prac. Ccuns. 
 
 Til esc
 
 OF SEARCIIIXG FOK INXL^IBKAXCES. 4-0-3 
 
 These observations respecting judgments must not be 
 closed without observing, that if a person purchase part of 
 ail estate subject to a judgment, and the residue of tlie 
 estate remain in the hands of the conusor, or descend to his 
 heir, and execution is sued only against tlic original debtor 
 or liis heir, he shall not have contribution against the pur- 
 cliaser, and tlie consideration of the purchase is not material 
 in tlicsc ca«es. 13ut if execution be sued against the pur- 
 eliaser only, he shall have contribution against the persons 
 seised of tlic residue of the estate, whether they acquired it 
 by descent or purchase (?/). 
 
 Sir Edv/ard Coke observes (o), that when it is said, that 
 if one piiiclKiser be only extended for the whole debt, that 
 he shall have contribution ; it iij not thereby intended tliat 
 the others shall give or allow to him any thing by way cf 
 contribution ; but it ouglit to be intemlcd, that the party 
 v.'ho is only extended for the ^vllole, may, by audita qncrehy 
 ox scire facia ■^\ as th.e case requires, defeat the execution, 
 .aid compel the conusor to f:ue execution of the whole land ; 
 <:0, in this manner, every one shall be contributary, Iioc c.'1, 
 the land of every ter-tenant shall be cqnaily extended. 
 
 II. To rcmrne the consideration of ihe cascG in wliich 
 incumbrances should be searclied for : — 
 
 If the estate lie in a register county (I), the ropisior't 
 office should be searclied, for tlie purpose of ascertaining not 
 only tliat the estate is free from incumbrances, but also, 
 that the title deeds are duly registered ;— the es!:;te may 
 be lost by neglccthig to do so. And if it appear that any 
 
 (/j) Sir William ILrbort's casi-, .lo. 90. 
 
 3 Co. lib.; see the distiiirtioiis C'-*) ^ ^^' '■» **• 
 
 t.ikfii it! Blakfstou v. Martyp, 1 
 
 (I) For some obsfrvp.tions on the registry actj. Sfe ■■■>frr., cli. 1".
 
 406 OF SEA1:CH1NG lOIl INCL'.AIBKANCES. 
 
 (Iced has iiot b< en duly registered, the vendor must procure 
 it to be registered at his own expense, previously to tlie coiv;- 
 pletion of the contract ; although, indeed, it sometime& 
 happens that an instrument not being registered, pre^ ents 
 aB objection being made to the title. To gixe an instance 
 of this, let us suppose a man to have mortgaged his estate, 
 and paid off the money, but to have neglected to take a re- 
 conveyance. Xo-'.v, in this case, if the mortgage vras not 
 registered, the purchaser need not insist upon, its being re- 
 gistered, and require a reconveyance from the mortgfigce, 
 because, ac; the deed was not registered, the mortgagee did 
 iiot acquire the legal estate, or, if he did, w^ould cease to 
 have it by the registry of the conveyance to the purchaser ; 
 and, being paid off, he has of course no equity. So, where 
 a partial interest in an estate is devised to the heir at law, 
 with a power of leasing, and he grant a lease not authorised 
 by his power, the lease may, in seme cases, be sustained both 
 at law and in equity, in case the v.ill was not registered ac- 
 cording to the act. Thii,^, hcv.evcr, is a mode of making a 
 title to which necessity only should compel us to resort. 
 
 It is vei-y seldom that wills are registered ; but a purchaser 
 fi'om a devisee should not complete his contract till the will 
 is duly registered ; for should any person purchase of the 
 heir at law horici fide, and v»ithcut notice of the will, and 
 register his conveyance before the registry of tl:c vvill, he 
 would be preferred to the purchaser from the devisee {p) 
 
 Eut if the vendor be both heir at law and devisee, the 
 ncn-registry of the will is immaterial ; for if he sell to any 
 subsequent purchaser, it must be cither in the character of 
 heir at lavr, or in the character of devisee. If he sell in this 
 character, the second purchaser must have notice of the will; 
 if he contract in that, the first purchaser has already pro- 
 cured the legal estate. 
 
 So it seems clear, that if the vender claim a leasehold 
 
 ip) Sec Jolland t, Stainbridge, 3 Vcs. Jun. 478, 
 . . estate.
 
 OF sr,AECIIIXG FOR IXCUMBCANCrS. -107 
 
 estate, cither as executor or legatee, the purchaser ueed r.ot 
 insist upon tlie testator's will being registered, because no 
 .«.ubsequcnt purcliaser can procure a title without notice of 
 tlie will ; and it may be remarked, that letters of adminis- 
 tration are never registered, and they seem to stand upon 
 tlic same principle as wills of leasehold estates. 
 
 If a purchaser be already seised of the legal estate, as if 
 be be mortgagee in fee, and has contracted for tlic equity of 
 redemption, it is not actually necessary to searcli the reois- 
 ,ter if he be assured that notice cannot be proved cither on 
 himself, or on any one concerned for him ; because tlie mere 
 registration of deeds, as we shall hereafter see, is not notice 
 to a purchaser seise^l of the legal estate previously to the 
 purchase, and he will, therefore, be entitled to hold against 
 any puisne incumbrance of Vvhich he had not notice. 
 
 AVhere the estate lies in the county of Muidlesex, jud^-- 
 ments ne.ed only be searclied for at the register's office; as 
 judgments bind estates in that county only from tlic time 
 they arc memorialized; but this is not the case in the county 
 of York; for in the North Riding, any judgment registered 
 v/ithin 20 days after the acknowledgment or signing of it, 
 is available in the same manner as if it had been registered on 
 the day it was acknowledged or signed (q) ; and in the East 
 and West Ridings, and in Kingston upon Hull, 30 days arc 
 allowed for the registering of judgments (r). Therefore, 
 where the estate lies in York, or Kingston upon Hull, recent 
 judgments must be searched for in the proper courts. 
 
 It has alrcHuly been observed, that judgments do not bijid 
 leasehold estates till delivery of a v.rit of execution to tlic 
 sheriff. AA'^rits of execution upon judgments intended to 
 affect leasehold estates in a register county, were formerly 
 never registered (a). From tlie present practice of rcgii- 
 
 (rj) 8 Cfo. II. c. 6. s. 33. c. 35, $. 28. 
 
 (/•; 5 Ann, c. 18. s. 11 ; G Ann, (s) Jhk infra^ ch. IC\ 
 
 2 D i t'^iing
 
 408 OI- SEARCHING lOIL lNCL-.MliKANCi:o. 
 
 tering^M-its of executioii, it may perliaps be coiidudcd that 
 they oiiglit to bo registered ; but tlic registry of them scc]>i» 
 casus omissus out of the statutes for registry ; niid there- 
 fore, upon the purchase of a leasehold estate in a register 
 county, not only the register, but also the proper court:-, 
 should be searched. 
 
 The register ought to be searched immediately before tlic 
 execution of the conveyance, for the eame reason that the 
 search for judgments should be delayed till the last moment. 
 
 And lastly, since grants of annuities have become so pre- 
 valent, and can be searched for, it is the duty of the pur- 
 chaser's solicitor to search for annuities. In a register county 
 they need only be searched for at the registers office. 
 
 It may be useful to observe, that if a purchaser is dam- 
 nified by his solicitorneglecting to search for incumbrances;', 
 it is clear that he may recover at law against the solicitor, 
 for any loss occasioned by his negligence {t). But an attor- 
 ney's negligence cannot, perhaps, in any case, be set up as 
 a defence to an action by him for the business done, although. 
 it should seem that if there is a cross action by the client 
 against the attorney, the court will, upon application, stay 
 the execution in the action by the attorney pending the 
 other (w). 
 
 So if the chief clerk, v.hose duty it is to enter up and 
 docket judgments, neglect to do so, by which a purchaser, 
 who has made the proper searches, sustains any loss, he, the 
 piuThaser, has a remedy against the clerk by an action on the 
 case {x). And any person who is damnified by the neglect 
 of the register of either of the registering counties, may 
 bring an action against him, in which he will recover 
 
 (0 Brooks V.Day, 2 Dick. 572; Camp. Ca. 17. 
 lorshall t. Coles, 7 Vin. Abr. 54, (ji) Tcmpler \. M'Lacliian, 2 
 
 pi. 6. MS. ; ar.d Appendix, No. 19, New Rep. 136. 
 Green t. Jackson, Feake's Ca. (r) Douglas r. Yallop, 2 Burr. 
 
 'J36 ; sec Baikic v. Chaudlcs?, 3 72L\ 
 
 treble
 
 or r.ELTEr tt^om ixcumbrances. 409 
 
 treble damages and costf; of .suit, by virfiTPcf the rerti'^tpriri'T 
 acts (I). 
 
 SECTION VI. 
 Of Kelieffrom Incumhra nce.s\ 
 
 ilAYiNG considered in Avbat instances incumbrances 
 sliouid be searched for, let us now inquire, 1st, In \vhat cases 
 a purchaser may detain the purchase-money, if incumbrances 
 are discovered previously to the payment of it : and Ijdlv, 
 To what relief he is entitled, if evicted after the money is 
 actually paid ; and these inquiries will involve the consider- 
 ation of the cases in which a purchaser will be relieved in 
 respect of defects in the title to the estate. 
 
 1. First then, 1. Where an incumbrance is discovered 
 previously to the execution of the conveyance, and payment 
 of the purchase-money, the vendor must discharge it, whi- 
 ther he has or has not agreed to covenant against incum- 
 brances, before he can compel payment of the purchase- 
 money {y). 
 
 2. But if a purchaser, before executing the articles, has 
 )iotice of an incumbrance xvhich is co'ntbigcnt, and it is by 
 
 V) Anon. 2. Frcem. 106 ; Vane 1 y and see 1 V'cs. 88 ; 2 Vts. 
 v.Lord Harnartl, Gilb. Eq. Rep. 6 ; 391 ; 2 Ves. Jim. 141 ; and i 
 
 Serjeant Maynard's case, 2 Freem. I'ro. C. C. 39 1. 
 
 (I) By the registering acts for Scotland, the remedy is extended 
 against the heirs of the dork, although no action sh;ill have b'-en coiu- 
 mcnccd ill the cl'-rk's life-time. ] Krsk. In<;t B. II. T. III. s. -I'i. 
 
 the
 
 410 or KELIEF IN RESPECT OF 
 
 the articles agreed that the vendor sliall covenant agaiubt 
 incumbrances, thb purchaser has entered into them with liis 
 eyes open, has chosen his own remedy, and equity will not 
 assist him (s) ; and he cannot, therefore, detain any part of 
 the purchase-money. 
 
 II. 1 . Although tlie purchaser has paid the money, yet 
 if he is evicted before any conveyance is prepared and exe- 
 cuted, or before the conveyance is executed by all the ne- 
 cessary parties, he may recover the purchase-money in ,in 
 action for money had and received, although the intcndcil 
 covenants do not extend to the title under which the estate 
 was recovered, and he may have taken possession of the 
 estate {a) (I). 
 
 2. But if the conveyance has been actually executed by 
 all the necessary parties, and the purchaser is evicted by a 
 title to which the covenants do not extend, he cannot re- 
 cover tae purchase-money either at law (6) or in equity (c). 
 
 Thus, where (//) A bought an estate, to cne moiety of 
 
 (7) Vane V. Lord Barnard, ubi Hunt, 1 M-irsh. 155; Jones v, 
 
 3up. Kyde, 5 Taunt. 488, 
 
 (a) Cripps V. Reade^ 6 Term (ft) See Cripps v. Reade ; Jolin- 
 
 Ecp. 606 ; Matthews v. Hollings, son v. Johnson ; and Bree v. Hol- 
 
 Woodfall's Law Laud. 35, cited ; bech^^ Dougl. 654. 
 
 Johnson V. Johnson, 3 Ros. and (c) Serjeant Ma) nard's case, 2 
 
 Full. 162; and see Av\bry v. Frcem. 1 ; Anon. 2Freem. 106, 
 
 Keen, 1 Vern. 472 j and see Brig's {(!) Si-e 3 Ves. Jun. 235; and 
 
 case. Palm. 364 ; Simmons v. see 2 Bos. and Pull. 23. 
 
 (I) In Robinson v. Anderton, Peake's Ca. 94, Lord Kenyan permitted 
 a purchaser of ^/7j;/wre,? in a house which were scheduled in the original 
 lease, and belonged to the landlord, io recover liie purchise-money, al- 
 though the person who sold them vas an xicA-.r tenant, and had himself 
 ignorantly paid for the fLXtarcs. 
 
 which
 
 TKCUMBKANCl'.S. 411 
 
 >v]p.c'1i thore was a clear defect of title, wliich his counsel had 
 overlooked, and he was afterwards evicted ; he filed a hill 
 asserting his claim to he re-paid a moiety of the purchase- 
 money, although the covenants for title did not extend to 
 the eviction, but the hill was dismissed (I). 
 
 The facts of this case were as follow : Wm. Davy devised 
 the estate in question to Sir Robert Ladbrokc and Lyde 
 Erown, as tenants in common, in fee ; and gave all the 
 residue of his real estate to his brother Yv"m. Pate in fee. 
 Sir Itobcrt Ladbrokc died in the testator's life-time. Ro- 
 bert Pate, as devisee of Wm. Pate, the residuary devisee, 
 conceived himself to be entitled to the moiety devised to Sir 
 Robert Ladbroke, which became lapsed by his death, in the 
 testator's life-time (II) ; and accordingly Robert Pate joined 
 with the persons entitled to the moiety devised to I.yde 
 Brown, in selling the estate to one Unnston. The convey- 
 ance recited the xvill of JVm. Davy, and all the suhseqveiit 
 ptstriuncnts, and a covenant was inserted for the title, iiot- 
 
 (I) In the second vol. of Coll. of Decis. p. 517, 518, a cas" (o tliesame 
 eHcct is reported. — Lands which were sold with the warrandice from fact 
 and deed allonarly, being evicted, but nut through default of the disijoj ; 
 the purchaser brou-ht an action not upon the warrnndice, which was not 
 incurred, but upon this ground of equity, that if he has lost the land, iir 
 ought at least to have repetition of the price. It was answ<r< il, tnat 
 \^lien one sells with warrandice from fact and deed, the intention is not 
 to sell the subject absolutely, wjiich would be the same as selling it with 
 fiit^olute warrandice, but only to sell it so as the seller hir.isfif has it, 
 that is, to sell what tide and interest he has in the subject : the pnrchaspi 
 t.tkes ujion hiuiscU all other hazards ; and, therefore, if eviction liappir. 
 otherwise than through the fact and i\ci.'i\ in tiie dispone r, !i<- bears the 
 lo;^s. The Lords assoilzed. Craig v. Hopkins. 
 
 f II) The mistake arose from the case of lapM' being con>ii!cred thw sarr.p 
 in regard to real and personal estate : in the case of personal estate l.ipst-d 
 Iroacios fall into the residue; but where a real estate lapses, it descends 
 to the hf^ir at law, and d""'; not pa^s to the residuary devisee. 
 
 xNithstandin^
 
 412 Ol' IlLLILi" Us KLiiri^CT Ok 
 
 withstanding any act done by Robert Pate, or his ancestor:!, 
 or any person cbiir-ing under him or them. The purchaser 
 iinding Robert Pate had no title to the moiety over v,hich 
 he assumed a power of disposition, but that it had descended 
 to the heir at law of Wm. Davy, filed his bill, praying that 
 the purchase-money might be restored to him. Ilobert 
 Pate, the vendor, demurred to tlie bill for want of equity, 
 and the demurrer vras allowed (c). 
 
 So if a purchaser neglect to look into the title, it will be 
 considered as his own folly, and he can have no relief. It 
 has even been laid down, that if one sells another's estate 
 without covenant or warranty for the enjoyment, it is at the 
 peril of him who ]?uys, because the thin^ being in the realty, 
 he might have looked into the title, and there is no reason 
 lie should have an action by the lav/ where he did not pro- 
 vide for himself (/"). But it may here b,e remarked, that by 
 the 32 H. 8, c. 9, no person must either buy or sell any 
 pretended title unless the seller or the persons from whcra 
 he claim. s have been in possession of the estate or ,of the re- 
 version thereof, or taken the rents thereof for a year before 
 the sale, unless the purchaser is in lawful possession, in 
 which case he may buy in any pretended riglit ; and he will 
 not in any case be affected, unless he ))oug]it ^vith notice {g). 
 
 In a late case the statute was pleaded with effect {h). In 
 a recent instance this statute was actually pleaded to a bill 
 for a specific performance, on the ground that tiie plaintiff 
 himself was only entitled under an agreement for purchase 
 of the estate ; but there was no foundation whatever for this 
 
 (e) Urmston v. Pato, Chan. 1st gan, 1 Term Rep. 755 j and see 
 
 Not. 1794, cited in 1 Trea. Eq. Aiion. 2 Fieem. 106. 
 364, n. and stated in 4 Cruise's (g) See 4 Rep. 26. a ; Bac. 
 
 Digest, 90. s. 64. Abr. Tit. Maintenance, (E). 
 
 (/) iloswell v.Vaughan, 2Cro. (/i) Hitchius v. Lander, Coop. 
 
 196 ; Lysney v. Selby, 2 Lord 31. 
 
 Kaym, 1118 ; Goodtitle y. Mor. 
 
 defence.
 
 IKCUMBIIAXGES. 413 
 
 defence. It is perfectly clear that the statute docs not ap- 
 ply to such a case. The sale is not of a pretended right or 
 title, but of the estate in fee-simple in possession, suhjcct 
 certainly to the decision of a court of equity upon the 
 right to a specific performance. There arc similar cases 
 now in court, and one particularly of great magnitude, 
 in which the sub-purchaser would be happy to avail him- 
 self of any objection to get rid of the contract, but it 
 never before occin-red to any one to plead the statute. 
 It might with equal force be argued, that a purchaser 
 under an agreement has not a devisable interest, for it is 
 settled, that a mere right of entry is not devisable ; and this, 
 it may be said, is " a mere pretended right or title." The 
 clear doctrine is, that the purchaser, from the time of 
 the contract, is in equity the owner of the estate, and 
 may devise, sell, and dispose of it in the same manner 
 as if the fee were actually conveyed to him, although if 
 equity ultimately refuse a specific performance, the devise 
 sale or otiier disposition necessarily falls to the ground. 
 In a late case the Lord Chancellor reprobated the doc- 
 trine. His I^ordship held clearly, that the sale of an equi- 
 t:ible estate under a contract was binding. It was every 
 day's practice. Upon a sale of an interest under a contract, 
 the seller becomes a trustee for tlie second purchaser, and 
 the second purchaser is, without entering into a covenant, 
 bound to indemnify him against any costs incurred in pro- 
 ceedingr, for his benefit. Tlie Court not only considers it 
 not unlawful, but compels him to permit his name to be 
 used for the l-»enefit of the second purchaser (/). Tliis puts 
 tlie point at rest. 
 
 " Where a purchaser has taken a defective title, and can- 
 not recover against his immediate vendor, his only remedy 
 is to have recourse to the covenants of the earlier vendors, 
 
 (i) ^^'ood Y. Grifihli, ]2 Feb, 1818, MS. 
 
 manv
 
 414 or KF.LiEr in kksi'ect of 
 
 many of which are inherent to the lands, and to sonic of which, 
 as the covenant for quiet enjoyment, tlicre is no objection, 
 on account of their antiquity, where the breach is re- 
 cent (A-)." 
 
 3. It seems, that if the conveyance be actually executed, 
 the purchaser can obtain no relief, although tlie money be 
 only secured. 
 
 In an early case, however (/), wliere A had sold to 13 v.itli 
 covenants only against A, and all claiming by, from, or 
 under him, B secured the purchase-money ; but before pay- 
 ment, the land was evicted by a title paramount to A's, and 
 Lord Chancellor Finch relieved from the papnent of the 
 purchase-money. 
 
 The case, it seems, was not taken by the reporter him- 
 self, and he adds the following notes, or queries to it : 
 
 First. If declaration at the time of the purchase treated 
 on, that there was an agreement to extend against all in- 
 cumbrances, n^t only special, it could not have been ad- 
 mitted. 
 
 Secondly. The affirmative covenant i,3 negative to what 
 is not affirmed, and all one as if expressly declared that the 
 vendor was not to warrant but against himself, and the ven- 
 dee to pay, because absolute without condition. 
 
 Thirdly. Qucerc^ If this may not be made use of io a 
 general inconvenience, if the vendee, having all the %yritings, 
 and purchase, is weary of the bargain, or in other respects 
 sets up a title to a stranger by collusion ? 
 
 Nota. In many cases it may be easily done, &c. 
 
 These remarks are unanswerable ; and if the doctrine in 
 this case were law, the consequences would be of a very 
 serious nature ; for what vendor would pennit part of tlie 
 
 {k) Butler's n. i to Co. Litt. see Fonbl. n. (g) to 1 Trea. Eq. 
 384, a„ 361; 2d edition, 
 
 {i) Anon. 2 Cha. Ca. 19 ; and 
 
 purchase-
 
 INCUMBRANCES. 41.5 
 
 purcliase-money to remain on mortgage of the estate, ii* lie 
 were liable to lose it, suppo.sing the estate to be recovered by 
 a person against whose acts he had not covenanted ? In- 
 deed, this point is so very differently considered in practice, 
 that where part of the purchase-money is permitted to re- 
 main on mortgage, althougli the co^•enants from the vendor 
 be limited, the vendee invariably enters into general unli- 
 mited covenants, in the same manner as he would have done 
 in the case of an independent mortgage. 
 
 In a case (w) where an estate was sold before a master, 
 under a decree, and the purchaser under the usual order had 
 paid his purchase-money into the bank, but it was not to 
 be paid out without notice to him, and he took possession, 
 and approved of the title, and the conveyance to liim was 
 executed by all necessary parties ; afterwards, but before the 
 money was paid out of the bank, the tenants were served 
 with a writ of riccht, at the suit of an adverse claimant ; it 
 was held, that the monev must be applied under the decree. 
 The court having given the purchaser possession of the 
 estate which he had purchased, and a conveyance under a 
 title which he himself had previously approved, had done 
 all it coukl for the purchaser, who could not afterwards ob- 
 ject to the application of the purchase-money. 
 
 4thly. Although the purchase-money has been paid, and 
 the conveyance is executed by all tlie parties, yet if the 
 defect do not appear on the face of the title deeds, and the 
 vendor was aware of the defect, and concealed it from the 
 purchaser, or suppressed the instrument by whicli the in- 
 cumbrance was created, or on the face of whicli it a])])eare(l. 
 he is in every such case guilty of a fraud (;/), and the pur- 
 
 (///) Thomas v. rowell, 2 Cox, Nf!?. Cha. Hop. 118 ; and Bree r 
 394. Holbecli, Dougl. 654, 2d edit., 
 
 (ii) See Harding v. NcUliiope, and set 2 Frcom. 2, 
 
 chaser
 
 416 01 IILI.IJLF IN lU'SPJLCT OF 
 
 cljaser may cither bring an action on the case, or file lili? 
 bill in equity for rehef. 
 
 But, as Mr. liutlcr remarks, a judgment obtained after 
 the death of the seller, in an action of this nature, can only 
 charge his property as a simple contract debt, and will not., 
 therefore, except under very particular circumstances, charge: 
 his real assets. A bill in Chancery, in most cases, v.ill be 
 found a better remedy : it will lead to a bettor discovery of 
 the concealment, and the circumstances attending it, and 
 may in some cases enable the court to create a trust in fa- 
 vour of the injured purchaser (o). 
 
 Where a bill is filed against the vendor, and tlie court 
 cannot satisfy itself of the fact, an issue will be directed to 
 try whether the vendor did know of the incumbrance (p). 
 
 In a late case where the sellers knew of a defect in the 
 title to a part of the estate, which was material to the en- 
 joyment of the rest, and did not disclose the fact to the 
 purchaser, and it could not be collected from the abstract, 
 the purchaser, although he was not evicted, was relieved 
 against the purchase in equity. The sellers were decreed 
 to re-pay the purchase-money, with costs, and likewise all 
 expences which the purchaser had been put to relative to 
 the sale, together with an allowance for any money he laid 
 out in repairs during the time he was in possession {q). This 
 is a case of the first impression. 
 
 Although the vendor has fraudulently concealed an in- 
 cumbrance, yet the purchaser has no lien on the purchase - 
 money after it is appropriated by the vendor. 
 
 Thus in the case of Cator v. Earl of Pembroke (r), Lord 
 
 (o) See Butler's n. I. to Co. appeal 11 July, 1818, with a reser- 
 
 Litt. 384, a. Tation of tlie qii'^stioii as to repair^, 
 
 {p) Harding v. Nolthrope, ubi MS. 
 sup, (r) Cator v. Earl o rembrokc, 
 
 (<jr) Edwards v. M'Leay, Coop. 1 Bro, C C. 301 ; anfl s^e and 
 
 308; afllrmed by Lord Eldon on consider 12 Ves. Juu. 2ob, 377. 
 
 Bolingbroke
 
 IXCUMBHANCES. 
 
 417 
 
 Bolingbroke was tenant for life of a settled estate, with a 
 power to sell and lay out the money arising by sale in other 
 lands; and in the mean time to invest the same in the 
 funds. Lord Boiingbroke granted life-annuities out of tlie 
 estate, and then he and the trustees of the settlement sold 
 the estate to Cator, who was ignorant of the annuities, and 
 Lord B. covenanted, that Cator should enjoy free from in- 
 cumbrances. The purchase-money was invested in the funds 
 in the names of the trustees, and Lord Boiingbroke oraiited 
 annuities to Boldero the banker, to the extent of the divi- 
 dends ; and the trustees, at the request of Lord Boiingbroke, 
 gave Boldero an irrevocable power of attorney to receive the 
 dividends. Cator being evicted by the grantee of the an- 
 nuities charged on the estate, filed his bill, insisting that he 
 had a lien on the purchase-money invested in the funds, and 
 was entitled to the dividends in exclusion of Boldero. Tlie 
 cause was first heard before the Lords Commissioners Loua'h- 
 borough, Ashurst, and Hotham, wlio thouglit that Cator 
 had a lien on the dividends, but that Boldero had a prefera- 
 ble equity, and therefore dismissed the bill. The cause was 
 re-heard before Lord Thurlow (6*), who affirmed the decree, 
 and was moreover of opinion, that Cator could not follow the 
 money when deposited with the trustees, but that having 
 taken a covenant for quiet enjoyment and a good title, his 
 remedy was that way. 
 
 Where a purchaser pays part of the purchase-money 
 generally to a creditor of the vendor, by judgment, or other 
 security afiecting the land, and also by bond, or other secu- 
 rity, which does not affect the land, it will be considered a^ 
 a pajment in satisfaction of tlie judgment, or other incum- 
 brance which charges tlie estate (t). 
 
 (s) 2 Bro. C. C. 28'2. 21 : Pe«er>; v. AnJ.rson, 5 Taunt. 
 
 (t) Brett V. Marsh, 1 Vern. 468 ; 596. 
 cee Hay ward t. Lomax, 1 Vern. 
 
 2 F. It
 
 418 OF RELIEF IK RESPECT OX INCUIUBILAXCES. 
 
 It may hero be observed, that if a seller is bound to re- 
 lieve the estate sold from incumbrances, and the purchaser 
 buys them up, he ought not to charge more than he paid, as 
 that is the amount of the damage which he sustains by the 
 breach of the covenant to pay off the incumbrances {u). 
 
 (w) 2 Dow. 296. 
 
 CHAr.
 
 [ 419 ] 
 
 CHAPTER X. 
 
 OF IXTEKEST AND COSTS- 
 
 SECTION I. 
 
 Of Interest. 
 
 I. HiQUiTY considers that wliicli is agreed to be done, as 
 actually perfonned ; and a purchaser is therefore entitled to 
 the profits of the estate from the time fixed upon for com- 
 pleting the contract, whether he does or does not take pos- 
 session of the estate {a) : and as, from that time, the money 
 belongs to the vendor, the purchaser will be compelled to 
 pay interest for it, if it be not paid at the day (b). 
 
 The same rule applies to a sale of a reversion — interest 
 must be paid from the time fixed upon for payment of the 
 purchase-money, because the wearing of the lives is equiva- 
 lent to taking the profits (c). 
 
 This is so plain a rule, that no disputes could ever arise 
 on it, if the purchase-money were not frequently lying 
 
 (o) See 6 Ves. Jan. 143, 352. (c) Davy t. Harljer, 2 Atk. 490; 
 
 (i) See Sir James Lowther v. and see Owen v. DavifK, 1 Ves. 82 ; 
 
 the Countess Dowager ofAndo- 3 Alk. 637 ; t'«ff ;joj/ a> (o the sale 
 
 ▼er, I Bro, C. C. 396; iind see of a reversion before a Master. 
 6Ves.3un. 35^^. 
 
 2 r I dead )
 
 ^20 OF l^TLKEbT. 
 
 clc,;d ; in \Yluch c.-isc it becomes a (jucstion, wlictlicr the los? 
 of interest shall full on the vendor or imrehascr. 
 
 If the delay in completing the contract be attributable to 
 the purchaser, he will be obliged to pay interest on tlie 
 purchase-money from the time the contract ouglit to lia% e 
 been carried into effect, although the purchase-money has 
 been lying ready, and Nvithout interest being made of it {(I)r 
 
 But if the delay be occasioned by the default of the ven- 
 dor, and the purchase-money has lain dead, the purchaser 
 will not be obliged to pay interest {c). The purcliascr must, 
 however, in general give notice to tlie vendor that the 
 money is lying dead (_/') ; for otherwise tlicre is no equality : 
 the one knows the estate is producing interest, the other 
 does not know that the m.oney does not produce interest {g). 
 "Wherever, tliereforc, a purchaser is delayed as to the title, 
 and means to insist upon this, he ought to apprise the 
 other party that lie is making no interest. But even if a 
 purchaser gave such notice, yet if it appears that the money 
 was not actually and bona fide appropriated for the pur- 
 chase, or that the purchaser derived the least advantage 
 from it, or in any manner made use of it, the court Mould 
 compel him to pay interest. 
 
 If no time be limited for performance of tlie agreement, 
 and the purchaser be let into possession of the estate, he 
 must pay interest on the purchase-money from that time {h). 
 
 It cannot, however, be laid down as a general rule, that 
 a purchaser of estates under a private agreement shall, 
 from the time of taking possession, pay interest. At any 
 rate, although the conveyance be executed, yet he shall not 
 
 ((0 Calcraft V. Roebuck, 1 Ves. 13 Ves. Jun. 561. 
 '^un.221. {g) Powel v. Martjr, 8 Ves. 
 
 i,e) Ilowland v. Morns, 1 Cox, Jun. 146 ; see Comer t. Walklej. 
 
 ^9. post. 
 
 (/) Calcraft v Roebuck, nli (h) See ei parte Manning, 2 
 
 Aup. • aud ice Roberts v. Massey, P. Wins. 410. 
 
 pay
 
 OV INTEREST. 401 
 
 ]vay interest 'but from the time of taking possession, it" pre- 
 vented from so doing by the vendor (/). But it must be 
 a strong case, and clearly made out, in whicli lie shall 
 not pay inter<?st vvlicrc he has received the rents and 
 profits (/f). 
 
 Thus in Comer v. Walkley (/), the purchaser had been 
 in possession of the estate about 22 years, without any 
 conveyance having been executed ; and he had not paid the 
 purchase-money. The delay was not attributable to him, 
 and he stated that his money had been lying ready irom 
 the time of the contract, without interest being made by 
 it, as he was in daily expectation of being called upon for 
 payment of it; and therefore he insisted that he ought 
 not to be compelled to pay interest. Lord Thurlo^v, how- 
 ever, decreed, that he should pay interest at 4 i)C)' cent. 
 from the time lie entereil into possession to the time lie 
 paid the purchase-money into the Bank by the order of the 
 court. 
 
 And in a very late case, where a particular day was 
 appointed by the agreement for payment of the money, and 
 the purchaser was to have a conveyance on payment of it ; 
 the purchaser entered before the conve^'ance was executed ; 
 and, after a delay of several years, during which he had 
 received the rents, being called upon to pay the purchase- 
 money, with interest, he resisted the demand of interest ; 
 and in answer to a bill filed against him, it was insisted, 
 that interest was not payal>le, as the money was to be paid 
 on an event depending upon an act to be done by the 
 vendor (namely, the execution of the conveyance) forming 
 a condition precedent to the payment of tlie purchase- 
 money. But the late ^Master of the Kolls, after observing 
 
 (f) Per Lord Ilardwkke, iu (/) Rrg. Lib. A. 1784, fo. 625 5 
 
 B!ount V. Blount, 3 Atk. 636. Smith v. Skelfon, Keg. Lib. B. 
 
 (it) See 8 Ves. Jun. It8, 1 \9. 1799, fol. 807. 
 
 ^2 r. '5 tJiat
 
 422 OF INTEKEST. 
 
 that the purchaser did not allege that any circumstances 
 had occuiTcd entitling him to relinquish the contract, said, 
 that the act of taking possession was an implied agreement 
 ta pay interest ; for so absurd an agreement as that the 
 purchaser was to recoive the rents and profits to which he 
 had no legal title, and the vendor was not to have interest, 
 as he had no legal title to the money, could never be 
 implied (?«). 
 
 If it be agreed that the purchaser shall take possession of 
 the estate, and pay interest on the purchase-money from 
 that time, and it afterwards appear that a long time must 
 elapse before a title can be made, the purchaser will be 
 entitled to rescind the agreement. 
 
 But if the purchaser acquiesce in the delay until the 
 contract is nearly carried into execution, he cannot then 
 appropriate the purchase-money ; and by giving notice of 
 that circumstance to the vendor, discharge himself from 
 the payment of interest. 
 
 Thus in Dickenson v. Heron {?i), after the execution of 
 a contract for purchase of an estate, it appeared that an act 
 of parliament was necessary to perfect the title, and that 
 some time must elapse before a title could be made ; and it 
 was therefore agreed that the purchaser should take posses- 
 sion of the estate, and pay interest on the purchase-m.oney. 
 Great delays having arisen, and the purchaser thinking 
 exchequer bills, in which the purchase-money was invested, 
 not safe, he sold them, and gave notice to the vendor that 
 the money was lying ready, and without interest being 
 made of it. After the purchase was completed, and the 
 money paid, the vendor filed a bill, asserting his right to 
 interest until the execution of the conveyance. 
 
 The cause was heard before the late Master of the Rolls, 
 
 (m) Fludyery. Cocker, 12 Ves. (n) Rolls, 16th March, 1804, MS. 
 
 Jun. 25, see Fludyer y. Cocker, supra, 
 
 who
 
 OF INTEREST. 423 
 
 ^vlio pronounced the following judgment : — " An agreement 
 of this nature is totally independent of the interest made 
 by the money. When a purchaser is let into possession, 
 the vendor need not mind what is done with the purchase- 
 money, because the purchaser agrees to pay interest for the 
 money. And such an agreement can only be affected by 
 great delay, because the purcliaser is not to be kept fur 
 ever bound by a disadvantageous bargain ; for the interest 
 might be better than the rents ; in which case, if tiic pur- 
 chaser was to be bound, notwithstanding an unreasonable 
 delay, the vendor would not mind how long he delayed 
 making a title. If the objection had been taken at a diffe- 
 rent time, it would have been better. He should have 
 made the objection when he knew that an act of parliament 
 Avas necessary, as he was not before in possession of that 
 fact. But he waved this delay, and he consents to continue 
 to pay interest, and writes a letter which clearly implies 
 that ; or he might have waved the agreement. Afterwards 
 lie thinks he is entitled to say, that he will not pay interest. 
 The ground was totally distinct. He had laid out his 
 money in exchequer bills, and then, upon a supposition 
 that they were not safe, he sold out, and then gave noti' j 
 that he would not pay interest. He ought certainly to 
 have given notice before he sold out ; and to have given the 
 vendor his option, whether he would choose tliem to remain 
 at his risk, or would wave his interest. Tliis ground was, 
 however, nothing to the vendor, as he liad nothing to do 
 with the interest. The only ground upon which he could 
 have waved the agreement, was the delay in the first in- 
 stance. The defendant mistook his case ; he might Ih-Ae 
 come at an earlier period, and insisted not to pay interest ; 
 for a court would not have held liini to an indt ftnite period. 
 Besides, the notice was not given until a long delay could 
 not take place." And the IMaster of the Rolls, for these 
 reasons, decreed tlie purchaser to pay interest ; but, as he 
 
 2 E 4 bound
 
 4?4( Ol INlJTvEST. 
 
 bound himtclf by his long acquiescence, iii:» honour v oulH 
 not give costs, and interest was only given up to the time 
 the conveyance was delivered to the vendor's attorney ibr 
 execution, altliough it was not executed until tlircc months 
 afterwards. 
 
 In the case of timber on an estate to be taken at a valur 
 ation, interest on the purchase-money will only commence 
 from the valuation, although the interest on the purchase-* 
 money for the estate itself may be carried a great way back, 
 because surveyors always value timber according to its pre- 
 ccnt state ; and the augmented value of the timber by 
 rjrowth, is an equivalent for the interest from the time of 
 the contract to the making of the valuation (o). 
 
 Upon the sale of an estate in possession, under the order 
 of a court of equity, the rule is, that the purchaser is intitled 
 to the possession or rents from the quarter-day preceding 
 liis purchase, paying his money before the following one (jj). 
 Where a reversion is sold under the order of a court of 
 equity, it seems that interest must be paid from the very 
 day upon which tlie purchaser could have confirmed the re- 
 port of his being the best })iddei- ; because, from that time 
 tfie purchaser is sure of his title, and of his purchase ; tiie 
 estate is bound, and the party who is to convey becomes 
 but a trustee for the purchaser, who ought to have liis mo- 
 ney ready {rj). And the same rule applies to an annuity, 
 from v»hicli time only the purchaser is entitled to rccei^■e the 
 annuity (/'). 
 
 I'ormerly tiic practice s^^egis to have bpen, ^Yhere estates 
 
 (o) Waldron v. Forester, Ex- don, 1 Ves; Jun. 94 ; Twigg v. 
 
 chcq. June 30, 1807, >IS. J'idf Fifield, 13 Ves. Jun. 517; but see 
 
 t/ifra. Da^y v. Barber, 2 Atk. 489; 
 
 (J)) 5* //pro, p. 50. See Mack- Blount v. Blount, 3 Atk. 636; 
 
 jrell T. Hunt, 2 f^Iad. 34, u. Growrock v. Smith, 3 Anstr. 877. 
 
 (9) Jli'r parte Manning, 2 P. (r) Twigg v. J^'ifield, 13 Yci. 
 
 Wm5. 412 j Child t. Lord Abing- Jun. 517. 
 
 UT
 
 OF INTEREST. 425 
 
 For lifq dropped in between a person being reported tbe best 
 piirckiser, before a master, and his taking possession, to di- 
 rect the purchaser to make some compensation in consider- 
 ation of the estate being bettered, or otherwise to go before 
 a master again, and the estate to be put up for a new bid- 
 ding (*), but the rule is now settled as above stated, and the 
 purchaser, from the time the report is or might be confirmed, 
 is entitled to any benefit by the drojiping of Vixes or the 
 like. 
 
 If, subsequently to a written contract, an agreement be 
 made, that the purchaser shall pay interest on the purchase- 
 money from a particular time, and the agreement is reduced 
 into writing, but signed by the vendor only; yet, if the 
 contract has been in part performed, the purchaser will be 
 bound by the subsequent agreement (t). 
 
 Where a leasehold estate is sold, and possession is not de- 
 livered to the purchaser, if any delay occurs, as it would 
 not be just to make tlic purchaser pay the whole purchase- 
 money, after part of the term is elapsed, without his havinp- 
 derived any benefit from the estate, the court will compel 
 the vendor to pay a rent in respect of his occupation of the 
 estate ; and the purchaser to pay interest on the purchase- 
 money during tlie delay {u). 
 
 If a tenant for years, at a rent, with an option to purchase 
 the fee, declared his option, he is cntitletl to retain the rent 
 from that time, and in lieu of it must be charged with in- 
 terest upon his purchase-money (<-t). 
 
 And where a purchaser has not been in possession of the 
 estate and the seller receives interest, he will be compelled to ' 
 pay not only the rent whicli lie has recei veil, but that which 
 ■without his wilful default lie might have recei veil (y). 
 
 («) Blount V. Clount, 3 A(k. Jun. 505, 
 636 ; sec Davy V. Barber, 2 Atk. (x) Town ley v. Bcdweli, li 
 
 4?9. Ves. 591. 
 
 (t) On-en t. Davids, 1 Ves. 62. (^) Acland v. Gnisford, 2 Mcr. 
 
 (;<; Dyer v.Har grave, 10 Ves. 9S. /'r>5.^. ^ '^.^.>,<^<^ ^ff^^
 
 426 OF INTEREST. 
 
 In a late case where the contract had been delayed upwards 
 of 15 years, by the default of the seller, who had received 
 one-third of the purchase-money, and also all the rents of 
 the estate, the present Master ot the Rolls compelled the 
 seller to account not only for the rents, but for interest at 
 4£er cent upon one-thivd/ themj.) ^^ ,^ - 
 
 It frequently happens, that part of the purchase-money 
 is left in the hands of the purchaser, for the purpose of pay- 
 ing off incumbrances at some distant period; and, in that 
 case, the purchaser must pay interest for it to the vendor {a). 
 In Comer v. Walkley (6), it appeared, that a sum was 
 left in the purchaser's hands, at interest, as an indeiiinity 
 against an incumbrance. The purchaser afterwaras paid 
 part of the sum to the vendor ; notwithstanding which, the 
 purchaser and his devisees continued to pay interest on the 
 whole for many years. A bill was at length filed to compel 
 payment of the residue of the sum deposited; and the mis- 
 take being admitted, the master was directed to take annual 
 rests of the overpayments, and to compute interest thereon 
 at 5 per cent, and the amount of the overpayment and inte- 
 rest to be deducted from the sum which would be found due 
 from the purchaser. 
 
 Where a purchaser is entitled to recover at law a deposit 
 
 paid by him to the vendor, he can also recover interest on it 
 
 from the time it was paid, without an express agreement. 
 
 f — And even v/here a purchaser can recover at law a deposit 
 
 1 paid to an auctioneer, he can also recover interest on it, al- 
 
 I though not stipulated for. Upon principle, perhaps, this 
 
 (l) Burton V. Todd, Todd 7. £8 ; Wilde t. Fort, 4 Taunt. 334. 
 Gee, 31 Mar. 1818, MS. Ap- (a) Hughes v. Kearney, 1 Scho. 
 
 pendix, No. 20; see Lacon v. and Lef. 132, 
 Merlins, 3 Atk. 1 ; 12 Ves. Jun. (6) Reg. Lib. A. 1784, fo. 625. 
 
 rule
 
 
 OF INTEREST. 427 
 
 tulo cannot be supported: for an auctioneer Is bound to keep 
 a deposit till the execution of the contract, as a banker or 
 depositary of it: for which reason it seems doubtful whether, 
 if he actually made interest of it, he ought to be compelled 
 to pay interest (c). Upon convenience, however, this prac- 
 tice may be tolerated ; for the purchaser ought to receive in- ( 
 terest, and the auctioneer can recover it from the vendor {d).\ '^ 
 
 If a vendor cannot make a good title, and the purchaser s ?^ ^ >-'' 
 money has been lying ready, without interest being made 
 by it, the vendor must pay interest to the purchaser (c). 
 
 Thus the law seemed to stand upon the decided cases, and 
 the practice appeared to be conformable to it. But in con- 
 sequence of some general rules as to interest which were 
 laid down by Lord Ellenborough, in some late cases at nhi 
 jjrius, it was thought by some that interest could not be re- 
 covered in many cases in which it had fonncrly been obtained 
 (y*). These rules, however, were not intended to embrace 
 every possible case; for it was not denied that interest may 
 be recovered upon an implied contrsict forpaj-ment of it (g); 
 and, accordingly, in a late case before Lord Ellcnborouoli 
 at nisi prius, where the title was bad, and the purchaser, in 
 his action for recovery of the deposit, declared specially, and 
 alledged by way of special damage, that by reason of a good 
 title not being made, he had lost and been deprived of tlic 
 use of the money which he had deposited, according to the 
 
 (c) See Lord Salisbury v, Wil- the action is for money had and 
 
 kenson, 8 Ves. Jun. 48 ; and 3 received, vide sup. p. 208. 
 
 Bro. C. C. 44; 14 Ves. Jun. 509, {e) Fleureau v. Thornhill, 2 
 
 cited; see alio Browne v. South- Black. 1078. 
 
 house, 3 Cro. C. C. 107; sed vide (/) J)e Hayilland v. Bowrr- 
 
 Willis V. the Commissioiurs of Ijaiik ; CrocUford t. NVinter, 1 
 
 Appeals in Prize Cause, 3 East, Camp. Ca. 50, 124; De B«r- 
 
 22. uales V. Fuller, 2 Camp. Ca. 426. 
 
 '</) See Spurrier V. Elderlou, 5 (g) C'alton T.Bragg, 15 East, 
 
 Esp. Ca. 1. As to interest where 213. 
 
 conditions
 
 ■riS or IMKRE.ST. 
 
 conditions of f.alc Lord Ellcnborough said> that they had 
 lately held tliat interest was not recoverable on money lent 
 without some evidence of a contract for that purpose ; but 
 he thought that the plaintiff in the case before him ought to 
 he allowed interest, as special damage from the day when 
 the purchase ought to have been completed. lie averred in 
 his declaration, that by the defendant's breach of contract 
 he had since lost the use of his money, and he had proved 
 that averment. There seemed to be no reason, therefore, 
 why this loss should not be compensated to him by the al- 
 lowance of interest on his deposit, and the purchaser had a 
 verdict accordingly {h). Mansfield C. J. however, lately 
 ruled otherwise at 7iisi prius (i); but Lord EUenboroughs 
 ^decision agre^sj^ith^li| ^ieray)i^ctke^^the jrof|^jon. ^^ 
 ""Where'tnebiddings before a master are opened, the pur-,;?;^,^ 
 chaser will be allowed interest at the rate of 4/. per ccnt.y ^'^ 
 per oMmim^ on such part of the purchase-monies as the ^ 
 master shall find to have lain dead {k). 
 
 Where a purchase by a trustee is set aside, and the estate 
 restored to the cestui que trust, the purchaser is allowed in- 
 terest on the money paid by him, and is compelled to pay a 
 rent for the estate during his enjoyment of it (/), 
 
 But where a sale is annulktl on account of notico in the 
 purchaser, of a prior claim, and he is decreed to account for 
 the rents, it seems that he shall not be charged with interest 
 on the rents \m). 
 
 An agreement, that if the purchase-money be not paid at 
 tlie time stipulated, the purchaser shall pay a rent for the 
 
 (/t) De Bernales v. Wood, 3 ing (he biddings for GeneralBirch's 
 
 Camp, Ca. 258. estate. MS. 
 
 (i) Wilde V. Fort, 4 Taunt. (0 Infra, <h. 14. 
 
 334; Bfe Maberley Y. Robius, 1 {m) Macartney v. Blackwood, 
 
 Marsh. 258 ; 5 Taunt. 625. Irish Term Rep. 602. 
 
 (i) This \vas directed on opcn- 
 
 esta
 
 OF INTEREST. 429 
 
 estate, exceeding the legal interest of the money, is not 
 usurious {n). 
 
 II. Where interest is recovered at law, it is always at the 
 rate of 51. per ceiit. but in equity, the rate of interest al- 
 lowed is 4 per cent. {o\ 
 
 In Blount v. Blount (p), Lord Hardwicke said, the court 
 would give such interest as was agreeable to the nature of 
 the land purchased; but this seems never to be taken into 
 consideration, nor indeetl ought it to be; interest being given 
 not so much on account of the profits of the estate, as the 
 unjust detention of the purchase-money. 
 
 In Dickenson v. Heron (9), at the time the purchaser 
 took possession of the estate, it nas agreed he should pay 
 interest on the purchase-money, but no rate was fixed. The 
 purchase-money, however, then produced 5 per cent, and it 
 was understood between the parties that interest was to be 
 paid at that rate; and although this understanding did net 
 appear by any note or writing, the purchaser was decreed to 
 pay interest at 5 per cent. 
 
 .And in a late case in the Court of Exchequer it appearetl, 
 that one tenant in common had sold his share of the estate, 
 and of the timber, to the other, who was let into posse s-ion, 
 but no stipulation was made as to interest. The purchase- 
 
 (71) Spurrier t. Mayoss, 1 Ves. Browne T.Fcnton, Rolls, June 23, 
 
 Jun. 527 ; 4 Bro. C. C. 28. 1807, MS. aurl see Lord Rosslyn's 
 
 (o) Calcraftv. Roebuck, 1 Ves. judgment in Lloyd v. Collet, 4 
 
 Jun. 221 ; Child t. Lord Abing- Ves. Jun. 609, n. ; Acland v. 
 
 don, 1 Ves. Jun. 94 ; Comer v. Gaisford, 2 Mad. 28 ; Bradshaw 
 
 Walkley, Reg. Lib. A. 1/84, fo. v. Midgeley, V. C. 13 Not. 1817. 
 
 625 ; Pollf xfen r. Moorp, Reg. MS. 
 
 Lib. B. l7-i5, fo. 283, at the bot- (p) 3 Atk. 636. 
 
 torn ; Smitli ?. Ilibbard, Chan. 1 1 (<y) € a y v . rhim*i<r l a i n, 4 V *i. 
 
 July, 1789; M'Queen V. Farqu- Juiw4a4- ^^^-^/^y^^y^ V^^ 
 Lur, Lib. Reg B. 180-1, fol. 1095, 
 
 money
 
 430 OF INTEREST. 
 
 money was not paid. A bill was filed by the vendor foi a 
 specific perfonnance, and a motion was made that the pur- 
 cliase-money might be paid into court, or a receiver ap- 
 pointed of the estate sold. And it was accordingly referred 
 to the master to appoint a receiver, who was directed to pay 
 to the vendor, out of the rents, " interest after the rate of 
 5/. per centuvi per annum, upon the amount of the pur- 
 chase-money, and the value of the timber on the estate (r)." 
 This cause afterwards came to a hearing, when a specific 
 performance was decreed, and the purchaser was decreed to 
 pay interest. A question then arose as to the quantum, and 
 it was decreed, that the purchaser should pay 5 per cent. 
 although it was insisted that 5 per cent, was never given, 
 particularly when not prayed by the bill. Lord C. B. 
 IVIacdonald said, that as to the quantum, he conceived that 
 nothing less than 5 per cent, would be a compensation to 
 the vendor, and that, indeed, they had in many cases lately 
 given 5 per cent, interest, and the reason of it was too well 
 founded to need any discussion : a person would always find 
 it to be his interest to delay the completion of his purchase 
 when he knows that he is only to pay 4 per cent, and can 
 make 5 or 6 of his money. Mr. Baron Thompson concurred, 
 ' Mr. Baron Graham wished there had been a general rule, 
 but the courts had been in the habit of giving 5 per cent, 
 where there was delay. The reasons formerly given had now 
 no ground. The 4 per cent, when established, was the cur- 
 rent interest, but now, it was holding out an inducement to 
 persons to delay the completion of contracts, as it was noto- 
 rious that money could not be obtained for even 5. Besides, 
 here the court had forejudged the question in making the 
 fonner order, although that was Vvithout prejudice. Mr, 
 Baron Wood concurred, and the court carried back the in- 
 
 (f ) Waldron ▼ Forester, Ei- karth v. Lord Lowther, 12 Ve* 
 eSec, 4tb May, 1804, MS. ; Gas- Jun. 107 ; and see ib^ 503. 
 
 terest
 
 OF INTEREST. 431 
 
 terest to Lady-day, 1 802, when it seems tlicy thouglit, upon 
 the construction of the several agreements and letters which 
 had passed, that the contract ought to have heen com- y 
 
 pleted \s), yf;,:^^^ 
 
 The same rate of interest seems payahle, whether the (y.j 
 
 estate be sold by private agreement, or by a master under a 
 decree of a court of equity. 
 
 SECTION II. 
 Of Costs. 
 
 At law the costs abide the event of the action by tlic ven- 
 dor or purchaser. In equity, also, the person who fails in 
 the suit must prima facie be deemed liable to the costs. 
 But still, although this is the general rule, yet costs in equity 
 rest entirely in the breast of the court, for the 'prima fade 
 claim to costs may be rebutted by the particular circum- 
 stances of the case; and it is for the court to decide whether 
 those circumstances are, or are not, sufficient to rebut the 
 claim {t). 
 
 If a purchaser file a bill for a specific performance, which 
 is dismissed because the defendant, the seller, cannot make 
 a title ; yet the bill may be dismissed ^vith costs against the 
 defendant {u)* 
 
 (i) iOxdhq. 30th June, 1807, ton, Barnard. Cha. Ca. 235. 
 MS. (m) See and consider Bennrt 
 
 (0 \ anrouver v. Bliss, 11 Vei. College v, Carey, 3 Cro. C. C 
 Jun. 468 ; see Scorbrough r, Bur- 390, ^«->-*^/-«^ ^ ^»fr^w a ^c?-/^ ^^ 
 
 If ^^ /'*-,.
 
 If the vendor file a bill for a specific performance, whick 
 IS dismissed because he cannot make a title, and the estate 
 was misrepresented in the particulars, although without 
 fraud, he must pay the costs {oc). If the estate was misre- 
 presented, and the auctioneer verbally agreed to allow a de- 
 duction if any misrepresentation should appear, the seller's 
 bill would be dismissed, with costs, if he sought to compel 
 the purchaser to take the estate without any allowance, be- 
 cause that would be a fraud. But if the purchaser do not 
 resort to the defence set up by his answer, until after the 
 institution of the suit, that is a ground not to give 
 costs (?/). 
 
 AVhere there is no misrepresentation, and the question 
 turn upon ^ point of law, upon which the opinion of the 
 court might fairly be taken, although the bill be dismissed 
 against the vendor, yet it will be without costs {z). If a 
 purchaser is entitled to costs, it is immaterial that the 
 beller was only a trustee for sale (a). (^ 
 
 So a purchaser is considered as entitled to take a fair 
 ©bjection, and although it be overruled, yet the court will 
 not, on that ground, give costs (6), but this, of course, 
 must always depend upon the weight which the judge may 
 think due to the objection (c.) In one case, indeed. Lord 
 Eldon thought that as the title was forced upon the pur- 
 chaser, he should act hardly by him, by not giving the title 
 the credit of making him pay the costs, for it would, he 
 said, help the title. As, however, the vendor had con- 
 
 {x) VancouTer v BHsi, uli my. aifid Beam, 8; Sharpe v. Roahde, 
 
 (i/) Winch V. Winchester, 1 Ves. 2 Rose, 192. 
 and Beam. 375. (c) Durnaby v. Griffin, 3 Ves. 
 
 (s> White v. Foljambe, 11 Ves. Jun. 266 ; Bishop of Winches- 
 Jan. 337 ; see ibid. 463. ter v. Paine, 11 Ves. Jun. 195 ; 
 
 (a) Edwards t. Harvey, Coop. see Powell v. Martyr, 8 Ves. 
 
 40. Jun. 146; Fludyer t» Cocker, 
 
 (*) Cox V. Chamberlain, 4 Ves, 12 Ves. Jun, 25 ; Calverley v. 
 
 JuB. 631 j Stains a*. IMorris, 1 Ves. Williams^ 1 Ves, Jun. 210. 
 
 tended
 
 OF COSTS. 433 
 
 tended, but unsuccessfully, tliat the purchaser had done acts 
 amounting to an acceptance of the title, his Lordship re- 
 fused costs (d). . -c« j^.'Tt 
 But although a vendor can make an unexceptionable title ^-^ / -^ 
 at the hearing of the cause, yet if he had not a title at the 
 institution of the suit, costs will not be given ao-ainst the 
 purchaser (c). And if a seller, upon a reference to the — 
 Master, establish his title upon a different ground from 
 what appeared in the abstract, the purchaser will be allowed 
 the costs of the reference and the applications to the 
 court (fj. So where a purchaser might in the first instance 
 have rescinded the contract, but binds himself by lonn- 
 acquiescence, the vendor will not be entitled to costs (g-J. 
 
 Lord Thurlow lias said, that if a purchaser will not wait 
 until the title is cleared, but will take possession, and put 
 the vendor to all the inconvenience of the discussion, when 
 he is out of possession, and the other has got it, that weighs 
 much as to costs (h). But the circumstance of taking pos- 
 session is not important, where, by the terms of the con- 
 tract, the title is to be made good at a subsequent period, 
 much less is it material where the purchaser is induced to 
 take possession at the instance of the vendor himself (/). 
 
 It is, however, to be repeated, that every case must 
 stand on its own grounds, although, from these few instances, 
 some notion may perhaps be formed of what the court is 
 likely to do in other cases. To multiply the instances in 
 which costs in equity have been given or refused, would bo 
 as useless as it would be tedious. 
 
 (rf) M'Queen v. Farquhar, 11 C/r) Dickenson v. Moron, w;/;. 
 
 Ves. Jua. '167. p. -IJ'i. 
 
 (e) Wynn v. Mor/ran, 7 Ves. (h) 1 1 V.-.". Jun. 164. See Cal- 
 
 Jun.202; Collinge's Case, 3 Ves. cralt v. Roebuck, 1 Ves. Jun. 
 
 and Bea. 143, n. (a). 222. 
 
 (/) Fielder v. Ili-ginson, 3 (i) 1 1 Vi;,. Juu. 16 1. /'/Ve jm/>. 
 
 Vts. and IJta. 1 12, p. '), 
 
 li f CJIAT.
 
 CHAPTER XI. 
 
 OF THE OBLIGATION OF A rURCHASEll TO SKE TO THi: 
 APPLICATION OF THE PURCHASE-MONEY. 
 
 W HERE a trust is raised by deed or will for sale of an 
 estate, a clause, that the receipts of the trustees shall be 
 sufficient discharges for the purchase-money, is mostly in- 
 serted, and rarely ought to be omitted; because, notwith- 
 standing that a purchaser would, at law, be safe in paying 
 the money to the vendors, although they were trustees, yet 
 equity will, in some cases, bind purchasers to see the money 
 applied according to the trust, if they be not expressly re- 
 lieved from that obligation by the author of the trust ; and 
 where the purchaser is bound to see to the application of 
 the money, great inconvenience frequently ensues, and, in 
 some instances, it would be difficult to compel the prnx-hasex 
 to complete the contract. 
 
 The rules on this subject may be considered under two 
 heads. First, with respect to real estate. Secondly, With 
 respect to leaseholds, or chattels real. For the rules appli- 
 cable to the different species of estates are dissimilar ; owing 
 to the much greater power which a testator has over his 
 real, than over his personal estate. 
 
 Previously to the statute of fraudulent devises [a), freo- 
 
 (a) 3 W, and M. c. 14. 
 
 hold
 
 SEKIN'G TO Ai-PLICATIOX OF PUSCKASE-MONEV. 435 
 
 hold knds were not bound by even specialty debts in tlie 
 h:mde of an hcKres factus ; although an hcvrcs 7iatus was 
 liable to specialty debts in respect of lands descended (I); 
 but personal property, which was formerly -of veiy trifling 
 value, was always holden to be su})ject to the payment of 
 debts generally^ however the same might be bequeathed. 
 And by the statute of Westminster 2 (&), it was enacted, 
 that even tlie ordinary should be bound to pay the debts of 
 the intestate, so far as his goods would extend, in the same 
 manner as executors were bound in case the deceased had 
 left a will. In fact no man can exempt his personalty from 
 the payment of his debts ; but it must go to his executors 
 as assets for his creditors, and be applied in a due course of 
 administration ; that is, ho'xever it may he bequeathed, it 
 must go to the executors, upon trust, in tlie first place, for 
 payment of debts generally. Now although tlie author of 
 tlie trust may have neglected to free the purchasers of his 
 property from the obligation of seeing that the money is 
 duly applied, yet equity hath thought it reasonable that a 
 purchaser should see to the application of the purchase- 
 money where the trust is of a defined and limited nature 
 only ; and not where the trust is general and unlimited, a*! 
 a trust for payment of debts generally. 
 
 ih) 13 Ed. I. c. 19. 
 
 (!) Althoygh an heir at law k bound b^ S|i«»cialty (!<bts in rfspect of 
 lands descended, yot a purchaser of those laiul-^, vriihont notice of any 
 debts, was never holden to be subject to tht-m. The stutut*' of fraudu- 
 lent devises was always considered as placing a devisee on exact!)'' the 
 same footing as an heif at law; but it was lately contended (see 
 Mathews v. Jones, 2 Anstr. 506,) that tin- debts of the testator would 
 bind a purchaser from the devisee, although he bo^c.ht bona Jlt/e and 
 without notice. But this was over niKd. Kquitv will, howeter, 
 ID behalf of creditors, grant an injunction against a purchoier to re. 
 strain payment to the heir, Greeo t. Lowe?, j Bro. C, C. X17. 
 
 ^ ^a^'?xj2t-x^ /■ .^2,<^;^^,/. ' /
 
 436 OF sep:ikg to the application 
 
 From these rules it necessarily follows, that a bona fide 
 purchaser of a leasehold estate from an executor ought not 
 to he bound to see to the application of the purchase-money, 
 although defined and limited trusts be declared of the pur- 
 chase-money. But, as a testator can declare an original 
 limited trust of his real estate, wherever such a trust i:> 
 created, tlie purchaser is bound to sec the money duly 
 applied. 
 
 SECTION r. 
 
 Of this Liahillti), wit/t reference to real Estate. 
 
 1 IIESE appear to be the principles tipon which the dis- 
 tinctions on this subject are grounded, and we may now 
 enter upon an examination of the rules themselves. And, 
 first, with respect to real estate. 
 
 1. If the trust be of such a nature, that the purchaser 
 may reasonably be expected to see to the application of the 
 purchase-money, as if it be for the payment of legacies, or of 
 debts which are scheduled or specified, he is bound to see 
 that the money is applied accordingly (c) ; and that although 
 
 (c) Culpepper v. Aston, 2 Cha. 1 Eq, Ca. Abr, 358. pi. 2 ; Elliot 
 
 Ca, 221 ; see Show, 313 ; Spald- r. Merryman, Barnard. Rep. tha. 
 
 ing V. Shalmer, 1 Vorn. 301; 81 ; Smith t. Guyon, 1 Bro. C.C. 
 
 Dunch V. Kent, I Vern. 260 j 186, and the cases cited in the 
 
 Anon. Mose. 96 ; Abbot v. Gibbs, note (I). And see 1 Ves. 215. 
 
 (I) One of these cases, Langley v. Lord Oxford, is in Reg, l^ib. 
 B. 1747, fH>l. 300; see posty S. C. Ambl. 17. Tiie other cases, Te- 
 nant T.Jackson, and Cotton v. Everall, are in Keg. Lib. 1773, B. foL 
 
 120, 481. 
 
 the
 
 or rURCHASE-MONEY. 437 
 
 the estate be sold under a decree of a court of equity (d), or 
 hy virtue of an act of parliament {e). 
 
 2. If more of an estate be sold than is sufficient for tlie 
 purjDoses of the trust, that will not turn to the prejudice of 
 the purchaser ; for the trustees cannot sell just sufficient to 
 pay the debts, &c. Besides, in most cases, money is to be 
 raised to pay the tmstces' expenses {f). 
 
 3. Where the trust is fm* jmyment of debts generally, a 
 purchaser is not bound to see to the application of the pur- 
 chase-money, although lie has notice of tlie debte; for a 
 purchaser cannot be expected, to sec to the due observance 
 of a trust so unlimited and undefined (g). 
 
 4. Xor is a purchaser bound to see the moi;icy applied, 
 where the tnist is for payment of debts generally, and also 
 for payment of legacies (I) ; because, to hold that he is liable 
 to see the legacies paid, v.oiild in fact involve him in the 
 account of the debts, whicli nuist be first paid (//) (IT). 
 
 o. And 
 
 (rf) Lloyd V. Baldwin, 1 Vps, Ahr. 358, pi, 4 ; er /?rt?Ve Turnor, 
 
 173; see Binks V. Lord llokeby, 9 Mod. 418 ; Hardwicke v. Mynd, 
 
 2 Madd. 227. 1 Anstr. 109 ; and William-ou v. 
 
 (r) CoUercll v. Hampson, 2 Curtis, 3 lire. C.C. 96. '^" ^* '' ^'^ ^^ 
 Vcrn. 5. (Ji) J ebb v. Abbot, and Benyon *' ' 
 
 (/) Spalding V. Shalmer, 1 v. Collin?, Butb^r's n. (1) (o Co, 
 
 Vern. 301. Litt. 290, b. s. 12 ; and Rogers v. 
 
 (^) See the cases cited above, Skillicorne, Ambl. 188, 
 and Humble v. Bill, 1 Eq, Ca. 
 
 (I) The above rule, although so long and clearly settled, appears (o 
 have been entirely overlook-ed in thecase of Oinerod v. HarcJman, before 
 the Dutcliy Court, reported in 5 \'es. Jun. 722; but this case can by no 
 means be considered as an authority, and has been expressly denied by 
 Lord Eldon. Sec 6 \'es. Jun. 654, n. Qu. however, whether the case 
 of Omcrod v. Ilardman was not thought to be within the principle stated 
 in pi. 13, pof/. 
 
 (II) And where the whole money has been raised, the heir or devisee 
 
 will 
 2 F 3
 
 43S OF fcEJIIKG- 10 TTiT. AriLICATlCN 
 
 5. And for the same reason the purcliascr i.';^ oi' ccnnf, 
 not bound to see that only so much of the est'jte is »oId £8 
 is necessary for the pui-poses of the trust. 
 
 6. But although there be no epecification of the debts, 
 yet a purchaser, it is said, must see to the application of th6 
 money where thei*e lias been a decree , as that reduces it to 
 as much certainty as a schedule of the debts. In such cases, 
 therefore, the purchaser should not pay to the trustees, but 
 must see to the application, and take assignments from the 
 creditors : otherwise he should apply to the court, that the 
 money may be placed in the Bank, and not taken out Anth- 
 out notice to him ; the reason of which is, that it is at his 
 peril (i). It is now, however, the prevailing opinion, that 
 the purchaser is not, in such a case, bound to sec to the ap- 
 plication of the money. The coiurt takes upon itself the ap- 
 plication of the money. 
 
 7. It is the general opinion of the profession, that where 
 the time of sale is arrived , and the persons entitled to the 
 money Jire infants or unborn, the purchaser is not bound to 
 gee to the application of the money ; because he would 
 otherwise be implicated in a trust, which insome cases might 
 
 be of lonjr duration. ^^ -^''^ ^^^"^ ^^^ ^^ -"' '^-^^^^ 
 
 8. Eut if an estate is cliarged with a sum of money for an 
 infant, payable at his majority, and there is no direction to 
 appropri;:te the money, a purchaser cannot safely complete 
 his purchase, although the money be invested in the fundg 
 as a security for the payment of thq legacy to the infant, 
 
 {i) Lloyd V. Baldwin, 1 Ves. JTS. 
 
 'AJil be; entitled to the estates unsold, and the creditors, or lesjatees, will 
 Inve rp rtaiedy against the same ; because the estate is debtor for the 
 dtpfs and legacies, but uot for the faults of the trustees. Aboji, in Don). 
 P/cc. 1 Sai;t. 153. " 
 
 "vvhen
 
 OF rURQHASE-MONEY. 4S9 
 
 when he shall become entitled ; for if, in the event, the fund 
 should turn out deficient for payment of the infant's legacy, 
 lie must still have recourse to the estate for the deficiency. 
 And it should seem, that even a court of eqiiity cannot, in 
 a case of this nature, bind the right of an infant {k). 
 
 9. It appears to be tliought by the profession, that al- 
 though tlie trusts are defmecl, yet that payment to tlie 
 trustees is sufficient, ^vherever the money is not merely to 
 be paid over to third persons, but is to be applied upon 
 trusts which require time and discretion,, as where the trust 
 is to lay out the money in the purchase of estates. 
 
 In a recent case, Avhere the trust was to pay the money 
 
 amongst creditors, who should come in within 18 months, 
 
 the estate was sold after that time had elapsed, and the late 
 
 Master of the Rolls held, that the receipt of the trustees 
 
 was a good discharge (/). The deed, he observed, very 
 
 clearly conferred an immediate power of sale, for a purpose 
 
 that could not be immediately defined, viz. to pay debts 
 
 which could not be ascertained ujitil a future and distant 
 
 period. It was impossible to contend, that the trustees 
 
 might not have sold the whole property at any time they 
 
 thought fit, after the execution of the deed; and yet it 
 
 could not be ascertained, until the end of 18 months, who 
 
 were the persons among whom the produce of the sale was 
 
 to be distributed. If the sale might take place at a time 
 
 when the distribution could not possibly be made, it must 
 
 Ikave been intended, that the trustees should, of themselves, 
 
 ])e able to give a discharge for tlie produce ; for the money 
 
 could not be paid to any other person than the trustees. It 
 
 is not material, that the objects of the trust might have 
 
 been actually ascertained before the sale. 'J'lie deed must 
 
 (*) Dickenson v. Dickenson, 3 <l) Balfour v. Wdland, 16 Vej. 
 
 Bro.C.C. 19. Jun. 151. 
 
 2 r -h receive
 
 440 OF SEEING TO THE AITETCATION 
 
 receive its construction as from the moment of its execution. 
 According to the frame of the deed, the jnircliasci'S were or 
 were not liable to see to the application of the money ; and 
 their liability could not depend upon any subsequent 
 event. Another ground relied upon in this c;isc, was, that 
 the creditors were parties to the deed, which clearly 
 intended that tlie trustees should receive and a])ply the 
 
 money. 
 
 10. So where the trust is to lay out the money in the 
 funds, &c. upon trusts, if the purchaser see it invested ac- 
 cording to the trust, and procure the trustees to execute a 
 declaration of trust, he is in practice considered as discharged 
 from the obligation of seeing to the further application of 
 the money. 
 
 This appears to have been the settled practice in IMr. 
 Booth's time ; for in answer to a question how far a purcha- 
 ser was, in a case of this nature, bound to see to the appli- 
 cation of the purchase-money, he said, he was of opinion, 
 that all that would be incumbent on the purchaser to see 
 done in the case, would be to see that the trustees did invest 
 the purchase-money in their own names, in some of the pub- 
 lic stocks or funds, or on govermnent securities ; and in such 
 case the purchaser would not be an=?werable for any non- 
 application (after such investment of the money) of any 
 monies which might arise by the dividends or interest, or by 
 any disposition of such funds, stocks, or securities, it not 
 being possible that the testator should expect from any pur- 
 chaser any further degree of care or circumspection than 
 during the time that the trancaction for tlie purchase-money 
 was carrying on ; and tlierefore the testator must be supposed 
 to place his sole confidence in the trustees ; and this, he 
 added, was the settled practice in such cases, and he had 
 often advised so much and no more to be done ; and parti- 
 cularly in the case of the trustees under the Duchess of 
 
 Marlborough's
 
 OF PITRCTIASK-:\rONEY. 441 
 
 ISIarlborougli's will. And in this opinion Mr. Wilbraham 
 concurred (;//). 
 
 1 1 . The same rules respecting the liability of a purchaser 
 to see to the application of the purcliase-money, appear to 
 apply, whether the estate be devised or conveyed to trustees 
 to sell for payment of debts, &c. or whether it be only 
 cliarged with the debts ; although a difference of opinion 
 has prevailed in the profession on this point. 
 
 In a case in Mosely (/i) it was laid down, that a purchaser 
 should be bound to see to the application of the purchase- 
 money where the debts were only charged on the estate. 
 
 Eut in Elliot v. iNlerryman (o), the late JNIaster of the 
 Kolls decreed otherwise ; because, if the contrary rule were 
 iiolden, no estate could in such cases be sold, except through 
 the medium of the Court of Chancery, which \vould be pro- 
 ductive of the greatest inconvenience. 
 
 Lord Chancellor Camden (^7) appears to have been of the 
 same opinion ; and in a late case (</) Lord Chancellor Eldon 
 said, that where a man, by a deed or will, charges or orders 
 an estate to be sold for payment of debts generally, and then 
 makes specific dispositions, the purchaser is not bound to bc^^ 
 to the application of tlic purchase-money. 
 
 This point may be considered as settled upon principle, 
 as well as authority. For althougli a mere charge is no 
 legal estate, but only that declaration of intention upon 
 which a court of equity will fasten, and by virtue of whicii 
 they will draw out of the mass going to the heir, or to 
 others, that quantum of interest that will be sufficient for 
 the debts (r) ; yet it is as much a trust, as a direct convey- 
 
 ' (m) See 2 vol. Cas. and Opiii. Atk. H ; Ambl. ]89, niarg. 
 
 ] 1 1. (p) See Walker v. Smalwood, 
 
 (rt) Anon. Mosc. 96 ; and spe Ambl. 676. 
 
 Newell V. Ward, Ncls. Cha. Rep. (7) See 6 Ves. Jun. 65 1. n. 
 
 38. (r) See Bailey r. Ekius, 7 Ves. 
 
 (o) Barnard, Rep. Tha. 78; 2 Jun. 323. 
 
 ancc
 
 442 OF SEEING TO THE APPLICA'IION 
 
 ance or devise to trustees for the same purpose : the only 
 difference is, that in the case of a charge, the trust arises by 
 the construction of equity ; whereas in the case of a convey- 
 ance, or devj.se, it is produced by the express declaration of 
 the party ; and when tlie trust is in esse, it seems wholly 
 immaterial by what means it has arisen. 
 
 It seems hardly necessary to remark, that where lands arc 
 charged v/ith the payment of annuities, those lands will be 
 liable in the hands of a pu/chaser, because it was the very 
 puq)0se of miking the lands a fund for that payment, that 
 it should be a constant and subsisting fund {s). 
 
 So where an estate is devised, subject to existing charges, 
 the purchaser must of course see the charges duly paid. 
 
 12. These are the distinctions which, according to the 
 books, appear to exist in regard to the liability of a purchaser 
 to see to the application of money arising by sale of estates 
 conveyed or devised to trustees upon trust to sell ; but tlie 
 reader must be apprised, tljat some gentlemen are of 
 opinion, that a purchaser is in no case bound to see to tlie 
 application of purchase-money, where there is a hand ap- 
 iminted to receive the money. And it appears that Lord 
 Kcnyon, when IMaster of the Rolls, inclined strongly to 
 the opinion, although he made no decision, that trustees 
 liaving the power to sell, they must have the power incident 
 to the character, viz. the power to give a discharge [t). 
 
 So the late JNIaster of the Rolls observed, that he thought 
 the doctrine upon this point had been carried further than 
 any sound equitable principle would warrant. Where, he 
 added, the act is a breach of duty in the trustee, it is very 
 fit that those v/ho deal with him should be affected by an 
 act tending to defeat the trust of which they have notice ; 
 but where the sale is made by the trustee in performance 
 
 {s) Elliot V. Morryman, Bar- Williams^ 5 Ves. Jun, 130. 
 nard. Rep. Cha, 82 j see W> nn v. \t) See 4 Ves. Jun. 99. 
 
 of
 
 OF PURCHASE-MONEY. 443 
 
 i)f his duty, it seems extraordinary that he should not b«" 
 able to do what one should think incidental to the right 
 exercise of his power, that is, to give a valid discharge for 
 the purchase-money. But it was not necessary to deter- 
 mine that in the case before his honour (u). 
 
 Of those who bold that a purchaser is only liable to sec 
 to the ap}>lication of the money Avhere there is 7iot a hand 
 jippointed to receive the money, and tlie trusts of the 
 money are defined, Mr. Powell is the only one whose rea- 
 sons are before the profession (*). The whole of Mr. 
 Powell's argument (I) appears to have ]>een suggested to 
 liim, and indeed depends on the case of Cuthbcrt v. Baker. 
 For throughout the many cases which have been referrcil 
 to in this chapter, the decisions have invariably been pro- 
 nounced on the distinction between a limited and a general 
 trust; and in no case has the appointment of a hand to 
 receive the m«ney been considered as affecting the question, 
 any further than that it at one time seems to have been 
 thought, that in every case of a mere-charge, the purchaser 
 was bound to see to the application of the money. That 
 this was always deemed the true distinction, is evinced by 
 manuscript and printed opinions to that effect, of all the 
 jnost leading characters in tlie profession of the last and 
 present century. So Lord Eldon, in condemning the doc- 
 trine advanced in Omerod v. Hardman (?/), did not say it 
 Was wrong because there was a hand appointed to receive 
 the money (which was tlie fact), but because the first tni.st 
 was for payment of debts generally. 
 
 Mr. Powell, however, was not singular in his construf- 
 
 (u) See 16 V«s. Jun. 156. (y) S»e 6 Ves. Jun. 6^4, n. "' 
 
 (.i) Sec 1 Mortg, 312 — 330, mpra, u. to s, -1, 
 
 4th edit. 
 
 (I) Stc the 3d edition of Tuwcll on Mortgages, whtie the point ii 
 not uoticcd. 
 
 tion
 
 4-14 OF SEEING TO THE APPLICATION 
 
 tion of tlic decree in the case of Ciithbcrt v. Baker. It is 
 well known by the profession, that Lord lledesdale, who 
 was counsel for Eaker, the purchaser, considered the deci- 
 sion in the same light. 
 
 The case is thus stated by Mr. Powell : — A made his 
 will {z), and thereby directed that all his personal estate 
 (except as therein excepted) should be applied, as far as 
 the same would extend, in payment of debts, legacies, and 
 funeral expcnees, and of all annuities by him granted; and 
 if such personal estate should not be siifiicient for those 
 purposes, tlien it was his further will and desire, and he 
 did direct, that the deficiency, whatever it might be, should 
 be paid and made good out of his real estate (except a part 
 therein mentioned, which he did not intend to make siib- 
 jcct thereto), and which real estates he charged with the 
 payment of such deficiency, to whose hands soever the same 
 came. And so subject and exempt, he gave, devised, &c. 
 all his real and personal estate in the following manner : 
 certain parts of his estate to his wife in fee ; and as to the 
 manors, messuages, &c. not given to his wife in fee, he 
 devised them to his wife for life ; and, after her decease, he 
 o-ave the same to trustees, in trust to sell and to divide and 
 to distribute the money which should arise by such sale 
 between and amongst such child or children of A B on the 
 body of his then wife begotten ; and such children of C D 
 (I) as should be living when the devise to the trustees 
 should take effect, equally share and share alike, to take 
 per capita, and not per stirpes: if but one such child, the 
 estate to be transferred to him, and not to be sold. The 
 
 (2) Mr. p. refers to 4th July, rect reference is Lib. Reg. A. 
 1790, Reg. Lib. 4, 441 ; the cor- 1790, fo. 442. 
 
 (I) This is raisstateJ, for the money vas given to such of the children 
 of three persons as should be living at the time when the devise to the 
 trustees should take effect. 
 
 wife
 
 OF rURCIIASE-MOXEY. 445 
 
 wife died. One trustee died in her life-time. The surviv- 
 ing trustee sold the estate by auction. The personal estate 
 was sufficient to discharge the debts : tlie claimants under 
 the devise to children were seven children of A B, and six 
 children of CD (I), \vho were entitled to the purchase- 
 money in equal shares. One of the children of C I) was 
 in the East-Indies, and two were infants. The purchaser 
 refused to complete his purchase, objecting thereto on the 
 ground, that there being no proviso in the will to exonerate 
 the purchaser from seeing to the application of the money, 
 the purchaser was bound to know or find out what childrQU 
 of the persons in that behalf named were living at the tes- 
 tator's wife's death ; for that such children ought indivi- 
 dually to execute the conveyance, and give releases for their 
 respective claims ; and that one being in the East-Indies, 
 and two being infants, could not join in such conveyance. 
 But the decree was, that the contract should be caiTied 
 into execution, that the infants' shares of the purchase- 
 money should be paid to the Accountant-general, and that 
 the remainder of the purchase-money should be paid to the 
 trustee. The decree proceeded to direct that all proper 
 parties shoidd join in the proper conveyances. 
 
 Mr. Powell observes, that this decision, though not final, 
 as it still left room for an application to the court to 
 determine who might be proper parties to the conveyance, 
 appeared to him to be conclusive on the question, whether 
 the persons beneficially entitled are necessary parties ; be- 
 cause there could be no ground to consider those persons 
 as necessary parties, unless it were to discharge the pur- 
 chaser; but there seemed to him to be no power in the 
 court to compel a person beneficially interested in money to 
 arise by sale of land, to discharge that land, unless it were 
 
 (1) This is inaccurate. There wcru 17 cliildrcii ia all. 
 
 lipOl)
 
 445 OF SEEING TO THE APPLICATION 
 
 upon paying or securing the money to liim. But the court, 
 by directing tlie payment to the trustee, had done that 
 which rendered a direction to pay to the cestui que trust 
 impossible. 
 
 It will be seen that Mr. Powell's argument is entirely 
 (bunded on the order to pay the remainder of the i)urchasc- 
 money to the trustee, and this ground wholly fails him ; 
 for all lk& cestuis que trust xverc plaintiffs, and the prayer 
 of the hill wa^!, that the infants' shares might he invested, 
 aiid that the remainder of the purehasc-money might be 
 paid io the trustee. 
 
 It is not noticed in the foregoing statement of the case, 
 that no costs were given ; hut the fact is, that the purchaser 
 was refused his costs, and that circumstance may perhaps 
 induce a conclusion, that the construction put upon the case 
 by Mr. Powell is correct. 
 
 But it is conceived, that there is a ground upon which the 
 decision may be supported without impeacliing the settled 
 aoctrine on this subject. The trust was for .^uch of the 
 children of three persons as should be living when the estate 
 sliculd fall into possession, and it was strongly insisted by 
 the bill, and, it is apprehended, with great reason, that 
 the cestuis que truit were in regard to the purchaser unde- 
 lined ; and he was not bound to ascertain or inquire how 
 many there were, and who they were. The facts of the 
 ease were such as to tempt a judge to put that construction 
 on the trust ; there were seventeen cliildren, two of whom 
 were infants, and another was in the Ea^st Indies. It should 
 seGm, therefore, that there is a solid principle to which Lord 
 Thurlow's decision can be referred, and, consequently, a 
 purchaser can scarcely be advised to inciu: the risk of-^oaying 
 money to a trustee, on the authority of this case, in oppo- 
 sition to the former decisions. Perhaps another ground 
 remains upon which the decision might have been made. 
 Ail the cestuis que trust of age, and in the kingdom, 
 
 offered.
 
 OF PURCH.\SE-MONF.Y. 44? 
 
 offered, previously to the commencement of the suit, to 
 give receipts for their shares : the receipt of tlie trustee 
 would certainly have been a sufficient discharge for the 
 shares of the infants, and also, as it is conceived, for the 
 «hare of the cestui que trust, ^vho ^^"a9 abroad. And in 
 this view of the case the purchaser was clearly liable to the 
 costs. It were difficult to maintain, that the absence of a 
 cestui que trust in a foreign country shall, in a case of this 
 nature, impede the sale of the estate. Lord Thurlow's 
 judgment in this case would be a very desirable present to 
 the profession. In a case which came before the same 
 judge a few years before that of Cuthbert v. Baker, and 
 which I learn from a gentleman who has seen the papers 
 relating to the estate, is correctly reported, the estate was 
 subjected to the payment of debts generally ; and his Lord- 
 ship said, that the purchaser was a nrftre stranger, and was 
 not bound to look to the application : where the estate is 
 to be sold, and a specific sum, as 5l. to he paid to A, the 
 ■purchaser must see to the applicatioJi ; but v. here it is to 
 be sold generally, he is not (a). 
 
 In the case of Currer v. Walkley, reported in Mr. 
 
 Dickens's second volume (6), which was also before Lord 
 
 Thurlow, it is stated, that the testator had devised estates, 
 
 subject to particular charges : he afterwards entered into a 
 
 contract for a part of the estate, and the purchaser paid the 
 
 sum of 600/. as a deposit. The bill was for an account of 
 
 what was due to the plaintiff in respect to his charge, and 
 
 that the purchaser might pay out of the remaimler of his^ 
 
 ])urchasc-money what remained due to the plaintiff. I^ord 
 
 Chauccllor Thurlow is reported to have said, that if ati 
 
 estate is devised to trustees to sell, and the testator after 
 
 wards contracts for the sale of the estate, it is enough t^,i 
 
 {(I) Smith V. Guyon, 1783, I (6) '2 Dick. dV). 
 
 Bro. C.C. 116. 
 
 the
 
 448 OF SEEING TO THE APPLICATION 
 
 the purchaser to pay the piircliasc-moncy into tlic haiuLs of 
 the trustees, to apply it, as it doth not lie with him to see 
 it applied ; but if the estate be devised, subject to particular 
 charges, it is incumbent on him to see it applied in pay- 
 ment of those particular charges. 
 
 This case seemed to apply to the point under discussion ; 
 but no reliance could be placed upon it, as it was to be 
 inferred from the report, that I^ord Thurlow held, that a 
 devise of an estate was not revoked in equity by a subse- 
 quent contract for sale of it — a doctrine which it was diffi- 
 cult to suppose could have fallen from so great a judge. 
 
 The case is stated in the Register's book (c), by the 
 name of Comer v. Walkley, and INIr. Dickens's report of 
 it is a complete mis-statement. The estate was originally 
 devised to trustees upon trust to sell and pay debts gene- 
 rally. The estate was subject to an annuity at the death 
 of the testator. Tlie trustee sold a part of the estate for 
 720/., 600/. was left in tlie purch^iser's hand as an indem- 
 nity against the annuity. The purchaser afterwards paid 
 250/. part of the 600/. to the trustee. By several convey- 
 ances, &c. the estate purchased became agaiu vested in 
 trustees upon trust, to sell for payment of debts generally. 
 These trustees sold the estate to Charles AVhittard^ who 
 objected to complete the contract without the concurrence 
 of the person entitled to the residue, then unpaid, of the 
 600/. After a great lapse of time the person entitled to the 
 residue of the 600/. filed a bill against W'hittard and others 
 for pajTuent of it ; and Whittard filed another bill for a 
 specific performance, which was accordingly decreed ; and 
 the proper accounts were directed to be taken in the first 
 cause. \'Vhittard's costs in both causes were allowed to 
 him. The decision, therefore, appears to have been, that 
 the 600/. was a lien on the land. The latter part of Lord 
 
 Cc) Reg. Lib. A. 178^, fol. 625. 
 
 Thurlow's
 
 OF PURCIIASE-MONEY. 4 i9 
 
 Thlirlo-^v^s jiulgmeut, reported by Dickens, dearly referred 
 to the annuity, which was a subsisting charge on the estate 
 at the testator's death. And ad\ erting to tlie circumstances 
 of the case, the first part of the judgment may, perhaps, 
 be read thus: If an estate is devised to trustees to sell, and 
 the trustees afterwards contract for the sale of the estate, it 
 is enough for the purchaser to pay the purchase-money 
 into the hands of the trustees to apply it, as it doth not 
 lie with him to see it applied. Now this, as corrected, 
 seems in favour of the opinion, that where a hand is a])- 
 pointed to receive the money, a purchaser is not bourid 
 to sec to the ai)plication of the purchase-money ; but it 
 should not be forgotten, that this observation was made iu 
 a case where the trust was for payment of debts generally. 
 
 l.S. Where the trust is to raise so much money as the 
 personal estate shall prove deficient in paying the debis, 
 or debts and legacies, it seems formerly to have been 
 doubted whether the purchaser was not bound to ascer- 
 tain the deficiency. Mr. Fearne thought a purchaser was 
 bound to do so {d)i But the opinion of the profession is 
 certainly otherwise {e). Indeed, a direction that the per- 
 sonal estate shall be first applied, only expresses the rule of 
 equity, where, as in a case of this nature, no intention 
 appears to exonerate the personalty from the payment of 
 the debts ; and, therefore, such a direction cannot be deemed 
 material. 
 
 14. Where a tnere powe?' is given to trusters to sell, 
 for the purpose of raising as much money as the persoiial 
 estate shall prove deficient in paying the debts, or debts 
 and legacies, it seems, that unless the personal estate be 
 actually deficient, the power does not arise, and cousc- 
 •juenlly cannot be duly executed. This was expressly 
 
 (ri) l>:uin',-, Posfl'iiina. p. 121 (f) See the I^tli section of Mr. 
 
 na'.irr-'. n. (1) to Co I/itt. 209, h. 
 2 G drcidrd
 
 4^0 OF SEEIKG TO THE APPLICATION 
 
 decided in the case of Dike v. Ricks {/), v.lierc, in 3 
 case of this nature, it \vas dctennined by Jones, Crokc^ 
 and Barkeley, Justices, unanimously, tliat the condition 
 was a precedent condition, and tliat the pc-rfonnance of 
 it ought to he sufficiently averred, otherwise tlie power 
 would not authorise a sale ; and that the amount of the 
 debts, and the value of the personal estate, ought to be 
 shewn, so tliat the court might judge whether the condi- 
 tion was performed or not ; and also that so much only of 
 the estate could be sold as was sufficient for payment of 
 the debts. And the case of Culpepper v. Aston {g), also 
 appears to be an authority, that in a case of this nature 
 a purchaser is bound to ascertain the deficiency ; for in that 
 case the will seems to have given a mere pou:cr (/^) to the 
 executors to raise as much money as the personal estate 
 should fall short in paying the debts. The will wa<i 
 revoked 'pro ta?ito by a subsequent conveyance creating a 
 direct trust to sell and pay debts, imder which it seems the 
 purchaser bought ; and therefore the point did not call for 
 a decision. But it was resolved, that by the trust (that is, 
 power) in the will to sell, the purchaser did purchase at his 
 own peril, if the personal estate received were sufficient; 
 but that if the trust were as in the deed, the purchaser was 
 safe. 
 
 The reader must be aware, that as the power is not well 
 executed, unless there be a deficiency, a purchaser must, at 
 his peril, ascertain the fact, notwithstanding that the trust 
 be for payment of debts generally ; or being for payment of 
 particular debts or legacies, the coimnon clause, that tht 
 trustees' receipts shall be sufficient discharges, be inserted 
 in the instrument creating the trust. 
 
 (/) Cro. Car. 335 ; Wm. Jones, (g) See 2 Cha. Ca. 221. 
 
 327 ; 1 Ro. Abr. 329, pi. 9; 3 Vin. (/;) 2 Cha. Ca. 115. 
 
 Abr. 419, pi. 9. . 
 
 Wherever,
 
 OF PURCHASE-MONEY. 4ol 
 
 Wherever, tlierefore, a power of this nature is given, 
 and even where a trust for sucli purposes is raised, it 
 seems advisable, as Mr. Eutler remarks, to extend this 
 chiuse a degree further, by expressly discharging the 
 purchaser or mortgagee from the obligation of enquiring, 
 whether the personal estate has been got in and applied ; 
 and by expressly authorising the trustees to raise any 
 money they may think proper by sale or mortgage, 
 though the personal estate be not actually got in or 
 applied. For it frequently happens, that the getting in 
 of the personal estate is attended with great delay and 
 difficulty; during which the real estate cannot perhaps 
 be resorted to. This Tvill be obviated effectually by 
 inserting a clause to the above effect. It should, however, 
 be accompanied with a further direction, that so much of 
 the personal estate, and the money raised under the trust, 
 as shall remain after answering the purposes of the trust, 
 shall be laid out in land, to be settled on the devisees of the 
 real estates (/). 
 
 15. Where a purchaser is bound to see the money applied 
 according to the trust, and the trust is for payment of debts, 
 or legacies, he must see the money actually paid to the 
 creditors or legatees. 
 
 In cases of this nature, therefore, each creditor or legatee, 
 upon receiving his money, should give as many receipts as 
 there are purchasers, so that each purchaser may have one. 
 Or, if the creditors or legatees are but few, they may be 
 made parties to the conveyances. 
 
 Another mode by which the purchasers may be secured 
 is, an assignment by all the creditors and legatees of their 
 debts and legacies to a trustee, with a declaration that his 
 
 (f) Butler's n. (I) to Co. Litt, tPO, b. 
 
 2 G UI . receipts
 
 io^ or SEEING TO HIT. ^T?lACAJlO'^ 
 
 receipts sliall be sulTieiont discharges; and then the trustee" 
 can be made a party to the several conveyances. 
 
 Sometimes a bill is filed for carrying the agreement into 
 execution, when the purchase-money is of courgc directed 
 lo be paid into court; and tins is the surest mode, because 
 the money will not be paid out of court without the know- 
 ledge of the purchaser. 
 
 16. If the names of the trustees be inserted in the 
 usual clause, that the receipts of the trustees shall be 
 discharges, every trustee who has accepted the tnist must 
 join in the receipt for the purchase-money, although he 
 may have released the estate to tlie other trustees (k) ; 
 because, notwithstanding that he release the legal estate 
 to his CO- trustees, he cannot delegate the personal trust and 
 confidence reposed in him; for the rule is, delegatus non 
 yotest delegare. 
 
 To obviate this difficulty, which frequently occurs, it 
 might, perhaps, be advisable (instead of naming the trustees 
 in the clause) to say, that the receipts " of the trustees or 
 trustee, for the time heing, acting in the execution of the 
 trusts hereby created," shall be sufficient discharges. This 
 would probably render it unnecessary for a trustee wlio 
 had released the estate to join in any receipt: — there 
 could not be the slightest ground to contend, that any 
 personal trust or confidence was given to the trustees 
 named in the instrument creating the trust ; and tlierefore 
 the receipt of the trustees acting in the trusts, for the time 
 being, would satisfy as well the words as the spirit of the 
 clause (/). 
 
 17. But as one man cannot impose a trust on another 
 against his consent, a trustee who has refused to accept 
 the trust, and actually renounced, need not join in any 
 
 (/:) Crewe t. Dlcken, 4 ^ es. (/) Sec Co. Litt. 113, 3. 
 
 receipts ;
 
 OF PURCnASE-MONEY. 4.'53 
 
 receipts ; in such cases the receipts of the other trustees 
 will be sufficient discharges {m). Upon this point, how- 
 ever, a difference of opinion appears to prevail in the 
 profession. 
 
 18. Where an estate is devised or conveyed to tmsteeg 
 to sell for payment of debts generally, without a clause 
 that their receipts shall be discharges, and they convey to 
 a third person, Jbr the purposes of the t7'ust, sales made 
 by him are as effectual as sales made by the trustees thcm- 
 .selves, and his receipt is equally a discharge to a pur- 
 chaser {n) ; because, in such cases, the receipt is effectual 
 by reason of the trust itself, and not owing to any personal 
 coniidcnGc given by the author of the trusty or to any express 
 declaration by him for that purpose. 
 
 SECTION II. 
 
 Of this Liability with reference to Leasehold Edalei. 
 
 1. VV E have ak'cady scon, that however leasehold estates 
 may be bequeathed, they nuist go to the executors, to be 
 i,pplied, in the first place, in a due course of administration, 
 which is tantamount to a bequest for payment of debts 
 generally. And, therefore, in analogy to the decisions 
 upon devises of real estates for a similar purpose, it is incon- 
 trovcrtibly settled, that a purcliaser of personalty shall in no 
 
 (m) See Sir William Smith t. in) Hardwicke v. Mynd, 1 
 
 V^heeler, 1 Ventr. 128 ; Hawkins Anstr. 109. See Ix)rd Braybroke 
 
 <,/. KempjS Ea»t, 410. v. Inskip, 8 Ves. Jun. 417 ;*<'<' 9«- 
 
 2 G 3 case
 
 4154 OF SEEING TO THE APPLICATION 
 
 case be bound to see to the application of the purchase- 
 money, where he purchases bona fide, and without notice 
 that there are no debts (o). 
 
 This principle was adhered to in the case of Humble y. 
 Bill (/?), before Sir Nathan AV^right, where a man be- 
 queathed a specific part of his personalty upon trust to 
 raise a sum of money for his daughter, and the executors 
 mortgagetl it, pretending want of assets. The decision 
 was, however, reversed in the House of Lords {q) ; but 
 the reversal is generally supposed to have proceeded from 
 proof of fraud, and has not been attended to in subsequent 
 cases. 
 
 Thus in Ewer v. Corbet (r), it was expressly holden 
 that a term being bequeathed to A, did not prevent the 
 executors from selling it ; and that notice of the devise v.-as 
 nothing, as every person buying of an executor necessarily 
 must have such notice. And the jMaster of the Rolls 
 said, he remembered it to have been once ruled, that 
 an executor could not make a good title to a term to a 
 purchaser, and that was in the case of Bill v. Humble; 
 but since that he took it to have been resolved, and with 
 great reason, tkat an executor, where there were debts, 
 might sell a terni ; and the devisee of the term had no 
 other remedy but .igainst the executor to recover the value 
 thereof, if there were sufficient assets for the payment of 
 debts. 
 
 2. This doctrine has been carried so far, that a sale in 
 
 (o) Elliot V, iMerry man, Barnard. {q) See Savage v. Humble, 1 
 
 Rt-p. Cha. 78 ; 2 Atk. 41 ; see Bro. P. C. 71 ; and see 17 Ves. 
 
 Watts V. Kancy, Toth. I4l ; S.C. Jun. 160, l61. 
 
 ibid. '2^7^ by the name of JMntts (r) 2 P. Wms. 148 ; and see 
 
 V. Kancie ; and Nurton v. Nurtoii, Burling v. Stonnard^ 2 P. Wms. 
 
 ihid. 150 ; and Andrew t. Wrigley, 4 
 
 (/>) 2 Vern. 444 ; 1 £q. Ca. Abr. Bro. C.C 137; and DicUenson Vo 
 
 358, |>U4, Lockyer, 4 Ves. Jun. 36. 
 
 satisfaction
 
 OF PUECHASE-MONEY. 4.^5 
 
 satisfaction of a private debt of the executor, iTas been hciden 
 good (*). 
 
 Eut in the first autliority on this head (t), it appears 
 that the testator had been dead two years before tlie 
 assignment, although . that circumstance is not mentioned 
 in the report {u) ; and it miglit, therefore, be supposed, 
 that the executor might in that case liave entitled himself 
 to the term, on account of advances made by him in his 
 trust {x) ; and it also appears that he was sole residuary 
 legatee (?/). On the former ground alone, the decision 
 perhaps cannot be supported ; for Lord Thurlow decided 
 differently in a case nearly similar, although between three 
 and four years had elapsed from the death of the testator to 
 the transaction (z). 
 
 With respect to the second authority on this head (a), 
 Jjord Kenyon expressly dissented from it in the case of 
 JBonney v. Ridgard {h) ; and in a late case (c), where an 
 oxecutor, shortly after the decease of his testatrix, trans- 
 ferred stock, p?rt of iier estate, to liis bankers, to secure 
 a debt due from him, and future advances ; the bankers 
 swore that they did not know or suspect, that the finuls 
 were not the property of the cxecutoT, either as executor 
 or devisee : and it appeared in evidence, that he represented 
 liimself as absolutely entitled to them, under the will, 
 
 («) Nugent V. GiflTord, 1 Atk, («) INIeacW. Lord Orrtry. 
 
 453 ; and Mead v. Lord Orrery, 3 (ft) 2 Bro. C.C. 433 ; 4 Bro. C. 
 
 Atk. 235 ; and see Itliell v. lieane, C 130 ; 7 V«s. Jun. 167, cited ; 
 
 1 Vrs. 215. and sec Andrew v. Wrijjiey, 4 
 
 (/) Nug.>nt V. Gifford. Bro. C.C. 125. 
 
 (k) See 4 Bro. C.C. 136. (ci Hill v. Simpson. 7 Ves. Jun. 
 
 ,ar) See 7 Ves. Jun. !07. 152; andst^i- LowiIht v. Lowther, 
 
 J/) See 17 V«'S. Jun. 163. ]3 \'cs, Jun.9j; and 17 Ves. Jun. 
 
 (r) Scott V. Tyler, 2 Dick. 724; 169. 
 
 2 Bro. C.C. 431 ; and sec 17 Ves. 
 Jun. 164, 
 
 '2 G i subject
 
 4.5(> OF SELING TO THK Am.ICATION 
 
 f;ubject to a trifling annuity, and a few Kina^l legacies; 
 although no fraud \vas proved, yet as gross uegligeTice 
 appeared in the hankers not inspecting the ^\\\\, the funds 
 v/crc holden to he liabk: to the legacies given by the will. 
 
 It seems clear, therefore, that an executor cannot now 
 dispose of his testator's property, as a security for, or in 
 payment or satisfaction of his own debts. 
 
 In a late case, however, where, a considerable time 
 after the death of the testator, part of the assets were 
 pledged with bankers as a security for monies advanced 
 at the time, and fatiu*e advances to the two acting exe- 
 cutors; a bill iilcd by co-executors, who had not acted 
 in the affairs of the testator, for delivery up of the assets, 
 ■was dismissed, but without deciding what the equity would 
 be if the title was nothing more than deposit, and the bill 
 had been filed by a legatee (rf). 
 
 3. If the executor sell at an undervalue, or to one who 
 has notice that there are no debts, or that all the debts are 
 ]vaid (e), or if there be any express or implied fraud or col- 
 lusion between the executor and purchaser, the sale cannot 
 be supported (f). 
 
 Fraud and covin will vitiate any transaction, and turn 
 it to a mere colour. If one concerts with an executor, 
 or legatees, by obtaining the testator's effects at a nomi- 
 nal price, or at a fraudulent undervalue, or by applying 
 the real value to the purchase of other subjects for his 
 own behoof, or in extinguishing the private debt of the 
 
 (d) M<Leod r. Drummonil, 616 ; 7 Vin. 43, pi. 13 ; 18 Vin. 
 14 Vcs. Juti. 353 J 17 Ves. Jun. 121, pi. 11, side notes; Bonney v, 
 152 ; and see Fan v, Newman, 4 llidgard, 2 Bro. C. C. 438, cited j 
 
 Term Rep. 621. ^^^^J^^ffjiyj ^"S*^"* ^'- C^'^^o^d, 1 Atk. 463 ; 
 
 (e) See Ewer V. Corbet, 2 P. 'and see Giib. Eq. Rep. 113; 
 Wms. 148. Free. Cha. 434; and Whale t. 
 
 (/) Crane T. Drake,\ 2 Vern. Booth, 4 Term Rep. 625, n. 
 
 executor,
 
 OF PT^{C^ASE-MO\E^'. 4.">7 
 
 ipxecutor, or in any other maTDwr, {whlAi Ivord Eklon 
 iias said, are very material Avords (^),) contrary to tl.e 
 iluty of office of executor, sucli concert will involve ti!^^ 
 seeming purchaser, and make him liable for tlie full 
 ■value {h). 
 
 4, But if the le<^atee permit a long time to claps? 
 A\ithout asserting his claim, and tliere are several mesne 
 purchasers, equity will not set aside the sale, although there 
 are suspicious circumstances of fraud it). 
 
 5, And althougli the legatee has only a contingent in- 
 terest, yet that will be no excuse for delay (A); because 
 he has such an interest as will entitle him to know what 
 debts the testator owed, and wliat part of his estate ha? 
 been applied to the papnent of them. And in Ilo worth 
 V. Powell, it was laid down by l^ord Keeper Henley, 
 that a party having a claim in remainder to an estate, 
 though not to the possession, if he sees tlie possession 
 wrongfully usurped, ought to file his bill for relief before 
 liis right to jx)ssession accrues : for otherwise he stands by 
 and countenances the possessor in his exercise of acts of 
 ownership (/). 
 
 6, It remains to observe, that Lord Hardwickc thought 
 Ok) the reversal of the case of Humble v. Bill {71) might 
 be proper, because the charge was upon a particula?' part 
 of the estate: his liordship not, however, meaning to im- 
 ))ugH[ the general doctrine, which he frequently admitted, 
 Tiud indeed carried further than any other judge. 
 
 This distinction Lord Ilardwicke appears to have been 
 
 i§r) 17 Vcs. Jun. 167. (A) Andrew v. Wrigley, 4 Rro. 
 
 CO Per Lord Thurlow, 2 Dick; C.C. 125. 
 
 725 ; and see 1 Burr. 475. (/) Ch. T. T. 1758, ^'^^•^^^^^i^^^'^^ y^ 
 
 (i) Bonnoy v. Ridgard, 2 Bro. (»«) See Mend v. Lord Or^ry, \/>y 
 
 C.C. 438j 17 Vei. Jun. 97, cited; 3Atk.2n; and see 17 Ves.Juu. 
 
 and Bee 17 Ves. Jna. 165. 161> 162. 
 
 (n) SuprOf p. 454. 
 
 inclined
 
 458 OF Ari'r,icATroN of purchase-money. 
 
 inclined to follow, in a case (o) where a specific legatee of 
 a mortgage bronglit a bill to foreclose against the represen- 
 tative of the mortgagor, who pleaded an account settled 
 between him and tlie executor of the mortgagee, and a 
 release. For his Lordship tliought the devisee had a 
 specific lien on the estate, and as the mortgagor had notice 
 of the bequest, he was bound by it. And he was inclined 
 to overrule the plea of the release ; but the case of Ewer v. 
 Corbet (p) being cited, it was ordered to stand for an answer, 
 with liberty to except. The case was afterwards debated 
 on several days, and the Chancellor ultimately determined, 
 that the plaintiff had not equity sufficient to support his 
 bill, and accordingly dismissed it, but without costs (q). 
 
 Upon principle as well as upon the authority of Langley 
 and Lord Oxford, the better opinion clearly is, that a par- 
 ticular chattel specifically bequeathed may be purchased 
 from an executor, but certainly, in most cases, such a piu-- 
 chase could not be recommended without the concurrence of 
 the legatee, because, independently of the general question, 
 the executor may have assented to the bequest (?'). 
 
 7. But of course this question cannot arise, where the 
 specific legatee of the chattel is also executor (s). 
 
 (o) Langley V. Earl of Oxford, (q) See Reg. Lib. B. 174/, fol. 
 
 Anibl. 17 ; and see Elliot t. Mer- 300, 
 
 ryman, Barnard. Ch. Rep. 78 ; (r) See Thomlinson t. Smith, 
 
 and Andrew v. Wrigley, 4 Bro. Finch, 378. 
 
 C. C. 125. (^^ Taylor v. Hawkins, 8 Vcs. 
 
 (j)) Supra, p. 454. Jun. 209. 
 
 CHAP,
 
 [ ^^9 ] 
 
 CHAPTEK XT I. 
 
 OF THE VENDORS LIEN ON THE ESTATE SOLD TOR THE 
 PLrRCHASE-MONEY, IF NOT PAID. 
 
 i> VV irERE a vendor delivers possession of an estate to a 
 })urcliaser, witliout receiving the purchase-momey, equity, 
 whether the estate be («) (I) or be not {b) conveyed, and 
 although there was not any special agreement for thatpur- 
 po.so, gives the vendor a lien on the land for tlie money ; so, 
 on the other hand, if the vendor cannot make a title, and 
 the purchaser has paid any part of the purchase-money, it 
 seems that he has a lien for it on the estate, although he may 
 have taken a distinct security for t?ie money advanced (c) 
 
 (11). 
 
 (a) Chapman v. Tanner, 1 Vern. 329. 
 
 267 ; Pollexfen v. Moore, 3 Atk. (b) Smith v.Hiljhard, 2 Dick. 
 
 272; and see 1 Bro. C. C. 302, 730; Charles v. Andtcws, 9 
 
 424 ; and 6 Ves. .lun. 483 ; Mack- Mod. 152. 
 
 veth V. Symniou.s, 15 Ves. Jun. (c) Lacon v. .Merlins, 3 Aik 1. 
 
 (I) But note, that in Chapman v. Tanner, (See Ambl. 726, 6 Ves. Jun. 
 757) and Pollexf* n v. Moore, there were special agreements (hat the 
 vendor shouKl keep the writini^s. Indeed, in the latter case, |>095e88iOft 
 had not been delivered. See INlr. Sanderi'i note to the case in his edition 
 of Atkins. 
 
 (II) An to chattel* ropabI« of delivery, as timber felld, see ct parft 
 Cvfyncj 12 VcB. Jun. 379. 
 
 But
 
 ^.. *^60 , OF THE vendor's LIEN TOR ^ 
 
 But equity v.'ill not raise this equitable lien m favour of 
 ii papist incapable of purchasing (<^), for that would give him 
 au interest in land. 
 
 If a vendor take a distinct and independent security for the 
 purchase-money, his lieu on the estate is gone ; such a secu- 
 rity is evidence that he did not trust to the estate as a pledge 
 for his money (c). 
 
 Thus, upon the sale of an estate, the vendor accepted 
 f^ome stock for the money (/'), -vvith an agreement, that in 
 case it did not within a limited time produce a Kum named, 
 the purchaser should make it up that sum. The stock 
 proved deficient ; and Sir William Grant held, that the 
 vendor had no lien on the estate for the deficiency : he 
 thought that the vendee could not have any motive for part- 
 in<r with his stock, but to have the absolute dominion over 
 the land. It was impossible, his Honour said, that it could 
 be intended that the vendor should have this double security, 
 an equitable mortgage and a pledge, which latter, if the 
 stock should rise a little, would b€ amply sufficient to answer 
 the purchase-money. 
 
 And the same rule must, it has been said, prevail where 
 a vendor accepts a mortgage of another estate for the pur- 
 chase-money, the obvious intention of burthening one estate 
 being, that the other shall remain free and unincumbered 
 {g) ; so, even where the vendor takes a mortgage of the 
 estate sold for only part of the piu-chase money ; because by 
 taking a mortgage for part, he clearly evinces his election, 
 that the estate should be charged with that part only (A). 
 
 (<i) Harrison t. Southcote, 2 Jun. 752 ; but see Lord Eldon's 
 
 Ves. 389. obseriations, fost. 
 
 (e) See 6 Vei. Jun. 483 ; and (g) See Nairn r. Prowse ; but 
 
 see the obseryations of Lord Eldon see 15 Ves. Jun. 341. 
 
 on this case in 15 Ves. Jun. 348, (h) Bond r. Kent, 2 Vern. 281 ; 
 
 349 see 1 Scho. and Lef. 135, 
 
 (/5 Nairn r. Prowse, 6 Ve». 
 
 Lord
 
 PURCHASE-MONEY U:nP.\,ID. 4€\ 
 
 Lotd ElJon, however, has said, that it did not appear to 
 bim a violent conclusion as between vendor and vendee, that 
 not\\-ithstanding a mortgage, the lien should subsist (?'). It 
 must not, he added, be understood, that a mortgage taken is 
 t-o be considered as a conclusive ground for the inference, tliat 
 a lien was not intended, as he could put many instances, 
 that a mortgage of another estate for the purchase-money, 
 would not be decisive evidence of an intention to give up 
 the lien, t|iough in the ordinary case, a man has always 
 greater security for his money upon a mortgage, than value 
 for his money upon a purchase ; and the question must be, 
 whether, under the circumstances of that particular case, 
 attending to the worth of that very mortgage, the inference 
 arises. In the instance of a pledge of stock, does it neces- 
 sarily follow that the vendor consulting the convenience of 
 the purchaser, by permitting him to have the chance of the 
 benefit, therefore gives up the lien which he has? The 
 doctrine, as to taking a ruortgage or pledge, would be carried 
 too far, if it is understood as applicable to all cases, that a 
 man taking one pledge, therefore necessarily gives up ano- 
 ther, which must, his Lordship thought, be laid down upon 
 the circumstances of each case, rather than universally (^). 
 
 But it seems, that taking a covenant, bond, or note, for 
 the purchase-money, ^vill not aft'ect the vendor's lien. 
 
 This was settled by the case of Heanie v. Botclcrs (/), 
 where a bond vras taken for the money, and some of it re- 
 7TQained unpaid, and the bond vvas lost ; for the o])iuion of 
 the court was to charge the defendants, in re/T^ard of the 
 laiid in tJieir possession, witli the payment thereof; on tlu^ 
 ground, it should seem, that taking a bond did not deprive 
 
 (t) St-e 15 Ve-s. Jim. 341 ; and (/' Cnry's l*fp. C'lin.CS ; ami «»•« 
 
 see Cowell v. Simpson, 16 V»e. 'i'arclillL' v. Scrii^han, 1 Jiro, C.C 
 
 .Tun. 278, 280. '122, ciud : and Unrrison v Soutli-. 
 
 (A.) Mackrelh v. Symmons, lo cot'-, 2 \'os. 38'^. 
 Ves. J;in. 318, 3:;9. 
 
 the
 
 462 OF TliE TENBOR*S LI F.N FOR 
 
 the vendor of his cTiiitable lien -, for unless he had sucH a 
 lien, the loss of the b-nid would hardly be a ground to charge 
 the money on the estato (m). 
 
 So in Gibbons v. Baddall {7i), it was said, that if A sells 
 an estato, and takes a promissory note for part of the pur- 
 chase-money, C'\id then the piu'chaser sells to B, who has 
 notice that A had not received all his purchase-money, the 
 land in equity is chargeable in the liaiids of B, with tlie 
 money due on the note. In this case, therefore, the existence of 
 the equitable lien was considered as a point perfectly settled. 
 
 But in Fawell v. Heelis (o), where a receipt was indorsed 
 on the deed for the purchase money (I), although it was not 
 actually paid, and the vendor took a bond for the purchase- 
 money, Lord Bathurst held that he had thereby departed 
 with his lien. He said, he did not find an instance where a 
 bond had been taken for the consideration money {p). It 
 was evident the vendor had an opinion of the purchaser at 
 the time, otherwise he would not have let the money remain 
 in his hands. I consider it, he added, as a transaction dis- 
 tinct, and independent of the purchase : he lends him the 
 money, and he chooses his security, and I think he must 
 abide by it ; therefore let the bill be dismissed. 
 
 (oi) But see 15 Ves. Jun. 338, (o) Auibl. 724, 1 Bro. C. C. 
 
 343, per Lord Eldon. 421, n.; 2 Dick. 485. 
 
 («) 2 Eq. Ca. Abr. 682, n. (b) (p) fide Ilearne v. Botelers, 
 
 to (D). Ex parte Vedk'', 1 Madd. Rud Gihcons v. Ba.dda.\\,ubisiq)ru. 
 3.46. 
 
 (I) This of course could not make any difference in the case, for a 
 receipt for the purchase-nionpy, although signed by the seller, is in 
 equity of no avail if fho money be not actually paid. See Coppin t. 
 Coppin, 2 P, Wms. 291 ; but at law the receii t cannot be got over, 
 Kovrntree v. Jacob, 2 Taunt. 141, unlfss merely fraudulent, Henderson 
 V. Wild, 2 Cauipb. 561 ; and in equity payment will be presumed after a 
 grent length of lime, Bidlake v. Arund^.-l, 1 Cha. Rep. 93. 
 
 In
 
 PURCHASE-MONEY UNPAID. 463 
 
 111 a subsequent case (^), however, Lord Kosslyn was 
 decidedly of opinion against the doctrine laid down by Lord 
 Bathurst. After commenting on otlicr cases, he said, the 
 case of Fawcll and Hechs remained : there Lord Bathurst 
 doubted whetlier there was such an equitable lien ; it 
 became, therefore, of great consequence that it should be 
 spoken to. It struck him always, he said, that there was 
 such a lien, and that it was so from the foundation of the 
 court. A bargain and sale must be for money paid. If 
 an estate is sold, and no part of the money paid, the vendee 
 is a trustee : then, if part be paid, was it not the same as 
 to that which was unpaid ? 
 
 In the late case of Nairn v. Prowse (;'), the JMaster of 
 the llolls seemed to incline to the same opinion. He said, 
 that by conveying the estate without obtaining payment, a 
 degree of credit was necessarily giwMi to the vendee. That 
 credit might be given upon the confidence of the existence 
 of such a lien. The knowledge of that might be the motive 
 for permitting the estate to pass without payment. Then 
 it may be argued, that taking a note or bond cannot mate* 
 rially vary the case. A credit is still given to him, ami 
 may be given from the same motive ; not to supersede tlie 
 lien, but for the purpose of ascertaining the debt, and 
 countervailing the receipt indorsed upon the conveyance. 
 
 And in a case where a receipt was given for the whole 
 purchase-money, but part was retained, and a promissory 
 note given for it to a trustee for the vendor, there being 
 debts affecting the estate, the amount of which was not 
 ascertained. Lord Redesdale held, that it lies on the pur- 
 chaser to shew that the vendor agreed to rest on the colla- 
 teral security; prima facie the purchase-money is a lien ou 
 
 {q) BlacklMini v. (ircgson, 1 cilti! ; and 15 \'cs. Jun. 336, 337. 
 
 Cox, 90 ; 1 Bio. C. C. 4^0; and (r) 6 Ves. Jim. 752. 
 
 seeTardiflTe y. Scrughan, Hid. 423, 
 
 the
 
 4Ci OF THE Vendor's liy.s fou 
 
 the laiuls. In this case, liis Lordship said, that the pur^ 
 chaser's note was nothing but a mere memorandum, put 
 into the hands of a trustee, to enable the purchaser first to 
 pay oft' incumbrances, and tlien to be subject to an account, 
 and tlie balance only to be received by the vendor. It 
 cannot be considered that the vendor relied on it as a secVr- 
 rity. Suppose bills given as part of the purchase-money, 
 and suppose them drawn on an insolvent house, shall, lii* 
 Lordship asked, the acceptance of such bills discharge thu 
 vendor's lien ? They are taken, he added, not as a security,^ 
 but as a mode of payment {s). 
 
 And in a late case, where the purchase-money was paid 
 by bills drawn by the purchaser and accepted by him and 
 his partner, payable to the seller's order, the Master of 
 the Rolls determined that the lien was not gone (/). It 
 was insisted, that by taking bills accepted by the partner- 
 ship, th« vendor got the security of a third person, which 
 must be considered as a substitution for the lien. His 
 honour observed, that what might be the effect of a security, 
 properly so denominated, of a third person, had never, he 
 believed, been absolutely determined ; but he perfectly con- 
 curred in the opinion expressed by Lord Redesdale in 
 Hughes V. Kearney (w), that bills of exchange axe to be 
 considered not as a security, but merely as a mode of pay- 
 ment. That is obvious from attending to the nature of a 
 bill of exchange ; it is an order by the drawer for the pay- 
 ment of money which he has in the hands of the drawee 
 to the holder of that bill. The acceptor, by his acceptance, 
 acknowledges that he has money belonging to the drawer 
 in his hands, and engages to have that money forthcoming 
 iiccording to the requisition of the bill. The acceptor is 
 
 (j) Hughes T. Kt-arney^ 1 Scho. Bea. 306. 
 ana Lef. 132. (y) 1 Scho. and Lef. 132, Sta 
 
 t) Grant v, Shil}?. 2 Yes. and 136. 
 
 never
 
 PURCHASE-MONEY UNPAID. 465 
 
 never considered as a surety for the debt of another. Bv 
 accepting he admits himself to be a debtor to the drawer. 
 The subject of the bill is, in contemplation of law, the 
 drawer's own money, which he authorizes the creditor to 
 receive instead of receiving it himself, and afterwards hand- 
 ing it over to sucli creditor. 
 
 And in such cases it is not important that the note or 
 bill has been negotiated (a?). 
 
 The same point seems to have been decided in Comer v. 
 Walkley (z/). A trustee sold an estate for 720/. : GOOl. 
 was left in the purchasers hands as an indemnity against 
 an annuity ; and a deed was entered into between him and 
 the trustee, whereby he covenanted to pay interest on the 
 600/. and when the annuity should cease or be discharged, 
 to pay the money to the trustee. By several conveyances, 
 &c. tlie estate became again vested in trustees, upon trust 
 to sell ; and they sold the estate to a purchaser, who ob- 
 jected to complete his contract without the concurrence of 
 the person entitled to the residue of the GOO/, then unpaid. 
 Two bills were filed, one by the person entitled to tlie 
 residue of the 600/. against the purchaser and otlicrs, for 
 payment of it ; and the other by the purchaser, who liad 
 been in possession 22 years, for a specific perfomiance, 
 which was accordingly decreed, and his costs in both causes 
 were allowed. The proper accounts of the personal estate 
 were directed to be taken in the fii*st cause ; but the ques- 
 tion, out of what estates any deficiencies should be made 
 good, was reserved : so that it docs not appear that the 
 court held the money to be a lien on the land any further 
 than by giving the purchaser his costs in botli causes ; 
 which circumstance alone is, however, conceited to be de- 
 cisive. And the question has received the same decision in 
 
 (.r) Ex parte Loaring, 2 fj/M'pg. Lib. A. 1784, fol. 625 ; 
 
 Rose, 79. t-idc supra, p. 4*18. 
 
 2 II a rcccn
 
 466 OF THE VEXDOR'm l-IKN FOR 
 
 a recent case before Lord Eldon, after an elaborate reviciv 
 of all the authorities (z). 
 
 Upon the whole, therefore, it seems quite clear, that 
 taking a covenant, bond, or note, for the purchase-moneyy 
 or any part of it, will not discharge the vendor's equi- 
 table lien on the estate. And it seems tliat the same rule 
 must prevail although the estate is sold for an annuity, 
 and a covenant, bond, or note is taken for securing the 
 papuent of it (a). 
 
 In Elliot v. Edwards (h)^ the vendor assigned a lease- 
 hold estate to the purchaser, upon payment of part of the 
 purchase-money. The purchaser and another person as 
 his surety, covenanted for payment of the residue of the 
 purchase-money; and in the assignment was contained a 
 proviso, that the estate should not be assigned until all 
 the money was duly paid, without the joint consent of the 
 vendor and the surety. Lord Alvanley was of opinion, 
 that the vendor had an equitable lien, and that till the 
 money was paid, equity would not compel a specific per- 
 formance of any agreement by the assignee for sale of the 
 estate. 
 
 In Blackburn v. Gregson (c), Lord Rosslyii, as we 
 Jiave seen, said, that if an estate is sold, and no part of 
 the money paid, the vendee is a trustee: from which it 
 might perhaps be inferred, that a vendor has always an 
 equitable lien where no part of the purchase-money is 
 paid: but this cannot be considered as a general rule; it 
 being clear, that a vendor may depart with his lien, 
 
 (2) Mackreth ▼. Symmons, 15 (a) See Tardiffe v. Scrughan, 1 
 
 Ves. Jun. 329. The case has since Bro. C. C. 423, cited; but see 
 
 beenreheardby the Lord Chancel- Mackreth v. Symmons, 15 Ves. 
 
 lor, with the assistance of two Jun. 329, which, however, was a 
 
 judges, and now stands for judg- very particular case, 
 
 meat. -r/. ^~T"27~~ ~A' (^) 3 Bos. and Pull. 181. 
 
 ^ ^^ U\ //^// . ^'^ 1 ^°' ^' ^' ^2^- 
 
 although
 
 PURCHASE-MONEY UNP.MD- 467 
 
 although no part of the purcliase-moncy be paid. Indeed 
 the same i-ules seem to ])revail on this subject, w]ieth<'r 
 tlie whole, or only part of the purchase-money, remains 
 unpaid. 
 
 Where a security by bond or note is given for the pur- 
 chase-money, and it is intended that the vendor shall not 
 liave a lien on the estate for the monev, a declaration to 
 that effect should be inserted in the c(5nveyanec; which 
 would effectually prevent equity from raising a lien \x\ym 
 the presumed intention of the parties. 
 
 II. It must be remarked, that altliougli equity rais(?s 
 this lien in favour of a vendor, yet it is not extende<l to 
 tliird persons ; that is, where the vendor is satisfietl out of 
 tlie personal estate of the purchaser, in exclusion of a 
 third person, that person cannot resort to the equitabk* 
 lien of the vendor on the estate ; or, in other wonls, caa- 
 wot require the purchased estate ami the personal estate to 
 be marshalled. 
 
 Thus in the case of Coppiu v. Coppin [d), a younger bro- 
 ther purchased an estate of his elder brother, but part of thi? 
 purchase-motiey was not paid. The purchaser made his 
 will, charging his estate with great legacies ; but the will 
 was attested by only two witnesses ; afterwards the purchasef 
 died, leaving his brother, the vendor, his lieir and executor ; 
 and it was holden by Lord Clianeellor King, tliat he had 
 an equitable lien on the land; that he was cntitletl to retain 
 the purchase-money out of the assets ; and that the legartees 
 could not stand in his place with respect to tbc' equitabk 
 lien. 
 
 There is an imjwrtant case on this subject, which de- 
 
 i.d) Coppin r. Coppin, S«l. Cha Ca. '28; 2 P. \Vru». '^9\. 
 
 Q. \i "J mauds
 
 468 OF THE vendor's lien for 
 
 mands particular attention. The case to M'hich I allude 
 is Pollexfen v. Moore {e). It appeared that Thomas 
 Moore purchased an estate from Pollexfen, and had not 
 paid all the purchase-money; he devised the estate to 
 Kemp, and, subject to some legacies, made Kemp his 
 residuary legatee and executor. Kemp wasted the per- 
 sonal estate and died; whereupon the purchased estate 
 descended to Boyle Kemp, his son and heir at law. Pol- 
 lexfen filed his bill for pa}Tncnt of the remainder of the 
 purchase-money. Mrs. Moore, a legatee in Thomas 
 Moore's will, brought a cross-hill, praying that if the 
 purchase-money should be paid out of the personal estate, 
 she might stand in the purchaser's place as to his lien 
 on the land. Lord Hardwicke admitted that Pollexfen 
 had a lien on the estate for the remainder of the purchase- 
 money. But he said, that this equity would not extend 
 to a third person, but was confined to the vendor and 
 vendee only ; and if the vendor should exhaust the per- 
 sonal assets of Moore and Kemp, the defendant would not 
 be entitled to stand in his place, and to eome upon the 
 purchased estate in the possession of Kemp's heir. But 
 then the heir should not avail himself of the injustice of 
 his father, who had v/asted the assets of Moore, which 
 should have been applied in paying the defendant's legacy. 
 Therefore, Lord Hardwicke added, that the estate which 
 had descended from Kemp, the executor of IVIoore, upon 
 Boyle Kemp, came to him liable to the same equity as it 
 would have been against the father, who had misapplied 
 tlie personal estate ; and in order to relieve JMrs. Moore, 
 lie would direct Pollexfen to take his satisfaction upon 
 the purchased estate, because he had an equitable lien 
 both upon the real and personal estate; and would leave 
 this last fund open, that Mrs. Moore, who could at 
 
 (e) 2 Atk. 272. 
 
 most
 
 PURCHASE-MONEY UNPAID. 469 
 
 most be considered only as a simple contrict creditor, 
 
 might have a chance of being paid out of the personal 
 
 assets. 
 
 The decree was general, that the residue of the pur- 
 
 ihase-money and interest should in the first place be paid 
 out of the personal estate of the said Thomas Moore ; but 
 that in case it should appear that ]Moore did not leave 
 assets to pay what should be so due for tlie residue of 
 the purchase-money, and all his other debts, legacies, 
 DJid funeral expences ; or if the personal estate of Moore 
 was not then sufficient, by reason that the assets of Kemp 
 were not sufficient to answer such part thereof as came 
 to his hands, then such deficiency, " so far as the perso- 
 7ial estate of the said Thomas Moore shall he applied in 
 payment of the said purchase-money, (I) should be made 
 good out of the purchased estate, and a competent part 
 thereof was decreed to be sold accordingly. 
 
 Now in this case Lord Hardwicke, in giving judgment, 
 dearly agreed with the decision in Coppin v. Coppin, that 
 this equity did not extend to a third person. According 
 to the judgment, his Lordship deviated from that rule in 
 the case before him, on the ground ,of fraud. But I^ord 
 Hardwicke's decree cannot be satisfactorily accounted for 
 on this narrow ground. The decree was, that if Thomas 
 
 (I) The decree lias gem rally been considered at rariunce with fhe 
 judgment. In the first edition of this work, the author stated, (hat he 
 tould not seethe principle upon which the decree was made, if it -.vcre 
 correctly stated, that if the purchaser did not leave assets to pay (he pur- 
 chase.money, and all his debts, funeral expenses, and legacies, (he defi- 
 ciency was to be made good out of the purchased estate. St e 3 Atk. 27.'^, 
 II. 3. last edition. Upon searching the Register's book, it appears that 
 the decree was qnalified as stated in tlic text ; and (iiis emendation, wi'h 
 the observationn in (he text, will, i( is hoptd, conduct' to a rijjht un.lcr. 
 etanding of this case. See Keg. Lib. B. l/io, fol. 283» 
 
 '2n 3 ^loore
 
 470 OF THE vendor's ijen for 
 
 IMoore (the original purchaser) did not leave assets to pay 
 tlie residue of the purcliase-moncy, and all his debts, fri" 
 ncral expenses^ and Ic^aeies, then the purchased estate 
 and tlic jx^rsonal estate sliould be marshalled, so as to let 
 iu the simple contract creditors and legatees. This could 
 not be on account of the fraud in Kemp, the devisee and 
 executor. 
 
 It appe^ars by the register's book, that Pollexfen had 
 not delivered the title deeds and conveyance of the estate 
 to the purchaser, but had by agreement kept them in his 
 owTi custody as a security for the purchase-money unpaid ; 
 and lie strongly insisted by his bill, that he never intended 
 tlic deeds to have operation till all the money was paid (/y. 
 iViid this, it is apprehended, must have been the ground 
 on which the decree was pronounced. The seller had an. 
 equitable mortgage on the estate, and the ease therefore 
 oame within the general rule, as to marshalling (gj» 
 
 Thus explained, the case of Pollexfen v. Moore does not 
 in the least clash with Coppin v. Coppin, but appears to 
 establish an important distinction on this subject, viz, that 
 where the purchaser has an equitable mortgage on the estate, 
 or in case of fraud, the purchased estate and the persona 
 estate may be marshalled in favour of simple contract credi-. 
 tors and legatees. 
 
 The general question under discussion arose in a case 
 before Lord Eldon, but it was not necessary to decide it, 
 Pollexfen v. Moore, as reported, was the only case cited, 
 Tlie Lord Chancellor assimilated the lien to a charge, and 
 said, that the cases of mai"shalling seem to have gone this 
 
 f/)Reg, Lib. B. 1745, fol. 283, III. on appeal from the Rolls, is 
 
 (g ) Lutkins v. Leigh, For, 53 ; referred to ; and see O'Neal v. 
 
 Aldrich v.Cooptr, 8 Ves.Jiin. 397. Mead. 1 P. Wms. 693, and tb© 
 
 In wy copy of Forrester, Holds- cases in the note, 
 Morthv Holdsworth,Hill,23 Geo. 
 
 length
 
 PURCltASE-XONET UNPAID. 47I 
 
 length : tiiat, where there is a charge upon nn estate de- 
 scended, a legatee shall stand in the place of tlie person 
 liaving that charge, resorting to the personal estate. His 
 Lordship, however, gave no opinion upon the point, al- 
 though it is clear that the inclination of his opinion was in 
 favour of the legatee under the general rule {h). In a still 
 later case the very point came before the Master of the 
 Rolls, and called for a decision {i). The only case cited 
 was Pollexfen v. Moore, as reported in Atkins. His Ho- 
 nour said, that it was a very obscure report ; and it had 
 perplexed him very much formerly. The decision was 
 against that dictum of Lord Hardwicke. This could not 
 be distinguished from the common case of marshalling; 
 that a person having resort to two funds shall not by his 
 choice disappoint another, having one only : and a decree 
 was pronounced accordingly. 
 
 The reader will obsiTve, that tlie case of Cuppin v. 
 Coppin was not cited in eitlicr of the foregoing cases ; and 
 should the observations which hu\ e been made on Pollexfen 
 V. Moore be thought correct, it would seem that Lord 
 Hardwicke's decision was not in opposition to liis dictum in 
 the same case, cxprcssiA e of the rule establislied by Lord 
 Chancellor King, I'crhaps the common case of marshalling 
 may be thought not to apply to the point in question, when 
 it is considered that the equitable lien was originally raised 
 by the cwistruction of equity in favour of the vcudor only, 
 and not in favour of third persons. It seems to have been 
 thought in Coppin v. Coppin, and apparently with some 
 reason, that extending the vendor's lien to third ])ersons 
 would be breaking in upon the statute of frauds. The 
 general rule as to marshalling applies to cases where the 
 
 (A) See Austen v. Ilalsey, 6 (/) Trimmer t. Bayne, 9 W's. 
 
 Ves. Jun. 475; and see Cox's u. Jun. 209; and sec Headley v. 
 
 ( 1) to 2 P. VVms. 295. Roadhead, Coop. 50. 
 
 2 H 4 person
 
 172 or Tiir: vendor's lt£n for 
 
 person resorting to the personal estate has an actual charge 
 or lien on the real estate : but in this case, ifefjvitfj first deems 
 the purchaser a trustee for the vendor as to so much of the 
 estate as will satisfy thd purchase-money unpaid, and then 
 permits a disappointed legatee to stand in the place of the 
 vendor, it is creating a charge on the land in direct oppo- 
 sition to the statute of frauds. On sale of the estate, the 
 purchase-money becomes a debt payable out of the purcha- 
 ser's personal estate; and the equitable lien ought, it is 
 conceived, to be extended to only so much of the purchased 
 estate as the personal estate is insufficient to answer. The 
 vendor has not an original charge on the estate, but only 
 an equity to resort to it, in case the personal estate prove 
 deficient. In this view of the case an independent substan- 
 ti"e charge on the land is, in fact, created by equity in. 
 favour of a legatee, although, if the legacy was actually 
 imposed on the estate by a will not duly executed according 
 to the statute of frauds, the court is bound to say, that the 
 will cannot be read as to the charge. 
 
 It is with great deference that these observations are 
 submitted to the reader, after the high opinions which have 
 been given upon this point ; but as the case of Coppin v. 
 Coppin was not cited in the recent cases, and the effect of a 
 decision overruling that of Lord Chancellor King, does not 
 appear to have presented itself to the mind of the court, it 
 still seems open to contend, that the equity under considera- 
 tion cannot be extended to a third person, unless by reason 
 of a fraud, or on the ground of the vendor having an equita- 
 ble mortgage on the estate. 
 
 Since these observations were written, Lord Eldon, in de- 
 ciding the general question of lien, observed that he had 
 some doubt upon another point, whether the court will in 
 case of the death of the vendee marshal the assets, so as to 
 threw the lien on the purchased estate. It has been often 
 f:aid, and the case of Coppin v. Coppin, stated as an autho- 
 
 ritv.
 
 PUTl^HASE-MONEY UNTAID. 475 
 
 rity, that a court will not do that. Tlie Lord Chancellor 
 \\i his judgment takes no notice of that point. In that 
 ^iiiQ the heir happened to he the heir of the vendee, so that 
 the estate was at home, and irt was held that heing also the 
 executor, he was entitled to retain the purchase-money out 
 of the personal assets. Th.at decision requires a good deal 
 of consideration. If the estate had hecn in a third person, 
 the general doctrine as to a person having two funds to resort 
 to, might be thought to have an immediate application, and 
 the express terms of the decree in Pollexfen v. JVIoore, might 
 be found very inconsistent with it {J). On a subsequent 
 occasion, Lord Eldon observed, (in allusion to Lord Hard- 
 wicke's observation in Pollexfen v. ^loorc, before noticed), 
 that if the moaning was that he (fiOrd H.) would follow the 
 case of Coppin v. Coppin, and that if the vendor exhausted 
 the personal assets, the legatee of the purchaser should not 
 come upon the estate, there is gi*eat difficulty in applying the 
 principle, as it would then be in the power of the vendor to 
 administer the assets as he pleases : having a lien upon the 
 real estate to exhaust the personal assets, and disappoint ail 
 the creditors; who, if he had resorted to his lien, v.ould have 
 been satisfied, and in that respect, with reference to the 
 principle, the case is anomalous (A*). 
 
 TIL The observation of Lord Hardwicke before noticed, 
 that this equity would not extend to a third person, but was 
 Gonfined to the vendor and vendee only, is frequently ad- 
 duced to prove, that the lien does not exist when the estate 
 passes into the hands of a third person ; but by the latter 
 part of the same passage (/), it clearly appears, that this was 
 not Lord Hardwickc's meaning; and in A\^alki.r v. Prcs- 
 
 (/) 15 Vts. Jun. 338, 339. (') Videnpaf p. -168, 
 
 i^k) 15Ves. Jun. 315. 
 
 nicV
 
 /tu- 
 
 4>7i or THE vendor's i-ien for 
 
 wick {m\ Ivord Ilardwicke said, tliat tliis lien prevailed 
 against the purchaser, his heir, or any claiming under him, 
 •with notice of this equitable title; which evinces his meaxi- 
 ing to be, tliat the purchased estate, and the personal estate, 
 of the purchaser, could not be marslialled in favour of a third 
 person, although, as we have seen, he allowed it in Pollex- 
 fen V. j\Ioore, by reason of the equitable mortgage. 
 
 It appears then, that this equitable lien prevails against 
 the purchaser and his heir, and all persons claiming under 
 him with notice, although for valuable consideration (n). 
 
 I5ut it of course would not prevail against a bona fide 
 purchaser without notice : and the mere deduction of the 
 title to the estate from the first vendor by recital, will not be 
 sufficient to affect him, for that does not shew it wa^ not 
 paid for (o). 
 
 Persons coming in under the purchaser by act of law, as 
 assignees of a bankrupt (p), are bound by an equitable lien, 
 although they had no notice of its existence; because, as 
 the Master of the Rolls observes on another point, the as- 
 signment from the commissioners, like any other assignment 
 by operation of law, passes the rights of a bankrupt precisely 
 in the same plight and condition as he possessed them. 
 Kven where (as in this instance) a complete legal title vests 
 in them, and there is notice of an equity affecting it, they 
 take, subject to whatever equity the bankrupt was liable 
 
 to (q). ^^ ^^-^^/^ ^ • (f-J' 
 
 And creditors claiming under a conveyance from the pur- 
 
 (w) 2 Ves. 622. (o) See 1 Bro. C. C. 302. 
 
 (?{) Heart! v. Botelers, Gary's (p) Blackburne v. Gregson, 1 
 
 Cha. Rep. 25; Walker v. Pres. Bro. C.C. 420; Bowles v. Rogers, 
 
 wick, 2 Ves. 622; Gibbons T. Bad- 6 Ves, Jun. 95, n. a; ex parte 
 
 dall, 2 Eq. Ca. Abr. 682, n. (b) Hanson, 12 Ves. Jun. 346. 
 
 to (D); Elliot V. Edwards, 3 Bos. {q) See 9 Ves. Jun. 100; 2 
 
 and Pull. 181 ; Mackreth v. Sjm, Ves, and Bea. 309. 
 mons, 15 Ves, JuD, 329. 
 
 chaser
 
 PURCHASE-MONEY UNPAID. 475 
 
 jcliascr, arc bound in like manner as assignees (/), bccausie 
 they stand in the same situation as creditors under a com- 
 mission. 
 
 In Nairn v. Prowse (s) tlic question arose, ^vhether the 
 Hen of which we are now treating, should prevail against an 
 equitable mortgage, by deposit of title deeds; but the case 
 went off on another ground, and the point was not decided. 
 In Stanhope v. Earl Vcrney {t). Lord Northington held, that 
 a declaration of trust of a term in favour of a person, was 
 tantamount to an actual assignment; unless a siibsequent 
 incumbrancer, bo7ia fide, and without notice, procured an 
 assignment; and that the custody of the deeds respecting 
 the term, with a declaration of the trust of it in favour 
 of a second incumbrancer, was equivalent to an actual as- 
 signment of it; and therefore gave him an advantage over 
 the first incumbrancer, which equity would not take from 
 him. 
 
 Now* it must at one view be seen how strong the analogy 
 is between the point in question and this case. The only 
 difference between them appears to be, that in the case be- 
 fore Lord Northington, both the trusts were declared by the 
 parties ; whereas in the case under consideration, the trust, 
 or lien, is raised by equity, and not by express declaration, 
 and the trust or equitable mortgage is generally created by 
 the declaration of the parties; which circumstance, if it 
 tiu-n the scale either way, is certainly in favour of the mort- 
 gagee : so that, upon the authority of this case, we may 
 perhaps venture to say, that an equitable mortgage, by de- 
 posit of deeds to a person, bona Jidc, and without notice, 
 will give him a preferable equity ; aiul will overreach the 
 vendor's equitable lien on the estate for any part of tlic 
 piu*chase-Tnoney. "/- 
 
 {r) Fawell T. Ileelis, Ambl. and Bea. 119. 
 
 724; and see 1 Bro. C. C. 302. (0 Butler's note 1 to Co. Li«. 
 
 U) 6 VfB. JuD. 752; see 2 Vc». 290, b. Ch. July 27, 1761. 
 
 f /y:^ y yy / y - yv Before
 
 476 OF THE vendor's lien for purchase-money. 
 
 Before closing this subject it may be observed, that if a 
 purchaser deposit the deeds with a third person, as a colla- 
 teral security for part of the purchase-money, the seller, 
 although he obtain possession of the conveyance to him 
 from the depositary, and pledge it to persons who advance 
 money upon it bonajldc, cannot give them a lien beyond 
 the amount of the pm chase-money actually unpaid {ii). 
 
 (m) Hooprr V, RamsboCom, 4 Camp, Ca. 121 ; 6 Taunt 12, 
 
 "^^ ' y^w^^J^ - ^^-^ /^<^. >^//— 
 
 CHAP.
 
 [ 477 ] 
 
 CHAPTER Xlir. 
 
 OF THE CONSTRUCTION OF COVENANTS FOR TITLE. 
 
 SECTION I. 
 
 miere they run with the Land. 
 
 In a preceding chapter we have seen to what covenants 3 
 purchaser is entitled (a) ; and we are now to consider the 
 construction of covenants entered into by a vendor. 
 
 Covenants for title are termed real covenants, and pass to 
 the assignees of the land by the common laM', who may 
 maintain actions upon them against the vendor and his real 
 and personal rej^rescntatives {h) (I). And as the covenant* 
 
 relate 
 
 (fl) Ch, 9. Ro. Abr. 521 . (K ) pi. 6, Cro Car. 
 
 (6) Middlemore ?. Goodale, 1 503, 505 ; Sir Wm. Joues, 40o. 
 
 (I) A respectable writer has observed, that cestuis que use are 
 grantees within the statute 32 Hen. Vill. c. 34; and are therefore en- 
 titled to the benefit of all coviuants entered into by persons stlUng 
 lands, for securing the title of such lands, 4 Cruise's Dig. p RO, 8. 4i. 
 The statute of Henrj', however, appears only to relate to corenoixj 
 
 which
 
 478 OF THE CO^\StRUCTION OF 
 
 relate to the land, it seems that an assignee may maintain 
 an action on the covenants, although the covenants were 
 entered into with the original grantee and his heirs only (c) ; 
 and the right of action, even for a breach in the ancestor's 
 life time, will descend to the heir, and not to the executor, 
 where no actual damage was sustained by the ancestor (d). 
 So covenant will lie by the devisee of lands in fee, though 
 broken in the testator's life-time. For the covenant passes 
 with the land to the devisee, and is broken in the time of the 
 devisee ; for so long as the seller has not a good title, there 
 is a continuing breach. And it is not like a covenant to do 
 an act of solitary perfonnance, which not being done, the 
 covenant is broken once for all, but is in the nature of a 
 covenant to do a thing toties quoties, as the exigency of the 
 case may require {e). 
 
 (c) Co. Litt. 384, b. 385, a. ; and Selvr. 355 j King v. Jones, 5 
 
 Spencer's case, 5 Rep. 16; Bally Taunt. 418; 1 Marsh. 107; 4 
 
 V. Wellj, 3 Wils. 25 j Tatem v. Mau. and Selwr. 188. 
 
 Chaplin, 2 H. Blackst. 133. (<r) Kingdon v. Nottle, 4 Mau. 
 
 {d) Kingdon t. Nottle, 1 Mau. and Selw. 53. 
 
 which are a charge upon, or incident to reversions ; and a purchaser 
 of a reversion is under this act clearly entitled to the benefit of cove- 
 nants entered into by a lessee with the vendor, aJthoagh the estate is 
 vested in him by way of use under the statute of uses ; because, this 
 lust statute puts him in the place of his feoftee. Lee v. Arnold, 4 Leo, 
 27, S. C. Mo. 97, nom. Appowel v. Monnoux, Roll v. Osborne, Mo, 
 859. Where an estate is upon a purchase conveyed io A to uses, the 
 covenants for title ought to be entered into with A. The statute of 
 uses will of course turn the uses into possessions, and the cesluit que 
 trust will then be deemed assignees, and may take advantage of the 
 covenants by force of the common law, just as if the statute of uses had 
 not been passed, and the estate had been conveyed to them at once 
 by A, This, therefore, appears to be wholly independent of the statute 
 of 32 Henry VIII. 
 
 And
 
 COVr.XANTS FOR TITLE. 479 
 
 And as covenants entered into by a vendor with a pur- 
 chaser run ^\ith the land in the possession of his represen- 
 tatives or assignees, so on the other liand covenants entered 
 into by a purchaser with tlie vendor, respecting the land, 
 will also run with the land, and charge the representatives 
 or assignees of the purchaser in respect of it. 
 
 It is not, however, sufficient that a covenant is concerning 
 the land ; but in order to make it run with the land, tlierc 
 must be a privity of estate between the covenanting parties 
 if). Therefore, it seems that if the estate was, at the time 
 of the conveyance, mortgaged in fee, and the purchaser 
 should enter into a covenant respecting the land with the 
 vendor, the covenant would not bind the assignees of the 
 land, but would be a mere covenant in gross ; for the vendor 
 would, in contemplation of law, be a mere stranger, and 
 consequently there could be no privity of estate between him 
 and the purchaser. 
 
 And even where there is a privity of estate at the time of 
 the covenant, yet if a subsequent purchaser do not take the 
 estate of the original purchaser, he will not be bound by the 
 covenant. It seems difficult to conceive that this case can 
 exist. It occurred, however, in the late case of Roach v. 
 Wadham {g) ; an estate was conveyed to such uses as the 
 purchaser should appoint ; and in default of appointment, to 
 himself in fee, yielding and paying to the vendors, their 
 heirs and assigns, a perpetual fee farm rent, which rent the 
 purchaser, for himself, his heirs, and assigns, covenanted to 
 pay ; the estate was afterwards conveyed to a purchaser ; and 
 as it was holden, that the piurchaser was in under the power, 
 and not by virtue of the first purchaser's estate, it was ad- 
 mitted, on all hands, that an action brought against him by 
 
 (/) Per Lord Kenyoo, Webb firmed in the Exchequer Chamber, 
 T. Rmsell, 3 Term Hep. 393 ; 1 H. Blackst. 562. 
 
 Stoke? V. RuiBell, ibid. 678; «f- {i)G East. i'8^t. 
 
 the
 
 480 OF THE CONSTRUCTION OF 
 
 the original vendor, for the fee farm rent, was not maintain- 
 able, for he had not the estate of the first purchaser, but 
 took as if the original conveyance had been made to himself 
 Thi9 decision leads to the observation, that wherever a pur- 
 chaser is to enter into a covenant, which it is intended sh^li 
 run with the land, the vendor ought to insist upon the pur- 
 chaser taking a conveyance in fee, and sliould not permit the 
 estate to be limited to the usual uses to bar dower. 
 
 The proposition before stated, that it is not sufficient that 
 a covenant is concerning the land, but, in order to make it 
 run with the land, there must be a privity of estate between 
 the covenanting parties, seems to apply as well to covenants 
 entered into by a vendor, as to covenants entered into by a 
 purchaser. But the consequences of this doctrine are truly 
 alarming. In a great proportion of cases, the vendor has 
 either mortgaged the estate in fee, or is a mere cestui que 
 trust ; and if his covenants were to be deemed covenants in 
 gross, the assignees of the land could only compel perform- 
 ance of the covenants by the circuitous mode of using the 
 name of the first purchaser or his representatives, whom 
 at the distance of some years it might be very difficidt tp 
 trace. 
 
 ,, It seems impossible to get over the objection, by the 
 J&?yn of the covenant ; for although the vendor covenant with 
 the purchaser, his heirs, and assig7is, yet the assignee of the 
 lands will not be entitled to the benefit of the covenant, un- 
 less it run with the land iinder the general rule of law {h). 
 The only mode by which the difficulty can be avoided is, to 
 require the vendor to take a conveyance to himself in fee, or 
 to the usual uses to bar dower, previously to executing a 
 conveyance to the purchaser ; and this, I believe, has been 
 sometimes done since it was first suggested in this work. If, 
 
 (^)See Tempest's case, Clayf. 60; and see Palm. 55B, and Roach 
 
 V. Wadham, ubi sup. 
 
 indeed.
 
 COVENANTS FOR TITLE. 481 
 
 indeed, the objection should he thought to exist, it might 
 also be thought, that where the vendor conveys the estate to 
 the purchaser under the usual power of appointment, the 
 covenants will not run with the land : but this, it is con- 
 ceived, would be carrying the rule much too far ; and ther6 
 seems to be some ground to conteml, that even in Roach v. 
 Wadham, as the power was coupled with an interest, the 
 second purchaser might have been held to have come in 
 under, and to stand in the place of the first purchaser, so as 
 to satisfy the rule of law, although he did not actually, as it 
 was determined, take the estate of the first purchaser (i). 
 The point, however, was considered as clear, and was not 
 discussed either at the bar or upon the bench. 
 
 SECTION II. 
 
 Of their general Construction. 
 
 It hath already been observed (A), that the covenants usu- 
 ally entered into by a vendor, seised of the inheritance, are, 
 1st, that he is seised in fee : 2dly, that he has power to con- 
 rev : 3dly, for quiet enjoyment by the purchaser, his heirs, 
 
 (j) See and consider Co. Litt. v. Lord Godolphin, 2 Vci. 61 ; 
 215, b. 8. 10; Glover v. Cope, 1 and see 3 Wils. 26, at the bottom. 
 Show. 281; Hurd v. Fletcher, {!:) Supra, c\i. 3. 
 
 J)ougl. 43 ; Ouke of Marlborough 
 
 u J and
 
 482 OF THE COKSTEUCTIOK OF 
 
 and assigns : ithly, that the land shall be holdcn free from 
 incumbrances : and lastly, for further assurance. 
 
 The five covenants are several and distinct, but the first 
 and second of them are synonymous ; for if a man be seised 
 in fee, he has power to sell (/). But the converse of thit 
 proposition is not universally true (w). 
 
 A man having merely a povirei^ to appoint an estate, can- 
 not be said to be seised in fee of the estate, although he 
 has a right to convey ; and accordingly, in cases of this 
 nature, it is usual to omit the first covenant, and to msert a 
 covenant, that the power was well created, and ii not sus- 
 pended or extinguished. 
 
 Covenants for title are either general and unlimited, ex- 
 tending to the acts of all the world, or limited and restricted 
 to the acts of certain persons named in the deed; and 
 und^r tlvis branch of our subject we may consider, 1st, 
 to what, and against whase acts general and limited co- 
 venants extend : 2dly, in what cases restrictive words 
 shaD or shall not extend to all the covenants in the deed : 
 and Sdly, to what remedy a purchaser is entitled under 
 covenants for the title, in case he is evicted, or the title 
 prove bad. 
 
 I. First then, 1. Although covenants are general and 
 unlimited, and are not restricted to the acts of pers<Mis 
 claiming lawfully, yet it is now, perhaps, settled (n), although 
 
 (/) Nerrin t. Munns, 3 Lev. and Crosse v. Young, 2 Show, 425, 
 
 47 ; Browning t. Wright, 2 Bos. and the cases cited in the note to 3 
 
 and Pull. 13. Term Rep, 587 ; in some of which, 
 
 (m) See 4 Craise's Dig. 78, s. however, the point was not de- 
 
 SO. tided, but a distinction was taken 
 
 (h) Dudley v. Foliott, 3 Term between express and implied co- 
 Rep. 584 ; see Py, 238, a. marg. ; T«nanb, 
 
 the
 
 COVENANTS FOR TITLE.. 483 
 
 t)ie contrary was formerly liyldcn(o), that such a covenant 
 sliall not extend to a tortious eviction, but to evictions by 
 title only ; because the law itself defends every one against 
 a wrongful entry ; and therefore, if a purchaser be disturbed 
 in his possession by a person having no title, he has a remedy 
 at law against the wrong doer ; and if he be legally evicted, 
 he may recover against the vendor, in an action on the co- 
 venant. Lord C. J. Vaughan {p) adduces the four following 
 reasons why the covenants should not extend to tortious 
 evictions : I . It is imreasonable, as the vendor cannot 
 prevent the entry ; 2. the vendee has his remedy against 
 the wrong doer, and therefore ought not to charge an in« 
 nocent person ; 3. the vendee would have a double remedy 
 for the same injury ; 4. it might open a door to fraud, for 
 the purchaser might secretly procure a stranger to make a 
 tortious entry, that lie might charge the covenantor with an 
 action. And there is a case in the year-books in the reign 
 of Henry VIII. where the question was, whether a general 
 covenant in a lease should extend to an eviction by one who 
 had no right. Englefield said, that he should not have a 
 writ of covenant against his lessor when he is ousted by 
 tort, for there is no mischief, because he may have a writ of 
 trespass, or an ejectione Jirvice against the person who 
 ousted him ; but if he was ousted by one who had a title 
 paramount against whom he could have no relief, then he 
 may have a writ of covenant against his lessor. Quod fuit 
 concessum pe?' plusicurs {q). 
 
 2. But "where a vendor covenants to indemnify a pur- 
 chaser against a particular person by name, there it seems 
 tliat the covenant shall extend to an entry by that person, 
 
 (o) Mountfor»l V. Catesbj, Dj. Anon. 2 Ventr. -16 ; Anon. Loft. 
 
 328, a. ; see I Ilo. Abr. 430, pi. 460. 
 12; Shep. Touch. 166, 170; (jy) Vaugh. 122^ 
 
 Anon. L Frcem. 150, pi. 612 ^ (q) T. i6 H, 8, p!. 11. 
 
 S I 2 be
 
 484 
 
 OF THE CONSIRUCTIOX Of 
 
 
 1x5 it by droii or tort^ for it is to be presumed that sucli 
 person had an interest (r). 
 
 3. And where the covenantor himself docs any act as- 
 serting a title, it will be a breach of the covenant, although 
 be covenanted against lawful disturbances only, and the act 
 done by him was tortious, and might be the subject of an 
 action of trespass (.9). The contrary, however, was formerly 
 holden (/), It must, nevertheless, be an act asserting a 
 title ; therefore, if the seller went on the estate to sport, the 
 purchaser could not maintain covenant (w). 
 
 4. So a covenant against all claiming or 'pretending to 
 claim any right extends to a tortious eviction {cc). 
 
 5. And whatever opinion may anciently h^ve been en- 
 tertained (?/), yet it is now clear, that a suit in equity, by 
 which the purchaser is disturbed, is within a covenant for 
 quiet enjoyment against disturbances generally {z). It is» 
 however, customary to expressly extend covenants for title 
 to eqtiitable charges, disturbances, &c. 
 
 6. A covenant for right to convey extends not only to 
 the title of the covenantor, but also to his capacity to grant 
 the estate. Therefore, where, upon a conveyance by a man 
 and his wife, the husband covenanted that they had good 
 right to convey the lands, and the wife was under age, the 
 covenant was adjudged to be broken (a). 
 
 (r) Foster V. Mapes, Cro.Eliz. 
 212, Hob. 35 ; 1 Ro. Abr. 430, pi. 
 13 ; see Hayes v. BickerstafF, 
 Vaugb. 118. 
 
 (*) Lloyd V. Tomkies, 1 Term 
 Rep 671 ; Crosse v. Young, 2 
 Show. 425. S. C. MS. 
 
 (i) Davie v. Sache?ereU, 1 Ro. 
 Abr. 429, pi. 7. 
 
 («) See Seddon v. Senate, 13 
 Easf, 72. 
 
 (x) Chaplain v. Southgate, 10 
 Mod. 384 ; Com. 230 ; Perry t 
 Edwards, 1 Str. 400. 
 
 (y) Selby V. Chute, Mo. 859 ; 
 1 Brownl, 23 ; Winch, 116; 1 
 Ro. Abr. 430, pi. 15; and see S 
 Leo. 71. pi. 109. 
 
 (s) Calthorp t. Hayton, 2Mod 
 54 ; Hunt t. Danvers, Raym. 370, 
 
 (a) Nash t. .4.shton, Sir Tho. 
 Jones, 195, 
 
 In
 
 COVENANTS FOR TITLE. 4S.y 
 
 In respect to the persons against whose acts iiiaited cove- 
 nants will extend, it seems that, 
 
 1. A covenant fur quiet enjoyment against A, and any 
 other person by his means, title, or procurement, is broken 
 by the entry of a person in whose name A purchased jointiv 
 with his own name (b). 
 
 % In this case Mr. Justice Doddridge put many cases. 
 If a tenant in tail, to whom the estate tail y.asmade, makes 
 an estate and covenants as i)efore, and the issue ousts tlu> 
 covenantee, the ca>;enant is broken, because, being his pur- 
 <;hasc, the descent to his issue is by his means, although not 
 by his title. Brut if the issue make an estate and covenant, 
 and the issue of the issue enter, it is not broken, because 
 they are not in by his .means, but by -ilescent. But if there 
 be a lessee for life, remaind.Gi" over^ and the lessee make an 
 estate and covenant, and /He, and he in remainder enter, it 
 is not broken, because iie is in by the feoffor, not by the 
 lessee. But if a man enfeoff tipon condition to be enfeoffed 
 for life, remainder over, there it shall be otherwise, because 
 by his procurement and means; ct sic.de similihus. 
 
 3. So if A covenant for quiet enjoyment against all 
 -claiming by, from, or under him, a claim of dower by liis 
 wife is within the covenant: but otherwise, if the mother 
 of A claim her dower, because she does jiot claim by, from, 
 X)r under him (c). 
 
 4. A covenant for quiet enjoyment against A, or any 
 person claiming under him, extends to a person deriving 
 title under an appointment made by Ji, by virtue of a power, 
 although tlic estate did not move from A, and the estate of 
 the appointee is, according to the genv ral rule, considered 35 
 limited to him by tbe deed creating tlio powc-i-. 
 
 This was settled in the cat;e of Hurd \. Fletcher (<A. 
 
 rt) Butler v.S^virlnl•r(0Il, Paim. (f)(;o(Jl). 333 ; Palm. 3-10. 
 
 239 ; Cro. Jac Gb7 . (d) Dou^l i3. 
 
 i> I 3 Sir
 
 486 or THE CONSTRUCTIOy OF 
 
 Sir John Astley and his wife levied a fine of her estate to 
 the use of Sir John for life, with power of leasing ; re- 
 mainders over, with a joint power of revocation to Sir John 
 and Lady Astley They exercised this power, and subject 
 to the husband's life estate, and power of leasing and other 
 uses, wliich afterwards determined, limited the estate to Lord 
 Tankcrville in tail. Sir John afterwards granted a lease 
 not warranted by the power, and covenanted for quiet en- 
 joyment by the lessee, without any interruption by hirn, or 
 any person or persons claiming, or to claim by, from, or under 
 him. Lord Tankerville's remainder in tail having fallen 
 into possession, he evicted the lessee on account of the de- 
 fective execution of the power, whereupon the lessee brought 
 an action against Sir John's executors ; and it was holden, 
 that Sir John was a necessary party to the second declaration 
 of uses; and, therefore. Lord Tankerville claimed under 
 him, and the eviction was within the covenant. 
 
 5. It may be proper to mention, that the case of Butler 
 V. Swinnerton, which (to borrow an expression of Lord 
 Kenyon's) is the magna charta of the liberal construction of 
 covenants for title, is also stated in Shep. Touch. 171, 
 which goes on to state, " and so it is also, if A purchase land 
 of B, to have and to hold to A for life, the remainder to C, 
 the son of A, in tail, and after A doth make a lease of this 
 land to D for years, and doth covenant for the quiet enjoy- 
 ing, as in the last case, and then he dieth ; and then C doth 
 oust the lessee ; in this case this was held to be no breach of 
 the covenant:" and for this position, Swan's case, iSI, 7 and 
 8 Eliz. is cited, and no reference is made to any other re- 
 port of the case. Now this case, as it stands in Shep. 
 Touch, (a book of acknowledged authority) is in direct op- 
 position to the decision in Butler v. Swinnerton ; but from 
 other reports of Swan's case (e), it appears that there was no 
 
 («) Mo. 74, pi. 204j Dy. 257, pi. 13 ; Bendl. 138, pi. 208 j and 
 And. 12, pi. 25. 
 
 actual
 
 COVENANTS FOR TITLE. 4*7 
 
 att tml covenhnt in the lease, but merely a covenant in law 
 on the words " concessit ct dimisit;' and therefore the 
 judges thought the action did not lie, because the covenant 
 determined with the estate of the lessee. 
 
 6. A covenant for quiet enjoyment, quietly and clearly 
 acquitted of and from all grants, &c. rents, rent charges, he. 
 whatsoever, has been holden to extend to an annual quit- 
 rent payable to the lord of the manor, and incident to the 
 tenure of the lands sold, although there was no arrear of 
 the rent due (fj. 
 
 7. A covenant for quiet enjoyment against any interrup- 
 tion of, from, or by the vendor or his heirs, or any person 
 whomsoever, legally or equitably claiming, or to claim any 
 estate, &c. in the premises, by, from, under, or in trust 
 for him or them, or by, through, or with his or their acts, 
 means, default^ privity, consent, or procurement, was ad- 
 Judged to extend to an arrear of quit-rent due at the time 
 of the conveyance, although it was not shewn that the rent 
 accrued due during the time the vendor held the estate. 
 For the court said, if it were in arrear in his life-time, it 
 was a consequence oi law, that it was by his default; that 
 is, hy his default in respect of the party with whom be 
 covenants to leave the estate unincumbered (g). 
 
 In this case it was argued by tlie counsel for the vendor, 
 and apparently on very solid grounds, that to make the 
 vendor liable to the arrear of this rent, under his covenant, 
 would be tantamount to a decision that the covenant, 
 although limited, should extend to the acts of all the 
 world. The clear intention of the parties was, that the 
 vendor should covenant against his o^\•n acts only ; and yet 
 it should seem that the argument of the court would apply 
 
 (/) Hammond V. Hill, Com. 491. See and consider Urd Al- 
 7 JO T*nlcy'» judgment in Hesse t. 
 
 (^)HowciT. Brushfield,3Etst, StcTenson, 3 Kos and Tull. 
 
 o J 4 as
 
 488 Of t;i£ coNiTitutiioN or 
 
 as well to a mortgage, or any otlier incumbrance created 
 by a prior owner, as to an arrear of quit-rent, in paymcft 
 of which a former occupier made default. — The reader 
 should be cautious how he applies this decision to cases 
 arising in practice, as it may lead him to draw conclusions 
 not autliorised by prior decisions. 
 
 8. Wc should be careful to distinguish the foregoing 
 case from that (h) v/hcrc the lessor, reciting that he vim 
 seised of an estate of freckold., and inheritance in the 
 estate, covenanted for quiet enjoyment against himself, his 
 heirs, &c. or any other person or persons, lawfully claiming 
 by, from, or under him, &c. or by or through his, their, 
 or any of their acts, means, default^ or procurement. The 
 lessees were evicted by the remainder-man under a sctLle- 
 ment, and it appeared that the lessor could have obtained 
 the fee-simple by suffering a recovery. Lord llosslyn con- 
 sidered it to be clear, that on eviction by any person claiiD- 
 ing paramount to the lessor, they must, upon that eviction, 
 have imder the covenant in the leases satisfaction from lis 
 assets, The ground of this opinion must have been, that 
 the eviction was owing to the default of the lessor, in not 
 suffering a recovery. He assumed to be tenant in fee, and 
 the nature of his title rested in his own breast ; whether 
 the default aroKc from fraud or negligence, was to the les-: 
 sees immaterial. 
 
 II. Wc j;rc nov.- to con.^ifler in what cases rcstricti'«e 
 words added to some of the covenants only, shall extend to 
 all tlie covenants in tiie deed. 
 
 it m'»y be firsi. necessary to premise, that where cove- 
 nants are limited to particular acts, as to the acts of the 
 vendor for insuirxcc, the covenants are restrained \i\ the fo';- 
 
 (/?) Flatly C'hv.i.i v. Ful'uisc^,, 2 V'ts. Jur, i li ; stp lUg. I/tb. 0. 
 
 1799, io. 8i6. 
 
 lowing
 
 COVENANTS FOR TITLE. 15 9 
 
 lowing manner: "that for and notwithstanding any act, 
 deed, matter, or thing whatsoever, by him the said A. ihe 
 \endor, made, done, committed, or executed, or knowingly 
 or willingly suffered to the contrary thereof;" he is seised m 
 fee. And that, " for and notwithstanding any such act, 
 deed, matter, or thing whatsoever, as aforesaid," he has power 
 to convey. And that the purchaser, his heirs, and a^ssigns, 
 shall quietly enjoy *' without the intermption, kc. of A, or 
 his heirs, or any person claiming by, from, or under, or m 
 trust for him or them." " And t/mt" (I) free from incum- 
 brances made, or suffered " by A, or any person claiming by, 
 from, or under, or in trust for him." And lastly, that "A, 
 and all persons claiming any estate in the premises by, 
 from, or under, or in trust for him," shall execute furtiicr 
 assurances. But although this is the usual and technic<il 
 manner of restraining coAcnants, yet an agrct'ment, in any 
 part of a deed, that the covenants shall be restrained to the 
 acts of particular persons, will be good, although the cove- 
 nants themselves are general and inilirnitcd (/). 
 
 2. General covenants will not, however, be cut do\\'n, un- 
 less the intention of the parties clearly appears. 
 
 Therefore, in the case of Cooke v. Fowndes {k), where the 
 vendor covenanted that ho was seised of a good estate in 
 fee, accorJin;^ to the indenture made to h'nn by B, (of 
 v.hom he purchased,) it v/as determined to be a general en 
 
 (i) Brown V. Crown, 1 Lev. 57. (/.) 1 LfV. 40; i Keb. 9' 
 
 (I) This pronoun is u>fil cniphatic.illy. Yoa shall tnjoy tiie pjita'. . 
 and that fr»f> from incuivhrvnct ?. Dr. Johnson has pxtracft-d a passai^o 
 from the Duty of Man, in whirii (nt* word is used in the samo s«mi t : 
 " We must direct our [irajtrs to ri^ht tiids ; and that f\[\wr in rt'-p« ■ 
 of the prayer itself, or the thing;, wc prny for.'' It has, ho.tever, b< ' :. 
 thought that the word has < r- pt in'.j 'lit- .oirtDgii foni) of coTi-iiau;^ 
 through iiiadvf rteu<?v', 
 
 V(n\;MU ;
 
 400 OF THE CONSTRUCTION OF 
 
 venant ; for the reference to the conveyance by B, served 
 only to denote the limitation and quality of the estate, and 
 not the defeasiblene^s or indefeasibleness of the title. 
 
 In a modern case, where, in an assignment of a lease by 
 executors, they had co\'enante<l for quiet enjoyment without 
 any let, &c, of them, or either of them, their, or either of 
 their executors, administrators, or assigns, or any other 
 person or persons whomsoever, it was insisted at the bar 
 that executors can only be understood to covenant against 
 their own acts ; and therefore, that the words " any other 
 person or persons whomsoever," must be restrained to persons 
 claiming imder them. And it is, perhaps, not too much to 
 say, that the opinion of the court inclined to this constnic- 
 tion (Z). Wherever, therefore, executors or trustees agree to 
 enter into covenants extending beyond their own acts, the 
 agreement of the parties should be distinctly stated in the 
 recitals. '\^%i '^^.u-s^iiM.': . 
 
 3. In a case (m) where A and B were joint tenants for 
 years of a mill, A assigned all his interest to C, without the 
 assent of B, and died. B afterwards by indenture reciting 
 the lease, and that it came to him by survivorship, granted 
 the residue of the term to J. S. and covenanted for quiet 
 enjoyment of it notwithstanding any act done by him. B 
 also gave the purchaser a bond conditional to perform the 
 covenants, grants^ articles, and agreements in the assign- 
 ment ; and the purchaser having been evicted by C of the 
 moiety assigned to him, brought an action on the bond, and 
 obtained judgment. Lord Eldon (n) seems to consider the 
 judgment as having turned on the recital, and that the recital 
 itself amounted to a warranty. But the ground of the de- 
 
 (0 Noble T. King, 1 H. BUckst. 233. 
 
 34. (n) See 2 Bos. and PuU. 25 ; and 
 
 (m) Proctor v. Johnson, Yelr. see Seddon y.Senate^ 13 East, 63; 
 
 175 i Cro. Eliz. 809 ; Cro. Jac. Barton?. Fitigerald. 15 Ea»t, 530. 
 
 cision
 
 COVENANTS FOR TlTr.E. 491 
 
 eision appears to be, that the word grant in the assignment 
 Amounted to a warranty of the title, and was not qualified 
 by the ensuing particular covenant, because the grant was 
 of the whole estate, as appeared from the recital, and wa« 
 defective from the first as to a moiety, and the condition of 
 the bond was to perform all grants, &c. 
 
 It seems material to refer the case of Johnson v. Proctor 
 to the true ground of the decision, because if the case turned 
 solely on the recital, it might perhaps be thought that a 
 general recital in a conveyance of the inheritance of an 
 estate, that the vendor is seised in fee, would amount to a 
 general warranty, and would not be controlled by limited 
 covenants for the title — a proposition which certainly cannot 
 be supported. 
 
 4. Where restrictive words are inserted in the first of 
 several covenants having the same object, they will be con- 
 strued as extending to all the covenants, although they are 
 distinct. 
 
 ' Thus in Nervin v. Munns (o), the vendor covenanted, 
 1st, that notwithstanding any act by him to the contrary, 
 he was seised in fee : 2dly, that he had good right to con- 
 vey : 3dly, that the lands were clear of all incumbrances 
 made by him, his father, or grandfather : and 4thly, that 
 the vendee should quietly enjoy the estate against all per- 
 sons claiming under the vendor, his father, or grandfather. 
 And it was holden by three justices against North Chief 
 Justice, that the second covenant, although general, was- 
 restrained by the first covenant to acts done by the vendor. 
 
 So in Browning v. Wright [p), where a vendor who 
 claimed an estate in fee by purchase, sold the estate, and 
 covenanted first, that notwithstanding any thing by him 
 done to the contrary, he was seised in fee, " and that he 
 tiad good right, &c. to convey in manner aforesaid," it was 
 
 (o) 3 Ut. 46. (p) 2 Bos. and Pull. 15. 
 
 h olden
 
 492 OF THE CONSTKUCilON 01 
 
 holden that the generality of the latter covenant v^ne rc< 
 strained by the restrictive words in the former. P''or, in 
 the first place, the purchaser was, according to tlie general 
 practice, entitled to limited covenants only; and, in the 
 next place, the special covenants would be of no use, if the 
 other were general. Besides, the defendant having cove- 
 nanted that, " for and notwithstanding any thing by him 
 done to the contrary," he was seised in fee, and that he 
 hfid good right to convey; the latter part of the covenant, 
 coupled as it v»as with the former part by the words " and 
 that," must necessarily be over-ridden by the introductory 
 words " for and notwithstanding any thing by him done to 
 the contrary (g)." 
 
 Again, wlxCiO tenant pur aider vie leased for tv/enty- 
 one years, and covenanted that he had not done any act 
 hut the lessee should or might enjoy it during the years ; 
 afterwards, within the twenty-one years, cestui que vie 
 died; and it was adjudged that the covenant was not 
 broken, for " but" referred the subsequent words to tlie 
 preceding words (r). 
 
 So in Brou h<^on v. Conway {.s), a covenant that the 
 vendor iiad not done a:iy act to disturb the vendee, h^it 
 that the assignee might enjoy withoui, the disturbance of 
 him or any other p-crcWiy was held to be conrii;.,.;! to acts 
 done b'' th3 vendor, on the ground of the letter words 
 being only a continuation of and dependent on the preced- 
 ! ing mati fcT. In this case, however, one of the judges was 
 decidedly of a contrary opinion ; and certainly time were 
 express words to get over, namely, " or any other person ;" 
 '\vhich circumstance does not occur in any other of this lino 
 
 (q) Per Loid Alvanley, 3 Bos, {s) Py. 240, Mo. 68; and see 
 
 and Pull. 574. S, C. cited at\d applied by Lord 
 
 'r) Peles V. Jervies, Dy. £10, Elirnborough, C.J. 8 East, 89. 
 
 marg. Cro. He 615, pi. 5. fi^ /^S^, ^M^^. .^^_ 
 
 ^ of
 
 COVENANTS ron TITLE. 49 J 
 
 of* cases, in all of which the reader will perceive, that no 
 word was rendered iiioperative, but the introductory clause 
 was merely held to extend over all the distinct covenants, 
 in the same manner as a general introduction to a will fre- 
 quently influences the whole will. And in a recent 
 case (/), where the covenants were introduced with the usual 
 words, restricting them to the covenantors own acts, hut 
 the covenant for quiet enjoyment ended thus : " of or by 
 the said grantors or any of them, &c. or of or by any other 
 2)crson or persons whatsoever i" and tiie covenant against 
 incumbrances was general, excepting only a chief rent; the 
 Court of King's Bench determined, that tlic covenant for 
 quiet enjoyment was not restrained by the introductory 
 words of restriction, but was general and nnliTnited. I,ord 
 Kllenboica^h, C. J. in delivering the opinion of the court, 
 justly laid great stress on the covenant being a distinct 
 covenant from the covenant fcr title. He said, that it was 
 perfectly consistent with reason and good sense, that a 
 cautious grantor should stipulate in a more restiain<il and 
 limited manner, for the particular description of title which 
 he purports to convey, tlian for quiet enjoyment. H > .nay 
 suspect, or even know, that his title is, in ctrictncss of law 
 in some degree imperfect, but he may at the same time 
 know, that it has not become so I y any act of liis o^mi ; and 
 he may likewise know, that the im^jeifoction is not of such 
 a nature as to afford any reasonable chance of disturbance 
 whatever to those who should take under it ; he may, there- 
 fore, very readily take upon him an indemnity against an 
 event which he considers as next to impossible, wliilst he 
 chuses to avoid a responsibility for the strict legal perfection 
 of his title to the estate, in case it should be found at any 
 period to have been liable to some exception at the time of 
 his conveyance. 
 
 (/. Howell V. Richards, 11 Kast, 633. 
 ^ ^ ^^ ^ ^ , Perhaps
 
 494 OF THE CONSTRUCTION OF 
 
 Perhaps wc should in this place notice the case of Bar^ 
 ton V. Fitzgerald (w). It arose upon covenants in an as- 
 fiisnment of a lease. The lease was recited to be for the ; 
 term of 10 years, and the seller assigned the estate to the 
 purchaser for the residue of that term. The covenants 
 were, first, the common covenant, that the seller had done 
 no act to incumber, except an under lease; 2dly, "and 
 also," that the lease was subsisting, and not become void or 
 voidable ; Sdly, for quiet enjojTnent against the act of the 
 seller ; and lastly, for further assurance of the seller dining 
 the residue of the term. It appeared that the lease was for 
 10 years, if a person should so long live, and he died after 
 the assignment, but before the expiration of the 10 years, 
 by effluxion of time. And the Court of King's Bench held, 
 ihat the second covenant was general and unlimited, and 
 that by the death of the cestui que vie, the purchaser had 
 a good right of action. The judges relied principally on 
 tlie recital. The exception of the underlease, which was 
 for a term absolute, imported, they thought, that the sel-; 
 ler had a right to incumber absolutely for the term stated^ 
 and they were of opinion, that all the other covenants 
 would be operative, though the second were construed to 
 be absolute This case, it will be observed, depended upon 
 very particular circumstances ; independently of whi(^ it 
 should seem, that the covenant upon which the purchaser 
 recovered would have been restrained by the other cove- 
 nants. . ' , 
 
 5. But where the Jirst covenant is general, a siibsequent 
 limited covenant will not restrain the generality of the pre^. 
 ceding covenant, unless an express intention to do so appear, 
 or the covenants be inconsistent. 
 
 Thus in Gainsford v. Griffith (<r), on an assignment of a 
 
 (u) 15 Eait, 530. see 2 Bos. and Pull. 23, 25. 
 
 (X) 1 Saand.58; 1 Sid. 328; / ^^- ^/^<^, ^:^/ 
 
 leasehold
 
 COVENANTS TOR TITLE, 4^5 
 
 IcaSdtioM estate, the vendor covenanted, that thfe lea8« was 
 a good, certain, perfect, and indefeasible lease in the law, 
 and 80 should remain during the residue of the term, and 
 that the purchaser, his executors, administrators, and af- 
 signs, should quietly enjoy the premises without any ki, 
 denial, Sid by the vendor, his executors, or assigns; and 
 acquitted or otherwise saved harmless of all incumbrances 
 committed by the vendor* And it was holden, that the 
 generality of the preceding covenant was not restrained by 
 the latter covenant. 
 
 And in Norman v. Foster, Lord C. J. Hale said, — If I 
 covenant that I have a lawful right to grant, and that you 
 shall enjoy, notwithstanding any claiming under me ; these 
 are two several covenants, and the first is general, and not 
 c]fualified by the second. And to this Wylde, J. agreed, 
 and he said, that one covenant w«ut to the title, and the 
 other to the possession {y). 
 
 So in the late case of Hesse v. Stevenson {z ), where, on 
 an assignment of certaiu shares of a patent right, the as- 
 signor covenanted, that he had good right, &c. to convey 
 the shares, And that be had not by any means directly or 
 indirectly forfeited any right or authority he ever had or 
 nugbt have had over the same, it was decided that the ge- 
 nerality of the first covenant was not restrained by the lat- 
 ter covenant. LordAlvanley said, that the covenant, in- 
 stead of being framed in the usual and almost daily words, 
 where parties intend to be bound by their own acts only, 
 viz. " for and notwithstanding any act by him done to the 
 contrary," omitted them altogether. The omission of these 
 words was almost of itself decisive. Thd attention of the 
 purchaser was not called by any words to tin? intent of the 
 vendor to confine his covenant to his ovm acts. The court 
 ought not to indulge parties in leaving out words which arc 
 
 (>} 1 Mtxl 101. (2/ Bop. aad Pill 565, 
 
 ■ '• ordin>pl>
 
 \ 
 
 i^B OF THE COXSTKUCtlON OT 
 
 ordinarily introduced, and by which the real meaning of 
 Viie parties might be plainly understood. 
 
 6. And in cases of this nature, as, on the one hand, a 
 subsequent limited covenant does not restrain a precedin^^ 
 general covenant, so, on the other hand, a preceding gene- 
 ral covenant will not enlarge a subsequent limited covenant. 
 
 Thus in Trenchard v. Hoskins (a), a person being seised 
 of an estate granted under letters patent, conveyed it to a 
 purchaser, and in the conveyance the grant from the crown 
 was recited, and the title was deduced from the grantee to 
 the vendor, who entered into covenants, first, that he was 
 seised in fee ; secondly, that he had good power to conveys 
 and thirdly, that there was no reversion in the crown, not- 
 ivithstanding any act done by him. In grants of lands by 
 the crown, it is usual to reserve a reversion which the 
 grantee cannot bar. After great difference of opinion on 
 the subject, it seems to have been decided, that the re- 
 strictive words to the last covenant did not extend to the 
 two preceding ones; the court presuming the intention to be, 
 that the vendor should enter into an absolute covenant for 
 his seisin in fee, in all cases but one ; namely, that he 
 should not be liable on the objection of a reversion existing 
 in the crown, imless that reversion appeared to have been 
 vested in the crown by his own act (&). 
 
 7. Where the covenants are of divers natures, and con- 
 cern different things, restrictive words added to one shall 
 not control the generality of the others, although they all 
 rebate to the same land (c). 
 
 Thus, where A covenanted that he was seised in fee not- 
 withstanding any act done by him, and that the lands were 
 of a certain annual value ; the latter was holden to be an 
 
 (a) Winch, 9 1 ; 1 Sid. 328; see (6) See 2 l?os. and Pull. 25, pcT 
 
 2 Bos. and Pull. 19. Lord Eldon. 
 
 (e) See 3 Ler, 4;. 
 
 absolute
 
 COVENANTS FOU TITLE. 497 
 
 fibsolute covenant, that the lands were of the stated \a- 
 lue (d). 
 
 So in another case {e), where a man covenanted that le 
 Vvas seised in fee, notwitlistandinj^ any act done by liim or 
 any of liis ancestors ; and tliat no reversion was in the Vmpi 
 or any other ; and that the estate was of a certain annual 
 value ; and that the plaintiff and his heirs should enjoy tlie 
 estate discharged from all incumbrances made by him or 
 any of his ancestors, it was decided, that tlic covenant as 
 to value was an absolute and distinct covenant, and had no 
 dependence upon the first part of the covenant. 
 
 8. In the case of llich v. Rich ( /), a covenant " tliat 
 lands Were of tlie value of 1000/. per annum^ and so should 
 continue, notwithstanding any act done or to be done by the 
 covenantor," was holdcn to be only a covenant, that the co- 
 venantor had not lessened tlie value. 
 
 9. This subject must not be closed witliout observing, 
 tliat if general covenants are entered into contrary to the 
 inten.tion of the parties, equity will, on sufficient proof, cor- 
 rect the mistake in the same manner as errors are corrected 
 in marriage articles, and will relieve against any proceed- 
 ings at law upon the covenants, as they originally fctood(^^). 
 
 III. It still remains to say a few words concerning a pur- 
 chaser's remedy under covenants for the title ; and first, if 
 he be evicted, and the eviction is within the co\'enant, he 
 may bring an action at law for damages. 
 
 a. Rut, as wc have already seen, uidess the eviction be 
 
 ff/ lIiighPST.Bennptt, Cro. Car, f^) Coldcott v. Hill, 1 Clia. ix, 
 
 -195 ; I Joiips, 403. S. C. 15 ; 1 Sid. 328, cited } Fielder t. 
 
 (<?) Crayford v. Crayford, Cro. Studly, Finch, 90; see 12 Bo?, and 
 
 Car. 106. full. 26 ; 3 li.-s. and I'ull. J7.5 -, 
 
 {/) Ceo, KHz. 43, uud siif>ra,i). 136. 
 
 2 K >Nilliin
 
 433 Of THE CONSTKUCTION OF 
 
 within tlic covenant, or there was a fraudulent conceal- 
 ment of the defect, a purchaser cannot recover the pur- 
 chase-money, in case of eviction, either at law or in equity (//). 
 3. If the title prove bad, a purchaser may have recourse 
 to law for damages, or if the defect can he supplied by ihe 
 vendor^ lie may illc a bill in equity for a specific perform- 
 jiiice of the covenant for further assurance. And a vendor 
 who has sold a bad title, ^vill, under a covenant for fur- 
 ther assurance, be compellable to convey any title wliich he 
 may have acquired since the conveyance, although he actu- 
 ally purchased such title for a valuable consideration (i). 
 
 4. It seems that, under a covenant for further assur- 
 ance, a purcliaser may require a duplicate of the convey- 
 ance to be executed to him, in case he is compelled to part 
 with the original to a purchaser from him of part of the 
 estate {Ji). 
 
 5. So if the vendor become bankrupt, the purchaser 
 may call upon his assignees to execute further assurances, 
 although the vendor was only tenant in tail, and did not 
 suffer a recovery (/). 
 
 G. But if the original contract was not fit to be executed., 
 by equity, the court will not interfere in behalf of the pur- 
 chaser, but leave liim to his remedy at law (?w). And if the 
 title prove bad, and the purchase was made at a great un- 
 dervalue, equity will relieve the vendor against an action 
 on the covenants for title, allowing the purchaser his pur- 
 chase-money, with interest only, he discounting the mesne 
 profits (fi). 
 
 (h) Supra, p. 410. (/) P.^e v. Daubuz, 3 Bro. C.C, 
 
 (0 Taylor v. Debar, 1 Cha. Ca. 595. 
 
 274; 2 Cha. Ca. 212 ; see Sea- (m) Johnson v. Nott, 1 Verp 
 
 bourne V. Towell, 2 Vern;l]. 271. 
 
 (k) Napj)er t. Lord Allington, («) Zouch t. Swalne, 1 "\'ern. 
 
 1 Etj. Ca. Abr. 166. pl.4. 320. 
 
 7. An
 
 COVENANTS FOR TITLE. 499 
 
 T. An action for breach of a covenant for title (o) will 
 not be barred by the bankrnptcy and certificate of the cove- 
 nantor, although the cause of action accrued before the bank- 
 ruptcy. 
 
 Ivastly, it has been lately determined by the Court of 
 King's Bench, that an action of covenant does not lie 
 against a devisee upon the statute of fraudulent devises 
 {]}). No such remedy lies at common law, and tliercfore, 
 although a vendor die seised of real estates, yet if they 
 are devised by his will, a purchaser will not have any re- 
 medy against them, notwithstanding that the covenants 
 for title are broken, and there is no other fund to whieli 
 lie can resort for damao-es. Tliis construction of the act 
 must, in many instances, prove highly injurious to pur- 
 chasers, for certainly this point has never been adverted to 
 in practice (I). A purchaser may, however, guard against 
 the effecl of a devise of the vendor's real estates, by taking 
 a bond conditioned to be void if the vendor is seised in ic<^^ 
 and has good right to convey, &c. The penalty woidd be 
 a debt recoverable under the statute. Such a bond is how- 
 ever scarcely ever taken at the present day. 
 
 (o) Hammond v. Toulmin, 7 (p) 3 W. and M. c. 1 1 ; WiU 
 
 Term Rfip. 612 ; Mills V. Auriol, son v, Knubley, 7 East, 128. 
 1 Hen. Blackst. 433. 
 
 (I) The author in the last sessions prepared a bill to remedy this defect 
 in the statute of fraudulent devises, which pnssed the House of Cum. 
 mons, but was not read a second timi* in the House of LorJ>. 
 
 2 K 2 cir.\r.
 
 [ 500 ] 
 
 CHAPTER XIV. 
 
 OF THE PERSONS INCAPABLE OF PURCHASING. 
 
 U ndeR tilis heati we may consider, Ist, Who arc inca-^ 
 pable of purchasing absolutely for their o^vll benefit by the 
 general rules of law : and, 2dly, Who are incapable of 
 purchasing particular property, except under particular 
 restraints, on account of the rules of equity. 
 
 SECTION L 
 
 Of Persons incapable of Purchasing by the general 
 Utiles of Laic, 
 
 1 HIS incapacity is of three kinds : Ist, An absolute inca- 
 pacity : 2dly, An incapacity to hold, although an ability 
 to purchase : and, 3dly, An incapacity to purchase, except 
 sub modo. 
 
 I. First then. With respect to persons who are altoge- 
 ther incapable of purchasing. 
 
 The parishioners, or inhabitants of any place, or the 
 fchurohwardcns, are incapable of purchasing lands {a) by 
 those names. 
 
 (c) Co. Litt. 3 a. 
 
 But
 
 OF TERSONS IXCArABI,E OF JPURCHASIXG. 501 
 
 But it seems that in London, the parson and church- 
 'Wardens are a corporation to purchase lands {b). And 
 churchwardens and overseers are enabled, by statute law 
 (c), to purchase a workhouse for the poor, but this is 
 merely as trustees, and does not affect the general rule of 
 law. 
 
 II. With respect to persons who are capable of purchas- 
 ing, but incapable of holding : Tl^ey are, 
 
 1st, Aliens: for although they may purchase, yet it can 
 only be for the benefit of the king; and upon an office 
 found, the king shall have it by his prei-ogative (d). And 
 it seems that a^i alien cannot protect himself by taking tlic 
 conveyance in the name of a trustee, for tlie mischief is the 
 same as if he had purchased the lands himself (f). 
 
 But if an alien be made a denizen by the king's letters 
 patent, he is then capable of holding lands fJ'J ])urchased 
 after his denization. 
 
 And it seems, tliat if an alien purchase lands, and before 
 office found the king make him a denizen by letters patent, 
 and confirm his estate, the confirmation will be good ; as 
 the land is not in the king till office found ("gj. 
 
 2dly, Persons who have committed felony, or treason, 
 or have been guilty of the offence of prcmiuiire, and 
 afterwards purchase lands, and tlien are attainted; for 
 they have ability to purchase, altliough not to hold ; 
 and for that reason the lord of the fee shall liave the 
 lands ; but if they purchase after they arc attainted, tliey 
 
 (6) Warner's case, Cro. Jac. (e) The King v. HoIlaiiJ, All, 
 
 632 ; Hargraye's o. 4. to Co. LitL 1 i ; Sfy. 20, -40, 75, 84, 90, 91 ; 
 3a. 1 Ito. Abr. 194, pJ. 8. 
 
 (c) 9 Geo. I. c. 7. s, 4. (/) Co. Litt. 2 b. 
 
 id) Co, Litt. 2 b. is) Goulds. 29. pi. 4. 
 
 . 2 K 3 arc
 
 502 OF THE PEIISONS INCAFABLL 
 
 are then in the same situation with alicnB, and the lands 
 must go to the king {h). 
 
 Lastly, Corporations sole, or aggregate, either ecclesias- 
 tical or temporal, cannot hold lands without due license for 
 that purpose (i) : and the lord of the fee, or in default thereof 
 within the time limited by the statutes, the king may 
 enter {k). 
 
 III. With respect to persons capahle of purchasing siih 
 modo : T,]icy are, 
 
 1st, Infants under the age of 21 years, who may })ur- 
 ehase, and at their full age may hind themselves by agreeing 
 to the purchase ; or may wave the purchase wthout alleging 
 any cause for so doing : and if they do not agree to the pur- 
 chase after their full age, their heirs may wave the purchase 
 in the same manner as the infants themselves could have 
 done (/). 
 
 2dly, Femes covert, Vvlio are capable of purchasing, but 
 their husbands may disagree thereunto, and divest the whole 
 estate, and maintain trover for the purchase-money (?;?). If 
 a husband neither agree nor disagree, the purchase by his 
 Avife will be effectual ; but after his death she may wave the 
 ]uirchase, without giving any reason for so doing, although 
 her husband may have agreed to it. And if, after her hus- 
 band's death, she do not agree to it, her heirs may wave 
 
 it(/0. 
 
 {h) Co. Lilt. 2 b. ; sec Rex v. Litt. 2 b. 
 Inhab- of liaddenham, 15 East, (7/O Garbrand v. Allen, 1 Lord 
 
 463. Ilaym. 224 ; see Francis v, Wig- 
 
 (/) Co. Litt. 99 qi. zell, 1 .Madd. 258. 
 
 (/.) Co. Litt. 2 b. («) Co. Litt. 3 a. ; Barnf;i(hpr 
 
 (/) Ketscy's case, Cro. Jac. v. Jordan, Dougl. 152, 2d edit. 
 ^20; 1 Ro. Abr. 731 (K); Co. 
 
 Afcfnp
 
 OF rURCHASING. 503 
 
 A fhnc covert may, however, jnircliase lands pursuant 
 to an authority given by her husbauJ, and he cannot a^ oid 
 it afterwards (o). 
 
 fidly. Lunatics, or ideots, who arc capable of purchasing ; 
 but although they recover their senses, cannot themselves, it 
 should seem, wave the purcliase {p) : and if they recover and 
 agree thereunto, their heirs cannot set it aside. 
 
 If they die during their lunacy or idcotcy, then their 
 lieirs may avoid the purchase {q). -^Vnd as the king has the 
 custody of ideots, upon an office found he may annul the 
 purchase {r) : and after the lunatic is found so by inquisi- 
 tion, his committee may vacate the purchase (.s). 
 
 Lastly, under this head we may, perhaps, rank papists 
 and persons professing the popish religion (/), who have neg- 
 lected to take the oath prescribed by the 31 Geo. III. c. 
 32 {u). For a papist takes for the benefit of his protcstant 
 next of kin till his conformity ; for the benefit of himself 
 after his conformity ; and for the benefit of his heir after his 
 death — Nay, for the benefit of himself, during his life and 
 non-conformity, by reason of the action which is given him ; 
 and may therefore be said to be capable of purcluibin-- 
 siih modo [x). 
 
 (o) Garbranil v. Allen, ubi sup. 678 ; Ridler v. IliilUr, 1 Vx\. Ca, 
 
 {p) On this point see 2 Blackst. Abr. 279. 
 Comm 291, 7th edit. (0 S.o 1 1 and 12 W. HI. c. 'I ; 
 
 («7) Co. Lilt. 2 b. Michanx V. Grove, 2 Atk. 210. 
 
 (r)Co. I-itt. 217, a. (u) .See 13 Ceo. III. c. 30. 
 
 (v) Clerk by Goinmittpp v. (.i) .Sec Maliom v. Brini^lop, 
 
 Clerk, 2 Vern. ^112 ; .\ddison by WilKs, 75 ; C'^m. 570, S. U 
 Committee v. Dawson, 2 \'ern. 
 
 iitU T.
 
 [ 504. ] 
 
 SECTION II. 
 
 Of Purchases by Trustees, J gents, &^c. 
 
 W E come now to persons who are incapable of purchasing 
 particuhir property, except under particular restraints, on 
 account of the rules of equity. 
 
 I. It may be laid down as a general proposition, that trus- 
 tees iy), unless they are nominally so, as trustees to preserve 
 contingent remainders (z), agents {a), commissioners of bank- 
 rupts (6), assignees of bankrupts (c) (I), solicitors to the 
 
 commission 
 
 (y) Fox V. Mackrethj 2 Bro. 
 C. C. 400 ; 4 Bro. P. C. by Totn- 
 Iliis, 258 ; Hall V. Noyes, 3 Bro. 
 C.C. 483 ; and see 3 Ves. Jun. 
 748 ; Kellick r. Flexny, 4 Bro. 
 C.C. 161; Whichcote ▼. Law- 
 rence, 3 \'es. Jun. 740; Campbell 
 V. Walker, 5 Ves. Jun. 678 ; and 
 Whitackre v. VVhitackre, Sel. Cha. 
 Ca. 13. 
 
 (z) See Tarks v. White, 11 Ves. 
 Jun. 226. 
 
 (c) York- Buildings Company 
 V. Mackenzie, 8 Bro. P. C. 42 ; 
 Lowther v. Lowther, 13 Ves. Jun. 
 95 ; see Watt t. Groye, 2 Scho. 
 and Lef. 492. (^ 
 
 (b) Ex parte Bennet, 10 Ves. 
 Jun. 381 ; ex parte DumheWy Aug, 
 13, 1806 ; Mont, notes, 33, cited ; 
 ex parte Harrison, 1 Buck. 17.^ 
 
 (c) Ex parte Reynolds, 5 Ves, 
 Jun. 707 ; ex parte Lacey, 6 Ves, 
 Jun. 625. J^ /^^^ y^itVc, 
 
 (I) Lord Eldon has said, that the rule is to be more peculiarly applied 
 v<\\\i unrelenting jealousy in the case of an assignee of a bankrupt; 
 adding, that it must be understood, that, whenever assignees purchase, 
 they must expect an enquiry into the circumstances. See 6 Ves. Jun, 
 630, n. b. ; and 8 Ves, Jun. 346 ; 10 Ves. Jun. 395. And an assignee 
 xOk - . purchasing 
 
 />6. /oc,^^ 
 
 /(Ptt
 
 OF rURCHASINVr. 505 
 
 i2ommission (d), auctioneers, creditors who have been con- 
 Gulted as to the mode of sale {e), or any persons who, by 
 their connexion with any other person, or by being eni- 
 jiloyed or concerned in his affairs, liave acquired a knowlcdf^e 
 of his property, are incapable of purchasing sucli property 
 themselves ; except under the restrictions which will shortly 
 be mentioned. For if persons having a confidential cha- 
 racter were permitted to avail themselves of any knowledge 
 acquired in that capacity, they might be induced to conceal 
 their information, and not to exercise it for the benefit of 
 the persons relying on their integrity. The characters arc 
 inconsistent. JEmptor emit quam ininimo potest, venditor 
 vendit quam maximo potent (I). 
 
 The able counsel for the appellants in York-Buildings 
 
 {d) Owen V. Foulkes, 6 Ves, notes, 33, cited ; see 12 Ves, 
 
 Jun. 630, n.b.; ex parte Lira- Jun. 372. J'.^^^^'^- J'c^f . 
 
 wood ; ex parte Churchill, 8 Ves. (e) See ex. parte Hughes, 6 Ves. 
 
 Jun. 343, cited ; ex parte Bennet, Jun. 617 ; Coles v. Trecothick, 
 
 10 Ves. Jun. 381 ; ex parte Dum- 9 Ves. Jun. 234 ; 1 Smith's Rep. 
 
 bell, Aug. 13, 1806 J Mont. 233. 
 
 purchasing the estate himself, or permitting his co-assignee to purchase 
 it, will be a sufficient cause of removal. Ex parte Reynolds, 5 Ves. Jun. 
 707. 
 
 If an assignee purchase an estate sold under the commission, and upon 
 an accidental increase in the value of the property, he afterwards sells 
 it at a considerable advance, be cannot, upon discovering that he ouglit 
 not to have been a purchaser, pay th» dilFerence of the sales to the 
 general fund of the creditors. Ex narte Morgan, Feb. 24, 1806 ; Mont. 
 Notes, 31. x^^ if!^^^y^'^^ J> ^^ ^ 
 
 (I) This principle has been attended to in the general inclosure act, 
 which renders commissioners incap;ible of purchasing any estate in the 
 parish in which the lands are intended io be inclosed, either in the names 
 of themselves or others, until five years after the date ard execution of 
 the award, ^ Geo. 3, c, 109, s. 2. 
 
 Company
 
 50(5 
 
 or THE TEIISONS INCArABLE 
 
 Company v. Mackenzie ( /"), strongly observed, that tlic 
 ground on which the disability or disqualification rests, is 
 no other than that principle which dictates, tliat a person 
 cannot be both judge and party. No man can serve two 
 masters. He that is intrusted with the interest of otiiers 
 cannot be allowed to make the business an object of interest 
 to himself; because, from the frailty of nature, one who has 
 the power ;v'ill be too readily seized with the inclination to 
 use the opportunity for serving his own interest at the ex- 
 pense of those for whom he is intrusted. 
 
 But the rule has never been applied to a purchase by a 
 mortgagee from the mortgagor, and it is to be hoped that 
 it never will. In Ireland, many leases granted by mort- 
 gagors to mortgagees were set aside by Lord lledesdale, on 
 the ground that the transaction was usurious, although that 
 li?arned judge's successors have not been inclined ta carry 
 the principle as far as he did. In one case {g) it was ob- 
 jected that the decision might tend to impeach dealings 
 between mortgagor and mortgagee for a sale of the equity 
 of redemption. But Lord Redesdale said, that to this a 
 good answer was given at the bar. The cases are totally 
 different, the parties stand in a different relation : if tliere 
 be two persons ready to purchase, tlie mortgagee and ano- 
 ther, the mortgagor stands equally between them ; and if 
 tlie mortgagee should refuse to convey to another purchaser, 
 tlie mortgagor can compel him, by applying the purchase- 
 money to pay off the mortgage. It can therefore only be 
 for want of a better purchaser, that the mortgagor can be 
 compelled to sell to the mortgagee : hat courts view trans- 
 actions even of that sort between mortgagor and mort* 
 gagee, with considerable jealousy, and xvillset aside sales 
 
 {/) 8 Cro. P. C. 63, where the and Lef, 673 ; and see 1 Ball and 
 sutlioritiis in the civil law are Beatfy, 164; cu' pa/7e Marsh, 1 
 
 collec}e(l, Madd. 118. 
 
 (p^) Webb T, Korke, 2 Scho. 
 
 of
 
 or ruRCHASiNJ. 507 
 
 of the equity of redemption, where by the influence of his 
 incumbra7ice, the moiigagee has purchased for less than 
 others would have given, and there were circumstances vf 
 misconduct in his obtaining the purchase. 
 
 Perhaps the observation tliat " Courts view transaction.'; 
 even of that sort between mortgagor and mortgagee witli 
 €onsiderable jealousy," puts the doctrine higher than one 
 should wish to see it stand. A sale by a mortgagor to a 
 mortgagee stands on the same principle as a sale between 
 parties having no connexion with each other, and can only 
 be impeached on the ground of fraud : the mere circumstance 
 that the mortgagee purchased for less than another woukl 
 have given, would not of itself be a sufficient ground to im- 
 peach a sale, and Lord lledesdale, in stating that as an in- 
 gredient, adds also, circumstances of miscon(hict in obtaining 
 the purchase. Where a mortgagee sells under the general 
 order in bankruptcy, it is usual to apply for leave for liini 
 to ])id at the sale, where he intends to do so. But there be 
 may fairly be considered as the seller, and lie cannot, williout 
 the leave of the court, sustain tlic two characters of seller 
 ;ind buyer (//). 
 
 The principle has, however, been extended to a purchase 
 })y an attorney from his client, while the relation sul'- 
 sists (/). 
 
 So, a person chosen as an arbitrator, cannot buy u]! 
 the unascertained claims of any of the parties to tlie re- 
 ference : it would corrupt the fountain, and contaminate tlie 
 ,aw?ird (A'). 
 
 AVhere a person cannot purchase tlie estate liimself. lie 
 
 :h] Ex parte Du Canp, 1 Buck. S'.'/^S nhicli cite (he early I'asre. 
 
 18. ^^^^'^7 A^^^fyj^^ l/f) l^lcnnrrha-sstt v. D.iy. '- 
 
 it) S-'P Bcllfw V. RiissHI, 1 Hiill ami H-atty, 116; Cane v. 
 
 Rail aufl Boalty, 96 ; Vo^^ ,luii. Lord ;\l!(:i, 2 Pow. 2S9. 
 2063 13 V<s. Jun. 138, as to
 
 508 OF THE PERSONS INCAPAJiLE 
 
 cannot buy it as agent for another (/), and perliaps cannot 
 even employ a third person to contract or bid for the estate 
 on tlic behalf of a stranger (w). 
 
 This general rule stands much more upon general princi- 
 ple, than upon the particular circumstances of any indivi- 
 dual case. It rests upon this, that the purchase is not per- 
 mitted in any ease, however honest the circumstances ; the 
 general interests of justice requiring it to be destroyed in 
 every instance; as no court is equal to the examination and 
 ascertainment of the truth in much the greater number of 
 cases(fi). 
 
 The necessity of such a general rule is evinced by an in- 
 stance mentioned by Lord Eldon, of a solicitor under a 
 commission, who finding he could make a bargain to sell 
 the estate for 1400/. kept that in his own breast, and made 
 a bargain with the assignees for the purchase of it at 
 350/. (o). 
 
 In Davidson v, Gardner Qj), Lord Hardwicke laid down 
 the following rules as to a trustee purchasing of his cestui 
 que ti^ust. 1 st. That in all cases of a trustee piu-chasing of 
 the cestui que trust, the court will look upon it with a jea- 
 lous eye. 2dly. It has been laid down as a general rule, 
 that where a trustee for persons not sui juris, as infants 
 and femes covert, becomes both buyer and seller, the court 
 will under no circumstances whatever, be they never so fair 
 between the parties (as consulting the friends of the infant, 
 or of their refusing to purchase, or the like), establish a 
 purchase of that kind ; unless the transaction is legitimated 
 by the act of the court, or some public act. And the rca- 
 
 {l) See 9 Ves. Jun. 248; ex (o) See 8 Ves. Jun.349. 
 
 farie Bennet, 10 Ves. Jun. 381. (p) Chancery, 21st July, 1743, 
 
 (m) See ex par/e Bennet, ubi MS. j see Prestage t, Langford, 
 
 sup. sedqu. i^ffo't Lambert t. Bainton, I 
 
 (n) See 8 Ves. Jun. 345. per Cha, Ca. 199. 
 Lord Eldon. 
 
 son
 
 Ot PURCHASING. 509 
 
 Son IS, because if such purchases were allowed, they would 
 be liable to very great abuses ; and this is tlie reason why 
 the court will not allow a trustee any thing for his trouble. 
 So, where a trustee renewed a lease in his own name, tliougb 
 it was proved that all the friends of the infant were con- 
 sulted, and they refused to renew it, the court decreed it to 
 be in trust for the infant, though not the least unfainiess 
 appeared ; wliich was the case of Ilumford JMarket, before 
 Lord King (q). But if a bill is brought, and a sale or- 
 dered, and notice of the sale before the master, and the 
 trustee purchases, the court has refused to set such sale 
 aside, all the other circumstances being fair. So where 
 there was a public sale of an estate by proclamation in the 
 country ; which was tlie case of Saunders v. Burroughs, be- 
 fore the present Master of the Rolls ; but if that had been 
 a private sale, though tlie consent of all the relations was 
 had, and no unfairness appeared, I think such a sale should 
 be set aside, at least not carried into execution. But it 
 might be inconvenient to extend the rule so far as to pre- 
 vent a trustee from purchasing of one who was siii Juris, 
 where no untairness appeared. And in the principal case, 
 which was of a mixed kind, the defendant who had pur- 
 chased being a trustee for the plaintiff, who was a Jane 
 covert^ and had the estate to her separate use, and there- 
 fore in a court of equity considered as a feme sole, and 
 sni JuriSt as to the disposal of her estate ; Lord IlardwiL-kc 
 dismissed the bill, which was brought to set aside tlie a?;- 
 signment she had made of her interest in a brewliousc to 
 the defendant ; it appearing that she had received a full 
 value, and no particular instances of fraud being jiroved. 
 
 From this case it appears that, in the time of I^ord 
 Hardwicke, a purchase by a trustee, even for infauts, was 
 
 (q) Keeth f, Sandford, Sel.Cha. Ca. 61 ; s«c Lcsley'i ca»e, C? Free™. 
 
 52. 
 
 dccnicil
 
 .OlO OF THE rKRSONS INCAPABLE 
 
 deemed good, if the estate was sold ])y public auction, or 
 before a master ; but a purchase by a trustee, 'vvhtH:lier for 
 adults or infants, cannot now be supported, although the 
 estate be sold by public auction (/•), or before a master, un- 
 der a decree for sale (.s). Nor indeed ought the publicnes- 
 of the sale to sustain a purchase, which cannot otherwis? 
 be supported. For the tmstee may know not only the sur- 
 face value, but that there are minerals, in which case lie 
 would buy upon the rent, and gain all that advantage (t). 
 So there may be a great many clandestine dealings, whicii 
 may bring it to a price far short of that which would be 
 produced if full information was given {u). 
 
 But under particular circumstances, a purchase by r. 
 trustee, or agent, before the master, may be confirmed, al- 
 though with great reluctance. 
 
 Thus in Wren v. Kerton (.r), the facts were these. Upon 
 a former sale before the master, the sum of 23,000^. wa.^ 
 bid by a person bidding bo7ia Jide. That sale was defeated 
 by setting up a fictitious bidder. Afterwards the lot was 
 again put up three times. On the two first occasions no 
 more was offered than 12,000/. and 6,000/. At the last 
 sale one Wilson was declared the purchaser at the sum of 
 15,000/. He purchased as trustee for Wade, the agent 
 and manager of the colliery. 
 
 The Lord Cliancellor said, if this had been an original 
 sale, and the agent had purchased in the name of another 
 person, very slight circumstances would have induced him, 
 
 (r) York-Buildings Company V. Gen. v. Lord Dudley, Coop. 146. 
 
 Mackenzie, 8 Bro. P. C. .42 ; (s) Price v. Byrn, 5 Ves. Jun. 
 
 Whichcote v.Lavvrence,3V'es.Jun. 681, cited; s«e Gary v. Cary, 2 
 
 740 ; Campbell v.Walker, 5 Ves. Scho. and Lef. 173 
 
 Jun. 678 ; Sanderson v. Walker, (f) See 10 Ves, Jun. 394. 
 
 ■ 13 Ves. Jun. 601, S. C. ; and ex {u) See 8 Ves. Jun. 349. 
 
 parte James, 8 Ves. Jun. 337 ; and (a)8 Ves. Jun. 502. 
 see 10 Ves. Jun. 393; Attorney 
 
 even
 
 OF PUECIIASIXG. 511 
 
 even lit some risk, to set that aside ; as it was the duty of 
 AVade, if he meant to bid, to furnish ail the kno^vk'dge he 
 liad to those who were to sell. The difficulty that pressed 
 liim was, tlic consequence, the danger of farther loss by re- 
 sale. He would (he added) not hesitate to open the sale 
 if the least advance upon 15,000/. was offered; but without 
 such an offer there was notliing leading liim to supi)ose it 
 would ever again reach the sum tlnit was originallv bid. — 
 The master's report of the best bidder, was, with consider- 
 able reluctance, confirmed; unless, on or before the first 
 seal, an application should be made to open the biddings, 
 giving security to answer the difference between the pro- 
 duce of the resale and the sum of 15,000/. No security 
 was however offered, and the agent completed tlic purcliase. 
 In Oldin v, Samborne (?/), Lord Hiirdwicke said, that 
 it was improper for a guardian to purchase his ward's estate 
 immediately on his coming of age; but though it has a sus- 
 picious look, yet if he paid the full consideration, it i:j not 
 voluntary, nor can it be set aside. 13ut it scem§ clear, that 
 such a purchase would now be set aside on general })riuci- 
 ples, without reference to the adequacy of tlie considera- 
 tion {z). 
 
 It appears, however, that imless fr?y.d cnn be proved, 
 the circumptance of tlie purchaser being related to the trus- 
 tee, agent, or other person having a confidential character, 
 c:innot even be opposed as a bar to the aid of the court i?i 
 favour of the 'purchaser. 
 
 Thus in Prcstage v. Langford (a), the auctioneer's ^\d\\, 
 v»ho was in partnersliip with his fatlicr, and another pi-r- 
 son, bought an estate sold by order of ft trustee for infant 
 legatees, and contracted to sell it a few days afterwards for 
 
 (y) 2 Allc. 15. (al 3 WooJ, ;48, n, Chan. M. 
 
 (.•:)See Dawson v'.Ma<:se.v, 1 Ball. 11 Cuo. III. 
 and Hpatty, 219. 
 
 750/.
 
 512 0¥ THE PERSONS INCAPABLE 
 
 750/. more than they gave for it. But the proof of fraud 
 being judged defective, the court would not set aside the 
 iSale merely hocause one of the auctioneers was buyer and 
 seller too, hut decreed a specific performance, nevertheless, 
 without costs ; m order (as was said) to discourage all suck 
 suspicious tra nsactio7is. 
 
 So, in the late case of Coles v. Trecothick {b), the trus- 
 tee's father (for whotn the trustee in this instance acted as 
 agent), purchased an estate (whieh had been previously put 
 up to sale by auction, and bought in) of the cestui que trust 
 for 20,000/. ; and as the cestui que trust had full knowledge 
 of the value, &c. and he himself, and not the trustee, fixed 
 the price, and consented to the sale, and no fraud Was- 
 proved, a performance in specie was decreed; although the 
 cestui que trust had since the contract been offered 5,000/, 
 more for the estate. 
 
 It must, however, be observed, that the case of Prestage 
 V. Lancfford was decided before the broad rule which now 
 prevail? was laid down. Indeed that case is clearly over- 
 ruled by later decisions, as the purchaser was in fact em- 
 ployed in the sale. And the decision in the case of Coles 
 V. Trecothick, does not seem to meet with the approbation 
 of the profession. But if, under the particular circum- 
 stances of this case, the court had not compelled execution 
 of the contract, it would certainly have been deciding, that 
 neither a trustee himself, nor any one connected with him, 
 or related to him, can buy of the cestui que trust, however 
 fair and open the circumstances may be. Indeed, Lord EI- 
 don seems to have founded his decision on the ground, that 
 the trustee himself might have purchased the estate. 
 
 It may here be remarked, that where a power is given by 
 a settlement to trustees to sell tlie estate with the consent 
 pf the tenant for life, or to the tenant for life to sell with 
 
 {b) 9 Ves. Jun. 234 ; 1 Smith, 233, 
 
 the
 
 OF PURCHASING. ',13 
 
 Uie ooiiscnt of the tmstcos, it is in practice considcretl, tluit 
 tlie estate may he irately purchased hy the tenant lor life 
 himself Lord Eldon, although fully aware of the danircr 
 attending a purchase of the inheritance hy a tenant for life, 
 seems to think that it cannot he impeached on general prin- 
 ciples ((•). A few years ago, considerahle douht v/as enter- 
 tained by the profession, whether the power of sale and ex- 
 change, usually inserted in settlements of esUites, autho- 
 rised a sale or exchange to or with the tenant for life, or at 
 least whether equity would not relieve against the transac- 
 tion, and that douht was stated as a ground for requiring 
 the aid of parliament, in a petition for an act to enahle an 
 exchange of settled estates with the tenant for life ; which 
 it was conceived could not he done uiuler a power of sale 
 and exchange in the settlement. Tlie Chief Earon, and 
 Mr. Baron Hotham, to whom the hill was referred, report- 
 ed, and suhn\itted it as their opinion, that the douhl which 
 was the cause of petitioning for the hill was not well found- 
 ed ; and therefore, the bill was unnecessary, a7id that the 
 passhig of such a hill might cause a great prejudice to 
 numerous titles under exeeutions of jiowers of sale and 
 exchange of a similar hind : and the House of Lords ac- 
 cordingly rejected the bill ; in consequence of which, many 
 estates of great value have been ])urchascd, and taken in 
 exchange by tenants for life, under the usual powers of sale 
 and exchange. Since these observations were written, the 
 point has again been agitated in practice. It is a point 
 which no private opinion can put at rest, althougli, after tlie 
 opinions of the Chief l*aron, and Mr. Baron Hotham, 
 sanctioned hy the House of Lords, and followed uj) in prac- 
 tice, there seems to be no groun<l to fear tliat a ditierent 
 rule will be established. 
 
 (c) See 9 Ves. Juii. 55; :intl 1 1 Ves. .Tun. ISO ; hut st-e xh. 17h, 477. 
 
 9.1. II. The
 
 514. OF THE PERSO'SS INCAFAUT.E 
 
 II. The purposes for ^vlikli estates arc* vested in trustees 
 for sale, arc generally, either for the benefit of ereditoi'S ; 
 of individuals xui juris ; or persons not sni juris ; and we 
 are now to consider in what manner trustees may become 
 piuchasers of estates vested in them for those several pur- 
 poses, without being liable to be called to account for so 
 doing. 
 
 Of 2)Urchases by trustees or other prohibited persons in 
 general, it must previously be remarked, that the court will 
 not permit them to give up their office, and to bid, as it 
 would lead to infinite mischief. The ccstuis que trust 
 themselves, as we shall see, can decide this; and no court 
 can say ah ante they will permit it : for circumstances uiay 
 exist at the time of the second sale that the court caniwt 
 know {d). 
 
 1. With respect to a trustee for creditors purchasing the 
 estate himself. 
 
 In Whelpdale v. Cookson {c), where a trustee for credi- 
 tors purchased part of the estate himself. Lord Hardwicke 
 said, if the mqjoiity of the creditors agreed to allow it, he 
 shoidd not be afraid of making the precedent. 
 
 But in a late case (/), Lord Eldon said, he doubted the 
 authority of that case ; for if the trustee is a trustee for all 
 the creditors, he is a trustee for them all in the article of 
 selling to others ; and if the jealousy of the court arose from 
 tlie difficulty of the cestui que trust duly informing himself 
 what is most or least for his advantage, he had considerable 
 doubt whether the majority could in that article bind the 
 minority. 
 
 It seems doubtful, therefore, whether the purchase can 
 be supported unless all the creditors consent, although con- 
 Minience, and the general rule of transactions by a body of 
 
 {d) Ex parte James, 8 Vcs. (e) 1 Ves. 9 ; 5 Ves. Jun. 682, n. 
 
 J"""- 352. ( / ) See 6 Ves. Jun. 628. ^.^^^ 
 
 persona
 
 OF PrRCFtASIXG. 515 
 
 ])CrsonR, are .stro!i<i,-ly in favour of Tvord Ilavdwioke's opi- 
 iiioii- 
 
 2. With respect to a trustee for a person auijuriu Ix:- 
 coming the purchaser of the estate. 
 
 If a tnistee even for a person sui Juris purchase in the 
 name of anotlier person, the sale will he set aside, as that 
 very circumstance carries fraud on the face of it (/f). 
 
 ]>ut it must not be understood, that a trustee cannot buy 
 from his cestui que trust ; the rule is, tliat he cannot buy 
 from himself (A). If, therefore, i\ic cestui que trust clearly 
 discharges the trustee from the trust, and considers him as 
 an indifferent person, there is no rule which says, that he 
 may not purchase of him, although the court will look with 
 a very jealous eye on a transaction of that nature(/) : and to 
 be supported, it must clearly appear, that the purchaser, at 
 the time of the purchase, had shaken off* iiis confidential 
 character, by the consent of the cestui que trust freely 
 oiven after full information, and bartrainod for the riiiht to 
 purchase (A). 
 
 So an attorney is not incapable of contracting with his 
 client, but the relation must be in some way dissolved, or, if 
 not, the parties must be put so much at ann'8 length, that 
 they agree to take the charncter of purchaser ami vendor ; 
 and you must examine whether all the duties of those chiv- 
 racters have been jierformcd. If an attorney deal with his 
 client, he should require him to get another attorney to lul- 
 vise with liim as to the value, or, if he will not, then out 
 of that state of circumstances, this clear duty results from 
 the rule of equity, and throws upon him the whole onus <jf 
 
 (^) Lord Hanhvicke V. Vornoii, CfO\Te v. nallard, 3 Bro. C. C. 
 
 4Ves. Jun.-lll; 11 \es. Juii. 50 1 ; 1 17 ; 1 Ves. Jun. 215. 
 
 and see 2 Bro. C. C. 110, ii. (/ See 6 \es. Jon. 627. 
 
 (/{) 10 Ves. Juii. 216 ; and see (A-; Ste 8 Ves. Juu. 353. 
 
 AvlilFe V. Murray, 2 Afk.58; 
 
 2 I, 2 the
 
 olG OF THE PERSONS INCArAIiLfT 
 
 the case ; that if lie will mix Avith the character of attorney 
 tliat of vendor, he shall;, if the })ropriety of the contract 
 comes in qncstion, manifest, that he had given liis client all 
 tliat reasonable advice against himself that he would have 
 given him against a third person (/). So if an attorney be 
 employed as agent in the management of a landed estate, he 
 cannot deal with liis principal for that estate without honestly 
 communicating to the principal all the knowledge respecting 
 its value which he had acquired as his agent, and unless he 
 do this, the contract, if questioned, cannot be supported (7//). 
 
 And the same circumstances that will autharise a trustee 
 to contract for himself, will enable him to purchase as the 
 agent of another {ji). 
 
 3. ^Vltll respect to a trustee for a person not sui juris 
 buying the estate himself. 
 
 The only mode by which this can be effected, so as to 
 protect the purchaser, is, if he sees that it is absolutely ne- 
 cessary the estate should be sold, and he is ready to give 
 more than any one else, that a bill should be filed, and he 
 should apply to the court by motion to let him be the pur- 
 chaser. This is the only way he can protect himself; and 
 Lord Alvanley said, there are cases in wdiicli the court woidd 
 permit it ; as if only 500/. was offered, and the trustee will 
 give 1000/. (0). r 
 
 III. It remains to consider what remedy the cestui que 
 trust has, where his trustee has purchased the trust estate 
 in a manner not authorised by the rules of the court. It 
 
 U) Gibson V. Jeycp, 6 Ves. Jun. 289, fcr Lord Eldon, C. 
 
 266 ; see p. 277, 278, per Lord («) See 9 Ves. Jun. 248. 
 
 Eldon C; Wood V. Downe?, 18 \'es. (0) Campbell v. Walker, 5 
 
 JuD. 120; Montesquieu V. Sandys, Ves. Jun, 678; 13 Ves. Jun, 
 
 ib. 302. 601 ; see 1 Ball and Beatty, 
 
 (///) Cane v. Lord AIUd, 2 Dow. -ili?. 
 
 may
 
 OF PURCIIASIXG. ol7 
 
 may be ^ircmiscd, tliat this remedy goes prccisel) to tlic same 
 persons as were entitled to tlic estate before the sak\ There- 
 fore, a man having a legal or ecpiitable mortgage on tlie 
 estate, wliich was not satisfied by the money produced b\ 
 tlic sale, may pursue the remedy afforded by ccpiitv against 
 the trustee. And the circumstance of tlie mortiraa-ee ha\ in'>- 
 been present at the sale where he bid for the estate is no ol)- 
 Jection to his claim against the owner of the estate, where he 
 ;(the owner) has himself set aside the sale and derived aiu 
 (id-vantage from it (p). 
 
 If tlie trustee has not sold the estate, the cestui que trust 
 may insist on the purchase being avoided, and may reclaim 
 5iis estate {q) ; for it need nat be shewn that the trustee has 
 made an advantage (/'). 
 
 If the cestui que trust require a reconveyance of the estate, 
 he must repay to tlie trustee the original ])rice of the estate, 
 and also all sums laid out for permanent benefit and im- 
 provement of the estate, and interest thereon from the 
 times they were actually disbursed; and, on the utlur li.nid, 
 the trustee must pay and allow all the rents receiM'd hv him, 
 and the yearly value of such i)arts as have been in his o\\ii 
 occupation, and all sums received by the sale of timber or 
 other parts of the inheritance, and interest thereon, from the 
 times iof their being received. This was decided in the 
 great case of York Buildings Company v. Mackenzie, in 
 the House of liords [s] ; and it appears that the House 
 allowed him the value of improvements of all kinds, evcMi 
 
 (/)) Ex parte Lacpjr, 6 Vps. Jun. V^s. Jim. 411 ; Randall v. Mr- 
 
 f)'lo \ 12 Ves. Jiin. 8; f.r parte riugion, 10 Vcs. Jim. I'Jj. 
 
 Morgan, 12 Vfs. Jun. 6. (r) Set 8 N'l's. Jim :3-l8 ; 1(J 
 
 (ry) See 6 Ves. Jun. 627 ; York \Vs. J.in. 385, 3')3. 
 
 R. C. V. Mackenzi.-, 8 Hro. P. C. <s 8 Bio. I'. C. 42. 
 •42 j l^ord llardwjckc v. Wrnon, 4
 
 518 OF THE PERSONS IXCAl'AT.f.E 
 
 in the instance of a mansion-house erected, and plantations 
 of shrubs, &c. (/). 
 
 And where the ceshi't qve trust is not desirous to take 
 hack the estate, he may require it to be put u]) to sale 
 again at the price at which it was bouglit by tlie trustee : 
 and that if any one bid more, the trustee shall not liave tlio 
 estate; but if not, that he may be compelled to keep it (i/). 
 
 If, however, the cestui que trust be desirous to have tlic 
 estate put up in lots, and it was bought by the trustee in 
 one lot, he must either repay the trustee the purchase-money 
 wdth such interest as he would have been liable to pay upon 
 his bargain, he accounting for the rents received, or payina: 
 an occupation rent for the estate, if he personally occupietl 
 it : or the cestui que trust must consent to have the estate 
 put up in one lot, on the terms before-mentioned {x\ 
 
 The trustee will, in case of a resale, be allow ed any money 
 hotiajiclc laid out, not only in substantial repairs and im- 
 provements, but also in such as have a tendency to bring 
 the estate to a better sale ; which will be added to the amount 
 of the purchase-money, and the estate will be put up at the 
 aggregate sum; deducting, however, an allowance for acts 
 that deteriorate the value of the estate (;/), 
 
 But no allowance will be made him for any loss lie may 
 sustain by a fall in the funds {z). 
 
 Formerly where a purchase by a trustee was set aside, tlie 
 rule was, to put up the estate again to be sold to the best 
 
 (0 See 6 Ves. Tun. 624. This (x) £,rpc?-^c James, 8 Ves. Jnn. 
 
 must have been decided in some of 337. 
 
 the sub.sequent appeals; see 8 (/,) Ex par/e Hu2;hes, 6 Ves. 
 
 Bro. P. C. 71^ note. Jiin. 617; exparte Beiinet, 10 
 
 (u) Ex parte Reynolds, 5 Ves. Ves. Jun. 381. 
 
 Jun. 707 ; cj" /j«7-/e Hughes, ex (:;) £j" />ar^c James, 8 ^'es. Jun 
 
 parte Lacey, and leister v. Lister, 337, 
 6 Ves. Jun. 617, 6-5, 631. 
 
 bidder ;
 
 OF PURCHASING. olf) 
 
 ^^dder; the trustee accounting for the profits, and l)cino- 
 allowed his principal money and interest at 4 jjcr cent. (a). 
 
 If the trustee has actually sold the estate, tiie cestui que 
 trust may compel the trustee to pay him what he may have 
 received above tlie original purchase-money {h). 
 
 Where a trustee buys the trust estate at a fair price, i\\<i 
 sale is seldom called in question, unless he afterwards sell it 
 to advantage ; and then the cestui que trust is of course 
 only desirous that the money gained by the trustee on the 
 resale should be paid to him. 
 
 Owing to this circumstance, a purchaser of a ti-ust estate 
 from a trustee who had previously sold to himself, is seldom 
 implicated in the suit ; but it seems clear, that a person pur- 
 chasing with notice of the previous transaction would be liable 
 to the same equity as the trustee was subject to. In the 
 late case of Randall v. Errington (c), a purchaser from a 
 trustee who had ])urchascd in the name of a trustee was 
 made a defendant, and the prayer of the bill was, tliat if lie 
 purchased without notice, the trustee might account for the 
 money gained by the resale; but as the equity against the ])ur- 
 chaser was not noticed either by the counsel or the court, it 
 must be presumed that no notice was proved. A different 
 nde would, to use the exj>ression of a great man, blow up 
 like gunpowder this branch of equitable jurisdiction. It is 
 indeed true, that in the case in the House of Lords, the ])ro- 
 credings in the Court of Sessions were reversed witliout 
 prejudice to the titles and interests of the lessees and otlu-rs 
 who might have contracted with the defendant bona ficU\ and 
 before the dependence of the process (I). 
 
 (a) See Wliolpdalo v, Cookson, C. C. 400; expmlc Ri-ynoMs, 5 
 ] Ves. 9 ; 5 Ves. Jun. 682, n. Ves. Jun. 707. 
 
 (&) Fox V. Mackreth, 2 Hro. (c) 10 \'es. Jutv -123. 
 
 (I) And seethe same rule as to vinilerlea''cs of a charity estatt-, where 
 the «^i^inal lease is set aside as improvident. Atforn«y-(ieneral t. (Irif- 
 fitb, 13 Ves. Jun. 56t; Attorney. CJcticrnl v. liacklioiisi', 17 X'.s Jun. 'JS3. 
 
 2 L 1 But
 
 520 OF THE rEKSONS 1NCAPA15EE 
 
 But this may Lc satisfactorily accounted for on two 
 grounds ; the one, that no notice was charged on tlie lessees, 
 nor wore the leases attempted to be impeached ; the other, 
 that the relief sought had been delayed for many years, and 
 the point established by the House of Lords was, to say the 
 least, a new doctrine with reference to Scotland, But this 
 equity is now well established. No person, therefore, can 
 be advised to become the purchaser of an estate so circum- 
 stanced, unless the cestui que trust will join ; nor would a 
 court of equity, on any other tenns, enforce a specific per- 
 formance of such a contract. But this doctrine cannot be 
 extended to the mere case of a purchase by a trustee in his 
 own name, from his cestui que tnist, which may or may not 
 be binding according to circumstances, unless the purclmser 
 have also notice that the sale was not such as could be sup- 
 ported in equity. 
 
 Before closing this chapter it must be remarked, that if a 
 cestui que trust acquiesce for a long time in an improper 
 purchase by his trustee, equity will not assist him to set 
 aside the sale (d). In Price v. Byrn (e), LordAlvanley 
 refused the aid of the court, because the bill had been de- 
 layed tw enty years. 
 
 But laches docs not apply to a body of creditors ; who 
 may, therefore, claim the aid of equity at a much more 
 distant period after the sale than an individual can (f). 
 
 And although acquiescence may have the same effect 
 as original agreement, and may bar such a remedy as this, 
 
 (d) See ex parte James. 8 Ves. Gregory v. Gregory, Coop. 261. 
 
 JuD. 337 ; Hall v. Noyes, 3 Ves. (/ ) Whichcole v. Lawrence, 3 
 
 Jun. 748, cited ; and see 1 1 Ves. Ves. Jun. 740 ; and a case before 
 
 .lun. 226; Morse V. Koyal, 12 Ves. the Court of Exchequer, 6 Ves. 
 
 Jun. 355 ; Medlicott v. O'Donel, Jun. 632, cited ; York Buildings 
 
 1 Ball and Beatty, 156. Company v. Mackenzie, 8 Bro. 
 
 ie) 5 Ves. Jun. 681, cited ; and P. C. by Tomlins, 42. 
 
 fee Norris t. Neve, 3 Alk. 26 ; ' ' 
 
 vet
 
 OF PURCHASIKr.. 521 
 
 yet tlie question as to acquiescence cannot arise until it i« pre- 
 viously ascertained, thattlie cestui que trust kne\vhis trustee 
 liad become the purchaser ; for, while tlie cestui que trust 
 continued ignorant of that fact, tliere is no laches iu not 
 quarrelling with the sale upon that special ground {g). 
 
 A purchase by a trustee from his cestui que trust is merely 
 malum pru/tibifuni, and not malum in se. It is one of 
 those contracts which admit of confirmation by the injured 
 party. But to give effect to a confirmation \\\ a case like 
 this, the party confirming must not be unde* the controul 
 of the person whose title is to be confirmed, and lie mu^t 
 Jiave a full knowledge of ail the circumstances, and of his 
 power to set aside the former transaction (//). 
 
 f^) Per Sir William Grant, 10 Lef. 471 ; Roclie v. O'Brien, 1 
 
 Ves. Jun. 427 ; and see 2 i^all and Ball and Beatty,330; Wood v. 
 
 Peatfy, 129. Downcs, 18 V. s. Jun.120; Dun. 
 
 (/t) Morse V. Royal, 12 Ves. Jun, bar v. Tredennick, 2 Ball and 
 
 SSSjMurraj-- w. Palmer, 2 Scbo. and Bialty, 30 1. f'klc suprn, \\ 231. 
 
 CHAP
 
 [ 522 ] 
 
 CHAPTER XV. 
 
 OF JOINT PUKCHASKS : PURCHASES IN THE NAMES OF 
 THIRD PERSONS ; AND PURCHASES WITH TRUST- 
 MONEY: AND OF THE PERFORMANCE OF A COVENANT 
 TO PURCHASE AND SETTLE AN ESTATE. 
 
 SECTION I. 
 
 Of Joint Purchases. 
 
 W HERE two or more persons purchase lands, and ad- 
 vance the money in equal proportions, and take a conveyance 
 to them and their heirs, this is a joint tenancy, that is, a 
 purchase by them jointly of the chance of survivorship, 
 which may happen to the one of them as well as to the other 
 {a) (1), but where the proportions of the money are not 
 
 equal 
 
 (a) See Moyse V. Gyles, 2Vern. Anon. Carth. 15-, and see 3 
 885 ; York v. Eaton, 2 Freem. 23 ; Atk.735; 2 Ves.258; Rea t.WU- 
 Thicknesse v. Vernon, 2 Freem. 8 i; liams, MS. Appendix, No. 21. 
 
 (I) This dibtinction has not been thought satisfactory. A writeu, to 
 whom the professton is iindor great obligationj observes, that if the ad- 
 vance
 
 OF JOINT PURCHASES. 523 
 
 equal, and tins appears in the deed itself, this makes them 
 in the nature of partners [b) ; and however the legal 
 estate may survive, yet the survivor shall he considered hut 
 as a trustee for the others, in proportion to the sums advanced 
 by each of them. So if two or more make a joint purchase, 
 and afterwards one of them lays out a considerable sum of 
 money in repairs or improvements, and dies, this shall be a 
 lien on the land, and a tnist for the representative of him 
 who advanced it (c). 
 
 And where the money is advanced in equal proportions, 
 so that the purchasers are joint tenants in equity as well as 
 at law, a conveyance by the purchasers to a trustee without 
 any consideration, and without any express intent to scAcr 
 the joint tenancy, will not have that effect ; but the trubt 
 estate will go to the survivor, in the same manner as the 
 legal estate would have done {d). 
 
 In all cases of a joint undertaking, or partnershi]), :il- 
 tliough the estate will survive at law, yet the survivor will 
 in equity be a trustee for the representative of tlie deceased 
 
 partner. 
 
 (^) See 2 Ves. 258. 290, pi. 3. 
 
 (c) Per Master of tlie Rolls, in id) Rt-a v. Williams, M>. Ap- 
 
 casu Lake v.Gibsoii, 1 Eq. Ca.Abr. pendix, No. 21. 
 
 vance of consideration, generally, will not prevent the legal rij;lit, the 
 mere incqiulity of proportion, which may naturally he attiibuted to ihe 
 relative value of the lives, cannot have that etftct. See 9 Ves. Jun. 
 597, n. (b). The dlbtinclion, however, seems founded on raiional 
 grounds. Where the parties advance tlie nioncy e(pially, it ujay be 
 fairly presumed, that they purchased \sith a view to the benefit of biiivi. 
 vorship ; but where the money is advanced in unequal proportions, ami 
 no express intention appears to benefit the one advancing the smaller 
 pro[)ortion, it is fair to presume that no such intention existed ; the in. 
 efiuality of proportion can scarcely be attributed to the relative value of 
 the lives, because neither of the partl«'s can be supposed not to know, 
 that the other n\Ty, immediately after the purchase, compfl a legal p:»r. 
 tition of (ho estute, or may even sever tlie ioint.finaucy by a cl.i'ulc-tiiie 
 act. 
 
 Thus,
 
 521 Ol JOINT J'UllCllAbKti. 
 
 Thus, in a case (r) wlicxe five persons ])uicliasccl lands in 
 fee of the cojnniibsioncrs, of servers, and, in order to improve 
 and cultivate these lands^ afterwards entered into articles, 
 whereby they agreed to be ,c<pially con.cei-ned as to p-ofit 
 and loss, and to ad^ ance each of them such a sum, to be 
 laid out in the manurance and improvement of the land ; 
 it was held by the INIaster of the Rolls, that they were 
 tenants in common, and not joint tenants, as to the bcncr 
 ficial interest, and that the siu-vivor sliould not go away 
 with the whole ; for then it might happen that some might 
 have paid or laid out their share of the money, and others, 
 who had laid out nothing, go away with the whole, And 
 the decree was affirmed by Lord Chancellor King (J 'J, 
 
 So where two persons took a building lease, and laid 
 jout money in erecting houses, they were held to be part- 
 ners witli respect to this property : and the survivor was 
 decreed to be a trustee of a moiety for the representatives 
 pf the deceased (gj. 
 
 But as the lands will survive at law, equity, on the 
 general rule, that lie who seeks equity shall do equity, will 
 not relieve, unless the person seeking relief will dp what 
 he equitably ought to do. 
 
 Thus, in the firiit-mentioned case, the ancestor of the 
 party seeking relief had quitted the concern for many 
 years ; since which time the other proprietors, to enable 
 them to carry on their design, had purchased some other 
 estates, which proved a losing concern ; and the plaintiff 
 was only relieved on contributing his share of the purchase- 
 money of the estates so bought, with interest from the 
 time the money ought to have been paid. 
 
 (c) Lake T. Gibson, 2iZ>i^:i;j, and Wms. 158, S. C. MS. 
 see Hayes v. Kingdome, 1 Vern. (g) Lyster v. Dolland, i Vts. 
 
 33; Jeffereys v. Small, 1 Vern. Jun. 431; see 2 Ves. Jun. 631; 
 217. and Elliot v. Brown, 9 Ves. Jun. 
 
 (/) Lake T, Crail^ock, 3 P. 597, cited. 
 
 I>ord
 
 6f joint purchases. 525 
 
 Lord Chancellor King said, that this was plainly a 
 tcnantcy in common in equity, though otherwise at law ; 
 and the defendant Craddock having only a title in equity, 
 that he must do equity; and tliat this was equitable in all 
 its branches ; for he had his election to drop all claim, or 
 to take it on the same foot with the rest of the partners ; 
 and that it was not reasonable that he should be let into 
 the account of the profits or loss of the undertaking until 
 lie had made his election (h). 
 
 If it be doubtful whether the purchasers bought the pro- 
 perty to carry on trade, an inquiry will be directed before 
 the master to ascertain the fact (i) (I). 
 
 Where two or more persons agree for the purchase of ail 
 estate in moieties between them, subject to incumbrances, 
 which arc to be discharged out of the purchase-money, the 
 purchase is in equity considered to be made for their equal 
 benefit, and on a mutual trust hetiveen them; and there- 
 fore, although one of them may have abatements made to 
 him by some of the incumbrancers, of sums due for interest 
 or otherwise, in consideration of services and friendship, 
 and it is expressly agreed to be to his own use, yet equity 
 will compel him to account to the other for the benefit of 
 these advantages (A"). 
 
 So a new lease obtained by one partner shall enure to 
 both (/), although he obtained it clandestinely and on his 
 own account (;//). 
 
 (A) MS. The judgment is not (0 Burroughs v. Elton, 11 
 
 stated in any other printed book. Ves. Jun. 29. 
 
 (j) See 1 \'es. Jun. 435. (>n) Feathcrstonhaugh v. ¥vi\- 
 
 {k) Carter v. Home, 1 Eq. Ca. wick, 17 Ves. Jun. 298. 
 
 Abr. 7, pi. 13. 
 
 (I) Whether the property as between the representatives shall be 
 deemed real or personal, see Bell v. I'hyn, 7 Ves. Jun. -453 ; Batoman 
 V. Shore, 9 Ves. Jun. 500; Mackintosh v. TowiiseiiJ, 1 Mouf. Partn, 
 Notes, 97; Sdkrig v. Davits, 2 Dow. 2jl 
 
 If
 
 526 or JOINT PUIICHASES. 
 
 If bvo persons purchase an estate subject to a mortgage, 
 and the mortgage-money is apportioned between them, and 
 each of them covenants with the other to pay his share of 
 the money, and to indemnify the other from it, tliey do not 
 by those means make their personal estate, as between their 
 real and personal representatives, the primary fund for pay- 
 ment of the mortgage-money {n). 
 
 It seems that where two or more persons purchase an 
 estate, and one, for instance, pays all the money, and the 
 estate is conveyed to them both, the one who paid the 
 money cannot call upon those who paid no part of it to re- 
 pay him their shares of the purchase-money, or to convey 
 their shares of the estate to him : for by payment of all the 
 money, he gains neither a lien nor a mortgage, because there 
 is no contract for cither ; nor can it be construed a resulting 
 trust, as such a trust cannot arise at an after-period ; and 
 perhaps the only remedy he has, is to file a bill against them 
 for a contribution (o). Whenever, therefore, two persons 
 agree to purchase an estate, it should be stipulated in the 
 a^'eement, that if by the default of either of them the other 
 shall be compelled to pay the w^hole, or greater part of the 
 purchase-money, the estate shall be conveyed to him, aind 
 he shall hold the entirety against the other and his heirs ; 
 unless he or they shall, within a stated time, re-pay the sum 
 advanced on their account, with interest in the mean time. 
 
 Eiit it has been held, that if one of two joint tenants of 
 a lease renew, at his own expense, and the other party reap 
 the full benefit of it, the one advancing the money shall 
 have a charge on the other moiety of the estate, for a moiety 
 of his advances on account of the fines, although such other 
 
 (n) Forrester t. Lord Leigh, case does not, however, authorise 
 Ambl, 171. Vide supra, p. 169. the observation, buttheauthorcon- 
 
 (o) See Wood v. Birch, and ceiyes it to follow from what fell 
 Wood V. Norman, Rolls, 7 and 8 from the Master of the Rolls at the 
 March, 180i ; the decree in which hearing. 
 
 pioietv
 
 OF JOINT rUKCHASESu 527 
 
 moiety of the estate be in strict settlement at the time of 
 the renewal. The case was considered to fall within the 
 principle upon which mortgagees who renew Icaseliold in- 
 terests have been decreed entitled to charge the amount 
 upon the lands {p). 
 
 AVhcre two or more persons purchase an estate, and the 
 conveyance is taken in the name of one of them, the trust 
 may be proved by letters ^^Tittcn subsequently to the pur- 
 chase ; for the statute of frauds (q) does not require that a 
 trust shall be created by a \vriting (7-) ; but that it shall be 
 majiifcsted and proved by writing, which means that there 
 should be evidence in writing, proving that there was such 
 a trust (.y). 
 
 But although two persons enter into a treaty for tlie pur- 
 chase of an estate, and one of them desists, aud permits the 
 other to go on with the intended purchase, on his promising, 
 by parol, to let him have the part of the estate he desired ; 
 yet it seems that this agreement cannot be enforced on 
 account of the statute of frauds. 
 
 In Lamas v. Baily {t), which was a case of this nature, 
 the plaintiff obtained a decree at the llolls, it being insisted, 
 that although it was an agreement parol, yet it was in part 
 executed by the plaintiff's desisting from j^rosecuting his 
 purchase, who otherwise might have purchased for himself, 
 or at least have enhanced the price tlie defendant was to pay, 
 so that the defendant had a benefit by it ; and besides, it was 
 a fraud (w), and like the case where a man agreed to pur- 
 chase as agent for another, and would afterwards retain the 
 purchase to himself But upon an appeal to the Lord 
 
 {p) Hamilton v. Denny, 1 Ball 696 ; 5 Vee. Jfln. 308 ; Randall v. 
 
 and Ueatty, 199. Morgan, 12 Ves. Jun. 67. 
 
 iq) 29 Car. II. c. 3, s. 7. (t) 2 Wm. 627 ; and see Riddle 
 
 (r) See n. (1) to the last edit. v, Emerson, I Vern. 106. 
 
 of Gilb. on Uses, p. 111. (u)Se€Thyuu v. Thynn, 1 Vtrn. 
 
 (i ) Forstcr v. Hale, 3 Vcs. Juu. 3y6. 
 
 Chauci-'Uor,
 
 528 t)F JOINT PURCHASES; 
 
 Chancellor, the decree was reversed, as being a parol agtco- 
 meiit, within the provision of tlie statute against frauds. 
 
 Mr. I'owcU (.r) refers to an anonymous case in A'iner (vy), 
 wliich he conceives to he another report of the case of llamas 
 V. l^aily, where the Lord Chancellor dismissed the hill, be- 
 cause there was no absolute and positive agreement, but 
 the words were ambiguous and uncertain, and the statute 
 intended to oust as well all such ambiguous agreements, as 
 to prevent perjuries, Sjc. and this agreement would not bind, 
 unless it were in writing. And Mr. l*owcll, therefore, con- 
 ceives that tlie judgment turned on there being no absolute 
 or 2^ositive agreement, the words being ambiguous and un- 
 certain ; and not on the ground that the forbearing by agree- 
 ment to do an act might not be a part perfonuancc, and 
 raise as strong an equity to have the benefit stipulated in 
 return, as an act done. 
 
 In the later case of Atkins v. Howe {z)^ some persons 
 desirous of obtaining a lease of three houses, agreed that 
 one of them should bid for all the houses, but that the lease 
 should be for their joint benefit. Accordingly he bid, and 
 a lease was made to him ; and to a bill filed by the others 
 to have the benefit of the lease, and that the purchaser 
 might be decreed a trustee, he pleaded the statute of frauds 
 in bar both to the discovery and relief. But the Lord 
 Chancellor seemed of opinion, that the agreement, although 
 by parol, was not within the statute, and ordered the plea 
 to stand for an answer, with liberty to except, and the 
 benefit of the plea to be saved to the hearing. Thus the 
 case is reported in Moseley. It appears from the cases in 
 the House of Lords {a), that the defendant by his answer 
 
 (x) 1 Powell on Contracts, 310, (z) Mote. 39 ; and see Crop v. 
 
 (^) 5 Vin. Abr. 521, pi. 32. Norton, stated infra. 
 Note, the case of Lamas v. Bally, (a) Cases, Dom. Proc. 1730, 
 
 is stated in the same page. 
 
 denied
 
 OF JOINT* PURCHASES. 529 
 
 ileiiicd the agreciiicnt, and the cause being at issue, several 
 witnesses were examined on both sides. There was a con- 
 trariety of evidence, but the plaintiff proved the agreement 
 by one positive witness, corroborated by circumstances. But 
 the Chancellor dismissed the bill, without costs, and his 
 decree was affirmed by the House of Lords. 
 
 Upon the whole, therefore, the better opinion perhaps is, 
 that an agreement of this nature cannot be enforced, although 
 certainly it does not appear that the precise point has ever 
 been decided, upon an absolute agreement clearly and unde- 
 niably proved. 
 
 From the case of Smith, treasurer of the West-India 
 Dock Company v. the IMayor and Corporation of London 
 {h), it should seem, that where two persons agree to purchase 
 an estate, and one of them, by agreement between them, 
 completes the purchase, and pays the money, the other must 
 agree to accept the title, and pay his share of tlie purchase- 
 money, before he can call for an inspection of the title-deeds, 
 in order to investigate the title ; unless the one who pur- 
 chased can be charged with such gross negligence, or Avilful 
 default, as will strip an agent, as such, of the protection 
 which that character gives him in all transactions in which 
 he duly acts according to his agency : and in case any such 
 gross negligence or wilful default can be proved, the injured 
 party will have a remedy in equity, although he may have 
 paid his share of the purchase-money. 
 
 (b) Gh. Dec. 16, 1801, and many previous days, M.S. 
 
 2 !Sf 5ECT,
 
 [ 530 J 
 
 SECTION II. 
 
 Of Purchases in the Name of Third Persons. 
 
 I. If a man purcliase an estate, and do not take the con- 
 veyance in his own name only, the clear result of all the 
 cases, without a single exception, is, that the trust of the 
 legal estate, whether freehold, copyhold, or leasehold ; whe-^ 
 ther taken in the name of the purchaser and others jointly^ 
 or in the names of others without that of the purchaser ; 
 whether in one name or several ; whether jointly or successive,- 
 results to the man who advances the purchase-money (c), 
 unless such a resulting trust would break in upon the policy 
 of an act of parliament {d). And although the person in 
 whose name the conveyance is taken, executes no declara- 
 tion of trust, yet a trust will result for the person who paid 
 the money by operation of law ; this species of trust being 
 expressly excepted out of the statute of frauds [e). 
 
 But, unless the trust arise on the face of the deed itself^ 
 the proofs must be very clear if) : and however clear they 
 
 (c) Per Lord C. B. Eyre, in 
 Dyer t. Dyer, stated infra. 
 
 (d) See ex parte Ilo\ia]iton, 17 
 Ves.Jun. 251 ; andseeRedingtoa 
 V. Redington, 3 Ridg. P.C. 106. 
 
 (e) 29 Car. II. c. 3, s. 8 ; see 
 Ilungate t. Hungate, Toth. 184 ; 
 Gascoigne v. Thwing, 1 Vern.366 ; 
 Howe V. Howe, 1 Vern. 415 ; 
 Anon.2Ventr.361,no.3;0'Hara 
 V. O'Neil, 21 Vin. Abr. 497, n. ; 2 
 Bro. P.C. 39 ; Pelly v. Maddin, 21 
 Vin. Abr. 498, pi. 15 ; Sir Darcy 
 Lever v, Andrews, 7 Bro. P.C. by 
 Tomlins, 288 j Ambrose v. Am- 
 brose, 1 P. Wm^. 321 -J c\r parte 
 
 Vernon, 2 P. Wms. 549 ; Smith 
 V. Baker, 1 Atk. 385 ; Lloyd v. 
 Spillet, 2 Atk. 148 ; Withers v. 
 Withers, Ambl. 151 ; Lade v. Lade, 
 
 1 Wils. 21 ; Smith V. Lord Camel- 
 ford, 2 Ves. Jun. 713; Rider v. 
 Kidder, 10 Ves. Jun. 360. 
 
 (/) Gascoigne t. Thwing, 1 
 Vern, 366 ; Newton v. Preston, 
 Prec. Cha. 103 ; Willis v. Willis, 
 
 2 Atk. 71; and see 1 Atk. 60^ 
 Ambl. 4 14 J Acherley v. Acherlfyy, 
 4 Bro. P. C. 67 ; and Smith v. 
 Wilkinson, 3 Ves. Jun. 705, cited ; 
 and 1 Dick. 328 ; and see Lench 
 V. Lench, 10 Ves. Jun, 511. 
 
 may
 
 Of PUIICHASES IX THE ^'AME OF stuangehs. 531 
 
 l^ay be, it seems doubtful wiiether parol evidence is admi«^si- 
 ble against the answer of tlie trustee denying the trust ig). 
 And in eases of this nature the claimant, in opposition to 
 the legal title, should not delay asserting his right, as a stale 
 claim would meet with little attention (//). 
 
 It has been said {/), that if the consideration -money is 
 expressed in the deed to be paid by the person in whose 
 name the conveyance is taken, and nothing appears in such 
 a conveyance to create a presumption that the purchase- 
 money belonged to another, then parol proof cannot be ad- 
 mitted, after the death of the nominal yurchase}\ to prme 
 a resulting trust ; for that would be contrary to the statute 
 of frauds and perjuries. 
 
 Tliis proposition has been adopted by another writer (Z*), 
 who says, that it should seem, that even the confession of 
 the trust by the nominal purchaser, to countervail a decla- 
 ration in writing, and create a trust for the party advancing 
 the money, cannot be esta])lished by a third person, but must 
 be made under a judicial eocammatlon upon oath o?^ by the 
 'party's own answer in equity. This, he adds, seems un- 
 derstood both in the case of Ambrose v. Ambrose, and Ryall 
 V. Ryall ; and appears to flow from the proposition before 
 stated ; for, during the life of the nominal purchaser, no 
 proof can be received of his parol confession, as not being 
 the best existing evidence; and after his death, it is mere 
 parol evidence contradicting the deed, and not of strength 
 to raise a resulting trust. 
 
 (g') Skett v.Whitmorp, 2 Freem. (/) See Mr. Sanclns's note to 
 
 280 ; Newton ▼. Preston, Pnc. Lloyd v. SpilUt, 2 Afk. 150 ; and 
 
 Clia. 103 ; see Cottiiigton V. Fict- see liis Kssay on Uses, 1,123; 
 
 clier, 2 Atk, 153; Bartlett v, and see the 3d edit, of (hat work, 
 
 Pickersgill, 4 East, 577, n. (b). p. 259, 260. 
 
 (It) Delane v. Delane, 7 bro. P. (/.) Pol), on Stat, of Frauds, 
 
 C. by 1'uni litis, L'7M. 99. 
 
 i 31 ^i Tr.
 
 53'2 OF PURCHASES IN THE 
 
 In the first edition of this work the author submittett it 
 a& his opinion, that the proposition, tliat parol proof couhJ 
 not be admitted after the death of the nominal purchaser, 
 was not warranted by the authorities referred to in support 
 of it (/;, and that the statute is not more broken in upon 
 by admitting parol proof after the death of the nominal 
 purchaser, than it is by allowing such proof in his life-time. 
 And this opinion seems to be confirmed by the late case of 
 Lench v. Lench (m). The question there was^ whether a 
 purchase by the late husband of the plaintiff of an estate was 
 made with some trust money of hers, of which he had ob- 
 tained possession. Parol evidence was admitted of conver- 
 sations with the husband, in order to prove the fact. The 
 late blaster of the Rolls, after premising that there was not 
 only no covenant by the husband to purchase land, but no 
 stipulation in the settlement that land should be purchased, 
 but merely a proviso, that the trustees, with the wife's con- 
 sent alone, might invest the money in land, said, that as 
 to the ground that the purchase was made with the trust- 
 money, all depended upon the proof of the fact, Jbr xihat- 
 ever doubts might have been formerly ente?iamed on this 
 suhjecty it is now settled^ tJmt money may in this manner 
 be followed into the land in which it is invested; and a 
 claim of this sort may be supported by parol cvideyice.-^ 
 His Honor then examined the weight of the testimony, 
 which he held to be too contradictory and uncertain to be 
 depended upon. So in Sir John Peachy's case (?i), Sir 
 Thomas Clark, INIaster of the Rolls, laid it down, that 
 frauds were out of the statute of frauds, for that the judges 
 
 {I) Kirk V. Webb, Free Cha. 2 Atk. 74- 
 
 84 ; Walter deChirton's case, cited (m jSee Lench v. Lench, 10 Ves. 
 
 ibid\ Newton v. Preston, Free. Jun. 511, The point, I am told. 
 
 Cha. 133 ; Gascoigne v. Thwing, was lately decided the same way 
 
 1 Vern. 366; Hooper v- Eyles, in Ireland. 
 
 2 Vern. 480 ; Crop v, Norton, («) Rolls, E. T. 1759, MS. 
 
 had
 
 'NAMES OF STKAXGERS. 533 
 
 liad resolved it was absurd that a statute which was made to 
 prevent frauds should be made a handle to support them. 
 And therefore, if A sold an estate to C^and the consider a- 
 tioji was expressed to be lyaid by 7?, and the conveyance 
 made to B, the court would allow parol evidence to prove 
 the money paid by C. 
 
 Where the evidence is merely parol, although it is clearly 
 admissible, yet it will be received with great caution. Evi- 
 dence of naked declarations made by the purchaser himself 
 is, asSir Wm. Grant observes, in all cases, most unsatisfac- 
 tory evidence, on account of the facility with which it may 
 be fabricated, and the impossibility, of contradicting it. Be- 
 sides, the slightest mistake or failure of recollection, may 
 totally alter the effect of the declaration. 
 
 So Lord Ilaidwicke laid it down^ that parol evidence 
 might be admitted to show the trust, from the mean cir- 
 cumstances of the pretended owner of the real estate or in- 
 heritance, which makes it impossible for him to be the ])ur- 
 .chaser (o). 
 
 An express trust, although by parol only, will prevent 
 the resulting trust {p) ; because resulting trusts are left by 
 the statute of frauds and perjuries as they were before; and, 
 previously to the act, a b.ai'c declaration by parol would pre- 
 vent any resulting trust. Besides, an equitable presumption 
 may be rebutted by parol evidence ((/) ; for, as Lord jNIans- 
 ■Tield has observed, an equitable presumption is only a kind 
 o^ arbitrary implication raised, to stand until some reason- 
 able proof brought to the contrar}\ 
 
 Therefore parol evidence will be admitted to prove tlie 
 
 (0) Willis V. Willis, 2Atk. 71 ; t. the Earl of Anglcso, Gill). Eq- 
 
 and see Ryall v. Ryall, 1 Atk. 59; Hep. 16 ; Roe v. Popham, Uoi.gl. 
 
 Ambl. 413 ; and Leuch v Lench, 25. 
 
 10 Ves. Jun. 511. (?) Langfielde v. IIodi,'(S, I.ofTf, 
 
 (p) Lady IMlasis V, Compton, 230; Rld^r v. Kidder. 10 Vc«. 
 
 2 Vcrn. 29-1 J see Lord Altham Jun. 360, 
 
 o ^ 3 piu-chasci'^
 
 534f OF PURCHASES IN THE 
 
 purcliascr's intention, that the person to whom tlie convey- 
 ance was made should take hencficially ; and if satisfactor)', 
 he will he entitled to the estate (r) ; hut the proof rests 
 upon liim to shew, that the man from whom tlie considera- 
 tion moved did not mean to purchase in trust for himself, 
 hut intended a gift to tlie stranger (<s). 
 
 AYhere a man merely employs another person hy parol, 
 as an agent to huy an estate, who buys it accordingly, and 
 OK) imrt of the 'purclmse-monexj is iiaid hy the princqndy 
 and there is no written agreement, he cannot compel the 
 agent to convey the estate to him, as that would he directly 
 in the teeth of the statute of frauds {t). 
 
 And altliough the agent be afterwards convicted of per- 
 jury in denying the trust, yet that will not enable the court 
 to decree a performance in specie {u) ; and, therefore, as 
 the principal cannot avail himself, in any civil proceeding, of 
 the conviction of the agent, he is a competent witness to 
 prove the perjury {x). 
 
 In Crop V. Norton (?/), Lord Hardwicke appears to have 
 been of opinion, that this doctrine of resulting tnist only ex- 
 tended to cases where the w^hole consideration is paid by one 
 person, and the conveyance taken in the name of the other. 
 He said, " this is where the whole consideration moves from 
 such person ; but I never knew it where the consideration 
 moved from several persons ; for this would introduce all the 
 mischief which the statute of frauds was intended to pre- 
 
 (r) Taylor v, Alston, cited in v. H-atchinson, 1 Dick, 44. 
 
 Dyer V. Dyer,Watk. Copyh.216, f ?^) B^irtlett v. I'ickersgiil, vbi 
 
 S. C. MS. ; Goodriirht v. Hodges, sup. 
 
 ibhl, 227 : Lofft, 230; 2 East, 534, (x) The King v. Boston, 4East, 
 
 11. ; Maddison v. Andrews, iVes. 572. See Fell v. Chambtrlain, 2 
 
 ^y. Dick. 4S4, supra^ p. 97 ; and see 
 
 (i)Sep3 Ridg. V. C- 178. the King V. Dalby, Peake's Ca.]2j 
 
 {ti Barllett v. Pickersgill,4 Bur. and the cases cited in the note. 
 
 2255; 1 East, 577. nb. See Rasfel irj) 9 Mod. 233, 
 
 vent.
 
 NAMES OF STRANGERS. 535 
 
 vent. Suppose several persons agree to purchase an estate in 
 the name of one, and the pmchase-money appears to be 
 paid by him only, I do not know any case where such per- 
 sons shall come into this court, and say, they paid the pur- 
 chase-money ; but it is expected there should be a declara- 
 tion of trust." 
 
 In the case of Wray v. Steel, the point called for a decision, 
 and the Vice Chancellor following the true principle, decided 
 in favour of the resulting trust. AVliat, his Honor asked, 
 is there applicable to an advance by a single individual that 
 is not equally applicable to a joint advance under similar 
 circumstances ? (z) 
 
 II. Before the statute of uses, if a father made a feoff- 
 ment to a stranger without any consideration, the law raised 
 <in use by implication to himself; but if he made a feoffment 
 to his son, no use arose to the father by implication ; bc- 
 ■cause the blood, wliicli is a sufficient consideration, fixed and 
 settled tlic estate in tlie son. And herein the law of trusts 
 <loth (as it ought to do) agree with the law of uses before 
 the statute of H. VIII. (aj. 
 
 Therefore, if a father purchase in the name of a child, 
 although illegitimate fbj who is witliout a provision fcj, 
 or in tlie joint names of such a cliild and of another per- 
 son (d), it will not be deemed a resulting trust for the father 
 but a gift or advancement for the child fcJ ; because a fa- 
 
 (r) 2 Vps. and Beam. 388. P. Wms. 112. 
 
 {a) See Fiiicb, 3 H. (e) Lady Gorge's casp, 3 Cro. 
 
 (6) Beckford v.BeckfordjLoflTf, 550, cited; I^ord Grpy v. Lady 
 
 490; Fearne's Posthuma, 327; Grey, 1 Clia. Ca, 296; Mnuima 
 
 Foublan.,ao'8 n.(l) to 2 Trea, Eq. v. Mumma, 2 Vtrii. 19; Shales 
 
 227, 2d edit- v Slialos, 2 Freciu. 252; 1 Kq- Ca. 
 
 (c) Elliot V. IClliot, 2 Cha- Ca. Abr. 382, pi. 9 ; Annon. 2 Fret-ni. 
 
 231 i and see Finch, 341- 128, pi. 151 ; Taylorv- Taylor, i 
 
 (r/) Lamplugb ?• Lamplugh, 1 A(k , 386. 
 
 2 M i thcr
 
 536 OF PURCHASES IN THE 
 
 ther is under an obligation of duty and conscience to ])ro-. 
 vide for his child in such case. And if tlie father die with- 
 out having paid all the purchase-money, his personal estate 
 must pay it for the benefit of his child ( /). 
 
 Where, by the custom of a manor, copyholds are granted 
 for lives successive, it has been holden, that if the father 
 pay the fine, a grant to children, as nominees, shall not be 
 an advancement for them, but a trust for the father {^), and 
 there seems some ground to support this distinction ; be- 
 cause the father could not have taken the whole estate in 
 his own name. 
 
 Eut this decision has been overruled, and it is now settled, 
 that such a purchase is, upon the general rule, an advance- 
 ment for the children, and not a trust for the father (//), 
 where the grant is immediate to the children, or even to the 
 father for their lives, if they can, according to the custom 
 of the manor, take at law under such a grant (i) : nor is it 
 material that the purchase is of a reversion expectant upon 
 the death of a stranger (J). 
 
 A purGha^se by a Papist incapable of purchasing, in the 
 name of a Protestant son, is a stronger case for an advance- 
 ment than a purchase by a Protestant parent ; because 
 otherwise a constructive trust prohibited by statute would 
 be raised fkj. 
 
 It has already been observed, that to make it an ad- 
 vancement, the child must be unadvanced; but an advancc- 
 
 C^") Redingtoh v Redlngton, 3 (:j See Right v. Bawden, 3 East, 
 
 Ridgway'sP. C. 106 ; see Reding- 260; Smartle v. Peiihallow, Lord 
 
 ton V. Uedington, 9th July, 1805, Ra^m. 994- 
 
 printed case House of Lords. (j) Finch y. Finch, 'iS Ves. J'un. 
 
 ig) Dickenson v. Shaw, cited in 43. 
 
 Dyer v Dyer, "VVatk. Cop)h-2l6; 'J:) Redington v- Redington, 3 
 
 iSC. MS. Ridg. P. C. 106; see ex parte 
 
 (h) Dyerv. Dyer, uhlsnp- ; and HoUjjhton, 17 Ves. Jun. 251. 
 see Swift ▼. Davis> East, 354,n. 
 
 mout
 
 NAMES OF CHILDREN. 537 
 
 ment in part is not material (I) ; and a cliild having only a 
 reversion expectant upon a life estate, will be considered as 
 unadvanced(^/;zj ; and even if the child be advanced, yet if 
 the father consider him unadvanccd, tliat will be suffi- 
 cient (71). 
 
 If the child is already provided for, and the father did 
 not consider him unadvanced (0), or if the father considered 
 the child, from the first, as a trustee for him, he will be 
 held to be so {jp) ; but the proof of this lies on the side of 
 the person wishing to defeat the child's claim ; and it seems, 
 that although parol evidence of verbal declaration is adir.is- 
 sible in support of the deed, it is inadmissible to create a 
 trust against it (q). 
 
 In Swift V. Davis (r), where a father was the sole pur- 
 chaser of an estate for three li^x's, who would take succes- 
 sive, and put in the lives of himself and his two sons ; and 
 at the same court obtained a licence from the Lord to him- 
 self and his mother (who had her widowhood riglit in the 
 copyhold) to lease for 70 years; Lord Kenyon laid it down, 
 that, in such a case, if the father afterwards grant a lease 
 by way of mortgage pursuant to such licence to lease, and 
 there be a custom in the manor of the first taker to dispose 
 of the estate as against the other lives, such custom may 
 so far operate as to divest the legal estate of the lives in re- 
 version, and give it to the lessee. Or, if there were any 
 doubt of that, or if the licence of tlie lord miglit be con- 
 
 (/) See Finch, 326. 354, n. -^ <y^^x^<^ X^^,^e^ 
 
 (m) Lamplugh v. Lamplugh, 1 (q) Shales y. Shales, 2 rrpem. 
 
 P. VVms. 111. 252; Lamplugh T.Lamplu^li, 1 
 
 (») Rediiigton v.Redington, ubi P.Wms. Ill; Taylor v. Tuylor.l 
 
 JJ'P' Atk. 386 ; Rrdington v. Reding, 
 
 (0) Elliott V. rllliot, 2 Cha. Ca. ton, 3 Ridg. \\ C. 106; Finch 
 
 231. V. Finch, 15 Ves. Jun.43. 
 
 (p) Woodman v. Morrcll, 2 (7) 8 Kast, 354, n. 
 
 Frcem. 32; Swift V. r>:uis.8East, 
 
 s trued
 
 538 OF PUllCIIASES IN THE 
 
 strucd to extend only to the first taker of tlie new copy 
 jointly with his mother, and the lirst taker alone execntcd 
 sncli heence after lier death, yet a court of equity (even if the 
 surviving life (the son) succeeded at law on his strict legal 
 title) would make the son, the surviving life, convey to his 
 father's lessee, and pay all the costs in law and equity. 
 
 Possession by the fatlier, during the infancy of his 
 child (.s), will not be deemed subversive of the child's 
 claim; for it cannot be supposed the parent would have 
 named a youth as a trustee ; and therefore his taking the 
 profits must be intended to have been done by him as guar- 
 dian to the son. In an early case (^), indeed, the tender 
 years of the child was considered as evidence that the father 
 did not purchase for his benefit, because he was too young 
 to need an advancement. 
 
 A distinction has been draAMi where the parent has taken 
 the profits after the child's coming of age, and when of dis- 
 cretion to claim his right (?/ ) ; in which case, it is said, the 
 child shall be a trustee for the father. But this cannot be 
 depended on. It seldom happens that the father gives the 
 son possession during his life ; and yet, as the court observed 
 in the case of Lord Grey v. Lady Grey (tc), in all cases 
 whatsoever, where a trust shall be between the father and 
 son, contrary to the consideration and operation of law, the 
 same ought to appear upon very plain and coherent and 
 binding evidence ; and not by any argument or inference 
 from the father's continuing in possession, and receiving the 
 
 (5) See Finch, 340,341 j Lam- (/) Sir George Binion v. Stcne, 
 
 pUigh T. Lainplugh, 1 P. Wms, Nels. Cha. Rep- 68; S: Freem.169; 
 
 112; Mumma v- Muinma, 2 Vero- see King v- Denison, 1 Ves. and 
 19 J Remington v. Redington, 3 Bea. 260. 
 
 llidg. P. C. 106. Note, the case (u) Lloyd v. Read, 1 P. Wms. 
 
 of the Attorriey-geniral v. Bagg, 6C8 ; and see Gilb. Lex Pretoria, 
 Hard. 135, turned on fraud. 271. 
 
 {to) Finch, 340. 
 
 profits,
 
 NAMES OF CHILDREN. 539 
 
 profits, wliich sometimes the son may not in good manner 
 contradict, especially where he is advanced but in part. 
 
 So the circumstance of the parent laying out money in 
 repairs and improvements, will not make the child a trus- 
 tee fa^J. 
 
 A declaration of trust by the father, suhseqiienthj to 
 the conveyance, will not divest the gift to the child {y ) ; and 
 therefore a devise by him of the estate will be inopera- 
 tive (z). 
 
 It is, however, quite clear, that according to the general 
 rule of equity, if the father devise to another the estate 
 bought in the name of the child, and make other provision 
 for the child by his will, he would at this day be put to his 
 election ; although in the early case of Shales v. Shales (tt), 
 where these circumstances occurred, the child was not put 
 to his election. 
 
 If the conveyance of the fee to a son is proved to be for 
 a particular purpose, as to sever a joint-tenantcy, the child 
 %vill be a trustee for the father {h). 
 
 A purchase by a father, in the joint names of himself 
 and son, will be considered as an advancement for the child, 
 if he is unprovided for ; and consequently equity will not 
 assist to defeat his legal claim (cj. 
 
 But a purchase in the names of father and son, as joint- 
 tenants, has not been considered so strong a case for an ad- 
 vancement as it formerly was ; it is said, that it docs not 
 
 ^j:) Shales v. Shales, 2 Frepm. Copyli. 216. S.C. MS. 
 
 252} Mamma v.Mummaj 2 Vern, (a) 2 Freem. 252. 
 
 19. (i) Baylis v. Newton, 2 \'ern. 
 
 (v) Woodman v. Morrel, 2 28 ; and see Birc'i v. Blagravc, 
 
 Freem. 32 ; Elliot v. Elliot, 2 Cha. Ambl. 264 ; Sir Walter Raleish's 
 
 Ca. 231 ; see Redington v. Reding- case, Hard. 497, cited. 
 
 ton, 3 Ridgw. P. C. 106. (c) Scroope v. Scrooiie, 1 Clia. 
 
 (z) Muinuia V. Mumma, 2 Ca. 27. 
 Vcni. 19 ; Dy cr v, Dyer, Watk. 
 
 answer
 
 540 OF PUIICHASE« IN THE 
 
 answer tlic purpose of an advancement, for it entitles the 
 father to the possession of the whole till a division, and to a 
 moiety ahsolutcly even after a division, besides the father's 
 taking a cliance to himself of being a survivor of the other 
 moiety : nay, if the son dies during his minority, the father 
 would be entitled to the whole by virtue of the survivorship^ 
 iiJid the son could not have prevented it by severance, he be- 
 ing an infant (dj. And accordingly, in a case (ej where a 
 father purchased an estate in the names of himself and son, 
 and had 7io other estate to which a judgment creditor could 
 resort, the creditor was relieved in equity against the survi- 
 vorship at law ; the settlement being considered as voluntary 
 and fraudulent against creditors (/). 
 
 Eut there does not appear to be much weight in the 
 reasonp above stated. Jt is evident that a moiety of some 
 estates may be a much better provision than the entirety of 
 others. The chance of survivorship which the father takes 
 is an incident to the tenantcy, and extends equally to the 
 son, who, after he attains his majority, may sever the joint- 
 tcnantcy. If he die during his minority, it is as well 
 that the estate should survive to the father, who paid the 
 purchase-money, and perhaps took the conveyance to him-r 
 self and son as joint-tenants, with the express view of ad- 
 vancing him only in the event pf his attaining that age at 
 wliich the law considers a man capable of managing his 
 fortune. During the son's minority and the life of his fa- 
 ther, upon whom should he be dependent, if not upon his 
 own parent ? If the father die during the son's minority, 
 the estate will survive to him ; so that, perhaps, it is impos- 
 sible to contend with success, that a purchase by a parent 
 in the name of himself and child, as joint-tenants, is not 
 
 (ef)PerLordHardwicke, 2Atk. (c) Stileman v. Ashdown, 2 
 
 480; andspePoIev. Pole, 1 7es. Atk. 477. 
 •"6. {/ See 13 Eliz. c. 5. 
 
 as
 
 NAMES OF CHILDREN. Ml 
 
 lis strong a case for an advancement as a purchase in the 
 name of the child solely. Fraud is of course an exception 
 to every rule. 
 
 A purchase in the name of a child solely, or jointly T\ith 
 the parent's name, is not, however, within the 27th Eliz.f^^). 
 And therefore a subsequent purchaser, although bona fide, 
 will not be relieved against it fhj. 
 
 But such a purchase is expressly within the letter of the 
 21st of James I. fij if the father be a trader at the time ; 
 and his being solvent will not protect the purchase [kj. But 
 if the purchase be made before the father engages in trade, 
 and without any fraudulent purpose of becoming a bank- 
 rupt, it will be good, although the father afterwards com- 
 mence tradesman, and is made a bankrupt (Ij. 
 
 If the father be dead, a purchase by the grandfather, in 
 the name of his grandchild, is subject to the sj.me rules as 
 govern a purchase by a father in the name of his child ; for 
 on the death of the father, the gi'andchild is under the pro- 
 tection of the grandfather f'?w) ; but in Lloyd v. Read (;;), 
 this distinction! does not seem to have been attended to. The 
 case, however, depended upon its own peculiar circum- 
 stances. 
 
 So a purchase by a husband in the name of his wife, is 
 also deemed an advancement and provision for her (o). But 
 if a purchase in the name of wife or child be after raarriag« 
 and voluntary, it may perhaps be fraudulent as against cre- 
 
 (g) C 4, 548; Lilly v. Osborn, 3 P. Wms. 
 
 Ui) Lady Gorge's case, 3 Cro. 298 ; and see 8 Ves. Jun. 200, 
 
 550, cited. 204. 
 
 (i, See Walker V. Burrows, 1 (?«) Ebrand v. Dancer, 2Cba. 
 
 Alk. 93. Ca. 26. 
 
 (A) Fryer v. Flood, 1 Bro. C.C. («) 1 P. Wms. 608. 
 
 160; Glaister t. Hower, 8 Ves. (y) Kingdome t. Bri'dg*'*, Back 
 
 Jun. 195. V Ajidrcwj. 2 Vern. 67, 120- 
 
 (/) Crisp T. Pratt, Cro. Cur. 
 
 ditors
 
 S42 OP ruuciiAsEs in the 
 
 ditors (/>), in like manner as if the settlement was of prO' 
 perty actually vested in the husband, in even which case it 
 seems that the husband must be proved to have been in- 
 debted, at the time of the settlement, to the extent of in- 
 solvency, in order to affect the settlement {q). It has, how- 
 ever, been strenuously argued, that a purchase is not with- 
 in the operation of the statute of 13 Eliz. ; for, as the pur- 
 chaser may give the money to the object of his bounty to 
 purchase the estate for himself, he may by the same reason 
 direct a conveyance to be made to him ; and this seems to 
 be the better opinion, where the case is clear of actual 
 fraud (r). 
 
 A purchase by a trader in the name of his wife, seems 
 subject to the same rules as a purchase by a trader in the 
 name of his child {s). But a purchase by a trader of the 
 land-tax on his wife's estate, for her benefit (^), or of an m- 
 franchisement of his wife's copyhold estate, or money laid 
 out by him in building on her estate, being mere voluntary 
 expenditure, cannot be made a ground of charge against 
 her or her estate by his creditors, although he was insolvent 
 at the time (w). 
 
 On this subject it remains only to remark, that Lord 
 Chief Baron Gilbert observes (a'), that a difference is taken 
 between a purchase in the name of a son and of a daugh-' 
 tor ; for though sons are often provided for by settlement 
 of lands, yet daughters seldom arc, therefore the presump- 
 tion is not so strong. The learned author does not, ho^- 
 
 {p) Clirisf s Hospital v. Budgin, (*) See Glaister t. Hewer, 8 
 
 2 Vern. 683. ^'es. Jun. 195 ; 9 Ves. Jun, 12; 1 i 
 
 (y) See Lusli r. Wilkinson, 5 Ves. Jun. 377. 
 
 Ves. Jun, 381. {t) Burrough's case, ' 17 Ves, 
 
 (?) See Fletcher v. Sidley, 2 Jun, 267, cited. 
 
 Vtrn, 490; Proctor v, Warren, {u) Campion t. Cotton, 1/ VeSi 
 
 Sel. Cha. Ca. 78 ; and 8 Ves. Jun. Jun. 263. 
 
 199. (<r) Lex PraBtorift, 272. 
 
 ever
 
 kames of children. 513 
 
 ^ter, refer to any case in support of his position ; and in 
 Lady Gorge's case she appcxirs to have enjoyed an estate 
 purchased hy her fatlier, the Karl of Lincoln, in her 
 name fy). Indeed, admitting the general rule, as to pro- 
 viding for daughters by settlement of lands, where there is 
 a son ; yet, in the case under consideration, the purchase 
 itself is strong evidence of the intent, more especially as a 
 woman is an unfit trustee of a real estate, as she might 
 marry, and then a conve3^ance of the estate coukl not be ob- 
 tained without a fine. 
 
 SECTION III. 
 
 Of Purchases with Trust-Money. 
 
 If a trustee, or executor, purchase estates with his tnist- 
 inoney or assets, and take the conveyance in his ov/n name, 
 witliout the trust appearing on the face of the deeds, tlie 
 estates will not be liable to the trusts, although he die in- 
 solvent, unless the application of the purchase-money can 
 be clearly proved. Aiid tlie same principle applies to a 
 purchase by a luisband with trust-money belonging to his 
 wife, of which he may have obtained possession from tlie 
 trustee, whether with or without the wife's consent ; or to 
 a purchase by an agent or steward Vv'ith monies remitted to 
 him by his principal (z). 
 
 (y) Ladjr Gorge'f case, 3 Cro. {z) Bennet v. Mayliew, 1 Bro. 
 
 550, cited. C. C.232 ; 'i Bro. C.C.'J87, cited, 
 
 ill
 
 54f4 OF PUECIfASES 
 
 In the old cases (a) the courts of equity were much nioi;^ 
 gtrict in the proof they admitted of the application of the 
 money, than they now aie ; but it was always very clear, 
 that upon sufficient proof of the trust-money having been 
 laid out in the purchase of the estate, a trust would result 
 and be decreed accordingly (h). Parol evidence is, in these 
 cases, admissible either in the life-time, or after the decease 
 of the trustee : but unless there are corroborating circum- 
 stances, as a writing under the trustee's hand, stating the ap- 
 plication of the money, or the inability of the trustee to 
 make the purchase with other funds (c), mere parol evidence 
 of declarations supposed to be made by the purchaser, will be 
 received with great caution. 
 
 Where a trustee or agent is bound by the trust to lay out 
 tlie money in land, if he lay it out accordingly, it will be 
 presumed to have been done in execution of the trust {d). 
 
 But if a trustee has considered himself entitled to the 
 trust money for his own benefit, no presumption can be 
 raised in opposition to this fact, that he intended any lands 
 he may have bought with the trust-money to be subject to 
 the trust {e). 
 
 Here we may introduce a case, where a man, on his mar- 
 liage, contracted to assure all such personal estate as he 
 
 . (a) Kirk v. Webb, Prec, Cha. Ves. Jun. 511 ; Wilson v. Fore- 
 
 84 ; Heron v. Heron, Prec. Cha, man, 2 Dick. 593, as corrected by 
 
 163; Haicottv Markant, Prec. the Master of the Rolls, 10 Ves. 
 
 Cha. 168 ; Kendar v. Milward, Jun. 519; and see Anon. Sel. 
 
 2 Vern. 4-10 ; Prec. Cha. 1 7 1 ; see Cha. Ca. 57. 
 
 Cox T. Bateman, 2 Ves. 19. (d) See the cases in Sect. 4, 
 
 {L) Anon. Sel. Cha. Ca. 57 j hijra. 
 
 Lane v. Dighton, Ambl. 409; (e) Perry v. Phelips, 4 Ves. Jun. 
 
 Balgney V. Hamilton, cited 2*?W; 108; 17 Ves. Jun. 173; and 
 
 Ryallv.RyalljlAtk, 59; Ambl. see Cox v. Paxton, 17 Ves. Jun. 
 
 413 ; and see Earl of Plymouth 329 ; Savage t. Carroll, 1 Ball 
 
 V. Hickman, 2 Vern. 167. and Btatty, 265, supra p. 163. 
 
 (c) Sec Lench t. Ltncb, 10 
 
 should,
 
 WITH THUSt MONEY. 5^5 
 
 fslioultl, during the joint lives of him and his "wife, be pos- 
 sessed of, upon certain trusts. He purchased a real estate, 
 for which he paid partly out of his own monies, and partly 
 out of monies borrowed on his personal security. It was 
 insisted, that the real estate was bound by the trusts : but 
 Lord Eldon determined, that it belonged to the heir, but 
 charged for the benefit of the persons claiming under the trust, 
 with the purchase-money paid by the husband out of hi$ 
 own funds and lasting improvements on the estate; and also 
 with the money borrowed, which he in his lifetime paid off 
 out of his personal estate, and the estate was held the pri- 
 mary fund for payment of the money borrowed. In this 
 case it mil be seen, that the application of the settled fimd 
 was clearly traced, for all the husband's personal estate was 
 bound by the settlement ; and the only question was, whe- 
 ther the cestui que trust should have the estate, or the trust 
 fund, laid out in the purchase of it (/). 
 
 SECTION IV. 
 
 'Dfihc Performance of a Covenant to purcliasc and settle 
 
 an E. state. 
 
 V V HERE a man covenants to purchase, and settle, or, 
 liaving no real estate, to convey and settle lands, and after- 
 ^vards accordingly purchases lands of equal or greater value, 
 
 (/) Lewis T. Madocks, 8 Ves. Denton t. DaTies, 18 Ves. 499. 
 Jun, 150; \7 Ves. Jun, 48.; see 
 
 2 N but
 
 546 
 
 OF THE PERFORMANCE OF COVENANTS 
 
 biit neglects to settle them, yet they shall be held to have 
 been purchased uith an intent to perform the covenant, and 
 shall accordingly go in performance of it (g), and the heir 
 raiLst give up the estate, although he is not the person en- 
 titled to the benefit of the covenant (h). 
 
 It is even a general rule in equity that, where a man 
 covenants to do an act, and he does that which may j^^o 
 tanto be converted to a completion of the covenant, he shall 
 be presumed to have done it with such intention (/). 
 Therefore, where the covenantor has purchased lands, but 
 not of sufficient amount to wholly perform the covenant, 
 yet they shall go in performance of it as far as they will 
 extend (k). It may not be possible to lay out all the money 
 in one piu-chase ; but that is not a sufficient reason why the 
 estates actually purchased should descend to the heir at law 
 for his own benefit, to the entire ruin, perhaps, of the rest of 
 the family. 
 
 The like principle has heen extended to a case where the 
 covenantor was to pay the money to trustees, to be by them 
 laid out in the purchase of estates (/). 
 
 It is not material in these cases, that the purchase was to 
 be made with the consent of persons whose consent was 
 never even applied for {7?i), or within a limited time, and the 
 ])urchase was not made till after the expiration of the time 
 
 (g) Wilcocks V. Wilcocks, 2 
 V«rn. 558 ; Deacon v. Smith, 3 
 Atk. 323. 
 
 (h) Garthshore r, Chalie, 10 
 Ves. Jun. 9. 
 
 (i) See Sowden v. Sowden, 
 Cox's n. 3 P. Wmg. 228. 
 
 {k) Lechmere v. Earl of Car- 
 lisle, 3 P.Wms. 211; For. 80, 
 MS. App. No. 22, a fuller note of 
 this part of Lord Talbot's judg. 
 
 ment ; Whorwood v, "WhorwooJ, 
 1 Ves. 540 ; Sowden v. Sowdeii 
 3 P, Wmi. 228, n. ; 1 Bro. C. C. 
 582 ; see 4 Ves. Jun. 116, 117; 
 10 Ves. Jun. 9. 516 j Gardner T. 
 Lord Townsend, Coop. 301. 
 
 (/) Sowden v. Sowden, 1 Bro, 
 C. C. 582. 
 
 (in) Lechmere t. Earl of Car- 
 lisle, vbi sup. 
 
 appointed
 
 TO PURCHASE ESTATES. 547 
 
 appointed {n). Nor is it important that there was a sub- 
 sisting mortgage on the estate, upon wliich the covenantor 
 took up money from another person in order to enable liini 
 to complete the purchase (o). And it will not vary the case, 
 tliat the covenantor had an option to settle a rent charge in- 
 stead of the lands themselves, imless he have shewn an in- 
 tention to avail himself of his right to elect {p). 
 
 But where a clear intent appears to lay out the entire 
 sum in the future purchase of lands, estates of which the 
 covenantor was seised at the time of tiie covenant, and 
 which he permitted to descend, cannot go in performance of 
 the agreement, because such clearly could not liave been his 
 intention {q). 
 
 And, to enure as a performance, the property purchased 
 must be such as will answer the intent of the settlement (r). 
 Therefore, under a covenant to purchase fee simple lands in 
 possession, estates in reversion, expectant, upon lives, will 
 not go in performance {s), unless, perhaps, they fall into 
 possession in the covenantor's life-time ; neither will lease- 
 holds for lives, nor terms of years, even with covenants to 
 purchase the fee, go in pei-formance, as they cannot descend 
 to the heir (t). 
 
 So a moiety of a house would not be considered a kind 
 of j)roperty within a covenant to purchase lands of inheri- 
 tance : nor would lands, having a different descent, as 
 borough english lands, which descend to the youngest son, 
 instead of lands descendable to the eldest son, accordinir to 
 the course of the common law (u). Neither will copyhold 
 
 (n) S C. and see 3 Atk. 329. (s) I eclimerc v. Ear'of Carlisle, 
 («) Deacon v. Smith, 3 Atk. 323. 3 P. Wms. 211; Deacon v. Smith, 
 (p) Deacon V. Smith, 3 Atk. 323. 3 Atk. 323; Whorvrojd v. Whor- 
 (9) Lt'chniere v. Karl of Carlisle, wood, 1 Ves. 540. 
 For, 80, (i iibi sup. ; see Du?ys v. (/) I-ecbmere v. Earl of Car- 
 Howard, 5 Pro. J*. C. 552. lisle, uln mp. 
 
 (r) See Lewes t. JJill, 1 \'es. (u) P.^nni!I v. Ilallett, Anibl. 
 
 274. 106, 
 
 2 N 3 estates
 
 548 or THE perforManck of covenants 
 
 estates go in part performance of a covenant to purchase 
 freehold lands, where the nature of the tenure would prevent 
 compliance with the terms of the settlement, as where the 
 estate is to be settled on one for life without impeachment 
 of waste {oc). But where this circumstance does not occur, 
 copyhold estates may, it should seem, go in part perform- 
 ance of a covenant to purchase real estates (i/), although 
 I^ord Ilardwickc seems to have doubted whether copyhold 
 lands could go in performance, as they are liable to different 
 tenures, and to forfeiture (2). 
 
 Where the purchase was made honafule with an intent 
 to perform the covenant, the lands must, it is conceived, in 
 most cases be taken at the price paid for them {a), or at least 
 at their value at that time. This construction, however, is- 
 not made to the prejudice of purchasers, for if the covenantor 
 sell the estates, it v.illbe evidence of his intention that they 
 should not be bound by the settlement, and therefore they 
 could not be followed in the hands of the purchaser (h). But 
 it is no objection in these cases, that the arrangement will 
 affect specialty creditors, for it is in the power of the owner 
 of the estate to prefer one specialty creditor to another, be-^ 
 cause none of them have any specific lien on the lands [c). 
 
 It may be considered as a general rule, although it may 
 not hold universally true, that a covenant to convey and 
 '(Settle lands, will not be a specific lien on the lands of the 
 covenantor, but the covenantee will be a creditor by specialty. 
 In one case, v/here a man gave a bond, before marriage, to 
 convey sufficient freehold or copyhold estates, to raise 6OO/. 
 per annum, for his intended wife, in bar of dower,^ she wa& 
 
 (x) Pennill v. Hallett, icli sup, 1 Ves. 540. 
 
 (y) Wilks T. Wilks, 5 Vin. (G)Lechmere v. Earl of Carlisle^ 
 
 Abr. 293, fol. 39. Note, the co- For. 80 ; see and consider Pennill 
 
 \enaat was generally to purchase v. Hallett, Ambl. 106. 
 
 land^, ib) Smith v. Deacon, 3 Ails.. 323^ 
 
 (s) WhorwooJ V, Whorwood, (c> S. C. 
 
 decreed
 
 TO rUUCIIASE ESTATES. 549 
 
 ^ccreofl to he a creditor, b)' specialty of her Inisband, and to 
 he entitled to be paid the arrears of her annuity, out of his 
 personal estate, in a course of administration; and if the 
 same should not be sufficient, then out of tlie real estates 
 of which he died seised in fee simple, and if those should 
 not be sufficient, then out of the real estates in settlement 
 qfxvhich he was tenant in tail, provided such deficiencies 
 did 7iot exceed the amount of the dower which she xcoutd 
 have been entitled to the?rout, in case she had not accepted 
 the a7inuity for her life, as afo7Xsaid {d). I^ord Thurlow, 
 in a subsequent stage of the cause, said, that the court had 
 charged the real, in aid of the persomil, by a very subtle 
 equity, because, if she had not made a contract of forbear- 
 ance of dower, the entailed estate would have been liable to 
 lier dower. 
 
 id) For.ttr v. Forstor, 3.1 Ffcb. 1787, MS. See 3 Bro. C. C. iOO. 
 
 2 N 3 CHAP.
 
 [ 550 ] 
 
 CHAPTER XVI. 
 
 OF THE PROTECTION AND HEI.IEE AErOIlDED TO 
 PURCHASBUS BY STATUTES, AND BY THE RULES OF 
 EQUITY. 
 
 In the former chapters an attempt has been made to trace 
 the purchase from its inception by contract, to its comple- 
 tion by conveyance; the subjects which may be said to arise 
 out of the conveyance have been treated of; and it hath 
 been considered who are incapable of purchasing cstat(^, 
 Let us now suppose the purchase to be completed, and 
 proceed to inquire to what protection and relief purchasers 
 are entitled. The protection and relief afforded to pur^ 
 chasers, appear to arise either from positive statutes, or 
 from the rules of equity. The common law hath, indeed, 
 done all which, from its peculiar nature, it can do in 
 support of the claims of hovafuJc purchasers; for we arc 
 told, that the maxims of the ccmmon law, which refer to 
 descents, discontinuances, non-claims, and to collateral 
 warranties, are onlv the wise arts and intentions of the law 
 to protect the possession, and strengthen the rights of 
 purchasers («). Lord Mansfield indeed held, that in every 
 case between purchasers for valuable consideration, a court 
 of equity must folhiv, and not had the law. And the 
 rules of equity were, in his time, pretty generally adopted 
 
 (a) Finch, 104 j see Bac on Uses^ S6.
 
 OF PROTECTION FHOM VOLUNTARY SETTLEMENTS. 551 
 
 in the courts of law ih). It coiild not long escape observa- 
 tion, that from the peculiar constitution of this country, 
 the rules of law and equity ought ever to continue distinct; 
 and accordingly all the great judges who liave succeeded 
 Lord Mansfield have determined that the legal estate 
 must prevail at law (c). We need, therefore, only con- 
 sider, first, the statutes which have been passed for the 
 protection or relief of purchasers : and, secondly, the rules 
 of equity iu favour of purchasers. 
 
 SECTION I. 
 
 Of fraudulent and voluiitary Settlcjncnts; and Scttic-^ 
 ments with Powers oj Revocation. 
 
 1. Jr IRST then. By 27 Eliz. c. 4. {d) it is enacted, that 
 all conveyances, grants, &c. out of any lands, tenements, 
 or other hereditaments, to be had or made for the intent 
 and of 'purpose to defraud and deceive such persons as 
 shall purchase the same lands, tenements, or other here- 
 ditaments, so fonnerly conveyed, granted, &:c. or any rent, 
 profit, or commodity, in or out of the same, shall be 
 deemed and taken only as against such persons and their 
 
 {!,) Keech v. Hall, Doi.gl. 22; Jun. 17i; 3 Bos. ami Pull. 162; 
 
 Weakley v. Btickncll, Cowp. 473. ami 1 Scho. and Lof. 66 ; Doe y. 
 
 This practice did not escape the Morris, 1 Taunt. 52. 
 
 enquiring eye of Junius; see vol. {d) Made perpetual by 30 Eliz* 
 
 2, 41, 384. 18, s. 3. 
 (c) See 5 East, 138; 6 Ves. 
 
 2 N 4 reprs
 
 552 or PROTECTION PROM 
 
 representatives as should so purchase for mouey or other 
 good consideration, the same lands, tenements, or other 
 liercditaments, or any rent, profits, or commodity in or out 
 of the same, to be utterly void. 
 
 15ut it is provided, that the act shall not extend to make 
 void any conveyance, &c. to be made for good consideration, 
 and bona fide, to any person. 
 
 And it is also enacted, that if any person shall make 
 any conveyance, &c. of any lands, tenements, or heredita-. 
 ments, with any clause of revocation or alteration at his 
 pleasure of such conveyance, &c. and shall afterwards sell 
 the same to any person or persons for money or other good 
 consideration paid or given (the said first conveyance, &c, 
 not being revoked according to the power reserved by the 
 said seci^et conveyance, &c.) then the said first conveyance, 
 &c. as touching the lands, tenements, and hereditaments 
 so after sold, against the vendees, &c. shall be deemed and 
 be void, and of none effect. Provided that no bonajide 
 mortgage should be affected by the act. 
 
 To take advantage of this statute, a person must have 
 purchased bona Jide^ and for a valuable consideration, but 
 the coiu*t will not enter into the adequacy of the conside-. 
 ration, unless it was so small as to be palpably fraudulent 
 ((•). AVhatever consideration would be sufficient to support 
 an original settlement, will be sufficient to avoid a prior 
 voluntary one. The subject of the sale must, however, be 
 an existing lawful interest. Thus in a case mentioned by Sir 
 Edward Coke, in his Commentary on Littleton ( /) A had 
 a lease of certain lands for sixty years if he lived so long, and 
 
 (c) Upton V. Bassett, Cro. Eiiz. v. Bishop of Exeter, 2 Taunt. (tO ; 
 
 444 ; Doe v. Routledge, Cowp. Doe v. James, 16 East, 212; see 
 
 705; Nedham v. Beaumont, 3 1 V^es. and Beam. 184; Treatise 
 
 Rep. 83, b J 2 And 233 ; Doe t. of Powers, p. 345. 
 
 Routledge, Cowp. 705; sfe Bui- (/) Co. Litt. 3 b; see Haltoo 
 
 lock V. Sadlier, Ambl. 764 ; HiU v. Jones, Bull. N. P, 90. 
 
 forged
 
 VOLUNTARY SETTI>EMEXTS. 55ti 
 
 forged a lease for ninety years absolutely, and he by indenture 
 reciting the forged lease, for valuable consideration, bargained 
 ^nd sold the forged lease, and all his interest in the land to 
 B. Sir Edward Coke adds, that it seemed to him that B 
 was no purchaser within the statute of 27 Eliz- for he con- 
 tracted not for the true and lawful interest, for that was not 
 known to him ; for then perhaps he would not have dealt for 
 it, and the visible and known term was forged ; and although 
 by general words the true interest passed, notwithstanding 
 he gave no valuable consideration, nor contracted for it. 
 And of this opinion were all the judges in Serjeant's Inn. 
 
 In the construction of this act it hath been holdcn, tliat 
 although the fraudulent conveyance is not made by the ven- 
 dor himself, yet it is void against a pm'chascr. Therefore, 
 if a fatlier make a fraudulent lease, and then die, and the 
 person claiming under him sell the estate, the purchaser shall 
 avoid the lease, whether the vendor did or did not know of 
 its existence ig). 
 
 And the statute being general, and made to suppress 
 fraud, extends to fraudulent conveyances to the King. 
 Therefore, in the case of INIagdalen College (//), it was re- 
 solved by Lord C. J. Coke, that if tenant in tail be seised 
 of land, the remainder over in tail or in fee, and he in re- 
 mainder knowing the tenant in tail will alien the land, and 
 by rccoveiy bar his remainder, to the intent to deprive the 
 tenant in tail of his birthright, and the power which the law 
 gives him to bar the remainder, and on puqiose and witli 
 intent to deceive the purcliascr, grants his remainder to tlie 
 Queen ])y deed enrolled, and afterwards tenant in tail, for a 
 valuable consideration, aliens the land by a comnmn recovery, 
 r.nd dies without issue, tlie purcliascr shall enjoy the lease 
 ;:gainst the Queen, by the statute of Elizabeth. And of 
 
 (g) Durrell's case, 6 Rep. Uti. 3 b. 
 72; Jones v. Groobham, Co, (//) U Rep. 66. 
 
 such
 
 554 or rnoTECTioN from 
 
 such opinion was Popham, C.J. openly in the P^xclicqucr 
 Chamher. This is a very important resohition, and shews 
 in the strongest view, how Hberal a construction this statute 
 hath received, for the Queen was not a party to the fraud, 
 »nd by her prerogative at common law, the reversion in her 
 could not be aJfiPccted by a connnon recovery (f). 
 
 It hath been determined (A.), that notice to a purcliascr of 
 a fraudulent conveyance is of no consequence, for the statute 
 makes it absolutely void. 
 
 A conveyance for payment of debts generally, to which 
 no creditor is a party, nor any particular debts expressed, is 
 a fraudulent conveyance within this statute, against a sub- 
 sequent purchaser for valuable consideration (/). 
 
 But if the conveyance were made with an honest intent, 
 and the purchaser had notice of the trust, it seems that he 
 will not be relieved against it i7?i). And upon the whole, as 
 Mr. Roberts justly remarks (/z), these are cases of such 
 danger to purchasers, that a prudent adviser cm hardly 
 recommend a title which has been at all the subject of 
 arrangements for the payment of debts Remaining un- 
 satisfied. 
 
 II. It has in numerous cases been holden, that voluntary 
 
 ^/y" A^f^ settleni'^nts arc within the meaning of the act, although the 
 
 ^/^^'^ purchaser had direct notice of the settlement at the time of 
 
 ^>*->^/^l/' his purchase. This doctrine has, however, been frequently 
 
 ^^^^z^^ questioned, but appears to have been incontrovertibly settled 
 
 ^'^y^ ^^ ^^^ Wiseman's case, and 249. >*^^ '^'^^'^^'^J^Jc.^'^y^ 
 
 ^^-^^^ Au Chomley's case, 2 Rep. 15, 50 j (w) Langton v. Tracey, 2 CKa.'^'" 
 
 ^^.£:J^/»4^*H' andsee2 Ro. Abr. 393, T. Reco- Rep. 16. See Sttvenson v. Hay- 
 
 / y &/ji ]^ verie common. ward, Prec. Cha. 310. 
 
 ^ ^ (k) Gooch's case, 5 Co. 60 a. (n) Vol. Conv. 335. 
 
 ^ " (/) Leech V. Lrech, 1 Cha, Ca. ^
 
 VOLUNTARY SETTLEMENTS. 55v 
 
 fey the case of Taylor v. Stile (o), which arose in York- 
 shire. 
 
 In that case. A' settled lands, after his marriage, on liis 
 ^vife for life, and then sold the lands to B, wlio had notice 
 of the wife's estate for life, and took counsel's opinion on the 
 point. A. died, and his wife brought her hill to be let into 
 lier life estate. Lord Northington held the law to be clear, 
 that a subsequent purchaser for a valuable consideration, 
 though with notice, should set aside a voluntary settl'^ment ; 
 ]but it being suggested that there was no ^•aluable consider- 
 ation, an issue was directed to try that fact, which coming on 
 before Mr. Justice Bathurst, at York, he suffered the counsel 
 to enter into the equity; and after hearing the argument, 
 said, he knew Lord Hardwicke had determined, in twenty 
 instances, in the same manner as Lord Northington. The 
 consideration was proved, and the cause came on to be 
 heard before the Chancellor on the equity reserved, ^Yho 
 thereupon dismissed the bill. 
 
 And in a very recent case, Lord Chief Justice Mansfield 
 held, that the court could «ot, v»'ithout overturning the 
 «ettled and decided law, hold that the prior voluntaiy con- 
 veyance could 4efcat a conveyance to a purchaser for a 
 valuable consideration (/?). The point has been recently de- 
 cided the same way by the Court of Exchequer {g), and 
 since that, by the Coui't of King's Bench (/), althorgh in 
 the last case the purchaser had notice of the settlement ; and 
 upon a trial at nisi prius, Mr. Justice Heath attached some 
 importance to the circumstance of notice, and the jury found 
 for the defendants claiming under the settlement, conceiving, 
 
 (o) Chancery, 17G3, MS. ; and (7) Doe v. Hopkins, 9 East, 
 
 see Evd)'n v. Templar, 2 Bro. C. 70, ciiid. 
 
 C. 148. (r) Doe T. Manniiig, 9 East, 
 
 (p) Doe V. Martyr, 1 Ne\¥ R^^p. ^^. 
 332.
 
 556 OF rROTECTlON FROxM 
 
 as I am told, tlic settlement not to be fraudulent uithin the 
 i;tatute, thoui;]i voluntnry. In a still later case, the rule 
 wiis again confirmed by the Court of ConiDion Pleas (s). 
 "Nor will a purcliaser be aft'ectedby a covenant, in the settle- 
 ment, that the purchase-money should be paid to trustees, 
 to be laid out by them in other lands to be settled to the 
 f»amc uses (/). 
 
 Here it will be pioper to consider, what is a voluntary 
 settlement, and what will be deemed a valuable considera- 
 tion ^vithin the act, so as to protect a settlement against 
 subsequent purchasers. 
 
 Any conveyance executed by a husband in favour of his 
 wife or children, after marriage, which rests wholly on the 
 moral duty of a husband and parent to provide for his wife 
 and issue, is voluntary, and void against purchasers by force 
 of the act {n). 
 
 But a imrchase m the name of a wife or child is not 
 \\ ithin the intention of the act, and consequently cannot be 
 defeated by a subsequent purchaser {x) : and on the ground 
 of policy it seems, that a settlement by a widow, previously 
 to her second marriage, of her estate on the children of the 
 first marriage, will not be deemed fraudulent (?/). 
 
 And a settlement made on a wife or chikh-en, prior to 
 marriage, is a conveyance for valuable consideration, by rea- 
 son of tiie marriage itself {z), but a settlement after a mar- 
 
 {s) Hill T. Bishop of Exttcr, 2 C.C H8 } see Parker v, Serjeant, 
 
 Taunt. 69 ; and see 18 Ves. Jun. Finch, 146. 
 
 Ill, per Sir Wm. Grant. (x) Supra, ch. 15, s. 2, iKt. II, 
 
 (/) Evelyn v. Templar, 2 Bro, (;y) Newstead v. Searles, 1 Atk, 
 
 C.C. 148 J see 18 ^'es. Jun. 91, 265; see Cowp. 280; Cotton v. 
 
 93, 112. King, 2 r. Wms. 674. 
 
 (?/) Woodie's case, cited in Col- (z) Colvile v. Parker, Cro. Jac. 
 
 vile V. Parker, Cro. Jac. 158; 158; Douglas v. Waad, 1 Cha. 
 
 Goodright v. Moses, 2 Blackst. Ca. 99 ; Brown v. Jones, 1 Atk. 
 
 1019 ; Chapman v. Emery, Cowp. 188. 
 278 ; Evelyn v. Templar, 2 Bro. 
 
 riage
 
 Voluntary settlements. S.Sf 
 
 tiage in Scotland, will not be deemed a settlement upon 
 Valuable consideration, although, subsequently ta it, the 
 niarriage is re-celebrated in l^higland (a). 
 
 The marriage consideration runs througli the whole set- 
 tlement, so far as it relates to the husband, and wife, an<l 
 issue (b). Whether the marriage consideration will extend 
 to remainders to collateral relations, so as to support them 
 against a subsequent sale to a bona fi.de purchaser, is a sub- 
 ject which has been frequently discussed (c). 
 
 In a case in Lane {d) it is stated to have been held, that 
 " if a man doth, in consideration that his son shall marry 
 the daughter of B, covenant- to stand seised to the use of 
 the son, for life, and after to the use of other his sons, in 
 reversion or remainder; these uses, thus limited in remainder, 
 are fraudulent against a purchaser, though the first be ujK)n 
 good consideration, viz. marriage." — In this case, therefore, 
 although the settlor was under a moral obligation to provide 
 for his sons, yet the remainders were not held good. They 
 were, it will be observed, to take effect after a vested estate 
 for life only. The case of Jenkins v. Keymis (e) has some- 
 times been considered a case, where the consideration of a 
 marriage, And marriage portion, v/as held to run tinough all 
 the estates raised by the settlement on the marriage, though 
 the marriage was not concerned in them {/). The point, 
 however, was not decided. It was merely the inclination of 
 Hale's 0])inion. It was not necessary to decide the point, 
 for Sir Nicholas was tenant for life, and Charles tenant in 
 tail, with remainders over ; the concurrence of both, therc«- 
 fore, was essential to give effect to the settlement, which 
 
 (a) Ex parte Hall, 1 Vcs. and (<i) Lane 22 ; and see 2 Ro. 
 B»»am. 112. Rep. 306; Jasun v. Jervis, 1 Vern. 
 
 (b) Nairn v. Frowse, 6 Ve», 286. 
 
 Jun. 752. (e) 1 Lev. 150, 237} I Clitr, 
 
 (c) See 6 Ves. Jun. 750; 18 Ca. 105. 
 
 Vts. JuD. 92, (/) Sec 9 East, 69. 
 
 bring*
 
 558 OF PllOTECTION FKOM 
 
 brings it within the rule laid down in Roe v. Mitten {g). 
 Besides, the son paid to his father, the portion which he re-r 
 ceived with his wife (/^). Lord Keeper Bridginan is also 
 reported, by Levinz, to have agreed with Hale, tliat the 
 marriage and portion of the first wife would extend to the 
 issue of the second ; but this opinion was extrajudicial, inas- 
 much as he relieved against the defective execution of the 
 power (t) ; and it is observable, that no such opinion is stated 
 in the report in Chanceiy (k). The case of White and 
 Stringer {I) does appear to be an authority for such limita- 
 tions, after a vested estate tail : the remoteness of the rc- 
 mamder was much relied upon in its favour. But even 
 in that case there were special circumstances ; the remainder 
 was excepted in the purchase deed, and the purchaser took 
 a collateral security against it. It may be thought, there- 
 fore, that he only purchased the reversion in fee which was 
 in the settlor from whom he bought. The case of Osgood 
 V. Strode (?«), like Jenkins and Keymis, depends on the cir- 
 cumstance, that the father and son had each an interest in 
 the estate, and one could not make the settlement without 
 the other. Lord Macclesfield, however, considered the mar- 
 riage portion not to go beyond the limitations to the hus- 
 band, and wife, and issue ; and his subsequent observations 
 are addressed to creditors, and not to 'purchasers. The 
 case of Roe and Mitton {n) depends on the same principle, 
 and is so far an authority against the validity of the remain- 
 ders, that the marriage consideration, alone, was not consi- 
 dered sufficient to support the limitations to the brothers. 
 Lord Eldon lately observed (o), that in the case of a father, 
 
 (g) Vide infra, and 18 Ves. Jun. (/) 2 Lev. 105 ; see 2 P. Webs. 
 
 92. 255. 
 
 (h) See 1 Cha. Ca. 103. (»») 2 P. Wms. 245. 
 
 («•) See 1 Lev. 237. (») 2 Wils. 356. 
 
 {k) See 1 Cha. Ca. 105. (o) 18 Ves. Jun. 92, 
 
 tenant
 
 VOLUNTARY SETTLEMENTS. 559 
 
 tenant for life, ^v^tll remainder to his son in tail, they may 
 agree, upon the marriage of the son, to settle, not only upon 
 his issu3, but upon the brothers and uncle: of tliat son : and 
 the question would be, whotlicr tlicy, t/ioiigh not within the 
 consideration of the inavjiagCi are not within the contract 
 between the father and son, both having a right to insist 
 upon a provident provision for uncles, brothers, sisters, and 
 other relations, and to say to each other, " I \\-ill not agree 
 unless you will so settle." The Court, his Lordship added, 
 lias held such a claim not to be that of a mere volunteer, but 
 as falling within the range of the consideration. The case 
 of Goring v. Nash (;?), does not apply to the case under con- 
 sideration. It was a question upon the specific execution of 
 articles, and the rule of equity cannot weaken the effect of 
 the statute. 
 
 This hasty review of the authorities seems to show, that 
 the question was still open. A case lately occurred which 
 seems to call for a clear decision upon the point {q), A man, 
 previously to his marriage, settled an estate to the use of 
 himself, for life ; remainder to trustees, in the usual wa^', to 
 preserve ; remainder to the first, and otiier sons of the mar- 
 riage, successively in tail male ; remainder to the first, and 
 other sons of the husband, by any after taken wife, succes- 
 sively in tail male ; remainder to the daughters of the in- 
 tended marriage, as tenants in common in tail, with cross 
 Remainders between them in tail, v/iih reversion to liirpsclf 
 in fee. The marriage took effect, and the wife died, in her 
 husband's life-time, without issue. Tlie husband, not hav- 
 ing been married again, mortgaged the estate. The lega) 
 estate was outstanding, and the question was, wiietlier it was 
 to be conveyed to the mortgagee or not. A case was di- 
 rected to the King's Bench, in which the settlement wa? 
 
 (p) 3 Atk. 186. {q) Clayton v. Lord Wilton, be. 
 
 fore Lord Eldon, Cb. 
 
 Stated
 
 5()d OF PROTECTION FROM 
 
 stated as a legal settlement : and it was slated, that th& 
 settlor had sold for a full and valuable consideration. The 
 (juestion for the opinion of the Court was, whether the con-* 
 A eyance to the purchaser was a good and valid conveyance, 
 lor a valuable consideration against the issue of the plaintiff's 
 second marriage. Lord Ellenborougli, and the other Judges- 
 of B. R. (r), certified their opinion, that the conveyance, by 
 the plaintiff, to the purchaser, was not a good and valid 
 con\eyance against the issue of the plaintiff's second mar- 
 riage. 
 
 In the above case, therefore, the limitations to the col- 
 laterals were supported : but it is observable, that in order 
 to support the limitations to the daughters of the first mar- 
 riage, it was necessary to support the remainders to the sons 
 of the second marriage. That was of itself a sufficient 
 ground to sujTport the remainders. It has, on the same prin- 
 ciple, been considered, that an estate to a stranger may be 
 supported, under a covenant to stand seised, if required to 
 give effect to subsequent limitations within the consider- 
 ation. 
 
 The same circumstances precisely, however, appear to 
 have occurred in Roe v. Mitton, but this ground does not 
 appear to have been urged in its support. It was decided, 
 upon the ground before-mentioned : and Lord C. J. Wilmot 
 said, that the whole of the question turned upon that. It 
 is scarcely possible to suppose, that the question was not dis- 
 cussed at the bar. 
 
 In a recent case, in Ireland (s), the precise point seems to 
 tirisc, although the facts are very numerous. In a settle^ 
 inent, previous to marriage, after the limitations to theiesuc 
 of the marriage, which failed, remainders to the collateral 
 relations of the settlor were added, under which the grand- 
 er) Oa the 31st May, 1813, cial renlict is shortly stated Jo Ap* 
 {s) FairGeld t. Birch, The spe- peadix, No. 23.
 
 VOLUNTARY SETTLEMENTS. <56l 
 
 ^oi\ of an uncle of tlic settlor claimed. The settlor sold the 
 est:ite to a purehnscr, with fuU notice of tlie settlement. 
 Upon a trial in the Court of Common Picas, in Ireland, 
 Lord Norbnr}% C. J., and jMr. Justice ?vlayne, were in 
 favonr of the defendant : and JMr. Justice Fox, and ^Ir. 
 Justice Fletcher, in favonr of the plaintilr. The latter, 
 pro forma, allowed his opinion to be entered np for the 
 defendant, and a writ of error was accordingly brought ; 
 but the author has not learned how the point was finally 
 decided. 
 
 Since the above observations were written, the caf:;e 
 of Johnson v. Legard has occurred, in which the abstract 
 p3int was stated for the opinion of the Court of King*^ 
 Bench. The writer argued himself into tlie belief that 
 the marriage consideration did extend to collaterals. In 
 that case, the wife had only a rent-charge, and therefore 
 it might be supposed, that she stipulated for the settle- 
 ment of the estate in remainder, on her husband's brothers, 
 in order that the family dignity might be maintained, and 
 her annuity be regidarly paid. The Court of King's Bench 
 certified their opinion that none of the limitations to the 
 collaterals was a good and valid limitation, as against the 
 purchaser; and the Vice-Chancellor, without hearing any 
 argument on this point, confirmed the certificate (/). The ^^ , 
 case is no^vJbefqre the Lord Chancellor o n appe al^ ^: c~'<^ 
 
 If an agreement be entered into before the marriage \ 
 for a settlement of the estate (?/), or the husband receive 
 an additional portion with liis wife (te), the settlement, 
 
 (O Ch. 20, .T^ly, 1818, MS. VI Ves. Jun. 74; and sec Treat. 
 
 vtde tnfrn. of rowcrt;, 2il puit. p. -Jl o. 
 
 (w)Grinin V. Stanliopc, Cro. Jaih (iv) Colvile v. ParkcT,Cro. J.1C. 
 
 454; Sir Ilalph Boyift's case, 1 158; Jones v. Marsh, For. 64; 
 
 \'entr. 193; but qti. where the Slilemnn ?, A?h(lown, 2 Atk. 477 ; 
 
 agreement before the marriage is Rarasdeu v. Helton, '2 Ves. 304. 
 l)v parol; see llandall t. Morgan, 
 
 2 o although
 
 562 01" nioTECTioN rjio.Af 
 
 altliougli mafic after inarriagc, will be deemed valua])le. 
 So, even an agreement to pay tlie husband a sum of money, 
 as a portion, will .support a settlement made after mar- 
 riage, if the money is paid according to the agreement (oc). 
 And where a woman has been married indiscreetly, and 
 a trustee of a sum of money wliich the husband is entitled 
 to in right of his wife, will not pay it unless he make 
 a settlement on his wife, and a settlement is accordingly 
 made, the settlement will equally be supported as if a bill 
 had been brought against the husband to make a provision 
 for his wife (y). 
 
 So the concun-ence of the wife in destroying an exist- 
 ing settlement on her for the benefit of the husband, is 
 a sufficient consideration for a new settlement, although 
 much more valuable than the former (s). And the better 
 opinion, as well upon principle as in point of authority 
 seems to be, that the wife joining in baning her dower, 
 for the benefit of her husband, will be a sufficient consider- 
 ation for a settlement on her {a). It has been decided, 
 that the wife parting with her jointure is a sufficient con- 
 sideration. Now, if tliat which comes in lieu of dower is 
 a valuable consideration, surely the dower itself must be 
 equally valuable. Besides, where a woman is entitled to 
 dower, the estate cannot be sold to advantage without her 
 concurrence ; she is a necessary party to any arrangement 
 respecting the estate, and that alone seems a sufficient 
 ground to support a settlement on her. 
 
 But if an unreasonable settlement be made upon a wife 
 in consideration of her releasing her dower, it seems that 
 
 (A) Brown V. Jones, 1 Atk. 188. (c) Lavender t. Blackstone, 2 
 
 (_y) Brown V. Jones, Lev. 146; see and consider Evelyn 
 
 (z) Scott V. U.ll, 2 Lev. 70; t. Templar, 2 Bro. C.C. 148; 18 
 
 Ball V. Bumford, Prec. Clia. 113; Ves. Jun. 91; Puherloft v. Pnlver- 
 
 1 Eq. Ca. Abr. 354, pi. 5 ; see toft, 18 \'e3. 84. 
 
 Clerk V. Nettk5.hip, 2 Lev. 148. 
 
 equity
 
 VOLUNTARY SETTLEMENTS. oG3 
 
 equity in favour of subsequent purchasers will restrain her 
 to her (lower (b). 
 
 If upon a separation, the husband settle an estate upon 
 his wife, and a friend of hers covenant to indemnify the 
 husband against any debts which she may contract, this will 
 be a sufficient consideration to uphold a settlement as valu- 
 able, and not within the statute (c). Indeed, the courts 
 will anxiously endeavour to supi)ort a fair settlement, and 
 nearly any consideration will be sufficient for that purpose. 
 Therefore, if a person, whose concurrence the parties think 
 essential, join in a settlement, his concurrence will ])c 
 deemed a valuable consideration, although he did not sub- 
 stantially part with any thing id). 
 
 It may be observed, tliat the statute of Elizabeth docs 
 not affect settlements of personal estate (e). Equity will 
 not assist a mere stranger in making good a voluntary set- 
 tlement upon him, unless the property was so transferred as 
 to create the relation of trustee and cestui que trust. In 
 a late case, however, a voluntary assignment of an equita- 
 ble reversionary interest to trustees, for a stranger, was esta- 
 blished, although, as the settlement was merely equitable, 
 the person claiming under it of course had not any right to 
 the property at law (f'J. This decision is of great import- 
 ance. The principle upon which it was decided, should be 
 applied with great caution to other cases. 
 
 (6} Dolin V. Coltmnn, 1 Vcrn. Excler, 2 Taunt. 69 ; and 18 Ves, 
 
 i29K J. in. 92. 
 
 (C Stephens V. Olive, 2 Bro. C. (fl) Per Sir Win. Grant, in (he 
 
 C. 90; King v. Brew<r, i'jlrL 93, case of Sloniie v. Cadoi^itn, iitfra, 
 
 n.; sj'P, howi'vcr, Lord ELlon's (/)SI'>aneT C iil()<;a:i, Rolls, 
 
 argument in Lord St.John t. Lady Dpc. 180o,MS. A|)pendix,N<> 2-1. 
 St. 4'>''nwl 1 Ves, Jun. 526. /^>^?-«<C."r!iis case involveil an inip-utunt 
 
 , (c/) Roe v.Mitton, 2Wils. 356 ; qutstii)ii upon (he execution <>! a 
 
 S«e MyddletcMi v. Lord Konyon,2 power ; see ex parfc Pye, 18 Ves. 
 
 Ves. Jun. 391^ Hill T. Bishop of 110. 
 
 2o2 III. AVc
 
 564 or rnoTECTioN riioM 
 
 III. We liave seen what vvill be deemed a fraudalcnt or 
 voluntary conveyance ; but although a deed he merely vo- 
 luntary or fraudulent in its creation, and voidable by a pur- 
 chaser ( 1. c. would become void by a person purcliasing the 
 estate), yet it may become good by matter t'^ post facto : 
 as if a man make a feoffment by covin, or ^Yithout any valu- 
 able consideration, and the feoffee make a feoffment for va- 
 luable consideration, and then tlie first feoffor enter and 
 make a feoffment for valuable consideration ; the feoffee of 
 the first feoffee shall hold the lands, and not the feoffee of 
 the first feoffor : for although the estate of the first feoffee 
 was in its creation covinous, or voluntary, and therefore 
 voidable, yet when he enfeoffed a person for valuable con- 
 sideration, such person shall be preferred before the last(^). 
 
 Lord Eldon has applied this rule to persons having only 
 equitable rights. For where a person who had an absolute- 
 power of appointment over a sum of money to be raised 
 under a trust tenn, directed part of it to be raised in fa- 
 vour of a volunteer, who afterwards mortgaged such part, 
 although the money appointed was deemed assets as between 
 the creditors of the appointor and the appointee, yet the 
 claim of the purchaser was preferred to that of the credi- 
 tors; he having a preferable equity {h). 
 
 If a voluntary grantee gain credit by the conveyance to 
 him, and a person is induced to marry him on account of 
 such provision, the deed, though void in its creation as to 
 purchasers, will, on the marriage being solemnized, no 
 longer remain voluntary, as it was in its creation, but 
 
 (^) Prodgers T.Langham, 1 Sid. Ellason, 1 East, 92; see also Ladf 
 
 133 ; Andrew Newport's case. Burg's case, Mo- 602; and 3 Atk. 
 
 Skin. 423 ; Wilson v. Wormal, 377. 
 
 Godb.l61,pl.226;Doev. Martyr, (A) George t. Milbank, 9 Ves 
 
 1 New Rep. 332 ;.and see Parr t- Jun. 190 ; see 1 iVIer. 638. 
 
 will
 
 VOLUNTARY SETTLEMENTS. 565 
 
 i^vill be considered as made upon valuable considera- 
 .tiou {i). 
 
 And it is to be inferred from a late decision (/t ), that 
 .tliough it does not appear, tliat the friends of the wife did 
 speculate upon the provision, and take it into considera- 
 tion, yet it must be presumed that they did act upon it ; 
 and it cannot afterwards be disturbo/d. In the case alluded 
 to, the question was, whetlier the husband, who was tenant 
 for life, with remainder to his sons in strict settlement, had 
 any equity to be relieved against the settlement, as made 
 under an undue influence of parental a,uthority ; and it 
 was determined, that tlie husband could not disturb it bv 
 reason of his subsequent marriage, although it did not ap- 
 pear that the friends of the wife took the settlement into 
 consideration. The same principle applies to the case under 
 consideration. 
 
 Notwithstanding the decisions as to voluntary settle- 
 ments, it is seldom that a purchaser can be advised to ac- 
 cept a title where there is a prior settlement ; for altliough 
 apparently voluntary, yet if a valuabk consideration were 
 paid or given, parol evidence would be admissible of tlie 
 transaction, in order to support the deed, and rebut the sup- 
 posed fraud. This seems to be admitted by all tlie cases (/)., 
 And in Ferrars v. Cherry (w), it was even holden, that al- 
 though a settlement was apparently voluntary, and made 
 after marriage, yet if the purchaser had notice of the settle- 
 ment, and it prove to have been made in pursuance of ar- 
 
 (/i I'roflgers V. I>an;:;Iiani, 1 Siil. O'Gormiii v. Corny ii. 'i'^cho.nnd 
 
 133; Kirk V. Clark, Prfc. Clia. Lpf. 117; Crofton v. Oriii^by, 
 
 275 ; S. C. by the name of llcisior i' id. 583 
 
 V.Clark, 2 Kq. Ca. Al)r. -16, [)!. li) Brown v. Carter, 5 V<sJu:j, 
 
 13; Doe V. Routledge, Cowp. 862. 
 
 705 ; Kast India Company v.Cla- (/; See particularly Chapman v. 
 
 veil, Gilb. Eti. Rep. 37; Tree. Cha. Emery, Cowp. L'78. 
 
 ■^77; and see 9 Ves. Jun. 193; (m) 2 Vern. 384. 
 
 2 O 3 tides
 
 566 OF PllOTECTIOX YWOM 
 
 tides before marriage, he would he houud by it, and could 
 not protect himself by a prior le^^al estate, as he ought to 
 have enquired of the wife's relations, who were parties to 
 the deed, whether it was voluntary, or made pursuant to an 
 agreement before maraage. Lord Hardwicke, indeed, has 
 said, that he inclined to think it was in this case left un- 
 certain on the face of the settlement, whetlier it was made 
 before marriage or not ; and he denied the authority of the 
 case in). 
 
 This opinion of Lord Hardwickc's cannot be safely relied 
 on. Indeed, if notice of a settlement apparently voluntary, 
 but wliich turns out to be made on valuable consideration, 
 should not be deemed notice to a purchaser of the consider- 
 ation, yet, unless he has a prior legal estate, he cannot pro- 
 tect himself against the settlement. Both parties being 
 purchasers, equity must stand neuter, and the person claim- 
 ing under the conveyance must recover at law. 
 
 There are but few cases on the effect of an agreement by 
 the settlor to sell an estate after a voluntary settlement of it. 
 In Leach v. Dean (o), the plaintiff's suit was to be relieved 
 upon articles of agreement for the purchase of lands from 
 the defendant, who before the articles had by deed con- 
 veyed the estate to his son, and the court made the de- 
 cree as prayed; " but as to the voluntary conveyance, the 
 same is not hereby impeached, as between the father and 
 sou for any advancement, or any other thing thereby set- 
 tled on the son, other than making good the articles of 
 agreement ; but the trustees to be paid their debts and en- 
 gagements out of the purchase-money." It does not ap.. 
 pear that the purchaser had notice of the settlement at the 
 time he contracted. It was altogether a voluntary settle- 
 ment. So in Douglasse v. Waad (pj, the settlement was 
 
 (n) Senhouse v. Earlr, Ainbl. (o) 1 Ch. Rep. 78. 
 
 285; see 2 \'-es. 60 n. ip) 1 Cha. Ca. 99. 
 
 after
 
 VOLUKTAllY SETTLEMENTS. 567 
 
 after the settlor's first marriage on himself for life, remainder 
 to his first and other sons in tail, and was therefore volun- 
 tary throughout. Previously to his second marriage, in con- 
 sideration of a portion, he agreed to settle a jointure on 
 his second wife, out of the settled estate, and she was re- 
 lieved ag-ainst her own issue, who claimed under the settle- 
 ment. It does not appear that she had notice of the set- 
 tlement, and at the time of her articles, there was no per- 
 son in esse entitled under the settlement, and the settlor 
 himself could have destroyed the contingent remain- 
 ders. Parry v. Carwarden (</), was also a suit hy a pur- 
 chaser, who had no notice of the settlement, and there the 
 settlor herself filed a bill to set aside the settlement, but 
 died before tlie cause was at issue. 
 
 The cases, therefore, do not carry the doctrine very fiir. 
 They were all cases in which the purchassr was plaintiff, 
 and in none of them had he notice of the settlement. It 
 is now settled, after a great struggle, that a purchaser un- 
 der a conveyance may avoid a voluntary settlement, al- 
 though he had notice of it, but that decision ought not to 
 induce equity to consider Leach and Dean, and that line 
 of cases, as authorities for decreeing a specific performance 
 where the purchaser has notice. If a construction of a sta- 
 tute be made, wliich it is too late to overrule, but which, it 
 is admitted, ought never to have been established, tlie 
 principle of the rule should not be pushed to it's greatest ex- 
 tent, but the rule should rather be confined strictly to the 
 very circumstances under which it was established. 
 
 In Bennet v. 3Iusgrove (/•), Lord Hardwicke said, the 
 distinction in equity was, that wlierc a sub.scqucnt purcliaser 
 for a valuable consideration would recover the estate, and set 
 aside or get the better of a precedent voluntary conveyance, 
 if that conveyance was fairly made, without actual fraud, 
 
 (?)2DicL,5i4. (0 2 Ves.51. 
 
 2 o 4 the
 
 568 OF PEOTECTION FROM 
 
 the court ^vilI say. Take your remedy at Vdw ; but ^vlure- 
 ever the conveyance is attended witli actual fraud, though 
 they might go to law by ejectment, and recover the pos- 
 session, they may come into this court to set aside that con- 
 veyance; which is a distinction between actual and pre- 
 sumed fraud, from it's being merely a conveyance ; and he 
 adhered to the same rule in Oxlcy v. Lee (.s). 
 
 From this it might be inferred, that equity would not 
 compel a specific performance in favour of a purchaser -who 
 bought with notice of a prior voluntary conveyance made 
 iv-ithout fraud. But in a recent case, where, after a voluntary 
 settlement, the settlor entered into a contract to sell the 
 settled estate to a person, with full notice of the settlement, 
 the IMastcr of the Kolls, on mature consideration, decreed a 
 specific performance against the parties claiming under the 
 voluntary settlement (/) ; and Lord Eldon appears to liare 
 approved of the decision (u), but his Lordship was ii6t 
 called upon to consider the point. It is certainly a very 
 strong decision. The construction that a bcna fide volun- 
 tary settlement was void under the statute against a subse- 
 quent purchaser, who bought vvith notice, was not esta- 
 blislied without great opposition, and has always been con- 
 v'iidered a harsh interpretation. But the statute only ope- 
 rates where the purchaser acquires the estate under a con- 
 veyance. Equity generally follows the law ; and thei'efore a 
 nale of an equitable estate must, like a sale of a leg?)l estate, 
 operate to defeat a prior voluntary settlement : but that 
 rule does not SL?cm to apply to this case, where the contract- 
 ing party has all his legal right, and the question is not in 
 what channel an equitable interest actually ifi esse shall go; 
 but v;hether the purchaser has any equitable interest, or, in 
 
 (s) 1 A?k. 562 (u) Metcalfe v.PulTortoft;! V>s. 
 
 (0 Buckley. Mitchtll, iSVes. and Bvgm. 180. 
 luu, 101. 
 
 other
 
 VOLUNTARY SETTLEMENTS. ^69 
 
 Other words, whether the court will lend hira it's extraordi- 
 nary aid, in order to carry the contract into a specific exe- 
 cution, instead of leaving him to his remedy at law. It 
 were difficult to maintain, that the statute requires, by im- 
 plication, equity to interpose, or that the inter])osition of 
 the court is called for by analogy to the legal rule ; and un- 
 less tiiat could be established, the phdntifF in such a suit 
 might, with propriety, be told, that he did not come there 
 with clean hands. He knew that the seller had already 
 .settled the estate on another, and that lie could not break 
 through tlie settlement unless by the circuitous route of a 
 sale. This was a purpose to which tiie plaintiff ought not 
 to have lent himself, and at least he could not complain 
 that he was left to his legal right, and tliat equity, vvho 
 would not suffer the settlor to break through the settlement 
 for his own benefit, would not assist even a purchaser in de- 
 feating it where he bought with notice. The act relieves a 
 man who has actually bouglit and paid for the ectate, and 
 obtained a conveyance of it ; but it does not provide for the 
 case where, not having completed his contract, he would 
 not be damnified by the settlement ; but would have his le- 
 gal remedy against the vendor for breach of contract. Such 
 a Case did not call for any legislative remedy, and equity, it 
 may be thouglit, ought to stand neuter. 
 
 In Buckle v. Mitchell, however, tliC settlement was sub- 
 ject to all the specialty and simple contract debts then due, 
 or to he due, from the settlor. The bill was filed after the 
 seller's death, but that circumstance docs not appear to 
 have received much consideration. 
 
 In the case of Burke v. Dawson {a\ the Master of tlie 
 TloUs, I am told, seemed to ])e of opinion, that although a 
 purchaser, subsequently to a voluntary conveyance, might 
 
 (j-)Ryi:c, MjTi-li, iSO'j M.»i. 
 
 comp»*l
 
 570 Ol- mOTFXTION FROM 
 
 compel a specific performance, yet the vendor could not 
 enforce the execution of the contract against an unwilling 
 contractor. Indeed this seems to flow from tlic rule, that 
 the voluntary conveyance is binding on the settlor himself; 
 and tlie statute of lOlizahcth was passed to protect purchas- 
 ers, and not to enable persons to break through bona fide 
 settlements, although made voluntarily, and without con- 
 sideration. 
 
 In the late case of Smith and Garland (i/) the very point 
 arose. The bill was filed by tlie seller, who made the 
 voluntary settlement. The defendant, tlie purchaser, bought 
 w ithout notice. He raised the objection to the title on 
 account of the settlement by his answer, but submitted to 
 perform the contract if a good title could be made. The 
 late jMaster of the Rolls, in a judgment which will long be 
 remembered by those who heard it, expressly distinguished 
 the case from his former decision in Euckle and Mitchell, 
 and decided that the settlor cannot maintain a bill for a 
 specific performance. For the settlement was binding on 
 him, and he had no right to disturb it. 
 
 In the later case of Johnson v. Legard, the settlement 
 was in consideration of a marriage, and was not voluntary 
 throughout. By an agreement in writing, in October, 
 1807, Sir John Legard, the settlor, agreed to sell and 
 convey the estate to Mr. Watt, before the 6th April, 1808. 
 And INIr. Watt agreed to secure, by mortgage of the estate 
 and his bond, the purchase-money va\\\ interest; w^hich 
 principal sum was to remain upon the security at interest 
 during the life of Sir John Legard, and for twelve calendar 
 months afterwards. And it was agreed, that if AVatt, his 
 heirs or assigns, should be evicted from or deprived of the 
 possession of the estate by any issue male of Sir John Le- 
 gard, 07' by any other person claiming or deriving title 
 
 (j/) Smith V. Garland, 2 Mer. 123. 
 
 under
 
 VOLUNTARY SETTLEMENTS. 571 
 
 "Under him, then the sums laid out in iir.provcments or 
 necessary alterations were to be repaid with interest, and 
 nlso the purchase-money; and the security for any part 
 unpaid was to be void. Sir John Legard died. His cre- 
 ditors filed a bill against the remaindcr-nicn under the 
 settlement, and against Watt, praying a specific perform- 
 ance. Watt by his answer objected to the title on account 
 of the settlement, but submitted to perform the agreement 
 on having a good title. By the decree it was ordered, that 
 a case should be made for the opinion of the .Judges of the 
 King's Bench, and that such case should state, that a con- 
 veyance was actually made of the estate in (question for a 
 valuable consideration, by Sir John Legard, in his life- 
 time; and that the questicm should be, whether the limita- 
 tions to the collaterals were good against the purchasci* ; 
 and further directions were reserved. The result of the 
 mnsc before the King's Bench has already been stated. The 
 cause came on before the Vicc-Chancellor on further direc- 
 tions (~). The counsel for the remainder-men relied upon 
 the case of Smith v. Garland, which had been decided since 
 the case was directed to the King's Bench. The Vice- 
 Chancellor held that that case was not an authority 
 to be followed. It was, however, argued, 1. That the sta- 
 tute of Elizabeth only applied to purchasers under actual 
 conveyances, and that equity ought not to interfere. It 
 never could be contended, that at law a purchaser having 
 a mere right of action under a contract, and not liaving 
 paid his purchase-money, could avoid a voluntary scttk incnt, 
 and it would be difficult to draw any line. 2. Tliat the 
 agreement was a mere trick to set aside the settU^nient, 
 without placing the purchaser in any danger. He never 
 stood in the situation of a purchaser ^^ ho could be deceived ; 
 and the second point in AVhite v. Stringer was strongly 
 
 (t) 17 July, 1818, MS. J ^^./^. ^VV, ., ^^i^ ji^ 
 » *^/^. ^ <^^^Z^,^ . ^^^^. ^^y relied
 
 572 OP PROTECTION FROM SL1-TLE>IENTS, 
 
 relied upon (a). 3. That the creditors had not any right to 
 file a bill. The settlement was binding on the settlor, and 
 unless he placed a purchaser in a situation to avoid the set- 
 tlement, the estate of the remainder-men could not be 
 impeached after his death : there wa,s no equity against 
 thcni. 4. That Smith and Garland was a great authority, 
 and a stronger case than that before the court. There, as 
 well as in this case, the purchaser submitted to perform the 
 contract if a good title could be made. The Vice-Chancel- 
 lor expressed an opinion that the creditors might file a bill 
 tilthough the settlor could not, as there was a moral obli- 
 gation on him to provide for his debts, and that tlie court 
 could make a decree between the co-defendants. For the 
 remainder-men it was insisted, tiiat the settlor having 
 solemnly on his marriage settled the estate, in default of 
 his ov^n issue, on the person who would succeed to his title, 
 had already performed a moral obligation, and exhausted 
 his power over the estate. The settlement was binding on 
 him, and his creditors could not, claiming under him, have 
 anv rights to v/hich he was not entitled. They did not 
 attempt to impeach the settlement under the 13 Eliz. It 
 was also submitted, that it would be an act of injustice to 
 extend the rule as to decreeing relief between co-defendants 
 to this case, because it at once took the estate fropi the 
 remainder-men without any consideration. It did not fol- 
 low that Watt the purchaser would file a bill ; and if he 
 did, the co-defendants might shape their defence in a way 
 which they had not by the present bill been called upon to- 
 do. The Vice-Chancellor held, that the statute of 27 
 Elizabeth did not confine the relief to a purchaser by con- 
 veyance, but the act supposed there may be a purchaser hy 
 contract. The purchaser's right follows as against the 
 r("presentativcs of the vendor. His Honor thought that 
 
 (a) 2 LeT. 105. 
 
 the
 
 C^-' 
 
 WITH POWER OF REVOCATION. 573 
 
 tlie creditoi-s waiild have a light to insi.st upon a specific 
 performance, thougli the vendor had not ; but that point 
 did not arise, for Mr. Watt says he is ready to take the 
 estate if a good title can he made. Besides, the former 
 decree concluded every question now raised. The defend- 
 ants, the remainder-men, have appealed to the Lord 
 Chancellor against this decision. ^iC^ ^^s,^r^ 
 
 If a trust be created by a voluntary settlement, thcx-'^T.-'^' ^ry 
 parties entitled under it may file a bill to have the trust 
 carried into execution ; but an injunction will not be 
 granted restraining the settlor from defeating the settle- 
 ment by a sale (&) ; nor will the pendency of the suit pre- 
 vent the settlor from selling the property, or the purchaser 
 from filing a bill, in order to enforce his rights under the 
 contract (c). 
 
 IV. It remains to consider the construction which the 
 part of the statute relating to conveyances with power of 
 revocation has received. And first it is to be observed, 
 that the statute does not extend to particular ])owers, as a 
 power to charge 2000/. on an estate of considerable \ alue, 
 for such a power is not a power within the words of the 
 statute (being for a particular sum) to revoke, determine, 
 or alter the estate {d). 
 
 But it is of course quite clear, that a settlement by vrhich 
 a power of revocation, or a power tantamount to it, is 
 reserved to the grantor, is void against a subsequent pur- 
 chaser (e) ; and no artifice of the parties can protect the 
 
 (i) Pulvertoft V. Pulvertoft, 18 See 2 \'cs. and Brnm. 200. 
 Ve3. 84. {d) Jenkins v. Kcymis, I Ler. 
 
 (c) MetcnlfV V. I'ulTortoft, 1 150. 
 Ves. and Beam. 1£0. The widow (cj Cross v Fiiuitpiidifch, Cro. 
 
 plea.'.Ki li^ |)in;lri\s, hkI tiie pira Jac. 180; Ti.rbick t. iVIarlmrj, 
 
 was ovtriiiiiil l»y iln' Vice-Cliao- 2 Wtw, .'510; see Lane, i:2. 
 c^llor, on the 10th August, 1813 
 
 settle-
 
 57J» OF PROTECTION FR03I SETTJ.EMENTS, 
 
 settlement. Therefore, although the power is conditional, 
 that the s?ttlor shall only revoke on payment of a triflino: 
 sum to a third person (/), or with the consent of any third 
 person, who is merely appointed by the jjrnntor (^), in 
 these and the like cases the condition will be deemed 
 colourable, and the settlement will be void against a sub- 
 sequent purchaser. 
 
 But if a settlement is made with a power to the settlor 
 to revoke, so as that the money be paid to trustees to be 
 invested in the purchase of other estates {h), or to revoke 
 with the consent of a stranger bona fide appointed by the 
 parties, and his consent is made requisite, not as a mere 
 colour, but for the benefit of all parties, the settlement 
 will be valid, and cannot be impeached by a subsequent 
 purchaser (i). This was determined in the case of Buller 
 V. Waterhouse {k), which, however, INlr. Powell thought, 
 did not settle the point, because all the claimants undei' 
 the conveyance zvcre purchasers for a valuable consiclera^ 
 Hon {I). But it seems quite immaterial whether the set- 
 tlement itself is merely voluntary, or upon valuable consi- 
 deration {m). The statute says, that all conveyances which 
 the grantor has power to revoke, shall be void against sub- 
 sequent purchasers ; and therefore, if parties giving a valu- 
 able consideration for a settlement choose to permit the 
 .grantor to reserve a power to revoke the settlement, they^ 
 must suffer for their folly. Tlie grantor, by virtue of the 
 power, may revoke the settlement ; and if he sell the estate 
 without revoking it, the statute makes it void. In fact, if 
 
 if) Griffin t. Stanhope, Cro, 411 ; and see Lane, 22. 
 
 Jac. 454. {k) 2 Jo. 94, 3 Kep. 75 J ; anc? 
 
 (g-) See 3 Rep. 82, b.; Lavender see ace. Hungerford v. Earle, 2 
 
 T. Blackston, 3 Kep, 526. Freem. 120; Lane, 22. 
 
 (Ii) Doe V. Martin, 4 Term Rep. {I) Pow. on Powers, 330. 
 
 39. (»w) See ace, Rob, on Vel» 
 
 (j) See Leigh v. Winter, 1 Jo. Conv. 637. 
 
 we
 
 WITH tOWEU OF REVOCATION. 575 
 
 tve hold, that settlements made upon valuable consideration 
 are not within this provision, we must at the same time ad- 
 mit, that the legislature did not intend to affect voluntary 
 settlements, unless they were actually fraudulent ; for volun- 
 tary settlements are void against purchasers under the Sd 
 section of the act which has already been discussed. This 
 clause therefore would, under the construction put upon it 
 by Mr. Powell, have scarcely any operation. 
 
 If a man having a power at a future day to revoke a 
 settlement made by him, sell the estate before the day 
 an-ive, the settlement will be void against the purcliascr at 
 the time when the vendor, according to the terms of tJic 
 power, might have revoked the settlement {n). 
 
 And a settlement made Avith power of revocation, will 
 be void against a subsequent purchaser, although the grantor 
 release or cxthiguisli tlie power previously to the sale ; 
 otherwise the vendor might secretly release or destroy the 
 power, and then sliew to the purchaser the conveyance con- 
 taining the power of revocation, and so induce him to buy 
 the land (o). In the case, however, in which this was de- 
 cided, the settlement appears to have been voluntary, and 
 the purchaser had not notice of the power being destroyed. 
 But if a settlement should be made for valuable considera- 
 tion, with a power of revocation, and the vendor, sliould 
 afterwards release tlic power for a valuable consideration, it 
 is conceived that a purchaser, subsequently to the destruction 
 of the power, could not prevail over the settlement, more 
 especially if he had notice of the power being released. 
 
 The statute, as we have seen, operates conditionally, tliat 
 is, where the first conveyance is not revoked according to 
 the power. The act has no effect until tlie donee of tlie 
 jjower sell the estate without revoking the first conveyance 
 
 (n) Mo. GI83 3 Roi). 82, b. ; (0) Pullock v. 'liu-nip, Mo. 
 
 Bridg. 23. 615, 
 
 by
 
 5T6 OF PROTECTION TftOif SETTLEMENTS, &C. 
 
 by virtue of liis power. Suppose, tlicii, a vendor professes 
 to execute his power, but it is informally exercised, will the 
 defect be cured by the statute ? The legislature intended 
 to protect purcliascrs against fraudulent settlements with 
 powers of revocation, for it is essential to l)ring a case within 
 the act, that the estate should be sold, and the first convey- 
 ance not be revoked according to the power reserved to the 
 grantor by such sec?'ct conveyance. The non-execution of 
 the power is the fraud which the statute intended to avoid. 
 The conveyances against which the act was intended to 
 operate were presumed to be secret. It was not meant to 
 relieve any man who was aware of the existence of the power, 
 and might have required it to be exercised. The statvtc 
 was not intended to operate as a mode of conveyance. 
 But without insisting that, where a purchaser is aware of 
 the settlement, he must require the power to be executed, 
 it may be urged, that where a purchaser does rest his title 
 on the execution of the power, he rejects the aid of th^ 
 legislature, and takes his title under and not in opposition 
 to the settlement ; and can, therefore, only stand in the same 
 situation as any other purchaser who has unfortunately taken 
 an estate under a power defectively executed. The pur- 
 chaser can scarcely be held to have a good legal title, unless 
 the vendor not only attempted to execute the power, but 
 actually conveyed the estate to him. 
 
 SECT.
 
 •J / / 
 
 SECTION ir. 
 
 Of Protcdion from C/i aril able Uses. 
 
 J-X the statute of charitable uses(/j) is a proviso that no 
 person who shall purchase or obtain, upon valuable consi- 
 deration of money or land, any estate or interest of or in 
 any lands, &c. that shall be given to any of the charitable 
 uses mentioned in the statute, without fraud or covin, 
 {having no notice of the same charitable nses,) shall 1)0 
 impeached by any decrees of the commissioners therein men- 
 tioned. 
 
 A purchaser who hath bought for an inadequate consider- 
 ation is not Avithin this proviso ; and the adequacy of the 
 considci'ation is measured according to the rule of the d\\\ 
 law ; but if one purchase lands under half the value, and 
 sell to another upon good consideration bo?ia fide, the fraud 
 is purged (17). 
 
 If a rent-charge be granted out of land to a charitable 
 use, and the land is afterwards sold for valuable considera- 
 tion to one who had no notice, it has been said, the rent re- 
 mains ; because the purchase was of another thing that was 
 not given to the charitable use {r) : but in Tothil (.s) the 
 f^ame case is referred to as an authority, that a purcliaser 
 coming in without notice of a rent-charge shall not be charge- 
 able therewith, although given to a charitable use. The 
 correct distinrtion seems to be, that where the rent-charfre 
 
 (p) '13 Kliz. c. 4. 64 ; and see Peacock v. Tbt-wtr, 
 
 (7) Videsupray p. 233; Duke, Duke, 82. 
 
 177. (.v) Toth. 2J0. 
 
 (/•) EastCreeustfad'B en. Duke, 
 
 2 p ib
 
 578 OF PROTECTION FROM 
 
 ib legal, it must, like every otliev ]cfi;al inciiittbraiicc, biiul 
 the purcliascr, altlioiigli he purchased without notice ; hut 
 that where it is a uicre equitable charge, tlie connmissioners 
 shall not make any decree for payincut of it against the 
 purchaser, if he purcliased without notice. 
 
 If the first purchaser gave a valuable consideration, and 
 yet had notice, all that claim in privity under his estate and 
 title, whether they have notice or not, will be bound by the 
 decrees of the commissioners (/). 
 
 This rule, as we shall hereafter see, differs from the 
 general rule of equity in tliis respect — a subsequent purchaser 
 without notice not being affected by notice in the person of 
 whom he purchased. 
 
 AA^ith this exception, however, the same rules seem to 
 prevail in the construction of the act, with respect to notice, 
 as^are generally adopt eil by equity («). 
 
 SECTION III. 
 
 Of Protection from Acts of Bankruptcy. 
 
 I. Jjy the statute IS Eliz. c. 7, a purchaser would be de- 
 feated, although there should be forty years after an act of 
 bankruptcy, and before a commission ; and although the 
 purchaser had no notice ; for the words of the statute are 
 general after bankruptcij, and the proviso in the end of the 
 statute makes it stiU plainer, viz. That assurances made 
 
 (/) East Gret-nstead's case, («) East Greenstead's, case, uhi 
 
 Duke, 64; and see Hid 173. sup.; and Duke, 173. 
 
 by
 
 ACTS OF BANKUUITCY. 579 
 
 hjj a hanuTupt hcfmx' hanlxriipU'/j, and bona litlc, shall 
 fwt be defeated. — This was hart! doctrine against fair pur- 
 cliaacrs without notice ; but so the law was (^r). 
 
 With a \iew to prevent this injustice, and at tlic same 
 time to preserve to creditors their just riglits, and perhaps 
 in analogy to the statute of fines, it was by the 21st Jac.l. 
 c. 19, s. 14, enacted, that no purchaser for good and valu- 
 able consideration should be impeached by virtue of that 
 act, or any other act theretofore made against bankrupts, 
 unless the commission to prove him a bankrupt should be 
 sucti forth against such bankrupt within five years after he 
 shmdd become a bankrupt. 
 
 But even einCe this provision it is always dangerous to 
 ptu'chase an c.<?tate from a trader ; for an act of bankruptcy 
 may have been committed within live years before, which 
 will reach the estate {y). 
 
 It has been decided, that if a purchaser have notice of 
 the act of bankruptcy, he is not a purchaser within the 
 meaning of the stututc, and consequently is not entitled to 
 the benefit of it (;:;) : but if the act of bankruptcy arise by 
 the execution of a fraudulent deed, notice of the deed, with- 
 out notice of tlie fraud, ^lil not be deemed notice of the 
 Imnkruptcy {a). This is a point whicli frequently occurs in 
 practice ; a dceil apj>ears upon an abstract, by which the 
 owner, being subject to the bankrupt laws, conveys all his 
 estate for the benefit of his creditors, and to which all the 
 creditors are stated to be parties. Now supposing the title 
 to be so circumstanced, that the imrchaser could not be af- 
 fected by an act of'bafikfuptcy, unless he had notice ofif, 
 the que^ion Jit once arises, whether notice of the deed is 
 
 ; (x) See For. G6, 67. Abr. 1 19 ; 7 Vin. Abr. 119. 
 
 (^)See4 Ves. Jan. 398. (<i) i;. C. 
 
 (i lliud V. Ward, 2 Eq. fa. 
 
 V 'i notice
 
 .j80 OJ- PEUT^CTION 1 RO.M 
 
 notice of any creditor not having executed it, in which case 
 tlie deed would be fraudulent, and an act of bankruptcy. — 
 This is a very important question, as it is impossible to give 
 • evidence of all the creditors having executed. But it seems 
 to follow from the decision in Read v. Ward, tliat the pur- 
 chaser would not be held to have had notice, that all the 
 creditors were not parties to the deed; and this opinion ap- 
 pears to be adopted in practice. 
 
 To avoid a purchase, tlie act of bankruptcy must be com- 
 mitted within five years before the commission {h). The 
 five years are, however, computed from the last act of 
 bankruptcy preceding the sale ; for the words of the statute 
 are not after he sliall first be a bankrupt, but only after 
 becoming bankrupt generally (r) : and, tlierefore, if after 
 several acts of bankruptcy an estate is sold by the bankrupt, 
 and a commission issues within five years from the last act, 
 the sale will be avoided {d). But no act of bankruptcy af- 
 ter the sale will aftect the purchaser; and consequently 
 his title will not be impeached by any com.mission issued 
 after five years from the act of bankruptcy immediately pre- 
 ceding the sale (£'). 
 
 II. Thus the law stood until the late act for amending 
 the laws relating to bankrupts (^/), by wdiich, after reciting 
 that great inconveniences and injustice had been occasioned 
 by reason of the fair and honest dealings, and transactions 
 
 {b) Radford V. Blood worth, 1 'c) Sppncer v. ^^enarrp, 1 Krb. 
 
 Lev. 13. 722; and see CulIpn'sB.L. 211. 
 
 (c) Sppiicer T. V'enacre, 1 Keb. ( / ) Uomilly's Act j 46 Geo. 3, 
 
 722; 1 Lev. 14. c 135, extended to executions 
 
 (rf) Jt-Uif V, Horn, 1 Keb. 12, and attachments by 49 Geo. 3, c. 
 
 cited; Radford v. Bloodworth, 1 121, s. 2. 
 Lev. 13 ; 1 Keb. 11. 
 
 of.
 
 ACTS OF KAXKRITTCY. 581 
 
 of, an J witli traders being defeated by secret acts of bank- 
 ruptcy, in cases not already provided for, or not sufficiently 
 proviiled for by law, it was enacteO, tliat in all cases of 
 eonimlssions thereafter to be issued, all conveyances by, all 
 ])a5'inents by and to, and all contracts and other dealings 
 Jtnd transactions by and witli any bankrupt hona fide made 
 or entered into more than two calendar months before 
 the date of such commission, should, notwithstanding any 
 prior act of bankruptcy connnitted by such bankrupt, be 
 good and effectual to all intents andpiu'poses whatsoever, in 
 like manner as if no such prior act of bankruptcy had 
 been committed, provided the person or persons so dealing 
 with such bankrupt had not at the time of siich conveyance, 
 j-ayment, contract, dealing, or transaction, any notice of any 
 ])rior act of bankruptcy by such bankrupt committed, or 
 that he was insolvent, or had stopped payment. ^Vnd it is 
 provided, that the issuing of a commission of bankruptcy 
 against such bankrupt, although such commission lIicU af- 
 terwards be superseded, or the strikijigof a docket for the 
 purpose of issuing a commission against such bankrupt, wlie- 
 ther any commission shall have actually issued thereupon cr 
 jiot, shall be deemed notice of a prior act of bankruptcy for 
 the purposes of the act ; if it shall appear tliat an act of 
 bankruptcy had been actually committed at the time of the 
 issuing such commission, or striking such docket. 
 
 The better opinion appears to be, that neitlicr an act cf 
 bankruptcy, nor a commission of bankruptcy, is of itself 
 notice to a purchaser ; and that notwithstanding the sta- 
 tute of James, a purchaser wlio hns got in a prior legal es- 
 tate without notice of a comjuission or act of bankruptcy, 
 may protect himself against it {^). But, under the late 
 statute, a purchaser cannot avail himself of a prior legal es- 
 
 {g) See lliis coiisitlered, /w//a, Cti. IT. 
 
 2 r 3 t:ite
 
 582 OF PROTECTION PIJOM 
 
 tate if a comiiiisvsioii was actually issiud or a (lo<'li:ct struck 
 previously to his purchase, altliough he ha/1 not act.ual no- 
 ti£C of the issuing; of tlic commission or striking of the 
 docket, hecausc the statute exprcsijly makc^ thase acts con- 
 structive notice. 
 
 It should se^^ra, however, tlmt the provision in the sta- 
 tute of James, in favour of purchasers, is not repealed hy 
 the late .act. If it he not, then a purchaser will not he 
 bound hy the constructive notice cstahlished by the late 
 act, where it docs not dLabn the benefit of it. Thus, if it 
 should appear, that a commission had been issued or a 
 dodcet struck prior to the purchase, the purcliaser oould 
 uot claim the benefit of the late act, although he had nofi 
 iu'.tual notice of the commission or docket ; but if more than 
 live years had elapsed since the purchase, and a new oom* 
 mission were then to issue, it should se^m that he may in- 
 sist upon the benefit of the act of James. So where a pur- 
 chaser bona fide and without notice, has a prior legal estate, 
 he may, notwithstanding either of the acts, make use of if 
 as a protection against the assignees. The gromids of this 
 opinion upon the late act are, that it was passal in favour 
 of purchasers, that it docs not say ajfirmativelij, that a com- 
 missiou issued two montlis after a conveyance shall bind 
 where a commission has been issued or a docket sb'uck prior 
 to the piux'hase, but merely enacts ncgatlvelij^ that a com- 
 mission issued after tliat time skull not bind, imless a 
 commission was issued or a docket struck before the pur- 
 cliase. 
 
 The express enactment, that the striking a docket or is- 
 suing a commission shall operate as a constructive notiji© tp 
 purchasers, seqms to exclude all other kinds of consti'uc- 
 tive notice, so far as any aid is sought from this statute) : 
 the legislature having expressly declared, that these two 
 particular acts shall be deemed constructive notice, it musfe 
 
 be
 
 AOTS Ol- BAXKRUrTCY. 583 
 
 Ite inf^-i*(?A t^mt fhey intended no other act should liave tliat 
 effect. TheieforG t]?ere is i^i-oimd to contend, tiiat if a com- 
 iiijssion has fK)t teen issued or a docket struck, a purchaser 
 ?nay nv:-.J iiim!?elf of tiie statute, although, for instance, 
 hh solidtor had express notice that the vendor liad com- 
 jnittt*t} an nCi of bankruptcy. Against this construction it 
 mi^ht, px^lrajtS, "be argued, that as neither the striking of a 
 docket, nor the issuing of a commission, was prior to the 
 statute of itself notice to a purchaser, the intention must 
 iiavc been to make those acts constructive notice, in addi- 
 tion to the acts which equity already deemed tantamount to 
 actual notice. Cases of actual notice will entirely deprive 
 the purchaser of the benefit of tlie act. 
 
 The provision which makes the striking of a docket no- 
 tice, in all events, was not approved of (/?). It was not 
 originally in the act, and lias since been repealed (i) . 
 
 It is, as we have seen, also provided, tliat to claim the 
 benefit of the act, the purchaser must not have notice tliat ' 
 the bankrupt was insolvent, o?' had stopped payment. If 
 it should be thought that insolvency and stopping pay- 
 ment do not mean the same thing, considerable diHiculty 
 must frequently arise on this provision. Insolvency of it- 
 self appears to include not merely a stoppage of payment, 
 but an innhUity to pay ; unless, however, tlie evidence of 
 insolvency be confined to an actual stojipagc, it would not be 
 easy to say what shall be deemed notice of it. 
 
 Since the above observations were written, it has been de- 
 cided, that the insolvency, mentioned in the statute, means 
 a general inahility in the bankrupt to answer his engage- 
 ments (A'). 
 
 (/t) Rex V. Bullock, 1 Tuuut. (/) 49 Geo. 3, c. 121. 
 
 71 ; 14 Vi'g. Juii. 452. {k) vViion. 1 Camp. Ca.49l, n. 
 
 2 r 4 In
 
 584 or pfvOTKcTiox I'kijm jldc.mjixts. 
 
 In a late case (/) Mr. Justice Le Blanc said, tliat he 
 took insolvency, as it respects a trader, to mean th.-it he is 
 not in a situation to make his payments as usual, and that 
 it does not follow that he is not insolvent because he may 
 ultimately have a surplus upon the winding up of his af- 
 fairs ; and Mr. Justice Baj'ley agreed, that insolvency means 
 that a trader is not able to keep his general days of pay- 
 ment, and that he is not to be considered as solvent, because 
 possibly his affairs may come round. 
 
 The provision, that the issuing of a commission shall be 
 notice, although such commission shall afterwards be super- 
 seded, extends even to a commission which has been super- 
 seded, without being opened, although it was contended, 
 that the legislature must have meant a commission opc\ic<i, 
 and acted upon, though afterwards superseded {m). 
 
 SECTION IV. 
 
 O/ Protection from Judgments and Eecognizanccs. 
 
 I. t>Y a fiction in law, all judgments were supposed to be 
 judgments of the lirstday of the term in ^vhich they were ob- 
 tained ; and therefore a purchaser might have his estate in- 
 cumbered by a judgment acknowledged subsequently to his 
 pui chase (/i). 
 
 il) Bayly v. Scliofield, 1 Mau. Cr. 308. 
 and St-lw. 338. (71) Vide supra, p. 399, as to 
 
 //^}^^'atkillb v. Mjuiid. 3 Camp. judgments. 
 
 To
 
 OF PROTECTION VnOM JUDGMENTS. 58.1 
 
 To obviate this injustice it was enacted (o), that any judj^o, 
 or officer of any of his Majesty's Courts of Westminster, 
 tliat should sign any judgments, should, at the signing of 
 tiie same, set down the day of the month and year of his so 
 doing, upon the paper book, docket, or record, which he 
 should sign ; which day of the month and year should also 
 be entered on the margin of the roll of the record where the 
 f^'.iid judgment should be entered, and such judgments, as 
 -igainst purchasers bona fide for valuable considerations of 
 lands, tenements, or hereditaments, to be charged thereby, 
 vshould in consideration of law be judgments only from such 
 .time as they should be so signed, and should not relate to 
 the first day of the term v.hereof they were entered, or tlic 
 day of the return of the original, or filing the bail. 
 
 But though this settled all differences respecting the 
 fiction of law, whereby judgments were supposed to be all of 
 the first day of the tcnn, by compelling the party to set 
 down the particular period when the judgment was signed, 
 iind declaring that, as against purchasers bona fide for a 
 valuable consideration, the lands, tenements, and heredita- 
 ment^ to be charged thereby, should be charged only from 
 such time as the judgment was signed: yet, inasmuch ao it 
 did not compel the plaintiff to carry in the judgment loll, 
 purchasers and others were rendered almost incapable of 
 discovering what judgments were recovered [p). 
 
 iVnd, therefore, by another statute (^'i it was enacted, (hat 
 the clerk of the cssoigns of the court of C. 13. the clerk o 
 the doggets of the court B. 11., and the master of tlie 
 office of pleas in the court of Exchequer, should make and 
 put into an alphabetical dogget, by the defendants' names, 
 of all the judgments entered in their respective courts of 
 
 (o) 29 Car. II. c. 3. s. 14, 15. (,7) l an<l 5 W. anrl .M. r. 'iO, 
 
 (p) Uobin>;on v. Harrington, I mad^ peipefua! b) 7 and 8 V.'. III. 
 
 Tow. Mort. il8, 4th nl.t. S. C c. .3(i, s. '-J. 
 
 Micliaihiuis
 
 586 or PROTECTION I'KOM JUDGMENTS. 
 
 ^licluiclmas and Hilary terms, before the last day of tlie 
 ensuing tt>rnis ; and of the judgments of Easter and Trinity 
 t^'rms, before the last day of iNIichaelmas term ; and that no 
 jud^^ments should affect lands or tenements as to hona fide 
 purchasers for \'aluable consideration, unless docketed and 
 entered according to the act ; and it is directed that every 
 dogget shall be put into and kept in ]}()oks in parchment, to 
 be scarclied by all persons, at reasonable times, paying 4:d. 
 ^for scarcJiing every term. 
 
 " Dockets or indexes to judgments were in iise long be- 
 fore this stiitute. They were invented by the courts for 
 their own case, and the security of purchasers, to avoid the 
 trouble and inconvenience of turning over the rolls at large. 
 The statute of William and JNIary did not supersede the 
 former practice of docketing the judgment in parchment or 
 ]Tap€r, whicli is still necessary to be done by the attomies, on 
 entering and bringing in the rolls ; but was intended to ope- 
 rate in addition to that practice, by requiring the dockets to 
 be entered in alphabetical order by the officers of the 
 court (/•)." 
 
 Now upon the provisions of this act it is to be observed, 
 that judgments cannot be docketed after the time mentioned 
 in the act ; and the practice of the clerks in docketing them 
 after that time, is only an abuse for the sake of their fees, 
 and ineffectual to the party {s). And aa the object of the 
 act is to enable purchasers to discover judgments by the 
 names of the persons against whom they are entered, if the 
 name of a defendant be falsely entered, as Compton fot 
 Crompton, the judgment will be void agaifist purchasers, and 
 the coui't \NilI not amend the record {t). 
 
 If it is wished to enter a judgment as of a term, it must 
 
 (r) Tidd's Pract, 858, 860 ; 3d 19. 
 edit. Gilb. C. P. HO. {t) Sale v. Crompton, 1 Wils. 
 
 (*) Per Master of the Rolls, in j 2 Str. 1209. 
 
 Forshall y. Coles, Appendix, No. 
 
 be
 
 OF mOTECTIO^J FROM JUDGMENTS. 587 
 
 l>e actually entered before the essoign day of the succeeding ' 
 term ; and Lord C. J. Holt has said, that if judgment be 
 signed in a term, and in the subsequent vacation tlie defend- 
 ant sells lands, and before the essoigns of the next term the 
 plaintiff enter his judgment, it shall affect the lands in tlic 
 hands of the purchaser {ii). And althougli this lias been 
 doubted Uv), yet it seems to be correct, as the judgment is not 
 affected by the act of Charles II. or that of William and 
 Mary. Tlie judgment binds only according to the letter of 
 the statute of Charles ; and it is not required to be docketed 
 by the act of William and ]Mar\-, till before the la^t day of 
 the subsequent term. And there is no inconvenience in 
 this rule, for I find, upon enquiry, that the practice is to 
 index judgments as soon as they are signed, in order to en- 
 able purchasers to search for them with facility. But this 
 practice is wholly independent of the directions of the act 
 by which judgments are required to be docketed. 
 
 Although a jvulgTiient is not duly docketed, and therefore 
 void against a purchaser, yet if the purchaser has notice of 
 i*, and did not pay the value of the estate, it will be pre- 
 sumed that he agreed to pay off the judjpnent, and equit} 
 will compel him to pay it (ij). 
 
 The general rule of equity woidd warrant an assertion, 
 that the case would be the same although no agreement were 
 made. In the case of Forshall v. Coles (z), however, it a^i- 
 }>ears that the INIaster of the Rolls held decidedly, that no- 
 tice of a judgment not docketed was not material. Jiut 
 this decision cannot be relied on : tlie effect of it would he 
 to overrule all the decisions on the statutes for registr) {(t). 
 
 (u) IIo(]g(?s V, Templar, 6 Mod. 684, pi. 7. 
 191. (^; 7 Vhi.Abr. 51, pi. 6 ; 2 Eq. 
 
 (x) Tidd's Pract. 857 ; Bac. Abr. Ca. Abr. 592, pi. 8 ; .S. C. MS. a 
 
 by Gwill. tit. Execution (I) n. betttr note. Appendix, No. 19, 
 
 (y) Thomas v. Pledwcll, 7 Viii. («) FiJe infra, sect 5. 
 
 Abr. 53, pi. 5; 2 Eq, (a. Abr. 
 
 They
 
 />88 01' PT^OTKCTTON' IRO.\r Jl.DG.MKNTS. 
 
 Tliry were passed for precisely tlic same purpose as tlie act 
 of AVilliam and IMary, viz. to enable purcliascrs readily to 
 disco\cr incumbrances ; and therefore, if a purchaser has 
 notice of any judgment, the statute does not in equity ex- 
 tend to him, as he is ab'cady in possession of \vhatthe legis- 
 lature intended to furnish him with. This j)ioint, upon 
 which a considerable diftcrence of cpinion recently pre- 
 vailed in the profession, has lately been decided by Lord 
 Eldon in favour of tlie judgment creditor. The ca*e of 
 Forshall v. Coles is therefore overruled {b). 
 
 The statute of Hi Jac. I (c), for the better division of 
 the estates of bankrupts, enacts, that all creditors by judg- 
 ment, whereof execution is not served and executed before 
 the bankruptcy, shall only come in rateably with the other 
 creditors. In general, therefore, judgments against a bank^ 
 rupt are not material where the estate is sold by liis assig- 
 nees. In a late case (d), a man sold a freehold estate, and 
 the conveyance was executed by all the material parties ; but 
 no part of the money was paid, and the conveyance remained 
 in the seller's hands. In this stage he became a bankrupt, 
 and a commission issued against him ; and it appeared tliat 
 judgments were entered up against him previous to the 
 bankruptcy. The purchaser required satisfaction to be en- 
 tered up on the judgments. This was resisted on the 
 ground that, by the statute of James I. the judgment debts 
 were reduced to alcvel with the simple contract debts, for the 
 object of that statute was, to put all the creditors on an 
 equality (r). Now, it was clear that tlie seller had an equit- 
 able lien on the land for its whole 'value, and that the money 
 would go to the assignees ; and, consequently, if the judg- 
 
 (&) Davis V Earl of Stratliniore, July, 1813 j 2 Ves. and Bea. 
 16 Ves.Jun. 419. 145. 
 
 (c) Ch. 19, s. 9. ie) See Newland v. , 1 
 
 id} Sloper v. Fls'i, Rolls, 29th P. Wms 92. 
 
 mcut
 
 OF PROTECTION TUOM JUDGMENTS. 589 
 
 ment creditors could exccnte their judgments against tlie 
 purchaser, they would obtain a preference over the otlitT 
 creditors ; for, of course the purchaser was not to pay liis 
 money, and also be liable to the judgments. The case of 
 Orlcbar v. Fletcher (/), appeared tobe a stronger case against 
 the judgment creditors than the present, for there the pur- 
 chaser had paid the greater part of the purchase-money 
 before the bankruptcy ; and although, in the present case 
 the conveyance was executed, yet it was not delivered, and 
 therefore might be considered as an escrow (g-) and even if 
 it operated to vest the legal estate in the ])urchaser, yet the 
 case was within the spirit and meaning of the act of James • 
 because the estate in effect formed part of tlie ])ropertv to 
 be distributed. Upon these grounds, the assignees filed a 
 bill against the purcliaser, for a specific performance ; but 
 the Master of the Rolls thouglit the title too doubtful to 
 enable him to force it on tlie purchaser. 
 
 In a later case, however {h), where a man agreed to sell 
 llis estate, and became a bankrupt before the conveyance 
 was executed, the same learned judge held that the assio-nces 
 of the seller could make a title without the concurrence of 
 judgment creditors whose judgments were dulv docketed 
 before the bankruptcy. 
 
 Tlie 21 Jac. 1, c. 24, which enables persons to have new 
 execution against the property of debtors, dying in execution, 
 provides, that the act shall not extend to give liberty to anv 
 person or persons, their executors or administrators, at Avhosc 
 suit or suits any such party shall be in execution, and die in 
 execution, to have or take any new execution ao-ainst anv 
 t];c lands, tenements, or hereditaments of such ])artv dvin^ 
 in execution, whichshall at any time after the said judgment 
 
 (f) 1 P- Wms. 737. where the deed was in the pos. 
 
 (g) Derby Canal Company v. session of the purchaser's tolicitor. 
 Wilmot, 9 East, 360 ; see (A) Sharpc v. Roihde, 2 Kose, 
 O'Dtlir. W.iU.^, 3 Camp. 391, 192. 
 
 01
 
 590 OF T'EOTECTION FROM JUDGMENTS. 
 
 or jiulgiiicnts be by him sold bona Jidc ibr the payment of 
 any of his creditors, and the money which shall be paid for 
 tlie lands so sold either paid or secm-ed to be paid to any of 
 his creditors, with their privity and consent, in discharge of 
 his or their due debts, or of some part thereof. 
 
 II. Formerly, if goods had been sold during long vacation, 
 a fieri facias tested the preceding term would have over- 
 reached the sale, although issued subsequently to it (?'). 
 
 To remedy this inconvenience, it was enacted (A), that no 
 writ oLfwri facias, or. other Avrit of execution, should ])ind 
 the property of goods against whom such wiit of execution 
 was sued forth, but from the time that such writ should be 
 delivered to the sheriff, under-sheriff, or coroners, to be ex- 
 ecuted ; and for the better manifestation of the said time, 
 the sheriff, under-sheriff, and coroners, their deputies and 
 agents, should upon the receipt of any such wiit, without 
 fee for doing the same, indorse iTpon the back thereof the 
 day of the month or year whereon he or they received the 
 same (I). 
 
 It has been said (/), that the whole intention of this pro- 
 vision was to secure purchasers, under a second execution, 
 against any former writ whicli might have been delivered to 
 the sheriff. But a purchaser under a second execution was 
 
 (i) Houghton V. Rushley,Skin. (/) Per Ashursf, J. in casu Hut- 
 
 257; and see Comb. 145; 2 Ventr. rhinson v. Johnson, 1 Term Rep. 
 
 218. 73L 
 
 (A) 29 Car. II. cap. S,s, 16. 
 
 (I) This statute only operates in favour of purchasers. It was not 
 passed for the benefit of the debtor. Houghton v. Rushley, sup. and 
 Norden v. Needham, Pasch. 3 W. and M. B.R. MS. In this last case 
 it wus held, that deeds and writings could not be (akea in execution. 
 
 always
 
 OF mOTECTlON FKOM JUDGME>rrS. 591 
 
 always protected against any prior ^vrit of which he liad no 
 notice, by the rule of law, independently of the statute of 
 frauds (7«) ; and the reason already given appears to he tlrc 
 correct one. 
 
 It has been doubted wliether the word " gDotli:,'' in tTi^ 
 act referred to, extends to leasehold estates ; and it ap^x-'afa 
 by two o])inions published in Mr. Kiggc's Obseiratfons oji 
 Registry, that Mr. Serjeant Hill thought it did not ilichul^ 
 leaseholds, but that they might be extended on a writ oT 
 elegit ; and consequently were bound from the tim& the 
 judgment was duly entered and docketed ; and that, on thft 
 other hand, Mr. Butler thought the word " goods" did com- 
 prise leaseholds, which therefore were not bound Utitil de» 
 livery to the sheriff of the writ of execution. 
 
 It must be admitted, that a leasehold for years tJiay b^ 
 extended on an elegit, if it is in the possession of the* deft^ul* 
 ant at the time execution is awarded {n). It w'a?» however,- 
 settled long before the statute of Charles II. that d sale of 
 ehatteb was good after judgment, although not afttt exe- 
 cution awarded (o) ; so that it is evident, that as to a term of 
 years the command to the sheriff in an elegit does not over- 
 reach the sale in the same manner as it does in tht case of 
 a freehold estate. This distinction appears to have been 
 expressly taken in Fleetwood's case. 
 
 With respect to judgnients, the statute of frauds hath 
 two branches : the one relating to judgments against real 
 estate ; the other relating to executions on jiulgmonts against 
 
 (wi) See Smallcomb v. Bucking- this respect in the first edition, 
 
 ham, 1 Lord Rayin. 251 ; Carth. (o) Sir Gerard Flt'ctwood'sca. 
 
 4-1-9 ; Payne V. Drewe, 1 East, 523. 8 Co. 171 ; and bto 1 l-'it/. Abr. 
 
 («) Sir Gerard Fleetwood's case, tit. Execution, pl.J03 ;2 Ro. Abr. 
 
 8 Co. 171 ; and see and consider 157 ; Wilson v. Wormol, Godb. 
 
 81 Ass. p. 6; 38 Ass. p. -1; and 161, pi. 226 ; Sl.irlcy v NVat(.«, 
 
 s»e2 Inst.395; Gilb. Ex.33, 35. 3Alli.200. 
 The aulhur fell into an errui in 
 
 goods
 
 592 oi- nioTECTiox moM judgments. 
 
 goods or personal estate. The act being a renledial one, the 
 mode of discovering wliether leaseholds are hound by the last 
 provision, seems to be, first, an enquiry Vvliether purchasers 
 of leaseholds were within tlie mischief the legislature in- 
 tended to guard against ; and if tliey were, then an cnc^uiry 
 wlietlicr tlie word " goods" is sufficiently comprehensive to 
 effectuate the intention of the act. 
 
 First then, the act was passed for the quiet and in favour 
 of purchasers ; and admitthig that leaseholds were only bound 
 from the award of execution, it is evident that the first pro- 
 vision in the act does not apply to leaseholds ; which arc, 
 therefore, clearly v/ithin the mischief intended to be guarded 
 against by the second provision, as a sale of them is liable 
 to be overturned by a writ awarded in vacation, and tested 
 in the preceding term ; and if we do not hold leaseholds to 
 be within the operation of this branch of the act, the conse- 
 quence is, that purchasers of them are still obnoxious to the 
 danger which the statute intended to guard them against. 
 
 Assuming that leaseholds are within the meaning, it re- 
 mains to inquire, whether they are within the words of the 
 act. This depends upon the construction which the word 
 " goods," as used in the act, ought to receive. 
 
 Biens, bona. Sir Edward Coke says (/?), includes all 
 chattels, as well real as personal. Chatteh, he adds, is a 
 French word, and signifies goods, which by a word of art we 
 call catalla. And this, as Sir Wm. Blackstone observes (g), 
 is tmc if understood of the Norman dialect, for in the 
 Grand Coustumicr (r), we find the word chattels used and 
 set in opposition to a fief or feud, so that not only goods, but 
 whatever was not a feud, were accounted chattels ; and the 
 learned commentator is of opinion that our law adopts it iu 
 tlie ^ame large, extended, negative sense. 
 This opinion appears to be correct, if confined to the word 
 
 ip) Co, Litt. 1 }8j b. {q) 2, Comm. 385, 7th edit. (r) C. 87. 
 
 chattels ;
 
 •OF PROTECTIOy FROM JUDGMENTS. 593 
 
 t'Jiattch; but it must not be extended to the word ^-oo^.?, 
 uhich, in our law, certainly has a more confined operation. 
 
 Ey the civil law, however, bona includes all chattels, as 
 •well personal as real ; and therefore a general bequest of all 
 one's goods will pass a leasehold estate (i), because the civil 
 law guides the construction of bequests of personalty ; but it 
 seems clear, that in an assignment, which must be construed 
 according to the rules of the common lav/, a leasehold estate 
 will not pass under the word goods (I). 
 
 It is evident, therefore, that in some cases that word will 
 include leaseholds, while in others it will not ; and the true 
 rule to discover what sense was affixed to it in the statute 
 of frauds seems to be, an investigation of the meaning usually 
 attached to the same word in acts of parliament parsed before 
 tliat statute. 
 
 By the statute of West. 2, (/), it is enacted, that where, 
 upon the death of any person intestate and indebted, the 
 goods {bona) shall come to the ordinary, he shall be bound 
 to pay the debts so far as the goods {bona) will extend, in 
 the like manner as executors would have been if he had left 
 a will. And in the 31st Edw. III. (//) for the commitment 
 of administration, the word ^ooc^,9 {bicns) only is used. 
 
 {s) Torttnan v. Willis, Cro. (/) 13 Ed, 1. c. 19. 
 
 Eliz. 386. (k) Stat. I. c. 11. 
 
 (I) This was decidtd in 4 Ed. VI. ; I)ut in Portman v. Willis, ubisnp. 
 CJawdv was of opinion, against Fopliaia aiid Clench, that a grant of 
 omnia buna mob'dia el immobilia, would pa.ss leases foryrars; and .so, h«- 
 aaid, would a f;rant of omnia bona in gent-ral; for 39 H. VI. 35, was, 
 that a niiUi had rent for jeais, and granted unniia bona sua ; and it «as 
 held that this rent passed ; and he vouched 4 II. n. l\'. jis jitiolher iiu« 
 thority, because an executor shall have an vjccliotic Jinna: by the equity 
 of the statute of 4 Ed, III. dc bonis aspo talis. 
 
 On examination, it appears, that the authorities cited by Cia\uly do not 
 apply, 'ihe grant was oiuviuia buna vt cafalla, lam viva quain fnortua ; 
 aud in the statute of 4 Edw. III. the words biejii ct ihutiux art- U3»d. 
 
 2 (4 In
 
 In both tliese statutes, therefore, the \vord goods ua.« 
 (."onsidercd as denoting personalty in genrra). It r.iay in» 
 deed be objected, that terms for years were not then niucii 
 in use ; but allowing this, later acts place the point still more 
 Out of doubt. 
 
 Thus the 21st Hen. \'IIL c. 5, after directing how ad- 
 ministration shall be granted in certain cases of the "goods" 
 of intestates, contains a direction, that surety shall be talven 
 of the administrators for the administration of the " goods, 
 chattels, and debts," vvMch they should be authorised to 
 Ininistcr(tf). 
 
 In this statute, then, the word " goods" was used as synony- 
 Uioiis to goods, cliattels, and debts :" and the point seems to 
 be placed beyond controversy by the same sense being at- 
 taclicd to that word in a statute passed but a few years pre- 
 viously to that upon which the present question arises. 
 
 The statute to which I allude is the 22d and 23d Car. IL 
 c. 10, which i after giving power to commit administration of 
 the " goods" of intestates, directs bonds to be taken, with a 
 condition for (amongst otlier things) making an inventory of 
 the "goods, chattels, and credits" of the deceased; v.hich words 
 are used tlu-oughout the condition. In fact, the Words "goods," 
 "goods, chattels, and credits," and "estate," have one and the 
 same meaning attached to them throughout the statute ijj). 
 
 As this point is of very great importance in practice, and 
 the opinion of so great an authority as Serjeant Hill would 
 perpetually lead to disputes on this subject, it is hoped this 
 minute (and I fear tedious) investigation will not be uniiac- 
 ceptable to the learned reader. 
 
 It remains to remark, that Lord Ilardwicke seems to have 
 considered leaseholds as within the operation of the iGtli 
 section of the statute of frauds, and consequently as not bound 
 nntil the delivery of the writ of execution to the sheriff, 
 
 (.i) And see 43 Eliz. c. 8 (^) And see 29 Car. II. c. 3, s. 25.
 
 OF PROTECTION FROM RECOGXIZAXCES. o<).j 
 
 For in Burdon v. Kennedy {z), his Lordship said, where 
 till execution by elegit, or fieri facias, is lodged in a sherift's 
 1 lands, it hinds goods from that time, except in the case oi" 
 the crown, and a leasehold estate is also affected frojn 
 that time ; and if the debtor, subsequent to this, makes un 
 assignment of the ieaschokl estate, tlie judgment creditor 
 need not bring a suit in ejectment to come at the leascliokl 
 estate, by setting aside the assignment, but may proceed at 
 ]:nv to sell the term, and the vendee, who is generally a 
 friend to the plaintiff, will be entitled at law to the pos- 
 session, notwithstanding such assignment (T). 
 
 in. There is still another provision in the act of Charles 
 II. in favoiur of purchasers. It is enacted, that the day of 
 the month and year of enrolment of recognizances shall be 
 pet down in the mai-gin of the roll ; and that no recogni- 
 zance shall bind any lands, &c. in the hands of any pur- 
 chaser, bona fide and for valuable coii'Mrrntion, h\\{ frnrn 
 ilie tirne of sucli enrolment {a). 
 
 SECTIOx\ V. 
 
 Of Frotcctlon from unregistered Deeds, ^<c. 
 
 i>v several acts of parliament all deeds and wills conccrn- 
 ir.g estates within tlie north {h), cast (c), or west {d) ridings 
 
 (z) 3 Aik. 739 ; and s^e JeaiU'S . \{c) S Ann, c 35. 
 V. Wilkins, 1 Ves. 195, '^'-^^^yW5^ ) Id) 2and 3 Ann, c -4. ; 5 Ann, 
 (a) 29 Cha. U. c. 3, s. I^.^^^^-^T^IS, 
 (J,) 8 Geo. 1 1, c. 6. 
 
 (I) Note, if the jiulgmcnt croditor (nrnpir wilh the sh. rill" to ha\f (ho 
 estate snltl at an under v.i'.uf, f'(jiiity \»ill rilit'v*- aj;aii)st the «;alf. fJas- 
 coii^n V. S(ut. 3 Cha. Il"p, 32, .'-'cc Dillon v. liyru, Irish Term 11^;). 
 600. 
 
 2 a 2 a
 
 596 OF PROTECTION FROM 
 
 of the county of York; or witliiu the tov/n and county of 
 Kingston upon Hull {e) ; or within the county of Middle- 
 aex {f), arc directed to be registered. 
 
 Audit is enacted, that all such deeds shall be adjudged 
 fraudulent and void against any subsequent purchaser, or 
 mortgagee, for valuable consideration, unless a memorial 
 tlicreof be registered in tlie manner thereby prescribed, be- 
 fore the registering of tlie memorial of the deed, under 
 wliich such subsequent purchaser, or mortgagee, shall 
 claim. 
 
 And tliat all devises by will shall be adjudged fraudu- 
 lent and void against subsequent purchasers or mortga- 
 gees, unless a memotial of such will be registered within 
 tlie space of six months after the death of the devisor, or 
 testatrix, dying mthin Great Britain ; or within the space 
 of three years after his or her death, dying upon the sea, or 
 in parts beyond the seas. Wills registered within the time 
 allowed by the act, will prevail over even a prior registered 
 conveyance ; but no time is limited by the act within which 
 a memorial of a will must be registered. It may there- 
 fore be done at any time where there is no adverse title un- 
 der a prior registered conveyance ; and there is no weight 
 in an objection which has lately been made, that the estate 
 descends to the heir at law, if the will be not registered 
 within the periods above specified. 
 
 This provision is the same in all the acts, but different 
 provisions are made by the several acts in the case of wills 
 contested or suppressed. 
 
 If the devisee of an estate within any of the three rid- 
 ings of the county of York, or the town of Kingston upon 
 Hull, be disabled to exhibit a memorial within the time 
 ^mited, by the suppression of the will, or other inevitable 
 
 (e;6 Anr, c. 35. (/)7 Ann, 3. 20. 
 
 difficulty,
 
 UXr.ECTSTEKED DEEDS, &C. r,07 
 
 tlifnculty, then a memorial entered of sucli impediment v.itli- 
 in six months after the death of such devisor or testatrix, who 
 shall dii2 within Great Britain, or within three years after 
 the decease of such person who sliail die upon the sea, or 
 beyond tlie seas ; and a memorial of such will, also registered 
 within six months after the removal of such impediment, will 
 protect the devisees against any purchaser subsequently to the 
 will 
 
 But as to the estates in the north riding of York, it is 
 enacted, that in case of the concealment or suppression of 
 any will or devise, any purchaser shall not be disturbed or 
 <lefeated in his purchase, unless the will be actually regis- 
 tered within three years after the death of the devisor. 
 
 As to estates in the county of Middlesex, it is pro- 
 vided, that an entry of the impediment within two years 
 after the death of any devisor or testatrix who shall die in 
 Great Britain, or within four years after the decease of such 
 person who shall die upon the sea or beyond the seas ; and 
 the registry of a memorial of the will within six months af- 
 ter the removal of the impediment, shall be good. But no 
 concealed will is to affect a purchaser, unless it be registered 
 within five years after the death of the testator. 
 
 None of the acts extend to copyhold estates, or to leases 
 at rack-rents, or not exceedincr 21 years, where the actual 
 possession and occupation go along with the lease. And 
 the act for the county of Middlesex does not extend to any 
 of the chambers in Serjeant's Inn, the Inns of Court, or 
 Inns of Chancery. 
 
 And it is by the same acts further provided, tliat no 
 iudgment, statute, or recognizance (other than such as sb.all 
 be entered into in the name and upon tlie proper account of 
 the king, his heirs and successors) shall bind any such es- 
 tates as aforesaid, but only from the time that a memorial 
 thereof sliall be duly entered. 
 
 2 Q 3 This
 
 508 or HIOTECTION FROM 
 
 Thio clause is general as to estates in Middlesex ; but as 
 to estates in the east and west ridings of York, and King- 
 ston upon Hull, it is enacted, that the registry of judg- 
 ments, statutes or recognizances ^vithin thirty days after tlie 
 acknowlaVging or signing thereof, shall bind all the lands 
 of the defendant at the time of such acknowledgment or 
 sirrning; and the same provision is made as to estates in 
 the north riding of York, only that the time is limited to 
 twenty days. 
 
 In commenting on these important acts, I propose to 
 consider, first, the memorial required by the acts ; secondly, 
 what instruments must be registered ; thirdly, the excep- 
 tions in the acts ; and fourthly, tlie equitable doctrine on 
 these statutes in regard to notice. 
 
 1. And first, every memorial of a deed or conveyance is 
 directed by the acts to be under the hand and seal of some 
 or one of the grantors or grantees, his or their heirs, execu- 
 tors, or administrators, guardians, or trustees, attested by 
 two witnesses, one idiereof to he one of the tiitnesses to 
 the execution of the deed; w^hicli witness shall, upon his 
 oath before the register, prove the signing and sealing of 
 the memorial, cmd the execution of the deed me?itioned in 
 such memorial. 
 
 A line is by mistake omitted in the act for the north rid- 
 ing of York ; the memorial is required to be attested " by two 
 witnesses to the execution of such deed, which witness" is 
 directed to prove the execution of the memorial and tlie 
 deed. It is evident, that the words in the other acts " one 
 >vhereof to be one of the witnesses" are omitted after the 
 \\'Oid. " w itnesses," and before the words " to the execution 
 
 of
 
 UNr^ECISTERED DEEDS, ^'C. .509 
 
 of such deed." Ey this act tlic person signirig tlie memo- 
 rial may acknowledge it, and the execution of tlic deed. 
 
 The intention of the legislature clearly was, that no deed 
 should bo memorialised, the execution of which ])y the 
 granting party was not proved on oath by one of the \s\t- 
 nesses to it; for although the memorial may be executed 
 either by the grantor or grantee, yet one of the witricsses to 
 it must be a witness to the execution of the deed, and this 
 must be understood to mean not merely tlie execution by an 
 unnecessary party, as the grantee, but the execution by tlic 
 party from w^hom the estate moves. 
 
 It is however observed, in the Observations on Regis- 
 try ig), that if a considerable time has elapsed from the 
 date of a deed intended to be registered, and all the wit- 
 lusses are dead, or the testimony of any of them not easily 
 obtained, no further delay need originate from either cause, 
 as the re-cxeciLtion ofsucJt deed hij any one of tJie parties 
 in the presence of a iiexc idtness, will be suflicient to ef- 
 fectuate the registry. 
 
 Now there seems great reason to contend, that such a 
 memorial would be wholly inoperative under the register- 
 ing acts. A witness to the execution of a deed which is 
 intended to be registered, was required for the purpose of 
 authenticating the original execution of it, and to jirevcnt 
 forged deeds from being put on the register (//). The re- 
 quisition of the act is not even substantially complied with 
 by an execution, which is totally inoperative, and which, if 
 it had any operation, would be a fraud upon the revenu.\ 
 
 It seems that the direction in the act, by whicli the heirs, 
 executors, or administrators, guardians, or trustees of some 
 or oncof the jxrantors or ifrantees, are authorised to execute 
 the memorial, has been thought not to convey a very clear 
 
 ig) liigge on Re^. p. 76, n. (d , (h) S^e Hobhouso v. IlaniiUoti, 
 
 Precedent, Xo. 32, p. 1 )3. 1 Sclio. and Lef. 2(>7. 
 
 2^4 idea
 
 600 or PROTECTION FROM 
 
 idea of the manner in wliicli the registry by such represen- 
 tative is to be effected ; and therefore the register requires 
 the instrument to be registered, to be sealed and delivered 
 by the person requiring the registry, as if he was a party in 
 liis own right (i). 
 
 But it seems quite clear, that no such execution is ne- 
 cessary. The representative need execute the memorial 
 only in the presence of two witnesses, " one whereof to be 
 one of the Avitnesses to the execution of such deed or con- 
 veyance," wliich witness will then, according to the very 
 words of the act, prove the signing and sealing of the me- 
 morial, and the execution of the deed or conveyance men- 
 tioned in such memorialr 
 
 So it seems, that where a lease or any other deed is from 
 a corporation, who of course affix merely a seal without any 
 signature, the lessee is required to execute the deed for the 
 conveniency of registry (A). 
 
 This practice is open to the observation just made ; for 
 it is clear, upon principle as well as authority (Z), that a 
 corporation affixing their seal is tantamount to a signing 
 and sealing by an individual. And it is to be observed, that 
 in this and the preceding cases, i: is indispensably requisite 
 that one of the witnesses to the original execution of the in- 
 strument intended to be memorialised, should be a witness 
 to the memorial. 
 
 It appears also that the registers are in the habit of re- 
 ceiving and registering certificates of writs of execution {m), 
 decrees or orders from the courts of equity, or rules of the 
 courts of law {n), office copies of wills (o), and certificates of 
 the discharge of judgments (pjy none of which are autho- 
 
 (t) Rigge, 74 n. (b) Precedent, (m) Rigge, Precedent 35, p. 148, 
 
 No. 31, p. 142. («)Id. 83,n. (h). 
 
 (*) Rigge, 106, 107. (0) Id. 96, n. (s;. 
 
 (/j Doe V. Uogg, 1 New Rep. (p) Id. 87, n, 
 
 306. 
 
 rised
 
 UXIIEGISTERED DEEDS, &C. 60l 
 
 rised to be registered, or can be legally received. And it 
 therefore seems clear, that the registry of such instruments 
 is wholly nugatory, so far as any priority or effect is at- 
 tempted to be given to them by force of the act. 
 
 So wills and probates, and copies of wills officially au- 
 thenticated, which have not been registered within the period 
 directed by the statute, are received at the office, and it is 
 thought would operate against persons purchasing subse- 
 quent to the registry, notwithstanding the non-existence of 
 any decree or order to warrant the delay (//). But the same 
 observation applies to this practice as was made by the Mas- 
 ter of the Rolls in Forshall v. Coles, on docketing judg- 
 ments after the time ajipointed by the act of ^Villiam and 
 IMary (r) ; it is only an abuse for the sake of fees, and inef 
 fectual to the parties. 
 
 In regard to the contents of the memorial — the anxiety 
 of the legislature not wantonly to compel the disclosure of 
 the concerns of individuals, induced them simply to require 
 that every memorial should contain, first, the day of the 
 month and year when the deed, &:c. bears date, and the 
 names and additions of all the parties to it, and of the de- 
 visor or testatrix of a will, and of all the witnesses to such 
 deed, &c, and the places of their abode ; and secondly, the 
 honors, manors, lands, tenements, and hereditaments con- 
 tained in such deed, &c. and the names of the parishes, &c. 
 where any such estates lie that arc comprised in, or affected 
 by such deed, &c. in such manner as the same arc expressed 
 or mentioned in such deed, &c. or to the same effect (a). A 
 memorial, therefore, to the following effect would fully com- 
 ply with the requisitions of the act : " A memorial to be en- 
 rolled pursuant to act of parliament, of an indenture. It 
 bears date the 14th day of June, 1806. It is made between 
 
 (<l) Rigge, 8 \, n. (») 7 Ann, c. 20, 8. 6. 
 
 (r) Fide til pr a, 
 
 A o\
 
 ()02 01- PROTECTION IJIOM 
 
 A, of, &'c. [here insert the description], of the one part, ami 
 E, of, Sic. [here insert the description], of the other part. It 
 comprises all that manor, &c. [here insert the parcels ; the- 
 <]^eneral words need not be inserted, but, instead thereof, sa} , 
 '• with their riglits, members, and appurtenances."] And 
 the said indenture, as to the execution thereof by the 
 said A and B, is witnessed by C, of, &c. [here insert 
 his description], and D, of, &c. [here insert his descrip- 
 tion]. And the said indcntiu-e is hereby required to be 
 registered by the said E, as witness his hand and seal thi^ 
 14th day of June, 1806. Signed and sealed in the pre- 
 .scncc of C or D, [one of them must attest the memorial], 
 and E, of, &c." It seems, however, advisable to go a stc}) 
 further, and to state to whom the estate is conveyed, as 
 this, where there are more than tvv o parties, will facilitate 
 a search for incumbrances on the estate ; but no good rea- 
 son can be given why the parties should be put to expense 
 by stating the instrument more fully. When a purchaser 
 discovers what deeds were executed, he will of course re- 
 quire the production of them ; and so no mischief can arise 
 by a strict adherence to the letter of the act. 
 
 With respect to the parcels it is provided, that wliere 
 there are more writings than one for making or perfecting 
 any conveyance or security which concerns the same es- 
 tates, it shall be a sufficient memorial thereof, if all the 
 estates are only once named in the memorial of any one 
 of the deeds or writings, with the names and additions of 
 the parties and witnesses, and the places of their abodes, 
 are only set down in the memorials of the same, with 
 a reference to the deed or writing whereof the memorial 
 is so registered, that contains the parcels mentioned in 
 all the deeds, and directions how to find the registering the 
 same (/). 
 
 This provision has been extended in practice. It is usual, 
 
 (<) 7 Anil; c. 2G, s. 6. 
 
 for
 
 UXKEGISTERED DEEDS, &C. 603 
 
 for instance, in a memorial of an assignment of a lease, to 
 refer for the parcels to the prior registry of the lease, al- 
 tlioiigh a separate and distinct transaction. This, however, 
 is very incorrect. The statute only authorises such a refer- 
 ence v/here several v.ritings are executed to perfect the same 
 conveyance or security. iVnd where the memorial does not 
 comply with the directions of the act, the person claiming 
 under the deed defectively registered cannot insist on the 
 benetit of the statute against a subsequent purcliaser, \\itli- 
 out notice whose conveyance i^ duly registered. 
 
 II. We are to consider what deeds oug:ht lo be re'nstered. 
 It is not easy to conceive that any doubt could arise on thi.% 
 head ; but, nevertheless, two questions have been agitated. 
 
 First, it has been contended, that a deed of ajipointment 
 under a power need not be registered; because upon the ex- 
 ecution of a power, the interest limited by it arises under 
 the deed creating the power. But to this it was answered, 
 that the deed was within the miscliief intended to be guarded 
 against by the act, as a purchaser could not otherwise dis- 
 cover whether the power was exercised ; and it was accord- 
 ingly decreed, that deeds of appointment must be regis- 
 tered {ii). 
 
 The other question was, whether the non-registry of a 
 lease was cured by registering an assignment in wliich tlie 
 lease was recited; and it was ^ery properly decided, that it 
 was not {x) ; for the intention of the Icgislatui-e was, that 
 the register should contain sudi information as might enable 
 purcliasers to ascertain whether estates were or were not 
 subject to incumbrances ; for which purpose it is necessarv, 
 
 (w) Scrafion V. Quiiicey, 2 Ves. (j-) Honeycomb t. VValJron, 
 
 'ii J. - 2 Str. 1061, 
 
 that
 
 004 OF PROTECTION FRO>r 
 
 tliat the register slioukl contain a regular chain of titl(,\ 
 If one link is broken, the object of the legislature is defeated. 
 
 III. We come to the exceptions in the acta. 
 
 The first exception is of copyhold estates. Tliis exception 
 is very general ; and it may bethought that no deed relating 
 to a copyhold estate need be registered. No effectual lien 
 can be created on the land without its appearing on the 
 court rolls. A lease, indeed, once created by licence is a 
 common law interest, and may be assigned without the 
 assignment appearing in the court books ; but this is a very 
 inconsiderable miscliief, as the license must appear on tlie 
 court rolls. Indeed, in some few manors, copyhold tenants 
 'may lease without license, and this is a good custom. But 
 still in all cases, although the interest granted by the lease 
 is a common law interest, yet the estate remains copyhold, 
 and appears to be within the exception in the act. However, 
 it is certainly advisable to register such leases of copyhold 
 estates as, if the estate were freehold, would require registry. 
 
 The next exception is of leases at rack-rent. It frequently 
 happens, that a lease originally at rack-rent becomes of some 
 value in the course of a few years. When the lease is sold 
 for a valuable consideration, the question arises, whether the 
 lease continues within the exception, or ought to be registered 
 (?/). On one side it may be urged, that the property being 
 valuable, is within the spirit of the statutes, as a purchaser 
 of it might otherwise be defeated by a prior secret assign- 
 ment. But, on the other hand, it may be said, that the 
 next exception shews the legislature did not intend everv 
 species of property to be subject to the acts, although it may 
 be a saleable interest. And it may be insisted, that the 
 lease, at the time it was granted, having been within the 
 
 iy) See Rigge, 88, n. (n). 
 
 exception,
 
 rNREGISTERKD DEEDS, &C. 605 
 
 oxccption, cannot be affected by any matter ex post facto, 
 for tlien one day it may be within the exception, and arotlier 
 it rnay be subject to the directions of the act, just as the 
 property may rise or fall in value. Perhaps, therefore, the 
 better opinion is, that a lease originally at rack-rent, and 
 within the exception in tbe acts, continues so during the 
 tei-m, although it may become a valuable and saleable inte- 
 rest. 
 
 The next exception is of leases not exceeding 21 yeart, 
 where the actual possession and occupation go along with 
 the lease. And it has been said, th.at where such a lease be- 
 comes assigned for a valuable consideration, its registry ought 
 always to be recommended, and particularly when such 
 assignment is by way of mortgage : for then it is clearly out 
 of the exemption, the possession and occupation (mentioned 
 conjunctively) being dividtnl {z). The latter part of this 
 observation is correct ; and it is always usual in practice to 
 require a beneficial lease, not exceeding 21 years, to be regis- 
 tered where it is assigned by way of mortgage. And, in- 
 deed, tjie acts seem cautiously v.orded, so as not to exempt 
 the lease in tluit event. But it is impossible to contend, 
 that the assi<riiment of the lease for a valuable consideration 
 can take it out of the exception. It still remains clearly 
 within, as well the spirit as the words of the exception. 
 While tlic possession and occupation go along with the 
 lease no one can be deceived, and the lease still continues 
 " a lease not exceeding 21 years, where the possession and 
 occupation go along with the lease." 
 
 The last exception requiring notice is, of the chambers in 
 Serjeant's Inn, v/liich is certainly within tlie city ; and it 
 therefore seems to have been doubted, whether tlie legislature 
 did not intend the act of 7 Ann to include in its o})eration 
 )hc whole metropolis, except the borough of Southwavk (<.■)• 
 
 (r) Uigge, 88, ii. o). («) Hicgr, 88, n. (p . 
 
 Ihlt
 
 606 01 PROTECIION 1 110 Si 
 
 But there is not the least ground for this douijt. It is not 
 surprising that the mistake .should have been made, and it is 
 impossible to argue, that such an error shall make an act 
 passed relating to lands " in the county of J^Iiddlesex," upon 
 the petition of the "justices of the peace, and grand jury 
 of the county of IMiddlcscx," extend to the city of I^ondon. 
 This construction would invalidate some thousands of leases, 
 as the general opinion of tlie profession is, that the act docs 
 iK)t extend to the city. 
 
 IV. The fourth division of this subject remains to be 
 discussed. The questions on this head are simply three, 
 viz. 
 
 First, Whether a person having the legal estate, as a 
 mortgagee, and advancing more money without notice of a 
 second mortgage duly registered, shall hold against the 
 second mortgagee, till he is satisfied all the money he has 
 advanced? And it hatli been adjuged that he shall 
 
 This decision was made upon this ground i that thougli 
 the statute avoids deeds not registered, as against purchasers, 
 yet it gives no greater efficacy to deeds that are registered 
 than they had before; and the constant rule of equity is, 
 that if a first mortgagee lends a further sum of money with- 
 
 (b) Bedford V. Backhouse, 2 Eq, 5 ; Wriglitson v. Hud?o:i. 'J Eq. 
 
 Ca. Abr. 615, p). 12,2 KA. in Ci.a. Ca Abr. 699, p!. 7. 
 
 (I) Lord Rtdesdale has determined difitrenMy on tlie Irish rrg'sfering 
 act, because the act declares that ererj df.cd shill be efTictual accurdirn: 
 to tJu- jynorU'j of the time of registry. Th( re appears to have been con- 
 siderable difficulty in the wny of this decision. Bushell v. Eushell^ l.a- 
 touchc V. Lord Dunsany, 1 ffcho. and Lef. 9(\ 137, 
 
 out
 
 UNREGiSTEREJD BEKDS, Ike. G07 
 
 •'III notice of the second mortgage, his whole money shall be 
 }';iid in the iirst place. 
 
 Indeed this rule ought to be more inflexible in .a register 
 ihan in any other county ; because, by the establishment oi* 
 iiie -register, the second mortgagee hatli tlie best poi.:sible 
 .cans of discovering 'vvhethcr tlie estate is incumbered, and 
 nlio tlic incumbrancer is; and if h.c has not searched tlie 
 register, or, having searched the register, has neglected, in 
 •Ginpliancc -with the general rule of equity, to give the prior 
 n^cunibranccr notice of the second mortgage, he is not a pro.- 
 j;jr object for the extraordinary protection of a court of equi- 
 ty: for even the rule of law is, vigllantihus non dormicnii- 
 bits scrvat lex. 
 
 This principle extends to a mortgiigor paying off mortgage- 
 3.ioncy to a mortgagee, witliout notice of liis ha\ing trans- 
 iV')-red the mortgage ; which is a valid payment, altliout^h 
 'i!.' transfer of the mortgage is duly registered (c). 
 
 And it is conceived tliat the rule would ai)ply to a moi t^ 
 ^awe lendino" a further sum of monev to tlie mortcaf'-or, 
 without notice of the sale of the equity of redemption ; and 
 tlicrcfore a purchaser of an equity of redemption of an 
 estate should, immediately after the sale, give notice of it to 
 tlie mortgagee, although the estate is in a register countv, 
 ..nd his conveyance is duly registered. Indeed a purchase 
 of an equity of redemption should never be completed willi- 
 out tlie concurrence of the mortgagee, for if tlie mortgagee 
 liavc another mortgage made to him by the seller, although 
 ( {" a distinct estate for a distinct debt, yet the purchaser of 
 OHO estate cannot redeem cue mortgage without redeeming 
 liie ot]ier(c/). 
 
 And here it may be remarked, that an assignment 
 should not in any case be tal en of a mortgage, without tin- 
 
 (c) William^ V. Sorrf!!, I Vcj. </ Irtso'i T.Dtn-.. iCox, '1'..':'. 
 
 .] .11. ?89-
 
 608 OF mOTECTlON FROM 
 
 privity of the mortgagar as to the sum really due; for 
 although it undoubtedly is not necessary to give notice to 
 the mortgagor that the mortgage has been assigned (<?), yet 
 the assignee takes subject to the account between the mort- 
 gagor and mortgagee, although no receipt be indorsed on the 
 mortgage deed for any part of the mortgage money which 
 l)a8 been actually paid off ( /). 
 
 The second question is, whether a person purchasing 
 without notice, and obtaining the legal estate, shall be 
 prejudiced by a prior equitable incumbrance, which was 
 duly registered previously to his purchase ? And it was 
 decided by Lord Camden, in the case of Morecock v. Dick- 
 ens (g), that he shall not. 
 
 This decision seems hardly reconcileable with the general 
 principles of equity. It is manifest that a purchaser must 
 search the register, if he intend to be safe ; and it would 
 not, perhaps, be too violent a presumption that every pur- 
 chaser does search the register, especially when we advert 
 to the very slight circumstances which are deemed construc- 
 tive notice to a purchaser {h). The contrary doctrine evi- 
 dently leads to perjury, which the statute intended to pre- 
 vent (i). if, upon searching the register, a purchaser 
 should meet with equitable incumbrances only, he might, 
 upon the authority of Lord Camden's decision, purchase the 
 estate, and then deny notice, and there are very few cases 
 in which it could be proved that he actually did search the 
 register. 
 
 But the case of Morecock v. Dickens would not, per- 
 haps, be deemed an authority. Lord Camden seemed to 
 
 (e) See 9 V- s. Jan. 410. (/tl. See post, ch. 17. 
 
 (/) Matthews v. Wallwyn, 4 (0 See Hine v. Dodd, 2 Atk. 
 
 Vis. Jim. 118;see9Ves. Jim.261. 275. 
 (g-) Ambl.678,
 
 UNREGISTERED DEEDS, &C. 609 
 
 make liis decree (in opposition to liis own opinion), because 
 mucii property had been settled, and conveyances had pro- 
 ceeded on the ground of the determination in Bedford v. 
 Backhouse (Ic). A thousand neglects, he said, had been 
 occasioned by that determination, and therefore he could 
 not take upon himself to alter it. He added, that if. it 
 was a new case, he should have had his dou])ts ; but tlie 
 point was closed by that determination, which had been ac- 
 quiesced in ever since. 
 
 Now, Lord Camden's decision can only bo considered an 
 authority, so far as it is authorised by the case upon whieli 
 he professed to ground his opinion : and it seems clear, that 
 the case of Bedford v. Backhouse, was not an authority in 
 point ; and that the case before him was, in every respect, a 
 new question. 
 
 In the case of Bedford v. Backhouse, by the kno^^^^ and 
 settled rule of equity, the first mortgagee was entitled to 
 liold against the second mortgagee, unless he liad notice ; 
 and as the second mortgagee liad it in his jiowcr to give 
 such notice, and neglected doing so, the decision seems per- 
 fectly proper. But in the case before I^ord Camden, tlic 
 prior incumbrancer had no means wliatever to acquaint tlie 
 purchaser with the incumbrance, while he himself had it in 
 his power to ascertain whether the estate was incumberi-d. — 
 Where the neglect is the purchaser's, who else should bear 
 the loss occasioned by that neglect ? Besides, it seems clear 
 that no person, not hcini^ seised of the lefial estate, could 
 ever have been induced to neglect searching the register on 
 the authority of any of the cases on tins su])iect, much less 
 on that of Bedford v. l^ackhouse, which cmild not, one 
 should think, be so misconstrued as to sjinclion or lead to 
 such a neglect. 
 
 Since these observations were published, Lord JUdcsdalc'.'? 
 
 (k) Sitpra, 
 
 2 R decisions
 
 610 OF PROTECTION FROM 
 
 decisions in Ireland have appeared. There are tv/o cases in 
 which the point in question was discussed, although it wasf. 
 not necessary to decide it ; but Lord Kedesdalc expressed 
 his opinion to he, that the registry of an equitable incum- 
 brance was not notice to any subsequent purchaser. H:s 
 Lordship admitted, that if a man searches the register, he 
 will be deemed to have notice, and that no person thinks cf 
 purchasing an estate without searching the registry ; but he 
 thought it could not be considered as notice to all intents, 
 on account of the mischiefs that would arise from such a 
 decLsion. For if it is taken as constructive notice, it must 
 be taken as notice of every thing that is contained in tlie 
 memorial : if the memorial contains a recital of another in- 
 strument, it is notice of that instrument; if a fact, it is no- 
 tice of that fact (/). So, if it be notice, it must be notice 
 v/hether the deed be duly registered or not * it may be un- 
 duly registered, and if it be so, the act does not give it a 
 preference; and thus this construction would avoid all 
 the provisions in the act for complying vritli its requi- 
 sites {m). 
 
 Now, although one cannot but feel the v/eight of any db- 
 servations of Lord Redesdale's on a point of tins nature, 
 yet these do not appear to be conclusive. The distinction 
 endeavoured to be established in the text between the cases 
 where the purchaser has, and v;here he has not the legal es- 
 tate at the time of his purchase, wns not discussed. In- 
 deed, it was unnecessary to discuss it v;ith reference to th.e 
 registering act for Ireland. Lord Redesdale's opinion, there- 
 fore, was wholly extra-judicial. There can scarcely be anv 
 objection to the registry of a deed being deemed notice of 
 
 {I) rJushell V. Bushel!, 1 Scho. 1 Scho. and Lef. 157 ; aod see 
 
 and Lef. 103 ; and see Pentland Underwood V- Lord Courtown, 2 
 T. Stol-PB, 2 Ball and E?atty, 68. Scho. and Lef. 64. 
 
 (ni) Latouche T.Ljrd Bunsany, 
 
 all
 
 UNREGISTERED DEEDS, &'C. {j] 1 
 
 i^ll its contents, vvhen a purcu2s.T can require the production 
 t3i tlie deed before he completes the coiitrnct. Certain]-/ 
 llierc appears to he great v/eight in the objection, that if the 
 registry be of itself notice, it must be notice, althougli the 
 deed be unduly registered. But this objection assumes v.-liat 
 lias never been decided ; and it should seem tliat the courts 
 miglit hold, without any violation of principle, that a pur- 
 chaser should not be deemed to have notice of an equitable 
 incumbrance by the mere registry of it, unless it was dull/ 
 registered. Why should equity interfere in favom- of an in- 
 cumbrancer, when he has not complied with the salutary re- 
 quisitions of that very act upon which he lays his founda- 
 tion for relief? The reader is reminded, that these obser- 
 vations are addressed to the case of a purchaser not /lavhi^'- 
 the legal estate at the time of his contract. And it is 
 hardly necessary to say, tliat whatever private opinion may 
 be entertained on this point, no one can be advised to rely 
 on an equitable cliarge on an estate in a register county, al- 
 though it is duly registered, and there is no prior incu:n- 
 brance on the register. 
 
 The third and last question is, whether a person buying 
 an estate with notice of a prior incumbrance not registered, 
 shall in equity be bound by such incumbrance, althougli lie 
 liath at law obtained a priority by registering his deeds '-' 
 And it hath been liolden that he shall {n). 
 
 (;j)Lord Forbes v,Nil5on/2 I^ro. Shfldori v. Cox, Ambl. b"2\ ; and 
 
 P. C. 425 ; 2 Eq. Ca, Abr. 482,pl. Julland v. St,iinbri(lgf,3 Vt--. Juii. 
 
 ]9; 3 Alk. 653, cited ; Cbivall v. 478 ; and see Cowp. 712 : 1 Ihirr. 
 
 iS'icholls, Str. 664 ; Eoatnitl' v. 474 ; 1 Schoales nnd Lefrov'sUop. 
 
 Smith, 1 Eq.Ca. Abi-.357, pi. 11 ; 102; Biddnlph v. ^t. J.din, 2 
 
 i;iadesv.lilades,lE<i.Ca,Abr.358, Srbo. and L-r.52I ; Eyfe v. Poi- 
 
 pl, 12 ; nine v. Dodd,C Atk. 275; phiii, 2 Tnll and Deaf. 2'.^0. 
 Lc Neve v. Le Neve, 3 Alk, G 16 ; 
 
 ■: l: .2 Thil
 
 6*12 OF niOTECTION FROM 
 
 Tliis decision is perfectly consonant to tlie general princi- 
 ples of ccpiity. The intention of the act was to secure sub- 
 sequent purchasers and mortgagees against prio?' secret 
 conveyances and fraudulent incumhrances ; and, there- 
 fore, where a person has notice of a prior conveyance, it is 
 not a secret conveyance by which he can be prejudiced ; for 
 he can be in no danger where he knows of another incum- 
 brance ; because he miglit then have stopped his hand from 
 proceeding, and therefore isj^t ''^^^:yt''^^^^'^^...^ 
 meant to relieve {i)\^i^!Z7::::^1i:^^'y^ 
 
 It will Occur to the learned reader, that '^tliougirilTe "^^^J 
 prior purchaser would, in a case of this nature, be relieved 
 against the subsequent sale, yet the legal estate will be vested 
 in the subsequent purchaser by force of the statute. 
 
 From the foregoing decisions, it is evident that a pur- 
 chaser may be bound by a deed, althougli not registered ; 
 but it is equally clear, that it must be satisfactorily proved, 
 that the person who registers the subsequent deed must have 
 known exactly the situation of the persons having the prior 
 deed; and knowing that registered, in order to defraud 
 them of that title he knew at the time was in them 
 (;>). Apparent fraud, or clear and undmdjted notice, 
 would be a proper gTound of relief; but suspicion of no- 
 tice, though a strong suspicion, is not sufficient to justify 
 the court in breaking in upon an act of parliament (qj.^^^Tuix. 
 
 I nave now brougni to a conclusion tire observation ff^y * 
 which I proposed to offer on the registering acts. If I 
 might be allowed to express a general opinion on the pro- 
 visions in these acts, explained as they are by the decided 
 cases, I should be tempted to observe that they miglit be 
 improved. I approve rather of the act for Ireland, though 
 not to the extent to which it has been carried by the dcci- 
 
 (o) Le Neve v. Le Neve, 3 Atk. (.7) See 2 Atk. 276 ; and Irons 
 
 646, V. Kidwd, 1 Ves. 69, cited. 
 
 ip ) See 3 Ves. Jin,. 485, h"^ ^ /:?^t.-.,e^ ^9 ^^ 
 
 ■sions
 
 UNREOISTEIIED DEEDS, cSjC. 613 
 
 sioiis of Lord Kedesdalo. I would by no means give an 
 equitable charge the effect of a legal conveyance ])y tlie 
 mere act of registry ; at tlie same time tliat I would insure 
 the i)riority of the charge as an equitable charge, by making 
 the registry of an instrument notice to all subsequent pur- 
 chasers. The rule, that notice of an unregistered incum- 
 brance shall affect the conscience of a subsequent purchaser, 
 I would not disturb, contemplating the present temper of 
 the courts, to confine this doctrine to cases of clear notice. 
 
 SECTION VI. 
 
 Of Protection from Acts of Papistry. 
 
 j3y the 11 and 12 W. III. c. 4, it was enacted, tliat 
 papists who should not, witliin six months after attaining 
 eighteen, take the oaths and subscribe tlie declaration 
 therein mentioned, should, but as to himself or lierself 
 only, be incapable to take by descent, devise, or limitation ; 
 and the estate sliould be enjoyed by the next of kin, being 
 a protestant, during the life, or until the conformity of 
 such papist. And by this act papists were rendered inca- 
 pable of purchasing lands eitlicr in tlieir own names, or in 
 the names of trustees ; and all estates made to them were 
 declared to be utterly void and of none effect, to all intents, 
 constructions, and purposes whatsoever. 
 
 To remedy the inconveniences arising from this proN ision, 
 it was by a modern statute (r) enacted, that no sale for a 
 
 (r) 3 Geo. I. c. 18; gee 29 Ceo. HI. c. 36, ?. 4. 
 
 2 11 a full
 
 full and valuable consideration, by a papir,t, of any lands, 
 or of any interest therein theretofore made, or tlicrcafter to 
 be made, to a protcstant purchaser, should be impeached 
 by reason of any disability of the vendor, or of any peftons 
 under whom he claimed in consequence of the 11 and 12 
 W. III. (s) ; unless the person taking advantage of such 
 disability should have recovered before the sale, or given 
 notice of his claim to, the purchaser, or before the contract 
 for sale should have entered his claim at the quarter-sessions, 
 and bo?inficIe pursued bis remedy. But it was expressly 
 provided, that the clause in 11 and 12 W. ill. disabliiijj 
 papists from purchasing, sliould remrin in full force. 
 
 In the case of Fairclaim v. Nevdand (t), tlie Court of 
 Kin'T^'s Bench expressed an extra-judicial opinion, that the 
 statute of Geo. 1. did not in every case authorise a sale by a 
 papist to a protestant purchaser. They considered the 
 statute of William III. as having diflerent provisions for 
 persons of diiferent ages, viz. as to those under eighteen, 
 estates limited to them were vested for the benefit of their 
 posterity, cmd these -were intended to he able to convey to 
 protestmiis ; but as to others above eighteen, they are 
 absolutely disabled from taking any estate by purchase, and 
 the statute of George never intended to enable them to 
 convey what they had not. 
 
 In a case before Lord Hardwickc, tvvo years afterv.ards, 
 it was insisted that the proviso in the act of George re- 
 strained the enacting part to a statute of James recited in 
 the act of George; and that the statute of William, by 
 the express words of the proviso, remained in full force. 
 Lord Hardwicke, hovrever, said, " that the statute of 
 YV^illiam was to be sure made to prevent papists from 
 Acquiring jiew estates. Then canie the statute of 
 GcoYge I. and this statute, and the proviso in it, hud a 
 
 (5; Vide6wj:rc, p. 50,3. (0 S Vin. Abr, 72, pi. 4. 
 
 seeming
 
 ACTS OF PAPTSTllY. Cl .' 
 
 r>ecming repugnancy, and he ^vonld take notice, tliat the 
 statute in this respect had always been doubtful; some 
 people liad thought that the proviso restrained the statute, 
 and it was certainly a very odd proviso. But ho tliouglit 
 the meaning of the proviso was only e.v ahindaiiti cautela 
 against papists, and was not designed to afreet purcliascrs ; 
 for if it were otherwise, the security to protcstant purchas- 
 ers, under the statute, would be a most doubtful seciuity." 
 And he considered the enacting part of the statute as in 
 full force for the benefit of a protestant purchaser, althoug]) 
 it was not necessary to decide the point {u). 
 
 iSlr. Wiibraham was one of the counsel for tlie plaintiff 
 in the last case, and in an opinion given by him on this 
 point a few years afterwards, he thought that the act of 
 Geo. I. authorised a sale by a papist purchaser to a protest- 
 ant purchaser, and was not in that respect controiled by 
 the proviso. He stated, that as the opinion of tlie eminent 
 conveyancers, from tlie time of passing the act in 1717, till 
 about the year 1710, had been, that popish purchasers 
 might sell ; and as it was the opinion of the present Chan- 
 cellor, and several eminent lawyers, they might sell, he 
 was of tlie same opinion, tliough the court of King's Bench 
 seemed to be of a contrary opinion in a trial at bar, in the 
 year 1741, between Fairchild and Newland (jt'). Indeed it 
 seems surprising that any doubt should have arisen on this 
 point, as the act was passed for the express puqjose of 
 encouraging Roman catholics to sell their estates to pro- 
 tcstants, however they might have acquired them ; and the 
 legislature was only anxious that Roman catholics sliould 
 not derive any povrcr from the act to purchase and hold 
 
 (u) WlldJgos V. K.eWc, 8 Vin. (.r) 2 Vol. Cas. an.l Opin. 60; 
 
 Abr. 73, pi, 5; see S. C. cUpcI, 1 atul s.p s»'veral oth^r npiiiior?, ib. 
 
 Atk. 535; 2 Ves.392, uoui. AVi!d. 54 to 7:. 
 goose V. Moore. 
 
 2 u 4 estate^.
 
 616 or PROTECTION FROM ACTS OF PAFISTRY. 
 
 estates. A different eoiistructioii would deprive the act of 
 nearly all operation. It lias now, however, long heen 
 thought the better opinion, that the proviso does not defeat 
 the enacting part in favour of protestant purchasers, and 
 on the authority of it many purchases of considerable con- 
 sequence have been made {?/). 
 
 The act requires the sale to be " for a full and vahiable 
 consideration;" but the purchase will be protected by the 
 statute, although a year's purchase more might ha\e been 
 obtained for the estate, the consideration being only evi- 
 dence of the reality of the purchase {z). 
 
 And although a purchase from a papist was made under 
 suspicious circumstances, yet if the purchaser has paid any 
 part of the purchase-money, he may plead the statute of 
 William III. in bar to a bill for a discovery from him, 
 whether the vendor was a papist ; for by his discovery the 
 estate might perhaps be recovered at law, and then he 
 would lose the money he had paid (a). 
 
 On this statute it remains to observe, that a purchaser 
 having notice of the vendor being a papist, and under a 
 disability to hold, is immaterial, unless it was given to 
 him by the person taking advantage of the disability ac- 
 cording to the act of Geo. I. 
 
 (y) See Mr. Bullor's learned (r) Wildgoose v. Moore, 1 Atk. 
 
 note to Co. Litt. 391, a. s. 3. See 535 j 2 Ve«. 392, cited; ride supra; 
 
 also 43 Geo. 111. c. 30; and see 2 Atk. 210; Baruard Rep, Cha. 
 
 O'Fallon v. Dillon, 2 Scho. and 455 ; Smith v. Read, 1 Atk. 526. 
 
 Lef. 13, for the construction of (a) Harrison v. Southcote, 1 
 
 popery acts. Atk. 528 ; 2 Ves. 389. 
 
 SECT.
 
 [ 617 ] 
 
 SECTION VII. 
 
 Of Protection from Bcfccts hi Recoveries. 
 
 XlEiiE may be mentioned the 4t]i section of tlic li (rco, 
 II. c. 20, for wliicli the profession is indebted to tlie late 
 Mr. Pigot ; whereby, after reciting that, by the default or 
 neglect of persons employed in suffering common recoveries, 
 it has happened, and may happen, tliat such recoveries arc 
 not entered on record,' whereby purchasers for a valuable 
 consideration may be defeated of their just rights : " It is 
 enacted, that where any person or persons hath or have 
 purchased, or shall purchase for a valuable consideration, 
 any estate or estates, in lands, tenements, or hereditaments, 
 whereof a recovery or recoveries is, are, or Avere necessary 
 to be suffered, in order to complete the title, such person 
 and persons, and all claiming under him, her, or them, 
 having been in possession of the purchased estate or 
 estates from the time of such purchase, shall and ma\ , 
 after the end of 20 years from the time of such purchase, 
 produce in evidence the deed or deeds making a tenant to 
 the writ or ^mts of entry, or other writs for sufTcriiig a 
 common reco\'ery or recoveries, and declaring the uses of a 
 recovery or recoveries ; and the deed or deeds so produced 
 (the execution thereof being duly proved) sliall, in all 
 courts of law and equity, be deemed and taken as a good 
 and sufficient evidence for such purchaser and purchasers, 
 and those claiming under him, her, or them, that such 
 recovery or recoveries was or were duly suffered and per- 
 fected, according to the purport of such deed or deeds, in 
 case no record can be found of such recovery or recoveries, or 
 the same shall appear not to be regularly entered on record : 
 
 ])rovidcd
 
 618 or FROTLCTIOX FRO:.f 
 
 provided alv.ays, that the person or persons making sikIi 
 deed or deeds as aforesaid, and declaring the uses of a com- 
 mon recovery or recoveries, had a sufiicicnt estate and power 
 to make a tenant to such writ or writs as aforesaid, and to 
 suffer such common recovery or recoveric.;.'" 
 
 SECTION VIII. 
 
 Of FrQiectionfrovi Defects in Sales for Land-Tax. 
 
 VY E may lastly notice the 12th section of the 54 Geo. III. 
 c. 173, whereby, after reciting that for the pnqiosc of re- 
 deeming land-tax, or of raising money for reimbursing the 
 stock 0" money previously transferred or paid, as the consi- 
 deration for redeeming land-tax charged on lands and other 
 hereditaments belonging to persons for the time being seised 
 or possessed, or entitled beneiicially in possession to the 
 rents and profits of, but not having the absolute estate or 
 interest in such lands or other hercditam.ents, or for some 
 other purposes for -which lands and hereditaments are au- 
 thorized to be sold by such persons under the powers and 
 provisions of ihc said Act of the 42d year of his present 
 Majesty, or of some subsequent Act relating to the redemp- 
 tion and sale of the land-tax,, some sales of lands and other 
 liereditaments may have been or m^ay be made by persons so 
 seised or entitled, not strictly authorised to sell by such 
 powers and provisions without some further cssurance in the 
 law, or by reason that all the lands and other hereditaments 
 cf or to which the persons making such sales were respec- 
 tively so seised or entitled, did not at the tiities of such sales 
 
 stand
 
 DEFECTS IN SALES rOK LAND-TAX, 6X9 
 
 ?tand limited and settled, and subject to or for the same 
 uses, trusts, intents and purposes, or 1:y reason that a greater 
 quantity of an estate has been sold than may have been 
 necessary to be sold for the authorised piu'poses, or by reason 
 of some other mistake or inadvertence ; Now be it further 
 enacted, That all sales so made, as aforesaid, and all convey 
 nnces executed of the lands' or other hereditaments so sold, 
 provided the same have been respectively made and executed 
 bona fide and for valuable consideration, and sliall appear 
 to have been made and executed under the authority and 
 with the consent and approbation of the commissioners as 
 required bv the said Acts or any of them, in cases of sales 
 under the powers of the said Acts, shall be and the same are 
 hereby ratified and confirmed from the respective periods at 
 v/hich such sales and conveyances were respectively made 
 and executed, and shall be from such respective periods as 
 valid and effectual in the law as if such sales and convey- 
 ances had been made and executed in stnct conformity to 
 the powers and provisions under which the *samc were in- 
 tended to liave effect, any tiling in the said Act of the 42d 
 year of his present IMajesty, or of any such subsequent Act, 
 as aforesaid, to the contrary notwith,standing. Hut tliis 
 provision is qiuilift^^yu' a proviso, Thate>ery person injured 
 or prejudiced by any sales hereby confirmed shall be entitled 
 to relief cither by the decree of a court of equity on a bill 
 filed, or by a summary application to a court of equity by 
 petition, and by the usual proceedings before the master or 
 oihcr proper officer of the court on such petition, and an 
 order thereupon ; and shall, under such decree or order, have 
 an annual rent-charge to such an amount, and for and during 
 such term or estate, aiul charged upon such lanils or other 
 hereditaments as such court shall order or direct ; and the 
 said court shall have full power to adjust the proportion and 
 terms of such annual rentrchargo between different claimants, 
 v)d to direct tlie eeitlemcnl of such annual rent-chaigc hi 
 
 such
 
 620 or EQUITABLE RELIEF 
 
 such manner as the said court sha]], under the circumstances 
 of the case in its discretion, think proper ; and shall also have 
 power to make such order respecting the costs of the; parties 
 as the said court shall think fit. ^^^ ^ l"^]. ^r ^z/ ^e^ 
 
 With respect to the general operation of statutes passedX 
 in favour of purchasers, it may he laid doA\Ti as a rule, that 
 equity will not permit them to he taken advantage of where 
 the purchasers have notice of the incumbrance or deceit 
 which the statutes were intended to guard them against, 
 because qui sc'it sc decipi non dccipkur, and the resolutions 
 respecting voluntaiy settlements must be considered auo- 
 inalous. 
 
 Of equitable Relief and Protection, 
 
 I. 1 HITS have we taken a cursory view of the several sta- 
 tutes passed for the relief or protection of purchasers. The 
 relief and protection afforded to purchasers by the rules of 
 equity, form the next branch of our inquiry. 
 
 A coiu't of equity acts upon the conscience, and as it is 
 impossible to attach any demand upon the conscience of a 
 man who has purchased for a valuable consideration, bona 
 fide, and without notice of any claim on the estate, such a 
 
 man
 
 AND PROTECTION. CSl 
 
 man is entitled to the peculiar favour and protection of a 
 court of equity. 
 
 And it has been laid down as a general rule, that a pur- 
 chaser hyiia fide, and for a valuable consideration, without 
 notice of any defect in his title at Ihe time lie made his jmr- 
 chase, may buy, or get in a statute, mortgage, or any other 
 incumbrance, (and that, although it is satisfied) ; and if he 
 can defend himself at law by any such incumbrance, his ad- 
 versary shall never be aided in a court of equity for setting 
 aside such incumbrance : for equity will not disarm a pur- 
 chaser, but assist him ; and precedents of tliis nature arc 
 very ancient and numerous, viz. where the court hath refused 
 to give any assistance against a purchaser, either to an heir, 
 or to a vendor, or to the fatherless, or to creditors, or even to 
 one purchaser against another {a). 
 
 And the favour and protection of a court of equity is ex- 
 tended to a purchaser, not only where he has a prior legal 
 estate, but also where he has a better right to call for the 
 legal estate than any other person {h). 
 
 A purchaser cannot, however, protect himself by taking 
 a conveyance or assignment of a legal estate from a trustee, 
 in whom it was vested upon express trusts (c). 
 
 The court of Chancery will not supersede a commission of 
 bankruptcy even for fraud, where there have been purchasers 
 under it {d) ; for a commission being superseded, all falls 
 with it {e). So equity will not relieve against a bona fide 
 
 (rt) Basset v. NoswoHhy, Finch, Knott, 1 1 Ves. Jan. 609 ; Shine r. 
 
 JG2; Jerrard v. SauuJers, 2 V'es. Cough, 1 Bill and Beatty, 436, 
 Jun. 454 ; see Anon. 2 Cha. Ca. (c) Saunders v. D* how, 2 \'ern. 
 
 208; Hithcox v. Sedgwick, 2 271 ; 2 Freem. 123. 
 Vern. 156. ('/) t-r parte Edward?, 10 Vfs. 
 
 (A) See2Vern. 600 ; Wilkiiig])- Jun. 101; ex pnrle Leman, 13 
 
 by V. Willoughby, I Term Ri-p. Ves. Jun.27i ; rr />«/7e Ftuwton, 
 
 763 ; Bl.ike v. Sir Edward Hun- 1 Ves. and Bea. 160. 
 gerford, Free. Cha. 158; Charlton (<-) Ste 1 Ve.^. and Boa. 66. 
 
 T. Lov, 3 P. Wms. 328. Ex parte 
 
 purchaser
 
 022 
 
 OF EQUITABLE RELIEF 
 
 purchaser without notice, although the remedy be gone h)' 
 accident (/), nor wiil it compel him to discover any writings 
 which may weaken his title (g) ; or take any advantage from 
 him by which he jnay protect himself at law, or obtain 
 terms of his antagonist (//) ; neither will equity give any 
 person an advantage over (?) a purchaser, or any assistance 
 against him {k) ; and his having taken a collateral security 
 for the title will not make his case worse (/), unless the pur- 
 chase by the vendor was fraudulent : in which case it would 
 have considerable weight with a court of equity (7/?). 
 
 The rules on this subject have gone so far, that a pur- 
 chaser hcyna fide, for valuable consideration, and witliout 
 notice^ has been allowed to take advantage of a deed which 
 he stole out of a window by means of a ladder (tz), and of 
 a deed obtained by a third person without consideration, 
 and by fraud (o). 
 
 If a man purchase for valuable consideration, without 
 notice from a disseisor, and the disseisee is a trustee for 
 another, although the general rule is, that a trustee is bound 
 to convey, upon request, to his cestui que trust ; yet if in 
 
 (/ ) Harvy v. Woodhyuso, Si-1. 
 Cba. Ca. 80; Bell v. Cundall, 
 Ambl. 101. 
 
 {g) Bishop of Worcester v. Par- 
 ker, 2 Vern. 255 ; Hall t. Adkin. 
 son, 2 Vern. 463 ; 1 Kq. Ca. Abr. 
 333, pi. 51; Millard's ca^e, 2 
 Frerni. 43 ; Sir Joliii Bu:I.ice v. 
 Cook, 2 Frftm. 24; Jerrard t. 
 ^aunde^^, 2 Ves-. Jun, 454. 
 
 {h) Walwynn v. Lcc, 9 V'cs. 
 Jun. 24, 
 
 (i, Bcchinall v. Arnold, 1 Vern. 
 554. 
 
 (i) See Graham v, Graliam, 1 
 Vos. 262. 
 
 {I) Lowthcr V. Carleton, Fur. 
 187, S. C. MS.; see, however, 
 White V. Stringer, 2 Lev. 105; 
 Jennings v. Sellecl-:, 1 Vern. 467. 
 
 (;n) How V. Weldou, 2 Ves. 
 516. 
 
 («) See a case cited in Sanders 
 V. Deligne, 2 Freem. 123; and 
 Siddon V. Charnells, Bunb. 298 ; 
 and see Fagg's case, cited 1 Vcrn. 
 52, and reported in 1 Clia. Ca. 
 68 ; nomine Sherly t. Fag^, where 
 tiie circumstance of theft docs not 
 appear. 
 
 (o) Ilarcourtv. KnoweJ, 2 Vern. 
 159^ cited. 
 
 this
 
 AND PROTECTION, G23 
 
 this case the trustee refuse to convey the iegal estate 
 to the cestui que tftist, or to suffer the latter to bring 
 an ejectment in his (the trustee's) name, a court of equity 
 will not compel the trustee to do so, because it would 
 in effect be granting relief against a purchaser {p). Tiiis 
 case strongly marks the favour shown to a bona fide pui-- 
 chaser. 
 
 Equity vnll relieve a bona, fide purchaser without notice 
 from ancient statutes, if there be no direct proof on either 
 side, and v/ill decree thera to be cancelled {q). 
 
 And this rule extends to mortgages, and all incinnbranccs 
 which have lain dormant for a long time, and no demand 
 made in respect thereof (r). 
 
 So, equity will relieve a purchaser for valuable considera- 
 tion against a defective execution of a power, in the s;ame 
 manner as he will be relieved against a defective surrender 
 of copyholds {s). 
 
 But if a devisee, having an estate for life, with a power to 
 dispose of the inheritance by xvill, sell the estate in his life- 
 time, equity cannot relieve the purchaser, although by the 
 effect of accident he has got the legal estate in fee-simple ; 
 ibr, in a case like this, the testator cannot be understood to 
 mean that the devisee should so execute the power. The 
 intention is, that he should give by will, or not at all ; and 
 it is impossible to hold, that the execution of an instrument, 
 or deed, which, if it availed to any purpose, must avail to 
 tl'.e destruction of that power the testator meant to remain 
 capable of execution to tiie moment of the devisee's death, 
 
 Or;) Turnor V. Back, 22 Vin.p. {r) See Ab<1y v. f-OYOilaj, 
 
 21, pi. 5, vvlif're tht; cestui que Finch, 250 ; Sibsou v. Fletcher, 1 
 
 t'\3t claimed under a voluntary Cha. Hep. 32. 
 
 settiemcnf. {s) Vide ivjra ; and see Chap. 
 
 (7) L:uri;h T. Wolf, Toth. 226 ; man v. Hibson, 3 P.ro. C.C. 2i9 ; 
 
 Smith v. E»scwell, ibid. 217 ; aod Tnnt. of Po-.vcrs, th. 6. 
 see ihid, 224. 
 
 can
 
 6M 
 
 OF KQUITABLE RELIEF 
 
 can be considered, in equity, an attempt in or towards the 
 execution of the power {t). 
 
 The mistake or ignorance of any of the parties to a con- 
 veyance of their rights in the estate, will not turn to tlic 
 prejudice of a bona fide purcliaser for a Aahiahle conside- 
 ration (w). 
 
 If, however, upon a purcliase, any person is required to 
 join to obviate an objection to the title,, and tlie objection is 
 stated in such a manner as not to convey full information, the 
 purchaser cannot avail himself of the instrument against 
 the person executing it (x). 
 
 But if a person having only a general statement that 
 there are objections to a title which his concurrence ^vill ob- 
 viate, upon that communication executes an instrument and 
 conveys, there is nothing to affect the conscience of the pur- 
 chaser, so that the person conveying could ever get the estate 
 back. If he does not ask the nature of the objections, he 
 determines against himself as to any question between him 
 and the purchaser, if the deed does not shew that the objec- 
 tions were withheld from him {y). 
 
 If a person, having a right to an estate, permit or encour- 
 age a purchaser to buy it of another, the purchaser shall? 
 hold it against the person who has the right {z), although 
 covert (a), or under age (h). 
 
 (0 Per Lord Eldon ; Reid v. 
 Shergold, 10 Vcs. Jun. 370. The 
 opinions of several eminent law- 
 yers were taken on this case, be- 
 fore it went into court, mid they 
 all agreed that the case was despe- 
 rate. Ill fact, it was owing to 
 those discussions tbat the plaintift 
 in this cause knew of his claim, 
 and recovered the es(a(c. Fide 
 supra, p. 11. 
 
 (m) Maiden ?. Menill, 2 A{k. 8. 
 
 (a) Lord Brnybroke v. laskip, 
 8 Ves. Jun. 417. 
 
 (i/) Lord Era) broke v. Inskip, 
 uh'isup- 
 
 (^) HobsT. Norton, SCha.Ca. 
 128 ; Hanning v. Ferrers, 2 Eq. 
 Ca. Abr. 356, pi. 20 ; and see 1 
 Freem.310; 1 6 Ves. Jun 253. 
 
 (a) Savage r. Foster^ 9 Mod. 
 35; and see Evans t. Bicknel!, 6 
 Yes. Jun. 174. 
 
 {b) Watt 3 V, Creswell, 9 Via. 
 And
 
 AND PUOTF.CTION. 625 
 
 AikI llic same rule })ivvails even whcve tlie representation 
 h made tliroui>-]i a mistake, if the person making it miglit 
 have bad notice oi' liis rig-lit (c) (I). 
 
 So. Avhere a person intending to buy an estate, enquires of 
 nnotber whether he has any incumbrance on the estate, and 
 states his intention to buy it, if the person of whom the en- 
 quiry is made deny the fact, equity will relievo the pm*- 
 cliaser against the nicumbrance {d). Again, where a pur- 
 chaser of an equitable right enquires of the trustee of the 
 legal estate, whether he knows of any incumbrance, and he 
 answers in the negative, if it turn out that he had notice of 
 any charge, he will be answerable to the purchaser, although 
 he plead forgetfulness in excuse (c). 
 
 But a ])erson having an incumlu-ance upon an estate, is 
 not bound to give notice of it to any person whom lie knows 
 to be in treaty for the purchase of the estate ( /'). 
 
 If a purchaser take a defecti^■e conveyance from tlie ven- 
 <lor, equity will compel the vendor and his heirs, and all 
 otlier persons claiming under him by act of law, as assignees 
 of a bankru})t, although without notice, and e\en persons 
 claiming as purchasers for valuable consideration, if with 
 notice, to make good the conveyance (4^). 
 
 415; 9 Mod. 38, 96, 97 ; 4 Bro. (e) liurrowes v. Lock, 10 Ves. 
 
 C. C. 507, n. ; Clare v. Karl of Jun. 470; supra, p- 5. 
 
 BcHlford, ISViii. 536; andseeS (/) Oshorn v. Loa, 9 Mod. 
 
 Cha. C J. 85, 12.3 ; Cory v. Gerte- 96. 
 
 keii,2iMadd.46. (;j;) Jaques V, Iluiidey, 1 Cha. 
 
 (c) Pearson v. Mori;aii, 2 IJro. r.ej). 5, cited ; Taylor v. Wheeler, 
 
 C. C. 388 ;* see also Toasdale v, 2 Vein. 564 ; M&rse v. Falkner, 
 
 Teasdaie, Sel. Cha. Ca. 59 ; hut 1 Aiistr. 11 ; and see 2 \'cs. Jim. 
 
 observe th« circumstances of that l51;6Ves. Jun. 745, 11 Ves. 
 
 case. Jun. 625. 
 
 {(l) Supra, p. 9. 
 
 (I) Scd <ju. this ns a t;eneral rule, unless there be fraud ? See Hay- 
 craft V. Creasy, 2 Kast, 92 ; Tapi). v. Lee, 3 Bos. and I'ull. ?:,(^1 ; and 
 € Holmes v. Custaacc, 12 Ves. Jun. 279i 
 
 li s So,
 
 C26 OF EQUITABLE RELICF 
 
 So, a purchaser by a defective conveyance v/ill be relieved 
 against persons who did not consider the land as their origi- 
 n al, or primary security ; although they may have obtained 
 an advantaijc at law ih \ 
 
 And if a man sell an estate to which he has no title, and 
 after the conveyance acquire the title, he will be compelled 
 to convey it to the purchaser. 
 
 But it seems to have been considered, that this is a perso- 
 nal equity attaching on the conscience of the parcy, and not 
 descending with the land ; and therefore, that if the vendor 
 do not in his life-time confirm the title, and the estate de- 
 scend to the heir at law, he v>ill not be bound })y his ances- 
 tor's contract (/). This opinion, however, seems open to 
 much observation, and cannot, it is conceived, be relied on. 
 
 Where, however, the conveyance is not perfected with 
 the solemnities positively required by an act of parliament, 
 as in the case of the ship registry acts, equity cannot relieve, 
 as it would be against the policy of the acts, unless perhaps 
 there were direct fraud, in which case it should seem that 
 equity would relieve (/>). 
 
 It has been said, that ievery person who takes an assign- 
 ment of a chose in action, gives personal confidence that 
 there is no lien upon it (/). Upon the purchase of a cJiost 
 inaction, or of any equitable right, it is the invariable practice 
 of the profession, to require notice of the sale to be given to 
 the trustee. This of course binds his conscience. And not- 
 witlistanding the general rule that, with respect to equitable 
 
 {h) Burgh V, Francis, Finch, Jun. 588; ex parte Yallop. 
 
 28; and see Gilb. For. Ilom. 15 Ves. Jun. 60.; see ex parte 
 
 223. Wright, 1 Rose, 308. 
 
 (i) Morse v. Falkener, 1 (/) Per Lord Thurlow, in ea u 
 
 Anstr. 11. DaTies v. Austen, 1 Ves. Jun. 
 
 {fi; Speldt V. Lethmere, 13 Ves. 247.
 
 - AND PROTECTION. 627 
 
 vig'lits*, qui prior est tempore potior est jure [m), it seems 
 probable that equity would prefer a subsequent purchaser 
 ivho had given a proper notice to the trustee, to a prior pur- 
 chaser who had neglected to do so. At least there is a case 
 ((.) wliiL'h seems, in some measure, to authorise tliis con- 
 clusion. 
 
 It may be laid dowi as a general rule, that a purchaser of 
 a chose in action (o),or of any equitable title {p), must always 
 abide by the case of the person from wliom he buys, and 
 will be intitled to all the remedies of the seller {q). And 
 yet, as we have seen (r), there may be a casein which a pur- 
 chaser of a cJtose in action, merely by sustaining that charac- 
 ter, will be in a better situation than the person was of whom 
 lie bought. And it seems, that where a person purchases a 
 specific legacy, delivered to the legatee by the executor, if 
 there is a deficiency of assets, the creditors must follow their 
 demand in reasonable time, or equity will not assist them, 
 otherwise legacies would be etenially locked up, and credi- 
 tors encouraged in their laches, and to call on pm-chasers of 
 legacies to refund at a great length of time {s). 
 
 So if trustees suffer a tenant for life, of a renewable lease- 
 hold, to enjoy all the profits in breach of a trust reposed in 
 them to renew out of the rents and profits, the assets of the 
 tenant for life will be applicable in the first instance to their 
 indemnity, and a purchaser from the tenant for life of his 
 
 (m) SeeTour/illev. Naisli, 3 l». rritkly v. Uosp, 3 Mer. SS./^^*^;-^^^!^^^^ 
 
 Wms. 307 ; and see 2 P. Wms, {p) Whitlield v. Fiiussft, 1 
 
 495 ; 15 Ves. Jun. 354 ; 2 Taunt. Vts. 387. 
 
 415. (./) See ex parte iJoyJ, 17 
 
 (?/) Stanhope v. Earl Verney, VeS. Jun. 2-45. 
 
 l?utler*s n. (I) toCo.Litt. 290,b.; (r) George v. Milbauke, 9 
 
 and see 1 Ves. 367 ; 9 Ves. Jun. Ves. Jun. 190; snpra, p. 561. 
 
 410, (s) Cholmondley t. (Jjford, Cli. 
 
 (o) Davios T. Austen, ubi sup, II- T. 1758, iMS. 
 Tnrtoiiv. lienson, 2 Vcrii. 76 J ; 
 
 2 S 2 ^'1*^'
 
 (i,'iS OF KQriTAUi.i: ui'.ijr.F 
 
 lifi' interest, "vvill also, it seems, he aiisweraljle to tlic person 
 for wliose henetit tlie renewal ought to luno ])een made. Eut, 
 as ])ctwecn tlie trustees and tlie purcliaser, the letter is not 
 ])rimavily answcrahle. If lliev permit tlie tenant for life to 
 apply to his own use all the rents and profits, and abstain 
 from ])erforming' the trust, tliey eannot eontend that it was 
 tlie })urchascr's duty to withhold any part of the rents and 
 profits, or the consideration that came in place of them (/). 
 
 Wliere a purchaser, after the conveyance, or even before 
 the convevance, in prospect of the articles for sale being 
 carried into execution, has laid out money in lasting im- 
 provements, there are but few cases in which he will not be 
 allowed for them, in case the aid of a court of ccpiity is re- 
 quired to relieve against the purchase (ii). 
 
 And even supposing the court to be unwilling to make 
 an allowance for repairs and improvements, yet if an account 
 of rents and profits is to be taken, and the plaintiff will not 
 accept the account, according to the value of the estate 
 when the purchaser entered, but insists to have the account 
 taken according to the present value, the court will compel 
 him to make an allowance for repairs and improvements (cr). 
 
 If, hov>'ever,aman has acted fraudulently, and is conscious 
 of a defect in his title, and with that conviction in his 7nind 
 expends a sum of money in improvements, he is not entitled 
 to avail himself of it. If a different rule should pre- 
 vail, it would certainly, as Lord Clare remarked, fully justifv 
 a proposition, once stated at the bar of the court of Chan- 
 
 (O Ld. Montfoit V. lAl.Cadogan, e.v parte James, 8 Vt^s. Ju». 
 
 17 \'es. Jim. 483. 337 ; Browne v. Odea, 1 Schc. 
 
 (»)Edlln V. Battaly, 2 Lev. 152; and Lef. 115 ; and see 9 Mod. 
 
 Peterson v. Hickman, 1 Cha. Rep. 412 ; Barnard Cha. Rep. 450 ; 
 
 3, cited ; Whalley v. Wlialley, 1 1 Vern. 159; Shine v. Gough, 
 
 Vern.481: ; Savage v. Taylor, For. 1 Ball and Beatty, 444. 
 234 ; Baugh v. Price, 1 Wils. 320 ; (x) Thomlinson v. Smith, 
 
 ex parte Hughes, 6 Ves. Jun. 617 ; Finch, 378. 
 
 cerv
 
 AN]) PllOTECTlON.^^' '^^' H^iO 
 
 ucryin Ireland, that it was a coniinon equity to improve tlie 
 right owner out of tlie possession of liis estate. However, 
 if the sums arc large, tliat circumstance mny influence the 
 court in dccroeing an account from the time of iiling the hill 
 only, and not from the time of taking possession (?/). 
 
 But if tlie aid of a court of equity is not required, and a 
 person can recover the estate at law, equity, unless there be 
 fraud; cannot, it is conceived, relieve the purchaser on ac- 
 count of money laid out hi ^-epairs and impro^•ements; but 
 must dismiss a bill for that purpose with costs (r). 
 
 It seems, that ^vllerc two persons claim a rc\ersion, to 
 Avhich only one can be entitled, a bill will lie to perpetuate 
 testimony, although both of them are purchasers, or only 
 one of them is a purchaser (a) ; for such a bill calls for no 
 discovery from the defendant, but merely pravs to secure 
 that testimony ; which might be had at that time, if tlie 
 circumstances called lor it (F). 
 
 II. Thus have we seen how peculiarly a ^nnui fulc pur- 
 chaser without notice is favoured and protected by e(|uity. 
 But if a purchaser have notice of any claim, or incum- 
 brance, his conscience is affected ; and a court of equity 
 
 (;/) Kt'iiny v. Crownc, 3 Ridgw. fraud in tlie wife standing; Iiy 
 
 P. C. 518. while (he iniprovfiiieiits mie 
 
 (z) See Needier V. Wright, Nels. innde without giviiii^ notice of 
 
 Ca. Hep. 57 ; but see Peter--on v. her claim (o (lie tenant. 
 
 Hickman, 1 Cha. Rep. 3, cited. {a) See Lord Dursley r. 
 
 This case, probably, turned on the Fi(/hardinge, 6 Ves. Juii. '251. 
 
 (I) But note, the point was not settled, and It do* s not stem (juite 
 clear, what determination it would receive ; as retaining 'jucb a bill, is 
 evidently granting relief against a purchaser. 
 
 2 s 3 iU
 
 630 OF EQUITABLE RELIEF 
 
 will then not only refuse to interfere in liis fiivour, but v.'ill 
 assist the claimant, or incumbrancer, in establishing his 
 claims against him : liis liaving given a consideration will 
 not avail him ; for, as Lord Ilardwicke observes, he throws 
 away his money voluntarily, and of his own free will (/;). — 
 And it may be laid down as a general rule, that a ]nircha- 
 ser with notice is in equity bound to the same extent, and in 
 the same manner, as the person was of wliom he purchased 
 (c). Thus, suppose trustees for preserving contingent re- 
 mainders to join in destroying them, and to convey the es- 
 tate to a purchaser, if the ])urchaser buy for a ^ aluable 
 consideration, and without notice, he cannot be affected. — 
 ll;it if he buy with notice of the trust, although for a va- 
 luable consideration, he must convey tlie estates to the uses 
 of the settlement {d). 
 
 But vv'e may here observe, that it is at last settled, that 
 trustees joining in a recovery after tlie first tenant in tail is 
 o f age, is not a breach of trust, and therefore a purchaser 
 may safely buy under the title acquired by the recovery (e). 
 
 A purchaser v/ill be bound, even at law, by a pai-ol 
 agreement for a lease not within the statute of frauds, the 
 granting of which constituted part of the consideration, 
 although it be not mentioned in the agreement for purchase 
 and the rent be not fixed (f). 
 
 But where the consent of a person i^ essential to the va* 
 
 (b) See 3 Atk. 238; Yitz.T. bar v.Tredennick,2 Ball and Beat. 
 Subpa-na, pL 2. 304. 
 
 (c) Winged v. Lefebury, 1 Eq. {d) JNIanseli v. IMansell, 2 P. 
 Ca. Abr. 32, pi. 43 j Jackson's Wm.s.678. 
 
 casp, Lane, 60; Gore v. Wigles- (e) Biscoe v. Perkius, 1 Yes. 
 
 vorth, cited, ibid.; Earl Brook v. and Bea. 485. The Lord Chaiu 
 
 Bulkeley, 2 Ves. 49/8 ; Taylor v. cellor has since decided the sume 
 
 Stibbert, 2 Ves. Jun. 437 ; Lord point in the same May. 
 
 Vern«-y V. Carding, 1 Scho. and (J) Dcnn v. Cartwright, 4 Ba?t, 
 
 Lef. 345, cited ; Crofton v. Orms- 29. 
 by, 2 Scho. and Lif. 583 ; Dun, 
 
 lidity
 
 AND PROTECTION". 631 
 
 validity of a lease agreed to be granted, and lie himself pur- 
 chases the inheritance, although with full notice, yet he will 
 not be bound by the agreement. 
 
 This was decided in a recent case, where a cojiyiioldo;- 
 granted a lease to LufFkin for one year, and so from year to 
 year, if tlic lord would give a license. The lord of the ma- 
 ' nor purchased the reversion himself, and took a sun-ender in 
 the name of a trustee. The terms of the demise were cor- 
 rectly stated in the abstract of the title ; the agreement con- 
 tained an exception of all subsisting leases (if any there 
 were), and in a deed from tlie vendor to the purchaser's 
 trustee, there was an exception in the covenant against in- 
 cumbrances, " of the several and respective subsisting lease 
 or leases, or agreements for leases, under which the present 
 tenants now hold the premises." After the piu-chasc, the 
 lord gave notice to his trustee, that he would not grant any 
 license to any copyholder of his manor to demise. TJie trus- 
 tee then gave notice to LuiFkin to quit, and brought an 
 ejectment, in which he recovered, the Court of King's 
 13cnch being of opinion, that the lease did not operate as a 
 lease for 14 years (g). Then LuiFkin filed a bill against 
 the trustee and the lord for a specific perfonnance, on the 
 ground of the lord having notice of the lease, and of its 
 being excepted in the contract, &c. ^V case was directed to 
 the Court of Common Pleas, who held first, that the lease 
 was not a lease for 14 years ; and secondly, that the tenant 
 had no remedy on the covenant in the lease for quiet en- 
 joyment {h). The cause then came on upon the equity re- 
 served, and was fully argued by Romilly for the plain tifrj 
 and by Ilollist and Bosanquet for the defendants. Au-\ 
 Lord Eldon, after taking a day to consider, prcnounccd 
 
 (-) Doe V. L'lffkln, 4 East, {h) 1 New Rep, 163. 
 
 991. 
 
 2 s 4 ji^dgment
 
 G32 OF KaUITAlUJ: uklikf 
 
 judgment sliortly, tluit tlierc was not equity sufficient to 
 support tlic bill (ij. 
 
 This decision demands particular altentioi!. It seems 
 founded on great principles of e(]uity, although the pur- 
 cliaser liad voluntarily ])laced himself in a situation in ^\•llicII 
 it was his interest to refuse Km consent, without which the 
 lease could not be sustained. Wc cannot fail to dirstinguish 
 this case from that ^\he^e a man, having a 2)artial interest 
 in an estate, agrees to grant a lease which his interest does 
 not enable him to grant ; and then joins with the remain- 
 der-man in selling the estate to a purchaser, with full no- 
 tice of the agreement. There equity rightly holds the 
 purchaser bound by tlic agreement. The vendor was 
 bound to grant the lease, or to answer in damages for non- 
 performance of the agreement ; and as the purchaser had 
 notice of the contract, and takes an estate which enables 
 him to perform it, it is but just that he should be compelled 
 to do so, in order to exonerate the vendor from an action 
 for breach of tlie contract. And on this ground it should 
 seem, that if in the case of Lufflin v. Xunn, Luffkin 
 could have recovered on the covenant for quiet enjoyment, 
 the lord would have been compelled to perform the agree- 
 ment. If this had not been Lord Eldon's opinion, he would 
 not have asked the Court of Common Pleas, whether LufF-. 
 kin could recover on the covenant for quiet enjoyment in 
 case he -were evicted. Lord Kedescftile aj^pears to have 
 overlooked this distinction, when in a late case he foimd 
 fault with one point in the case of Taylor v. Stibbert, viz. 
 that he thought the purchaser had a right to say, that liav- 
 ing purchased from the son as well as theiathei; ami the co- 
 vcnant 7wt hciu^ hind'nig on the son's estate, he should 
 not be bound further than as he purchased an estate which 
 
 {1} Ch. 15th July, 1805. S. C. 11 Ves. Juii, 17C, 
 
 was
 
 AND PEOTECTIOX. 633 
 
 ■was bound, and therefore that notice, or no notice, was of 
 no consequence to liini (A). The doctrine, however, can 
 enly applv to cases where the purchaser ought to indeninify 
 thc .seller against the agreement. 
 
 Wh.ere a ])urchaser buys a reversion expectant upon a 
 particular estate, as, subject to the life estate of I. S. al- 
 though it turn out that no such estate is in existence, yet 
 I. S. will be decreed to hold the estate during his life, 
 against the purchaser (/). 
 
 Although a purchaser with notice should, to strei^^then 
 his estate, levy a fine, and five years were to pass without a 
 claim, yet the fine and nonclaim would be inoperative ; for 
 as he purchased with notice, notwithstanding any consider- 
 ation paid by him, he is but a trustee, and so the estate not 
 being displaced, the fine cannot bar (;«) ; so, although he 
 purchase under a decree in equity, yet, if the decree was ob- 
 tained by fraud, he cannot protect himself (;/). 
 
 But where it is a mere legal title, and a man hfts purchased 
 an estate which he sees himself has a defect upon the face of 
 the deeds, yet the fine will be a bar, and not affect him with 
 ]U)tice, so as to make him a trustee for the person v»ho had 
 tlic rio-ht, ])ecause this would be carrying it mucli too far, 
 for the defect upon the face of the deeds is often the occa- 
 sion of the fine being levied. This was laid doAvn by Lord 
 Hardwicke {o). And it was resolved in Fermor's case {/)), 
 that if A purchases land of 15, and afterwards percei^ iiig 
 that B had but defeasible title, and that C had right to it. 
 
 (/c) See2 Sclio. and Let". 599. (;(^ Keiiiu-dy v. Daly, 1 Silio. 
 
 (/; Walton v. Slant'oril, 2 Vern. :in(l Lef. 335 ; Ciilard v. Ilorf, iO. 
 
 279 ; see Do<' v. ApcIkt, 1 15os. 38(). 
 
 aiul Tull. 531. (o) 2 Atk. 63: J nml see /V-zV. 
 
 (,»)! Vern. M9 ; 2 Atk. 631 ; 390. 
 
 Kennedy v, Daly, 1 Scho.aiid Lef. {p) 3 Urp. 70, a, 
 355. 
 
 A (I)
 
 634 OF EQUITABLE RELIEF 
 
 A (I) levies a fine with proclamations to a stranger, or takes 
 a line from another with proclamations, v>itli the intent to 
 bar the right of C ; this fine, so levied by consent, should 
 bind, for nothing was done in this case which was not law- 
 ful. So the accepting a release of a right, is in no case an 
 acknowledgment that a right existed. If it were an admis- 
 sion of right, it must always be liable to objections, because 
 the consideration for the release is always much less than the 
 value of the thing demanded ; but in truth, the considera- 
 tion given being less than the value of the thing demand- 
 ed, the transaction amounts to a denial of the right, instead 
 of an acknowledgment (q). 
 
 Notice, before actual payment of all the money, although 
 it be secured (/•), and the conveyance actually executed (^), 
 or before the execution of the conveyance, notwithstanding 
 that the money be paid (/), is equivalent to notice before the 
 contract. 
 
 But if the conveyance be executed, and the money paid, 
 a purchaser will not be affected by notice of an incumbrance, 
 although a prior incumbrance, intended to be discharged, is 
 not paid ofi'(w). 
 
 And notice at the time of getting in a precedent incum- 
 brance, as a protection against mesne charges, is notmaterial^ 
 
 (q ) Underwood v. Lord Cour- 235. 
 to.Tn, 2 Scho. and Lef. 68. (s) Jones v. Stanley, 2 Eq. Ca. 
 
 (r) TourviUe v. Naish, 3 P. Abr. 685, pi. 9. 
 Wins. 307 ; Story v. Lord Wind- (t) Wigg v. Wigg, 1 Atk. 384. 
 
 sor, 2 Atk.630; More v. Mayhow, («) Meynell v. Garraway, Nels. 
 
 1 Cha. Ca. 31; 2 Freem. 175, pL Cha. Rpp. 63. 
 
 (T ) B is by mistake inserted in tl'e report for A.
 
 A:n3 PROTECTION. 63:7 
 
 so tliat he had not notice at the time of the purchase {sc). 
 Indeed, after a conveyance is executed, it is seldom that a 
 purchaser thinks of i^rocuring a prior legal estate, u^ile^ hf 
 discovers some incumbrance on the estate, agav/jL which lie 
 is anxious to protect himself. 
 
 But althougli a purchaser has notice of an equitable clain; 
 by Avhich his conscience is affected, yet a person purchasing 
 from him hofia fide, and without notice of the right, will not 
 be bound by it (?/). 
 
 So, on the other hand, a person with notice of an equita- 
 ble claim, may safely purchase of a person who bought bona 
 fide, and without notice of it {z) ; although this circumstance 
 may influence the court with respect to costs {a) (I). This 
 rule is consistent Avith the others ; it is not in fiivour of thi* 
 purchaser with notice, but of the purchaser without notice. 
 If a different rule prevailed, he might not be able to sell the 
 estate. 
 
 It still remains to show what will be deemed sufHcient 
 notice to a purchaser ; but the importance of this subject 
 yecms to demand a separate chapter. 
 
 (i-)Cockesv. Sherman, 2 Freetn. Cha. 51 ; 1 Eq. Ca. Abr. 331, pi. 
 
 13 ; and see 2 Vos. 574. 6 ; Brandling v. Oid, 1 Atk. 57 1 ; 
 
 iy) Ferrars v. Clieiry, 2 Vern. Sweet v. Southcote, 2 Bro. C.C. 
 
 S84; Mertins y. Jolilfe, Ambl. 66; 2 Dick. 671; Lowllur v. 
 
 313 ; Lowther v. Carleton, MS. Carleton, 2 Alk. 242; Andrew v. 
 
 Eaniiird Rep. Giia. 358 ; Forres- Wrigley, 4 Kro. C.C. 125. 
 
 tcr, 187; 2 Atk. 242 ; see Pitts v. («) Andrew v. Wrigley, -1 Ern. 
 
 Edolph, Totli. 284. C.C. 125. 
 
 {z) Harrison v. Fortli, I'rec. 
 
 (1) In Grounds and Rudiments of Law and Equity, p. 275, tit. 277, 
 Lord Talbot is erroneously stated to Lave litld in Lowlher v. Carlctoi!. 
 that where a purchaser with notice conveys to another Mithout notice, the 
 second i-ale was vicious, because of the former conveyance being v*i!li 
 notict' ; and the author of that book warmly cspousei the doctrine. 
 
 CHAP.
 
 [ H.^Jf) ] 
 
 CHAPTEJl XVJI. 
 
 OF NOTICE. 
 
 JN OTICE is either actual or constructive ; but tlicrc is no 
 difference between actual and constructi\e notice in its con- 
 sequences {a), 
 
 I. Of actual notice little can be said, It requires no de- 
 finition, and it need only be remarked, that, to constitute a 
 binding notice, it must be given by a person interested in 
 the property, and in the course of the treaty for the purchase. 
 A'ague reports from persons not interested in the property, 
 ■will not affect the purchaser's conscience ; nor will he be 
 bound by notice in a previous transaction which he may have 
 forgotten. 
 
 That vague reports from strangers are not notice, was de- 
 cided in a case of Wildgoose v. AVayland {h), where one man 
 came to a person about to buy a house, and told hiui to take 
 heed how he bought it, for the vendor had nothing jn it, 
 but upon trust for A : and another person came to him. and 
 told him it was not so, for the vendor was seised of the land 
 absolutely. The information of the first proved correct, yet 
 the purchaser was held not to have notice ; because such 
 flying reports were many thncs iables, and not truth ; and 
 
 (a) See Ambl..626. {h) Goulds. 147, pi. 67 ; and 
 
 Cornwallis's case, Toth. 254.
 
 OF NOTICE. 637 
 
 ii it slioukl be admitted for a sufficient notice, then the in 
 hcritancc of every man miglit easily l)e slandered. 
 
 And not only a mere assertion, that some other person 
 claims a title is not sufficient, but, perhaps, a general claim 
 is jiot sufficient to affect a purchaser nitli notice of a deed, 
 of Avhich he does not appear to have had knowledge (c). 
 
 Plowever, no person could be advised to accept a title con- 
 cerning which there were any such reports, or assertions, 
 without having them elucidated ; because what one judge 
 might think a flying, vague report, or a mere assertion, 
 another might deem a good notice. For instance, in Fry 
 V. l*orter [d) Hale, C. \l. in speaking of the point of notice 
 in that case, (w'hich, however, did not relate to a purchaser), 
 said, " here are several circumstances that seem to shew 
 there might be notice, and a piihUc voice in ilic lioiisc, or 
 an accukntal itiiimation, kc. may possibly be sufficient 
 notice." 
 
 That the notice to the purchaser nuist be in the same 
 transaction, seems to have been settled in a case (r) u])on the 
 statute of charitable uses {J'), the facts of wliicli Avere, that 
 land given to charitable uses was intended to be sold by act 
 of ])arliament, and when the bill was read in parliament, it 
 was declared, that the land was chargeable with a charitaldc 
 use, and an offer was made to otherwise assure the charitable 
 use. The bill, however, did not pass, and the land was 
 afterwards sold to one of the members of the House, who 
 s])okc in the debate on the bill ; yet this notice was held not 
 to be sufficient notice, because it was not known to tlie pur- 
 chaser, except as a member of ])arlianunit. 
 
 (c) See .Tolland v. StainbriJgp, D^Up, 64 ; aiitl tlie casrs infra, as 
 
 3 Vis. .Tiin. 478. to nolice to an agent; see 1 Ves. 
 
 {(I) I Mod. 300j see Butcher Jun. 425. 
 
 V. Stapely, 1 Vtrn. 363. (/) Supra, [>. 577, 
 
 (<•) See East Greenstead's case, 
 
 it
 
 6,18 CT NOTICE. 
 
 It may be here proper to mention, that an action on tlic 
 case for slander of the vendor's title will not lie against a 
 person for giving notice of his claim upon an estate, either 
 by himself or his attorney, at a public auction, (k to any 
 person about to buy the estate ; although the sale be thereby 
 prevented (g) ; and to sustain the action, malice in the de 
 fendant must be proved {k). 
 
 Nor will the action lie against the attorney, although h'.- 
 do not deliver the precise message of his principal, pro\idf*i 
 it be to the same effect. 
 
 II. Constructive notice, in its nature, is no more tha:? 
 evidence of notice, the presumptions of which are so violent, 
 that the court will not allow even of its being controverted 
 (i) ; but it is difficult to say what will amount to constructive 
 notice. The following rules may, perhaps, assist the learned 
 reader in his researches. 
 
 I. Notice to the counsel, attorney, or agent of the pur- 
 chaser, is notice to him (A) ; for otherwise, as Lord Talbot 
 observed, a man who had a mind to get another's estate, 
 rjiight shut his own eyes, and employ another to treat for him 
 ■•vho had notice of a former title ; which would be a manifest 
 •heat (/). And the same rule prevails, although the counsel, 
 
 {g) Hargrave v. Le Breton, 4 255 ; Le Neve v. Le Neve, 3 Atk. 
 
 Bjrr. 2422. 646; 1 Ves. 64; Brotherfon v. 
 
 (/j) Smith V. Spooner, 3 Tauut. llaft, 2 Vern. 574; Ashley v. 
 
 216 ; see Rowe v. Roach, 1 Ma\r. Baillie, 2 Ves. 368 ; Maddox v. 
 
 tnd SeI»T. 304; Pitt v. Donovan, Tv^addox, 1 Ves. 61; and see 3 
 
 ti'. 639. Cha. Ca. 110. 
 
 (£) See 2 Ansti-. 438 ; per Eyre^ (I) Attoruey.General v. Go\rcr, 
 
 C.B. 2 Eq. Ca. Abr. 685, pi. H; see 
 
 (A-) Newstead t. Searles, 1 Atk. AmbI, 626. 
 
 attorney.
 
 OF NOTICE. ()39 
 
 attonicy, or agent, be tlie vendor (?«), or be concerned for 
 botli vendor and purchaser {71). 
 
 So, notice to the town agent of the purchaser's attorney in 
 tiie country, is also notice to the purchaser (0). 
 
 Ami if a person, with notice of any claim, purchase an 
 estate in the name of another, without his consent, yet if he 
 afterwards assent to it, he is bound by the notice to his 
 agent (»). So a man cannot elude the effect of havine- 
 notice, by procuring the conveyance to be made to a third 
 person (q). 
 
 But although, if a man purchase an estate which is subject 
 to an equity only, of wliicli he or his agent has notice, it is 
 a fraud ; yet, if an instrument is signed by all parties, the 
 intention cannot be interpreted, contrary to such instrument, 
 by notice to an agent, that some of the parties had such in- 
 tention (r). 
 
 Although the counsel, attorney, or agent, be employed 
 only in part, and not throughout the transaction, the pur- 
 chaser is equally affected by the notice. This was doubted 
 in the case of Vane v. Lord Barnard {s) ; but in the later 
 case of Bury v. Bury, before Lord Hardwicke (/), he said, 
 '• where an agent has been employed for a person in part, 
 and not throughout, yet that affects the person with 
 notice." 
 
 The notice to the counsel, attorney, or agent, must, how- 
 ever, be in the same transaction ; because he may very easily 
 
 {m) STielJon v. Cox. Auibl. 624. C. 24 1. 
 
 (n) Le NfTe v. Le Neve, 3 Atk. (q) Coote v. Mamtron, 5 Ero. 
 
 6'J5. P.C. by Tomlin?, 355. 
 
 (0) Norris T. Le Neve, 3 Atk. (r) See 1 Bro. C,C. 351. 
 
 25. (s\ Gilb. Eq. Rep. 6 ; sre 2 Tow. 
 
 (p) Merry v. Abney, 1 Cha.Ca. Mort-. 597, 598, 4th edit. 
 
 38, 1 Kq. Ca. Abr. 330. 2 Frcem. (0 Chan. 1 1th Jaly, I748, MS ; 
 
 151, Nels.Cha. Kcp. 59 ; Jeiiuinga Appendix, Mo. 25. 
 r. Moore, 2Vern.609; 1 Uto.W 
 
 have 
 
 <x«^
 
 O'JiO or NOTici:. 
 
 have forgotten it (u) ; and if tliis were not the rnle of the* 
 court, it would he of <langcrous consequence, as it would l)e 
 an objection against tlic most able counsel, liecause of course 
 tliey would be more liable than others of less eminence to 
 have notice, as they are engaged in a great imniber of affairs 
 of tliis kind (.r). The s-imc rule of course applies to the pur- 
 chaser himself If a man purchases an estate, under a deed, 
 which happens to relate also to other lands not comprised in 
 that purchase, and afterwards purchases the other lands to 
 which an apparent title is made, independent of that deed, 
 the former notice of the deed will not of itself affect him in 
 the second transaction, for he was not bound to carry in hi- 
 recollection tliose parts of a deed which had no relation 
 to the particular purchase he was then about, nor to 
 take notice of more of the deed than affected his then 
 purchase {[/). 
 
 2. A public act of parliament binds all mankind ; but a 
 private act of parliament is not, of itself, notice to a pur- 
 chaser (z). And it is conceived, that an act of parliament of 
 a private nature, but made a public act (I), in order that it 
 
 (») Prpston V. Tubbin, 1 Vern. 212, S. C. I\^S. ; Ashley v. Baillie, 
 
 286; Fitzgerald v. Fauconberge, 2 Ves. 368 ; see 1 Ves. 435. 
 
 Fitzgib. 207 ; 2 Eq. Ca. Abr. 682, (x) Per Lord Hardwlcke, 2 
 
 ^D) n. (b); Warwick v. War- Atk. 242. 
 
 wick, 3 Atk. 291; Worsley v. (y) Hamilton v. Royse, 2 Scho. 
 
 Earl of Scarborough, 3 Atk. 392 ; and Lef. 327. Per hord lledts- 
 
 Steed T. Whitaker, Barnard Cha. dale. " ^^*^^/ca^^, J^ 
 
 Rep. 220 ; Hine v. Dodd, 2 Atk, {z) See 2 Ves. 480. 
 275 ; Lowther r. Carleton, 2 Atk. 
 
 (T) This will not happtn in future, for it has been resolved that a 
 ])riva(e act shall not be made a public act ; but it may be enacted, that 
 the act shall be printed by the king's printer, and that a printed copy of 
 it shall be evidence, 
 
 might
 
 or NOTICE. Cii 
 
 Tiiio;]it be judicialiy taken notice of, instead of being specially 
 pleaded, and to save the expense of an attested copy, v.oukl 
 T)^)t be deemed such a public act as to be, of itself, nolice 
 to a purchaser (a). 
 
 'i. Lis pendens is of itself notice to a purchaser {I), 
 ■unless it be collusive, in which case it >vill not bind 
 him (c). f^X^lC^'f'^^'^.^r^^^ - 
 
 A suhpcena served, is not, however, a sufficient Us pen- 
 dens, unless a bill be filed {d) ; but when the bill is filed, 
 the Us pendens begins from the service of the subpoena. 
 And the question must relate to the estate, and not merely 
 to money secured upon it {e) ; but a bill to perpetu;ite the 
 testimony of witnesses, and to establish a will, is a suincient 
 lis pendens ( /). 
 
 To affect a purchaser, it has been £aid that there ouglit 
 to be a close and continued prosecution of the Us pendeiis 
 {g), and this is required by Lord Bacon's rule. In a late 
 case {h), the Master of the Ilolls cited the following passage 
 from Lord Nottingham's prolegomena of equity : " The 
 Lord Bacon, in his 12tli rule, seems to direct, that if a pur- 
 chase is made pendente Ute, after some long intermission, 
 this case shall differ from the common case. But the rule, 
 tliough reasonable, is not always observed ; for in 3.1artiu v. 
 
 (rt) Si'c 3 Bos. and Piill. 578. Worsely, Hard. 320 ; Goldson v. 
 
 (i) See Todi. 45; Yfuvely v. Garjiner, 1 Vern. 'i59, cited ; tlio 
 
 Ytavt-Iy, Totli. 227 ; 3 Cha. Kf-p. IJisliop of Winchester v. hiiiiP, I I 
 
 25; Digs V. Boys, Totli. 254; Ves. Juii. 194. 
 
 Culpepper V. .Ashton, 2 Clia. Cii. (c) 2 Cha. Ca. 116. 
 
 116, 223; Earns v. Cantiin.:, I (,/) .Anoii. 1 Verii. SIS. 
 
 Cha. Ca. 3C0; Sorrf41 v. Carp.iu (c) Worsley v. llailof S.arh^^- 
 
 ter, 2 P, Wins. 482; and see 3 P. rouiih, 3 Alk. 392. 
 
 Wms. 117; Garth v. Ward, 2 Atk. (/) G.irih v. Waid, 2 Alk. 171. 
 
 174; 3 Barnard Rep. CbA. 450. (g-) Pieston v. Tnhbiu, 1 Vern. 
 
 Worsley t. Karl of Scarborough, 3 286. 
 
 Atk. 392; Walker v. Smnhvcod, (//) Cishop of Winchpbter r. 
 
 Auibl. 676) 5 Co. 17 b. ; Hill v. Paine, 11 Ves. Jan. 19-i. 
 
 2 T <S tiles,
 
 642 Of ^(5tice. 
 
 Stiles, 1663, the "bill filed in 16 iO, abated by the death iff 
 1648 : a bill of revivor vv'as filed in 1062 ; and tlie purchase 
 was in 1651 ; and yet the purchaser v*'as bound, because now, 
 by relation of the bill of revivor, it was pendente lite : per 
 Clarendon, Chancellor." This passage v.as cited as an au- 
 thority, that a pur<;haser during the abatement of the suit 
 is bound in like manner as if the suit was in full prosecution. 
 But the learned judge by whom it was quoted, treated this 
 as a case of great difficulty, notwithstanding the authority 
 of Lord Nottingham. Indeed, the case referred to seems to 
 depend too much on its own circumstances and the times in 
 which it occurred, to serve as a precedent. The Lord 
 Keeper expressly said, that tlie war and infancy excused the 
 laches. Besides, it appears that the person who came in 
 2)endente lite did not claim by purchase for money, but 
 under the will of the person against whom the original bill 
 was filed (z). If the point should ever call for a decision, it 
 will probably turn on the question, whether the plaintiff was 
 guilty of laches in reviving the suit. 
 
 Lord lledesdale appears to have held, that although a 
 
 hill is dismissed, yet a party, purchasing after the dismissal, 
 
 Avas a purchaser pendente lite, if an appeal was afterwards 
 
 brought in the House of Lords, since it was still a question 
 
 whether the bill had been rightly dismissed, and the parties 
 
 thus having notice, must take subject to all the legal and 
 
 equitable consequences ; but it was not necessary to decide 
 
 whether such a purchase was by force of the supposed il^ 
 
 pendens made with implied notice of the adverse title (A-). 
 
 A ]i\nz\i^sGr pendente lite, on filing his supplemental bill, 
 
 ■ troes into the court pro bono et malo, and will be liable to 
 
 all the costs in the proceedings, from the beginning to the 
 
 end of the suit (/) ; and he "\viU not be admitted to examine 
 
 (0 Style V. Martin, 1 Cha. Ca^ (/) See 1 Atk. 89 ; and Gas, 
 
 150, ^ kell V. Durdin, 2 Ball and 
 
 (Ji) 1 Dow SI. Etatty, 167. 
 
 the
 
 OF NOTICE. 643 
 
 the justice of a former decree, but vvill be bound by the 
 prior proceeding's (7/7). 
 
 Relief being souglit against a bona fide purchaser who 
 bought pendente lite, without actual notice, is, however, 
 considered a hard case in equity ; and altliough the court 
 cannot refuse its aid against liira, yet the phiintiff is by no 
 means a favourite ; aud therefore if he make a slip in his 
 proceedings, the court will not assist him to rectify the mis- 
 take {n). 
 
 The mere pendency of a suit will not prevent the de- 
 fendant from selling the property, the subject of the suit, 
 liut the purchase will, in no manner, affect the right of 
 the plaintiff, except so far as it may be necessary to go 
 against the purchaser, if he obtain a transfer of the legal 
 estate (o). If, however, the plaintiff have only a defeasi- 
 ble estate, the defendant may exercise his right to put an 
 end to it, notwithstanding the pendency of the suit. — 
 Theiiefore, if a man make a voluntary settlement, and 
 the person claiming under it file a bill against the settlor, 
 to have the trusts performed, yet the defendant may de- 
 feat the plaintiff's right by selling the estate to a purchaser 
 duiing the pendency of the suit. The same observation 
 applies to a settlement with a power of revocation. The 
 settlor, the defendant, may icvoke the settlement, although 
 a suit is depending for carrying it into execution (y>). 
 
 4. Decrees of the courts of equity are not of themsehTs 
 •notice to a purchaser {q). 
 
 (m) Finch v. Newnliam,2 Vern. 180 ; 2 Vcs. and Beam. 200. 
 
 216. {p) S.C. 
 
 (r) Sorrell v. Carpenter, 2 P. [q) See Toth. 45 ; Prac. Reg. 
 
 Wms. 482. Cha. 125; and see Sir Thomas 
 
 (o) M.;icalfe V. I'ulvertoft, be- Har?e>' t. Aloufague, I Vcfii, S7, 
 
 fore the Vice-chancellor, 10 Au- 122. 
 gust 1813; see 1 Vee. and Beam. 
 
 S T 2 This
 
 644 OF NOTICE. 
 
 This was expressly decided in Worsley v. the Earl of 
 Scarborough {?•) ; in whicli case it appears, by a manuscript 
 note of the hfte JMr. Coxc's to the case of Preston v. Tub- 
 bin, in his copy of Vernon, in Lincoln's- Inn library, that 
 Lord Hardwicke hehl most decidedly, that decrees were 
 not notice. He said there was no such doctrine, that men 
 were to take notice of the decrees of this court, though they 
 were to take notice of a lis pendens. In Sorrel v. Cai-pen- 
 ter {s), it was said by Lord Chancellor King, that the court 
 will oblige all to take notice of its decrees as much as of 
 judgments. This dictum is frequently quoted as an autlio- 
 rity to prove that the decrees of equity are notice to pur- 
 chasers ; but it was only an olnter dictum ; and, indeed, as 
 judgments are not of themselves notice to a purchaser, it 
 does not appear to affect the question. At first sight, the 
 case of Wortley v. Birkhead (/), seems to militate against 
 the doctrine, but on examination, it will be found not to 
 disturb it ; that case having only settled, tliat after a de- 
 cree, and direction to settle the priorities of the demands, a 
 puisne incumbrancer cannot take the first incumbrance, and 
 thereby gain a preference to the second ; as it would lay a 
 foundation for the greatest collusion and contrivance be- 
 tween the parties to exclude each other. 
 
 Decrees, however, which do not put an end to the suit^ 
 as decrees to account, are of themselves notice to a pur- 
 cliaser {u) ; because the lites pendentes are not thereby ter- 
 minated. 
 
 5. The docketing of judgments is not of itself notice to 
 
 (r)3 Atk.392; and see Rivers book. 
 V. SteeW, Lib. Reg. U. 128 ; lemp. (*) 2 P. Wms. 482. 
 
 Lord Hardwicke, referred to by (2) 2 Ves. 571. 
 
 Mr. Coxe. Note, owing to the (w) Worsley v. Earl of Scarbo- 
 
 generality of the reference, I could rough, 3 Atk. 392. 
 not find this case in the register's 
 
 a pur-
 
 OF l^OTICE. (j-i5 
 
 a purcliaser {w) ; for, as Lord Talbot observed, judgments 
 iire infinite (.r) . 
 
 6. Registration of deeds is not of itself notice to a pur- 
 chaser who was seised of a legal estate at the time of tlic 
 purchase. In a former piirt of this w^ork (?/), some obser- 
 vations are submitted to the learned reader, which tend to 
 shew, that a person not being seised of the legal estate at 
 the time of his purchase, is bound by all incumbrances duly 
 registered, although he had not actual notice of them ; or 
 in other words, that in such cases registered deeds are of 
 themselves notice to purchasers. 
 
 7. Neither an act of bankruptcy (;:;), nor a commis'jion of 
 bankruptcy fa), is notice to a purchaser. 
 
 Indeed, a decision, that an act of bankruptcy is of itself 
 notice to a purchaser, would operate as a repeal of the pro- 
 vision in the statute of James, in favour of purchasers from 
 bankrupts. For as we have already seen, a purchaser, with 
 notice of the act of bankruptcy, cannot take advantage of 
 the statute (bj. 
 
 Upon the general rule in equity in favour of purchasers, 
 and upon the ground that an act of bankruptcy is not of it- 
 self notice to a purchaser. Lord Talbot, in the case of Col- 
 let V. Dc Gols [c], decided, that if a mortgage of a logal 
 estate be made he/ore an act of bankruptc}-, and the mort- 
 gagee make further advances after the act of bankruptcy, 
 
 (zc) Snelling v. Sq.iint, 2 Cha. lot v. D*- Gois, For. 6) ; and see 4 
 
 Ca. 47; Groswold v. Marsham, 2 Burr. 2425 ; ex f)nr/e Kuott, 11 
 
 Clia. Ci. 170 5 soe Ambl. 151 ; Vcs. Jun. 6U^ ; but see p. 531. 
 
 Churchill v. Grove, 1 Can. C;i. 3/; (a) llhhcux v.^.-il^Nvick,2Vcrn, 
 
 2 Freem. 176. 156; reversed in Do»;. /Vor. Seo 
 
 (x) 2 Eq, C:i. Abr. 682 (D) n. Journals of th(- Uou>e of Lords, 
 
 /\i\ vol. xiv. p. 6'n ; and see 7 Cas'^ 
 
 i^) Vide supra, p. 608. Ibl, ^^^^^ "^^n^. /zf^Z^^ ^_ 
 
 (r)\Villierv.Bo(lInn:fon, 2Vern. (6) Vide supra^ p. 579. ^^^^^'^ ....^^ ^^^^^ 
 
 599 ; Anon. 2 Cba. Ca. 136 ; Col- (c) For. 65. iT^^^^^'X^ ^^ JV^ ^'
 
 Chi6 OF KOTlCi:. 
 
 but without notice, the assignees cannot compel a recienip- 
 tion Tvitliout payment of all the money advanced, that is, 
 that tlio mortgagee not having had notice, may mal;e use 
 of his prior legal estate as a protection against the com- 
 mission of bankruptcy. Upon the same principle Lord 
 I^Iansfield laid it down, that if an estate be purchased with- 
 out notice of an act of bankruptcy, the purchaser may pro- 
 tect himself by a satisfied term prior to the act of bank- 
 ruptcy still standing out {d). 
 
 In a case, hov/ovcr, before Lord Redcsdale, in which 
 Collet and De Gols was incidentally mentioned, lie is said 
 to have observed, that it is now the constant practice for 
 the assignees to compel a redemption on payment only of 
 what was advanced before the bankruptcy. He did not, 
 however, express any opinion on the point fcj. In a late 
 case before Lord Eldon {/), in which this question Avaf? 
 discussed, but did not call for a decision, his i ordship, in 
 the course of the argument, sdd, " the case of Collet v. 
 De Gols iwoves that money advanced after an act of bank- 
 ruptcy, may be tacked and charg-ed upon the estate, not- 
 withstanding the property is taken out of the bankrupt ; 
 and it was urged there, that he had nothing to convey by 
 the second mortgage, yet it was held, that though the legal 
 effect of the second mortgage is nothing, the com't will con- 
 sider it a second incumbrance. Tlie distinction v;as taken, 
 that a secret act of bankruptcy does not prevent tacking as 
 a commission issued actually does, that being notice to all 
 the world." In delivering judgment, lie observed, " that 
 it v;as said, the act divests the bankrupt of all his interest, 
 and when the commission follows, it operates by relation 
 from the time the act of bankruptcy v\'as committed : un- 
 questionably it does ; and then the person taking the se- 
 cond security really takes nothing ; no interest passing from 
 
 {it) 4 Burr. 2425. (/) Ex parlc Knotf, 11 Ves. 
 
 (£) 1 Scho.and L^i. 152. Jun.609. 
 
 the
 
 OF NOTICE. <>47 
 
 t^ae bankrupt, and therefore sliall not tack. All the case.? 
 mliew that this objection will not doy for then it would have 
 been in vain to discuss" whether there is a difference be- 
 tv/cen securities after an act of bankruptcy, and after a coin_ 
 mission issued. It follows of necessity that the law [^Zi. 
 effect^ is the same in both cases, for the operation of the com • 
 mission is in either case precisely the same, reducing to dust' W^ 
 and ashes the second security. 
 
 From these observations Lord Eldon's opinion appears to 
 be, that Collet v. De Gols is still a binding autliority. If 
 it should be thought difficult to reconcile the last sentence 
 with what precedes it, that must give way to v/hat is before 
 so clearly expressed. Perhaps, however. Lord Eldon in- 
 tended merely to say, that though the law is different in 
 these cases, yet the effect of the commission is the same 
 whether it issued previously to the second mortgage, or sub- 
 sequently to it, but upon a prior act of banki-uptcy. 
 
 A case came before Lord Erskine, in which the precise 
 point called for a decision. His Lordship considered I^ord 
 Eldon and Lord lledesdale as having both expressed their 
 opinion against Collet v. De Gols, and he accordingly 
 overruled it, and decided that a mortgagee could not tack 
 advances subsequent to an act of bankruptcy, although made 
 without notice, and the mortgagee had a prior legal 
 estate [g). 
 
 This decision must, it should seem, prevent a purchaser 
 who buys without notice of an act of bankru]itcy, from 
 availing himself of a prior legal estate as a protection against 
 the commission ; and yet it has always been considered 
 clear, that a purchaser could not in such a case be disturbed. 
 The cases, however, cannot be distinguished. The mortga- 
 gee was a purchaser pro tank), and he, like a purchaser out 
 ;ind mit, relied on his legal estate prior to the act of bank- 
 er) Ex parte Herbert, 13 \es. Jun. 183. 
 
 ruptcy
 
 6i8 Ol' NOTICE. 
 
 ruptcy as a protection against the subsequcwt commissioii. 
 l^ut Ave hn.ve seen that it was taken from him. 
 
 Tlie decision is open to much observation. It entirely 
 subverts tlie established rule of equity, that apurchasi'r witli- 
 out notice shall not be relieved against, and an act of bank- 
 rui^tcy is not of itself notice. It proceeded, too, partly on 
 an opinion attributed to I^ord Eldon, but which, it should 
 seem, he never entertained ; and it escaped observation, tliat, 
 as we shall .Portly sec, it has been decided in the House of 
 J^ords, that a mortgagee witliout notice may tack advance* 
 subsequently even to a commisdoii of bankruptcy. Tliat case 
 must of necessity oven*ule all otliers, and the case of Collet 
 V. Dc Gols may, therefore, be still thought to be a binding 
 authority. 
 
 Eut vrhCiO a purchaser claims the benefit of Sir Samuel 
 Romilly's act (//), a commission issued, althougli afterwards 
 superseded, or a docket struck, will, by force of tlie statute, 
 be constructive notice to him of any prior act of bankruptcy. 
 
 With respect to a commission of bankruptcy, it v.as, in 
 Ilithcox V. Sedgwick, held by Lords Commisioners Trevor 
 and Hutchins, against Lord Commissioner Rawlinson, that 
 a commissiGn cf bankiiiptcy was notice to a purchaser ; and 
 that case is considered by the profession as having settled 
 that a commission of bankruptcy is of itself notice (z). 
 
 But it appears, that upon appeal to the House cf Lords 
 the decree against Sedgwick was reversed, and tlie estate 
 ordered to be sold, and Scdgv.'ick to be paid the 2200/. 
 (iJie money advanced after the cojiimission issiied), with 
 
 [h) Vide supra, p. 580. tdif. Cullen's B. L. 235 ; 2 Cruise's 
 
 0) See For. 70 ; 9 V.s. Jun. Digest, 250 ; e^: parfe Knoit, 11 
 
 rS : 1 I'ow. Mortg. 563, 4th Ves. Jun. 609. 
 
 ^dit. ; Cooke's B. L. 628, ^d 
 
 interest.
 
 OF NOTICE. 64.0 
 
 interest, costs, and charges as mortgagees are usually al- 
 lowed; "which was of course deciding, that a commission of 
 bankruptcy is not of itself notice to a purchaser, and that 
 advances made \vithout notice subsequently to the commis- 
 sion may be tacked to the prior mortgage. In the late Mr. 
 Coxe's copy of Vernon, in Lincoln's-Inn Library, is a note 
 to the case of Kithcox v. Sedgwick, (which must have been 
 ■written before the publication of the Lords' Joiu-nals,) iu 
 ^vhich he states, that Mr. I. Ord had told him the decree 
 was reversed on appeal to the House of Lords as against 
 Sedgwick, and that he (Ord) found it so said in a note of 
 this case, taken by I^ord Trevor, in which he says, the de- 
 cree was so reversed; and tliat he was counsel on the appeal 
 for Sedgwick. 
 
 8. AYhat is sufficient to put a purchaser upon an cnquirv, 
 is good notice {/i) ; that is, where a man has sutficiTut in- 
 formation to lead him to a fact, lie shall be deemed c( i^usant 
 of it. Therefore, if a man knows that the legal estate is 
 in a third person at the time he purcliases, he is bound to 
 take notice what the trust is (/). So, notice that the title 
 deeds are in anotlier man's possession may, under strono- 
 circumstances, be held to be notice of any equitable claim 
 which he may have on the estate, and as a secui'ity for which 
 he held the deeds {vi). 
 
 This doctrine has been carried so far, that notice that part 
 of the estate was in possession of a tenant hatli been holdcn 
 to be notice of a lease, although the purchaser took it for 
 granted that the tenant was only so from year to year (?i) 
 And if the tenant has even changed his character by having 
 agreed to purchase the estate, yet his possession amounts to 
 
 {I; Anon. 2 Frcem. 137, pi. ITI. (n) See 2 Vos. Jun. 410 : 13 
 
 (//J • Hif.Tii V. Mill, 13 Ves Jun. Ves. Jun. 121. 
 
 notic(
 
 6'50 OF NOTICE. ^^J;^^-^^-^ ^^'t^i^ J^^^:^ 
 
 notice of his equitable title as purchaser (o); and conse* 
 quently a subsequent purchaser, although without actual 
 notice, will be considered as a purchaser of the seller's title, 
 subject to the equity of the tenant, the first purchaser, to 
 have the estate conveyed to him at the price which he had 
 stipulated to pay to the seller. In such a case, tliereforp, a 
 specific performance will be decreed in favour of the tenant 
 against the seller, and the second purchaser and they will he 
 left to settle their rights between themselves {p). The cases 
 have gone so far, that a purchaser cannot be advised to com- 
 plete a contract for an estate not in the seller's own occupa- 
 tion, without a communication with the tenants, in order to 
 ascertain what their interests really are. So where a tenant 
 had an interest under an agreementposterior to the lease under 
 which he held, the purchaser w\as held t- • be bound by it al- 
 though he had not notice of it (5'). 
 I In a late case, where a charity lease was sought to be set 
 aside as improvidently made, upon the common equity, and 
 it appeared that some of the parties stood in the character 
 of purchasers, Lord El don said, though the purchaser of a 
 lease has never been considered as a purchaser for valuable 
 consideration, xviihout notice, to the extent of not being- 
 bound to know from whom the lessor derived his title, he 
 (Lord Eldon) was not aware of any case that had gone the 
 length that the purchaser was to take notice of all those cir- 
 cumstances under which the lessor derived that title. There- 
 fore, although the parties before the court must be understood 
 at least to have notice that the lessors were trustee* for a 
 charity, yet he could not go the length that the purchasers 
 had notice that the lease was bad ; that depending on a num- 
 ber of circumstances dehors the lease (r). 
 
 (0) Daniels V. Davidson, 16 Ves. 282. 
 
 249 ; and see Crofton v. Ormsby, (r) Attorney General v. Back- 
 
 2 Scho. and Lef. 583. house, 17 Ves. Jun. 293 j see 3 
 
 (p) 17 Ves, Jun. 433 Ridg. P. G. 512. 
 
 (') Allen V, Autlhony, 1 Mer, 
 
 ^Ut
 
 OF NOTICE. 651 
 
 Eut this of course, as in all other cases of notice, onl) 
 prevails in equity ; for although a purchaser has actual no- 
 tice of a lease, yet if it be invalid, he may, at law, recover 
 the possession from the lessee (.s). 
 
 Notice of a tenaiitcy will not, it seems, affect a purchase- 
 with constructive notice of the lessor's title. Therefore, if a 
 person equitably entitled to an estate let it to a tenant who 
 takes possession, and then the person having the legal estate 
 sells to a person who purchases honajide and without no- 
 tice of the equitable claim, the purchaser must hold against 
 the equitable owner, although he had notice of the tenant 
 being in possession. 
 
 So a purchaser bona fide and without notice, cannot be 
 affected by the more circumstance of the vendor having 
 been out of possession many years. Thus, in a case {t) (I) 
 where A covenanted to surrender lands to uses, which >vere 
 enjoyed accordingly, although no sun'ender was made ; and 
 A, 13 years afterwards, surrendered the same lands to B for 
 valuabio consideration, without notice of the covenant ; B 
 was holden to be entitled to the lauds, and the covenantees 
 were left to their remedy at law. 
 
 In all cases where a purchaser cannot make out a title but 
 by a deed which leads him to another fact, whether by de- 
 scription of the parties, recital, or otherwise, he will be 
 deemed conusant thereof; for it was crassa neglige ntia that 
 
 (s) Doe V. Luflkin, 4 East, 221, Abr. T. xMorigage, E. s. 3 '.; 2 
 (0 Oxwith V. Plummer, I3ac. Vern.63(>, S. C. 
 
 (I) From (he reioi t in Vfrnoii, it scorns thct Lord Cowptr (liouj^ht 
 there was no specific agreement to surrender the copyhold to OxwitK; 
 t)iit th« report in Bacon in very full and circumstantial. 
 
 I.e
 
 652 OF NO'J'K'E. 
 
 he sought not after it (ti) ; and for the same reason, if a pur- 
 cliaser has notice of a deed, lie is bound by all its con- 
 tents {rv). 
 
 If a man agrees to purchase under limitations ixx a deed, 
 ^vhich make it necessary upon that transaction for him to 
 look into that deed, and that deed contains recitals of judg- 
 ments affecting the lands he has so agreed to purchase ; he is 
 bound by those judgments, for he had a right to see the 
 whole deed under Avhich he purchased, and therefore must 
 be taken to have seen the whole, and muct consequently be 
 presumed to have taken notice of every thing eontained in it 
 affecting his purchase (<r). 
 
 So if an estate be subject to incumbrances, and be given 
 by the owner in consideration of another estate given to him, 
 the latter estate is subject in equity to the incumbrances 
 charged at law on the former, and a purchaser, with notice of 
 the transaction, is liable to the incumbrances although he had 
 not notice of them. This was decided by Lord Kedesdalc, 
 who considered it suiticient that the purchaser, by notice of 
 the deeds, had notice of the equity although he had not no- 
 tice of the particular incumbrance. This he said was an 
 equity of which every purchaser under a settlement must 
 have notice ; for it is a clear rule, that a man cannot claim 
 
 (ii) Bisco V. Earl ..f Banbury, 1 Jun. -137 ; Hall v. Smilh,MS.S C. 
 
 Cha. C. '287 ; Moore v. Dtritiett, 14 Ves. Jun. 426 ; Daniels v. Da- 
 
 2Ciia. Ca.246; Ferrarsv. Cberry, vison, 16 Ves. Jun. 249; which 
 
 2 Vern. 384 ; Draper's Company have overruled Philips v. Redhel, 
 
 V. Yardly, 2 Vern. 6£2 ; Merlins 2 Vern. 160, cited ; uhere tenant 
 
 V. Joliffe, Ambl. 313 ; Bury v. for life sold as (esant in fee. 
 
 Bury, Chancery, 1 1th July, 1748, and the \try settlement at the time 
 
 MS. Appendix, No. 25 ; and Cop- of the purchase was 'l.hvered to 
 
 pin V. Fernyhoui;;h, 2 Bro. C. C. the purchaser himself ; yet the 
 
 291 ; S. P. yjer Lord Keeper Hen- court would not affect the pur- 
 
 Jpy, in H,)v, arth v. Fowell, T, chiser with the presumptive notice, 
 
 Vac. 1758, MS.- / £m;u!1 ^xy ^^^ dismissed the bill. 
 
 (re) Tanner V. Florence, 1 Cha, {x) Hamilton v. Royse, 2 Siho. 
 
 Ca. 259; Taylor v.StibJ^ert, 2Ves. and Lef. 326, per Lord Rededale. 
 
 under
 
 OF NOTICE. 653 
 
 under a deed, and avoid the deed, he must submit to the 
 wliole; and he has notice of every thing of v/hich tlie ven- 
 dor had notice, so far as concerns that deed {ij). This, it 
 may be observed, was an opinion not intended to decide the 
 case, although it was acquiesced in. I carries the rule 
 much further, it is apprel-scnded, than is v.aiTanted by 
 either principle or authority. 
 
 But where a husband has not performed a marriage- 
 agreement on his part, he is not entitled to claim the be- 
 nefit of it {z), and a purchaser from him of the considera- 
 tion fox tlie settlement hy the wife, with notice of the 
 deed, will be bound by the same equity as the husband 
 was {a). 
 
 But the recital in a deed of a fact, whicli may or may 
 not, according to circumstances, be hrld in a court of 
 equity to amount to a fraud, will not, it seems, affect a 
 purchaser for valuable consideration denying actual notice 
 of the fraud (b). Nor will circumstances amounting to a 
 mei^e suspicion of fraud be deemed notice thereof to a pur- 
 chaser. This question constantly arises in practice, on sales 
 by tenant for life, and a child to wlioni he has appointed 
 the estate under an exclusive power of appointment amongst 
 his children. If there was any underhand agreement be- 
 tween tlie father and son, the power would be deemed frau- 
 dulently executed, and the other children might l)e relieved 
 against it. The difficulty on the part of a purchaser is, to 
 ascertain what circumstances, independently of a direct 
 statcm.cnt of the fact, arc sufficient to fix tli-j purchaser with 
 presumptive notice of fraud. Lord Eldon has greatly rc- 
 
 (//) Hamilton v. Royse, 2 Scli. (rt) Harvey ▼. Ash!*) . 2 Scho. 
 
 and Lef 315. and L. f 328, riled. 
 
 (3 Mi'ford V. ]V]itford, 9 Vos. (^) Keimy v.Lr' wn- 3Flidgew. 
 
 -Jon. 87 ; see Bascoi t. Serra, 11 r.C,512; see 17Ves. Jun. 293. 
 Ves. Jun, 313. 
 
 licvcd
 
 ^5i OF NOTICE. 
 
 lievcd this tlifficulty by deciding, that the mere cireuiTi' 
 stance of thr; fatlier first contracting to sell tlic estate, and 
 then appointing to one child, who joins in the sale, will not 
 ^iffect the purchaser where the contract appears to have been 
 fair, and the purchase-money to have been paid to all the 
 parties, and there is nothing to shew that the son was not 
 to receive a due proportion of the money (e). 
 
 Although a term assigned generally in trust to attend 
 the inheritance is equally charged v.ith the inheritance it- 
 self, yet such a trust is not of itself notice to a purchaser 
 of any incumbrances ; for it is notice of nothing, but that 
 there is an inheritance to be protected, and that the term 
 is attendant. It therefore gives notice to a purchaser of 
 nothing but what he had notice of by the deeds making 
 oiit the title to the fee. 
 
 But if in an assignment it be declared that the term is 
 assigned to attend the inheritance, as limited w settled hy 
 such a deed, or to protect the uses of such a settlement, as 
 is sometimes done, that wdll be notice of the deed or settle- 
 ment, and consequently of all the uses of it, and the pur- 
 y ^^^ *ihaser is bound to find them out at his peril (dj. 
 ^'ff^^ ^'2 9- '^^^^ better opinion seems to be, that being a witness 
 \o the execution of a deed will not of itself be notice ; for 
 a witness, in practice, is not privy to the contents of the 
 deed {e). 
 
 This question has hitherto only occurred between a first 
 mortgagee, who witnessed a second mortgage, and the second 
 mortgagee; but it might arise between a purchaser who 
 
 (c) M'Qufen v, Farquhar, 11 Ves. 6 ; Beckttt v. CordleyJ Bro. 
 
 Ves. Jun.467; tide supra p. 297, C. C. 357; seel Ves. Jim. 55; 
 
 (J) Wi!loiJ<;!)by v. Willoughby, and Sf^f Harding v. Crt-fiiurn, ! 
 
 1 Term l{e|.. 763 ; 1 Collec Ju- Esp Ca. 56 ; Holmes v. Cwsfance 
 
 ridica, 337: 12 Ves. Jun. ^79 . 15. .dulph v. St- 
 
 {e lu .calla v. Murija'rc.yd, 1 John, 2 Scho. ui; L. f. 521 ; Reed 
 
 P. Wins. 393 ; Kditor's ml "ox's t, WiHiams, 5 Taunt. 257, ^ A^uy^^ 
 cotes, Hid. ; Welfordv, Beezley, 1 
 
 had. 
 
 ^/
 
 OF NOTICE. 655 
 
 liad, previously to his purcliase, attested the execution of a 
 deed relatip.g to tlie estate, and the person in whose favour 
 tlie deed was executed. 
 
 Lastly, it remains to consider, whether a purchaser is 
 bound to take notice of the mere construction of words 
 which are uncertain in themselves, and often depend on the 
 locality of them for the interpretation which they may re- 
 ceive. 
 
 This question arises where a settlement is made in pur- 
 suance of articles ; but the estate is, contrary to the inten- 
 tion of the parties, limited so as to enable the parent to 
 dispose of it. It is clear that tlie court will rectify the set- 
 tlement according to the intention, in favour of tlie issue, 
 as between themselves, or as between themselves and per- 
 sons claiming under the parent without consideration; but 
 this has never yet been done against a purchaser { f). 
 
 In Senhouse v. Earle [g). Lord Ilardwickc drew a dis- 
 tinction between ancient articles of this sort, and modem 
 ones, and expressed his opinion, that in tlie case of ancient 
 articles, the purchaser should not be disturbed ; because mo- 
 dern methods of conveyancing were not to be construed to 
 affect ancient notions of equity ; but in case of notice of 
 modem articles, he thought the court ought to carry them 
 into execution against a purchaser. But in a later case (//), 
 Lord Xorthington seemed rather of opinion, that no relief 
 should be granted against a purchaser ; but this case is not 
 satisfactory, as the language attributed to the Chancellor, 
 on the principal question in that case, is by no means con- 
 sistent with the prior cases on the subject. 
 
 (/)\Varrick v.Warrick, 3 Alk. Ves. Jun. •]66; 5 Vc?. Jun, 426 ; 
 291. Park-rv. luookc, 9Ves. Jiin. 583; 
 
 (g) Ami)'. 285. and Mathewi t Joii«f, 2 Anstr. 
 
 (/i) Cordwellv. Maikrill, Ambl. 506. 
 515; and see Ilardjf t. Re^jreB, 1 
 
 Under
 
 656 OF NOTICE. 
 
 Under these circumstances a purcliaser cannot be ad- 
 vised to accept a title depending on a settlement made in pur- 
 suance of articles, but not framed accordin2: to the .<xeneral 
 rules of equity {i) ; and, certainly, a court of equity would not 
 enforce a purchaser to take such a title, although no relief 
 might be granted to his prejudice if lie actually had pur- 
 chased. 
 
 III. Having endeavoured to shew what will be deemed 
 notice, either actual cr constmctive, we are now to enquire 
 Avhat will be sufficient proof of such notice. 
 
 It seems that the counsel, attorney, or agent of the pur- 
 chaser, cannot be admitted to prove notice. 
 
 In JMaddox v. Maddox (A,*), the reading of the depositior. 
 of the agent of the purchaser, who swore, in proof of no- 
 tice, that the deeds were laid before counsel, who made ob- 
 jections about the plaintiff's title, was objected to ; but 
 Lord Hardwicke said, that though an attorney or counsel 
 concerned for one of the parties may, if he pleases, demur 
 to his being examined as a witness, yet, if he consents, the 
 court will not refuse the reading his deioosition. This ob- 
 jection, he added, had often been made ; and though some 
 particular judges had doubted, it was then always overruled. 
 And, on investigation, it will, I believe, be found that 
 Lord Hardwicke invariably adhered to this opinion. But 
 It was settled before Lord Hardwicke's time (Z), and has 
 been the observed rule of tlie courts ever since [m), that 
 
 (i) See Fearne's Po5th. 315. P. 284 j Wilson v.Rnstal), 4Terra 
 
 (Ar) 1 Ves. 62; and see Bishop Rep. 753 ; and see 2 Esp. N. P, 
 
 of Winchester V. Fournier, SVes, 716; Wright v- Alaver, 6 Ves. 
 
 445- Juu. 280 ; Slomaii v. Heme, 2 
 
 (/) Lord Say and Seal's case, 10 Esp. Ca. 695 5 Robson v. Kemp, 
 
 Mod. 41 ;'s!^e Lee v. Markhara, 5 Esp. Ca. 52; Brand v. Acker- 
 
 Toth. 110; and Anon. Skin. 404. man, ib, 119 ; Rex v. Withers, 2 
 
 (m) Lindsay v. Talbot, Bull. N. Campb, 578. 
 
 counsel
 
 OF NOTICF. 657 
 
 counsel and attornies ought not to be permitted to discover 
 the secrets of their clients, though they offer themselves for 
 that purpose ; and this is the privilege of the client, not 
 of the counsel or attorney (I) ; for it is contrary to the policy 
 of the law to permit any person to betray a secret v*ith 
 which the law has intrusted him. 
 
 But a communication by mistake to a person not actually 
 an attorney, although considered so by the person making it, 
 is not protected {n) ; and an attorney may give evidence oi* 
 the time of executing a deed, for a thing of such a nature 
 cinnot be called the secret of his client ; it is a thing he may 
 come to the knowledge of without his client's acquainti^ig 
 him, and is of that nature that an attorney concerned, or 
 any body else, may inform tlie court of (o). 
 
 So, if an attorney put his name to an instrument as a 
 witness, he makes himself thereby a public man, and no 
 longer clothed with the character of an attorney ; his signa- 
 ture binds him to disclose all that passed at the time respect- 
 ing the execution of the instrument ; but not what took 
 place in the preparation of the deed, or at any other time, 
 and not connected with the execution of it. Every person 
 who claims an interest in the property, has a right to cull 
 upon the attorney, as being the attesting witness (;;) ; nor 
 docs this privilege extend to communications from collateral 
 (luarters, although made to him in consequence of his cha- 
 racter of attorney ; the privilege is restricted to communica- 
 tions, whether oral or written, from the client to his at- 
 torney iq). 
 
 (n) Fountain v. Young, 6 Esp. Ca. 52 ; Doe t. Andrews, Cowp. 
 Ca. 113. 8^5. 
 
 (o) Lord Say and Seal's case, (7) Spenceley v. Schulcnbur^h 
 
 10 Mod. 41. 7 East, 337. 
 
 (p) llobson V. Kemp, 5 Ksp. 
 
 (\) This was insisted upon in the reasons in R.nltliflc v. Kursman, in 
 tho yenr 1730. Sec printed cases, Dm. Vroc. 
 
 2 if
 
 658 or NOTici:. 
 
 If notice be only proved by one witness, a positi\ e hnd 
 express denial by the answer will prevent the court fiom 
 decreeing against the answer (r) : for, in equity, the general 
 nile is, ti at if the answer contains a positive denial of the 
 case stated in the bill, and it is contradicted by one witness 
 only, there cannot be a decree against the defendant, 
 unless the circumstances so preponderate, that greater 
 credit, upon the testimonies of both being fairly balanced, 
 must be given to the depositions of the witness, than to 
 the answer of the defendant ; laying aside all recollection 
 that the oath of one of tljie parties is that of an interested 
 person (.j). 
 
 But where it is not a positive denial of the same fact, but 
 admits of a difference, that it is only a denial with respect 
 to himself, whereas, in other respects, it will equally affect 
 him, there are several cases where the court, on one un- 
 doubted witness, would decree against the answer ; for in- 
 stance, a person denying only personal notice, is a ncgati^ e 
 pregnant, that still there may be notice to his agent, which 
 is a fact equally material (/). 
 
 And where the answer is not ad idem, the charge being 
 positive, and the answer only to belief, which is not suffi- 
 cient to contradict what is positively swom, a single witness 
 "will be sufficient {u). 
 
 So, Avhere there are a great many concurring circum- 
 stances, that strengthen and support the depositions of a 
 
 (/■) Alam V. Joiirdon, 1 Vrrri. Ves. 12. 
 
 IGl ; 3 Clia. Ca. 123; Kingdome (.0 Per Lord Eldon, East India 
 
 V. Buakes, Free. Cha. 19 ; Morti- Company v, Donald, 9 Vcs. Juii. 
 
 iiicr V. Orchard, 2 Ves. Jiin. 243 ; 275 ; I SmiMi, 213. 
 
 and see Kvaus v. Bicknell, 6 Ves. {t) See 1 Vcs. 66 : 3 Atk. 650. 
 
 Jun. 174 ; 3 Cha. Ca. 123 ; Daw- {u) See 1 Ves. 97 ; and see Pi!- 
 
 ton V. Masscy, 1 Ball and Beatty, ling v, Armitage, 12 Ves. Jun. 78. 
 234; Cooke v. Clr.y%Torth, 18 
 
 single
 
 OF NOTICE. G.>9 
 
 single witness, his evidence alone v.ill enable tire court to 
 •lecree against the answer (a:). 
 
 If the evidence is not clear enough to enahle the couri 
 to make a satisfactory decree, it Avill be sent to law to ho 
 tried (?/), unless the value of the property will not admit 
 of •it(^). 
 
 •But the sam,e rule tliat would. absolutely prevent a decree 
 from being made, yvill restrain- the court from directing an 
 issue (a) ; for the matter is only referred to law, to know 
 ■what a court of equity ought to dp(^) ; and sending it to 
 law to be tried, where the jury will certainly find it on the 
 testimony of one \yitness, and then decreeing it on that ver- 
 dict,- is tlie same thing as decreeing on one witness, without 
 trying it at all (c). 
 
 Formerly, however, an issue used to be directed, althougli 
 upon the evidence a decree, could not be made {(I) ; and in 
 such, cases the defendant's answer was directed to be read at 
 the tri(;l, not as evidence, for that could not be, nor was it 
 to be admitted to be truCv but to be, sworn, 50 tliat the de- 
 fendant might liave the benefit of his oath at law as well as 
 iu equity, if it would liave any ^veiglit Avitli the jury. I^ut 
 this could only be done whei-e it was merely oath against 
 oath {e) ; and as an issue would not now be directed in such 
 
 (x) Walton V. Hobbs, 2 Atk. (/;) See 1 Bro. C.C, 53,_5l; 9 
 19; Anon. 3 Atk. 270; Only v. ' Ves. Jun. 281; 1 Smitli';, Rep-. 
 
 Walker, 3 Atk. 407 ; Pembor V. -249. 
 
 Mathers, 1 Bro. C.C. 52; Kast (c) See 1 Eq. Ca. Abr 229, pi. 
 
 I. C, V, Donald, 9 Ve.^. Jun. 275 ; 13. 
 
 1 Smith, 213 ; and sec 6 Ves. Jun. (</; Stadd t. Cason, Toth. 230 ; 
 
 40; liiddulph V.St. John, 2Scho. Ibliotson v. Uhodes, 2 Vern. 55 4 ; 
 
 and Lef. 521. 1 Iq. Ca. Abr. 229, pi. 13, S.C. ; 
 
 ij/) Arnot V. Biscoe, 1 Ves. 95. Cant v. Lord Beauclerk, 3 Atk. 
 
 (z) Jolland v. Stalnbridg", 3 408, cited ; Jcrf o/rf<? Christ Collets 
 
 Ves. Jun. 478. ▼• ^Vidd^lngtoD, 2 Vern. 283. 
 
 ffl) Pembcr V. Mathers, 1 Bro. {c) Ou\j v. Walker, 3 Atk. 
 
 C. C. 52. -^07. 
 
 2 u 3 a ca'c,
 
 6*60 or NOTICE. 
 
 a case, the answer of the defendant cannot, it should sccin, 
 at the present day, be directed to be read at a trial at law. 
 Hut if a bill is filed for a discovery only, the answer of the 
 defendant may of course be read on the trial ( /). 
 
 It must be remarked, that if the notice arise, by con- 
 struction of equity, on a deed which is in the possession of 
 the purchaser (ji^)^ and he contend that it did not come into 
 liis custody till after the completion of his purchase, the 
 proof thereof will lie on him {k). 
 
 In one case (i), however, although the only evidence cf 
 tlic deed being in the possession of the defendant, wa? the 
 discovery in his answer, and on the deed being produced the 
 counsel offered to read the answer, to show that it had net 
 been delivered to him till lately, and long after be had pur- 
 chased the estate. Lord Hardwicke refused it, although it 
 was argued to be very hard ; because the only account of the 
 delivery of the deed was in the answer ; and by its not being 
 permitted to be read, the deed must be taken to be in his 
 custody at the time of the purch&sc, ten years before it 
 actually was. 
 
 But it seems, that the defendant had sufficient notice, 
 besides the mere custody of the deed. His conveyance re- 
 cited all the fomier deeds ; and therefore reading the answer, 
 to prove when the deed in question came into his custody, 
 "vvas perfectly unnecessary. This case, therefore, cannot be 
 deemed subversive of the general rule. 
 
 (/) See 9 Ves. Jun. 282 ; "1 (h) See 2 Ves. 486. 
 
 Smitli, 218. i,i) Mivtias v. JoliflTo, Ambl = 
 
 Ur^, See 1 Ves. 392, 311, 
 
 CHAP
 
 Gcn 
 
 CHAPTER XVIir. 
 
 OF PLEADING A rUIlCHASr. 
 
 ♦Supposing a plaintiff to have a full title to the relief 
 he prays, and the defendant can set up no defence iu bar 
 of that title, yet if the defendant has an equal claim to the 
 protection of a court of equity to defend liis possession, as 
 the plaintiff' has to tlic assistance of the court to assert Lis 
 right, the court will not interfere on either side. This is 
 the case where the defendant claims under a purchase for 
 valuable consideration, without notice of the plaintiflP's title, 
 which he may plead in bar of the suit (<:/)/' 
 
 The principle of tliis plea, Lord Kldou observes, is this: 
 " I have honestly and bo7ia jidc paid for this estate, in 
 order to make myself the owner of it ; and you shall have 
 no information from me as to the perfection or imperfection 
 of my title, imtil you deliver me from the peril in which 
 you state I have placed myself in the article of purchasing 
 bona fide (^)." 
 
 This plea is a peremptory plea, and must be sworn by 
 the pleader (c). It must be put in ante litcjn conteatatam, 
 because it is a plea why an answer sliould not be put in ; 
 and, therefore, if a defendant answers to any thing to 
 
 (a) Mitford on Pleading, 2J edit. {h) See Walhryn r. Lee, 9 
 
 p. 215 ; Gough v. Stedinan, Fincb, Vts. Jun. '21. 
 s£)g (c) Marsl.all t. Frank, Free. 
 
 Cba. 480. 
 2 u ii vvhi( h
 
 6tJ2 or PLEADING A rUllCIIASE. 
 
 Avhicli he may plead, he overrules his pica (<:/), but he ma) 
 answer any thing i/i subsidium of his plea, as he may 
 deny notice in his answer, which he may deny also in his 
 plea ; because that is not putting any thing to issue which 
 he should cover by his plea from being put in issue, but it 
 is adding, by way of answer, that wliich will support his 
 plea, and not an answer to a charge in the bill, which, by 
 the plea, he would decline {c). 
 
 The plea must state the deeds of purchase, settiH^ 
 forth the dates, parties, and contents briefly, and the time 
 cf their execution (I), for that is the peremptory matter va. 
 bar(/;(ir). 
 
 It must aver that the vendor was seised, or pretended 
 to be seised at the time he executed the conveyance (g). 
 In Carter v. Pritchard {h) it was held, that the plea of a 
 purchase, without notice, must aver the defendant's heliej] 
 that the person from w^hom he purchased was seised in fee. 
 If it be charged in the bill that the vendor was only tenant 
 
 (J) Richardson v. Mitchell, Sel. v, Lee, 9 Ves. Jiin. 24. 
 
 Cha.Ca. 51; Blacket V. Langlaiids, {g) Story t. Lord Windsor, 2 
 
 1 Aiistr. 14. Atk. 630 ; Head v. E°erton, 3 P. 
 {e) Gilb. For. Rom. 58; see ' Wms. 279 ; and see 17 Ves. Jua. 
 
 H.oare v. Parker, 1 Bro. C. C. 573. 290. 
 
 (/) See Gilb. For. Rom. 58; (A) Michaelmas Term, 12 Geo, 
 
 Aston V. Aston, 3 Atk. 302 ; and II. 1739 ; 2 Vivian's MS. Rep. 9G. 
 
 2 Ves. 107,396; and see Wallwyn in Lincoln's Ina Library. 
 
 .(I) Q" V^iis. as the plaintiff might thereby be enabled to proceed 
 Ui^alnst the defendant at law. See Anon. 2 Cha, Ca. 161. lu Day t. 
 Arundel, Hard. 510, it was expressly held, that the time of the purchase 
 iited not be stated in the plea. 
 
 (H) It seems, that the practice forq|erly was, to extend the plea t* 
 the discovery even of the purchase-deeds; and in Watkins v. Hatchet, 1 
 Eq Ca. Abr. 33, [)1. 3, although the purchaser improvidently offered tu 
 produce his purchase. deed, yet the court would not bind him to do so. 
 
 for
 
 OF PLEADING A PCRCHA^L. GUij 
 
 for life, or tenant in tail, and a discovery of the title be 
 prayed, such a discovery cannot be covered, unless a seisin 
 is sworn in the manner already mentioned, or that such 
 fines and recoveries were levied and suffered as would bar 
 an entail if the vendor was tenant in tail; for if a purchase 
 by lease and release should be set forth, which would pass 
 no more from the tenant in tail than it lawfully may pass, 
 and that is only an estate for the life of the tenant in tail 
 (I), then there is no bar against the issue (i). Where, 
 however, a fine is pleaded, the plea must aver an actual 
 seisin of a freehold in the vendor, and not that he was 
 seised, or pretended to be seised (A). 
 
 If the conveyance pleaded be of an estate in possession, 
 the plea must aver that the vendor was in possession at 
 the time of the execution of the conveyance (/). Arid if 
 it be of a particular estate, and not in possession, it must 
 set out how the vendor became entitled to the • reversion 
 {vi). But although a bill be brought by an heir, the plea 
 need not, on that account, aver the purchase to be from 
 the plaintiff's ancestor (/i). 
 
 Tlic plea must also distinctly aver that the considera- 
 tion money mentioned in the deed, was ho72a fide and 
 
 (i) Gilb, For. Rom. 57. and 9 Vts. Jun. 32. 
 
 (A) Story V. Lord Windsor, 2 (m) Hughes v. Gartli, AniLl. 
 
 Alk. 630; and see Page V. Lever, 421. 
 
 ii Ves. Jun. 450; DobbOiiT. Lead- (n) Seymour v. Nosworth, 2 
 
 l>fcater, 13 Ves. Jun, 230. Freem. 128; 3 Cha. Rep. 23; Nels. 
 
 (/) Trevunian v. Mosse, 1 Vern. Cha. Rep. 135. 
 246 ; aud ^ee 3 Ves. Jun. 226 j 
 
 (I) Tliis is the ductiiiie of Littleton, with which, it seems, Gilbert 
 agrees; but since Littleton's time it has been held, that the rt^^!f'ii<*»<(' has 
 « base fe« determinable by the entry or action of the issue. St'eBuiitr's 
 II. (1) to Co. Litt. 33 I, a. and (lie authoritiei there referred to. 
 
 iruly
 
 f>G4 
 
 OF PLEADING A PURCHASE. 
 
 truly paid (o), independently of the recital of the purclia^e- 
 deed (p) ; for if the money be not paid, the plea will bt' 
 overruled (^), as the purchaser is entitled to relief against 
 payment of it (r). The particular consideration must, 
 it should seem, be stated (i), although this point has 
 been decided othenvise {t). There can, however, be no 
 objection to state the consideration, as, if it be valu- 
 able, the plea will not be invalidated by mere inadequacy 
 (ii). The question is not, whether the consideration is 
 adequate, but whether it is valuable ? for if it be such a 
 consideration as will not be deemed fraudulent within the 
 statute of 27th Elizabeth, or is not merely nominal (jt), 
 or the purchase is such a one a:^* would hinder a iniisJie 
 purchase from overturning it, it ought not to be impeached 
 in equity. 
 
 The plea must also deny notice of the plaintiff's title 
 or claim (2/), previously to the execution of the deeds and 
 payment of the purchase-money [z) ; for till then the 
 transaction is not complete ; and, therefore, if the pur- 
 chaser have notice previously to that time, he will be 
 
 (0) More T. Mayhovr, 1 Cha. 
 Ca. 34; see2 Atk. 241. 
 
 ip) Maitland v. Wilson, 3 Atk. 
 814, 
 
 (g) Hardinghara v. Nichols, 3 
 Atk. 304. 
 
 (r) See svpra^ p. 409. 
 
 (*) Millard's case, 2 Freem. 
 43 ; and Snag's case, cited ibid, ; 
 and see Wagstaff v. Rfiad, 2 Cha. 
 Ca. 156. 
 
 (0 More T, May how, 1 Cha. 
 Ca. 34; Day t. Arundell, Hard. 
 510. 
 
 (u) Basset v. Nosworthy, Finch, 
 102; Ambl. 767; MUdmay v. 
 Mildmay, Ambl. 767, cited; Bul- 
 lock V, Sadlier, Ambl. 764. 
 
 (x) See More t. Mayhow^, I 
 ChaCa. 34; Wagstaff v- Head, 
 2 Cha. Ca. 156. 
 
 (y) Lady Bodnain v. Vender.- 
 bendy, 1 Vern. 179; Anon. 2 
 Ventr. 36i, No. 2, 
 
 (z) More T. Mayhow, 1 Cha. Ca. 
 34; Story v. Lord Windsor, 2 Atk. 
 630; Attorney-yt-neral v. Gower, 
 2 Eq. Ca. Abr. 685, pi, 11 
 
 bound
 
 OF PLEADING A PURCHASE. 
 
 ^ f^ 9^ 
 
 bound by it {a). And the notice so denied must be notice 
 of the existence of the plaintiff's title, and not merely no- 
 tice of the existence of a person who could claim under that 
 title {h). But a denial of notice at the time of making the 
 purchase, and paying the purchase-money, is good ; and 
 notice before the purchase need not be denied, because notice 
 before is notice at the time of the purchase, and the part> 
 will, in such ease, on its being made appear that he had no- 
 tice before, be liable to be convicted of perjury (c). 
 
 The notice must be positivdy, and not evasively denied 
 {d), and niwst be denied, whether it be or be not charged by 
 the bill {e). If particular instances of notice, or circum- 
 stances of fraud, are charged, the^facts from which they are 
 inferred must be denied as specially and particidarly as 
 charged (/). 
 
 Notice must also be denied by answer, for that is matter 
 of fraud, and cannot be covered with the pba, because the 
 plaintiff must have an opportunity to except to its sufficiency 
 if he think fit {g) ; but it must also be denied by the plea, 
 because otherwise there is not a complete plea in court on 
 which the plaintiff may take issue (//). 
 
 (rt) Vide supra, p. G3 \. 
 
 (I) Kelsall T., Bennetf, I Atk. 
 522; which has OTerniled Bram- 
 lon Y. Barker, 2 Verii. 159, 
 citod. 
 
 (c) Jones V, Thomas, 3 P. 
 Wms. 243. 
 
 (d) Cason t. Iloutul, PrecCha. 
 226; and see 2 Eq. Ca. Abr. 
 682, (D) II. lb). 
 
 {,e) Aston v. Ciirzon, and Wes- 
 ton V. Bcrkc'ly, 3 P. Wmi. 244. 
 D. (/). And see the 6tl; r«'tol. in 
 
 Brace v. D. of Marlborough, 2 I'. 
 ■\Vms. 491. 
 
 (/) Meder v. Birf, Gilb. Eq. 
 
 Fvcp, 185; Radford ▼.Wilson, .'5 
 
 Atk. 815 ; and see Jtrrard t, 
 
 Saunders, 2 Vcs. Juii. 187 ; 4 Bro. 
 
 C. C. 322. 
 
 (i--) Anon. 2 Cha. Ca. 161 ; 
 Price V. Price, 1 Vcrn. 18J. 
 
 \h) Harris t. In^ledew, 'i V 
 Wrus. 91 ; Meatiows v. IJnrhess pI 
 Kingilyn, Mitf.on PUad. 2nd edit. 
 216, n. 
 
 Although
 
 66.6 OF ?LEADING A rUIlCIlASE, 
 
 Althougli a purchaser omit to deny notice by answer, ]ir 
 will be allowed to put in the point of notice by way of nn- 
 swer (i), and the omission will not invalidate his plea, if it 
 is denied by that (k). If notice is omitted to be denied by 
 the plea, and i\\Q plaintiff' ixphj to it, the defendant has 
 then only to prove his purchase, and it is not material if the 
 plaintiff do prove notice, as he has waved setting down the 
 plea for argument, in whicli case it would have been overruled 
 (Z). If, however, a bill is exhibited against a purchaser, 
 and he plead his purchase, and the bill is thereupon dis- 
 missed, a new bill will lie charging notice, if the point of 
 notice was not charged in the former bill, or examined to ; 
 and the former proceedings cannot be pleaded in bar (w). 
 But if notice is neither allcdged by the bill nor proved, and 
 tlic defendant by liis answer deny notice, an inquiry will not 
 be granted for the purpose of affecting him with notice {n). 
 
 If a purchaser's plea of valuable consideration without no- 
 tice be falsified by a verdict at law, and thereupon a decree 
 is made against the purchaser, and he then carries an appeal 
 to the House of Lords, it will be dismissed, and the decree 
 affirmed without further enquiry (o). 
 
 The title of a purchaser for valuable consideration ^witliout 
 notice is a shield to defend the possession of the purchaser 
 
 (£) Anon. 2 Cha. Ca. 161. (m) VVilliaiiis t. Williams, J 
 
 {k) Coke V, Wilcocks, Mose. Cha. Ca. 252. 
 
 73, (w) Hardy t. Reeves, 5 T'es. 
 
 (/)Harrisv. Inslede\v,3 P.Wms. Jtin. 426, 
 
 91 ;• Eyre v. Dolphin, '2 Ball and' (o) Lewes v. Fielding, CoUe's 
 
 Beat. 302, " P. C. 361. • 
 
 ' not
 
 OF PLEADING A PURCHASE. G(j7 
 
 (p), not a sword to attack the possession of others {q). It is 
 clear that it will protect his possession from an equitable 
 title, although even that has been sometimes questioned (r) ; 
 v/5icther it will avail against a legal title, is perhaps doubt- 
 ful. 
 
 In Burlase v. Cooke {s). Lord Nottingham held the plea 
 to be good against a legal estate ; but in the subsequent 
 case of Rogers v. Scale {t), he is reported to have been of 
 a different opinion, and to have decreed accordingly. But 
 unfortunately both these cases appear to be ver)' ill re- 
 ported. 
 
 In Parker v. Blythmore {u), the I^Iaster of the Rolls 
 thought the plea good against a legal estate. 
 
 But in Williams v. Lambc {:c), upon a bill filed by a 
 dowr':?s against a bona fide purchaser, without notice of the 
 marriage. Lord Thurlow overruled the plea. Ke said, that 
 the only question was, whether a plea of purchase without 
 notice would lie against a bill to set out dower; that he 
 thought v/liere the party is pursuing a /r^aZ iitfe, as dower is. 
 the plea did not apply, it being only a bar to an cquifahlc, 
 not to a legal Q\a\m. 
 
 In a later case {y). Lord Rosslyn considered it impossible 
 that Rogers V. Scale, could be the decision of Lord Kotting- 
 ham, and decreed that the plea covdd stand against a legal 
 as well as an equitable title. 
 
 Lord Rosslyn did not, however, mention the case of Wil- 
 liams v. Lambe, which is against the doctrine he laid down ; 
 nor, indeed, did he notice the case of Parker v. Blytlnnon . 
 
 (p) Patit v^oii V. Slaughter, Ami). (/) 2 Freem. 84. 
 
 202. (r-)?Er,. Cd. Ahr. 70, p|. \, 
 
 (q) See 3 V..S. Jun. 22S. 'r'^ 3 tiro. C. C. '.h 1. 
 
 tr) See 1 Ball and Beatty, 17!. t y^ .lerrard v. Saunders, 2 V«^. 
 
 ■f) 2 Fr^em. 24. Jwn. 151. 
 
 wliicl:
 
 668 or rLEADiXG a purchase. 
 
 vshich is in favour of it. It is much to be lamented that all 
 the authorities were not considered. 
 
 To argue from principle, it seems clear that the plea is 
 a protection against a legal as >vell as an equitable claim ; 
 and as the authoriiies in favour of that doctrine certainly 
 preponderate, we may, perhaps, ^ enturc to assert, that it ivilj 
 protect against both. 
 
 APPENDIX.
 
 APPENDIX. 
 
 No. I. 
 
 N'otke ly the Oii^ncr and his Agent, of the AgenVs intention 
 
 to hid (a), 
 
 SiK, 
 
 1 THE undersigned A, of owmer of the estates 
 
 intended to be sold by you at bv public auction, oil 
 
 the day of next, do hereby give you notice, that 
 
 I have appointed tlie undersigned B, of, &c. to bid on my behalf, 
 or for my use, at the same sale. And I the above-named B. do 
 hereby give you notice, that I have accordingly agreed to bid at 
 such sale, for the use of the said A. 
 To Mr. . Auctioneer. 
 
 No. 11. 
 
 Notice hy the J gent of his intention to hid (/'). 
 
 Sin, 
 
 1 die undersigned A, of, &c. agent of B, of, &c. owner of tliv 
 Estates intended to be sold by you at by public auction, 
 
 on the day of next, do horeby give you notice, 
 
 that I intend to bid at the same sale, on the bcluilf, or for tlu lue 
 of the above-named li. 
 
 To Mr. Auctioneer. 
 
 (o) Vide avpr.i, p. 11. (ft) t'iJe sttpva, p. 14. 
 
 a No.
 
 AVTRSDIX. 
 
 No. III. 
 
 Notice hi) the Agent, and the Person appointed by him, of such 
 Person'' s intention to hid (c). 
 
 Sir, 
 
 I the undersigned A, of, S:c. af^ent of B, of, &c. ou'ner of llie 
 estates intended to be sold by you at , by public auction 
 
 on the day of next, do hereby give you notice, 
 
 that I have appointed the undersigned C, of, &e. to bid at the same 
 sale, on the behalf, or for the use of the above-named B. And I 
 the said C, do hereby give you notice, that I have accordingly 
 agreed to bid at such sale, for the use of the said B. 
 
 To Mr. Auctioneer. 
 
 No. IV. 
 
 Conditions of Sale (d). 
 
 I. That the highest bidder shall be the buyer : and if any dis- 
 pute arise as to the last or best bidder, the lot in dispute shall be 
 put up at a former bidding. 
 
 II. That no person shall advance less at any bidding than 
 j£, (I) ; or retract his or her bidding {e) 
 
 III. That every purchaser shall immediately pay down a deposit 
 in the proportion of £ for every 100/. of his or her purchase- 
 money, into the hands of the Auctioneer (II) ; and sign an agree- 
 ment for payment of the remainder to the proprietor, on the 
 day of next, at : at which time and place the 
 purchases are to be completed, and the respective purchasers are 
 
 Cc) Vide supra, p. 14. 148. Vide supra, p. 34. This has now 
 
 (d) Fide supra, p. 24. become an uswal condition. 
 
 (e) Payne v. Cave, 3 T«rm Rep. 
 
 (I) Or thus, " than such sum as shall be named by the auctioneer at the 
 time." 
 
 (II) This is scarcely ever done in the country ; but the deposits are paid to 
 the agent of the vendor. 
 
 then
 
 appendix; 
 
 tlitn to liave llie actual possession of tlieir respective lots; all out- 
 goings to that time being cleared by tlie vendor. 
 
 IV. That within from the day of the sale, die vendor 
 shall, at his own expense, prepare and deliver an abstract of his 
 title to each purchaser, or his or her solicitor ; and siiall deduce a 
 good title (I) to the lots sold. 
 
 V. That upon payment of the remainder of the purchase-money 
 at the time above-mentioned, the vendor shall convey the lots to 
 the respective purchasers : each purchaser, at his or her own ex- 
 pense, to prepare the conveyance to him or lier ; and to tender or 
 leave the same at for execution, by the vendor (/"). 
 
 VI. That the auction duty of Tc?. in the pound shall, immediate- 
 ly after the sale, be paid to the auctioneer by the vendor and pur- 
 chaser, in equal moieties (ff) (II). 
 
 VII. That if any of the })urchasers shall neglect or fail to com- 
 ply with the above conditions, his or her deposit-money shall be 
 actually forfeited to the vendor, who shall be at full hberty to 
 resell the lot or lots bought by him or her, cither by public auction, 
 or private contract; and the deficiency (if any) occasioned by 
 such second sale, together with all expenses attending the sanK", 
 shall, immediately after the same sale, be made good to the vendor 
 by the defaulter at this present sale : and in case of the non-pay- 
 ment of the same, the whole thereof shall be recoverable by the 
 vendor, as and for licjuidated damages (A), and it shall not be ne- 
 cessary to previously tender a conveyance to the purchaser. 
 
 Lastly, That if any mistake be made in the description of the 
 premises, or any othei' eiTor whatever sh.all appear in the jxarticu- 
 lars of the estate, such mistake or error shall not annul the sale, 
 but a compensation, or equivalent, shall be given or taken, as the 
 case may require (t). Such compensation or equivalent to be 
 settled by two referees, or their umpire ; each party within ten 
 days after the discovery of the error, and notice thereof given to 
 
 (f) r;rfe5Hprfl, p. 31, (h) }'i<k svprn, p. ."?'>. 
 
 (^) Fide supra, [>. 2:}. -^(i) yhh iupra. p. ;iJ. 
 
 (I) Where the estate is leasehold, and ihc vendor cannot prodice tlic 
 lessor's title, this condition should go on thus: " to the itJie granted uf tlie 
 piemises; but the purchaj^cr shall not he entitled In ri-qnirc,, or call lor llic 
 title of the lessor." Vide supra, \). SO. 
 
 (II) This condition should lie omitted wIkjc the cslatt is t»'.d by a$>isnec$ 
 of a bankrupt. VnU ntjua, p. 1'.', ]•!•■ 
 
 a 2 the
 
 >ippEKjjr:i. 
 
 the other party, to appoint one referee by writing; arid in case 
 citlier party shall neglect or refuse to nominate a referee within 
 the time appointed, the referee of the other party alone may 
 make a final decision. If two referees are appointed, they are 
 to nominate an umpire before tlicy enter upon business, and the 
 decision of such referees or umpire (as tlie case may be), shall 
 be final. 
 
 Condition to be inserted where the Title-decds cannot he 
 delivered up (Jc). 
 
 That as the title-deeds which concern this estate relate to other 
 estates of greater value, the vendor shall retain the same in his 
 custody, and enter into the usual covenants (to be prepared by his 
 solicitor, and at his expense) for the production of them to the 
 respective purchasers : but all attested copies which may be re- 
 quired of such deeds, shall be had and made at the expense of the 
 person requiring the same. 
 
 Where an Estate is intended to he soM in Lots, and the Tiik-deeds 
 are to be delivered up, thejvllowing Condition mai^ be inserted :- 
 
 That as the aforesaid lots are holden under the same title, the 
 purchaser of the greater part in value of the said estate, shall have 
 the custody of the title-deeds, upon his entering into the usual 
 covenants for the production thereof to the purchaser or purcha- 
 sers of the remaining or other lots : If the largest portion in value 
 of the estate shall remain unsold, the seller shall be entitled to re- 
 tain the deeds upon entering into such covenants as aforesaid ; all 
 sucli covenants to be prepared by and at the expense of the person 
 or persons requiring the same; who may have attested copies of 
 -^such deeds at his, her, or their own expense. 
 
 Or this : 
 
 That the title-deeds shall be retained by the vendor, until all 
 
 the estates now ofi'ered for sale shall be sold, when they shall be 
 
 dfchvered over to the largest purchaser, upon his entering into the 
 
 usual covenants for the production thereof to the other purcha- 
 
 {k) Vide supra, p. SO. 
 
 sers ^
 
 APPENDIX. 
 
 sers ; such co^'enants to be prepared by and at the expense of the 
 ])erson or persons requiring the same. Whilst the deeds remain 
 in the seller's hands, he shall produce them to the several pur- 
 cliasers when required, and every purchaser may at any time have 
 attested copies of the deeds at liis own expense. 
 
 Whtre the Property Is considerable, it may he advisable to make 
 a stipvlation as to the expense of the attested copies* according to 
 the value oftlu lots. As, for instance: 
 
 That all attested copies of the title-deeds shall be made and de- 
 livered at the expence of the person requiring the same, unless 
 his or her purchase-money exceeds £ but does not amount 
 
 to -£* ; in which case the vendor shall furnish tlie attested 
 
 copies of all such deeds and writings as shall be deemed necessary , 
 according to professional usage, at the joint expense of him and 
 the purchaser ; and if the purchase-money exceeds £ , the 
 
 vendor shall furnish the same at his own expense. 
 
 No. V. 
 
 Agreements to ie signed by the Vendor and Purchaser after 
 Sales by Auction (I). 
 
 It seems advisable to have tico sets of conditions, at the end oj one 
 ofjvhich may he printed an agreement Jbr the auctioneer, or agent 
 of the vendor, to sign ; and at the end of the other may be print- 
 ed an agreement Jbr the purchaser to sign. 
 
 The Agreement to be signed by the auctioneer, or agent of the 
 vendor, may be thus : 
 
 I do hereby acknowledge, that has been this day (hvlared 
 
 the purchaser of lot , of the estates mentioned in the above- 
 
 written particulars, at the sum of JO ; and that he has paid 
 
 into my hands £ as a deiM)sit, and in part-jiaymcnt of the 
 
 rtiid purchase-money ; and I do hereby agree, that llic vendor 
 
 (/) J'tde supra, p. 41. 
 
 a 3 «I>"H»
 
 6 Ari-EiVnix. 
 
 shall, in all res})ccts, fulfil on his part, the above-written condi- 
 tions of sale. As witness my hand, this day of 
 
 Purchase-money ^ 
 Deposit-money £. 
 
 Remainder unpaid JO, 
 Witness 
 
 The purchaser may s'^gn thejbllowing Agreement : 
 
 T do hereby acknowledge, that I have this day jiurchased by 
 public auction, lot , of the estates mentioned'in the above- 
 written particulars, for the sum of £. ; and have paid into the 
 hands of tlie sum of £. as a deposit and in part 
 
 payment of tlie said purchase-money ; and 1 do hereby agree to 
 pay the remaining sum of £ , unto , at on or 
 
 before the day of ; and in all other respects, on my part, 
 to fulfil the above written conditions of sale. 
 
 As witness my hand, this day of 
 
 Piu'chase-money, £. 
 
 Deposit-money, * £. 
 
 Remainder unpaid S 
 ^Vitness 
 
 No. \l. 
 
 Agreement for Sale of an Estate by Private Contract {in). 
 
 Articles of agreement made and entered into this day 
 
 of , between A, of, &c. for himself, his heirs, executors, 
 
 and administrators, of the one part, and B, of, &c. for 
 
 himself, his heirs, executors, andt'.dministrators, of the other 
 
 part, as folloAv: viz. 
 
 The said A doth hereby agree with the said B to sell to \\mi 
 
 the messuages, &c. {parcels) with their appurtenances, at or for 
 
 the price or sum of £ : and that he the said A will within 
 
 one month from tlie date hereof, at his own expense, make and 
 
 [ni] Vide supra, p. 42. 
 
 deliver ,
 
 APPEXDIX. 7 
 
 tleliver unto the said B, or his sohcitor, an abstract of the title of 
 him the said A to the said messuages and premises ; and will also, 
 at his o;\Ti expense, deduce a clear title thereto. And also that the 
 said A, or his heirs, and all other necessary pai'ties, shall and will, 
 on or before the day of next, on receiving of and from 
 
 the said 13, his executors or administrators, the said sum of j& , 
 at the costs and charges of him the saidB, his heirs, executors, ad- 
 ministrators, or assigns, execute a proper conveyance, for convey- 
 ing and assuring the fee simple and inheritance of and in all the 
 said messuages and premises, with their appurtenances, unto the 
 said B, his heirs or assigns, fi-ee from all incumbrances. 
 
 And the said B hereby agrees with the said A, that he the said 
 B, his heirs, executors, administrators, or assigns, shall and will, 
 on the execution of such conveyance as aforesaid, pay the sum of 
 £ unto the said A, his executors or administrators. 
 
 And it is hereby further agreed by and between tlie said A and 
 B as follows : viz. 
 
 That the conveyance shall be prepared by and at the expense of 
 the said B, and that the same shall be settled and approved of on 
 the parts of the said A and B by their respective counsel; anci 
 that each of them, the said A and B, shall pay the fees of his own 
 counsel. 
 
 j^nd that all rates, taxes, and outgoings pavable for or in re- 
 spect of the premises to the day of , shall be paid and dis- 
 charged by the said A, his executors or administrators. 
 
 And lastly, that if the said A sludl not deliver an abstract of his 
 title to the .said B, or his solicitor, before tiie expiration of one 
 calendar month from the date hereof, or shall not deduce a good 
 and marketable title to the said messuages and promises, before the 
 said day of then and in either of the said cases, 
 
 immediately after the expiration of the saiil one calendar month, 
 or the said clay of (as the case may be), this present 
 
 agreement shall be utterly void to all intents and purposes what- 
 soever, and the jurisdiction of equity wholly barred ; it I)eing the 
 true intent and meaning of the parties hereto, that in the event 
 aforesaid execution of this agrconent shall not be enforced by 
 any court of equity, notwitlistanding any rule (if such there be) 
 tliat time cannot be made the essence of a contract, or any other 
 rule or maxun whatsoever (n). In witness, &c. 
 
 (n) Vide suprn, th. 8. sect. 2. 
 
 a -i A provision
 
 8 APPENDIX. 
 
 A provision may also he inserted in agreements^ making time 
 the essence of the contract^ in case the purchase-money is not paid 
 at the day appointed ; but clauses making agreements void if a title 
 is not iJiadCy or the pur cJtas e-money paid by a stated time, should 
 never he inserted unless it be the express intention of tlie parties. 
 Where time is not deemed material, clauses to the following effect 
 sJiould be inserted : 
 
 That the said B and his heirs sliall have, receive, and take tlie 
 rents and profits of the said mcssuafres and premises, from the 
 day of next, for his and their proper use. 
 
 And that if the said conveyance shall not be executed by the 
 •necessary parties, and the said purchase-money paid on or before 
 the said day of then and in such case the said B, his 
 
 heirs, executors, or administrators, shall from the same day 
 
 of pay interest for the said purchase-money unto the said A^ 
 
 liis executors or administrators, after the rate of per cent, 
 
 per ann. 
 
 No. VII. 
 
 Eratt V. Ellis (o), C. B. Mich, and Hil. Terms, 45 Geo. III. 
 
 JoHM GooDwix being indebted to Ellis, the defendant, an 
 auctioneer, deposited the title-deeds of sonic houses with him, as 
 a security ; and gave him a written authority to sell them by auc- 
 tion, at any time before Midsummer, 1803. They were accord- 
 ingly put up at Garraway's ; and not fetching the sum expected, 
 they were bought in by Goodwin. Ellis not being paid, put up 
 the houses again in September, 1804, under the usual conditions. 
 The plaintiff was declared tlie highest bidder at 315/.; paid a 
 deposit of 151. and signed an agreement to complete the contract. 
 The defendant delivered possession to the plaintiff, who expended 
 about 10/. in repairs ; and the defendant sent the deeds to the 
 plaintiff's attorney, who approved of the title, and prepared a 
 conveyance ; and the defendant undertook to procure Goodwin 
 lo attend and execute the deed. Goodwin, however, upon being 
 applied to, refused to complete the contract, which was made 
 without his authority. The plaintiff brought tlie present action 
 
 (o) Vide supra, p, 36. 
 
 to
 
 APFEXDIX. 9 
 
 to recover the deposit money and interest, and the expense of 
 perusing the abstract, preparing the conveyance, &c. ; and the 
 damages the plaintiff had sustained by losing such a good bar- 
 gain. The plaintiff gave 315/. for the houses and a surveyor, 
 examined on his behalf, proved that they were worth 751/. The 
 defendant suffered judgment to go by def.ult. Ujion the execu- 
 tion of the wi-it of inquiry of damages, the defendant's counsi I 
 admitted, that he was liable to repay the deposit, v.ith interest, 
 and fair expenses incurred in investigating the title, &c. But as 
 it appeared by the declaration that the defendant was onlv au 
 auctioneer, and Goodwin was the owner, he insisted that the do 
 fendant was not answerable for the difference of value. Tlie she- 
 riff, in his charge to the jury (which was specially summoned) , 
 said, it was admitted on all hands, that the deposit and interest, 
 and expenses, must be paid to the jjlaintiff. With respect to the 
 demand for the loss of the bargain, he thought, that the demand 
 was recoverable ; for the defendant had admitted that he had 
 sold the property without authority; but the amount of the 
 damages was in their discretion. They would consider whether 
 it would have sold for 751/. If they beUeved the surveyor, it 
 wouM be quite competent to give the whole, or what they 
 pleased. The jury returned a verdict for 350/. being upwards of 
 250/. as damages for loss of the bargain. The court of Common 
 Picas, however, granted a rule to shew cause, whv the writ of 
 inquiry should not be set aside, and the dei'endant let in to plead 
 in the action, upon paying into court the deposit money, and in- 
 terest, and on payment by the defendant to the plaintiff of hi-^ 
 costs occasioned thereby, together with his costs of the present 
 application. Upon shewing cause, the court made the rule abso- 
 lute; on payment to the plaintiff of tlie deposit, with interest, the 
 costs of investigating the title, and the costs of the action, as 
 betzceen attorney and client. 
 
 No. VIII. 
 
 Jones V. Dyke and others (p), Hereford summer assizes, cor. 
 Macdmald, C. B. 
 
 The circumstances of the case were shortly these. Some estates 
 in Wales having been advertised for sale, the plaintiff came to 
 
 (p) Vidt tnpra, p. SO. 
 
 tOWTli
 
 10 APPENDIX. 
 
 town, and after some treaty with the defendants, wlio were the 
 auctioneers employed, lie agreed to purchase the estate in question, 
 at .^975, and it was agreed that he was to pay the deposit in nine 
 days, and to give his note for it at that date, which he accord- 
 ingly did. Tuchin, one of the defendants, l)y the desire of his 
 partner Dyke, gave the plaintiff a receipt for the deposit, and 
 signed a printed particular, which together amounted to an agree- 
 ment in writing. 
 
 In a few hours after this transaction, Dyke and Tuchin called 
 on a friend of the plaintiff's to acquaint him that they had just 
 received a letter from Wales, stating that the estates were sold for 
 more money, and requesting the })articular and receipt to be re- 
 turned ; and the plaintiff refusing to relinquish the agreement, and 
 having immediately returned to Wales, they by the next post 
 S3nt to him his note of hand, and a particular signed by him, both 
 of which he instantly returned. 
 
 The ^100 was tendered in payment of the note, and refused : 
 the residue of the purchase-money was prepared in time, and 
 deposited at a banker's. 
 
 The plaintiff filed a bill in equity against the owner of the estate, 
 and his trustees for sale, who denied the authority of the defen- 
 dants to sell, in consequence of which the plaintiff was advised to 
 dismiss his bill. 
 
 The plaintiff then bro\ight an action against the defendants, in 
 which he proved by two witnesses that the estate purchased was 
 worth ^2117. 10.S. so that he lost upwards of .s£ll 40 by breach of 
 the agreement. 
 
 It appearing that the defendants had no authority to sell, the 
 plaintiff had a verdict by consent, for 261/. the Judge thinking the 
 items of which that sum was composed reasonable, but the plain- 
 tiff did not obtain any damages for the loss of his bargain. 
 
 The sum of .3^261 was thus made up : £ > s. d. 
 
 Costs of the plaintiff's solicitor ------- 47 19 4? 
 
 Costs of the trustees in equity, about --___ 30 00 
 Interest of £975 from Apriri804 to Aprill807, - 146 5 
 Journies to London and Llandilo, about 20 days, ) oi n n 
 
 horse-hire and travelhng expenses j ^ 
 
 Journey to London -- _ 15 15 
 
 260 19 4 
 No.
 
 APPENDIX. 11 
 
 No. IX. 
 
 Wi/att V. Allan {q\ Reg, LW. B. \lTi,fl 5T6. 
 
 The bill was filed by Wyatt, charging that he, as agent lor the 
 defendant Allan, purchased an estate by auction, but that the 
 defendant having denied the commission, lie himself was forced to 
 complete the purchase. The purchase-money was it'435. The 
 defendant by his answer denied that he employed the plaintiH' to 
 purchase the estate. 
 
 The Chancellor chrected an issue to try the fact, and that if tlie 
 jury found that an authority was given to Allan, they shoidd in- 
 dorse on the postca to what amount such authority cxtcndeil. 
 The jury found that Allan did give an authority to the extent of 
 j6'400. Upon the cause coming back on the equity reserved, the 
 defendant was ordered to pay the plaintiff the ^400. and the 
 plaintiff was to assign the estate, and the defendant was to pay the 
 costs both at law and in equity. 
 
 No. X. 
 
 Sir John Morsficad and others v. Fredcrielc (r), and olhers. C h. 
 9.0th February, 1806. 
 
 Certain estates of the late Sir John Frederick were devised ((• 
 trustees upon trust, by mortgage or sale thereof, to raise 34,00(V. 
 for the benefit of his two daughters. Lady Morshcad and Mi^s 
 Thistlethwayte. Part of this estate consisted of a house in the 
 occupation of Smith, Payne and Smith, the Bankers. In 1751 a 
 ground lease of this house was granted for sixty-one years, at ^QI. 
 a year. The representative of the lessee assigned the lease to 
 Smith and Company, subject not only to the original groiuid-ront 
 of 56/. a year, but also to an additional rent of 210/. A bill wa^ 
 filed for carrying the trusts of Sir John Frederick's will into exe- 
 cution. With the approbation of all parties, the house in ques- 
 tion was offered for sale, and represented as subject to the ground 
 lease at 56/. a-ycar. Smith and Company employed an auctioneer 
 to enter into a treaty with the plainlilf 's solicitors for the pur- 
 
 (y) Vide supra, p. 37. ('•) Vide sufra, p. r,0. 
 
 rhnic
 
 1^ APPEXDIX. 
 
 chase of the house, and he was Informed hy them that it wag sub- 
 ject to the lease at 561. a-year. The auctioneer vahied the house 
 as being subject to the lease, and to no other rent, diarge, or in- 
 cumbrance, at 6150/. and verbally agreed with the plaintiffs soli- 
 citors for the purchase by Smith and Company of the house at 
 that Sinn : the contract was referred to the master, who ap- 
 proved of it, and by an order in the cause, Smith and Company 
 were directed to pay the purchase-money into court, to the credit 
 of the cause, and it was ordered that they should be let into re- 
 ceipt of the rents from the last quarter day. The title was ap- 
 proved of on behalf of the purchasers, and the money was paid 
 into the bank according to the order. A few months afterwards, 
 and before the conveyance was executed, application A\as made to 
 Smith and Company for payment of the rent of 210/. to the per- 
 son entitled to it. Upon this, Smith and Company insisted upon 
 an abatement in the purchase-money, which the plaintiffs would 
 not accede to. A motion was then made to the court by Smith 
 and Company, that the money paid into the Bank might be 
 repaid to them, and the contract for the purchase of the house 
 rescinded. In support of this motion, the auctioneer swore, that 
 he valued the house as subject to the 561. a year only, and that 
 he Avas ignorant of its being subject to any other rent or outgoing. 
 The solicitor for Smith and Company swore, that no notice was 
 taken in the abstract of the lease, by which the 210/. a year was 
 reserved. One of the bankers swore, that when the money was 
 paid into the Bank, and when tlie valuation was made, he and his 
 partners believed thatthe auctioneer had been made fully acquainted 
 with all the charges, whether consisting of rents or otherwise, which 
 in any ways affected the house ; and that his not being made ac- 
 quainted with the rent of 210/. was occasioned by some undesigned 
 omission or mistake. 
 
 In opposition to these affidavits, the solicitor of the plaintiffs 
 swore, that he had been in receipt of the rent of 56/. a-vear nearly 
 thirty years, which had been paid by Smith and Company since 
 1797, and that he had never heard that the house was ever granted 
 by any under lease, or was made subject to any other rent than 
 the rent of 56/. until long after the sale to the bankers. And that 
 upon enquiry he found, that the rent of 210/. had been paid by the 
 hankers themselves ever since they jmrchased the lea^e. 
 
 The motion came on before Lord Eldon, who expressed an 
 opinion in favour of the piu-chaser's right to rescind the contract, 
 
 but
 
 AI'PEXDIX 13 
 
 )iut (11(3 not decide tlie ])oint. It alierwards came before Lord 
 Erskine, who held this to be a proper case for the interference of 
 equity, on the ground of mistake, and accordingly granted the 
 motion. Tlie circumstance of both rents 1)eing payable by the 
 purchasers, his Lordship thought immaterial, as it appeared, that 
 they had not communicated that circumstance to their broker, and 
 the magnitude of their concerns might easily account for the omis- 
 bion. It could not be imagined, that any man would Millingly 
 conceal such a fact from a broker employed by him to value any 
 property he wished to piu-chase ; and it was ecjually al^surd to 
 suppose, that if a broker, in valuing any property, was ignorant 
 of the existence of an additional r«nt of iiOO/. no relief lay against 
 such a mistake in a court of equity. 
 
 No. XT. 
 Ex-parte Tomkins (s) L. I. Hall^ 23(1 August, 1816, 
 
 A mortgagee obtained an order for sale of the estates under a 
 bankruptcy. The assignees, without leave of the court, a])})ointea 
 several puffers to bid, and two lots were knocked down to them. 
 Lord Eldon determined that they must be held to their bargain, 
 although they swore that they believed there was no real bidder. 
 And in answer to an application, that if there should prove to be a 
 real bidder, the assignees might only be compelled to pay the price 
 which he bid, the Lord Chancellor said, that although it was a 
 hard case, they must pay the sum at which the lots were kn(x:kcd 
 doAvn. The order was for a salCf and they were not authorized 
 to buy the estate in ; their biddings might have prevented die 
 estate from selling to a honajide bidder, and it was impossible for 
 the court to say that the estate would net have fetched more than 
 the last real bidding, if the puffer appointed by the assignees had 
 not afterwards bid. A majority of the creditors in such a case 
 could not bind the rest, and if assignees choose to act, they ought 
 to procure an indemnity from the creditors. 
 
 No. XII. 
 
 Observations on the AnnuHtj Act (/). 
 
 To this passage a note was added in the last cditum, in which it 
 was contended, that the 17 Geo. 3, c. 26. ctuumonly called tin- 
 Annuity Act, extended to money considerations only, notwiih- 
 
 (s) Ktdc mpray 1).(J0. (0 Hdc tup, a y.'lV.K 
 
 s(;ii\dliig
 
 l-t APPENDIX. 
 
 slandiiig the case of Crosly v. Arkwrlght, 2 Term Re]}. 003. The 
 authorities relied on, were Crespigny v. Wittenoon, 4 Term Rep. 
 790 ; Hutton v. Lewis, 5 Term Rep. G'39 ; Ex parte Fallon, 5 
 Term Rep. 233 ; and Horn v. Horn, 7 East, 529; to ^vhich might 
 be added. Doe v. Philips, 1 Taunt. 356. But the point is not 
 now of much importance. The decisions under the Amuiity Act 
 had gone far beyond the letter, and in many ca^es even beyond the 
 spirit of the law: and perhaps there was not any act in the statute l)ook 
 on which so many cases had been decided within any thing like the 
 same space of time. The expense of the memorial was veiy c(m- 
 siderable, and the effect of the decisions, by increasing the risk of 
 the transaction, drove fair purchasers out of the market, and lowered 
 the price of hfe annuities : first, because the number of buyers was 
 small ; and secondly, because the purchasers required to be paid 
 not only the common rate of annuity interest, but also the value 
 of the risk of the transaction being void under the act. The An- 
 nuity Act, after having been 85 years in operation, was repealed by 
 the 53 Geo. 3, c. 141, except as to annuities granted before 
 the passing of the repealing statute ; and other provisions were 
 substituted in lieu thereof. 
 
 The first section repeals the old Act. 
 
 The second section requires that within thirty (In tlie old act 
 it was twenty) days after the execution of every deed, bond, in- 
 strument, or other assurance, whereby any annuity or rent charge 
 shall, from and after the passing of the Act, be granted for one 
 or more life or lives, or for any term of years, or greater estate 
 determinable on one or more life or lives, a memorial of the date 
 of every such deed, bond, instrument or other assurance, of the 
 names'of all the parties, and of all the witnesses thereto, and of the 
 person or persons for whose life or lives such annuity or rent charge 
 shall be granted, and of the person or persons by whom the same 
 is to be beneficially received, the pecuniary consideration or con- 
 siderations for granting the same, and the annual sum or suras to 
 be paid, shall be em-oUed in the High Court of Chancery, in the 
 form or to the effect following, with such alterations therein as the 
 nature and circumstances of any particular case may reasonably 
 require : otherwise every such deed, bond, instrument, or other 
 assurance, shall be null and void, to all intents and purposes. 
 
 FORM
 
 APPENDIX. 
 
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 The
 
 16 APPKXDIX. 
 
 The great object of this provision was to give pubhcity to the 
 transaction, and at the same time to avoid unnecessary expense 
 t" the grantor ; and by the siniphcity of tlie memorial to .a\x»id if 
 |X)ssible future litigation. As the Act passed the House of Com- 
 mons, the memorial was required to contain only f<;ur things, viz. 
 1. the date of the grant; % the name of the grantor; 3. the 
 name of the person by whom the annuity was to be beneficially 
 received; and 4. the amount of the annuity. The statement of 
 the consideration was omitted, lest it should open a door to the 
 inischiei's which the Act was intended to guard against. The 
 schedule stands as it was amended in the House of Lords. The 
 nature of the instrument is required to be stated, to which there 
 can be no particular objection, although it is not mentioned in tlie 
 body of the Act. The next amendment substitutes the names of 
 the parties for the name of the grantor. This seems open to ob- 
 jection, for in many cases it may not appear who is the grantor : 
 for example, if Richard is possessed of a lease in trust for Ed- 
 ward, and Edward sells an annuity to Frederick, the deed would, 
 in the ordinary course, be made betv^'een Richard of the first part, 
 Edward of the second part, and Frederick of the third part, and 
 tlius the memorial would stand ; from whieli it would be inferred 
 that Richard and not Edwai'd was the grantor. The provision 
 hi the Act, as it passed the House of Commons, was not open to 
 this objection. The third column requires the names of the par- 
 ties simply to be stated, and does not seem to require their addi- 
 tions to be inserted, but in the next column where the names of 
 tlie witnesses are required, a blank is left in tlie example, mani- 
 festly for the addition, " E. F. of ." In complying 
 with both these requisitions, the additions of the Mitnesses 
 should be inserted, and this seems to be expressly required in 
 the latter instance. -^t would be prudent also to state to which 
 ^^ I of the several executions they were witnesses ; the additions 
 
 
 should also be inserted in the 5th and 6th columns, and if the 
 annuity is granted for two lives, and the life of the survivor, 
 or the hke, the fact should be stated in the 6th column. ) An- 
 
 , , — — , ~ . _- 
 
 ^Zy^ /A other amendment requires the statement of the consideration 
 
 and how paid. The latter words it was at first thought might 
 be understood, in what mannery which would lead to all the 
 inconveniences intended to be remedied, but it now eeems 
 
 '^*^^*^ t^J \ agreed, that the words are nol open to that construction : the 
 meaning is that the .amount of the consideration shall be stated, 
 
 and
 
 APPENDIX. JiJ 
 
 And^vlisther paid ia money, notes, l)ills, Sec. This is clear rio*m^ 
 tlie explanation in the Act ; it need not therefore be stated by or 
 to whom the money was paid, and there is now no exception to 
 the rule, that a payment by an agent is a payment by the princi- 
 pal. It is observable that the amendment requires the pecuniary 
 consideration or cimsiderations to be stated. Perhaps it es,-aped 
 observation, that the Act extends as well to annuities granted for 
 money's worth, (e. g. an estate or good will of a trade,) as for 
 money, but as the act stands, it is clear that none but money c<jn- 
 Kiderations need be stated in the memorial. The form of the me- 
 morial is the only part of the Act in which any substantial amend- 
 ment was made in the House of LordsT^ _, , _ 
 
 The third section provides, that iT^iy such annuity shall be 
 granted by, or to or f(^r the benefit of any conijianv exceedino- in 
 number ten persons, which company shall be formed ibr the pur- 
 pose of granting or purchasing annuities, it shall be sufficient in 
 any such memorial to describe such company by the usual firm or 
 name of trade. 
 
 The fourth section enacts, that in every deed, bond, instrument, 
 or other assurance, v»hereby any amiuity or rent charge shall, 
 from and after the passing of this Act, be granted or attemjned 
 to be granted, for one or more life or lives, or for any term of 
 years, or greater estate detenninable on one or more life or lives, 
 M'here the person or persons to whom such anriuity shall be granted 
 or secured to be paid, shall not be entitled thereto beneficially, 
 the name or names of the person or persons who is or are intended 
 to take the annuity beneficially, shall be described in such or the 
 like manner as is hereln-before required in the enrolment; other- 
 wise every such deed, instrument, or other assurance, shall be null 
 and void. 
 
 The object (jf this provision was to prevent one ])orson from 
 .secretly buyhig an annuity in the name of another. It was thought 
 right that the grantor should know with wiiom he was dealing: in 
 all other respects, an annuity deed vi now plaivii on the same 
 footing with other deeds, 'i'his is a great junnt gained. li" the 
 consideration is monev, it niu.st be conectly stateil under the last 
 stamp act; if it is stated as a money consideration, and anv pait is 
 paid in goods, the annuity, as we shall presently see, mav be set 
 aside. 
 
 The fifdi section enables the grantor to obtain a coj)y of the 
 deeds by a Judge's summons. 
 
 The sixth section enacts, that if any part of the cuniideration 
 
 b tbr
 
 18 AITKKDIX. 
 
 for tlic purchase of any such annuity "i' rent cliarf^c, shall he re- 
 turned to the person aclvauc"inc» the same, or in case sucli consi- 
 deration, or any part of it, shall be paid in notes, if any of the 
 notes, Avith the privity and consent of the jierson advancinc^ the 
 same, shall not be paid when due, or shall be cancelled or de- 
 stroyed without being first paid ; or if such considerut'ton is cx- 
 j)ressed to be paid in moncij^ hut the same or anij juirt of It .shait 
 be paid in goods ; or if the consideration or any part of it shall be 
 retained, on pretence of answerlni; the future jiayments of the an- 
 nuity OY rent charge, or any other pretence ; in all and ever)^ the 
 aforesaid cases, it shall be lawful fin- the person by whom tlie an* 
 nuity or rent charge is made payable, or icJiose property i# liable 
 to be charged or ajf'ected thcrehij, to apply to the court in Avhieh 
 any action shall be brought for payment of the annuity or rent 
 charge, or judgment entered, by motion, to stay proceedings on 
 the action or judgment, and if it shall appear to the court that such 
 practices as aforesaid, or any of them, have been used, it shall and- 
 may be lawful for the court to order every deed, bond, instrument, 
 or other assurance, whereby the annuity or rent chai'ge is secured, 
 to be cancelled, and the iudfjment, if any has been entered, to be 
 vacated. ^ -^^^^ ^ ^^JL, ^ .^U^ ^.^ • :^^^ 
 
 This is similar to a provision in the old Act, with/the addition 
 of the words in italics, and the power is enlarged to cancel every 
 security for the annuity. 
 
 The seventh section provides, that a book shall be kept for the 
 enrolment of the memorials, 20*. to be paid for the entry of the 
 memorial, l.y. for every certificate of entry and copy, and 1*. for 
 every search. 
 
 The eighth section renders void contracts with infants, and the 
 lalnth punishes brokers taking beyond ten shillings per cent, for 
 brokerage. These provisions are copied from the old Act. 
 
 The tenth and last section enacts, that the Act shall not extend 
 /<) Scotland or Ireland^ nor to any annuity or rent charge given 
 by will or by marriage settlement, or for the advancement of a 
 child, nor to tniy annuity or rent charge secured WYionJ'reehold or 
 copyhold or customayy lands, in Great Britain or Ireland, or m 
 any of His Majesty''s Possessions beyond the Seas, of equal or 
 greater annual value than the said annuity, over and above cmy 
 other annuity, and tJ{e interest of any principal sum charged or 
 secured thereon, of ivhicJi the grantee had notice at ifie time of the 
 grant, whereof the grantor is seised in fee simple or fee tail in 
 possession, or the fee simple whereof in possession, the grcmtor w 
 
 enabled
 
 enabled to charge at the time of the grant, or secured by the nclual 
 transfer of stock in any of the public lands, the dividends where- 
 of are of equal or greater annual value than the said annuity ; nor 
 to any voluntary annuity or rent charge, granted v/uhout regard 
 to pecuniary consideration or money's worth; nor to any annuity 
 or rent charge granted by any body corporate, or under any au- 
 thority or trust created by Act of Parliament. 
 
 This is copied from the old Act, with the additions in italics ; 
 the additions require lio explanation, and I believe meet all the 
 questions which arose on the provision in the repealed Act. The 
 provision in the old Act, which excepted out of its provisions, an- 
 nuities not exceeding 10/. Avas not inserted in the new one. The 
 practice with professed money lenders, was to split the considera- 
 tion into several parts, and make the man wanting the money- 
 grant 10/. annuities to different persons, to the amount agreed 
 upon. By this plan they increased the exjK'nses of the grantor 
 to a considerable amoimt, and at the same time avoided giving 
 pubhcity to the transaction. 
 
 In considering the operation of tlie new Act, it will be necos- 
 sary for the reader te keep in view the circumstance, that it extends 
 to annuities, although not exceeding 10/. and also embraces annui- 
 ties granted for money's worth. >^ J^ '^tt^ <^<^-^^^ ^^lu. j>**-i^^ ^ ^<-.t-* 
 
 No. XIII. 
 
 Cousfmaler v. Sexacll (u), Ch. 4:th May, 1791. 
 
 In this cause it was referred to Master Greaves, to tee if a 
 good title could be made to the estate in question. /\n abstract 
 was dehvered. It appeared by it, that William Perkins, an ances- 
 tor of the vendor, had made a settlement of liis estate in the year 
 1705; but! neither the settlement itself, nor any copy or abstr;vct 
 of it, could \yo produced, and the contents of it were totally uiv- 
 known. In 1751 a fine was levied by JMr. Perkins and his eidist, 
 son; and in 17C0 a recovery was suffered, in which Mr. JVrkins 
 and his second son (the eldest »o\\ b.eing then dca<i) joined in mak- 
 ing a tenant to the precipe^ and the second .son was vouched. 'J'he 
 estate was mortgaged in 1759, and tlie title was then apjiroved of 
 by Mr. Serjeant II UU a"^ ^^'^^"^ t'^c Avording of his oj)inion, it was 
 
 (u) Vidt ntpra, p. 20^ 
 
 b 2 colJtfcWd,
 
 go APPENDIX. 
 
 collected, that the settlemont of 1705 was then before him. Sup- 
 posing the Kmitations in the settlement of 1705 to have bten to 
 the sons of that marriage successively in tail male, those estates 
 tail, and the remainders expectant upon them (if any) were com 
 pletely barred by the fine and recovery. 
 
 The counsel for the purchaser objected to the title, on the 
 ground that the deed of 1705 was not produced, and that it might 
 contain limitations which were not barred by the fine and recovery ; 
 and might have created charges to which tlJe estate still continued 
 subject. 
 
 These objections were laid before the master; and the vendor 
 not acquiescing in them, they were argued before him. The 
 counsel for the purcliaser avowed his client to be an unwilling 
 purchaser, and stated his objections with great perspicuity and 
 ability, and required of tlie master, that if he did not think the 
 title such as a court of equity was warranted to force on an unwU- 
 ling purchaser, he should not report in favour of it. The original 
 opinion of Mr. Serjeant Hill could not be produced, and the Ser- 
 jeant had net that i-ecollection of what was before him at the time 
 he gave the opinion, as enabled him to say that he had seen the 
 settlement. Much stress was not, therefore, laid upon the opinion. 
 On the 21st February, 1791, the master made his report, in which 
 he stated, that he had seen the opinions given by Mr. Serjeant 
 Hill, and by Mr. Shadwell, the purchaser's counsel ; and that, 
 considering the circumstances of the case, and the length of the 
 possession since the recovery, he was of opinion a good title might 
 be made. To this report the purchaser excepted, and the excep- 
 tions were argued before the Chancellor on the 4th May, 1791, 
 by Sir John Scott, Avith great earnestness ; but the Chancellor 
 overruled them, and tlie report was confirmed. 
 
 No. XIV. 
 
 Clay V. Sharpe, Ch. Mich. Term, 1802 {x). 
 
 By indenture, bearing date the 28th of November, 1798, and 
 Xnade between Thomas Wardell of the first part, George Taylor 
 and Ann his wife of the second part, E. Day of the third part, and 
 William Sharpe of the fourth part, certain leasehold estates were 
 
 (jr) Vide tufra, p. 301. 
 
 assigned
 
 APPK XiJI^. 21 
 
 assigned unto the said Edward Day, his executors, adniinistrators, 
 and assiojns, subject to a proviso or condition for redemption, upon 
 Wardeli's transferring into tlie name of Day, his executors, admi- 
 nistrators, or assigns, 52,000/. o {xt cent. consf;li(hitrd hank annui- 
 ties. And it was by llie indenture agreed, that if defauk should 
 be made contrary to the proviso or condition of redemption, it 
 should be lawful for t!ie said defendant Edv/ard Dav, to sell the 
 said leasehold promi>'es for the best price that could be reasonably 
 gotten for the same ; and to reimburse himself the costs, charges, 
 and expences, relating to such sale; and afterwards to i-e-purchase 
 the said 2,000/. 3 })er cent, consolidated bank annuities, or such 
 part thereof as should remain due, cruntransferred; and the over- 
 plus of the m<mies to arise by the said sale, if any, to pay to the 
 said Thomaii Wardell, his executors, administrators, or assigns. 
 And the said Thomas Wardell did, by the said indenture, cove- 
 nant, that in case of any sale pursuant to the power aforesaid, he 
 the said Thomas AVardell, his executors or administrators, would 
 join and concur therein, and execute any assigimient to the pur- 
 chaser or purcliasers of the said premises, with the usual covo>. 
 nants for the title thereto ; or do any reasonable act confirming 
 such sale. lUit that nevertheless it should not be necessary that 
 the joining of the said Thomas ^Vardell in any sucli sale or con- 
 veyance, should be essential to perfect the title, the same being in- 
 tended only for satisfaction of such purchaser or purchasers. 
 
 Default was made in transferring the stock, and Day, who was 
 a trustee, by Sharpe"'s directions, put up the premises for Bale by 
 public auction, at which sale the ])hiintiff' becan'.c the purchaser. 
 
 The plaintiff's attorney prepared a draft of the assignment, in 
 which he made Day the mortgagee, Slinrpc the cestui que trusty 
 and Wardell the mortgagor parties; but Wardell the mortgagor 
 having refused to execute the assignment, the plaintiff filed Jiis 
 bill against Day, Sharpe, and AVardell, for a specific perroimance 
 of the coiitract for sale. 
 
 To. this bill the defendants put in their answers, and \\'ardell 
 staled that he resisted the sale, as having been made without his 
 consent, and at an under vaKie ; but before any proceeilings were 
 had, Wardell became a bankrupt, and in conseqvicnce thereof, a 
 supplemental bill wai filed against his atsignccs. 
 
 The cause coming on to be heard the 15th of Novetnber, l.SO^\ 
 the Chancellor decreed that the jjlaintiff's bills should l)c dismissed 
 as against the defendants, Thomas Wardell, and hi.s assignees, 
 with costs, to be tiucd by the master. And it was also decreed, 
 
 b 3 that
 
 22 APFKNDIX. 
 
 that tlie agreement entered into i)y tin- plaintiff with the defend- 
 ants \\'illiaui Sharpe and Edward Day, for the purchase uf the 
 premises in (juestion, f.liould he carried into execution. And that 
 upon t)ie plaintiffs paying nnto the- said defendants William Sharpe 
 anil Edward ])ay, the residue of the purchase money for the pre* 
 mises, the said defendants siioidd execute an assignment of the 
 lease of the said premises to the plaintiff, or as lie should aj)point. 
 And that the defendants Sharpe and Day, should pay to the plain-^ 
 tiff his costs of the said suit, so far as the bills were not dismissed, 
 as therein before directed, to be taxed by the Master, in c^se tliQ 
 parties differed abput the same. 
 
 No. XV. 
 
 Belch V. Harvey (?/), Ch. Mich. 9 Geo. II. 
 
 This cause was veiy long and intricate ; but the chief questioft 
 was, what length of time Avould bar an equity of redemption ? 
 And as to that point, Talbot, Lord Chancellor, said that courts of 
 equity had of later years generally adhered to tlie time laid down 
 in the statute of limitations with regard to ejectments, and that it 
 "was certainly right to have fixed rules in equity as well as law, that 
 people might know how far their property extended, and where it 
 was bovn^d ; and that he did not know any more reasonable nde 
 in general, than what the legislature had prescribed for such pos- 
 sessory actions. The person claiming the equity of redemption 
 offered some proof out of the Ecclesiastical Court, to show she was 
 an infant at the time of her marriage, which was not allowed to 
 be read, and other proof that the marriage continued for many 
 years, both w hich, taken together, would excuse the non-redem]>- 
 tion for a long time ; but my Lord Chancellor gave her liberty to 
 file an interrogatory to prove her infancy at the time of her mar- 
 riage, if she could ; and said, he would then consider whether 
 equity had also followed the statute of limitations in allowing only 
 ten years for infants andjcmes coverts to commence tlieir suits after 
 the imperfections removed, for he did not reraember the court liad 
 pursued that part of the statute ; and ]\Ir. Veniey, king's counsel, 
 cited the case ci Brexccr and BuTxcrsirau-y which he believed to be 
 about five years ago, where the father mortgaged some chambers 
 
 (y) Vide supra, p. 321. 
 
 in
 
 ATTEVDIX, 23 
 
 in Gray''.s Inn, and died, Icavino- his son an infant, durinc; v.liic-h 
 time many years avcix- SMved ; and yet nineteen years alter he r^as 
 ■come of age he was permitted to redeem. ]^ut to this ?,Ir. Faz;i- 
 kerly answered, there was ns much reas(m lor ohserving it m the 
 •one case as the other; and that, in the presi'ut case, tl-.irfccn 
 years had passed l)etween tlie death of the hnshand ami the bill 
 filed for a redemption. Tins was on a su})jK)sit:on she could prove 
 her infancy at the time of her marriage ; for if she was then of 
 full age, my Lord Chancellor said, the time woukl attach and run 
 out against her, notwithstanding the subse(juent marriage, and then 
 she would be put off from all possibility of relief, for dicre would 
 be near forty years possession against her unaccounted for. By 
 Btatute 21 Jac. 1, ch. 16, persons having any right or title of entry 
 must enter within twenty years after titles accrued ; but the title 
 of infants, Jemcs covert, &;c. are saved, so as they commence their 
 suits within ten years after the imperfection removed. 
 
 This cause coming on again the .?ame term, was ended by 
 consent of the parties: but Lord Chancellor Talbot sjxjke, how- 
 ever, in this case to this effect : A jx'aceable and quiet possession for 
 a long time weighs greatly with me in all eases. The foundation 
 which the court goes on in cases of the like nature with the pre- 
 sent, is not anv presumption, that after a long space of time the 
 party has deserted his right ; but to quiet and secin-e men's ]K)*. 
 sessions, which is very reasonable to be done after twenty vears 
 time, without some very particular circumstances : and for this 
 cause a court of equity has generally acted in conformity to the 
 statute of limitations. Whether the present plaintiff was an in- 
 fant at the time of her man-iage, is to me very doubtful ; but 
 taking it she was then an infant, as the court has not in general 
 thought proper to exceed twenty years, where there was no disabi- 
 lity, in imitation of the first clauses of the statute, so if I had been 
 forced to have made a decree in the present case, I should have 
 been of opinion, that after the disability removed, the time fixed 
 for prosecuting in the ])roviso, which is ten years, should also Jiave 
 been o})scrved : for the proviso containing an exception of si vera! 
 cases out of the pur\-iew of the statute, if the parties at law would 
 avail themselves by the proviso, they must take it undir such re- 
 strictions as the legislature hath annexed to it, and that is, to sue 
 within ten years alter the im[)cdiment cea.ses. AVhy should not 
 the same rule govern in equity ? I think there is great reason that 
 it should. The jx-rsons who are the subject oi the proviso aro 
 not disabled from suing, tliey are only excused from the necessity 
 
 b 4 of
 
 24 Al'l'KNDIX. 
 
 of (loincj it (luring the conlimiaiice ol" a legal impediment; iliere- 
 Jbre when that cliilieiiity is removed, and no l;(Kiy can say Uuw 
 long it niav last, the time allowed after such impediment removed 
 for their further proceedings should be shortened. If they woiild 
 excuse a neglect under the first part of the proviso, should they 
 not do it upon the terms such excuse is given ? If I had given my 
 opinion on this case, I should have dismissed the bill. 
 
 No. XVI. 
 
 The Kinff agnimt John Smith, Esq. (a) Serjeant''s Inn IlalU 
 March i^, 1804. — The judgment of the Courts as delivered by 
 ■ the Lord Ch\ef Baron. 
 
 This case of the King against Smith has occupied a great deal 
 of tire attention of the court, and that in a great degree owing to 
 the prodigit)usly extensive consequences that it may have accord- 
 ing as it is decided in the one way or the other. We were there- 
 fore anxious to search in order to find out what materials existed 
 on the subject. After all the pains we could take, we find them 
 to be but lew. We have found no decision or authority similar 
 in its terms to the present case; and the consequence of that is, 
 Avhcre we can find principles laid down, we must be governed by 
 them in the absence of every direct precedent on the subject. The 
 magnitude of the question is veiy considerable, because, on the 
 one hand, from some instances of persons in the service of govern- 
 ment, and who have been entrusted with the public money, I have 
 experience enough to say, that tlie ingenuity exercised by them 
 may be such as not to make it very difficult to avail tliemselves of 
 their situation, and to render it no easy matter to make therii re- 
 sponsible ; on the other hand, it puts those who make purcluiscs 
 from persons in such a situation in a very unpleasant and precarious 
 situation, if the lands or gtjods so purchased may be extended. In 
 this view the question is of vei-y great importance. The stake in 
 the present instance is next to nothing ; but the decision will be 
 such as will govern multitudes of cases that exist, and I believe 
 many to exist of the same soi't. 
 
 This case arises on an extent that was Issued against John Mon- 
 tresor, Esq. late engineer in the service of government, in Nordi 
 America, who owed vast sums to government. It was found that 
 a great balance remained in his hands which he had not accounted 
 
 (o) Vide supra, p. 372, 374, 376. 
 
 for.
 
 ArPENDIX. 25 
 
 for. The extent issued to the sheriiF of Kent — that you diligently 
 enquire what lands and tenements, and of what yearly value the 
 said John I\iontresor had in your bailiwick on the 28th of Sep- 
 tember, in the 18th year of our reign, when tiie said John Mon- 
 tresor first became indebted to us in the said money, or at any 
 time after, in the common lani^uasre. 
 
 ' Oft 
 
 An inquisition is returned of course, and in tlie imiuisition it is 
 stated that the sheriff seized, S;c. 
 
 Without going minutely into all the circumstances of this case, 
 I believe I can state from memory, the leading i'acts upon which 
 the question depends. The property now in question, which con- 
 sists of a small messuage, and of some closes of land, originallv 
 belonged to a Mr. Thompson. He being seised of this property 
 demised it for the fall term of 500 years: the residue of tliis terni 
 was afterwards assigned to Ann. Carter ; and last of all to John 
 Smith, the present defendant, in trust. And in 179o, IMr. Smith 
 purchased the reversion of General jNIontresfjr, he being then 
 seised of this T)roperty in his demesne as of fee subject to this term 
 of 500 years; and at the time of the purchase Mr. Smith, had no 
 notice of any debt that had been incurred by John Monlresor to 
 'the Iving. 
 
 This is the short state of the case, and I believe it is all that is 
 'necessary : and the question then is, whether this outstanding term, 
 which is held in trust for Mr. Smith, does or does not protect him 
 against the claim of the crown. 
 
 The argument on behalf of Mr. Smith, turned almost entirely 
 on the statute of uses in courts of equity, and besides that on the 
 doctrine laid down in Willoughby against Willoughbv, which has 
 never been shaken, and which I hope never will. I take that now 
 to l)e a leading decision, never to be departed from in cases between 
 subject and subject. 
 
 In answer to this case, made on the part of tlie defemlant irre- 
 fragable as between subject and subject, in answer to this case it 
 was argued, tiiat the case of the crown is essentially difliiiiit Irom 
 that of the subject; and as far as we are furnished with light on 
 this subject, it does seem that the case of the crown is essentially 
 different. 
 
 In the first i)U:ce, we find from a variety <»f authorities, that 
 lands or goods in the hands of debtt)rs or accountants to the crown, 
 or in the hands of tho.se who are debtors to the dibiors of the 
 crown, or which are held in trust for Uieni, or to iheii- use, are 
 most clearly the subject of au exttnt. 
 
 Furtlicr,
 
 26 AFPENDIX. 
 
 Further, wc find in PI. Com. 3iil, in tlic great case of the mines 
 in the htuuls of the crown, there was u great number of the king's 
 debtors brouglit into the Court of Exchequer, and there die court 
 lield, that lands which had belonged to the king's debtors, Avhicli 
 had been their property after tliey had so become debtors to the 
 crown, were subject to tlie seizure of the king, into whatever hands 
 they afterwards came, whether by descent, purchase, or otherwise. 
 Aaiong other cases there cited, is that of Sir Wm. Seyntloo, wlw 
 married the widow of Sir Wm. Cavendish, who was treasurer of 
 the liousehold. Sir Wm. Seyntloo and his lady were returned 
 terre-tenants, in right of die Avife, of certain land which was Sir 
 Wm. Cavendish's, and were called into the Court of Exchequer, 
 and made accountable for the arrears due to die queen for Sir Wil- 
 liam's office. See Dyer, 224 and 225. It appears fi'om the case, 
 that after Sir William Cavendish became indebted to the crown, 
 he purchased divers lands, and afterwards aliened them, and took 
 back an estate therein to himself and his wife, and afterwards died 
 without rendering any account, and the terre-tenants (as I have 
 just stated) of the land were charged to answer to Queen Elizabeth 
 for the arrears. These lands might have been seised in the hands 
 of Sir William, and for the same reason they might be seised iiv 
 the liands of every one who came under him. 
 
 In 2 Rol. Ab. 156, the difference is stated between the effect of 
 a sale of land by a debtor to the crown, when that sale took pjaco 
 before he became a debtor, and a sale afterwards. In Dyer 160, 
 there is the case of one Thomas Favell, who was a collector of the 
 15th and 10th. He was indebted to the crown, and being seised 
 ©f certain lands in fee simple, and having divers goods and chat- 
 tels, die introimssionis de collect'ioiw et levatione, of the 15th and 
 10th aforesaid, in extremity of illness aliened his tenements, goods, 
 and chattels to divers persons, and died without heir or executor, 
 and process was issued against the terre-tenants, and possessors of 
 the goods and chattels, to account for the collection aforesaid, and 
 to answer and satisfy the king diereof, &c. ; and this by die advice 
 of the Chancellor of England, and the Chief Justice of England, 
 and the other judges of either bench. It is therefore clear, beyond 
 all doubt, that the land itself may be extended into whatever hands 
 that land may have been ahened. 
 
 The next step which we find in a matter of this kind, is the doc- 
 trine which is laid down in Sir Edward Coke's case, and which is 
 mentioned afterwards by Lord Hale in deciding another case, 
 which I shall state by and by. This case of Sir Edward Coke 
 
 being
 
 APl'EKDIX. 27 
 
 being of great consequence, tho master of the court of wards was 
 assisted by four of the judges in tlie hearing and debating of it; 
 and after many arguments at tlie bar, the said iinu- judges argued 
 the same in court, viz. Dodderidgc, one of the Justices of the 
 King's Bench; Tanfield, Lord Chief Baron of the Exchequer ; 
 Hobart, Lord Chief Justice of the Court of Conmion Pleas; and 
 Ley, Lord Chief Justice of his Majesty's Court of King's Bench. 
 
 First of all I would draw your attention to this point, that diis 
 is an infinitely stronger case tlian any of those I have stated. In 
 general the debtor to the crown was at one time in })()sscssion of 
 the land himself; but in this case the king's accountant never had 
 the land in him, the land and debt never centered in the account- 
 ant to the crown. 
 
 The case in effect was this: — Queen Elizabetli, liy her letters 
 patent, did grant to Sir Christopher Hatton the office of remem- 
 brancer and collector of the first fruits ibr his life, hahnuhtni to 
 him after the death or svuTender of one Godfn-y, who held the 
 said office, then in j)osscssion : Sir Christopher Ilatlon being 
 thus estated in the said office in reversion, and being seised in fee 
 simple of divers manors, lands and tenements, tlid coviiiant to 
 Stand seised of his lands, &c. unto the use of himself for life, and 
 afterwards to the use of J. Hatton, his son, in tail, and so to Ins 
 other sons in tail, with remainder to the right heirs of J. Ilattou 
 in fee, with proviso of revocation, at his pleasure, during his life. 
 Godfrey, the officer in possession, died, and Sir Christoplier Hat- 
 ton became officer, and was possessed of the office, and after- 
 wards he became inde})ted to the queen by reason of the said 
 office; and the question in this great cause was, whether the 
 iganors and lands which were so conveyed and settled by Sir 
 Christopher Hatton, might be extended for the said diht due to 
 the queen by reason of the proviso and revocation In tlu- snid 
 conveyance of assurance of the said manors and lands. The debt 
 due to the queen was assigned over, and the lands wore extended, 
 and the extent came to Sir ]"'.dward Coke; and the heir of Joiin 
 Hatton sued in the court of wards to make void the extent ; and 
 it was agreed by the said four justices, and so it was afterwards 
 decreed by Crantii'ld, master of the court of wmcls, and the wiiole 
 court, that the said manors anil lands were liable to the said 
 extent. 
 
 The judges on that occasion cite a gri>at niimber of cases, and 
 some of them go a great deal farther than I lould have well c.x- 
 
 pcctwL I shaU jiwt mcaUou tw^ vf three of ihcjii, and it will Iw 
 
 unnccttssary
 
 28 A ? P E N' 1) I X. 
 
 unnecessary to state more. One of the cases tlicre cited is, that 
 of Walter de Chirton, customer, who was indebted to the king 
 18,000/. for the customs, and purchased lands with the king's 
 money, and caused tlie feoffor of the lands to enfeoff certain of 
 his friends, widi an intent to defraud and deceive the king ; and 
 notwithstanding he himself took the profits of the land to his own 
 use, and those lands upon an inquisition were found, and the 
 value of them, and returned into the Exchequer, and there, by 
 judgment given by the court, the lands were seised into the king's 
 hands, to remain there till he v,as satisfied the debt due to him ; 
 and yet the estate was never in him ; but because he had a power 
 (to wit), by subpoena in chancery, to compel his friends to settle 
 the estate of the lands upon Ifnn, therefore they were chargeable 
 to the debt. See Dyer, 160. Walter de Chirton, in that case, 
 never was seised of the said lands ; Chirton had no remedy in 
 law to have the lands, but his remedy was only in a court of 
 equity. 
 
 Another case is that of Philip Butler, who was sheriff of a 
 county ; and being indebted to the king, his feofiees were charg- 
 able to the king's debt by force of the word liahuit, for hahuit the 
 lands in his power. In Morgan's case, it was adjudged, that lands 
 purchased in the names of his friends to his use, were extendable 
 for a debt due by him to the king. 
 
 There are several other cases cited in Sir Edw. Coke's case, and 
 which are also mentioned by Lord Hale in the case to which I have 
 already alluded. In a great many of these cases, the lands that 
 were seised for the payment of debts due to the crown had been 
 held in trust for the king's debtors ; and it was no objection that 
 the legal estate was not in them. The ground of decision there 
 was, that they, by an act of their own, might at any time reduce 
 it into possession ; they had it in their power, viz. by a subpoena in 
 chancery, he. to compel their friends to settle the estate of the 
 lands upon them, and therefore they were made chargeable to the 
 debt. 
 
 Tliis being an outstanding term held in trust, it is analogous to 
 all the cases of uses and trusts. It was held there to be no objec- 
 tion, that the legal estate was not in him, because it was in his 
 power, by an act of his own, to reduce it into possession. 
 
 But the case that comes neai-est to the present is that of the 
 Attorney-general against Su* George Sands. 
 
 Upon an information exhibited here, and proceedings upon it, 
 a case was made and stated, vhich was to this effect, viz. Sir 1R. 
 
 Freeman
 
 APPEXDIX. 2Sf 
 
 J*reeman purchased lands for the .term of 99 years, in his own 
 name, and afterwards purchased the inheritance of the same lands 
 in trust, and then by his will disposed of these lands to the sons 
 of Sir George Sands, his grand-children, born, or wliich should 
 be born in his life-time, and directed conveyances to be made ac- 
 cordingly by his trustees, and died. i\t that time Sir Geo. Sands 
 had two sons. Freeman and George, and Freeman died ; and after 
 the death of Sir Ralph, Sir George had another son. Freeman, 
 who killed his brotlier George, for which he was attalnteil and 
 executed, and no conveyances were made by the ti'ustees, pursuant 
 to Sir Ralph Freeman*'3 will ; and the questions hereujx)n were 
 two: 3st, Whether, as this case is, the term lor years was for- 
 feited; 2dly, Whether or no the inheritance in trust was forfeited. 
 
 The result in this case was, that, inasmuch as there did not 
 
 appear to be a tenure, there could be no forfeiture for the felony; 
 
 because to a forfeiture for felony, and to an escheat, a tenure i» 
 
 requisite, and therefore judgment was afterwards given quod dc- 
 
 Jhndens eat inde sine die. 
 
 This case of Sir George Sands is re]X)rted in Ilardi-ess, 488, 
 and also in Freeman. I mention this case with greater confidence, 
 because, though Lord Mansfield, in the case of Burgess against 
 Wheate, 1st Blackst. Rep. 123, observes, in delivering his judg- 
 ment, that it was a family business, and that the circumstances 
 of Sir Geo. Sands' case were compassionate ; yet I have the au- 
 thority of Lord Keeper Henley for saying it was decided on great 
 principles of law. — Having this aiuhority with me at this gl•ea^ 
 distance of time, I conceive it gives it the description I have now 
 mentioned. 
 
 Hale, Chief Baron, says, there is no question concerning the 
 forfeiture of the fee simple in trust, for that must arise by escheat, 
 and there can be no escheat, but pro dcfcctu tenentis. But here 
 is a tenant in esse. If the offence committed had been treason, 
 then there might have been a question, whether the inheritance in 
 this case should be forfeited, in respect that tlie rent and tenure 
 have a continuance. But whether Sir Geo. Sands shall hold the 
 land discharged of the lease, or that the king shall have the term, 
 is the sole doubt. The king does not gain an interest in a trust 
 by forfeiture as he does in debt ; for there the interest of llic bond 
 passes to the king, and process lies to execute it in the king's own 
 name. And it is questionable, whether the king eaii have this in 
 point of prerogative, in case of felony ; though perhaps more 
 might be said, if the case had been treason. It is the intention of 
 
 the
 
 3(J Appendix. 
 
 the party lluit creates and governs iisct- and trusts; and therefore 
 a lease sliaJI he deenied to attend the inheritance, if" it appears the 
 parties intended it should do so, as here it does; and tlicn it is no 
 more than a shadow, an accessary to it, for otherwise rt would not 
 be attendant on it. And then it cannot, in this case, go to the 
 felon, but to tlie administrator of George, the son. And here they 
 are consohdated by the intention of the will, wliich directs that 
 the trustees shall make comeyances accordingly. Nor is it kej)t on 
 foot, but only to avoid mesne incumbrances, which might affect 
 the inheritance. And this appears to have been the intention of 
 the parties when the fee was purchased, and therefore the lease 
 ought to go with the fee ; and in the cases of leases for years in trust, 
 that have been forfeited, fraud was the ground of it in the cases 
 that have been cited> 
 
 Lord Hale says on another occasion, (for this case was twice 
 gpoken to by the court,) I agree, that in the case of the king's 
 debtor, lands in trust for him in fee simple are liable to the king's 
 debt by tke common law, per scursum scaccarit, which makes the 
 law in such cases; and this appears by precedents temp. Hen. VI.; 
 and before 4 Henry VII. a trust or use was liable to a statute; and 
 that is the reason of Chirton's case in 50 Ass. And it was held, 
 in Sir Edward Coke's case in Curia Wardoi-mrif that if the king's 
 debtors have a power of revocation, that makes them liable to the 
 king's debt ; and that was the reason of Babington's case in Curia 
 Wardorum, in 30 Car. ; and of Hoad's case in PascJi. 4 Jaa, 
 where lands in trust for a recusant were subjected to the debt of 
 20/. per mensem : so, in 41 Eliz. Babington's case, a trust liable to 
 a debt imprest, because cestui que trust has a profit by it, but that 
 is a special case, and grounded on a special course in tlie Exchequer. 
 He proceeds to state many other cases, which I think it unneces- 
 "Sary to mention, 
 
 If you take the converse of this case, I think ft will make it still 
 more cleai'. The reason why the term was not forfeited, was, 
 because the inheritance thereof was not forfeited ; but if the in- 
 heritance had been forfeited, the term must have been forfeited. 
 In deciding according to the coin-se of the common law, I there- 
 fore think it clear tliat an outstanding term cannot defeat the 
 king's process by extent. In courts of equity it has been said, 
 tliat a purchaser without notice is a person faAoured by that 
 court. Perhaps it may be a sufficient answer to say, that in the 
 present instance we ai*e not in a court of equity. The question is. 
 What ought to be our decision according to the common law? 
 
 This
 
 APPENDIX. 61 
 
 This question could not be decided in a court of equity : tlioy 
 Could not sue for a decree. Wlien a court of ecjuity is resorted 
 to, and this is the situation of tlie parties, tlie court dcjes notliing 
 but stand neuter between such parties, and leaves tlieni to make 
 "the most of it. 
 
 Now, therefore, I think, on the whole, in the first ])lace, the 
 land is chargeable that has been in the hands of the kinjr's delitors; 
 and from the cases tliat have been decided it is suffitieiitlv cK-ar, 
 that the term is ; it is the whole interest in the laiul, whether it 
 be divided or not : and so likewise in uses and trusts ; and from 
 what is said by Lord Hale, I infer the same doctrine is applicable 
 to the actual case now before us. 
 
 It was hinted, that the 33 Hen. VIII. ca. 39, sect. 50, 53, and 
 74, puts the king's debts cm the same footing as a statute staple ; 
 but we find the same difficulty again recurs, for the 33 of Hen. 
 VIII. does not alter the subject out of which the thing i^ to l)c 
 paid. If I sup])ose, in the present instance, ihev are put on tlie 
 same footing with statutes staple, the (juestioii would return ; 
 supposing the king has a debt upon bond, which is to be treated 
 as a statute staple, I do not find the act meddles with the subji'ct 
 out of which he is to compel the payment of his debt, but the act 
 relates singly to the mode by which he is to do it ; and if tlic king 
 were to put it on the footing of a statute staple, it would tle])rive 
 him of no remedy which the common law gave him. The subject 
 is not at all touched by the statute, but merely the manner in which 
 he is to proceed, which perhaps gives the subject rather more ad- 
 rantages than he had before, though I do not see very clearly in 
 ■what respect the situation of the king^s accountant is altered. 
 
 Now that being so, it should seem to be the result of what one 
 finds in the books, that of the king's common law rcmetly it is 
 impossible to doubt ; and that remedy is given in every ca.se where 
 the party who is indebted to the crown has a present beneficial 
 interest, as well as a reversion : both of these aie considereil as 
 chai-geablc for the debt of the crown ; the lands of the king's 
 debtor may be extended by the crown, in whatever hands they 
 may be found, and therefore, upon the wht)le, the judgment of the 
 court in tliis case niu^t be fur tlic ci\)wn. 
 
 Judgment for the King. 
 
 N(j.
 
 S2 ArrEi<Di< 
 
 No. XVII. 
 
 The Attorney-General v. Lncldey and otJiers, (5). 
 Chan. Mich. 9 Geo. II. 
 
 This was an information brouglit to secure a charity, and the 
 case was thus : John Radford, and Anne his wife, were seised ia 
 fee, and conveyed the premises by fine and deeds, declaring the 
 uses thereof to their trustees and their heirs, to the use of them 
 and their heirs, in trust for John Radford and his wife, and the 
 survivor of them, and tlie heirs of the survivor, witli pf)wer for 
 the wife, in case the husband survived her, to cliarge tlie estate 
 with c£.400. The Avife died first and executed her power for 
 charitable uses; John enjoyed the estate during his life ; and by 
 will, dated 25th Jan. 1723, he devised the premises in fee to 
 Tuder Lockley. Now this estate v. as to be sold for discharging 
 the charity and payment of mortgages made by Tuder Lockley : 
 and the question was, whether the sale should be subject to the 
 dower of Tuder Lockley'^s wife, in case she survived her husband. 
 It was argued by Noel in favour of dower, and by Verney against 
 it ; and the following cases were cited : Preced. Cane. 250, 241 ; 
 Banks and Sutton at the /(oils, March, 1733; Preced. Cane. 336 ; 
 Chan. Rep. 369 ; Show. Ill ; Preced. Cane. 65 ; Cro. Car. 901 ; 
 Ambrose and Ambrose^ determined in the year 1717, in the House 
 of Lords (I). 
 
 Talbot, Lord Chancellor. This is a considerable point, and 
 should be settled some way or other ; in the first place, with regard 
 to the wife, her demand is properly a legal one, and it has been 
 
 (b) Vide supra, p. 37vS,«. 
 
 (I) This is the case in 1 P. Wms. 321. The case was, that the deceased 
 husband bought an estate in the name of a third person. The court con- 
 sidered it clear that the wife was not dowable of the trust estate. It appears 
 by the report, that the decree was affirmed in the House of Lords. I find by 
 the Journals of the House of Lords, that the wife prayed that the estate 
 might be deemed part of the personal estate of her husband, or at least that 
 she might be entitled to her dower «ut of it. See Journ. Dom. Proc. \iA. 2<'. 
 IX.450, 
 
 hinted
 
 A P P E \- D I X. S3 
 
 hinted at, as if the legal estate was executed in Mr. Tuder Lock- 
 Icy ; but there is no foundation for thst, as the estate is limited to 
 trustees and their heirs ; therefore it is a legal estate absolutely 
 executed in the trustees, for there cannot be a use limited on a 
 use. Then the question will be, whether Tuder Lockley's wife is 
 entitled to dower of an equltal)ie estate of inheritance vested in 
 her husband ; for at present the husband is Uving, and if the wite 
 died before him, then tins question never can arise. As dower is 
 a legal demand, so clearly with regard to a use, a v,-ife was not 
 dowable of it before the stat. H. VIII. Vernon's case, 4 Co. 1. Then 
 how can she be dowable of a trust after that stat. ? For is there 
 any solid distinction between a use before a stat. and a trust after 
 it ? What was a use but a right to receive the rents and profits of 
 lands of which the legal estate was in another ? And a trust Is the 
 very same now : and if before the stat. the right of the wiie Avas 
 considered strictly as a legal right, so that the equitable interest 
 ■was not affected by it, the reason holds equally strong since the 
 stat., that courts of equity should follow what was the rule beibro 
 the stat. with regard to those estates. How tliere came to be a 
 difference as to estates by curtesy, I cannot tell ; nor how it came 
 to be extended to estates by curtesy, and yet not to dower, I can- 
 not tell. I do not see, on this general question, whether a wife 
 shall be endowed of a trust estate of inheritance, that there is one 
 case, from the time of the stat. IT. \'III. to this time, that is directly 
 in point, except the case of Fletcher and lloblnson, Preced. in 
 Cane. 250. That case is extremely short ; and the reason given 
 for it is, whether it be a good one or no I shall not say, that the 
 conveyance was considered as fraudulent, being done with an in- 
 tent to prevent a forfeiture ; and therefore, in that case, the court 
 seems to have disregarded it, which shews it was not determined 
 simply on this point, but on other matters, which do not fall in 
 with tills case. The case of Banks and Sutton seems to luve bccni 
 determined on this, tliat the time of the conveyances was come, 
 and the husband had a right to call for It ; and then the coiwt, 
 M]>on tonsldcring that as done which ought to have been done, 
 might properly assist the wife in that case. The case of Bottom- 
 Jey v. Fairfax, Preced. in Cane. C3G, before my Lord Ilarcourt, is 
 nn express authority that a wife is not dowable of a trust-estate 
 of inheritance; and to this it may also be added, that it is tlie 
 general received t)pinlon of every one who has attended tiiis bar 
 constantly, that they are not; and It Is the practice to make pur- 
 chases in the name of the purchaser and trustee — but to what in- 
 
 C leu
 
 34> APPENDIX. 
 
 tent or purpose ? Only to prevent dower, that by there h^ri^it 
 survivor to the purchaser, his wife might not be entitled to it* 
 But if it should be ruled, that a wife is entitled to a dower of n 
 trust-estate of inheritance, provisions of this kind would be over- 
 thrown. I mention this, because it is hinted at, as if the practice 
 of conveyancers was not of great weight ; and truly it is not in 
 their poAver to alter the law : but wheu there is a received opinion, 
 and conformity of contracts, and settlements thereon, it is ex- 
 tremely dangerous to shake it, which would disturb the possession 
 of many who are very quiet, and think themselves very secure ; 
 therefore it ouglit to be done only on the clearest and plainest 
 ground. In the present case I cannot say they are mistaken, be- 
 cause they have gone on this ground, that trusts are now what 
 uses were at the common law, where a wife was not dowable of »■ 
 use. There are other cases where terms for years have been carv- 
 ed out, and the inheritance remains in the husband : and as to 
 those there is no difficuky. Where the term is created for parti- 
 cular purppses, and the inheritance remains in the husband, and 
 descends to his heir, which term is not a bar at law of dower, but 
 only prevents the execution of it till the term is expired, there 
 the term may be redeemed ; and that was the case of my Lady 
 Dudley, Preced. in Cane. 241. There the express limitation of the 
 term was to the owner of the freehold after the trust expired. As 
 to those cases where the inheritance is sold for a valuable con- 
 sideration, (Preced. in Cane. 65,) which was the case of Lady 
 Radnor, and the purchaser took an assignment of the term, if it 
 was without notice, there could be no difficulty ; but wliether that 
 case was so or not, I do «ot remember. But the present case is 
 not that of a wife entitled to dower with a ccssat exeactio; for the 
 question here is, whether the Avife is dowable of an equitable es- 
 tate of inheritance in fee simple. As to what is said, that this is 
 to be considered as a contraction the part of the wife, therefore 
 equity should supply it r the answer is, equity, where there is a 
 valuable consideration, will supply form. But, hath she contracted 
 for this particular estate ? No, for nothing but what the marriage 
 iuiplies, which is, that she shall have dower of what she is dowable 
 by law : and then the question comes to this, whether she is dow- 
 able by law of a trust. Here she could have nothing of this iu 
 contemplation at the time of her marriage: for the equitable in- 
 terest was left to her husband, long after the time of her marriage, 
 which was in 1713; and the equitable estate was not given him 
 
 till
 
 appt:mdix; 2) 
 
 till 17^3. Therefore the decree must be, that the land shall be 
 Sold and enjoyed, discharged of any claim of dower. 
 
 In another manuscript note of this case, Lord Talbot is reported 
 to have said that trust-estates, since the statute of uses, ought to 
 be considered as uses, before the statute, of which estate a woman 
 could not be endowed ; that the case of Bottoniley and Lord Fair- 
 fax was express in point : that, as this method of conveying on 
 purpose to prevent dower, had been used for so many years, a coui't 
 of equity ought not to make a decree whicli would overtiu-n such 
 a number of settlements. And the reason of the decree in the case 
 of Banks and Sutton (which he stated) was different : for there the 
 direction of the will was, that the legal estate should be conveyed 
 to Sutton : and the wife married him on the expectation of that 
 estate, and it was a fraud in the husband not to call for the settle- 
 ment. The other cases of dower of trust estates are, where terms 
 are created for particular purposes, and the inheritance remains in 
 the husband : in these cases she has a title of dower, and so she 
 »iay come into this court and redeem the term, which is the case of 
 J-.ady Dudley, 
 
 No. XVIIL 
 
 Bret V. Sawhridge and Others (c). Before the Master of 
 the Rolls. 
 
 Sir John Wroth was seised in fee of theinJands in dispute, and 
 mortgaged the same for 1000 years to Francis Hill, as a security 
 for ^^.1100. which, by several mesne assignments and further 
 charges, to the amount of ^.2400 in tlie whole, came to Richard 
 Watson, in trust for Sir Edward Bret ; and Brewster (who assigned 
 the same to AVatson), covenanted tluU Sir John Wroth, or hi.s 
 heirs, should convey the iiilieritancc to Sir Ldward Bret: and Sir 
 Edward Bret reciting by his will, that he had purchased of Erew- 
 Fter the residue of the said term of 1000 years, and tliiit there Avas 
 a covenant in the purchase deed from Brewster as aforcsiiid, but 
 that Sir John Wroth dying before the* conveyances were executed, 
 and leaving an infant of eight years old his heir at law, it was then 
 impossilile to have the fee conveyed : therefore Sir Edwaid Bret 
 declared it to be his>vill, thiit when the heijs of Sir John Wroth 
 
 (f ) Vidt supra, \i. Sf <5. 
 
 c 2 slionld
 
 56 Al'IKNDIX. 
 
 sliould attain the age of 21, a conveyance sliould l)c executed aev 
 cordin'"- to the settlement in tail after mentioned ; and he devised 
 the same to John Bret Fislier for Yi{e, remainder to trustees, ta 
 preserve contingent remainders; remainder to his first and every 
 otlier son in tail male successively ; remainder to Nathaniel Fisher 
 for life, and in the very same manner ; and so to Edward Fisher ; 
 remainder to the right heirs of Stephen Beckingham and Richard 
 Watson (the trustees of the term), whom he made his executors ; 
 a/nd then he directed the remainder of' the term .should remainy and 
 he atteiidardon the inheritajice^ according to the limitations above- 
 mentioned : and all otiier his real and personal estate he devised 
 to John Bret Fislier, Natlianiel and Edward Fislier. Upon the 
 death of Sir Edward Bret, the executors proved the will ; and 
 aiterwards Nathaniel and T^dward Fisher died intestate, Avithout 
 ever having any issue ; and John their brother took out adminis- 
 tration to them, John Bret Fibher, thinking tlie limifations over 
 to tl^j riidit lieirs of Beckingham and Watson void, took himself 
 to be absolute omier of the term, as co-residuary legatee, and re- 
 presentative of the other two his brothers, in case he should ever 
 die without having issue, and mortgaged the residue of the term 
 for 1000 years to the defendant Sawbridge, as a security for .^350. 
 One Newland purchased the reversion, and the equity of redemp- 
 tion, from the right heirs of Sir John Wroth, for 100 broad pieces ; 
 but before the purchase, he promised John Bret Fisher should 
 liave the benefit of it, if he Avould pay him the purchase-money, 
 his expences, and a small gratuity : however John Bret Fisher, 
 a long time after the purchase was completed, neglected to comply 
 with tlie terms, and so it was sold to the defendant Sawbridge. 
 John Bret Fisher, by his will, devised all his real and personal es- 
 tate to the defendant Sawbridge, and made him his executor, and 
 afterwards died without ever having issue.j 
 
 The plaintiff filed his bill, to have the estate conveyed to him 
 according to the will of Sir Edward Bret, all the precedent limi- 
 tations being spent, and to have an account of the rents and profits, 
 he being heir at law, and also representative of the personal estate 
 of Richard Watson, Avho died in the Hfe-time of John Bret Fisher: 
 but Stephen Beckingham is still alive, and made a defendant in 
 this cause. 
 
 Sir Joseph Jekyll, Master of the Rolls, after argument on both 
 .sides, and time ta!:en to consider of it, delivered his opinion to tlic 
 effect following : The plaintiff in this case does not want to have 
 the term assigned to him, because he has tlie legal interest of it in 
 
 him,
 
 APPENDIX. 87 
 
 him, as representative of Ricliard "Waf^on, wlio -was a trustee of 
 tiio same for ?ir Edward Bret. Th.c-n the point to be determined 
 is with regard to the account of tlie rents and profits. Thou-^li 
 I]rewster covenanted that Sir Joliu Wroth, or his heirs, should 
 convey tlie inheritance to Sir Edward Bret, and his heirs, yet it 
 docs not appear that Sir Jolin Wrotli v.as under any obhgation to 
 <onvey tlie same; for he was no party to tlie conveyance to Sir 
 Edward Bret, nor did any thing to sliew his agreement tlicreto : 
 but tlie covenant of Brewster to Sir Edward Bret, being ])efore the 
 statute of frauds, there might be a parol agreement by Sir John 
 Wroth, that he would convey, and it v.ould be good ; otherwise 
 it woidd be dllTicuIt to account wiiy Brewster should enter into 
 such a covenant. However, Sir Edward Bret, by his will, desiring 
 llie heirs of Sir John Wrotli to convey the inheritance, and direct- 
 ing the limitations of the same, and that the term should be at- 
 tendant on it, did intend to devise the inheritance, and not the 
 term in gi'oss. But it is said, though the inheritance cannot pass, 
 the term may, according to the limitations in the will of Sir Ed- 
 ward Bret. It is not necessary now to enter into the question how- 
 far limitations of terms are good, or v.hether, by such limitations 
 as those in the present case, all the prior devisees dying without 
 having had issue, the remainder of this term could vest in the 
 plaintiff as to one moiety. But if I was to deliver my opinion 
 about it, I should be under great difficulty: for on this point there 
 is the opinion of one Lord Chancellor against another ; my Lord 
 Cowper, in the case of Higgins and Dowler, 2 Vern. 600, and 
 Salk. 156, held such remainder of a tenn to be good, all the par- 
 tics dying without ever having any issue: and by the present Lord 
 Chancellor, there have been two cases determined, Clare and Clare, 
 r. 7 G. IL Saberton and Saberton, 8 G. II. In one of them it 
 may be taken, there was an estate tail in the first taker; but in 
 the other it seems not to be so ; but in both of them my Lord 
 Chancellor held such limitations of estates tail, though to persons 
 not in be ing, and never vesting, to be too remote, and so delivered 
 liis opinion. Higgins and Dowler, as it appears to me, was not 
 clearly stated and urged, but was taken as it is reported in Salk. and 
 Vern. which my Lord Chancellor said was incorrectly done in botli 
 of them : but I have a complete report of it by two gentlemeJi ; 
 and in the case of Stanley and Lee, M. 8 G. II., I looked into tlie 
 pleadings, and the Register's book ; and on the whole matter I 
 Hnd the judgment of my Lord Cowper was, that such limitations 
 never having been in esse, and so not vesting, the limitation over 
 
 c 3 might
 
 QH A r p E X D 1 X 
 
 mi;flit be good. There is one case I did not mention,, when I gave 
 my opinion in Stanley and Lee, and that is Massenburgh and 
 Ashe, Clian. Rep, 27-5, in wliich the Judges were of opinion, that 
 the hmitation of" a trust of ienn must be considered as Uniitations 
 of a term at law; and that case is stronger for allowing limitations 
 over t}ian this, though that was on a deed, and this is on a will, 
 which has a more favourable construction. But I must leave this 
 point of the limitations of a term for future consideration, if evc-r 
 it comes before the court, for this case will turn on a diflerent 
 point (I). Here Sir Edward Bret thought he was entitled to the 
 
 trust 
 
 (i) Ft is very satisfactory to find that Sir Josepli Jckyll did not give up 
 liis opinion in Stanley v. I.ee. The doctrine in the case of Stanley v, I^ee 
 (2 P. Wms„ S. C. MS.) is now well estabiislied, and the case of Clare v. 
 Clare (For. 21, S C. MS.) is overruled bya series of authorities, seeSabarton 
 V. Sabarton, For. 55. Q45, S.C.MS,; Knight v. Ellis, 2 Bro. C. C. 370 ; 
 rhipps V. Lord Mulgrave. 3 Ves. Jun. 516. The rule, as now settled, is ac- 
 cuiately stated by Mr. Fearne — Whatever number of limitations there may 
 be after the first executory devise of the whole inteiest, any one of thjni, 
 ■which is so limited that it must take eflect (if at ali) within tvvci'.ty-one yecis 
 after the period ofa life then in being, may be good in event, if no one of the 
 preceding executory limitations, which could carry the whole interest, hap- 
 pens to vest; but when once any preceding executory limitation, which 
 carries the whole interest, happens to take place, that instant all the subse- 
 quent limitations become void, and the whole interest is then become vested. 
 E.vec Dev. 4th edit. 415. 
 
 In the last edition of this work a discussion was introduced, in this place, 
 on the question, whether the term of 21 years, after a life in being, could be 
 taken as a term in gross in the case of an executory devise. This will now 
 he found in n. (2) to the last edition of Gilbert on Uses, p. 26o. T he ca^e 
 of Beard and Westcott, there mentioned, was folly argued befoie the Master 
 of the Rolls, upon the ceititicatel;cing relumed; and on the 1/th Dec. ISI I, 
 the Master of the Rolls gave tlie following judgment : — " This case stood over 
 in consequence ofa suggestion, that the certificate of the Court of Common 
 Pleas involved in it the decision ofa new ([uestion, which had not undergone 
 any particular discussion, or received any particular consideration in that 
 cwurt: namely, how far the validity of a limitation over, by way of executory 
 devise, is affected by the circumstance, that the period cf 21 years, after the 
 duration of an estate for life, has any connection whatever with the minority 
 of any })erson taking an interest under the preceding limitations. Now I do 
 understand, that the question certainly did not receive any particular con- 
 sideration in the Court cf Common Pleas, it being taken for granted, that 
 ^he rule upon this subject stood as it is commonly laid down in the books: 
 namely, that the executory devise falls within the allowed limits, if the event 
 upon wliich it is to take place must happen within a period oiiil year* after 
 
 the
 
 4*:L<:^^itA. ^c^' /^f^!r^ ^^^ jU^^ ^^^ 
 
 >W*<rJt^ __ APPEXDIX. ^ ^ ^ 39 
 
 tru8t of the inheritance, and did not intend to devise tlie term in 
 gross, but intended to ctevise the inheritance, and that it should 
 attract the term ; Whitechurch v. Idem, 10th Feb. G. I. A man 
 i>ei!)g seised of a reversion in lee, and having the trust for a term 
 for years to attend it, made a will of his own hand-writing, and 
 
 the life or lives in being. 1 am not aware, however, tliat the point has been 
 <1:rectly decided; and Lord Alvanley's ductiiiie, in liie caseof Tliellusson and 
 Woodford, Is against the addition of 21 ycar.s except by way of provision for 
 t))e circumstance of the devisee being under age, or in ventre sa mue at the 
 f xpiration of the life or iivcj iu being. — And as the question lias now been 
 raised, and as there is that degree of sanction to the doubt, it does seem to 
 ine de>-irable, that it should be set at rest by the decision of a court of law ; 
 so, thficfore, 1 propose to send the case back again to the Court of Common 
 Pleas, to call their attention to the point, that they may have an opportunity 
 «f pronouncing- an explicit opinion upon it. I have received tliis informa- 
 tion from some of the judges. — The case was accordinu;ly sent back to the 
 Court of Common Pleas, who refused to hear it argued, until the point upon 
 ■which their opinion was required was stated. Thereupon, the foUowin"- 
 questitin, with the approbation of the Master of the Rolls, was stated to Ije the 
 *]uest'on for theopinion of the Court: ''How far the limitations ovei, in the 
 event of llieif^ bein,' no son or sons of John James iJeard, nor issue male of 
 such son '.r suns living at the death of the said .John James Beard, or there 
 being such issue male at that time, they shall all die before thev attain their 
 respective ages of2I years, without lawful issue male, are aflected by the cir- 
 cumstance, that they aie to take edect at the end of an absolute term of 21 
 years, after a life in being at the death of the testator, without reference to 
 the infancy of the pc son intended to take, or by the circumstance, that there 
 ir>ay be issue of John James living at his death, to whom the estate is given 
 by the will (but who would be incapable of taking according to the above 
 certificate) for whose death, under 21, the limitation over, in tiie event be- 
 fore-mentioned, must await. — The case has since been argued beture the 
 Judges of the Court of Common Pleas, and they certified, that tlie limita- 
 tions over, in the event of their being no son or sons of John James Reard, 
 nor issue male of such son or sons living at the death of John Jumes IJeurd, 
 • or there being such issue male at that time, I hey shall all die belore they 
 attain their respective ages of 21 years without lawful issue male, arc not 
 aflected by the circumstance ; that they are to take cflcct at tlir end of an 
 absolute term of 21 ytars, after a life in being at the death of the testator, 
 •without reference to the infancy of the person intended to take, nor by the 
 circumstance that there may be issue of John James lieard living at his 
 death, to whom the estate is given by the will, but who would be iucajjablc 
 of takiuii according to the former certificate from the Judges of this Court 
 for whose death, under 21, the limitation over, in the event beforemen 
 tioned, must await. 'I'he c.isc has since been argued before the Lord C:han 
 cellor, who was pressed to send the case tp the Court of King's Uench. It 
 »ow stands for judgment. >~ ^"^ y r^t nf/ yj> ^^ y y 

 
 40 A r 1' j: Nfl 1 X. 
 
 thereby carved oul several limitations of the land and premises, 
 not unlike those now in question ; l)ut (hd not publish it in the 
 ])rcsenee of witnesses ; and the doubt was about the limitations of 
 the term ; for the will could not pass the inheritance, being n(;t 
 executed according to the statute of I'rauds. But it was insisted, 
 it might carry the term as the personal estate, upon which the 
 opinion of the court was taken. ]Jut it Avas determined, it should 
 not pass because the devisor intended to pass an inheritance, and 
 the writing under the testator*'s own hand was looked on as an in- 
 choate act to pass the inheritance, and therefore could not operate 
 on the tei-m. Besides, the testator in that case having prepared a 
 writing which was intended tobeexecutedaccording to the statute, 
 there A\as no notice taken of any term that should be attendant on 
 the inheritance, as there is in the present case, which makes it 
 strongei- against the })laintifr than it was in that case. That cas» 
 looks like an authority that must govern the present case ; for 
 though Sir Edward Bret was not entitled to the trust of the in- 
 heritance, yet he thought Sir John Wroth was bound to convey, 
 and on that assui'ance and persuasion made his will and intended to 
 pass it as an inheritance. There are several cases, where a man 
 intended to pass something, and yet the law Avill not allow it ; as 
 in case of a devise, where there is an uncertainty either of the per- 
 son or the thing, a Joftiori here it should be void, because the 
 testator intended to pass what he had nOt, for he intended to pass 
 the inheritance when he had it not ; and there is a great difference 
 between real arid personal estates, as to being assets or not, and 
 also as to the course of succession to whom the same shall go after 
 the death of the owner ; and there is likewise a difference where 
 a will is made as to the limitations of the one and of the other ; 
 therefore when the testator intended to pass an inheritance and had 
 it not, there is no reason to suppose he designed to pass a term in 
 gross ; for he says the term shall be attendant on the inheritance 
 according to the limitations mentioned in the will ; and so, as to 
 j)assing the term, the testator had not an'imum tcstandi: therefore 
 I conceive the bill must be dismissed. 
 
 No.
 
 Ari'EXDIX. 41 
 
 No. XIX. 
 
 Forshall v. Cole and Short {d), Ch. r:th Nov. 1733. 
 The Master of the Rolls slttninfor the Chancdloi: 
 
 Bill was brought to have a bond delivered up, and proceeding;-. 
 ct law upon it to \yi stayevl ; the bond Mas entered into on this oc- 
 casion: one Durant, in 17^8, made a mcrtgage to plaintiff', but, 
 before this, had given a bond to Cole for SOO/. Cole, in 1725, 
 obtained judgment upon his bond, and afterwards, since tlie date 
 of the mortgage, took out an elegit, and extended the mortgaged 
 premises towards satisfaction of his judgment: upon this, plaintiff, 
 to save expense and discharge the lands, gave Cole a bond for the 
 200/. and interest ; but it was agreed between them, that the bond 
 should be deposited in Short's hands, and only to be made ust of 
 if Cole\s judgment was entered so as to affect the lands precedent 
 to plaintiff's mortgage. The judgment was signed in 1725, but 
 not docketed, secundum stat. 4 and 5 W. and M. c. 20, till 28th 
 January, 1730. 
 
 Upon reading the statute the Master of the Rolls was of opinion, 
 that judgments cannot be docketed after the time mentioned in the 
 act, viz. the last day of the sulwequent term in which they are 
 entered, and that the practice of the clerk's docketing them after 
 that lime, is only an abuse for the sake of their fees, and inef- 
 fectual to the party ; and he said he would speak to the judges 
 about it. 
 
 Solicitor General. — It is proved in the cause, that the mort- 
 gagee had notice of the judgment at the time of tlie mortgage. 
 
 Master of the Rolls. — Notice is not material, the statute not 
 making a difference between a inortgagee with notice or Mithout; 
 and besides, the notice which the act requires is the docketing, 
 which by the act is become a constructive notice ; and therefore 
 he decreed the bond to Im delivered up and cancelled, and that 
 the plaintiff should have his costs both at law and in this court, 
 and that the 10/. which plaintlfl' had paid upon the lK)nd, should 
 be retui'ned, which he said the attorney concerned in entering the 
 judgment ought to pay out of lu8 own pockel ; and that be be- 
 
 {(I) Vide supra, p, 40&» 5*6, 587, 588, COl, 
 
 licv cd
 
 42 AITF. NDIX. 
 
 lleved an action on the case would Jic against Jiim, ibr lie believed 
 it was owing to his negligence that the judgment was not rightly 
 entered : and the defendant Short having delivered up the l>)nd 
 to Cole, and permitted him to proceed at law upon it, contrary to 
 hi* trust, he decreed costs as against him likewise. 
 
 No. XX. 
 
 Burton and Others r. Todd 
 Todd V. Gee and Others, (e). 
 Hist March, 1818. Judgment hy Sir Thomas Plumer, Master 
 of the Rolls. 
 
 These two causes are now to be disposed of. The first cause 
 was instituted in May, 1804, by Messrs. Gee and Osborne, and 
 Mrs. Burton, the trustees under the will of I\Ir. Burton, against 
 Mr. Todd, for a specific performance of an agreement to purchase 
 an estate; which agreement was entered into in August, 1802. 
 
 In June, 1806, the common order for a reference to the Master, 
 whether a good title could be made to the estate, was obtained by 
 the plaintiffs in this suit. 
 
 In Dec. 1807, the Master made his report that a good title 
 could not be made. To this report, the plaintiffs took an excep- 
 tion, which was over-ruled in May, 1809 ; no further proceedings 
 have been taken in this suit. 
 
 In October, 1808, Mr. Todd instituted a suit against Messrs. 
 Gee and Osborne, the trustees, and against the persons interested 
 in taking the accounts under the will of Mr. Burton ; to have the 
 necessary accounts taken, and for a specific performance of the 
 agreement, and for a compensation as to the 227 acres in the agree- 
 ment mentioned to be tithe free, or subject to a very trifling modus. 
 
 In December, 1813, a decree was made in this cause, whereby 
 it was referred to Mr. Steele to take the necessary accounts and 
 inquiries, in order to ascertain whether a good title could be made 
 to the estate in question ; and to state whether a good title could 
 be made thereto. 
 
 In December, 1816, the Master made liis report ; stating, that 
 a good title could be made to the estate in question, except as to the 
 S27 acres in the agreement mentioned to be tithe free, or subject 
 
 (e) Vide supra, p. 42G. 
 
 «idy
 
 APPEXDTX. 43 
 
 only to a very trifling modus, and which the Master reported not 
 tithe free, or svibject to a very trifiing modus. 
 
 The decree, therefore, in tlie second suit, is nearly of course. 
 The plaintiff, Mr. Todd, is entitled to a specific perforniauce, and 
 to a compensation for the tithes of the 227 acres. The only ques- 
 tions are; 1st. As to the principle on which the accounts must be 
 taken : and, 2dly, As to the costs. 
 
 By the agreement in August, 1802, it was stipulated that the 
 pui'chase money should be paid by instalments ; one-third on the 
 10th of October, 1802; one-third on the 5lh January, 1803 ; and 
 the remaining one-tb.ird on the 5th April, 1803, on a good title to 
 tlie estate beins: ^hen made, 
 
 Tlie purchaser paid the first instalment, amounting to .£'5,333 
 C^. Hd., on the 10th October, 1802, and the vendors have ever 
 eince had the same in their possession, and have also received all 
 the rents and profits of the premises ; the plaintiff, I\Ir. Todd, 
 jiever having been let into possession of any part of the premises. 
 An abstract was delivered in April, 1803, and was returned by 
 Air. Todd, with the objections of Counsel, before j\Iay, 1803; and 
 the pnncipal objection taken to the title was, that the title could 
 not be approved, unless the necessary accounts were taken in a 
 eourt of equity. The vendors insisted that the purchaser was 
 not entitled to have the accounts taken ; and instituted iheir 
 8uit in May, 1804, to compel the purchaser to take the estate 
 without having the accounts taken ; they failed ir that attempt, 
 and Mr. Todd having subsequently instituted the second suit for 
 the purpose oi" having the accounts taken, was resisted by the ven- 
 dors, but succeeded. 
 
 The vendors then having been uniformly wrong, and the pur- 
 chaser uniformly right, and the vendors having been in possession 
 of one-third of the purchase money, and in the recci})t of all the 
 rents and profits of tlie estate for \ipwards of fifteen yeai's ; the 
 <}ucstion is, upon what principle are the accounts to be taken. 
 The visual ride is, that the purchaser is to have the rents, and t) 
 pay 4/. per cent, for his pin*chase money. This rule is rather hard 
 where the delay is not caused by the purchaser. The rents seldom 
 yield 4/. per cent. ; and the purchaser having been kept out of tin? 
 enjoyment of the estate, receives it at last in a worse conditiori. In 
 the present case, fifteen and a half years delay lias been caused b j 
 tlie resistance of the vendors ; during that time they have had the 
 cojoymcnt of nearly jf.COOO of the purchase money (which in that 
 
 period
 
 44 AprE.vDix.. 
 
 period wovild be doubled) ; and have also received ail tae rents' 
 to decree the usual accounts, woidd l)e to give the party wiio is 
 wrong-, all the advantage of the delay occasioned by himself; it 
 would be lo reward the party who has done Avrong and to give 
 hini a double benefit, and to work injustice to the party who ha* 
 been unifoi-mly correct. The cause is novel, there is no prece- 
 dent. It may be said, that Mr. Todd might have applied to liave 
 the £5,833 6s. Sd., or the rents and profits brought into court 
 and laid out, but he har> not done so, and the vendors have reaped 
 the benefit of his not doing so. — Under the.sc circumstances, the 
 vendors must account, not only for the rents and profits of the 
 estate from October, 1802, but also for interest, after the rate of 
 4/. per cent, upon one-third of the rents and profits. 
 
 As to the costs. The original bill must be dismissed with costs; 
 because the vendors, apprised of the objection, instituted an im- 
 proper suit. As to the second suit. The vendors took no ste})s to 
 amend the original bill, and to frame it properly to obviate the 
 objection to tlie title. T>Ir. Todd had therefore no means of obtain- 
 ing a specific performance of the agreement, but by the institution 
 of the second suit ; the vendors resisted and failed ; Mr. Todd 
 gucceeded, and a specific performance was decreed. There was 
 BO inconsistency on the part of Mr. Todd. The will of IVIr. Bur- 
 ton rendered it necessary that the accounts should be taken. All 
 the parties to the second suit were interested in the accounts. The 
 I'cndors must be at the expense of clearing the title, by taking the 
 accounts ; and, therefore, Mr. Todd is entitled also to the costs of 
 the second suit. 
 
 No. XXI. 
 
 liea V. Williams, Exch. '(,/"). 
 
 The plaintiff* Rea, and one Pritchard, purchased jointly a lease 
 made by the Duke of Beaufort for the life of another person, and 
 they jointly took the profits of it for some time ; but afterwards 
 they conveyed the estate to the defendant Wilhams, in considera- 
 tion of 300/. as was expressed in the conveyance, though no part 
 
 (/) Vide supra, p. 525, 52S. 
 
 of
 
 A I' p !■: .1 D i X. 45 
 
 tjf tlie money v,as ever paid, and Williams acknowledged by liis 
 answer, that lie was a men: trustee for the parties ; but no declara- 
 tion of trust was ever executed, nor did it any way appear 
 with what view the estate was vested in the defendant, any further 
 than it was believed it was done to screen it from execution, thej 
 being both of them much indebted. Afterwards Pritchanl died 
 intestate, and the defendant, Williams, took out administration to 
 him, b\it there was not assets enough to pay all his debts. This 
 caufle came on to a hearing on the bill and answer, and the {ques- 
 tion was, whether the trusts of the estate belonged to Rea the sur- 
 vivor, as the whole estate indisputably would, if the legal estate 
 had continued in the two purchasers : to prove the trust would 
 survive, were cited 1 Vern. 217, Et|. Cas. Abr. 291, 2 Vern. 550, 
 
 Mr. Wtlbrnham, to shew this trust did not survive, took a dis- 
 tinction between 2 V^ern. 55(), and the present case ; for there, he 
 said, was an express limitation of the trust to the two daughters^ 
 so they might take jointly ; but thii is a resulting trust only, and 
 no express limitation ; and ecpiity, M'hich discourages joint tenant- 
 cies, may construe that to be a tenantcy in common; Salk. 158. If 
 a joint tenant for years mortgages his part of the term, this is a 
 severance of the joint tenantcy, 2 Vern. G83. 
 
 Rei/nohh, Chief Baron. — I think tiie joint tenantcy of the trust 
 in this case was not severed : every one who has an estate has two 
 rights in him, a legal estate and an equitable interest ; nothing 
 passed by the conveyance to the defendant but the legal estate, and 
 the equitable interest resided in the two purchasers, and remained 
 as it originally was, the consequence of wliich is, that it must go 
 to the plaintiff by survivorship. Carter, Thompson, and Fortescue» 
 were of the same opinion ; and Fortescue said, he saw no differ- 
 ence between an express and an implied trust. 
 
 No. XXIL 
 Lcchmere v. Lechmere (g), Ch. E. T. 8 Geo. II. 
 
 This case was elaborately argued upon the appeal. The argu- 
 ment lasted four days. Upon the first question Lord Talbot deli- 
 ct') Vide supra, p. 516, 547, 543. 
 
 vereil
 
 46 A r p E x D 1 :v . 
 
 vercd his opinion at considerable len<^tl). Upon the second que*- 
 tion he pronounced the Ibllowiiig judgment : 
 
 The second question is as to tlie satisfaction, whether what de-* 
 scended to the heir at law is to be considered as a satisfaction of 
 what he is entitled to under this covenant. As to questions of satis- 
 iactions where they are properly so, they have always been between 
 debtor and creditor, or their representatives. As toMr. Lech- 
 inere / do not consider him as a a editor, but as standing in tJie 
 place of his ancestor, and thereby entitled to what would have 
 vested in liis ancestor. A constructive satisfaction depends on the 
 intention of tlie party, to be collected from circumstances. But 
 then the thing given must be of the same kind, and of the same^ 
 or a greater value. The reason is plain, for a man may be boun- 
 tiful as well as just ; and if the sum given be less than the debt, it 
 cannot be intended as a satisfaction, but may be considered as a; 
 bounty ; and if the thing given is of a different nature, then, 
 tilso, as the intention of the party is not plain, it must be consider- 
 ed as a bounty. But I do not think the question of satisfaction 
 properly falls within this case, for here it turns on w Jiat was the 
 intention of my Lord Lechmere in the purchases made after the 
 articles, for as to all the estates piu'chased precedent to the articles^ 
 there is no colour to say, they can be intended in performance of 
 the articles ; and as to the leasehold for life, and the reversion in 
 fee expectant on the estates for life, it cannot be taken they were 
 purchased in pursuance of the articles, because they coidd not 
 answer the end of the-m. But as to the other purchases (in fee 
 sinjple, in possession, Sec), though considered as a satisfaction to 
 a creditor, yet they do not answer, because they are not of equal 
 or greater value. Yet why may they not be intended as bought by 
 Jiini with a view to make good the articles ? The Lord Lechmere 
 was bound to lay out the money \A\\\ the liking of the trustees, 
 but there was no obligation to lay it out all at once, nor was it 
 hardly possible to meet with such a purchase as would exactly tally 
 with it. Part of the lands purchased are in fee simple, in pos- 
 session, in the south part of Great Britain, and near to the family 
 estate. But it is said they are not bought with the liking of the 
 trustees. The intention of naming trustees was to jircvent un- 
 reasonable purchases, and the want of this circumstance, if the 
 purchases are agreeable in other respects, is no reason to hinder 
 why thev sljould not be bought in performance ol' the articles. It 
 is oi>jected, tl.at the articles say the land .shall be conveyed imme- 
 diately. It is not necessary that every parcel should be conveyed 
 
 so
 
 APPENDIX. 47 
 
 SO soon a> bought, but after the whole was t:ui'chased, for it never 
 could be intended that there should be several settlements under ther 
 same articles. Whoever is entitled to a performance of the cove- 
 nant, the personal estate must be first applied so far as it will go, 
 and if the covenant is performed in part, must make good the 
 deficiency. But where a man is under an obligation to lay out 
 30,000/. in lands, an.d he lays out part as he can find purchases 
 which are attended with all material circumstances, itis more natural 
 to suppose these purchase made with regard to the covenant, than 
 without it. When a man lies under an obligation to do a thino-, 
 it is more natural to ascribe it to the obligation he lies under, thaa 
 to a voluntai'y act, independent of the obligation. Then, as to 
 all the cases of satisfaction, though these purcliases are not strictlj 
 a satisfaction, yet they may be taken as a ^tep towards perform- 
 ance, and that seems to me rather his intention than to enlarge his 
 real estate. The case of Wilcox and Idem, 2 Vern. oo8, tliough 
 there are some circumstances that are not here, yet it has a good 
 deal of weight with me. There tlie covenant was not performed, 
 for the estate was to be settled, but the land was left to descend, 
 and a bill was brought to have the articles made good out of the 
 personal estate ; to which it was answced, that the 200/. per a7%- 
 num was bought, which descended to you. It is ti'ue a settle- 
 ment hath not been made, but they were bought with an intention 
 to make a settlement, and you can make one. The same will hold 
 as strong in the present case, that these lands were bought to an- 
 swer the purposes of the articles, and fall within that compass, 
 and it is not an objection, to say they are of unequal >'alue, for 
 a covenant 7nai/ be executed in part, though it is 7vot so in sail** 
 J'actton ; and in this particular I differ frovi the Master of ike 
 Rolls. There must be an account of what lands in fee elm pie in 
 possession were purchased after the aiticles entered into, and so 
 much as the purchase money of such lands amount to must be 
 looked on in part of satisfaction of the 30,000/. to be laid out in 
 land under the articles, and the residue of the 30,000/. must be 
 made good out of the personal estate*. 
 
 No.
 
 43 AtftfiOix. 
 
 No. XXIII. 
 
 jlhstract of tJie Special Verdict^ in Fairjidd v. Birch, (hj. 
 
 Edniond Kelly, being seised in fee in 1747, made a settlement 
 before his intended marriag-e, in consideration of the wife's portion, 
 as to part to trustees in fee, in trust to sell and pay off incum- 
 brances, which amounted to 4000/. As to the residue, to himself 
 for life, remainder to trustees in the usual way, to preserve rei- 
 mainders ; remainder to the use, that the wife might receive a 
 fcinture rent-charge, in bar of dower; subject thereto, to the first 
 and other sons of the mari'iage successively in tail male ; remain- 
 der to the first and other sons of Edmond Kelly by any other wife 
 successively, in tail male ; remainder to two brothers of the settlor 
 and their issue male, in strict settlement ; remainder to Ignatius 
 Kelly the uncle of the settlor for life ; remainder (after a limita- 
 tion to trustees to preserve) to his first and other sons successively, 
 in tail male, with the reversion to the settlor''s"right heirs. Power 
 to the settlor if he survived his wife, having issue by her a son, to 
 jointure any after-taken wife, to the extent of 50/. a year ; and if 
 no issue male, of 100/. a year ; and if no issue, 150/. a year, and 
 S,000/. for younger children's portions. Covenants for title and 
 further assurance. Power to the settlor to charge 500/. but not to 
 affect the jointure. Proviso, that if the settlor and liis brother 
 sliould die without issue, the estates should stand charged witli 
 2,000/. foi* the sisters of the settlor, or their issue. 
 
 The lands vested in the trustees in fee, were sold to Robert Birch, 
 under a decree for the payment of the incumbrances, which were 
 accordingly paid out of the purchase-money. 
 
 Robert Birch had notice of the settlement of 1747, in the year 
 1755. 
 
 Ann Kelly died in tlie life-time of Edmond, previous to the 2d 
 May, 1758, without having had issue. 
 
 Edmond, on the 2d of May, 1758, on his marriage witli Har- 
 riet Hincks, in consideration of a portion of .'2,500/., settled the 
 estates to himself for life, remsdnder to trustees to preserve, re- 
 
 {/>) fide supra, p. 560. 
 
 mainder
 
 APPENDIX, 49 
 
 malnder to the intent that tlie intended wife might receive a 
 jointure rent-charge of 300/, })cr annum, if tliere should be issue, 
 and subject thereto, to the first and other sons of the marriage 
 successively, in tail male; remainder to Edmond the settlor in 
 fee. 
 
 15th July, 176], Edmond, for a valuable consideration, con- 
 veyed to Robert Birch ttie settled estates in fee. Part of the con- 
 sideration the jury found to be the debts for which the estates 
 under the decree liad been sold. 
 
 The brothers of Edmond died in his life-time unmarried, and 
 \nthout issue. 
 
 The lessor of the plaintiff, was the grandson of Ignatius, the 
 wide. 
 
 Edmond, the settlor, died in 1768, without ever having had 
 issue. 
 
 The lessor x>f the plaintiff claimed under her father, Robert 
 Birch's will, and was entitled to a portion under a term of years, 
 created by his marriage settlement, wliich was made in considcr;u 
 iioi) of his intended wife's portion. 
 
 No. XXIV. 
 
 Shane v. Cadogan. 
 
 Rolls, December, 1808 {i). 
 
 Under a settlement made previously to the marriage of Earl 
 Cadogan and Frances, his wife, the sum of ■af20,000 was as- 
 signed to trustees upon certain trusts, under which, Williaiu 
 Bromley Cadogan, one of the children of the marriage, became en- 
 titled, subject to his father Lord Cadogan's hfe interest therein, to 
 one-fourth share of the ^20,000, which sum was afterwards In- 
 vested in the 3 per cent, reduced annuities, in the trustees names. 
 By an indenture, bearing date the 26th May, 1788, William 
 Bromley Cadogan assigned to Wllliani Rose, William Bulklev, 
 Duncan Stewart, and Alexander Giaham, their executors, ad- 
 miniiilrators, and assigns, all such pai-t, share, or proportion, as he 
 
 (0 Vide suprat p. jOJ. 
 
 d flic
 
 So A r r L M n 1 ii. 
 
 the said WlUlam Bromley Cadogan was entitcd to a:i aforesaid, 
 expectant on the decease of the Earl, his father, of and in the 
 said sum of 20,000, and all the interest which, after the de- 
 cease of the E.irl, should become due in respect of such share. — 
 To hold the same immediately after the death of the said Earl, 
 and subject to his life estate or interest tiicrein, in the meantime, 
 unto the said William Rose, Wilham Bulkley, Duncan Stevart, 
 and Alexander Graham, their executors, administrators, and 
 assigns.- Upon trust, immediately after the decease of Lord 
 Cadogan, by and out of the first monies which should be re- 
 ceived by, or come to their hands, by virtue of the same inden- 
 ture, to pay .i£1000 to such person or persons, and for such use:., 
 intents, and purposes, as he the said "William Bromley Cadogan 
 should, by any writing or writings under his hand, direct or 
 appoint; and, in default of such direction or appointment, then 
 to pay the said sum of £1000 unto the said William Bromley 
 Cadogan, or his assigns, to and for his and their own use and 
 benefit. And, upon trust, to place out or invest the residue or 
 surplus of the said monies and premises, as soon as might be, aOcr 
 the same should be received by them the said trustees, in such 
 stocks, funds, or securities as therein mentioned ; and to stand 
 possessed of all the said residue of the said trust monies whicli 
 should remain after payment of the said sum of .€1000, and of 
 tlie said stocks, funds, or securities ; upon trust to pay unto, or 
 authorize the said William Bromley Cadogan and his assigns, to 
 receive the interest, dividends, and annual produce, for his hfe ; 
 and after his decease, and, in case his -wife, the plaintiff', should 
 be then living, upon trust to pay unto, or authorize her and her 
 assigns to receive the interest, dividends, and annual produce 
 thereof for her life, for lier and their own use and benefit, the same 
 to be in lieu of dower ; and immediately after the decease of the 
 survivor of the said William Bromley C.adcgan and plaintift", 
 tipon trust, to pay, assign, and transfer the said residuum, and 
 the stocks, funds, or securities for the same, in such manner for 
 the benefit of the issue of the marriage between them the said 
 William Bromley Cadogan and plaintiff as therein mentioned ; 
 and ' for default of such issue,' upon trust, to pay, assign, and 
 transfer the same to such person or person.., and upon such trusts, 
 for such uses, intents, and purposes, and by, with, under, and 
 &ubjcct to such powers, provisoes, charges, conditions, and li- 
 pijtations over, as he the said AVilliara Bromley Cadogan, at any 
 
 time
 
 AFPE-S-DIX. 51 
 
 time or times during his life, by any deed or deeds, wriiin"' or 
 V. ritings. with or without power of revocation, to be sealed and 
 deUvered, in the presence of, and attested by two or more credi- 
 ble witnesses, or by his last will and testament in writing, or any 
 v»riting in the nature of, or purporting to b© his last will and 
 testament, to be by him signed and published, in the presence of, 
 and attested by such and the like number of witnesses, should 
 direct, limit, or appoint ; and in default of such direction or 
 appointment, or in case of any such and the same should not be 
 a complete disposition thereof, then upon trust, to pay, assifm, 
 and transfer the said residue, and the stocks, funds, or securities, 
 for the same or so much thereof, Avhereto any such direction or 
 ajipointment as aforesaid should not extend, to the said Earl Ca- 
 dogan (his father) liis executors, administrators, and assigns, to 
 and for his and their own use and benefit. And, in the same 
 indenture, is contained a proviso empowering the said William 
 Bromley Cadogan and his wife, the plaintiff, at any time durin"- 
 their joint lives, to revoke the said trusts, or any of them, and to 
 appoint or limit new or other trusts in the manner therein men- 
 iioncd. The 3 per cents, were sold, and the produce lent to the 
 Earl in 1786, upon real security, by way of mortgage. 
 
 William Bromley Cadogan, on the 11th May, 1789, made 
 his will, which was signed and published by him in the presence 
 of, and attested by two credible witnesses, and thereby directed 
 his executrix to sell a leasehold estate at Readinj;: " and as to 
 ihe money arising from the sale thereof, I give the same to my 
 executrix; and as to ali the rest and residue of my estate and ef- 
 fects whatsoever, I give and bequeath the same to my dear Mife 
 Jane Cadogan." And he appointed her liis sole executrix. And 
 the said testator shortly afterwards made a codicil to his will, 
 which was not attested, in the words foRowing : ^Vhcrcas, by mar- 
 riage settlement, I have given to my dear wife Jane Cadogan, 
 for her life, the whole interest of the moiety of my mother"'s for- 
 tune which was settled upon me, as will appear by the settlement 
 itself, reserving to myself c£l 000 for my own private use. And, 
 whereas, I borrowed at Midsummer, 1789, of Mr. William Mav, 
 of Bingficld Mill, the sum of -C(iOO at 4i percent, interest, and 
 gave as security for the same, the joint bond of myself, the 
 Reverend Mr. Bulkley, and Mr. \Villiam Simmonds Higgs, of 
 f*Hngbourn-lanc, Reading; I hereby direct, that the above-mcn- 
 
 d fv tionc(l
 
 5^ Al'rKXDIX. 
 
 tloncd lOUU/. be appropriated to llic discharge and paynicnl oi* 
 the said bond; and if it shoidd be convcniont to my dear and 
 lionouied father, the Right Honourable Lord C'adogan, to pay 
 tlie said sum of ^GOO, to the aforesaid Mr. ^la}', of Birgfield, 
 and to take to liimself tiie 4', per cent, interest, and deduct the 
 whole principal and interest out of the moiety of my mother's 
 fortune, wliich comes to me and my heirs at his decease, I shall 
 Cotecm it a great favour added to the many I have received froui 
 him before. And the testator afterwards made a codicil to his 
 Avill, also not attested, in t lie words following: In November, 
 1700, Lord Cadogan was so kind as to pay the above-mentioned 
 ^600 for rae to Mr. May, of Bingficid, by the which tathcriy 
 act of goodness, added to many others of the same kind, I am 
 freed from all debts and incumbrances whatever, excepting an 
 amiiiity of ^10 a year, which I am engaged to pay to ]Mrs. 
 Warsand, Mrs. Cadogan's aunt, now livhig at I'aradise-row, 
 Chelsea, for her life ; and also to pay the expenses of her fu- 
 neral. 
 
 There Wtos no child of the marriage between ihe testator and 
 Ills wife. The testator did not, in his life-time, in any manner, 
 execute his general power of appointment in tlie indenture of 
 26th May, 1783, or his power of appointment of the said sum 
 of oClOOO, unless by his will ; nor did he, together with the 
 plaintiff, execute their joint power of revocation therein con- 
 tained. 
 
 The plaintiff claimed to be entitled to one-fourth part of the 
 ^20,000, and the bill was filed against the executors of the Earl 
 of Cadogan, to establish her right. 
 
 The defendants, in their answer, stated, that the Earl paid off 
 the .^600 and interest, mentioned in the codicils ; and they sub- 
 mitted, that they became entitled to be repaid such sinn, out of 
 the .^1000; and they claimed to be entitled to the whole of the 
 fourth shai-e of the said William Bromley Cadogan, subject to 
 the plaint ifTs right to the interest for her life (save and except 
 the aforesaid .^1000, part thereof,) under the indenture of 26th 
 of May, 1783. 
 
 Mr. Richards, IVIr. Stephen, Mr. Rowdier, and Mr. Sugden, 
 for the plaintiff. The argument of the latter, which in a great 
 measure was a repetition of the arguments before urged, is the 
 only one of which he is enabled to give the reader a full note. 
 
 it was to the following effect:^ — 
 
 The
 
 APPEXDIX. 53 
 
 Tlie first question is as to tlie .<G00. The defendants might 
 as well contend tliat the^ are intitled to an account of every sum 
 advanced by the Earl to his son. In (,'very case, Ij^'tween a fa- 
 ther and child, a provision by the father is deemed an advance- 
 ment for tlie child, on account of the connexion of blood. If a 
 father purchase in the name of a child, prima facie, it la an ad- 
 vancement for the child, and the evidence to rebut this lies on the 
 father; wliereas, if a purchase be made in the name of a stran- 
 ger, the presumption is otherwise, and the evidence to rebut it 
 lies on the stranger. Besides, if the question here was between 
 strangers, payment might be pleaded although twenty years have 
 not yet elapsed. Lord Mansfield laid it down, that 16, 18, or 19 
 years were sufficient whereupon to found the presumption ot' pay- 
 ment (iNIayor of Hull v. Horner, Cowp. 109; Oswald v. Leitrli, 
 1 T. Rep. 270), and Lord Erskine so considered tlie rule (Mil- 
 iary V. \Valler, 12 Ves. 26G). And even if payment would not 
 be presumed, yet a jtuy would, in this case, be directed to find 
 a release. (Washington v. Brymer, App. to Peake's Evid.)— 
 [This point was given up by the defendants.] 
 
 The principal question, however, is, whether the power is ex- 
 ecuted ; and firiit, whether it is executed by the will alone. I 
 must admit, that in general a sweeping disposition, however un- 
 limited in terms, will not include property over Avhich the testator 
 has merely a power, unless an intention to execute the }>owcr can 
 be inferred from the will. But great judges have disapproved of 
 this rule. Lord Alvanley, in Langham v. Xenny, 3 Ves. Jun. 
 4G7, ^vished that the rule had been otherwise, and that it had 
 been held that a general disposition would operate as an execu- 
 tion of the power; and in Nannock v. Ilorton, 7 Ves. Jun. 391, 
 Lord Eldon said, that he was not sure that the rule, as now 
 established, did not defeat the intention nine times out of ten. In 
 favour of the rule it has been said, that to overturn it would be 
 to destroy the distinction between power and property. That I 
 deny. The marked and only material distinction between power 
 and property is, that in the case of absolute property, altlioujrh 
 the party make no disposition of it, yet it will ilcscend to his 
 representatives ; whereas, a person must actually execute his 
 power, or the fund will go over to the person to whom it is given 
 indefaulfof appointment. But why should not the same words 
 operate as an e.\'ccutiun of the power which would pai-s the ab- 
 
 d Jj solute
 
 5i A I' P EH D IX. 
 
 solulc interest? Where is the distinction as to the purposes of 
 disposition between a f^cneral power like this aiid the ahsoKite in- 
 terest ? If the solemnities required by the power areadjiered to, 
 it would startle a man of conunon sense not versed in legal sub- 
 tleties, to understand so refined a distinction. As therefore the 
 rule stands upon no principle, and has been regretted by great 
 judges, the court will be anxious to distinguish cases, and not to 
 consider every case as within this general rule. Now there is 
 not a single case in the books which governs the present. Ours is 
 a peculiarly strong case. The gift to the earl in default of ap- 
 j (ointment, was without consideration, and the parties had a power 
 of revocation. '1 he persons who prepared the settlement did not 
 understand the distinction between power and property They 
 gave the dPlOOO to such persons as Mr. C. should appoint, and in 
 default of appointment to him and his assigns. There the jx>wer 
 was merely nugatory : it was not larger than the gift, nor difl'erent 
 from it in effect. Besides, here the property moved from Mr. 
 ( 'adogan ; the settlement as to the earl was merely voluntary, and 
 the power was part of Mr. Cadogan's old dominion, and conse- 
 quently the exe;.ution of it must receive a favourable interpreta- 
 tion. In this respect all the cases are distinguishable. Moultcu 
 \. Hutchinson, 1 Atk. 558; Andrews v. Emmott, 2 Bro. C. C. 
 1297; Buckland v. Barton, 2 H. Blackstone, 136; Croft v. Slee, 
 1- Ves. Jun. GO ; Nancock v. Horton, 7 Ves. 391 ; and Bradley v. 
 W^estcatt, 13 Ves. 445; are all cases where the power was given 
 by one person to another, and cannot be compai'ed to our case, 
 where the power was reserved by the pai-ty over his own property . 
 There are two cases, I must admit, where nearly the same circum- 
 stances did occur. Ex parte Caswall, 1 Atk. 599; Bennet v. 
 Aburrow, 8 Ves. 609- But the first case came on merely upon 
 a petition, and Lord Hardwicke said he would not say what his 
 opinion would be if it came on upon bill and answer. Besides, 
 Lord Hardwicke overruled this case by a later determination, a^ 
 I shall presently shew. In the last case the property in defaul' 
 oi" appointment was given to the next of kin, which may be 
 thought to distinguish it from ours. But if there is no authority 
 aj^ainst the plaintiff, there are two very considerable cases in her 
 favour. The first is Maddlson v. Andrews, 1 Ves. 57. There a 
 man made a settliement reserving to himself power to charge, li- 
 mit, or appoint the estate with any sum not exceeding .£1000. 
 iiy Jii,^ will, without making the slightest reference to his power, 
 
 he
 
 APrEXDIK. 
 
 he gave some legacies, and then cliarged all lus eetate wiili the 
 payment of his dehts and legacies. Lord Hardwicke held that 
 the power was part of the old ownership; and that it was but a 
 shadow of difference that lie had ciiarged all his estate; whereas 
 this was befoie settled to uses, for these powers to the owner were 
 to be considered as part of the property. Now this is precisely 
 our case, and to decree against the plaintiff, your honour must 
 overrule Lord Hardwicke's decision. Tlie other case is Standcn 
 V. Standen, which has been already so justly relied on. It is 
 impossible to read tliat case without seeing that Lord liosslvn 
 would have decided it, on the ground of the power being equi- 
 valent to the owTicrshJp, even if the circumstance had not oc- 
 curred to which the decision is generally referred — that the tcsr- 
 tatrix had no real estate except what was subject to the power. 
 And yet in that case the power was a gift by a will from a hus- 
 band to his wife, and was not, as in our case, a part of the do^ 
 nee's old dominion. 
 
 But if the will of itself is not an execution of the power, that 
 and the codicil taken together certainly arc. 'I he operation of a 
 codicil even in respect of real estate, is to republish the w ill, and 
 pass after purchased estates, although not noticed, if executed 
 According to the statute of frauds. Piggott v. Waller, 7 Ves. 
 Jun. 98. And where, as in our case, new matter is introduced, 
 it forms an integral pai*t of the will, in the same manner as if it 
 had actually been inserted in the will at the time of its execution. 
 And on tijis ground a codicil may explain a doubtful expression 
 in the will, or may give an estate b}' implication, where the tes- 
 tator refers to what he supposes he has d<?ne by his will, although 
 the dis]X)sition in the will is not what he states it to be. Hayes v. 
 Poorde, 2 Blackst. 698 ; Beable v. Dodd, 1 T. Rep. 193. In 
 our case the wordfi in the will are sufficient, if an intention ap- 
 peared to execute the jxjwer, and as such an intention docs ap- 
 pear by the codicil which forms part of the will, they both toge- 
 ther amount to an execution of the jxjwer. It is impossible to 
 misunderstand the words in the codicil, " which comes to me and 
 my heirs at his decease." They admit of but three constructions 
 — 1st, He considered the fund as having passed to his devisee, 
 who was his liocrcs fudus: or 2d, he adverted to its going to his 
 hceres natus, or child under the settlement : or 3d, he looked to 
 ;)ie event of its going to his father, tlie earl, in default of ap- 
 
 d '% point mciit
 
 IjQ ArrKNJjix. 
 
 |)olntmcnl. Tlie 2d cannot be tlic right constraction ; for if there 
 was issue to take the fund, their riglit would prevail over the 
 testator's, and the earl could not retain his debt out of a fund 
 Avliich would in tliat event belong to tlicm. The last construc- 
 tion is absurd : it would amount to a request, as lias Ijccn ah'cady 
 shewn, to a man to pay himself a debt out of liis own money.— 
 But ho considered the property as having passed to Jiis wife ; and 
 as he knew that it was in the hands of liis father, who had a life 
 interest in it, he requested him to retain the money out of it, and 
 Bot to let his wife be troul)lcd for it till the property given to her 
 fell into possession. This then dearly establishes the first con- 
 struction. Our case must not be compared to Holmes v, Coghill, 
 7 Ves. 429, 12 Ves. 206; for there the power executed by thcAvill 
 Avas discharged before the execution of the codicil. 
 
 It will, however, I suppose, be objected, that the codicil is not 
 attested, and consequently cannot be deemed an execution of the 
 power. But it is sufficient where a power is executed by several 
 instruments, that the principal one is duly executed. Eaii of 
 Leicester's case, 1 Ventr. 278. The wili and codicil amount to- 
 gether to an execution of the power. But I need not insist upon 
 this, because the plaintiff being a wfe, is intitled to have the 
 defect in the execution supplied; and it is not material that she 
 is in part provided for, because the husband is the judge of the 
 quantum of provision ; nor is it nfiaterial that the provision was 
 made qfier marriage, although to constitute a good settlement of 
 realty, as against a purchaser, a settlement after marriage is 
 merely voluntary. Fothcrgill v. Fothcrgill, 2 Frccm. 256 ; 
 Hervey v. Hervey, 1 Atkv 561 ; Churchman v. HcU-vey, Ambl. 
 335. 
 
 But strong as these grounds arc, they are not the only ones 
 upon which the plaintiff's case may be rested. I mean to con- 
 tend, that the supposed settlement of Mr. Cadogan was merely 
 tantamount to articles, that the gift to the earl was voluntary, and 
 con.sequently cannot be enforced by this court, and that it is 
 immaterial that the funds are now actually vested in the executors 
 of the earl. I may admit, that if we asked the court to execute 
 the articles, they must be executed in tola. But we do not re- 
 quire the aid of the settlement to support our title ; we ai-e con- 
 tent to take this fund as part of Mr. Cadogan's property dis- 
 charged from the settlement. To constitute an actual settlement, 
 so as to enable a volunteer to ^laini lUe benefit oi' it, it is abso- 
 
 luteljf
 
 Ari'EXDix'. 57 
 
 3utely neccssaiy, that llic relation of trustee and cestui que trust 
 should be established. Here Mr. C. did all lie could ; but that 
 is not enough. He could not make an actual transfer. The 
 trustees in whom it was vested, would not have been authorised 
 in transfen-ing it of their own authority to the trustees of IVIr. 
 C'i settlement. If a man is seised of the legal estate^ and agree 
 to make a voluntarij settlement, it cannot be enforced. Can it 
 make any difference that the legal estate happens to he outstanding? 
 Certainly not. As the settlement therefore was not completely pcr- 
 fcctcMil, the Earl could not enforce it. It will not be pretended, 
 that there is any consideration as between a child and father, wliicli 
 will call for the interference of this court. The fadicr is as a 
 mere stranger. It was so as to covenants to stand seised ; and 
 this court does not even advert to every consideration which is 
 sufficient to raise a use under a covenant to stand seised. In 
 Stephens v. Trueman, 1 Ves. 73, where an agreement by a child, 
 to settle an estate in the events which had ha^ipened on her father, 
 was enforced, it was not even hinted, that there was any con. 
 sideratioii as between the child and father ; but the decision was 
 grounded on the gift by the father of 500/. to the child. And in 
 all the cases on this subject, it will be found that the decisions 
 proceeded on the ground of some consideration given for the set- 
 tlement on the strangers. Goring v, Nash, 3 Atk. 186, was the 
 mere case of a settlement by a father on liis younger daughter. 
 Osgood V. Strode, 2 P. Wms. 245, was an actual purcliase by 
 the grandfather of the limitations to his grand-children, Vernon 
 and Vernon, in the same book, 594, turned upon something like a 
 moral consideration. Lord Chancellor King did not consider it 
 a voluntary conveyance, 2 Kel. Cha. Ca. 10. Besides, tlicre the 
 court reUed upon the covenant which might be enforced at law ; 
 and, therefore, to prevent circuity, they enforced a performance 
 in specie. But even that doctrine is now oven-uled, Hale's case, 
 Ch. 1764; and in our case there is no covenant. The general 
 doctrine in these cases is recognized in Colman v. Sarrcll, 1 \'cs. 
 Jun. 50 ; followed Ij^ERison v. Ellison, G Ves. Jun. Go^. In this 
 case, it is not material that the fund is actually vested in the 
 defendants; })ecausc it is vested in them in a different right. — 
 This court will never permit a mortgagor under a settlement Ui 
 claim the fund in a different character. In Ellison v. Ellison, 
 Lord Eldon considered, that when the relation of trustee and 
 cestui (juc trust \vas actually raised, allhuuj^h ihv ^vltlement was 
 
 vyluntai \
 
 53 APPEKDIX. 
 
 voluntary, it was not material that tlie fund had, by the ef- 
 fect of accident, got back to tlie settlor, as if the trustee of stock 
 should make the settlor his executor. Now, the converse of 
 this proposition must equally hold good, and that is our case. — 
 It is like a late case before your Honour, where a legacy was 
 given to a married woman by a will, and the husband was 
 made executor, and received the legacy ; and your Honour held, 
 that he had not reduced it into possession, so as to prevent 
 iiis wife^s right by survivorship. And why ? Because he had 
 received it as executor, and not in his marital right. Tho 
 characters were totally distinct. That decision must govern our 
 case. 
 
 Sir Samuel Romilly and Mr. Raithby for the defendants. 
 
 To hold the will to be an execution of the power would be to 
 overrule all the cases on residuary bequests. The case of Madi- 
 son V. Andrew decides nothing more than that where a man has 
 a general power of appointment, the fund shall be subject to his 
 debts, which has long been the law of this court, [blaster of the 
 Rolls. — But there, as in this case, the estate v.as settled subject 
 to the power.] At any rate that case is not now an authority. As 
 to the codicil, it is said, that the defect may be supplied ; and so it 
 may in common cases, but here it cannot be looked at, as it is not 
 attested ; because, here no intention appears to execute the power 
 on the face of the instrument. A clear intention must appera* 
 before the court can aid the defect. The codicil is against the 
 plaintiff. It shews that he forgot there was any power. He 
 thought, in default of issue, the property would revert to him. 
 And, if he forgot his power, the court cannot hold that this will 
 pass under a bequest of property. The plaintiff admits that the 
 Anil of itself would not be an execution of the power, and the 
 codicil amounts to nothing ; for this is the case of a non-execution, 
 and not of a defective, execution. As to the point upon the set- 
 tlement being voluntary, if it be correct, it cannot be acted upon 
 in this case, because the plaintiff states the settlement, and grounds 
 her title upon it. The question is not made by the bill, and can- 
 not now be gone into, even admitting that the law is as stated ; 
 whereas, here the fund is actually assigned, and the defend- 
 ants do not require the assistance of the court to defend their 
 title. 
 
 Mr. Richards in reply. 
 
 The limitation to the Earl of Cadogan was merely voluntary; 
 it was a mark of respect to him ; but; in point of law. he was 4 
 
 niere
 
 APPENDIX. 59 
 
 ^YiOTe stranger. lie could not have required a subpoena against 
 our trustees. And, in fact, the defendants are asking relief, as 
 they want to retain the fund, although tliey are bound to re-as- 
 sign it in their character of mortgagors. [Master of the Rolls, 
 Lord Cadogan could not have come here, requiring Mr. Cadogan 
 to give him a Ix^tter security for the money. But here did Lord 
 C. stand in need of any other aid ? The assignment was as good 
 an assignment as could be made of this reversionary interest. You 
 may be a trustee for a volunteer.] Upon the \n\\ and codicil taken 
 together, there can be no doubt but that this power was duly exe- 
 cuted. The words in the codicil admit of no other meaning dian 
 that the property was given to his wife by his will. 
 Master of the Rolls, ha^^ng taken time to consider : 
 Two points were made on the part of the plaintiff; First, tliat 
 It was not necessary that the husband should execute the power. 
 But, 2dly, if it was, that liis will did amount to an execution of 
 it. As to the first, it was said that the gift to Lord Cadogan was 
 merely voluntary, and Lord C. could not have had any assistance 
 from this court : that the question is the same as if the rcprescH- 
 tatives were parties seeking relief, as the circumstance of his exe- 
 cutors having the money makes no difference, and I tliink that 
 that circumstance is immaterial. But, as against the party him- 
 self, and his representatives, a voluntary settlement is binding. 
 The court will not interfere to give perfection to the instrument, 
 hut you may constitute one a trustee for a volunteer. Here tlie 
 fund was vested in trustees : Mr. AV. Cadogan had an equitable 
 reversionary interest in that fund, and he has assigned it to cer- 
 tain trustees, and then the first trustees are trustees for his as- 
 signs, and they may come here, for when the trust is created no 
 consideration is essential, and the qourt will execute it though 
 voluntary. 
 
 Then the question is as to the power. The will, it was hardiv 
 contended, although attested, would amoimt to an execution of 
 the }X)wer. The circumstance of the attestation has been held 
 not to be material, and it is now settled that a general disposition 
 will not include property over which the party has only a power, 
 unless an intention appear. But it is said, here is a codicil which 
 \\i]\ amount to an execution. For this no authority was cited ; 
 and I am not aware that the conception of the testator, of hi> 
 power over his property, is ever referred to, except for the purpose 
 of election. But here the question is upon an execution of a 
 power. This point, however, is immaterial, as the codicil does not 
 
 cstablibli
 
 CO A I- r £ N JJ 1 X. 
 
 establish tlie lcstatoi"s intention ; lie uses expressions descriptive 
 only of the interests which his mother''s settlement gave him in tlu 
 fmid, but that does not she\\ that he meant to exercise tlie power. 
 It is quite evident that lie had not forgot his jjowcr. Here he 
 remembered the settlement, and states that he had an absolute 
 power over the 1000/. The request is not evidence that he might 
 not consider that Lord C. would not, in some event, become en- 
 titled to the property. But here he meant only that the money 
 should be deducted out of the 1000/. The codicil does not shew 
 that he considered all the property was his, which is necessary ; 
 and I should conclude the contrary. The bill must be dismisseci 
 as to this fund. 
 
 No. XXV. 
 
 Burij V. Bury (A,), Ch. Wth July, 17 It). 
 
 Sir Thomas Bury being seised of a freehold estate, arid alst- 
 possessed of a leasehold estate, on the marriage of his son, Tho- 
 mas Bury, by L. and Rel. 3d and 4th January, 1725, settled th? 
 freehold estate on himself for life ; remainder to his wife for life ; 
 remainder to Thomas, his son, for life ; remainder to his intended 
 wife for life ; remainder to his first and other sons in tail male, 
 Avith remainder to plaintiff for life, with remainder to his first and 
 otlier sons in tail male ; with remainder over : and the leasehold 
 premises were assigned to trustees, to raise money to renew the 
 lease, then to pay the rents to Thomas, the son, for his life ; re- 
 mainder to his intended wife for her life ; remainder to his first and 
 other sons ; remainder to the trustees, to pay the rents to plaintifl 
 tor his hfe ; remainder to his first and other sons, with remaindci 
 over. 
 
 The marriage took effect ; the wife died w ithout lea\diig an\ 
 issue male. Sir Thomas died. 
 
 Thomas Bury, on his second marriage ^vith the defendant, hav- 
 vag renewed the lease, by indenture, dated tilst Dec. 1736, settled 
 the leasehold premises to himself for life, remainder to his second 
 yn^ii, the defendant, for life, with remainders over ; and therein 
 taking notice, that the said Thomas Bury teas seised Jbr the term 
 
 (jk^ VUi svpT.-.. p. ca;), G'^^, 
 
 of
 
 APPr.NDIX. 61 
 
 '}/ his natural life with a poraer of jointuring in the said freeliold 
 ^ands, did, for enlarging the jointure, gi'ant the same to her for 
 life, with remainders over. 
 
 The marriage took effect : Thomas Bury died without leaving 
 any issue male, either by his first or second wife; so that the plain- 
 tiff became entitled to the leasehold premises, by virtue of the set- 
 tlement made on Thomas Bury's first marriage. The bill was 
 brought against the second wife for an account of the rents and 
 profits of the leasehold premises, and to have all deeds and writ- 
 ing relating thereto delivered up. 
 
 The defendant denied that she had any notice of the deeds, 3d 
 and 4th Jan. 1725, or that there was any settlement of the lease- 
 iiold premises, or that any such deed was delivered to her with the 
 rest of the writings. There was only one witness who had proved 
 he had bceii employed to look over the title for Thomas Bury 
 and defendant ; and that amongst the papers he had seen a 
 foul draft of the former settlement, and that there was no power 
 of jointuring in the leasehold premises, which he told Thomas 
 J{ury of. 
 
 Lord Chancellor. There are two questions : 1st, Whether she 
 had notice ? 2uly, if no notice, Whether she can protect herself 
 under the lease renewed by her husband ? 
 
 As to the 1st, there is no positive evidence of notice : she de- 
 nied it by her answer, au 1 there being only one witness against 
 that answer, a decree cannot be made upon that one witness's 
 testimony. Where an agent has been employed for a person in 
 part, and not throughout, yet that affects the person with notice : 
 here the recital in the deed of the power of jointuring was suffi- 
 cient to have made defendant have inquired into it, and therefore 
 shall afl'ect her. In Le Neve v. Le Neve she admitted Norton was 
 •icr agent ; and so that differs from this case. 
 
 As to the 2d, There was no surrender of the former lease, for 
 the legal estate was in trustees, and therefoi-e the court is to judge 
 only as between cestui que trusts ; and th.ough the lease was re- 
 newed by T. Bury, yet it must follow the trust of the whole term, 
 and he can have no contribution for what he paid, for he enjoyed it 
 during his life. If a lease or deed is wrongl'ully given up or dc- 
 istroyed, you may give evidence of the purport of the deed, or 
 liave a discovery from the grantors. — Decreed, that no alteration 
 was made in the former trusts by Thomas's renewal cf the lease. 
 
 INDtX
 
 I N D E X. 
 
 lit order to avoid repetition, the points have been arranged ynder the heads to which 
 they appeared principally to belong, and references have been loade to the prin- 
 cipal heads from every other title to which it was thought a reader would refer for 
 Hiiy pariicukr point. To give an instance, under the he.id, Bankruptcy, ylct of, 
 t!ie reader is referred to " Notice," where he nill find, whether or not an act of 
 bankruptcy is notice to a purchaser. 
 
 \ 
 
 BSTRACTS, Page 
 
 what should be attended to in examining them , 8, n. 
 
 if the abstract be not ready at the day, the vendor cannot 
 tMiforce the contract at law . , . 330 
 
 but if the purchaser do not call for the abstract in suf- 
 ficient time to complete, or receive it after the day 
 fixed, tqiiify will relieve the vendor . 331 
 
 roust be furnished by the vendor, at his own expense 349 
 
 should mention every incumbrance . ; ib. 
 
 is considered complete, when • . ib. 
 
 for what purposes delivered . . 350 
 
 lo whom the property of it belongs . . ib. 
 
 purchaser may maintain trover for it, pending the contract, 
 if retained by the seller . . ib. 
 
 See Time. 
 
 ACRES, 
 
 what shall be deemed customary, and what statute 276 
 
 ACT OF PARLIAMENT. See Notice. 
 ACT OF BANKRUPTCY. Sec Bankruptcv, act of. 
 ACTION, 
 
 a party is entitled io recover a penalty, where . 193 
 
 may be brought by a purchaser for breach of contract, 
 where « , , ib. 
 
 ACTION,
 
 6i. INDEX. 
 
 J'a«e 
 
 ACTIO'S^C continued) 
 
 may be brought by a piirchaser for damages in case of fraud, 
 
 although he has paid the money under a decree 205 
 
 purchaser bringing an action for his deposit on account of a 
 
 defect in title, must prove it bad . . 207 
 
 purchaser may either bring an action for non. performance, 
 
 or for money had and received, in what cases . 206 
 
 purchaser will obtain nominal damages only where the ven- 
 dor, without fraud, cannot make a title . 207 
 
 or where an agent, without fraud, has sold without a 
 proper authority . . . ib. 
 
 purchaser bringing an action, must give the vendor a parti- 
 cular, of what . . . f 209 
 a vendor bringing an action must shew his title to the estate 210 
 where a vendor brings an action for the purchase-money, a 
 court of law may enter into equitable objections, semble 212 
 so if a purchaser brings an action . . ib, 
 on breach of contract, cannot be brought by a purchaser 
 without tendering the conveyance and purchase-money 215 
 unless the vendor's title is bad, or he has incapacitated 
 himself to perform the agreement . 217 
 cannot be brought by a vendor, without having executed the 
 conveyance, or offered to do so . . 214 
 See Abstract. Auctioneer. Covenants for 
 Title. Damages. Interest. Purchaser, 
 Title. Title-Deeds. Vendor. 
 ADVANCEMENT, 
 
 purchase by a father in the name of his child, although ille- 
 gitimate, is an advancement . . 535 
 so a grant of copyholds, successive, to children as no- 
 
 minees » , , . 536 
 
 if the father be a papist, incapable of purchasing, the 
 case is stronger . . . ib. 
 
 but the child must be unprovided for . ib. 
 
 or must be considered by the parent as unprovided 
 for .... . 537 
 
 possession by the father, during the child's infancy, is im- 
 material .... 538 
 so even where the child is adult, semble , ib, 
 the parent laying out money in repairs, S(c. is immaterial 539 
 
 AD.
 
 INDEX. 65 
 
 ADVANCEMENT— (con^inw^d) 
 
 so a declaration of triisf, or devise by the father, 
 
 subseqiieiiily to the conveyance . 539 
 
 but if a conveyance to a son is for a particular 
 pur[)OS(', a trust will result to the father ib. 
 
 or the child may be put to his (-lection ib. 
 
 purchase by a father in the joint names of himself and child, 
 although an advancement, is not so strong a case as the 
 other, qu. . . . . ib. 
 
 where the father is dead, a purchase by the grandfather in 
 
 the name of the grandchild is an advancement . 541 
 
 purchase by a husband in the name of his wife is an ad. 
 
 vancemeiit . . , . ib, 
 
 puichase by a father, in the name of his wife or child, is 
 voidable by creditors, where . . ib. 
 
 See Evidence. Purchaser. Resulting 
 Trust. 
 AGENT, 
 
 (he extent of his authority . , .36 
 
 cannot buy the estate of his principal . . 504 
 
 employed by parol to buy an estate, and paying all the mo- 
 ney, cannot be compelled to convey it to his principal 534 
 but if he deny the agreement, the principal is a compe- 
 tent witness to prove the perjury . . ib. 
 who is a sufficient agent within the statute of frauds 87, 90 
 estates bought by an agent witli his principal's money may 
 
 be followed, where . . . 543 
 
 purchaser must not pay money to the agent of the vendor 
 
 before the time ap{)oin(ed . , 37 
 
 his authority may be revoked, when . . 88 
 
 effect of his evidence against his signature as agent , 89 
 
 must 1)6 a third person ... 91 
 
 payment of deposit by an agent for a purchaser, may be re- 
 co?ered by the latter, where . , , 206 
 
 See Attorney. Auctioneer. Evidence. 
 Notice. 
 AGREEMENTS, 
 
 will be enforced in equity, 
 
 against the heir at law of a vendor . . 173 
 
 but whether this will be done during the mino- 
 rity of the heir, qu. , . . ib. 
 e AGREE-
 
 Q6 IKDEX. 
 
 I'ugn 
 
 AGREEMENTS— (^fo»<i*/m<?(Z; 
 ■will be enforced, in equity, 
 
 against equitable issue in (ail, where tliere has been a decree 
 
 in the ancestor's life.time, semble . 1/6 
 
 a widow entitled to free bench, where . 178 
 
 the survivor of joint tenants, where . ib. 
 
 a husband who has covenanted to sell his wife's estate, 
 
 where . . . 178, 179 
 
 a person beconring lunatic afler the contract, where 181 
 a person entitled, in default of execution, of a power 
 of sale, where a legal contract has been made under 
 the pow( r, and the power is extinguished by the 
 deaths of parties . . . 1S2 
 
 although the agreement is by parol, where, and where 
 not ... . 93, 114 
 
 the vendor or vendee become bankrupt . 15 i 
 
 the vendor or vendee be dead . , 155 
 
 the purchaser is a nominal contractor, where, and 
 
 where not . . . 190 
 
 void at law, where, and where not , 1D2 
 
 a penalty be imposed , , 194 
 
 the estate is destroyed, where . 235 
 
 the consideration, being contingent, has failed, where 238 
 the vendor has not the interest which he pretended 
 to sell, or a title to the whole estate, where, and 
 where not . . 243, 255 
 
 the purchaser knew that the seller could not grant 
 
 the whole interest sold, semble . 259 
 
 the estate is freehold, and was sold as copyhold, 
 
 where .... 2S4 
 
 the estate be defective, where, and where not 26l 
 
 win not be enforced in equity, 
 
 against issue in tail, where no fine or recovery . 176 
 
 a widow entitled to dower . . 178 
 
 a feme covert ... ib, 
 
 where an agent has sold the estate in a manner not autho- 
 rised by his authority . . 186 
 an agent has committed a gross breach of trust to his 
 principal in the sale . . . 187 
 so of a trustee . . , ib. 
 
 AGREE.
 
 INDEX. G7 
 
 AGKEEMENTS— (con^mMed.) '°^ 
 
 will not be cnforred in equity, 
 
 when mace in a state of intoxication . 164 
 
 where it would hf particularly hard on the party against 
 
 whom ic should be decreed . 184, 185 
 
 there has been supprcssio veri, or suggeslio falsi 185 
 there Has been a surprise . . 186 
 
 a vendor has industriously concealed a latent 
 
 defect , . . 2, 271 
 
 or not disclosed a latent defect . 2, 266 
 
 or was not bonajide owner of the estate at 
 
 the time of the contract . 188 
 
 or although a bonajide contractor, yet cannot 
 make a title , ; ib. 
 
 the remedy is not mutual . . 259 
 
 the purchaser can obtain only an undivided part of 
 
 the estate contracted for . . 252 
 
 the estate is leasehold or copyhold, and the pur- 
 chaser contracted for freehold . 253 
 general rules by which equity is guided in granting a spe- 
 cific performance . . . 183 
 io purchase and settle an estate, what is a performance 545 
 to grant a lease, where binding on a purchaser 630, 632 
 to provide a purchaser for an estate, how performed 42 
 in the hands of one party may be obtained by the other to 
 
 stamp it . . . . 211 
 
 wiiere there is only part of the agreement, itnnist be pro- 
 duced on an action . , • ib. 
 See Consideration. Covenants. PuncnASER. 
 Statute of Frauds. Time. Title. Vendob. 
 Voluntary Conveyance. 
 AEIEN, 
 
 can only purchase for the benefit of the king . 501 
 
 unless he be made a denizen , . . ib^ 
 
 AMBIGUITIES, 
 
 may be explained by parol evidence, where, and where 
 not . . t • 134, 153 
 
 ANNUITY, 
 
 estate sold for an annuity must be secured, how, where no 
 agreement , . . .219 
 
 e 2 AN-
 
 68 INDEX. 
 
 Page 
 Al^NVlTY —(continued.) 
 
 estate sold for a life annuity must be conveyed to the pur- 
 chaser, although tiie annuitant dies before the conveyance, 
 where .... 238 
 
 act considered . . . ■'^PP- ^^ 
 
 lands charged with annuities continue liable in the hands of 
 a purchaser .... 442 
 
 See Incumbrances. 
 APPOINTMENT, 
 
 must be registered under the registry act . 603^ 
 
 See Power. 
 APPRAISEMENTS, 
 
 duties on , . , ,• 4o 
 
 ASSETS. See Executor. Purchase-Money. 
 ASSIGNEES OF BANKRUPTS, 
 
 a mere attempt to sell a lease by auction, will not make 
 
 them chargeable as assignees ... 40 
 
 their acceptance of a lease relieves the bankrupt . 41 
 
 buying in an estate without authority are personally bound 60 
 must make the same title as vendors sui juris . 308 
 
 must make good a covenant for further assurance, although 
 the bankrupt was tenant in tail, and did not suffer a 
 recovery . .... 498 
 
 cannot purchase the bankrupt's estate . . 504 
 
 and such a purchase is a sufficient cause of removal 505, n. 
 assignee permitting his co-assignee to buy the estate, is 
 a sufficient cause of removal . • ib. 
 
 See Auction. Lien. Time. Title. 
 ASSIGNMENTS OF TERMS. See Tekms of Years. 
 ATTESTED COPIES, 
 
 the expense of them should be provided for on sales . 30 
 
 should be taken of the parcels, where the estate is sold in 
 
 lots . . . . .42 
 
 what attested copies must be furnished to the purchaser by 
 
 the vendor u . . • • 389 
 
 semble, that an agreement to produce the title-deeds will 
 
 not bar the purchaser of his claim to attested copies 390 
 
 vendor must, at his own expense, furnish the purchaser with 
 a covenant to produce the deeds . . ib» 
 
 and a purchaser is entitled to see the deeds 351, 390 
 
 AT-
 
 INDEX. 69 
 
 Page 
 
 ATTESTED COVIES— {continued.) 
 
 purchaser obtaining possession of the deeds, may retain 
 
 them, where . . . 391 
 
 purchaser will be obliged to take copies if the deeds are 
 lost, where . , , ib. 
 
 ATTOHNEY, 
 
 if an atlorney sell an incumbered estate without disclosing 
 
 the incumbrance, he is rf-iponsibie to the purchaser 6 
 
 (he vendor's attorney should not be employed by the pur- 
 chaser • , . , ib. 
 should attend to what, in examining abstracts . 8, n. 
 bidding beyond his authority will himself be liable . 36 
 but not unless he be limited as to price . ib, 
 has what remedy where the principal denies the authority ib. 
 buying in on etate without authority is personally bound 59 
 cannot buy from his client whilst the relation subsists 507 
 but he is not incapable of contracting with his client 515, 516 
 how he should execute an agreement for sale of the princi- 
 pal's estate . . . .42 
 is answerable to his client in case of neglect . 408 
 purchaser not bound to take a conveyance executed by at- 
 torney . . . 352 
 vendor not compellable to execute by attorney . 353 
 to a commission of bankruptcy, cannot purchase the bank- 
 rupt's estate . . . . 504 
 See Agent, Evidence. 
 
 AUCTIONEER, 
 
 ought not to prepare particulars of sale . . 10 
 
 may deduct auction duty out of money received, or, otlier- 
 
 Avise, recover it by action ... 14 
 
 must pay the duty himself if he undertake to give proper no- 
 tices, &c. and neglect it , , .16 
 may demand payment of the duty from the purchaser, where 
 
 payable by him ... 35 
 
 cannot give credit for the purchase-money . 37 
 
 should keep the deposit till the contract be completed . ib. 
 
 an action will lie against him for recovery of the deposit . ib; 
 
 so, for damages on breach of contract, unless he disclose 
 
 the name of his priuci[>al . . 38 
 
 AUC.
 
 70 INDEX. 
 
 Pagf 
 AVCnOl^EEll— (continued.) 
 
 is not f-nfitlfd to compensation for his services, if he omit 
 usual clauses in the conditions of sale, whereby the bale is 
 defeated . . ... 38 
 
 is an agent foi* the vendor and purchaser within the statute 
 of frauds . . . . 8?> 
 
 although the purchaser bid by an agent . 90 
 
 cannot buy the estate himself . . 501 
 
 See AucTiox. Auction Duty. Bidding. 
 
 Damages, Deposit. Interest. 
 AUCTION DUTY, 
 
 of sevenpence iii the pound is payable in respect of moiiics 
 
 produced by sale of estates by auction , . 12 
 
 not payable in respect of what estates 12, 13, 14 
 
 not payable if estate be bought in, by, or by the order of the 
 
 vendor , ... 14 
 
 or by, or by the order of his agent . . ib. 
 
 but proper notices must be given . . ib. 
 
 payable although the sale is not by regular auction . 15 
 
 whenever the h'^hest bidder is to be the purchaser ib. 16 
 
 will be allowed, if the vendor's title prove bad . 18 
 
 and the purchaser can recover the duty he has paid from the 
 
 vendor, if the title be bad . . 35 
 
 vendor may stipulate that the duty shall be paid by the pur- 
 chaser > ... 35 
 payment of duty, not a part performance of a parol agree- 
 ment .... 108 
 See Auctioneer. Bidding. Conditions 
 OF Sale. 
 AUCTION, 
 
 Dutch, how conducted . . . 19, n. 
 
 estates advertised to be sold by auction, should not be sold 
 by private contract, without sufficient notice oan be given 
 to the public . . . . 35 
 
 putting up an estate by auction, will not charge assignees of 
 
 a bankrupt as owners of It . ,41 
 
 sales of estates by auction are within the statute of frauds 92 
 contra of goods, semble . . ib. 
 
 See Assignees of Bankhupts. CoifDixfoxs 
 OF SaiiB. Dbposit. 
 
 bank:
 
 I N D E X. 71 
 
 Page 
 HANKRUPT, 
 
 purchase by, ia the name of a wife or child. Is within the 
 statute of James .... 541 542 
 
 See Agreements. Assignees of Bankrupts. 
 Commissioners of Bankrupts. Cove- 
 nants. Judgments. Title. 
 BANKRUPTCY, ACT OF, 
 
 will not discharge a contract for sale . , 154 
 
 nor an action for breach of covenant for title . 499 
 
 will prev nt the execution of an agreement if no commission 
 
 has issued . . . • . 155,289 
 
 will affect a purchaser, where . . 578 — 584 
 
 See Notice. Assignees of Bankuupts. 
 BANKRUPTCY, COMMISSION OF. See Attorney. Notice. 
 BANKRUPT, ASSIGNEES OF. See Assignees of Bankrupts. 
 BANKRUPTS, COMMISSIONERS OF. See Commissioners of 
 
 Bankrupts. 
 BARON AND FEME, 
 
 estates purchased by husband with the wife's separate monej', 
 
 may be folfowed, where . . . 513 
 
 what is a good consideration for a settlement on a wife 6 
 
 purchase by a trader for his w fe, where fraudulent against 
 
 creditors . , . .541, 542 
 
 husband must perform the marriage agreement before he can 
 claim the benefit of it ... 653 
 
 purchaser of the consideration for the settlement by the 
 wife is bound also . • • . ib. 
 
 See Agreements. Adv.incements. 
 BIDDING, 
 
 dumb bidding is within the auction duty acts . . 16, 17 
 semble, putting up an estate, and no person bidding, 
 
 is not . . . . . ib. 
 
 private bidding on the part of the owner, not fraudulent, 
 
 where there are real bidders . . 19, 24 
 
 unless more than one bidder is employed, semble . ib. 
 qu, if appointment of one puffer is in any case bad 22, n. 
 
 if the adverlisemenf.s s'ate that the o>.t,i(e will be sold icifh- 
 
 oul reserve^ the sale will be void if a puffer bid . 23 
 
 may be countermanded before the lot is knocked down , 34 
 
 BID.
 
 721 INDEX. 
 
 Page 
 BIDDING — (continued,) 
 
 by a purchaser void, unless he pay the auction duty when 
 
 payable by him . , • .35 
 
 Sen Attorney. Auction Duty. Sales 
 BEFORE A Master. 
 BILL OF EXCHANGE, 
 
 for purchiise-nioney given by a purchaser at a day certain 
 
 must be paid, although the seller refuse to convey . 214 
 CAVEAT EMPrOK, 
 
 w'lere the rule applies i . . . 26l 
 
 CHANCERY.* See Sales before a Master. 
 CHARITABLE USES, 
 
 will not aflVct a purchaser, without notice . 577 
 
 unless he bought of a person who had notice . 578 
 
 CHARITY. See Devise. 
 CHOSE IN ACTION, 
 
 purchaser of, must abide by the case of his vendor . 627 
 
 semble, that a purchaser of a chose in action, or of any 
 equitable right, giving notice to the trustee, will be pre- 
 ferred to a prior purchaser, who gave no notice lO, 627 
 CHURCHWARDENS, 
 
 can purchase a workhouse < . , 501 
 
 *« CLEAR" YEARLY RENT, 
 
 what it is . . ." . . 29 
 
 COLLATERAL SECURITY, 
 
 purchaser not affected by taking it, unless the first purchase 
 was fraudulent . • . . 622 
 
 COMMISSIONERS OF BANKRUPTS, 
 
 cannot buy the bankrupt's estate ^ . . 504 
 
 COMMISSION OF BANKRUPTCY, 
 
 not superseded even for fraud, where there are purchasers 
 under it . , . . . 621 
 
 COMPENSATION, 
 
 an agreement will be decreed to be performed /7ro tanto with 
 
 a compensation, in what cases . 243,255, 271 
 
 purchaser entitled to, for a deficiency in quantity, in what 
 cases ..... 272 
 
 CONCEALMENT, 
 
 where it amounts to a fraud . . 185, 191, 271 
 
 CON-
 
 INDEX. 7S 
 
 Page 
 tONDltiONS OF SALE, 
 
 cannot be verbally contradicted ^ '. • 25 
 
 although the purchaser bind himself to abide by the de. 
 
 clarations made at the sale . • . 26 
 
 unless the purchaser have personal information given to 
 *»»«"• ' ... ib. 
 
 tew construed . . , .24 
 
 pasted up in sight, will bind a purchaser, ^here . 26 
 
 what provisions should be inserted thereia , 24, 35 
 
 See AucTioxT. Auctioneer. Auction Duty. Biddhio. Mistake. 
 CONFIKMATION, 
 
 of purchases by trustees or agents before the master, in 
 
 what cases * * . < , 5IQ 
 
 CONSIDERATION, 
 
 unreasonable, no ground to refuse the aid of equity 224 
 
 inadequate, whtre a bar to the aid of the court, and where 
 
 not, when the contract is executory . 225 227 
 
 inadequate, a ground of relief when the conveyance is exe- 
 cuted, in what cases . 4 , ^ 227 
 inadequate, is a ground for relief, where the vendor is an 
 
 heir, selling an expectancy , . 229 
 
 contingent, agreed for, the estate belongs to the purchaser, 
 
 although the consideration fails before the conreyance 238 
 what is deemed valuable to support a settlement against a 
 
 subsequent purchaser . . . 556 
 
 price fixed by a referee, good, where , . 233 
 
 agreed to be fixed by valuation generally will be enforced, 
 although no valuation be made . , 234 
 
 but where particular persons are appointed, the rule is 
 void, unless they act , , . ib. 
 
 and equ ty cannot relieve, although one of the'par- 
 ties die before the award . , 235 
 
 how payment thereof must be pleaded . 663 
 
 See Agreemeht. Annuity. Puxchaskr; 
 Marriaoe Coksideration. Voluntary 
 Conveyance. 
 CONSTRUCTION OF THE PARTIES, 
 
 not admissible to explain an instrument ; ,139 
 
 CONTINGENT REMAINDERS, 
 
 destruction of, discountenanced by equity . 338, n. 
 
 f COM-
 
 74 INDEX. 
 
 CONTRACT, 
 
 the equitable consequences of it . 151 — 172 — 235 — 242 
 
 for sale of an estate, converts it info personality in equity 168 
 although the election io purchase rests with the pur- 
 chaser .... ib, 
 unless a title cannot be made, or equity will not 
 perform the contract . .170 
 ■w'hen deemed complete . . . 171,172 
 See PuncHASER. Devjse. 
 CONVEYANCf;, 
 
 it should be stipulated on a sale, that the conveyance shall be 
 
 prepared by and at the expense of the purchaser 31, 2l6 
 
 must be prepared and tendered by the purchaser, although 
 not bound to prepare it by the agreement, semble 217, 352 
 but although required to prepare the conveyance, need 
 not do so if title is bad . . 217 
 
 the expense attending the execution of the conveyance falls 
 on the vendor .... 352 
 
 if the estate be copyhold, 'the purchaser must pay for 
 
 both surrender and admission . . ib. 
 
 the vendor is not bound to pay the fine although he co- 
 venant to surrender and assure the copyholds at his 
 own expense , . . . ib» 
 
 the vendor must A/w^e// execute the conveyance or sur- 
 render the copyhold . , . ib. 
 and he is ntot compellable to convey by attorney 353 
 of an estate in a register county should be registered im- 
 mediately . . . • ib, 
 purchaser will be relieved against a defective convey- 
 ance, where ; • . . 625 
 See Tebms of Years. 
 COPYHOLDS, 
 
 contracted for, devisable before surrender . 156 
 
 pass under a general devise, if surrenderedj although bought 
 
 after the will which is not republished . 164 
 
 sold as freehold, cannot be forced on a purchaser . 253 
 sold with a stipulation to avoid the sale, if they prove free- 
 bold, must be proved to be copyhold . 254 
 See Conveyance, 
 
 COR-
 
 INDEX. 75 
 
 COrtPORATJONS, 
 
 cannot purchase for their own benefit without license , c02 
 sealing by tliem is equivalent to signing and sealing 6oO 
 
 COSTS, 
 
 by whom pa} abU- in equity .. i .431 
 
 COVENANTS, 
 
 in an agreement for purchase, are construed dependent 213 
 
 to purchase and settle an estate, what amounts to a perform- 
 ance of it . , . , 545 
 not a specific lien on the covenantor's lands . 548 
 in a lease, to inure to the benefit of a purchaser . 220 
 COVENANTS FOR TITLE, 
 
 purchaser is entitled to what „ , 393^ 399 
 
 run with the land, where, and where not 477, 481 
 
 Gerteraly do not extend to tortious evictions . 482 
 
 unless the «rong doer is named in the covenant 483 
 
 or the covenantor himself is the wrong doer . 484 
 
 or the covenant is against all pretending to claim ib. 
 
 will not be restrained on slight grounds . 489 
 
 may, on the ground of mistake, be rectified in tquity 497 
 
 covenant for right to convey, extends to the capacity of the 
 
 grantor .... 484 
 
 Limited, how construed . , 485, 488 
 
 Restrictive words in the first o{ several covenants, having 
 the same object, extend to them all . . 491 
 
 but where the first covenant is unlimited, it will not, 
 in general, be restrained by a subsequent limited 
 covenant . , . , 494 
 
 Dor will a preceding general covenant enlarge a sobse- 
 
 quent limited covenant . . 496 
 
 and where the covenants concern different things, they 
 will not be controuled by restrictive words added to 
 one ... . ib. 
 
 purchaser is entitled to what remedy under covenants for 
 
 title ..... 497 
 
 action for breach of, does not lie against devisee, under the 
 statute of fraudulent devises . . . 499 
 
 CREDITORS, 
 
 consulted as to the mode cf sale, cannot buy the property 
 tbcmselres . , . « 505 
 
 CKl-
 
 76 INDEX, 
 
 Pag« 
 
 CTCEJyiTOUS— (continued.) 
 
 guilty of laches, cannot follow specific legacy in the hands 
 of a purchaser ..... 62? 
 
 See Advancemekt. Puhchase-Money. 
 Trustees. 
 CROSS BILL, 
 
 where dispensed with , • • > 203 
 
 CROWN DEBTS, 
 
 whether a purchaser can protect himself against them by a 
 
 prior legul term . ♦ • 372 
 
 simple contract crown debts do not bind a bonajide pur- 
 chaser without notice « , , ib. n» 
 DAMAGES, 
 
 nominal only, can be recovered for breach of contract, 
 -where the vendor cannot, without fraud, make a title 20? 
 so even wlere an auctioneer sells an estate, after his 
 authority has expired, and the principal v;ill not 
 perform the contract « f , ib, 
 
 DECLARATION OF USES. See Fineb. 
 DECREES OF EQUITY, 
 
 obtained hy fraud, relieved against , ,46, 633 
 
 See Notice. 
 DEFEC IVE CONVEYANCE. See Conveyance. 
 DEFECTIVE EXECUTION. See Power. 
 DEMURRER, 
 
 lies to a bill for a specific performance against distinct pur- 
 chasers . , , . , 203 
 DENIZEN, See Aliem. 
 DEPOSIT, 
 
 should be retained by the auctioneer till the contract is com- 
 pleted , ... .37 
 ig a part payment . , • • 39 
 lost by the insolvency of the auctioneer, who shall bear the 
 
 loss • • . . , 38 
 
 purchaser may forfeit his deposit, and abandon the contract 
 
 where . . . ' ^^ 
 
 an investment of a deposit in the funds will be binding on a 
 
 vendor or purchaser, where » . - gg 
 
 if a vendor accept less than the deposit, he cannot after» 
 wards object to it , ; ; ^ 
 
 DEPOSIT
 
 INDEX. 77 
 
 Page 
 
 J)EFO^lT—{cont'muecl) 
 
 purchaser will be relieved against a forfeiture, where 40 
 
 if a purchaser's bill for specific performance be dismissed, 
 the court cannot order llie deposit to be returned . ib. 
 See Action. Auctioneer. Interest. 
 Sales before a Master. 
 DESCRIPTION OF AN ESTATE, 
 
 false . . . : .243 
 
 PEVISEE, 
 
 of an estate contracted for, not entitled to the estate, or the 
 purchase-money, if a title cannot be made . 170 
 
 contra, if an estate, not contracted for, is by a will 
 directed to be bought . . 172 
 
 not liable to an action of covenant under the statute of frau. 
 dulent devises . , . 499 
 
 DEVISE, 
 
 estates contracted for may be devised, whether freehold or 
 copyhold . , • . 156 
 
 will pass by will, where • . 157 
 
 will not pass, where . , . 162 
 
 of an estate under a contract for sale to be sold for a cha« 
 
 rity valid ... . . 155 
 
 of a term, is revoked by the purchase of the fee . 158 
 
 of an equitable estate, not revoked by a subsequent convey- 
 ance to the devisor . , i 159 
 unless to different uses . . 161 
 jevoked by a contract for sale . , 165 
 unless equity will not perforin the contract, semble ib. 
 where the agreement is abandoned, qu. « 166 
 See Witc. 
 DEVISE, EXECUrOllY, 
 
 its utmost limits , • « App. n. p. 38 
 
 DISCO VE II Y, 
 
 purchaser will not be compelled to discover writings 622 
 
 PISTREbS, 
 
 lies for rent reserved upon a lease of freehold or lease- 
 hold, where there is a reversion . • 221, n; 
 DOWER, 
 
 a purchaser is entitled to a fine io respect of it, where, and 
 where not . . « j) . 301 
 
 DOWER,
 
 78 INDEX. 
 
 Pase 
 
 DOWER — (continued.) 
 
 equitable bar of, what is . . . 30^ 
 
 bar of dowtr no bar of thirds . . 306 
 
 purchaser can protect himself against dower by a prior legal 
 term . . . • • • 37/ 
 
 unless it was privately created just before marriage 379 
 ■wife joining in barring her dower, is a valuable coDRidera- 
 tion for a settlvrnt-nt on her . • ^^2 
 
 EJECTiMENT. See Mortgage. 
 ELECTION. See Advancement. Heir at Law. 
 ELEGIT, 
 
 leasthold estates may be extended on an - . 591 
 
 EQUITY, 
 
 after a bill for specific performance is filed, the court will en- 
 join either party not to do any act to the injury of the 
 other . .... 1^5 
 
 and agents of the parties, if such agents are parties to the 
 suit . . . . . ib. 
 
 not otherwise . . . . ib. 
 
 •will give a purchaser compensation for breach of the agree- 
 ment, where . . . 204, 205 
 protects purchasers bona Jide and without notice . 520 
 See Sales before a Master, xwd passim. 
 
 EQUITY OF REDEMPTIO?^. See Mortgage. 
 ESCHEAT. See Teems of Years. 
 EVIDENCE, PAROL, 
 admissible, where : 
 
 to prove a consideration consistent with the deed . 115 
 
 60, as a defence to a bill seeking a specific performance on 
 
 the ground of fraud, mistake, or surprise . 120 
 
 or to explain latent ambiguities , . 134 
 
 or the meaning of ancient instruments . . 140 
 
 or to show what is parcel, or not, of the thing conveyed 135 
 
 or to explain a mistake, where, and where not 140, 148 
 
 or on the ground of fraud . . . 150 
 
 or to correct a settlement made contrary to the intention of 
 
 the parties, merely to prevent a forfeiture . 148 
 
 to prove a resulting trust . . 530 
 
 even after the death of the nominal purchaser 531 
 
 EVI-
 
 INDEX. 79 
 
 IZViDENCE, FAROL-^icontinued.) ^"^' 
 
 to rebut a resulting trust, or any equitable presumption 533 
 not admissible, where: 
 
 to disannul or vary a written agreement . , 116 
 
 nar to correct printed conditions of sale , 117 
 
 the rules are the same in equity , , Hg 
 
 not even as a defence to a specific perforniance, if the agree- 
 ment was, at the lime, corrtctly reduced to writing 124 
 nor of collateral matters, although not mentioned in the 
 
 agreement . , , 125, 128 
 
 nor of the variation of an agreement . . 128 
 
 nor of the discharge of a written agreement, except as a de- 
 fence in equity • • . ib. 
 unless the parol agreement has been in part performed 133 
 nor to explain a patent ambiguity . . 135 
 as the meaning of a word in a deed . ib, 
 or act of parliament . . 135 
 nor to restrain general words . . I37 
 nor of the construction of the parties , . 139 
 nor where parties have omitted a provision, deeming it 
 
 illegal ... . . 149 
 
 ^here a man purchases in the name of a stranger, the evi- 
 dence to rebut the resulting trust lies on the nominal pur- 
 chaser . . . , 534 
 contra, where the purchase is in the name of a child 537 
 principal is a good witness to prove the perjury of his agent, 
 
 where ... . . 534 
 
 agent not a good witness against the principal . 656 
 
 what is sufficient evidence of notice in equity , ib. 
 
 See Witness. 
 EXECUTION. See Judqmests. 
 EXECUTOR, 
 
 cannot mortgage the assets for his private debt . 456 
 
 his receipt is a discharge for the pnrchase>money of leasehold 
 
 estates .... |453 
 
 estates bought by an executor with the assets, cannot be fol- 
 lowed, unless the trust appear on the deed^ or the appli> 
 cation of the money is clearly proved . 543 
 
 &?f, FURCHASK.MOHBT. 
 
 EX.
 
 SO' I K D £ X. 
 
 Pagtf 
 EXPENSES, 
 
 of investigating a title, &c. may be recovered wliere the 
 vendor cannot make a title , , , 208 
 
 FALSE DRSCKIPTfON. See Fraud. Value. 
 FATHER A5D CHILD. See Auvancement. 
 FELONS, 
 
 can purchase, but not htrtd . . , . 501 
 
 See Terms of Yeaiis. 
 FEME COVERT, 
 
 can only purchase sub modo . . . 502 
 
 unless authorized by her husband . . 503 
 
 is answerable in equity for a fraud ^ , 624 
 
 FINES, 
 
 terms of years barred by, where . . 355 
 
 See CorvHoiiDs. DdwER. Power. Title. 
 FIRE, 
 
 loss by, after the contract, must be borne by the purchaser 236 
 contra, where the estate is sold before a master, and 
 the report is not absolutely confirmed , 237 
 
 FIXTURES, 
 
 purchaser where entitled to »• . 30 
 
 FRAUD, 
 
 if persons, having a right to an estate, encourage a purchaser 
 
 to buy it, they will be bound by the sale . 624 
 
 if even a stranger make a false representation to a purchaser 
 
 of value, &c. an action will lie against him . 5 
 
 mere suspicio7i of, not notice to a purchaser : 297 
 
 in ar written agreement relieved against, according to parol 
 CTidence . . . . 150 
 
 See Concealment. Dower. Evidence. 
 Incumbrances. Statute of Frauds. 
 FRAUDULENT CONVEYANCE, 
 
 settlement, with general power of revocation, void against 
 a purchaser . , . 573, 576 
 
 See Voluntary Conveyance. 
 GOODS. See Leasehold Kstates. 
 
 GRANDFATHER AND GRANDCHILD. See Advamcembnt. 
 GUARDIAN, 
 
 cannot purchase his ward's estate on his coming of age, 
 itmble . . . r 511 
 
 HEIR,
 
 INDEX. 81 
 
 Page 
 
 HEIR, 
 
 • relieved against a sale, for an inadequate consideration 229 
 
 HEIR AT LAW, 
 
 bound by his ancestor's contract, although he die before the 
 time limited for complfcting it • . 155 
 
 unlpss the devisee permit the heir to take the estate for 
 a lonj; time . . . 160 
 
 "what should be attended to in purchasing an estate of an heir 
 at law, conve)ed or surrendered to his ancestor after his 
 will ..... 16-1 
 
 will be entitled to lands contracted for by his ancestor, 
 where ..... 162, 170 
 
 wrongfully applying the personal estate in paying the pur- 
 chase-money, gives the persons entitled a charge on the 
 land . . . . . .163 
 
 may be put to his election, although the testator had not the 
 estates at the time of his will . , IG4 
 
 whether an infant heir at law will be deemed a trustee wjthin 
 the 7 Ann for a purchaser, under a contract by the an- 
 cestor ... 173 
 
 purchaser will be compelled to take a title, although a will 
 is not proved against the heir at law . * 308 
 
 See AGRkEMENTS. 
 
 HUSBAND AND WIFK. See Baron amd Feme. 
 
 IDIOTS, 
 
 cnn only purchase sub modo , . I 503 
 
 IMPIIOVKMENTS, 
 
 purchaser will be relieved in respect thereof, in what cases 628 
 
 INADEQUATE CONSIDATION, See Consideration. 
 
 INCLOSURE, 
 
 title under an, before the award . . 2%^ 
 
 commissioners cannot purchase un'.il 5 years after the award 50*5 
 
 INCUMBRANCES, 
 
 should l)e disclosed to a purchaser . . 6 
 
 a person having an incun.brance, and denying it to a pur- 
 
 chasi^r, will be rtlievc.l against . . 9, 625 
 
 a person having an incumbrance is not bound to give notice 
 
 of it to a purcliaf-er . . . «b. 
 
 purchaser will be relieved against doraitint incumbrances 023 
 judgments should be searched for on behalf of a purchaser 399 
 
 IX.
 
 82 INDEX. 
 
 ' Page- 
 
 INCUMBRANCES— (con^mwed) . 
 
 although >h«' pstab-s is Kasehold . . 40 i 
 
 purchaspr will b*' hou id fiy judgments of which he has noti-e, 
 although the v< ndor has only an f quily of r< detn[)tion 40O 
 
 qu. whfre the seller h'iS only a iru.st tstate . 401 
 
 but where the estate is in trusters fur sale, wliose rec'lpt 
 is a clischarj^e, he may pay to tln'm . 403 
 
 purchaser will be relieved against, where • 409 
 
 need not be searched for, in what rases . . 400 
 
 where the estate is in a registtr connty, the register should 
 
 be searched .... 405 
 
 register need not be searched, in what cases . 407" 
 
 if the estate is leasehold, the regi-^ter, and also the proper 
 
 courts r,i oulf^ be searclieJ for judgmenta , ib. 
 
 annuities should be searches lor , , 408 
 
 solicitor is personally respurisible, if he neglect to search for 
 
 incumbrances , . . ib» 
 
 oiricers! negl'rctiijg to enter up judgments, &c. are liable to a 
 
 purchaser suffering by the neglect . . ib. 
 
 purchaser may retain or recover purchase-money in respect 
 of incjin :rancts, or defects in the title, where, and where 
 not , . . . 409,418 
 
 ; purchaser buyin2; up incumbrances, can, as against the vendor, 
 
 only charge what he actually paid . . 418 
 
 where two persons purchase an incumbered estate, and an 
 allowance is made to one, it enures to both . 525 
 
 See Attobney. Purchaser. Purchase, 
 MONEY. Vendor. 
 INDEMNITY, 
 
 to a purchaser will not weaken his t/tle in equity . 622 
 
 vendor or purchaser will be compelled to give or accept an 
 indemnity, in what cases . , 244, 258, 290 
 
 INFANTS, 
 
 can only purchase sub modo . • . 502 
 
 are answerable in equity for a fraud . , 624 
 
 See HiiR AT Law. Dower. 
 INJUNCTION, 
 
 in what cases granted . . 196 
 
 will not be dissolved without the Master's report on title, 
 where the action is for want of title . . 205 
 
 INSOL-
 
 INDEX. 83 
 
 Pajje 
 
 INSOLVENCV. 
 
 loss by the insolvency of the auctioneer falls on (he seller, 
 
 serable . • . . 38 
 
 what is ..... 584 
 
 INTEREST, 
 
 must be paid by a purchaser from the time the contract ought 
 to be completed . . . 4ig 
 
 unless the money has lain dead, and the purchaser gaye 
 the vendor notice of the fact, and the delay be occa. 
 sioned by the vendor ... 420 
 
 where a purchaser takes possession and agrees to pay inte- 
 rest, he may rescind the agreement, if it appear that a long 
 time must elapse before a title can be made ; unless be ac- 
 quiesce in the delay . . . 422 
 n not to be paid by a purchaser after the conveyance is deli- 
 vered to the vendor's attorney for execution . 424 
 on timber, runs only from the valuation , . ib. 
 must be paid by a purchaser of a reversion, from what time 419 
 
 424 
 must be paid by a purchaser of a leasehold estate, although 
 be has not received the rents, and the vendor must pay a 
 rent for the estate . , . 425 
 
 must be paid in respect of a sum deposited with a purchaser 
 
 to pay off incumbrances . , . 426 
 
 an agreement to pay interest, although signed by the vendor 
 
 only, will bind, where . . . 425 
 
 can be recovered by a purchaser on a deposit paid either to 
 
 a principal, or to an auctioneer . 208, 426 
 
 whether it can be recovered in an action for money had and 
 
 received, qu. .... 208 
 
 Oiustbe paid by a vendor where he cannot make a title, if the 
 purchase-money has lain dead . . . 420 
 
 so by a person opening biddings , t 428 
 
 mast be allowed to a trustee where a purchase by him of trust 
 
 property is set aside . . . ib. 
 
 an agreement by a purchaser to pay a rent exceeding legal 
 
 interest is not usurious, wher'£ , . . ib. 
 
 What rate of interest is payable • . 429, 431 
 
 See Lessee. 
 
 g 2 JOINT
 
 84 INDEX. 
 
 Tagc 
 
 JOINT PURCHASERS, 
 
 ihf'ir rights anil liabilities , T • . 522 
 
 JOINT TENAN ICY. See Agreements. 
 JOINTURE, See DoM'ER. 
 JUDG.'NJLNTS, 
 
 should be searched for , . . 399 
 
 entered up after the purchase-money is paid will not bind in 
 equity ... . . . ib. 
 
 against batikrupts are reduced to a level with simple contract 
 
 debts, in what cases . . . 588 
 
 bind an equity of redemption in the hands of a purchaser with 
 notice . . 400 
 
 qu. as to a trust estate • . . 401 
 
 bind after purc^^ased estates . . 404 
 
 do not bind leasehold estates, till when . 404, 590 
 
 do not aflfect an qaity of redemption of a term . 404 
 
 do not bind real estates until entered and docketed . 585 
 cannot be docketed aft r the time a[)pointed by the act 586 
 
 in what cases they bind purchasers although not duly docket- 
 ed . . . . .587 
 
 may be defeated by a purchaser without notice, who has a 
 prior legal estate .... 400 
 
 where a purchaser shall have contribution in respect of exe- 
 cution • _, . • 405 
 See Incumbuances. Noticb. Register. 
 LACHES. See Time. Trustees. 
 LAND TAX, 
 
 of protection from defects in sales for redemption of land 
 tar ; . . , . 618 
 
 LEASE, 
 
 misrepresented, purchaser will be entitled to compensation, 
 in what cases .... 256 
 
 what is notice of, to a purchaser . . 649 
 
 should be ste i by a purchaser before he compleats . ib. 
 
 underlease will not be decreed under an agreement to assign 259 
 agreement to grant a, where binding on a purchaser 630, 633 
 See Assignees of Bankrupts. Covenants. 
 Purchasers. Register* Terms for 
 Years. 
 
 LEASE.
 
 INDEX. 85 
 
 LEASEHOLD ESTATES, ^"^^ 
 
 renewable, what is a sufficient title to ' . 285 
 
 where assignments of, will be presumed . . ib. 
 
 may pass in a will under the won] " goods" . 593 
 
 but cannot pass in an a<.si^nmeni under that word ib. n. 
 
 See Incumbrances. Interest. Judgments. 
 Pur askk. Title. Vendor. 
 LEGATEE. See Marshalling. 
 LESSEE, 
 
 purchasing, the tenantcy is determined , , 156 
 
 with an option to purchase, rent ceases upon declaring the 
 
 option, and interest runs . . 425 
 
 \ his possession is notice of his title • 649 
 
 but not of the lessor's title . .651 
 
 LETTERS, 
 
 are agreements within the statute of frauds, where . 73 
 
 LIEN, 
 
 whether any exi^t for money received by vendor who is en» 
 titled to retain the estate by the death of the purchaser 
 without heirs . . . 241 
 
 purchaser has a lien on the estate for money paid, if vendor 
 
 cannot make a title , . . 459 
 
 purchaser has not a lien on the purchase-money, in respect 
 of a concealed incumbrance after the money is appro- 
 priated by the vendor . « 416 
 vendor has a lien on the estate for purchase-money unpaid 459 
 unless he be a papist incapable of purchasing . 460 
 or take a distinct security for the money . ib, 
 r~ bat taking a bond or note will not discharge th« 
 
 lien . • . • 461 
 
 the lien extends to whom . . 467 
 
 prevails against whom . • • 473 
 
 semble that it cannot prevail against an equitable 
 mortgage by deposit of title-deeds . 475 
 
 LIMITATION OF TlMli. See Statute of Limitations. 
 LIS PENDENS, 
 
 the effect of it . . . 641,642,643 
 
 See Notice. 
 LOTS, 
 
 estate sold in, a distinct contract arises upon each • 248 
 
 LOTS
 
 8Q I N D E X. 
 
 Tage 
 
 'LOTS—(contmnP(l) 
 
 purchastT of several lots will be compelled to take those to 
 which a title can be made, in what cases • 246 
 
 See Stamps. 
 LUNATICS, 
 
 can only purchase sub modo . . 503 
 
 See AnnnEMENTS. 
 MARRIAGE CONSIDERATION, 
 
 valuable . .... 556 
 
 whether it extends to collaterals • t 557 
 
 MARSHALLING, 
 
 the vendor's lien, and the personal estate of the purchaser, 
 ■will be marshalled in favour of a legatee, where, and where 
 not ..... • 467 
 
 MASTER IN CHANCERY. See Reference. Sales beforb 
 
 A Master. 
 MEMORIAL, 
 
 of deeds to be regwtered must be executed in the presence 
 
 of what witnesses . • . 598 
 
 deeds cannot be re-executed for the purpose of registry, 
 
 scmble . . . • 599 
 
 sealed by a corporation is equivalent to signing and sealing 600 
 
 should contain vrhat . t • 601 
 
 of grants of life annuities . . App. 14 
 
 See Register. 
 
 MERGER, 
 
 of terms for years in the fee . . 361 
 
 MISTAKE, 
 
 if a person buy his own estate he will be relieved . 222 
 
 a defence against a specific performance . . 121 
 
 in written instruments corrected by equity according to 
 
 parol evidence, where and where not , . 140 
 
 not to the prejudice of a purchaser , 153 
 
 of parties to a conveyance of their rights will not affect a 
 
 purchaser .... 524 
 
 condition that mistakes shall not affect the sale, will only 
 
 cover unintentional errors . « . 33 
 
 mutual, equity will not assist either party I 185 
 
 agreement will be presumed to be executed under a mistake 
 
 where the purchaser knew the seller could not make a 
 
 title 9 • t . .259 
 
 MIS-
 
 INDEX. 87 
 
 MIST AKY.^Ccontmned) """* 
 
 of the seller as to the operation of his purchase no bar to a. 
 
 specific performance .... 262 
 
 of a party of the leeial construction of words, immaterial 263 
 See Evidence. Sales before a Masteu. 
 Title. Will. 
 MORTGAGE, 
 
 purchaser of an estate in mortgaje makes his peTSonal estate 
 the primary fund for pnyment of it, where , 169 
 
 so joint purchasers, where , . . 526 
 
 mast indemnify the vendor against the mortgage-money 219 
 proceedings in ejectment will not be stopped, where mort- 
 gagee has agreed to purchase the estate . 220 
 equitable mortgage will prevail over a lien for purchase- 
 money, semble . . . , '175 
 purchaser of an equity of redemption should give notice of 
 
 the sale to the mortgagee , , , 607 
 
 purchaser of a mortgage should not buy without the privity 
 
 of the mortgagor . f\ . , ib. 
 
 purchase will be deemed a mortgage, where . . 223 
 
 power of sale in a mortgage without the assent of the mort- 
 
 gagor, is valid . . . . 30O 
 
 possession without title will not give a right to redeem 322 
 
 mortgagee may purchase from the mortgagor . • 506 
 
 See Auction-duty. 
 NE EXEAT REGNO, 
 
 lies against a purchaser for purchase-money unpaid, where 218 
 NOTICE, 
 
 of an act of bankruptcy deprives a purchaser of the benefit 
 of the statutes of James . . . 579 
 
 what is not notice of an act of bankruptcy . ib. 
 
 of a judgment not duly docketed binds a purchaser . 587 
 so of deeds not duly registered . . 611 
 
 purchaser with notice is bound in the same manner as the 
 person was of whom he purchased . . 629 
 
 unless his consent was necessary to the validity of the 
 
 incumbrance . . • 630 
 
 and a fine and non-claim will not improve his title 633 
 
 unless it is a mere legal title . . 'h. 
 
 to be binding must be had, when . ' 63-1 
 
 NOTICE
 
 88 I N D E X. 
 
 NOTlClE—icontinued.) 
 
 purchaser without notire is not afFecttd by notice in his 
 
 Yenilor .... 635 
 
 purchaser with notice will not be afiected if his vendor 
 
 bought without nat C" , . , lb. 
 
 is either actual or constructiTe , " , 636 
 
 actual will not bind unless given by a person interested 
 in the property during the treaty • , 637 
 
 what is constructive notice : 
 
 notice to the counsel, agenf, &c. of the purchaser 638 
 but it must be ici the same transaction . 639 
 
 a public act of parliament ^ . 640 
 
 lis pendens . , . . 6^]yet seq. 
 
 what is not a sufficient lis pendens . ib. 
 
 registration of deeds where the purchaser is not seised 
 
 of the legal estate before the purchase, qu. 60S 
 
 whatever is sufficient to put a purchaser upon inquiry, 
 as possession by a tenant, description in a deed, &c. 649 
 what is not constructive notice: 
 
 a private act of parliament , , 640 
 
 a public act of a private nature, semble , ib. 
 
 decrees of equity . , . 643 
 
 unless they are decrees to account , 644 
 
 an act of bankruptcy . . 645 
 
 unless the purchaser claim the benefit of 46 
 Geo. III. . . .580 
 
 a commission of bankruptcy . . 645, 648 
 
 unless the purchaser claim the benefit of 46 
 Geo. III. . . . 580 
 
 docketing of judgments . . , 54^ 
 
 registration of deeds, where the purchaser is seised 
 
 of the legal estate before the purchase , 606 
 
 the vendor being out of possession , 651 
 
 mere suspicion of fraud , . 553 
 
 witnessing of deeds , , 654 
 
 equitable construction of words , 655 
 
 what is sufficient evidence of notice » . 656 
 
 how denial of notice should be pleaded . 664 
 
 See Judgments. £1coi8tbb.. Voluntary 
 
 Conveyance. 
 
 OPINION
 
 INDEX. 89 
 
 OPINION, 
 
 on abstract, to whom it belongs . . 350 
 
 of counsel approving the titlf, no waver of reasonable ob- 
 jections on the part of the person consulting hira 280 
 OPTION, 
 
 to purchase, its effect , , , 168 
 
 PAPISTS, 
 
 who have not taken the proper oaths can only purchase 
 sub modo . . . , 503 
 
 but protestants may safely purchase of such papists, in 
 what cases , . . 613, 616 
 
 See Advancement. Lien, 
 PARISHIONERS, 
 
 cannot purchase . . , . , 500 
 
 PARLIAMENT, ACT OF. See Notice. 
 PAROL AGREEMENT, 
 
 for a lease will bind a purchaser, where . 630 
 
 See Evidence, Statute of Frauds. 
 PART PERFORMANCE. See Statute of Fkauds. 
 PARTIAL EXECUTION OF A CONTRACT, 
 
 where it will be enforced . . . 213 
 
 PARTICULARS OF SALE. See Auctionebr. Conditions 
 
 OF Sale. Statute of Frauds. 
 PENALTY. See Action. Agreements. 
 PERFORMANCE, 
 
 of an agreement to purchase and settle an estate , S'iS 
 
 PERJURY, 
 
 if a defendant deny a parol agreement, he may be tried for 
 perjury .... 97 
 
 and the plaintiff is a competent witness to prove the 
 P^-rjury • ... ib. 
 
 PLEADING. See Purchase. 
 POSSESSION, 
 
 delivery of, in general a part performance of a parol agree- 
 ment . .... 99, 100 
 delivered to a purchaser, the effect of it . . 217 
 may be determined , , , 218 
 
 See PURCIIASF,R. 
 
 POWER, 
 
 reserved by purchaser, to appoint purchase.money, it is still 
 assets . . • « • 135 
 
 h POWExi
 
 90 IKDllX. 
 
 Pf>s,t 
 
 YOWEH^icontimcd.) 
 
 general power of revocation in a settlement makes it void 
 against a purchaser . , . 573 
 
 although the power is only conditional . 57-i 
 
 unless the condition be bona fide , il). 
 
 or although the time of revocation has not arrived 575 
 
 the power ha^ b( en released . '. ibi. 
 
 See Mortgage. 
 purchaser will be relieved against a defective execution of a 
 power . , . . . G2'6 
 
 unless the sale was not within the compass of the power ib, 
 rRE-EMPTlON, 
 
 ri^h! of . . • • 168, n. 
 
 PRETENDED TITLE, 
 
 a salt* by a person entitled under an agreement before an 
 actual conveyance to him, is not within the statute 32 II. 
 VIII. c. 9 , . , . 412,413 
 
 PREMUNIRE, 
 
 persons guilty of this ofTence, can purchase, but not hold 501 
 PRESUMPTION, 
 
 legal estate will be presumed to bave been conveyed, 
 where . . . . 285, 295 
 
 PRINTED NAME, 
 
 a sufficient signature within the statute of frauds . 84 
 
 PROFITS. Sec Rents. 
 PUFFE15. See Bidding. 
 PURCHASE, 
 
 how it should be pleaded . . . 661 
 
 for a valuable consideration, is a protection, in equity, against 
 legal as well as equitable estates, semble . 666 
 
 PURCHASER, 
 
 who cannot be . . . 500, 507 
 
 cannot be relieved in respect of patent defects in an estate 261 
 
 but otherwise of latent defects of which the vendor was 
 
 awaro . ... 2, 266 
 
 should not trust to any statements of the vendor respecting 
 
 value . .... 3 
 
 but may rely on a statement as to rent . 4 
 
 should not employ the vendor's attorney . 6 
 
 PUR-
 
 INDEX. 91 
 
 Page 
 
 VVRClUS.SE}l^{contlnued.) 
 
 should not take possession of an estate where the title is doubt- 
 
 fu' ..... 9 
 
 but may take possession when contract is Entered into ib. 
 
 where a purchaser in possession of the estate will be or- 
 dered to pay his purchase.money into court, and where 
 "ot ... 200, et seq 
 
 tJoes not become tenant to the seller upon being let into pos- 
 session . . . . 217 
 such possession may be determined . . 218 
 
 is not bound to acquaint a vendor with any latent advantage 
 in the estate ... .5 
 
 may misrepresent the seller's chance of sale . ib. 
 
 having notice of a lease shouM see the covenants 8, 650 
 
 what enquiry should be made, where an equitable right, not 
 in possession, is purchased .' . ]0 
 
 of a leasehold estate, must indemnify the vendor against the 
 rent, &c. . . . 30, 219 
 
 not where the assignees of a bankrupt are vendors 31 
 
 entering into possession even with consent of the parties in 
 a cause, will be compelled to pay (he money into court 50 
 
 of an equity of redemption must indemnify the vendor against 
 the mortgage-money .... 219 
 
 selling before actual conveyance entitled to indemnify from 
 sub.purchaser against costs of proceedings for his benefit 220 
 
 may sell or devise an estate contracted for before the coQ- 
 veyance . . . . 156 
 
 must bear any loss happening to the estate by fire or otherwise, 
 before the conveyance, and is entitled to any benefit ac- 
 cruing to it in the interim « . 155 
 
 will be compelled to take a part of the estate, where 243 
 
 may insist upon a part performance, where . 255 
 
 will be relieved in respect of a defect in the quality or quan- 
 tity of the estate, where and where not . 261,278 
 
 is entitled to what relief under covenants for title . 497 
 
 of aa heir at law or devisee not bound by specialty debts of 
 tlie ancestor or testator . . 434 
 
 joint purchasers *»ill in equity take as tenants in conmon, 
 where . . . 522, 525 
 
 where two persons purchase ao estate, and one pays the 
 
 h 2 PUR« 
 
 •^ 
 
 ::'x
 
 92 INDEX. 
 
 Page 
 
 PURCHASER— (fon^;nM<?J.) 
 
 money, he can only file a bill against the other for a con. 
 tribution ..... 526 
 
 a purchase by two in the name of one, the trust may be 
 
 proved, how .... 527 
 
 parol agreement by two, and the conveyance taken in the 
 
 name of one, is taken out of the statute of frauds, where ib. 
 taking a conveyance in the name of a straHger, the trust re- 
 sults to him .... 539 
 taking a conveyance in the name of his child is an advance- 
 ment ... • . 535 
 ■without notice of an act of bankruptcy will not be affected by 
 
 any commission of bankruptcy unless issued, when 580, 581 
 buying an equity of redemption should immediately give no- 
 tice to the mortgagee .... 607 
 and should declare whether his personal estate shall or 
 shall not as between his representatives be the primary 
 fund for payment of the mortgage . . 170 
 "will be relieved and protected in equity, in what cases 620 
 
 See Action. Agent. Advancement. Agree- 
 ment. Al TESTED CoPaES. AUCTIONEER. 
 
 Bidding. Chakitable Uses. Chose in 
 Action. Conveyance. Consideration. 
 Covenants. Deposit. Devise. Fraud. 
 Improvements. Incumbrances. Jud.>- 
 ments. Lessee. Mistake. Mortgage. 
 Ne Exeat Regno. Notici. Papists. 
 Power. Purchase-Money. Register. 
 Recoveries. Resulting Trust. Re- 
 version. Sales before a Master. Terms 
 OF Years. Time. Title. Trustees. 
 Voluntary Conveyance. 
 PLRCHASE-MONEY, 
 
 a deposit is part payment of . « . 39 
 
 payment of, is not a part performance of a parol agreement, 
 
 semble .... IQl, 109 
 
 secured by a purchaser at a day certain, must be paid, al- 
 though the seller break his agreement , . 214
 
 I N D EX. 93 
 
 Page 
 
 PURCHASE-MONEY— (co/j^m«fff.) 
 
 purchaser is a trustee of, for the vendor from the time of the 
 
 contract .... 154 
 
 is always assets of the vendor . . I55 
 
 may be required to be paid into court, if the purchaser is in 
 
 possession ... 50, 200 
 
 where a purchaser in possession of the estate will, upon 
 motion, be ordered to pay his purchase.money into court 
 and where not . . 200, et seq, 
 
 ■where purchase-money is large, a long day will be al- 
 lowed ... . , 202 
 under proper circumstances will be enlarged . ib, 
 may be retained or recovered by a purchaser in respect of 
 incumbrances or defects in the title, where and where 
 not ..... 409,418 
 purchaser has no lien on it, after it is appropriated, even in 
 
 case of fraud . . . . 415 
 
 paid to a creditor having two securities, shall be taken in sa. 
 
 tisfaction of the security afilcting the estate , 417 
 
 equity in favour of creditors will prevent payment of pur- 
 chase-money to an heir or devisee . 435, n. 
 purchaser must see to the application of purchase-money of 
 real estates, 
 
 where the trust is for payment of specified debts or lega- 
 cies ... . 436 
 the debts are ascertained by a decree , 438 
 is not bound to do so, 
 
 where the first or only trust is for payment of debts ge- 
 nerally . . . 437 
 the cestuis que trust are infants or unborn • 438 
 the ctf*/u?.? <^Me //'uy^ are abroad, semble . ^47 
 the trusts require time and discretion . 4 10 
 is not bound to ascertain the deficiency, although the trust 
 be for payment of such debts as the personal estate shall 
 be insufficient to pay , . . 419 
 but he is bound to do so where only a power is given ib. 
 -is equally bound, although there is only a charge of debts, 
 
 &c. .... -Ml 
 
 may be discharged fro seeing to the appl ication, how 15 1 
 
 tlie receipts of what trustees will be discharges . ''5'i 
 
 ruK-
 
 94 . INDEX. 
 
 Page 
 
 PURCHASE-MONEY— (con2!inMcd) 
 
 purchaser of leasehold estates not bound to see to the appli- 
 cation of the money . . . 453 
 unless there be fraud, Sec. . . 456 
 how payment of should be pleaded . . 663 
 See Agent. LiExV. 
 QUALI IT OF AN ESTAFE, 
 
 false description of . . . 261 
 
 QUANTITY OF AN ESTATE, 
 
 false description of . . . ^271 
 
 RECEIPTS FOR PURCHASE-MONEY, 
 
 are agreements within the statnte of frauds, where . 7i 
 
 by trustees are discharges, where . , 434 
 
 are. conclusive, where ... . 462, n. 
 
 RECOVERIES, 
 
 equitable good, although the equitable tenant to the jirmpe 
 
 has the legal estate for life . . 309 
 
 purchaser may after 20 years produce the deed, making a 
 tenant to the precipe, as evidence that a recovery was duly 
 suffered, although no record can be found thereof 600 
 
 where a purchaser is entitled to a recovery . 299 
 
 See Fines. 
 REFERENCE TO A MASTER, 
 
 as to the title . . . . 196 
 
 general practice in making enquiries under . 199 
 
 REGISTER, 
 
 title deeds should be registered before a purchaser completes 405 
 what need not be registered . . . 407 
 
 what cannot be registered . • . 617 
 
 semble that writs of execution on judgments intended to affect 
 
 leasehold estates need not be registered . 407 
 
 effect of registry and non-registry of wills within the period 
 
 prescribed by the acts . . . 59S 
 
 of the executien, contents, &c. of the memorial , 598 
 
 deeds should be registered immediately after their execution 353 
 deeds, &c. are void against a purchaser unless registered 595 
 
 deed of appointment under a power must be registered 603 
 
 registry of an assignment which recites a lease is not a sufH- 
 
 cient registry of the acts . . . ib, 
 
 of the exceptions in the lease . ". 601 
 
 RE-
 
 INDEX. 9.5 . 
 
 Pa»c 
 
 nEGlSTER^(co7iitnued.) 
 
 r . -stry o deeds is not notice to a person seised of the legal 
 estate ... 606 
 
 but it is notice to a person not seised of the legal estate, 
 semble . . , C08 
 
 purchaser buying with notice of a prior incumbrance not re. 
 gistered will be bound by it . . CI I 
 
 See Incumbrances. Memohial. Notjce. 
 RELEASE, 
 
 acceptance of, no admission of right , . 634 
 
 RENI.% 
 
 purchaser entitled to, from what time . £0 419 
 
 may be recovered by a purchaser, where . , 220 
 
 REPAIRS Sne Advancement. Improvement. 
 REPUBLICATION, 
 
 of a will, what amounts^to . , ^ ]63 
 
 RESULTING TRUST, 
 
 purchaser taking a conveyance itj the nan.e of a stranger, a 
 
 trust resul.ts ..... 530 
 
 but even a paiol declaration will prevent a resulting trust 533 
 See Advancement. Evidence. 
 REVERSION, 
 
 qu. if a bill will lie against a purchaser of a reversion to per- 
 petuate testimony . . , 629 
 Sep Time. Title. 
 REVOCATION, P()WER OF. See Voxytn. 
 ROMAN CATHOLICS. S.e Papists. 
 SALES BEFORE A MASTER, 
 
 the a tv< riis'-ments are prepared, by whom . •! t 
 
 conducted, how . . . . 45 
 
 the purchaser must procure a report of his btiisg the best 
 
 bidder . . . , 47 
 
 is entitled to a conveyance, when . . 49 
 
 the conveyance to be drawn, by uhom . 50 
 
 biddin/;s will be oj.ened, -wluTe . . 53, 54, 59 
 
 practiie wi(h respect to openioi^ biddings . 5(> 
 
 purchaser will be com) riled to rompUte, whrn . 48 
 
 will be discharged, upon whattt'rms . 45 
 
 will not e hurt by any irregularity in a decree , 4(» 
 
 may abandon the contract, and forfeit his deposit, 
 
 where ; • . , 58 
 
 SALES
 
 a6 INDEX. 
 
 Page 
 
 SALES BEFORE A MAS>TER—(<o7ithiued.) 
 
 may be disrharged from his contract, wherp he has, 
 by mistake, given an unreasonable price for the 
 estate .... 59 
 
 purchaser is entitled to possession, from what time . 50 
 
 joint purchasers must pay their money together . 49 
 
 incumbrance not a[)pearing upon the report may be paid off, 
 
 when . ... . ib. 
 
 estate directed to be sold before a master cak.-not be sold 
 
 other vvi;e , , . 51 
 
 are not within the statute of frauds , .52 
 
 although an agent's authority could not be proved, un- 
 ess there be fraud . . , ib, 
 
 See Auction. Fire. Interest, Title. 
 SELLER, See Vendor. 
 
 SlGiVATURE. See Corporation. Statute of Frauds. 
 SLANDER OF TITLE . . . 638 
 
 SOLICITOR. See Attorney. 
 SPECIFIC PERFORMANCE. See Agkeemevts. 
 STAMPS, 
 
 either party may obtain the agreement from the other to 
 stamp it . . . . . ,211 
 
 STATUTE OF FRAUDS, 
 
 no action can be brought upon any contract for sale of lands 
 
 unless in writing, and signed by the person to be charged 61 
 whether a licence is within the act . , 66 
 
 agreement by tenant, in consideration of improvements by 
 landlord, to pay an additional sum per annum, is not 
 within the statute • . 68 
 
 an agreement for an assignment is within the act . ib. 
 
 so is a sale of a standing crop of grass . 69 
 
 but timber growing upon the land is not . ib* 
 
 nor potatoes in the ground to be taken immediately ib, 70 
 -want of the signature to the agreement of the party seeking to 
 
 enforce it. fraud, where , . .72 
 
 agreement void as to part is void m ioto . ' ib. 
 
 the signature of the party to be charged is sufficient . 71 
 
 a letter or a receipt is a sufficient writing . 73 
 
 but it must be stamped . . ib. 
 
 and prove the agreement set up . . 79 
 
 STATUTE
 
 INDEX. 97 
 
 Page 
 
 STATUTE OF FRAVDS—(conthiued.) 
 
 aod it nius*. specify all thn terms ', , 74 
 
 for thf inosf trifling omis-ion will be fatal . 76 
 
 but if it refers to a writing wliicli contains the whole 
 
 agreempnt, althoutjh not sii;ned, that is sufficient 77 
 
 •whether an entry by an auctioneer in his books will do 79 
 
 a letter written to a third person, containing directions to 
 
 execute the agreement, will do . . jb, 
 
 rent roils, &c. will not be deemod an agreement although 
 
 signed . . . . 80 
 
 the sending a sufficient agreement as instruction to prepare 
 
 a technical agreement is immaterial i , 82 
 
 ■what is a sufficient signature . . 83, 87 
 
 ageut may be authoiised to contract by parol . 87 
 
 but his clerk cannot act w ithout a special authority 88 
 
 an auctioneer is an agent for loth parties within the 
 statute . . . .89 
 
 isales by auction of estates are within the statute . 91 
 
 coTtira of goods, semble . . 92 
 
 sales before a master not within the statute . . >b. 
 
 or under the authority of the court . . ib. 
 
 or where the agreement is confessed by the answer 93 
 
 unless the defendant plead the statute . 95 
 
 which he cannot do by an answer to an amended 
 bill, where he has admitted the agreement by his 
 original answer . . .97 
 
 sales not within the statute where it would protect fraud 
 
 as where the agreement is express to reduce the con- 
 tract into writing, and it is prevented by fraud 98 
 or an agreement partly performed . . ib." 
 delivery of possession is in general a part per- 
 formance .... 99 
 whether where two are in treaty for an estate, and 
 
 one desists, qu. . . • 5-7 
 
 but ancillary acts are not . 99 
 
 ■where the payment of additional rent by tenant in 
 possession, or expending money by him on the 
 estate, will take an agreement for renewal out of 
 the sditute . . . If^O 
 
 i STATUTE
 
 98 INDEX. 
 
 STATUTE OF FRATJT)^— (continued.) 
 
 acts iloiif to the defendant's own prejudice not part 
 
 performance . , . . 108 
 
 nor payment of purchase-monry, sembie . 101 
 
 auction duty . . 108 
 
 part performance as to one lot does not extend to 
 
 other lots sold under distinct particulars . 109 
 
 •where the agreement is in part performed, the court 
 will endeavour to ascertain the terms ib. 114 
 
 resulting trusts are exempted out of the statute . 530 
 
 See Advancement. Agent. Auction. Evi- 
 dence. FiNESv Perjurt. Printed Name. 
 Purchaser. Resulting Trust. Sales 
 BEFORE A Master, 
 STATUTES OF LIMITATIONS, 
 
 their operation and effect , , 314,323 
 
 STEWARD. See Agent. 
 STEWARD OF A MANOR, 
 
 appointed for life, is not affected by a sale of the manor 223 
 
 STILE NEW. See Time. 
 SURPRISE. See Agreements. Evidence, 
 SURRENDER, 
 
 purchaser not compellable to take a surrender of copyholds 
 by attorney .... 352 
 
 TENANT FOR LIFE, 
 
 may purchase the settled estates, although his consent is re- 
 quired to the sale, sembie . . 512 
 See Power. 
 TENANT IN TAIL. See Agrebmejjts. Assignees of Bank-] 
 
 RUPTS. 
 
 TENDER, 
 
 conveyance must be tendered by the purchaser, where 215 
 
 TERMSOF YEARS, 
 
 purchaser buying a terra of years may acquire the fee, how 
 
 252, n. 
 bequest of, revoked by the purchase of the fee . 158 
 
 purchaser may require an assignment of what , 355 
 
 cease by force of a proviso in the deed creating them, where 356 
 merge by an union with the fee, where . . 361 
 
 title to must be deduced at the expence of the vendor 366 
 
 TERMS
 
 INDEX. 99 
 
 TERMS OF YEAYi'i—(cont'mued.) 
 
 the expense of the assignment to a(tend must be borne by the 
 vendor or pur.^hager, where . . 366 
 
 an assignment of may be dispensed with, where, and where 
 not . ... 367, 369 
 
 a man having an actual assignment may prevail over one 
 having all the deeds and a declaration of trust of the 
 term ..... 369 
 
 a person having the deeds and a declaration of trust will pre- 
 vail over one having only a declaration of trust . 368 
 
 purchaser may protect himself by a term assigned in trust 
 for him, against what . * 371, 379 
 
 should be assigned by a separate deed where they do not ap- 
 pear on the conveyance . . . 370 
 
 \vhat recitals are necessary in an assignment of . 380 
 
 shall attend the inheritance without an express declaration, 
 
 •where . . . . .381 
 
 attendant, are not forfeited by felony, but follow an escheat 385 
 
 are personal assets, where . . • 387 
 
 trustees should he satisfied of what, before they sever the 
 term from tht- inheritance . ; , 380, 381 
 
 an assignment of, carries notice of incumbrances on the in. 
 
 heritance, where . • . 654 
 
 See Will. 
 TESTIMONY, 
 
 whether a bill lies to perpetuate it against a purchaser, tju. 629 
 
 TIMBER, 
 
 what is considered so * • • • 30 
 
 purchaser will be restrained from cutting, before he has paid 
 
 for the estate . . . .156 
 
 told with an option, personal estate after the seller's death 169 
 
 See InteiiesT. 
 TIME, 
 
 fixed for completing the contract is at law of the essence of 
 the contract . . . . . 324 
 
 60 in equity where either party has not shewn iiimself 
 
 readv to perform the agreement . . 329 
 
 and if thf vendor take no steps although in time urged 
 
 to do so, equity will not relieve him . .331 
 
 but a vendor will be relieved after the day appointed, 
 if he has not been guilty of gross ue^iigcnce . 332 
 
 TlMfi
 
 100 INDEX. 
 
 Page 
 
 TlME-^(cont'intied.) 
 
 or the piTchaser has waved the Hrre . .331 
 
 is more pariicularl)' attended fc> in saUsof reversions . 333 
 
 delays occasioned hy defects in the lille will not 1)6 a bar 
 
 to the aid of eciuify where the time is not niat<r':ti . 33^ 
 
 so where no time is fixed, if no application hns been 
 made for^the title, a vendor may recover at law al- 
 though he did not obtain a title till after an action 
 brought . ... 835 
 
 but if a defective title be produced, a purchaser will 
 recover at law, although the vendor has a title at the 
 lime of thf trial . . . ib. 
 
 equity will allow ti vendor tinie to procure a title where the 
 purchaser at the time of the contract was aware of the 
 objections . . • . . 338 
 
 a dormant treaty- will be enforced if the contract is not 
 
 abandoned .... 340 
 
 ■where by the death or bankruptcy of the purchacer the pur- 
 chase, money cannot be paid, the vendor may rescind the 
 contract , , , . ,341 
 
 may be made of the essence of a contract, semble . 343 
 
 the effect of delay where no time is appointed . 347 
 
 must be reckoned according to the new-stile , 118 
 
 TITLE, 
 
 where it should be inspected before sale , .10 
 
 when it is doubtful, a purchaser should not take possession Q 
 purchaser may lake the title such as it is . . 189 
 
 will be referred back io the roaster after a confirmation of 
 his report in favor of a title, if a new fact affecting the title 
 appear ..... 197 
 
 will be referred to the master before the answer, &c. where 198 
 purchaser objecting to a title must prove it bad . 207 
 
 a vendor bringing an action, must shew his title to the estate 210 
 court of law can enter into equitable objections, where, and 
 
 where not . . . , 212, 213 
 
 a purchaser of an existing lease is not bound to take a new 
 
 lease instead of the old one , , 254 
 
 a purchaser can require a title for 60 years . 279 
 
 semble, that a purchaser of a lessee can require the produc- 
 tion of the lessor's title » . • . 280 
 
 TITLE
 
 INDEX. 101 
 
 Page 
 
 'XlT'L'E-^icontinuccl) 
 
 a lessee cannot as plaintiff require a specific performance, 
 
 •without shewing a good titk to the freehold . 284 
 
 a purchaser of a bishop's lease cannot call for the lessor's 
 
 title . . . . .285 
 
 a purchaser cannot be compelled to take a doubtful or an 
 equitable title • . . . . 286 
 
 but he will be compelled to take an equitable title 
 -,, where the sale was under a decree of a court of 
 
 equity .... 293 
 
 and cannot object to a title on account of a mere pro- 
 bability . . . 295 
 a purchaser is entitled to a fine from a vendor's wife in order 
 
 to bar her dower, where, and where not . 301, 307 
 
 a purchaser is entitled to the same title from assignees of 
 
 bankrupts as from vendors sui juris , . 308 
 
 a purchaser will be compelled to take a title, although a will 
 
 is not proved against the heir at law . ib. 
 
 purchaser being defendant may have the title referred to 
 
 the master . . . . 196 
 
 where a purchaser takes a defective title relying on the 
 
 ▼endor's covenants, the agreement should be recited 393 
 
 will be held to have accepted the title, where . 200 
 
 purchaser is entitled to what relief ia case the vendor cannot 
 makp a title , . . 203 
 
 where he has purchased a defective title 409, 417 
 
 where he has taken a defective conveyance 625 
 
 person joining upon a purchase to obviate an objection to 
 the title, will not be bound unless the objection is fully 
 stated ..... 624 
 
 but if a person join upon a general statement, he will 
 be bound . . • ib. 
 
 slander of . . . . . 638 
 
 sale of pretended title . . . 412 
 
 See Action. Auction-Dux's. Contract. 
 Devisee. Inclgsure. Mortoace. Power. 
 
 Statutes or Limitation. Time. 
 J'JTLE DEEDS, 
 
 execution of, need not be proved in au action for breach of 
 
 contract , . , , 210 
 
 TITLE
 
 102 INDEX. 
 
 Page 
 
 TITLE DEEDS— (ro»/mwfd) 
 
 must be j)roduced in order that the abstract may be compared 
 with (hem . . . . 351 
 
 See Attested Copies. 
 TREASON, 
 
 persons who liave committed, can purchase, but not hold 501 
 TROVKR. See Abstract. 
 
 TRUST. See Resulting Trust. Statute or Frauds. 
 TRUSTEES, 
 
 for payment of debts will not be restrained from sellii.g 219 
 
 their receipts are discharges for purchase-money, where, and 
 where not . . . . 434 
 
 every trustee who has accepted the trust, must join in 
 
 the receipt although he has released , 452 
 
 but not if he renounced . . ib. 
 
 tannot buy the trust estate . . 504 
 
 unless they be clearly discharged from the trust 515 
 
 scmble, that trustees for creditors cannot buy •without 
 the consent of all the creditors . 514 
 
 trustees for persons not stii juris cannot buy without 
 the sanction of a court of equity . 516 
 
 purchase by a trustee, without the knowledge of his 
 cestui que trust, may be confirmed under particular 
 circumstances . . [■ 510 
 
 a purchaser being a relation of the trustee is immate- 
 rial, unless fraud be proved • . 511 
 cestui que trust has what remedy against a trustee who 
 
 has sold to himself, and who may pursue the remedy 51 6 
 cestui que trust may bar his equity to set aside the 
 purchase by laches . . . 520 
 
 or by confirmation . . 521 
 
 ©states bought by a trustee with trust-money cannot be fol- 
 lowed, unless the trust appear on the deed, or the applica- 
 tion of the purchase-money is clearly proved . 543 
 but where a trustee is bound to buy estates, it will be 
 presumed he acted in execution of the trust , 544 
 unless he considered himself entitled to the purchase- 
 money ... . Ib. 
 may join with tenant in tail if of age in a recovery . 630 
 arc answerable to a purchaser for a false representation as 
 to incumbrances : • . « ^ 
 
 TRUS-
 
 INDEX, 103 
 
 See Heir at Law. Incumbrances. Inter- 
 
 KSl. PURCHASE-MoXEV. TeRMS OF YeARS. 
 
 UXREASONACLK CONSIDERATION. See Consideration. 
 
 USES, DECLARATION OF. See Fines. 
 
 USES. See Charitable Uses. 
 
 VALUATIONS. See Appraisements. Consideration, 
 
 VALUE, 
 
 false^affirmation of , . . , 3 
 
 covenants as to . • , . ', 497 
 
 VENDOR, 
 
 not answerable for defects in the estate of which he was 
 
 ignorant ..... 1 
 
 not bound to disclose patent defects . . 2 
 
 but must not industriously conceal ereo a patent de- 
 
 feet ... . ib. 
 
 and is bound to disclose latent defects . 2, 415 
 
 cannot be relieved against for false affirmation of value 3 
 
 but otherwise for false affirmation of rent . 4 
 
 or of a valuation .... 3 
 
 must not conceal incumbrances . . 6 
 
 of leasehold estates can require covenants of indemnity against 
 the rent and covenants in the lease from the purchaser, 
 where . . . . 30,31 
 
 is a trustee of the estate sold for the purchaser, from the 
 
 time of the contract . . . . 154 
 
 will be restrained from conveying away the legal estate after 
 
 a bill filed . . . . .196 
 
 may in general bring his action at law although his bill for 
 
 specific performance be dismissed . . 2l7 
 
 will be relieved where he has conveyed more lands than were 
 
 agreed for, where and where not , . , 275 
 
 vendor, and those claiming under him, must make good a 
 defective conveyance, in what cases . . 625 
 
 See Action. AgrebmenT, Anwuitv. At- 
 testkd CoHiBs. Conveyance. Purchassr. 
 Time. Title. Trustees. 
 VOLUNTARY CONVEYANCE, 
 
 fraudulent aed voluntary conveyance! void against purcha* 
 
 sers , . . . 551 
 
 purchase by a father, in the name of his child^ is not volun- 
 tiTj . . f » 5-11 
 
 VOLUN-
 
 104) I ^' D E X. 
 
 VOLUNTARY CO^YEYA^CB— (continued.) 
 
 a conveyance for payment of debts is voluntary, where, and 
 
 where not . . • 554 
 
 notice to a purchaeer of a fraudulent or voluntary convey- 
 ance, is immaterial, where he has a conveyance ib. 
 may become good by matter ex ptwi/ncto . 564 
 what is a fraudulent or voluntary settlement, and what is a 
 
 good consideration . . . 556, 563' 
 
 whether consideration of marriage extends to collateralr ^ 561 
 parol evideifce is admissible ki support of a deed apparently 
 voluntary . ..... 565 
 
 purchaser having notice of, caiinot be advised to complete ib. 
 and a specific performance would not be enforced 
 against him, whether he bought with or withoilt 
 notice . . . . . 569 
 
 whether a specific performance would be enforced in his 
 favour if he bought with notice, qu, . 568 
 
 will be aided by equity, in what cases . . 563 
 
 voluntary settlor will not be restrained from selling the 
 
 estate .... &73 
 
 See Fraudulent Conveyance. 
 
 WARD. See Guardian. 
 
 WAVER, 
 
 by parol of a written agreement , 128, 131 
 
 See Opinion. 
 WILL, 
 
 mistakes in corrected, where evident . . 140, n. 
 
 unless the supplying of the words would defeat the tes- 
 tator's intention . . • , ib, 
 republication of, what amounts to ^ , , 163 
 purchaser cannot require a will to be proved . 308 
 terms of years attendant on the inheritance will not pass by 
 a will not attested according to the statute of frauds 386 
 and where the inheritance is intended to pass, bat does 
 not, the term shall not . , ib* 
 
 See Contract, Register. 
 WITNESS, 
 
 may ipok at a paper if he can afterwards swear from memory 9 
 
 , See Notice. Pbrjurv. 
 
 TH£ XKX>. 
 
 Printed by R. Wllki, 
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