^"^fSfe luksrllns.JhiJilisbn'S. .L\o i:it.ri:/{\, ~^^ COINS INN ARCMWAV, ice for eael THE REPORTS OMITTING SU TABL OLD liErORTS, CASES FHOM AdolphuB * Ellis ' Anstruther— ;i vols. Arnold—-' vi>ls. Ball 4 Beatty--' vd Barnewall & Adolp Barnewall & Alders Barnewall &. Cress^ Beavan— Vols, i to t Bing-ham— 10 vols. . Bing-ham, N. C— 6 Blackstone, H.— °i v Bligh-i vols. . Bligh, N. S.-VoLs. 1 Bosanquet & Pullei Broderip ft Bingrham. — 3 vois. ,, ax lu <« Campbell— 1 vols. ... ,, 10 to 16 Carrin^on ft Payne— Vols, i to s 28, 31, 33, 34, 38, 40. 48, 56 Chitty -■- vol-i ,, 22 & 23 Clark ft Finnelly-Vois. i to w 86, 37, 39. 42, 47, 49, 51, 54, 57 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY ilf brown ealf, net. ORTS. i COURTS RE CONSIDERED LUE. ERENCE. REVISED REPORTS. CITED AS R. R. vide R. R. vols. S, 37, 39, 41, 42, 46, 49, 52, 56 ugden . ,, 46 35 . 15 to 18 & 20 to 23 —Vols. 1 and 2 56, 58 5 vols. . ,, 31 to 34 15 & 17 lis. . „ 14 to 18 28 » . . ,, 29 ols. 1 to 8 46, 49, 51, 52, 55, 56. 58 15 to 17 W. 1 Cooper temp. Brougham . 38 Cooper, G 14 Cooper, Pr. Cas. 46 Cox— ■-■ Vols 1&2 Craig- & Phillips 64 Crompton & Jervis— 2 vols. 35 & 37 Crompton & Meeson— .; vols. 38, 39 Crompton, Meeson & Roscoe— •-■ Vols 40, 41 Daniell 18 Dansonft Iiloyd 34 Dow '• vols ., 14tol6&19 Dow ft Clark-V.ils. 1 & j 35 Dowlinf?— Vols. 1 to r, 36, 39, 41, 46, i9 Dowling ft Ryland's K. B. ' vols. 24 to 30 Dowling & Ryland's N. P. 25 Drury & "Walsh—'- vols. 66 Drury & Warren— Vol. 1 58 Durnford ft East— 8 vols. lto5 East-i'ivois 5 t vols. Tyrwhitt & Granger Vesey, Jr.— r.' vtds. . Vesey ft Beames— 3 vols. West, H. li. Wightwick Willmore, WoUaston & Davison „ Willmore, Woliaston & Hodg-es ,, 52 Wilson's Chy ,, 18 Wilson's Ex, Eq 18 Younge ,, 34 Youngre & Collyer— 4 vols. . „41,47&51, 54 Younge ft Collyer, C. C. . „ 57 Youngre ft Jervis— 3 vols. . ,, 30 to 32 31 42 19 to 29 43, 46, SO „ 29, to 31, 33 34, 35, 38 51 43, 45, 48 36, 39, 41 38 to 43 44, 45 3&4 , 48, 50, 52, 54 15 to 27 55, 57 25 to 29 32, 34 15 27 9 41 to 44, 50, 54 56, 58 40, 42, 47 & 51, 54, 56 24&25 7&8 18 to 20 & 23 18&19 31 9 to 21 23<&24 35, 37 to 40 46 1 to 13 12 & 13 51 12 52 June, 1903. liAW BOOKS PUBLISHED BY SWEET & MAXWELL, LIMITED, 8, CHANCERY LANE, LONDON. ENCYCLOPAEDIA OF THE LAWS OF ENGLAND, by the most eminent legal authorities. In 13 Vols. Price £13 net in cloth, or £1-3 5s. net in half calf. Full Frospectus and Names of Contributors on Application. Admiralty. — Williams and Bbuce's Admiralty Practice. 3rd Edit. By C. F. jEMMETxandG. G. Phillimore. 32s. 1902. Agency. — A Digest of the Law of Agency. By AV. Bowstead. 2nd Ed. 16s. ° ^ ^ 1898. Amepican Law. — Bouvier's Encycio- pgedic Dictionary of American and Englisli Law. New Edition. 2 vols. 21. 10s. net. 1898. Annual Practice.— By T. Snow, Chas. BuRNEY, and F. A. String kr. 25s. net. Apbitration and Award.— Russell's (F. ) Treatise on Power and Duty of an Arbi- trator ; with Forms and Statutes. 8th Edit. 30s. 1900. Attachment. — Attachment of Debts, Receivers by way of Equitable Execution, and Charging Orders on Stoclc and Shares. By M. Cababe. 3rd Ed. 6s. 1900. Auctions. — Bateman's Auctioneer's Guide, containing a Practical Treatise on the Law of Auctions; with Forms and Precedents. 7th Ed. 12s. 1894. Bailments. — Wyatt Paine on Bail- ments, including Carriers, Pledges, Hire- Purchase, Liens, &c. 25s. 1901. Bankrupt Law. — Williams' Law and Practice in Bankruptcy. 7th Ed. ByE. W. Hansell. lioyal 8vo. 30s. 1898. Bills of Costs. — Johnson's Bills of Costs in the Higli Court of Justice and Court of Ajipeal, in the House of Lords and Privy Council. With Fees, Orders, Rules, Decisions, &c., &c. By H. M. Johnson. 2nd Edit. 35s. 1901. Bills of Exchang-e. — Byles on Bills of Exchange. 16th Ed. By M. B. Byles and W. H. B. Byles. 25s. 1899. Law relating to Cheques. By E. R. Watson. 2nd Edit. 2s. Qd net. 1902. Building" Contracts. — Conditions of Contract. By F. W. Macey. 15s.net. 1902. Building Societies. — Davis's (H.F.A.) Law of Building and Freehold Land Societies in England, Scotland and Ireland, &c. 4th Edit. By J. E. Walker. 21s. 1896. Burials. — Baker's Law of Burials. Tlie Law relating to Burials ; with Notes, Forms, and Practical Instructions. 6th Ed. V,y I']. Lewls Thomas, Barrister-at-Law. 25s. 1901. Capital and Income.— Concise Trea- tise on Capital and Income as between Life Tenant and Remainderman. Bv W. H. GovER. 7s. M. 1901. Children. — The Law relating to Chil- dren and Young Persons. By J. B. Mat- thews. 10s. Qd. 1894. ChOSeS in Action. — The Law relating to Choses in Action. By W. R. Warren. 16s. 1899. Common Law. — Broom's Commen- taries on the Common Law. 9th Edit. By W. F. A. Archibald and H. A, Colefax. 25s. 1896. Companies. — Lindlby. A Treatise on the Law and Practice of Joint-Stock and other Companies. By Lord Lindley. 6th Edit. By his honour Judge Lindley. 2 vols. 3;. 10s, 1902. Conflict of Laws.— A Digest of the Law of England with reference to the Conflict of Laws. By A. V. Dicey, q.c, b.c.l. 30s. 1896. Contracts. — Chitty's (J., jun.) Treatise on the Law of Contracts. 13th Ed. By J. M. Lely. 30s. 1896. The Specific Performance of Contracts. By W. D. Rawlins, k.c. 5s. net. 1899. Elements of the Law of Contract. By A. T. Carter; 7s. 6rf. 1902. Conveyancing. — Btthewood and Jar- man's Precedents in Conveyancing. 4th Ed. By L. G. G. RoBBiNS. With a Supplemental volume bringing each volume down to 1893. 8 vols. Eeducedto5l.net. 1884-93. Davidson's Concise Precedents in Conveyanc- ing. 17th Ed. ByM. G. Davidson. 21s. 1899. Introduction to Conveyancing. By Sir H. W. Elphinstone. 5th Ed. 14s, 1900. Key & Elphinstone's Precedents and Forms in Conveyancing. Thorouglily revised, with large additions both to the Precedents and Notes. 7th Ed. By Sir H. Elphinstone. 2 vols. 3^. 10s. 1902. Student's Precedents in. By James W. Clark, M.A. 2nd Edit. 5s. 1896. Coroners.— Jervis (Sir John) Practical Treatise on the Oflice and Duties of Coroners. Witli an Appendix of Forms and Precedents. 6th Edit. By Rudolph E. Melsheimer. 10s. 6'f. 1898. A SELECTION LEADING CASES IN EQUITY. A SELECTION LEADING CASES IN EQUITY BY FKEDERICK THOMAS WHITE AND OWEN DAVIES TUDOR. SEVENTH EDITION THOMAS SNOW, M.A., EDITOR OF "the ANNUAL PRACTICE ;" OF THE INNER TEMPLE, BARRISTER AT LAW ; ASSISTED BY W. F. PHILLPOTTS, M.A., LATE FELLOW OF NEW COLLEGE, OXFORD ; AND C. R. SILLEM AND R. B. PHILLPOTTS, B.A., BARRISTERS AT LAW. " Pray let us so resolve cases here that they may stand with the reason of niaukiud whuii they are debated abroad."— Per Lord Nottingham in Duke of Norfolk's Case, 3 Ch. Cases, 33. IN TWO VOLUMES.— VOL. L LONDON : SWEET AND MAXWELL, Ltd., 3, CHANCERY LANE, i^iiiu |3ublish£r3 ;utb booksellers, MEREDITH, RAY, & LITTLER, MANCHESTER; HODGES, FIGGIS, & CO., Ltd., and E. PONSONBY. DUBLIN THACKER, SPINK, & CO., CALCUTTA ; CHARLES F. MAXWELL, MELBOURNE & SYDNEY. 1897. T" V0-5'g334e, 1^97 BRADBURY, AGNEW, & CO. LD., PRINTBRS, LONDON AND TONBRIDGB. In > ft THE RIGHT HONOURABLE HARDINGE STANLEY, BAEON HALSBUEY, LOED HIGH CHANCELLOR OF GREAT BRITAIN, THE FOLLOWING WORK IS BY PERMISSION Ufsprrtfullg Detitcatc&. ^A\\^^ PKEFACE TO THE SEVENTH EDITION. In their Preface to the first edition of these Leading- Cases the Editors wrote as follows : — " In the notes an attempt has been made to develope the principles laid down or acted upon in the cases, and to collect the recent authorities ; but as the nature of the work would not permit that the notes should be complete essays upon the different subjects treated of, they have been principally confined to the points decided in the cases, to which, in fact, they are only intended to be subsidiary." These and other characteristics of this work I have endeavoured to keep. But as retrenchment of bulk has been an imperative necessity, some of the more lengthy statements of arguments in the leading cases, and some of the more diffuse notes, have been shortened or omitted. Some changes have been made in the arrangement of the cases, in accordance with the views of the original Authors, as stated in theii* Preface to the first edition, and they have* now been grouped under headings referring to the principal subject-matter of the cases, and these headings have been arranged in alphabetical order. The notes to the eases have also been divided into parts, a reference to which is given at the com- mencement of each set of notes. Vlll PREFACE TO THE SEVENTH EDITION. In editing a work of this kind the chief difficulty with regard to the notes is to determine their limit. To deal thoroughly with the subjects to which most of them relate would require a volume instead of a few pages. It is, therefore, necessary to select leading points, ' and however carefully this may be done it is impossible to feel sure that the reasonable expectations of others have been duly provided for. Burrowes v. Lock, 10 V. 470, 8 R. R. 33, 856, has been substituted for Savage v. Foster as the leading case on Estoppel by Representation. Huntingdon v. H. has been omitted. Wilson v. W., as to the effect of Articles of Separation between Husband and Wife, has been added. The labour of re-writing the notes and collecting cases has been necessarily divided, but all the proofs have been revised by me and many by Mr. W. F. Phillpotts, to whom I am also indebted for the articles relating to Mortgages, Notice, Purchaser for value with- out Notice, and the duties and liabilities of Trustees. I am greatly indebted to Mr. Savill Vaizey for reading the sheets of Glenorchy v. Bosville, to Mr. J. B. Matthews for the use of his notes upon the sixth edition, to Mr. W. A. Bewes, to Mr. W. B. Lindley, to Mr. Brickdale, to Mr. Godefroi and to Mr. E. P. Hewitt for permission to use their respective text-books, and also to the numerous other authors whose 'works have been used for reference. T. S. September, 1897. TABLE OF CONTENTS. PAGE LEADING CASES IN VOLUME I ix ALPHABETICAL LIST OF THE LEADING CASES IN BOTH VOLUMES xi TABLE OF CASES xv TABLE OF STATUTES cv ADDENDA cxiv INDEX 877 1 LEADING CASES IN VOLUME I. ADMINISTRATION. ,„ , ,' Primary liability of personal estate to Ancasteb (Duke of) v. \ •' „ , , -r^ ,r < the payment of debts. Lxonera- JklAYEE. J ^ "^ \ tion .■ Aldeich v. Cooper \ Durham v. Lankester . . . . > Marshalling of assets, &c 36 Durham v. Armstrong . . . . } Howe v. Dartmouth (Earl i Conversion as between tenant for of) I life and remainderman 6S ASSIGNMENT. Warmstrey v. Tanfield . . N Assignment of equitable chose in / action 91 Eow i'. Dawson i 93 Etall v. Eowles / 9() Hornsby v. Lee Assignment of wife's choscs in action 152 BOUNDARIES AND PARTITION. Waice v. Conyers Boundaries ITO Agar v. Fairfax ) _ ^.^. ioi [ Partition lol Agar v. Holdsworth } COMPROMISES. Stapilton v. S Compromise. Family arrangement . 223 X TABLE OF CONTENTS. PAGE CONSTRUCTIVE FRAUD. HuGUE^S'iN V, Baseley. Undue influence ... '247 Chesterfield (Earl of) v. ) ..^ • 1,1 -u • oon *■ ' [ Unconscionable bargains 289 Janssen ) CONVERSION. ^ . ( Conversion of land into money and Fletcher u. Ashburner . . { ■ ^ ■, -, „ ,„ ( money into land o27 iEesulting trust on failure of pur- poses for wliich. conversion lias ^ been directed 372 DONATIO MORTIS CAUSA. Ward v. Turner 390 ELECTION. NOYS V. MORDAUNT 414 Streatfield V. S 416 EQUITABLE ESTOPPEL. BuRROWES V. Lock 446 GUARDIAN AND WARD, Eyre (Mr. Justice) v. Shaftsbury (Countess of) 473 HUSBAND AND WIFE. Scott v, Tyler Conditions in restraint of marriage . o3o Wilson v. W Separation deeds 577 Stratiimore (Countess of) ) „ , ■. t ■ ■,. ,.i.> ^ I Eraud on marital rights 013 V. Bowes j • • • • I Wife's equity to a settlement 621 Murray v. Elibanic (Lord) . ) HuLME V. Ten^int Wife's separate property 6,54 JURISDICTION. Oxford's (Earl of) Case . . Eestraining proceedings at law .... 730 , ( Power of Courts of Equity over Penn v. Baltimore (Lord) . ^ ^ ^ , • • iw ( property out of juiisdiction lOO LEGACIES. AsHBURNER V. Macguire . . Specific legacy ; ademption 780 HooLEY V. Hatton Repetition of legacies 865 ALPHABETICAL LIST OF THE LEADING CASES IN BOTH VOLUMES. VOL. PAGE AcKROYD V. Smithson Eesulting trust on failure of pur- poses for which conversion has been directed I. 372 Agar v. Fairfax Partition I. 181 Aldrich v. Cooper Marshalling I. 36 Aleyn v. Belohier Fraud upon a power 11. 308 iVNCASTER (Duke of) v. Mayer . Primary liability of personal estate for payment of debts ; exoneration I. 1 ASHBURNER V. Macgtjire Specific legacy ; ademption .... I. 780 Basset v. Nosworthy Purchase for valuable consider- ation without notice II. 150 Blandy v. Widmore Satisfaction of covenant to leave money by jsartial intestacy . . II. 407 Brice r. Stokes Liability of trustee for co- trustee's receipts II. 633 Burrowes u. Lock Equitable estoppel I. 446 Casborne v. Scarfe Equity of redemption II. 6 Chancey's Case Satisfaction of debt by legacy. . II. 376 Chesterfield (Earl of) :.1 , Unconscionable bargains I. 289 J ANSSEN ) Ctjddee v. Rutter Specific jjerformance of agree- ment relating to personal property II. Bering o. Winchelsea (Earl of) Contribution between go- sui-eties Dyer r. D Purchase in name of child ; advancement : in name of stranger ; resulting trust .... Elibank (Lady) v. Montolieu. . Wife's equity to a settlement . . Elliott v. Merryman Liability of purchaser to see to aiJijlication of purchase money Ellison v, E Vohintary trusts Eyre v. Shaftsbxjry Infants : guardian and ward . . II. 416 n. 535 II. 803 I. 621 n. 896 II. 835 I. 473 VOL. PAGE I. 327 II. 709 II. 970 II. 763 II. 335 I. 865 XU ALPHABETICAL LIST OF THE Fletcher v. Ashburner Conversion Fox V. Mackreth Purcliase by trustee for sale . . Gjvrth v. Cotton Equitable waste Glenorchy (Lord) r. Bosyille . Executed and executory" trusts Harding v. Glyn Power in the nature of a trust HooLEY V. Hatton Cumulative legacies HoRNSBY V. Lee Assignment of wife's cboses in action I. 152 Howard v. Harris Eestrictions on redemption of mortgages discountenanced in equity II. 11 Howe v. Dartmouth (Earl of) . Conversion of residue be- queathed to persons in suc- cession I. 68 HuGUENLN V. Baseley Voluntary settlement ; undue influence I. 247 HuLME V. Tenant Wife's separate estate I. 654 Keech v. Sandford Eenewal of lease by a trustee in bis own name ; constructive tiust n. 693 Lake v. Craddock ) _^ . -_ ^, > Jomt ])urchasers II. 952 Lake v. Gibson ) Lechmere v. L Imj)lied perfoiTnance of cove- nant to pui'cbase and settle an estate II. 399 Legg v. Goldwire Executed and executory trusts ; rectification of settlement by articles II. 770 Lester v. Foxcroft Part performance of parol con- tract respecting land II. 460 Le Neve v. Le Neve Notice II. 175 Mackreth v. Symmons Vendor's lien for impaid pm-- cbase money II. 926 Marsh v. Lee Tacking incumbrances II. 107 Murray v. Elibank (Lord) .... Wife's equity to a settlement . . I. 621 NoYS V. Mordaunt Election I. 414 Oxford's (Earl of) Case Jurisdiction of equity as to pro- ceedings at law I. 730 Peachey v. Somerset (Duke of) Belief against penalties and for- feitures n. 250 Penn v. Baltimore (Lord) .... Power of equity over proi^crty out of its jiu'isdiction by a decree in personam Pitt v. Mackreth Purcbase by trustee for sale . . PusEY V. P Specific delivery up of chattels . I. 755 II. 709 n. 454 LEADING CASES IN BOTH VOLUMES. Xlii VOL. PAGE Pye, Ex parte Satisfaction of a legacy by a portion ; ademption II. 366 Eees v. Berrik-gton Eelease of surety by creditor giving time to debtor II. 568 EoBlNSON V. Pett No allowance to executor or trustee for care or trouble . . II. COB Row r. Dat^sox Chose in action assignable in equity I. 93 EussEL V. E Equitable mortgage by deposit of title-deeds II. 76 Eyall v. Eotvles Assignment of debts without notice to debtor; order and disposition I. 96 Scott v. Tyler Conditions in restraint of mar- riage ; public policy I. 535 Seton v. Slade Specific performance with com- pensation II. 475 Sloman v. Walter Penalty relieved against II. 257 Somerset (Duke of) v. Cooksox Specific delivery up of chattels . II. 455 Statilton v. S Compromise ; family an-angc- ment I. 2L!3 Stratumore (Cotjntess of) _, ^ Fraud on marital risrhts I. 613 Bowes Streatfield v. S Election I. 416 Talbot (Sir John) v. Shrews- ) -^ ^ , ,. ^ , , ,-r. , V Debt satisfied by a legacy .... II. 375 BURY (Duke of) ) ■' ° •' Thorxborough r. Baicer Executor of mortgagee in fee entitled to money secui'ed on mortgage 11. 1 Tollett v. T Defective execution of a power aided II. 289 Towxley 7\ Sherborne Liability for acts of co-trustee . II. 629 "Wake v. Coxyers Confusion of boundaries I. 170 "Ward v. Txjrxer Donatio mortis causa I. 390 "Warmstkey v. Tanfield (Lady) Possibility assignable in equity. I. 91 "Wilson v. W Separation deeds I. 577 "WooLLAM V. Hearn Distinction between seeking and resisting specific performance II. 513 TABLE OF CASES TO VOLUME L A COMPY., Re, (1894) 2 Ch. 349 ; 63 L. J. Ch. 565 Abadam v. A., 33 B. 475 ; 33 L. J. (N. S.) Ch. 593 Abuey v. Miller, -2 Atk. 593 .... Abraham v. Newcombe, 12 Si. 566 Acey V. Simpson, 5 B. 35 Acherley v. Wheeler, 1 P. W. 783 .. . Acton -?;. A., 1 Mer. 178 V. White, 1 S. & S. 429 ; 24 R. E. 203 . Adair v. Shaw, 1 Sch. & Lef. 263 ; 35 L. J. Ch. 784 Adam, Re, 23 C. D. 525 ; 52 L. J. Ch. 642 . Adams, &c., Re, 27 C. D. 394 ; 54 L. J. Ch. 87 . r. Buckland, 2 Yern. 514. V. Gamble, 12 Ir. Ch. R. 102 . V. Lavender, McCle. & Yo. 41 . V. London, &c. R. C, 2 Mac. & G. 118 ; 19 L. J. (X. S 587 V. Meyrick, 1 Eq. Ca. Abr. 271 Morgan, 14 L. R. Ir. 140 . Adamson v. Armitage, 19 V. 416 Addams v. Ferick, 26 B. 384 ; 28 L. J. (N. S.) Ch. 594 Addecott v. A., 29 B. 460 Addis V. Campbell, 1 B. 258 ; 8 L. J. (N. S.) Ch. 305 Addison v. Cox, 8 Ch. 82 ; 42 L. J. (N. S.) Ch. 291 Adnam v. Cole, 6 B. 353 Adv.-Gen. v. Ramsay's T., 2 Cr. M. & R. 224 (n.) ; 4 211 V. Smith, 10 CI. & Fin. 14 . r. , 1 Macq. H. L. Cas. 760 AfBeck V. James, 17 Si. 121 . Agar-Ellis, Re, 24 C. D. 317 L.J. 53 L. J. Ch. 10... 495, 496, 49 514, 515, 518, ; Agnew V. Belfast, &c. Co., (1896) 2 Ir. R. p. 209 Agra Bank, Re, 3 Ch. 555 ; 37 L. J. Bankr. 23 . Ainsworth v. Wilding, (1896) 1 Ch. 673 ; 65 L. J. CI Aislabie v. Rice, 3 Maild. 256 ; 18 R. R. 230 Aitchison v. Dixon, 10 Ec^. 598 ; 39 L. J. Ch. 705 Alabaster v. Harness, (1895) 1 Q. B. 339 ; 64 L. J. Q. Alcock V. Sloper, 2 My. & K. 699 Aldljonjugh v. Trve, 7 CI. & Fin. 436 . Alders(m, Ex p., 1 ]\Iadd. 53 ; 15 R. R. 208 ■ , £'x jj., 3 Swan. 392 .... Aldridge, Ex p., 1 S\v. & Tr. 88 . 1;. A., 13 P. D. 214 .... V. Forbes, 4 Jur. 20 ... . V. Wallscourt, 1 Bull. & B. 312 . Alexander v. A., 5 B. 518 V. Barnhill, 21 L. R. Ir. 511 V. Yonng. 6 Ha. 393 .... V. Wellington, 2 Russ. & M. 35 ; 9 L. J. CI Algeo, Re, 2 Ir. Rep. E(j. 485 ... . 34 2, 35 311. 31 (X. S 19, 5 432 B. 76 36 49 20, 5 825, PAGE 742 861 826 .■ 648 . 841 . 853 . 843 . 714 696, 697 . 671 354, 357 487 683 160 )Ch. 342 . 10 . 113 . 663 . 830 . 804 324, 325 109, 125 )Ex 349 349 350 348 510, 513, 527, 528 394, 126, 404 135 242 567 158 156 157, 147, 80, 83, 86 309, 316, 318 . 109 . 109 . 670 98, 599, 601, 608 . 59 15, 16 . 876 693, 695 . 715 . 144 . 168 XVI TABLE OF CASES C. P J. Ch. 871 AUan V. Gott, 7 Ch. 439 ; 41 L. J. Ch. 571 Allcard v. Skinner, 36 C. D. 181 ; 56 L. J. Ch. 1052... 277, 278, 279, 281, 286, Allday v. Fletcher, 1 De G. & J. 82 ; 26 L. J. (N. S.) Ch Allen V. A., 30 B. 403 ; 31 L. J. (X. S.) Ch. 442 V. A., 21 W. E. 842 ; 42 L. J. (N. S.) Ch. 839 V. Anderson, 5 Ha. 163 ; 15 L. J. (X. S.) Ch. 1 V. Callow, 3 V. 289 V. Coster, 1 B. 202 ; 9 L. J. (N. S.) Ch. 131 V. Jackson, 1 C. D. 399 ; 45 L. J. Ch. 310. v. McPherson, 1 H. L. Cas. 207. • V. Pap worth. 1 V. 163 V. Walker, L. "R. 5 Ex. 187 ; 39 L. J. Ex. 153 Alletson v. Chichester, 10 C. P. 319 ; 44 L. J. (N. S.) Allhusen v. Whittel, 4 Eq. 295 ; 36 L. J. Ch. 929 Alliance, &c., The, v. Maclvor & Co., 7 T. L. R. 599 AUnutt, Re, 22 C. D. 275 ; 52 L. J. Ch. 299 Alston, Ex p., 4 Ch. 168 Alton V. Medlicot, 2 V. 417 ; 3 Atk. 694 Anies V. Com}Tis, 16 W. R. 74 . Amies, Re, W. N. (80) 16 . Amiss V. Witt, 33 B. 619 . Amos V. Chadwick, 9 C. D. 459 ; 47 L. V. Horner, 1 Eq. Ca. Ahr. 112 Amphlett v. Parke, 2 Euss. & M. 221 Amy's Case, 2 Ch. Ca. 128 . Anandale r. A"., 2 V. 384 . Ancell V. Rolfe, 40 Sol. Jo. 230 . Anderson v. Abbott, 23 B. 457 . V. Butler, &c. Co., 48 L. J. Ch. • i: Dwyer, 1 Sch. & L. 301 V. Eaciclitte, 2 B. & E. 806 Anderton v. Cooke, 1 Bro. Ch. 456 Andrew v. A., 1 Coll. 690 . V. Trinity Hall, 9 V. 525 Andrews, Re, L. R. 8 Q. B. 153 . „. Salt, 8 Ch. 636 . Andrewes v. Tyrrell, 29 Sol. Jo. 622 Anesley & Aneslev's Case, Ridg. 149 ; 8 Mod. 214 Ans^erstein v. Martin, 1 P. & R. 241 ; 2 L. J. Ch. 88 ; Angrier v. A., Pr. Ch. 496 ; Gilb. Eq. R. 152 . Anglo-Africa, &c. Co., Re, 32 C. D. 350 ; 55 L. J. Ch Angus r. A., West temp. Hardwicke, 23 r. Clifford, (1891) 2 Ch. 449 ; 60 L. J. Ch. 443 Ann Elliott, Re, 2 P. & D. 274 ; 40 L. J. (X. S.) P. & Ann, Re, (1894) 1 Ch. 549 ; 63 L. J. Ch. 334 Annandale, Ex p., 1 Amb. 81 . . . Anne Walker, Re, L. & G. t. Sugd., 299 . . 814 9L, 28 L J. Ch. 161 828 J. (X. S, Anon, Jac. 265 (n.) , 3 Jur. (X. S.) 839 : , 3 Atk. 726 , 2 V. sen. 374 . , Jac. 264 (n.) , 2 Vern. 199 , 2 Sim. N. S. 54 , Jac. 264 . , Gilb. 15 . , 1 V. jun. 462 . Ansell, i;:c2J., 19 V. 208 Ansley v. Cotton, 16 L. J. An.stey v. Xewman 39 L. 27 L. J. (X. S.) Q. B. 184 Ch. 55 J. Ch. 769 . 153 24 R PAGE 14, 21 267, 268, 269, 276, 287, 325, 326, 453 166, 649 . 28 208, 215 429, 436 871, 872 . 516 560, 568 287, 288 655, 685 683, 708 . 126 86, 88, 89 238, 242 . 721 63, 64, 65 . 790 . 198 662, 663 . 411 . 748 552, 561 380, 387 . 460 . 366 . 217 432, 433 . 129 . 860 . 149 . 3, 18 . 796 . 433 525 497, 520 . 648 . 489 849 Q. B. 32 579 M. R. 32 586, 587, 591, 592 r79 . 770 . 454 . 670 687, 688 . 366 . 651 523, 524 . 646 . 160 521, 522 . 519 . S45 . 517 . 498 . 434 . 366 . 850 . 861 . 59 TO V^OLUME I. XVU 513 ■7 244, & A. 63 s.) cii. 4-; Anstruther v. Adair, 2 Mv. & K. Anther v. A., 13 Si. 422 " Anthony, Re, (1892) 1 Ch. 450 ; 61 L. J. c'h. 434 Applin's Trusts, Re, 13 W. R. 1062 . Aj)reece v. A., 1 V. & B. 364 .... Aquilar v. A., 5 Madd. 414 . Arab, The, 5 .Jur. (N. S.) 417 ... . Arbuthnot v. Norton, 5 Moore, P. C. C. 219 Archer v. Hudson, 7 B. 560 ; 15 L. J. (N. S.) Ch. 21 V. Lavender, 9 I. R. Eq. 220 . V. Prestou, 1 Eq. Ca. Abr. 133, pi. 3 V. Rorke, 7 Ir. Eq. R, 478 Arden v. A., 29 C. D. 703 ; 54 L. J. Ch. 655 Ardesoife v. Beniiet, 2 Dick. 465 Ardglasse v. Muschamp, 1 Vern. 237 . Arkwright v. Huntley, cited Sugd. : Prop. 86 . Armit, Be, 5 Ir. R. Eq. 352 .... Armitage, Re, 7 R. 290 ; 63 L. J. Ch. 110 . , Re, (1893) 3 Ch. 337 ; 63 L. J. Ch. 110 V. Coates, 35 B. 1 Armstrong, Re, 17 Q. B. D. 521 ; 55 L. J. Q. B. 578 , Re, 21 Q. B. D. 264 ; 57 L. J. Q. B. 553 . , Re, (1892) 1 Q. B. 328 . V. A., 8 Ir. R. Eq. 1 . V. A., (lS92j P. 98 ; 61 L. J. P. D v. Burnet, 20 B. 424 ; 24 L. J. (N. — c. Lynn, 9 Ir. R. Eq. 186 . Arnold, Re, 37 C. D. 644 ; 57 L. J. Ch. 682 V. A., 2 My. & K. 374 f. Dixon, 19 Eq. 113 V. Ennis, 2 Ir. Ch. R. 601 V. Woodhams, 16 E^\_. 34 ; 42 L. J. (X. S.) Ch. 578 Arthur f. A., 11 Ir. Eq. R. 511 v. Maekinnon, 11 C. D. 385 ; 48 L. J. Ch. 534 Arundel's Case, Earl of, Jenk. 6 Cent. Ca. 26, p. 243 ; 3 Dy Arundell v. A., 1 My. & K. 316 ; 2 L. J. (N. S.) Ch. 77 Ashburton v. A., 6 V. 6 ; 5 R. R. 201 ... Ashby y. A., 1 Coll. Ch. R. 549 ; 14 L. J. (X. S.) Ch. 22 V. Palmer, 1 Mer. 296 ; 15 R. R. 116 . . :- Ashton V. A., Pr. Ch. 226 V. A., Ca. t. Talb. 152 ; 3 P. W. 384 . V. Dawson, Sel. Ca. 14 . V. McDougall, 5 B. 66; 11 L. J. (N. S.) Cii. 314 Ashurst V. Mill, 7 Ha. 502 ; 18 L. J. Ch. 129 . Ashwell r. Lomi, 2 P. & D. 477 Ashvvorth v. Muun, 34 C. D. 391 ; 56 L. J. Ch. 451 . c. Uutram, 5 C. D. 941 ; 46 L. J. Ch. 687 . 659, Askew V. Rooth, 17 Eq. 426 ; 44 L. J. (X. S.) Ch. 200 V. Thompson, 4 K. & J. 620 .... c. AVoodhead, 14 C. D. 27 ; 49 L. J. Ch. 320. Assignees of Dunne v. Hibernian, &c. Co., 2 Ir. R, Eq. 82 Asten V. A., (1894) 3 Ch. 260 ; 63 L. J. Ch. 838 Astley r. Earl of Essex, 6Ch. 8in/ .... c. Essex, 18 Ei[. 290 ; 43 L. J. (X. S.) Ch. 817 Aston V. Exeter, 6 V. 293 ('. Gregory, 6 V. jun. 151 V. Meredith, 13 Eq. 492 .... c. Wood, 43 L.J, Ch. 715 .... v. , 22 W. R. 893 ; 43 L. J. (X. S.) Ch. 715 W. & T.— VOL. I. PAGE . 647, 651 . 792 . 31 . 438 . 790, 841 . 650 . 67 . 143 269, 270, 285 . 704 . 770 . 661 115, 12.5, 130 422, 441, 443 293, 770, 771 . 244 . 502 . 89 . 8.34 . 715 673, 666 . 716 . 505 . 268 750, 753 . 830 . 438 19, 55 842, b59 . 212 . 87, 88, 90 . 472, 712 . 662 . 814 r, 342 b... 558 . 848 . 366 21, 163 , 346, 358, 362 550, 555 . 785, 793 411 615, 619,707 . 245 . 287 13, 55, 341 660, 666, 667, 670 . 704, 706 . »51 87 . 123 . 814 . 860 . 571 . 176 . 851 . 212 . 821 . 433 XVlll TABLE OF CASES Atcheson v. A., 11 B. 485 ; 18 L. J. Ch. 230 V. Le Mann, 33 L. T. 302 . Athenaium L. A. Soc. v. Pooley, 3 De G. & J. 294 ; 28 L Ch. 119 Athill V. A.. 16 C. D. 225 ; 50 L. J. Ch. 123 Atkins V. Farr, 1 Atk. 28 ; 2 Eq. Ca. Abr. 247 . V. Hatton, 2 Anst. 386 .... Attorneys and Solicitors Act, Be, 1 C. D. 573 ; 45 L. J. CI A.-G. V. Ailesbiuy, 14 Q. B. D. 901 ; 54 L. J. Q. B. 324 ; i (lb.) 257 V. Ailesbury, 12 App. Cas. 672 ; 57 L. J. Q. B. 83 V. Akers, W. N. (1872), p. 45 . V. Bouwens, 4 M. & W. 171 ; 7 L. J. (N. S.) Ex. 297 .. Bowyer, 5 V. 300 ; 4 R. R. 132 *'. Brunning, 8 H. L. Cas. 243 ; 30 L. J. (N. S.) Ex. 379 V. Chambers, 4 De G. & J. 58 . V. Clements, 12 Eq. 32 ; 40 L. J. (N. S.) Ch. 678 V. Dodd, (1894) 2 Q. B. 150 ; 63 L. J. Q. B. 319 V. Fletcher, 5 L. J. (N. S.) Ch. 75 . . . V. Fullerton, 2 V. & B. 264 ; 13 R. R. 76 . r. George, 8 Si. 138 ; 5 L. J. (N. S.) Ch. 330 . . V. Grote, 2 Russ. & M. 690 ; 3 Mer. 316 ; 17 R. R. 91 . V. Hamilton, 1 Madd. 214 ; 16 R. R. 208 . V. Harley, 4 Madd. 263 ; 20 R. R. 296 5 Madd. 321 ; 21 R. R. 299 PAGE . 651 . 683 J. (N. S.) . 132 26, 27 . 572 . 175 47 . . 150 •eversed 55 . 213 349, 351, 365, 368, 369 . 509 . 136 . 179 , 350 . 179 . 509 349, 351 . 427 176,179 . 871 V. Holford, 1 Price, 426 ; 16 R. R. 737 V. Hubbuck, 13 Q. B. D. 275 ; 53 L. J. Q. B. 146 V. Jones, 3 Price, 368 V. Lepine, 2 Sw. 181 ; 19 R. R. 55 . . . V. Lomas, 9 Ex. 29 V. Lucas, 2 Ph. 753 ; LS L. J. (N. S.) Ch. 100 . V. Manchester, &c. Ry., 1 Ry. Cas. 430 V. Mangles, 5 M. eSc W. 120^. . V. Mountmorris, 1 Dick. 379 V. Mullay, 4 Russ. 329 ; 7 B. 351 V. Parkin, Amb. 566 . v. Paruther, 3 Bro. Ch. 441 V. Poulden, 3 Ha. 555 V. Read, 12 Eq. 38 . . . V. Robins, 2 P. W. 25 V. Severne, 1 Coll. Ch. R. 313 ; 12 L. V. Simcox, 1 Ex. R. 749 ; 18 L. J. (N - V. Stephens, 6 De G. M. & G. 133 ; 25 -, 1 Kay & J. 724 ; 24 L. J Sturge, 19 B. 597 ; 23 L. J. (N. S.) Tomline, 7 C. D. 389 ; 47 L. J. Ch J. (N. S.) Ch. 298 S.) Ex. 61 L. J. (N. S.) 888. (N. S.) Ch. 694 Ch. 495 473 Tyndall, Amb. 614. , Wax Chandlers Co., L. R. 6 H 425 r. Weymouth, Amb. 20 V. Wilkinson, 2 Eq. 816 . V. AVinclielsea, 3 Bro. Ch. 373 . Attwater v. A., 18 B. 330 ; 23 L. J. (N. S.) Attwood r. , 1 Rnss. 353 Atwell V. A., 13 Eq. 23 ; 41 L. J. (N. S.) Ch. 23 Auditor Curie's Case, 11 Co. 2 b . Austen v. Halsey, 2 S. & S. 123 n. . v. , 13 V. 125 Au.stin V. A., 4 C. D. 233 ; 46 L. J. Ch. 42 Avelyn v. Ward, 1 V. 420 . 34/ 14 ; 42 L. J. (N. S Ch. 692 836 205 872 340 349 351 396 775 350, 351, 382 509 754 349 55 509 21, 782, 783, 785 . 694 . 803 . 509 841, 843 . 509 . 349 176,177,178 . 178 . 776 . 239 41, 46, 54 )Ch. . 179 379 682 54 794 230 344, 346, 348 474, 477, 687 . 506 . 569 . 662 785, 812, 823 340. TO VOLUME I. XIX 678, Avemll V. Wade, L. & G. t, Sugden, 252 . Awdley v. A., 2 Ver. 192 . Axford V. Reid, 22 Q. B. D. 553 ; 58 L. J. Q. B 230 ' Ayles V. Cox, 16 B. 23 ; 11 L. J. (N. S.) Ch. 408 Aylesford v. G. W. Ry., (1892) 2 Q. B. 626 V. Morris, 8 Ch. 491 ; 42 L. J. (N. S.) Ch. 546 .' 3;i8, A 1 1 T- ^ „ 312, 313, 318, 319, 32a Aylvvard r. Kearney, 2 Ball & B. 463 . . » > , Ayns worth v. Pratchett, 13 V. 321 . Ayres, Re, 8 P. D. 168 ; 52 L. J. P. D. & A. 98 ' PAGE 40, 58 . 366 697, 699 . 343 . 679 309, 310, 322, 323 . 272 . 854 . 72.1 B. Backhouse v. Paddon, 14 W. R. 273 . Backvvell v. Child, Aiiib. 260 . . . . Bacon v. Cosby, 4 De G. & Sm. 261 ; 20 L." J. (N. S )"ch 977 Badcock, Be, 4 My. & C. 440 ; 8 L. J. (N. S.) Ch. 283 Baden v. Pembroke, 2 Vern. 58 Badische, &c. v. Henry Johnson & Co., (1896) 1 Ch. 25 : 65 L J 174 . . Badrick v. Stevens, 3 Bro. Ch. 431 Baerlein v. Chartered Mercantile Bank, (1895)2 Ch. 488- 65 L T Ch. 54 , . . Baggett V. Meux, 1 Ph. 627 ; 1 Coll. Ch. r'. 138 228 Bagshaw v. Winter, 5 De G. & Sm. 468 Bagster v. Fackerell, 26 B. 469 . Bague V. Dumergae, 10 Ha. 462 . Bahia, &c. R. Co., Be, L. R. 3 Q. B. 584 Bahin v. Hughes, 31 C. D. 390 ; 57 L. J. „„. ... Bailey, Be, 12 C. D. 268, 274 ; 48 L. J. Ch. 628 . V. Bishop, 9 V. jun. 6 V. Hammond, 7 V. 590 . 202 . 825 . 433 366, 367 334, 339 Ch. . 779 794, 821 743 13L. J. (N. S)Cli. 683, 710, 713, 714, 719 643 37 L. J. Q. B. r Ch. 472 . 14 . 806 . 846 . 751 . 870, 874 . 167 1, 284, 285, 286 . 753 . 677 . 746 803, 804, 847 . 638 . 312 . 241 597 ; 25 L. J. (X. S.) Ch. 7 . 243, 244, 17 . ^„ . 270,271,284,713 Farmer, 3 Ch. A p. 537 ; 4 Eq. 382 ; 36 L. J. Cli. 819 . 839 840 Hall, 12 V. 497 : 8 R. R. 366 . . . ;-,(> Baillie v. B., 5 Eq. 175 ; 37 L. J. Ch. 225 . i'. Butterfield, 1 Cox, 392 V. Treherne, 17 C. D. 388 ; 50 L. J. Ch. 295 Bainbrigge v. Brown, 18 C. D. 188 ; 50 L. J. Cli. 522 . Baird i\ Prescott, 6 Times Rep. 231 . Baker, Be, 13 Eq. 168 ; 41 L. J, (N. S.) Ch. 162 , Be, 44 C. D. 262 ; 50 L. J. Ch. 661 . V. B., 6 H. L. Cas. 616 ; 27 L. J. (N. S.) Ch. 417 V- Bayldon, 8 Ha. 210 V. Bent, 1 Russ. & M. 224. '. '. V. Blaker, 55 L. T. 723 . V- Bradley, 7 De G. M. & G. 382, 383 . 847 451, 464 . 725 V. Ker, 1 1 L. R. Ir. 3 V- Loader, 16 Eq. 49 ; 42 L. J. (N. S.) Ch. 113 V. Monk, 33 B. 419 ; 4 De G. J. & S. 388 . V. Newton, 2 B. 112 ; 8 L. J. (N. S.) Ch. 306 . V. Taylor, 1 C. & P. 101 v. White, 2 Vern. 215 ; 1 R. R. 453 ; 2 T. R Baldwin v. Belcher, 3 Dr. & War. 176 .. . V. B., 5 De G. & Sm. 319 . Balfour v. Carpenter, 1 Phill. E. R. 221 . Balkis Consolidated Co. v. Tomkinson, 63 L. J. U B. 134 C. 396 . Ball r. B., 2 Si. 35 ] \ 159 . 682 . 286 . 283, 314 . 666 . 501 . 572 58, 63 . 638 . 500 (1893) A. 451, 465 . 5Ks h '2 XX TABLE OF CASES PAGE Ball f. Coutts, 1 V. & B. 292 503, 504, 505, 651 1'. Kemp-Welsh, 14 C. D. 512 217 . Montgomery, 2 V. 194 ; 2 R. R. 197 .... 617, 651 Bamrield v. Wyndham, Pr. Ch. 101 3, IG Bamford v. B., 5 Ha. 205 222 Bank of England v. Vagiiano, (1891) A. C. I(i6 ; 60 L. J. Q. B. 145 . 465 Banks v. B., 17 B. 352 426 V. Braithwaite, 32 L. J. (N. S.) Ch. 198 ; 11 W. R. 298 V. Sutton, 2 P. W. 700 Banner, Exp., 17 C. D. 489 ; 51 L. J. Cli. 300 . Baniierman's Estate, Re, 21 C. D. 105 ; 51 L. J. Ch. 449 . Barber, Re, 11 C. D. 442 V. B., 3 My. & C. 688 ; 7 L. J. (N. S.) Ch. 70 . V. Richards, 20 L. J. Ex. 135 Barclay v. Wainwright, 3 V. 465 ; 9 R. R. 245 . Barden v. Meagher, 1 Jr. R. Eq. 250 Barham v. Clarendon, 10 Ha. 126 ; 22 L. J. (X. S.) Ch. 108 Baring v. Ashburton, 54 L. T. 463 V. Nash, 1 V. & B. 551 Barker, Re, 17 C D. 244 ; 50 L. J. Ch. 324 , Re, (1892) 2 Ch. 491 ; 62 L. J. Ch. 76 V. Goodair, 11 V. jun. 78 ; 8 R. R. 89 V. Lea, 6 Madd. 330 V. Purvis, 56 L. T. 131 . 122 ; 26 R. R. 18 . 800, 801, 861 335, 620 . 231 . 861 159, 649 . 855 . 136 869. 871, 872 . 800 . 24 . 436 . 198, 200 212, 213, 36.5, 369, 370 . 863 . 742 . 639 . 239 . 821 . 312 . 860 V. Rayner, 5 Madd. 208 ; 2 Euss V. Vansommer, 1 Bro. Ch. 149 Barksdale v. Gilliat, 1 Swans. 562 ; 18 R. R. 139 Barlow v. Grant, 1 Vern. 255 . 815 Barnard v. Ford, 4 Ch. 247 ; 38 L. J. Ch. 671 650 Barnardo v. Ford, (1892) A. C. 328 ; 61 L. .J. Q. B. 728. . . 525, 527 V. McHugh, (1891) A. C. 398 ; 61 L. J. Q. B. 721. ..495, 499, 527 Barnes v. Racster, 1 Y. & C. C. C. 401 ; 11 L. J. (N. S.) Ch. 228.. .40, 57,60 V. Robinson, 11 W. R. 276 ; 32 L. J. (N. S.) Ch. 143 ; 9 Jur. (N. S.) 245 633 V. Rowley. 3 V. 305 Barnett v. ShetReld, 1 De G. M. & G. 371 Barnewall c. Cawdor, 3 Madd. 453 Barnwell r. Iremonger, 1 Dr. & Sm. 255 21 L. J. (X. S. L. J. (N. S 30 ■26 L. J. ( Barny v. Beak, 2 Ch. Cas. 136 . Baron w. Hu,sband, 4 B. & Ad. 611 Barrack v. McCulloch, 3 Kay & J. 110, 119 105 Barrett, Re, Barrett r. B., W. N. (84) 224 . Barrington, Re, 33 C. D. 523 ; 56 L. J. Ch. 175 . '- V. Tristram, 6 V. 345 ; 5 R. R. 322 . Barrow v. B., 4 K. & J. 409 ; 27 L. J. (N. S.) Ch. 678 r. — , 18 B. 529 ; 24 L. J. (N. S.) Ch. 267 . r. Manning, AV. N. (1878) 122 r. AVudkin, 24 B. 1 ; 27 L. J. (N. S.) Ch. 129 Barry v. Harding, 1 Jo. cfe Lat. 475 . . . . Bartholomew v. May, 1 Atk. 487 . . . . Bartlett, E.c p., 2 Coll. 661 ; 15 L. J. (N. 8.) Ch. 418 V. Gillard, 3 Ruas. 149 Barton's Trust, Re, 5 Eq. 238 ; 37 L. J. Cli. 194 Will, Re, 10 Ha. 12 Barton v. B., 2 Vern. 308 . V. Cooke, 5 V. jun. 461 . r. L. & j\. W. R. Co., 24 Q. B. D. 11 Basan v. Brandon, 8 Si. 171 Raseley v. B., 4 CI. & Fin. 378 . . 305, 806 Ch. 692 . 134 . 33 ) Ch. 13... 26, 51 293, 310, 312 . 130 X. S.) Ch. 661, 695, 706 . 844 . 87 . 848 441, 443 036, 640 . 650 . 340 . 830 . 24 . 498 . 871 . 833 157, 167 550, 555, 560, 561, 562 . 791, 815 L. .7. Ch. 676 . . 465 791, 824, 825 . 503, 505, 507 TO VOLUME I. xxi Bassett v. Knollv.s, 1 A'. 494 '?qn Basuett v. Moxon, 20 Eq. 182 ; 44 L. J. (N. S.)"Ch. 557 '. ' ' ni Batchelor A'. 16 Eq. 481 ; 43 L. J. (X. S.) Cli. 101 . . ' 158 168 Bate, Ee, 43 C. D. 600 ; 59 L. J. Ch. 277 . -^9 4(. ?S V. Hooper, 5 De G. M. & G. 338 . ' ' ' ' -g Zs c,,', Bateman v. Roden, 1 Jo. & Lat. 365 ; 7 Ir. Eq. R. 240 ' ' is' 2l' h V. Countess of Bos.-, 1 Dow. 245 ; 14 E. R. 55 .' 588, 590, 595~ Bates V. Mackinlev, 31 B. 280 ; 31 L. J (X S ) Ch 389 ^^^'' ''^'' ^'^^' t\l Batey, Re, 14 C. D. 579 . . . ' ^'^ ' ' f^t Bath V. Bradford, 2 V. 590 . npi Bathe V. The Bank of England, 4 Kay & J. 564 ! 27 L J (X S ) Cl/ ' ' 630 V •/ • Bathurst v. Murray, 8 Y. 74 ; R. R. 230 . ". ' 503 504 505 50k Batten v. Earnlev, 2 P. W. 163 . . ' ' ' c^l Battersea Park Acts, Be, Arnold, i??, 32 B 59^ ' ' ' Q49 Batteste v. Maunsell, lo Ir. R. Eq. 97 ' ' 34- oca Batthyany v. Walford, 33 C. D. 624 ; 36 C. D. 269 ; 56 L. J. Ch." 881 .'' ' ' Batty V. Lloyd, 1 Vern. 141 . 90?' llh If? Baud V. Fardell, 7 De G. M. & G. 633 ; 25 L. J Vx 8 ) Cli -^1 '7 Baugh V. Price, 1 Wils. 320 . . ^ ^^ ' ' o^.; Bawden, Be, (1894) 1 Ch. 693 ; 63 L. j. Ch. 412 . 32, 50 5] "5-^ 66 797 Bawtree v. Watson, 3 Mv. & K. 339 . W)"-^ii' -i'A Bayley v. Bishop, 9 Y. 6 ; 7 R. R. ] 32 ' ' ' ' ' fnt Baylie v. Quin, 2 Dr. & War. 116 ' ' ' 07^ Bayliss's T., Be, 17 Si. 178 . . . ' ' " • ?Si B&yly, Ex p., 15 C. T). 223 . . . '. -4;* 1: Tyrrell, 2 Ball .\: B. 362 ; 12 R. R. 99 .' ' ' li", [u^ Baynon v. Batley, 8 Bing. 256 ; 1 L. J. (X. S.) C. P. 75 ' ' 60<> Bazeley v. Forder, L. R. 3 Q. B. 565 ; 37 L. J. Q. B 237 ' ' 534 Beadles v. Burch, 10 Si. 332 ; 9 L. J. (N. S.) Ch 34s ' ' ori\ Beahan v. B., 3 Ir. R. Eq. 427 . ... -01 Beak V. B., 13 Eq. 489 ; 41 L. J. (X. S.) Ch. 470 .' ' " ' 408 Beales v. Spencer, 2 Y. & C. C. C. 651 ; 13 L. J. (X. S.) Ch (i7 ' 665 Bean ^.•. Griffith, iJur. (X. S.) 1045 . , ^ ) ^^- ' ■ • bb^ Beane v. Cox, 6 B. 84 Beanland v. Bradley, 2 Sni. & G. 339 '. '. 281 Beard v. Travers, 1 Y. 313 . . . . ' ' '50] Beasley v. Roney, (J891) 1 Q. B. 609 ;" 60 L. J. Q. B. 408 ' ' '675 Beattie v. Johnson, 1 Ph. 31 ; 10 L. J. (X. S.) Ch. 300 520 591 Beaucliamp v. Marquis Huntley, Jac 546 ; 23 R. R. 143 . 749' 7~,i '^'- Winn, 6 L. R. H. L. 223 .. . " ' 231 Beaufort t'. Berty, 1 P. W, 702 ... ' 49-, j'.q Beaufoy, Be, 1 Sm. & G. 20 ; 22 L. J. (X. S.) Ch. 430 '87 Beaumont's T., Be, 32 B. 191 343 Beaumont v. Carter, 32 B. 586 .....' (J44 V. Oliyeira, 4 Ch. 309 ; 38 L. J. Ch. 62 . ' ' ' r,g _ V. Squire, 17 Q. B. 933 ; 21 L. J. (X. S.) Q. B. 123 . 55(i, 571 Beavan t'. B., 24 C. D. 649 (n.) 8S 89 V. Oxford, 6 De G. M. & G. 492 ; 25 L. J. (N. S.) Ch. 299 " ']1.5 Becher, Za- jj., 1 Bro. Ch. 556 . . ' -„n) Beck V. Pierce, 23 Q. B. D. 320 ; 58 L. J. Q. B. 516 . 696, 700, 701 70-' Beckett v. Sutton, 30 W. R. 490 ; 19 C. D. 646 ; 51 L. J. Ch 43^ 205 212 -— -- .;. Tasker 19 Q. B. I). 7 679, 692,' 718 Becktord v. Kemble, 1 S. & S. 7 ; 24 R. R. 143 . . . 750 751 77(> '^'- Tobin, 1 Y. 310 ... . 85l' 85-'> Beckley i\ Xewland, 2 P. W. 182 105 299* 317 Bective r. Hodgson, 10 H. L. Cas. 656 ; 33 L. J. (X. S.) Ch. 601 ' ' ' 378 Bedell (•. Constable, Yaugh. 182 486, 5]0, 5J2 Bedford v. B., 35 B. 584 ... . ] •/ 3^Q XXll TABLE OF CASES PAGE Beelv V. B., 1 Hag. Con. 142 (n.) 587 Beestou f. Booth, 4 Madd. 161 ; 20 R. R. 287 .... 841,843 Belcher i: Williams, 45 C. D. 513 216, 217 Bekling v. Read, 3 H. & C. 955 ; .34 L. J. (N. S.) Ex. 212 . . . 113 Bell, AV, Jeffrey v. Sayles, (1896) 1 Ch. 1 ; 65 L. J. Ch. 188 . . 850 r. B., 6 Ir. R. Ec|. 239 803, 804, 841 c. Stockes, 10 Q. B. D. 1.30 ; 52 L. J. Q. B. 49 . . . 696, 698 l: The L. & N. W. R. Co., 15 B. 548 112 Btfllairs i-. B., 18 Eq. 510 ; 43 L. J. (N. S.) Ch. 669 . 553, 554, 556, 558, 559, 560, 561, 565 Bellamy, Re, 25 C. D. 620 ; 53 L. J. Ch. 174 . . . . 703, 704 V. Sabine, 2 Ph. 425 ; 17 L. J. (N. S.)Ch. 105.. .233, 243, 244,270, 314 Bellasis v. Ermine, 1 Ch. Cas. 22 538, 548, 551 Belmore r. B., 12 Ir. Eq. Rep. 493 745 Belton V. Hodges, 9 Bing. 365 ; 2 L. J. (N. S.) C. P. 19 . . . 471 Belvidere v. Rochfort, 5 Bro. P. C. 299 .24 Benand, Be, 16 W. R. 538 499 Bendyshe, Be, 3 Jur. (X. S.) 727 632, 645 Beningfield r. Baxter, 12 Ap. Cas. 167 ; 56 L. J. P. C. 13 . . 862 Benu 'c. Dixon, 10 Si. 636 ; 9 L. J. (N. S.) Ch. 259 . . . .78 Bennett, Br, 99 L. T. Jo. 112 168 i-. Biddies, 10 Jar. 534 649 v. Cooper, 9 B. 252 ; 15 L. J. (N. S.) Ch. 315 .. . 105 V. Houldsworth, 6 C. D. 671 ; 46 L. J. Ch. 646 . . 421, 424 r. Lvtton, 2 J. & H. 155 746 i: Merriman, 6 B. 360 236 Benson i: Mande, 6 Madd. 15 849 Bent V. Cnllen, 6 Ch. 235 ; 40 L. J. (N. S.) Ch. 250 . 800, 801 V. Young, 9 Si. 180 ; 7 L. J. (N. S.) Ch. 151 . . . 770 Bentinck r. London J. S. Bank, 9 T. L. R. 262 ; (1893) 2 Ch. 144.. 136. 466 Bentley, Be, 33 W. R. 610 ; 54 L. J. Ch. 782 685 ■'- V. Mackav, 31 B. 143 ; 31 L. J. (N. S.) Ch. 697 . . .236 Benwell Tower, The, 72 L. T. 670 324 Benyon v. B., 1 P. & D. 447 ; 45 L. J. P. D. & A. 93 . . . 605 V. — , 17 V. jun. 34 ; 11 R. R. 12 871, 872 i;. Fitch, .35 B. 570 311, .323,324 Berdoe v. Dawsnn, 34 B. 608 284 Beresford c. Armagh, 13 Si. 643 ; 13 L. J. (N. S.) Ch. 235 . . 693 Bergmann v. Macmillan, 17 C. D. 423 105 Berkeley r. King's College, 10 B. 499 144 Bernal v. Donecal, 3 Dow. 183 318 436 293, 298, 304, 310 . . . 460 238 Bernard, Exp., 6 Ir. Ch. R. 133 . Bernv v. Pitt. 2 Vern. 14 . Berrisford v. Mil ward, 2 Atk. 49 Berrv v. Mnllen, 5 Ir. 'Eq. 368 . Bertie r. Lord Falkland, 3 Ch. Ca. 129 548, 556 Besant, Be, 11 C. D. 519 ; 12 C. D. 622 ; 48 L. J. Ch. 497.. .240, 496, 517, 531, 597, 603, 604, 605, 741 Bessant v. Xohle, 26 L. J. Ch. 236 . . . . . . 18 Bestall 1-. Bunbury, 13 Ir. Rep. 318 684 Bethune r. Kennedy, 1 Mv. & C. 114 80, 84, 788 Bettves i: Mavnartf, 31 W. R. 461 317 Bevan v. Att.-Gen., 4 Gif. 361 789, 791 Beverley's Case, 4 Rep. 126 489 Beynon v. Cook, 10 Ch. 391 .. . 308, 310, 311, 324, 325, 326 Bibbv y. Conlter,Ridg. Cas. t. H. 206 (n.) . . . . 405,407,411 Bickham v. Crnttwell, 3 My. & C. 763 ; 7 L. J. (N. S.) Ch. 198 . 8, 22 Biddle v. Bond, 6 B. & S. 225 ; .34 L. J. (N. S.) Q. B. 137 . . 468 Biddies v. Jackson, 26 B. 282 ; 28 L. J. (N. S.) Ch. 40, 290...5G7, 508, 645 Biddulph V. B., 12 V. 161 335 Bi.lweH's Sett., Be, 11 W. R. 161 ; 32 L. J. (N. S.) Ch. 71 . . 426 TO VOLUME I. xxm Biggar v. Eastwood, 19 L. R. Ir. 49 . Biggs V. Andrews, 5 Si. 424 V. Evans, (1894) 1 Q. B. 88 .' ,' ! V. Peacock, 22 C. D. 284 ; 52 L. J. Cli. 1 . Bigland c. Huddleston, 3 Bro. Ch. 285 (n.) Bignold, Ee, 45 C. D. 496 ; 59 L. J. Ch. 736 . V. GUes, 4 Drew- 343 ; 28 L. J. (X. S.^ Cli Bill V. Kynaston, 2 Atk. 82 . . . '. V. The Sierra Nevada, &c., Co., 1 De G. F. & .J (N. S.) Ch. 176 . . . . Bindley V. Muleonev, 7 Eq. 343. Bingham i'. B., 1 V^ 126 Binns r. Nichols, 2 Eq. 256 ; 35 L. J. Ch. 635 Birch, Be, 17 B. 358 c. Baker, Mos. 373 . . V. B., 8 P. D. 163 ; 52 L. .J. P. D. & A. 88 c. Sherratt, 2 Cli. 644 ; 36 L. .J. Ch. 925 . Birchall, Re, 16 C. D. 41 . Bird, Re, (1892) 1 Ch. 279 ; 61 L. .J. Ch. 288 '. V. Hunsdon, 2 Swans. 342 ; 19 R. R. 82 . V. Peagram, 13 C. B, 639 ; 22 L. J. (N. S.) C. Birds V. Askey, 24 B. 618 Birkett v. Hibbert, 3 M. & K. 227 ; 3 L. J. (N. S.) Birmingham r. Kirwan, 2 Sch. & L. 444 . Birney r. Tison, 2 Vent. 359 Bishop r. Wall, 3 C. D. 194 ; 45 L. J. Ch. 773 . Bishop of Peterboro v. Mortlock, 1 Bro. Ch. 565 Bizzey v. Flight, 3 C. D. 269 ; 45 L. J. Ch. 852 Blachford, Re, Blachford v. Worsley, 27 C. D. 676 215 ... . 358 . 177 ; 29 L. J. J'AGE 55 , 339 . 469 193, 347, 348, 359 . 433 . 852 . 801 . 860 608, 565, . 821, . 802, 803, . . 2:39, 345, 349, 359, 166. . '. Ch. 158 . 503, . 421, 54 L. J. Ch. Blackborn r. Edgelev, 1 P. "W. 600 BLacket v. Lamb, u'B. 482 ; 21 L. J. (N. S.) Ch. 46 Blackie v. Chirk, 15 B. 595 ; 22 L. J. (N. S.) 377 Blacklow V. Laws, 2 Ha. 49 Blagden, Ex p., 2 Rose, 249 Blagrave c. Coore, 27 B. 138 .... Blaiklock v. Grindle, 7 Eq. 215 ; 38 L. J. Ch. 24^ Blake, Re, 60 L. T. 664 €. B., Amb. 306 '•• — , 15 C. D. 487 ; 49 L. J. Ch. 393 . r. Bunbury, 4 Bro. Ch. 21 ; 1 V. jun. 523 ; 1 R. R. Blakely Ordnance Co., Re, 3 Ch. 154 ; 37 L. .J. Ch. 418 . Blanchet i\ Foster, 2 V. 264 .... Bland v. Dawes, 17 C. D. 794 ; 50 L. J. Ch. 252 Blandford v. B., (1892) P. 148 ; 51 L. J. P. D. & A. 97 . Blann v. Bell, 5 De G. & Sm. 658 ; 2 De G. ^f. & G. 775 ; 21 (N. S.)Ch. 311 .7 Blatchford v. Woolle)', 2 Dr. & Sm. 204 . Blewitt V. Rolieits, Cr. & Ph. 274 ; 4 L. J. Dig. 335 Bligh V. DarnU'V, 2 P. W. 619 . Blight V. HartnLll, 19 C. D. 294 ; 51 L. J. Ch. 162 Blonmart v. Player, 2 S. & S. 507 .. . Blooman, Re, 6 \V. R. 178 ; 27 L. .1. (X. S.) Ch. 173 Blount V. Bestland, 5 V. 515 V. Burrow, 1 V. jun. 546 .... V. Hipkins, 7 Si. 43 754 612 232 61 571 822 142 804 240 365 .562 704 52 5(»7 431 293 682 792 434 858 Blower v. Morret. 2 V. 420 .... Blundell v. Barker, 1 P. W. 639 . Blunt V. Lack, 26 L. .J. Ch. 148 . Boards, Re, (1895) 1 Ch. 499 ; 64 L. J. Ch. 305 . 271 . 426, 439 281, 285, 507 . 665 . 158, 653 . 820 . 434 694, 695, 774 . 497 827, 828 111. ..421, 422, 425, 427, 428 . 135, 136 . 620 . 661, 663 495 L.J. 78, 80, 84, 85 . 686 . 799 . 49 . 799, 800 . 429 200 . 157 404, 405, 410 . 830 . 841, 843 . 270 . 443 14 XXIV TABLE OF CASE;S Boazman v. Johnston, 3 Si. 377 Boddington, Re, 22 C. D. 597 ; 25 C. D. 685 ; 53 L. J. Ch. 475 Boddy V. Dawes, 1 Keen. 362 Bodicoate v. Steer, 1 Dick. 69 Bolitho r. Hillyar, 34 B. 180 Bolland, Ex p.l 17 Eq. 117 ; 43 L. J. (N. S.) Bank. 16 Bolton, Re, W. N. (88) 243 V. B., 7 Eq. 298, n V. B., (1891) 3 Ch. 270 ; 60 L. J. Ch. 689 Ward, 4 Ha. 5.30 ; 14 L. J. (N. S.) Ch. 361 . Bond V. Sunniono, 3 Atk. 2U Bontield v. Hassell, 32 B. 217 ; Bonham's Case, 8 Co. 118 . Bonner v. B., 17 B. 86 . V. -., 13 V. 379 V. Lvon, 38 W. R. 541 Booker, Re, "W. N. (1886) 18 Booth, Re, (1894) 2 Ch. 282 ; 63 L. J. 32 L. J. (N. S.) Ch. 475 Ch. (N. S.) Ch S.) Ch. 378 560 . 'v. Alington, 6 De G. M. & G. 613 ; 26 L. J V. Coulton, 7 Jur. (N. S.) 207 ; 30 L. J. (X V. , 5 Ch. 684 ; 39 L. J. Ch. 622 . r. Levcester, 3 Mr. & C. 459 ; 5 L. J. (N. S.) Ch. 278 V. Mever, 38 L. f . (X. S.) 125 Booth's Set.'T., Re, 1 W. R. 444 . Buothbv V. B., 1 Mac. & G. 604 . 1 V. -., 1 H. & Tw. 214 . Bootle r. BlundeU, 1 Mer. 227 ; 15 R. R. 93... 8, 13, 15, 16, 1 Borv. B., 3 Bro. P. C. 167 Borton v. B., 16 Si. 552 ; 18 L. J. (X. S.) Ch. 219 . Bosanqiiet v. Dashwood, Cas. t. Talbot, 40 . Bosvil V. Brander, 1 P. W. 459 Boteler v. Spelman, Rep. t. Finch. 96 . Bothamley r. Sherson, 20 Eq. 304 ; 44 L. J. (X. S.) Ch. Bouch V. Sproule, 12 App. Cas. 385 ; 56 L. J. Ch. 1037 Boughton r. B., 1 H. L. Cas. 406 ... V. -., 2 Y. 12 Boulcott V. B., 2 Drew. 25 ; 23 L. J. (X. S.) Ch. 5< Boulton, Ex I)., 1 De G. & J. 175 ; 26 L. J. (X. S.) Bank. 45 138 589 Bourdillon v. Adair, 3 Bro. Ch. 237 Bourgoise, Re. 41 C. D. 310 Bourke v. Ricketts, 10 V. 330 . Bourne v. B., 2 Ha. 35 ; 11 L. J. (X. S.) Ch. 416 Bourston v. Williams, 5 Ch. 655 ; 39 L. J. Ch. 800 Boutts V. Ellis, 4 Dels. M. & G. 249 ; 17 B. 121 ; 22 L. J. 716 Bouverie v. Prentice, 1 Bro. Ch. 200 . Bowaman v. Reeve, Pr. Ch. 557 . Bowden, Re, 45 C. D. 448 ; 59 L. J. Ch. 805 t-. B., 17 Si. 65 .... Bowen, Re, (1892) 2 Ch. 291 ; 61 L. J. Ch. 432 Bowes V. Heaps, 3 V. & B. 117 ; 13 R. R. 162 V. Shrewsbury, 5 Bro. P. C. 144 Bowles V. Rump, 9 W. R. 370 . Bowman v. Yeat, 1 Ch. Ca. 146 . Bown, Re, 27 C. D. 411 ; 53 L. J. Ch. 881 . Bowra v. Rhodes, 31 L. J. Ch. 676 . 'V. Wright, 4 De G. & Sm. 265 ; 20 L. J. (N. S.) Ch. Bowyer v. Woodman, 3 Eq. 313 . Box, Re, 1 Hem. & M. 552 ; 33 L. J. (X. S.) Ch. 42 V. Barrett, 3 Eq. 244 PAGE . 47 . 555 . 855 199, 204 . 245 . 113 . 200 . 198 506, 507 . 198 . 160 . 633 . 736 . 650 49, 876 . 692 . 425 . 799 , 839 80, 83 . 805 . 751 . 565 . 121 . 312 317, 323 19, 22, 23 , 430, 443 . 163 . 293 . 631 . 174 80, 788, 791, 792, 809, 829 89, 834 . 13, 14, 21 . 435, 443 . 875 . 122 . 645 . 530, 531 . 858 . 348, 352 . 161 (X. S.) Ch. 410 179 50 . 863 80, 81, 84, 85 675, 681, 682 . 323 . 339 . 198, 201 . 171 664, 710, 711 . 382 205 . 358 . 831 423, 425, 426 178, 216 TO VOLUME 1. XXV Box V. B., 2 Con. & Law, 605 .... V. Jackson, 1 Druiy, 55 ... . V. , Dru. Cas. t. Sugd. 42 . Boxall V. B., 27 C. D. 220 ; 53 L. J. Ch. 838 Boyce v. Corbally, LI. & G. 102 . Boyd, Ex 2)., 21 Q. B. D. 264 ; 57 L. J. Q. B. 553 V. Allen, 24 C. D. 622 ; 53 L. J. Ch. 701 . V. Belton, 1 Jo. & Lat. 730 V. Buckle, 10 Si. 5.95 Boyes v. Carritt. 26 C. D. 531 ; 53 L. J. Ch. 654 Bovnton v. B., 1 Bro. Ch. 445 r. -., 2 Sw. & Tr. 275 ; 30 L. J. (N. S.) P. M. & A c. Parkhurst, 1 Bro. Ch. 576 . Boys V. B., 28 B. 436 V. Williams, 2 Riiss. & M. 689 . Boyse, Ee, 15 C. D. 591 ; 49 L. J. Ch. 689 . V. Rossborough, 6 H. L. Cas. 2 156 Bradford V. Foley, 3 Bro. Ch. 351 (n.) Banking Co. v. Briggs, 12 App. C. 29 ; 56 L. J. Ch. 364 Bradlaugh r. Xewdegate, 11 Q. B. D. 5 ; 52 L. Bradley r. B., 51 L. J. P. & M. 87 Brady v. Curran, 2 Ir. Rep. C. L. 314 Brandon v. Woodthorpe, 10 B. 463 Branstroin v. Wilkinson, 7 V. 421 ; 6 R. E. 146 . Braunstein v. Lewis, (1892) 65 L. T. 449 . Braybrooke v. Meredith, 13 Si. 271 ; 12 L. J. (N. S.) Ch. 289 Breadalbane, The I\Iarquis of, v. The Marquis of Chandos, 2 My 711 ; 7 L. J. (N. S.) Ch. 28 ' Brearcliffe i: Dorrington, 4 De G. & Sni. 122 ; 6 L. J. Diij. 14 Breed's Will, L'e, 1 C. D. 226 ; 45 L. J. Ch. 191 . . " . Brennan v. Moran, 6 Ir. Ch. R. 126 Breslauer r. Barwick, 24 W. R. 901 Breton v. Mockett, 9 C. D. 95 ; 47 L. J. Ch. 754 . Breton's Estate, Be, 17 C. D. 416 ; 50 L. J. Ch. 369 . Brett, Ee, 29 L. J. (N. S.) Ch. 297 V. Greenwell, 3 Y. & C. Ex. Ca. 230 .... Brettle, Re, 2 De G. J. & S. 79 ; 33 L. J. (X. S.) Ch. 471 Briant, Be, 39 C. D. 478 ; 27 L. J. Ch. 953 162, 648 . 162 . 648 640, 643 . 567 . 673 . 198 . 460 . 847 . 288 . 439 . 609 . 53 80, 84 . 836 . 753 283, 287 . 52 109, 127, 1.34 J. Q. B. 454... 145, 146, 147 . 607 . 238 . 165 850. 856 . 692 . 113 . 749 . 115 . 854 870, 875 . 744 796 729 747 639 711 660, 168, 631, 633, 637, 64i), 641, 642 22 . 108.113,131, 133, 141, 850 . 121 13 254, 256. 265, 281, 284 63 L. J. Ch. 186... 56, 811 . 512 . 522 Brice v. Bannister, 3 Q. B. D. 569 ; 47 L. J. Q. B. 7 Bridge v. Beadon, 3 Eq. 664 ; 36 L. J. Cli. 351 . Bridgeman v. Dove, 3 Atk. 201 . V. Green, 2 V. 627 ; Wilm. 58 . Bridger, Be, (1893) 1 Ch. 44 ; (1894) 1 Ch. .302 ; Bridges i\ Hales, Moo. 108 . Bridget Hide's Case, 3 SalL 178. Bridie, Re, 4 C. P. D. 336 . . 822 Briggs, i?c, 7 T. R. 572 746 , Be, Briggs v. George, 29 W. R. 925 842 V. Chamberlain, 11 Ha. 69 ; 23 L. J. (N. S.) Ch. 635 . . 358 Bright r. Larchner, 3 De G. & J. 148 ; 28 L. J. (N. S.) Ch. 8.37... 14, .385, 802 Bright's Trust, Be, 21 B. 434 ; 25 L. J. (N. S.) Ch. 447 . . 123, 124 Brinckmau v. B., 3 Atk. 394 729 Brine v. Eerier, 7 Si. 549 S74 Briscoe v. B., 7 Ir. Eq. R. 123 ; 1 Jo. & Lat. 334 . . . .441 Bristol and Aerated Co. v. Maggs, 44 C. D. 616 ; 59 L. J. Ch. 472 . 454 Bristow V. B., 5 B. 289 829, 848, 872, 875 V. Whitmore, 9 H. L. Cas. 391 ; 31 L. J. (X. S.) Ch. 467 . 133 V. Warde, 2 V. jun. 3.36 ; 2 R. R. 235 423 XXVI TABLE OF CASES British Farmers, &c. Co., 7 C. D. 538 ; 47 L. J. (N. S.) Cli. 415 . Mutual, &c. Co. V. Smart, 10 Ch. 567 ; 44 L. J. (X. S.) 695 . South Africa Co. v. Companhia cle Mocambique, (1892) 2 Q. B. 358 ; (1893) A. C. 602 ; 63 L. J. Q. B. 70 . . . . 768 Britten v. B., 9 B , 143 PAGK 467 135 , 769 . 646 Broadbent r.' Barlow, 3 De G. F. & J. 570 ; 30 L. J. (N. S.) Ch. 569 . 62, 63, 65, 66 Broadwoofl, Ee, 1 C. D. 438 ; 45 L. J. Ch. 168 361 Brodie v. Barry, 2 V. & B. 127 ; 13 R. R. 6, 37 . Bromfield, Ex p., 1 V. jun. 455 ; 2 R. R. 126 . Bromhall v. Wilbraliam (at the Rolls, November, 1734) Bromley r. Brunton, 6 Eq. 275 ; 37 L. J. Ch. 902 i: Smith, 26 B. 644 ; 29 L. J. (N. S.) Ch. 18 V. Wright, 7 Ha. 334 . Bronsdon v. Winter, Anib. 57 Brook V. Badley, 3 Ch. 675 ; 36 L. J. Ch. 741 . V. , 4 Eq. 106 ; 3 Ch. 672 ; 36 L. J. Ch V. , 3 Ch. 672 ; 36 L. J. Ch. 741 . Brooke v. B., 25 B. 342 ; 27 L. J. (K S.) Ch. 639 V. Hi ekes, 12 W. R. 703 . v. Mostyn, 2 De G. J. & S. 373 ; 4 L. R. H. (N. S.) Ch. 65 . Warwick, 1 H. & Tw. 142 18 L. J. (X. S 45 L. J. Exch. 129 Brooks V. Hertford, 2 P. W. 518 . V. Reynolds, 1 Bro. Ch. 183 . Broome v. Monck, 10 V. 597 ; 8 R. R. 48 Broughton v. Hutt, 3 De G. & J. 501 ; 28 L. J. fX. S Brown, i>V, 13 Q. B. D. 614 V. Bamford, 11 Si. 127 ; 12 Si. 616 ; 15 L. J. (7. Bateman, 2 C. P. 272 ; 36 L.J. C. P. 134 v. Bigg, 7 V. 280 V. Brine, 1 Ex. D. 5 V. B., 33 B. 399 i: — , 2 Eq. 481 c. —, 7 Eq. 185 ; 38 L. J. Ch. 153 . c. — , 1 Keen, 275 v. Clarke, 3 V. 166 V. Collins, 25 C. D. 60 ; 53 L. J. Ch. 368 . c. Farmer, 3 Ch. 597 ; 37 L. J. Ch. 923 , — /•. Gellatly, 2 Ch. 751 ... . V. Harker, 68 L. T. 488 . V. Kennedy, 33 B. 133 ; 4 De G. J. & S. 217 r. Like, 14 V. 3U2 r. Metropolitan, &c. Soc, 28 L. J. Q. B. 236 c. Peck, 1 Eden, 140 ('. Pocock, 2 My. & K. 189 ; 4 L. J. Ch. 15 r. Wales, 15 Eq. 142 ; 42 L. J. Ch. 45 . & Co. V. Kough, 29 C. D. 848 ; 54 L. J. Ch. 1024 Browne v. Collins, 12 Eq. 586 . V. Groombridge, 4 Madd. 495 ; 20 R. R. 326 V. Savage, 4 Dr. 640 .... Brownlie v. Campbell, 5 App. Cas. 953 Brown's Case, 9 Ch. 106 ; 43 L. J. (X. S.) Ch. 153 T., Re, 5 Eq. 88 ; 37 L. J. Ch. 171 Will, Ee, 18 C. D. 61 ; 50 L. J. Ch. 724 Browns(jn v. Lawrance, 6 Eq. 1 ; 37 L. J. (X. S.) Ch Brummell r. McPherson, 7 V. 237 V. Protheroe, 3 V. Ill Brvant v. Easterson, 5 Jur. (N. S.) 166 ; 7 W. R. 298 Brydges ■;;. Phillips, 6 V. 567 ... . ■41 424, 435, 436, 677 . 366, 367 3 . 408 310, 311, 323, 324 . 386, 798 . 792, 823 54, 340, 379 . 340 . 379 . 706 . 650 ,. 304 ; 34 L. J. . 239, 240, 314 I Ch. 137 . 13,22 . 200, 205 . 744 . 342 ) Ch. 167 . . 231 . 531 Ch. 361 . 713, 714 . 105, 113 . 344, 386 . 601 . 363 431, 432, 433, 443 . 601, 606 . 840, 841, 843 . 635 499, 500, 515, 647, 651 . 105, 129 351 . 326 . 275 . 714 . . .106 . 563, 576 . 718 . 176, 177 . 108, 109, 110, 111, 112 . 833 20, 825 . 121, 122, 123 450, 453, 457, 459 . 464 . 121, 851 . 557, 568, 805 27, 28 . 503 . 16 . 796 . 13, 1.5, 18 TO VOLUME I. XXVll Buchanan i:. Angus, 4 Macq. H. L. Ca^^. 374 V. Harrison, 1 John. & H., 662 ; 30 L. J. (X. S.)'Ch. Buck V. Lee, 3 Xev. & Maw. 580 ; 3 L. J. (N. S.) K B •?06 V. Kobson, 3 Q. B. D. 686 ; 48 L. J. Q. B. ^oO Buckle, Re, (1894) 1 Ch. 286 ; 63 L. J. Ch. 330 Buckley V. B., 19 L. R. Ir. 544 ....'" Buckley's Trusts, lie, 22 C. D. 583 ; 52 L. j. Ch 439 Buckmaster v. B., 35 C. D. 22 ; 13 App. C. 61 ; 55 L. J. Ch 826 — , 1 P. & D. 713 ; 38 L. J. P. & M. ri3 Bucknal v. Roistun, Pr. Ch, 285 . Bugdeu ('. Biguold, 2 Y. & C. C. C. 377 Building Estates Co., Ee, (1895) W. N. 142 J &c. Co., Re, Parbury's Case, (1896) 1 Ch. 100 L. J. Ch. 104 PAGE . 334 4 . 379, 382, 383 . 128 . 113, 133 . 860 28, 30, 35, 52 856 505, , 649 603 99 509 Dig. )Ch. 748 297 Bulkley *■. AVilford, 2 CI. & Fin. 102 . Bull, Re, 49 L. T. 592 [ Bullcr r. Plunkett, 1 John. & H. 441 ; 30 L. J. (N. S ) Ch 641 Bullock, Re, 39 W. R. 472 ; 64 L. T. 736 ; 60 L. J. Ch. 341 c. Bennett, 7 De G. M. & G. 283 ; 7 L. J Bunbury v. B., 2 B. 173 ; IB. 336 ; 8 L. J. (N. S Bunker v. Coke, 1 Bro. P. C. 199 Bunn V. Markham, 7 Taunt. 231 ; 17 R. R. 497 '. '. Bunting v. Marriott, 19 B. 163 . . . Burges r. Lamb, 16 V. 180; 10 R. R. 150 '. Burgess v. Robinson, 3 Mer. 9 y. Wheate, 1 Eden, 177 . Burke v. Green, 2 Ball & B. 521 . f. Tuite, 10 Jr. Ch. R.467 .... Burkinshaw i: Nicholls, 3 App. Cas. 204 ; 47 L. J. Ch, Burland's Trade Mark, 41 C. D. 542 ; 58 L. J. Ch. 591 Burleton v. Humphrey, Amb. 286 Burley n. Evelyn, 16 Si. 290 . . . . Burlinson v. Hall, 12 Q. B. D. 347 ; 53 L. J. Q. B. 222 415 Burn V. Carvalho, 4 My. & C. 690; 9 L. J. (N. S.) cii. 65. ..107, 108, 109, 115 Burnaby v. Equitable, &c. Soc, 28 C. D. 416 ; 54 L. J. Ch 537 Burnell 0. B., 11 CD. 213 ; 48 L. J. Ch. 412 . Burnham r. Bennett, 2 Coll. Ch. R. 254 Burrell v, Baskerfield, 11 B. 525 ; 18 L. J.'(X. S.) Cli. 422 Burridge v. Bradyl, 1 P. W. 126 Burrowes v. Gore, 6 H. L. C. 907 Bursill V. Tanner, 13 Q. B. D. 691 ; 55 L. J. (}. B. :3 Burt c. Hellyer, 14 Eq. 160 ; 41 L. J. (N. S.) Ch. 43() Burton, £■.1-;:., 1 G. & J. 207 V. Earl of Darnley, 8 Eq. 576 n. . . . V. Hodsoll, 2 Si. 24 V. Jeux, 2 Vern. 232 . . . . . i\ Knowlton, 3 V. 107 ; 3 R. R. 62 r. Mount, 5 De G. & Sm. 383 . c. Newl)erry, 1 C. D. 241 ; 45 L. J. Ch. 202 . i: Pierpoint, 2 P. W. 79 Burton's Will, Re, (1892) 2 Ch. 38 ; Gl L. J. Ch. 702 Bury V. Oppenheim, 26 B. 594 ... Busfield, Re, 32 C. D. 123 ; 55 L. J. Ch. 467 .. , Bushby >: Munday, 5 Madd. 297 ; 21 R. R. 294 Busly v. Seymour, 1 Jo. & Lat. 527 Butcher i;. B., 14 B. 222 Bute V. Cunynghame, 2 Russ. 275 V. Glamorganshire, &c. Co., 1 Ph. 681 ; 15 L. J Butler, Re. (1894) 3 Ch. 250 ; 33 L. J. Ch. 362 . . 679 . 198 . 128 . 524 . 339 . 200 15 80,81, 84 . 434 . 54 857, 864 . 270 . 779 749, 75J 48 . 721 . 27 (X.S.)Ch. 60...175, 178 18, 22, 32, 33, 34, 50, 53 452 569, 749, 65 . 467 . 275 . 28 . 124 . 818 570 772 435 i03, 406, 408 18 . 352 . 847 335, 389 . 147 . 689 451, 467 752, 779 . 568 . 379 140 442, 443 214 159 348 841 S62 XXV] 11 TABLE OF CASES Butler V. B., 16 Q. B. D. 378 ; 14 Q. B. D. 831 ; 55 L. J. Q. B. 55 598, 690, V. Cumpston, 7 E(|. 16 ; 38 L. J. Ch. 35 V. Freeman, Amb. 301 V. Miller, 1 Ir. R. Ecj. 195 Butler's T., Re, 3 L. R. Ir. 89 , 38 C. D. 286 ; 57 L. J. Cli. 643 Butricke v. Brodhurst, 3 Bro. CHi. 90 ; 2 R. R. lOO Buttanshaw r. Martin, John. 89 . Byam v. Munton, 1 Russ. & M. 503 ; 8 L. J. Ch. 156 V. Sutton, 19 B. 556 Bvrne v. Carew, 13 Ir. Eq. R. 1 . Byrnes, Re, 7 Ir. R. C. L. 199 . 162. 156, PAGE . 597, 691, 700 . 706 503, 510 . 309 165, 168 157, 167 . 441 . 720 . 386 . 804 608, 611 . 511 C.'s Sett., Re, 56 L. J. Ch. 556 Cafe y. Bent, 5 Ha. 35 Cahill V. C, 8 App. Cas. 420 .. Cain V. Moon, 40 Sol. Jo. 500 Caldecott v. C, 1 Y. & C. C. C. 240, 245, 358, 423, 457, 471, 59 11 l] J. (X. S.) Ch. 414 312 Q- Calisher v. Forbes, 7 Ch. 109 ; 41 L. J. (N. S.) Ch. 56 Callaghan, Re, 28 C. D. 186 ; 54 L. J. (N. S.) Ch. 292 Callisher v. Bischoffsheim, 5 L. R. Q. B. 449 ; 39 L. J Callow V. C, 55 L. T. 154 V. Howie, 1 De G. &Sm. 531 ; 17 L. J. (N. S.) CIi. Calmady v. C, 2 V. Jun. 568 Calvert v. Armitawe, 1 Hem. & M. 446 Cameron, Re, 26 C. D. 19 ; 53 L. J. Ch. 1139 . Camraell, Exf., (1894) 1 Ch. 528 ; 63 L. J. Ch. 536 . Camp V. Coe, 31 C. D. 460 ; 55 L. J. (N. S.) Ch. 358 Campbell, i?e, (1893) 2 Ch. p. 214; 62 L. J. Ch. 594 . , (1893) 3 Ch. 468 ; 62 L. J. Ch. 878 . V, Bainbridge, 6 Eq. 269 ; 37 L. J. Ch. 634 V. Fleming, 1 A. & E. 40 ; 3 L. J. (N. S.) K. B. — V. French, 3 V. 323 ; 4 R. R. 5 . Graham, 1 Russ. & M. 453 ; 9 L. J. Ch. 234 Houlditch, 3 Mv. & K. 108 . Ingilby, 1 De G'^ & J. 393 ; 26 L. J. (N. S.) CI M'Conaghey, 6 Ir. R. Eq. 20 . . Mackay^ 2 Mv. & C. 34 . Netterville, 2" V. 530 ; 10 V. 243 . — r. Radnor, 1 Bro. Ch. 271 . Campion v. Cotton, 17 V. 273 ..... Cann v. C, 1 P. W. 723 Canning v. C, 2 Drew. 436 ; 23 L. J. (N. S.) Ch. 879 Cannon v. Johnson, 11 Eq. 90 ; 40 L. J. (N. S.) Ch. 4(5 Cannot v. Morgan, 1 C. D. 1 ; 45 L. J. Ch. 50 . Cant's Estate, Re, 4 De G. & J. 503 ; 1 Gif. 12 ; 28 L. B. 181 J. 641 Cape V. C, 2 Y. & C. Ex. Ca. 543 Capron v. C, 17 Eq. 288 ; 43 L. J Carbis, Ex j)-, 4 Deac. & Ch. 354 ; Carey, Re, 10 Q. B. D. 454 ; 52 L V. Askew, 2 Bro. Ch. 58 . Carleton v. Dorset, 2 Cox 33 V. Leighton, 3 Mer. 671 Carmichael v. Gee, 5 A. C. 588 Carnegie v. C, 22 W. R. 595 (K S.) Ch. 677 . 1 Mont. & Avr. 693 (n.) J. Q. B. 442 . 49 L. J. Ch. 829 36 65 5, 2 (N. S . 724 78, 83, 84 , 598, 650 409, 41 1 78, 84, 86, 87, 89 . 124 . 524 . 231 . 640 . 691 186, 193 55 . 385 . 464 . 389 28 . 858 . 721 . 455 . 644, 651 91, 828, 864 749 432 843 22, 523, 524 5o5 874 728 m, 232, 234 . 202 . 217 743, 744 )Ch. . 357 . 661 . 834 . 126 . 499 . 847 . 617 105 803 695 872, "9« 103, 802. TO VOLUME 1. XXIX Carpenter v. Heriot, 1 Eden, 338 .... Carr v. Eastabrooke, 4 V. 146 V. Ellison, 2 Bro. Ch. 56 y. Ingleby, 1 De G. & Sm. 362 . r. L. & N. W. K. a, L. R. 10 C. P. 316 ; 44 L. 109 V. Tavlor, 10 V. 574 ; 8 R R. 40 Carr's T., Ee, 12 Eq. 609 ; 40 L. J. (N. S.) Ch. 353 . Carritt, Goods of. Re, 66 L. T. 379 .... Carron Co. v. Hunter, 1 H. L. Sc. App. 362 Iron Co. V. Maclaren, 5 H. L. C. 416 ; 24 L. J. (N PAGE . 244, 270 . 650 . 355 . 805, 842 J. (X. S.) C. P. 450, 451, 465 . 158, 653 636, 640 . 873 S.) Ch. 620 750, 752, Carte v. C, 3 Atk. 174 ; Amb. 28 Carter v. BarnardLston, 1 P. W. 505 .". Ha.swell, 26 L. J. Ch. 576 V. Salt, 1 Ir. R. Ec^. 97 . V. Silber, (1891) 3 Ch. 553; (1893) A. C. 360; 61 L. J. Ch. 401 V. Ta^gart, 1 De G. M. & G. 286 ; 16 Si. 423 ; 21 L. J. (N. Ch. 216 .'' . Cartwright v. C, 2 Bro. Ch. 114 . r. — 3 De G. M. & G. 982 ; 22 L. J. (N. S.) Ch. 841 V. Pettus, 2 Ch. Ca. 214 . ;-. Pulteney, 2 Atk. 380 . Carver i: Bowles, 3 Russ. & M. 304 ; 9 L. J. Ch. 19 Casmajor v. Strode, 19 V. 390 (n.) Cass /;. Wood, 30 L. T. 670 Cassidy i\ Belfast B. Co., 22 L. R. Ir. 68 . Castle V. Fox, 11 Eq. 542 ; 40 L. J. (N. S.) Ch. 302 . Cateret v. Petty, 2 Swans. 323 Catherine Strong, Re, 26 L. J. Ch. 64 . Cato V. Irving, 5 De G. & Sm. 210; 21 L. J. (N. S.) Ch. 675 Caton V. Rideout, 1 Mac. & G. 599 ; 19 L. J. (N. S.) Ch. 408 Cator V. Ma>on, 2 W. R. 667 Catterina Chiazzure, The, 1 P. D. 368 ; 45 L. .J. P. D. & A. Cattley v. Arnold, 4 K. & J. 595 ; 28 L. J. (N. S.) Ch. 352 Catton V. Banks, (1893) 2 Ch. 224; 62 L. J. Ch. 600 Catt's Trust, Re, 2 Hem. & M. 52 ; 33 L. J. (N. S.) Ch. 495 Cavan v. Pulteney, 2 V. jun. 560 ; 3 R. R. 8 Cave-y. C, 15 B.'227 Cavendish ". Greaves, 24 B. 173 ; 27 L. J. (N. S.) Ch. 314 1'. C, 10 Ch. 319 Cawley v. Poole, 1 Hem. & M. 50 Cecil V. Juxon, 1 Atk. 278 Cercle Restaurant, &c., Co. i'. Lavery, 18 C. 1). 555 ; 5 837 Chadwin, Ex 2)., 3 Swans. 380 ; 19 R. R. 219 . Chahner v. Bradley, 1 J. & W. 59 ; 20 R. R. 216 Chalmers v. Storil, 2 V. & B. 222 Chaloner r. Butcher, 3 Atk. 685 Chamberlain i\ Hewson, 1 Salk. 115 . Chambers l: C, 15 Si. 183 ; 15 L. J. (N. S.) Ch. 318. ,•. ( 'aultield, 6 East, 244 ... . v. ('ralil)e, 34 B. 457 i\ (iodwin, 11 V. 2 ; i r. Smith, 3 A . C. 795 R. R. 61 . " 62 L. J. Ch. Champion, Re, (1893) 1 Ch. 101 Champneys, E.c p., Dick. 350 . . . . Chancellor, Re, 26 C. D. 42 ; 53 L. J. Ch. 443 . Cliandler v. Pocock, 15 C. D. 491 ; 16 C. D. 648 105 L. 832 753 825 33 389 803 423 S.) 641, 839 . 21 555, 611 . 777 185, 199, 202 437, 439 . 352 197, 198 . 411 blO, 813 . 771 . 502 . 129 693, 694 . 508 748, 752 . 199 . 217 . 555 422, 424 . 507 134, 1:35 . 215 . 245 . 706 J. Ch. 49 L. J. Ch . 82, 442 . 742 . 839 330, 3.-i9 . 439 . 362 . 846 78, 88 . 611 270, 618 . 853 . 818 . 810 . 521 86, 89 335, 339, 358 XXX TABLE OF CASES Chaplin v. C, 3 P. W. 368 . V. Horner, 1 P. W. 487 . Chapman, Re, L. E. 15 Eq. 75 ; 42 L. J. (N. S.) Bank. 38 V. Biggs, 11 Q. B. D. 27 . V. C, 4 C. D. 800 ; 46 L. J. Ch. 104 V. Hart, 1 V. 271 Chappell V. Kees, 1 De G. M. & G. 393 ( 'liarkieth. The, L. E. 3 A. & E. 59 ; 42 L. J. (N. S.) Q. B Charlemont v. Sjiencer, 1 1 L. E. Ir. 347 Cliarlesworth v. Holt, 9 Exch. 38 Charlton v. Coombes, 11 W. E. 1038 ; 32 L. J. Ch. 284 V. 4 Gif. 382 . Chartered Bank, &c. v. Henderson, 5 L. E. P. C. 501 Chatteris v. Young, 2 Euss. 184 . Chaiincev v. Graydon, 2 Atk. 616 Chave r.''C., 2 John. & H. 713 (n.) Chaworth v. Beech, 4 V. jun. 555 Chedworth v. Edwards, 8 V. 46 ; 6 E. E. 212 Cherry v. Mott, 1 My. & C. 123 ; 5 L. J. (N. S.) Chesham, Re, 31 C. D. 466 ; 55 L. J. Ch. 401 Chester v. Painter, 2 P. W. 336 . V. Powell, 7 Jur. 389 V. Urwick, 23 B. 402 Chesterheld v. Janssen, 2 V. 156 Chestertield's T., Re, 24 C. D. 643 ; 52 L Chetwynd v. Fleetwood, 4 Bro. P. C. 435 Chichester v. Bickerstatf, 2 Vern. 295 . Quatrefages, (1895) P. 186 ; J. Ch 787: Ch. 65 958 PAGE . 33 336, 339 . 752 . 679 . 788 . 821 60,62 . 779 . 681 . 609 . 560 . 571 . 136 . 876 555, 569 . 427 90, 791, 828, 831 . 177 . 55 422, 423 845, 853 . 34 . 790 . 573 64 L. J. P. D. & Chick, Exp., 11 C. D. 738 Chidgey v. Whitby, 41 L. J. Ch. 699 . China Steamship Co., Re, 7 Eq. 240 ; 38 L. J. Ch. 199 Transpacific Steamship Co. v. Marine Insurance P. 19 (1881), p. 89 Chipchase i'. JSimpson, 16 Si. 485 ; 18 L. J. (N. S.) Ch. 145 Chitty V. Parker, 2 V. jun. 271 . Choat V. Yeates, 1 J. & W. 102 ; 20 E. E. 239 Cholmely v. C, 2 Vern. 83 . Cholmondeley v. Clinton, 4 Bli. 1 ; 22 E. E. 83 . Chown V. Parrott, 14 C. B. (N. S.") 74 ; 32 L. J. (N. S.) C Chowne v. Baylis, 31 B. 351 ; 31 L. J. (N. S.) Ch. 757 Christie v. Taunton, (1893) 2 Ch. 175 ; 62 L. J. Ch. 385 Chubb V. Pettiplier, W. N. (1872) 110 V. Stretch, 9 Eq. 559 ; 39 L. J. Ch. 329 Churchill v. C, 5 Eq. 44 ; 37 L. J. Ch. 92 . V. Small, 2 Kenyon E., part 2, p. 6 Churchman ■;;. Ireland, 1 Euss. & M. 280 Citizen's Bank, &c. v. First National Bank, 6 L. E. L. J. (N. S.) Ch. 269 City Bank, Exp., 3 Ch. 762 .... '. i: Sovereign L. A. Co., 50 L. T. 565 . Clack V. Holland, 19 B. 262 ; 24 L. J. (N. S.) Ch. 13 Clarendon v. Ht)ruljy, 1 P. W. 446 Clarges r. Albemarle, 2 Vern. 247 Clark, iie, 33 W. E. 516 i; Browne, 2 Sm. & G. 524 1-. Cook, 3 De G. & Sm. 333 V C, 10 P. D. 193 ; 54 L. J. P. B. & A. 57 598, 599, 6( l: Franklin, 4 Kay & J. 257 ; 27 L. J. (N. S.) Ch. 557 V. Gird wood, 7 C. D. 9 ; 47 L. J. Ch. 116 . V. Guise, 2 V. 617 V. Hall, 24 L. E. Ir. 316 . H. A. 7 Co., 19 . 433 337, 358 . 873 . 142 . 852 133 ^y. N. 10 •1, . 744 . 665 . 382 22, 791 . 728 . 150 . 238 109 . ' 132 . 212 696, 697 . 439 . 728 . 435 43 450, 462 . 136 . 63 . 134 202, 204 . 728 . 55 822, 824 . 634 603, 610 . 339 276, 286 . 431 . 464 I 1 TO VOLUME 1. XXXI Clark V. Malpas, 31 B. 80 ; 31 L. J. (X. S.) Ch. 69G . . 283, V. Sewel, 3 Atk. 99 . Clarke, Re, 18 C. D. 162 ; 50 L. J. Ch. 733 , Re, 21 C. D. 821 ; 51 L. J. Ch. 762 . 496, 497, 524, V. Berkeley, 2 Vern. 720 V. Butler, 1 Mer. 304 ; 15 E. R. 118 V. C, 34 L. J. (N. S.) Ch. 477 , r. Clayton, 2 Gif. 333 . V. Cobley, 2 Cox, 173 ; 2 R. R. 25 . r. Frankling, 4 Kay & J. 257 ; 27 L. J. (X. S.) Ch. 56" V. Green, 2 Hem. & M. 474 ir. Ormonde, Jac. 108 ; 23 R. E. 8, 143 V. Parker, 19 V. 1 ; 12 R. R. 124 . . . 556, 566, r. Pistor, 3 Bro. Ch. 568 V. Woodward, 25 B. 455 V. Yonge, 5 B. 523 . Clavering v. Ellison, 8 De G. M. & G. 662 ; 7 H. L. C. 707 ; 29 L. J. (X. S.) Ch. 761 . V. Yorke, 2 Coll. Ch. R. 363 (n.) Clayton v. Cookes, 2 Atk. 449 . Cleary v. Fitzgerald, 5 L. R. Ir. 351 . Cleaver v. Mutual, &c., (1892) 1 Q. B. 147 ; 61 L. J. Q. B. 128 Clement u Cheesman, 27 C. D. 631 ; 54 L. J. Ch. 158 Parson's Case, 8 Co. 142 .... Clements, Re, (1894) 1 Ch. 665 ; 63 L. J. Ch. 326 Clementson v. Gandv, 1 Keen, 309 ; 5 L. J. (X. S.) Ch. 260 Cleveland, Re, (189.5) 2 Ch. 542 ; 65 L. J. Ch. 29 552, Cleveland's S. E., Re, (1893) 3 Cli. 244 ; 62 L. J. Ch. 955 Cliff, Re, (1895) 2 Ch. 25 ; 61 L. J. Ch. 397 Cliftbrd V. Beaumont, 4 Russ. 325 V. C, 9 P. D. 76 ; 53 L. J. P. D. & A. 68 Clifton V. Cockburn, 3 M. & K. 76 . Cline's Estate, Re, 18 Eq. 213 . Clive V. Carew, 1 John. & H. 199 ; 28 L. J. (X. S.) Ch. 685 r. C, Kay, 600 ; 23 L. J. (N. S.) Ch. 981 . . 8.30, 8 Cloberry v. Lampen, Freeni. 25 . Clothier v. Chapman, 14 Eq. 331 ; 12 R. R. 543 Clough V. C, 3 iMy. & K. 296 . V. Lambert, 10 Si. 174 . Clowes, Re, (1893) 1 Ch. 214 V. C, 1 Curt. 145 . Olutterbuck v. C, 1 My. & K. 15 ; 2 L. J. (X. S Coard v. Holderness, 22 B. 391 .Coates V. Stevens, 1 Y. & C. Ex. 66 . Cobbett V. Brock, 20 B. 524 Cock r. C, 13 W. R. 188 . V. Richards, 10 V. 429 ; 8 R. R. 23 . Cockayne v. Harrison, 13 Eij. 432 ; 42 L. J. (X. S.) Cli. 660 Cockburn r. Edwards, 18 C. D. 449 ; 51 L. J. Ch. 46 Cockcroft, Re, 24 C. D. 94 ; 52 L. J. Ch. 811 Cockell V. Taylor, 15 B. 103 ; 21 L. J. (X. S.) Ch. 545 Cockerell, Ex p., 4 C. P. I). 39 . V. Barber, 16 V. 461 . Cocking V. Pratt, 1 V. 401 . Cockran v. C, 14 Si. 248 .... Cocks V. Folev, 1 Vern. 359 Cocksedge v. C., 5 Ha. 397 ; 5 L. J. Dig. 130 Codringtou v. Lindsay, 8 Ch. 592 ; 7 L. R. H. L. 854 ; 42 ^X. S.) Ch. 526 ! 42.3, 424, 4 Coffin V. Cooper, 14 V. 205 ; 9 R. R. 274 Cogan V. Stevens, 1 B. 482 (n.) ; 5 L. J. (X. S.) Ch. 17 591, )Ch. 113. VAQE 311, 313 . 851 . 836 529, 710 565, 570 . 788 . 34 . 198 . 470 351, 3.53 . 169 745, 775 567, 568 . 714 . 165 177 335, 605, U, 92, . 555 . 410 . 176 . 113 672, 677 . 411 . 736 . 855 . 428 . 88 349, 358 . 779 557, 570 609, 610 236, 243 . 834 . 6 836, 848 . 845 . 178 . 823 595, 608 . 827 . 588 22 21, 829 . 429 . 280 . 611 . 572 . 796 . 276 32, 341 132, 147 . 169 . 864 . 270 791 171 611 79, L. J. 432, 4.39 . 565 380, 383 XXX 11 TABLE OF CASES PAQE Cogswell V. Armstrong, 2 Kay & J. 227 51 Cohen v. Wilkinson, 12 B. 125 ; 18 L. J. (N. S.) Ch. 378 . . .754 Cole V. Gibbous, 3 P. W. 290 296, 305, 309, 324 r. Gibson, 1 V. 506 326, 573 V. Kernot, 7 L. R. Q. B. 534 (n.) ; 41 L. J. (N. S.) Q. B. 221 V. Muddle, 10 Ha. 186 ; 22 L. J. (N. S.) Ch. 401 V. Scott, 1 M. & G. 518 ; 19 L. J. (N. S.) Ch. 63 Cole's Will, 8 Ecj. 271 Coleby v. C, 2 Eq. 803 Colegrave v. Manby, 6 Madd. 84 ; 2 Russ. 238 . Coleman v. C, 2 V. jnn. 640 V. Overseers, &c., 6 Q. B. D. 615 ; 50 L. J. M. C , Be, 39 C. D. 443 ; 58 L. J. Ch. 226 Coles V. Jones, 2 Vern. 692 ..... Colledge V. Pike, 56 L. T. 124 . Colleton r. Garth, 6 Si. 19 ; 2 L. J. (N. S.) Ch. 75 Collett v. C, 35 B. 312 ; 2 Eq. 203 . Dickenson, 11 C. D. 687 Collingham v. Sloper, (1894) 3 Ch. 716 ; 64 L. J. Ch. 149 Collingwood v. Row, 26 L. J. Ch. 649 ... Collins V. Blantern, 2 Wils. 347 V. C, 2 My. & K. 703 v. Lewis, 8 Eq. 708 . V. Martin, 1 Bos. & P. 648 V. Wakeman, 2 V. jun. 686 Collis V. Robins, 1 De G. & Sm. 4 R. R. 752 , 114 . 134 . 811 . 860 . 26 826, 827 784, 791 92 . . 677 105, 106, 141, 816, 817 . 132 . 748 . 820 . 568 . 690 . 241 354, 355, 356 573 79, 80, 81, 84 . 51 . 136 131 332, 377, 379, 380, 385, 387, 389 16 L. J. (N. S.) Ch. 251. ..13, 16, 385 Collison V. Curling, 9 CI. & Pin. 88 . CoUyer v. Ashburner, 2 De G. & Sm. 404 . V. Falton, Turn. & R. 459 V. Isaacs, 19 C. D. 343 ; 51 L. J. Ch. 14 836 849 142 114 754 Colman v. The Eastern Counties Ry. Co., 10 B. 1 ; 16 L. J. (N. S.)Ch. 73 Colonial Bank v. Cady, 15 App. Cas. 267 ; 38 C. D. 388 ; 36 C. D. 659 ; 60 L. J. Ch. 131 451, 466 V Whinney, 11 App. Cas. 426 ; 56 L. J. Ch. 43...109, 127, 128, 141 Colston V. :\Iurris, 6 Madd. 89 ; 22 R R. 246 850 Jac. 227 (n.) 497 26 L. J. (N. S.) Ch. 65 128 13, 21, 798 . 361 . 770 . 796 . 140 . 771 748 178 Coh-ill, Ex «., Mont. 110 Colville V. Middleton, 3 B. 570 . Colwell V. Shadwell, 1 P. W. 471 Colver V. Finch, 5 H. L. Cas. 905 "- — , Be, 55 L. T. 344 Comfort r. Betts, (1891) 1 Q. B. 737 ; 60 L. J. Q. B. 656 . Commercial Bank of India, Be, 6 Eq. 517 . Commissioners of Sewers v. Geliatly, 3 Ch. D. 610 ; 45 L. J. Ch. 788 V. Glasse,'4 L. J. (N. S.) Ch. 409 V. Harby, 23 B. 508 ; 26 L. J. (N. S.) Ch. 472 Companies Acts, Be, 21 Q. B. D. 309 ; 57 L. J. (,). B. 609 . Compton V. CoUinson, 2 Bro. Ch. 377 Conclon v. Vollum, 57 L. T. 154 Conduitt v. Soane, 4 Jur. (N, S.) 502 Coniugton v. GHliat, 25 W. E. 69 ; 1 C. D. Connelly v. C, 7 Moore P. C. C. 438 Connor, i?e, 16 Ir. C. L. 112 Conciuest's Case, 1 C. D. 334 ; 45 L. J. Ch. 336 Consolidated, &c. Co., The, v. Riley, 1 Gif. 371 ; 29 L. J. (X. S.) Ch. 123 Constable v. C, 48 L. J. Ch. 621 Conwav v. Fenton, 40 C. D. 512 ; 58 L. J. Ch. 282 694 : 46 L. J. Ch. 61 Cood r. C, 33 B. 314 ; 33 L. J. (N. S.) Ch. 273 123 266 592 531 860 637 554 525 165 130 834 . 367 243, 751 TO VOLUME I. XXXUl J. Ch. 322 . (X. S.) Ch. 268 Cook V. Addison, 7 Eq. 460 ; 38 L V. Black, 1 Ha. 3:)0 ; 1 1 L. J, r. C, 1 P. & D. 243 . V. Field, 1.5 Q. B. 460 ; 19 L. J. (X. S.) Q. B. 441 V. Fryer, 1 Ha. 498 ; 11 L. .J. (X. S.) Cli. 284 V. Gregson, 2 Dr. 286; 2.3 L. J. (X. S.) Ch. 706 V. Greves, 30 B. 378 V. Wright, 1 B. & S. 5.59 ; 30 L. J. (X. S.) Q. B. Cooke V. Burtchaell, 2 Dr. & War. 165 V. Dealer, 22 B. 196 V. Fuller, 26 B. 99 V. Lamotte, 15 B. 241 ; 21 L. J. (X. S.) Cli. 3^ V. Wiggins, 10 V. 191 Cockney v. Anderson, 31 B. 452 ; 32 L. .J. (X. S.) Ch Cookson V. C, 12 CI. & Fin. 121 ... V. Hancock, 1 Keen, 817 ; 2 My. & C. 6(:>6 Ch. 245 . . . . \ V. Eeay, 5 B. 22 ; 12 CI. & Fin. 120 . Coombe's T., 1 Gif. 91 Cooper's T., Re, 4 De G. M. & G. 768 ; 23 L. J. (X. S Cooper V. C, 13 App. C. 88 V. — 44 L. J. (X. S.) Ch. 6 ; 7 H. L. 53. ..4 ) Ch. — , 6 Ch. 15 ; 40 L. J. (X. S.) Ch. 5 . — , 6 Ir. Ch. R. 217 . Day, 3 Mer. 154 Gostling, 4 Gif. 449 . Jarman, 3 Eq. 98 ; 36 L. J. Ch. 85 . Laroche, 17 C. D. 368 .... Macdonald, 7 C. D. 288 ; 44 L. J. Cli. 37 V. Martin, 3 Ch. 47 V. Phibbs, 2 L. R. H. L. 170 . V. Reillv, 2 Si. 560 V. Thornton, 3 Bro. Ch. 96 . V. Wormald, 7 B. 266 . Coore V. Todd, 7 De G. M. & G. 520 . Coote V. Boyd, 2 Bro. Ch. 529 . V. C, 3 Jo. & Lat. 179 . ... V. Gordon, 41 Ir. R. Eq. 180 . V. Lowndes, 10 Eq. 376 ; 39 L. J. Ch. 887 Copeman v. Gallant, 1 P. W. 314 Coppin V. C, 2 P. W. 296 V. Fernyhough, 2 Bro. Ch. 291 Corballis v. Grainger, 4 Ir. Ch. R. 173 Corbet v. C, 7 Ir. R. Eq. 456 .... V. Davenant, 2 Bro. Ch. 252 Corbett v. Brock, 20 B. 524 V. C, 8 Ir. R. Eq. 407 .... I,. _ 14 p. & D. 9 ; 58 L. J. P. D. & A. i: Tottenham, 1 Ball & B. 59 . ; 26 L. J. (X. S. 14 L. J. (X. S ) Cordwell's Estate, Re, 20 E(i. 644 Corkers Minors, Re, 1 Ir. Jur. 316 Corley v. Stafford, 1 De G. & J. 235 Cornfield v. Wyndhani, 2 Coll. 184 ; Cormicks, Re, 2 Ir. Eq. R. 264 .... Cornick v. Peavce, 7 Ha. 477 Cornish v. Abington, 4 H. & X. 549 ; 28 L. J. (X. S.) r. Gest, 2 Cox, 27 . Cornwall, Re, 3 Dr. & War. 173 Cory V. C, 1 V. 19 . W. & T. — VOL. I. PAGB . 177 . 107 . 403 . 150 . 507 . 747 . 237 321 . . 230, 231 . 316 . 382 668, 670, 846 1 . 269, 281, 286 . 491, 592 427 . . 779 335, 362, 363, 364 5 L. J. (X. S.) . 875, 876 . 345, 346, 364 . 128 . 353 . 443 21, 422, 424, 431, 437, 443 . 439 564, 569 . 875 . 359 . 343 . 716 3... 664, 683, 684, 705, 710 . 828 31, 232, 235 . 142 . 845 . 659 840, 843 2, 873, 875 15,22 . 430 . 28 . 99 . 841 . 827 . 694 . 810 . 202 . 285 . 22 . 563 511, 520 639, 653 . 5 (54 . 276 . 798 . 516 . 348 . 468 . 201 46, 58 243, 271, 314 C 869, 8 ) Ch. 865 Ch. 375 Ex. 62 XXXIV TABLE OF CASES Cosbj' V. Ashtown, 10 Ir. Ch. R. 219 . Costello V. O'Eorke, 3 Ir. R. Eq. 172 . Coster V. C, 9 Si. 597 ; 8 L. J. (N. S.) Ch. 230 . v. — l Keen, 199 ; 8 L. J. (N. S.) Ch. 230 Coteswortli v. Stephen?^, 4 Ha. 185 . Cothayv. Sydenham, 2 Bro. Ch. 391 . Cotton, Be, i C. U. 232 ; 45 L. J. Ch. 201 . Cotton's Trustees, Re, 19 C. D. 624 ; 21 L. J. Ch. 514 Cottrell, Me, 28 C. D. 628 V. Briggs, 32 Sol. Jo. 108 Coulson V. Allison, 2 De G. F. & J. 521 . Courou V. C, 7 H. L. Cas. 168 . Court V. Buckland, 1 C. D. 610 ; 45 L. J. Ch. 214 V. Foster, 1 John. & H. 30 Coiirtenay v. Gallagher, 5 Ir. Ch. 154 Courtier, Re, 34 C.'D. 136 ; 56 L. J. Ch. 350 . Courtois V. Vincent, Jac. 268 .... Courtoy v. Vincent, T. cSt R. 433 ; 24 R. R. 94 . Cousins, Re, 30 C. D. 203 Cousin's Trust, Re, 31 C. D. 671 ; 55 L. J. Ch. 662 Coiitts V. Ackworth, 9 Eq. 519 ; 39 L. J. Ch. 649 8 Eq. 5.58 ; 38 L. J. Ch. 694 Coventry v. C, 2 Dr. & Sm. 470 .... V. Higgins, 14 Si. 30 . Coward, &c.. Re,' 20 Eq. 179 ; 44 L. J. Ch. 384 . Cowley V. Hartstonge, 1 Dow. 361 ; 14 R. R. 86 Cowper V. Harmer, 57 L. J. (N. S.) 60 V. Mantell, 22 B. 231 . Cox's Trust, Re, 9 C. D. 159 ; 47 L. J. Ch. 735 . Cox V. Bennett, 22 W. R. 819 . ■ V. , (1891) 1 Ch. 622 ; 60 L. J. Ch. 657 V. , 6 Eq. 422 • — V. C, 8 Eq. 343 ; 38 L. J. Ch. 569 V. Dolman, 2 De G. M. & G. 592 ; 22 L. J. (N. S V. Mitchell, 7 C. B. (N. S.) 55 ; 29 L. J. C. P. 33 Coxhead v. Mulbis, 3 C. P. D. 439 ; 47 L. J. C. P. 761 Coysegarne, Exp., 1 Atk. 192 .... Crabb v. C, 1 Mv. & K. 511 ; 3 L. J. (N. S.) Ch. 181 Crabtiee v. Branible, 3 Atk. 687 . . . 33" ' Crackett v. Bethune, 1 J. & W. 586 ; 21 R. R. 241 Craddock's T., Re, W. N. (1875) 187 . Cradock v. Piper, 15 Si. 301 .. . Craig V. Wheeler, 29 L. J. Ch. 374 Craven v. Brady, 4 Ch. 296 ; 36 L. J. Ch. 296 Crawford v. Forshaw, (1891) 2 Ch. 261 ; 60 L. J Crawley v. C, 7 Si. 427 Cray v. Mansfield, 1 V. 127 . Creagh v. Wilson, 2 Vern. 572. . Creed v. C, 11 CI. & Fin. 508 . Cresswell v. C, 6 Eq. 69 ; 37 L. J. Ch. 521 I'. Dewell, 4 Gif. 460 . Creuze v. Hunter, 2 Cox, 242 ; 2 R. R. 38 PAGE 421, 428 . 347 . 640 . 652 . 742 . 115 845, 854 . 357 . 87 . 744 . 280 . 21 . 385 . 608 . 801 . 348 . 522 . 860 . 307 . 125 :5, 430, 437 . 268 13, 20, 22, 24 565, 853 166, 640, 668 345, 346, 348 . 200 819, 826, 829 . 835 . 505 . 672, 722 . 828 88, 217 ) Ch. 427 . . 862 . 748 . 326 . 631 . 429 335, 339, 346, 362, 363, 364 . 859 . 644 . 48 78, 80 . 560 33 . . . 567 Crickett v. Dolby, 3 V. 13 Crockat v. C, 2 "P. W. 164 . Croft V. Graham, 2 De G. J. & S. 155 V. Pike, 3 P. W. 180 . Croly V. Weld, 3 De G. M. & G. 995 ; Crommelin v. C, 3 V. 227 . Crook?;. C, W. N. (90) 26 . Crosbie v. Mayor of Liverpool, 1 Russ 22 L .^ M Ch, J. (N. S.) Ch 761 (n.) . 272 550, 551, 555, 558 790, 797, 798, 828, 842 . 870 . 165, 648 515, 516 845, 848, 852 785, 789, 822 310, 323, 324 . 101 916 Crosby v. Chiirch, 3 B. 485 ; 10 L. J. (N. S.) Ch. 212 . 840 565, 570 200, 216 . 54 6S2, 691 TO VOLUiME I. XXXV ■Cross, Re, 20 C. D. 109 ; 51 L. J. Ch. 645 . 01. Adflenbrook, 3 P. W. 222 (n.) . Grossman v. Richards, W. N. (1880) 167 . Croucli V. Credit Foncier, &c., 8 L. R. Q. B. 374 B. 183 ..,'... V. Waller, 4 De G. & J. 302 . Croughton, Re, 8 C. D. 460 ; 47 L. J. Ch. 795 Crow V. Price, 22 Q. B. D. 429 ; 58 L. J. Q. B. 2 Crowder v. Clowes, 2 V. jim. 449 Crowe V. Crislbrd, 17 B. 507 Crowle V. Russell, 4 C. P. D. 186 ; 48 L. J. C. P Crowther, Re, (1895) 2 Ch. 60 ; 64 L. J. Ch. 537 Croxon v. Moss, 2 Foss. & Fin. 539 Croxton v. May, 9 Eq. 408 ; 39 L. .J. Ch. 155 Cramp, Re, 34 B. 576 . Cruse V. Barley, 3 P. W. 20 Cuff V. Hall, 1 Jur. (N. S.) 972 . Cull r. Showell, Amb. 727 . Culpepper v. Ashton, 2 Ch. Ca. 117 Camming, Re, 2 De G. F. & J. 376 ; 30 L. J. (N V. Forrester, 2 J. & W. 345 ; 22 R. R 15 42 L.J. S.) Ch. 29 157 . Cunliffe v. Manchester, &c. Canal Co., 2 Russ. & jM. 480 (n Cunningham's Sett., Re, 11 Eq. 324 ; 40 L. J. (N. S.) Cli. 247 Canninghani v. Antrobus, 16 Si. 436 . V. Moody, 1 V. 174. V. Foot, 3 App. Cas. 974 . Ross, 2 Cas. t. Lee, 478 906 36 W. R. 752 : 57 L. J CI Cuno, Re, 43 C. D. 12 . Curling v. May, 3 Atk. 255 . ^ V. Townshend, 19 V. 634. Curre v. Bowyer, 5 B. 6 (n.) Currey, Re, 32 C. D. 361 ; 55 L. J. Ch. Currie, Re, 59 L. T. 200 V. Pye, 17 V. 462 . Curry v. Pile, 2 Bro. Ch. 225 Curteis v. Kenrick, 3 M. & W. 461 ; 7 L. J. (N. . V. Wormald, 10 C. D. 172 Curtis, Re, 28 L. J. Ch, 458 ... V. Auber, 1 J. & W. 526 . V. C, 2 Bro. Ch. 620 . V. — , 5 Jur. (N. S.) 1147 . Curwyn v. Milner, 3 P. W. 293 (n.) . Cuthbert v. Furrier, 2 Ph. 199 . Cuthbertson v. Irving, 4 H. & N. 742 ; 28 L. J. (N. Cutler, Re, 14 B. 220 ; 20 L. J. (N. S.) Ch. 504 . S.)E r43 J'AGE . 862 . 335 . 219 (N. S.) g. . 134, 13G . 608 . 710 . 142 . 875 . 81, 82, 84 . 742 . 82, 86, 89 . 134 . 641 . 646 329, 377, 387 . 346 . 425 . 50 . 6:3 . 424 ) . .754 715, 716 . 166 332, 334, 335, 360, 361 . 863 . 821 672, 675, 681 . 344 . 316, 323 . 343 711, 721, 724 . 860 . 872 . 867, 875 X. 169 . . 684 . 383 515, 516 . 105 222 . 517, 518 293, 299, 304, 310, 325 . 846 ) Ex. 307 . . 464 640, 641, 643, 648 Dacre v. Patrickson, 1 Dr. & Sm. 186 ; 29 L. J. (N. S.) Dady v. Hartridge, 1 Dr. & Sm. 236 . Dagley v. Tolferry, 1 P. W. 285 . Dainiry, Re, (1893) 2 Q. B. 116 ; 62 L. J. Q. B. 511 Dakins v. Berisford, 1 Ch. Ca. 194 Dalbiacu D., 16 V. 110 . Daley v. Desbouverie, 2 Atk. 273 Dally V. V,^ouham, 33 B. 154 ; 32 L Dalton, Re, 60 De G. ]\[. & G. 201 ; Exp., 3 Sm. & G. 331 ; 25 L. J. (N. S.) Ch. 751 Daly, Re, 6 B. 393 (n.) ; 17 L. J. (N. S.) C. P. 1 V. Att-Gon., 8 Ir. R. Eq. 595 J. (N. S.) Ch. 790 25 L. J. Ch. 751 . Ch. 846.. 20, 26 . 51 . 844 . 246 665 . 462 . 566 . 311 . 502 . 502 . 523 . 834 C li XXXVl TABLE OF CASES .30, 555, DanieU-. Freeman, 11 Ir. R. Eq. 233 .... V. Warren, 2 Y. & C. C. C. 290 . Daniell v. Sinclair, 6 App. Cas. 181 ; 55 L. J. P. C. 50 Dann v. Spurrier, 7 V. 251 ; 7 R. R. 797 . Danvers v. Mannincr, 2 Bro. Ch. 18 ; 1 Cox, 203. Darbon v. Rickards, 14 Si. 537 ; 14 L. J. (X. S.) Ch. 344 Darcy v. Croft, 9 Ir. Ch. R. 19 Darkiii v. D., 17 B. 578 ; 23 L. J. (N. S.) Ch. 890 . Darley v. D., 3 Atk. 399 Dashwood v. Bulkeley, 10 Y. 230 ; 12 R. R. 128 (n.) . V. Peyton, 18 Y. 49 ; 11 R. R. 145 . Daunt V. D., 13 Ir. Ch. Rep. 175 Davenhill v. Fletcher, Anib. 244 .... Davenport, Be, (1895) 1 Ch. 366 ; 64 L. J. Ch. 252 . 672, 674, V. Coltman, 12 Si. 610 ; 11 L. J. (X. S.) Ex. 114 V. Km^, 49 L. T. 92 Daveron, Ee, (1893) 3 Ch. 425 ; 64 L. J. Ch. 54 . . . 358, Davidson. Ee, 11 C. D. 341 . . . . 358, 359, 362, „. Wood, 11 W. R. 561 Davies, Ee, (1892) 1 Ch. 90 ; 61 L. J. Ch. 650 .... " . . 18, 21, . 24, 309, 311, Ashford, 15 Si. 42 ; 5 L. J. Dig. 400 . V. Austen, 3 Bro. Ch. 178 ; 1 Yes. J. 247 V. Bush, 1 Younge, 341 ; 4 Bl. (X. S.) 305 V. Cooper, 5 My. & C. 270 v.'D,9 Ec[. 468 ; 39 L. J. Ch. 343 . V. — , 38 C. D. 212 ; 57 L. J. Ch. 759 . V. — , 4 Gif. 417 r. — , 6 Jur. (X. S.) 1320 V. Fowler, 16 Eq. 308 ; 43 L. J. (X. S.) Ch. 90 ■ V. Hodgson, 25 B. 186 ; 27 L. J. (X. S.) Ch. 449 . V. Jenkins, 6 C. D. 728 V. London, &c.. Marine Insurance Co., 8 C. D. 475 ; 4 Ch. 511 r. Morgan, 1 B. 405 V. Stanford, 61 L. T. (X. S.) 234 V. Topp, 2 Bro. Ch. 259 V. \Vattier, 1 S. & S. 463 Davis & Co., A'e, 22 Q. B. D. 193 .... 106,110, , Ee. (1891) 3 Ch. 119 ; 61 L. J. Ch. 85 ... . V. Angel, 31 B. 223 ; 31 L. J. (X. S.) Ch. 613 . V. D., 13 C. D. 861 ; 49 L. J. Ch. 241 .... V. Freethy, 24 Q. B. D. 519 ; 59 L. J. Q. B. 318.. .148, 149, V. Marlborough, 2 Swans. 108 . V. Treharris, &c., Co., 13 R. 232 Davis's Case, 1 P. \Y. 698 Dawes v. Creyke, 30 C. D. 500 ; 54 L. J. Ch. 1096 V. Scott, 5 Russ. 32 Dawkins v. Simonetti, 29 W. R. 228 ; 50 L. J. P. D. & A. 30 Dawley v. Ballfrev, Gilb. Eq. Rep. 103 Dawson v. Bourne, 16 B. 29 ■ V. Hearn, 1 Russ. & M. 606 ; 8 L. J. Ch. ] 53 , r. Jay, 3 De G. M. & G. 764 . ..'. iMassev, 1 Ball & B. 219 . V. Oliver-Massey, 2 C. D. 753 ; 45 L. J. Ch. 519 . V. Prince, 2 De G. & J. 41 ; 27 L. J. (X. S.) Ch. 169 V. Thompson, 12 L. T. (X. S.) 178 . Day V. Croft, 4 B. 561 V. D., 1 Drew\ 569 ; 22 L. J. (X. S.) Ch. 878 V. Pargrave, 3 M. & S. 395 D'Aglie V. Fryer, 12 Si. 1 ; 13 L. J. (X. S.) Ch. 398 143, PAGE . 130 80, 84 . 231 . 453 . 794 802, 804 323, 665 . 695 . 661 566, 567 422, 425 . 21 . 841 682, 688 . 382 207, 208 360, 379 363, 441 669, 677 . 672 363, 798 132, 845 841, 842 312, 318 162, .509 . 439 . 270 . 201 . 793 . 723 . 691 L. J. . 282 . 790 . 691 . 33 . 847 114, 141 . 863 570, 571 . 239 150, 275, 276 311,312 . 680 . 480 . 668 12,18 . 753 . 844 . 663 . 805 523, 531 . 272 567, 569 . 708 . 501 . 876 806, 830 . 157 80, 81 TO VOLUME I. XXXvii D'Aquilan r. Drinkwater, 2 V. & B. 225 p.«r; r^ra ''-^ry D'Arcy t>. Blake, 2 Sch. & L. 390 ^~' • ■ ■ - 56o, 566, ob7 D'Arcy's, Re, 11 Ir. C. L. 1 jfi De Beauvoir v. De B, :i H. L. Cas. 524 ; 6 L. J." Dig.' 384 " ' ' 345 De Benmles v. A. 1. Herald, (1893) 2 Q. B. 97 (n ) ; 62 L. J.Q. B. De Burgh-Lawson i?;, 41 C. D. 568 ;" 58 L. J. Ch. 561 .' .' 684 687 De Bussche i^ A.-G., 8 C. D. 314 ; 47 L. J. Ch. 381 . ' jyl D'Epmeuil, i?e, 20 C. D. 758 . • • . • f^-i De Geudre v. Kent, 4 E.|. 283 . "^' ^l^t De HoKhton v. Money, 2 Ch. 164 . • • • . «3^ De la Garde 7;. Lempriere, 6 B. 344 ; 12 L. J. (X. S.) 'Ch. ^72 '. 638 649 De Lancey, Ee, 5 Ex. 109 . ^ ' Y^^^ De Lisle .. Hodges^ 17 Eq. 440 ; 43 L.' J. (N. S.) Ch. 385 ! .' " 839 De Manneville v. De M., 10 V. 52 ; 7 R. R. 340 . . . 496 517 41 De Mazar v. Pybus, 4 V. 644 . ' ' '?f, D'Oechsner v. Scott, 24 B. 239 -7.1 De Pereda y. De Mancha, 19 C. D. 451 ; 51 L. J. Ch.'204 '. " " 499 De Pothonier v. De Mattos, El. B. & E. 467 ; 27 L. J. (N. S.)'q. B.' De Kochfort f. Dawes," 12 Eq. 540; 40 L. J. (X.'s.) Ch. 625 .' '26^?? De A\ eever v. Rochport, 6 B. 391 V90 Dean v. Allen, 20 B. 1 . . '^7^ Deane v. Test, 9 V. juu. 146 .' tf^i Dearie V. Hall, 3 Russ. 1 . . ''p Dearnier, lie, 53 L. T. 505 . . ../.^ Dee V. Hewlett, 2 K. & J. 531 . l ,q Deeth v. Hale, 2 Moll., 317 * ' ' " -j-in -j-n Deg ^^ D., 2 P. W. 412 . 330, 3o9 Delta, The, 25 W. R. 46 ; L. R. 1 P. f). 393 ; 45 L. .f. P. D .1- \ HI 752 Dempsey v. Lanson, 2 P. D. 98 ; 46 L. J. P. D. & A 23 ' 87^ Deneker, Ee, (1895) W. N. 28 ; 72 L. T. 220 ' • • • ^'^ Dennis v. Badd, 2 Vern. 193 . ... -i-t Dent V. Bennett, 4 My. & C. 277 ; 8 L. J. (X. S.) Ch. 125*... 253, 266, 268, — - V. D., 1 P. & D. 366 ; 35 L. J. P. & M. 61 . ~^^' "''^^' 142 Derbishire v. Home, 3 De G. M. & G. 80 . " ' ' -93 Dering V. AYinchelsea, 1 Cox, 318 ; 1 R. R. 41 38 '.39 Derry v. Peek, 14 App. Cas. 337 ; 58 L. J. Ch. 864 '. 451, 454, 457! 459 Desln-ainbes v. Tompkins, 4 Bro. Ch. 149 (n.), 1 Cox, 133 ' 8^)2 Dettmar v. Metropolitan, &c., Bk., 1 Hem. & M. 641 . ' -^71 -jss Dewar..Maitland,2Eq.834 436, 440, 441! 442 Dewes v. Newmgton, 52 L. T. 512 fin's Dews V. Brandt, Ch. Ca. 7 . . . '. gVg Dias V. De Livera, 5 A. C. 123 ; 49 L. J. P. C. 26 ' ' ' ' (j-,i Dibb V. Walker, (1893) 2 Ch. 429 ; 62 L. .J. Ch. 536 . ' ' " 140 Dibbsv. Goreii, 11 B. 483 ' ' 132 Dickin v. Edwards, 4 Ha. 276 . ". '. ' " " 91 78*9 -93 Dickinson v. Burrell, 35 B. 257 ; 35 L. J. Ch. 371 " ' " ' '147 Dicks tJ. Batten, W. N. (1870) 173 . ' ' ' -ns Dickson's Trusts, 1 Si. (X. S.) 37 ; 20 L. J. (X. S.) Ch. 33. ' .' 555, 560 Dickson, Ee 28 C. D. 291 ; 29 C. D. 331 ; 54 L. J. Ch. 510 . 853 855 Dickson i; Swansea, &c., R. C, 4 L. R. Q. B. 44 ; 38 L. J. U. B. 17 . 133 Digby V. Boycatt, 4 Ha. 444 ... . 849 V. Legard, 3 P. W. 22 . . .... ^.^ ^- ' 1 Bro Ch. 501 .....■;: 374, -377 ^- , 2 Dick. 500 ... 827 Dillon, Ee, 44 C. D. 82 ; 59 L. J. Ch. 420 . 402, 403, 405, 406, 408, 409, 410,411,412,413 V. Coppin, 6 B. 217 (n.) ; 4 L. J. Dig. 200 .. . lys ■ V. Harris, 4 Bligh, 321 ' r,(- r. Lady Mountcashell, 4 Bro. P. C. 306 . . . 476. 520, 521 XXXVIU TABLE OF CASES Ch. PAGE. 421, 425,439,441, 442- 86,90 806 Dillon V. Parker, 1 Swans. 359 ; 18 E. R. 72 Dimes v. Scott, 4 Russ. 195 Diiiisdale r. D., 3 Drew, 556 ; 25 L. J. (N. S. Dingwell v. Askew, 1 Cox, 427 . Diplock V. Hammond, 2 Sm. & G. 141 ; 5 De G. M. (S. G. 320 L. J. (N. S ) Ch. 550 Di Siivini v. Lousada, 18 W. R. 425 .... Disher v. D., 1 P. W. 204 Disney, Ee, 2 Jur. (N. S.) 206 ■ V. Crosse, 2 Eq. 593 Diteham v. Morrall, 5 C. P. D. 410 ; 49 L. J. C. P. 688 Ditton, Ex p., 1 C. D. 557 ; 45 L. J. Bank. 87 . Dixie V. Wright, 32 B. 662 Dixon, Re, 42 C. D. 306 Dixon's T., Re, 48 L. J. Ch. 592 Dixon V. Dawson, 2 S. & S. 327 V. D., 9 C. D. 587 V. — , 3 Bro. Ch. 510 V. Evans, 5 L. R. H. L V. Gayfere, 17 B. 433 V. Olmiiis, 1 Cox, 414 ; V. Sampson, 2 Y. & C. C. C. 566 Dobson V. Waterman, 3 V. jnn. 308 (n.) ; 22 E. R. 105 Dodd V. Gronow, 17 W. R. 511 Dodson V. Hav, 3 Bro. Ch. 404 V. Samuell, 1 Dr. & Sm. 575 ; 29 L. J. (N. S.) Ch. 335 Doe d. Kenrick v. Beauclerk, 11 East, 657 .... 606; 42 L. J. (jSI. S.) Ch. 139 9 R. R. 286 (n.) ; 20 R. R. 235 (n V. Chichester, 4 Dow. 65 ; 16 R. R. 32 • . V. Crisp, 8 A. & E. 778 ; 8 L. J. (K S.) Q. B. 41 V. Gwinnell, 1 Q. B. 682 ; 10 L. J. (N. S.) Q. B. 212 . Doetch, Re, (1896) W. N. 82 DoUand v. Johnson, 2 Sm. & G. 301 ; 23 L. J. (N. S.) Ch. 637 Dolphin V. Avlward, 4 L. R. H. L. 486-505 . . 47, 58 Domvile v. Baker, 32 B. 604 Domville v. Taylor, 32 B. 604 Donaklson v. D., Kay, 711 ; 23 L. J. (X. S.) Ch. 788 . Doncaster v. D., 3 Kay & J. 26 Donelly v. Broughton, (1891) A. C. 435; 60 L. J. P. C. 4^ V. Foss,' 7 L. R. Ir. 439 Donne, Re, 2 Moll. 490 Donovan v. Needham, 9 B. 164 ; 15 L. J. (N. S.) Ch. 193 Door V. Gearr, 1 V. 255 ...... Dornford v. D., 12 V". 127 ; 8 R. R. 316 . Doughty V. Bnll, 2 P. W. 320 Douglas V. Cooksev, 2 Ir. R. Eq. 311 . V. D., 12 Eq. 617 ; 41 L. J. (N. S.) Ch. 74 . V. —, Kay, 400 ; 23 L. J. (X. S.) Ch. 732 . V. Russel, 4 Si. 524 Dowley v. Winfield, 14 Si. 277 Dowling V. Tvrell, 2 Russ. & M. 343 .... Downs V. Fletcher, 21 Q. B. D. 11 . Downes v. Jennings, 32 B. 290 ; 32 L. J. Ch. 643 Doyley v. Tollferry, 1 Eq. Cas. Abr. 300 . Dracup, Ee, (1894) 1 Ch. 59 ; 63 L. J. Ch. 238 . Drake v. Martin, 23 B. 89 ; 26 L. J. Ch. 786 . Drant v. Vause, 1 Y. & C. 580 ; 11 L. J. (N. S.) Ch. 170 Drapers Co. v. Dairs, 2 Atk. 295 Draper's Trusts, Re, 58 L. T. 942 Drew V. Barry, 7 Ir. R. Eq. 413 V. Josolvne, 18 Q. B. D. 590 ; 56 L. J. Q. B. 490 Drewry v. Thacker, 3 Swans. 529 ; 19 R. R. 274 Drinkwater v. Falconer, 2 V. 623 795 214 335 746 571 428 571 431 774 745 , 59, 60, 63 821 820 115 359 288 158, 159, 649 507 853 795 , 859 346 47 439 . 810 105 846 852 679 618, 619, 620 . 844 . 215 . 795 . 356 . 274 806, 807 . 8oa . 133 . 744 90, 794, 795, 822, 823. 829 243, 244 . 823 23 109, 113 . 530 . 336 . 640 . 789 . 326 . 749 358, 371 65], 672 . 636 382, 385 693, 694 . 846 231, 241 361, 362 .256, 662 . 428 TO VOLUME I. XXXIX PAGE Drinkwater v. Radcliffe, 20 Er|. 523 ; 44 L. J. (X. S.) Cli. 60.j . 206, 207, 209, 210, 2 Driver r. Ferrand, 1 Russ. & M. 681 Druce, He, 94 L. T. Jo. 583. V. Denison, 6 V. 385 . Druitt V. Willens, 23 L. R. Ir. 436 Druiumoiul, lie, (1891) 1 Ch. 524 ; 60 Drurv v. D., 4 Bro. Ch. 506, note (o) . V. Scott, 4 Y. & C. 264 . V, Smith, 1 P. ^V. 404 Ducknianton v. D., 5 H. & N. 219 ; 29 Duddy t: Gresham, 2 L. R. Ir. 442 Dui'aiir v. Tlie Professional L. A. 0., 817 Duffield V. Ciirrie, 29 B. 284 . r. Elwes, 1 Bli. (X. S.) 543 L. J. Ch. L. J. Ex 25 B. 599 258 132 27 L. J. (X. S Duffin V. D., 62 L. T. R. 615 Duffy's T., Ee, 28 B. 386 . Dugdale, Re, 38 C. D. 176 ; 57 L. J. Ch. 634 . V. D., 14 Eq. 234 ; 41 L. J. (X'. S.) Ch. 565 . Duggan V. Kellv, 10 Ir. Eq. R. 295, 473 . Du Hourmalin v. Sheldon, 1 B. 79 ; 19 B. 389 . Duke of Beaufort v. Berty, 1 P. W. 704 . Bolton V. Williams, 4 Bro. Ch. 297 ; 7 R. R. 285 Brunswick v. King of Hanover, 2 H. L. Cas. 1 Cleveland's Estate; Re, (1895) 2 Ch. 542 ; 65 L. J Dorset v. Serj. Girdler, Pr. Ch. 531 Hamilton v. Mohun, 1 P. ^Y. 121 ; 2 Vern. 652 St. Alban's v. Beauclerk, 2 Atk. 636 . Dumble, Re, 23 C. D. 360 ; 52 L. J. Ch. 631 Dummer v. Pitcher, 2 My. & K. 262 . Duncan r. Campbell, 12 Si. 616 V. Cannon, 18 B. 128 ; 23 L. J. fX. S.) Ch. 265 V. Dixon, 44 C. D. 211 ; 59 L. J. Ch. 437 . V. D., 27 B. 386 . V. Howell, 2 V. jun. 81 r. Watts, 16 B. 204 Duncombe v. Davis, 1 Ha. 195 V. Greenacre, 28 B. 472 578 . 169, 63 674, 683 . 620 . 704 397, 405 . 814 560, 571 Ch. 114, 115 . 876 398, 399, 402, 403, 404, 408, 410, 411, 412 11 L J. (X. S.)Ch. 18 30 L. J. (X. S.) Ch 32 L R. R. 33 Dundas v. Wolfe- :\Iurray, 1 H. & M. 425 Dunk V. Fenner, 2 Russ. & M. 557 Dunkley v. D., 2 De G. M. & G. 390 Dunlop, Re, 21 C. D. 583 . Dunnage v. White, 1 Swans. 137 ; 18 Dunne v. Boyd, 8 Ir. R. Eq. 609 Dunnill, Re, 6 Ir. R. Eq. 322 . Diinster v. Glennall, 3 Ir. Ch. Rep. 47 Durand v. D., I'lJag. Ec. 760 ; 2 Cox, 207 Durand's T., Re, 8 W. R. 33 . . . Duraut v. Titley, 7 Price, 557 ; 21 R. R. 773 Durham r. Crackles, 8 Jur. (X. S.) 1174 ; 32 L. J Durour v. ]\Iotteux, 1 V. 320 ... Durrant, Re, 18 C. D. 106 .... V. Friend, 5 De G. & S. 343 ; 21 L. J. Dutton V. Thompson, 23 C. D. 278 ; 52 L. J. Ch Dve V. D., 13 Q. B. D. 147 ; 53 L. J. Q. B. 442 Dver V. Bessonett, 4 Ir. Ch. R. 382 . -^— V. D., 34 B. 504 ; 34 L. J. (X. S.) Ch. 513 411 . 636 . 806 . 50 . 554, 568 340, 379, 829 . 474, 522 . 798 . 779 Ch. 29 . 858 . 171 251, 273, 573 866, 870, 874 . 857 429, 788, 792 . 651 . 167 . 503 791, 838, 876 . 188, 192 . 841, 843 62, 66 413 ; 29 B. . 631, 639 J. (X. S.) Ch. 151 . 855 . 13 . 640 27, 66 232, 238, 242 405, 406, 411 . 715 . 119 . 587, 590 . 122 . 590, 611 (X. S.)Ch. 111...634, 635, 636 . 37 1, 377, 387 . 165, 358 (X. S.) Ch. 353 . 820 651 . 268, 272, 282 . 661 . 843 . 367, 368 xl TABLE OF CASES Dver r. Paynter, 33 W. R. 80G . Dyke v. Stephens, W. N. (1885) 177 Dvose V. D., 1 P. W. 30,") . PAGE 207 742 839 E. Eager, Be, 22 C. D. 86 ; 52 L. J. Ch. 56 779 Earl V. FeTiis, 19 B. 67 ; 24 L. J. (N. S.) Ch. 20 ... . 666 Earl of Chesterfield's Trusts, Be, 24 C. D. 643 ; 52 L. J. Ch. 958 . 857 Darlington v. Bcjwes, 1 Eden. 270 172 Oxford's Case, 1 Ch. 1 471 Plymouth v. Lewis, 2 Dick. 861 . . . . .501 PoVtniore v. Tavlor, 4 Si. 182 311, 312 Thoniond v. Earl of Suffolk, 1 P. W. 462 .... 822 Westmeath r. Countess of W., . J ac. 135 586 Earl's Trust, Be, 4 Kav & J. 673 810 Earle v. Bellingham, 24 B. 445 ; 27 L. J. (N. S.) Ch. 545 . . 804, 848 ■ V. Hopwood, !i C. B. (N. S.) 566 ; 30 L. J. (N. S.) C. P. 217. ..145, 149 Earlom v. Saunders, Amb. 241 ....... 335, 345 Early r. Beubow, 2 Coll. 342 ; 15 L. J. (N. S.) Ch. 169 . . .874 V. E., 16 C. D. 214 (n.) 27 . V. Middleton, 14 B. 453 874 East V. Cook, 2 Y. 30 430 Eaton, Be, 70 L. T. 761 79, 86, 88 Eavestaffe v. Austin, 19 B. 591 843 Economic Fire Office, Be, 12 Times L. R. 142 467 Eddel's Trusts, Be, 11 Eq. 559 ; 40 L. J. (N. S.) Ch. 616 . . . 856 Eddowes v. Argentine, &c., 63 L. T. 364 . . . . . . 674 Eddystone Marine, &c. Co., Be, (1893) 3 Ch. 13 ; 62 L. J. Ch. 742 . 452, 464, 466 Eden v. Naish, 7 C. D. 781 ; 47 L. J. Ch. 325 241 . V. Ridsdales, &c. Co., 23 Q. B. D. 368 ; 58 L. J. Q. B. 579 . . 283 Edes V. Brereton West, Car. t. Hardw. 348 503 Edraondson v. Crosthwaite, 34 B. 30 832 Edmunds r. Townshend, 1 Aust. 93 645 Edward Oliver, The, 1 L. E. Ad. & Ex. 379 ; 36 L. J. Ad. 13 . .67 Edward v. Cheyne, 13 App. C. 384 693 Edwards v. Alrey, 2 Ph. 37 ; 15 L. J. (N. S.) Ch. 404 .. . 677 r. Browne, 2 Coll. Ch. R. 100. ..309, 311, 313, 315, 317, 318, 325 r. Burt, 2 De G. M. & G. 55 ; 22 L. J. (N. S.) Ch. 215 . 311, 315, 317, 318, 323 V. Carter, (1893) A. C. 360 ; 63 L. J. Ch. 100 . 326, 441, 443 V. Hall, 11 Ha. 23 . 790 V. Jones, 14 W. R. 815 662 V. , 1 My. & C, 233 ; 5 L. J. (N. S.) Ch. 194 . . 404 V. Martyn, 17 Q. B. 693 ; 21 L. J. (N. S.) Q. B. 86 . . 696 V. Morgan, 1 Bli. (N. S.) 401 441 V. Tuck, 23 B. 268 345, 348 V. Warden, 9 Ch. 495 ; 43 L. J. (N. S.) Ch. 644 . . . 779 V. Warwick, 2 P. W. 171 . 335, 336, 339, 345, 346, 361, 362 V. West, 7 C. D. 858 ; 47 L. J. Ch. 463 . . 341, 342, 354, 356 • V. Wise, Barn. C. 139 512 Eedes v. E., 11 Si. 569 ; 10 L. J. (N. S.) Ch. 199 . . . . 651 Elborough v. Ayres, 10 E(|. 367 ; 39 L. J. Ch. 601 . . . .147 Elcorn, Be, (1894) 1 Ch. 303 ; 63 L. J. Ch. 392 168 Elder, Ex p., 2 Madd. 286 693 V. Maclean, 5 W. R. 447 123, 127 Elderton, Be, 25 C. D. 220 ; 53 L. J. Ch. 258 . . . .517, 531 Ellender r. Wood, 32 Sol. Jo. 628 238 Elliot v. Fisher, 12 Si. 505 339, 359 Elliott V. Cordell, 5 Madd. 149 ; 21 R. R. 287 . . . . 635, 636 TO VOLUME I. xli Elliott V. Dearsley, 16 C. D. 322 V. Minto, 6 Madd. 10 . V. Remington, 9 Si. 502 .... V. Eichardson, 5 L. R. C. P. 744 ; 39 L. J. C. P 340 Elhs V. Barker, 7 Ch. App. 104 ; 41 L. J. (N. S.) Ch. 64 V. Bartnim, 25 B. 110 V. E., 1 Sch. & L. 1 . . [ ■ V. Eden, 25 B. 482 ; 26 L. J. (N. S.) Ch. 533 ". ^- , 23 B. 543 ; 26 L. J. (N. S.) Ch. 533 . V. Walker, Amb. 310 . . 783 Ellis's Trusts, Re, 17 Eq. 409 ; 43 L. J. (X." S.) Ch. 44 ' ' Ellison V. Elwin, 13 Si. 309 Elmore's Trust, Re, 6 Jur. (N". S.) 1325 Elsas V. Williams, 52 L. T. 39 ; 54 L. .1. Ch. 330 Elton V. E., 27 B. 633 ... . • V. — , 1 Wils. 159 . . . . ', Elwes V. Causton, 30 B. 554 ... Elwin V. E., 8 V. 547 ; 7 R. R , I a. K. 117 . Ehvorthy v. Bird, 2 S. & S. 372 ; 3 L. J. Cli. 190 V. Wickstead, 1 .J. & W. 69 . Emhlyn v. Freeman, Pr. Ch. 541 .... Emerson, ^xj)., 11 Times Rep. 218 ..." Emery v. Hill, 1 Russ. 112 ; 25 R. R. 11 Emery's T., Re, 32 W. R. 357 . Emily Sutton, Re, 2 Post. & Fin. 267 . Emuss V. Smith, 2 De G. & Sm. 722 . . Engelhardt v. E., 26 W. R. 852 ...".*. England, Re, 1 Russ. & M. 499 ..." V. Downs, 2 B. 522 ; 9 L. J. (Ch.) 313 " '. V. Layers, 3 Eq. 63 English, &c.. Trust v. Brunton, (1892) 2 Q. B. p. 8 ; 62 L, 311 Ch. 402 Eno V. Tatham, 4 Gif. 181 ; 32 L. J. (N. S.) (Jli Enohin v. Wylie, 10 H. L. C. 1 ; 31 L. J. (N. S., „... .„„ Erlanger v. New Soml.rero, &c. Co., 3 App. Cas. 1230 ; 48 . Erskine's T., Re, 1 Kay & J. 302 ; 24 L. J. (N. S.) Ch. 327 Espey V. Lake, 10 Ha. 261 ; 22 L. J. (N. S.) Ch. 336 . Este V. Smythe, 18 B. 112 ; 23 L. J. (N. S.) Ch. 705 . Ethel Brown, Re, 13 Q. B. D. 614 . Etty V. Bridges, 2 Y. & C. C. C. 494 ; 12 L. J. (X. S.) Ch. 4 Eugenie, The, 4 L. R. Ad. & Ec. 123 . European Bank, Re, 5 Ch. 358 ; 41 L. J. (N. S.) Ch. 217 Evans, Re, 4 Cr. M. & R. 2(15 ; 4 L. J. (N. S.) Ex. 201 V. Bagshaw, 8 Eq. 469 ; 39 L. J. Ch. 145 . V. Bali, 30 W. R. 899 .. . V. Bicknell, 6 V. 174 ; 5 R. R. 245 . V. Carrington, 2 De G. F. & J. 481 ; 29 L. J. (X. S V. Cheshire, Belt's Supp. to V. 300 . V. Chester, 2 M. & W. 847 ; 6 L. J. (X. S.) Ex. 194 V. Cockeram, 1 Coll. Ch. R. 428 V. Crosbie, 15 Si. 602 ; 16 L. J. (N. S.) Ch. 494 1'. E., 17 Si. 106 . . . . V. — 23 B. 1 ; 26 L. J. (N. S.) Ch. 193 . V. Jones, 2 Coll. Ch. R. 510 V. Llewellin, 2 Bro. Ch. 150 V. Rosser, 2 Hem. & M. 190 V. Tripp, 6 ]\Jadd. 92 V. Walker, 3 C. D. 211 . V. Wyatt, 31 B. 217 1 Cox. 333 ; 1 R. R. Evelyn v. E., 2 P. AV. 059 . . . . Everett v. E., 7 C. D. 428 ; 47 L. J. Ch. 36'; I'AGE 14, 30 . 752 . 646 . 148 238, 274, 282 . 380 552, 554 795, 814, 829 . 81 89, 790, 825, 828 . 711 i. J. Ch. 73 161, 163 . 84 . 239 . 2(»5 . 538 838, 843 . 344 . 602 . 648 371, 377 499, 527 . 775 . 166 . 497 34, 355, 356, 828 . 801 . 516 . 017 . 436 Q. B. 136...118, 119, 125 . 28 773 281 . 650 . 285 . 664 495, 525, 526 4. ..119, 122, 126 . 67 . 137 . 349 . 198, 199 . 340 . 117,458 Ch. 330 . 601 . 311,323 . 096 22 . 388 . 18, 21, 22 . ()82 . 80 308,313 . 562 795, 837 799, 800 20 8 810, 822 49 xlii TABLE OF CASES PAoa Everitt v. E., 10 Eq. 405 ; 39 L. J. Ch. 777 ... 268, 273 Ewart V. Chubb, 20 Eq. 454 ; 45 L. J. Ch. 108 . . . . 16fi, 647 Ewing V. Ad.lison, 7 W. E. 23 ; 4 Jur. (N. S.) 1034 . . . .567 V. Orr-Ewiug, 9 App. Cas. 34 ; 22 C. D. 456 ; 10 App. Cas. 453 ; 53 L. J. Ch. 435 750, 772, 773 Evre V. M'Dowell, 9 H. L. Cas. 619 115 -^^— V. Marsden, 2 Keen, 564 ; 7 L. J. (N. S.) Ch. 211 . . . 379 Fairclough v. Johnstone, 16 Ir. Ch. 442 Fairer v. Park, 3 C. D. 309 ; 45 L. J. Ch. 760 Falkland v. Bertie, 2 Vern. 333 . Falkner v. Grace, 9 Ha. 282 .. . Falls V. Elkins, 9 W. R. 861 Fane v. F., 20 Eq. 698 ; 45 L. J. Ch. 200 . Faquain v. Selwyn, Jac. 268 (ii.) Farington v. Parker, 4 Eq. 116 . Farley v. Turner, 26 L. J. (N. S.) Ch. 710 . Farraan, He, 58 L. T. 12 . Fanner v. ]\Iills, 4 Russ. 86 . . . Farquharson v. Cave, 2 CoU. Ch. R. 367 ; 15 L. J. (X. S.) Ch. 137... 405, 406 Floyer, 3 C. D. 109 ; 45 L. J. Ch. 750 Farrer v. Wiuterton, 5 B. 1 V. St. Catlierine's Coll. Camb., 16 Eq. 19 ; 42 L. J. Farrow v. Smith, W. N. (77) 21 . Faulkener v. Hollingsworth, 8 V. 558 Fawkes v. Gray, 18 V. jun. 131 ; 11 R. R. Fearns v. Young, 10 V. 184 ; 9 V. 553 168 Fearon v. Aylesford, 14 Q. B. D. 792 Feistel v. King's College, 10 B. 491 Fellow V. Jermyn, W. N. (77) 95 . 433 . 788 . 489 . 14 . 201 237, 244, 272 . 497 . 694 . 109 . 411, 413 . 842 (N. S.) Ch. 51 339 861 662 344 850 859 54 L. J. Q. B. 33...6U1, 604, 606, 607, 609 16 L. J. (N. S.) Ch. 339 . . 144 . 369 Feltham v. Clark, 1 De G. & Sm. 307 Fenner v. Taylor, 2 Russ. & M. 190 ; 5 L. J. Ch. 143 Fereges v. Robinson, Bunb. 301 .... Ferguson v. Douglas, 3 Pat. App. Cas. 503 . V. F., 6 Ir. R. Eq. 199 . Ferrand v. Prentice, Amb. 273 .... Festing v. Allen, 5 Ha. 575 .... V. Taylor, 3 B. & S. 217 ; 31 L. J. (N. S.) Q. (N. S.) Q. B. 41 Fettiplace v. Gorge.", 1 V. jun. 46 ; 1 R. R. 79 . Field V. Brown, 27 B. 90 ; 19 B. 176 . V. Evans, 15 Si. 375 V. Megaw, 4 L. R. C V. Moore, 7 De G. M. & G. 691 ; 25 L. J. (N. P. 660 M. & G. B. 36 V. Pickett, 29 B. 568 ; 30 L. J. (N. S.) Ch. 813 Field's Marriage, 2 H. L. Cas. 48 . . . Fielding v. Preston, 1 De G. & J Finch, Be, 23 C. D. 271 V. Shaw, 5 H. L. Cas. 905 ; 26 L. J. (N. S.) Ch 438 Firmin v. Pulham, 2 De G. & Sni, Fisher v. Brierley, 30 B. 265 V. Calvert, 27 AV. R. 301 . V F., 2 Keen, 610 ; 7 L. J. Fitch V. Weber, 6 Ha. 145 ; 17 L. Fitzen v. F., 2 Atk. 512 99, (N. S.) Ch. 176 J. (N. S.) Ch. 361 65 . 129 . 638 . . 3,7 . 773 . 810 . 846 . 852, 855 32 L. J. • 861 . 681, 706 368, 505, 507 . 713 . 107, 112 S.) Ch. 66...507, 508 385, 795 . 508 80, 788, 843 . 660 . 61 271, 314 . 876 . 113 18, 20, 33 379, 380 591, 592, 608 TO VOLUME 1. xliii Fitzgerald, Ee, 26 W. R. 53 ^- Chapman, 1 C. D. 563 ; 45 L. J C'li. 93 ■ V. F., L. R. 2 P. C. 87 ; 37 L. J. P. C. 44 V. Jervoise, 5 Madd. 25 ; 21 R. R. 268 V. Stewart, 2 Russ. & M. 457 . Fitzsimons v. F., 28 B. 417 Fitzwilliams v. Kelly, 10 Ha. 266 ; 22 L. J. (X. S ) Cl'i Flamank, Ex ij., 1 Si. (N. S.) 260 , Re, 40 C. D. 461 ; 58 L. J. Cb. 518 .' Flanagan v. F., 1 Bro. Ch. 50 . Flarty v. Odium, 3 T. R. 681 ; I R. R. 79l' Fleck, Ee, 37 C. D. 677 ; 57 L. J. Ch. 943 . Fleet V. PeiTins, 4 L. R. Q. B. 500 ; 38 L. J. Q. B. 25 Fleetwood, Be, 15 C. D. 594 ; 49 L. J. Ch. 514 . Fleming v. Armstrong, 34 B. 109 ■ V. Buchanan, 3 De G. M. & G. 976 ; 22 L. J • V. Crouch, ^Y. X. (1884) 111 . Fletcher, Ee, 38 C. D.'373 ; 57 L. J. Ch. 1032 V. Ashhurner, 1 Bro. Ch. 497 V. Chapman, 3 Bro. P. C. 1 . • V. F., 2 Cox, 107 . . . . . ■ V. Robinson, Pr. Ch. 250 ; 2 P. W. 709* V. Rodgers, 27 W. R. 97 V. Stevenson, 3 Ha. 370 ; 13 L. J. (N. S.) Ch Howard, (1893) 2 Ch. 54 ; 62 L. J. Ch. 804 Flint 37 V. Walker, 5 Moo'. P. C. C. 179 . V. Woodin, 9 Ha. 618 ; 22 L. J. (X. S.) Ch. 92 Florence, &c. Co., Exp. Moor, 10 C. D. 530 ; 48 L. J. Cii Flower v. F., 20 W. R. 231 ■ V. Sadler, 10 Q. B. D. 572 .. ! Foden v. Hewlett, 1 Vern. 354 .... Foley V. Burnell, 1 Bro. Ch. 279 Follett V. Tyrer, 14 Sim. 125 ; 13 L. J. (X^. S.) Ch. 441 Fonereau v. Poyntz, 1 Bro. Ch. 471 Fontaine v. Tyler, 9 Price, 94 ... . Foone v. Blunt, Cowp. 467 Forbes v. Adams, 9 Si. 462 ; 8 L. J. (X. S.)' Ch. 116 V. F., 18 B. 552 ; 23 L. J. (X. S.) Ch. 422 • V. Lawrence, 1 Coll. 495 .... ■ V. Richardson, 11 Ha. 354 ■ V. Steven, 10 Eq. 178 ; 39 L. J. Ch. 485 .' Ford, Ee, 32 B. 621 ; 33 L. J. (X. S.) Ch. 180 . V. Battey, 17 B. 303 ; 23 L. J. (X. S.) Ch. 225 . r. Fleming, 2 P. W. 469 ; 1 Eq. Ca. Ab. 302 . 785, 7 Fordham v. Wallis, 10 Ha. 230 ; 22 L. J. (X. S.) Ch. 548 Forrest v. Prescott, 10 Eq. 545 . Forrester v. Cotton, 1 Eden, 531 . V. Leigh, Amb. 171 Fossi). F., 15 Ir. Ch. R. 215 Foster, Ee, 45 C. D. 629 ; 60 L. J. Ch. 175 • , Ee, 7 Ir. R. Eq. 291 V. Blagden, Amb. 704 V. Cockerel], 3 CI. & Fin. 456 . V. Cooke, 3 Br. Ch. 247 . I'. Denny, 2 Qi. C. 237 . V. F., 1 C. D. 588 ;. 45 L. J. Ch. 301 V. Lay, 2 Scott, "438 ; 2 Bing. X. C. 269 ; 5 L. J. c. P. i7 . . . : V. Mackinnon, L. R. 4 C. P. 704 ; 38 L. J. C. P. 310 V. Roberts, 29 B. 407 ; 30 L. J. (X. S.) Ch. 666 1016 (^' 202 PAGE . 56 . 166 . 648 . 351, 3.52 . Ill . 427 . 788, 830 . 371 . 694 330, 374, 377 . 142 . 31 . 161, 630 . 788 . 722 S.) Ch. 886... 33, 47, 687 206, 208, 209 . 822 . 374 . 381 588, 590, 592, 593 . 335 . 753 . 746 . 58 . 112 . 455 . 603 . 282 . 549 . 860 . 335 . 836 792, 793, 809 . 334 . 358 . 776 . 870 804, 805 349, 350, 351 640, 643 . 805 90,791, 793 . 48 12, 19 . 425 38, 51, 54 . 693 88, 857 . 112 . 54 H9, 130 52 501, 520 213, 369, 370 (X.iS.) . 860 . 464 311, 317 xliv TABLE OF CASES 4 L. J. Ch 27 Foster v. Smith, 1 Ph. 629 ; 1 Y. & C. C. C. 193 V. Tyne Pontoon E. Co., 63 L. J. Q. B. 50 V. Vassall, 3 Atk. 589 ... . Fourdrin v. Gowdey, 3 My. & K. 383 ; 3 L. J. (N. S.) Fowke V. Draycott, 29 C. D. 1003 ; 54 L. J. Cb. 977 Fowler's Trusts, Re, 27 B. 342 . Fowler v.Y.,Z P. W. 355 . , 4 De G. & J. 250 . V. Roberts, 2 Gif. 226 r. Scott, 19 W. R. 972 . V. Willoiighby, 2 S. & S. 354 ; V. Wyatt, 22 B. 232 Fox, lie, 5 Ir. Ch. R. 541 . V. Charlton, 10 W. R. 506 . V. Mackreth, 1 Bro. Ch. 424 ; 2 R. R. 55 1-. Wright, 6 Madd. Ill ; 22 R. R. 251 Foy V. F., 1 Cox, 164 Frampton v. F., 4 B. 287 . France v. Clark, 26 C. D. 257 ; 53 L. J. Ch. 58^ Francis v. Brooking, 19 B. 347 . Frank v. F., 3 My."& C. 171 .. . ■ V. —, 1 Ch. Cas. 84 . V. Standish, 1 Bro. Ch. 588 (n.) Franks v. Bollams, 3 Ch. 717 ; 37 L. J. Ch. 148 Frape, Re, (1893) 2 Ch. 284 ; 62 L. J. Ch. 473 Fraser, i?e, 2 P. D. 183 , (1892) 2 Q. B. 633 . , 22 C. D. 827 ; 52 L. J. Ch. 469 V. Byng, 1 Russ. & M. 90 Fray v. Vowles, 1 Ell. & Ell. 389 ; 28 L. J. (N Fravne v. Taylor, 33 L. J. Ch. (N. S.) 228 . Freani v. Bowling, 20 B. 624 ; 4 Eq. 145 (n.) Frederick v. Aynscombe, 1 Atk. 392 . . V. F.,' 1 P. W. 721 .. . Freeman v. Cooke, 2 Ex. 654 ; 18 L. J. (N. S.) R. 225, B. 232 Fairlie, 11 Jur. 447 ; 17 R Ellis, 1 Hem. & M. 758 V. Simpson, 6 Si. 75 ; 2 L. J. (N. S.) Ch S.l Freer, Re, Freer v. F., 22 C. D. 622 ; 52 L. J. Ch Freke v. Barrington, 3 Bro. Ch. 284 . Freme v. Brade, 2 De G. & J. 582 ; 27 L. J. (N French v. Chichester, 2 Vern. 568 Freshfields, T., Re, 11 C. D. 198 Fretwell v. Stacv, 2 Vern. 434 . Frewen, Re, 60 L. T. 953 . V. F., 10 Ch. 610 . Frith r. Forbes, 4 De G. F. & J. 409 ; 32 L. J. (N. S.) Ch. 10 Fry V. Capper, Kay, 163 • V. Lane, 40 CD. 312 58 L. J. Ch. 113, V. Noble, 20 B. 598 ; 25 L. J. (X. S.) Ch. 144 V. Porter, 1 Ch. Ca. 138 Fryer v. Butter, 8 Si. 442 V. Morris, 9 V. 360 ; 7 R. R. 222 Fulham v. Macarthy, 1 H. L. Cas. 703 Fulica, The, W. N. (1880) 172 . Fulton V. Andrews, 7 L. R. H. L. 469 ; 44 L. J. (N. Furlev v. Hyder, 42 L. J. Ch. 626 .. . FurnJaux v. Rucker, (1879) W. N. 135 Furnival v. Bogle, 4 Russ. 142 ; 6 L. J. Ch. 91 . PAGE . 803 . 465 . 770 Ch. 171. ..13, 34, 340 ... 631, 632, 633, 640 423, 426, 436, 438 . 727 . 234 . 745 212, 369, 370 21, 798, 828 . 279 . 58 . 425 . 283 315, 323 . 869 91, 592, 595, 638 127 639 358 234 421 . 358 . 276 . 703 . 468 . 776 872, 873 . 238 . 342 . 21 . 334 . 474 450, 451, 452 462, 468 . 634 , 33 . 852 . 825 . 422 Ch. 697 . . 310 13, 16 . 119 . 841 . 125 341, 371 . 107 . 715 . 266, 283, 308, 310, 314, 319, 320, 322, 323, 324, 325 . 222 556, 568 77, 79, 88 790, 821 . 279 . 743 287 . 87 . 864 239, 742 S.)Q X. 114 141 301 S.)P. & M. 17 TO VOLUME 1. xb Fursaker v. Robinson, Pr. Cli. 47^ Fynn, Re, 2 De G. & Sm. 481 . Fytche v. F., 19 L. T. (N. S.) 343 PAGE . 226 495, 498, 515, 516, 517 422, 430, 441, 442, 445 G. G. (an infant), Ee, (1892) 1 CIi. 292 ; 61 L. J. Cli. 490 G. V. L., (1891) 3 Oh. 120 ; 60 L. J. Ch. 705 G. V. M., 10 App. Cas. 186 Gaftee, lie, 1 Mac. & G. 541 ; 19 L. J. (N. S.) Cli. 179 Gala van v. Dunne, 7 L. R. Ir. 144 Gale V. G., 21 B. 349 V. Lewis, 9 Q. B. 730 ; 10 L. J. (N. S.) Q. B. 11 V. Lindo, 1 Vern. 475 .... Gall V. Fenwdck, 43 L. J. Ch. 178 Gallard v. Hawkins, 27 C. D. 298 ; 53 L. J. Ch. 834 Gallini r. Noble, 3 Mer. 691 ... . Galnioye 7. Cowan, 58 L. J. Ch. 769 . Galton V. Hancock, 2 Atk. 437 .... Games, Kc p., 12 C. D. 314 Gandy v. G., 7 P. D. 80 ; 30 C. D. 57 ; 51 L. J., P. D Garbut v. Hilton, 1 Atk. 381 Garbutt V. Fawcus, 1 C. D. 155 ; 45 L. J. Cli. 130 Gardener v. Ennor, 35 B. 549 .... Garder v. Adams, 12 Wend. R. 297 . Gardiner, Re, 20 Q. B. D. 249 ; 57 L. J. Q. B. 149 V. Fell, 1 J. eSt W. 22 ; 20 R. R. 2C8 . V. Stater, 25 B. 509 . Gardner v. Blanc, 1 Ha. 381 V. Cazenove, 1 H. & X. 423 ; 26 L. J V. G., 1 Gif. 126 ; 28 L. J. (N. IS.) Ch V. Garrett, 20 B. 469 V. Hatton, 6 Si. 93 ... V. Lachlan, 4 My. & C, 129 ; 5 L. J. (N I'. Marshall, 14 Si. 575 . V. Parker, 3 Madd. 184 ; 18 R. R. 213 V. Walker, 1 Stra. 503 . Garforth v. Bradley, 2 V. 675 . Garnett, Re, 31 C. D. 9 Re, 33 C. D. 300 ; 55 L. J. Ch. 773 V. Acton, 28 B. 333 (X. S, 903 - -Orme, Re, 25 C. D. 595 ; 53 L. .J. Ch. 196 S.) Garret v. Pritty, 2 Vern. 293 ; 3 Mer. 120 (n.) Garrett v. Wilkinson, 2 De G. & Sm. 244 . Garth v. Meyrick, 1 Bro. Ch. 30 . Garthstore v. Chalie, 10 V. 13 ; 7 R. R. 311 Gaskell V. G., 6 Si. 643 .... Gaskell's Trusts, 11 Jur. (N. S.) 780 . Gaskin v. Rogers, 2 E(i. 284 Gaston v. Frankum, 2 Ue G. & Sm. 501 Gaters v. Madeley, 6 M. & W. 423 ; 9 L. .J. (N. S. ] E Gathercole v. Sniith, 17 C. D. 1 ; 50 L. J. Ch. 67l' Gaudet Freres, Re, 12 C. D. 882 ; 48 L. J. Ch. 818 Gaunt V. Taylor, 3 Man. & Gr. 886 ; 3 Scott's N. R. ' Gawden v. Diaper, 2 Vent. 217 .... Gawler v. Standerwick, 2 Cox, 15 Gavre v. G., 2 Vern. 538 ..... Geek, Re, (1893) W. N. 161 .... Gee V. Mahood, 11 C. D. 891 ; 9 C. D. 151 ; 48 L. J. Ch. 05 & A Ex Ch. 3 17 00 41 514, 525. 719, 532 530 454 '20 . 113 . 821 . 129 462, 574 25, 28 . 389 . 795 079, 680 33, 34, 48 . 106 598, 604, 605, 606, 607, 609, 610 . 538 r41, 744 274 146 673 435 5.^8 514 105 694, 695 . 746 790, 821 . 128 . 639 403, 404, 410 . 649 . 650 413, 660 . 342 . 348 . 561 . 270 . 874 . 849 . 200 . 722 54, 798 . 691 . 157 . 142 241, 242 745 611 845 808 776 802. 803 xlvi TABLE OF CASES General Company for the Promotion of Land Credit 363 ; 39 L. J. Ch. 737. Estates Co., Re, 3 Ch. 758 .. . Finance, &c., Co. v. Liberator Permanent B. S Genery v. Fitzgerahl, Jac. 468 ; 23 R. E. 121 . Genese, Re, 16 Q. B. D. 700 ; 55 L. J. Q. B. 118 Gent, Re, 40 C. D. 190 ; 58 L. J. Ch. 162 . V. Harris, 10 Ha. 383 George, Re, 5 C. D. 837 ; 47 L. .J. Ch. 118 . V. G., 1 P. & D. 544 ; 38 L. J. P. & M. 34 Gerrard r. C'Ri-illy, 3 Dr. & Wa. 414 . Gervis v. G., 14 Si. 654 ; 16 L. J. (K S.) Ch. 422 Gethiu V. Allen, 23 L. R. Ir. 236 Giacometti v. Prodgers, 8 Ch. 338 Gibbins v. Eyden, 7 Eq. 371 ; 38 L. J. Ch. 377 . Gibbons v. Hill, 1 Dick. 324 ... . V. Kibbey, 10 W. R. 55 . Gibbs V. Harding, 5 Ch. 338 ; 39 L. J. Ch. 374 . V. Haydon, 30 W. R. 726 . V. Ongier, 12 V. 416 ; 8 R. R. 348 . V. Rumsey, 2 V. & B. 294 ; 13 R. R. 88 . Gibson, Re, 2 Eq. 669 ; 35 L. J. 596 . V. Bott, 7 V. 89 ; 6 R. R. 87 . V. Dickie, 3 M. & S. 463 .... V. Jeyes, 6 Ves. 266 ; 5 R. R. 295 V. Russell, 2 Y. & C. C V. Seagrim, 20 B. 614 ; Giddings v. G., 3 Russ. 241 . Gitfard r. Williams, 5 Cli. 546 Gilbert v. Endean, 9 C. D. 259 V. Lewis, 1 De G. J. & S C. 104 24 L. J. (X. S.) Ch. 7 3D L. J. Ch. 735 58 ; 32 L. J. (N. S.) Ch V. Smith, 2 C. D. 686 ; 11 C. D. 82 ; 48 L. J Gilliertson v. G., 34 B. 354 Gilchrist v. Cator, 1 De G. & Sm. 188 Gillaume r. Adderley, 15 V. jnn. 384. Gillespie v. Alexander, 2 S. & S. 145 ; 3 L. J. Cn. 52 r. Croker, 16 Ir. Ch. R. 182 . Gillet V. Wray, 1 P. W. 284 ... . Gilliat V. G., 28 B. 481 ; 2 Phill. 222 . Gillies V. Longlands, 4 De G. & Sm. 372 ; 20 L. J. (X Gillman v. Corbutt, 61 L. T. 281 Gipps V. Hume, 2 Johns. & H. 517 ; 31 L. J. (N. S.) Ch. 37 Gittius V. Steele, 1 Swan. 24 ... . -Gladstone v. G., 1 F, D. 442 ; 45 L. J. P. D. & A. 82 V. The Ottoman Bank, 1 H. & M. 505 ; 32 Ch. 182 229 Glaister v. Hewer, 8 V. 207 .... Glanvill, Re, 31 C. D. 532 ; 55 L. .J. Ch. 325 . V. G., 2 Mer. 38 ; 16 R. R. 142 . Gleadovvr v. Leetham, 22 C. D. 269 ; 51 L. J. Ch. 102 Gleaves v. Paine, 1 De G. J. & S. 87 ; 32 L. J. (N. S. Glissen v. Ogden, 2 Atk. 258 ... . Glover, J?a;p., 4Dowl. 291 V. Hall, 16 Si. 568 ; 18 L. J. (X. S.) Ch. 3,)o V. Strothoff, 2 Bro. C. C. 34 . Glyn V. Baker, 13 East, 509 .... V. Hood, 1 De G. F. & J. 334 ; 29 L. J. (X. S.) Ch. 204 Glynn v. Scawen, Rep. t. Finch, 239 . Oodber v. Laurie, 10 Price, 152 .... R. Ch. A. . 771 . 135, 136 10 C. D. 15 . 484 . 857 . 695 . 524 . 640, 641 852, 853, 854 . 605 . 324 . 54 . 388 . 650 . 27, 34, 51 . 790 . 644, 646 597, 600, 602 . 200 . 56 . 387 . 811, 82.i 87, 849, 859, 860 . 573 . 274 . 279, 468 57, 58 . 441 . 198 237, 239, 242 347 . 662, 663, 665 Ch. ;^-)2 . 211, 214 15, 22 635, 640, 652 790, 794, 828 . 872 . 403 . 557, 558 . 513, 795 S.) Ch. 441 . 335, 360, 364 462 . 601 12,21 . 603 L. J. (X. S.) Ch. 712, 779 644 '22 . 856 . 861 633, 641 . 270 . 497 . 661 . 774 . 134 . 129 174, 176 . 645 TO . VOLUME I. xlvii •Gocldard v. Carlisle, 9 Price, T69 ; 23 R. E. 654 V. Snow, 1 Russ. 485 Godden, Ke, (1893) 1 Ch. 292 ; 52 L. J. Cli. 469 V. Crowliurst, 10 Si. 642 •Godfray v. G., 12 Jur. (N. S.) 397 Godfrey, Re, 71 L. T. 568 ; 72 L. T. 8 V. Littel, 1 Russ. & M. 59 ; 2 Russ. & ]\I Godfrey's T., He, 1 Ir. R. Ehouse, 2 Mer. 487 709, 712, 713 V. J., 2 Cox, 35 873 V. Lomas, 23 W. R. 744 214 r. Petrie, 10 V. jun. 165 ; 7 R. R. 368 .... 770, 771 JacoV)S V. Amyatt, 1 Madd. 376 (n.) 635, 665 Jacomb v. Turner, (1892) 1 Q. B. 47 221 Jacques V. C;hambers, 2 Coll. 435 ; 15 L. J. (X. S.) Ch. 225 . 814, 830 Jakemaii's T., Re, 23 C. D. p. 372 ; 52 L. J. Ch. 363... 128, 168, 358, 684, 705 James v. Couchman, 29 C. D. p. 217 ; 54 L. J. Ch. 838 . . . 273 V. Dean, 11 V. 383 ; 8 R. R. 178 826, 827 V. Holmes, 31 L. J. fX. S.) Ch. 567 281 V. Kerr, 40 C. D. 457 ; 58 L. J. Cii. 355. ..146, 147, 148, 149, 275, 308, 310, 314, 318,319, 320,323 r. Morgan, 1 Lev. Ill 309 Jarratt v. Aldam, 9 Eq. 463 ; 39 L. J. Ch. 342 . . ! . ! 287 Jarvis v. Duke, 1 Vern. 19 554 Jauncy v. The A.-(=f., 3 Gif. .308 55 Jay V. Robinson, 25 Q. B. D. 467 ; 59 L. J. Q. B. 367 . 678, 700, 718 Jebb I'. Tugwell, 20 B. 84 ; 7 De G. M. & G. 663 ; -irj L. J. (N. S.) Ch. 109 78,82 Jee V. Tliurlow, 2 B. & C. 547 ; 2 L. J. K. B. 81 . . . 592 609 Jeffery, /.'e,(1895) 2 Ch. 312 ; 64 L. J. Ch. 830 .... 845,864 Jeflery's T., 2 Ef[. 68 ; 35 L. J. Ch. 42J .... 794, 838, 839 Jetiieys v. Conner, 28 B. 328 87 V. J., 3 Atk. 120 ! 793 Iviii TABLE OF CASES Jeffrys i'. Vanleswarstwarth, Barn. 144 .... Jenkins. Pi,e, 5 Russ. 183 . 'v. Jones, 2 Eq. 323 ; 35 L. J. Ch. 520 . Jenkinson, Re, 15 Q. B. D. 441 ; 54 L. J. Q. B. 601 . V. Harcourt, Kay, 688 ; 23 L. J. (N. S.) Ch. 785 Jenner v. Fincli, 5 P. D. 107 ; 49 L. J. P. D. & A. 25 V. J., 2 De G. F. & J. 359 ; 30 L. J. (N. S.) Ch. 201... 24 V. Turner, 16 C. D. 188 ; 50 L. J. Ch. 161 Jenney v. Andrews, 6 Madd. 264 ; 23 R. R. 216 . Jennings r. Foster, W. N. (1884) 200 .... V. Rigby, 33 B. 198 ; 33 L. J. (N. S.) Ch. 149 . I'AGK 480, 523 . 159 . 825 109, 128 24 . 873 i, 244, 270, 271, 314 554, 555 33, 686 . 217 Jenny v. Macintosh, 33 C. D. 595 Jermj'n v. Preston, 13 Si. 356 Jernegan v. Baxter, 6 Madd. 32 . Jervoisev. Duke, 1 Vern. 19 V. J., 17 B. 566 ; 23 L. J. (N. S.) Ch. 703 Jessop V. Blake, 3 Gif. 639 . Jessopp V. Watson, 1 My. & K. 665 ; 2 L. J. (N. S. Jewson V. Moulson, 2 Atk. 420 .... Jodrell V. J., 9 B. 45 ; 15 L. J. (N. S.) Ch. 17 . Johnes v. Lockhart, 3 Bro. Ch. 383 (n.) Johnson, Re, 20 C. D. 389 ; 51 L. J. Ch. 503 . , Re, (1891) 3 Ch. 51 ; 60 L. J. Ch. 499 V. Arnold, 1 V. 169 . V. Child, 4 Ha. 87 V. De la Creuze, 1 Bro. Ch. 105 . V. Gallagher, 3 De G. F. & J. 502 ; 30 L. J. 657, 666, 685, 68 . V. J., 14 Si. 313 V. J., 35 C. D. 349 ; 56 L. J. Ch. 326 . V. J., 1 J. & W. 472 ... . r. J., 2 Coll. Ch. R. 441 .. . ■ V. Lander, 7 Eq., 228 ; 38 L. J. Ch. 229 • V. Mills, 1 V. 282 • V. Moffat, W. N. (1876)21 . . V. Routh, 27 L. J. Ch. 305 . V. Smith, 1 V. 314 • V. Telfourd, 1 Russ. & M. 244 ; 8 L. J. Ch V. Woods, 2 B. 409 ; 9 L. J. (N. S.) Ch. 244 Johnston v. Moore, 27 L. J. Ch. 453 .... , Re, (1894) 3 Ch. 208 ; 63 L. J. Ch. 753 V. O'Neill, 3 L. R. Ir. 476 . Johnstone, Re, 14 C. D. 162 ; 49 L. J. Ch. 596 . . , Re, 26 C. D. 538 ; 53 L. J. Ch. 645 . V. Baber, 6 De G. M. & G. 439 ; 25 L. J. (N. S.) Ch. 899 745 775 369 645 551 425, 428, 728, 729 . 166 Ch. 197... 349, 358, 378 382 . 649 246, 727 . 665 . 244 . 717 345, 346 34, 51 . 846 (N. S.) Ch. 298 688, 689, 690, 703 . 792 664, 671, 683, 705 . 637, 638 . 78, 79, 84 . 166, 640 . 846 . 743 . 77 . 402, 403 94 . . . 436 . 54 . 82 . 815, 816 . 855 . 827 821, 861 . . . 199, 204 521, 530, 572 216 245 V. Beattie, 10 CI. & Fin. 42 . . . V. Cox, 16 C. D. 571 ; 19 C. D. 17 ; 50 L. J. Ch V. Harrowby, 1 Johns. 425 ; 29 L. J. (N. S.) Ch Jollands v. Burdett, 10 Jur. (N. S.) 349 Jones, Ex. p., 18 C. D. 109 ; 50 L. J. Ch. 673 , Re, (1895) 2 Ch. 719 ; (1896) 1 Ch. 222 ; 65 L. J. Ch. 191 , Re, (1893) 2 Ch. 478 ; 62 L. J. Ch. 996 ij. Bruce, 11 Si. 221 .... V. Davies, 8 C. D. 205 ; 47 L. J. Ch. 654 V. Farrell, 1 De G. & J. 208 V. Foxall, 21 L. J. Ch. 725 ; 15 B. 388 r. Geddes, 1 Ph. 725 ; 15 L. J. (N. S.) Ch. 65 V. Gibbons, 9 V. 409 ; 7 R. R. 247 . V. Green, 5 Eq. 555 ; 37 L. J. Ch. 603 124, 125 55, 876 . 711 326, 469 . 276 . 203 15, 21 . 353 . 109, 130 245, 246, 859 . 752 . 128, 130 . 825 TO VOLUME I. lix PAGE Jones V. Harris, 9 V. 486 ; 7 R. R. 282 (590 V. J., 1 Q. B. D. 282 ; 45 L. J. (). B. 166 . 558, 559, 562, 563, 565 ij. — , 8 Si. 633 129 V. Jukes, 2 V. jun. 518 ; 2 R. R. 308 744 V. Lloyd, 18 Eq. 265 ; 43 L. J. (N. S.) Ch. 826 ... 445 V. Mitchell, 1 !S. & S. 294 379, 386 V. , 2 Ph. 710 ; 1 L. J. Ch. 763 805 V. Ogle, 14 E(i. 419 ; 8 Ch. 192 ; 42 L. J. (N. S.) Ch. 334... 830, 834, 835 v. Powell, 9 B. 345 511,514,521 V. Ricketts, 31 B. 130 ; 31 L. J. (N. S.) Ch. 753 . 311, 317, 323 V. Robinson, 3 De G. M. & G. 911 205, 206 V. Salter, 2 Russ. & M. 208 718 V. Selby, Pr. Ch. 300 . . . 397, 402, 403, 404, 409, 411 V. Southall, 32 B. 31 ; 32 L. J. (X. S.) Ch. 130... 789, 794, 821, 822, 823 V. Starkev, 16 Jur. 510 V. Suffolk, 1 Bro. Ch. 528 .... V. The Consolidated A. Co., 26 B. 256 ; 28 L. 66 V. Waite, 9 CI. & Fin. 101 Jope V. Morshead, 6 B. 213 ; 12 L. J. (N. S.) Ch. 190 Jordan, Ee, 55 L. J. Ch. 330 . 112 . 567, 568 (X. S.) Ch. . 114 . 594 . 198, 201 . 724 V. Money, 5 H. L. Cas. 185 ; 23 L. J. (X. S.) Ch. 865.. .450, 452, 462 Jordon v. Holkan, Amh. 209 Joseph V. Lyons, 15 Q. B. D. 280 ; 54 L. J. Q. B. 364 Jubber v. J., 9 Si. 503 Judd V. Pratt, 13 V. 168 ; 15 V. 390 . Judkins, Ke, 40 Sol. Jo. 729 ... . Jump V. J., 8 P. D. 159 ; 52 L. J. P. D. & A. 71 Jupp, Re, 39 C. D. 151 ; 57 L. J. Ch. 774 . Justice V. Wynne, 12 Ir. Ch. Rep. 289 550, 555, 562, 563 . 631 . 563 425, 436 26, 530, 854, 855 601, 609, 610 . 651, 672 . 115 K. Kampf v. Jones, 2 Keen, 756 ; 7 L. J. (X. S.) Ch. 63 Kane v. K., 16 C. D. 207 ; 50 L. J. Ch. 72 . . . Karberg's Case, (1892) 2 Ch. J. 13 ; 61 L. J. Ch. 741 Kay V. Johnson, 21 B. 538 Kaye, Ee, 1 Ch. 387 Keane, Ee, 12 Eq. 115 ; 40 L. J. (X. S.) Ch. 617 Kearsley v. Woodcock, 3 Ha. 185 Keat V. Allen, 2 Vern. 588 Keays v. Lane, 3 Ir. R. Eq. 1 Keeling v. Brown, 5 V. 359 ; 5 R. R. 70 . Keene v. Beard, 8 C. B. (X. S.) 372 ; 29 L. J. (X. S.) C. P. 287 Keily v. Monck, 3 Ridg. P. C. 205 Keith V. Burrows, 1 C. P. D. 733 ; 46 L. J, ; 47 L. J. R. 63 Ch. . P. 801 94 11 L. J. (X. S.)E.\. 10 Kelland v. Fulford, 6 C. D. 491 Kellet V. K., 3 Dow. 248 ; 15 R Kelly, Ee, 9 Ir. Ch. 103 V. Solari, 9 M. & W. 54 ; Kemp V. Coleman, Salk. 156 • V. Falk, 7 App. Cas. 581 Kempson v. Ashbec, 10 Ch. 15 : Kendall, Jix ])., 17 V. 520 ; 11 R. R. 122 V. Beckett, 2 Russ. & M. 88 ; 9 L. J. Ch. 24 V. Hamilton, 4 App. Cas. 504 ; 48 L. J. C. P, V. Russell, 3 Si. 424 ; 8 L. J. Ch. 108 . Kenlis v. Hodgson, (1895) 2 Ch. 458 ; 64 L. Ch. 585 . 52 L. J. Ch. 167 . 44 L. J. (X. S.) Ch. 195 ro5 439, 792 . 722 . 454 . 524 . 514 . 722 . 816 . 573 . 684 . 50 . 110 554, 555, 561 . 129 . 371 , 385, 386 . 804 . 232 . 574 . 136, 138 285, 287, 325 46, 47 . 309, 325 . 701 . 847 . 350 Ix TABLE OF CASES Kennedy c. Brown, 13 C. B. (X. S.) 677 ; 32 L. J. (N. 8.) C V. Cassillis, 2 Swans. 313 V. K., 10 Ha. 438 ... r. Trott, 6 Moo. P. C. 467 . Kennel v. Abbot, 4 V. 802 ; 4 R. R. 351 , Kenny v. Browne, 3 Ridg. P. C. 462 . Kenrick v. Wood, 9 Eq. 333 ; 39 L. J. Ch. 92 Kensington v. Dolloud, 2 Mv. & K. 184 ; 3 L. J Kenyon v. AVorthington, 2 Dick. 668 . Keogh V. M'Grath, 5 L. R. Ir. 478 Ker V. K.; 4 Ir. R. Eq. 15 ... V. Wauchope, 1 Bli. 25 ; 20 R. R. 1 . Kermode v. Macdonald, 1 Eq. 457 ; 3 Ch. Ap. 584 ; 37 L. J (N. S.) Ch. 209 J. Ch. 599 . ; 1 L. J. (N. S.) Ex 227 810 267 Kerr v. Middlesex Hospital, 2 De G. M. & G. 583 ; 22 L Ch. 355 Kershaw, Re, 37 C. D. 674 ; 57 L Kerswill v. Bishop, 2 C. & J. 529 Kettleby v. Atwood, 1 Vern. 298 Key V. Bradshaw, 2 Vern. 102 .... Kibble, Ex -p., 10 Ch. 373 ; 44 L. J. (N. S.) Ch. 63 Kidd, Re, (1894) 3 Ch. 558 ; 63 L. .J. Ch. 855 . V. North, 14 Si. 463 ; 2 Ph. 91 ; 5 L. J. Dig. Kidman v. K., 40 L. J. Ch. 369 .... Kidney v. Coussmaker, 1 V. jun. 436 ; 2 V. jun. 7 Bro. P. C. 573 ; 2 R. R. 118 Kiffin V. K., 1 P. W. 705 Kilford V. Blaney, 31 C. D. 56 ; 55 L. J. Ch. 185 Killick, Exp., 3 Mont. D. & De G. 480 Kilpatrick v. K., Macphers. 143 . Kilway's Case, 9 Co. 29 Kimberley v. Tew, 4 Dr. & W. 139 . Kincaid's T., Re, 16 Jur. 106 ; 1 Drew. 326 ; 22 L. J 395 .... Kinderlev v. Jervis, 22 B. 1 ; 25 L. J. (N. S.) Ch. 538 King V. Cotton, 2 P. W. 674 V. George, 4 C. D. 435 ; 5 C. D. 627 ; 46 L. J. Cli. B. 137 . 749, 750, PAGE 276 , 753 814 177 387 146 722 665 744 146 59 422 791, 829 (N. S.) 799, 800, 801 . 31 . 129 . 336, 337 . 572 . 326 . 32 . 873 . 855 12 V. 136 ; 385, 431, Ch. 879 13 L. J. (X. S.) Bank. 6 439 516 12, 15, 16, 18, 20, 26 663 516 736 847 , (N. S.) Ch. . 640, 641, 648 . 115 . 618 670 . . 788 V. Hamlet, 2 My. & K. 485 ; 3 CI. & Fin. 218 ; V. Harwood, 2 Leo. 32 ; 1 Vent. 178 . ?). K., 15 Ir. Ch. R.479 .... V. K., 3 Jur. (N. S.) 609 ; 27 L. J. (X. S.) Ch. V. Lucas, 23 C. D. 723 ; 53 L. J. Ch. (4 . V. Mead, 1 Burr. 542 'V. Samson, 3 Adams, 277 .... V. Saverv, 1 Sm. & G. 271; 5 H. L. C. 027... 309, r. Tootei, 25 B. 23 V. Winton, 5 T. R. 91 V. Wright, 14 Si. 400 ; 14 L. J. (N. S.) Ch. 214 Kinssley's T., Re, 26 B. 84 ; 28 L. J. (N. S.) Ch. 80 Kiiigsman ?•. K., 6 Q. B. D. 125 ; 50 L. J. (,). B. 81 Kingston, Re, 5 L. R. Ir. 169 .... Kirby v. Potter, 4 V. jun. 752 ; 4 R. R. 342 Kirk, Re, 21 C. D. 431 Kirke v. K., 4 Russ. 449 ; L. J. Dig. 318 . Kirkham v. Smith, 1 V. 258 V. Miles, 13 V. 338 Kirkpatrick v. Bedford, 4 A. C. 96 . . . Kiiwan r. Cullen, 4 Ir. Ch. Rep. 322 . Kitcliin V. K., 19 L. T. (N. S.) 674 . Kitts V. Moore, (1895) 1 Q. B. 253 ; 64 L. J. Ch. 152 Knapman, Re, 18 C. D. 300 ; 50 L. J. Ch. 629 . 29 3 L. J. Dig. 258. ..312 504 438 270 681 601 602 311,312,313,316,325 876 601 795 846 619 335 670, 789, 791, 794, . 20 . 21 . 421 339, 362 . 849 . 279 . 603 . 743 134, 135 TO VOLUME I. Ixi 27 L. J. (N. S.) Ch. S.) Ch.'Bl Knapp V. Noyes, Amb. 662 Knight V. Bowyer, 2 De G. & J. 421 V. Cameron, 14 V. 389 V. Davis, 3 My. & K. 361 ; 3 L. J. (N V. K., 2 Si. & S. 490 ; 25 R. R. 253 . V. K., 18 Eq. 487 ; 43 L. J. (N. S.) Ch. 611 Knights V. Atkins, 3 Vern. 20 . Knill V. Prowse, 33 W. R. 163 . Knollys v. Shepherd, 1 J. & W. 499 . Knott V. Cottee, 2 Ph. 192 ; 16 B. 77 . Koeber v. Sturgis, 22 B. 588 Kynaston v. K., 1 Bro. Ch. 457 . 520 512, PAGE . 568 147, 148 557, 569 . 829 . 856 637, 653 . 336 . 141 . 342 522, 859 635, 640 3,16 L. V. B., (1895) P. 274 ; 64 L. J. P. D. & A. 121 ... La Banque Jacques' Cartier v. La Banque d'Epar^ne, &c., 13 Aiip. C P. C. Ill ; 57 L. J. P. C. 42 . La Constancia, 2 Win. Rob. 404, 406 La Terriere v. Buhner, 2 Si. 18 . La Touche v. L., 3 H. & C. 576 ; 34 L. J. (N. S.) Ex. 85 Lacey v. Hill, 19 E(i. 350 ; 47 L. J. Ch. 160 .... 430, Lacon, Re, (1891) 2 Ch. 482 ; 60 L. J. Ch. 403 Ladd V. Puleston, W. N., (1883) 72 ; 31 W. R. 539 Lady Chester's Case. 1 Vent. 207 Laing r. Walker, 64 L. T. 527 . Lainson v. Tremere, 1 A. & E. 792 ; 4 L. J. (N. S.) K. B. 207 Lamb v. L., 5 W. R. 720 436, V. Milnes, 5 V. 517 Lambei'. Ortoii, 1 Dr. & Sm. 125 ; 29 L. J. (N. S.) Ch. 319 Lambert, Re, 36 Sol. Jo. 327 , Re, 39 C. D. 626 ; 57 L. J. Ch. 927 . . V. L., 11 V. jun. 607 ; 8 R. R. 253 — V. Parker, Coop. t. Eldon, 143 Lamlee v. Hanman, 2 Vern. 499 . Lampet's Case, 10 Go. 47a .... Lamphier v. Despard, 1 Con. & Law. 200 . Lancaster v. L., (1896) P. 118 ; 65 L. J. P. D. & & Carlisle Ry. Co. v. North Western Ry 25 L. J. (N. S.) Ch. 223 . Lance v. Aglionby, 27 B. 65 V. Norman, 2 Ch. R. 79 Lancefield v. Igguklen, 10 Ch. 136 ; 44 L. J. (N Lancey v. The Queen, L. R. 7 Ex. 140; 41 L. J. V. Fairechild, 2 Vern. 101 Land v. Devaynes, 4 Bro. Ch. 537 Lands Allotment Co., Be, (1894) 1 Ch. 616 ; 63 Lane, Re, 14 C. D. 856 ; 45 L. J. Gli. 768 . V. Oakes, 22 W. R. 709 . Lang V. Smyth, 7 Bing. 284 ; 9 L. J. G. P. 91 Langdale v. Briggs, 8 De G. M. & G. 391 ; 26 L V. Esmonde, 4 Ir. R. E(i. 576 Langdale's Estate, Re, 5 Ir. R. Eq. 572 Langtbrd v. Pitt, 2 P. W. 629 . Langham v. Nenny, 3 V. 467 Langmead v. Cockerton, 25 W. R. 315 Langslowv. L., 21 B. 552; 25 L. J. (N. S.)Ch. 610 Langton v. Horton, 1 Ha. 549 V. Waring, 18 C. B. (N. S.) 315 . 61, 672, 702, 70: A. 34 .Co., 2K. & J S.) Ch. 203 (N. S.) Ex. 64 J. Ch. 291 J. (N. S.) Ch. 3, 704, 794, 91, 293 15 808, 136, 156, 426, 105, 454 325 67 86 690 431 825 744 513 728 464 443 635 111 81 705 843 852 574 102 21 241 754 . 21 620 797 350 336 820 863 824 671 137 810 788 209 342 630 209 438 129 109 Ixii TABLE OF CASES Lanov v. Atliol, 2 Atk. 444 ... Lans('lowne v. L., 3 Mod. 364 ; 2 J. & W. 205 V. L., 2 Bli. 91 ; 21 R. R. 43 . Lar^an r. Bowen, 1 Sell. & L. 299 Lariviure f. Morgan, 7 Cli. 550 ; 41 L. J. (N. S.^ Larkin v. Marshall, 4 Excli. 806 ; 19 L. J. (N. S LarkincT, Re, 37 C. D. 310 ; 57 L. J. Ch. 282 Larkins v. Paxton, 2 My. & K. 320 . Larner v. L., 26 L. J. (N. S.) Ch. 668 Lascelles v. Butt, 2 C. D. 593 Lashuiar, R,-, (1891) 1 Cli. 258 ; 60 L. J. Ch. 143 Lassence v. Tierney, 1 Mac. & G. 561 Lauiulv V. Williams, 2 P. W. 479 Laurie r. Glutton, 15 B. 65 ; 21 L. J. (N. S.) Ch Law V. L., Gas. t. Talb. 142 ... Lawder's Estate, Re, 11 Ir. Ch. R. 346 Lawe V. Stoney, W. N., (1876) 141 . Lawes v. Bennett, 1 Cox, 167 ; 1 R. R. 10 . Lawley v. Hooper, 3 Atk. 278 Lawrence v. L., 26 C. D. 795 Lawrensen, i^e, (1891) W. N Lawson v. L., 1 P. W. 441 . V. Stitch, 1 Atk. 50 53 L. J. Ch. 982 28 23 L. J. 20 L. J. 17 R. R. (N. S.) (N.* S.) Ch Q. 89 Lavvton v. Campion, 18 B. 87 Lay ton v. L., 1 Sm. & G. 179 L'Estrange v. L'E., 13 B. 281 Le Grice v. Finch, 3 Mer. 50 Le Jeiine v. Budd, 6 Si. 441 Le Lievre v. Gould, (1893) 1 Q. B. 491 ; 62 L. J Le Vasseur v. Scratton, 14 Si. 116 Leach v. Westall, 17 W. R. 313 . Leacroft v. Maynard, 3 Bro. Ch. 233 . Leak v. Driffield, 24 Q. B. D. 95 ; 58 L. J. Q. B Lean v. L., 23 W. R. 484 . Lechmere v. Carlisle, 3 P. AV. 222 1,1. L., Gas. t. Talb. 90 . Lecke v. Kilmorey, T. & R. 207 . Ledger r. Hooker, 18 Jur. 481 . V. Stanton, 2 J. & H. 687 Lee V. Brown, 4 V. 369 ; 4 R. R. 208 . V. Egremont, 5 De G. & Sm. 348 . V. Hayes, 17 Ir. C. L. R. (N. S.) 394 . V. Howlett, 2 K. & J. 531 . V. Hutton, 14 Jur. 638 .... V. L., 27 L. J. Ch. 824 . V. Magrath, 10 L. R. Ir. 319. V. Pain, 4 Ha. 201 ; 14 L. .1. (N. S.) Ch. 346 ... V. Park, 1 Keen, 714 ; 6 L. J. (N. S.) Ch. 93 - v. Prieaux,3 Bro. Ch. 383 .... Leeds v. Amherst, 2 Ph. 117 ; 16 L. J. (N. S.) Ch. 5 V. Corp. New Radnor, 2 Bro. Ch. 518 V. Powell, 1 V. 171 V. Straftbrd, 4 V. 180 ; 4 R. R. 186 . Leeke v. Bennett, 1 Atk. 471 . Leeming, Re, 7 Jur. (N. S.) 115 ; 3 De G. F. & J. 43 Ch. 216 Lees V. Coulton, 20 Eq. 20 ; 44 L. J. Ch. 556 . Legard v. Hodges, 1 V. jun. 478 ; 2 R. R. 146 . V. Johnson. 3 V. 359 24, 38, 46, 226 Ch. 05 Legh V. L., 15 Si. 135 . Leigh, Re, 40 C. D. 290 746 161 342. 35 334, 3: 30 L 36, 3 70, 871, 8 PAOB 57, 58, 60, 65 232, 233 . 863 . 745 . 779 . 696 . 825 . 745 . 789 . 175 . 389 . 815 845, 849 . 838 . 573 . 58 . 215 353, 354, 355 293, 299 . 834 . 876 397, 404, 409 785, 789, 790 . 235 . 640 . 109 90, 794, 824 . 567 . 454 . 162 . 216 . 875 . 692 . 82 38, 347, 362 338, 3.39 . 815 . 871 . 830 . 845 425, 653 . 575 . 130 . 509 823, 824 . 141 2, 873, 875 . 745 661, 662 . 453 . 179 . 179 . 176 . 860 58 L. J. Ch. 306 (N. S.) . 365 211,214 . 103 585, 586, 590 . 61 499, 502, 506, 507, 649 TO VOLUME T. Ixiii Leigh V. Dickeson, L5 Q. B. D. 61 ; 54 L. Lemon v. Simmons, 36 W. R. 350 ; 57 L. Lempriere v. Lange, 12 C. D. 675 — V. Valpy, 9 Si. 447 Q. B. 18 Q. B. 260 47 L. J. Ch. 178 Lengberge Policy, Kc, 7 C. D. 650 Leonard, Re, 29 W. R. 234 . V. L., 2 Ball & B. 180 . Leonino v. L., 10 C. D. 460; 48 L. J. Ch. 217 PAGB . 203 . 709 . ()70 . 682 . 302 80, 81, 82 232, 233, 237 ^ . . . ... 26, 27, 30 Lepnie, Ee, Dowsett v. Culver, (ls92) 1 Ch. 210 ; 61 L. J. Ch. 153 ... 840, 847 12 L. J. (N. S.) Ch. 153 . . 115 381 203, 323 Leslie v. Baillie, 2 Y. & C. C. C. 91 V. Devonshire, 2 Bro. Ch. 187 V. French, 23 C. D. 552 ; 52 L. J. Ch. 762 V. L., LI. & G. 1 Lethem v. Hall, 7 Si. 141 Lett V. Randall, 3 Sm. & G. 83 ; 2 De G. F. & J. 388 • 30 (N. S.) Ch. 110 Letts T., Re, 7 L. R. Ir. 132 Levinge, Re, 6 B. 392 (n.) . Lewer, Re, 5 C. D. 61 ; 46 L. J. Bank. 70 Lewes' Trusts, Re, 11 Eq. 236 ; 6 Cli. 356 ; 40 L. J. (N, S.) Ch Lewin's T., Re, 20 B. 378 Lewin v. L., 2 Ves. 415 Lewis, Re, 1 Q. B. D. 724 ; 45 L. J. Q. B. 816 . Ee, 30 C. D. 654 ; 55 L. J. Ch. 232 . V. Allenby, 10 Eq. 668 ... . V. Boetefeur, 38 L. T. (N. S.) 93 V. Bowles, 11 Co. 79 ; 1 Roll. Rep. 177 . V. King, 2 Bro. Ch. 600 . V. L., 1 Cox, 162 V. —, 13 Eq. 225 ; 41 L. J. (N. S.) Ch. 195 V. —, 45 C. D. 281 ; 59 L. J. Ch. 712 V. Madocks, 8 V. 150 ; 7 R. R. 10 ; 17 V. 48 V. Matthews, 2 Eq. 177 ; 35 L. J. Ch. 638 Ley i;. Cox, 14 B. 157 Licenses, &c., Corii. v. Lawson, 12 T. L. R. 501 . Lichfield v. Baker, 2 B. 481 ; 9 L. J. (N. S.) Ch. 291 ; 13 B. 40 Lickbarrow v. Mason, 6 East, 20 ; 1 R. R. 425 . Lidderdale v. Montrose, 4 T. R. 248 ; 2 R. R. 375 Life Association, kc. n. Siddal, 3 De G. F. & J. 271 Lillbrd V. Powys-Keck, 1 Eq. 347 ; 35 L. J. Ch. 302 Lillwall's Sett., Re, 30 W. R. 343 Lindgren v. L., 9 B. 358 ; 15 L. J. (N. S.) Ch. 428 Lindo, Ee, 59 L. T. 462 Lindsay v. Gibbs, 22 B. 522 ; 28 L. J. (N. S.) Ch. 69 Petroleum Co. v. Hurd, L. R. 5 P. C. 239 Lingen v. Sowray, 1 P. W. 172 . Linton v. L., 15 Q. B. D. 239; 54 L. J. Q. B. 529 Lippiat V. Hollej-, 1 B. 423 Lipscomb v. L., 7 Eq. 501 ; 38 L. J. Ch. 90 Lismore, Re, 1 Hog. 177 Lister v. T>., 3 Y. & C. Ex. Ca. 540 V. Tidd, 4 Eq. 462 Little, Re, 56 L. J. Ch. 872 ; 40 C. D. 418 . Little's Will, Re, 36 C. D. 701 ; 56 L. J. Ch. 872 Liverpool Marine, &c., v. Hunter, 4 L. R. Eq. 62 ; 36 3 L. R. Ch. App. 479 Co. V. Wilson, 7 Ch. 507 ; 41 798 Livesay v. Redf.n'n, 2 Y. & C. Exch. C. 90 ; 6 L. J. (N Livesey v. Harding, 23 B. 141 .... L. J. Ch -. J. (X. S 852, 853 . 523 J. 800, 802 . 647 602 523 123 846 . 650 . 843 . 276 . 363 55 . 56 . 735 . 422 . 819 25, 30, 341 . 238 . 113 662, 665 . 199 . 452 78, 85 . 138 . 142 33, 034, 636 52 724 837 856 105 287 335, 360, 363 . 608 . 239 . 26 . 335 . 197 . 127 723, 724 . 724 ")(i7 ; 751, 752 .) Cli. 129 S.) Ex. E(i. 35...798 . 127 Ixiv TABLE OF CASES Livesey r. L., 3 Russ. 287 . Llewellin v. Cobbold, 1 Sm. & G. 376 Llewellyn, Be, 29 B. 171 . V. Mackworth, Bam. C. 445 Lloyd, Re, 9 P. D. 65 ; 53 L. J. P. D. & A. 41 V. Banks, 3 Ch. 488 ; 37 L. J. Ch. 881 V. Branton, 3 Mer. 108 ; 17 R. R. 33 V. Clark, 6 B. 309 V. Fleming, L. R. 7 Q. B. 299 V. L., 2 Si. (N. S.) 255 ; 21 L. J. (N. S.) Ch. 596 V. Mason, 5 Ha. 149 . V. Williams, 1 Madd. 466 V. , 2 Atk. 108 29 L. J. (N. S.) Ch. 179 Barrs v. Heriot, Lobley v. Stocks, 19 B. 392 Lock V. Venables, 27 B. 598 Lockhart r. Hardy, 5 B. 305 Lockwood V. Salter, 5 B. & Ad. 303 ; 2 L. J. (N. S.) K. B. 198 Loder, Be, 35 W. R. 58 ; 56 L. J. Ch. 230 . Loffus V. Maw, 3 Gif., 592 ; 32 L. J. (N. S.) Ch. 49 Loftus V. Heriot, (1895) 2 Q. B. 212 ; mh nom. Hood 64 L. J. Q. B. 717 Lo^an V. Birkett, 1 My. & K. 220 ; 2 L. J. (N. S.) Ch ° V. Fairlee, Jac. 193 ; 23 R. R. 28 Lomas v. Wright, 2 My. & K. 769 ; 3 L. J. (N. S.) Ch. 58 Lomax x. L., 12 B. 285 ; 19 L. J. (N. S.) Ch. 137 Londesborough v. Somerville, 19 B. 295 ; 23 L. J. (N. S.) Ch. 646 London and Blackwall Railway Co. v. Cross, 31 C. D. 354 ; 55 L. J. Ch. 313 "^3 London Chartered Bank v. Lempnere, 4 L. R. P. C. 572 ; 42 L. J. (N. S.) P. C. 49 122, 664, 666, 685, 688 L. C' & D. Ry. Arrangement Act, Be, Ex. Hartridge, L. R. 5 Ch. App. 671 . / London and Coantv Banking Co. v. Groome, 8 Q. B. D. 288 ; 51 L. J. Q. B. 224 " London and Coimtv Bank v. London River Plate Bank, 21 Q. B. D. 540 ; 57 L. J. Q. B. 601 London J. S. Bank v. Simmons, (1892) A. C. 201 ; 61 L. J. Ch. 723 . PAGR . 231 . 620 . 82, 88, 90 . 433 213, 336, 350, 370 . 119, 121, 850 552, 560, 561, 568 . 281 . 104, 140 . 555, 558, 560 . 638 . 626, 637 . 852 . 872 . 832 . 815 697 65 452 707 602 523 ,48 33 850 54 137 136 136, 466 London Land Co., Ltd. v. Harris, 13 Q. B. D. 540 : 53 L. J. Q. B. 536 743 London and Mediterranean Bank v. Strutton, 18 W. R. 107 . 750, 751 L. & N. W. Ry., Be, 3 Macq. Ap. 99 ; 1 Pat. Sch. Ap. 717 . . 752 London and Provincial Bank v. Bogle, 7 C. D. 773 ; 47 L. J. Ch London School Board r. Wood, 15 Q. B. D. 415 London and Yorkshire Bank v. White, 11 T. L. Long V. Dennis, 4 Burr. 2052 !^ V. Hughes, 1 De G. & Sm. 364 . V. Kent, 13 W. R. 961 ... V. L., 3 Ves. 286 (n.) .... V. — 2 S. & S. 124 .... V. Ricketts, 2 S. & S. 179 . V. Short, 1 P. W. 403 ... Longbottom r. Pearce, 3 De G. & J., 545 (n.) Longmate v. Ledger, 2 Giff. 157 . . . ^ Loosemore v. Knapman, Kay, 123 ; 23 L. J. (>'. Lord V. Godfrey, 4 Madd. 455 V. Jeffkins, 35 B. 7 . V. L., 2 Ch. 789 ; 36 L. J. Ch. 533 . V. Sutcliffe, 2 Si. 273 . V. Wightwick, 1 Drew. 576 ; 4 De G. M (N. S.) Ch. 235 54 L. J. M :. 570 & G. 803 301 . 697, 698, 699 C. 145 . 534 106, 109, 115 538, 554, 566 . 805, 842 . 433 . 854 506, 507, 854 . 568 50, 66, 797, 844 . 507, 645 283, 309, 313 4 . . 24 80, 81 . 315, 324 849, 850, 85 . 872 ; 23 L. J. 12, 77, 347 TO VOLUME I. Ixv Lord V. Wightwick, 6 H. L. Cas. 217 ; 26 L. J. (N. S.) Ch. 825 . 7: Brooke v. Earl Warwick, 2 De G. & Sm. 425 ; 18 L. J. (k. S.) 749, 770, Ch. 137 Castleton v. Lord Fansliawe, 1 Eq. Ca. Abr. 302 Cranstown v. Johnston, 3 V. jun. 182 ; 5 V. iun. 277 ■ 3 R R 80 ^ - - Falkland v. Bertie, 2 Vern. 333 Kildare v. Eustace, 1 Yern. 419 Lovat i\ Duchess of Leeds, 10 W. II. 397 . Xorbury, Re, 9 Ir. E. Eq. 134 . Portarlincrtoii v. Soulby, 3 My. & K. 106 . Raymond's Case, Cas. t. Talb. 58 St.\john V. Lady St. John, 11 V. 529 Shipbrook r. Lord Hinchinbrook, Dick. 547 Tenliani v. Barrett, 9 Mod. 40 . . . Thomond v. Earl of Suffolk, 1 P. "Wms. 461 Loriraer v. L., 5 Madd. 363 .... Losconibe r. Wintringham, 12 B. 46 . Louch V. Peters, 1 M. & K. 489 ; 3 L. J. (N. S.) Ch. 167 Lound V. Grimwade, 39 C, D. 605 ; 57 L. J. Ch. 725 Love V. Baker, 2 Freem. 125 ; 1 Ch. Cas. 67 Lovell V. Knight, 3 Si. 275 ; 1 L. J. (N. S.) Ch. 47 L\ Newton, 4 C. P. D. 7 . Loveridge v. Cooper, 3 Russ. 1 ; 2 L. J. CIi. 75 . Lovesy v. Smith, 15 C. D. 655 ; 49 L. J. Ch. 809 Lovett V. L., John. 118 Low, Re, (1894) 1 Ch. 157 ; 60 L. J V. Bouverie, (1891) 3 Ch. 82 I'AGE , 347 820 784 Ch. 60 60 L. J. Ch. 594 452, 453, 4 594 . Q. B. V. Peers, Wilmot's Cases, 369 Lowe V. Manners, 5 B. & Aid. 917 V. Peers, 4 Burr. 2225 Lowe's S., Re, 30 B. 95 Lowndes v. L., 15 Ves. 301 . Lowry v. Patterson, 8 Ir. E. Eq. 372 Lucas V. Brandretli, 28 B. 273 . V. Calcraft, 1 Bro. Ch. 133 ; V. Harris, 18 Q. B. D. 135 ; V. Jones, 4 Eq. 73 ; 36 L. J V. L., 1 Atk. 270 Luckcraft v. Pridliam, 48 L. J. Ch Lucy V. Gardener, Bunb. 137 Lucy's Case, 4 De G. M. & G. 356 , Luddy's Trustee v. Peard, 33 C. D. 500 Ludlam, Re, 63 L. T. 330 . Ludh)W, Ex p., 2 Atk. 407 . Luml) V. Mihies, 5 Y. 517 . Lumley, Re, 65 L. J. R. 837 Lupton V. White, 15 Y. 432 ; 10 E. E. Lusli's T., Re, 38 L. J. Ch. 650 ; 4 Ch Luther v. Bianconi, 10 Ir. Ch. R. 194 Lutkiiis V. Leigh, Cas. t. Talbot, 53 . Lychlon V. Moss, 4 De G. & J. 104 Lyde v. Mynn, 1 Mv. & K. 693 .... Lynch's Estate, Re, "l Ir. Ef|. 396 Lynes, Re, (1893) 2 Q. B. 113 ; (52 L. J. (,). K 372 Lynes' Estate, Re, 8 E

.K: G. 237. V. Collett, 1 y. & C. E.\. C. 238 V. Ciowther, 2 C. D. 199 V. Fowler, 16 B. 249; 22 L. J. (n! S.) Ch. 213 ' V. Gibbons, 4 Ir. Ch. E. 276 . . . . . V. HoUowav, 5 Si. 196 V. M., 5 P. D. 23 ; 48 L. J. P. D. & A. 49 I'AiiE 846 285 . 2S4 54 . 822 89, 834 . 130 . 858, 863 . 558 107, 112 748, 752 374. 377, 386 . 839 . 234, 314 499, 532, 533 . 132, 136 21, 798, 828 . 876 7 L. J. . 789 33 874 800, 80] 822 V. Button, 8 T. e! 545 ; 5 E. R. 448 V- Taylor, (1895) I Ch. 641 ; 64 L. J. Cli. 416 Marsland, Re, 55 L. J. Cli. 581 Marston, Re, 17 W. R. 794 . Martin, Re, W. N. (1892) 120 ,AV, W.N. (1884)164 . . ' " ' v. Drink water, 2 B. 215 684, 691 651, 672 18 . 302 . 661 560, 562 . 745 . (535 . 843 79, 80 . 231 86. 89 . 639 . 652 . 830 ")97. 601, 6(/2, 603 . 61 1 . 178 647, 651 . . 477 797, 801 666 -< , 9 L. J. (\. S.) Ch. 247 . >^-r2, 874, 875 y. loster, 7 De G. M. & G. 98 ; 24 L. J. (N. S.) Ch. 5J9...503, 504, ,, ^ 506, 50,, 508 V. M., 2 Euss. & M. 507 : 1 L. J. (X. S.) K. H. 221... 774, 775, 777 r. Sedgwick, 9 B. 333 ]2-> Martyn v. Ferryman, 1 Ch. E. 235 i>00 Maskell & GohUinch's Contract, /I'e, (1895) 2 Ch. 525 ; (14 L. J. ( 'i'l 678 31 1 Ma.son, Re, 8 C. D. 41 1 ; 47 L. J. Ch. 660 .... 803 805 V. Bogg, 2 My. & (;. 449 '48 y. Day, Pr. Ch. 319 ,3,;8 u. M., Anib. 371 ;3r,7 V. Mitchell, 3 H. &. C. 528 ; 34 L. J. (N. S.) Ex. 6s .' .' m^ Ixvill TABLE OF CASES PAGE Massey v. Parker, 2 Mv. & K. 174 ; 4 L. J. (N. S.) Ch. 47 . Cm, 718 li;. Eoweii, 4 L.'R. H. L. 294 .... (ifil, (!G2, 663, 665 Master v. BuUer, 4 T. E. 340 130 V. Fuller, 4 Bro. Ch. 19 691 Masters i;. M., 1 P. W. 421 49, 867, 868, 871 Matheson Bros. Ld., Pw, 27 C. D. 225 771 Mathews v. Brise, 14 B. 341 ; 15 L. J. (X. S.) Ch. 39 . . .513 Matson v. Swift, 8 B. 368 349 Matthaei v. Galitzin, 18 Eq. 340 ; 43 L. J. (N. S.) Ch. a30 . . 777 Mattlufwinan's Case, Be, 3 Eq. 787 ; 36 L. J. Ch. 90 . . . 689, 701 Matthews, Re, 12 Ir. C. L. 233 572 Re, 26 B. 463 ; 28 L. J. (X. S.) Ch. 293 . . . 498, 601 V. Bishop of Bath, 2 Dick. 652 199 V. Minister, 20 Q. B. D. 141 ; 57 L. J. Q. B. 49 . . . 238 v. Whittle, 13 C. D. 811 ; 49 L. J. Ch. 359 . . 698 Maudslay v. M., 2 P. D. 256 ; 47 L. J., P. D. & A. 26 . . .609 Mau^han v. Mason, 1 V. & B. 410 ; 12 R. R. 251 .... 384 Maunder r. Llovd, 2 J. & H. 718 771, 779 Mawe V. Heaviside, 7 Jur. (N. S.) 817 646 Mawhood v. Milbanke, 15 B. 36 708 Maxwell i: Hvsloii, 4 Eq. 407 436 V. :SL, 2 l)e G. M. & G. 705 ; 22 L. J. (X. S.; Ch. 4J3 . . 436 f. _, L. E. 4 H. L. 506 ; 39 L. J. Ch. 698 . . . .28 *•. Wettenhall, 2 P. W. 26 852 May, Re, 45 C. D. 499 : 60 L. J. Ch. 34 696 V. Bennett, 1 Russ. 370 ; 25 R. R. 72 802, 847 r. Lane, 64 L. J. Q. B. 236 108, 111, 141 V. Potter, 25 W. R. 507 853 r. Roper, 4 Si. 360 . -^ . . . 358 Mayd r. Field, 3 C. D. 587 ; 45 L. J. Ch. 699 . . . 685, 690, 720 Mavfair Property Co. ?;. Johnston, (1894) 1 Ch. 513; 63 L. J. Cii. 399 197, 200, 202, 205 Maynard r. Eaton, 9 Ch. 414 ; 43 L. J. (N. S.) Ch. 641 .. . 237 Mavor of Basinrrstoke v. Bolton, 1 Drew. 289 . . . . 179, 180 —- London i: EusseD, Eep. t. Finch, 290 . . . 8fi8, 869, 872 , &c. 1-. Pnkin!iton, 1 Atk. 282 178 Mead, Re, 15 C. D. 651 ; 50 L. J. Ch. 30 409, 411 Meade v. Hide, 2 V. 120 13 Meade-=, Re, Ir. L. E. 5 Eq. 98 497. 517 Meadows v. U., 16 B. 401 270, 271 Meager v. Pellew, 14 Q. B. D. 973 679 Measure v. Carletou, 30 B. 538 791 Medley, Re, 6 Ir. E. Eq. 339 523 MedleV v. Horton, 14 Si. 222 ; 13 L. J. (X. S.) Ch. 4^2 . .714 Medlicott r. O'Donel, 1 Ball & B. 156 325 Medlock, Re, 55 L. J. Ch. 738 855 Meek v. Devenish, 6 C. D. 566 ; 47 L. J. Ch. 57 . . 359. 360, 362, 364 Meliorucclii r. Eoyal Exchange Ass. Co., 1 Eq. Ca. Aljr. 8 pi. 8 . 100 Mellish V. De Posta, 2 Atk. 14 498, 512 r. Yallins, 2 John. & H., 194 ; 31 L. J. (X. S. ; Ch. 592 . . 28 Mellor, Re, 6 C. D. 127 ; 7 C. D. 200 ; 47 L. J. Ch. 246 . .671 . r. Porter, 25 C. D. 161 ; 53 L. J. Ch. 178 . . . 2!)5, 211 Mellv, Re,40L.T.42d 366 Mehiish v. Milton, 3 C. D. 27 ; 45 L. J. Ch. 836 .... 288 Mendes v. M., 1 Y. 91 498, 512, 513 Mercantile Bank of AustraHa, Re, (1892) 2 Ch. 2(i4 ; 61 L.J. Ch. 417. ..771, 772, 778 Mercer v. Hall, 4 Bro. Ch. 228 566 Meredith v. Vick, 23 B. 559 ; 27 L. J. (X. S.) Ch. 162 ... 361 u. Watson, 17 Jur. 1063 412 Merry v. Ryves, 1 Eden, 1 567 TO VOLUME I. Ixix PAGE Meiryman's T., AV, 10 ^Y. E. 334 ; 31 L. J. C'li. 3G7 .... 039 Merryweather r. Jones, 4 Gif. 499 ....... Gil Mesgrett v. M., 2 Vern. 580 .56-3 Messcena r. Oarr, 9 Eq. 20(i ; 39 L. J. Ch. 216 . . . . . 807 Me.ssen.ger r. Clarke, 5 Exch. 388 ; 19 L. J. (X. kS.) E.\. 306 . . 706 Metcalfe v. York, 1 My. & C. 547 ; 6 L. J. (X. S.) Ch. 65 . . .113 Metcalfe'.s Trusts, Rf, 2 De G. J. & S. 122 ; 10 Jui-. (X S ) 91 • 33 L. J. (X. S.) Gil. 308 " . 279 Metropolitan Rank v. Poolev, 10 App. Cas. 210 ; 54 L. J. Q B. 449 148 Meu.x V. Bell, 1 Ha. 73 ; 11 L. J. (X. S.) Ch. 77 . .119, 122. 123 Mews V. M., 15 B. 529 (jfjO. 706 Meyer v. Simonsen. 5 De G. & Sm. 723'; 21 L. J. (X. S.^ Ch. 678 . 87, 88 Michael's Trusts, Ac, 46 L. J. Ch. 651 . . ' . 71.") Michel],A«, (1892)2Ch. 99 ; 61 L.J. Ch. 326 33,-) V. M., 5 Madd. 69 ; 21 R. R. 280 . . . 15 V. — , (1891) P. 208 ; 60 L. J., P. D. & A. 46 . 669, 722 V. Wilton, 23 W. R. 789 , 44 L. J. Ch. 490 . . . 803, 804 Michelmore v. Mudge, 2 Gif. 183 ; 29 L. J. Ch. 600 .... 163 Micklethwaite r. Winstanlev, 34 L. J. Ch. 281 : 13 W. E. 210 . . 746 Middlebrook r. Bromley, 11 W. R. 712 435 Middleconie v. Marlow, 2 Atk. 519 644 Middleton v. Brown, 47 L. J. Ch. 411 308,322 i: M., 15 B. 450 33^ 51 V. Sherburne, 4 Y. & C. Ex. 390 279 1-, Spicer, 1 Bro. Ch. 201 .54 V. Windro.ss, 16 Eq. 212 ; 42 L. J. (X. S.) Ch. 555 . . 425 Mighell V. Sultan of Johore, (1894) 1 Q. B. 149 ; 63 L. J. Q. B. 5'.)3 ... 779 Milan Tramways Co., Be, 25 C. D. 586 ; 53 L. J. Ch. 1008 . 133, 135 Mildmay v. Hungerford, 2 Vern. 243 232. 234 ^ V. Quicive, 6 C. D. 553 ; 46 L. J. Ch. 667. ..213. 214. 215, 217,' 369, 370 Mildred v. Xeate, 1 Dick. 279 742 Miles V. Jarvis, 50 L. T. 48 ; 52 L. J. Ch. 796 22(> V. Harrison, 9 Ch. 316 ; 43 L. J. (X. S.) Ch. 85 . . 19, 55, 56 V. M., 1 Eq. 462 ; 35 L. J. Ch. 315 828 V. Xew Zealand, &c., Co., 32 C. D. 266 : 56 L. J. Ch. 801 ... 230, 231. 241 r. William.s, 1 P. W. 252 1(I3, 697 . 837 . 793. 814, 836 . 650 . 165 . 308, 313. 319, 323 V. Harris, 14 Si. 540 512 V. Huddlestone, 17 Si. 71 ; :. Mac. 6c G. 513. ..803, 804, 838, 840, 841 V. Little, 2 B. 259 791, 808 r. Marriott, 7 Eq. 1 216,217 f. M., 3 P. W. 356 398,404,408.411 r. — , 13 Eq. 263 ; 41 L. J. (X. S.) Ch. 291 . 82. 348, 352 V. Race, 1 Burr. 452 136 V. Thurgood, 33 B. 496 ; 33 L. J. (X. S.) Ch. 511. . 427 V. Warmington, 1 J. & W. 484 ; 21 R. E. 207 . 175, 17s, 201, 204 Millet t-. Rouse, 7 V. 419 503, 505, .508 Millichamp, Be, 52 L. T. 758 89 Mills V. Brown, 21 B. 1 80, 788 V. Drewitt, 20 B. 632 802 V. Fox, 37 C. D. 153 ; 57 L. J. Ch. 56 . . 361, 462, 472 V. M., 7 Si. 508 ; 4 L. J. (X. S.) Ch. 266 84 V. Robarts, 1 Russ. & M. 555 ; 8 L. J. Ch. 141 . . . . 853 Millar v. Woodside, 6 Ir. R. Eq. 546 . Millard v. Bailey. 1 E

:. M., U B.-,2; 20 L. J. (N. S.) Ch. 109 V. —., 4 Ir. Ch. R. 606 .... V. Thomas, 6 C. D. 176 ; 46 L. J. Ch. 77. Moriarty v. Martin, 3 Ir. Ch. R. 26 Morley, isle, (1895) 2 Ch. 738 ; 64 L . Re, 13 R. 680 -;. Bird, 3 Ves. 629 ; 4 R. R. 106 . r. Loaghnan, (1893) 1 Ch. 736 : 62 L. J. Ch. (5 V.\(l£ <)07 28 405, 408, 411 720 274 200 (;ho 370 . 876 503, 5(14 . 167 799. ) Ch. 45 79, 80, 81 J. Ch. 727 801 . 520 . 274 . 513 . 11(1 . 274 84, 86, 88 421, 440 823, 824 . 438 . 857 . 88 . 832 269, 278, 284 554, 555, 559, 562 . 113 . 323 . 605,606,610 . Ill . S.) Ch. 212 ; . 810, .^24 m.-^. 573 ; 2 B. P. C. 465 ............ 744 213, V. Rennoldson, 2 Ha. 570 ; 12 L. J. (N. S.; Ch. 373. Mornington r. Keane, 2 De G. & J. 292 .... Moroney v. O'Dea, 1 Ball & B. 109 Morrale v. M., 6 P. D. 98 ; 50 L. J. P. D. & A. 62 Morrell v. Wooten, 16 B. 197 Morrice v. Aylmer, L. R. 7 H. L. 717 ; 44 L. J. (>' L. R. 10 Ch. 148 Bank of England, Cas. t. Talb. 217 ; 3 Sw .267, .551, 558, Morris, Ee, 2 Sw. & Tr. 360 V. Burton, 11 Si. 161 V. Hodges, 27 B. 625 V. Livie, 1 Y. & C. C. C. 380 ; 11 L. J. (X. S.) Ch, V. Timmins, 1 B. 411 Morrow v. Busii, 1 Cox, 185 Mortgage Insurance Corpn. v. Commissioner of Inl. Rev. 355 ; 57 L. J. Q. B. 174 Mortimer v. M., 2 Hag. Con. 318 .... Morton, Re, 12 W. R. 320 ; 33 L. J. (N. S.) 87 . — , Ee, W. N. (74) 181 513 860 172 8 R. R. 249 . sub nom. Ik Toward it Co., .' 29 L. J. Ch. 39 1 C. Mosley v. Ward, 11 V. 581 V. , 29 B. 407 . Moss, £x^.,14Q. B. D. 310 126 . V. Dunlop, 8 ^Y. R. 39 , Mostyn v. The West Mostvn Coal & Iron Co , Ld. 45 L. J. Ch. 113 . " Moth V. Atwood, 5 V. 845 Mountlort, E.c p., 15 V. 446 MountstLiart v. M., 6 V. 363 Mousell, Ee, 6 Ir. Ch. R. 254 ... . Mower v. Orr, 7 Ha. 475 ..... Mowers' T., AV, 8 Eq. 110 Moxon V. Berkeley B. S., 69 L. T. 250 : 59 L. J. Ch. 524 134, 840 . 217 . 12, i;',. 23 , 21 (,). n. D. . 137 . 587, 602 . 513 . 213, 648 . h59 . 433 P.. 131, 133 . 645 1 45 : . 744 . 315 514, 516 . 523 . 245 . 348 . 58 58 4 L. J. P. I). Q. Ixxii TABLE OF CASES Mujgeridge v. Stanton, i DeG. F. & J. ](>7 Mules V. Jennings, 8 Ex. 830 ; -22. L. J. (X. S.) Ex. 358 Mullineaux v. M., 6 W. R. 356 ; 27 L. J. 19 Mullins r. Howell, 11 C. D. 763 ; 48 L. J. Ch. 679 . V. Smith, 1 Dr. & Sm. 210 . . 789, 791, Mundy v. M., 2 V. jun. 125 ; 4 Br. Cli. 294 Munt V. Glvnes, 20 W. R. 823 ; 41 L. J. Cli. 639 Murphv V. Broder, 9 Ir. R. C. L. 123 . Murray, Be, 3 U. & War. 83 V. Barlee, 3 Mv. & K. 2(i9 ; 3 L. J. (N. S.) Ch. 1 490 84 V. Palmer, 2 Sch. & L. Murton v. Markby, 18 B. 196 Musgrove v. Flood, 1 Jur. (N. S.) 1086 Muspratt v. Gordon, 1 Anst, 34 ; 3 R. R. 541 . Musters v. Wright, 2 De G. & Sm. 777 Mutlow v. Bigg, 1 C. D. 385 ; 45 L. J. Cli. 282 . Mutrie v. Binney, 35 C. D. 614 Mutual Life Assurance Society v. Langley, 32 C. D. 460 Myers r. United Guarantee Co., 7 De G. M. & G. 112 Mytton V. M., 19 Eq. 30 ; 44 L. J. (X. S.) Ch. 18 PAGE . 706 . 350 174, 669 239, 242 94, 798, 844, 848 . 222 . 718 . 571 . 504, 508 658, 688, 689, 691 . 323, 328 . 348 . 645 . 105 . 704 359, 362, 364 . 747, 754 58, 126, 127 . 107, 133 . 794 N. .) 973 L. J. Ch. 362 Ch. 132 ; 24 R. 21 L. J.'(N. S.) Ch'. 446 Nagle v. O'Donnell, Ir. R. 7 C. L. 79 Nail V. Punter, 5 Si. 599 Nanney v. I\lartin, 1 E(i. Ca. Ah. 68 . Nash V. N., 2 Madd. 133 . V. The AVorcester, &c. Comrs., 1 Jur. (N. S, Katal Investment Co., Be, 3 Ch. 355 Naylor v. Winch, 1 S. & S. 565 ; 2 L. J. Ch. 132 ; 24 R. R. 22^ Neale v. N., 1 Keen, 672 Xedby r. N., 5 De G. & Sm. 377 Needham, Be, 54 L. J. Ch. 75 Negus V. Jones, 1 C. & E. 52 Neil, Be, 62 L. T. (N. S.) 649 Neilan r. Farrell, 29 L. R. Ir. 12 Nelson r. Booth, 5 W. R. 722 V. Bridport, 8 B. 547 • — V. Carter, 5 Si. 530 . ... . . . 790, V. Duncombe, 9 B. 211 : V. Page, 7 Eq. 25 ; 38 L V. Stocker, 4 De G. & J. 458 ; 27 L. J. (N. S.) Ch. 760 . Nesbitt V. Berridge, 4 De G. J. & S. 54 ; 32 B. 282 . . 312, Nevill, i?e, 59 L. J. Ch. 511 V. N., 2 Vern. 431 V. Snelling, 15 C. D. 679 ; 49 L. J. Ch. 777... 310, 313, 318, Neville v. Fortescue, 16 Si. 333 V. Wilkinson, 1 Bro. Ch. 543 Nevin, Be, (1891) 2 Ch. 299 ; 60 L. J. Ch. 542 . New Traveller.-; Chambers, Ld. v. Cheese, 70 L. T. 271 Westminster Brewerv v. Hannah, W. N. (76) 215 ; (77) 35 Newbegin r. Bell, 23 B. 386 . . . . Newbold v. Broaclnight, 1 Russ. & M. 667 . Newenham r. Pemberton, 1 De G. & Sm. 644 : 17 L. J 15 L. J. (N. S.) Ch. 296 J. Ch. 138 Ch. Newfoundland r. Newfoundland Ry. Co., 13 App. C. 199 P. C. 35 Newlands v. Paynter, 4 My. & C. 408 .... Newman v. Bate.^^on, 3 Swans. 689 ; 19 R. R. 286 -v. N., 1 Bro.Ch. 186 21, 991.. 57 L . 696 . 688 . 160 . 157 . 342 . 133 .230, 232 . 233 . 283 18, 21 662, 665 . 818 . 403 . 706 774, 777 791, 793 . 314 29, 30 471, 619 316, 322 28, 31 . 815 320, 324 . 84 . 574 . 496 . 742 . 148 15, 22 794, 797 .631, 634 . J. . 133 708, 721 . 852 425. 439 TO VOLUME 1. Ixxiii I'AGE Xewiiiaiir. X., 28 C. D. 674 ; 54 L. J. Ch. 598. ..104, 11(5. 1:^2, 123, 139, 141 . r. Pavne, 2 V. JLin. 199 274 r. Wilson, 31 b. 33 28. 040 Newmaicli, Re, 9 C. D. 17 ; 48 L. J. Ch. 28 . . 26, 29, 30 Newport v. Kynaston, Rep. t. Finch, 294 . . . 867, 869. 870 1-. Moore, Dick. 166 523 Newsome v. N., 2 P. & D. 306 ; 40 L. J. (X. S.) P. & .M. 71 . 605, 606 Newton Trusts^, Be, 23 C. D. 180 165, 168, 358 Newton, Re, (1896) 1 Ch. 740 ; 65 L. J. Ch. 641. ..496, 515, 517, 518, 519, 527, 528, 529 V, Debenture Holders, &c., (1895) A. C. 244 ; 64 L. J. P. C. 57 106 I'. Hunt, 5 Si. 511 31.-), 318 V. Marsden, 2 J. & H. 356 ; 31 L. J. (N. S.) Ch. 690 . . 560 v. N., 2 J. & H. 356 555 Nicholl V. Jones, 3 Eq. 696 ; 36 L. J. Ch. 554 597 NichoUs, Eo:})., 22 C. D. 782 ; 52 L. J. Ch. 635 ... 106, 109, 110, 114. 131, 141 V. Danvers, 2 Vern. 671 ....... 608 ^•. O-born, 2 P. W. 419 856 V. Parker, 14 East, 331 (u.) ; 12 R. R. 542 . . . .178 Nichols ;). Hawkes, 10 Ha. 342 ; 22 L. J. (N. S.) Ch. 255 . . soo Nicholson r. Drury, &c. Co., 7 C. D. 48 ; 47 L. J. Ch. 192 ... 157, 158. 166, 669 V. Squire, 16 V. 259 504 Nickisson v. Cockill, 3 De G. J. & S. 622 ; 32 L. J. (N. S.) Ch. 753 ... 55, 348 Nicol V. N., 31 C. D. 529 ; 55 L. J. Ch. 437 ... . 608, 612 Nisbett V. Murray, 5 V. 149 ; 5 R. R. 6 808 Noel V. Henley, 7 Price, 241 ; 12 Price, 213 ; 26 R. R. 660 20, 22, 387 i: Jones,"l6 Si. 309 ; 17 L. J. (N. S.) Ch. 470 . . . . 815 V. N., 10 P. D. 179 ; 54 L. J. P. D. & A. 73 ... . «t»9 V. Rochfort, 10 Bli. (N. S.) 483 ; 4 Ch & Fin. 158 . . . 863 Nokes V. Gandv, 17 Eq. 297 ; 43 L. J. (N. S.) Ch. 276 .. . 745 Norcott V. Gordon, 14 Si. 258 841 Norman v. Morrell, 4 V. 769 ; 4 R. R. 347 52 V. Villar.s 2 Ex. D. 359 ; 46 L. J. Ex. 579 . . . 16(i Norrevs v. Franks, 9 Ir. R. Eq. 18 820, 821 Norris r. Chambers, 29 B. 246 ; 3 De G. F. & J. 583 ; 30 L. J. (X. S.) Ch. 285 777 V. Harrison, 2 Madd. 279 791, 832 n Le Neve, 3 Atk. 32 1T9 v_ N., 2 ColL 719 ; 15 L. J. (N. S.) Ch. 420 . . . 821 I-. — Rep. t. Finch, 419 846 Norrish r. Mar.shall, 5 Madd. 475 115,132 North, Re, 8 L. T. 309 . . . 496 V. Guinan, Beat. 342 199 V. Strafford, 3 P. W. 148 1"9 British I. Co. r. Hallett, 7 Jur. (N. S.) 1263 . . .121 Carolina Estate Co., Re, 5 Times L. R. 518 .... 752 — — of England Oilcake Co. v. Archangel, &c., 10 L. R. Q. B. 24!i : 44 L. J. (N. S.) Q. B. 121 104.140 London Ry. Co. -!;. Great Northern Rv., 11 Q. B. D. 3i. 565 ; 36 L. J. Ch. 981 . Penhall v. Elwin, 1 Sm. & G. 258 ..... Pennell r. Millar, 23 B. 172 ; 16 L. J. (X. S.) Ch. 699 V. Eoy, 2 De G. M. & G. 126 ; 22 L. J. (X. S.) Ch. 409 Pennington v. Dalbiac, 18 W. E. 684 Pentecost V. Lev, 2 J. & W. 207 ; 22 R. E. 104 Percival v. Duiin, 29 C. D. 1 ; 54 L. J. Ch. 570 Percy v. P., 35 B. 295 Perfect v. Lane, 3 De G. F. & J. 369 Ch. 489 Perkins v. Cooke, 2 John. & H. 393 Perks V. Mylrea, W. X. (1884) 64 Perkyns v. Baynton, 1 Bro. Ch. 574 . Perrin v. Lvoii, 9 East, 170 . Perry v. Phelips, 10 Y. jun. 34 ; 7 E. R. 331 Persse v. P., 7 CI. & Fin. 318 ; 4 L. J. Dig. 146 Peruvian Guano Co. v. Buck w old t, 23 C. D. 225 31 L. J. (X. 31 L. J. (X. S.) Ch. 823 52 L. J. Cli. 714 Peshawur, The, 8 P. D. 33 ; 52 L. J. P. D. & A. 30 Peter v. Stirling, 10 C. D. 279 .... Peters v. Cowie, 2 Q. B. D. 131 ; 46 L. J. M. C. 177 Peterson v. P., 3 Eq. Ill ; 36 L. J. Ch. 101 Peto V. P., 16 Si. 590 . Petre v. P., 14 B. 197 . Pettiward v. P., Eep. t. Finch, 152 . V. Prescott, 7 Y. 541 . Pevton V. Bladwell, 1 Yern. 240 . 453, 459 . 852 . 712 6»0, 692 207, 20.S, 209, 215 . 691, 712 26.2s . 645 . 244 311.323 . 747 211,215 . 795 . 108 802, 803 315, 316, 317, 318 802, 803 . 679 . 859 554, 558 . 744 232, 243 . 748, 753 . 752 . 863 . 677 . 840 . 245 . 839 . 784 . 436 . 574 TO VOLUME I. Ixxvii PAGE Pevton r. Biirv, 2 P. W. 628 566, 568, 569 Pfteger, AV, 6 'E(i. 426 87 Phelps & Co. v. Comber, 29 C. D. 813 ; 54 L. J. Cli. 1017 . . .112 Philanthropic Soc. i: Kemp, 4 B. 581 ; 11 L. J. (X. S.^ Cli. 360 . 55 Philips r. Paget, 2 Atk. 80 844 Phillipi^, £.':p., 19 V. 124; 12R. R. 151 .... 365,366,367 , L'e, 34 C. D. 467 ; 56 L. J. Ch. 337 502 r. Amlrews. 56 L. T. 108 214, 219 v. Beal, 32 B. 25 796 r. Carv, 1 Atk. 508 785 r. Draycock, W. N. (1867) 54 368 r. Eastwood, 1 L. & G. t. Siigden, 294 22 r. Gutteridge, 4 De G. & J. 531 ; 32 L. J. (N. S.)Ch. 1...803,804,8i»5 r. MuUings, 7 Ch. 244 ; 41 L. J. (N. S.) Ch. 211 . 268, 273, 281 r. Parry, 22 B 279 P.. 3 Bro. Ch. 723 — - c. —, 1 My. & K. 649 r. — , 8 B.-193 V. Sargent, 7 Ha. 33 — c. Turner, 17 B. 194 1 L. J. (N. S.) Ch. 214 Phipps r. Anglesea, 1 P. W. 696 f. Lovegrove, 16 E4. 80 ; 42 L. J. (N. S.) Ch. 192 32, 33 . 33 . 380 . 804, 805 . 87 . 821 . 863 122, 123, 129, 132, 850 . 752 688, 691 Phosphate Sewage Co. v. Molleson, 1 App. Cas. 780 Picard v. Hine, 5 Ch. 274 ..... ?;. Mitchell, 14 B. 103 804 Pickard, L'e, 53 L. T. 293 213 c. Sears, 6 A. & E. 474 . . . . 137, 450, 451, 462, 468 Pickering c. Ilfracombe Rv. Co., Lt., L. R. 3 C. P. 235 ; 37 L. J. C. P. 118 . " 115 „, Kempton, Toth. 39 174 c. P., 4 Mv. & C. 298 ; 8 L. J. (N. S.) Ch. 336. ..77, 78, 79, 80, 84, 230, 232, 237 Pickersgill r. Rodger, 5 C. D. 163 .... Pickett V. Loggon, 14 V. 215 Pickup v. Atkinson, 4 Ha. 625 ; 15 L. J. (N. S.) Cii 422, 423, 428, 445 . 308 213... 78, 80, 83, 84 . 853 84 . 785 334, 773, 774 . 816 . 251, 272 . 863 . 368 Pieters v. Thompson, G. Coop. 94 752 Piggott, Re, 18 C. D. 146 ; 50 L. J. Ch. 678 342 '- — r. Morriss, Sel. Ch. Cas. 26 ; 2 Eq. Ca. Ahr. 214 . . . 538 r. Stratton, 1 iJe G. F. & J. 33 ; 29 L. J. (N. S.) Ch. 3.. .452, 459 Pike V. Fitzgibhon, 14 C. U. 837 ; 17 C. D. 424 ; 50 L. J. Ch. .394... 672, 687, 690. 721 Pickwick r. Gibbes, 1 B. 271 ^ Pidgeon i\ Spencer, 16 L. T. (N. S.) 83 . Pierce v. Snaveling, 1 V. 425 ..... Piercy, Be, (1895; 1 Ch. 83 ; 64 L. J. Ch. 249 . Piercy v. Roberts, 1 Mv. & K. 4 ; 2 L. J. (X. S.) Ch. 17 Pierse v. Waring, 1 V. 380 ; 2 V. 548 Pierson v. Garnet, 2 Bro. Ch. 38 .... V. Siiore. 1 Atk. 480 V. Hoare, 2 Eden. 182 .... Pillars V. Edwards, 71 L. T. 788 . Pine, Be, 1 P. & D. 388 ; 36 L. J. P. & M. 95 . Pinnev i'. Hunt, 6 C. D. 98 Pinno'ck v. Bailey, 23 C. D. 497 ; 52 L. J. Ch. 880 Piper V. P., 1 John. & H. 91 ; 29 L. J. (N. S.) Ch. 71 Pitcairn, 7?e, (1896) 2 Ch. 199 ; 65 L. J. Ch. 120 Pitt, Me, 53 L. T. 113 V. Camelford, 3 Bro. Ch. 160 .. • 1 4 1 . 707 . 703 . 199 . 127 25, 29 r, 80, 82, 86 90 lx> lXVIII TABLE OF CASES Pitt r. Fellows, 1 Swans. 561 (n.) .... r. Jones, 5 App. Cas. 651 ; 49 L. J. Cli. 795 V. Pidyeon, 1 Ch. Cas. 301 r. Wlnte, 57 L. T. 650 Plavfair v. Cooper, 17 B. 187 ; 23 L. J. (N. S.) Ch. 3-11 PlaVtord -y. P., 4 Ha. 546 Plenty v. West, 16 B. 179 ; 17 L. J. (N. S.) C. P. 316 Plomiey, Re, 47 L. T. (N. S.) 283 ... . Plumber. Neild, 29 L. J. (N. S.)Ch. 618 ... Plvmouth r. Archer, 1 Bro. Ch. 159 . Pockley v. P., 1 Vern. SQ Pole V. Suramers, 6 V. 322 ...... Pollard. Ex p., Mont. & Ch. 239 .... Pollard's Sett., Re, (1896) 1 Ch. 901 ; 65 L. J. Ch. 496 Poller V. Sevniour, 2 Y. & C. 708 ; 7 L. J. (N. S.) PAGE . 852 207, 208, :i09, 210 869, 870 . 216 . 803 . 313 15 98. 514, 516 . 833 4!^ Ex. E(|. 1 54 L. J. Ch. 1012 . Pollack V. Croft, 1 Mer. 181 r. P.. 18 Eq. 329 ; 44 L. J. (N. S.) Cli. 168 . Pom fret r. Lord Windsor, 2 V. 484 .... Ponsonby v. P., 9 P. D. 58 ; 53 L. J. P. D. & A. 112 . Pontifex V. Farnham, 41 W. R. 238 ; 62 L. J. Q. B. 344 Pcole's Estate, Re, 6 C. D. 739 ; 46 L. J. Ch. 803 Poole r. Bott, 11 Ha. 33 ; 22 L. J. (N. S.) Ch. 1042 . 1: Olding, 10 W. R. 337 ; 31 L. J. Ch. 439 V. P., W': N. (1895) 15 Poolev's Trustees v. Whetham, 33 C. D. Ill ; 56 L. J. Ch. 41 Pope'i'. Whitcomb, 3 Russ. 124 . Porcher v. Wilson, 14 W. R. 1001 Portal & Lambe, Re, 30 C. D. 50 ; Porter v. Baddeley, 5 C. D. 542 . r. Fry, Vent. 199 V. Lopes, 7 C. D. 358 7-. P., 37 C. D. 420 . r. Smith, 16 Si. 251 . r. Walsh, (1895) 1 Ir. R. 2rt7 Pott r. Lomas. 6 H. & N. 529 ; 30 L. J. (N. S.) Ex. Potter, Re, 3 Times L. R. 420 . , Re, 7 Eq. 484 V. Baker, 13 B. 273 ; 15 B. 489 ; 21 L. J. V. Dudenev, 56 L. T. 395 . r. Richards, 24 L. J. Ch. 488 . V. Waller, 2 De G. & Sm. 410 . Potts V. Curtis, You. 543 .... V. Norton. 2 P. W. 109 (n.) V. Smith, 8 Eq. 683 ; 39 L. J. Cli. 131 r. Surr, 34 B. 543 Powdrell v. Jones, 2 Sm. & G. 407 ; 23 L. J. (N. Powell V. Cleaver, 2 Bro. Ch. 499 r. Hankev, 2 P. W. 84 . . . V. Hellicar, 27 B. 261 ; 28 L. J. (N. S.) Ch. 355 r. Jewesbury, 9 C. D. 39 . *:. Knowler/2 Atk. 226 . r. London anrl Provincial Bank, (1893) 1 Ch. 795 v. Oakley, 34 B. 575 .. . r. P., 12' Ir. Eq. R. 501 . V. — , 3 P. & D. 56 ; 42 L. J. (N. S.) P. & M. 44 r. —, 10 Ch. 130 ; 44 L. J. (N. S.) Ch. 122 . r. Rilev, 12 Eq. 175 ; 40 L. J. (N. S.) Ch. 533 v. Smith, 14 Eq. 85 ; 41 L. J. (N. S.) Ch. 734 L.J. TO VOLUxME I. Ixxix PAGE Powell V. Thomas, 6 Ha. 300 453 Power V. Hayne, 8 Eq. 262 ,m itj V. P., 8 Ir. Ch. Pvep. 840 ' -^9 Powles V. Page, 3 C. E. 16 ; 15 L. J. (N. S.) ('. P. 217 l->^ Pratt, Be, (1894) 1 Ch. 491 ; 63 L. J. Cb. 484 . . 794, 795 V. Barker, 4 Rusp. 507 ; L. J. Dig. 182 .. . . ' 280 Preece v. Searlo, 3 Jur. (N. 8.) 711 57I Prees r. Coke, 6 Ch. 645 313 Prendergast r. P., 3 H. L. Cas. 218 .77 Preston v. Melville, 15 Si. 35 82 Prestwich v. Poley, 18 C. B. (N. S.) 806 ; 34 L. J. (N. S.) C. P. 189 . -^SS Price, Re Goods of, 12 P. D. 137 ; 56 L. J. P. D. & A. 72 . . 161 70-'' , Be, 28 C. 1). 709 ; 54 L. J. Ch. 509 672', 681 Priddv r. Eose, 3 Mer. 86 ; 17 R. R. 24 . . . 132. 135 142 144 Pride "v. Bubb, 7 Ch. 64 ; 41 L. J. (N. S.) Ch. 105 . . . / 683 Prideaux v. Lousdale, 1 De G. J. & S. 433 ; 32 L. J. (X. S.) Ch. 317 ... 618, 62. J. (N. S.) Q. B. 169 498, 525 TO VOLUME I. Ixxxi Reg. V. Gyngall, (1893) 2 Q. B. 232 ; sah nam. re Gyngall, 62 L. J. Q. B. 559 296, 495, 515, 525, 526, 527, 534 V. Isley, 5 A. & E. 441 ; 5 L. J. (N. S.) K. B. 253 . . .525 V. Judge of Cuuuty Court of Liucolushire, 20 Q. B. D. 167 ; 57 L. J. Q. B. 136 817 . . 670 . 496, 499 18 . . 709 . 499 . ' 498 V. Leresche, (1891) 2 Q. B. 418 ; 60 L. J. M. C. 153 V. Lewi.s, 9 liiiK'S Rep. 326 ..... V. Mayor of London, 16 Q. B. D. 772 ; 55 L. J. M. C. V. Niish, 10 Q. B. D. 454 ; 52 L. J. Q. B. 442 V. Smith, 22 L. J. Q. B. 117 Rex V. Birniingliani, 8 B. & (J. 29 ; 2 Man. & Ry. 230 ; 8 41 V. Gieeuhill, 4 A. & E. 624 V. Hovve.s, 3 El. & E. 332 ; 30 L. J. (N. S.) M. C. 47 Reid V. R., 25 B. 469 V. — , 31 C. D. 402 ; 55 L. J. Cli. 756 V. — , 33 C. D. 220 Reiner v. Salisbury, 2 C. D. 378 ..... Reresby v. Farrer, 2 Vern. 414 ..... Reuss (Priucess oi)v. Bos, 5 L. R. H. L. 176 ; 40 L. J. (N, Reves V. Heme, 5 Vin. Ahr. 343 .... Revett V. Harvey, 1 S. & S. 502 ; 24 R. R. 219 . Reynard v. Arnold, 10 Ch. 386 — V. Spence, 4 B. 103 L. J. M. C. Reynell v. Sprye, 8 Ha. 222 ; 1 De G. M. & G. 660 ; 21 L Ch. 633 Reynish v. IMartin, 3 Atk. 330 . . . 538, 556, 55 Reynolds, Jix p., 15 Q. B. 1). 169 ; 54 L. J. Q. B. 354 , AV, 3 C. D. 61 V. Godlee, Johns. 536 ; 29 L. J. (X. S.) Ch. 633 V. Lady Teuhani, 2 E(|. Ca. Abr. 16 . • V. Tenhani, 9 Mod. 40 V. Teynhani,4 Bro. P. C. 302 Rhodes v. Bate, 1 Ch. 258 ; 35 L. J. Cli. 267 . . 268, 269, 2 V. R., 7 App. Cas. 198 ; 51 L. J. P. C. 53 i;. Rudge, 1 Si. 79 ; 5 L. J. Ch. 17 . V. Swithenbank, 22 Q. B. D. 577 ; 58 L. J. Q. B. 28 . 179 S.)Ch. 665... 77 1 . 556 . 271 . 355 . 441 Riccard v. Prichard, 1 Kay & J. 277 Rice V. Gordon, 1 1 B. 265 Rich V. Cockell, 9 V. 369 ; 7 R. R. 227 -y. Whittiekl,2 Eq. 583 .... Richard v. Barrett, 3 Kay & J. 289 . Richards, Re, 45 C. D. 595 ; 59 L. J. Ch. 728 ,Ee,8E^[.U9 & Co., He, 11 C. D. 676 ; 48 L. J. Cli. 555 V. Baker, 2 Atk. 321 . V. Chambers, 10 V. 580 ; 8 R. R. 44 . V. R., 9 Price, 226 ; 23 R. R. 665 . Richardson, Be, 30 C. D. 396 .... , Jk', Mont. & Cliit. 43 ; 8 L. J. (N. S.) Bank. 27 , lie, (1896) 1 Cli. 512 ; 65 L. J. Ch. 512 . V. Feary,39 C. D. 45 ; 57 L. J. Ch. 1049 . V. Merr'iheld, 4 De G. & Sm. 161 ■ V. Morton, 13 E<|. 123 ; 41 L. J. (N. S.) Ch. 8 Richerson, Ee, (1892) 1 Ch. 379 ; 62 L. J. Ch. 708. ..349, 350, 351, 382, 383 Richmond v. North London R. C, 5 Eci. 352 ; 37 L. J. (Jh. 273 . 342 Riokards v. Gledstanes, 3 Gif. 298 ; 31 L. J. (N. S.) t.'h. 14 Rickets v. Ladley, 3 Russ. 418 Ricketts v. R., 64 L. T. (N. S.) 263 , Riddell v. Errin-ton, 26 C. 1). 220 ; 54 L. J. Ch. 293 . V. Jenner, 10 Bing. 29 ; 2 L. J. (N. S.) C. P. 248 . 500 525 . 525 . 436 630, 674 639, 64i) . 777 J. (N. S.) . 149, 308 7, 558, 559, 568 . 749 . 361 . 383 . 486 . 512 . 498 0, 282, 284, 285 . 288 13, l.i . 240 107, 109 . 309 34, 660, 681, 694 339, 348, 359 19, 120, 128, 130 . 852 . 747 . 563 . 165 790, 795, 814 . 107 . 126 . 840, 847 . 211 . 508 840 342 . 125 . 798 . 725 674, 684 . 431 W. & T. — VOL. I. / Ixxxii TABLE OF CASES Rider v. Waqer, 2 P. W. 329 Kidge V. Newton, 2 Dr. & W. 239 Ridges V. Morrison, 1 Bro. Ch. 392 V. , 1 Cox, 180 . Ridley, Re, 11 C. D. 645 ; 48 L. J. Ch. 563 Ridoiit V. Lewis, 1 Atk. 269 . . . v. Payne, 1 V. 10 . V. Plymouth, 2 Atk. 104 . PAQE . 821 . 795 869, 870, 871 . 54 . 715 . 727 . 867 . 54, 728 . 402, 404 . 463, 464 . 751 . 221 . 214 . 816 Rigden v. Vallier, 2 V. 258 Right V. Bucknell, 2 B. & Ad. 278 ; 8 L. J. K. B. 304 Rigley v. Macnaniara, 2 Cox, 415 ; 2 R. R. 92 Rimington v. Hartley, 14 C. D. 630 . Rijjley v. Sawyer, 31 C. D. 494 ; 55 L. J. Ch. 4i)7 Rippon V. Norton, 2 B. 663 .... Rishton v. Cobb, 9 Si. 615 ; 5 My. & C. 145 ; 9 L. J. (N. S.) Ch. 110...554, 555 Rivis V. Watson, 5 M. & W. 255 ; 9 L. J. (N. S.) Ex. 67 . . . 199 Roach V. Garvan, 1 V. 158 .... 498, 501, 514, 520, 521 V. Frood, 3 C. D. 429 439 Robarts v. Tucker, 16 Q. B. 560 ; 20 L. J. (N. S.) Q. B. 270 . . 465 Robeiidean v. Rou^^, 1 Atk. 543 771 Robert's Trusts, lit; 38 L. J. Ch. 708 632 Roberts v. Collett, 1 Sm. & G. 138 649 V. Cooper, (1891) 2 Ch. 335 ; 60 L. J. Ch. 377... 169, 636,637, 639, 640, 643, 650, 666 r. Edwards, .33 B. 259 ; 33 L. .J. (N. S.) Ch. 369 . . . 832 V. Kutfin, 2 Atk. 112 832 V. Llovd, 2 B. 376 ; 7 L. J. (N. S.) Ch. 115 . . . . 115 r. Morgan, 23 L.R. Ir. 118 77,78 ■ V. Pocock, 4 V. jun. 158 .... 21, 790, 843, 844 i: R., 13 Si. 349 21 i: — , 3 P. W. 65 573, 575 V. Spioer, 5 Madd. 491 ........ 665 I,, Walker, 1 Riiss. & M. 752 1.3, 379 Robertson v. Broadbent, 8 App. Cas. 812 ; 53 L. .J. Ch. 266.. .15, 16, 19, 787, 788, 789 . 276 . 609 . 112 . 213 . 860 . 144 . 643 . 792, 793 .201 . 819 . 55 22 L. J. 55, 380, 385 . 800, 801 . 105 . 115 . 572 .340, 346,348,351,358 . 845 37, 38 r. Macdonough, 6 L. R. Ir. 433 . v. K., 8 P. D. 94 Robev, &c.. Ironworks v. Oilier, 7 Ch. 695 . Robins, Bt, 27 W. R. 705 , Be, 58 L. T. (N. S.) 382 Robinson, 7iV, 27 C. D. 160 ; 53 L. J. Ch. 986 . Robinson's S. E., Re, 12 C. I). 188; 48 L. .J. Ch. 507 . Robinson r. Addison, 2 B. 515 ; 9 L. J. (N. S.) Ch. 369 V. Aston, 9 Jur. 224 v. Cleator, 15 V. 526 ; 10 E. R. 118 . r. Geldurd, 3 Mac. & G. 735 r. Governors of London Hospital, 10 Ha. 19 (N. S.) Ch. 754 . . . r. Hunt, 4 B. 450 V. Macdonald, 5 Mau. & Selw. 228 V. N^sbitt, L. E. 3 C. P. 264 ; 37 L. .1. C. P. 124 - — - r. Omnianey, 23 C. D. 285 ; 52 L. .J. Ch. 440 r. E., 19 B.'201 V Tickell, 8 V. 142 ; 7 R. E. 5 . V. Tonge, 1 P. W. 680 . r. Webb, 17 B. 260 r. Wheelwright, 6 De G. M. & G. 535 ; 25 L. J. (N. S.) Ch. 385 443, 722 , King & Co. V. Lynes, (1894) 2 Q. B. 577 ; 63 L. J. Q. B. 759...672, 690, 696, 700, 702 TO VOLUiME I. Ixxxiii 144 Robley v. R., 2 B. 95 Eocli V. Callen, 6 Ha. 531 ; 17 L. J. (N. S.) Ch Roclie V. O'Brien, 1 Ball & B. 330 Rochford V. Hackinan, Kay, 308 ; 23 L. J. (N. S.) Cli. 261 Rock V. Hardman, 4 Madd. 254 Roddick r. Gandell, 1 DeG. i\[. & G. 776 . Roddy, Re, 11 Ir. Ch. R. 369 Roden v. Smith, Amb. 588 Rodger v. Comptoir, &c., de Paris, L. R. 2 P. C. 405 ; 38 30 Rodhouse v. Mold, 35 L. J. Ch. 67 . Rodney v. Chaniber.s, 2 East, 297 .... Roe V. Hodgson, 2 Wills. 129 Roebuck v. Chadebet, 8 Eq. 127 ; 38 L. J. Ch. 488 . Rogers, Exp., 8 De G. M. & G. 271 ; 25 L. J. (N. S.) Bank • , Re, L. R. 1 C. P. 47 ; 35 L. J. C. P. 71 . V. Acaster, 14 B. 445 V. Bolton, 8 L. R. Ir. 69 V. Clarke, 1 C. P. Coop. 376 .... V. Horn, 26 W. R. 432 r. Ingham, 3 C. D. 351 . . . . r. Jones, 3 C. D. 688 ; 7 C. D. 345 V. Soutten, 2 Keen, 598 ; 7 L. J. rN. S.) Ch. 118 & Co. V. Lambert & Co., (1891) 1 Q. B. 318 ; 60 187 Roller. Perry, 11 W. R. 674 ; 32 L. .1. Ch. 149 . Rolls V. Pearce, 5 C. D. 730 ; 46 L. J. Ch. 791 . Rolt V. White, 31 B. 520 Romford Canal Co., Re, 24 C. D. 85 ; 52 L. J. Ch. 729 Rook r. Worth, 1 V. 461 Roper, Re, 39 C. D. 482 ; 58 L. J. Ch. 439 ... 684, 685, 686, V. R., 3 C. D. 714 Rorke's Estate, Re, 15 Ir. Ch. R. 316 .... Rose V. Rolls, 1 B. 270 V. R., 2 Vern. 232 V. —, 7 P. D. 225 ; 8 P. 1). 98 ; 52 L. J. P. D. & A r. Sharrod, 1 1 W. R. 356 & Bartlett's Case, Cro. Car. 292 .... Roseingrave v. Burke, 7 Ir. Rep. Eq. 187 . Rosenthal's Sett., Re, 6 W. R. 139 . Ross's Trust, Re, 1 Si. (N. S.) 196 ; 20 L. .J. (N. S.) Ch. 293 Ross V. Borer, 2 J. & H. 469 ; 31 L. ,1. (N. S.) Ch. 709 V. Willoughbv, 10 Price, 22 ... . Rossiter, Re, 13 C." ]J. 355 ; 49 L. J. Ch. 36 Rotheram v. R., 26 B. 465 Roughton r. Gibson, 36 L. T. 93, p. 32 ; 25 \V. R. 269 Roundell r. Breary, 2 De G. & .J. 319 V. Currer, 2 Bro. Ch. 73; 1 Swans. 3S3 (n.) Rouse's Estate, Rf^, 9 Ha. 646 Rouse V. Barker, 4 Bro. P. C. 660 .... V. Jones, 1 Ph. 462 ; 14 L. J. (N. S.) Ch. 4 Rowe V. Gray, 5 C. D. 263 ; 46 L. J. Cii. 279 . V. Jackson, 2 Dick. 604 V. R., 2 De G. & Sm. 294 ; 29 B. 276 ; 17 L. J. (X. S Rowland v. M'Donnel, 13 Ir. Ch. Rep. 365 .... Rowley v. Unwin, 2 Kay & J. 138 V. R., 1 L. R. H. L. Sc. & D. 63 ; 35 L. J. P. & M. PAGK . 871, 872 . 870, 872 . 315 .516, 524, 562 . 847 108, 112, 115 . 59 . 845, 853 J. P. C. . 136 . 28, 29, 34 . 611 41 487 215 122 . 169 . 163 159, 160, 649 . 794 . 239 . 236 445 853 422, 441 L. J. Q. B. . 468 28, 29 . 408 . 132 . 132, 133 . 364, 366 687, 689, 690, 720 806, 841, 842 . 58 . 646 . 200 . 598, 604, 605 . 714 . 419 . 834 . 704 . 715 80O, 801 . 591 . 30 . 51 211 113 . 442 . 853 . 1 75 . 745 . 209 626, 637 )Cli.357 80, 81, 695 . 163 . 693 110... 246, 604 606 209, Ixxxiv TABLE OF CASES PAGE Rowson V. Harrison, 31 B. 207 ; 31 L. J. (N. S.) Ch. 818 . . . 29 Rnxburgh v. Fuller, 13 W. R. 39 870, 872 Roxburghe V. Cox, 17 C. D. 520; 50 L. J. Ch. 772 . . . 125,133 Royle, Be, 43 C. D. 18 ; 59 L. J. Ch. 1 439 Rudse V. Winnell, 11 B. 98 ; 4 De G. & J. 223 ; 17 L. J. (N. S.) Ch. 215 . 506, 670, 853 Rud stone v. Anderson, 2 V. 418 797, 825, 827 Ruffles V. Alstone, 19 Eq. 539 ; 44 L. J. (N. S.) Ch. 308 . 608, 612, 631 Runibold v. R., 3 V. 65 436 Rumsey i;. George, 1 M. &S. 176 160 Rusden v. Pope, 3 L. R. Ex. 269 ; 37 L. J. Ex. 137 . . . . 129 Rusli V. Higgs, 4 V. jun. 638 745 Russell, iee, 37 Sol. Jo. 212 Ill V. Dickson, 2 Dr. & W. 133 ; 4 H. L. C. 293 . 853, 870, 871, 872 Russell's Policy Trusts, lie, 15 Eq. 26 125 Rutter v. Everitt, 13 R. Oct. 121 128 f. Maclean, 4 V. 537 428 Ryall V. Rowles, 1 V. 348 95, 399 Rvcrolt i: Christv, 3 B. 238 665 Rvder, ii-c. 20C. D. 514 365 Ryland v. Smith, 1 Mv. & C. 53 ; 5 L. J. (X. S.) Ch. 186 . 158, 159, 644 Ryle i: Swindells, M'Cle. 519 318 S. S.'s Sett., i?e, W. N. (1893) 127 724 Sackville v. Smyth, 17 Eq. 153 ; 43 L. J. (N. S.) Ch. 494 . . 27, 30 Sadler r. Turner, 8 V. jun. 617 790 Sadlierr. Butler, 1 Jr. "E. E(i. 415 421,425,428 Saffron Walden B. B. So. v. Ravuer, 14 C. D. 406 ; 49 L. J. Ch. 465 121, 125 Sagitary 17. Hyde, 1 Vt-rn. 455 .39,44,48,67 St. Albynv. Harding, 27 B. 11 311,324 St. George V. AA^d^e,"l My. & K. 622 618,619,620 St. Gcbain &c. v. Hovermann, (1893) 2 Q. B. 97 ; 62 L. J. Q. B. 485 . 779 St. Johnr. St. J., 11 V. 5:i2 588,589,593,595 St. Luke's V. St. Leonard's, 2 Anst. 395 175 Salisbury, Re, 2 C. D. 31 ; 45 L. J. Ch. 250 496 Salles V. Savignon, 6 V. 572 503, 504 Salt, lie, (1895) 2 Ch. 203 ; 64 L. J. Ch. 494 . . 32, 49, 50, 51, 52 V. Chattawav, 3 B. 576 ; 10 L. J. (N. S.) Ch. 234 . . 13, 387 Salter v. Brudshaw, 26 B. 161 ; 28 L. J. (N. S.) Ch. 426.. .311, 323,325, 326 Sailing, E.r p., 25 C. D. 148 ; 53 L. J. Ch. 415 . . . . 63, 65 Sah-in v. Weston, 14 W. R. 757; 35 L. J. Ch. .5r)2 . . . 804, 805 Salwey v. S., Ainb. 692 650 Sampson & Wall, Re, 25 C. I). 482 ; 53 L. J. Ch. 457 . 502, 503, 508 Sams V. Cronin. 22 W. R. 204 507 Saniwell v. Wake, 1 Bro. Ch. 145 13 Sanders v. KiJdell. 7 Si. 536 ; 5 L. J. (N. S.) Ch. 27 . . . .861 V. Rodway, 16 B. 207 ; 22 L. J. (N. S.) Ch. 230 . . .603 Sanderson's Trusts, 3 Kay & J. 497 ; 29 L. J. (N. S.) Ch. 804 . . 819 Sanger v. S., 11 E87 Segrave r. Kirwan, Beat. 157 • 275 IXXXVl TABLE OF CASES Sellon V. Watts, 9 W. E. 847 Selly, lie, 8 De G. M. & G- 271 ; 25 L. J. (X. S.) Bank. 4 '- V. S., 1 Phill. E. E. 223 V. — , 2 Eq. Ca. Alir. 488 Selwood V. Mildmay, 3 V. jun. 306 .... Sempliill V. Bayly, Pr. Ch. 562 Senhonse v. Maneon, 52 L. T. 745 .... Senior r. Hereford, 4 C. D. 495 Sercombe v. Sanders, 34 B. 382 ..... Serj,'eson r. Sealev, 2 Atk. 413 Serle v. St. Eloy,"2 P. W. 386 Seroka v. Kattenburg, 17 Q. B. D. 177 ; 55 L. J. Q. B. 37 Setonr. Snutli, 11 Si. 59 Severs v. S., 1 Srii. & G. 400 Sewell, Re, 11 Eq. 80 ; 40 L. J. (N. S.) Ch. 135 . V. Walker, 12 Jur. 1041 30 808, 8 280 268, i Seymore v. Tresilian, 3 Atk. 358 .... Seymour v. Bennett, 2 Atk. 483 Sevton, Be, 34 C. D. 511 ; 56 L. J. Ch. 775 Sliadbolt r. Thornton, 17 Si. 49 ; 18 L. J. (N. S.) Ch. 392 Shaftesbury v. Hannam, Cas. t. Finch, 323 . V. Marlborough, 7 Si. 237 ; 3 L. J. (N. S.) Ch . V. S., Gilb. Eq. E. 172 . V. — , 2 Vern. 747 . Shafto V. Adams, 4 Gif. 492 ; 33 L. J. (N. S.) Cli. 28 V. Butler, 40 L. J. Ch. 308 ; 19 W. E. 595 Shakespear, Re, 30 C. D. 171 ; 55 L. J. Ch. 44 . Shallcross v. Wriiiht, 12 B. 505 . Shanahan, Re, 20 L. T. 183 .... Shand v. Du Buisson, 18 Eq. 283 ; 43 L. J. (N. S.) Ch. 508 Shanley v. Harvey, 2 Ed. Rep. 125 . Sharland, Re, (1896) W. N. 62 ; 74 L. T. 664 ; 65 L. J. Ch Sharp V. Fov, 4 Ch. 35 r. Leach, 31 B. 491 ; 10 W. E. 878 . V. McHenry, 55 L. T. 747 V. St. Sauveur, 7 Ch. 343 ; 41 L. J. (N. S.) Ch. 57' Sharpe v. Wilmot, 84 L. T. Jo. 297 . Shattock V. S., 2 Eq. 182 ; 35 L. J. Ch. 509 Shaw's Trust, Re, 12 L. E. Eq. 125 . Shaw V. S., Vern. & Scriv. 607 Sheddon v. Goodrich, 8 V. 481 Sheffield v. London .J. S. Bank. 13 App. Cas. 333 ; 57 L. V. Orrerv, 2 Atk. 282 Sheldon. Re, 39 C. D. 51 ; 58 L. J. Ch. 25 . Slielford <;. Acland, 23 B. 10 ; 26 L. .J. (N. S.) Ch. 141 Shellard, Ex p., 17 Eq. 109 ; 43 L. J. (N. S.) Bai.k. 3 Shelley v. Westbrooke, Jac. 266 (n.) .... Shelly V. Nash, 3 Madd. 232 ; 18 E. E. 223 Shepherd v. Churchill, 25 B. 21 Shepley v. Woodhouse, 2 Atk. 535 .... Sheppard v. Oxenford, 1 K. & J. 500 .... V. S., 32 B. 194 Sherard, Re, 4 De G. J. & S. 421 .... Sherrington v. Yates, 12 M. & W. 855 ; 13 L. J. (N. S.) Ex. 24 Shevvell v. Dwarris, .John. 172 .... ShiUeto V. Collett, 7 Jur. (N. S.) 385 . Ship Warre, Re, 8 Pr. 269 (n.) . Shipvvay v. Ball, 16 C. D. 376 ; 50 L. J. Ch. 263 Shirley v. Ferrer.-^, 1 1 V. 536 .... V. Martin, 3 P. W. 74 (n ) Shirt r. Westlv, 16 V. 396 : 10 E. E. 210 . PAGE 32, 49, 53 . 123 . 500 . 511 . 837 38, 548, 552 . 746 . 214 . 284 . 366 3, 6, 23, 33 691, 701 . 443 . 798 81, S2, 86 . 311 . 728 . 199 . 672 . 341 512, 523 ■L CI 488 20, 821, 824 . 31 5 718, 720 679, 692 18 . 525 109, 110 . 411 . 814 471, 691 281, 311 . 749 340, 362 . 241 685, 689 . 78 . 487 435, 829 986 . 451 . 563 , 81, 82, 86 . 682 . 113 517 315 212 . 293 . 772 802, 804 . 200 . 160 . 665 . 645 . 105 648, 649 575 . 326 841, 851, 852 2or TO VOLUME I. IxXXvii Shopland v. Ryoler, Cro. Jac. 55 . . . . 4-^ Shute V. Hogge, 5S L. T. 546 . . . [ ' ' " ' yj'rj Shuttleworth v. Greaves, 4 My. & C. 38 ; 8 L. J. (X. S ) Ch 7 ' 429 ^90 Sibbering v. Earl of Balcarrat;, 3 De G. & Sm. 735 ; 17 L J r\ S / " Ch. 102 ' 316 3-M Sibeth, i;.c^j., 14Q. B. D. 417; 54 L. J. Q.'b. 32-^ ' ' ' ' 660 Sibley ('. Perry, 7 V. jiin. 523 ; 6 R. R. 183 . . 79.? 793 79^ Sidebothaiu r. Watson, II Ha. 170 . . . 01 799' 8-^1 Sidney v. S., 17 Eq. 65 ; 43 L. J. (N. S.) Cii. 15. . ' 8I3' 8''-'' 8^4 V. Vau-lian, 2 Bro. P. C. 254 .... ' ""' 815 Sieveking v. Belirens, 2 My. & C. 581 . . . ' .' ] ' 740 Sinini V. Anglo-American Telegraph Co., 5 Q. B. D. 21.3 ; 49 L J Q. B. 392. 452,464,465 Sininionds v. Bolland, 3 Mer. 554 74(5 Simmons v. London J. S. Bank, (1891) 1 Ch. p. 294 ;"61 L J Ch 7-?3 136 • V. Pitt, 8 Ch. 978 ; 43 L. J. (N. S.) Ch. 267 . . 37!) ^^ Rose, 6 De G. M. & G. 411 . . I4 ■ V. S., 6 Ha. 352 . . . . . . ' ' " (;-,., ^'al]ance, 4 Bro. Ch. 345 ." 7:)2 793 Sim])S(in r. Asliworth, 6 B. 412 ....... " "' 34:) 1: Denison, 10 Ha. 51 . . . . ' ' 734 V. Denny, 10 C. D. 28 ' ' ' 2OI ?'. Ear]e.s, 11 Jur. 921 ." ' ' 80 ^■- Fo^'<^ 1 J- & H. 18 ; 1 H. & M. 195 ; 32 L. J. (X. s") Ch' ,2-19 .' : 751 V. Jones, 2 Russ. & M. 365; 9 L. J. Ch. 106 . . 509 643 V. Lamb, 7 EL & Bl. 84; 26 L. J. (X. S.) Q. B. 121 ' 148 V. , 26 L. J. Q. B. 121 275 V. Lester, 4 Jur. N. S. 1269 ; 33 L. T. 6 . . . 80 82 88 V. Molson's Bank, (1895) A. C. 270 ; 64 L. J. P. C. 51 . ' V>7 I'. Ritchie, 16 Eq. 103 ; 42 L. J. (X. S.) Ch. ,543 . . 216 217 Sinclair, lie, 56 L. T. 83 ' 344 V. James, (1894) 3 Cli. 554 ; 63 L. J. Ch. 873 '. '. '. 201 Singleton v. Hopkins, 4 W. R. 107 ; 25 L. J. Ch. 50 . . . 200, 217 )'. Tomlinson, 3 App. Cas. 404 386, 388 Sinnett r. Herbert, 12 Eq. 201 ; 41 L. J. (X^ S.) Cli. 388 ... 21 Sir Thomas Meere's Case, 1 Vern. 465 293 Sirdali Gurdyal Singh v. Rajah, &c., (1894) A. C. 670 . .' 752, 779 Sisson ?,'. Giles, 3 De G. J. & S. 614 ; 32 L. J. (X. S.) Cli. 606 . 360, 363 hit well r. Bernard, 6 V. 520 ; 5 R. R. 374 . '. . 87,847,858 Skapholme v. Hart, Cas. t. Finch, 477 14.j Skeggs, Ee, 2 De G. J. & S. 533 ." 300 Skinner, £".6'^;., 9 Moore, 278 497,498,525 V. Warner, 2 Dick. 779 ,")16 Skinner's Trusts, Re, 1 John. & H. 102 ; 34 L. J. (X. S.) Bank. 9 .' 815 Skirving v. Williams, 24 B. 275 81, 83, 84 Slade r. Barlow, 7 Eq. 296 ; 36 L. J. Cli. 369 'l98 Slanning v. Style, 3 P. W. 334 666, 847, 860 Slater's Trusts, Re, 11 C. D. 227 ; 48 L. J. Cli. 473 . . . 320, 324 Slatter v. Noton, 16 V. 197 H-irt, 826 V. S., 1 y. & C. Ex. C. 28 608*, 611 Sleech v. Thorington, 2 V. .562 .... 790, 792, 793, 822, 848 Sleeman V. Wilscm, 13 E(i. 36 5i(>, 513 Slim V. Croucher, I De G. F. & J. 5is ; 29 L. J. {N. S.) Cii. 273. ..451, 458, 459 Slmgsby v. Grainger, 7 H. L. Cas. 273 ; 28 L. J. (X. S.) Ch. 616 . 795 SlocomlDe v. Glubl), 2 Bro. Ch. 545 (515, 6J9 Smalliiian v. Goolden, 1 Ci).\, 329 822 Smallmnn's Estate. L'r. 8 ]r. H. Em. 240 084 Ixxxviii TABLE OF CASES Smart v. S., (1892) A. C. 425 ; 61 L. J PAGE P. C. 38...49(i, 514, 515, 517, 518, 5i5, 52G, 527, 531, 533 161, 672, 702. 7U4 502, 506 71 L. T. 318 ; 42 W. R. 368 . . .855 681 . 566 . 863 27, 30 V. Tranter, 43 C. D. 587 ; 59 L. J. Cli. 363 Smhh,Exp..2-2\y. R. 294 Be, W. N. (94) 115 ; , 45 0. I). 632 .... , 44 C. D. 659 ; 59 L. J. C'h. 284 , 42 C. D. 302 ; 58 L. J. Cli. 860 , 33 Ch. D. 195 ; 55 L. J. Ch. 914 , 51 L. T. (X. S.) 501 '13 , 10 Cli. 84 365 V. Baker, 1 Y. & C. C. C. 229 , V. Bate, 2 Dick. 631 . r. Brunin<;, 2 Verii. 392 . r. Casen, 1 P. W. 406 r. Clav, 3 Bro. Ch. 639 (n.) r. Claxtoii, 4 Madd. 493 ; 20 R r. Covvderv, 2 S. & S. 358; 3 L. r. Everitt," 4 Bro. Ch. 64 . r. Fitzgerald, 3 V. & B. 2 ; i: Iliffe, 20 Ecj. 666 ; 44 L r. Kay, 7 H. L. Cas. 750 ; R. 320 . J. Ch. 205 13 R. R. 129 . J. (N. S.) Ch. 755 . 30 L. J. (N. S.) Ch, 105 . 520 . 573 . 402 . 286 330, 359, 382, 383 . 570 . 109 21, 828 . 506, 507 45. ..270, 271, 281, 282, 283, 284, 311 Kinjr, 1 Russ. 363 805 , (1892) 2 Q. B. 543 326 Lucas, 18 C. U. 531 ..... 423,443,721,722 Lvne, 2 Y. & C. C. C. 345 429 Matthews, 3 De G. F. & J. 139 ; 30 L. J. (X. S.) Ch. 445... 633, 642 Moppton, 37 L. J. Ch. 6 . . . Parkes, 16 B. 115 , Pinconibe, 3 Mac. & G. 653 . . Pvhus, 9 V. juTi. 566 .... , Sehvvn, 5 W. R. 682 . . S., 2 Ha-. Ec. (Supp.) 44 (ii.) . — , 2 Cr. & M. 231 ; 3 L. J. (N. S.) Ex. 42 . — , 3 Atk. 304 — , 2 !Stra. 955 V. — , 10 Ir. Ch. R. 461 ... . r. — , 3 Russ. 1 ; 6 L. J. K. B. 64 . V. — 3 Gif. 263 ; 30 L. J. (N. S.) Ch. 637 : ,;. Wei,'uelin, 8 Eq. 198 ; 38 L. J. Ch 465 Smyth, Ex p., 3 Mont. D. & De G. 687 Smvthe v. S., 18 Q. B. D. 544 ; 56 L. J. Q. B. 217 Sueed v. Culpepper, 2 Eq. Ca. Ab. 255, 260 Snelk'rove v. Bailey, 3 Atk. 214 Snelson v. Corbet, 3 Atk. 3b8 . Snovvdon r. Dales, 6 Si. 524 ; 3 L. J. (N. S.) Ch. 188 Soames c. Maitin, 10 Si. 287 ; 8 L. J. (N. S.) Ch. 367 Soar V. Ash well, (1893) 2 Q. B. 390 . Suckett V. Wray, 4 Bro. Ch. 483 ... Societe Generale de Paris r. Tramways, &c., 14 g L. J. Q. B. 177 /•. Walker, 11 App. Cas. Q. B. 169 Soilleux V. Herbst, 2 Bms. & Pnl. 444 ... Solomon v. S., 12 AV. R. 540; 33 L. J. Ch. 473 . Somers-Cocks, Re, (1895) 2 Ch. 449 ; 65 L. J. Ch. 49 Somerset, He, (1894) 1 Cii. 231 ; 63 L. J. Ch. 41 V. Cox, 33 B. 634 ; 33 L. J. (N. S.) Ch. 490 . 28 . 132 230, 237 . 790 . 149 . 587 . 119 480, 501 . 406 B. D. 424 121, 28, 397, 53, 686, 54 20 L. J. 28 122 639 779 123 242 47 410 728 816 799 862 713 126 127 611 25 55 725 124 TO VOLUME I. Ixxxix Soiner^^et r. Earl Poulett, (1894) 1 Ch. Sopwitli V. Maugham, 30 B. 235 Soutar, Re, 26 C. D. 236 ; 54 L. J. Ch. South American, &c. Co., (1895) 1 Ch. ■ V. Bloxham, 2 Hem. & M. 457 ; 231 ; 63 L. J. Ch. 41 256 p. 50 ; 64 L. J. Ch. 34 L. J. (N. S.) Ch 188 Spalding v. Ruding, 6. B. 376 ; 15 L. J. (N. S.) Ch. 374 Sparke.s v. Bell, 8 B. & C. 1; 6 L. J. K. B. 206 . Sparrow v. Friend, Dick. 348 .... V. Josselyn, 16 B. 135 . Speer v. Crawter,'2 Mer. 416 ; 16 R. R. 191 Spence, Re, 2 Ph. 247 ; 16 L. J. (N. S.j Ch. 309 Spencer, Re, 30 C. D. 183 ; 55 L. J. Cli. 80 v. Chesterfield, Amb. 146 . V. Clarke, 9 C. D. 137 ; 47 L. J. Ch. 692 V. Harrison, 5 C. P. D. 97 ; 49 L. J. C. P V. S., 21 B. 548 V. Wilson, 16 Eq. 506 ; 42 L. J. (N. S.) Ch. 754 Sperling v. Rochfort, 8 V. 180 V. Toll, 1 V. 70 Spicer v. Dawson, 5 W. R. 481 V. Martin, 14 App. Cas. 23 ; 34 C. D. 1 ; 58 L. J. Ch V. S., 24 B. 365 ; 26 L. J. (N. S.) Cli. 704 Spike V. Harding, 7 C. D. 871 ; 42 L. J. Ch. 323 Spire V. Smith, 1 B. 419 Spirett V. WQlows, 1 Ch. 522 ; 4 Ch. 407 ; 35 L. J. Ch. 755. 189 369 790, Spong V. S., 3 Bli. 84 ; 1 T. & J. 300 . Spooner's Trust, 2 Si. (N. S.) 129 ; 21 L. J. (N. Spoule r. Prior, 8 Si. 189 ; 6 L. J. (N. S.) Ch. Sprague, Ex p., 4 De G. M. & G. 866 . Spratley v. Wihim, I Holt, 10 . Spread v. Morgan, 11 H. L. Cas. 588 . JSpring V. Pride, 4 De G. J. & S. 395 . Sprye v. Porter, 7 El. & Bl. 58 ; 26 L. J. (N. S.) Spurway v. Glynn, 4 V. 483 ; 7 R. R. 279 . Spyer v. S., Nels. 14 Squires v. Ashfurd, 23 B. 132 . Stace V. Gage, 8 C. D. 451 ; 47 L. J. Ch. 608 Stack V. Royse, 12 Ir. Ch. R. 246 Stackpole v. Beaumont, 3 V. 89 ; PAGB . 863 441,442 . 672 . 236 . 64 . 64 . 696 . 199 791, 794 . 174,176 495, 515, 518 . 711 513, 520, 521 116, 124, 139 . 358 . 820 . 386 . 645 . 349 . 707 309 . 460 . 650 175, 176, 179 . 871 .639, 640, 641, 650 21, 51, 843 788 52 128 406 441 713 . 146, 149 21 , 798, 852 . 174 . 635 . 201, 214 . 113 3 R. R. 52. ..505, 508, 548, 551, 554, 555, 556, 557, 570, 650 103, 799 S.) Ch. 151 1 Q. B 64 Stafford r. Buckley, 2 V. 177 Stahlschniidt r. Lett, 1 Sm. Stainton c. The Carron Co., Stamford, &c.. Banking Co. f . & J. 310 . Stammers v. Halliley, 12 Si. 42 . Stamper v. Barker, 5 Madd. 157 .... r. Pickering, 9 Si. 176 . Standard Discount Co. v. Barton, 37 L. T. 581 . Standermg r. Hall, 11 C. D. 652 ; 48 L. J. Ch. 382 Stanes v. S., 3 P. D. 42 ; 47 L. J. P. D. & A. 19 Staniland v. Willot, 3 Mac. & G. 674 . Stanley v. Jones, 7 Bing. 369; 9 L. J. C. P. 51 . V. Potter, 2 Co.x, 180 ; 2 R. R. 26 . V. S., 7 C. D. 589 ; 47 L. J. Ch. 256 V. Wrigley, 3 Sm. & G. 18 ; 24 L. J. (N. S.) Ch. 176 & G. 421 841 , 6 Jur. (N. S.) 360 239 V. Ball, 31 L. J. (S. S.) Ch. 143 ; 4 De G. . 164 . 843 . 162 . 803 . 743 213, 358, 371 . 246 . 402, 405 . 146, 149 791, 820, 821 . 712 . 211 Stannard v. Vestry of St. Giles', Camberwell, 20 C. D. 196 ; 51 L. .1. Ch. 629 742 Stanton i-. Hall, 2 Russ. & M. 175 ; 9 L. J. Cli. Ill . . 635, 6(il, 662 Stapleton y. Colville, Cas. t. Tail). 202 3,11 87 xc TABLE OF CASES Stapleton v. Conway, 1 Y. 428 . . . State, V. 1. Co, Re 1 De G. J. & ti. 634 ; 32 L. J. Cb. 300 Stead V. Newdigate, 2 Mer. 521 Stednian, Re, 58 L. T. 709 Steed V. Galley, 2 Mv. & K. 52 ; 4 L. J. (N. S.) Cli. 1 V. Preece, 18 "^Eq. 192; 43 L. J. (X. :^.) GIi. Steednian v. Poole, 6 Ha. 193 ; 16 L. J. (N. S.) Ch. 348 . Steele v. North Metropolitan Ry., 2 Cli. 237 ; 36 L. J. Gh. 540 Steinmetz v. Halthin, 1 G. & J." 64 Stelfox r. Sutrden, Johns. 234 Stent V. Robinson, 12 V. 461 Stephens v. Green, (1895) 2 Ch. 148 ; 64 L. J. Ch. 546... 10 PAOE . 858 . 47 339, 347, 360, 362 . 202, 214, 216 . 643 687... 21 2, 330, 365, 369 — V. James, 1 My. & K. 627 . y. Olive, 2 Bro. Ch. 90 ■ V. S., 3 Drew, 697 ; 1 De G. & J. 62 1,'. Tottv, Cro. Eliz. 908 ■ V. Venables, 30 B. 627 . Stephenson, Ex j)-, De G. 589 ; 17 L. J. (X. S.) Bank. V. Dowson, 3 B. 342 ; 10 L. J. Ch. 933 . • r. V. Heathcote, 1 Eden. 38 . Stevens v. Bagwell, 15 V. 139 ; 10 R. R. 46 v. Savage, 1 Y. jun. 154 . ^•. Trevor-Garrick, (1893) 2 Ch. 301 62 L. J. Ch. 660 . (X'. S.) i3k. 10 360, Stevenson v. Abington, 11 "W. R. 935 Steward, Ex p., 3 Mont. D. & De G. 265 ; 13 L. J Stewart, Ex j)., 34 L. J. ^Bk.) X. S. 6 . ■ , Re, 1 Sm. & G.~32 ; 22 L. J. (X. S.) Ch. 369 • , Re, 8 C. D. 621 ; 47 L. J. Bank. 43 V. Denton, 4 Doug. 219 V. S.,6 Ch & Fin. 911; 4 L. J. (X. S.) Ch. 230... 229, 231, 232, 234, 242, 245 Stiffe r. Everitt, 1 My. & C. 37 ; 5 L. J. (X. S.) Ch. 138 . . 164, 636 Stikeman v. Dawson, 1 De G. & Sm. 105 ; 16 L. J. (N. S.) Ch. 205 . 469 . 713 . 754 . 638 . 802 848, 852 121, 124, 126 . 523 591, 592, 602 . 425, 427 . 846 131, 1.35, 850 . 65 . 792, 809 3,11,12,15 . 145 503, 505 503, 717 . 561 . 109 . 123 371 608 95, 808, 829 Stileman r. Ashdown, 2 Atk. 480 Stilwell V. Wilkins, Jac. 280 Stirling v. Lydiard, 3 Atk. 199 Stiiling-Ma.xwell r. Cartwright, 11 C. D. 523 ; 48 L. J. Ch. 562 Stocker r. Harbin, 3 B. 479' Stockley V. S., 1 Y. & B. 31 ; 12 R. R. 189.. .228, 232, 233, 234, Stocks V. Dobsun, 4 De G. M. & G. 11 ; -l-l L. J. (X. S.) Ch. 884. Stogdon V. Lee, (1894) 1 Q. B. 661 ; 60 L. J. Q. B. 669.. .666, 692 Stoke-s Re, 67 L. T. 223 V. Cheek, 28 B. 620 ; 29 L. J. (X. S.) Ch. • T. Dncruz, 62 L. T. 176 . Heron, 12 CI. & Fin. 161 . 922 Stonard v. Don kin, 2 Camp. 344 Stone r. Godfrey, 5 De G. M. & G. 76 ; 23 L. J. (X. S V. Lidderdale, 2 Anst. 533 V. Parker, 1 Dr. & Sm. 212 • V. Yea, Jac. 426 Stone's Will, Re, W. N. (93) 50 . Stonehouse v. Evelyn, 3 P. W. 254 Stonor, Re, 14 C. D. 195 ; 52 L. J. Ch. Storer v. Prestage, 3 Madd. 167 . Storke r. S., 3 P. W. 51 . . . 3 R. R. 622 . 29 L. J. (X. S. Ch. 8' 496 . 309 . 827 772, 773 13 238, 243 115, 119, 123, 132 710, 719, 720 32, 49 . 805 . 351 800, 801, 802 . 468 ) 796... 231, 233, 236 . 142 4 . . 28 . 145 . 128 . 852 16, 717, 722 . 859 . 522 TO VOLUME I. XCl Story V. Johnson, 2 Y. & C. 586 ; 1 Y. & C. 598 V. Ton^'e, 7 B. 91; 13 L. J. (X. S.) Cli. 191 V. Waddle, 4 Q. B. D. 289 Stourton v. S., 8 De G. M. & G. 760 ; 26 L. J. (N. S.) Ch. 354 Stow V. Davenjtuit, 5 B. & Ad. 359 Stracliau v. Blander, 1 Eden. 3(,i3 Strange v. Braman, 15 Si. 346 • V. Smith, Ami). 263 ...... Stratlord v. Powell, 1 Ball & B. 1 Strathmore v. Vane, (1896) 1 Ch. 507 ; 65 L. J. Ch. 298 Stratton v. Best, 1 V. jun. 285 ; 2 R. R. 106 V. Grimes, 2 Vern. 357 Strauss V. Francis, 1 L. J. Q. B. 379 Streaiheld v. S., 1 Swans. 447 Striljlilehill v. Brett, 2 Vern. 445 Strickland v. S., 10 Si. 374 ; 6 B. 77 ; 4 L. J. Dig. 273 Stright, Ex ])., 1 Mart. 502 ' . . Stringer v. Harper, 26 B. 33 Strode v. Lady Falkland, 2 Vern. 621 Strong, Ee, 26 L. J. Ch. 64 V. Ingram, 6 Si. 197 Stronge v. Hawkes, 4 De G. & J. 632 ; 4 De G. M. & G. 186 . Strugnell v. S., 28 C. D. 259 ; 53 L. J. Ch. 1167 . Struthers v. S., 5 W. R. 809 Stuart, Be, (1893) 2 Q. B. 2(il ; 62 L. J. Q. B. 623 V. Bute, 9 H. L. C. 440 .... 499, 521, Stubbs, Re, 8 C. D. 154 ; 47 L. J. Ch. 671 . V. Sargon, 2 B. 596 ; 6 L. J. (X. S.) Ch. 254 . Stucley's Sett., lie, 39 L. J. Ex. 86 ; L. R. 5 Ex. 85 . Stump V. Gabey, 2 De G. M. & G. 623 ; 22 L. J. (X. S.) Ch. 3 Sturge V. S., 12 B. 229 ; 19 L. J. (X. S.) Ch. 17 . Sturgis V. Champneys, 5 My. & C. 97 ; 4 L. J. Dig. 102 V. Corp., 13 V. 190 i' 9 R. R. 169 194 315 Sudeley, Re Lord, (1894) 1 Ch. 334 ; 63 L. J. Ch. Suggitt's Trusts, Re, 3 Ch. 215 ; 37 L. J. Ch. 426 Suisse V. Lowther, 2 Ha. 432 ; 12 L. J. (X. S.) Cli Sullivan v. Galbraith, 4 Ir. R. Ecp 582 ... . V. S., 2 Adams, 299 Summers, i2e, 13 C. D. 136 ■ V. Griffiths, 35 B. 27 Surman v. Wharton, (1891) 1 Q. B. 491 ; 60 L. J. g. B. 233 Surridge's T., Ee, 17 Ir. Ch. 163 Surtees v. Parkin, 19 B. 406 Sutherland v. Cooke, 1 Coll. Ch. R. 498 ; 14 L. J. (X. S.) Ch. 71 Sutton V. Jewke, 2 Ch. R. 9 Swain v. Bridgeman, (1891) 3 Ch. 234 ; 61 L. J. Ch. 20 . Swaine v. Denby, 14 C. D. 326 ; 49 L. J. Cli. 734 Swainson v. S., 6 De G. M. & G. 648 ; 26 L. J. (X. S.) Ci Swallow V. S., 1 B. 432 (u.) '. . Swan, Ex p., 6 Eq. 359 , Re, 2 Hem. & M. 34 V. Holmes, 19 B. 471 V. N. B. Australian Co., 2 H. & C. 175 ; 32 L. .1. (X. S.) V. S., 8 Price, 518 ; 22 R. R. 770 119 Sweet V. S., (1895) 1 Q. B. 12 ; 64 L. J. Cj. B. 108... 599, 601, Sweetapple v, Bindon, 2 Vern. 536 Sweetiija*nr. S., 2 Ir. Eq. 141 PAGE 202, 203 . 165 . 743 . 528 . 860 . 145, 274 . 149 565, 567 . 441 . 815 . 428 . 561 . 238 . 440 . 574 50, 222 . 126 . 27 . 826 500, 502, 503 . 871, 876 ... 58, 60,460 212 . 828 . 276 522, 523, 530 . 744, 745 . 648 . 351 52... 287, 324 . 237 633, 634, 635 . 681, 714 . 359 639. 640, 643 869, 870, 872 . 799, 801 . 611 . 35 . 308 662, 672, 703, 704, 705 . 648 52 8, 80, 84, 88 550, 555 . 863 . 198 . 24 803, 804 . 137 632, 645, 649 421, 427 273 137, 451 . 201, 203 6J2, 604, 607, 673 . 329, 334 . 441 XCll TABLE OF CASES Swift V. Nash, 2 Keen, 20 ; 6 L. J. (N. S.) Cli. 363 V. S., 34 B. 266 ; 34 L. J. (N. S.) Ch. 394 . V. —, 13 W. R. 378; 34 L. J. Ch. 209 V. AVennian, 10 Eq. 15 ; 39 L. J. C. P. 336 Swinl'eii v. Clielmstbrd, 5 H. & N. 890 ; 29 L. J. (N. V. 8., 27 L. J. Ch. 35 . Syer v. Gladstone, 30 C. D. 614 . Syke's T., Re, 2 John. & H. 415 . V. S^'holtieid, 14 C. D. 629 ; 49 L. J. Ch. 833 V. bheard, 33 B. 114 ; 33 L. J. (N. S.) Ch. 181 . V. S., 2 P. & D. 163 ; 41 L. J. (N. S.) Ch. 25 Symons v. Hallett, 24 C. D. 346 ; 53 L. J. Ch. 60 V. Rutter, 2 Vern. 227 . Syiige V. S., 9 Ch. 128 S.)E 382 VAOE . 798 . 498 . 601 . 166 . 238 . 238 . 433 689, 710 . 214 . 347 . 669 . 708 . 347 . 430 T. Taber's Estate, Re, 30 W. R. 883; 51 L. J. Ch. 721 Tadnian v. Henman, (1893) 2 Q. B. 168 Tailby v. O. Receiver, 13 App. Cas. 546 ; 58 L. J . 801 . 468 103, 106, 107, 113, 141 . 750 . 348 13, 15 . 815 . 433 496, 511, 520, 522 V. Stainforth, 1 John. & H. 484 ; 10 W. R.829 ; 31 L. J. (N. S.) Ch. 197 309 Q. B. Tait, Exp., 13 L. R. Eq. 311 ; 41 L. J. (N. S.) Bank. 32 V. Lathbury, 1 Eq. 174 V. Northwick, 4 V. 816 Talbot V. Jevers, 20 Eq. 255 ; 44 L. J. (N. S.) Ch. 646 V. Radnor, 3 My. & K. 252 .... V. Shrewsbury, 4 My. & Cr. 672 ; 4 L. J. Dig. 282 . V. T., 17 Eq. 347 ; 43 L. J. (N. S.) Ch. 352 Tamplm v. James, 15 C. 1). 217 . V. Miller, 30 W. R. 422 .... Tancred v. Delagoa Bay, &c., Co., 23 Q. B. D. 239 Tanner v. T., 11 B. 69 ; 17 L. J. (N. S.) Ch. 115 Tapley v. Eagleton, 12 C. D. 683 .... V. Keiit, 1 Robert, 400 .... Tarbottom v. Earle, 11 W. R. 680 .. . Tarsey's Trust, Re, 1 Eq. 561 ; 35 L. J. Ch. 452 . Tasker v. T., (1895) P. 4 ; 64 L. J. P. D. & A. 36 Tate V. Hilbert, 2 V. jun. Ill ; 2 R. R. 175 .. 58 L. J V. Hyslop, 15 Q. B. D. 368 ; 54 L. J. Q. B. 592 . V. Leithead, Kay, 656 ; 23 L. J. (N. S.) Ch. 736 . V. Williamson, 1 Eq. 536 ; 2 Ch. 61 . Tatham r. Drummond, 2 Hem. & M. 262 ; 34 L. J. (N Tatlock V. Jenkins, Kay, 654 ; 23 L. J. (N. S.) Ch. 767 Taunton v. Morris, 11 C. D. 779 ; 48 L. J. Ch. 408 . Taylor, Re, 9 Ha. 596 ; 22 L. J. (N. S.) Ch. 142 . — '■ , Re, 4 C. 1). 157 ; 46 L. J. Ch. 399 . , Re, 53 L. J. Ch. 1161 ■ r. Austen, 1 Dr. 459 r. Cartwright, 14 Eq. 167 ; 41 L. J. (N. S.) Ch. 529 . V. Clark, 1 Ha. 161 ; 11 L. J. (N. S.) Ch. 189 ... r. Grange, 15 C. D. 168 ; 49 L. J. Ch. 794 . . 197, 198 r. G. I. P. R. Co., 4 De G. & J. 559; 28 L. J. (N. S.) Ch. 285. r. Haygarth, 14 Si. 8 . 497 . 232 . 724 B. 459... 140 . 836 . 814 404, 408 . 804 . 662 727, 728, 729 394, 402, 404, 405, 406, 408, 409, 413 . . .125 . 402, 404 . 270, 274, 283 S.) Ch. 1...703, 793 13 632, 635, 636, 639 . 347, 371 . 499, 531 . 802 636 245 86 199 137 389 Johnson, 2 P. W. 504 856 Johnston, 19 C. D. 603 ; 51 L. J. Ch. 879 . Martindale, 12 Si. 158 ; 10 L. J. (N. S.) Ch. 339 283 799 TO VOLUME 1. XClll PAGE Taylor u. Meads, 4 De G. J. & S. 597 ; 34 L. J. Cli. 203 . 664, 682, 708 V, Pugh, 1 Ha. 608 ; 12 L. J. (N. S.) Ch. 73 . . . . 619 r. T., 8Ha. 120 860 V. —, 10 Ha. 475 825 i: — , 3 De G. M. & G. 190 ; 22 L. J. (N. S.) Ch. 742 . . 380 r. —, 17 Eq. 324 ; 44 L. J. (N. S.) Ch. 718 . . . 804,805 . Y7. — , 56 L. J. Ch. 597 408,411 Teasue v. Richards, 11 Si. 46 ; 9 L. J. (N. S.) Cli. 293 . . . 745 Teague's Sett., Re, 10 Eq. 564 715 Teasdale v. Braithwaite, 5 C. D. 630 ; 46 L. J. Ch. 725 . . . 715 V. Sanderson, 33 B. 534 203 V. T., Sel. Ch. C. 59 453 Telford v. Met. Board of Works, 13 Eq. 574 ; 20 W. li. 481 ; 41 T.. J. (N. S.) Ch. 589 "754 Tempest v. T., 7 De G. M. & G. 470 ; 26 L. J. (N. S.) (JIi. 501 . . 56 Tench v. Cheese, 6 De G. M. & G. 453 ; 24 L. J. (N. S.) (Jh. 716 . 13, 14 Tendril r. Smith, 2 Atk. 86 271 Tenham v. Lennard, 4 Bro. P. C. 302 486 Tennant v. Brail, Toth. 141 .'J76 Tennent v. Tennents, 2 L. R. H. L. Sco. 6 . ... 237, 309 V. Welch, 37 C. D. 622 ; 57 L. J. Ch. 481 . . . .169 Tennyson, E'x 2J., 1 Mont. & B. 67 128 Teresa, The, 71 L. T. 342 742 Teynham v. Lennard, 4 Bro. P. C. 302 512 Tharp, Ee, 3 P. D. 76 "03, 707 Thayer v. Lister, 30 L. J. (N. S.) Cli. 427 112 Thellusson v. Woodford, 13 V. 220 ; 9 R. R. 175 . 421, 425, 434, 435 Thomas, Re, 22 L. J. Ch. 275 498 , Re, (1891) 3 C"h. 482 ; 60 L. J. Ch. 781 ... 82, 86, 88 , Re, (1893) 1 Q. B. 670 ; 62 L. J. g. B. 474 . . . . 276 Att.-Gen., 2 Y. & C. Ex. 525 852 727 V. Bennett, 2 P. W. 341 _ V, Everard, 6 H. & N. 448 ; 30 L. J. (N. S.) Ex. 214 . . 604 I,. Gyles, 2 Vern. 232 .. . .... 205 V. Howell, 55 L. T. R. 629 343 r. , 34 C. D. 166 ; 56 L. J. Ch. 9 .... 341 V. Montgomery, 1 Russ. & M. 729 849 r. Roberts, 3 De G. & Sm. 758; 19 L. J. (N. S.) Ch. 506. ..516, 518 V. T., 27 B. 537 ; 29 L. J. (N. S.) Ch. 281 . . . 813 .^ . — ,,. _ 3 Iv. Ch. R. 399 794 -y. — , 2 Svv. &Tr. 113 607 r. Williams, Mos. 177 618 Thomasset v. T., (1894) P. 295 ; 63 L. J. P. D. & A. 14i)...495, 496, 498, 525, 526, 530 Thompson's T., Re, 22 B. 506 340 Thompson, Re, (1894) 1 Q. B. 462 ; 63 L. J. Q. B. 187 .. . 276 V. Burra, 16 Eq. 592 ; 42 L. J. (N. S.) Ch. 827 . . . 430 n Cohen, 7 L. R. Q. B. 527 ; 41 L. J. (N. S.) Q. B. 221 . 114 V. Heffernan, 4 Dr. & War. 285 .... 406, 413 r. Hodgson, 9, Stra. 777 403 -y. Richardson, 6 Ir. R. E(i. 596 207,217 V. Simiison, 5 Ch. 659 ; 39 L. J. Ch. 857 . . • .112 V. Spiers, 13 Si. 469 ; 14 L. J. (N. S.) Ch. 453 . . lo7, 122 V. Tomkins, 2 Dr. & Sm. 8 ; 31 L. J. (X. S.) Ch. 633 ... 123, 127 Thomson v. Eastwood, 2 App. C. 215 8(il, 862 Thornber r. Sheard, 12 B. 589 272 Thome V. Heard, (1894) 1 Ch. 599 ; (1895) A. C. 495 ; 64 L. J. Ch. 652 S63 Thornton v. Ellis, 15 B. 193 ; 21 L. J. (N. S.) Ch. 714 . . /8, 85 V. Hawley, 10 V. 138 ; 7 R. R. 359 . . . 339, 346, 347 XCIV TABLE OF CASES. Thornton r. Eamsden, 4 Gif. 519 . ^v. T., 11 Ir. Ch. 11.474 Thorold v. T., 1 Phillim. 1 ... Thorpe v. Owen, 2 W. R. 208; 23 L. J. Ch. 286 . Thrupp V. Harnian, 3 My. & K. 513 . Thruston v. Anstey, 27 B. 335 .... Tliursly v. T., 19 Eq. 406 ; 44 L. .J. (N. S.) Ch. 289 T hwaites v. Forman, 1 Coll. 409 Thvnne v. St. Maur, 55 L. T. 753; 56 L. J. Ch. 733 Tiblnts V. T., 19 V. 663 ; 23 R. R. 79 Tiblntts V. T.. Jac. 316 ; 23 R. R. 79 . Tichener, Re, 35 B. 317 Tickner v. Old, 18 Eq. 426 Tidd V. Lister, 10 Ha. 157 ; 23 L. J. (N. S.) Ch. 249. I'AGK . 461 . 425, 428 . 396 . 509 694 . 856 77, 80, 82, 84, 85 840, 841 . 21 . 441 . 422 . 121 . 77, 81, 90 46, 57, 65. 161, 635, 639, 652 . 128 120, 457 Tillett, i.V, 60 L. T. 575 Tillott, Re, (1892) 1 Ch. 88 ; 61 L. J. Ch. 38 . . . Tilv V. Smith, 1 Coll. 434 346 Timewell v. Perkins, 2 Atk. 102 428 Timins v. Stackhouse, 27 B. 434 800 Tinison r. Ramsbottom, 2 Keen, 49 119, 122 Tindal, Re, 9 Times L. R. 24 834 Tinkler's Estate, Re, 20 Eq. 456 ; 45 L. J. Ch. 135 . . . 850, 857 Tippett & Newbould's Cont., Re, 37 C. D. 448 . . . . 710, 711 Ti])pin^ r. T., 1 P. W. 730 50, 53, 61, 728 Tirell V. Bennett, 2 Keb. 89 160 Todd, Re, 19 B. 582 647 V. Beilly, 27 B. 356 843 Toker v. T., 31 B. 629 ; 32 L. J. (N. S.) Ch. 222 . 281 Toller V. Carteret, 2 Vern. 495 770 Tombs V. Roch, 2 Coll. Ch. Rep. 497 ; 15 L. J. (N. S.; Ch. 308... 46, 48, 49, 50, 53, 54, 844 Tomkyns v. Blane, 28 B. 422 436 V. Ladljroke, 2 V. 593 442 Tomson v. .Judge, 3 Drew. 306 ; 24 L. J. (N. S.) Ch. 789 Toombes r. Elers, 1 Dick. 8S Tootal's Estate, Re, 2 C. D. 628 Tooth V. Hallett, 4 Ch. 242 ; 38 L. .J. Ch. 396 . Topham v. Burgovne, 41 L. T. 670; 49 L. .J. (!li. 213 Torre v. Browne, 5 H. L. Caa. 555 ; 24 L. J. (N. S.) Ch. 757 Tottenham v. Emmet, 14 W. R. 3 ; 10 Jur. (N. S.) 1090 V. Green, 32 L. J. Ch. 201 ; 1 Ir. R. 666 . Tovey v. Lindsay, 1 Dow, 117 ; 14 R. R. 19 Tower v. Knightley, 6 Madd. 134 V. Rous, 18 V. 132 ; 11 R. R. 169 . Townley v. Bedwell, 14 V. 591 Townsend, Re, 34 C. D. 357 ; 56 L. J. Ch. 237 . V. Martin, 7 Ha. 471 Townshend v. Mostyn, 26 B. 72 Tozer v. Hawkins, 15 (,). B. J). 680 ; 55 L. J. Q. B. 152 Trafford v. Boehm, 3 Atk. 440 Transatlantic Co. v. Pietroni, .John. 604 Tredwell, Re, (1891) 2 Ch. 640 ; 60 L. J. Ch. Tremain's Case, 1 Stra. 173 Tress v. T., 12 P. D. 128 ; 56 L. J. P. D. & A. 93 Trestrail v. Mason, 7 C. D. 455 ; 47 L. J. Ch. 249 Treuttel v. Barandon, 8 Taunt. 103 ; 19 R. R. 471 . Treves v. Townshend, 1 Bro. Ch. 386 .... Trevor v. AViiitworth, 12 App. Cas. 409 ; 57 h. .J. Ch. 28 Tricker v. Kin<,'sl)ury, 7 W. R. 652 . Trident, The, 1 Wm. Rob. 29, 35 108, 657 274 501 788 133 213 . 860 . .309, 311 311, 323, 324 . 590 . 3.30 . 13, 15, 16 342, 354, 355, .356 . 857, 864 . 793, 795 . 870, 871 . 779 360, 361, 364 . 752 . 560 . 522 . 606 . 26 . 136 . 858 . 467 . 560 . 67 TO VOLUME I. xcv Trigg V. Lavallee, 11 W. R. 404 . Trigge v. Lavallee, 15 Moo. P. C. 271 . Trimmer v. Bayne, 9 V. 209 ; 6 R. R. 173 Trinder v. T., 1 E.|. 695 . Triqiiet v. Tliornton, 13 V. 345 . Trott V. Buchauan, 28 C. D. 44G ; 54 L. J. Ch. (HS . .13 Troutbeck v. Boughey, 2 Eq. 534 ; 35 L. J. Cli. 840 . Trower v. Kiiightley, 6 Madd. 134 . Trumper v. T., 8 Ch. 870 ; 42 L. J. (N. S.) Ch. G41 . Tubb's E., Re, 8 W. R. 270 Tucker, lie, (1893) 2 Ch. 323 ; (54 L. J. Ch. 513 . Tuckey V. Henderson, 33 B. 174 Tucktield v. BuUer, 1 Diek. 240 ; Anib. 197 Tuer r. Turner, 20 B. 560 ; 24 L. J. (N. S.) Ch. 663 . Tuff, Re, 19 g. B. D. 88 ; 56 L. J. Q. B. 440 . Tugman v. H(Ji)kins, 4 M. & Gr. 389 ; 11 L. J. (N. S.) C. P 30;) Tugwell, Re, 27 C. D. 309 ; 53 L. J. Ch. 1006 Tullett V. Armstrong, 1 B. 1 ; 4 My. & C. 377 ; 4 B. 323 ; 9 (N. S.) Ch. 41 Tullit V. T., Amb. 370 ; 1 Dick. 322 . TuUoch V. Hartley, 1 Y. & C. C. C. 114 Tunno, Re, 45 C. D. 66 ; 59 L. J. Cli. 573 . Tunstall v. Boothby, 10 Si. 542 ; 9 L. J. (N. 8.) Ch. 294 Tiircan, Re, 40 C. D. 5 ; 58 L. J. Ch. 101 . . 106, 1 Turnbull v. Forman, 15 Q. B. D. 234 ; 54 L. J. Q. B. 489 Turner, Re, 41 L. J. Q. B. 142 . , — , 66 L. T. 758 Buck, 18 Eq. 301 ; 43 L. J. (N. S.) Ch. Caultield, 7 L. R. Ir. 347 . Collins, 7 Ch. 329 ; 40 L. J. (X. S.) Ch 3,11 718 . ' 367 . 178 . 797 . 144 4, 1.39, 141 . 679 . 525 440, 665 583 . . . 852 699 614... 244, 270, 272, 287, 324 J. Ch. 252 . . . .717 26L. J. (N. S.) Ch. 216 . 841 . 187, 191, 197, 203 860, 861 PAQB . 229 . 230 52, 61 795, 810 . 347 16, 18, 32 664, 683 . 359 . 58 . 641 . 804 872, 873 199, 205 . 358 . 695 . 704 365, 371 L. J. 688. 849 V. King, (1895) 1 Ch. 361 ; 64 L V. Martin, 7 De G. M. & G. 729 V. Morgan, 8 V. 143 . . ' . V. Mulhneux, 1 J. & H. 334 . V. T., 4 Si. 430 ..... V. — ., 2 Rep. Ch. 81 . . . V. — ., Ami). 782 .... Turton v. Benson, 1 P. W. 496 . Tussaud's Estate, Re, 9 C. D. 363 ; 47 L. J. CI Tweddell r. T., P. & R. 13 : 23 R. R. 168 . Tweedale v. T., 7 C. D. 633 ; 47 L. J. Ch. 530 Tweedale's Sett., Re, Johns. 1()9 . Tweedie, Re, 27 C. D. 315 ; 54 L. J. C;h. 331 Twigg, Re, (1892) 1 Ch. 579 ; 61 L. J. Ch. 444 Twining v. Powell, 2 Coll. 262 . Twisden r. Wise, 1 Vern. 161 Twiss V. Nulilett, 4 Ir. R. E(i. 64 Tvvistleton iK (Jriffith, 1 P. W. 310 Twycross v. Dreyfus, 5 C. D. 614 ; 46 L. J. Ch 'JVyne's Ciise, 3 Re]). 80 . Tyars r. Alsop, 59 L. T. R. 3(i9 . Tyler, Re, (1891) 3 Ch. 252; 60 L. J. Ch. 686; 65 L. T. 367 V. Lake, 2 Russ. & M. 183 V. Yatc's, 6 Cii. 665 ; 11 Ei[. 265 ; 40 L. J. (N. S 312 Tyntv. T., 2 P. W. 542 510 Tynte v. Hodge, 2 Hern. & -M. 287 Tyrell v. 'V., 4 V. 1 Tyrrell r. Hope, 2 Atk. 558 )Cl 316 503, 647 347 . 854 . 232 . 799 132, 134, 574 . 875 . 314 . 565 651 359 389 796 158 146 293, 299, 304, 323, 324 . 110,779 . 118 274, 2S0, 286 . 792 . 665 768, .308, 310, 9, 321, 32.3, 324 38, ,53 . 311,318 . 852 . 662 31 XCVl TABLE OF CASES Tyrrell v. Pain ton, (1894) P 159 Tyson v. Jackson, 30 B. 384 Tysson v. Benyon, 2 Bro. Ch. 5 PAGE 287, 288 147, 150 . 442 U. Ullee, Re, 53, L. T. 711 ; 54 L. T. 286 Underwood, Re, 3 Kav & J. 745 . Morris,-2 Atk. 184 Unett V. Wilkes, Anib. 430 Unsworth, Re, 13 W. R. 488 .. , Upton V. Brown, 26 C. I). 588 ; 54 L. J. CI V. Vanner, 1 Dr. & Sni. 594 Usborne, Ex ])., 1 G. & J. 358 Usticke V. Peters, 4 Kay k J. 437 G14 . 499 . 353 538, 552, 557 . 436 . 311 . 89 . 804 . 128 . 427 V. Vachell v. Eoberts, 32 B. 140 . Valentine v. Middleton, 2 Ir. Ch. Rep. 93 Yalentini v. Canali, 24 Q. B. D. 166 ; 69 L. J. Q Van r. Barnett, 19 V. 102 . Van Hagau, i^e, 16 C. D. 18 ; 50 L. J. Cb. 1 Vance v. East Lancashire Rv. Co., 3 K. & J. 50 Vandeleur r. V., 3 CI. & Fin. 82 . Vanderguclit v. De Blaijuiere, 5 I\Iy. & C. 229 271 ' . Vane v. Dungamion, 2 Scb. & L. 118 ; 9 R. R. 63 Vansitart, Re, (1893) 1 Q. B. 181 ; 62 L. J. Q. B Vansittart v. V., 2 De G. & J. 249 ; 4 Kay & J Ch. 289 Vardon's Trusts, Re, 31 C. D. 279 ; B. 74 79, 83 . 205 . 326 344, 347, 358, 362 . 389 . 754 . 24 7 L. J. (X. S.) Cb. 279 62; 611 436 729 Varley v. Winn, 2 Kay & J. 700 ; 2i Vaugban v. Buck, 1 Ph. 75 V. , 13 Si. 404 ; 1 Si. (N. S.) 284 . V. Vanderstegen, 2 Drew. 363 ; 23 L. J. 27 L. J. (N. S.) 498, 597, 600, 601 L. J. Ch. 259... 421, 423, 433, 443, 721 J. (X. S.) Ch. 831 . .851 80, 84 . 635, 640, 652 (N. S.) Cb. 793 . 471, 686, 687 Vaugbton v. Noble, 30 B. 39 274 Vauxhall Bridge Co. v. Earl of Spencer, Jac. 67 575 Veal V. v., 27 B. 303 ; 29 L. J. (N. S.) Ch. 321 .... 410, 411 y_ _, 4 Eq. 115 ; 36 L. J. Ch. 816 648 Venable.^ v. Baring & Co., (1892) 3 Cb. 527 ; 61 L. J. Cb. 609 . . 136 Venning v. Loyd, 1 De G. F. & J. 193 ; 29 L. J. (N. S.) Cb. 152. ..750, 752 Vernon v. Thelusson, 1 Ph. 466 ; 14 L. .J. (X. S.) Ch. 83 . . . 745 & Vernon's Case, 1 V. jun. 456 489, 501 Verrall V. Catbcart, 27 W. R. 645 211 A^ertue v. East Angl. Ry. Co., 5 Ex. 2S0 ; 19 L. .J. (X. S.) Ex. 235 . 104 Veuve Monnier, &c., Re, 12 Times L. R. 460 ; (1896) 2 Cb. 525. . 467 Vickers v. Pound, 6 W. R. 580 ; 4 Jur. (N. S.) 543 ; 6 H. L. Cas. 885 . 789, 791 Vidler v. Coilyer, 47 L. T. 283 515 ViUareal v. Mellish, 2 Swans. 533 498, 511, 512 Vincent r. Godson, 3 De G. & S. 717 ; 24 L. J. (X. S.) Ch. 121 . . 745 V. Xewcombe, You. 599 79, 80, 792 Violett V. Brooknian, 5 W. R. 342 ; 26 L. J. Cb. 308 . . . . 565 Vivian v. lilortlock, 21 B. 252 . .839 Voss, Re, 13 C. D. 505 671, 705 Vron Colliery Co., Re, 2u C. D. 442 ; 51 L. J. Ch. 389 . . 747 TO VOLUME I. XCVU W. PAOE V. B., 11 B. 621 . . 554, 560 285 . 505 . 507 45 L. J. Ch. 712 . 856 . 601, 715 . 810 . 688, 691 3 198, 199, 201, 215 668, 67(1, 718 W — , 32 B. 574 ; 33 L. J. (N. S.) Ch. 574 Wade V. Broughton, 3 V. & B. 172 . V. Hopkinson, 19 B. 613 . Wade-Gerv v. Handlev, 1 C. D. 653 ; 3 C. D. 374 Wagstaffel'. Smith, 9'V. 520 .... ^ V. W., 8 Eq. 229 ; 38 L. J. Ch. 528 . Wainford v. Heyl, 2(» Eq. 321 .... Wainwright v. Bendelowes, 2 Vein. 718 Waite V. Binglev, 21 C. D. 681 ; 51 L. J. Ch. 671 V. Morland, 38 0. D. 135 ; 57 L. J. Ch. 655 V. Webb, 6 Madd. 71 '55 . 170 31 L. J. (X. S.) Ex. . 740 439, 441 . 314 . 800 . 342 503, 504 140, 141 . 54 . 846 335, 339, 344, 359, 389 640, 643 . 13 10 21, 793 . 274, 287 . 341 . 246 . 239 346, 382, 383 . 240 . 1 59, 644 . 837, 853 . 863 . 638 212, 213, 220, 370, 371, 648 . 314 . 292 . 127 . 434 . 863 . 145, 147 . 61 . 867, 869, 870 . 274 794, 797, 838, 839 . 421 . 337, 359, 360 . 498, 597, 6li0, 601, 602 . 87 43 L. J. (N. S.) . 748 . 874 406, 413 Waithman, Exp., 4 Deac. & Ch. 412 Wake V. Conj'ers, 2 Cox, 360 . V. Harrop, 6 H. & N. 768 ; 1 H. & C. 202 451 V. W., 3 Bro. Ch. 255 Wakefield v. Gibbon, 1 Gif. 401 ; 26 L. J. (X. S.) Ch. 505 . Wakeham v. Merrick, 37 L. J. Ch. 45 . Walker, Ex 2)., Drew. 508 ; 24 L. J. (X\ S.) Bk. 26 . , Re, L. & G. t. Sugd. 299 V. Bradford Bank, 12 Q. B. D. 511 ; 53 L. J. Q. B. 280 V. Childg, Amb. 524 V. Cooke, 1 Bro. Ch. 105 V. Denne, 2 V. jun. 170 ; 2 R. R. 185 . V. Drurv, 17 B. 482 ; 23 L. J. (X. S.) Ch. 712 V. Hardwick, 1 My. & K. 396 ; 2 L. J. (X. S.) Ch. 104. V. Jackson, 2 Atk. 624 v. Laxton, 1 Y. & J. 557 ...... V. Hniith, 29 B. 394 V. The Eastein Counties Ry. Co., 6 Ha. 594 . V. Wiltshire, 23 Q. B. D. 325 ; 58 L. J. Q. B. 501 . Wall V. Biishby, 1 Bro. (;h. 484 . V. Colshead, 2 De G. & J. 683 . V. Rogers, 9 Eq. 58 ; 39 L. J. Ch. 381 V. Tomlinson, 16 V. 413 ; 10 R. R. 212 . V. W., 15 Si. 513 ; 16 L. J. (X. S.) Ch. ,305 Wallace v. Att.-Gen., 1 Ch. 1 ; 35 L. J. (N. S.) Ch. 124 . V. Auldjo, 1 De G. J. & S. 643 ; 32 L. J. (X. S.) Ch. 748 V. Greenwood, 16 C. D. 362 ; 50 L. J. Ch. 289 V. W., 2 D. & W. 452 Waller v. Dalt, 1 Ch. Cas. 276 ; 1 Dick. 8 . V. Wildridge, 3 Ir. Ch. Rep. 155 . Wallinger v. W., 9 Eq. 301 Wallis V. Bright well, 2 P. W. 88 . V. Portland, 3 V. 494 ; 4 R. R. 78 . V. Woodyear, 2 Jur. (X. S.) 179 Wallop V. Hewett, 2 Ch. Rep. 70 . . . Walniesley v. Booth, 2 Atk. 25 . Walpole V. Apthorp, 4 Eq. 37 ... . V. Conway, Barn. C. 159 Walrond v. Rossi vn, 11 C. D. 640 ; 48 L. J. Cli. 602 V. W., 1 Johns. 18 ; 28 L. J. (N. S.) Ch. 97 Walsh, Re, 7 L. R. Ir. 554 V. Bishop of Lincoln, L. R. 4 Ad. & E. 242 ; Ex. 13 V. Gladstone, 1 Ph. 294 ; 13 L. J. (N. S.) Ch. 52 r. Studdart, 4 D. & W. 159 . W. & T. — VOL. I. XC Vlll TABLE OF CASES Walsh V. W., 4 Ir. K. Eq. 396 V. _, 1 Drew. 64 V. Wason, 8 Ch. 482 ; 42 L. J. (N. S.) Ch. 676 AValter v. Hodge, 2 Swans. 92 V. Maunde, 19 V. 424 ; 13 R. R. 230 Walters v. Morgan, 1 De G. F. & J. 725 Warbrick v. Varley, 30 B. 241 Warburton r. Hill. Kav, 470 ; 23 L. J. (N. S.) Ch. 633 Ward V. Arch, 15 Si. 389 V. Baugh, 4 V. 627 ; 4 R. R. 307 .. . V. Buncombe, (1893) A. C. 392 62 L. :n. J. Ch. 81 119, 120, 1 S.) Ch. 74 . V. Grev, 26 B. 491 ; 29 L. J V. St. Paul, 2 Bro. Ch. 583 V. The Society of Attornies, 1 Coll. 370 . r. W., 14 C. i). 508 ; 49 L. J. Ch. 409 V. Yates, 1 Dr. & Sm. 80 Ward's Trusts, Re, 7 Ch. 727 ; 42 L. J. (N. S.) Ch. 4 . Warde v. W., 2 Ph. 786 AVardle v. Carter, 7 Si. 490 ; 5 L. J. (N. S.) Ch. 224 . V. Claxton, 9 Si. 324 ; 8 L. J. (N. S.) Ch. 119 Ware v. Polhill, 11 V. 278 ; 8 R. R. 144 . V. The Grand Junction Waterworks Co., 2 Russ. & My. 470 ; 9 L. J. K. B. 169 Waring v. Hotham, 2 Dick. 550 V. Ward, 7 V. 332 ; 5 R. R. 134 (n.) Warner, £a;^x, 4 Bro. Ch. 101 V. Baynes, Amb. 589 ..... Warren, Re, 49 L. T. 696 V. Postlethwaite, 2 Coll. 116 ; 14 L. J. (N. S.) Ch V. Rudall, 1 John. & H. 13 ; 29 L. J. (N. S.) Ch. - V. Wright, 12 Ir. Ch. R. 401 Ch. 787 . ; 42 L. J. (N. S".) Ch 481 ; 21 L. J. (N. S Warren's Trusts, Re, 26 C. D. 208 ; 53 L. J Warrender v. W., 2 CI. & Fin. 527 . Warriner v. Rogers, 16 L. R. Eq. 340 Warten v. Yorke, 19 V. 451 Warwick r. Hawkins, 5 De G. & Stn. Warwicker v. Bretnall, 23 C. D. 194 Wassell V. Leggatt, (1896) 1 Ch. 554 : Waterhouse v. Stanstield, 9 Ha. 234 Ch. 881 Waters, Re, 42 C. D. 517 ; 58 L. J. Ch. 750 V. Wood, 5 De G. & Sm. 717 ; 22 L. J. (N. S. Watkins, Ex p., 2 V. 470 , 4 Deac. & Ch. 87 V. W., (1896) P. 228 ; 65 L. 65 L. J. Ch. 240 10 Ha. 254 ; 21 Ch P. D. 21 L. & A. 75 J. (N. S. V. Williams, 3 Mac. & G. 622 Watson, Re, 58 L. T. 509 r. Brickwood, 9 V. 453 r. Dennis, 3 Russ. 90 r. Gass, 30 W. R. 286 ; 51 L. J. Ch. 480 V. Marshall, 17 B. 363 ; 22 L. J. ^N. S.) Ch. 895 r. Mid- Wales R. C, L. R. 2 C. P. 593 ; 36 L. . - r. Northumberland, 11 Y. 162 - V. Reed, 5 Si. 431 . - r. Saul, 1 Gif. 188 Watt V. Leach, 26 W. R. 475 .... Waits, Re, 29 C. D. 947 ; 58 L. J. Ch. 332 . r. CreFswell, 2 Eq. Ca. Abr. 515 r. Porter, 3 El. & Bl. 743 ; 23 L. J. (N. S.) Q. B. 345 116, PAGE . 870 . 844 640, 641 404, 660 344, 347 . 453 . 860 119, 126 . 346, 351 422, 442, 445 . 115, 118, 122, 128, 130 . 798 . 510 . 754 631, 633, 651 . 641 . 819 . 515, 517 . 316, 318 . 661 367, 368 . 754 . 175 . 19 . 515, 518 187, 190, 197 . 723 422 543 581 206. . 836 433, 434 800, 801 438, 439 587, 589 406, 408 601, 503, 504 Ch. 796 . 876 . 370 . 660, 694 J. (x\. S.) 777, 778 . 852 . 837 . 530 . 126 . 718 Ch. 601... 200, 201 . 200 12,17 . 162 . 203 643, 645 285... 133, 135 . 197, 202 . 871 . 862 . 200 64, 340, 379 . 469 . 115 C. P. TO VOLUME I. XCIX PAGK Watts V. W., 17 Eq. 217 ; 43 L. J. (N. S.) Cli. 77 . . . 342,'826 Way's T., 7?e, 2 De G. J. & S. 365 ; 34 L. J. (N. S.) Ch. 49 . .115 Wearing v. W., 23 Beav. 99 84 Weaver, Re, 29 C. D. 236 ; 54 L. J. Ch. 749 746 Webb, Re, Leedham v. Tatcliett, 63 L. T. 545 803 V. Byng, 1 Kay & J. 580 811 V. De Beauvoisin, 31 B. 573 ; 32 L. J. (N. S.) Cli. 217 . .22 V. Grace, 2 Ph. 701 ; 15 8i. 384 . . . 551, 559, 562, 563 V. Jones, 2 Bro. Ch. 61 ; 1 R. R. 29 18, 24 V. Shaftesbury, 7 V. 480 ; 6 R. R. 154 421 V. Smith, 30 C. D. 192 . . . 47, 66, 107, 108, 113, 133, 141 Webber v. W., 1 S. & S. 311 ; 1 L. J. Ch. 219 847 Weblev V. W., 64 L. T. 839 533 Webster v. Alsop, 3 Bro. Ch. 352 (n.) 52 V. Cook, 2 Ch. 542 ; 36 L. J. Ch. 753 ., . 312, 313, 316, 320 V. Hale, 8 V. jun. 413 ; 7 R. R. 103 . . 789, 792, 793, 849 V. Milford, 2 Eq. Ca. Al)r. 263 422 V. W., 4 De G. i\I. & G. 437 ; 22 L. J. (X. S.) Ch. 837 . . 608 V. —, 31 B. 393 ; 31 L. J. (N. S.) Cli. 655 . . .124 AVedderburn v. W., 4 My. & C. 585 ; 8 L. J. (N. S.) Ch. 177 . 750, 751 Wedgwood v. Denton, 12 Eq. 290 ; 40 L. J. (N. S.) Ch. 526 . . 828 Weeding v. W., 1 John. & H. 424 ; 30 L. J. (N. S.) Ch. 680. ..354, 355, 356 Weir t'. Chomley, 1 Ir. Ch. R. 295 843 Well)y V. W., 2 V. & B. 190 ; 13 R. R. 58 . . . 422, 425, 427, 434 V. RockclifFe, 1 Ruse. & M. 571 ; 8 L. J. Ch. 142 . . 22, 798 Welchnian, Re, 1 Gif. 31 ; 28 L. J. (N. S.) Ch. 647 .... 639 Weldon v. De Bathe, 14 Q. B. D. 339 ; 54 L. J. Q. B. 113 . 670, 706, 709 Welldon v. Bradshaw, 7 Ir. R. Eq. 168 21 Welles V. Middleton, 1 Cox, 112 ; 4 Bro. P. C. 245 . . . . 274 Wellesley v. Beaufort, 2 Russ. 19 ; 5 L. J. Ch. 85. ..495, 496, 501, 515, 517, 520, 524 V. W., 2 Bligh. 136 495, 510, 595, 602 V. — , 4Mv. &C. 579 113 Wellesley's Case, 2 Russ. & My. 639 505 Wells, Re, 42 C. D. 658 ; 58 L. J. Ch. 835 421 V. Foster, 8 M. & W. 149 ; 10 L. J. (N. S.) Ex. 216 . . 142 V. Malbon, 31 B. 48 ; 31 L. J. (N. S.) Ch. 344 . . 166, 845 V. Row, 48 L. J. Ch. 476 14 Wendt, Re, 22 Q. B. D. 733 779 West Devon Great Consols Mine, Re, 38 C. D. 51 ; 57 L. J. Ch. 850 . 239 , King & Co., Re, (1892) 2 Q. B. 106 ; 61 L. J. Q. B. 639 . . 276 V. Errissey, 2 P. W. 349 ; 1 Bro. P. C. 225 . . . .418 V. Jone.s, 1 Si. (N. S.) 208 ; 20 L. J. (N. S.) Ch. 362 . . . 462 V. Kerr, 6 Ir. Jur. 141 564, 569, 570 Western Waggon, &c. Co. v. West, (1891) 1 Ch. 275 ; 61 L. J. Ch. 244... 103. 108, 110, 141 Westly V. W., 2 Dr. & War. 503 242 Westnieath r-. Salisbury, 5 Bli. (N. S.) 339 . . . . 608,611,612 Westmeath's Case, Re, Jac. 251 ; 1 Dow. & CI. 547 ; 2 Hiig. Ec. A])]). 115 517, 587, 5s8, 590. 593, 595, 602, 611 Westzinthus, Re, 5 B. & Ad. 817 ; 3 L. J. (N. S.) K. B. 56 . 63, 65 Wethered v. W., 2 Si. 183 105, 317 Whalev V. Dawson, 2 Sch. & L. 370 178, 204 Wharton, Re, 5 De G. M. & G. 33 ; 23 L. J. (N. S.) Ch. 522 . 335, 358 V. Masternian, a895) A. C. 186 ; 64 L. J. Ch. 369 . . 815 v. May, 5 V. 27 316,323,749 Wheatley, Re, 27 C. D. 613 ; 54 L. J. Ch. 201 . . . 423, 438, 439 V. Davies, 24 W. R. 818 8(j() Wheeler v. Bingham, 1 Wils. 135 ; 3 Atk. 364 . . . 538, 552, 561 V. Caryl, Amb. 121 643, 644 fj 2 TABLE OF CASES PAGE Wheeler v. Sargeant, 3 R. 663 281 'V. Warner, 1 S. & S. 304 565 WheLlale v. Partrid^'e, 5 Y. 396 ; 7 R. R. 37... 334, 338, 339, 344, 346, 362 Wliiel Ion v. Spode,'l5 B. 539 ; 21 L. J. (N. S.) Ch. 913 . . 12, 21 Whistler v. Webster, 2 V. jun. 372 ; 2 R. R. 260 . 422, 425, 436, 439 Whitaker, Re, 34 C. D. 227 ; 56 L. J. Ch. 251 . . . 716, 717, 722 V. Forbes, L. R. 10 C. P. 583 ; 1 C. P. D. 51 ; 45 L. J. C. P. 140 777 Whitby ^•. Mitchell, 42 C. D. 494; 59 L. J. Ch. 485 . . . .715 White, i?e, 10 L. T. 349 499 Re, 9 Times Rep. 575 496 f. Anderson, 1 Ir. Ch. R. 419 113 r. British Empire Mntual, L. A. Co., 7 Eq. 394 ; 38 L. J. Ch. 53 63 V. Herrick, 4 Ch. 345 ; 38 L. J. Ch. 679 . . . 507, 645, 647 • V. M'Dermott, 7 Ir. R. C. L. 4 567 V. W., 22 C. U. 555 ; 52 L. J. Ch. 232 . . . . 437, 439 r. — , 2 Y. 43 13 Whitehead, ^:c^j., 14 Q. B. D. 419 659,667 Re, (1894) 1 Ch. 678 ; 68 L. J. Ch. 229 . . . .88 V. W., 16 Eq. 528 834 Whitehonse v. Insole, 7 L. T. (N. S.) 400 841 Whiteley v. Edwards, (1896) 2 Q. B. 48 ; 65 L. J. Q. B. 457... 707, 711, 712 Whitfield V. Fausset, 1 Y. 387 299 V. Hales, 12 Y. 492 518 Whitley V. W., 31 B. 173 425, 427, 442 Whittaker, Re, 21 C. D. 657 ; 51 L. J. Ch. 737 . . . 660, 848, 852 V. Cohen, 9 Times Reji. 205 679 V. Kershaw, 45 C. D. 320 ; 60 L. J. Ch. 9 . . 690, 691, 692 V. W., 4 Bro. Ch. 31 343 Whittem v. Sawver, 1 B. 593 639 Whittingham's trnsts. Re, 12 W. R. 776 669 Whittle V. Honning, 2 Pii. 731 ; 18 L. J. (N. S.) Ch. 51 . 165, 444, 648 Whitty's T., Re. 9 Ir. Eq. 41 344 Whitwell, Re, 19 L. R. Ir. 45 209 Wliitworth V. Hall, 2 B. & Ad. 695 ; 9 L. J. K. B. 297 .. . 148 Whopham v. Winstield, 4 Y. 630 845 Whvte V. Mead, 2 Ir. Eq. 420 267, 279 — V. W., 17 Eq. 50 ; 43 L. J. (N. S.) Ch. 104 . . . . 872 Widgery v. Tepper, 7 C. D. 423 ; 47 L. J. Ch. 550 . . 161, 162, 649 WiggiCNicholl, 14Eq. 92 54,55 Wightwick V. Lord, 6 H. L. Cas. 217 ; 26 L. J. (N. S.) Ch. 825 . . 79 Wigney v. W., 7 P. D. 177 ; 51 L. J. P. D. & A. 60 . . . . 609 Will)erforce v. Hearfield, 5 C. D. 709 ; 46 L. J. Ch. 584 . . .178 AVilby V. Elgee, L. R. 10 C. P. 497 ; 44 L. J. (N. S.) C. P. 254 . . 230 AYilcox V. Drake, 2 Dick. 631 516 V. Gore, 11 Yin. Abr. 180 728 Wild V. Wells, 1 Dick. 3 222 Wilday v. Barnett, 6 Eq. 193 788 V. Sandys, 7 Eq. 455 82 Wilder v. Pigott, 22 C. D. 263 ; 52 L. J. Ch. 141 358, 423, 443, 444, 445 AYildes V. Davies, 1 Sm. & G. 475 ; 22 L. J. (N. S.) Ch. 495 . . 388 Wildman v. W., 9 Y. 174 ; 7 R. R. 153 154, 158 Wilkin.«, Re, 4 Ir. Ch. R. 575 221 Re, 27 C. D. 703 ; 54 L. J. Ch. 188 . . 805, 843, 844, 862 V. JoddreE, 13 C. D. 564 ; 49 L. J. Ch. 26 . . . . 799 V. Sibley, 4 Gif. 442 . . 134 Wilkinf^on, Ex p., 3 De G. & Sm. 633 ; 19 L. J. (N. S.) Ch. 257 . 803 V. Castle, 16 W. R. 501 ; 37 L. J. Ch. 467 ... 217 V. Charlesworth, 10 B. 324 ; 16 L. J. (N. S.) Ch. 387 163, 6,35 . V. Dent, 6 Ch. 339 ; 40 L. J. (N. S.) Ch. 253 . 427, 429, 430 TO VOLUME I. CI Wilkinson v. Duncan, 23 B. A(\?> ; 26 L V. Gibson, 4 Eq. 162 ; 36 L. J V. Joberns, 16 Eq. 14 ; 42 L. J V. Joughin, 41 L. J. Ch. 234 V. Schneider, 9 Eq. 423 ; 39 L. Willats V. Cay, 2 Atk. 67 . Willcock V. terrel], 3 Ex. D. 323 Willes V. Greenliills, 4 I)e G. F. & J. 150 : PAGE I 7, 88 . 162, 166 .209, 211, 217 . 508, 509 . 640 645 142 30 L. J. (X. S.) CI). 808 . 122, 125, 135 J. (N. S.) Ch. 495 ' CIi. 646 . (N. S.) Ch. 663 J. Ch. 410 89,' AVillett V. Finlay, 29 L. R. Ir. 156 Williams (of Goods), 67 L. T. .502 William's Estate, Ee, 15 Eq. 270 ; 42 L. >J. (X. S.) Ch. 158 Williams v. Armstrong, 12 Ir. Eq. R. 356 .... V. Baily, 2 Eq. 731 V. Bavlev, 1 L. R. H. L. 200 ; 35 L. J. Ch. 717 . V. Bolton, 2 V. jun. 138 ; 4 R. R. 282 . V. Colonial Bank, .38 C. D. 388 ; 57 L. J. Ch. 826 V. Games, 10 Ch. 204 ; 44 L. J. (N. S.) Ch. 245 . r. Gwyn, 2 Wm. Saund. 45 (n.) .... V. Hughes, 24 B. 474 ; 27 L. J. (X. S.) Ch. 218.. .2L V. Kei'shaw, 1 Keen, 276 (n.) .... ■ V. Lkindaft", 1 Cox, 254 ..... V. Mapie, 1 Ir. R. Eq. 519 V. Mercier, 10 App. Cas. 1 ; 51 L. .1. (). B. 694 . w. Protheroe, 3 T. & .J. 129 V. Snowden, W. X. (1880) 124 ... . V. Stern, 5 Q. B. D. 409 ; 49 L. J. C. P. 663 V. Thomas, 2 Dr. & Sin. 29 ; 31 L. J. Ch. 676 . V. W., 2 Ch. 294 ; 36 L. J. Ch. 419 . . 230, 1). Wilson, 5 X. R. 267 Williamson v. Adv.-Gen., 10 CI. & Fin. 1 . . . . I'. Gihon, 2 S. & L. .357 V. Thomson, 16 V. 443 Willis V. Kymer, 7 C. D. 181 ; 47 L. J. Ch. 90 . V. Parkinson, 2 Mer. 507 ..... • V. W., 38 W. R. 7 Willock V. Noble, L. R. 7 H. L. 580 ; 44 L. .1. (X. S.) Ch. 345 Willoughby, Re, 30 C. D. 324 ; 54 L. J. Ch. 1122 V V. Brideoke, 13 W. R. 515 V. Middleton, 2 .John. & H. 344 ; 31 L. ,J. (X. S.) Ch. 683. Willox V. Rhodes, 2 Russ. 452 .... Wills V. Bourne, 16 Eq. 487 ; 43 L. J. Ch. 89 V. Sayers, 4 Madd. 409 .... V. Slade, 6 V. 498 V. W., 1 Dr. & War. 455 .... Wilmot 1). Pike, 5 Ha. 14 ; 5 L. J. Dig. 452 Wilmott V. Barber, 15 C. D. 96 ; 49 L. J. Ch. 792 V. Jenkins, 1 B. 401 ... . Wilson, Re, 26 W. R. 848 Re, 28 C. D. 457 ; 54 L. J. Ch. 487 . r. Beddard, 12 Si. 32 ; 10 L. J. (X. S.) Ch. .305 V. Brownsmith, 9 Ves. jun. 180 V. Coles, 6 .Jur. (X. S.)'l003 ; 28 B. 215 . • V. Ferrand, 13 Eq. 362 V. Fielding, 2 Vorn. 763 r. Gabriel', 4 B. & S. 243 r. Maddison, 2 Y. & C. C. C. 372 ; 12 L. .1. (X. S.) Ch V. Musshett, 3 B. & Ad. 743 ; 1 L. .1. (X. S.) K. B. 828 161 745 839 599, 603, 610 . 282 . 690 . 137 208, 210 . 222 97, 798 . 55 . 18 . 444 . 729 14.-), 147 . 744 . 450 . 246 34, 243, 314 859 349 573 134 666 176 200, 214, 216 681 5.30 314 432, 433 21, 798, 828 19, 55, 56 . 665 200, 205 . 856 . 129 45.3, 461 839, 840 . 682 . 774 . 339 . 792 3S2 753 48 133 799, 34 (; 420 801, 851, 8.53 250...591, 595, 608 Cll TABLE OF CASES "Wilson V. O'Leaiy, 12 Eq. 531 342 . -, 17 Eq. 419 7 Ch. Ap. 448 ; 41 PAGR L. J. (N. S.) Ch. 869, 870, 872 . 861 ^ Pack Pr. Ch. 297 V. Short, 6 Ha. '366 ; 17 L. J. (N. S.) Ch. 289 V. Thornbury, 10 Ch. 248 ; 44 L. J. (N. S.) Ch. 242 V. Townshend, 2 V. iun. 693 ; 3 R. E. 31 V. West Hartlepool Ry. Co., 2 De G. J. & S. 475 Ch. 241 V. W., 1 De G. & Sm. 152 .. . ^., , 4 Jur. (N. S.) 1076 ^,. , 14 L. R. Eq. 32 ; 41 L. J. (N. S.) Ch. 423 V. , 1 H. L. Cas. 538 . Wiltou V. Hill, 25 L. J. Ch. 150 . Wilts, &c., Ry. Co., lie, 2 Dr. & S. 552 Wiltshire v. Rabbits, 14 Si. 76 ; 13 L. J. (N. S.) Ch. 284 Winch V. James, 4 V. 386 . ■ V. Keeley, 1 T. R. 619 34 L. J. (N . 727 . 147 . 441 421, 443 S.) . 599 . 435 . 716 105, 129, 435 . 603 240, 366, 723 500 129 503 130 323 367 593 105 867, 869, 875 287 164 . 174, 175, 176 26 L.J. (N.S.) 421, 425, 427, 441 Winchelsea's Policy Trusts, Re, 39 C. D. 168 ; 58 L. J. Ch. 20 Winchelsea v. Norcliffe, 1 V. 437 Winchester v. Paine, 11 V. 199 ; 8 R. R. 131 Wind V. Jekyl, 1 P. W. 572 .... Windham v. W., Rep. t. Finch. 267 . Wingrove v. W., 11 P. D. 82 ; 55 L. J. P. 1). & A. 7 Winter v. Easum, 2 De G. J. & S. 272 ; 33 L. J. (N. S.) Ch. 66. Wintle V. Carpenter, Rep. t. Finch, 462 Wintour v. Clifton, 21 B. 447 ; 8 De G. M. & G. 641 Ch. 218 Wiseman v. Beake, 2 Vern. 121 . . . . 293, 294, 309, 310, 311 Witherbv v. Rackham, 39 W. R. 363 ; 60 L. J. Ch. 511 . . .168 Witt V. Aims, 1 B. & S. 109 ; 30 L. J. (N. S.) Q. B. 318 . . . 411 V. W., (1891) P. 163 ; 60 L. J. P. D. & A. 63 . . 499, 532, 533 Witter V. W., 3 P. W. 99 366 Wollaston v. King, 8 Eq. 165 ; 38 L. J. Ch. 392. . . . 434, 438 ,;. Tribe, 9 Eq. 44 268, 273, 287 Womald v. Muzeen, 17 C. D. 169 ; 51 L. J. Ch. 776 . . . 803, 805 Womersley, Re, 29 C. D. 557 ; 54 L. J. Ch. 965 742 Wood, Re, 10 Eq. 572 ; 40 L. J. (N. S.) Ch. 59 87 , Re, 61 L. T. 197 660, 711 - V. Abrey, 3 Madd. 417 ; 18 R. R. 264 . . 308, 313, 316, 323 . V. Bryant, 2 Atk. 523 558 . V. Copper Mines Co., 17 C. B. 561 ; 25 L. J. (N. S.) C. P. 166 — V. Downes, 18 V. 120 ; 11 R. R. 160 r. Gregory, 43 C. D. 82 ; 59 L. J. Ch 232 584 — V. Griffith, 1 Swan. 56 ; 18 R. R. 18 . V. Ordish, 3 Sm. & G. 125 ; 1 Jur. (N. S. V. Penoyre, 13 V. 333 ; 9 R. R. 185 . . V. Skelton, 6 Si. 176 ; 2 L. J. (N. S.) Ch. 163 . V. W., 19 W. R. 1049 Woodburn r. Grant, 22 B. 483 Woodgate, Ex p., 2 Mont. D. & De G. 394 ; 11 L. J. (N. S.) Bk. 25 740 145, 148, 272, 274 . 202, 214 . 131, 147 . 33 . 848, 849, 851 . 382 Woodhead v. Turner, 4 De G. & Sm. 429 . Woodhouse v. Okill, 8 Si. 115 ; 5 L. J. (N. S.) Ch. 326 . V. Shepley, 2 Atk. 535 Woodin, Re, (1895) 2 Ch. 116 ; 64 L. J. Ch. 501 Woodmeeston v. Walker, 2 Russ. & M. 197 ; 9 L. J. Ch. 257 Woodrootfe v. Allen, 1 H. & Tw. 73 Woods V. Hyde, 10 W. R. 339 ; 31 L. J. Ch. 295 Wood^vard v. Pratt, 16 E(i. 127 ; 42 L. J. (N. S.) Ch. 891 . . i:. W., 3 De G. J. & S. 672 708 124 128 21 . 826 . 572 848, 855 718, 805 311, 312 354, 356 . 646 . 695 TO VOLUME I. cm Wookey v. Pole, 4 B. & A. 14 Wuolf V. Peiiibertoii, 6 C. D. 19 WoollancLs v. Crowclier, 12 V. 174 .... "Woollen V. Tanner, 5 V. 218 Woolridge v. W., 1 John. 63 ; 28 L J. (N. S.) Cli. 689 Woolsconibe, lie, 1 Madd. 213 ; 16 R. R. 207 . Woolstencroft v. W., 2 De G. F. & J. 347 ; 30 L. J. (X. S. Worcester Bank v. Firbank, (1894) 1 Q. B. 786 ; 63 L. J. ( Wordsworth v. Dayrell, 4 W. R. 689 . Wormsley's Estate, Be, 4 C. D. 665 ; 46 L. J. Ch. 102 Worrall v. Jacobs, 3 Mer. 195 . Wortliani v. Peniberton, 1 De G. &. Sni. 644 Worthington v. Evans, 1 S. & S. 165 ; 1 L. J V. Wiginton, 20 B. 67 ; 24 L. J. Wragg, i?e, 63 L. T. 219 . Wrav V. Field, 6 Madd. 300 Wray'sT., Re, 16 Jur. 1126 Wren v. Bradley, 2 De G. Ch. 126 (N. S.) Ch. 7 2 Russ. 25 & Sni. 49 17 L. J. (N. S Wrey v. Smitli, 14 Si. 202 Wride V. Chuke, 2 Bro. Ch. 261 Wright, Be, Knowles v. Sadler, W. N. (1879) 20 i: Callender, 2 De G. M. & G. 652 ; 21 L. J. (N. r. Cliard, 1 De G. F. & J. 567 ; 29 L. J. (X. S V. King, 18 B. 461 . V. Lambert, 6 C. D. 649 . V. Morley, 11 V. 12 ; 8 R. R. 69 . r. Navlor, 5 Madd. 77 . V. Proud, 13.V. 136 r-. Redgrave, 11 C. D. 24 V. Rose, 2 S. & S. 323 . V. Rutter, 2 V. jun. 673 ; 3 R. R. 24 r. Tiickett, 1 J.'& H. 266 P.\GE . 136 496, 497 154, 155 437, Cli. 22 , Vj. 542 436 439 50i) 28 779 646 25 232, 586, 590, 602 . 503, 634 . 566, 567 3 . 441, 442 . 382 . 871 . 644 563, 576 82, 86 . 32 . '876 787 ...802, 805, 842 ) Ch. 415. ..690, 691 . 643 . 88 . 154, 652 . 522 272, 274, 280 . 741, 742 . 353 . 645 . 834 ) Ch. 172. )Ch. V. A^anderplank, 8 De G. M. & G. 136 ; 25 L. J. (N. S.) Ch. 753...269, V. Warren, 4 De G. & Sm. 367 r. ^^'eston, 26 B. 429 • r. W., 1 V.412 i: , 2 John. & H. 655 V. , 16 V. 188 ; 10 R. R. 161 Wrightson v. Macaulay, 4 Ha. 487 ; 17 L. J. (N Wrigley v. Swainson, 3 De G. & Sm. 458 396 Wroughton t-. Cohj^uhoun, 270, 271, 286, 287, 312 70 1 De G. & Sm. 35 8 ; 61 L. J. CI Wyatt, Be, (1892) 1 Ch. 188 ; V. Cook, 16 W. R. 502 . Wycherly v. ^^^, 2 Eden, 175 Wynch v. W., 1 Cox, 433 . Wyndliani r. Ennismore, 1 Keen, 467 Wythe v. Henniker, 2 My. & K. 635 : 325 . 830 . 838, 843 . 103 . 720, 721 382, 383, 386 S.) Ch. 54 . 336, 347 18 L. J. (N. S.) Ch. . 619 16 L.J. (N. S.)Ch. 805, 842, 843 . 120 . 324 . 243 . 853 . 523 3 L. J. (N. S.) Ch. 221 ... IS, 24, 51, 52 178 Yard v. Ellard, 1 Sulk. 117 Yardley v. Holland, 20 Eq. 428 . Yates V. Con 11 it on, 2 P. W. 308 . 160 826 805 r. Cox, 17 W. R. 20 124 CIV TABLE OF CASES TO VOLUME I. Yates V. Maddan, 16 Si. (il3 ; 3 Mac. & G. 532 ; 21 L. J. (N. 24 ^ I'.M, V. Y., 28 B. 171 ; 29 L. J. (N. S.) Ch. 872 . 88, 344, Yeates v. Groves, 1 V. jun. 281 Yeo V. Dawe, 33 W. R. 73iJ Yockney r. Hansard, 3 Ha. 622 ..... Yoiige ('. Furse, 8 De G. M. & G. 756 ; 26 L. J. (N. S.) Cli. 352 V. , 20 B. 380 ; 24 L. J. (N. S.) Ch York, Be, 36 C. D. 233 ; 56 L. J. Ch. 552 . Youno', Be, 28 C. D. 705 ; 54 L. J. Ch. 1065 , Be, Trye v. Sullivan, 52 L. T. 754 . V, Grote, 1 Bing. 253 ; 5 L J. C. P. 165 - — V. Hassard, 1 Jo. & Lat. 466 . V. King, W. N. (1876) 11 V. Kitchin, 3 Ex. D. 127 ; 47 L. J. Ex. 5 V. Peacdiey, 2 Atk. 254 . V. Y., 26 B. 522 .... V. — , 13 Eq. 174 . . Younghusband v. Gisborne, 1 Coll. 400 643 PAGE S.) Ch. 800, 801, 864 348, 805, 807 . 108 . 137 . 875 554, 557, 570 24, 34 . 746 667 838 465 50 743 133 270 12, 13, 23 109, 204, 207 . 816 ZoACH V. Lloyd, 2 Vern. 192 367 TABLE OF STATUTES TO VOL. L 13 Edw. I. c. 35 (Ravishment of Ward^ 31 Hen. VIIL c. 1 (Partition) . '. . . 32 Hen. YIII. c. 9 (Maintenance and Champerty) c. 32 (Partition) .... s. 1 c. 46 (Court of Wards) 33 Hen. VIIL c. 22 (Ward and Liveries) . 5 & 6 Edw. VI. c. 16 (Against Iniving and selling of 4 & 5 Phil. & M. c. 8 (Ravishment of Ward) 13 Eliz. c. 5 (Fraudulent Conveyance) 3 Jac. c. 5 (Popish Recusants) .... 12 Car. II. c. 24 (Abolition of Military Tenures) . s. 3 Offi ies) s. 9 . 14 & 15 Car. 11. (Ir.) c. 19 ' . '. '. 22 & 23 Car. 11. c. 10 (Distributions) . 25 Car. II. c. 2, s. 5 (Popish Recusants) 29 Car. II. c. 3 (Statute of Frauds) . s. 7 (Prevention of Frauds and Perjuri 3 Win. & M. c. 14 (Fraudulent Devises) . 9 & 10 Will III. c. 32 (Blasphemy and Profaneness) 3 & 4 Anne, c. 9 (Importation) .... 4 Anne, c. 16, s. 20 (Amendment of Law) . 5 Anne, c. 4 (Bankrupts) ..... 7 Anne, c. 16 (Gaming) ..... c. 25 (Coinage) ..... 7 Geo. II. c. 8 (Stock Jobbing) .... 9 Geo. II. c. 36 (Mortmain Act) .... 10 Geo. II. c. 8 (Stockjobbing) .... 11 Geo. II. c. 19 (Distress for Rent Act, 1737) . 26 Geo. II. c. 33 (Prevention of Clandestine Marriages 36 Geo. III. c. 52 (Legacy Duty) s. 19 s. 32 39 & 40 Geo. III. c. 98 (Thelluson Act) . 49 Geo. III. c. 126 (Prevention of sale and brokerage 51 Geo. III. c. 64 (India) s. 4 53 Geo. III. c. 160 (Popish Recusants) 55 Geo. IIL c. 184 (Stamps) .... 4 Geo. IV. c. 76 (Marriage Act, 1823) ss. 16, 17 . ss. 23, 24 s. 75 6 Geo. IV. c. 85 (India) 9 Geo. IV. c. 31 (Otfences against the Person) s. 1 c. 74, s. 125 (East Indies) . 477, PAGE 479, 490 197, 199 . 150 . 199 . 198 . 485 . 485 . 143 . 487 . 244 . 511 76,477,482, 483, 511 . 485 509, 512 . 510 . 509 . 611 . 511 . 400 . 661 . 53 . 511 . 104 . 104 . 143 . 297 . 104 . 297 340, 379 . 297 . 104 . 549 . 350 . 350 845, 846 . 379 . 143 . 104 104, 134 . 511 of Offices) 112, 349 500 500 501 509 143 487 491 491 CVl TABLE OF STATUTES. 10 Geo. IV. c. 7 (Roman Catholics) . 11 Geo. IV. & Will. IV. c. 20 (Wills of Soldiers) 1 Will. IV. c. 40 (Disjiosal of Residues) 2 & 3 Will. IV. c. 80 (Ecclesiastical Lands) 3 & 4 Will. IV. c. 27, s. 36 (Statute of Limitations) s. 42 c. 74 (Fines and Recoveries) S.40 s. 71 s. 77 s. 91 c. 104 (^Debt) . . . 37. c. 105 (Dower Act) . s. 12 c. 106 (The Law of Inheritance Amendment) . 4 & 5 Will. IV. c. 92 (Abolition of Fines and Recoveries, Ireland) 41 5 & 6 Will. IV. c. 41 (Gamingj . 6 & 7 Will. IV. c. 85 (Marriages) 1 Vict. c. 26 (Wills Act) .... s. 2 s. 3 s. 4 s. 7 ■ ss. 11, 12 .... s 23 s'. 24 ". '. 34,51,83,435, ss. 25, 33 .... 2 & 3 Vict. c. 54 (Talfourd's Act) 3 & 4 Vict. c. 108, s. 22 (Municipal Corporation 4 & 5 Vict. c. 35, s. 85 (Copyholds) . 5 Vict. c. 5, s. 5 (Distringas) 7 & 8 Vict. c. 97, s. 16 (Charities) c. 102 (Roman Catholics) . 8 & 9 Vict. c. 18 (Lands Clauses Consolidation) s. 69 s. 74 s. 78 c. 19 (Lands Clauses, Scotland) c. 76 (Legacy) .... c. 106 (Rear Property) . c. 118 (Inclosure) . ss. 90, 91 . . . 9 & 10 Vict. c. 70 (Common) 11 & 12 Vict. c. 48 (Incumbered Estates Act, Ire c. 99, ss. 13, 14 (Common) 12 & 13 Vict. c. 83, ss. 7, 11 (Common)j 13 & 14 Vict. c. 60, e. 30 (Trustees) . c. 97 (Stamp Act) 15 & 16 Vict. c. 55, s. 1 (Trustees) c. 79, ss. 31, 32 (Common) 16 & 17 Vict. c. 45 (Government Annuities) c. 51, s. 29 (Succession Duty) 17 & 18 Vict. c. 79, s. 5 (Sale of Beer) c. 90 (Usury) c. 113 (Locke King's Act) ss. 1, 2 c. 125 (Common Law Procedure, s. 83 . 18 & 19 Vict. c. 43 (Infants Settlements) . ss. 3, 4 . Irel PAQE . 511 . 400 . 389 . 179 174, 197, 477 . 862 107, 165, 168 . 358 . 358, 361 . 358 . 633 53, 33.3, 335, 431 . 4.30 . 841 50, 434 .. 107, 168 . 134 . 500 $35, 362, 366, 386, 402 400, 825 . 430 . 435 434, 512 . 400 . 827 87, 800, 808, 809, 812, 827 . .388 . 526 . 47 . 198 . 126 . 379 . 511 . 359 . 371 . 87 . 371 . 104 . 402 . 106 . 180 . 221 . 180 221 . 221 . 221 200, 211 . 351 . 211 . 221 . 139 . 349 . 221 . 292 51, 54, 341 24, 25, 26 . 115 . 740 502, 508, 619 . 502 nd; and) 854) TABLE OF STATUTES. evil 18 & 19 19 & 20 20 & 21 A- 21 & 22 22 & 23 23 Vict. 23&24 24 & 25 25&26 26&27 27 & 28 28&29 29&30 30&31 31 Vict. 31 &32 Vict. c. Ill (Bill of Ladiijg Merchant Shipping) PAGE . 104 c. 124, s. 3 (Charitable Trust Amendment) . 150 Vict. c. 119, s. 19 (Marriafje and Registration Amendment Act, 1856) . ' . . 501 s. 21 . 501 c. 120, ss. 23, 24, 25, 34, 36 (Leases and Sal es of Settled Estates) . 212 A'ict. c. 31, S.S. 7-11 (Inclosure) . 221 c. 57 (Malins' Act) .... . 444, 636, 648 s. 1 . 167 8. 2 . 168 ss. 3, 4 . 169 0. 77, ss. 81, 83 (Probate Act) . 104 c. 85 (Divorce and Matrimonial Causes) . 601,610,611 s. 21 . 166, 667, 846 s. 25 . 165, 640, 668 s. 26 . 669 R. 35 . 499, 500, 529 s. 45 . 669 Vict. c. 50 (Ecclesiastical Jurisdiction) . . 772 c. 108 (Married "Women's Property) . 533 s. 7 . . . . ' . . 669 s. 8 . 165, 166, 669 ss. 9, 10 . 669 Vict. c. 43, ss. 10, 11 (Common) . . 221 c. 61 (Divorce and Matrimonial) . . 610 s. 4 . 529 s. 5 . 609 c. 18, s. 2 (Marriages) . 501 c. 28 (Wagers) . 297 Vict. c. 83 (Infant) . 502 0. 144 (Divorce and Matrimonial) . . 610 c. 145, s. 26 (Lord Cranworth's Act) . 854, 856 Vict. c. 101 (Statute Law Revision) . 292 A'ict. c. 89 (Companies Act, 1862) . 49, 771 s. 30 . 126, 127 s. 35 . . 464 s. 78 . 701 s. 95 . 104, 148 c. 163 . 747 Vict. c. 125 (Statute Law Revision) . 511 Vict. c. 43 (CJounty Court) .... . 139 Vict. c. 20 (Inclosure Provisional Orders) . 104 Vict. c. 32 (Divorce and Matrimonial) . . 610 Vict. c. 48 (Sale of Land by Auction) . 315 c. 59 (Statute Law Revision) . . 297 c. 69 (Real Estate Charges) . . 342 s. 1 29, 30 8. 2 . 31 c. 144 (Policies of Assurance Act, 1867) ... 104, 114. 138, 139 c. 4 (Sales of Reversions) .... . 309, 310 s. 1 . 318, 320, 322 ss. 2, 3 . 318 Vict. c. 40 (Partition Act, 1869) . . 369 B. 3 . 206, 211, 220 s. 4 . 208 s. 6 . 370 8. 7 . 200, 205, 211 8. 8 . 212, 336 8. 9 . . . . . . 201, 213 8. 10 . 196. 216 fi. 11 . 217 s. 12 . 318 cvm TABLE OF STATUTES. 31 & 32 Vict. c. 86 (Insurance Marine) c. 122, s. 37 (Poor Law Amendment Act, 1868) 32 & 33 Vict. c. 42 (Irish Church Act) c. 46 (Hinde Pahner's Act) . c. 62, s. 5 (Debtors Act, 1869) c. 71, s. 22 (Bankruptcy Act, 1869) s. 66 s. Ill s. 141 .... 33 & 34 Vict. c. 14 (Naturalization Act, 1870) . s. 2 c. 23, s. 10 (Abolition of Forfeiture for Felony) c. 28, s. 4 (Attorneys and Solicitors) s. 11 c. 35, ss. 2, 5 (Apportionment Act) c. 93, 8. 1 (Married Women's Property Act, 1870) ss. 2, 3, 4, 5, 6, 7 . s. 8 s. 10 s. 12 c. 102 (Naturalization) . 34 & 35 Vict. c. 44, s. 10 (Incumbents Resignation A (N.^'-i.- 'g" -/_J. c. 86, s. 3 (Auxiliary Land Forces) 35 & 36 Vict. c. 39 (Naturalization) 36 «& 37 Vict. c. 12 (Custody of Inft c. 12, s. 1 s. 2 ... s. 3 c. 35 (County Debentures) c. 66 (Judicature Act, 1873) s. 3 t) fants Acts, 1873) s. 4 s. 16 s. 19 s. 24 s. 25 sub-s. 1 sub-s. 2 sub-s. 3 sub-s. 4 sub-s. 5 sub-s. 7 sub-s. 2 sub-s. 5 sub-s. 6 sub-s. 8 sub-s. 10 sub-s. 11 67, 131, 132, 13 26 . 34, subs. 3 s, s. s. 36 & 38 Vict. c. 35 (Statute Law Pevision) c. 50, s. 1 (Married AVomen's Act, 1870, A 1874) .... s. 2 ss. 3, 4, 5 c. 58 (Real Property Limitation Act) c. 62 (Infant Relief) ss. 1, 2 c. 78 (Vendors and Purchasers Act, 1874) PAGE 104, 139 . 534 . 371 35, 48, 703, 745 . 678 . 128 . 749 . 104 . 128 . 647 340, 370 . 340 149, 276 . 150 834, 835 . 670 . 671 . 671, 705 . 671 . 697 . 340, 647 . 142 . 124 . 340, 647 . 519, 605 . 531 498, 531, 600 . 531 . 104 . 635 . 740 . 740, 744 175, 659, 740 . 740 403, 603, 659 . 67, 631 67, 631, 659 . 67 31, 132, 135, 631, 659 241, 741, 744 . 198 . 104, 403 . 513, 863 . 603 131, 132, 135, 140 203, 742, 754 495, 525, 530, 600 5, 333, 631, 659, 741 . 104 196, 206, 495 . 743 . 134 mendment Act, . 697 698, 701 . 698 . 862 . 503 . 326 . 726 TABLE OF STATUTES. CIX 38 & 39 Vict. c. 39 & 40 Vict. c. 77 (Judicature Act, 1875) s. 10 . s. 10 (b). s. 10 (n) . 17 (Partition) . s. 3 s. 4 20' ation) 8. « s. 7 c. 56 (Commons) s. 33 . 40 & 41 Vict. c. 18, s. 34 (Settled Estates, 1877) .' ss. 35, 36 s. 50 . c. 34, s. 1 (Real Estate Charges) . c- 38 (Board of Education Continuance 41 Vict. c. 19 (Matrimonial Causes) . s. 3 . . . s. 4 ....'' 44 Vict. c. 12, s. 38, sub-s. 2 (Customs' and Inland Rev 44 & 45 Vict.^c. 41, s. 4 (Conveyancing Act, 1881 s. 10, sub-s. 1 s. 39 s. 43 . s. 50 . s. 52 . 8. 65, sub-s. 2 (i) s. 71 . c. 44, s. 8 (Solicitor's Eemuuei c. 58, s. 141 (Army Act, 1881) c. 68, s. 19 (Judicature Act) . 45 & 46 Vict. c. 38, s. 3 (Settled Land Act, 1882) ss. 5, 6 . s. 21 . s. 31 . 8. 34 . s. 45 s. 60 . s. 61, sub-ss. 2, 3, 4 c. 43, s. 3 (Bills of Sale Act, 1882) '. c. 51 (Government Annuities Act). c. 61, s. 8 (Bills of Exchange Act, 1882) s. 36, sub-s. 2 8s. 38, 73, 89 . c. 75 (Married Women's Property 'G90, s. 1 . . ' sub-s. 2 . sub-ss. 3, 4 sub-s. 5 . B. 2 s. 3 s. 4 8. 5 8. 6 s. 7 ss. 8, 9 . ss. 10, 11 s. 12 . 8. 13 . 8. 14 . Scotl and) ) enue .35 PIGE . 743 . 49 . 35 . 200 201, 218 . 219 . 220 208,211, 212,213,220 . 221 . 180 . 221 336, 367, 370 . 370 . 723 31 342 610 609 166 •) . . 402 . 343 . 107 . 443, 723 . 845, 854 . 660, 694 . CSS . 684, 710 . 854 148, 149, 276 . 142 . 217 . 221 . 685 . 336 . 221 . 87 . 221 . 487, 514 . 684 . 106 . 139 . 136 . 137 . 136 402, 506, 630, 65], r07, 717, 729, 846 672 240, 668, 691, 692, 703 683 686, 692 696, 673, 717 674, 695 4, 687, 721 636, 674 676, 701 675, 701 . 676 . 677 677, 708 677, 699 700, 701 ex TABLE OF STATUTES. PAQK 4,-) & 46 Vict. c. 75, s. 15 677, 701 ss. 16, 17 . 677, 702 s. 18 . 677, 725 s. 19 . 67*^ J, 71( 5, 719, 722 s. 20 . . 677 s. 21 . 534, 677 s. 22 . 678, 705 s. 23 . 66( 3, 67J ?, 703, 705 s. 24 . 678, 725 s. 25 . 156, 684 46 & 47 Vict. c. 52, s. 10, sulj-s. 2 (Bankruptcy Act, IS 383) '. . 748 s. 25, sub-s. 1 . . . . . 746 es. 37, 40 . 608 s. 44 14 3, 144, 148 sub-s. iii . 128 s. 47 . 113 s. 50 . 128 sub-s. 5 . . . . 140 s. 52 . . . . 14 3, 144, 148 sub-s. 2 . . . . . 142 s. 53 . 142 s. 56 . 148 s. 92 . 749 s. 93 631, 741 s. 100 . 749 s. 125 . 756 47 & 48 Vict. c. 14 (Married Women's Property Act, 1884) . 677 s. 1 702, 709 c. 61, s. 14 (.Tuilicature Act, 1884) . . 643 c. 68 (Matrimonial Causes Act, 1884) . 610 c. 71 (Intestates' Estates, 1884) . 389 49 & 50 Vict. c. 27 (Guardianship of Infants Act) 49 6, 520, 529 s. 2 . 498, 531 s. 3 . 498, 532 ss. 4, 5 . 532 ss. 6, 7,8,9, 10, 11, 12, 13 . . 533 c. 52 (Married Women's Maintenance ii I Cas eof ] Jeser- tion Act, 1886) . 670 51 Vict. c. 8 (Customs and Inland Revenue Act) . 349 61 & 52 Vict. c. 2 (National Debt (Conversion) Act, 1 888) . 823 c. 42 (Mortmain and Charitable Uses) . 341 s. 7 . 381 c. 43, s. 68 (County Courts) . . 318 c. 59 (Trustee Act,' 1888) . 725 s. 8 . . 513, 863 52 & 53 Vict. c. 30 (Board of Agriculture) . . 180, 221 c. 49, ss. 13, 14 (Arbitration) . . 179 c. 56 (Poor Law Act) . 534 s. 6 . . 497 53 Vict. c. 5, s. 120 (Lunacy Act) . 200 s. 120, b . 221 s. 123 ..... . 365, 366 53 & 54 Vict. c. 23, s. 3 (Chancery of Lancaster) . 218 c. 29 (Intestates' Estates, 1890) . 389 c. 39, s. 4 (Partnership Act, 1890) . 695 c. 44, s. 9 (Judicature Act) . 216 c. 63 (Companies Winding-up Act) . 771 c. 69, s. 15 (Settled Land Act, 1890) . 367 c. 71, s. 21 (Bankruptcy Act, 1890) . 746 64 Vict. c. 3 (Custody of Children Act, 1891) . .' 497, 526, 600 s. 1 . . . 533 TABLE OF STATUTES. CXI 54 Vict. c. 3, s. 3. s. 4 . s. 5 ' ' " 54 & 55 Vict. c. 39 (Stamp Act, isOl)' c. 73 (The Mortmain and Charital s. 9 . 55 & 56 Vict. c. 11 (Mortmain and Charitable U =^ P .►, TT- ^- ^^ (Foreign Marriage Act) . 56 & 57 Vict. c. 53 (Trustee Act, 1893) s. 16 . s. 30 . . s. 42 . . s. 45 . c. 63 (Married Women's Proiiertv s. 1 . . s. 2 . . s. 3 . s. 4 . . s. 6 . . 57 & 58 Vict. c. 30, s. 18 (Finance Act, 1894) '^' 11 fP^^ve^tion of Cruelty to Children' 1894) c. 46 (Copyhold) . ' s. 87 . . . \ c. 60, s. 36 (]\lerchant Shipping) 58 & 59 Vict. c. 39 (Summary Jurisdiction (llarried Women) ) 59 & 60 Vict. c. 51 (The Vexatious Actions' Act, "l 896) le Uses Act) ses Amendment) . 90, Act, 1893). . 679, . 680, 691, 49/ 113, PAGE 534 534 534 351 . 341 . 56 . 341 . 501 78, 90 . 725 200, 212 632, 846 691, 724 673, 725 692. 712 681, 68i; 667, 706 723 688 684 681 315 349 518 180 198 129 726 166 747 ADDENDA ET COERIGENDA. VOLUME I. Paf'e 7 78, 79, 80, uote (a), add ''lie Pilcairn, (1896) 2 Cli. 199." note («), add "Tie Pitcairn, (1896) 2 Ch. 199." note (i7), " Craig v. JFJieclcr, followed iu lie Game, 66 L. J. Cli. 505." note (/), add "See also Re Game, supra." note (/), " Not followed in Ee Game, supra." note (c), "Harris v. I'oyner, followed iu lie Game, 66 L. J. Ch. W, 81, 81, 82, 82, 83, 83, 84, 85, 86, 86, 87, 88, 88, 89, 90, 106, 106, 109, & 505." note ((/), note (c), note [d), Graicj v. Wheeler, followed in Re Game, supra." Harris v. Foyner, followed iu Re Game, supra. " See R£ Carter, 41 W. R. 140." note («), add "Re Hicbbucl; (1896) 1 Ch. 754." note (e), " Re Pitcairn, (1896) 2 Ch. 199." " In Re Game, 66 L. J. Ch. 505, G. devised freeholil ;iud leasehold for life with remainder over. It was held that neither the use of tlie word 'rents,' nor a power of distress given to annuitants, nor both these cireumstances, amounted to an indication that the leaseholds were to be eujo}'ed in specie." note (a), " Vachell v. Roberts, not followed iu Re Game, supra." note (a), "Harris v. Poijner, followed iu Re Game, supra ; Wearing V, W., not followed. " note (a), "Followed iu Re Game, supra." note (e), add " Re Pitcairn, sui)ra." note (/), siibsfitide for "Re Hubbock, &c.," "Re mihbiick, (1896) 1 Ch. 754." Hue 22, add "See further as to leaseholds, Brercton v. l)ay (1895), 1 Ir. R. 518 ; Blake v. ffRcilly, ib. 479. As to liability of tenant for life for repairs of leasehold house, see Kingham v. K. (1897), 1 Ir. J.'. 170 ; Re Ridding, 45 W. II. 457." note (c), substitute " Re Huhbuck, (1896) 1 Ch. 754." note (/), add " Re HilVs Hetl. IVuht^, 75 L. T. R. 477." note {b), add " Bulkeley v. Stephens, (1896) 2 Ch. 241." note (c), "Marav. Browne was reversed on the evidence, (1896) 1 Ch. 199." line 27, add " So contracts of a personal nature, e.g. as between author and publisher, cannot be assigned without consent, whetlier the agreement is between an author and an individual or a company : Griffith V. Tower, dtc. Co., (1897) 1 Ch. 21." note (c), alter leference to Ex jJ- Nicholls to "22 C. D. 782," and add " Wilmot V. Alton, (1897) 1 Q. B. 17." note {d), substitute for "Re Nicholls" "Ex }). Nicholls, Re Jones'' ; add " Wilmot v. Alton, (1897) 1 <,K W 17." T. — VOL. I. h Cxiv ADDENDA ET CORRIGENDA. Page 110, note (^), suhstltutc for "Re Nicholls" ''Ex p. NlchoUs, Be Jones," and add " mimot v. Alton, (1897) 1 Q. B. 17." ,, 114, note (d), add " JVihnot v. Alton, (1897) 1 Q. B. 17.' ,, 128, "In JVilmot v. Alton, (1897) 1 Q. B. 17, future payments to become due under a contract were assigned. Before the money became payable the assignor became bankrupt. Held, the trustee was entitled, fol- lowing Exp. Nicholls, Be Jones, 22 C. D. 782." „ 128, note (a), add "As to the equitable assignment of future payments, due under an executory contract, see Be Ex p. Nicholls and IVilmot v. Alton, supra, p. 106." ,, 131, note {g), substitute for ''Be Nicholls, kc," " Ex j}- Nicholls, Be Jones, 22 C. D. 782, followed WilmotY. Alton, (1897) 1 Q. B. 17." ,, 131, note (/), add " Wilmot v. Altim, (1897) 1 Q. B. 17." ,, 141, note (a), add "King v. Victoria Insurance Co., (1896) A. C. 250." 142, note (/), add " As to sequestration of the profits of the benefice of a bankrupt clergyman, see Re Lawrence, (1896) P. 244." 142, i\ot&{k), add "Re Ward, (1897) 1 Q. B. 266, 'retired pay' under Art. 1057 of Royal Warrant of 1887 is within sub-s. 2, and not within sub-s. 1 of s. 53, and so a portion may be appropriated for creditors." 144, Alimony, add " Sums of money ordered to be paid for maintenance of a divorced wife can neither be assigned nor released : Watkins v. W., (1896) P. 222." 144, note {h), add "As to the sequestration of the profits of the benefice of a bankrupt clergyman, .see Re Laivrence, (1896) P. 244." „ 144, note (h), add " Re Ward, (1897) 1 Q. B. 266." ,, 145, Champerty, "See also Bees De Bernardy, (1896) 2 Oh. 437." 163, note (a), add " In the case of Davics v. D., the confirmation was by an act after the disability of coverture had ceased. But where the assio-nment has been made while the assignor was under the disability of infancy, and not of marriage, it has been frequently hehl, that as a voidable deed it may be confirmed during marriage : see Barrow Y. B., i K. & J. 409 ; Wilder v. Piggott, 22 C. D. 363 ; Be Hodgson, (1894) 2 Ch. 426. In Grccnhill v. The North British Raihvay Co., (1893) 3 Ch. 494, the Judge apparently treated these cases as applicable where the assignment had been made after marriage, but this case appears to have turned on special circumstances. In other cases when the assignment was void, as being by a woman under the disa- bility of marriage and not merely voidable, it has been held that it could not be confirmed : see Seaton v. S., 13 App. Gas. 61, and Harlc V. Johnson, (1895) 2 Ch. 422, in which the cases of confirmation are discussed by North, J., and the cases of assignments during infancy and coverture distinguished. In the same case he also distinguishes these cases of confirmation from those of election proper, where the married woman has to elect between two funds. As to these, see the notes to Streatfield v. ,S'., p. 416, post." Delete "And see Addenda, note (a)-" 165, note (e), "Miller v. Collins, (1896) 1 Ch. 573, overruling Re Neivton's Trusts." Delete "Addenda, note (J)." 168, note (a), add "See supra, pp. 164 and 165, and Miller v. Collins, (1896) 1 Ch. 573, overruling Re Ncivton." ,, 203, note [g), add " Re Cook's Mortgage, (1896) 1 Ch. 923." 221, note (a), add "For form of judgment where infant plaintiffs are entitled to one undivided third, declaring infants in event of sale to be trustees for purchaser, and directing conveyance by next friejid, see Davis v. Ingram, (1897) 1 Ch. 477." 244, note (a), " See Priestley v. Ellis, (1897) 1 Ch. 489." ADDENDA ET COERIGENDA. CXV Paf,'e 351, note (c), add "But see Re Guodall, 44 W. R. 70, 65 L. J. Ch. 63." ,, 353, Option to purchase. "See also Re Goodall, 65 L. J. Ch. 63." ,, 389, " W., seized of an estate in fee, devised it to her executors on trust for sale, and to pay debts, &c., no gift of residue. W. had no heir. Balance of proceeds of sale escheated to Crown. Re Wood, A.-G. v Anderson, (1896) 2 Ch. 596." „ 389, "As to a resulting trust in the case of a friendly society where the objects for which subscription had been made did not exhaust the fund, see Cunnack v. Williams, (1895) 1 Ch. 489." ,, 389, note (d), add " As to sect. 4 of the Act, see Re Wood, (1896) 2 Ch. 596. ,, 389, note (e), after "Re lashmar," add "Re Wood, supra." ,, 407, line 17, "But delivery, which is essential, may be antecedent to the gift. Cain v. Moon, (1896) 2 Q. B. 283 ; cf. Thomjjson v. Hefferneu 4 Dr. & Wa. 485." ., 409, note (b), "Cain v. Moon, (1896) 2 Q. B. 283, delivery may be ante- cedent to the gift." ,, 411, note (i), refer to " Cain v. Moon, (1896) 2 Q. B. 283." ,, 422, note («), add " Minchin v. Gabhett (1896), 1 Ir. R. 1, where Ranclife V. Parkyns is discussed. " ,, 425, note (a), after " Rancliffe v. Parkyns," add "discussed in Minchin v. Gabhett (l%m), 1 Ir. R. 1." ,, 426, note (c), after " Rancliffe v. Parhjns," add " discussed in Minchin v Gabbett (1896), 1 Ir. R. 1." ,, 427, note (/), add "discussed in Minchin v. Gabhett (1896), 1 Ir. R. 1." ,, 443, note (c), add "See Re Jones, (1893) 2 Ch. p. 469." ,. 443, note (g), add "Re Jones, (1893) 2 Ch. 461." ,, 450, line 12, add "See Bloomenthal v. Ford, (1897) A. C. 156, in which the H. L., overruling the C. A., held that a company having obtained a loan by a misrepresentation that the shares were fully paid, were estopped as against the lender from alleging that they were not fully paid, and the liquidation was also held estopped." ,, 450, note (6), after "Jordan v. Money," add "followed in Chadwick v. Manning, (1896) A. C. 232." ,, 452, notes (a) and {h), add "And see judgments in Bloomenthal v. Ford, (1897) A. C, pp. 160—172." Refer in margin to Bateman v. Fabcr W. N. (97) 6Q. „ 452, note {d), add after "Jordan v. Money," "followed in Chadwick v. Manning, (1896) A. C. 231." ,, 453, note (a), add "As to a case in which silence was held not to be a legal wrong and so not to work an estoppel, sec Ogilvic v. IF. Australian, dx. Corp., (1896) A. C. 257." ,, 453, note (rt), " Peek v. Gimiey is distinguished in Andrews v. Mockford, (1896) 1 Q. B. 372." „ 453, note (/), add after " 7 V. 251," " 6 R. R. 119." „ 454, note (c), add " Aaroji's Reefs v. Twiss, (1896) A. C. 273. Cf. Lynde V. Anglo-Italian, d:c. Co., (1896) 1 Ch. 178." ,, 454, note (J), add " Andre ivs v. Mockford, (1896) 1 Q. B. 372; Reid v. Hoolcy, 13 Times L. R. 398." ,, 461, note {b), add "See Dann v. Spurrier, 6 R. R. 119." ., 462, note (h), add "followed in Chadwick v. Manning, (1896) A. C. 231." ,, 465, note (,. Eobins, supra; Ouseley Trott r. Buchanan, 28 C. D. 446 ; v. Anstruthcr, supra ; Tower v. Eous, jUiiidge V. AVallscourt, 1 Ball & B. 18 Y. 138; Bootle v. Blundell, 1 312. The cases, therefore, of Kynas- Mer. 193 ; Eobertson v. Broadbent, ton V. K., 1 Bro. Ch. 457 ; Holiday v. 8 App. Cas. 812. PRIMARY LIABILITY OF PERSONAL ESTATE. 17 Ancaster v. Mayer. upon it, but which are charged upou the laud. In Watson v Brichivood (a) a testator devised his real estate to a trustee upon trust for his nephews, W. W. and R B., for life with remainders over. He then gave legacies to several nieces in blank, payable at the end of a year after his death, by his executor, and bequeathed all and singular his goods, chattels, personal estate, and effects, whatsoever and wheresoever, not thereinbefore disposed of unto his said nephew W. W., his executors, administrators, and assigns, he paying thereout all and singular legacies, and all his funeral expenses and simple contract debts. The testator, then noticing that he was indebted, by mortgages and bonds, for money borrowed to pay for some of the estates he had purchased, directed that those debts should be paid by tlie devisees in equal proportions; and, after giving an annuity to a .servant out of the real estate, he appointed his nephew, \V. W., his executor. The will, it must be observed, does not charge the real estate with any debts ; but the testator, by a codicil, appointed a trustee in the place of the one named in the will, and empowered the new trustee, " in order to raise money for the payment of all and singular his debts and legacies, to mortgage, with the approbation af the taker for the time being of his estates, a competent part of his said freehold estates, for so much money as should be necessary for that purpose ; and he directed his trustees for the time being to keep down the interest;" and by another codicil he appointed another trustee, and gave other legacies. It was contended, that the personal estate was exonerated from the debts and legacies, or, at any rate, was liable only to the simple contract debts. Grant, M. R., admitted that there was some indication of an intention to exonerate the personal estate, but thought that it was not so conclusive as to come up to the requisition of the rule laid down in the principal case, that is, a plain intention ih). By directing that the executor, to whom he gave all his personal e.state, should pay thereout all the legacies, funeral expenses, and simple contract debts, prima, facie there was some appearance of an intention that he did not mean the personal ostate to be liable to debts by specialty. But that alone, upon the authorities, was not sufficient. In Bootle v. Bliindell (c), Eldon, C, says this case was rightly decided, taking the will and codicil together. "But if the codicil had not existed, there are circumstances which appear to me to be such as might have given occasion to some («) 9 Y. 4J;5. p. 74. {l>) See Howe v. Dartmoutli, infra, (c) 1 Mor. I!);j. \\. k T. — VOL. I. 2 I 8 A DM INISTRATIOX. Aneaster v. Mayer. observations wliicli do not occur either in the judgment or in the argument " («). ^ Certain Expressions amounting to Exoneration. — In Wehh v. Jones (h) the testator devised his real estate to be sold, and the money to arise by the sale to be applied to pay mortgages and all other debts, the residue to he added to Ids 'personal estate; Kenyon,M..^., held the personal estate to be exonerated, upon the ground, it is presumed, tiiat the testator clearly showed that he did not con- template the possibility of the Avhole personalty being applied before the realty, which it might have been if it was to be applied in its natural order (c). So where a testator declares that he has chai'ged his lands with the payment of his debts in order that the personalty may come dear to the legatee (d), or where he has directed the pro- ceeds of his real estate to be applied "in part payment" of certain legacies (e). In Daives v. Scott (/) a testator devised an estate at C, and bequeathed certain specific chattels, upon trust to sell, and in the first place to pay all his just debts, funeral and testamentary expenses and legacies, and after giving some pecuniary legacies, declared that the moneys to arise by such sale as aforesaid, shoidd he ''the fand iivimarlly ajyplicahh' to the discharge of his said debts, funeral and testamentary expenses and legacies." And in case it should be insufficient, by a codicil charged his H. estate "with tiie paynjeut of so much money as should be requisite to make good the deficiency;" it was held by Leach, M. R., that the personal estate was only liable after the two estates had been exhausted ; " for the C. estate and the articles to be sold therewith, are expressed to be the prima. V fund, and the plain intention of the testator is, that the H. estai. sliuuld be the secondary fund"((7). S" II may appear by implication that it was the intention of the (a) See al.) 31 C. D. 56. 538. (c) Browne v. Groombriilge, 4 Madd. (.'/) Milnes v. Slater, supra. 495, not being followed. (/') Paget v. Huish, 1 Hem.& M. 663. PRIMARY LIABIJJTY OF PERSONAL KSTATE. 21 Ancaster v. Mayer. entry (a). So where there is a (jeneral charge of legacies upon land, or a devise in trust to pay legacies generally, the personal estate will be the primary fund for their payment (6). But the will may show an intention to make legacies primarily payable out of another fund (c). Trust to Pay certa:n Legacies.— But where there is a trust to Y)a.y particular sioms out of real estate, as if A. devise real estate to B. upon trust to pay 1000?. to C. such sum is considered as part of the real estate, and the personal estate will not be liable to the payment, even upon a deficiency of the real estate (cZ). Nor will it even though there be a direction at the end of the will, that the personal estate should be applied in payment of legacies in exoneration of the real estate {e). So in Wooclhead v. Turner (/) it was held, upon the hinguage of the will, that an annuity was primarily payable out of specifically devised real estates (.7). And should the testator sell the estate out of which a sum is to bo paid, the legacy will be adeemed (h). Where, however, the legacy appears to be a demonstrative legacy, there the fund pointed out ior its payment, whether real or personal, is primarily liable, but upon its iailure the demonstrative legacy will be payable out of the general assets (i). (o) Patching r. Jiarnctt, 49 L. J. Ch. 665. (b) Kii'ke V. K., 4 Euss. 449; Roberts r. E., l;j ISi. 349; Davies c. Ashforil, 15 Si. 42; Ouseley r. Anstruthcr, 10 B. 453; lie Over, 31 C. D., p. lis. (c) Greaves v. Powell, 2 Vern. 24.S ; Boughton V. B., 1 II. L. Cas. 406 ; Whieldon v. Spode, 15 B. 537 ; Lance r. Agliouby, 27 B. 65; //"e Xeedhaui, 54 L. J. Oh. 75 ; Thynnc /•. St. Maur, 55 L. T. 753. (d) Hancox v. Abbey, 11 V. 179; Gittins V. Steele, 1 Sw. 24; Lamphier r. Despard, 1 Con. & Law. 200 ; Dickin v. Edwards, 4 Ha. 273 ; Bateman v. Eoden. 7 Jr. Eq. E. 240; Jones v. Bruce, 11 Si. 221 ; Ashby v. A., 1 Coll. Ch. E. 549; Eoberts v. E., supra; Evans r. E., 17 Si. 102; Coard v. Ilolderness, 22 B. 391 ; Gordon v. Duff, 28 B. 519. (e) Spurway v. Glynn, 4 V. 483. (/) 4 DeG. & Sm. 429. {(j) Ion r. Ashton, 28 B. 379; Daunt '•. D., 13 Ir. Ch. Rep. 175; AUan v. Gott, 7 Ch. 439; Weldon v. Bradshaw, 7 Ir. E. Eq. 168; Sinnett v. Herbert, 12 Eq. 201 ; Com-on v. C, 7 II. L. Cas. 168; Si)ong r. S., 3 Bli. 84. (//) Newbold r. Eoadnight, 1 Eiw;^. i^- M. 667. (v) Savile v. Blacket. 1 P. W. 77e ; A.-G. r. Parkin, Amb. 566; Cartwright V. C, 2Bro. Ch. 114; Eoberts r. Po- cock, 4 V. 150; M'CIeland r. Shiiw. 2 Sch. & L. 538 ; Smith /•. Fitzgerald, .) V. & B. 2; AValker c. Laxton, 1 Y. : Hughes, 24 B. 474; Paget V. Huish, 1 Hem. & M. (563 ; and note to Ashbiirner r. Macguire, post. 22 ADMINISTRATION. Ancaster v. Mayer. Trust to Pay Certain Debts.— But it appeal's that adevise of real estate, upon trust to raise a certain sum, for payment of debts (a), or to pay a particular debt to which the personal estate is already liable, will render the real estate the primary fund for the payment of such sums (6). But in Noel v. Henley (c), Richards, C. B., observed, " That he could not make any distinction between a direction that real estate should be cliargeable with a particular debt of 20,000Z., and a devise of real estate subject to all the testator's debts; for the 20,OOOZ. was only part of those debts." See the remarks on this case in Jarmau (1898) p. 1486. And it would seem from some cases that the charge of a debt on real estate, not being already a charge thereon, will not affect the primary liability of the personal estate (d), unless where the testator has likewise imposed the payment of the debt as a personal obligation on the devisee ((')• Charge of Debts on Specific Fund. — Where a specific personal fund is subjected to charges which otherwise would fall upon the general personal estate, as debts, legacies, funeral and testamentary expenses, such specific fund will not be the auxiliary fund for their pay- ment as in the case of land, see supra, but the primary fund (/). Where, however, the residue is undisposed of it will be primarily liable (). But, by 40 & 41 Vict. c. 84, p. 31, infra,! the Act is extended to lands and hereditaments of all tenures.! Land devjsed upon trusts for conversion, and taken in its converted state, is (semble) not an interest in lands within the meaning of the Act : and a person to whom the 'p^^oceeds of land have been bequeathed by a testator who had mortgaged it, can demand the jjayment of the mortgage out of the general personal estate (c). " Charged by way of Mortgage." — The meaning of mortgage is extended by 40 & 41 Vict. c. 84, infra, p. 31. This Act only applies (rt) Piper r. r., 1 Jolm. & U. 9L Ec Wormsk-y's Estate, 4 C. D. GCm. {h) Solomon v. 8., 12 W. E. 540; (r) Lewis r. L., 13 Eq. 22 J. Gall V. Fcnwick, 4:3 L. J. Ch. 178; 26 ADMINISTRATION. Ancaster v. Mayer. where there is a defined and specified charge on a specified estate («). It applies to an equitable mortgage of freeholds, by deposit of deeds with a memorandum (6), or without a memorandum (c) ; and though the memorandum stated that the deposit was made " as a collateral security " for money lent on a promissory note {d). A ve ndor' s lien for unpaid purchase- tnoney, however, is not within this Act ((^). " Or any other real estate of such person." — This means " other real estate not descended or devised to such heir or devisee " (/). '' As between the different persons," &c. — If the Crown takes personal estate in default of next of kin, it takes it free from the mortgage debts (), although where that word was used, it was held, as the resv.lt of the whole transaction, that one property was not to be called upon to provide for payment of part of the debt {(■). Where a testator specifically devised part of i?,^^*.^^ the mortgaged estate, and left the other part to pass by a general residuary devise, it was held by Romilly, M. R. {d), to be an expres- sion of his intention that the part which passed by the general residuary devise should be primarily liable to the payment of the, whole mortgage debt, in exoneration of the part which was speci-l fically devised, and that therefore Locke King's Act did n(jt apply] This case was questioned by Jessel, M. R. (e), and it is now established that where property is subject to a mortgage, and part is devised to specific, and part to residuar}- devisees (botli deviscs/f being now considered specific), each part of the estates must con- tribute rateably (/'). A part}^ seeking ainti'ihutlon must show not only that there is a charge on both properties, but also that they are e([ually liable niter Under Locke King's Act, unless b}' the signification of a contrary intention the primary liability of the land in mortgage to bear the mortgage debt be thrown upon other real or personal property of the party dying seised of or entitled to such land, the devisee or heir-at- law cannot claim a right to have land in mortgage exonerated by the application for that purpose of any of the real or personal estate of the testator or ancestor. As far as they are concerned, the land in mortgage must solely bear its burden. But where a contrary intention has been shown under the Act, by the substitution of another fund for the exoneration of the propert}' in mortgage, it has been held by the greater weight of autliority that if the fund be («) Leonino i\ L., supra; Do Roch- (<>) i>ackville /•. Smyth. IT Va{. \')'6. fort r. Dawos, siij^ra ; 8tnn|?or /•. (/) Hensiiiaii r. Fryer, .'J Ch. 420 ; Harper, 26 B. o.'j. Gibbiiis i'. Eyden, 7 Eq. 391 ; Lauce- [h) Athill -. A., supra ; Early /•. ]•:.. fi(>l(l /■. Iggulden, 10 Ch. 236 ; Sackvillc 16 (J. I). 214 (n.) ; Leonino i'. L., supra. r. Smyth, 17 Eq. 153; lie Smith, {(■) Bute V. Cunyughame, 2 Busy. Ilannington r. True, 33 C. D. 195. 275. [(j) lir Dunlop. 21 C I). 583. (rf) Brownson v. Lawrance, 6 E(j. 1. 28 ADMINISTEATION. Ancaster v. Mayer. insufficient to pay off the mortgage, the deficiency must be Lorno by the mortgaged estate (a). "A Contrary or Other Intention." — See as to persons dying after 1807 or 81st December, 1877, note to 30 & 81 Vict. c. 69, and 40 & 41 Vict. c. 34, infra. Judges, as might be expected, have differed mucli as to the meaning and application of these words {h). The intention is to be gathered from the will of the testator, or some document executed by or binding upon him, and, senible, a will executed before the mortgage would .suffice (c). It has been decided that a mere direction by the testator that the debts " shall be paid as soon as may be " (d), even although the real estate in mortgage be devised in strict settlement (e), or that debts should be paid " out of his estate " (_/'), or by his " executors out of his \^ estate " (y a domiciled Englishman, was payable in exoneration of the estate upon which the bond was charged out of his residuary personal estate, (rt) Eodhouse v. Mokl, b*.3 L. J. Ch. {h) Allen r. A., 30 B. 39 J ; Greated 07 ; Gall r. Fenwick,43 L. J. Ch. ITS ; r. G., 2GB. G21 ; Stone t: Parker, 1 Dr. Smith. I'. Moreton, contra, 37 L. J. Ch. & Sm. 212 ; Newman v. Wilson, 31 B. G ; Allen v. A., 30 B. 403 ; Greated v. 33 ; ^« Ncvill, o9 L. J. Ch. 511 ; Eaw- G., 26 B. G21. son r. M'Cansland, S Ir. E. Eq. 617. {b) See observations of WcstburijX-, (/) Moore r. M., 1 Do G.J. & S. in Eolfc r. Perry, 11 W. E. 674 ; see 602. also Wootstencroft r. "W., 2DeG. P. & (/,) Eno r. Tatham, supra ; MeliiKli J. 347 ; Eno v. Tatham, 11 W. E. 475 ; ,-. Vallin.s, supra. Hellish V. ValHns, 2 John. & II. 194. (/) Also Smith r. S., 3 Gif. 263 : (c) Re Campbell, (1893) 2 Ch. p. 214. Smith v. S., 10 Ir. Ch. Eep. 461 ; Buck- (rZ) Pembroke r. Friend, 1 John. & ley v. B., 19 L. E. Ir. 544; Porcher r, H. 132. Wilson, 14 W. E. 1001 ; Greated v. G., (e) Coote V. Lowndes, 10 Eq. 376. supra; He Bull. 49 L. T. 592. (/)Brown.son v. Lawrance, 6Eq. 1. (/») L. E. 4 H. I.. 506. {(j) Woolsten croft r. W., snpra. PRIMARY LIABILITY OF PERSONAL ESTATE. 29 Ancaster v. Mayer. bequeathed for payment of his "just debts "(a). When the statute; is excluded by the substitution of another fund the estate, it seems, i^ exonerated to the extent of that fund on\y{h). " Provided also," &c. — With regard to the operation of this last proviso, an heir taking hij descent after the passing of the Act will not come within such proviso, and consequently he will not be •entitled to exoneration, although the mortgage deed by whicli the ■equity of redemption was reserved to his ancestor and his heirs was executed (c), or the will by which the personalty is bequeathed was made (r/) before the 1st of January, 1855. An heir-at-law, or customary heir of a testator, taking by descent an estate which has been the subject of a lapsed devise, in a will made before the 1st day of January, 1855, will not come within it (e). Where a devisee takes the mortgaged estate under a will made before the 1st of Januar}', 1855, he will come within the meaning of the proviso, and be entitled to exoneration, although the devisor may have executed another will after that date which, without affecting the devise, operated as a republication of the will(/). 33 & 31 Vict. c. 69. (25 July, 1867.) S. 1. " In the construction of the will of any person who may die after the 31st day of December, 1867, a general direction that the debts, or that all the debts of the testator, shall be paid out of his liersonal estate, shall not be deemed to be a declaration of an in- tention contrary to or other than the rule established by the said Act (17 & 18 Vict. c. 113), unless such contrary or other intention shall be further declared by words expressly or hy necessary implicafion referring to all or some of the testators debts or debt charged by loay of mortgage on any part of his real estate." With regard to this Act, it has been observed that as it was a construing and explaining Act, it did not profess to amend the former Act, but to set aside the interpretation that had been put upon it — it was, in fact, a polite way of overruling the decisions of the- Court of Chancery : per Jessel, M. R. {g). {a) Eowson v. Harrison, 31 B. 207, (c) Piper v. P., 1 John. & IL (H. contra, but this case was overruled in [d) I'ower v. P., 8 Ir. Ch. Eep. .S4(». Moore v. M., supra. (e) Nelson v. Page, 7 E. {(I) Elliot V. DcaTsley, 16 C. D. 195. 322. PRIMARY LIABILITY OF PP^RSOXAL ESTATE. 31 Ancaster v. Mayer, Held ho had made a particular specitic provision which excluded the Act («). S. 2. "Ill tlio construction of the said Act, and of this Act, the word 'mortgage' shall be deemed to extend to any lien for unpaid purchase-money upon any lands or hereditaments purchased_by a testator." "Mortgage." (See note, " Mortgage or other," etc., infra.)— This section applies only to lands or hereditaments purchased by a ^^^ ^ "testator," the heir-at-law of an intestate has, therefore, been held i^^'"' to be entitled to have the lien for unpaid purchase-money, upon an ■ estate purchased by the intestate, paid for out of his personal estate (6). 40 & 41 Vict. c. 34. (2nd August, 1877.) S. 1. "The Acts mentioned in the schedule hereto shall, as to any testator or intestate dying after the 31st of December, 1877, be held to extend to any testator or intestate dying seised or possessed of or entitled to any land or other hereditaments oi\vhatever tenure which shall at the time of his death be charged with the payment of any sura or sums of money by way of mortgage, or any other equitable charge, including any lien for unpaid purchase-money, and the devisee or legatee or heir shall not be entitled to have such sum or sums dis- charged or satisfied out of any other estate of the testator or intestate^ unless (in case of a testator) he shall, within the meaning of the said Acts, have signified a contrary intention ; and such contrary intention shall not be deemed to be signified by a charge of, or direction for payment of debts upon or out of residuary real and personal estate or residuary real estate." " In the Schedule." — The Acts in the schedule are 17 & IS A'ict. c. 113 and 30 & 31 Vict. c. 69. "Land or Other Hereditaments." — By virtue of this section the 17 & IS Vict. c. 113, is extended to leaseholds (<'). "Mortgage or other," fee, "including," &c. — As to the way in Avhich these words should be read ('/). Land delivered in execution under an elegit is included in them (d). This Act applies the («) lie Fleck, 37 0. D. 677; Hr 193 ; soc 40 & 41 Vict. c. 34. .supra. Nevill, 59 L. J. Ch. oil, wliicli went {<■) Re Kershaw, 37 C. D. 074. on much the same grounds. (v(jh, C, observed: "The equity the Court affords to a person entitled to real estate by devise, to have the incumbrances ii[)on it discharged as a debt out of the personal estate, can go no farther than this : — as between the heir or devisee of the estate ami residuary legatee, it cannot interfere with the disposition of other parts, as specific or geveral legacies, much less with the interests of creditors." The heir, where an estate descends subject to a mortgage, is entitled to exoneration, in cases not within the Ileal Estate Charges Act, first out of the general personal estate ; and, lastly, out of real estate expressly devised for payment of debts (i). lHarshalling of Assets. — If the above-mentioned order has been dis- turlK.'d l)y any creditor, equity will marshal the assets (/.■)• The right of the mortgagee to obtain full payment or satislaction of his mort- gage debts out of all the assets of the mortgagor, in case the mort- gage estate should be insufficient, is not affected by Locke King's (a) Gibbins v. Eyden, 7 Eq. ;)91 ; (d) O'Xeal r. Mead, 1 1\ ^Y. 693; Sackville v. Smyth, 17 Eq. 1.3:3. Emuss v. Smith, 2 De G. & Sm. 722. Xb) Galton v. Hancock, h^upra ; (e) Lutkins v. Leigh, Cas. t. Talbot, Emuss V. Smith, 2 De G. & Sm. 722. oS; Johnson r. Child, 4 11a. S7. (c) Pearmain v. Twiss, 2 Gif. 130 ; (/) IP. W. 730. Emuss?;. Smith, supra; Clark r. ('., {g) O'Neal v. Mead, supra; Ilalli- 34 L. J. (N. S.) Ch. 477 ; Eodhouso /•. well /•. Tanner, 1 Euss. & JNl. C33; L'r Mold, 3.J L. J. Ch. 67 ; Ilensman /•. Butler, p. 32, supra. Erycr, 3 Ch. 420 ; in which case (A) 2 V". jun. 65. Chelmsford, C, decided that a re- (/) Hill r. London, 1 Atk. 62 1 ; siduary devise was specific; and this Chester /•. l*owell, 7 Jiu'. 8S9 ; Yongo decision was approved of by ('(lims, r. Furse, 20 B. 380. €., "n Lanceleld v. I, 'gulden, 10 ("h. {k) See Aldrich v. Cooper, p. 36, and 36. '^ Shelford, E. P. Statutes, (1893) p. 381. PRIMARY LIABILITY OF PERSONAL ESTATE, 35 Ancaster v. Mayer. Act, and it is presumed, that after having resorted to the funds already indicated, he will be entitled to payment out of the Jissets of the testator in the ordinary course of administration. The election of the mortgagee to come upon the personalty for payment of the mortgage debt will not determine what fund shall be idtimately charged with it ; for, under the .ordinary rule of mar- shalling the simple contract creditors, the widow or legatees would have a right to stand in his place for so much of the real estate as lie should take out of the personal. They will net, therefore, be prejudiced, nor will the devisee be benefited, by the election of tiic mortgagee to proceed, as he undoubtedly may, against the personal estate in the first instance («). Under Hinde Palmer's Act, 32 & 3o Vict. c. 40, a mortgagee, being (as he ordinarily is by reason of the covenant in the mortgage deed) a specialty creditor, is only entitled to be paid pari passu with simple contract creditors. And under the Supreme Court of Judicature Act, 1875, 88 & 39 Vict. c. 77, s. 10 {h), in the administration of the assets of any person Avho may die after the 1st of November, 1875, and whose estate may p'-ove insufficient for the payment in full of his debts and liabilities, and in the winding-up of companies, a mortgagee, if he proves for his whole debt, must give up his security, or, if his security be realised or valued, he can prove only for the balance (c). And under the Bankruptcy Act, 1883, 46 & 47 Vict. c. 52, s. 125, (he estate of a person dying insolvent may be administered in bank- ^■uptcy upon the petition of a creditor of a deceased debtor whose debt would have been sufficient to support a bankruptcy petition against such debtor had he been alive ((7). (a) rorchor y. Wilson, 14 W. E. 1001 ; {(■) Rs- Suiniiior.s, 13 (', D. 13G. Buckley I'. B., 19 L. E. Ir. 544. ((Z) See Judicature Act, 187u, s. (i) See Annual Practice, Part I. 10 (n), Annual Practice, Part I. 3 2 oG ADMLNL^iTRATIOX. ALDRICH V. COOPER. DURHAM V. LANKESTER. DURHAM V. ARMSTRONG. 1803. 8 Y. 382: 7 E. E. 8G. Marshalling. Mortgitgeeaf freoholdand copyhold estates, also a specialty ci'editor, havin<:j exhausted the personal assets, simple contract creditors are entitled to stand in his ])lace against both the freehold and the copyhold ewtates, so far as the personal estate has l)cen taken away from thcni l»y such specialty creditor. Mortgage of freehold estate, with a covenant for better securing the payment, to pi-ocurc admission to and to surrender a copyhold estate, and in the meantime to stand seised in trust for the mortgagee. A primary mortgage of both estates ; and the freehold not first applicable. In these causes the usual decree was made for an account of what Wcis due to the plaintiff Aldrich, a simple contract creditor of the intestate John Cooper, and all other tiie credirors ; and, in case the creditor.-i by specialty should exhaust any part of the personal estate, it was declared, that the simple contract creditors were entitled to stand in their place, &c. The Master's report stated, that the intestate died seised of freehold estates of inheritance, subject to a mortgage made by him, by inden- tures dated the (3th of October, 17D1, for 1300/. ; by which indentures also, f()r better securing the payment, he covenanted with the mort- gagee to procure himself to be admitted to copyhold estates, and that be would surrender them to the mortgagee ; and that until such sur- render, he would stand seised of the premises in trust for the mort- gagee. The intestate died in June, 1792, not having been admitted to the copyhold estates, leaving five sisters his coheiresses-at-law, who, in September, 1792, were admitted to the copyhold estates as coheiresses of the intestate, and immediately afterwards surrendered to the mort- gagee for securing what was due upon the mortgage and two bonds by tlie intestate to the mortgagee. Tiie widow of the intestate took v MARSHALLING. 3; Aldrich v. Cooper. out administration, and paid out of the personal estate 7G71. in pai f of the mortgafi^e and bonds. The personal estate being exhausto) The word "charged" in the rciideriTip: tVci-holds and copyholds report is evidently used by mi^^take. liable to all debt^. 42 ADMINISTRATION. Aldrich v. Cooper. covenant that, if the freehold estate should be deficient, the copyhold should be a security in aid ; but I look upon it as giving the mort- gagee a legal estate in the freehold and an equitable estate in the copyhold ; thereby giving him recourse to two funds for the payment of his debt. The question is, whether, for the sake (if it is necessary) of dis- charging the debts, and particularly the simple contract debts of the mortgagor, the Court will go farther than it appears to have done in a case which I found, I confess very much to my surprise, in Mr. Cox's note. I never had heard of it before. I do not find, either in print or manuscript, that it has found its way to the notice of the public, except through the channel from which Mr. Cox derived his informa- tion. There is no other note of it. Yet there is no doubt of the authenticity of that note; for Mr. Cox has, in this, as in all other cases (which makes his work of so much value in the library of a lawyer), examined the Registrar's book, which corresponds with the note. At the same time, no notice is taken of that case, or any other of that date, in Lord Hardicicke',s notes. In fact, however, the records of the Court prove that there was such a case. I understand, by the note, that there being no fund but the freehold and copyhold estates, and the mortgage creditor having both those estates in his mortgage, it was desired that equity, in order to satisfy the specialty creditors, would require him to take his satisfaction out of the copy- hold estate alone. The principle stated by the Court, in answer, that copyhold estates are not liable, either in law or equity, to the testator's debts, farther than he subjected them thereto, is undeniably true. But the question is, how it is to be applied, when the testator has, by contract, subjected his copyhold estate to the whole of the debt ; though at the same time subjecting an estate of another species also to the whole debt. I understand the opinion of the Court to have been, considering it a due application of the principle stated by Mr. Cox, that none of the rules subject any fund to a claim to which it was not before subject ; but they only take care that the election of one claimant shall not prejudice the claims of others; that there were a freehold and copyhold estate both liable to the whole mortgage by the contract and act of the testator in his life ; that though the specialty creditors could not be wholl}^ paid, unless the mortgage was thrown upon the copyhold estate, to the intent that the freehold MARSHALLING. 43 Aldrieh v. Cooper. might be open to the specialty creditors, yet the copyhohl shoukl only bear its proportion ; that is, that a value should be set upon each estate ; and if that distribution of the two funtis left any specialty creditor unpaid, they must abide by the loss. It is ciuite clear this case is by no means a due application of tiiat principle stated by Mr. Cox. Buth the copyliold and the freekoM estates vjere before subject to the claim ; and the converse of that proposition seems in some degree to follow from making the election of the mortgagee determine how far the specialty creditors shall or shall not be paid. I have had an opportunity of communicating with Lord Redesdalc upon this case, and have his Lordship's authority to say, that he can reconcile it with no principle ; that it was as great a surprise upon him as it was upon me ; and he considers it as a case standing- altogether b}^ itself, and not reconcilable to the principles which •govern the Court in a great variety of other instances. I have also the full concurrence of Lord RedesdMle\s opinion, that he would not determine according to that authority. In the consideration of this subject, the word " assets" has been very frequently used. But when you come to look at the case of 'marshalling, though tliat term so frequently occurs, ^Ar operation isiiyon the princiijle, that tltP partij has a double fumJ. It is said copyhold estate is not assets. Clearly it is not assets for specialty debts, not even for the debts of the Crown. But is freehold estate assets for simple contract debts ? It is not, neither in law nor equity (a). Upon wliat ground, then, does the Court say, in given cases, simple contract debts shall be paid out of the real estate ? Not upon the ground of assets ; but upon this, that, not every creditor has a pledge of lantl, but a specialty creditor has a double fund to resort to. There may be a mortgage, for instance, where the instrument in none of its parts or obligations would affect the heir. Though he has a pledge of the land, it is not as assets, or as a specialty ci editor. But if he has a bond or covenant in the deed, he is a specialty creditor, whose demand after the death of the mortgagor would affect the heir. In that case, then, the Court says, as tliat specialty creditor, by Ids special tv contract, can affect the land, he has two funds : the freehold and the personal estate : and he shall not by his election disappoint the natural and (a) lioth freehold iuul eopyliold of all debts. See li iS; 4 "Will. 4, c. estates are now assets fur the pnyiiient 101. 44 ADMINISTRATION. Aldrich v. Cooper. moral equity of the creditor by simple contract to be paid out of the single fund, Avhicli his debt affects. The simple contract creditor, therefore, has no more in law any claim against the freehold estate than the specialty creditor in Rohinson v. Tonge had upon the copy- hold estate. But, in the former case, the Court has said, the caprice or election of a bond creditor shall not operate to the prejudice of the simple contract creditor ; and how can a due application of that principle be made, if it is not applied where the specialty creditor has a claim against the freehold estate, but not against copyhold estate as any creditor of any sort, but both estates being pledged and made a double fund by the act and deed and contract of the mortgagor ? Suppose another case : two estates mortgaged to A., and one of them mortgaged to B. He has no claim under the deed upon the other estate. It may bo so constructed that he could not affect that ' estate after the death of the mortgagor. But it is the ordinar}^ case to say, a person having two funds shall not, b}^ his election, dis- appoint the party having only one fund ; and equity, to satisfy both, will throw him who has two funds upon that which can be affected by him only, to the intent that the only fund to which the other has access may remain clear to him. This has been carried to a great extent in bankruptcy ; for a mortgagee, whose interest in the estate was affected by an extent of the Crown, has found his Avay, even in a (question with tlie general creditors, to this relief; that he was held entitled to stand in the place of the Crown as to those securities, which he could not affect per directum, because the Crown affected those in pledge to him [a). Another case may be put : that a man died, having no fund but a freehold and a copyhold estate ; that they were both comprehended in a mortgage to A., and the freehold estate only was mortgaged to B. ; and that B. was not onl^^ a mort- gagee of the freehold estate, but also a specialty creditor by a covenant or a bond. In that case, as well as in this, it might be said the mortgagee of both estates might, if he thought proper, apply to the freehold estate, and exhaust the whole value of it. The other would then stand as a naked specialt}' creditor, the fund being taken out of his reach ; and there is no doubt that, being both a specialty creditor and a mortgagee of the freehold estate, but {(i) And sec Sa";itarA- r. Ilvdc, 1 Yen:, ioo. MARSHALLING. 45 Aldrich v. Cooper. not havin'^ any claim as mortgagee upon the copyhold estate, the same arrangement would take j:)lace, that he in equity should throw the prior incumbrancer upon the estate to which the other has no resort («). The cases with respect to creditors and other classes of claimants go exactly the same length. In the cases of legatees against assets descended, a legatee has not so strong a claim to this species of equity ris a creditor. But the mere bounty of the testator enables the legatee to call for this species of marshalling : that, if those creditors, having a right to go to the real estate descended, will go to the personal estate, the choice of the creditors shall not determine whether the legatees shall be paid or not. That in some measure is npon tlie doctrine of assets ; but with relation to the fact of a double fund. Both are in law liable to the creditors, and theref)re by making the option to go against the one, they shall not disappoint another person, who the testator intended should be satisfied. That is not so strong as where it is not bounty, but the party has, Ijy his own act in his life, made liable to the whole debt a copyhold estate, now in law lial)le, and who, having also a freehold estate, must be understood to mean, that the freehold estate shall be liable according to law to his specialty debts. The case is exactly the same with reference to the distinction taken, that where lands are specifically devised, the legatees shall not stand in the place of the creditors against the devisees, for that is upon the supposition that there is in the will as strong an inclination of the testator in favour of a specific devisee as a pecuniary legatee, and therefore there shall be no marshalling. But if, though specifically devised, the land is made subject to all debts, that distinouishes the case ; for there is a double fund ; and as, by that denotation of intention, the creditor has a double fiuid, — the land devised, and the personal estate, — he shall not disappoint the legatee (6). The case is also the same, where, instead of tiie case of a mere specialty creditor, the land specifically devised is subject to a mortgage by the testator ; as in Lutklns v. Leigh (c) : there he .shall not disappoint the legatee. So the case of 2^<-iruphen}alia is (a) See Gwynno v. Eilwards, 2 Euss. & G. J3L 289, n. * (0 Cas. t. Talbot, 54. {h) Seo Patcrson !■. Scott, 1 De G. M. 46 ADMINISTKATIOX. Aldrich v. Cooper. very strong for this proposition, tbat, wherever there is a double fund, though this Court will not restrain the party, yet he shall not so operate his payment as to disappoint another claim, whether arising by the law or by the act of the testator. The conclusion is, that the case of Robinso^i v. Toage is not reconcilable with the general classes of cases ; and therefore, it is necessary for the payment of the creditors, that the mortgagee should be compelled to take his satisfaction out of the cop} hold estate, if he takes it out of the freehold, those who are thereby dis- appointed must stand in his place as to the copyhold estate. NOTES. 1. Generally. 2. ^larslaalling in Administration of Assets, p. -IS. 3. ^farslialling Securities, p. -56. 1. Generally. The marslialling of assets is such an arrangement of the different funds to be administered as shall enable all the parties having equities thereon to receive their due proportion, notwithstanding any intervening interests, liens, or other claims of particular persons to prior satisfaction out of a portion of such funds {a). It is an applica- tion of the principle " Nemo ex alterius detrimento fieri debet locupletior," or in the words of Eldon, C. supra, a yerson lui'vhKj two funds to satisfy Ids demands, shall not, hy Itls election, dis- <(.p}ioint a 'party who has only one fund. If, therefore, a person, having a claim upon two funds, chooses to resort to the only i'uiid upon wdiich another has a claim, that other person shall stand in his place for so much against the fund, to wdiich otherwise he could not liave access ; the object of the Court being, that every claimant shall be satisfied, as far as, by any arrangement consistent with the nature of the several claims, the property which they seek to affect can be applied in satisfaction of such claims (/>), Marshalling will not, unless founded on some equity, be enforced between persons, unless they are creditors of the same person, and have demands against funds the property of the same person. " It («) Story, Eq. (1892) p. 367 ; Lanoy 127; Tombs r. Eocli, 2 Coll. Ch. E. 497 ; V. Athol, 2 Atk. 444; lie Cornwall, Tidd y. Lister, lOlIa. 157. 3 Dr. & War. 173; A.-G. v. Tyndall, (/;) Ex j). Kendall, 17 Y. 520. Amb. 614; Hanby v. Roberts, Amb. MAKSnALLING. 47 Aldrich v. Cooper, was ucver said," observed Lord Eldon, " that if I have a demand against A. and B., a creditor of B. shall compel me to go against A. without more ; as if B. himself could insist tliat A. ought to pay in the first instance, as in the ordinary case of drawer and acceptor, or principal and surety, to the intent that all the obligations arisino- out of these complicated relations may be satisfied ; but if I have a demand against both, the creditors of B. have no right to compel me to seek payment from A., if not founded on some eipiity givinfi^ B. the right, for his own sake, to compel me to seek payment from A." (a). The doctrine, moreover, is notapi)lical)le unless there are two funds already in existence before the (piestion relating to it is raised (b). It is in effect no more than this, that where one person has a clear rjo-ht to resort to two funds, and anotlicr person has ii right to resort to one only of two funds, the latter may say that as between himself and the double creditor, that doul)le creditor shall be first to exhaust the security upon which the single creditor (if I may so call him) has no claim (c). And there must be two funds to which the person against whom the doctrine is sought to bo established can resort upon an equal footing (d). It is, moreover, essential to the application of the . 2C. D. 476. (y) Dolphin r. Aylwaid. 4 L. E. (c) Per Lord Westhiiry, Dolphin v. II. L. 486, 502 ; and see fm-ther as to Ayhvard, 4 L. R. II. L. 486, 50.3. vohmteers, Hales v. '^x, 32 B. 118; {d) Webb r. Smith, p. 66, infra. p. <)9, infra. ((■) Do i-!as V. Cook^i'y, 2 Ir. E. Eq. 48 ADMINISTRATION. Aldrich v. Cooper. 2. Marshalling in Administration of Assets. Between Creditors. — The Act of 3 & 4 W. 4, c. 104, which makes freeholds and copyholds liable to simple contract debts, and the Act 32 & 3*3 Vict. c. 46, which places the simple contract debt of persons dying on or after January 1, 1870, on an equal footing with their specialty debt, has rendered the doctrine of marshalling, as between creditors, of but little importance. The rule acted upon was that as creditors by simple contract had no claim upon real assets, unless charged with, or devised for, the payment of debts, a Court of Equity would compel Hpecialty creditors who might resort, in the first instance, to the personal estate, in priority of simple contract creditors, and to the real assets, in exclusion of them, to recover satisfaction, in the first place out of the real assets as far as they went : or, if the specialty creditors had already exhausted the personal assets in payment of their claims, the siinp>le contract creditors would be put to stand in their place against the real assets, whether devised or descended, as far as the specialty creditors might have exhausted the pei'sonal assets (a). And a specialty creditor, to whose debt copyholds, previous to 3 & 4 Will. 4, c. 104, were not liable, might .stand in the place of a moi'tgagee of the copyholds who was paid out of the personal estate (/>). As to the effect of the Statute of Limita- tions upon the rij^ht to marshal (c). Mortgagees. — The principle upon which the Courts act in cases of marshalling was departed from in the case of a mortgagee, in the administration of the assets of a deceased mortgagor in Chancer}'. There, it might have been supposed, that a mortgagee having two funds, viz., the mortgaged estate and the general assets, would as against the general creditors only have been allow'ed to prove against the latter fund for so much of the debt as the mortgaged estate was deficient to pay : and this was so decided by Leach, M. R., in Green- wood v. Taylor (rf), following the rule of bankruptcy in such cases. Cottenham, C, however, in Mason v. Bogg (e), overruling the case of Greenivood v. Taylor, held that in an administration suit a mort- gagee might prove his whole debt and afterwards realise his security [a) Sagitary v. Hyde, 1 Torn. 455 ; n. ; Greenwood v. Taylor, 1 Russ. & Wilson V. Fielding, 2 Yern. 763 ; Gal- M. 1S7. ton V. Hancock, 2 Atk. 436 ; Tombs ;•. (c) See Fordham v. Wallis, 10 Ha. Eocli, 2 Coll. Ch. E. 499; Lomas v. 230; Busly r. Seymour, 1 Jo. & Lat. Wright, 2 My. & K. 769 ; Cradock v. 527. Piper, 15 Si. 301. [d) 1 Eiiss. & M. 185. \l) Gwynne v. Edwards, 2 Euss. 289, (e) 2 My. & C. 448. MARSHALLING. 49 Aldrieh v. Cooper. for the deficiency, and tlie same rule was followed where a company was being wound up under the Companies Act, 18G2, and a creditor holding security was entitled to prove for the whole amount that was due to him, and not merely, as in bankruptcy, for the balance remaining due, after realising or valuing his security. Recent legislation, has, however, both in the administration of the estate of a deceased person wdiose estate is insolvent, and in the winding up of companies, adopted the rule of bankruptcy followed in Greemvood v. Taylor (a . Between Legatees. — Where a testator has chai^ged one or more legacies upon the real estate, and other legacies are not so charged ; if the personal estate prove insufficient to \r,\y them all, the legacies charged on tlie real estate sliall be paid thereout ; or if they have been paid out of the personal estate, the other legacies, as to so much, shall stand in their place as a charge upon the land {h). But where the charge of a legacy upon real estate fails to affect it, in consequence of an event happening subsequent to the death of the testator, as the death of tlie legatee before the time of paijitient, the Court will not marshal assets so as to turn such legacy upon the personal estate, in which case it might be vested and transmissible, Avhereas, as against the real estate, it would sink by the death of the legatee {c). In Pearce v. Loman (d), a legacy charged upon real estate and payable at a future day, was held by Lord Rosslyn to sink as to the real estate by the death of the legatee, before the time of payment ; and that the assets could not be marshalled. " There is a singularity,"' ob- serves his Lordship, '' in the doctrine, as it now stands, that, as iar as it affects one fund it is good : as far as it affects the other, bad ; but it would be still more singular if it shall sink in one case, and not in the other, but the land, nuiking good the personal estate, shall be charged ■' * * * The assets cannot be marshalled. It wouUl be directly against Prouse v. Abingdon; the contingency is the same ; and / cannot charge the real estate indirectly " (^')- Where Hie legal order of tlie assets Jtas been deranged. — If a creditor resort to the assets for payment out of the order prescribed («) See tlii! Judicature Act, l. 32 (n.) ; Scales r. s. 10; Annual Practice, Part I. Collins, '.) Ila. G.;(j; Scllou r. "Watts, i) (b) Hanby r. Eobei-ts, Anib. 127 : W. R. 817; Seton. 1893, p. 1404. F. !). Masters v. M., 1 P. W. 421 ; Bligh /•. (c) J'rowsc r. Abinj^don, 1 Atk. 4S2. Darnley, 2 P. W. 619; Bonner >: 15.. ((/) 3 V. 13.3. 13 V. 379; Hanby v. Fisher, 2 Coll. {<-) Jarman, (1893) vol. 1, p. 792, aud Ch. E. olo; Hi Stokes, 67 L. T. 223 ; vol. 2, p. 1499; Tombs r. Eoch, 2 Be Salt, (1S9J) 2 Ch. 203; Re Bate, Coll. Ch. R. 504. W. & T. — VOL. I. 4 50 ADMINISTRATION. Aldrich v. Cooper. by law (sec p. o'2, supra), liis election is not allowed to prejudice tlic beneficiaries. " One rule of marshalling assets," observes Lord Hanl- tuicke, "is clear, if there are debts by specialty and legacies, and no devise of the real estate, but it descends ; if the creditors exhaust the- personal estate, the legatees may stand in their place, and Corne- ll pon the real estate ; this is against the heir-at-law " {a). " For although," as observed by Lord Eldoii, in the principal ca>e, " in the- case of legatees against assets descended, a legatee has not so strong- a chiim to this species of equity as a creditor, the mere bounty of the testator enables the legatee to call for this species of marshalling: that, if those creditors, having a right to go to the real estate descended, will go to the personal estate, the choice of the creditors- shall not determine Avhether the legatees shall be paid or not (6).' The doctrine of marshalling in favour of legatees against heirs is- part of the lex loci, and does not apply Avhen the lauds are situated in Scotland (c). "If one devises real estate, and gives general pecuniary legacies- Tiot charged on that real estate, and the creditors exhaust the per- sonal estate, the legatees shall not stand in their place and come on the realty, because it was the intention of the testator that the devisee should have the real estate, as well as the legatees be ■pa-id" (d). But otherwise if the debts are charged upon the real estate (e). Nor "svill a specific legatee be allowed to stand in the place ot specialty creditors as against real estate devised (/) ; althougli, since 8 & 4 Will. 4, c. lOG, the devisee be the heir (g) ; and it is now settled that a devisee and a specific legatee shall contribute ]>ro rata to satisfy the debts of the testator which his general personal estate is insufficient to pay (/i). Previous to the Wills Act, a pecuniary legatee was not entitled to stand in the place of a creditor who had exhausted the personal assets as against a residuarj^ devisee, upon the ground that previous- {a) Hanby r. Eoberts, Amb. 128. (e) Be Salt, (189-5) 2iCh. 203. [h) Culpepper v. Ashton, 2 Ch. Ca. (/) Haslewood v. Pope, 3 P. TV, 117; Tipping r. T., 1 P. W. 730; 324, oth Pesolution. Xiucy V. Gardener, Bunb. 137; Lulkiiis (.y) Strickland v. S., 10 Si. 374. V. Leigh, Cas. t. Talbot, 54 ; Bowamau (h) L'.ng i: Short, 1 P. W. 41)3 ; V. Eeeve, Pr, Ch. 557. see lie Saunders-Davies, 34 C. D. 382; (r) Harrison v. H., 8 Ch. 342, 348. Be Bawden, (1894) 1 Ch. G93 ; Be But- (d) Hanby v. Roberts, Amb. 1 28 ; ler. p. 33, ante ; Young v. Hassard. Scott V. S., Amb. 383; Mirehouse v. 1 Jo. & Lat. 400; Tombs r. Eoch. 2 ?caifc, 2 My. & C. G95 ; Keeling i: Coll. L'b. ll. 4J0; Uugdale r. 1)., 14 Brown, 5 V. 359. Eq. 234. MARSHALLING. 5 1 Aldrich v. Cooper. to the Wills Act every residuary devise was in reality specific, as it only comprehended property of which the testator was seised at the time of making his will (a) ; and a residuary devise of real estate remains specific, notwithstandino- the Sith section of the Wills Act ; and a pecuniary legatee has consequently no right to marshal assets as against residuary devisees where the land is not charged with delits {h), or Avith legacies (c). In Hensman v. Fryer (d), Clidriisfunl, C, although he rightly decided that a residuary devise is none the less specific since the passing of the Wills Act, and that consequently pecuniary legatees had no more right to marshal as against residuary devisees than they had before the Act, nevertheless, apparently by some mistake, held that residuary devisees were bound to contribute rateably with the pecuniary legatees to pay such debts as the general personal estate was insufficient to satisfy. But in Collins v. Lewis (e), Stuart, V.-C, stating it to be the settled law of the Court that personal estate not spf cifically bequeathed must ba first applied in payment of debts before the real estate which passes under a residuary devise can be resorted to, declined to follow Hensman v. Fryer {/) on tliis point. Although, as we have before observed, a legatee is not entitled to stand in the place of a specialty creditor, as against real assets devised, nevertheless in cases not coming within the Real Estate Charges Acts (supra, p. 24), where a mortgagee of a devised, as well as of a descended estate, has exhausted the personal assets by resorting to them in the first instance, a legatee [? speciiic or pecuniary] may stand in his place, and be satisfied out of the mortgaged pre- niises, to the extent of the personalty applied in their exoneration; for the application of the personal assets in exoneration of the real estate mortgaged, does n^.t take place so as to defeat any legacy (y). {a) Siioiig V. S., 1 Y. & J. COO, ;ni ; 689 ; Eaikes /•. Boiilton. 20 B. 41 ; Re Mirehouse r. Scaife, 2 My. & C. 09.1. Suuuders - Davk-s, 34 ('. I>. :i^2; Re (b) Pearmain v. Twiss, 2 Gif. I'M); Bawden, (1894) 1 Ch. 093. Ilensaian v. Fryer, 3 Ch. 420 ; Gibbins {d) 3 Ch. 420. /'. Eyden, 7 Eq. 371 ; Collins v. Lewis, 8 (^) 8 Eq. 70S. Eq. 708; Lancefield v. Iggulden, 10 ( /') See also Earquharson r. Floycr, Ch. 13() ; iJady v. Hartridge, 1 Dr. 3 C. I>. 10.'). & Sm. 230; Cogswell r. Armstrong, 2 {(/) fc'ee (c) supra ; Forrester r. Leigh, Kay & J. 227 ; Barnwell c. Ii'einonger, Anib. 171; Lutkins »'. Leigh, Cas. t. I I)r. & Sm. 242 ; Eodbourn v. Mold, Talbot, 53 ; Middleton v. M., 1 J B. 4.>0 ; 13 W. R. 854; Rothcram v. R., 20 B. "Wythe v. Henniker. 2 My. & K. 035, 405 ; Re Salt, (1895) 2 Ch. 203. 041 ; Johnson v. Child, 4 Ila. 87. (c) Greville v. Brown, 7 II. L. Cas. 4 2 52 ADMINISTKATION. Aldrich v. Cooper. Notwithstanding the doubt expressed in Mackreth v. Symmmis, by Eldon, C. (see post), and in other cases as to whether, on the death of a purchaser without having paid his purchase money, the Court woukl marshal his assets in favour of third parties, it was settled before 40 & 41 Vict. c. 34 (which see p. 31, supra), that where a purchaser of real estate died intestate as to such estate, but having bequeathed legacies by his will, as the vendor had two funds to resort to, viz., his lien upon the land descended and the general personal estate, the pecuniary legatees might stand in his place upon the descended land if the vendor resorted to the person- alty in the first instance (a). And it is settled, notwithstanding Wythe v. Henniker (b), that pecuniary legatees had the same right to stand in the place of the vendor with respect to his lien for unpaid purchase money on estates devised by the purchaser, in case the vendor resorted in the first instance to the personal estate. In Birds V. Askey (c) a trustee advanced to A. B., one of his cestuis que trustent, a part of the trust funds, to enable him to purchase a real estate. A. B. died without having repaid the money, having devised the estate, and his personal estate was insufficient to pay his debts and legacies. RomiUy, M, R., held, first, that there was a lien on the estate for the trust funds : and, secondly, that the pecuniary legatees had, as against the devisees, a right of marshalling so as to have the lien satisfied primarily out of the purchased estate {d). Lands devised in trust to pay debts being applicable before pecu- niary or specific legacies {e) will be marshalled in favour of legatees or annuitants (/). Where lands are devised charged Avith debt it seems they were marshalled in favour of legacies {(j). In Foster v. Cooke (A) lands were devised charged with debts, and the assets were marshalled in favour of pecuniary and specific legatees (i). But this was (a) Trimmer v. Eayne, 9 V. 209 ; Surtees v. Parkin, 19 B. 40() ; HaiiLy Spoule V. Prior, 8 Si. 189. v. Fisher, 2 Coll. Ch.. E. olo ; Buckley (6) 2 My. & K. 635. r. B., 19 L. E. Ir. 544 ; Paterson r. (c) 24 B. 618. Scott, 1 De G. M. & G. 531; Seton, {d) See also Lilford v. Powys-Keck, 1893, p. 1398, F. 1, Dec. 981, 4th edit. 1 Eq. 347. But see now 30 & 31 Vict. {(j) Jic Salt, (1895) 2 Ch. 203 ; Seton, c. 69, s. 2, and 40 & 41 Vict. c. 34, pp. 1893, p. 1402, F. 7. 30 and 34, supra. (/;) 3 Bro. Ch. 347. (e) p. 32, supra. (t) And see Eichard v. Ban-ett, 3 Kay (/) Bradford v. Foley, 3 Bro. Ch. & J. 289 ; GrevUle v. Brown, 7 II. L. 351, n. ; Webster v. Alsop, 3 Bro. Ch. Cas. 689 ; iZeBawden, (1894) 1 Ch. 693. 352, n. ; Norman v. Morrell, 4 V. 769 ; MARSHALLING. 53 Aldrich v. Cooper. because lands .so charged were then held applicahle before pecu- niary legacies [a). See, however, the order of assets now stated at p. 32, ante (6). As to lands descended. As simple contract creditors iiave now, under 3 & 4 Will. 4, c. 104, a right to demand payment of their debts out of the real estate of the deceased debtor, and have there- fore a double fund out of which they may receive satisfaction, it follows on principle, that if they exhaust the personal assets, the legatees may stand in their place as to the real estate descended. In a case, however, before Knujld Bruce, V.-C, it was argued that the stats. 3 Will. & M. c. 14, and 3 & 4 Will. 4, c. 104, were intended for the relief of creditors, and not of legatees, but his Honor was clearly in favour of marshalling for the legatees in sucii a case. "The equity of marshalling," he observes, " arises from a creditor's power to resort not from the mode in which he acquired the power of resort- ing to each or either of two funds belonging to the debtor, whose rights, subject to the debt, have become divided. * * * * j have dwelt the more upon this argument, grounded on the nature and effect of statutory liability to debts, because, if it is well founded, it seems in substance not to stop short of asserting that,, inasmuch as it is by statute that copyholds are assets for creditors, and free- holds for simple contract creditors, therefore there cannot be mar- shalling for legatees against descended copyholds, or in respect of simple contract debts against descended freeholds ; it will surprise me exceedingly to hear of such a doctrine having met, or meeting, with support, or acceptance " (c). Widoivs iwra'phernalia. — Althougli, with the exception of neces- sary wearing apparel (c/), a widow's paraphernalia are liable to her deceased husband's debts, she will be preferred to a general legatee, and be entitled, therefore, to marshal assets in all those cases in which a general legatee would be entitled to do so ; for instance, as against real assets descended (e) ; or real assets devised, if subjected by Avill to the payment of debts (/) ; and if a devised estate be subject to a mortgage or other specific incumbrance, she will, in cases not [a) Jarinan, 189:3, p. 1494. (f) Tipi)ing v. T., 1 P. W. V.](S, \b) See also Re Bate ; Be Butler, &c. , cited p. 61 , infra ; Tynt v. T. , 2 P. W. there cited, and of. Hanby v. Fisher, d43 ; Probert v. Clifford, Arab, fi ; 2 Coll. Ch. E. 515; Sellon v. Watts, Snelson v. Corbet, 3 Atk. 368. 9W. E. 847; Seton, 1893, p. 1404. (/) Inclodon v. Northcotc, 3 Atk. (c) Tombs V. Eoch, 2 Coll. Ch. E. 499. 438 ; Boynton v. Parkhurst, 1 Bro. ( 'h. {(I) 2 V. 7. 576. 54 ADMINISTRATION. Aldrich v. Cooper. coming- witliiu the Real Estate Charges Acts (supra, p. '2o), be entitled to marshal the assets as against tlie devisee, by throwing the charge upon the estate, as the legatee would have that right (a); but it seems to have been thought that she could not marshal against an estate devised if it were neitlier subjected by will to payment of debts, nor subject to a mortgage or specific incumbrance (b). But it seems now that the same clain^s on the part of the widow would pi-evail against specific devisees (c) as well as specific legatees (d). Charity. — Ass:efs not m((rsli]. Jauncy I'. The A.-G.,3Gif. 3U8; Scott 92; Miles r. Harrison, 9 Ch. 316; .>'. Eorristall, 13 W. It. 37; Phil- Will:* v. Bourn.-, 16 Ivi- "J-'^T ; lie anthropic Soc. v. Kemp, 4 B. uSl ; Arnold, 37 C. D. 637 : 7.V i'ltt, oi L. Jte imis T., 16 C. D. 173 ; lie Ciark, T. 113 ; Seton, 1S93, p. 1134, F. IS. 33 W. II. -316; Soton, 1893, p. 1130, (e) Lewis v. AUenby. 10 Eq. 668; F. lo, and see Be Ovey, 31 ('. D. 113 ; cf. He {b) Calvert v. Armitage, 1 Hem. & Somers-Cocks, (1.S9j) 449. M. 446, overruling on this point Robin- (/) A.-G. r. Mountmonis, I Dick, son V. Governors of London Hospital, 379 ; Jle Ovey, supra ; Biggar v. East- 10 Ila. 19. wood, 19 L. R. Ir. 49. 56 ADMINISTRATION. Aldrich v. Cooper. payment, before it can be applied in satisfaction of the charitable legacies (a.). But the testator may exonerate his pure personalty from debts, ^vhicll he may throw either expressly or by implication n2:)on some other fund as the realty, or impure personalty in default of realty {h), and although the testator may exonerate the pure personalty from debts it nmst bear its share of the costs of administration unless they are otherwise provided for by the testator {<:•). It seems that the rule in England, which will not allow marshalling in favour of legacies given to chai-ities, is not applicable to Scotland (d). Mortmain and Charitahle Uses Act, 1S91. — This Act provides that land assured by will for a charitable purpose shall be sold within one year from the testator's death, s. 5, and that personal estate directed by will to be laid out in land shall not be so laid out, but shall go to the charity as if there had been no such direction, s. 7. The Act which passed otli Aug., 1891, is only to apply to the will of a testator dying after that date. s. 9. This means that the Act shall apply to the will of a testator dying after the passing although made long before (r). The testator in this case by his will, dated June, 1891, gave real and pure and impure personalty upon trust for his wife for life, and on her death the residuary estate which might by law be given to charitable purposes, to a hosptal. The entire residue was held to pass. Since this Act the necessity of inserting in wills containing charitable gifts anj^ direc- tion for the marshalling of testator's property is done away with (/). 3. Marshalling Securities. The doctrine of marsJudling is not confined to the administration of assets, but is applied to many other cases, where the parties are living. A case for marshalling need not be made b}^ the pleadings (g). Mortgages. — If a person who has two real estates, mortgages both to one person, and afterwards only one estate to a second mortgagee, Avith or without notice of the first, the Court, in order to relieve the second mort<^ao-ee, directs the first to take his satisfaction out of (a) Tempest r. T., 7 De G. M. & G. ('/) Macdonald v. M., 14 Eq. 60. 470; Beaumont r. Oliveira, 4 Ch. (-0 i?e Bridger, (1893) 1 Cli. 44. 309 ; Lewis v. Boetofeur, 38 L. T. N. S. (/) Jannan, WiUs (1893), p. 1694. 93. (.(/) Gibbs V. Ongier, 12 V. 416; 8 (i) AVills '•. Boui-ne, IG Eq. 487; R. E. 348; and see Judicature Act, Miles i\ Hanison, 9 Cb. 316. 1873. s. 24 (4). (c) He Fitzgerald, 26 W. R. 53. MARSH ALLIXG. 57 Aldrich v. Cooper. that estate only which is not in mortgage to the second mortgagee, if that is sufficient to satisfy the first mortgage, in order to make room for the second mortgagee, even though the estates descended to two different persons: see the judgment ol Hardivicka, C. in Lanoy V. Atliul («). But the right of a second mortgagee of one of the estates mort- gaged to marshal, that is to throw the prior charge which exists on both estates, upon that which is not mortgaged to him — is an equity which is not enforced against i Jt'i rd partieH, i\v:ii is against any one except the mortgagor and iiis legal representatives claiming as volunteers under him. It is not enforced against a mortgagee or purchaser of the other estates. If both estates are subject to separate second mortgaues the Court apportions the first mortgage between them : per Koy, L. J., in Fli nf v. Hovjord (p. 58, infra). Thus the Court will not marshal in favour of a second against a third mortgagee. In other words, if Elackacre and Whiteacre are mort- gaged first to A., and then Blackacre to B., and then both to C, there will be no marshalling between B. and C, but A. will be paid rateably out of both, so that B. may be paid out of Blackacre, leaving what remains of both for C. In Bai'urs v. Eacster (6), R being seized of Foxhall Coppice, and a piece of land marked in a plan of the estate No. 32, mortgaged, in 1792, Foxhall to B. ; in 17.95, Foxhall to H. ; in 1800, Foxhall and No. 32 to B., and in 1804, i'oxhall and No. 32 to W. ; the subsequent incumbrancers took with notice. It Avas held, by Knirjhf -Bruce, V.-C, that the Court ought not, as against W., to marshal the securities. His Honour said, that, circumstanced as tlie case was, H. and W. stood, with regard to the matter in dispute, on an e(|ual footing : that B. ought to be paid out of the respective proceeds of No. 32, and Foxhall, pari passu and rateably, according to their amounts ; that the residue of the proceeds of Foxhall ought to be applied towards paying H., and that the residue of the produce of No. 32 ought to be applied towards paying W. In BtKjdcti v. Blgnold (c), C. claimed, on the ground that he had no notice of the mortgage to A., to throw the whole of it upon the estate mortgaged to B. It was held that although he had no notice he could not do this, but because he had no notice B. could not insist on a similar right against him. In Gihsoii V. Seagrim (d), Romilly, M. R., held that if two estates («) 2 Atk. 44G ; Tidd v. Lister, ;) (h) 1 Y. & C. C. C. 401 . De G. M. & G. 8o7 ; and p. 58 infra, {<■) 2 Y. & C. C. C. 377. note {d). (<0 20 B. 614. 58 ADMINISTRATION. Aldrich. v. Cooper. m-e mortgaged to A. and then one of them to B. and the other to C, B. has no equity to throw the whole of A.'s mortgage on C.'s estate a,nd so destroy C.'s security. But, as between B. and C. A. must take his principal interest and cost out of the two estates rateably (a). In Flint v. Howard (/;), P. in 1876, mortgaged a paper mill, and a reversion to H. to secure 6000?. In 1882 he mortgaged the same properties to F. to secure 5000/. In 1884 he mortgaged t lie paper mill to F. to secure 2500/. In 1885, by a deed between F., P. and H. the mortgage to F. on the paper mill for 2500/. was transferred to H., and the paper mill was released from the mortgage of 5000/. to F. Therefore, in 1885, H. was first and second mortgagee of the paper mill, and first mortgagee of the reversion, and F. was second mortgagee of the reversion. P. made subsequent mortgages of both properties. F. foreclosed all mortgages on the reversion subsequent to his own, and then brought an action claiming to redeem H.'s mortgage on the reversion on payment of 6000/. (c), and to have a transfer of the paper mill. Held that such £6000 must be appor- tioned between the paper mill and the reversion according to their respective values, and that F. was entitled to a conveyance of the reversion absolutely, and of the paper mill as a security for such part -of the £6000 as should be apportioned to that property. H. there- fore as second mortgagee of the paper mill would have a right to a-edeem F. on payment of the sum so apportioned (r/). But if a tlurd mortgagee, by his mortgage, takes expressly, sithjecf to and after 'payment of the first tivo mortgages, the second mort- gagee will be entitled to marshal as against the third. Thus in He Moivern T. {e), a mortgagor being entitled in reversion to funds A. iind B., made three mortt^atjes. The first mort) (1893) 2 Ch. 54. Ch. E. 541 ; Gibson v. Seagrhn, 20 (c) See Mutual L. S. v. Langley, B. 614; Re Lawder's Estate, 11 Ir. 4J2 C. D. 460. Ch. E. 346; 7?e Eoiko's Estate, 15 (rf) See further Stronge v. Hawkes, Ii'. Ch. E. 316; Doljjliin v. Aylward, 4 De G. & J. 632; Averall t'. Wade, 4 H. L. Cas. 436; Trumper v. T., .S L. & G. t. Sugden, 252 ; Lanoy v. Ch. 870. Athol, 2 Atk. 444; Baldwin v. Bel- (e) 8 Eq. 110. cher, 3 I>r. & Wai'. 170; Hughes v. MAKSHALLING, 59 Aldrieh v. Cooper. tlie first mortgage. It was held l>y liointUi/, M. R., tliat the second mortgagee was entitled to marslial as against the third In- standing in the i^hicc of the first mortgagee as against fund B. (a). The doctrine of marshalling will not be applicable to the in-cjndlco of vuliiutecrs where one of the estates has been conveyed away by a voluntary settlement {]>). But estates comprised in one mortgage Avill be marshalled in favour of a voluntary settlement, so as to throw the debt on the unsettled estates. Thus, in Hub's v. Cox (c), A. B. executed a voluntary settlement of real estates to uses in favour of his four children, and he covenanted that the estate should remain to those uses and for quiet enjoyment. A. B. afterwards mortsfacfed the settled estate with his own unsettled estates, and died. It was held by Bom illy, M. R., that the children were entitled to throw the mortgages on the unsettled estate, and as against the legatees to prove under tlie covenants against the settlor's assets for the damage they had sustained by the mortgage. " It is clear," said his Honour, "that the persons who take under the voluntary settlement Avould, as regards the subsequent mortgages, not only take the property subject to those mortgages, but the mortgages ought, by marshalling, to be thrown as much as possible on the unsettled property, so as to liberate the settled property from the mortgage. ]f, by these means, the settled property will not be altogether freed from the mortgages, then I think that the persons who are entitled to the benefit of the covenants for quiet enjoyment con- tained in the settlement have a right to prove against the assets of the settlor for the amount to which they have been damaged by reason of his subsequently mortgaging the settled property ; that is, after providing for the testator's debts, they are entitled to ])rioi-ity over the legatees (t/). Marshalling also will take place in favour of an incumbrancer whose charge is only voluntary {e). But volunteers have no right to marshal to the prejudice of a prior settlement (/). Where the owner of two estates charged with debts, mortgages one of them, and recites in the mortgage deed by mistake, thof tl"' debtf< < ire j)( I Id, and coxenanis against incumbrancts, the creditors having ((/) See also 7.V EoJcly, 11 Ir. Ch. IL aid the reinaiks nn this c:isr Ly ;jG9. Clu-istidii, L. J., in Kii' r. K., 1 Ir. Iv. (/-) Dolpliin r. Aylward, 4 I.. U. Yai 1.3. II. L. 502. (e) Aldridgo v. Forbes, -1 Jur. 20. (c) 32 13. 118. (/) Anstey v. Newman, L»y L. J. Ch. I'l) See Seton, 1893, p. 1T40,1\ 3; 760. 60 ADMINISTRATION. Aldrieh v. Cooper. two funds to resort to, viz., the mortfragfed and unmorto^aged estate, will be thrown upon the other estate (a). And the result has been the same when a mortgagor settling _p«?'^ of mortgaged estates covenants to exonerate them from incumbrances, the tenant under the settlement in tail, would be entitled to throw the mortgage upon the unsettled estates, not only as against the settlor and against the assignee in bank- ruptcy, but also as against subsequent judgment creditors (6), but not, it seems, against a subsequent incumbrancer being an assignee for value without notice (c). Where, however, the mortgagees are appointees under a power, there can be no marshalling against the later incumbrancer, any more than there would be against the persons who have taken in default of appointment (cZ). Nor will the doctrine of marshalling be applied in favour of a subsequent mortgagor as against intermediate volunteers, in favour of whom one of the estates subject to a mortgage has been conveyed. Suppose, for instance, A. mortgaged Blackacre and Whiteacre to B., and then made a voluntary settlement of Whiteacre, and afterwards mortgaged Blackacre to C, the doctrine of mai'shalling would not be applied in favour of C, by compelling B. to have recourse to White- acre alone so as to leave Blackacre free (e). If one of two estates m mortgage is subject to a [xyrtion, the jDcrson entitled to the portion may, if it be necessary, compel the mortgagee to resort to the other estate, so that the payment of the portion as Avell as the mortgage may be worked out ( /). So where a jointure is a charge upon two estates, and a por- tion upon one of them only, the portioner can compel the jointress to resort to the other estate. In Lanoy v. Athol (g), Lanoy created, by marriage settlement, a charge of 500Z. a year upon real estate as a jointure for his wife, afterwards Duchess of Athol, and there was a covenant for the payment thereof. Under a post- nuptial settlement by Lanoy of his real estate, there Avas a term of 20O years created to raise a portion of 6000^. for daughters. The plaintiff, being an only daughter, was entitled to 6000?., which the real estate was sufficient to pay. It Avas held that the Duchess (a) Stronge V. Hawkes, 4 De G. «& J. (e) Dolphin r. Aylward, 4 L. R. 632, 651, H. L. 486, 501, (/>) Hughes V.Williams, 3 Mac. & G. (/) Rancliffe v. Parkyns, 6 Dow, 683 ; Chappell v. Eees, 1 De G. M. & ' 216; cf. 7?e Saunders-Davies, 34 C, D. G. 393. 482. (c) Barnes v. Eacster, p. 57, supra. (y) 2 Atk. 444. {d) Stronge v. Hawkes, supra. MARSHALLING. CI Aldrich v. Cooper. of Athol having two funds, viz. the real estate under the settlement and copyholds and personal estate to which she could have recourse under the covenant, for the payment of her jointure, while the plaintiff had only one fund, viz., the real estats in settlement, she was entitled to turn the Duchess upon the copyhold and j^ersonal estates (a). If a mortgagee chooses to take the paraphernalici of a widow in satisfaction of his debt by bond or covenant. Equity will ascertain the value, and make her a creditor for that upon the mortgaged estate Qj). Wliere an estate is subject to debts, legacies, or other charges, and the owner mortgages a part of such estate, the mortgagee will, as against the mortgagor, or a purchaser from him, have a right to throw sucli charges upon that part of tlie estate which is not comprised within his security (c). In applying the doctrine of marshalling to mortgagees and creditors, the Court will not interfere with the first mortgagee's right to take his debt out of that part of his security which becomes first available upon the ground that other funds are comprised in his security (d), nor will a mortgagee who is executor and legatee of the mortgagor be compelled to satisfy the mortgage debt out of the first sufficient sum of personal assets that comes to his hands (<") ; but if the mort- gagee having a cZoit6^(3/i6/i(^ has exercised his option in such a way as to disappoint a creditor by taking the only fund to which he could resort (/) ; or even if such only fund had been applied for convenience l)y the order of the Court {(j) ; such exercise of option or order will not have the effect of disappointing the creditor with one fund only, who will therefore be entitled to stand pro tauto in the place of the former (/;). The doctrine, however, of marshalling is not applicable where no question can be raised as to the insufficiency of the single fund. Where, for instance, the person having the double fund offered to redeem the owner of the single fund, as that could only bc' done by paying him otf, the doctrine of marshalling is inapplicable (?'). (a) SeealsoLegh r. L., Id Si. i;35. (/) Aldnch r. Cooper, p. 44, \b) Tipping V. T., 1 r. W. 729. supra. (c) Haynes v. Forshaw, 11 Ha. 93 ; (.7) Gwynnc r. Edwanls, L>Uuss. 'J89, Finch V. Shaw, 5 II. L. Cas. 90.5. note. {d) AVallis r. AVoodyear, 2 Jur. X. S. (A) Trimmer r. Tayne, 9 V. 20:). 179. (/) Gregg v. Arrott, L. & 0. t. Sug- ('0 Biuns v. Xichols, 2 Eq. 2.3G. den, 246. G'2 ADMINISTRATION. Aldrich v. Cooper. Where an annuity deed and other securities were deposited l)y A. with bankers, a suit having been commenced to impeach the annuity deed, the bankers were compelled to resort to the other securities (a). Judgment Debts. — Where there are judgments affecting estates, and some of the estates are settled for valuable consideration, and there has been either a mere concealment of the judgments and, a fortiori, if there is a declaration or covenant in the settlement that the estate is free from incumbrances, the trustees entitled to the settled estates will be entitled to the benefit of the doctrine of marsballinof, bv havinof the judgments thrown upon the unsettled estates, not only as against the settlor himself but also as against the judgment creditors of the settlor subsequent to the settlement, who do not stand in any Ijetter position than the settlor himself (h). In Arc rail v. Wade a person being seised of several estates, and indebted by judgments, settled one of the estates for valuable consideration, with a covenant against incumbrances, and subsequently acknowledged other judg- ments, it was contended, by the subsequent judgment creditors, that, as they only affected the unsettled estates, on the principle in Aldrich v. Cooper, as they had only one fund,theyhad a right to compel the prior judgment creditors, who had two funds, — the settled and unsettled estates, — to resort to the settled estates ; or, at any rate, that the settled estates ought to contribute to the payment of the prior judgments. Sugden, C, however, held that the subsequent judgment creditors had no equity to compel the prior judgment creditors to resort to the settled estates : on the contrary, that the prior judgments should be thrown altogether on the settled estates, and that the subsequent judgment creditors had no right to make the settled estates contribute (c). Bankruptcy. — A trustee in bankruptcy takes the bankrupt's estate subject to all equities. So where A. took under a will two estates charged with legacies, and then made two distinct mortgages of each, if the proceeds of one estate are insufficient to pay the legacies and mortgage money, the mortgagee of such estate is entitled as against the mortgagor or his assignees in bankruptcy, to call upon the legatees to take so much of their legacies out of the other mortgaged (a) Duncombe v. Davis, 1 II i. 19<3; 472; Hughes v. Williams, 2 Mac. & see Broadbent i\ Barlow, p. 66, infra. G. 683 ; Chajipell v. Eees, 1 De G. (b) L. & G. t. Sugden, 252. M. & G. 393 ; Be LyncL's Estate, (c) Sec also Going v. FarrcU, Beat. 1 Ir. Eq. 396. MARSHALLING. 03 Aldrich v. Cooper. estate, which was amply sufficient for the purpose, as would leave a sufficiency to pay his morto^age («). So if the owner of the double fund becomes bankrupt the equity can be enforced against his assignees (h), or others standing in his place (e). Insurance Policies. — An Insurance office, where a policy is forfeit- able on the suicide of the assured, except as to a beneficial interest vested in an assignee, cannot upon the suicide of the assured, compel the assignee to resort to other securities held by him for the debt, or to have it rateably paid out of all the securities ((J). The result is the same when the policy has been assigned with other securities to the Company, for upon the death of the assured by suicide, the Company- must repay themselves their debt out of the sum assured, and re-assigu the securities to the parties entitled to them (e). Surety. — Where the creditor has two funds to which he can resort the surety is entitled to marshal not only as against the principal debtor, but also as against all persons claiming under him. In Re Westzinthiis (/), W. shipped oil to L. & Co., who, on its arrival, endorsed the bill of lading and deposited it with H. & Co., brokers, who advanced money on it. H. & Co. had previously advanced money upon other goods the property of L. & Co. deposited with them by way of security. L. & Co. having become bankrupt, the oil not having been paid for^ the agents of W. claimed the oil from the master, who, however, delivered it to H. & Co. It was held lirst that the transfer of the goods to H. & Co. would in equity be treated as a pledge or mortgage only, and that W., therefore, by his attempted stoppage in transitu, ac(piired a light to such goods in equity against the assignees of L. & Co., subject to the lien of H. & Co. for the sum they had advanced upon them. Secondly, that W., by means of his goods, had become surety to H. & C(x for L.'s debt, and had a clear equity to oblige H. & Co. to pay his debt out of L.'s own goods deposited with him in ease of his surety, and, all the goods of W. and L. & Co. having been sold, W. might insist on the proceeds of L. & Co.'s {a) Ex p. Hartley, 1 Deac. 288; 1.486. Broadbent v. Barlow, 3 De G. F. & J. {) Baldwin v. Belcher, 3 Dr. & War. L. A. Co., 7 E-i. '.m. 173 ; Exp. Hartley, supr.i. (/) 5 B. & .Vd. sl7. (r) Dolphin V. A} Iward, 4 L. E. H. 64 ADMINISTRATION. Aldrich v. Cooper. goods being appropriated to the payment of the debt., and therefore that W. was entitled to have all the proceeds of the oil paid over to him (a). A surety, moreover, can compel the principal creditor, a mort- gagee, to avail himself of his equitable right to consolidate securities, so that marshalling may be carried out in favour of the surety. In Heyman v. Dubois (b), A., by policy 9822, assured his life for 2000Z. — which he mortgaged to the office for 1000/. A. subsequently effected a policy 9695 for lOOOZ. in the same office, and then mortgaged it to the office to secure 500/. A. afterwards effected a policy 10,688 for 1000/. in the same office, and mortgaged this policy together with policy 9322 to the office to secure 1500/., for the repayment of whicli the plaintiff was security. A. became bankrupt, and the plaintiff being sued by the Companv, paid them 975/. IGs-. lOd. in part dis- charge of the judgment and costs. Policy 10,688 was forfeited for non-payment of the premium. Upon A.'s death it was held by Bacon, V.-C, that as against A.'s assignee in bankruptcy the plain- tiff was entitled to have the securities marshalled, so as to be paid out of the policy monies the sum which he had been compelled to pay under the judgment, including the costs of the action (c). The right, however, of a subsequent mortgagee of one fund to compel a former mortgagee of the same fund and another to resort, in the first instance, to that fund which will leave liis own either wholly or partially free, cannot be interfered with by a .v^; rety for tlio debt due to the first mortgagee paying off the debt and taking an assignment of the security (d). Agents. — If an agent, as for instance a factor or consignee, pledge the goods of his principal and also goods of his own to secure a debt, the pledgee may be compelled by the principal to resort first to the agent's goods. In Ex 2^. Alston (e), a firm in Ceylon employed a firm in England as their agents and factors, and the course of the business was that the Ceylon firm consigned cargoes of coffee to the English finn for sale on their account, and drew bills on the English firm against the consignments. Consignments of coffee having been made in this manner, and bills accepted by the English firm against them, the English firm pledged the coffee which belonged to the Ceylon firm, together with certain securities of their own, with T., their (a) See also Spalding r. Pauling, (J {<■) Seton, 1893, p. 1739, F. 2. B. 376; Ex p. Alston, 4 Cli. ICS ; (t/) South v. Bloxam, 2 Ilem, & ]M. and cases cited under note "Bank- 457; Seton, 1893, p. 1738, F. 1. ruptcy," supra, p. G2. (') 4 Ch. 168. (6) 13 Eq. 158. MARSHALLING. 65 Aldrich v. Cooper. broker, to secure a large debt due from them to liini. The Englisli firm became insolvent, and executed a creditors' deed under the Bankruptcy Act, 1861 ; and then T. sold the coffee which produced more than sufficient to cover the bills drawn against it, and enough of the other securities to satisfy his debt, and still held securities of the English firm in his hands. It was held by the Court of Appeal in Chancery that the Ceylon firm were entitled, as against the creditors of the English firm, to have the securities marshalled, so as to have a lien on the securities of the English firm remaining in the hands of T., for the balance due to them in respect of the consign- ments of coffee. A guarantee by one partner for the debt of the firm, wliich gives the creditor a right of proof against the separate estate of the partner in addition to his right of proof against the joint estate of the partnership, is also a security to wliicii the principle of marshalling is applicable ((/)■ Descended Estates. — Marshalling may be enforced where the mort- gaged estates have descended upon different persons (b). Husband and Wife. — Married "Woman. — Where husband and wife mortgage all the estates of the wife, and subsequently one of them to another person, the latter is entitled to marshal against the wife surviving (c). In Re Loder (d), C, a widow, was entitled to one-third of the income of a fund restrained from anticipation, and to the other two- thirds free from restraint. She mortsfacred all her interest in the fund to F. She then married, and charged her interest in favour or P. The income was sufficient to pay the interest on F.'s mortgage, and also the premiums of certain policies which formed part of his security. It was held that as between F. and P., F. should take his interest and the premiums first out of the one-third restrained, so as to leave the remaining two-thirds free for P. Landlord and Mortgagee. — The principle of marshalling has been applied to cases between a landlord and a mortgagee of chattels of a tenant, '»vhere the landlord has distrained not only the chattels com- prised in the security, but also other chattels of the tenant. Thus in Ex iJ. Stephenson (e) a tenant mortgaged some personal chattels, and (a) Exjy. Salting, 2-5 0. D. 148 ; Ex (c) Tidd v. Lister, 10 lla. 1 JT. p. Alston, 4 Ch. 108; /."e Westzinthus ; (d) 35 W. 11. .58. Uroadbent v. Barlow, supra. (e) De G. 589. (6) Lanoy v. Athol, 2 Atk. 44. C, Practice, Part II. ; and The Trustee 15 Si. 183 ; Lichfield v. Baker, 13 B. Act, 1893. -107; Oakes v. Strachen, 13 Si. 414; [d) Vaizey, Investment, 1890, p. 27; Hood v. Clapham, 19 B. 90; Jebb v. Eoberts v. Morgan, 33 L. E. Ir. 118; Tugwell, 20 B. 84; 7 De G. M. & G. Thornton v. EUis, 15 B. 193. 663; Blann v. Bell, 5 De G. & Sm. (f) Bate r. Hooper, 5 De G. M. 658 ; 2 De G. M. & G. 775 ; Howard & G. 338. ". Kay, 27 L. J. N. S. (Ch.) 448 ; (/) 8 C. D. (1878), p. 124. Craig c. ^Vheeler, 29 L. J. Ch. 374; {) Sec Lampct's case, 10 Co. 47a, 48b. 92 ASSIGNMENT. "Warmstrey v. Tanfield. a possibility of a trust in equity onight be assigned, and the said Richard Freeman's assignment of his said trust unto the plaintiff is also confirmed by the assignment of the said Palmer, who had the interest in law, and the said plaintiffs assignment is also precedent to the deed made to the said Thomas, by which the said defendant, the Lady Tanfield, claimeth the said lease. ASSIGNMENT OF EQUITABLE CHOSE IN ACTION. 93 KOW V. DAWSON. 1749. 1 V. 331 (a). Chose in Action Assignable in Equity. A. borrows money of B., and gives him a draft upon a fund due to him (A.) out of the Exchequer, which was deposited with the officer from whom the fund was payable. A. afterwards becomes bankrupt ; this is an assignment thereof to B. for valuable consideration, which shall prevail against the general assignees under the commission of bankruptcy. A chose in action, though not assignable at law, is assignable in equity, and no particular form of words is necessary. ToNSON and Conway lent money to Gibson, who made a draft on Swinburn, the deputy of Horace Walpole, viz., " Out of the money due to me from Horace Walpole out of the Exchequer, and what will be due at Michaelmas, pay to Tonson and Conway, value received. Gibson became bankrupt ; and the question was whether the defendants Tonson, and the executors of Conway, were first entitled by a specific lien upon this sum due to the estate of Gibson ; or whether the plaintiffs, the assignees under the commission, are entitled to have the whole sum paid to them ; it being insisted for them, that this draft was in the nature of a bill of exchange, and that the property was not divested out of the bankrupt at the time of the bankruptcy, in law or equity. Lord Chancellor Hardwicke. — At first I a little doubted about my own jurisdiction, and whether the plaintiffs ought not to have gone into the Exchequer, as being a Court of revenue ; for this is not a personal credit given to, or demand upon the officer, but to («) Eeg. Lib. 1749, B., fol. 89. 94 ASSIGNMENT. Ko-w V. Da-wson. be paid out of that money issued out of the Exchequer to the officer ; and this is on warrant, to be paid out of the revenue of the Crown for public services. But there is something in the present case delivering it from that : the officer admits he has received a sum of money applicable to this demand, which brings it to the old case of a liberate (a), which a person has under the Great Seal for the pay- ment of money ; upon admission that the officer had money in his hands applicable to the payment, and proof thereof, that would give Courts of law a jurisdiction, so that an action of debt might be main- tained on the liberate. This demand, and the instrument under which the defendants claim, is not a bill of exchange, but a draft, not to pay generally, but out of this particular fund, which creates no personal demand ; therefore, not a draft on personal credit, to go in the common course of negotiation, which is necessary to bills of exchange, by draft on the general credit of the person drawing, the drawee, and the in- dorser, without reference to any particular fund. The first case of which kind, I remember to have been determined in B. R, not to be a bill of exchange, was a draft by an officer on the agent of his regiment, to be paid out of his growing subsistence. Then what is it, for it must amount to something ? It is an agreement, for valuable con- sideration beforehand, to lend money on the faith of being satisfied out of this fund, ; which makes it a very strong case. If this is not a bill of exchange, nor a proceeding on the personal credit of Swiu- burn or Gibson, it is a credit on this fund, and m^ust amount to an assignment of so much of the debt : and, though the law does not admit an assignment of a chose in action, this Couo't does ; and any words will do, no loarticular words being necessary thereto. In the case of a bond, it may be assigned in equity for valuable consideration, and good, although no special form used. Suppose an obligee receives the money on the bond, and there is wrote on the back of it, " Whereas I have received the principal and interest from such a one, do you the obligor pay the money to him." This is just that case ; only it is not a debt arising from specialty : therefore, like (o) A writ that lay for the payment and addressed to the Treasurer and of a yearly pension or other sum of Chamberlain of the Exchequer, money, granted under the Great Seal, ASSIGNMENT OF EQUITABLE CHOSE IN ACTION. 95 Row V. Dawson, an assignment of rent, by direction to a tenant or steward to pay so much of a year's rent to a third person. The case of Ryall v. Roivles (a), now under the consideration of the Court, occurred to me. There the assignment of debts, of which no possession, came in question ; but those are debts depending (m partnership, and mentioned there how far the assignment of a bond should be supported against the assignees under the commission •,. and it is clear that they have been supported where the bond has been delivered over ; but if not, some doubt has beeu, whether it should be supported on the foot of the clause (10 & 11) in the statute, 21 Jac. 1, c. 19. But this is clear of that doubt, because this was a debt due to Gibson without any specialty. This draft, which amounts to an assignment, is deposited with the offi^cer Swinburn, and therefore it attached immediately upon it ; so that Swinburn could not have paid this money to Gibson, supposing he had not been bankrupt, without making himself liable to the defendants ; because he would have paid it with full notice of this assignment, for valuable con- sideration. (a) 1 V. 348. See uext page. 96 ASSIGNMENT. RYALL V. ROWLES. 1747-1750. 1 Y. 348. Assignment of Debts without Notice to Debtor, Invalid against Assignees in Bankruptcy. Assignee by way of mortgage of goods and chattels, or choses in action, allowing the assignor to continue in the possession or in the order and disposition of them, will, upon the construction of 21 Jac. 1, c. 19, ss. 10, 11 (rt), have no specific lien on them against his assignees in bankruptcy. William Harvest, a trader within the several statutes concerning bankrupts, in June, 1732, borrowed from Benjamin and Joseph Tomkins 1,500L, and, as a security, conveyed and assigned his dwelling-house and brew-house at Kingston, and all the coppers and utensils in trade belonging thereto, by way of mortgage, subject to redemption. He afterwards took Jonathan Stephens into partnership with him, and in less than a month after the partnership, December 22, 1736, made a second mortgage to Potter, in trust for Jonathan Stephens, of his moiety of not only the utensils, but the stock in trade, debts, 'profits, &c., for securing a sum of money then lent to him by Jonathan Stephens, and any future sums that should be lent. December 10, 1737, he made a third mortgage of the seventh part of his undivided moiety of all the stock in trade, utensils, debts due or to groiu due, to Sir James Reynel. April 24, 1738, he made a fourth mortgage of the seventh part of his undivided moiety, with the same description, to Skip. September 7, 1738, he made a fifth mortgage to Jonathan Stephens, for securing to him 2,O00Z., which Stephens had paid to one Baugh, who had the original mortgage on the freehold estate ; («) Eepealed, but, with some modi- and 46 & 47 Vict. c. 52, s. 44 ; Yate- fications, re-enacted. See note, post, Lee,Banla-uptcy,1891,pp.264,370, 374. ASSIGNMENT OF EQUITABLE CHOSES IX ACTION. 97 Ryall V. Kowles. the real premises, which were conveyed by way of lease to Tomkins having been mortgaged to Philip Stone in 1725, and assigned to Baugh, who assigned to Stephens upon being paid the 2,000^. He afterwards made a sixth mortgage to George Harvest, his son, of the seventh part of his undivided moiety of the partnership, stock-in-trade, debts, utensils, and profits, in consideration of a sum of money lent. Notwithstanding these several mortgages, he continued in 2wsses- sion of the utensils and stock-in-trade as before, altered, disposed, and mortgaged them as his own, and received tlte debts in ya^rtner- shij) with Stephens, without any control from any of the mortgagees till 1740, when he failed and became bankrupt. Then the assignees and mortgagees insisted on the right to the several goods, stock, &c., comprised in their several assignments, in opposition to the general creditors claiming under the com- mission. The cause was heard before Lord Chancellor Hardwicke, the Seal after Michaelmas, 1747, and it being a new case, his Lordship ordered it to be argued by two counsel on each side, assisted by the Judges (a). Solicitor- General (the Hon. William Murray (b)), and Mr. Noel^ for the assignees under the commission. Attorney -General (Sir Dudley Rider) and Mr. Wilbraham for all the mortgagees. [The judgments of Burnett, J., Parker, C. B., and Lee, C. J., are omitted.] Lord Chancellor Hardwicke. — I am obliged to the Judges for their assistance and endeavours to give light in so intricate a case, which intricacy arises in respect of the want of a number of authorities as to the construction of this Act of Parliament, though made so long ago. But a greater intricacy occurs in respect of the conduct of William Harvest, in making these securities. All the authorities giving light to this have been exhausted by the Judges, and it would be mis-spending of time to repeat what has been said. It is suffi- cient, therefore, to say, I concur in the opinion delivered ; but as this (rt) Feb. 24, 1747-8, {h) Afterwai-ds Lord Mansfield. W. & T. — VOL. I. 7 58 ASSIGNMENT. Ryall V. Rowles. is a case of great expectation and consequence, I will reduce the grounds to some general principle. * * * Choses in action are properly within the description of goods a,nd chattels within this clause (a) ; and I will only add one argument, for the sake of which I mention it, which is, that this construction is strongly warranted by the next preceding clause, relating to bank- rupts who by fraud make themselves accountant to the king, to defeat their private creditors, which plainly shows that the words goods and chattels, as used in this Act, take in all kind of personal property of the bankrupt, whether in possession or action only ;, which strongly supports the construction made by the Judges, and is agreeable to Ford and Sheldon's Case, 12 Co. 1, where it is held, that, in an Act of Parliament, goods and chattels take in choses in action. The reason of the other opinion in the books arises from hence, that this question has arisen on a grant or assignment, or bargain and sale, not being such goods and chattels as would pass by that assignment or conveyance ; but in an Act of Parliament, which can pass anything, they are always included. I go on four general principles in the construction of this Act. First, the aim and intent of the legislature was, that an equal proportion of the effects of the bankrupt among his creditors should be attained as far as possible. Secondly, that, to attain that end, these Acts of Parliament should be construed beneficially for the general creditors under the com- mission ; and therefore it is, in an unusual manner, different from most Acts of Parliament, enacted, that all these statutes and laws shall be largely and beneficially construed for the creditors in general under the commission. Thirdly, it appears, the general view and intent of the provision now under consideration was, to prevent traders from gaining a de- lusive credit, by a false appearance of substance to mislead those who should deal with them. Fourthly, the legislature judged they might do tliis by subjecting all the goods of the bankrupt, though conveyed to others, to the general creditors under the commission, because, where the vendee or assignee leaves such goods in possession of the bankrupt as owner, he confides as much in the general credit of the bankrupt as that creditor (a) See p. 96, supra (n.). ASSIGNMENT OF EQUITABLE CHOSES IN ACTION. 99 Ryall V. Rowles. who has only taken his bond or note. It is, in such case, put in the power of the bankrupt to sell the goods the next day ; the former assignee could only have a personal remedy against the bankrupt. All these grounds go to the substance of the case, and not upon niceties, and hold in case of a mortgage as well as an absolute sale ; otherwise it would be contrary to the resolutions of Stephens v. Sole, and the opinion of Lord Coiuper in Bucknal v. Roiston (a), and to his implied opinion in Copeman v. Gallant (h), and would overturn this part of the statute, and restrain it to absolute sales. Traders, instead of absolute sales, would then make such mortgages, as there would be a greater opportunity ; for traders might mortgage over and over again, as this case is a pregnant instance. As to the most material and operative expression, the legislature has explained their own sense, by putting the words true owner in opposition to reputed, not special owner ; and then these last words can only mean a person, who, by specious acts of possession, order and disposition, gives himself an appearance of property he has not really, (which is the present bankrupt's case,) till the mortgage money is paid. Then it follows that the mortgages to Reynel, Skip, and George Harvest, and so much of the assignment to Stephens as relates to the utensils not fixed to the freehold, which are made a further security to him, must be void within this clause, so far as they are claimed to be specific liens. The distinction endeavoured has been answered ; and the dis- tinction most laboured, that a share of a partner in a partnership stock is only a soi't of proportion arising on the balance of the partnership account, and incapable of being delivered, would let in that false, delusive credit (intended to be prevented) in all trades in partnership, and would extend to particular goods in partnership. As to choses in action comprised in these securities, where it is admitted none could pass but in equity, equity ought to follow the law in this case, if in any. Where property is established by Act of Parliament, equity follows it in like manner as where established by common law ; for if not, it would cause great confusion ; and it is always so taken on Acts of Parliament made concerning real and (a) Pr. Ch. 285. (6) 1 P. W. 314. 7 2 1 00 ASSIGNMENT. Ryall V. Rowles. personal estate, regulating that kind of property; for which there is a strong instance in the statutes relating to Papists ; for, though subject to penal laws, equity regulates in the same way, by the same rule, as the statutes lay down concerning legal property. The third and last point is in the construction of Potter's mortgage, which is said to be directly as if made to Stephens ; and, I think, upon the whole, it would be so ; though, perhaps, if it was nicely scrutinized, some difference might be taken ; but whatever legal interest, that vested in Potter. And the law would not have taken notice of the trust if the question was at law^ ; and, therefore, if this Act of Parliament has made it void at law, this Court would never set it up contrary to law for the sake of Stephens, because he was a partner, but would let the law take place for the benefit of the general creditors. As to any of these goods in that mortgage, which equity only could pass, equity will follow the law ; for as to the profits arising from trade and choses in action, there could not be an equity upon an equity : equity would vest them in Stephens, and it would undoubtedly be considered as if the assignment had been directly to Stephens. And here the principal objection arises ; it being said, it vested in Stephens as to these particulars, and that Stephens was partner then, and if he had not taken this mortgage, he would be entitled to have an allowance out of what would be coming to Harvest's moiety, and would have a specific lien on that moiety ; and therefore Stephens, taking a mortgage of the other's share, would not be put in a worse condition than without it. This was the most plausible thing urged for the defendant, and would be right if the foundation was right ; but I dispute the foundation, which must be that the party so lending gains a special lien on the partner borrowing, and should be allowed a preference to his separate creditors ; but for this there is no authority or precedent after a bankruptcy ; it is a different consideration, what a Court of equity might do between the parties themselves, which both remained capable of transacting for themselves. But I might carry it farther ; for it is so after the death of a partner, where his effects come to be distributable as assets. In the case of Meliorucchi v. Royal Exchange Assurance Company (a), the points determined are not (a) 1 Eq. Ca. Abr. 8, pi. 8. ASSIGNMENT OF EQUITABLE CHOSES IN ACTION. 101 Ryall V. Ro-wles, material to the present ; but there the attempt made was to subject stock after a bankruptcy to a debt contracted to the Company by a loan of money, and arguments were drawn from rules concerning partnership ; but it was not contended for, that in case of a partner- ship, that could be carried farther. And the case cited, of Croft v. Pilce (a), is as strong as any negative authority can be ; for there it was not attempted to give the surviving partner a right of retainer, or bringing into the partnership account a bond debt, so as to be preferred to others, but only as executor ; and therefore the money taken by deceased partner out of the partnership stock, was allowed to be brought into the partnership account, but the bond debt was not, because a separate loan and transaction. If, then, by a new detei'mination now, it should be admitted, and that one partner, by lending money to another in a separate capacity, not relative to the partnership, should gain a specific lien on the effects of the partner so borrowing, it would open a door to fraud, and so defeat this statute ; for then a person might be taken in as a partner into a moiety of a great stock and flourishing trade, and he may have a separate credit on that confidence, and yet may not have any in reality of the property in that stock, but the whole may belong to others ; which tends plainly to great fraud and imposition on traders and great mischief. It has been said, that great mischief might arise to trade and credit from such a determination as this, as tending to prevent making use of that credit persons have to support them- selves in trade, as they cannot make a security without exposing their circumstances to the world ; and on the other hand it is con- tended, that the other construction would in fact repeal the Act of Parliament, and let in a mischief. Some inconvenience might per- haps arise from a determination of this case on either side ; but I agree with Chief Justice Lee, that, as this is a law, we must adhere to it, and while it is a law, be bound by it, and if any inconvenience results from it, that is for the consideration of the legislature. But this I will say, that, as some inconvenience ma}'^ be to particular persons on one hand, great inconvenience may be on the other, by creating that appearance, as having the substance of which they remain in possession, though they have not at all the real property ; («) 3 P. W. 180. 102 ASSIGNMENT. Byall V. Howies, and that this was the intent of the legislature, I am clear ; and I may go so far as to say, that the simplicity of those times did not let in these large and airy notions of credit, as of late, which from the number of bankruptcies we have had of late years, is rather an evidence that the departing from the rule this law has laid down, and giving way to these notions, has been rather a mischief. I agi'ee, then, that these mortgages cannot prevail as specific liens and securities ; therefore, as to the mortgages of lands and fixtures, they are not affected by the Act of Parliament : but what is affected by the direction therein is the assignment to Stephens (for Potter must be considered as a trustee for him) relating to any utensils not fixed to the freehold. So also are all the four mortgages of seventh part, by reason of the bankruptcy of William Harvest, made void by the statute, and can create no specific lien on the bankrupt's share of partnership stock, debts, and effects ; but they must be considered only as general creditors. NOTES. 1. Generally. 2. What might be Assigned in Equity though not at Law, p. 105. 3. What amounts to an Equitable Assignment, p. 107. 4. Notice, Distringas, Stop Orders, »S:c., p. 115. 5. Eights and Remedies of Assignee under an Equitable Assignment, p. 130. 6. The Assignment of a Chose in Action is " subject to aU Equities," p. 132. 7. Choses in Action how far made assignable by statute, p. 138. 8. Assignments contrary to PubKc Policy, Champerty and Maintenance, p. 141 . 1. Generally. "The great wisdom and policy of the sages and founders of our law," says Coke, " have provided, that no 2^ossibility, rigid, title, nor thing in action, shall he granted or assigned to strangers, for that would be the occasion of multiplying of contentions and suits, of gTeat oppression of the people, and chiefly of terre-tenants, and the subversion of the due and equal execution of justice " (a). "But the origin of the doctrine is better explained as a logical conse- quence of the archaic view of a contract, as creating a strictly personal obligation between the creditor and the debtor" (6). (a) 10 Co. 48. See Lampet's Case, 10 Co. 47. (b) PoUock, Contracts, 1894, p. 204. ASSIGNMENT OF EQUITABLE QHOSES IN ACTION. 103 Ryall V. Rowles. However, it has been long established that the assignee of such things must at common law sue for them not in his own name but in the name of the assignor (a). The king was always an exception to the rule laid down by CoJve, for he might always either grant or receive a possibility or chose in action by assignment (6). In equity, from a very early period, assignments of a mere naked possibility, or of a chose in action foi' valuable consideration , have been held valid. " Such an assignment," observes Lord Hardivicke, " always operates by way of agreertient or contract, amounting, in the consideration of the Court, to this, that one agrees with another to transfer and make good that right or interest : and, like any other agreement, the Court will cause it to be specifically performed, not leaving the assignee to his action for damages when the assignor is in a condition, to transfer the property, or to cause it to be transferred, to his assignee" (c). " An assignment of future property for value operates in equity by way of agreement, binding the conscience of the assignor, and so binding the property from the moment the contract becomes capable of being performed, on the principle that equity considers as done that which ought to be done" {d). "Whenever persons agree con- cerning any particular subject, that, in equity, as against the party himself and any claiming under him, voluntarily or with notice, raises a trust " (e). The doctrine, however, of equitable charges does not rest upon specific performance, and the doctrines relating tliereto do not afford a test or a measure of the rights created (/). Where an equitable assignment was made of property recoverable in Courts of equity, hence called choses in equity, such as the bene- ficial interest in personalty under a will or intestacy, stock standing in the names of trustees, or in the Court, money in Court, j udgments enforceable in equity, the beneficial interest in a legal debt assigned to trustees, &c., the assignee could sue in his own name in equity for such property ; but where there was an equitable assignment (a) lUd, 205. (e) Thurlow, C, Legard v. IXodges, {b) Co. Litt. 232 b, n. 1 ; Miles v. 1 V. jun. 478. Williams, 1 P. W. 252; Stafford v. (/) Tailby v. O. E., supra, corn- Buckley, 2 V. 177, 181. menting upon judgment of Lord (c) Wright V. W., 1 V. 412 ; Carle- Westbury in Holroyd v. Marshall, 10 ton V. Leigh, 3 Mer. 671. H. L. Cas. 191 ; and see Western [cl) Per Lord Macna<]hte,i, Tailby v. Waggon, &c., Co. v. West, (1891) 1 Ch. 0. Receiver, 13 App. Cas., 546. p. 275. 104 ASSIGNMENT. Ryall V. Bowles. made of things only recoverable at law — commonly called choses in action — the assignee could not sue in his own name, but ha was obliged to do so in the name of the assignor, whom a Court of equity would compel to allow his name to be used for that pur- pose. In process of time, some choses in action became assignable at law, either by custom, as bills of exchange ; by statute, as promissory notes, 3 & 4 Anne, c. 9, 7 Anne, c. 25 ; bail, 4 Anne, c. 16, s. 20, and replevin, 11 Geo. 2, c. 19, bonds ; railway, 8 & 9 Vict. c. 19, administra- tion, 20 & 21 Vict. c. 77, ss. 81, 83, and exchequer (a) bonds ; bills of lading if endorsed, 18 & 19 Vict. c. Ill ; East India Bonds, 51 Geo. 3, c. 64, s. 4 ; mortgage debentures issued by the Land Companies under the Mortgage Debenture Act, 1865, 28 & 29 Vict. c. 20 ; things in actions of companies. Companies Act, 1862, ss. 95, 157 ; transferable debentures under the County Debenture Acts, 1873 ; policies of life assurance, 30 & 31 Vict. c. 144 (Ij) ; and policies of marine insurance (c) ; the choses in action of bankrupts [d) ; and in all these cases the assignee might sue at law in his own name. And recently by the Supreme Court of Judicature Act, 1873, s. 25, ss. 6, any debt or other legal chose in action of which express notice in writing shall have been given to the debtor, trustee, or other persons therein mentioned, is made assignable at law by an absolute assign- ment in writing, under the hand of the assignor, not lyvurporting to he by way of charge only (e). When choses in equity or choses in action are assigned, irrespec- tive of any statute, it is obvious that it is necessary to give the trustees or other persons holding the funds, or the debtors, notice (/) of the assignment, in order to prevent their paying the same to the assignor, and in the cases of successive incumbrances notice is neces- sary, in order that any person about to advance money upon such security might ascertain whether there was any prior incumbrance thereon, and a person who advanced his money upon the security of an assignment of a chose in equity or a cliose in action, who by neglecting to give notice to the trustee or debtor of such assignment, was the cause of another person advancing money upon the same (a) Vertue V. East Angl., 5 Ex. 280. England, &c., Co. v. Archangel, &c., (6) Scottish, &c., L. A. S. v. Fuller, Co., 10 L. E. Q. B. 249. 2 Eq. 58; Newman v. N., 28 C. D. {) ; the interest which a person may take under the will of another then living (c); or under marriage articles (d) ; or the share to which such person may become entitled under an appointment (e) ; or an interest in money which may come to a person under a discretionary power in trustees to allow him main- tenance (/) ; or in personal estate, as presumptive next of kin of a person then living (g), is assignable in equity for valuable consider- ation ; and when the expectancy has fallen into possession, the assign- ment will be enforced ; and see Story, Eq. (1S92), p. 900. Non-existing Property (cf. (n.) p. 113). — Non-existing property, to be acquired at a future time, though not assignable at law (h) is clearly so in equity ; the assignment, for instance, of future freight (i), of future patent rights (/,'), of profits arising from the working of a patent by licensees (I), of future dividends upon proof in bank- ruptcy (m), of the future cargo of a ship (n), of building materials to be brought on premises (o), or machinery at a future time to be added (a) Wind v. Jekyl, 1 P. W. 572. (/) Brown r. Tanner, 3 Ch. 597 ; (5) Hobson v. Trevor, 2 P. W. 191 ; Wilson i: W., 14 Eq. 32. Wethered i;. W., 2 Si. 183, 192 ; Smith (/r) Printing, &c., Co. v. Sampson, V. Baker, 1 Y. & C. C. C. 229 ; but see 19 Eq. 462. Carleton V. Leigbton, 3 Mer. 671. (/) Bergmann v. Macmillau, 17 C. (c) Beckley v. Newland, 2 P. W. D. 423. 182; Lyde v, Mynn, 1 My. & K. 693; (m) Be Irving, 7 C. D. 419. Pope V. Wbitcomb, 3 Euss. 124. {n) Be Ship AVarre, 8 Pr. 269 n. ; {(l) Bennett v. Cooper, 9 B. 252. Curtis v. Auber, 1 J. & W. 526 ; (e) Musprat v. Gordon, 1 Anst. 34. Douglas /•. Eussel, 4 Si. 524 ; Langton (/) ^e Coleman, 39 C. D. 443. r. llorton, 1 Ila. 549; Lindsay r. {(j) Hinde v. Blake, 3 B. 235 ; Meek Gibbs, 22 B. 522 ; Gardner ik Caze- V. Kettlewell, 1 Ph. 347. nove, 1 H. & N. 423. (/i) Robinson v. Macdonald, 5 Mau. (o) Brown r. Bateman, 2 C. P. & Selw. 228. 272. 106 ASSIGNMENT, Ryall V. Rowles. to or substituted for existing machinery («), of goods aud chattels now being, or which shall hereafter be, in or about a messuage or house (6) is valid in equity. An assignment by bill of sale of " all the book debts due and owing, or which may during the continuance of this security become due and owing, to the said mortgagor," is a good assignment, and passes the equitable interest in book debts incurred after the assignment, whether in the business then carried on by the mortgagor or in any other business (c). Where a company has power to do so, it can make a valid mortgage of its future or uncalled capital ((?). The assignment by a bankrupt of a debt which might become due to the trustee in bankruptcy at a future time, but which was not due to the bankrupt at the date of the assignment, is invalid against the trustee although for value (e). But a debt due at the date of the assignment to the bankrupt may be assigned (/). Choses in action are not within the Bills of Sales Act : see Bills of Sale Acts, 1878, s. 4, 1882, s. 3. In lie Davis (g) a lender of goods under an agreement for the hire and ultimate purchase by the hirer, assigned all his rights under the agreement to secure a loan. Held, not a bill of sale, and that the assignment was good against the trustee in bankruptcy of the hirer. If there is an assignment of chattels and an assignment of an agree- ment by one and the same deed, the assignment is severable (/i). A personal licence, e.g., a licence to enter a house and seize goods, cannot be assigned (i). 8 & 9 Vict. c. 106. — By section G of this statute it was enacted "that, after the 1st day of October, 1845, a contingent, an executory, and a future interest, and a possibility coupled with an interest, in any tenements or hereditaments of any tenure, whether the object of the gift, or limitation of such interest, or possibility, be or be not ascertained ; also a right of entry, whether immediate or future, and («) Holroyd v. Marshall, 10 H. L. »S:c., 11 T. L. R. 279. Cas. 191. (e) £x2^. NichoUs, 20 C. D. 782. (6) Exp. Games, 12 G. D. 314. (/) Re Davis, 22 Q. B. D. 193, {(■) Tailby v. O. Eeceiver, (1S88) distinguisliing Ex pi. NichoUs, supra. 13 App. Cas. 523 ; Be D'Epineuil (2), (g) 22 Q. B. D. 193. 20 C. D. 758; lie Turcan, (188S) 40 [h) ii'e Isaacson, (1895)1 Q. B. 333 ; C. D. 5 ; and see lie Coleman, 39 C. D. London, &c.Bank v. "VVliite.p. 109, infra. 443. (?) See lie Davis, supra, and Brown {d) lie Pyle Works, (1890) 44 C. D. v. Metropolitan, &c., Soc, 28 L. J. 534; Newton v. Debenture Holders, Q. B. 236, and (n.) p. 113, infra. ASSIGNMENT OF EQUITABLE CHOSES IN ACTION. 107 Ryall V. Ro-wles. whether vested or contiugent, into or upon any tenements or here- ditaments in England, of any tenure, may be disposed of by deed ; but that no such disposition shall, by force only of this Act, defeat or enlarge an estate tail." It also enacts, that dispositions by married women must be in conformity with 3 & 4 Will. 4, c. 74, and 4 & 5 Will. 4, c. 92 ; and as to the transfer of rights of re-entry for forfeiture, see Conv. Act, 1881, s. 10, ss. 1. This Act, it will be observed, does not render assignments of con- tingent interests, or possibilities in chattels, or mere naked possibilities not coupled with an interest, valid at law ; the exclusive jurisdiction, therefore, of the old Courts of equity as to such assignments was untouched by the Act. 3. What amounts to an Equitable Assignment. Where a person agrees verbally or in writing to transfer his right to any specified property, which is in existence or which may come into existence, to another person for valuable consideration, an equitable assignment is created. But it is usual, in transferring a chose in action, as a debt or bond, to assign it by a deed in legal form, with a power of attorney to sue in the name of the assignor. No writing is necessary (a), unless the agreement to be proved is within the Statute of Frauds (6), and any words which show an intention of transferring or appropriating the chose in action to or for the use of the assignee for valuable consideration are sufficient (c), and give a good charge on the chose in action (d). "The mode or form of assignment is absolutely immaterial provided the intention of the parties is clear. To effectuate the intention an assignment for value in terms present and immediate has always been regarded in equity as a contract binding on the conscience of the assignor, and so binding the subject of the contract when it comes into existence, if it is of such a nature and so described as to be capable of being ascertained and identified " (e). (a) Gurnell v. Gardner, 9 Jur. N. S. C. 690 ; Cook v. Black, 1 Ha. 390 ; 1220; Eiccard V. Prichard, 1 Kay & J. M'Fadden v. JonkjTis, 1 Ha. 458; 277, 279; Field v. Megaw, 4 L. E. Malcolm v. Scott, 3 Mac. & G. 29; C. P. 660. Myers V. The United, &c., Co., 7 De G. {h) Exp. Hall, 10 C. D. 640, and cf. M. & G. 112; Chowne v. Baylis, 31 B. Re Eichardson, 30 C. D. 396. 351 ; Gurnell v. Gardner, 4 Gif. 626, (r) Eow V. Dawson, p. 93, supra. 680 ; Frith v. Forbes, 4 De G. F. & J. {(.l) Gorringe v. Irwcll, 34 C. D. 134. 409 ; Ex p. Montagu, 1 C. D. 554 ; (f) Per Lord Maauifjhten, Tailby v. Eanken v. Alfaro, 5 C. D. 786 ; ^e 0. Eeceiver, (1888) 13 App. Cas. Irving, 7 C. D. 419 ; Webb v. Smith, 543 ; and see Thompson v. Spiers, 13 30 C. D. 192 ; Stephens v. Green, Si. 409 ; Burn v. Carvalho, 4 My. & (1895) 2 Ch. 148. 108 ASSIGNMENT. Ryall V. Howies. Some Cases of Equitable Assignment. — An agreement between a debtor and a creditor that the debt owing shall be paid out of a specific fund coming to the debtor {a), or an order given by a debtor to his creditor upon a third person, having funds of the debtor, to pay the creditor out of such funds, will create a binding equitable assign- ment {h), and the consent of the party to whom the order is given is not necessary, Ibid. In Brice v. Bannister (c), G. agreed to build a vessel for defendant B., for a price payable in instalments : G. being indebted to plaintiff Brice, ordered and requested defendant B. to pay lOOl. to Brice out of moneys due or to become due to him, G. Plaintiff gave defendant notice of this. At the time the order to pay was given all the instalments due had been paid to G. Defendant B. refused to be bound by the notice, and afterwards paid the accruing balance to G- Held, a good equitable assignment {d). In Percival v. Dunn (e), it was held that a similar order not specifying the fund or debt out of which payment was to come was bad. D., the defendant, owed A., a builder, money, payable by in- stalments. A. gave the plaintiff P., to whom he owed money, an order on D., " Please pay P. the amount of his account, 47i.," &c. At the time the order was given to defendant D., he was in debt to A. Held, it did not, for the above reason, operate as an equitable assignment (/). In Yeates v. Groves (g), D. being indebted to Y. and B. upon a note of hand, in September, 1789, they gave up to him the note, upon his giving to them an order, directed to G. and D., who had agreed to purchase some leasehold property of him, D., to pay the amount of the note and interest to B. out of the purchase-money. The order was not accejoted in writing, although it seems G. and D. verbally agreed that, when the assignments were prepared and the purchase- money was to be paid, B. should receive notice to attend. In December, 1789, the assignments being prepared, B. attended, in («) Eodick V. GandeU, 1 De G. M. & gon. &c., Co. v. West, (1892) 1 Cli. 271, G. 776. p. 110, iuira; Maj' r. Lane, 15 E. Jan. {b) Bum V. Carvalho, infra, p. 109; 432, reversed 14 E. March, 231, C. A. Brovm & Co. v. Kough, 29 C. D. 848. (e) 29 C. D. 1. (c) 3 Q. B. D. 569. (/) See Harding v. IL, 17 Q. B. D. {d) Supra, distinguishing Tooth v. 442 ; but see the letter, Webb v. Smith, Ilallett, 4 Ch. 242, which was followed 30 C. D. p. 194, in which no specific in Er p. Ilall, 10 C. 1). 615 ; Burn /'. fund was referred to. Carvalho, infra, p. 109; Western Wag- {(j) 1 V. jun. 281. ASSIGNMENT OF EQUITABLE CHOSES IN ACTION. 109 Ryall V. Howies. consequence of notice ; but before the transaction could be gone through, D. went out of the room, and was arrested, and in January, 1790, a commission of bankrupt issued against him. Upon a bill being filed by Y, and B., Lord Thurlow held, that the order was an equitable assignment of the purchase-money. " This," said his Lordship, "is nothing but a direction by a man to pay part of his money to another for a foregone valuable consideration. If he could transfer, he has done it ; and it being his own money, he could transfer. The transfer was actually made. They were in the right not to accept, as it was not a bill of exchange. It is not an in- choate business. The order fixed the money the moment it was shown to G. and D." In Ex p. Alderson (a), R, being pressed to discharge a debt on the 5th of August, 1818, gave to two creditors a draft on the executor of a debtor of hers, which draft the executor promised to discharge on receiving assets. A commission of bankrupt issued against K on 17th of November, 1814. Upon a petition being presented by the two creditors, it was held, that they were entitled to the sum for which the draft was given, as against the assignees. And Lord Eldon on the appeal said, that the debtor would be bound by the order being shown to him, and that a contract on his part to pay was, in equity, not necessary. A mere indorsement in blank of a debenture of a joint stock com- pany has been held a good equitable assignment (6) ; as to equitable mortgage of shares (c). Bill of Sale, Equitahle Assignment. — In London & Yorkshire Bank v. White id), F., in conversation with the bank manager, agreed on the 7th of Dec. to assign to the bank, as security for an overdraft, his interest in certain goods then deposited with G. for sale. On the 9th Dec, F. sent a notice to G. tiiat he had assigned his interest in (a) 1 Mad. 53, affir. 3 Swan. 392. oDeG.M.&G.320; L'Estraugeu.L'E., [h) Re Pryce, 4 C. D. G85; Re Jen- 13 B. 281 ; Eiccard v. Prichard, 1 Kay kinson, 15 Q. B. D. 441. & J. 277 ; Jones v. Farrell, 1 De G. & J. (c) Colonial Bank v. Whinney, 11 208; Ex p. Imbert, 1 De G. & J. App. Cas. 42G; Bradford Banking Co. 152; Farley v. Tm-ner, 26 L. J. Ch., i;. Briggs, 12 App. Cas. 29. N. S. 710; Eayner v. Harford, 27 {(l) 11 T. L. E. 570. See also the L. J. Ch. N. S. 708; Chowaie v. following cases: Burn r. Carvalho, 4 Baylis, 31 B. 351; Langton v. Waring, My. & C. 690 ; Shand y. Du Buisson, 18 C. B. N. S. 315 ; Ex p. North ISEq. 283; Ex p. Montagu, 1 C. D. Western Bunk, 15 Eq. 69; Addison t-. 555 ; Smith v. Everett, 4 Bro. Ch. 64 ; Cox, 8 Ch. 82 ; Re Nicholl, 22 C. D. Exp. Steward, 3 Mont. D. & De G. 265; 782 ; Brown & Co. v. Kough, 29 C. D Diplock V. Hammond, 2 Sm. & G. 141 ; 848, 110 ASSIGNMENT. By all V. Rowles. the goods to the bank, and requesting G.to pay the bank the proceeds of sales from time to time, &c. Held, that on the 7th of Dec. there was a complete equitable assignment to the bank, that the notice to G. on the 9th was not necessary to complete the title, and that the notice of the 9th was not a bill of sale. Where no Equitable Assignment is Created. — The intention, however, to create a charge must be shown. Thus, a mere letter of instruction to a banker not written with any intent to create a charge on a fund in his hands, will not amount to an equitable assignment (a). Nor will the opening of a credit for a particular sum constitute an equitable assignment or specific appropriation of that sum, but it is merely an authority to the person in whose favour the credit is opened to draw to the extent of the specified amount (b). Where a person has a fund belonging to another in his hands, a bill of exchange drawn by the latter on the former, although for the exact amount, is not an equitable assignment thereof (c) ; for a bill of exchange is a negotiable instrument free from the equities between the parties, secus an equitable assignment (d). Nor is a cheque an equitable assignment of the drawer's balance at the bankers upon whom it is drawn (e). Where the property purporting to be assigned is not in the assignor at the time of the assignment, and by some act intervening, such as bankruptcy, never becomes his, there is no equitable assignment. Thus in Ex 'p. Hale (/), A. assigned to his bankers future rent not yet due. They gave notice to person from Avhom such rent would be payable. Before it became payable A. became bankrupt. Held, invalid, on the appeal the judgment in the C. A. turned upon the Statute of Frauds (g). So also where the benefit of a contract is assigned which creates no debt present or future. Thus in Western Waggon, &c., Co. v. West (h), P. assigned to the plaintiffs his right under a mortgage with defendant West to further advances which formed part of the consideration (a) Hopkinson v. Forster, 19 Eq. Brown, Shipley & Co. v. Kough, 29 74 ; Schroeder v. Central Bank, &c., C. D. 875. 34 L. T. 735. (f) Ilopkinson v. Forster, 19 Eq. [b) See Morgan v. Lariviere, 7 L. R. 74, commenting on Keene v. Beard, 8 H. L. 423 ; Twycross v. Dreyfus, 5 C. B. N. S. 372. C. D. 614. (/) 10 C. D. 615. (f) Shand v. Du Buisson, IS Eq. [g) lie Nicholl, 22 C. D. 782, and 283. -Se Davis, supra, p. 106. ((/) See judgment of Fry, L. J., in {h) (1892) 1 Ch. 271. ASSIGNMENT OF EQUITABLE CHOSES IN ACTION. Ill Ryall V. Rowles. for such mortgage. The plaintiffs gave defendant notice of the assignment, but they, in forgetfulness, made a further advance of 5001. to P. Held, that as the contract in the mortgage deed was not a contract to lend out of a particular fund, no money or fund was bound by it, and that no debt was created by it, and that the 5001. was therefore never bound in the hands of the defendant W., although it would be in the hands of P. Also, that the plaintiffs could only sue for damages in right of P., and that P. had sustained none (a). A mere mandate from a principal to his agent, not communicated to a third person, will give the third person no right or interest in the subject of the mandate. It may be revoked at any time before it is executed, or at least before any engagement is entered into with a third person to execute it for his benefit. And it will be revoked by any disposition of the property inconsistent with the execution of it (6). Where, for instance, an order is given by a man to his bankers to pay over a sum to a third person to whom the order is not communicated, and the banker does not make the payment, and the order is afterwards countermanded, the third party cannot insist on the banker paying to him the money (c). So a letter to a tenant to pay rent to his bankers amounts only to a revocable authority, which authority will be revoked by the bankruptcy of the writer of the letter (c?)- In Re Russell (e). A., entitled to the balance of an unpaid legacy in the hands of the executors, wrote a letter at the request of B. to his own solicitor, directing him to pay such balance to B., which letter was sent to the executors, and they paid the balance to B. four days after A.'s death. B. afterwards returned the money to the executors. Held the letter was merely a direction, and not an equitable assign- ment, and that it was revoked by A.'s death (/). And as to letters of advice accompanying a bill of exchange, see judgment of Chitty, J., in Brown, SJdpley & Co. v. Rough (g). When, however, the agent com- municates the mandate to the third person, and agrees to exercise it for his benefit, he converts himself into an agent for, and debtor to, the persons in whose favour the mandate was given. Thus, in Fitzgerald v. Steioart ih), consignments had been made from abroad to answer an annuity which the owner of the property consigned was liable to pay, and the consignee in this country gave notice of the (a) See also May v. Lane, cited (cZ) (') 37 Sol. Jo. 212 ; cf. Lambe v. p. 108, supra. Orton, 1 Dr. & Sm. 125. (6) Scott V. Porcher, 3 Mer. 652, (/) And see Lambe »-. Orton, 664. supra. (c) Morrell v. Wooten, 16 B. 197. {g) 29 C. D. 858. [d) Exp. Hale, 10 C. D. 615. [h) 2 Euss. & M. 457. 112 ASSIGNMENT. Ryall V. Rowles. arrangement to the annuitant, and made payments in pursuance of it, it was held by Brougham, C, that the consignee was not after- wards at liberty to discontinue such payments, so long as he had any proceeds of the consignments in his hands. A mere power of attorney or authority to a person to receive money not addressed to the debtor, and directing such person to pay it to a creditor of the party granting the power or authority, will not amount to an equitable assignment. Thus, in Hoclick v. Gandell (a), a rail- way company was indebted to the defendant, their engineer, who was greatly indebted to his bankers. The bankers having pressed for payment or security, the defendant, by letter to the solicitors of the company, authorized them to receive the money due to him from the company, and requested them to pay it to the bankers. The solicitors, by letter, promised the bankers to pay them such money on receiving it. It was held by Truro, C, affirming the decision of Lord Lang- dale, M. R, that this did not amount to an equitable assignment of the debt. "If," said his Lordship, " an assignment of the debts had been intended, it would have been quite as easy to have directed the order to the railway company as to the solicitors. It rather seems to have been intended that the bank should have no title or interest in the debts until the amount of the debts should have been adjusted, and some definite portion been adjusted and realized " (b). A mere representation, by the drawer, that bills of exchange will be met by the drawee, inasmuch as the drawee has larger funds in his hands belonging to the drawer, will not amount to an equitable assignment or specific appropriation of such funds (c). A promise to pay money when the debtor receives a debt due to him from a third person does not constitute an equitable assignment, so as to charge the debt in the hands of such third person (d). Where an instrument was construed, not as a mere equitable assignment, but as an order for payment of a sum of money out of a 'particular fund, unless it Avere stamped as required by 55 Geo. III. c. 184, Sched. Part 1, tit. "Inland Bill," it could not be enforced in {(() 1 De G. M. & G. 763 ; 12 B. 325. 352 ; Brown, Shipley & Co. v. Kough, {h) See also BeU v. The London & 29 0. D. 848. X. W. E. Co., 15 B. 548 ; Thayer v. {d) Field v. Megaw, 4 C. P. 660. Lister, 30 L. J. Ch. N. S. 427 ; Flint See also Malcolm v. Scott, 3 Ha. 39 ; /'. Walker, 5 Moo. P. C. C. 179 ; Be Eobey, &c., Ironworks v. Oilier, 7 Ch. Foster, 7 Ir. E. Eq. 294. 695 ; Phelps & Co. v. Comber, 29 C. D. (c) See Thompson v. Simpson, 5 Ch. 813 ; Brown, Shipley & Co. v. Kough, 659; Citizen's Bank, &c. r. First 29 C. D. 848; Jones v. Starkey, 16 National Bank, &c., 6 L. E. n. L. Jur. 510. ASSIGNMENT OF EQUITABLE CHOSES IX ACTION. 115 Ryall V. Ro"wles. equity (a) : but where an iastvument, though in form an order for the payment of money, operated as an equitable assignment, if pro- perly stamped as an assignment, it would be received by the Court (b). The result seems to be that such an order is liable under the Stamp Act, 1891, to a lO.s. stamp as a "conveyance, &c. not hereinbefoi'e described " (c). A covenant to charge, or dispose of, or affect lands hereafter to be acquired, operates in equity upon lands so afterwards acquired (d), but no charge will be created except where the covenant refers to particular property, or where property has been acquired with an intention to perform or satisfy the covenant (e). A covenant in a marriage settlement to settle or charge after- acquired as well as present personal property, will operate in equity to bind such property even as against creditors (/), subject, how^ever, to the provisions of the Bankruptcy Act, 1883, s. 47. And the whole future property of the covenantor must not be included therein (g). After-acquired Property (cf. (n.) p. 105). — Although a mere con- tract may amount to an actual assignment, it must purport to confer an interest in the future chattels immediately by its own force, and without the necessity of any further act on the part of the assignee upon the future chattels coming into existence, and therefore an assignment of existing chattels, coupled with words which amount to a mere licence to seize after-acquired property, will not be construed as an equitable assignment of the latter (h). (a) Braybrooke ;;. Meredith, 13 Si. Wellesley v. W., 4 My. & C. 579. 271 ; Parsons v. Middleton, 6 Ha. 261; [e) Mornington v. Keane, 2 De G. & and see Pott v. Lomas, OH. & N. J. 292; Eoundell t>. Breary, lb., 319; 529. Cleary v. Fitzgerald, 5 L. E. Ir. 351. {h) Diplock V. Hammond, 5 De G. (/) See Lewis «. Madocks, 8 V. 150, M. & G. 320 ; M'Gowan v. Smith, 26 7 E. E. lU, 17 V. 48; Lyster L. J. N. S. (Ch.) 8 ; Brice v. Bannis- v. Burroughs, 1 Dr. & W. 149 ; White ter, 3 Q. B. D. 569; Ex p. HaU, 10 v. Anderson, 1 Ir. Ch. E. 419; Stack r. C. D. 615; and Buck v. Eobson, 3 Eoyse, 12 Ir. Ch. E. 246; Galavan v. Q. B. D. 686, and the observations Dunne, 7 L. E. Ir. 144; Belding i-. therein, disapproving of Ex p. Shel- Eead, 3 H. & C. 955 ; Re D'Epineuil lard, 17 Eq. 109 ; Adams v. Morgan, (2), 20 C. D. 75S : Tailby v. O. 14 L. E. Ir. 140; Fisher v. Calvert, Eeceiver, 13 App. Cas. 523; Re 27 W. E. 301 ; Webb v. Smith, 30 Turcan, 40 C. D. 5. Sed vide Ex p. C. D. 192. BoUand, 17 Eq. 117. (c) See Alpe, Stamp Duties, 1894, {urghev.Cox,17C.D.o20. Cousin's T., 31 C. D. 671; Hester r. (6) See Addison v. Cox, 8 Ch. 79. H., 34 C. D. 616 ; Be Hall & Co., 37 (c) Eickards v. Gledstanes, 3 Gif. C. D. 712 ; T-a,tev. Hyslop, 15 Q. B. D. 298 ; Willes v. Greenhill, 29 B. 392. 368 ; Be Frewen, 60 L. T. 953. (r/) Saffron Walden, &c., Building {e) (1S92) 2 Q. B. 706. S.ciety r. Bayner, 14 C. D. 406, 410; (/) Per James, L. J. in Saffron and see Be Russell's Policy T., 15 Eq. Walden, &c., B. S. v. Eayner, supra. 126 ASSIGNMENT. Kyall V. Ro"wrles. 1862 (a). But it does not follow that tlie directors and secretary of the company might not be personally liable for disregarding a notice of a trust as to shares, and for allowing them to be transferred in contravention thereof (h). Notice when given to the proper officers of the company or corporation, as the secretary (c), a director and actuary (d), a director and auditor (e), has been held good. But a mere casual mention thereof to a clerk in the office of the company has been held not to be constructive notice to the company in whose employ he is (/), but verbal notice to a board of directors in the way of business has been held good (g). Distringas. — Where, by reason of the death of the person in whose name stock was standing, without legal representatives, there was no trustee to whom notice could be given, it was held, by Knight-Bruce, V.-C, that a second incumbrancer, without notice of the first, by serving a notice of distringas on the Bank of England, thereby obtained priority (h). Under the Rules of the Supreme Court, 1883, Order XLVL, rule 2, " No writ of distringas shall be hereafter issued under the Act," 5 Vict. c. 5, s. 5. And service of an affidavit and of the duplicate of the filed notice, as required by the rules of 1883, upon the Bank of England or any public company, whether incorporated or not, is to have the same effect as a writ of distringas formerly had (i). Stop Orders. — Where a fund is not in the hands of trustees but in Court, then a person taking an assignment of it should obtain a stoj^ order, otherwise a subsequent assignee who, at the time of his advance, had no notice of a first incumbrance (k), will gain priority by (rt) See (n.) " Companies Act, 1862," 354 ; 1 Mont. & Ayr. 693, n. See also p. 127, infra. Societe Generale de Paris v. Tram- (h) Chadwj'ck Ilealy on Companies ways Union Co., supra. (1894), p. 83. iff) ^a Agra Bank, 3 Gh. ooo; (c) Ex p. Stright, 1 Mont. 502; Alletson v. Chichester, 10 C. P. 319; Gale V. Lewis, 9 Q. B. 730; Societe Exp. Eichardson, Mont. & Chit. 43. Generale de Paris v. Tramways, «S:c., (h) Etty v. Bridges, 2 Y. & C. C. C. 14 Q. B. D. 424. 486. ((7) Ex p. Watkius, 4 Deac. & Ch. {i) See the Annual Practice, 1896, 87 ; but see Exp. Hennessey, 1 Con. & 0. 46, rr. 2 — 11. Law. 599. (^) Mutual L. A. S. v. Langley, 32 [e) E.r p. Waithman, 4 Deac. & Ch. C. D. 460 ; cf. Warburton v. Hill, 412; but see Ex p, Hennessey, 1 Con. Kay, 470 ; Haly v. Barry, 3 Ch. 456 ; & Law. 559. Re Hoknes, 29 C. D. 786 ; Stephens v. (/) Ex p. Carbis, 4 Deac. & Ch. Green, p. 121, supra. ASSIGNMENT OF EQUITABLE CHOSES IN ACTION. 127 Ryall V. Howies. obtaining the first stop order, although the person takiug the first assignment be a trustee of the fund (a) ; or, although another assignee, after payment of the fund into Court, has given notice to the trustees prior, in point of date, to the stop order (h). When an assignment is made of an interest in a trust fund, part of which is in Court and part in the hands of the trustees, the assignee, in order to complete his title, must, as regards the fund in Court, obtain a stop order, and as regards the fund in the hands of the trustees, give notice to the trustees. Notice to the trustees will be ineffectual as regards the fund in Court, and as to that fund the priorities of different assignees will be determined by the dates at which they have obtained stop orders. An assignee who has obtained a stop order is entitled (as regards the fund in Court), to priority over a prior assignee (of whose assignment he had no notice), who had given notice to the trustees before the date of the stop order, but who had not himself obtained any stop order (c). And it has been held that a subsequent incumbrancer of a fund, when he has notice of a former incumbrance, cannot obtain priority by obtaining a stop order [d). The order should be left at the Paymaster-General's office (e). Companies Act, 1862. — The principle established in Dearie v. Hall (supra, p. 116), as to the effect of notice in determining the priority of equitable rights, does not extend to the shares of companies registered under theCompanies Act,1862,orto companies governed byregulations having a provision similar to sect. 30 of that Act. The Companies Act, 1862, S.30, forbids the entry of any trust on the register of companies, and where the shares of a company either registered under that statute, or containing a regulation to the like effect with that section are equitably assigned or mortgaged more than once, the priority of the assignees or mortgagees will be determined by the priority of the assignments or mortgages, and not by the priority of the notices thereof given to the company (/). (a) Eider v. Maclean, o W. li. 447, see 32 C. D, p. 472. observed upon in Mutual L. A. S. v. (e) Waller v. Wildridgo, 3 Ir. Ch. Langley, supra; Tlionipson r. Tom- Rep. 155; and see tlio cases cited, O. kins, 2 Dr. & Sm. 8. 46, rr. 12, 13, Annual Practice, 1896. {h) I'inuook (.'. Bailey, 23 C. D. 497, (/) Societe Generale, &c. r. Walker. 498. &c., 11 App. Gas. 20; Powell v. Lon- (c) Mutual L. A. S. v. Langley, 26 don, &c. Bank, (1893) 1 Ch. p. 617; C. D. 686; 32 C. D. 460; cf. Lister v. Colonial Bank v. Wkinney, 11 App. Tidd, 4 Eq. 462 ; Livesey v. Uarding, Cas. 42G ; Bradford Banking Co. v. 23 B. 141. Briggs, 12 App. Cap. 29; Simpson tv {d) He A. D. nolmes, 29 C. D. 7S6 ; Molson s Bank, (1895) A. C. 270. 128 ASSIGNMblNT. Ryall V. Eowles. Bankruptcy.— When Dearie v. Hall (supra, p. 116), was decided, the law relating to reputed ownership in bankruptcy extended to all choses in action. It does not now apply to any choses in action, except " to debts due or growing due to the bankrupt in the course of his trade or business (a). In order, therefore, to divest the bankrupt of his reputed ownership of debts due to him, the person to whom he has assigned them, must have done everything that is equivalent to a delivery of chattels personal — that is, he must obtain an assignment and delivery of the security, if any, and give notice to the debtor of the assign- ment (6). The only person to whom notice of the assignment need be given is the party from whom the assignor is to receive the pay- ment of his money, and not the original debtor (c). And notice to the debtors is equally necessary, where debts are assigned by a retiring partner to a partner continuing in the trade (d). A mere notice, however, to pay debts to one of the partners will not take* the debts out of the order and disposition of the firm of which he was a member (e). And now under the section 50 (5) of the Bankruptcy Act, 1883, " where any part of the property of the bankrupt consists of things in action, such things shall be deemed to have been duly assigned to the trustees " (/). But to insure priority he must give notice (g). Shares in a railway company transferable only by deed (h), deben- tures of a joint stock company (l), and policies of life assurance {k), are all " things in action " within s. 4-i of the Act, and are exempt from the doctrine of reputed ownership. Assignments of debts are not governed by the same rules as bills of exchange and promissory notes, so as to make it obligatory upon the assignee of a debt to give notice to the assignor of non-payment (a) Bankruptcy A. 1883, s. 44, s.s. iii. (e) Ex x>. Sprague, 4 De G. M. & G. Ward V. Buncombe, (1893) A. C. p. 866; cf. Ex p. Woodgate, 2 Mont. D. 393 ; Re Jenkinson, 15 Q. B. D. 441. & De G. 394. (6) Jones v. Gibbons, 9 V. 409; Re (/) See as to the corresponding clause Eichards, 45 C. D. p. 596 ; 7 E. E. p. under B. A. 1849, s. 141, Re Coombe's 409; and see 7?x p. Eawlings, 60 L. T. T., 1 Gif. 91 ; under the B. A. 1869, 156 ; Re Tillett, 60 L. T. 575 ; Eutter s. 22, Palmer v. Locke, 18 C. D. 384 ; V. Everett, 13 E. Oct. 121. Re Jakeman's T., 23 C. D., p. 372 ; (c) Gardner v. Lachlan, 4 My. & C. Yate-Lee, Bankruptcy, (1891) pp. 408, 129 ; Buck v. Lee, 3 Nev. & Man. 580; 449. Exp. M'Turk, 2 Deac. 58. (fl-) Re Stone's Will, W. N. (93) 50. {d) See Ex p. Burton, 1 G. & J. [h) Colonial Bank v. Wbinney, 11 207 ; Ex p. Usborne, 1 G. & J. 358 ; App. Oas. 426. Ex p. Colvill, Mout. 110; Ex p. (i) i2e Pryce, 4 C. D. 685. Tennyson, 1 Mf.nt. & B. 67. (/>;) ^■>' p- Ibbetson, 8 C. D. 519. ASSIGNMENT OF EQUITABLE CHOSES IX ACTION. 129 Ryall V. Ro'wles. by the debtor (a). But the assignee of a debt in such a case is chargeable for wilful default, as every mortgagee must be {h). Freight.— A mortgagee of a ship, being under the mortgage en- titled to the freight as a chose in action (c), is, by taking possession, or doing an act equivalent to taking possession, before the freight becomes payable, entitled to receive it as against the mortgagor or his assignees in bankruptcy (d), a judgment creditor {c), or assignees for value. In the case of Liverpool Marine, (tc, Go. v. Wilson (/), it was held that the first registered mortgagee of a ship, by taking posses- sion of her before the freight was completely earned, obtained a legal right to receive the freight, and to retain thereout not only what was due on his first mortgage, but also the amount of any subse- quent charge which he might have acquired on the freight, in priority of every equitable charge of which he had no notice ; and that it was immaterial that a subsequent incumbrancer was the first to give notice to the charterers of his charge on the freight. So a mortgagee of ship and general freight taking possession of the ship before any freight has become payable from the charterers to the owners, has been held to be entitled to freight in priority of a sub- Hequent particular assignee of freight, although he may have given notice of his assignment to the charterers before the mortgagee took - possession of the ship (utler's, &c., Co., 48 L. J. Ch. S2N. (r) Kerswill r. Bishop, 2 C. & J. 52!>. (/') Feltbani v. Clark, 1 De G. & 8m. ^iee Merchant Shipping Act, 1894, s. 36. ^^7 ; Langton v. Ilorton, 1 Ila. b\\). {(]) Eiisden v. Pope, 3 L. E. Ex. (0 ISco Jonesr. J., 8Si. 633 ; AVihnot 269 ; Wilson v. W., 14 Eq. 32. '^>- Pike, 5 Ila. 14 ; Loe v. Ilowlott, 2 (0 Langton /•. Ilorton, 1 Hare, .549. Kay & J. 531 ; Phipps r. Lovegrove, 1() (/) 7 Ch. 507. Eq. 80; Ex j). Eabbidge, 8 C. D. 370. {) See Crouch, v. Credit Foncier, L. R. 8 Q. B. p. 381 ; Simmons r. London J. S. Bank, (1891) 1 Ch. p. 294. See Pollock, Contracts, 1894, p. 216. (e) Wookey v. Pole, 4 B. & A. 14 ; Collins V. Martin, 1 Bos. & P. 648; London, &c. , Bank r. London Eiver Plate Bank, 21 Q. B. D. p. o40 ; Barber v. Eichards, 20 L. J. Ex. 135 ; Treuttel v. Barandon, 8 Taunt. 103 ; London J. S. Bank v. Simmons, (1892) A. C. 201 ; Bentinck v. London J. S. Bank, 9 T. L. E. 262. (d) ^enables r. Baring & Co., (1892) .3 Ch. 527 ; and see Scholfield c. Londesborough, (1895) 1 Q. B. 536. (e) Miller v. Race, 1 Burr. 452. (/) See Bills of Exchange Act, 1882, ss. 8, 38, 73 and 89. {;/) Wookey i\ Pole, 4 B. & A. 1. (/?) Rodger v. Comptoir, &c., de Paris, L. R. 2 P. C. 405 ; CharteredBank , &c. t: Henderson, 5 L. R. P. C. 501 ; Kemp r. Palk, 7 App. Cas. p. 581. (/) Goodwin r. Robarts, 1 App. Cas, 476. [k) Gorgier r. Mieville, 3 B. & C. 45; A.-G. V. Bouwens, 4 M. & W, 171 ; Ileseltine r. Siggers, 1 Ex. 856. (/) Goodwin r. Robarts, 1 App. Cas. 476 ; Lang c. Smyth, 7 Bing. 284. (/?-/) Venablesr. Baring, (1892) 3 Ch. 527. (//) Jit' Blakcley Ordnance Co., 3 Ch. 154 ; Jie General Estates Co., 3 Ch. 758;, Crouch r. Credit Foncier, 8 L. R. Q. B, 374 ; Chadwyck Healy, Companies, 1894, p. 174; Pollock, Contracts^ 1S94, p. 212. ASSIGNMENT OF EQUITABLE CHOSES IN ACTION. 137 By all V. Rowles. If the instrument on the face of it shows it was only intended to pass by transfer and not by delivery it will not be a negotiable instrument («). But if it contains a representation on the face of it that all the rights it represents will pass to the holder on delivery, then whether it be a negotiable instrument or not, the person legally entitled may be estopped, on the principle of Pickarcl v. Sears (6), from disputing the title of the holder (c). Dividend warrants of the Bank of England being in the form of cheques payable to a particular person without any words to make them transferable are not negotiable (d), nor, it seems, are coupons detached from foreign bonds passing by delivery (e). The indorsee of an overdue bill of exchange or note takes it subject to all defects of title affecting it at maturity (/). A person who without inquiry takes from another an instrument signed in blank by a third party, and fills up the blanks, cannot, even in the case of a negotiable instrument, claim the benefit of being a purchaser for value without notice, so as to acquire a greater right than the person from whom he himself received the instru- ment (g). A fortiori will this be the result in the case of an in- strument not negotiable {h). Stoppage in transitu.— If a purchaser re-sells goods whilst they are in transitu, antl receives the price, and then becomes insolvent, the first vendor may stop the goods at any time before they have come into the 'possession of the second purchaser, unless such second pur- chaser claims as the indorsee and holder of a bill of lading, in which case, if he has given valuable consideration for the bill, and did not know of the vendor's insolvency, the vendor's right to stop will be gone (i). (a) Yeo v. Dawe, 33 W. E. 739; pcau Bank, 5 Ch. 358; Ex ^k Swan, cf. Mortgage I. C. r. Commissioner, (5 Eq. 359 ; overdue cheques, Lon- &c., 21 Q. B. D. p. 355. ilon, &o. Banking Co. c Groome, H (h) 6 A. & E. 474. a B. D. '288. (v) Goodwin v. Eobarts, 1 App. Cas. {g) France r. Clark, 26 C. D. 257 ; p. 490 ; Williams v. Colonial Bank, 38 Hogarth '•. Latham, 3 Q. B. D. 643 ; C. U. p. 388 ; Henderson v. Williams, Hatch r. Searles, 2 Sm. & G. 147 ; (1894) 1 Q. B. p. 583. Taylor r. G. I. P. 11. Co., 4 Do G. & J. {d) Partridge r. Governor and Com- 559 ; Williams r. Colonial 15ank, ;58. pany of the Bank of England, 9 Q. B. C. D. 388 390 (/i) France v. Clark, supra ; llihble- waitc V. McMorinc, 6 M. & AV. 200 ; ^.an r. X. B. A. Co., 2 II. ct X. ()03. 1882,' s. 36, s.s. 2. l-'ee Re Em-o- (/) Ex ^J. Golding Davis & Co., l;i (e) Lang v. Smyth, 7 Bing. 284. thwaitc v. McMorinc, 6 M. & AV. 200 ; (/) See Bills of Exchange Act, Swan r. X. B. A. Co., 2 II. ct X. 603. 138 ASSIGNMENT. Ryall V. Row^les. 7. Choses in Action how far made Assignable 'bj Statute. It has been before stated generally (see p. 104) what clioses in action have been made assignable at law. To the earlier statutes it is unnecessary again further to refer. It may, however, be useful to refer more fully to some recent legislation upon the subject. By the Policies Assurance Act, 1807 (:10 & 31 Vict. c. 144), it is enacted that — 1. "Any person or corporation now being or hereafter becoming entitled, by assignment or other derivative title, to a policy of life assurance, and possessing at the time of action brought the right in equity to receive and the right to give an effectual discharge to the assurance company liable under such policy for moneys thereby assured or secured, shall be at liberty to sua at law in the name of such person or corporation to recover such moneys." o. " No assignment made after the passing of this Act shall confer on the assignee therein named, his executors, administrators, or assigns, any right to sue for the amount of such policy, or tlie moneys assured or secured therelw, until a written notice of the date and purport of such assignment shall have been given to the assurance company liable under such policy at their principal place of business for the time being, or in case they have two or more principal places of business, then at some one of such principal places of business, either in England, Scotland, or Ireland, and the date on which such notice shall be received shall regulate the priority of all claims under any assignment ; and a payment bondjide made in respect of any policy by any assurance company before the date on which such notice shall have been received shall be as valid against the assignee giving such notice as if this Act had not been passed." 4. " Every assurance company shall on every policy issued by them after the 30th of September, 18G7, specify their principal place or principal places of business at which notices of assignment may be given in pursuance of this Act." 6. " Every assurance company to whom notice shall have been duly given of the assignment of any policy under which they are liable shall, upon the request in writing of any person by whom any such notice was given or signed, or of his executors or administrators, C. D. 628 ; Kemp r. Falk, 7 App. Cas. 20, Smith's Leading Cases ; Addison, 573; Lickbarrow r. Mason, G East, Contracts, 1892, p. 539. ASSIGNMENT OF EQUITABLE CUOSES IN ACTION. 139 Ryall V. Ro-wrles. and upon payment in each case of a fee not exceeding five sliillings, deliver an acknowledgment in writing under the hand of tlie manager, secretary, treasurer, or other principal officer of the assurance com- pany of their receipt of such notice ; and every such written acknow- ledgment, if signed by a person being de jure or de facto the manager, secretary, treasurer, or other principal officer of the assur- ance company whose acknowledgment the same purports to be,, shall be conclusive evidence as against such assurance company of their having duly received the notice to which such acknowledgment relates." And it is provided by s. 8 — " that this Act shall not apply to any policy of assurance granted or to be granted or to any contract for a payment on death entered into or to be entered into in pursuance of the provisions of IG & 17 Vict. c. 45, and 27 & 28 Vict. c. 43, or either of those Acts (a), or to any engagement for payment on death by any friendly society " {h). An agreement in writing to execute on request an effectual mort- gage of a policy of assurance deposited with another, at the time of the agreement, as security for a loan, is not an assignment of such policy within the meaning of the Policies of Assurance Act, 1867. Accordingly notice to the assurance company of such an agreement does not under that Act give any priority over a prior equitable mortgagee who has given no notice to the company, but has posses- sion of the policy (c). The Act is intended to apply only as between the insurance office and the persons interested in the policy, and does not affect the rights of those persons inter .sr. Accordingly, where a first incumbrancer on a policy has not given such notice as is prescribed by the Act, and a second incumbrancer with notice of the prior charge had given the statutory notice, NortJi, J., held, that the second incumbrancer did not thereby gain priority (d). A condition that a policy is not to be assigned in any case whatever, and a proviso that the company are not to be bound to recognise any equital)le dealings with the policy, does not prevent a policy-holder dealing with the beneficial interest (e). By the Policies of Marine Assurance Act, 1868, :U & 32 Vict, c. 80, it is enacted that " whenever a policy of assurance on any ship, or on any goods in any ship, or on any freight, has been (a) These statutes are repealed, in {<■) Siicncer r. Clarke, 9 C. D. 137. part, by 45 & 46 Vict. c. 51. {d) Newman v. N., 28 C. D. 074 ; Be {b) See The Scottish, &c., L. A. Holmes, 29 0. D. 786. Society v. Fuller, 2 Eq. 53. (e) 7,V Turcaii, 40 ('. D. 5. 140 ASSIGNMENT. Ryall V. Rowles. assigned, so as to pass the beneficial interest in such policy to any person entitled to the property thereby insured, the assignee of such polic}' shall^be entitled to sue thereon in his own name" . . (sect. 1). It has been recently decided that under this Act a policy of marine assurance can be assigned, after loss, so as to entitle the assignee to sue upon it in his own name (a). But not after the interest of the assignor has ceased by a deliver}^ of the cargo to the purchaser (6), unless there had been an agreement to assign the policy before such interest ceased (c). By s. 50, s.s. 5, of the Bankruptcy Act, 1S83 (46 & 47 Vict. c. 52), it is euacted that " where any part of the property of the bankrupt consists of things in action, such things shall be deemed to have been duly assigned to the trustee " (d). By the Judicatme Act, 1873, 36 & 37 Vict. c. m, s. 25, sub-s. 6, it is euacted that, " Any absolute assignment by Avriting under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be and be deemed to have been effectual in law (subject to all equities, which would have been entitled to priority over the right of the assignee if this Act had not passed), to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concuiTence of the assignor" (e). This sub-section is retrospective (/). In order to constitute a legal assignment under this section, (1) there must be an absolute assignment not purporting to be by way of charge only (g). The assignment may be absolute although the deed contains a proviso for redemption and re-assignment (Ji). (2) The subject-matter of the assignment must be of a debt or («) Lloyd r. Fleming, 7 L. E. Q. B. (f) See Aunual Practice, Part I. 29!». (/) Dibb r. Walker, (1893) 2 Ch. {b) North of England, &c., Co. r. 429. Archangel I. Co., 10 L. E. Q. B. 249, (y) SeeBnrlinson r. Hall, 12Q.B.D. 253. 347; AValker v. Bradford Bank, 12 (c) lb. 254, per Lush, J. Q. B. D. 511 ; Comfort r. Betts, (1891) (d) See Palmer r. Locke, 18 C. D. 1 Q. B. 737. 384, and other cases cited, note (/), (/*) Tancred r. DelagoaBay, &c.,Co., supra, p. 128. 23 Q. B. D. 239. ASSIGNMENT OF EQUITABLE CHOSES IN ACTION. 141 Ryall V. Rowles. other legal chose in action {(t). Contracts to lend money or make further advances do not constitute debts (b). And see further as to what debts and choses in action are assignable (c) ; and as to assign- ments of future property, see as to future debts {d) ; as to an interest in maintenance (e) ; as to moneys to become due on a policy (/) ; as to future receipts of business (g). (3) Express notice in writing of the assignment must have been given. The Act, however, does not provide when or by whom it is to be given (h). The notice may, however, be given after the death of the assis^nor, for the meaning of the Act is that, until the assignee has given the prescribed notice, he must sue as he would theretofore have sued ; but when the notice is given then he may bring an action at law in his own name without being incumbered with having to sue in the name of the assignor, or having to make him a party to the action (l). An allegation of notice in writing is necessary in the pkadipg (k). 8. Assignments contrary to Public Policy, Champerty and Maintenance, Gsneral Prin'-lplc.—" You are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because if there is one thing which, more than another, public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting " (l). Pension and Salaries. — As in the case of agreements, the Courts upon the ground of public policy, will not give effect to assignments of pensions and salaries of public officers, payable to them for the (a) See as to legal choses in action, {). And a pension granted by Government in compensation for the loss of a place in the Customs, was held assignable (c). So an assignment of the emoluments of a fellow of a college in the university was held valid by Lavfidale, M. R, who gave effect to the security thereon, out of the dividends apportioned to such fellow, from time to time in respect of his fellowship {d). ShadiveU, V.-C, seems, however, to have come to a different conclusion in Berkeley v. Kinrfs College (e). In the case of Grenfell v. The Dean, tCr., of Windsor (/), a canon of Windsor granted the canonry profits and emoluments thereof to secure a sum of money. There was no cure of souls, and the only duties were residence within the Castle, and attendance in the chapel, twenty-one days in the year. Langdale, M. R., held that the security was valid, and appointed a receiver of the profits (7). Bankruptcy Act, 1883, n.s. 44, 52, and 53. — The effect of these sections is to vest in the trustee in bankruptcy all the property of the bankrupt of whatever nature, subject, however, as to the pay of military, naval, or civil servants, to the qualifications of s. 53 (It). Alimony. — Alimony granted to a wife by the Divorce Court is not assignable, inasmuch as it is a mere allowance which, having regard to the means of the husband and wife, the Court thinks ought to be paid from time to time for her maintenance, and the Court may alter it or take it away when it pleases (i-). Assignment of future intellectual work. — An agreement by the vendor of a patent to assign to the purchaser of future patent rights which the vendor might thereafter acquire of a like nature to the patent sold, to assign the produce of future intellectual work, is not contrary to public policy (k). (a) Priddy r. Eose, 3 Mer. 103. (2;esand 164; Prosser v. Edmonds, 1 Y. «& C. Eujhj, L. JJ. in Alabaster v. Harness, Ex. 481 ; Harrington v. Long, 2 My. (1895) 1 Q. B. 339. & K. 590. (6) (1895) 1 Q. B. 339. () Ibid. (c) 12 V. 174. 156 ASSIGNMENT. Hornsby v. Lee. mentioned, standing in the names of Thomas Ralph, in the pleadings named, and the defendant, George Lee, in the books of the Governor and Company of the Bank of England. And it is ordered that the defendant, George Lee, do transfer the said 1,453/^. 15s. 6d., SI. per cent. Reduced annuities, unto the plaintiff, with interest and dividends which have accrued due thereon. And it is ordered that the plaintiff do pay unto the defendants George Lee and John Seton, their costs of this suit, to be taxed by Mr. Campbell, one of the masters of this Court, as between solicitor and client ; and as between the plaintiff and defendant John Parker, no costs on either side ; and any of the parties are to be at liberty to apply to this Court, as they shall be advised. NOTES. 1. Generally. 2. Reduction into possession, p. 157. 3. Chose in action of married woman — How far assignable, p. 161. 1. Generally. This note deals only with cases on the assignment of a wife's choses in action where the marriage took place before the 1st January, 1883 («). In such a case the husband acquired by the fact of such maiTiage : 1. An estate of freehold in the real property of his wife. 2. An estate by the curtesy in lands of which his wife was seized in fee simple or fee tail during the coverture. 3. An interest in her copyholds, and customary freeholds, and an estate therein if he survived her, varying with the custom. 4. An absolute interest in her chattels personal in possession. 5. A qualified interest in her chattels real, and choses in action (6). As to her choses in action, present and reversionary, not belonging to her to her separate use, if the husband does not during his lifetime reduce them into possession, they will belong to his wife surviving him (c), for marriage only makes a qualified gift to the husband of the wife's choses in action, namely, upon condition that he reduce them into possession during its continuance (d). In chattels, personal marriage (a) See the Married "Women's Pro- p. 44. perty Act, 1882 (45 & 46 Vict. c. 75), (c) Co. Litt. 351 ; Scawin v. Blunt, s. 25. 7 V. 294 ; Langham v. Nenny, 3 V. (?;) He Butler's T. (1888), 38 C. D. 467. 286; and Tlucknesse,Hiis.&"W. (1884), (fZ) Pimlew v. Jackson, 1 Russ. 1. ASSIGNMENT OF WIFE's CHOSES IN ACTION. 157 Hornsby v. Lee. by operation of law divests the property in them out of the wife. In the case of a chose in action, marriage does not divest the property out of the wife, and all that the husband acquires by the marriage is a right to reduce the chose in action into possession (a). But at any time before the husband has actually reduced the equitable interest into possession, the wife may, if the chose in action is a present interest, assert her equity to a settlement (6). If the husband survive his wife (c) he will on taking out adminis- tration {(]) be entitled to her choses in action, not reduced into possession. 2. Reduction into Possession. What does not amount to.— In order to reduce a wife's choses in action into possession, acts must be done which will have the effect of changing the property therein, and divesting the wife's right. For nothing amounts to a reduction into possession which does not give the husband, for some moment of time, absolute dominion over the property without any concuiTence of the wife (c). In the fol- lowino- cases it has been held that there has not been reduction into possession. The mere intention of an executor to pay the proceeds of a chose in action to which the wife is entitled to the husband, or an appropriation of a particular fund for that purpose (/), or the husband's receipt of the interest thereof {g), or a receipt of part of the fund by the husband, except pro tanto {h). Where the wife was entitled to a legacy expectant on death of B., and she joined with her husband in assigning it to X.,and the husband died in 1819, living the tenant for life, it was held that the wife was entitled free from the incumbrance of X. {i). Where the chose in action, a promissory note, was handed to the husband (/.•). A transfer of stock (o) See judg-ment of Bowen, L.J., {/) Blount v. Bestland, 5 V. 515. Re Butler's T., 38 C. D., p. 294; and (//) Howman v. Corie, 2 Vern. 190; see Re Barton's Will, 10 Ha. 12. Blount v. Bestland, 5 V. 515 ; Hart v. {h) As to which, see EUbauk v. Stephens, 9 Jui-. 225. MontoHeu, post. (^0 Nash v. N., 2 Madd. 133, 139 ; (c) See as to proof of survivorship Scrutton v. Patillo, 19 Eq. 369, 373 ; Scrutton v. Patillo, infra. Parker v. Lechmerc, 12 C. D. 206. (r?) See (n.) "Administration by (/) Purdcw r. Jackson, 1 Euss. 1. husband," p. 161. (/•) Nash r. N., 2 Madd. 133 ; Gaters (e) Nicholson v. Drury, 7 C. D. p. i: Madeley, 6 M. & W. 423 ; Day v. 00. See ^Vitchison v. Dixon, 10 Eq. p. Pargrave, 3 M. & S. 395. 598; Williams' Executors, 1893,p.T45. 158 ASSIGNMENT. Hornsby v. Lee. by trustees or executors into the name of the married woman (a). A transfer of money in Court to the joint account of the hus- band and wife (6). A transfer of shares into the joint names of husband and wife (c). A transfer of money into names of hus- band and wife (d). Where trustees of a fund belonging to the wife simply retain it in their own liands (e), or invest or pay it into the names of trustees for her(/). The payment by executors of a legacy bequeathed to a wife, by means of a cheque drawn to the order of the husband and wife, endorsed by them, and handed by the wife to the manager of a bank, directing him, with the assent of the husband, to place it to an account in her sole name, which was done, and treated by the wife as her separate property (g). A mere agreement moreover to sell a fund (h), or a set-off of a debt of the husband's due to a testator against a legacy he has left to the wife, will not bar the wife's right to the legacy in case she survives her husband {i). It is laid down, however, in a subsequent report of the last cited case, that where a debt to the estate of the testator may be set off by the executors against a legacy bequeathed by the testator to the debtor, such debt may also be set off against a legacy bequeathed by the testator to the wife of the debtor, subject to her equity (if Siuy) to a settlement (k). And the mere proof by a husband against the estate of a bankrupt indebted to his wife, will not amount to reduction into possession by the husband, if he die before a dividend be made. For instance, J. S., indebted by bond to the wife of A., became a bankrupt. The husband proved the debt, and paid contri- bution money, but died before any dividend was made. The wife survived, and died also before any distribution. Cowper, L.C., held that the payment of contribution money by the husband did not alter the property of the debt, but that it remained a chose in action, and survived to the wife (l). What does amount to. — The receipt, however, by the husband of his (a.) Wildmani'.W.,9V. 174; 7 E. R. {h) Harwood r. Fisher, 1 Y. & C. 153; seeEylandv. Smitli, p. 159, infra. Ex. Ca. 110. See note (d), p. 161. (h) Prole V. Soady, 3 Ch. 220 ; (t) Han-ison v. Andrews, 13 Si, Nicholson v. Drmy, i&c., Company, 7 595; Carr v. Taylor, 10 V. 574; Exp C. D. 4S. Cf. Donnelly v. Foss, infra. Blagden, 2 Eose, 249 ; Ex }>. O'Ferrall (f) Nicholson v. Drury, 7 C. D. 48. 1 G. & J. 347 ; Eeeve r. Eicher, 11 Jur (rZ) Scrutton v. Patillo, 19 Eq. 369. 960 ; Re Batchelor, 16 Eq. 481 (e) Twisden v. Wise, 1 Vern. 161. M'Mahon v. Burchell, 3 Ha. 99. (/) Aitchison v. Dixon, 10 Eq. 589. (/.) M'Mahon v. Burchell. 5 Ha. 325 (g) Parker v. Lechmere, 12 C. D. and see Hall v. HHl, 1 Dr. & War. 109. 256. (0 S^^ Anon., 2 Vern. 706. ASSIGNMENT OF WIFE's CHOSES IN ACTION. 159 Hornsby v. Lee. wife's chose in action, as, for instance, of a sum due to her on a mortgage in fee, will be a reduction thereof into possession (a), unless such receipt by the husband be in the character of trustee, when it will not have that effect (6). The receipt by an agent appointed by the husband and wife, either of a legacy due to the wife (c), or of money forming part of the estate of an intestate, of which the wife is administratrix, will amount to a reduction into possession by the husband in the former case, of the legacy, in the latter, of the wife's distributive share of the money {d), unless the agent receives the money as the separate property of the wife(f), and receipt by the wife of a chose in action with the assent of the husband, will amount to a reduction into possession by the husbanil ( /'). A transfer of the wife's stock into her husband's sole name would be a reduction into possession {g), and where the husband was a lunatic, the payment by order of the Court of stock belonging to the wife to the credit of the lunacy, was held as much a reduction into possession as a payment to the lunatic or his committee (It). It has however been held in Ireland that fines due to the wife before marriage, which had been lodged in Court, remained choses in action, and were not reduced into possession by such lodgment (i). And as a husband may, by transferring his Avife's stock into his own name, reduce it into possession, so he may do so by transferring it into the names of trustees upon trusts inconsistent with his wife's title by survivorship {k). Where, however, a husband directs or consents to an investment of stock belonging to his wife, in a manner consistent luith her equities, he will not be considered by such an act as destroying such equities, by its being a reduction into possession. Thus in Ryland v. Smith (l), the wife being under a will entitled to stock and to cash, part of a residue, the executors, at the request of the husband, transferred the stock into the names of trustees for the wife's separate use, and paid the cash to the husband. The husband employed part of the («) Eees V. Keith, 11 Si. 388, 390. (/) Eogers v. Bolton, 8 L. E. Ir. 69, {b) Baker v. Hall, 12 Y. 497, 8 E. E. infra, p. 160. 366; WaU v.Tomlinson, 16 V. 413, 10 (y) 1 Bright's Husb. & W. 54. E. E. 212. {h) Re Jenkins, 5 Euss. 183, 187. (c) Huntly r. Griffitli, Moore, Q. B. (/) DonneUy v. Foss, 7 L. E. Ii\ 439. 452, Gouldsb. 2nd ed., p. 159, pi. 91. (A-) Hansen v. Miller, 14 Si. 22; (d) Be Barber, 1 1 C. D. 442. Burnham v. Bennett, 2 Coll. Ch. E. 254. (e) Parker v. Lechmere, 12 C. D. (0 1 My. & C. 53. 256. 160 ASSIGNMENT. Hornsby v. Lee. cash in increasing the amount of the stock. He afterwards became bankrupt, and died. It was held by Pepys, M.R, that the stock transferred by the executors was not reduced into possession by the husband, and, therefore, belonged to the wife by survivorship, but that the assignees under the bankruptcy were entitled to the increase made by the husband. Where the wife is possessed of choses in action even such as promissory notes, or bills of exchange given to her before 'marriage, unletjs the contracts thereon be altered as by taking a new security {a), the husband must bring an action upon them in the names of himself and his wife, and if he obtains judgment and sues out execution, he will thereby reduce such choses in action into posses- sion {h) ; but if he die after judgment and before execution sued out, the judgment will survive to the wife (c). Where, however, the choses in action accrue to the wife during the oiuirriage, and the husband elects to disagree to his wife's interest by commencing an action in his own name only, if he dies after judgment, his represen- tatives, and not his wife, will be entitled to the benefit thereof (d). Where a promissory note made to a feme sole (and not being her separate property) was paid to her after marriage, but without the authority of her husband, such payment was held to be no answer to an action brought after her decease b}' her husband as her administrator on the footing of the note, inasmuch as the act of the wife in receiving during coverture the debt contracted with her du7n sola operated as a reduction into possession of the chose in action, and vested the property in the husband (e). Where there is a decree in a joint suit by husband and wife, for money claimed in her right, if the husband die before any other proceedings, the benefit of the decree will survive to the wife (/) ; nor will her right by survivorship be prejudiced if nothing has been done in the suit to change the property (r/). If, however, the property were changed, as, for instance, by the approval by the Court of a settlement to be made on the wife (h) ; or by an order for payment ((() Yard v. Ellard, 1 Salk. 117, pi. (c^) Oglander v. Baston, 1 Vem. 396. 8. (e) Eogers v. Bolton, 8 L. E. Ir. 69. (&) Hardy v. Eobinson, 1 Keb. 440; (/) Naimey v. Martin, 1 Eq. Ca. Tirell r. Bennet, 2 Keb. 89 ; Milner v. Ab. 68. Milnes, 3 T. E. 627 ; Eumsey v. (g) Adams v. Lavender, M'Cle. & George, 1 M. & S. 176; Sbeningtou Yo. 41; Bond v. Simmons, 3 Atk. 20; V. Yates, 12 M. & W. 855. Anon., 3 Atk. 726; Macaulay f. Philips, (c) Bond V. Simmons, 3 Atk. 21. Cf. 4 V. 15 ; see 7 E. E. 349. E. S. C. 1883, O. 17, r. 1. (A) Macaulay r. Philips, 4 Y. 19. ASSIGNMENT OF WIFE's CHOSES IN ACTION. 161 Hornsby v. Lee. to the husband, the wife's right to take by survivorship will be gone (a). Arrears of income of a married woman's life interest, in the hands of a receiver, which had been ordered to be received and applied by him in a suit in payment of her husband's incumbrances, and which had not been paid as directed, were held by the effect of the order, to be reduced into possession so as to defeat the wife's right by survivorship (h). A sale by a husband for a sum of money of his wife's chattels, which the purchaser takes possession of, was held to amount to a reduction into possession by the husband if reduction was necessary in such a case (c). As to a mere assignment, see case cited below (cZ). Adrainistration hy Husband. — If a husband fail to reduce his wife's choses in action into possession during her lifetime, he will, \ipon her death before him, be entitled to them on taking out letters of administration to her. And this is the case with regard to the choses in action of a wife settled to her separate use, which she has not assigned during her life (e). If the husband die without having taken out administration, his personal representative, upon taking out letters of administration to the wife, will become entitled to such choses in action (/). If probate be granted of the wife's will, the executors will be merely trustees of the beneficial interest in her choses in action for her husband surviving her, and he, or if he is dead his legal personal representatives, may sue the executors in respect of them (r/). 3. Chose in Action of a Married Woman — How far Assignable. A husband can give no better right to another than he has himself ; therefore all assignments made by the husband of the wife's choses in action, present or reversionary, vested or contingent, which are not, or cannot be, then reduced into possession, whether the assignment be in bankruptcy, or under the Insolvent Act, or to trustees for payment of debts, or to a purchaser for valuable con- sideration, even although the wife joins therein, pass only the (a) Heygate t: Anneslej-, 3 Bro. Cli. (e) Proudley v. Fielder, 2 My. & Iv. ;362 ; Bourston r. WilHams, 5 Ch. 655; 87 ; Be Lambert, 39 C. D. G26. butsee Fleet r.Perrins,4L.E.Q.B. 500. (/) Partington v. A.-G., L. E. 4 {b) Tidd V. Lister, 3 De G. M. & G. II. L. p. 109 ; In the goods of Harding, 857. 2 P. & D. 394 ; of Price, 12 P. D. 137 ; (c) Widgery r. Topper, 7 C. D. 423. of WilUams, 67 L. T. 502. {d) SeeEllison .'.Elwin.p. 163, infra. (g) Smart >: Tranter, 43 C. D. 587. W. & T. — VOL. I. 11 162 ASSIGNMENT. Hornsby v. Lee. interest which the husband himself has, and are therefore subject to the wife's legal right by survivorship. The result of the principal cases (a) may be stated shortly thus. The assignment, although by the husband and wife, puts the assignee in the same situation as the husband. If the chose in action is not reversionary, the claim of the assignee is liable to be defeated, either by the wife's equity to a settlement (b), or by her right of sur- vivorship, until the chose is reduced into actual possession. If the chose is reversionary, and the wife survives her husband, she neces- sarily takes by survivorship, and the assignee takes nothing, but it the husband in such case survives the wife, the husband will become entitled on taking out administration (c), and through him his assignee. In Le Vasseur v. Scratton (d), a female infant being entitled to the reversion of a chose in action, expectant on the decease of the survivor of A. and B., she and her husband covenanted, in contemplation of their marriage, to assign it to trustees, in trust, as to one moiety for the husband absolutely, and as to the other moiety, for the wife and the issue of the marriage. The husband died first, and afterwards A. and B. died. It was held by Shachvell, Y.-C, that the chose in action survived to the wife, and that she Avas entitled to have it transferred to her. In Seaton v. >S'. (e), S. being eighteen years old, married in 1862. She was a ward of Court, but married without its sanction. An inquiry into her fortune Avas ordered and a settlement executed, Avhereby she settled a rever- sionary interest in personalty to which she was entitled under the Avill of a testator who died before Malins' Act came into operation, and this settlement was approved by the Court. She recognized the settlement by various acts, and applied to the P. D. and A. Division to vary it after a dissolution of her marriage had been decreed on her petition. Held, that no such acts, nor the sanction of the Court, nor the effect of Infants' Settlement Act, could bind her, and that she was entitled to a transfer of the property. In Davies v. D. (/), a female infant settled two reversionary choses in (a) See Hornsby v. Lee, supra ; 7 C. D. 423; Re Butler's T., 3 L. R. Ir. Purdew v. Jackson, 1 Euss. 1 ; Honner 89. . Morton, 3 Euss. Go ; Watson v. Den- [h) See Elibank v. Montolieu, post, uis, 3 Euss. 90; Stamper v. Barker, o (c) See(n.) "Administration by hus- Madd. 157 ; Box r. B., 2 Con. & Law. band," p. 161. (j05; Box i\ Jackson, 1 Drurj', 55; (cZ) 14 Si. 116. Greedy v. Lavender, 13 B. 62; Prole (e) (1888) 13 App. Cas. 61. V. Soady, 3 Ch. 220; Wilkinson v. (/) 9 Eq. 468. Gibson, 4Eq. 162 ; Widgery v. Tepper, ASSIGNMENT OF WIFE's CHOSES IN ACTION. 163 Homsby v. Lee. action, she survived her husband, and then one of them fell into pos- session, which she directed to be paid to the trustees of the settle- ment. She was held to have confirmed the whole settlement so as to bind the second fund when it should fall in (a). It is now clearly established that, whether the husband after an assignment of his wife's choses in action dies in the lifetime of the person having a prior interest, whereby the chose in action cannot, as against the wife, be reduced into possession, or whether he sur- vives and dies before it is reduced into possession, the same result follows, — the chose in action will survive to the wife. Thus, in Ellison V. Ehvin (b), by articles entered into on the marriage of a female infant, she and her intended husband agreed to assign, on her attaining twenty-one, a share of her deceased grandfather's residuary estate, to which she was entitled under the trusts of his will, to trustees, in trust for themselves and their children. After the lady had attained twenty-one a settlement was made for the purpose of carrying the articles into effect, to which the husband and wife and the trustees were the only parties ; but before the settled property was transferred to the trustees the husband died. Shadwell, V.-C, held that the wife's right to the property by survivorship was not barred. The principle of this decision was followed by Knight Bruce, V.-C, in Ashhy v. A.{c), in which case a husband, for a valuable consideration, assigned a legacy, to the payment of which his wife was entitled twelve months after the decease of the testator's widow. The husband survived the testator's widow more than twelve months, but took no steps to reduce the property into possession. His Honour held the assignment void as against the surviving wife {d). And a release by a husband of a reversionary chose in action of his wife is as inoperative to bind his wife by survivorship as his assign- ment would be (e), although the release by the husband of a chose in action payable in j^rcesenti is effectual to bar the wife's equity to a settlement (/). Where an annuity or life interest in a fund is given to a married (a) See also Milner v. Harewood, 18 B., 16 Si. 552; Miclielmore i'. Mudge, V. 259, 277, and Addenda, Note A. 2 Gif. 183. {h) 13 Si. 309. See note ((7), p. 161. {e) Eogers v. Acaster, 14 B. 445. (c) 1 CoU. Ch. E. 553. (/) SeeLewin, Trusts, 1891, p. 834. (fZ) See also Hastings r. Orde, 11 Si. note d, citing M'Creery v. Searight, 205; Wilkinson v. Charlesworth, 10 5 L. E. Ir. 200, 641; Harrison v. B. 324, 328 ; Eowland v. M'Donnel, Andrews, 13 Si. 595. 13 Ir. Ch. Eep. 365, 381 ; Borton u. 11 2 164 ASSIGNMENT. Hornsby v. Lee. woman, and is not her separate property, the husband is not, with her concurrence, capable of effectually disposing of her life estate, except during his own life ; for, if she outlive her husband, such part of it as would be enjoyed by her after the coverture determined would be reversionary only, and consequently the husband cannot make a title to such portion of the annuity or dividends of the fund as may accrue after his own death, and during the life of his wife surviving him (a). Where personalty, a reversionary interest in which is given to a married woman, is brought into existence for the purpose of securing a loan to her husband, the assignment by the husband and wife with the object of effecting such security will, 'pro tanto, defeat the wife's right by survivorship. Thus, in Winter v. Easum (b), a married woman entitled to income for her separate use agreed to assist her husband in obtaining a loan from an insurance company. A policy was accordingly effected with the company, by which a sum was assured to the survivor of the husband and wife upon the death of the one first dying. By a mortgage deed of the same date, reciting an agreement for a loan by the office at the request of the husband and wife, the wife assigned her separate income, and the husband the policy by way of mortgage for securing the sum advanced by the company. By the same deed the husband and wife, the wife joining for the purpose of binding her separate estate, covenanted that the husband would pay the premiums on the policy ; and there was a declaration by the husband alone that if he did not pay them the mortgagees might pay them out of income ; and a declaration by all parties that if the policy moneys became payable before the mortgage was paid, the company might pay it out of those moneys. After the death of the husband the wife claimed the moneys payable under the policy as being a chose in action not settled to her separate use, and therefore incapable of being effectually assigned during the husband's life. It was held, C. A., that, although the policy if taken alone created an interest in the wife not capable of being assigned so as to bar her right by survivorship, yet as it had been created for the purpose of a mortgage, and as a part of the same transaction, and in pursuance of a contract that it should be a security to the company, the wife's interest was included in the security (c). (a) Stifi V. Everitt, 1 My. & C. 37; Becher, 12 Si. 465. Harley v. H., 10 Ha. 325; Re (b) 2 Be G. J. & S. 212. Godfrey's T., 1 Ir. E. Eq. 531 ; Purdew (c) See also Stamford, &c.. Banking V. Jackson, 1 Euss. 1; but see Hore v. Co. v. BaU, 31 L. J. (N. S.) Ch. 143. ASSIGNMENT OF WIFe's CHOSES IN ACTION. 165 Hornsby v. Lee. Where, however, a single woman insures her life, and afterwards marries, inasmuch as her contract with the insurance society is for a reversionary payment to herself, if the society with which she has insured assigns over its business to another society, it seems that the married woman cannot effectually adopt the liability of the latter society in lieu of that of the former («). It was finally determined in the case of Whittle v. Henning (b), after some conflicting decisions, that although a woman having a reversionary interest in personalty obtain an assignment of the interest of every other person therein, she will not thereby convert her rever- sionary interest into an interest in possession, or enable her husband to do indirectly what he could not do directly — assign her original interest, so as to bar her right by survivorship ; and that if the rever- sionary fund is in Court, it will not be paid out, although the consent of all other persons interested in it be obtained. But although a court of equity will not give effect to an assignment by the husband of his wife's reversionary chose in action, so as to defeat her legal right by survivorship, it will be good against him if he survive his wife (see the principal case). And when it becomes an interest in possession it will be subject to the wife's equity to a settlement (c). Where reversionary personal estate to which two married women were absolutely entitled under a settlement prior to Malins' Act, was invested by the trustees in breach of trust in the purchase of land, it was held by the C of A. that the interests of the married women could be disposed of by them by a duly acknowledged deed under 8 & 4 Will. 4, c. 74 (d). The point is, whether at the date of the deed executed by the married woman, the interest in question is an interest in land (e). A married woman who has obtained a decree for a judicial separation from her husband is entitled absolutely, under 20 & 21 Vict. c. 8.5, s. 25, and 21 & 22 Vict. c. 108, s. 8, to her choses in action not reduced into possession, although she may have previously joined her husband in a mortgage thereof (/) ; and if the husband («) Conquest's case, 1 C. D. 334, 62; Clarke *'. Woodward, 25 B. 455, and 342. note to Elibank v. Montolieu, post. {b) 2 Ph. 731, and see Eicliards v. {d) i?e Dun-ant, 18 C. D. 106. Chambers, 10 V. 580; Story i\ Tonge, {e) Miller v. Collins, 40 Sol. Jo. 51 ; 7 B. 91 ; Brandon v. Woodthorpe, 10 B. JRe Newton, 23 C. D. 181 ; Addenda, 463 ; Cresswell v. Dewell, 4 Gif . 460 ; He Note B. Butler's T., 3 Ir. R. Eq. 138. (/) lie Insole, 1 Eq. 470. (c) See Greedy ;;. Lavender, 13 B. 166 ASSIGNMENT. Hornsby v. Lee. appears to oppose the application of his wife, he will be refused costs (a). And see the Summary Jurisdiction (M. W.) Act, 1895, s. 5. The same result follows when there has been a decree for the dissolution of marriage, for after the dissolution there is no right in the husband, whose right to reduce into possession only exists during the coverture (6). The order "nisi" is the decree which the Court eventually makes absolute, and the order absolute relates back to the decree " nisi," and renders any act done in the interval inoperative. Anything so done, therefore, by the husband or his assignee will not have the effect of reducing the wife's choses in action into possession (c) ; and although the wife, after a decree for the dissolution of the marriage, does not obtain possession of her " choses in action," her executors will be entitled thereto, and not the husband (d). So a married woman who has obtained a protection order under 20 & 21 Vict. c. 85, s. 21 ; 21 & 22 Vict. c. 108, s. 8 ; 41 Vict. c. 19, s. 4, in consequence of her husband's desertion, will become absolutely entitled to her choses in action not reduced into possession (e). If the chose in action either is originally, or becomes, an interest presently attainable, it may be reduced into possession by actual payment to the husband or his assignees : and the wife's right by survivorship and her equity to a settlement may, unless she has taken steps to insist upon it (/), be thereby defeated (g). Joint Tenancy. — The effect of marriage on property in which a woman has an interest as joint tenant depends lapon whether the marriage divests the property in the wife and vests it in the husband. If it does, then the joint tenancy is severed. But where some novus actus inferveniens on the part of the husband is required, i.e., an assignment of the wife's chattels real, or the reduc- (a) Jolinson v. Lander, 7 Eq. 228. D. 3.59. {b) Wells V. Malbon, 31 B. 48 ; {d) Wilkinson v. Gibson, 4 Eq, 162. Prole V. Soady, 3 Ch. 220; Heath v. (e) Be Coward, &c., 20 Eq. 179; Le'wis, 4 Gif. 665; Swift v. Wenman, Nicholson v. Drury, &c., Co., 7 C. D. 10 Eq. 15 ; Seaton v. Seaton, 13 App. 48 ; Be Emery's T., 32 W. E. 357 ; Cas. 61, supra, p. 162; Jessop v. Ewart v. Chubb, 20 Eq. 454. Blake, 3 Gif. 639 ; Fitzgerald v. Chap- (/) Greedy v. Lavender, 13 B. 62. man, 1 C. D. 563. {g) Cunningham v. Antrobus, 16 Si. (c) Prole V. Soady, 3 Ch. 220 ; 436 ; AUday v. Fletcher, 1 De G. »& J. explained in Norman v. Villars, 2 Ex. 82. ASSIGNiMENT OF WIPES CHOSES IX ACTION. 1G7 Hornsby v. Lee. tion into possession of her choses in action, in neither of these cases does marriage act as a severance. If, therefore, in such cases the wife dies before the husband has assigned the chattel real or reduced the chose in action into possession, the other joint tenants will take by survivorship (a). Stop Order. — As to the form of the stop order on the assignment of a wife's reversionary chose in action see cases cited below (b). Domicil. — Where a married woman, domiciled abroad, is entitled to reversionary interests in personalty, her rights or powers over such interests, or those of her husband, will be regulated by the law of their domicil (c). 20 & 21 Vict. c. 57 (Malins' Act). — This Act enables married women, in certain cases, to dispose of reversionary interests in personal estate in the same manner as they can now dispose of their real estates. S. 1, " After the 31st day of December, 1857, it shall be law- ful for every married woman by deed to dispose of every future or reversionary interest, whether vested or contingent, of such married woman, or her husband in her right, in any personal estate whatsoever to which she shall be entitled under any instrument made after the said 31st day of December, 1857 (except such a settlement as after mentioned), and also to release or extinguish any power which may be vested in or limited or reserved to her in regard to any such personal estate, as fully and effectually as she could do if she were a feme sole, and also to release and extinguish her right or equity to a settlement out of any personal estate to which she, or her husband in her right, may be entitled in possession under any such instrument as aforesaid, save and except that no such disposi- tion, release, or extinguishment shall be valid unless the husband concur in the deed by which the same shall be effected, nor unless the deed be acknowledged by her as hereinafter directed : Provided always, that nothing herein contained shall extend to any rever- (a) See judgment of Boiven, L.J., (6) Moreau r. PoUoy, 1 De G. & Sm. in Be Butler's T., 38 C. D. 286; 143; and R. S. C. (1«S3), 0. 46, rr. 12, Baillie v. Treherne, 17 CD. 388, 13 ; Annual Practice, 1896, p. 866. disapproved; ^e Barton's "Will, 10 Ha. (c) Guepratte v. Young, 4 De G. & 12. S. 217 ; Duncan v. Cannan, 18 B. 128. 168 ASSIGNMENT. Hornsby v. Lee. sionary interest to which she shall become entitled by virtue of any deed, will, or instrument by which she shall be restrained from alienating or affecting the same." " In any personal estate " (a). — These words include a life assurance effected by a woman before her marriage (b). " Any instrument made after," &c. — Where a married woman takes a reversionary interest under an appointment executed after the 31st day of December, 1857, and made in pursuance of a power contained in an instrument dated before that day, she will not, under this Act, be able to dispose of such revei^sionary interest as if she had become entitled to it under an instrument made after the 31st day of December, 1857 (c). Effect of assignment hereunder. — An assignment, when duly made under this statute, passes and transfers personal property to which a married woman is entitled in reversion, discharged from the right of her husband, or anyone claiming under him, although he concurs in the assignment, as effectually as if she were a feme sole. In Re Batchelor (d), a married Avoman, whose husband was indebted to a testator, having become entitled under his Avill to a legacy in reversion, not limited to her separate use, joined with her husband in assigning it for value by deed duly executed and acknowledged by her under this Act. On the reversion falling in, the executors claimed to be entitled to retain the amount of the debt out of the legacy. Selhome, C, held that there was no right of retainer, and that the assignee for value was entitled to be paid in full. S. 2. " Every deed to be executed in " England or Wales () See now as to costs, the Partition (c) See Toth. tit. " Partition." Act, 1868, s. 10, and cases cited post, PARTITION. 19' Agar V. Fairfax. vet societate nemo co'inpellltur invitiis detineri{a). Upon the abolition of the writ of partition (6), equity acquired exclusive juris- diction in cases of partition, and by s. 34, sub-s. 3, of the Supreme Court of Judicature Act, 1873, all causes and matters for the parti- tion and sale of real estates are assigned to the Chancery Division of the High Court of Justice. But the statutes of Henry VIII. still provide for a partition being made between tenants in common, and recognise the right of the parties to it, although the common law writ was abolished as above stated (c). 2. When, and of what Property Partition may be ordered. Difficulty of Partition, — The inconvenience or difficulty in making a partition has been held to be no objection to a decree (f/). The absurdities to which this state of the law led, plainly pointed out the propriety of conferring upon the Courts, as has since been done, power in certain cases to order a sale instead of a partition of lands held in joint ownership. In the well-iaiown case of Turner v. Morgan (e), there was a decree for a partition of a single house, and Sir Samuel Romilly in his argument mentions the case of one Benson, an attorney at Cockerraouth, where the partition was actually carried into effect by building up a wall in the middle of a house (/). In Mayfair Property Co. v. Johnston (g), a garden wall was ordered to be partitioned, by dividing it longitudinally, and mutual conveyances were directed. Neither party in this case seems to have desired a sale {h). But it has never been considered necessary that every house on an estate should be divided, if a sufficient part of the whole could be allotted to each ; and in making a division the Court would take the convenience of the parties into consideration (i). Overriding Trust. — Where there are active trusts to be performed which may for some purpose require, in order that the testator's intention should be carried into effect, that the property should remain as an entirety in the trustees, no judgment for partition or sale can be made(/^). For instance, where powers are given of working quarries (a) Cod. Lib. 3, tit. 37, 1. 5 ; Story (/) See the note, ante, p. 190. Eq. Jur. (1892), p. 426. (•) Baring v. Nasb, 1 V. & B. 551. Kempston, 4 Ii-. Eep. Eq. 306 ; Ward v. (0 Ames v. Comyns, 16 W. E. 74. PARTITION. 199 Agar V. Fairfax. parties from executing it by any act amounting to waste (a) ; or where the Court could not protect one of the tenants in common from a breach of covenant, which might be committed by the other (b) ; and it seems, if the lessor had reserved to himself powers against his lessee, such as of entry, to work minerals, or cut timber, the Court would not have thought the case within the statute (c), so as to decree partition to the termor in his absence {d). Partition has also been decreed of a manor (e) ; of an advowson (/) ; of tithes (g) ; of rent charges (h) ; and see (n.) " Difficulty of Parti- tion," p. 197. 3. Who may Claim Partition. Legal or Equitable Possession Necessary. — A person can only compel partition if entitled in possession (i), or entitled to call for the legal possession (k), or if entitled, subject to a mortgage, of the whole (I). Such an action does not lie at the suit of a reversioner or remainder- man (m), and a person seeking partition of leaseholds must obtain probate before relief can be granted (n). Coparceners Joint Tenants, &c. — Coparceners only, had at common law a right to compel partition (o), but by the Statute of Partition (p), joint-tenants and tenants in common of any estate of inheritance in their own right, or in right of their wives, might be compelled to make partition between them, and by 32 Hen. 8, c. 32, s. 1, joint- tenants and tenants in common for lives or years are declared com- pellable to make partition in the same way, and an infant tenant in common or joint-tenant may commence an action for partition (g). Tenants for Life and Years. — Subject to the power conferred (a) North v. Guinan, Beat. 3-12. {h) Eivis v. Watson, o M. & W. 255. {h) lb. (j) Co. Lit. p. 167 a; Evans r. Bag- (c) 32 Hen. 8, c. 32. shaw, 8 Eq. 469. (d) lb. {k) Taylor v. Grange, 13 C. D. 226; (e) Sparrow v. Friend, Dick. 348 ; 15 C. D. 168, and cf. Cartwi-igbt v. llanbmy v. Hussey, 14 B. 152 ; Ley Pulteney, 2 Atk. 380. V. Cox, lb. 157; Cattley v. Arnold, 4 {I) Waite i-. Bingley, &c., 21 C. D. Kay & J. 595. 674, cited infra, p. 200. (/) Bodicoate v. Steer, 1 Dick. 69 ; (w) Evans v. Bagshaw, sujira. Matthews v. Bishop of Bath, &c., 2 [n] Pinney v. Hunt, 6 C. D. 98. Dick. 652 ; Seymour v. Bennett, 2 Atk. (o) Co. Lit. 169 a. 483; Johnstone v. Baber, 6 De G. M. (jj) 31 Hen. 8, c. 1. & G. 439; Young v. Y., 13 Eq. 174. (. 451 ; (c) Under E. S. C, 1883, O. 25, r. 4. Simpson v. Denny, 10 C. D. 28 ; E. {d) Fall V. Elkins, 9 W. E. 861 ; S. C, 1883, O. 16, r. 8. Davies v. D., 6 Jm-. (N. S.) 1320 ; cf. (0 Infra, p. 218. Eobinson v. Aston, 9 Jur. 224; lie (A-) Ilixon i-. Eastwood, W. N. (1868), Hawkesworth, L. E. Ii-. 1 Eq. 179. p. 13; Poole v. P., W. N. (1885), p. (e) Miller v. Warmington, 1 J. & 15. See " Eights of Tliii'd Parties," p. W. 493. 204. (/) Cornish v. Gest, 2 Cox, 27. {I) Parker v. Gerard, Amb. 236 ; {(j) Swan V. S., 8 Price, 518; Clarke Jopo v. Morshead, 6 B. 213. 202 BOUNDARIES AND PARTITION. Agar V. Fairfax. may be alleged generally (a). The rule now, except in simple cases, is to send a reference as to the title to Chambers (6), and also inquiries as to who are the persons interested, and for what estates and interests, and whether they are parties to the action, &c. (c). It seems, however, that a defendant in a partition suit was not entitled of right as against a co-defendant to an inquiry as to title (d). The uncertainty, therefore, of what are the shares of the different parties, is an objection, not to partition altogether, but to partition until such shares have been ascertained. If the property is very small and the case simple, an immediate sale may be ordered on evidence showing the persons interested (e). 4. Mode in which Partition is Effected. It is not the ordinary practice to issue a commission for the purpose of making a partition, as a partition can now be made more satisfactorily and much more cheaply by a Judge, in Chambers where inquiries are necessary, or at the hearing (/). Commission. — Where commissioners are appointed for a partition the procedure is by summons (g). The duties of commissioners in making their allotment are well set forth by Kindersley, V.-C, in Canning v. G. (h). Judgment in Partition Actions (see p. 214). — Subject to the Partition Acts, a tenant in common, &c., is still entitled to an actual partition of the property held in common (i). In a j udgment for par- tition the equitable rights of all the parties interested in the estate will be adjusted (k). Thus, although in point of law a defendant to a bill for partition might not have a lien on the premises for money expended in buildings and improvements, plaintiffs have not been allowed to (a) Cartwright v. Pulteney, 2 Atk. (/) See the Forms of Judgment for 380. Partition, Seton (1893), p. 1533. (ft) Hawkins v. Herbert, 37 W. E. Oj) See Howard v. Barnwell, 2 N. 300; Wood v. Gregory, infra; cf. Be H. 414; Seton, 1 ed., 189; Dan., 6 ed., Stedman, 58 L. T. 709. p. 1336 ; Seton, 5 ed., 1561— 15G8. (c) See Seton (1893), p. 1533. {h) 2 Drew. 436 ; and see Watson v. {d) Backhouse 2-. Paddon, 14 W. R. Northumberland, 11 V. 153; Corbet 273; and see note, " Disputed legal v. Davenant, 2 Bro. Ch. 252 ; Clarendon title," supra, p. 198. v. Hornby, 1 P. W. 446. (e) Wood V. Gregory, 43 C. D. 82 ; (i) Mayfair Property Co. v. John- Ee Stedman, supra; Goodacre r. G., ston, (1894) 1 Ch. 508. W. N. (1888) 138. (A-) Story v. Johnson, 2 Y. & C. 586. PARTITION. 203 Agar V. Fairfax. take advantage of that expenditure without making an allowance : the Court, therefore, has refused to interfere but on such terms, and has ordered a reference to take an account of what has been expended necessarily, or with the concurrence of the plaintiff («). And where one joint owner appears to have received more than his share of the rents and profits of the estate, the Court has directed an account (6), or where he had been in possession, he has been charged an occupation rent (c). A tenant in common, however, occupying the premises, but admitting some co-tenants, and not excluding any, has been held not so chargeable (d), but he has been held to be chargeable if he excluded the others (e). However, unless a tenant in common in possession submits to be charged with an occupation rent, he will not be entitled to any account of substantial repairs and lasting improve- ments on any part of the property (/). In Re Jones (g) the owner of a moiety, who was also tenant for life of the whole, borrowed money on mortgage, which was with other moneys spent in permanent improvements of the property. In an action for partition after her death it was held, that the present value of the improvements, not exceeding the sum originally borrowed, must be borne rateably by the owners of both moieties. A sum due in respect of occupation rent may be charged upon the particular share on further consideration (/i). The judgment may also direct that a sum be paid to one or the other of the parties for equality of partition (i). And now in an action for partition, where one of the co-owners is in occupation, though not in exclusive occupation, of the property, the Court has jurisdiction under the Judicature Act, 1873, s, 25, subs. 8, to appoint a receiver until the hearing, unless such co-owner elects to pay an occupation rent (k). A mill may be divided by giving to the parties every other toll- (a) Swan v. S., 8 Price, 518, doubted (e) Pascoe v. Swan, 27 B. 508. hj Pearson, J., inLeshe v.Ij., 23 CD. (/) Teasdale v. Sanderson, 33 B. p. 564; Leigh, v. Dickeson, 15 Q,. B. 534; explained by Xorth, J., in Be D. 61, approved by North, J., in Re Jones, infra. Jones, (1893) 2 Ch., p. 478. (,: King, 49 L. T. 92. Lys V. L., 7 Eq. 126, 128; Porter i'. {y) Williams r. Games, Pitt i'. Jones, Lopes, 7 C. D. 358; Fleming v. infra; and see Partition Act, 1878, s. 6^ Crouch, W. N. (1884) 111. infra. (d) Pemberton v. Barnes, supra. PARTITION. 209 Agar V. Fairfax. "Shall unless * * good reason to the contrary direct a Sale." — That is, shall direct a sale, irrespective of the nature of the property, irrespective of the number of persons, irrespective of absence or disability, irrespective of any special circumstances which make the Court think it beneficial. The parties interested to the extent of one moiety are entitled to a sale as of right, unless there is some good reason to the contrary shown ; they have not to show any reason for the sale, but a reason to the contrary must be shown {a). The fact that the owner of one moiety of an estate is yearly tenant of the whole property, and occupies it for commercial purposes, and also resides thereon, is no sufficient reason why a sale of the property should not be decreed hereunder (6). The fact, moreover, that the income of an infant defendant, interested in a moiety of the property in question, might be materially diminished by tlie Court directing a sale, is not a sufficient reason within the meaning of the section, against the Court directing a sale when asked for by the owner of the other moiety (c). In a case in Ireland it has been laid down that the only " good reason to the contrary" is to show affirmatively that there is no diffi- culty in making an actual partition (d). See further as to " good reason," Pemberton v. Barnes (e), and Saxton v. Bartley (/). S. 5. " In a suit for partition, where, if this Act had not been passed, a decree for partition might have been made, then, if any party in- terested in the property to which the suit relates, requests the Court to direct a sale of the property and a distribution of the proceeds instead of a division of the property between or among the parties interested, the Court may, if it thinks fit, unless the other parties interested in the property, or some of them, undertake to purchase the share of the party requesting a sale, direct a sale of the property and give all necessary or proper consequential directions; and in case of such under- taking being given, the Court may order a valuation of the share of the party requesting a sale, in such manner as the Court thinks fit, and may give all necessary or proper consequential directions." (a) Per JesseJ, M.E., in Drinkwater 32, 25 W. E. p 269 ; but see Lang- /'. Eadcliffe, 20 Eq. oSO ; Pitt v. Jones, mead v. Cockerton, 2o W. E. 315 ; Por- 5 App. Cas. 661. ter v. Lopes, Fleming t: Crouch, supra. (6) Wilkinson '•. Joberns, 16 Eq. (cZ) ^eLangdale's Estate, 5 Ir.E.Eq. 14 ; Eoughton r. Gibson, W. N. (1877) 572 ; Re Whitwell, 19 L. E. Ir. 45. (V.-C. B.), p. 32. (e) 6 Ch. 693. (c) Eowe V. Gray, 5 C. D. 263; (/) 48 L. J. Ch. 519. Eoughton r. Gibson. 36 L. T. 93, p. W, & T. — VOL. I. 14 210 BOUNDARIES AND PARTITION. Agar V. Fairfax. "May * * unless the other Parties * * undertake."— It is clear that the 5th section was intended for the benefit of part-owners who desire a sale ; in which case the other parties interested who object to a sale may be compelled to buy the shares or have a sale, but there is nothing to compel a man to sell his shares at a valua- tion («). The construction to be put upon the 5th section has been well explained by Jessel, M.K, in Drinkwater v. Raddiffe (b). " The 5th section," says his Lordship, " provides that, if any party interested in the property requests the Court to direct a sale of the property instead of a division, the Court may, if it thinks fit (this is discre- tionary), unless the other parties interested in the property undertake to purchase, give all necessary and proper directions for such sale. What does that mean ? Under the 4th, where the parties requesting a sale have got more than a moiety, you do not want that ; it conse- quently applies to the case of the owners of less than a moiety making the request. Now that case is provided for by the ord section ; in every possible case where the Court thinks a sale is proper and for the benefit of the parties interested. Therefore the oth must apply to a case where the Court sees no reason for pre- ferring a sale to a partition. That case is not provided for by the Srd, nor is it provided for by the 4th section. Where the Court sees no reason at all, still any party interested may apply ; and then there is a limit imposed, and the limit is this, that the Court shall not exercise the new power given by the 5th section, which depends entirely upon the caprice of the party asking, without any opinion of the Court being expressed, if other people will buy. That is a check upon the new power — not, as it has been supposed to be, a limitation of the 3rd and 4th sections (c) ; but it is a new power given to any party, whether plaintiff or defendant, to apply with or without any reason whatever, to the Court for a sale, and he is entitled to ask for it unless somebody is going to buy ; and then Williams v. Games says that if he does apply for it and somebody else does offer to buy his share, he may withdraw his request. That is my view of the law." This section does not qualify or control section 3, but is an inde- pendent clause giving an entirely new power (d). A party asking for a sale cannot be compelled to part with his share at a valuation, and the Court cannot order a sale if an undertaking be offered (e). The (a) WilHams v. Games, 10 Ch. 204. ('/) Pitt v. Jones, 5 App. Cas. 659. {b) 20 Eq. 531. (0 Il^ic^- (c) See Pitt v. Jones, infra. PARTITION. 211 Agar V. Fairfax. undertaking to purchase ought to be given at the hearing (a), and may now be given, as in the case of a request for sale, by a party under disability (b). The onus of showing some good reason for ordering a sale hereunder is on the applicant (c), and the Court is not bound to order a sale hereunder, even if none of the persons interested undertake to purchase (d). S. 6. " On any sale under this Act, the Court may, if it thinks fit, allow any of the parties interested in the property to bid at the sale, on such terms as to non-payment of deposit, or as to setting-off or accounting for the purchase-money, or any part thereof, instead of paying the same, or as to any other matters, as to the Court seem reasonable." " The Court may." — Although as a general rule parties having the conduct of a sale are not allowed under the 6th section to bid (e), the Court, nevertheless, has, under peculiar circumstances, allowed this to be done(/). In another case on an order for sale, liberty was given to either party to bid, some third party in Chambers to have the conduct of the sale (g). A defendant, moreover, the owner of a moiety, was allowed to bid, upon the terms, in the event of his becoming a purchaser, of paying into Court one moiety only of the purchase-money (h). S. 7. "Section 30 of the Trustee Act, 1850, shall extend and apply to cases, where in suits for partition the Court directs a sale instead of a division of the property." *' Trustee Act." — The object of the Legislature in passing this section was to transfer the legal estate, because, independently of s. 30 of the Trustee Act, 1850, wherever the Court had jurisdiction to make a decree for sale, such decree bound in equity the interests of all persons not in existence, and who could not be made parties tu the suit (i). Section 1 of the Trustee Act, 1882, repealed by the Trustee Act, (a) Drinkwater v. Eadcliffe, 20 Eq. (g) Eoughton v. Gibson, iufra. S28, 532. (A) Wilkinson v. Joberns, 16 Eq. {b) Partition Act, 1868, s. 3, supra, 14, 18; cf. Eoughton r. Gibson, 25 "\V. p. 206; Partition Act, 1876, s. 6, p. 220. E. 269. (c) Eichardson v. Peary, 39 C. D. (v) Basnett r. Moxon, 20 Eq. 182, 45. 184 ; Stanley v. Wrigley, 3 Sm. & G. ('0 Ibid. 18 ; Lees v. Coulton, 20 Eq. 20. As to (e) Gilbert v. Smith, 11 C. D. p. 82. the present practice with regard to (/) Pennington I'. Dalbiac, 18 W.E. infants, see Mellor /■. Porter, p. 205. 684 ; not followed in Verrall v. Cath- supra ; and as to lunatics, see p. 200, cart, 27 W. E. 645. suj^ra. 14 2 212 BOUNDARIES AND PARTITION. Agar V. Fairfax. 1893, was held to apply to sales hereunder {a), but see s. 30 of the Trustee Act, 1893. Where the shares of parties to a partition suit were very minute and complicated, the Court declared each of the parties trustees as to the shares allotted to the other of them, and vested the whole in a single trustee with directions to convey to each of the parties their allotted shares (6). S. 8. " Sections 23 to 25 (both inclusive) of the Act of the session of the 19th and 20th years of her Majesty's reign (c), 'to facilitate the leases and sales of settled estates,' shall extend and apply to money to be received on any sale effected under the authority of this Act." Sale out of Court. — Under this section the Court has power to order a sale out of Court and payment of the proceeds to trustees {d). In Strugnell v. S. (e) it was held that where some of the parties interested are not sui juris and the trustees have no power of sale there is no jurisdiction hereunder to order a sale out of Court (/). This section applies to dealings with all estates, whether settled or not (g). The Settled Estates Act, 1856, was repealed by the Settled Estates Act, 1877, sections 34 to 36 of which correspond to sections 23 to 25 of the repealed Act. Conversion.— A judgment for sale in a partition action properly made converts the shares of parties not under disability who die before the sale takes place (h), and the conversion takes place from the date of the judgment, and before sale (i). And where either a married woman or an infant properly requests a sale under section 6 of the Partition Act, 1876 (k), conversion will take place (l) ; so where a married woman has elected to treat the property as converted (m) ; and the share of a married woman who (a) Beckett v. Sutton, 19 C. D. 646. Aston v. Meredith, 13 Eq. 492. {h) Shepherd r. ChurchUl, 23 B. 21 ; {g) Re Barker, 17 C. D. 244. Orger v. Sparke, 9 W. E. 180. (A) Steed r. Preece, IS Eq. 192; (c) Ch. 120. Arnold V. Dixon, 19 Eq. 113. (ri) Hayward v. Smith, 20 L. T. E. (») Hyett v. Mekin, 25 C. D. 735, 70 ; Chubb v. Pettipher, W. N. (1872) where the cases are considered, p. 110, not followed in Baker v. B.; (A-) Infra, p. 218. see Strugnell r. S., 28 C. D. 259. (0 Wallace v. Greenwood, 16 C. D. (e) 28 C. D. 259. 362 ; Hyett v. Mekin. supra. (/) And see Re Harvey's S. E., 21 C. (m) Fowler v. Scott, 19 W. E. 972. D. 123; Higgs v. Dorkis, 13 Eq. 280; PARTITION. 213 Agar V. Fairfax. elects to treat it as personalty may, with her consent, be paid to her husband (a), and where the fund was under 2001., it was paid to her on her separate receipt, without separate examination, on an affidavit of no settlement (b). Where, however, real estate is sold under a judgment on a partition action in the case of ^3e7'6'07i.s' under disahilify, an equity for recon- version arises by force of this section ; this equity is applicable in the case of the share of an infant (c), or a married Avoman who has done nothing to affect her equity (d), and also in the case of the share of a person of unsound mind (e) ; and upon their deaths, their shares will be treated as realty (/). But if the sale is made at the request of a person duly authorized to make such request on behalf of the person under disability under the 6th section of the Partition Act, 1876 (infra, p. 220), the conversion is complete (g). If a person sui juris becomes entitled as heir-at-law to the share of an infant in lands sold hereunder, he takes it as personal estate (It). S. 9. " Any person who, if this Act had not been passed, might have maintained a suit for partition, may maintain such suit against any one or more of the parties interested, without serving the other or others (if any) of those parties ; and it shall not be competent to any defendant in the suit to object for want of parties ; and at the hearing of the cause, the Court may direct such inquiries as to the nature of the property, and the persons interested therein, and other matters as it thinks necessary or proper, with a view to an order for partition or sale being made on further consideration ; but all persons who, if this Act had not been passed, would have been necessary parties to the suit, shall be served with notice of the decree or order on the hearing, and after such notice shall be bound by the proceed- ings, as if they had been originally parties to the suit, and shall be deemed parties to the suit ; and all such persons may have liberty to attend the proceedings ; and any such person may, within a time (a) Standering r. IlaU, 11 C. D. 843; lie Barker, 17 C. D. 241; Be 652; lie Robins, 27 W. R. 705. Pares, 12 C. D. 333; A.-G. v. Ailes- {b) Wallace /'. Greenwood, 16 C. D. bury, 14 Q. B. D. p. 901 ; ^ePickard, 362 ; cf. Topham r. Burgoyne, 41 L. 53 L. T. 293. T. 670. The limit is now 500?., Seton (/) Howard /•. Julland, AVcb. (1891) (1893),p.7S9; iZeMorton,W.N.(74)181. 210. (c) Foster *;. F., 1 C. D. 588. {g) Wallace v. Greenwood, 16 C. D. {d) Mildmay v. Quicke,6 C. D. 553; 362. Jit Lloyd, 9 P. D. do. {h) Mordaunt r. Benwell, 19 C. D. (e) Giimwood r. Bartels, 25 W. R. 302. 214 BOUNDARIES AND PARTITION. Agar V. Fairfax. limited by general orders, apply to the Court to add to the decree or order." " Parties, &c." — As to parties to partition actions see supra (a). " Shall be served." — A sale cannot be ordered until all parties are before the Court (6), or have been served with notice of the judg- ment (c), or unless such service has been dispensed with (d), or unless they are sufficiently represented by their trustees (e), or unless death is presumed (/). Judgments and Orders (see p. 202). — If all persons interested are par- ties, and the title is proved at the hearing, a judgment for sale may be then given (g). Where the defendants admit the title, an order may be made directing the usual inquiries as to the persons interested in the property (h) ; and in Ripley v. Sawyer {i) such inquiries were held to be sufficient protection to infants. Or an order for sale may be made conditional on the persons interested being certified as being parties to the action (/v). The general rule is, however, to send a reference as to title to Chambers (I). Where all the parties are not before the Court, a sale can only be ordered at the hearing on further consideration (-ni), or on certificate as above mentioned. Inquiries may be directed in a District Registry, but the application for sale should be to the Judge to whom the action is assigned {n). When in a partition suit a decree is made for sale dependent upon its being found under inquiries thereby directed that it would be (a) Note "Parties," p. 201. (6) Mildmay v. Quicke, 20 Eq. 537 Dodd V. Gronow, IT W. E. 511. (c) See E. S. C. 1883, Order 16, r. 40. {d) See Partition Act, 1876, s. 3 infra; E. S. C. 1883, O. bo, rr. 35 35a ; Phillips v. Andrews, 56 L. T. 108 (e) See Goodricli v. Marsh, W. N (1878) 186 ; E. S. C. 1883, 0. 16, r. 8 Stace V. Gage, 8 C. D. 451. (/) Jackson?'. Lomas, 23"W. E. 744 Eawlinson v. MiUer, 1 C. D. 52. ((/) Mildmay r. Quicke, 20 Eq. 538 Lees V. Coulton, 20 Eq. 20 ; PoweU v. P., 10 Ch. 130; Eawlinson r. MiUer, 1 C. D. 52 ; Gilbert v. Smith, 2 0. D. 686; BumeU v. B., 11 C. D. 213; Dodds I'. Gronow, 17 W. E. 511; Re Stedman, 58 L. T. 709 ; Wood r. Gre- gory, 43 C. D. 82; Hawkins w. Herbert, 60 L. T. 142. {h) Gilbert v. Smith, 2 C. D. 686. (?) 31 C. D. 494; cf. WiUis v. W., 38 W. E. 7. (/r) Senior i\ Hereford, 4 C. D. 495 ; Scott V. Watson, Seton (1893), p. 1533; cf. Sykes v. Scholfield, 14 0. D. 629. (Z) Hawkins v. Herbert, supra. (m) Mildmay v. Quicke, supra. (») Sykes v. Scholfield, 14 C. D. 629. PARTITION. 215 Agar V. Fairfax. more beneficial than a partition, and that all parties entitled were parties to the suit, if a sale takes place before the certificate is made, the purchaser is entitled to be discharged, although a certificate may be afterwards made, fiinding that the proper parties are before the Court, and that a sale is beneficial (ct). But where all the parties interested are in fact before the Court at the hearing, and are willing to conve}', and a good title can be made independently of the Partition Act, 1868, the purchaser is bound to accept such title, and cannot rely upon a technical informality in the decree (6). The Court in ordering a sale at the request of the parties to the action, will not in the absence of the other parties interested, preface the judgment order for sale with an expression of its opinion that a sale is more beneficial than a partition (c). " On further consideration." — These words are to be taken in a popular sense as referring to any consideration the cause receives after the inquiries have been made {d). And in a judgment on a trial of a partition action, an inquiry as to incumbrances may be directed, as that would assist in clearing the title (\ Jarvis, 50 L. T. 48. PARTITION. 221 Agar V. Fairfax. request of an infant may be by his guardian ad litem {a). Persons of unsound mind and lunatics may bring an action for partition by their next friend (b). S. 7. " For the purposes of the Partition Act, 18G8, and of this Act, an action for partition shall include an action for sale and distribution of the proceeds, and in an action for partition it shall be sufficient to claim a sale and distribution of the proceeds, and it shall not be necessary to claim a partition." 6. Other Jurisdiction in Partition. Inclosure Acts. — With regard to the jurisdiction of the Inclosure Commissioners, now the Board of Agriculture, as to partition see below (c). Incum"bered Estates Act, Ireland. — By this Act, power was given to the commissioners to make partition {d). Settled Land Act. — As to the power of a tenant for life to concur in making partition of lands see below (e). Dower. — Upon the same principle as in cases of partition, although dower was originally a mere legal demand, a widow being a joint owner became entitled in equity to an assignment of one-third of the lands of which her husband Avas seised in fee or in tail, which her issue might by possibility have inherited, as her dower. The difficulty of proceeding at law, together, probably, with the necessity of obtaining a discovery from the heir, devisees, or trustees, gave equity a con- current jurisdiction with the old Courts of law, which, it seems, would have been exercised without its being shown whether such difficulty actually existed or not. (a) Rimington v. Hartley, 14 C. D. s. 5 ; 20 & 21 Yict. c. 31, ss. 7 — 11; 630; cf. Howard r. Jalland, W. N. 22 & 23 Vict. c. 43, ss. 10, 11 ; 39 & (1891)210; Seton (1893), p. 1543. 40 Vict. c. 56, s. 33; the Board of {h) Porter v. P., 37 C. D. 420, supra. Agi-iculture Act, 1889 ; Chitty's As to lunatics, see Lunacy Act, 1890, Statutes (Leiy), title "Inclosure"; s. 120 (b). Seton (1893), p. 1570; and cf. Jacomb (c) See 8 & 9 Vict. c. 118, ss. 90, 91 ; v. Turner, (1S92) 1 Q. B. 47. 11 & 12 Vict. c. 99, ss. 13, 14 ; 12 & 13 {d) Br Wilkhis, 4 Ir. Ch. E. 575. Vict. c. 83, ss. 7, 11; 15 & 16 Vict. (e) See the Settled Land Act, 1882, c. 79, ss. 31, 32 ; 17 & 18 Vict. c. 97, ss. 3, 4, 31, 45. 222 BOUNDARIES AND PARTITION. Agar V. Fairfax. For an able exposition of the law of dower, see the judgment of Alvanley, M.R., in the leading case of Curtis v. C. (a). Widows, before the Dower Act (h), were only dowable out of legal estates ; but by that Act every woman married after the 1st Jan., 1834, is dowable out of her husband's equitable estates of inheritance. The Act, however, has put her right to dower entirely in the hands of her husband, who may defeat it wholly or partly. Formerly, if the widow's right to dower were disputed, an issue was directed (c) ; or the bill retained for a certain time, with liberty to the widow to bring a Avrit of dower (d). But a writ may now be indorsed with a claim for dower (e). The right being established, and the property out of which the widow is dowable being ascertained, the next step is to ascertain tlie dower; and this may be done either by a reference (/), or by directing a commission to issue, which is made out, executed, and returned in the same manner as a commission of partition (g). As a general rule, on a bill to assign dower, no costs were given on either side (li). But if the defendant added another case, as by disputing the title of the widow, denying the marriage, or the seisin of the husband, or set up any other ground of defence in which he failed, he might be liable to pay the costs of the suit occasioned by that unsuccessful defence (i). (a) 2 Bro. Ch. 620 ; and see Mundy V. M., 2 V. jun. 122 ; Pulteney v. Warren, 6 Y. 89; Strickland y. S., 6 B. 77, 81. (&) 3 & 4 Will. 4, c. 105 ; Shelford, E. P. Statutes (1S93), p. 339. (c) Mundy r. M., 2 V. jun. 122 ; see also E. S. 0. Order 33, r. 1, and notes Annual Practice (1895), p. 659. {d) Curtis V. C, 2 Bro. Ch. 620 ; D'Arcy v. Blake, 2 Scii. & L. 390. (e) E. S. C. 1883, App. A, Pt. 3, s. 4. (/) Goodenough v. G., 2 Dick. 795; Seton (1893), Form 1, p. 805. {g) WUd V. WeUs, 1 Dick. 3 ; Hud- dlestone v. H., 1 Ch. Eep. 38 ; Lucas V. Calcraft, 1 Bro. Ch. 133, 2 Dick. 594 ; Mundy v. M., 2 V. jun. 125, 4 Bro. Ch. 294; Seton (1893), Form 2, p. 806 ; E. S. C. 1883. App. K, 36 ; App. J, 13. (A) Lucas v. Calcraft, Mundy i". M., supra. (0 Bamford v. B., 5 Ha. 205; Fry V. Noble, 20 B. 598, 606 ; Harris >\ H., 11 W. E. (M.E.) 62 ; Williams v. Gwj^n, 2 Wms. Saund. 45 (n.); and see further Seton (1893), p. 807. 223 COMPROMISES. STAPILTON V. STAPILTON. 1739. 1 Atk. 2. Compromise — Family Arrangement. An agreement entered into upon a supposition of a right, or of a doubtful right, though it after comes out that the right was on the other side, shall be binding, and the right shall not prevail against the agreement of the parties ; for the right must always be on one side or the other ; and, therefore, the compromise of a doubtful right is a sufficient foundation of an agreement. Where agreements are entered into to save the honour of a family, and are reasonable ones, a Court of equity will, if possible, decree a performance of them. By a deed, dated on the 21st of August, 1661, Philip Stapilton was tenant of the premises in question, for ninety-nine years, if be so long live, remainder to trustees to preserve contingent remainders, re- mainder to his first and other sons in tail male, remainder to his right lieirs. Philip having two sons, Henry and Philip, they, by deeds of lease and release, the 9th and 10th of September, 1724, reciting, that, for settling and perpetuating all manors, &c., in the name and blood of the Stapiltons, and for making provision for his two sons, &c., for preventing disputes and controversies that might possibly arise between the said two sons, or any other person claiming an interest in all or any of the estates thereinafter mentioned, and for barring all estates tail, and for answering all and every the purpose and purposes of the parties thereto, and for and in consideration of the sum of os., did release and confirm to Thomson and Fairfax all those manors, &c. : To have and to hold to them, their heirs and assigns, to the use (as to part) of Philip the father, his heirs and assigns for ever, and as to 224 COMPROMISES. Stapilton v. Stapilton. another part, to the use of Philip the father for life, remainder to Henry the sou for life, remainder to trustees to preserve contingent remainders, remainder to his first and every other son in tail male, remainder to Philip the son for life, remainder to trustees to preserve contingent remainders, remainder to his first and other sons in tail male, remainder to the daughters of Henry in tail, remainder to the daughters of Philip the son in tail, remainder to the right heirs of Philip the father. And as to the remaining part, to the use of Philip the father for life, with like limitations in the first place to Philip the son and his issue, and then to Henry and his issue, remainder in fee to the father. There were covenants to suffer a recovery within twelve months and likewise for farther assurances. N.B. To this deed, the heir of the surviving trustee in the deed in 1661 was not a party. But, by deeds of lease and release, dated the 28th and 29th of September, 1724, to which the heir of the surviving trustee of the deed of ] 661 was a party, the father and two sons make Thomson and Fairfax tenants to the praecipe, in order to suffer a recovery for the purposes mentioned in the former deeds of the 9th and 10th of September, 1724. Before any recovery suffered, Henry died, leaving issue the plaintiff. Afterwards, by lease and release, the 12th and 13th of April, 1725, to which the heir of the surviving trustee of the deed of 1661 was a party, Philip the father and Philip the son covenant to suffer a recovery, in which Thomson and Fairfax were to be tenants to the praecipe, to the use, as to part, of Philip the father, his heirs and assigns ; and as to the other part, to the use of Philip the father for life, remainder to Philip the son in fee. In Trinity Term, 1725, a recovery was suffered, in which were the same tenant to the prsecipe, the same demandant, and the same vouchees (except Henry, who was dead), as were covenanted to be by the first deed ; it was likewise suffered within twelve months after the first deed. The father Philip Stapilton, being dead, the plaintiff, as son and heir of Henry, brought this bill to establish his title to the premises in question, and for the whole estate as tenant in tail under the old settlement, and to be let into possession, and for an account of rents FAMILY ARRANGEMENTS. 225 Stapilton v. Stapilton. received by Philip Stapilton the son, clue since the death of the plaintiff's grandfather, and to have the same applied for the plain- tiff's benefit during his infancy, and for an injunction to restrain the defendants from receiving any more rents. The defendant Philip the son, by his answer confesses the several deeds, before mentioned, but says, Henry was a bastard, and that, by virtue of the deed of 1725, and of the recovery, he was entitled to the whole estate in question. Upon an issue directed, Henry was found illegitimate, and the cause was now heard upon the equity reserved, when the counsel for the plaintiff, Avaiving the claim to the whole estate, insisted upon these two points : — Argument for the iitlaintiff. — 1st. That the recovery suffered in Trinity Term, 1725, should enure to the use of the deeds of the 9th and 10th of September, 1724, and not to the uses of the deed in 1725. 2ndly. Supposing it did not, yet that the deed of 172-i was such an agreement as this Court will carry into execution. As to the first point, it was said that the uses, when once declared, cannot be altered, unle.ss all the parties entitled to the uses join in the new declaration : and Henry did not join in the deed of 1725. ^^ * * * As to the second point : this cannot be considered as a voluntary- agreement, for Henry's legitimacy was then doubtful, and, if he had ])roved legitimate, Philip would have come into this Court to have the agreement executed, and Henry would have been bound by it. This Court has decreed the performance of agreements like this founded upon mistakes ; as in the cases of Frank v. Frank (a) and CoMn v. Cann (h). Argument for the defendant. — For the defendant it was argued, as to the first point, that Henry being dead before the recovery was suffered, the intent of the parties in the first deed could not be pursued ; for the plaintiff (supposing him legitimate) claims para- mount his father, and the deed of 1G61 ; therefore, as the recovery could not substantiate the first deed, suppo.sing him legitimate, it shall not substantiate it now he is found illegitimate * * * * (a) 1 Ch. Ca. S4. {h) 1 P. W. 723. W. & T. — VOL. I. 15 226 COMPROMISES. Stapilton v. Stapiltoii. As to the second point : take it as an agreement, this Court will not decree a performance of it ; for, supposing Henry had been found legitimate, this Court would not have decreed a performance of it against the plaintiff; so that, in regard to the defendant, it must be considered as a voluntary agreement, into which he was drawn without any valuable consideration ; and the covenant for further assuraiice will be void, as the deed itself to which it is annexed is void : and so it was determined in the case of Fursaher v. Robinson (a). Lord Chancellor Hardwicke. — The plaintiff in this case is entitled to have a decree. There was a suflficient foundation for Philip the father, and Henry and Philip, his two sons, to execute the lease and release of the 9th and 10th of September, 1724. It was to save the honour of the father and his family, and was a reason- able agreement ; and, therefore, if it is ])ossible for a court of equity to decree a 'performance of it, it ought to be done. It would be very hard for the defendant, on his side, to endeavour to set aside this agreement, and the effect of this deed. Consider the state and situation of the family at the time of making the agree- ment ; Philip had these children grow^n up, had a very considerable real estate, both his sons then owned as legitimate, their father and mother had lived together as husband and wife for many years, and at the time of this agreement were so ; there was a foresight in the father and mother that such a dispute between their two sons might hereafter arise, to their dishonour, and likewise that of the family. The foundation of this agreement, the illegitimacy of the eldest son Henry, has now been determined by a trial, and it is found that Henry was a bastard ; yet both the sons are of the same blood of the father equally, though not so in the notion of the law. If the elder son should be found illegitimate (as he now is), the father knew he would be left without any provision, if no such agree- ment was made ; and, on the other hand, if his legitimacy should be established, then Philip, the younger son, would have nothing. To prevent these disputes and ill consequences, the father brings both his sons into an agreement to make a division of his real estate. It is very plain the parties did not know who was the heir of the surviving (rt) Pr. Ch. 47o. FAMILY ARRANGEMENTS. 227 Stapilton v. Stapilton. trustee in the settlement of IGGl, at the time of the lease and release of the 9th and 10th of September, 1724 ; because they covenant a writ of entry should be sued out within twelve months, which is a very unusual time to limit to suffer a recovery, and done in order to give time to find out the heir of the surviving trustee, if they could find him out ; but he was afterwards found, and made a party to the deeds of the 28th and 29th of September, 1724. The bill is brought by the eldest son and heir of Henry, to have the benefit and possession of the whole estate, and to have an account of the rents and profits, and to be quieted in the possession, and for general relief. Upon the first hearing, an issue was directed to try whether Henry the father was legitimate, and it was found he was not : and now the plaintiff insists upon having the benefit of this agreement, whereby he is only entitled to a part ; this being the bill of an infant, he may have a decree upon any matter arising upon the state of his case, though he has not particularly mentioned and in- sisted upon it, and prayed it by his bill ; but it might be otherwise in the case of an adult person. Upon this case there arise two general questions : — First, Whether the plaintiff has any estate at law by virtue of any of the conveyances, or by the recovery ? Secondly, If he has no estate at law, or only a defeasible one, whether he is entitled to have the benefit of this agreement, and to have it carried into execution here ? The first question consists of two branches : — First, Whether the lease and release of the 9th and 10th of Sep- tember, 1724, will amount to a good declaration of the uses of the recovery, notwithstanding the subsequent deed of April, 1725 ? Secondly, If not, whether the recovery of Trinity Term, 1725, having barred the estate tail, will make good any estate which passed by the lease and release of the 9th and 10th of September, 1724 ? (Both of these questions were decided by tlic Chancellor in the affirmative, upon grounds depending upon the law of Recoveries and the Statute of Uses. So much of the judgment as relates thereto is now omitted.) * * * * It has been objected, that, if the plaintiff has any title, his remedy is at law ; but I think it is more properly here. He is an infant, and has come recently into this Court. Nor do I think 15 2 228 COMPROMISES. Stapilton v. Stapilton. this case depends entirely upon the point of law ; for I am of opinion that the plaintiff is entitled to have an execution of the agreement as a good and binding agreement in this Court. The question is, whether there was any valuable consideration on all sides for entering into this agreement ? If so, then there is a sufficient ground for coming here ; but a mere volunteer is not entitled to come here for an execution of an agreement. But here is a proper consideration, as appears in the recital of the deed of 1724. Neither is it the common case of a bastard ; for the law of England does allow of some privileges to a bastard eigne, and their parents are not punishable by the canon law for antenuptial fornication. In the case of Cann v. Cann (a), it was laid down by Lord Macclesfield, that an agreement, entered into upon a supposition of a right ih), or of a doubtful right, though it after comes out that the right was on the other side, shall be binding, and the right shall not prevail against the agreement of the parties ; for the right must always be on one side or the other ; and therefore the compromise of a doubtful right is a sufficient foundation of an agreement. Another objection has been made to this agreement, that the benefit on Henry and Philip's side was not mutual and equal. During both their lives, the benefit and obligation was mutual, and Henry would have been equally compellable to suffer a recovery with Philip. But it is said, that an alteration as to their mutual benefit has happened by the death of Henry ; and it is said, that if Henry had been legiti- mate, the plaintiff would not have been compellable to suffer a recovery, because the issue in tail is not compellable to perform the covenants of his ancestor, the tenant in tail. But here, the chance was at first equal ; and it is hard to say, that the act of God should hinder the agreement from being carried into execution ; the chance was equal, who died first, Henry or Philip ? If Henry had been legitimate, and Philip had died in Henry's life, leaving children, I am of opinion Philij^'s son would have been entitled to have come against Henry for an execution of the agreement ; and, therefore, the (a) 1 P. W. 723, 727. field, instead of "a supposition of h) Lord EhlvH in Stockley v. S., rigHt," might have been " a doubtful 1 V. & B. 31, 12 E. E., p. 189, ob- right." serves that the words of Lord MaccJes- FAMILY ARRANGEMENTS. 229 Stapilton v. Stapilton. chance was at first equal on both sides, and we are not to consider bow the event has happened. Another objection has been taken, that the father made use of his coercive power over Philip, to force him into this agreement ; and it is said equity does not favour agreements made by compulsion. But this Court always considers the reasonableness of the agreement; besides, here is no proof of compulsion by the father : if there was any compulsion, it seems rather to have been made use of against Henry, who was then esteemed his eldest son ; and, considering the consequence of setting aside this agreement, a Court of equity will be glad to lay hold of any just ground to carry it into execution, and to establish the peace of a family. His Lordship, therefore, declared, that the plaintiff is entitled to the lands and premises limited in remainder, to the first son of Henry Stapilton, his father, by the deeds of the 9th and 10th of September, 1724, according to the uses therein, and to the benefit of the covenants in those deeds, and decreed the defendant Philip to come to an account for the rents of the said premises ; and declared that Philip was entitled to hold the lands, limited by the deeds of the 9th and 10th of September, 1724, to Philip the elder for life, with remainder to the defendant for life, against the plaintiff and his heirs ; and that the defendant should make further assurance to the plaintiff of his part, and the plaintiff the like assurance to the defendant of his part, and no costs on either side. MOTES, 1. Compromises. 2. Family Arrangements, p. 242. 1. Compromises. The compromise of doubtful claims, whatever may be the actual rights of the parties, has, from the policy of preventing litigation, been generally upheld in all enlightened systems of juris- prudence. The authorities of the civil law upon the subject are collected in Barge's Coram, vol. 3, 742. So, in the law of Scotland, compromises, under the name oi transactions, are equally favoured (a). (a) Stair's Inst. tit. 7, s. 9 ; Hotcli- v. Lavallee, 11 W. E. 404, a« to the kin V. Dickson, 2 Bli. 348 ; Stewart v. old French law. S., 6 CI. & Fin. 911 ; and see Trigge 230 COMPROMISES. Stapilton v. Stapilton. With regard to our law, it is clear that if a person, after due deliberation, enter into an agreement for the purpose of compromising a claim made bond fide, to which he believed himself to be liable, and with the nature and extent of which he is fully acquainted, the compromise of such a claim is a sufficient consideration for the agree- ment, and a Court of equity, without inquiring whether he was in truth liable to the claim, will compel a specific performance (a). The Court will enforce specifically private compromises of rights, in the same way in which it will enforce other contracts (6). This supposes the existence of a concluded agreement, made between persons capable of contracting, for adequate consideration (c), with full know- ledge (d), and without pressure (e), and which might at the time it was entered into have been enforced by either of the parties against the other of them (/). The real consideration and motive of a compromise, as well in our law as in the civil law and systems derived from it, is not the sacrifice of a right but the abandonment of a claim (g). " In dealing with a compromise, always supposing it to be a thing that is Avithin the power of each party if honestly done, all that a Court of justice has to do is to ascertain that the claim or the repre- sentation on the one side is bond fide and truly made, and that on the other side the answer or defence or counterclaim is also bond fide and truly made. I mean by bona fides the truth of the parties, and above all this that the compromise is not a sham, or an instrument to accomplish or to carry into effect any ulterior or collateral purpose, but that the thing sought to be done is within the very terms of the comprom.ise — that all that the parties contemplate and desii'e to effect and to deal with is whether the claim on the one side or the defence on the other side shall be admitted or not ; or whether if both things are bond fide brought forward there may not be some concession on the one side and some concession on the other side, so (a) Attwood V. , 1 Euss. 3o3 ; (d) Pusey v. Desbouverie, 3 P. "W. PickeriBg v. P., 2 B. 56 ; Partridge v. 315 ; Smith v. Pincombe, 3 Mac. & G. Smith, 11 W. E. 714; Miles v. New 653. Zealand, &c. Co., 32 C. D. 266. (e) See Huguenin r. Baseley, and (b) Fry, Sp. Performance (1892), ch. note, supra. :, p. 695. (/) Cf. Wmiams v. W., 2 Ch. 294. (c) Cf. Naylor v. Winch, IS. & S. (g) PoUock, Contracts, 1894, p. 565; Lucy's case, 4 De G. M. & G. 180, citing Trigge v. Lavallee, 15 Moo. 356; Cook v. Wright, 1 B. & S. 559, P. C. 271, 292 ; WHby v. Elgee, L. E. 570; MHes v. New Zealand, &c. Co.. 10 C. P. 497. 32 C. D. 266. FAMILY ARRANGEMENTS. 231 Stapilton v. Stapilton. as to arrive at terms of agreement, which, if honestly made, is an honest settlement of an existing dispute. This is the characteristic of a compromise, and if it be not manifestly u^^/yc vires of the parties, it is one that a Court of Justice ought to respect and ought not to permit it to be questioned" (a). A bondjide compromise of a real claim — that is, a bond jidjC claim, not frivolous or vexatious — is good consideration, whether the claim would have been successful or not (6). If a person believes as a fact that money is due to him for instance, then his claim is honest, and the compromise of that claim will be binding and will form a good consideration, although, if prosecuted, it might be defeated (c). A distinction has been taken between an error of law and an error of fact. " It is a maxim of equity," says an eminent Judge, " that parties making a mistake in matters of fact shall not be held l)ound by acts committed by them under such mistake {d). When, however, they make a mistake in law, they cannot afterwards be heard to say that the contract shall on that account be set aside " (e). But in equity the line between mistakes in law and mistakes in fact has not been (at any rate of recent years) so clearly and sharply drawn (/). Private rights are matters of fact, and if parties contract under a mutual mistake as to their relative and respective rights, the result is that that agreement is liable to be set aside, as having pro- ceeded upon a common mistake (ry). But, qucere whether the common «) Per Lord Westhury in Dixon v. 2 L. E. H. L., p. 170; The Midland, Evans, 5 L. E. H. L., p. 619. &c. E. Co. of Ireland v. Kinder, 6 (5) Miles V. New Zealand, &c. Co., W. E. oil; Beauchamp v. Winn, 6 ;J2 C. D. 266, where Callisher v. Bis- L. E. H. L. 223 ; Daniell v. Sinclair, choflFsheim, 5 L. E. Q,. B. 449, which 6 App. Cas. 181, 190; The Directors, was doubted by Brett, L.J., in Ex p. &c. of the Midland, &c. E. Co. of Banner, 17 C. D., p. 489, was approved Ireland v. Johnson, 6 H. L. Cas. 798, by the C. A. 811. {<■) Cook V. Wright, 1 B. & S. 559. (/) DanieU v. Sinclair, 6 L. E. H. L., See judgment of Lord Blackhurn, cited jd. 190. with approval by Cotton, L.J., in (*/) See judgment of Lord Westhury Miles V. New Zealand, &c. Co., supra, in Cooper v. Phibbs, 2 L. E. H. L. and see Ockford v. Barelli, 20 W. E. 170 ; Stone r. Godfrey, 5 De G. M. & 11(5. G. 76 ; M'Carthy v. Decaix, 2 Euss. & (rZ) See The Monarch, 12P. D.,p. 7; M. 614, disapproved on another point Huddersfield Banking Co. v. Lister, in Harvey i'. Farnie, 8 L. E. IT. L., (1895) 2 Ch., p. 284. p. 52; Livesey v. L., 3 Euss. 287; (fi) MarshaU v. Collett, 1 Y. & C. and cf. Stewart v. S., G CI. & Fin. Exch. Ca. 238; Broughttni r. Ilutt, 96(5. 3 De G. & J. 501 ; Cooper v. Phibbs, 232 COMPROMISES. Stapilton v. Stapilton. error of both parties or the sole error of the defendant («) would be a gi'ound for resisting specific performance (h). It has been laid down that if a party, acting in ignorance of a plain and settled principle of law, is induced to give up a portion of his property to another under the name of a compromise, equity will relieve him from the effect of his mistake (c). But this statement is not very intelligible or easy of application, for the question remains, what is a plain and settled principle of law ? (d). Questions on the construction of wills may depend upon principles which in the opinion of some competent persons are quite plain, but it seems clear that a compromise in respect of such instruments will be upheld, although in the result the opinion upon which the compromise was based turns out to be wrong (e). And it will be generally found that the cases in which relief has been given in consideration of a mere mistake of law have turned upon an admixture of other ingredients, such as misrepresentation, imposition, undue influence, imbecility, or surprise. And it may be stated generally that ignorance of the law, with a full knowledge of the facts and unattended by any of such circumstances, will furnish no ground for the interposition of a Court of equity, the present disposition of the Courts being to narrow rather than to enlarge the operation of the above cases (/). But where the result of denying relief will be to give to the other parties an unconscionable advantage, and the mistake is admitted or proved, equity will give relief, provided the parties can be placed in the same position as if the mistake had not occurred (g). But the Court must (o) See Hart v. H., 18 C. D. (J71. 195; PuUen v. Eeady, 2 Atk. 587 and (&) SeeFiy, Sp. Perfonnance(1892), infra; Stockley v. S., 1 V. & B. 30; §§ 763, 804, citing Tamplin v. James, Persse v. P., 1 West, 110 ; Cann v. C, 15 CD,, p. 217; and Powell r. Smith, 1 P. W. 727; Heap v. Tonge, 9 Ha. 14 Eq. 85. 90 ; Mildmay v. Hungerford, 2 Yern. (c) Naylor v. Winch, 1 Si. & St. 243. 000 ; Leonard v. L., 2 BaU & B. 180 ; {d) See Story, Eq. Jm-. (1892), § 127. Dunnage v. White, 1 Swans. 137 ; (e) See PuUen v. Eeady, 2 Atk. Eamsden v. Hylton, 2V. 304; Timier 587, infra, p. 234; Naylor v. Winch, V. T., 2 Eep. Ch. 81; Bingham r. B., supr-a ; Pickering v. P., 2 B. 31, 1 V. 126; explained in Stewart t\ S., 56. 6 CI. & Fin. 968 ; followed in Cooper (/) See Story, Eq. Jur. (1892), § 138, V. Phibbs, 2 L. E. H. L. 150 ; Lans- and passim, citing Stewart v. S., 6 downe v. !>., 3 Mos. 364; 2 J. & W. CI. & Fin. 694 to 971 ; Kelly v. Solari, 205 ; doubted in Stewart i\ S., 6 01. & 9 M. & W. 54, 57, 58 ; G. W. E. Co., Fin. 966. In the following cases re- 5 Ila. 91. lief was refused and the compromise [). On the whole it would seem that where the contract between the parties is to settle a doubtful right or question, whetiier it be of law or fact, by a give and take arrangement between themselves, such agreement will be uplield. But that where there is a common mistaice of fact or of the law as to private rights which goes to the very root of the matter, so as to prevent any real agreement from being furuied, relief will be given (c). The following cases relating to mistake were also of the nature of family arrangements, which are said to be especially favoured in equity {d). Yet it is not clear that in the several cases which have come before the Courts the decisions would have been different if the parties had not been members of the same family {e). But in some old cases it has been stated that the Court, in the case of family arrangements, administers an equity which is not applied to agree- ments generally (/). The question whether a person is heir or not, is a fact, or, at any rate, often depends upon a doubtful fact, e.g. whether a marriage has or has not been celebrated ; nevertheless, it is clear, that if, as in the principal case, that fact be doubtful, two claimants, although one of thein is afterwards clearly proved to be heir, may settle all disputes, especially to save the honour of the family, by dividing the pro- perty {(J). In Neale v. N. (Ii), James Neale and Joseph Neale, having an apparent title to copyhold lands as tenants in common in fee under the will of their father, entered into a parol agreement to make parti- tion of the devised lands, and divided them accordingly, James, the elder brother, taking somewhat the larger share, a doubt being then entertained whether their father had a right to devise the lands. James was, in fact, at the time of this agreement tenant in tail under {a) Stone v. Godfrey, 5 De G. M. & cli. o, p. 6-4 et seq. G. 76, 90. (f/) See the principal case and Stock- {b) Pollock, Contracts (1894), ch. 9, ley o. S., 12 11. E., p. 189. p. 420; Vaizey, Settlements (1887), (e) See Vaizey, Settlements (1887), ch. 19, s. 2, p. 1500; Story, Eq. Jur. vol. ii., p. 1501. (1892), ch. 5, p. 64; Fry, Sp. Per. (,/') Stockley v. S., 1 Y. & 13. 29; (1892), ch. 7, p. 695. Bellamy r. Sabine, 2 Ph. 425. (c) See Pollock, Contracts (1894), {) See also Frank i-. F., 1 Ch. Ca. Fowler v. F., 4 De G. & J. 250. 84 ; approved by Cottenham, C, 6 CI. (c) 2 Atk. 587. & Fin. 966, and see 15 B. 301; (d) See Cann v. C, 1 P. W. 723; Stockley V. S., 1 Y. & B. 23 ; 12 E. E.. Mildmay v. Hungerford, 2 Vern. 243; FAMILY ARRANGEMENTS. 235 Stapilton v. Stapilton. In Laivton v. Campion (a) the children of John Lawton, a deceased remainderman, insisted as against their uncle Charles (a prior tenant for life in possession) that they were entitled, under the terms of a settlement, to have their portions raised from the death of their father in 1831. Some discussion took place, and a bill was filed by them. An arrangement was come to by deed, which, proceeding on the foundation of the validity of the claim, compromised the amount of the arrears of interest, and settled the amount of the future inte- rest, which Charles thereby engaged to pay. It having been after- wards determined in another suit, that on the true construction of the settlement the claim of the children was unfounded, Charles instituted a suit to set aside the deed, and Roinilly, M.R., made a decree in his favour. "In my opinion," said his Honor, " the thing compromised was not the right to have the portions immediately raised, but something collateral to it, and arising and flowing out of it. The liability of the plaintiff to pay was not, in fact, compromised ; but the amount Avhich he would have to pay, under a liability, assumed and admitted on both sides, was the thing compromised, and the only subject of the compromise. That is the view which I take of this case from the correspondence, and which the deed appears to me to confirm. It appears to me to have been entered into for the purpose of settling the question of the amount which the plaintiff was liable to pay to these ladies, and not to settle any question as to his liability to pay anything at all." And after referring to Harvey v. Cooke (b), as being exactly in point, his Honor added, " Un- doubtedly a family arrangement was entered into in this case ; but the question is, what it included. In my opinion, the liability of the plaintiff to pay anything, or in other words, the fact that the money was raisable on the death of John Lawton, was not an ingredient in that arrangement, and did not form a term of it. That question was not present to the mind of either party at the time when they entered into this arrangement, as one which could be contested ; the arrangement was limited to matters in difference, flowing out of and proceeding from that which was considered to be an undoubted liability." Upon a principle somewhat similar it has been determined that a compromise under the Court will not exclude a point of construction Powell V. Smith, 1-1 Eq. 85, but see cases there cited, judgment of Lord ]Vesthurij in Cooi^er {a) 18 B. 87. V. Phibbs, supra, p. 231, and other (/;) 4 Euss. 57. 236 COMPEOMISES. Stapilton v. Stapilton. nut then under considevatiou (a). But of course questions involved in the comiDromise will not be permitted to be reopened (h). Where payments were made under a mistaken construction of a doubtful clause in a settlement, the Court refused to direct them to be refunded, after many years of acquiescence by all parties, and after the death of one of the authors of the settlement, especially as subsequent family arrangements had proceeded on the footing of that construction (c). And where a deed of family arrangement has been acted upon lor many years, and no fraud is imputed, the Court will not set aside or alter such deed upon the mere allegation by some of the parties to it, that its provisions did not carry out their intentions (d). Where parties come to be relieved against the consequences of mistakes in law, it is the duty of the Court to be satisfied that the conduct of the parties has been determined by those mistakes, otherwise great injustice may be done. Parties may be erroneously advised as to the law, but they may be told in what circumstances the question of law depends, and in what mode it may be tried, and they may determine that (whether the advice they have received be well or ill founded) they will give up the question in favour of the party with whom it arises. Cases of this nature, therefore, require the most careful examination, and particularly when they arise between parent and child (e). Good Faith. Full Disclosure. — An agreement to compromise cannot be sustained (even as a family arrangement) if by design, or even by accident, there has not been a full disclosure of all material circum- stances in the knowledge of one of the parties, and it is immaterial whether information be asked for by the other parties or not. In Gordon v. Gordon (/), an agreement was entered into between two brothers, the younger of whom disputed the legitimacy of the elder, for the division of the family estates. At the time of the agreement the younger brother was apprised of a private ceremony of marriage which had passed between their parents, but did not communicate that fact to the elder. The legitimacy of the elder brother being (a) Bennett v. Merriman, B. 5 Ha. 91 ; Rogers v. Ingham, 3 C. D. 360, 351. {h) Re South American, &c. Co., {d) Bentley v. Mackay, 31 B. 143. (1S95) 1 Ch., p. 50. (f) Per Turner, Y.-C, Stone v. (c) Clifton V. Cockburn, 3 My. & Godfrey, 5 De G. M. & G. 90. K. 76 ; and see G. W. E. Co. v. Cripps, (/) 3 Swans. 400. FAMILY ARRAXGEMEXTS. 237 Stapilton v. Stapilton. established on the trial of an issue directed, Lord Eldov, after the lapse of nineteen years, rescinded the agreement. " If," said his Lordship, " the youngest son, knowing that fact, of which the plaintiff was ignorant (and the Court held on the evidence that he did so know), dealt with him without disclosing it, whether the omission of disclosure originated in design, or in an honest opinion of the invalidity of the ceremony, and of a want of obligation on his part to make the communication, the agreement cannot be sanctioned by the Court " (a). And where the defendants propounded a will for probate, which was opposed by the plaintiff, but ultimately a compromise was agreed to, under which the will was admitted to probate, the plaintiff having afterwards discovered that the wall was a forgery, the compromise was set aside on the ground that one of the defendants had concealed his knowledge of the forgery, and probate was revoked by the Probate Division (6). So, where a plaintiff entered into a compromise to accept from the defendant a smaller sum than was due, upon the representation made to him by the defendant's solicitor of the poverty of the defendant, and that his father, a man of property, would not assist him, whereas the father, to the knowledge of the solicitor making the representa- tion, had lately died intestate, it was held the compromise could not be supported (c). And if parties are not on equal terms, and one of them stands in such relation to the other as renders it incumbent on him to give a fuller account of the matter or question in dispute than he has done, the Court, although no intentional fraud may be imputable to such person, will not support a compromise entered into between the parties (d). A concealment, however, of truth, or a suggestion of what is false, will not affect the validity of a compromise, unless it be relevant to the matter to be compromised (c). Contracts of this kind will not of course be supported if they are (o) And see Pusey /•. Desbouverie, (598, ■■i P. W. 315, 321 ; Harvey v. Cooke, (A) Priestman v. Thomas, 9 P. D. •4 Euss. 5.S ; Groves /■. Perkins, 6 Si. TO. 576; Leonard v. L., 2 Ball & B. 171 ; ((•) Gilbert v. Endean, 9 C. D. 259, .Smith V. Pincombe, 3 Mac. & G. 653 ; 266. Cook V. Greves, 30 B. 378; Green- (: V., 20 Eq. (0 Ma^niard r. Eaton. 9 Ch. 414. 238 COMPROMISES. Stapilton v. Stapilton. in any way unconscionable, as where the party surrendering his rights was a person Hable to imposition and without professional advice (a), or where a person under the influence of threats, and under apprehension of arrest, and without adequate consideration or advice, has given a security as a compromise of doubtful rights (b), or where a deed in the nature of a family arrangement has been executed by a cestui que trust, under pressure from the trustees in violation of their duties (c). Power of Legal Adviser to compromise. — Neither counsel (d) nor solicitors (e) can compromise a case against the express wishes of their clients, and an action for so doing will lie against the latter (/), but not against the former (g). Both counsel (h) and solicitors being in ordinary cases entrusted with the general manage- ment of a cause, have power to compromise it, unless expressly for- bidden so to do (i), and a solicitor is not guilty of actual negli- gence, provided he acts bond fide and with reasonable care and skill, and the compromise is for the benefit of his client, and is not made in defiance of his express prohibition {k) : and it seems that a compromise being within the apparent authority of counsel or solicitor, is binding on the client, notwithstanding he dissented, unless this dissent was brought to the knowledge of the opposite party at the time {I). A consent to compromise given by counsel in the presence and with the sanction of his client may be withdrawn by leave of the Court before the order is drawn up, if given through error, mistake, (a) Dunnage v. "WTiite, 1 Swans. (/;) Strauss v. Francis, 1 L. J. Q. B. 137. See also Stockley v. S., 1 V. & 379; EUender v. Wood, 32 Sol. Jo. B. 31 ; 12 E. E. 184. 628 ; THe Alliance, &c. v. Maclvor & {h) Scott V. S., 11 Ir. Eq. E. 74. Co., 7 Times Eep. 599; Lewis v. L., (c) Ellis V. Barker, 7 Ch. App. 104 ; 45 C. D. 281 ; Matthews r. Munster, and see Huguenin r. Baseley and 20 Q. B. D, 141. Chesterfield v. Janssen, post, and (/) Prestwich v. Polej', 18 C. B. notes. (N. S.) 806 ; Berry r. Miillen, 5 Ir. Eq. (fZ) Swinfen v. S., 27 L. J. Ch. 35, 368. 491. (/v) Chown v. Parrott, 14 C. B. (e) Eray v. Yowles, 1 Ell. & Ell. (N. S.) 74. 389. (/) Strauss v. Francis, 1 L. E. Q. B. (/) Fray r. Yowles, supra. 379 ; Brady v. Curran, 2 Ir. Eep. {g) Swinfen v. Chelmsford, 5 H. & N. C. L. 314 ; Berrj' v. Mullen, 5 Ir. E. 890. Eq. 368. FAMILY ARRANGEMENTS. 239 Stapilton v. Stapilton. surprise or inadvertence (a), but after that time it can only be set aside on the ground of common mistake (h). The rule in the Chancery Division and the Queen's Bench Division is now the same, and a consent given by the authority of the client cannot be witiidrawn unless there has been mistake or surprise (c). As to when the mis- take is on one side only, see the cases below (cZ). Infants. — If the Court, having all the necessary facts before it, sanctions a compromise on behalf of infants, and it afterwards turns out that the Court was mistaken, the infants have no redress, it being an error of judgment for which there is no remedy. But if .by sup- pression or misstatement of facts the Court has been led to an erroneous conclusion, the persons who have done this are amenable to justice, and the Court will, if possible, set aside the transaction as against the innocent party (e). The ordinary practice in cases of compromise in which infants are interested is to direct a reference to chambers as to whether the pro- posed compromise is beneficial (/') : but if the judge is satisfied on the evidence before him, that will suffice (g). Where an action is pending, the terms of the proposed compromise should as a rule be brought before the Court, by a petition stating the terms, and verified by affidavits (/<). In modern practice, a compromise on behalf of an infant is not unfrequently sanctioned upon summons, and where there is no action pending, the sanction is often obtained upon an originating summons under the provisions of the Rules of the Supreme Court, 1883, Order 5.5, r. 3 (f). The Court has no power to sanction a compromise against the opinion of the next friend, or the guardian ad litem and counsel, (a) Holt V. Jesse, 3 C. D. 177; bert v. Endean, 9 C. D. 259 ; ^e West Sogers V. Horn, 26 W. R. 432 ; Hick- Devon, &c. Co., 38 C. D. 51 (C. A.); man v. Behrens, 99 L. T. Jo. 308 ; Hewitt v. Tlie Hull, &c. Society, 4 Harvey v. Croydon, &c. infra ; Be Times Eep. 35. West Devon, «&:c., 38 C. D. 51. {c) Brooke v. Mostyn, 2 De G. J. & (b) Davisv. D., 13C. D. 861 ; A.-G. S. 373, reversed on another point; 4 V. Tomline, 7 C. D. 389 ; Piu-nival v. L. E. H. L. 304 ; see also Stainton v. Bogle, 4 Euss. 142 ; Huddersfield B. The Carron Company, 6 Jur. (N. S.) Co. V. Lister, (1895) .2 Ch., p. 283. 360. (c) Harvey v. Croydon, &c., 26 (/) Seton (1893), p. 832, Form 1. C. D. 249 ; Elsas v. Williams, 52 L. T. (r/) Lippiat v. Holley, 1 B. 423 ; 39. Wall V. Bushby, 1 Bro. Ch. 484. ('/) Mullins V. Howell, 1 1 C. D. 763 ; (h) Gray v. PauU, 46 L. J. Ch. 818 ; Barker v. Purvis, 56 L. T. 131; Gil- see Be Birchall, infra. 240 COMPROMISES. Stapilton v. Stapilton. and if the next friend is exercising his discretion bond fide (a) he cannot be interfered with (b). Before sanctioning a compromise the Court requires an affidavit by the next friend or guardian, and by the solicitor, together with the written opinion of the junior counsel to the effect that they consider the proposed compromise for the benefit of the infants (c). On a petition for a compromise in which the interests of infants were concerned, the infants were not repre- sented by a separate solicitor; the matter was ordered to stand over in order that they might be represented by an entirely indepen- dent solicitor, who could state that the compromise Avas for their benefit (cl). Married Woman. — The Court has jurisdiction to sanction, on behalf of a married woman, a compromise of a suit, to make a trustee liable for a breach of trust in relation to a fund in which the married Avoman has a reversionary interest (e). As to property to which she is entitled to her separate use, as she can contract to the extent of such property and can sue and defend as if she were a feme sole (/), she can bind herself by a compromise with respect to such property, or with respect to her litigation (r/). As to agreements to separate founded upon a compromise of litiga- tion, see Wilson v. W. (Jt). Absent Parties. — By a rule of the Supreme Court (i), it is provided that " where in proceedings concerning a trust a compromise is pro- posed and some of the persons interested in the compromise are not parties to the proceedings, but there are other persons in the same interest before the Court and assenting to the compromise, the Court or a Judge, if satisfied that the compromise will be for the benefit of the absent persons, and that to require service on such persons would cause unreasonable expense or delay, may approve the compromise (a) See Rhodes v. Swithenbank, 22 sons under disability, Cabill v. C, 8 Q. B. D. 577. App. Cas. 420; Brooke v. Mostyn, 4 (b) lie Bircball, infia. L. E. H. L. 304 ; CahiU r. C, p. 426 (c) Me Bii-cball (C. A.), 16 C. D. 41 ; and p. 430 ; and Seton, 1893, 786, 790. Gray !•. Paull, supra. (/) Married Women's Property Act, {(l) Howe v. Eobinson, 34 Sol. Jo. 1882, s. 1, s.s. 2. (520. {(/) See Besant v. Wood, 12 C. D., (t-) Wall V. Eogers, 9 Eq. 58. And p. 622; and judgment of Selborne, C, see as to her separate property, though in Cahill v. C, 8 App. Cas., p 427. .subject to restraint on anticipation, (//) Post, under head of " Husband Wilton V. Hill, 25 L. J. Ch. 150; and and Wife." see generally as to the power of the (/) E. S. C. Nov. 1883, O. 16, r. Court to sanction compromises by per- 9n. FAMILY ARRANGEMENTS. 241 Stapilton v. Stapilton. and order that the same shall be binding on the absent persons, and they shall be bound accordingly, except where the order has been obtained by fraud or non-disclosure of material facts." It is doubtful whether this rule applies where all the persons to be served are out of England {a). The Court under this rule may bind absent persons who have not assented to the compromise, but not such as have dissented from it, but it may sanction the compromise after making full provision for the rights of such dissentient parties (6). Corporations and Companies. — A corporation or a company has, as incident to its existence, the same power of compromising claims made against it as an individual has (c), but semhle in both cases, and certainly in the case of a company, it must bind itself by some formal proceeding — in the case of a company by the action of the directors, or by a resolution of the shareholders in a general meeting (d). Enforcing Compromises. — The Court will specifically enforce private compromises of right provided there is a valid contract between the parties (e). It will also enforce by staying proceedings a compromise for putting an end to litigation (/), as in Eden v. Naish (g), where there was an agreement to compromise an -action for the dissolution of a partnership after judgment therein; the terms were in writing and signed ; the plaintiff alleged that he signed under a misapprehen- sion ; but upon a summons being taken out for a stay of proceedings on the terms of the agreement, an order for stay was made thereon (/<•)• So on motion for judgment (i). In Hart v. H. (k) specific performance was ordered of an agree- ment to compromise a petition in the Divorce Court. If a company is in liquidation a compromise entered into between (a) Ee Sapcote, 38 Sol. Jo. 281. s.s. 5. (h) Collingham v. Sloper, (1894) 3 (g) 7 C. D. 781. Ch. 716, C. A. h) ge3 Pryer v. Gribble, 10 Ch. (c) JSe Norwich, &c., Society, 8 534 ; /2e Gaudet Freres, 12 C. D. 882 ; C. D. 334 ; Dixon v. Evans, 5 L. R. Scully v. Dundonald, 8 C. D. 658. H. L. 606. (i) Sharpe v. Wihnot, 84 L. T. Jo. (f?) Miles V. New Zealand, &c., Co., 2t)7 ; Baker v. Blaker, 55 L. T. 723. 32 C. D., p. 286. (/c) 18 C. D. 670 ; and see Lancaster (e) Fry, Sp. Perf. (1892), § 1578. v. L., (1895) P. 75, and n. {h), p. 246, (/) See Judicature Act, 1873, s. 24, infra. W. & T. — VOL. I. 16 I 242 COMPROMISES. Stapilton v. Stapilton. the official liquidator and a stranger may he enforced hy summons in the winding up («). In Smythe v. >S'. (b) a compromise of certain divorce proceedings was made a rule of Court on an " exjyarte" motion, but the terms ot the compromise so providing. If such provision is not made it cannot be made a rule (c). A compromise may be enforced by motion in any Court in which pending proceedings are compromised {d). If the intended compromise of an action fails, but the plaintiff has received some advantage, he will not be allowed to retain such advan- tage and continue the action (e). Setting aside a Compromise. — A judgment, compromising an action, which has been passed and entered, cannot be set aside except by bringing a fresh action, unless (1) There has been a slip within R. S. C. 1883, 0. 28, r. 11 ; (2) the judgment, as drawn up, does not correctly state the decision of the Court ; (3) the parties consent (/). Different considerations may apply to interlocutory orders and judg- ments not passed and entered, but such applications are generally founded on allegations of fraud or misrepresentation, and it is con- venient that the evidence in support should be viva voce and not by affidavit as to information and belief {g). 2. Family Arrangements. " From the case of Stapilton v. Sta^pilton (h) down to the present day the current of authorities has been uniform, and wherever doubts and disputes iiave arisen with regard to the rights of different members of the same family (and especially, I may observe, where those doubts have related to a question of legitimacy), and fair compromises have been entered into to preserve the harmony and affection, or to save the honour of the family, those arrangements have been sustained by this Court, albeit, perhaps, resting upon grounds which would not have been considered satisfactory if the transaction had occurred between mere strangers " (i). (a) Be Gaudet, &c., 12 C. D. 882. (g) See the judgment of /esse/, M.E., (b) 18 Q. B. D. 544. and Cotton, L. J., in Gilbert v. Endean, (c) Graves v. G., 67 L. T. 420. 9 C. D. p. 266; MuUings v. HoweU, (d) The Alliance, &c., Syndicate v. 11 C. D. p. 766. Maclvor, &c., Co., 7 Times Eep. 599. (h) See the remarks of Sir T. Flumer (e) Henderson v. The Underwriting, on this case in Dunnage v. White, &c., Asson., 65 L. T. 616, 732; Guy 1 Swan., p. 151, and of Lord Cottew/iam V. Walker, 8 Times Eep. 314. in Stewart v. S., 6 CI. & Fin. p. 967. (/) Ainsworth v. Wilding, (1896) 1 (i") Per Sugden, C, in Westby v. Ch. 673, where the cases are collected. W., 2 Dr. & War. 503; but see the FAMILY ARRANGEMENTS. 243 Stapilton v. Stapilton. And a family arrangement may also be implied without any express written contract, from a long course of dealing between the parties (a). Any transaction between father, tenant for life, and son, tenant in tail of property, entered into upon barring the entail, is looked upon in the nature of a family arrangement ; and in such a case, apparent inadequacy of consideration, and the circumstance that the property is reversionary, will have but little weight. In Cory v. C. (b), on the fact appearing that one of the parties was drunk at the time an agreement was entered into to settle disputes in a family, Lord Harchuicke thought that it was not sufficient to set the agreement aside, as it was reasonable, and it did not appear that any unfair advantage was taken. And he observed, that, " if a son, tenant in tail, and a father, tenant for life, agree on something for the benefit of the younger children, and afterwards the son complains of paternal authority being exerted, though there might be something of that sort, yet if the agreement be reasonable, the Court will not set it aside" (c). In Bellamy v. Sabine (d) an agreement between father and sou, for disentailing an estate, and for a conveyance to the son in fee, the main consideration movinjj from the son was an undertaking- to pay the father's debts ; the circumstance of several of the most im- portant items being left in blank was held insufficient to set the trans- action aside as against the father, though the son was only just come of age, as a family arrangement of such a description could not be supposed to have depended upon a very exact calculation of the amount of debts (e). " In regarding settlements of this character, claims to upset them, and the rights of parties thereunder, the Court gives weight to con- siderations which on other occasions would scarcely be allowed in the observations of Mr. Vaizey, referred Eden, 175; Persse v. P., 7 CI. & Fin. to supra, p. 233 (e). And see Stockley 318. V. S., 1 V. & B. 23, 12 E. E. 184 ; Good {d) 2 Ph. 425. V. C, 33 B. 314; WiUiams v. W., 2 Ch. (e) See also Hoghton v. H., 15 B. 294; Huguenin v. Baseley, p. 271, 305, where the law is fully considered infra; Chesterfield v. Janssen, p. 314, by RomiUy, M.E. ; Dimsdale v. D., infra. 3 Drew. 556 ; Baker v. Bradley, 7 De (a) Clifton V. Cockburn, 3 My. & G. M. & G. 597; Hartopp f.^H., 21 K. 76; WilHams v. W., 2 Ch. 294. B. 259; Head v. Godlee, John. 536; (h) 1 V. 19. Jenner v. J., 2 De G. P. & J. 359. (c) And see Wycherley v. "W., 2 16 2 244 COMPROMISES. Stapilton v. Stapilton. scale " (a). In re-settlements (6) it is a proper precaution to take care that the position of the son as tenant in tail is fully explained to him, and also the limitations of and burthens upon the property which are proposed to be made, and this either by the father's solicitor or an independent solicitor or counsel, and to omit these precautions is to incur risk (c). And in such cases the effect or extent of the parental influence (d) will not be regarded (e), unless where a father takes a benefit to the detriment of the son (/), when the Court may inquire whether there has been undue influence (g). Even if there is unfairness, the benefit being abandoned, the rest of the settlement will stand good (h). In Hohlyn v. H. {i) the son had the advice of an experienced estate agent, the estate was exonerated from a charge in favour of the father and from the mother's jointure (k), but the rest of the re-settlement stood good. A bond fide family arrangement (previous to the abolition of the usury laws) woidd not have been deemed usurious merely because it secured a loan with legal interest, and the borrower, by way of settlement, made other provisions for the lender {I). And where a deed is honestly intended as a family arrangement, and not executed with the view of defeating creditors, it will be valid under 13 Eliz. c. 5, although some debts may be defeated thereby (m). But a deed, though valid as a family arrangement, may be void as against creditors (n). If an arrangement between two parties is, on moral principles, fair, or is such as is sustainable, as between them, on the ground of its being a family transaction, it will not be rendered invalid because it may have been concocted and brought about by a third party, with a fraudulent intention of benefiting himself (o). (a) Per Kekeivich, J., in Hoblyn v. {h) Hoblyn v. H., supra. H., 41 0. D., p. 204. I'i) Supra. (b) See Vaizey, Settlements (1888), (k) See Heron v. H., 2 Atk. 160; p. 1505. Carpenter v. Heriot, 1 Eden, 338. (c) See Hoblyn v. H., supra, p. 205. {I) Ai-kwrigbt v. Huntley, Printed {(l) Hartopp V. H., 21 B. 266 ; Cases, D. P., 1825, cited Sugd. Prop. Dimsdale v. D., 3 Drew. 569. 86. (e) Fane v. F., 20 Eq., p. 706; (m) Be Johnson, 20 C. D. 389; see Turner v. CoUins, 7 Ch., p. 340. lie Maddever, 37 C. D., p. 526 ; Hance (/) See Archer v. Hudson, 7 B. v. Harding, 20 Q. B. D. 732. 560 ; Baker v. Bradley, 7 De G. M. & (n) Penhall v. Elwin, 1 Sm. & G. G. 597. 258. (g) Hoblyn v, H., 41 C. D., p. 207; (o) See Bellamy v. Sabine, 2 Ph. Hoghton V. H., 15 B., p. 314; Jenner 425. V. J., 2 De G. F. & J., p. 375. FAMILY ARRANGEMENTS. 245 Stapilton v. Stapilton. In a proper case a deed carrying into effect a compromise may be rectified. Thus where a deed was made for the purpose of carrying into effect a family arrangement, and it contained a declaration of trust inconsistent with the actual rights of the parties, and there was no evidence that the inconsistency was known to, or contemplated by, the parties or their solicitors, or that their actual rights were intended to be altered, it was held that the declaration oucrht to be varied (a). It has been decided by the highest authority, that a compromise of a family dispute is not rendered invalid, in consequence of one of the parties not distinctly understanding his rights, if they were under- stood by his agents, by whose acts and knowledge, in the absence of fraud, the principal is bound (6), and the principle is the same in the law of Scotland as in the law of England and in the civil law (c). Where a family arrangement is entered into upon the assumption that all the parties named in a deed will execute it, and one of them does not do so, it will not be binding upon the others although they execute it (d) ; and the result is the same where one of the parties, from any incapacity, as, for instance, coverture, cannot execute the deed in a valid or binding form (e). Where a bill alleged a judgment obtained by fraud and a subse- quent compromise, and sought to have the whole transaction set aside on the ground of fraud or to have the compromise carried out, and in the opinion of th e Court the case of fraud failed, the Court refused to enforce the compromise, and the whole bill was dis- missed (/). Letters written, after a dispute has arisen, with a view to a com- promise and "without prejudice," cannot be used in evidence against the party by or on behalf of whom they were written. In Hoghton V. H. (g), Romilly, M.R., said, " that such communications made with a view to an amicable arrangement ought to be held very sacred ; for if parties were to be afterwards prejudiced b}^ tlieir efforts to com- promise, it would be impossible to attempt an amicable arrangement of differences " (It). {a) Ashurst v. Mill, 7 Ha. 502. 167. {h) Stewart v. S., 6 CI. & Fin. 911 ; (/) Cawley r. Poole, 1 Hem. & M. where all the authorities are ex- oO. amincd by Lord Cottenham. (g) 15 B. 321. See Cahill v. C, 8 (c) Ibid. App. Cas. 420. {d) Peto r. P., 16 Si. 590. {h) And see Jones v. Foxall, 15 B. (e) BoHtho V. HHlyar, 34 B. 180; 388, 396; Be Monsell, 6 Ir. Ch. R, and see Taj'lor v. Cartwright, 14 Eq. p. 254 ; and as to the general rule of 246 COMPROMISES. Stapilton v. Stapilton. Husband and Wife. — In Jodrell v. J. (a) a singular deed between husband and wife was upheld as a family arrangement. In that case, a wife having instituted a suit against her husband for a divorce, an arrangement was come to, and the husband executed a deed, by which he assigned a house to trustees, upon trust to permit the wife to enjoy it and accommodate herself and children, and an income of 4,000^. a year was also provided for her separate use, to keep up the establishment for herself and children, " upon such a scale, and regulated in such a manner, as she should think fit ; " and the surplus was to be repaid to the husband. The deed provided, that so long as the husband should be desirous to reside in the house, "and to conform to the spirit and intention of the deed, and to partake of the benefit of the establishment to be kept up therein by the wife, he should be at liberty so to do." The suit was discontinued, and the husband partook of the establishment. Lamgdale, M.R., held, that the deed was not void on any ground of public policy ; and that, being a family arrangement, and a compro- mise of disputed rights, there was a sufficient consideration ; that it was not void for uncertainty ; and that the Court would enforce its due performance both by the wife and the husband. With regard to the other points which were raised — want of con- sideration and the want of mutuality — Langdale, M.R., said : " I do not think that they ought to influence the mind of the Court at all. This is not a matter of pecuniary consideration, but a family arrange- ment, — a compromise of litigated rights between the parties." Seioaration Deeds. — As to separation deeds generally, and as to the powers of a wife to make binding compromises with her husband with respect thereto, see Wilson v. W., under the heading of " Husband and Wife," post (b). evidence on this point, see Paddock v. Forrester, 3 Mac. & Gr. 903 ; and the jiidguient of the Court of Appeal in Walker v. Wiltshire, 23 Q. B. D. 325, overruling the judgment of V.-C. Kindersli-y in Williams v. Thomas, 31 L. J. Ch., p. 676, 2 Dr. & Sm. 29, that such letter might be used by the writer; and see Jones v. Foxall, 21 L. J. Ch. 725 ; Re Daintry, 9 Times Eep. 452, Art. 97 L. T. Jo. 265. («) 9 B. 45. ih) As to the compromise of suits for restitution of conjugal rights, see Stanes v. S., 3 P. D. 42 ; Hunt v. H., 31 L. J. Ch. 160, 32 L. J. Ch. p. 168 ; Eowley v. R., 1 L. E. H. L. Sc. & D. 63. { 247 ) CONSTKUCTIVE FRAUD («)• HUGUENIN V. BASELEY. 1807. 14 V. 273; 9 E. E. 276. Undue Influence — Voluntary Settlement ol)tained by an Agent. Voluntary settlement by a widow upon the defendant, a clergyman, and his family set aside, as obtained by undue influence and abused confidence in the defendant, as an agent undertaking the management of her affairs ; upon the principles of public policy and utility, applicable to the relation of guardian and ward. The object of the bill in this cause was to set aside a conveyance made by the plaintiff Mrs. Huguenin, previously to her marriage with the other plaintiff, her second husband, as having been improperly and fraudulently obtained. The following are the principal circumstances established by evidence and admission, under which this relief was sought. In 1803, Mrs. Huguenin, then Mrs. Hill, appeared to be entitled in fee simple to the manors of Oleydon and Hampton Gay, and other estates in Oxfordshire, under the ultimate limitation of the reversion by a will dated 1768, to her father, Richard Hindes, who had gone to Jamaica, where he acquired considerable property, real and personal, which upon his death also descended to her. After some correspondence with their solicitors in England, she, in September, 1803, returned with her husband from Jamaica. He died in October, 1803 ; and in November, she being then about the age of forty, first became acquainted with the defendant, Thomas Baseley, a clergyman, who was also connected with the family of («) As to other cases of constructive post, Fraud ui^ou a Power ; Stratlimore fraud, see Fox v. Mackreth, post, Pui-- v. Bowes, post. Fraud ou Marital chase by a Trustee : Aleyu v. Belchier, Eights. 248 CONSTRUCTIVE FRAUD. Huguenin v. Baseley. Hindes, and had with other persons, upon the death of the testator in 1798, instituted a suit claiming as heirs-at-law of Richard Hindes ; in which cause an inquiry, directed by the Lord Chancellor, produced the title of Mrs. Huguenin as the only child of Richard Hindes. The bill stated, that the defendant Baseley, with the view of getting the control and management of tlie said estates, and of getting them ultimately settled upon himself, procured an introduc- tion to Mrs. Huguenin; and having by various means ingratiated himself with her, represented that her solicitors had mismanaged and neglected her property, and induced her, then a stranger, having no friends or relations in England, and being quite ignorant of the value of property, to withdraw her affairs from those solicitors and to place them in the hands of the defendant ; who, with such design, wrote the following letter, which she, by his inducement, caused to be copied and signed, and sent to the solicitors : "Sirs, — Having been so unfortunate as to lose the best of husbands and the sincerest friend by the premature death of Mr. Hill, I feel myself, as it were, left in that unprotected state that I now want the assistance of some friend with whom I can advise in the adjustment of my affairs, and who will kindly interpose in seeing that my property is managed to the best advantage. From reflection, I have the greatest reason to believe that Providence has raised me up a friend, and that friend is Mr. Baseley, who will take upon him the trouble of bringing all my affairs into such a plan as I shall hereafter be enabled to conduct them with facility to myself. Impressed with this agreeable idea, I beg leave to inform you that I commit (subject to my own inspection) the perfect arrangement of my business with you into Mr. Baseley's hands ; and hope that you will prepare, with- out any delay, every account that you have standing against me, with the deeds, Sec, of the estate at Hampton. As I wish to leave London at Lady-day next, I must desire that no delay on your part will take place. Mr. Baseley will be ready to meet you on the business whenever you will appoint a day. With this determination, I remain, &c. "Ann Hill." The deeds were accordingly delivered to Baseley, and were QNDUE INFLUENCE. 249 Huguenin v. Baseley. deposited by him Avith bis solicitor. The bill farther represented, that the defendant artfully dissuaded the plaintiff from residing in the house at Hampton Gay, and letting the estate, as she had proposed, and recommended to her a surveyor, who gave a very unfavourable account of the situation of the estate ; and the defen- dant Baseley soon afterwards offered her 400^. a year for a lease of the whole, clear of all expenses, and keeping the premises in repair, representing 42UZ. a year as the utmost value, which was confirmed by his solicitor; that she executed the deeds under the persuasion of the solicitor that they were her will, and the lease to Baseley, and that she had no intention to give away or settle her estate, &c. By the deed dated the 5th of May, 1804, which was the subject of the bill, the plaintiff, Mrs. Huguenin, in consideration of 10s., conveyed the Hampton Gay estates to a trustee, his heirs and assigns, to the use that she and her assigns might, during her life, receive out of the said manor, &c., an annuity of 400^., secured by a trust term of 500 years ; and subject thereto, to the use of the defendant Baseley, for life, without impeachment of waste, with remainders to trustees to preserve contingent remainders to his wife for life, to their children, born or to be born, in tail, with cross remainders, and the ultimate remainder to Mrs. Huguenin. The value of that estate was rather more than 400^. per annum. The defendant, Thomas Baseley, by his answer represented, that from the time of his first acquaintance with the plaintiff, a great intimacy took place, and she expressed great affection for him and his family ; that she complained of the conduct of her solicitors, declar- ing her intention of taking the management of her affairs from them; and upon her application, he recommended to her his solicitor and a surveyor, and she intimated to the defendant her intention of settling her estates on him and his family, and requested him to write to her solicitors, to acquaint them that she should take her affairs out of their hands ; and the defendant at her request did in her presence, and with her sanction, and according to her directions, write the form of a letter for that purpose, which the plaintiff, as he believes, copied, and sent to her solicitors ; but the defendant positively denies that such letter was written at his instigation, or by his desire ; on the contrary, he wrote the same at the pressing desire of the plaintiff; and though the language of the letter was the defendant's, yet the substance 250 CONSTRUCTIVE FRAUD. Huguenin v. Baseley. was in fact dictated by her. In another part of the answer, the defendant denied that he induced her to send that letter, stating his belief that it was written by him, but that it was so written at the particular instance and request of the plaintiff, who desired him to draw up such letter, as before mentioned ; and he believes he did, upon that occasion, state to the plaintiff, that, if it was her wish to discharge her solicitors, such letter ought to be in her own hand- writing, as it would not be so proper for it to appear in his hand- writing, and the plaintiff did copy such letter. The answer farther stated, that the plaintiff frequently expressed to the defendant a wish to settle her affairs, and make a disposition of her property, inquiring whether the defendant was related to her, and who was her heir-at-law ; and being informed, expressed a great dislike to that family. And after various conversations, she repeated her determination to settle the Hampton Gay estate on the defendant and his famil}^; and in March, 1805, without any per- suasion, suggestion, or influence, she gave instructions accordingly ; and the defendant understood her intention to be, to settle the estate so as to reserve to herself a rent-charge for her life about equal to the reasonable rent ; and that it was her wish that the defendant should go and reside there immediately with his family, so that the mansion house might be kept up ; declaring, that she would never reside there on account of the trouble of repairing, &c. ; and the defendant denied all the charges of fraud, influence, &c. The answer of the attorney who prepared the deed, stated, that when instructed by her to prepare the settlement, he recommended to her to make a will, which might be revoked or altered ; when she replied, that she would not do it by will, on that account, as, if she should alter her situation, she intended it should not affect the settlement of her property. The defendant, according to the voluntary instructions of the plaintiff, prepared two deeds of settle- ment ; viz., that of the 5th of May, 1804, as to the Hampton Gay estate, in the bill mentioned, and the other, dated the 21st of June, 1804, relating to all her other estates and property. In the former deed, blanks were left for the plaintiff's rent-charge and the names of the trustees, and she made alterations as to the uses among Baseley's children, and as to the ultimate limitation, which originally was to Baseley in fee. That deed was settled, and the other prepared UNDUE INFLUENCE. 251 Huguenin v. Baseley. by counsel ; and they were voluntarily and deliberately executed and the blanks filled up by her direction. This answer farther stated, that, in the deed of the 21st of June, 1S04, the defendant Thomas Baseley, and this defendant, and William Sleet, of Jamaica, were named trustees, and the estates and property therein comprised were conveyed and assigned upon trust during the life of the plaintiff, Ann Huguenin, to convey, &c., according to her appointment, and to her separate use, notwithstanding coverture ; and, after her decease, for any future husband surviving her, for his life, with remainder to her children by any such marriage as tenants in common in tail, with cross-remainders ; remainder to her mother, and William James Clarke and the survivor, and to the children of Clarke; with remainder to Thomas Baseley and the two other persons named as trustees, as tenants in common ; and 5,000^. was settled on Mary Ann Elliott ; and she was directed, during her minority, to be brought up by Mrs, Baseley, who was to receive the interest of her fortune : 2,000?. on Elizabeth Eleanor Clarke ; 100?. a year on Mrs. Hindes ; 200?. a year on William James Clarke ; and by that deed are settled several estates in Jamaica, with the stock ; several sums of money due from different persons ; a leasehold estate in Middlesex ; the Manor of Cleydon, in the county of Oxford, and all the estates real and personal, then late the property of Thomas Hindes, not before conveyed and settled by the plaintiff, and other estates real and personal, stated to be mentioned in the schedules. This answer also denied all the charges of fraud, misrepresentation, &c. Sir S. Romilly, Mr. Hollist, and Mr. Trotver, for the plaintiffs. — The authorities against permitting a transaction of bounty to take effect between persons standing in certain relations are numerous. Among those relations, that of guardian and ward is not for this purpose confined to persons so related in a strict sense — as under an appointment of guardian by will, or by order of this Court ; but the rule includes any person placing himself in that situation (a) : * * * This is an instance of a very peculiar species of influence (a) Ilylton v. H., 2 V. 547; Pierse note, 1 P. W. 121, to the Duke of V. Wai-iiig, cited 1 V. 380 ; 2 V. 548, Hamilton v. Mohim ; Hatch v. H., stated from the Eeg. Lib. iu Mr. Cox's 9 V. 292. 252 CONSTRUCTIVE FRAUD. Huguenin v. Baseley. gained over the mind of this lady by no common means ; appearing by the letter, written or dictated by the defendant for Mrs. Huguenin to copy, in terms which he cannot be supposed to use in the light and profane way that too frequently occurs. The English Courts of justice do not afford an instance of influence acquired by such means (a) ; but in foreign Courts such instances have occurred. According to Pothier, it has been decided, upon the same principles of public utility, that a confessor, or director of the conscience, a person to whom another trusted his spiritual concerns in matters of religion, cannot take any bounty from the person to whom he acts in that character, and the apprehension of the empire which these persons obtain, was carried so far that a gift to the order of which they were members was not allowed to have effect. Mr. Richards, Mr. Fonhlanque, Mr. Hart, Mr. Martin, Mr. Leach, and Mr. Wetherell, for the defendant. Sir Samuel Rortiilly, in reply. — This bill puts the relief it prays, directly upon the ground of undue influence, exerted by the means of spiritual ascendency, distinctly charging that the defendant had taken upon himself to be the adviser of this lady, and the manager of her property, and stating the letter as an instance of that influence. But, divesting this case of that relation and influence, and considering it as the case of a stranger, the evidence of fraud or misapprehension is so strong, that this transaction could not possibly stand. Upon all the evidence it cannot be represented that, when she executed the deed, she was apprised of its nature. How is her sudden change in so short a period, from great anxiety about this estate, to be accounted for, but from the effect of a sort of fascination ? Of what consequence was it to Mrs. Huguenin what repairs were to be done, what conditions were to be kept, according to the evidence, upon the supposition that she was parting with the estate for ever ? The removal of her husband's corpse to be buried at Hampton Gay is another circumstance utterly inconsistent with the defendant's repre- sentation that she did not intend to remain the proprietor. Having a mother, a half-brother, and sister, she was not at a loss for an object (a) See Norton v. Eelly, 2 Eden, 286, by a dissenting minister and unduly an instance of undue influence acquii'ed exercised, 9 E. E., p. 282 (n.) UNDUE INFLUENCE. 253 Huguenin v. Baseley. of bounty. The evidence as to her conversation with the attorney, suggesting to her that a will would be revocable by a change of her circumstances, shows that she looked to the possibility of a second marriage. Her expression of satisfaction at having attained her object cannot be explained upon the supposition that she was giving away her estate, but may be accounted for if she was to get rid of the trouble attending it. In these cases, one of the strongest circumstances is the appear- ance by one person of consulting only the interest of another, and neglecting his own. The passage in Cicero (a) is most applicable : — " Totius autem injustitife niilla capitalior est qiiam eorum, qui, cum maxime fallunt, id agunt, ut viii boni esse videantm-." The duty imposed upon the defendant by merely undertaking the concerns of this lady, made it impossible for him to take the Avhole of her estate ; for it is not necessary to go to the extent that he could not accept any bounty. He took upoYi him the entire management of her affairs — acting as her agent, receiving her rents, attending arbitrations, &c., &c. The rule is not confined to attorneys or persons entitled to reward. Proof v. Hines (b) was the case of a tradesman; who officiously interfered ; the relief stands upon a general principle applying to all the variety of relations in which cloiminion may he exercised by one person over another (c) ; and this case discovers one of a very peculiar nature, — influence obtained through the sacred character of a minister of reliofion. Thouoh there is no case {d) in which the Court has proceeded upon such grounds, the general principle has prevailed, where the means of acquiring influence were much less powerful, — the respect of a child or ward for a parent or guardian. Pothier says, that, by a latitude of interpretation, proceeding upon principles of public utility, that ordinance, expressly concerning only a tutor or administrateur, has been extended to the master of a school ; the director of the conscience; the physician, who is not permitted during his attendance to take a conveyance from the patient ; and to other relations, in which authority or influence must be supposed to exist. (a) Cic. de Off., lib. 1, s. 13. approved of by Lord Cottcnliam. \h) Cas. t. Talbot, 111. [,l) See Norton v. Eelly, 2 Eden, 28G, (c) See Dent v. Bennett, 4 My. &. supra. C. 277, where this proposition is 254 CONSTRUCTIVE FRAUD. Huguenin v, Baseley. For the proper determination of this case, however, it is not necessary to rely on such authorities. The decisions of English Courts of Justice are amply sufficient. The same doctrine, stated by your Lordship iu Hatch v. H. {a), was laid down by Lord Chief Justice Wilmot, in Bridgeman v. Green (h). There was in that case much evidence that the person was perfectly aware of what he was doing, and had repeatedly confirmed it. Upon that, Lord Chief Justice Wilmot's observation is, that it only tends to show more clearly the deep-rooted influence obtained over him (c). " In cases of forgery, instructions under the hand of a person whose deed or will is supposed to be forged, to the same effect as the deed or will, are very material ; but in cases of undue influence and imposition they prove nothing ; for the same power which produces one, produces the other ; and, therefore, instead of removing such an imputation, it is rather an additional evidence of it." Having before (d) mentioned the distinction of the Roman law between liberality and profusion, he says, our laws strike no such boundary — "stat pro ratione voluntas is the law with us : " and this Court never did nor ever will annul donations merely as being improvident, and such as a wise man would not have made, or a man of very nice honour have accepted ; nor will this Court measure the degrees of understanding, and say, that a weak man, provided he is out of the reach of a commission, may not give as well as a wise man. But, though this Court disclaims any such jurisdiction, yet where a gift is immoderate, bears no proportion to the circumstances of the giver, where no reason appears, or the reason given is falsified, and the giver is a weak man, liable to be imposed upon, this Court will look upon such a gift with a very jealous eye, and very strictly examine the conduct of the persons in whose favour it is made ; and if it sees that any arts or stratagems, or any undue means have been ijged — if it sees the least speck of imposition at the bottom, or that the donor is in such a situation with respect to the donee as may naturallv give an undue influence over him — if there be the least scintilla of fraud, this Court will and ought to interpose ; and by the exertion of such a jurisdiction, they are so far from infringing the right of alienation, which is the inseparable incident of property, that (a) 9 V. 292, 7 E. K. 195. (c) Wilm. 70. {b) 2 V. 627; Wilm. 58. (^0 Wilm. 6, 61. UNDUE INFLUEXCE. 255 Huguenin v. Baseley. they act upon the principle of securing tlie full, ample, and uninfluenced enjoyment of it. The ground, as between guardian and ward, is put upon the danger, either of inducing guardians to flatter the passions of their wards, or of the improper exercise of their authority, as the relation of husband and wife is guarded from the effects both of indulo-euce and severity. If this reasoning has any weight, does not the principle apply with infinitely greater force to the present case ? What is the authority of a guardian, or even parental authority ; what are the means of influence, by severity or indulgence, in such a relation, compared with the power of religious impressions under the ascendency of a spiritual adviser ; with such an engine to work upon the passions ; to excite superstitious fears or pious hopes ; to inspire as the object maybe best promoted, despair or confidence ; to alarm the conscience by the horrors of eternal misery, or support the drooping spirits by unfolding the prospect of eternal happiness : that good or evil, which is never to end ? What are all other means to these ? Are inferior considerations to have so much effect ; and is no remrd to be given to the most powerful motive that can actuate the human mind ? Though no direct authority is produced, your Lordship, dispensing justice by the same rule as your predecessors, upon such a subject, not confined within the narrow limits of precedent, will, as a new relation appears, look into the principles that govern the human heart, and decide in a case, far the strongest that has occurred, upon this ground alone, from its infinite importance to the community. November 23, 1807. Lord Chancellor Eldon.— With regard to the interests of the wife and children of the defendant, there was no personal interference upon their part in the transactions that have produced this suit. If, therefore, their estates are to be taken from them, that rehef must be given with reference to the conduct of other persons; audi should regret that any doubt could be entertained, whether it is not competent to a Court of equity to take away from third persons the benefits which they have derived from the fraud, imposition, or undue influence of 256 CONSTRUCTIVE FRAUD. Huguenin v. Baseley. others. The case of Bridgeman v. Green (a) is an express authority, that it is within the reach of the principle of this Court, to declare that interests so gained by third persons, cannot possibly be held by them ; and Lord Harchviche observes justly, that if a person could get out of the reach of the doctrine and principle of this Court, by .giving interests to third persons, instead of reserving them to himself, it would be almost impossible ever to reach a case of fraud. In that instance, therefore, the interest of the son was considered as capable of being affected by the decree as the interest of the father. The case afterwards came before the Lords Commissioners ; and Lord Chief Justice WiLMOT expresses himself thus (6) : — " There is no pretence that Green's brother, or his wife, was party to any imposition, or had any due or undue influence over the plaintiff; but does it follow from thence, that they must keep the money? No : whoever receives it must take it tainted and infected with the undue influence and imposition of the person procuring the gift : his partitioning and cantoning it out amongst his relations and friends will not purify the gift, and protect it against the equity of the person imposed upon. Let the hand receiving it be ever so chaste, yet, if it comes through a polluted channel, the obligation of restitution will follow it." This was also the doctrine of Lord Thurlow, in the case that has been referred to : Luttrel v. Lord Waltham, sometimes cited as Dixon V. Olmius (c) ; and, though it was not practically acted upon, Lord Tliurlow was inclined to carry it farther. The object of that bill in that case was, that an estate should be enjoyed as if a recovery had been suffered, upon the ground that Luttrel had, while Lord Waltham was, upon his death-bed, engaged in suffering a recovery, prevented it with the view that the estate should devolve upon the person with whom he was connected. The estate was by the law vested in that individual : a much stronger case, therefore, than the acquisition of property through imposition. Lord Thurlow, whatever might have been his final decision upon that case, had no doubt that it was against conscience, that one person should hold a benefit which he derived through the fraud of another ; and I have reason to know that his Lordship would not have discussed the case (a) 2 V. 627 ; Wilm. 58. [h) WHrn. 64. (c) 1 Cox, 414. UNDUE INFLUENCE. 257 Huguenin v. Baseley. SO much at large, if it had been no more than that. These plaintiffs, therefore, if entitled to relief against Baseley, are equally entitled against all the branches of his family. Then, as to persons concerned in these transactions, I agree with the argument, that it is not upon the feelings which a delicate and honourable man must experience, hearing these instruments, taken altogether, as I think myself bound to take them, nor upon any notion of discretion in this Court to prevent a voluntary gift, by a man stripping himself entirely ^of his property, if undue influence is not imputed, that any judge sitting here has ever thought himself at liberty to interpose. I agree, further, that the relief must proceed upon what is alleged and proved by the person complaining ; that their complaints must be treated as effectual or ineffectual, according to what they have, not what they could have, represented : also, as to the defence, it may frequently happen that many passages may have taken place in the course of the transaction that are not brought into view ; but the case must be dealt with as it is alleged and proved. I have, therefore, looked through this bill with reference to the frame of it, and I have no doubt this case might have been more clearly reached, if the situation of the parties had enabled them to go through all the difficulties as to amendment ; also, that many circumstances misrht have been brought forward on behalf of the defendants, which I am bound not to look ac ; but taking the cas-e as it stands, though there is in this bill much foul allegation, which, if not true ought not to be there, and a great deal of which is denied, and clearly disproved, there is enough upon the bill and in evidence, to show that this deed cannot stand, if the whole transaction, taken together, cannot stand. This bill seeks relief only as to the deed of May, 1804. The deed of June relates to other estates ; unquestionably has very different provisions, for very different persons ; reserving a degree of dominion, and considerable dominion, to Mrs. Huguenin over that property ; and I am disposed to think, that deed could not be made the subject of the same bill : at least, that it was not necessary to complicate this cause by making that a subject of the relief prayed. But the view I take of this case is this : that, attending to the effect of the letter, the evidence of the transactions among these parties, and attending more especially to the evidence of the attorne}^ the defence rests in a W. & T. — VOL. I. 17 258 CONSTRUCTIVE FRAUD. Huguenin v. Baseley. great measure upon this : tliat the Court is, by the nature of the defence, required to look at this deed, not merely by itself, but as being more or less justified with reference to the whole of the trans- actions, in the course of which it was executed ; and it is much tlie same as if tlie defendant had said, he puts his case, not upon that instrument merely, but as part of a general arrangement of the plaintiff's affairs ; and that the deed is to be considered with regard not merely to its own contents, but to the whole transaction, of which this deed forms a part. The great body of evidence shows the alarm of this lady at the trouble of taking possession of an estate dilapidated. Upon the evidence, until November, 1803, she had no acquaintance whatsoever with Baseley. Her age was about forty. She had left in the West Indies a mother ; had great regard for a female child, Mary Ann Elliott ; and had also a natural half-brother, named Clarke, of the age of sixteen, in whose education she appears to have been much interested. She brought him over to England ; placed him with Mr. Baseley at an expense to herself of 200^. a year. Her brother-in-law, Benjamin Hill, states, that he, previously to the introduction of Baseley, managed her concerns ; and that, until after that introduc- tion, she expressed her entire satisfaction with the care of the solicitors in whose hands her affairs in this kingdom were placed, which is confirmed by another witness. The bill charges Baseley with infusing into her mind great dissatisfaction with the manage- ment, and the want of professional skill and care of those solicitors. The inference that this dissatisfaction was created in her mind by Baseley, is too strong: that she entertained that disaffection is clear: that Baseley did hot discourage it, that he gave in to it, is in evidence : that he created it, I cannot say : that he participated in, and acted upon it with her, is clearly established. In October, preceding the month of January when her affairs were taken out of the hands of those solicitors, her husband, who came with her to England, died. She lived with, or was frequently with the two brothers of her deceased husband. The answer, therefore, stating that she was not without friends in this country is material ; but in this view only, that it could be supposed she had ever consulted with them. There is, however, no evidence, that either Baseley ever stated to them what she proposed to do, or that the UNDUE INFLUENCE. 259 Huguenin v. Baseley. attorney concerned in the transaction, as Lord Chief Justice Wilmot says, felt the obligation of talking both with the grantor and the grantee, before this proposition was carried into effect. Benjamin Hill, one of her brothers-in-law, laid aside all the business after the solicitors were discharged ; and as to George Hill, though there is evidence that she did declare her purpose, it was in conversations, in which it was suggested to them both, and that ample provision was to be made for their children, which I fear had some influence with them. No such provision, however, was made. It is doubtful, upon the report, whether Mrs. Huguenin had the immediate means of acting with the freedom of an affluent person. At the date of the report, the rents remained to be accounted for by Baseley, to the amount of 800Z. or 400L After the date of that report, small sums were lent to her : she had not even then paid the costs of the deed; she had borrowed 1001. from the attorney; and there is one item of 57^., advanced by Baseley after June, 1804, to discharge her husband from an arrest. Certainly, therefore, she was not in a condition of immediate affluence. Under the influence of her dissatisfaction at the conduct of the solicitors, in January, 1803, either she adopted the resolution of dismissing them, and placing the whole management of all her concerns in the hands of Baseley, calling upon him to assist her in executing it, or it was suggested to her by Baseley. My opinion is, that the weight of the evidence, which does not agree upon this, is, that she called upon Baseley, and desired him to assist her in executing that purpose of her own. If the proposi- tion was her own, yet the transaction, in a Court of justice, has this character at least, that it was demonstration to Baseley that she placed confidence in him, as high as one individual ever placed in another. Where the evidence is contradictory, the fairest way to the defendant is to take his own account ; and his answer represents it thus, that she called and requested him to write a letter to the solicitors; and at her request he did, in her presence, with her sanction, and by her direction, write the form of a letter, which he believes she copied and sent to them ; but he positively denies that it was written at his instigation or by his desire, and says he wrote it at her pressing desire ; and though the language was his, the substance was hers. Who dictated that letter is of very little importance. If at her dictation he wrote it, and permitted her to 17 2 260 CONSTRUCTIVE FRAUD. Huguenin v. Baseley. .send it, that is the most direct communication to him of the nature and extent of the confidence she placed iu him ; and the language of a Court of justice has in all times been, that, if a man does not choose to act upon the co'iijidence appeaviiig in the course of the transaction to he so reposed in him, he ought to reject it as soon as proposed. This letter is, therefore, upon the answer, to be taken as expressing her sentiments in his language. The effect of it is, at least, a communication to him of the information that she was unprotected by the death of her husband ; that she wanted assistance for the purpose of advising her in the adjustment of her affairs; that she wanted that friend which Providence had raised up for the purpose of kindly interposing in seeing that her property was managed to the best advantage, and her affairs brought into such a plan that she could conduct them with facility to herself. This letter produced from the solicitors, rather too hastily, a total severance of themselves from the concern ; and Baseley entered, to a certain degree at least, upon the management of them. The purposes expressed and alluded to in that letter, cannot mean that all her estate should be given away : that she was to be enabled to conduct her affairs with facility by giving up all her title. The attorney, who states that he was satisfied that she had made up her mind as to all her affairs, prepared in June these two deeds, conveying this estate, worth at that time, at the lowest calculation, 420?. a year, which Annesley wished to purchase upon the supposition that it was worth 6101. a year, subject to a rent-charge to herself, with a term in trustees to secure it to Baseley for life ; with remainders to Mrs. Baseley for life, and to all their children, born or to be born, and the ultimate limitation to Mrs. Huguenin. A deed was prepared at the same time, which appears intended to be a conveyance of all her property, but which they were very much perplexed to describe, conveying all her freehold estates in the West Indies and everywhere, none of the parties knowing wdiat they were ; all the leaseholds for lives mentioned in the schedule, of which there are none ; and all the leaseholds for years, of which there are some, to her for her separate use for life ; Avith remainders to the husband whom she should marry, surviving her, and to Mrs. Hindes, and young Clarke and his children ; and the ultimate limitation, for what reasons is not explained, to Baseley and the attorney, and a person resident in the 1 UNDUE INFLUENCE. 261 Huguenin v. Baseley. West Indies : this contemporaueous deed permitted to be made by her, having in contemplation a second marriage, which appears upon the deed itself. To the question, whether these instruments being such as I have represented them, the consequence is, that this Court shall undo them, I answer, no, if they are the pure, voluntary, ivell-under stood acts of her mind; but if they have not that character, if they are the result of her notion, that this is the true effect of that friendly assist- ance, that kind providential interference to which she was looking for the management of her affairs with advantage and facility to herself; if the conveyance was executed under the effect of that, which has always been considered in this Court as undue influence, if the deeds themselves, which are the best evidence, demonstrate, and if they are confirmed by extrinsic evidence, that they are not the pure, well-understood acts of her mind, this Court will undo them. Has an instance ever occurred that a person, situated as this lady, was permitted to execute such instruments as these, with a purpose of marriage demonstrated upon one of them, and having a mother, and other persons whom she regarded with affection and anxiety for their welfare in life ? Lord Hardwicke reasons with great force as to the voluntary deed, upon the same principle which induced me to ask, how it happens that there is no power of revocation in this instrument. There was in that deed a power of revocation : but it was a power to revoke in the presence of three persons, who, perhaps, never could be got together, which was therefore considered as if there had been no power of revocation ; and the want of such power was considered strong evidence that the party did not understand the transaction, whence arose a strong inference of an undue purpose. There is in this case an attempt to show why there was not a power of revocation ; and that is a part of the transaction one of the most liable to objection. The evidence and answer of the attorney go to this distinctly, that she informed him she was to have all her affairs arranged. He was struck with the circumstance of her making an irrevocable deed, and told her that she should make a will. When she said that this was to be a permanent arrangement, is it too much to say the attorney permitted himself to be surprised into an act depriving her of her property for the benefit of Baseley's family, and for no provident or wise purpose fettering all her other property by 262 CONSTKUCTIVE FRAUD. Huguenin v. Baseley. the various limitations iu the other deed ? I do not say instruments are to be set aside by the want of great delicacy in the person who prepared them : but I am bound to look at all the circumstances that led to the execution of a voluntary instrument, and to observe that the attorney did not state this improvident act to the brother of this lady, or, as Lord Chief Justice Wilmot says (a), go and talk both to the grantor and grantee upon it. What she said to him must have suggested to him a reason for resisting more strenuously. The Court cannot pay attention to such circumstances as are alleged upon this part of the case. The deed, being drawn by the attorney, was laid before a con- veyancer, and the simple question put was, whether a fine and recovery were necessary. Why that should be thought of I do not know, as she had the remainder in fee simple vested in possession. Some observation occurs upon the contents of that instrument. Her annuity of 400^. is merely reserved, payable quarterly, not secured by any personal obligation. The three trustees and the rent-charge are left in blank before the deed was laid before counsel, and the filling up those blanks is left to Baseley and herself ; and the power of changing the trustees does not depend upon her pleasure, but is only given in the cases of inability or refusal to act. The reason that there is no power of revocation is, that the gentleman before whom the draft was laid thought his business was to execute the intention of the parties. There is a difference of opinion upon that, other gentlemen thinking some observation necessary. Upon the instruc- tions for the other deed, however, they do not intimate that there is to be any power of revocation, or that she is to have any power to alter the uses. Not a word is dropped upon the subject. But by that deed this lady, who was so shocked at the notion of having a provision that was not to be permanent, has the power of making a deed or will to alter completely these uses. Is there any evidence showing why that power should be there ? — a power not to revoke the uses, but much less convenient, yet open to all the objections that she could have to a temporary instrument, as not binding herself down. Other observations occur upon these instruments. This latter («) Wilm. 69. UNDUE INFLUENCE. 263 Huguenin v. Baseley. deed, in the limitation as to all the estates, provides an interest to a husband surviving, and to her children. According to the instruc- tions, as to all the money property (and they settle property in the funds, though there was none), they omit the provision for the husband and children, which, however, they thought they had inserted, as there is, afterwards, a provision upon failure of children. Another circumstance as to the instrument of the 21st of June, 1804, is that the instructions as to the trustees' names mention Baseley, the attorney, Sleet, and Anderson ; and the insertion of Anderson is material. It is proved that she frequently visited him, and he is named as a trustee ; but his name is afterwards struck out. Clearly, at the time of the instructions, it was not intended that there should be an ultimate limitation to the trustees for their own use ; but they were to be trustees for undefined purposes. The deed was originally drawn so expressing the trust to be for such uses as they should think necessary and proper ; but that was afterwards struck out, and the use for the benefit of the trustees themselves substituted. It does not rest there. Suppose these transactions entirely separate. Proposing to put under the fetters of these limitations all her con- siderable West India and other property, for the purposes of facility of management, and putting it out of her own reach, she is permitted to place her West India property under the care of a clergyman and an attorney in England, and a person resident in the West Indies. The power of management is certainly stated to be for her life, subject to her control ; how efiicacious, every one knows, without any control whatsoever after her death. The management is perfectly ad libitum, to lease and carve out of the estates other interests ; and they have all discretionary powers as to the children, Mary Elliott, and Clarke ; and she could not change any of the trustees without executing that power which it is supposed she had determined not to have. If such is the nature of these deeds, and the defendant, according to the letter that is in evidence, permitted her to suppose that he was to take the management for her benefit, without considering what an agent engaged for reward can do, the known doctrine is, that the fruit of that relation, if it was not absolutely dissolved, cannot be permitted to subsist. Then, was the relation dissolved ? Look at 264 CONSTEUCTIVE FRAUD. Huguenin v. Baseley. the transactions from the date of the letter to the end of the year : possession taken, and her anxious wish that Baseley should be the occupier, proved ; her satisfaction expressed at seeing the house repaired ; her declarations that she could not possibly think of undertaking that trouble ; and that it was with exultation and satis- faction, as some of the witnesses express it, that she got rid of the estate ; that it was no object to her ; that she had so much property, it was a subject of delight to her that Baseley was to occupy that which was given to him. Take it that ^le intended to give it to him, it is by no means out of the reach of the principle. The ques- tion] is not whether she knew luhat she was doing, had done, or proposed to do, hut how the intention was produced ; whether all that care and providence was placed round her, as against those who advised her, which, from their situation, and relation luith respect to her, they were hound to exert on her hehalf. Her situa- tion, with reference to pecuniary circumstances during the whole period, must also be attended to, her husband, a few weeks before, having been relieved from distress by a sum of money advanced by Baseley. In that view of the case, no evidence out of these instruments could satisfy me that Mrs. Huguenin understood them. I believe, further, that the parties to the transaction did not understand it. Repeating therefore, distinctly, that this Court is not to undo volun- tary deeds, I represent the question thus — whether she executed these instruments not only voluntarily, but wdth that knowledge of all their effect, nature, and consequences, Avhich the defendants Baseley and the attorney were bound by their duty to communicate to her, before she was suffered to execute them ; and though, perhaps, they were not aware of the duties which this Court required from them in the situation in which they stood, where the decision rests upon the ground of public utility, for the purpose of maintaining the principle, it is necessary to impute knowledge which the party may not actually have had. These parties, therefore, cannot possibly hold the benefit of these instruments. As to the costs, the same principles of public utility that require me to decree that these instruments shall be delivered up, compel me to make that decree at the cost of the defendant. As to ordering the deeds and papers to be delivered up, I have not, upon this form UNDUE INFLUENCE. 265 Huguenin v. Baseley. of the Lill, authority to examine here the contents of the rest of the attorney's bill of costs, who, by happening to be engaged in a trans- action that cannot be maintained, would not lose his lien upon the papers with reference to other transactions. If, however, Mrs. Huguenin ought not to have been permitted to execute the deed, I am bound by the principle established in Bridgeman v. Green (a), and other cases, to hold, that if an attorney thinks proper to do more than obey the instructions which he ought not to have permitted to take effect, the Court has frequently said that it is not sufficient ; and if he has not only carried into execution an intention which he ought not to have permitted to take effect, but has also taken to himself an advantage with respect to the property, persons not being consulted who ought to have been consulted (alluding to the ultimate limitation to the trustees), it deserves serious consideration whether he shall not pay the costs if the other cannot. If, however, these papers are to be delivered up on payment of the attorney's bill, he cannot be permitted to charge for drawing instruments which the decree says ought not to have been executed. One circumstance now occurs to me, which I shall notice, that it may not be supposed to have escaped me. If there is anything like consideration, it is the consideration that arises out of the circum- stances that Baseley would repair and lay out money upon the estate. If that had been expressed, it would have amounted to so little, as valuable consideration, that the Court would not have been justified in paying much attention to it ; but I cannot find in any of these cases in which a deed has been affected on account of undue influence, that the Court has ever attended to anything supposed merely to oblige the parties, if not expressed. NOTES. 1. Generally, p. 266. 2. Where undue influence is presumed from the relation between the parties, p. 269. 3. Where there is no special confidential relationship between donor and donee, p. 281. 4. How far the court will interfere as against third parties, p. 283. 5. Delay, acquiescence, confirmation, p. 286. 6. Gifts by wdll, p. 287. (fl) 2 V. 627 ; Wilm. 58. 266 CONSTRUCTIVE FRAUD. Huguenin v. Baseley. 1. Generally. Huguenin v. Baseley is a leading case on the jurisdiction of equity, to set aside, upon the principle of general public pohcy, voluntary donations " inter vivos," obtained by persons standing in some confidential, fiduciary, or other relation towards the donor, in which dominion may be exercised over him. Other instances of con- structive fraud dealt with in these volumes are, fraud upon marital rights, Strathmore v. Bowes, see " Husband and Wife " ; fraud upon a ■povfer, Aleyn v. Belchier, see "Powers " ; purchase by a trustee from his cestui que trust, Fox v. Mackreth, see Trusts (Constructive). The word " Constructive " negatives actual fraud, but affirms that the actual conditions will have similar consequences (a). Constructive fraud includes that vast number of cases in which transactions are disallowed, not on account of any evil design or contrivance to perpetrate a positive fraud or injury upon other persons, but because they are contrary to some general public policy, or to some fixed artificial policy of the law (6). " Fraud, in my opinion, is a term that should be reserved for something dishonest and morally wrong, and much mischief is, I think, done, as well as much unnecessary pain inflicted by its use where ' illegality' and ' illegal' are the really appropriate expressions " (c). " The relief," says Lord Cottenham (cZ), " as Sir Samuel Romilly says in his celebrated reply m Huguenin \. Baseley , horn the hearing of which I received so much pleasure that the recollection of it has not been diminished by the lapse of more than thirty years, the relief stands upon a general principle, applying to all the variety of relations in which dominion may be exercised by one person over another : " " The obtaining of property, or of any benefit, througli the undue and unconscientious abuse of influence by a person in whom trust and confidence are placed, has always been treated as a fraud of the gravest character " (e). Courts of Equity will not, however, arrest or set aside an act or contract merely because a man of more honour would not have entered into it. They do not sit as custodes inoruni, enforcing the (a) Pollock, Contracts (1894), p. of Kmj, J. in Fry v. Lane, 40 C. D., p. 504. 324. ih) See Story's Eq. Jui". (1S92), pp. {d) Dent v. Bennett, 4 My. & 0. 166, 167. 277. (c) PerTT'iYZs, J., Re Companies Acts, (e) Pcf the C. A. in Moxon v. PajTie, 21 Q. B. D. p. 309 ; and see judgment 8 Ch., p. 887. UNDUE INFLUENCE. 267 Huguenin v. Baseley. strict rules of morality. But they do sit to enforce what has been called a technical moralit}'. If confidence is reposed it must be faithfully acted upon, and preserved from any admixture of imposition. If influence is acquired it must be kept free from the taint of selfish interest, and cunning, and overreaching bargains. If the means of personal control are given, they must be always restrained to purposes of good faith and personal good (a). Lindley, L.J., in his judgment in Allcard v. Skinner (b), thus classifies the cases in which equity invalidates voluntary gifts, pointing out that the two groups often overlap. (1). Cases in which there has been some unfair and improper conduct, some coercion from outside, some over-reaching, some form of cheating, and generally, though not always, some personal advantage obtained by a donee placed in some close and confidential relation to the donor (c). (2). Cases in which the position of the donor to the donee has been such that it has been the duty of the donee to advise the donor, or even to manage his property for him. In such cases the Court throws upon the donee the burden of proving that he has not abused his position, and of proving that the gift made to him has not been brought about by any undue influence on his part. In this class of cases it has been considered necessary to show that the donor had independent advice, and was removed from the influence of the donee when the gift was made to him. The question in the second group of cases is not whether the donor knew what he was doing, had done, or proposed to do, but how the intention was produced : Whether all that care and providence was placed around him, as against those who advised him which, from their situation and relation with respect to the donor, they were bound to exercise in his behalf {d). In the cases which belong to the second group, it is the duty of the donee to advise and take care of the donor, and where there is no such duty the language of Lord Eldon ceases to be applicable (e). (a) Cf. Story, Eq. Jui'. (1892), § 308 And see Morley v. Loughnan, (1893) et seq. ; Pollock, Contracts (1894), p. 1 Ch. 736. 579; Moncreiff on Fraud (1891), p. (c/) See judgment of Lindley, Jj.J., 291 ; Seton (1893), p. 1945. in ^Ulcard v. Skinner, 36 C. D., p. 182. (6) 36 C. D., p. 181. Citing with approval from the judg- (c) Norton v. Eelly, 2 Eden, 286; meiit of Eldon, C, in the principal NoUidge v. Prince, 2 Gif . 246 ; Lyon case. V. Home, 6 Eq. 655 ; "Whyte v. Mead, (e) Lindley, L.J., Allcard v. Skinner, 2 Ir. Eq. 420, all belong to this group. 36 C. D., p. 182. 268 CONSTRUCTIVE FRAUD. Huguenin v. Baseley. " To protect people from being forced, tricked, or misled in any way by others into parting with their property, is one of the most legitimate objects of all laws ; and the equitable doctrine of undue influence has grown out of and been developed by the necessity of grappling with insidious forms of spiritual tyranny, and with the infinite varieties of fraud " («). But where a gift is made to a person standing in a confidential relation to the donor, the Court will not set aside the gift, if of a sviall amount, simply on the ground that the donor had no independent advice ; otherwise if the gift is so large as not to be accounted for on the ground of friendship, charity, &c. (h). What amounts to Undue Influence. — " As no Court has ever attempted to define fraud (c), so no Court has ever attempted to define undue influence, which includes one of its many varieties " {d). It will be a question for the Judge to decide, upon the circumstances of each particular case, and such circumstances as the non-intervention of a disinterested person, or professional adviser on the behalf of the donor ; especially if the donor is, from age or weakness of disposition, likely to be imposed upon (e) ; the statement of a consideration, where there was actually none (/ ) ; the absence of a power of revocation {g) ; the improvidence of the transaction [li), furnish a probable though not always a certain test of undue influence or fraud (^). Sir F. Pollock, in his work on the Law of Contracts, thus states the equitable doctrine on this subject: " Any influence brought to bear upon a person entering into an agreement, or consenting to a disposal of property, which, having regard to the age and capacity of the party, the nature of the transaction and all the circumstances of the case, appears to have been such as to preclude the exercise of free and deliberate judgment, is considered by Courts of Equity, in (a) Per Lindley, L.J., Allcard v. Page v. Home, 11 B. 227; Button v. Skinner, 36 C. D., p. 183. Thompson, 23 C. D. 278. (6) Ehodes v. Bate, 1 Ch. 258; All- (/) Hawes v. Wyatt, 3 Bro. Ch. card V. Skinner, supra, p. 185. 156; Gribson v. Eussell, 2 Y. & C. C. (c) See the numerous definitions of C. 20-1; Sharp v. Leach, 31 B. 491. fraud given in Moncreiff on Fraud, (g) Coutts v. Ackworth, 8 Eq. 558 ; 1891, p. 28. Wollaston v. Tribe, 9 Eq. 44 ; Everett v. (d) Per Lindley, L.J., Allcard v. E., lOEq.405; Lyony.Home,6Eq.655. Skinner, 36 C. D., p. 183. {h) Harvey v. Mount, 8 B. 439. (e) GrifSths v. Eobins, 3 Madd. (/) Phillips v. Mullings, 7 Ch. 244 ; 191; Dent v. Bennett, 4 My. & C. Hale v.B.., 8 Ch. 430; AiTQstroag v. 273; Harvey v. Mount, 8 B. 439; A., 8 Ir. E. Eq. 1. UNDUE INFLUENCE. 269 Huguenin v. Baseley. respect of gifts 'inter vivos/ to be undue influence, and is a ground for setting aside the act procured by its employment" (a). 2. Where Undue Influence is presumed from the Eelation between the Parties. Where a relation of confidence is shown to exist, or is presumed from the position of the parties, then the law on grounds of public policy presumes that the gift was the effect of influence induced by these relations, and the burden lies on the donee to shew that the donor had independent advice, or adopted the transaction after the influence was removed, or some equivalent circumstances (6). And although the donor is of full age and capable of managing his affairs, and the gift is made without proof of any actual exercise of power or influence, and although as a fact no unfair advantage is taken of him, and no undue influence is brought to bear upon him by the donee, and although the gift is not for the private advantage of the donee, but for legitimate purposes, for which it has been used, yet the Court, from the special relationship which exists between the parties, will infer the existence of influence, and in the case of large gifts, not to be reasonably accounted for on the ground of friendship, relationship, &c., will throw, upon the donee the burden of supporting the gift, by proving that the donor had, or could have had if he had wished it, independent advice, and was free to act upon it when given (c). In the following special relations (Parent and Child, Husband and Wife, &c., &c., infra), influence is presumed {d). But this is not an exhaustive enumeration, but is intended for the purpose of illustration. The Court has declined to fetter the rule by any enumeration of the description of persons against whom it ought to be freely used (e). The principle upon which equity will give relief as against the persons standing in the following special relations to (a) Pollock, Contracts (1894), p. oSO, D. 462 ; Liles v. Terry, p. 275, infra, and see as to wills, infra, p. 287, (c) See judgment of C'^^^t//;, Z/;if//^'?/, " Gifts by Wni." and Bowen, L.JJ., in Allcard r. (b) See Hunter v. Atkins, 3 M. & Skinner, 36 C. D. 145, passim; K. 135; Cooke v. Lamotte, 15 B. Archer v. Hudson, 7 13. 551; Ehodes 241 ; judgment of Wright, J., in v. Bate, 1 Ch. 252. Morley t'. Loughnan, (1893) 1 Ch., p. (cZ) See Parfitt v. Lawless, L. R. 2 752 ; Wright v. Vanderplank, 8 De G. P. & D. 462. M. & G. 136; Ehodes v. Bate, 1 Ch. (e) Per Cottenham, C, in Dent i: 252 ; Parfitt v. Lawless, L. E. 2 P. & Bennett, 4 My. & C. 262. 270 CONSTRUCTIVE FRAUD. Huguenin v. Baseley. the donor, will be extended and applied to all the variety of relations in which dominion may he exercised by one person over another (a). In these cases the age or capacity of the donor, or the nature of the benefit are of little importance. The point is, had he independent and competent advice ? (6) When such a relation is established, the Court will presume its continuance unless its determination is distinctly proved (c). Parent and Child, and persons in loco parentis. — In Carpenter v. Eerriot (d), where a father having advanced a child in his infancy, upon his coming of age took a bond from him to a greater amount than the sums advanced, and which it appears the son was totally unable to pay. Lord Keeper Henley held that the bond was obtained by parental influence, and decreed that it should not stand as a security for the sums advanced, but be set aside altogether. " If," said his Lordship, "a bond be given with advice and deliberation, this Court will not set it aside for the obligor, but if a man gives a voluntary bond for more than he is able to pay, the transaction speaks weakness on the one side, and a sort of imposition on the other " (e). The same principles are applicable to a person obtaining a voluntary gift, who has put himself in loco parentis towards the donor. Thus, in the case of Archer v. Hudson (/), a niece, two months after she came of age, and after her guardians had fully accounted to her, entered into a voluntary security for her uncle, by whom she had been brought up, and who was considered by the Court as standing in loco parentis. Langdcde, M.R., set aside the security. " Nobody," observed his Lordship, " has ever asserted that there cannot be a pecuniary transaction between a parent and child, (a) Per Cottenham, C, in Dent v. Cliambers v. Crabbe, 34 B. 457 ; Blun- Bennett, 4 My. & C. 262. And see den v. Barker, 1 P. W. 639 ; Young v. Smith V. Kay, 7 H. L. Cas. 750 ; Tate Peachy, 2 Atk. 254, 258 ; Glissen v. V.Williamson, lEq., p. 536; 2Cli.,p.61. Ogden, cited 2 Atk. 258 ; Heron r.H., {h) Ehodes v. Bate, 1 Ch. 252. 2 Atk. 167 ; Hawes v. Wyatt, 3 Bko. (c) Ibid. Commented on in Mit- Ch. 156; Hogbton v. H., 15 B. 278; chell V. Homfray, 8 Q. B. D. 592 ; and Meadows v. M., 16 B. 401 ; Bury r. see Tate V. Williamson, 2 Cb. 61. Oppenbeim, 26 B. 594; Turner v. {d) 1 Eden, 338. Collins, 7 Cb. 329, 342 ; Jenner v. J., (e) See also Cocking v. Pratt, IV. 2 De G. F. & J. 359 ; Baker v. Brad- 401 ; Wrigbt v. Vanderplank, 8 De ley, 7 De G. M. & G. 597 ; Savery i-. G. M. & G. 133 ; Potts v. Surr, 34 B. King, 5 H. L. Cas. 627 ; Bellamy v. 543, 552; Davies v. D., 4 Gif. 417; Sabine, 2 Cb. 425. King v. K., 3 Jur. (N. S.) 609, 611; (/) 7 B. 551. UNDUE INFLUENCE. 271 Huguenin v. Baseley. the child being of age ; but everybody will affirm in this Court that, if there be a pecuniary transaction between parent and child, just after the child attains the age of twenty-one years, and prior to what may be called a complete 'emancipation/ without any benefit moving to the child, the presumption is, that an undue influence has been exercised to procure that liability on the part of the child ; and that it is the business and the duty of the party who endeavours to maintain such a transaction, to show that that presumption is adequately rebutted ; and that it may be adequately rebutted is perfectly clear. This Court does not interfere to prevent an act even of bounty between parent and child ; but it will take care (under the circumstances in which the parent and child are placed before the emancipation of the child) that such child is placed in such a position as will enable him to form an entirely free and unfettered judgment, independent altogether of any sort of control " (a). If the transaction between parent and child is reasonable, and entered into with good faith, equity will not interfere, as in Blackborn v. Edgeley (b). And so where the dealing between them is of the nature of a family arrangement, as when a father prevails upon a son, tenant in tail under a settlement, to take an estate for life only, with remainder to his first and every other son, the transac- tion will not be set aside upon the suggestion of the father's having an undue influence over him (c). So, if a son, tenant in tail, and a father, tenant for life, agree on something for the benefit of the younger children, and afterwards the son complains of paternal authority being exerted, though there might be something of that sort, yet, if the agreement be reasonable, the Court will not set it aside {d). In regarding claims to set aside a re-settlement of family estates the Court regards considerations which would otherwise not be allowed. And it is not essential when the son is tenant in tail in (a) And see Grosvenor v. Sherratt, {b) IP. W. 600, 606 ; cf. Firinia v. 28 B. 659 ; Sharp v. Leach, 10 W. E. Pulham, 2 De G. & Sm. 99. 878 ; Eevett v. Harvey, 1 S. & S. 502 ; (c) TenclrU v. Smith, 2 Atk. 86 ; Dettmar v. Metropolitan, &c. Bank, 1 Jenner v. J., 2 De G. F. & J. 359. Hem. & M. 641 ; Smith v. Kay, 7 H. (d) Cory v. C, 1 V. 19; Hartopp v. L. Cas. 772 ; Wright v. Vanderplank, H., 21 B. 259; see, as to family 8 De G. M. & G. 133, 146 ; Maitland v. an-angements, Stapilton v. S., note, p. Backhouse, 16 Si. 58; Potts v. Suit, 242, supra; Meadows i;. M., 16 B. 401 ; 34 B. 543 ; Savery v. King, 5 H. L. Baker v. Bradley, 2 Sm. & G. 531 ; Cas. 627; Bainbrigge v. Brown, 18 Jenner r. J., 2 De G. F. & J. 359. C. D. 188. 272 CONSTRUCTIVE FRAUD. Huguenin v. Baseley. remainder that he should have indeioendent advice, and the Court will not inquire whether the influence of the father was exerted with more or less force. And even if the father obtains a benefit is it necessarily unfair, and even if unfair the whole settlement will not be avoided (a). Husband and Wife. — This is one of the confidential relation- ships enumerated by Lord Penzance in Parjitt v. Lauiess (6). Guardian and Ward. — " Where," says Lord Hardwicke, " a man acts as guardian, or trustee, in the nature of a guardian, for an infant, the Court is extremely watchful to prevent that person's taking any advantage immediately upon his ward or cestui que trust coming of age, and at the time of settling accounts or delivering up the trust, because an undue advantage may be taken. It would give an opportunity, either by flattery or force — by good usage unfairly meant, or by bad usage imposed — to take such an advantage. And, there- fore, the principle of the Court is of the same nature with relief in this Court, on the head of ])ublic utility ; as in bonds obtained from young heirs, and rewards given to an attorney pending a cause, and marriage brokage bonds. All depends wpon public utility; and, therefore, the Court will not suffer it, though, perhaps, in a particular instance, there may not be any actual unfairness. * * * The rule of the Court as to guardians is extremely strict, and in some cases does infer some hardship : as where there has been a great deal of trouble, and the guardian has acted fairly and honestly; and yet he shall have no allowance. But the Court has established that on great utility and on necessity, and on this j)rinciple of humanity, that it is a debt of humanity, that one man owes to another, as every man is liable to be in the same circumstances (c). A gift from a ward to a guardian will be the more readily set aside, if, at the time of its being made, the guardianship accounts are not all settled, or the ward's property is retained by his guardian (d). (a)Hoblynf.H.,4lC.D.201,supra, Cox's note ; S.C, cited 2 V. 549; p. 244; see Fane v. F., 20 Eq. 698; Hylton v. H., 2 V. 547. And see Turner v. Collins, 7 Ch. 329. Cf. Dawson v. Massey, 1 BaU & B. 219, Button V. Thompson, 23 C. D. 278 ; where a lease granted to a guardian, Chesterfield v. Janssen, p. 314, infra. and Aylward v. Kearney, 2 Ball & B. (h) 2 P. & D. 462. 463, where leases granted to a guar- (r) Hj'lton V. H., 2 V. 549; see dian's son were set aside. See and Maitland v. Backhouse, 16 Si. 58 ; consider Cray v. Mansfield, 1 V. 379 ; Hatch V. H., 9 V. 292, 7 E. E. Wood v. Downes, 18 V. 127 ; Wright v. 195. Proud, 13 V. 136 ; Thornber v. Sheard, {'I) Pierse v. Waring, 1 P. W. 121, 12 B. 589. UNDUE INFLUENCE. 273 Huguenin v. Baseley. And such transactions will be set aside after a considerable lapse of time, when the donor has not been a free agent. Thus in Hatch v. H. (a) a guardian, who was incumbent of a living, obtained from his ward, soon after she came of age, a convey- ance of the advowson of the living expressed to be made in consideration of her great friendship, kindness, and regard for him, the care taken of her by him, &c. ; and of 10s. to his brother, who was the attorney who prepared the deed, and one of the attesting witnesses, and who afterwards became her husband. She continued to live with her guardian for about four years afterwards, when she married her guardian's brother ; and sixteen years after her marriage, upon the death of her guardian, she and her husband filed a bill to be relieved against the conveyance. Eldon, C, considering that she had never been her own mistress, being with her guardian till her marriage, and with her husband since, notwithstanding the time which had elapsed, and taking into consideration the nature of the property, ordered the instrument to be delivered up to be cancelled ; but as the husband was 'particeps criminis, the order was made without costs. In The Duke of Hamilton v. Mohun (b) the duke being about to marry, entered with great deliberation into marriage articles, one of which was, that he should, within two days after the marriage, release his intended wife's mother, who was her guardian, of all accounts of the mesne profits of the estate. Cowper, C, admitting that there had been no surprise, held, that the covenant to make such release ought to be set aside, as it seemed to be extorted from the duke by one who had a power over the young lady as a parent, which ought not to have been made use of in that manner ; that it was as if the mother should say, ' You shall not have my daughter unless you will release all accounts ; ' and that, to tolerate such an agreement would be paving a way to guardians to sell infants under their ward- ship ; and the greater the fortune was, the greater would be the temptation to treat in this manner with the guardian. So a voluntary settlement made by a female ward soon after she came of age, under the influence of her guardian, and without the advice of an independent solicitor, and the effect of which was to deprive her of the control over her own property, was set aside as improvident, especially as no power of revocation (c) Avas reserved {d). (a) 9 Y. 292, 7 R. E. 195. Phillips v. Mullings, 7 Ch., p. 247; \h) 1 P. W. 118. James v. Couchman, 29 C. D., p. 217. (c) See Woolaston v. Tribe, 9 Eq. 44 ; {d) Everitt r. E., 10 Eq. 40J. W. & T. — VOL. I. ly 274 CONSTRUCTIVE FRAUD. Huguenin v. Baseley. The principle applies also to any person assuming the office and functions of a guardian although not legally so constituted (a). Where, however, the influence, as well as the legal authority of the guardian over the ward, has completely ceased, and the ward has been put into possession of his property, after a full and fair settlement of accounts, equity will not interfere to set aside a reasonable gift to the guardian. See Hylton v. H. (b), Hatch v. H. (c), where Lord Eldon says, " There may not be a more moral act, one that would do more credit to a young man beginning the world, or afford a better omen for the future, than if, a trustee having done his duty, the cestui que trust, taking it into his fair, serious, and well-informed consideration, were to do an act of bounty like this. But the Court cannot permit it, except quite satisfied that the act is of that nature, for the reason often given." Trustee and Cestui que trust. — Much the same principles apply as in the above-mentioned relations of parent and child, and guardian and ward (d). A trustee, moreover, cannot bargain with his cestui que trust for a benefit, and it has even been laid down that a cestui que trust cannot give a benefit to his trustees (e). Legal Adviser and Client. — Courts of equity have always acted strictly up to this rule, that a solicitor can, by act inter vivos, take nothing for his own benefit from his client pending a suit, save his demand, or indeed at any time while the connection between them subsists, with the influence attending it : for though the transaction be as righteous as ever was carried on, it is the settled law, that the connection must, as in the case of guardian and ward, be hondjide dissolved, before he can take anything beyond his regular fees (/). (n) Griffin v. De Veulle, 3 P. W. Welles v. Middleton, 1 Cox, 112; 4 131 ; Hylton v. H., 2 V. 547. Bro. P. C. 245 ; Newman v. Payne, 2 {h) 2 V. 549. V. jun. 199 ; Hatch v. H., 9 V. 296, (c) 9 V. 296. 7 R. E. 195 ; Wood v. Downes, 18 V. (d) See Hatch v. H., 9 V. 192, 7 120; and Strachan v. Brandon, there E. E. 195 ; Ellis v. Barker, 7 Ch. 104 ; cited, p. 127 ; Moore v. Prance, 9 Ha. Tate V. Williamson, 1 Eq., p. 536. 299 ; lie Ingle, 21 B. 275 ; Walker v. (e) Vaughton v. Noble, 30 B. 39. Smith, 29 B. 394 ; Re Holme's Estate, (/) Proof V. Hines, Cas. t. Talbot, 3 Gif. 337; O'Brien v. Lewis, 4 Gif. 116; Gibson V. Jeyes, 6 Ves. 266, 5 221; Tomson v. Judge, 3 Drew. 306; E. E. 295 ; Walmesley v. Booth, 2 Gardener v. Ennor, 35 B. 549 ; Mor- Atk. 25 ; Drapers' Company v. Davis, gan v. Minett, 6 C. D. 638 ; W. N. 2 Atk. 295; Oldham v. Hand, 2 1877, p. 153; Morgan v. Green, V. 259; Wright v. Proud, 13 V. Ibid ; Tyars t;. Alsop, 59 L. T. E. 369. 136; Hatch v. H., 9 V. 292; UNDUE INFLUENCE. 275 Huguenin v. Baseley. In Liles v. Terry (a) the plaintiff made a voluntary conveyance of leasehold premises to the defendant, John F. Terry, upon trust for herself for life, and after her death upon trust for her niece, the wife of the defendant Terry, for her separate use absolutely. The plaintiff was a spinster of seventy-seven years of age. The defendant, J. F. Terry, had acted as her solicitor in respect of certain litigation about the property conveyed, and the plaintiff had promised that if he would so act without charge she would leave his wife the property. On an action to set aside the deed, Charles, J., held there was nothing to show undue influence or unprofessional conduct ; that the plaintiff had had the matter fully explained to her ; and that the deed carried out her intention ; and gave judgment for defendants. The C. A. reversed the judgment, holding that as the confidential relation existed, it was impossible to rebut the presumption of undue in- fluence, unless the donor had competent and independent advice ; and that a gift to the wife stood on the same footing as a gift to the sohcitor himself And a solicitor having the conduct of a suit, may not purchase the subject-matter of it (6). Where, however, there was no cause pending, and it was proved that there was no undue influence exercised by the attorney, a gift to him has been held valid (c). A voluntary conveyance to counsel by the client, expressed to be in consideration of the services of counsel, will be set aside on the ground of public policy (c^). Whenever a professional man is called upon to give his services to his client, whether to prepare a deed or will, the law imputes to him a knowledge of all the legal consequences to result therefrom, and requires that he should distinctly and clearly point out to his client all those consequences from whence a benefit may arise to himself from the instrument so prepared ; and if he fail to do so, a Court of equity will deprive him of it. In Segrave v. Kirwan (e) a barrister drew a will for a friend, and was made executor, in which character he became entitled to the personal estate ; he was held, however, by Hart, C, to be a trustee for the next of kin (/). And it has moreover been expressly decided, that the relation of («) (1895) 2 Q. B. 679. (c) Oldham v. naud. 2 V. 259 ; and (6) Simpson v. Lamb, 26 L. J. Q. B. see Harris v. Tremenheere, 15 Y. 34. 121 ; Davis v. Freethy, 24 Q. B. D., {d) Broun v. Kennedy, 33 B. 133; 4 p. 523 ; and see Luddy's Trustee v. De G. J. & S. 217. Peard, 33 C. D. 884 ; and James v. (e) Beat. 157. Kerr, 40 C. D. 449. (/) See also Bulkley v. Wilford, 2 18 2 276 CONSTRUCTIVE FRAUD. Huguenin v. Baseley. counsel and client renders tlT,e parties mutually incapable of making any contract of hiring and service concerning advocacy in liti- gation (a). But agreements between a solicitor and his client for the remuneration of the former are now valid, subject to the conditions imposed by the under-mentioned Act (6). Religious Influence — "The equitable doctrine of undue influence (in gifts * inter vivos ') has grown out of and been developed by the necessity of grappling with insidious forms of spiritual tyranny and with the infinite varieties of fraud (c). The influence of one mind over another is very subtle, and of all influences religious influence is the most dangerous and the most powerful, and to counteract it Courts of equity have gone very far " {d). " Equity will not allow a person who exercises or enjoys a dominant religious influence over another to benefit directly or indirectly by the gifts which the donor makes under, or in consequence of, such influence unless it is shown that the donor, at the time of making the gift, was allowed full and free opportunity for counsel and advice outside — the means of considering his worldly position and exercising an independent will about it. This is not a limitation placed upon the action of the donor ; it is a fetter placed upon the conscience of the recipient of the gift, and one which arises out of public policy and fair play " (e). In Allcard V. Skinner (/) plaintiff A., being about thirty-five years of age, was introduced in 1868 by her spiritual adviser N. to the defendant S., who was the superior of a sisterhood of which N. was the spiritual adviser and confessor. In 1870 A. became entitled to certain CI. &Fm. 102 ; Nanney v. Williams, 22 B. 452 ; Corley v. Stafford, 1 De G. & J. 235; Exp. Collins, 2 Ir. Ch. Eep. 618 ; Garrett v. Wilkinson, 2 De G. & Sm. 244 ; Clark v. Gii-dwood, 7 C. D. 9; Cockburn v. Edwards, 18 C. D. 449, 455 ; Pooley's Trustees v. Whet- ham, 33 C. D. 111. (a) Kennedy v. Broun, 13 C. P. (N. S.) 677; Robertson v. Macdonough, 6 L. E. Ir. 433. (5) The Attorney and Solicitors Act, 1870, s. 4; Pontifex v. Farnham, 41 W. E. 238; Re Stuart, (1893) 2 Q. B. 201 ; Re Thomas, (1893) 1 Q. B. 670; Re Thompson, (1894) 1 Q. B. 462 ; and see as to Court having jurisdiction to set aside agreement. Re Jones, (1895) 2 Ch. 719; affirmed by C. A., (1896) 1 Ch. 222. The Solicitors' Eemuneration Act, 1881, s. 8; Re Palmer, 45 C. D. 291 ; Davis v. Free- thy, 24 Q. B. D., p. 523 ; Re Dnice, 94 L. T. Jo. 583 ; Re Frape, (1893) 2 Ch. 284 ; Re Lewis, 1 Q. B. D. 724 ; Re West, King & Co., (1892) 2 Q. B., p. 106. (c) Per Lindley, L.J., Allcard v. Skinner, 36 C. D., p. 183. See as to gifts by will, infra, p. 287. (d) Ibid. (e) Per Bowen, L.J., ibid., p. 190. (/) 36 C. D. 145. UNDUE INFLUENCE. 277 Huguenin v. Baseley. property both as tenant for life and absolutely ; she became a postu- lant in the same year, and made a will leaving all her property to defendant S. She then became a novice, and in 1871 she became a professed member of this society, and took the vows of poverty, chastity, and obedience. During the period in which she was a pro- fessed member of the society, from August, 1871, to May, 1879, she made over to defendant S. sums amounting to ujDwards of 5,000^., all of which, except about 1,000^., were spent for the purposes of the society. The sum of 1,OOOZ. remained in the hands of S. In May, 1879, she left the society and immediately revoked her will, but made no claim for the return of her property until March, 1885, and did not issue the writ in the action until August, 1885. The C. A. {Cotton, Lindley, and Boiven, L.JJ.) held, dissentiente Cotton, L.J., affirming the decision of Kekewick, J., that under the circumstances the plaintiff had, by her conduct after she was free from all influence from D. or S., confirined the gifts, and Avas barred therefore from obtaining the relief to which she would otherwise have been entitled. The C. A. found as a fact, that no pressure, except the inevitable pressure of the vows and rules, was brought to bear on the plaintiff ; that no deception was practised upon her; that no unfair advantage was taken of her ; that none of her money was obtained or applied for the private advantage of N. or S., or for any purpose other than the legitimate purposes of the sisterhood {a) ; nor was there any actual exercise of power or influence over her in respect of these gifts, either by N. or by S., apart from that necessarily incidental to their position in the sisterhood (6). Everything done by the plaintiff was in the opinion of the Court referable to her own willing submission to the vows she took, and to the rules which she approved. Nevertheless the Court held that these gifts were in fact made under a pressure which whilst it lasted she could not resist, and were therefore not past recall when that pressure was removed. If in 1879, when she was emancipated from the spell by which she was bound, she had uivoked the aid of the Court to recover the money in the hands of S., she would have been entitled to its aid (c). There was no proof in tliis case that the plaintiff, at the time these gifts were made, had an oppoi'tunity of obtaining free and independent advice, and knew that she might have obtained such advice if she wished for it, and there was a rule against consulting externs which (a) See judgment of Lindley, L.J., {h) Ibid., p. 183. Allcard v. Skinner, 36 C. D., p. 179. (c) See pp. 186 and 191. 278 CONSTRUCTIVE FRAUD. Huguenin v. Baseley. pointed the other way ; and even if such proof had been given, Lindley, L.J., doubted if the gifts could have been supported without further proof that she was free to act on the advice which might be given to her (a). In Morley v. Loughnan (b), the defendant L., a man of no means, was a member of a religious sect known as the Plymouth Brother- hood. This sect was divided into two orders, open brethren and exclusive brethren, and L. belonged to the exclusive order. In 1881 L. was employed as travelling companion to M., a person of large fortune, subject to epileptic fits, never physically or mentally strong, morbidly religious and easily influenced, but still not incapable of managing his own affairs. M. was at this time about thirty years old, was a member of the open order of Plymouth Brethren, and resided on his own estate. In 1883 he invited himself to stay with L., and from that time until his death in 1891, he, except for short intervals, continued so to reside, giving up his own home. During this period he became converted by L. to his own order of exclusive brethren ; he was in a low and morbid condition, he made large payments to L., not requiring any accounts to be furnished to him ; he placed his banking account at his disposal, and he made a series of wills in L.'s favour, and the aggregate amount obtained by L. from M. was 140,000^. In 1891 M. died by his own hand, bequeathing the remainder of his property to his brothers and sisters. In the same year the executors of his will commenced this action against L. to recover the 140,000^. as having been obtained by undue influence. L. had given certain sums, part of this money, to his brothers and brother-in-law, and these persons were subsequently made defendants for the purpose of making them liable to the extent of the gifts received by them. The Court (Wright, J.) held that the money was obtained by the exercise and abuse of personal influence and ascendency established and maintained for that very purpose under a cover of religion and religious brotherhood, that the gifts were not the result of M.'s own free will, but the effect of that influence and domination. Further, that the case came also within the rule laid down by Bowen, L.J. in Allcard v. Skinner (c) as to fiduciary relationship, and that as to 50,000?., part of the 140,000?., which the Court held was given for furthering certain religious works, L. was liable on another ground, for as he had received it for a definite (a) Page 184. 1944, F. 3. (b) (1893) 1 Ch. 736 ; Seton (1893), p. (c) 36 C. D. 145. UNDUE INFLUENCE. 279 Huguenin v. Baseley. purpose, he could not repudiate that purpose and claim to keep it for his private and selfish ends. The Court also held that the claim must succeed against the other defendants, citing with approval the judgment of Eldon, C. in the principal case {a). In Norton v. Relly (b) a grant of an annuity obtained by a dis- senting minister having a spiritual ascendency over a Avoman under a state of religious delusion, was set aside upon principles of public policy (c). In Huguenin v. Baseley the donation was set aside, it seems, not merely on the ground of the spiritual ascendency and undue influence obtained by the defendant over the mind of the plaintiff, Mrs. Huguenin, but also on the ground of his having abused the confi- dence placed in him by her, as an agent managing her affairs (cZ). In Lyon v. Home (e) Mrs. Lyon, a widow, aged seventy-five, within a few days after seeing one Home, who claimed to be a "spiritual Tnediuon," was induced from the belief that she was fulfilling the wishes of her deceased husband, conveyed to her through the medium of Home, to adopt him as her son, to transfer 24,000^. to him; to make her will in his favour; afterwards to give him a further sum of Q,000l. ; and also to settle upon him, subject to her life interest, the reversion of 30,000^. These gifts were made with- out consideration, and without power of revocation. It was held by Giffard, V.-C, that the relation proved to have existed between them implied the exercise of dominion and influence by Home over Mrs, Lyon, and, consequently, that as Home had failed to prove that these gifts were the pure, voluntary well-understood acts of Mrs. Lyon's mind, they must be set aside (/). Medical Attendant. — In Dent v. Bennett (g) a gift obtained by a medical attendant from his patient was set aside by Lord Cottenhani, (a) Supra, p. 255. trustees for religious purposes, Re {b) A decision of Lord Northingtoii's, Metcalfe's Trusts, 2 De G. J. & S. 122, 2 Eden, 286. as to wkicli, see article in 10 Jur. (c) See also Nottidge v. Prince, 2 (N. S.), p. 91. Gif . 246 ; and see and consider Kii-wan (d) See Middleton v. Sherburne, 4 V. Cullen, 4 Ir. Ch. Eep. 322 ; Mac- Y. & C. 390, 391 ; Moxon v. Payne, 8 cabe V. Hussey, 2 Dow & CI. 440. Ch. 881, 887. See as to the validity of gifts from (e) 6 Eq. 655. nuns to their convents, Whyte v. (/) See Seton (1893), p. 1942, F. 3. Meade, 2 Ir. Eq. Eep. 420, referred to See also Gibson v. Russell, 2 Y. & C. but distinguished by CoUon, L. J., in C. C. 104 ; Fowler v. Wyatt, 22 B. 232, Allcard v. Skinner, supra : Fulham v. 237. Macarthy, 1 H. L. Gas. 703 ; or to {g) 4 My. & C. 262. 280 CONSTRUCTIVE FRAUD. Huguenin v. Baseley. who held that medical attendants were undoubtedly within that class of persons whose acts, when dealing with their patients, ought to be watched with great jealousy, but he declined to " run the risk of in any degree fettering the exercise of the beneficial jurisdiction of the Court by any enumeration of the description of persons against whom it ought to be most freely used." In Mitchell v. Homfray (a) the executors of Mrs. G., a widow, sought to recover a sum of 800^. from defendant, who had acted as her medical attendant. In 1871, Mrs. G. was living at Gainford, and gave the defendant, her medical attendant, two cheques for 500^. and 300?., to buy a house. Defendant alleged the gift was made in pur- suance of the wish of Mrs. G.'s husband, and that he the defendant had agreed to pay and had paid Mrs. G. an annuity of 40?. for her life. In 1882 Mrs. G. went to live elsewhere and the relation ceased, but she survived for three years. The case was tried before a jury, and on a new trial before a special jury they found that the advance of the 800?. was a gift ; that there was no undue influence ; that the rela- tion of patient and medical adviser came to an end a year after the gift ; that aftei' such determination of the relationship, and after any effect produced by it had been removed, Mrs. G. had confirmed the gift. It was admitted that Mrs. G. had not received any independent advice when the gift was made, and that defendant was at that time her medical adviser. The Court entered judgment for defendant, and the C. A. upheld the judgment (6). Other distances of Special Relationship. — Where a widower mar- ried the sister of his deceased wife, it was held by Cami^bell, C, that the relation thus constituted imposed upon the widower claiming the benefit of a settlement made on him by his wife's sister, the onus of showing that at the time of entering into the transaction she was fully, fairly, and truly informed of its character and of her legal status (c). The influence of a man over a woman to whom he is engaged to be married is presumed to be so great, that the Court will look with oreat vigilance at the circumstances and situation of the parties, and will not only consider the influence which the intended husband, either by soothing or violence, may have used, but require satisfactory evidence that it has not been used {d). (a) 8 Q. B. D. 587. (c) Coulson v. Allison, 2 De G. F, [h) Cf. Pratt V. Barker, 4 Euss. 507 ; & J. 521. Wright V. Proud, 13 V. 186; Tyars v. {d) Page v. Home, 11 B. 227, 235, , Alsop, 59 L. T. E. 369, 236 ; Cobbett v. Brock, 20 B. 524 ; UNDUE INFLUENCE. 281 Huguenin v. Baseley. So, the undue influence of an elder over a younger sister has been deemed fatal to the validity of a voluntary settlement in favour of the former. In Harvey v. Mount (a), a voluntary settlement by a younger sister of the whole of her present and future property principally in favour of her eldest sister, was set aside upon the same principle as the transaction in the principal case, viz., that the eldest sister had obtained great ascendency and influence over the younger sister, and was allowed to assume the management of all her affairs ; the circumstances of the transaction moreover being open to suspicion, the settlement being very improvident, and the younger sister not having had the benefit of independent professional advice (b). In Rhodes v. Bate (c) a person who acted as agent was held to occupy such a confidential relationship, and as to an oflicer and subaltern just of age see Lloyd v. Clark {d). As to the position in this respect of the promoter of a company, see the j udgment of Lord Penzance in Erlanger v. New Sombrero, &c. Co. (e) and Sir F. Pollock's note thereon (/). In Wheeler v. Sargeant (g) an executor before probate obtained a gift from a beneficiary. The plaintiff had no competent or in- dependent advice, and the Court held that his position alone as executor without any words of pressure yet amounted in fact to pressure, and ordered restitution of the gift. 3. Where there is no Special Confidential Relationship between Donor and Donee. In cases where the intimate relations before-mentioned do not exist between the donor and donee, fraud or undue influence niust be proved against the donee in order that the gift may be set aside (h). Livesy v. Smitli, 15 C. D. 655 ; James {g) 3 E. 663. V. Holmes, 31 L. J. (N. S.) Cli. [h] See Hunter v. Atkins, 3 My. & 567. K. 113; Beanland v. Bradley, 2 Sm. («) 8 B. 439. & G. 339; Blackie v. Clark, 15 B. {h) And see Osmond v. Fitzroy, 3 595 ; Toker v. T., 31 B. 629 ; Smith v. P. W. 129, and note ; Bridgman v. Kay, 7 H. L. Cas. 750 ; Allcard v. Green, 2 V. 627 ; Wilm. 58 ; Sharp v. Skinner, 36 C. D., p. 171 ; and see Leach, 31 B. 491. Moncreifi, Fraud (1891), p. 291 ; Pol- (c) 1 Ch. 252. lock, Contracts (1894), p. 584, com- {d) 6 B. 309. menting upon Highton v. H., Cooke (e) 3 App. Cas., p. 1230. v. Lamotte, 15 B. 234 ; Phillips v. If) Pollock, Contracts (1894), p. Mullings, 7 Ch. 244 ; Eees w. De Ber- 583. nardy, 12 Tunes L. E. 412. 282 CONSTRUCTIVE FRAUD. Huguenin v. Baseley. And in such cases the age or capacity of the donor and the nature of the benefit are material (a). Where a man induces a person of weak intellect and improvident habits to execute a settlement without independent legal advice and without understanding it, or knowing the amount of the property settled, or the effect of the settlement, it will be set aside, even although the execution of the settlement was not procured by any unworthy motives, but with the object of protecting the settlor against his own improvidence (b). One party may acquire undue influence over another by operating on his fears, as for instance in Williams v. Bayley (c), in which case a son had taken to his and his father's bankers promissory notes purporting to be indorsed by his father. The son had forged the indorsements. The bankers at an interview which took place between them, the son, the father and the father's solicitor, said in effect to the father (c/) , " We have the means of prosecuting and transporting your son. Do you choose to come to his help and take on yourself the amount of his debts — the amount of these forgeries ? If you do, we will not prosecute ; if you do not, we will." The ftither there- upon executed an agreement to mortgage his property to the bankers, and the forged notes were given up to him. Two questions arose in the action brought by the father to set aside this agreement : was the plaintiff a free and voluntary agent, or did he give the security in question under undue pressure exerted by the defendants ? Was the transaction independently of pressure illegal (e) ? As to the first point Lord Westhury said : " A contract to give security for the debt of another which is a contract without consideration, is above all ' things a contract that should be based upon the free and voluntary agency of the individual who enters into it. But it is clear that the power of considering whether he ought to do it or not, whether it is prudent to do it or not, is altogether taken away from a father who is brought into the situation of either refusing, and leaving his son in that perilous position, or of taking on himself the amount of that civil obligation." And the decree setting aside the security was upheld on both grounds (/). (a) Ehodes v. Bate, 1 Ch. 252. Flower v. Sadler, 10 Q. B. D. 572. (5) Button V. Thompson, 23 C. D. {d) See judgment of Cranworth, C, 278; Smith v. Kay, 7 H. L. Cas. 750 ; in Williams v. Bayley, p. 212. cf. Chesterfield v. Janssen, infra; Ellis (e) See judgment of Lord Westhury, V. Barker, 7 Ch. 104; Grosvenor v. id. p. 216. Sherratt, 28 B. 659. (/) See McClatchie v.Haslam.Seton, {(■.) 1 L. E. H. L. 200, explained in 1893, p. 1942, F. 2; Davies v. London, UNDUE INFLUENCE. 283 Huguenin v. Baseley. An appointment made in exercise of a power by a wife in favour of her husband will be considered good, unless the wife or other persons impeaching the instrument show that it was executed under circumstances sufficient to invalidate it, and the evidence of one of the witnesses that the wife was agitated and distressed and signed the deed in a reluctant manner, has been held to be insufficient (a). In the absence of any fiduciary relation, such as that of guardian and ward, between the donor and donee, and also of any undue influence on the part of the latter, an infant may make a donation of any chattels or personal property in his actual possession (6). " There are endless variations of the fiduciary position which do not fall under any strictly defined head. Some of those relations are continuing, others temporary ; but in all the question is, whether the person parting with property by way of gift, or entering into a contract, had a full and free opportunity of judging for himself (c)." The principle on which relief is given applies to all cases where influence is acquired and abused, and confidence reposed and betrayed (d). Inadequate Consideration. — Mere inadequacy of consideration is by itself merely evidence of fraud or undue influence, but when coupled with other circumstances, such as weakness of mind (e), ill- ness and ignorance (/), poverty (g), may have the effect of showing that the vendor was not a free and reasonable agent, and may throw the burden on the purchaser of showing the contract was fair (h). 4. How far the Court will Interfere as against Third Parties. An interest obtained by undue influence, as Lord Eldon decided in the principal case, cannot be held by third parties, although innocent of fraud. " Whoever receives the gift, must take it tainted and &c. Marine Insurance Co., 8 CD., p. by promoter to director. 475 ; Boyse v. Eossborough, 6 H. L. {d) Smith v. Kay, 7 H. L. Cas. Cas. 2 ; Lound v. Grimwade, 39 C. D. 750. 605. (e) Longmate v. Ledger, 4 Do G. F. (a) Nedby v. N., 5 De G. & Sm. 377, & J. 402. 384. (/) Clark v. Malpas, 31 B. 80; (5) Taylor v. Johnston, 19 C. D. 603, Baker v. Monk, 33 B. 419; cf. Eees v. 608. De Beruardy, 12 Times L. E. 412. (c) Moncreiff on Fraud (1891), p. [fj) Fry v. Lane, 40 C. D. 312. 293; and see Tate v. Williamson, 2 (A) See Moncreiff on Fraud (1891), Cb. 55; Fox t'. Mackretb, 1 Bro. Cb. p. 294; Pollock, Contracts (1894), p. 424, 2 E. E. 55, post ; Eden v. Eids- 596. As to catcbing bargains with dales, &c. Co., 23 Q. B. D. 368 ; gift beirs, see Chesterfield v. Janssen, post. 284 CONSTRUCTIVE FEAUD. Huguenin v. Baseley. infected with the undue influence and imposition of the person procuring the gift ; his partitioning and cantoning it out amongst his relations and friends will not purify the gift and protect it against the equity of the person imposed upon. Let the hand receiving it be ever so chaste, yet, if it comes through a polluted channel, the obligation of restitution will follow it {a)." And Wright, J., cited this passage with approval in Morley v. Loughnan {h), holding the brothers and brother-in-law of the defendant equally liable with the defendant to the extent of the sums which they had received from him. Where persons, having notice of the undue influence which one party has power to exercise over another, combine with the former party in order to obtain an advantage for themselves, the transaction will be set aside. Thus, where a creditor obtains a security from a person likely to be under the influence of his debtor, as, for instance, in the case of a son or younger brother of the debtor's just come of age, the 07ius will lie upon the creditor of showing that such person understood the transaction, and that he did not act under any undue influence, otherwise the transaction will be set aside (c). So in Maitland v. Irving (d), Irving and Brown, who were partners as coal-merchants, consented to postpone the payment of 5,0001. due to them from Maclean, in consideration of his procuring and giving the guarantee of the plaintiff. Miss Maitland, for that sum ; and Maclean at the same time informed Irving and Brown that Miss Maitland was his niece, and was possessed of considerable property ; that she had resided with him for some time, that he had been her guardian, and that she had been of age about a year and a half. Afterwards, another arrangement was made between Irving and Brown and Maclean, in pursuance of which Irving and Brown delivered up the guarantee, and Maclean procured and gave them the plaintiff's cheque for 3,000^. and her promissory note for 1,200^., as securities for his paying them those sums. Shadwell, V.-C, granted and afterwards continued an injunction, restraining Irving and Brown from prosecuting an action against the plaintiff to recover the 3,000Z. ; and notwithstanding they had obtained a verdict, he refused to (a) Per Wilmot, C.J., in Bridgman (i) (1893) 1 Ch., p. 757; p. 278, supra. V. Green, Wilm. 58, 64. And see God- (c) Berdoe v. Dawson, 34 B. 608 ; dard v. Carlisle, 9 Price, 169 ; Schole- Baker v. Bradley, 7 De G. M. & G. field V. Templer, John. 155 ; Smitli v. 597 ; Sercombe v. Sanders, 34 B. 382 ; Kay, 7 H. L. Cas. 750 ; Bainbrigge v. cf. Ebodes v. Bate, 1 Cb. 252. Browne, 18 C. D., p. 197. ('0 1^ Si. 437. UNDUE INFLUENCE. 285 Huguenin v. Baseley. order the money to be paid into Court. " The case," said his Honor, " has been argued for the defendants as if it were a case in which they had some ground to resist the rule in equity, because of their not being volunteers. But no consideration whatever was given to the young lady ; on the contrary, she was induced to do the act upon an application made to her by a person, who, if he had performed his duty, would have advised her not to do that which he applied to her to do. She was influenced by him, or, at least, allowed by him, to give this very guarantee, which was a direct benefit to all the defenders (Maclean was a defendant), in the situation in which they then stood with respect to each other. The facts of the case seem to me to amount to this : that Irving and Brown, knowing the defenceless situation of the young lady, combined with Maclean, who disclosed it to them, in order that advantage might be taken of her defenceless situation, for the benefit of all the three. And my opinion is, that they must all three be considered as standing in the same situation. It is most necessary to consider the transaction in this view, because it is the foundation of the whole case ; for, what subsequently took place was nothing more than a substitution of the note and the cheque for the guarantee " (a). Where, moreover, a gift of property has been obtained by the exercise of undue influence, a purchaser for value subsequently taking with notice of the equity thereby created, or with notice of the circumstances from which the Court confers the equity, will be bound thereby (b). The principles, however, laid down in the cases before mentioned are not applicable to the case of a bond fide purchase without notice. Thus in Blackie v, Clark (c), a married woman having sei^arate estate, joined with her trustee, who was her confidential medical adviser, in granting annuities secured on her separate estate for his benefit. Upon her filing a bill to set them aside as against the grantees, it was held by Romilly, M.R., that the burden of proving their invalidity was on her, and as it appeared that she understood the transaction, and that no undue persuasion or coercion had been proved, the annuities could not be impeached. In Corbett v. Brock (d), a debtor induced a lady, to whom he was (a) And see Maitland v. Backhouse, 574 ; Kempson v. Ashboe, 10 Ch. 16 Si. 58 ; Archer v. Hudson, 7 B.551 ; 15. Espey V. Lake, 10 Ha. 261 ; Dottmar (b) Bainbrigge v. Browne, 18 CD. V. Metropolitan and Provincial Bank 197. (Limited), 1 Hem. & M. 641 ; Ehodes (c) 15 B. 595. V. Bate, 1 Ch. 252 ; W. v. B., 32 B. (d) 20 B. 524. 286 CONSTRUCTIVE FRAUD. Huguenin v. Baseley. engaged to be married, to become security for a debt. After the marriage she insisted that she had been imposed upon. It was held by Eomilly, M.R., that the only duty of a creditor (who was aware of the relation between the parties) towards the lady was to see that she had proper professional assistance, and that any fraud or mis- representation of the debtor in the transaction, of which the creditor had no notice, did not affect his security. " The fact of the intended husband saying, ' I am about to marry a lady who will give you security,' does not amount to notice to them that this security could only be obtained by undue influence (a)." And it seems that although a deed may be valid in respect to purchases without notice of undue influence, as for instance, that of the father over his child as plaintiff in an action, it may at the same time be declared that so far as the father is concerned the deed is not binding in any way on the plaintiff (b). It will be observed that in the principal case, the solicitor who prepared the deeds which were set aside as obtained by undue influence having been made a party to the suit. Lord Eldon observed that it deserved serious consideration " whether he should not pay the costs if the other defendant could not (c)." 5. Delay, Acquiescence, Confirmation. Delay in asserting rights cannot be in equity a defence unless the plaintiff knows his rights {d). In AUcard v. Skinner (e), more than six years had elapsed since the influence had ceased, and the action was commenced, and following the analogy of the Statute of Limitations in actions for money had and received, such delay would be a very material element for consideration (/). And although delay is not a bar in itself, it is a fact to be considered in determining whether there has been an election on the part of the donor to confirm the gift (g). (a) See Cooke v. Lamotte, 15 B. deed was not brought until 10 years 234 ; Hoghton v. H., 15 B. 278. after its execution. (6) Bainbrigge v. Browne, IS C. D. (e) Supra. 188, 199. (/) See judgment of Lindley, L.J., (c) See Baker v. Loader, 16 Eq. 49 ; in Allcardv. Skinner, 36 C. D., p. 186; Beadles v. Burcb, 10 Si. 332 ; Harvey Smith v. Clay, 3 Bro. Ch. 639 (n.) ; V. Mount, 8 B. 439 ; but see Clark v. Hovenden v. Annesley, 2 Sch. & L. Girdwood, 7 C. D. 9. 607, 630. And see Tyars v. Alsop, &c., {d) Per Cotton, L.J., in Allcard v. 59 L. T. E. 369. Skinner, 36 C. D., p. 174 ; Wright v. (g) See judgment of Bowen, L. J., Vanderplank, 8 De G. M. & G. Allcard v. Skinner, 36 C. D., pp. 191- 133, where the action to set aside a 193. UNDUE INFLUENCE. 287 Huguenin v. Baseley. In cases of tins kind there can be no acquiescence until the donov knows his rights and is free from the influence, but ignorance of his rights which is the result of deliberate choice is no answer to a defence of laches and acquiescence. It is enough for the donee to show that the donor knew he might have rights, and being a free agent at the time, deliberately determined not to inquire what they were or to act upon them (a). And see infra, pp. 324-326. 6. Gifts by Will. The rules of equity in relation to gifts inter vivos, by which fraud is presumed when they are obtained from persons standing in certain relations to the donors, are not applicable to gifts by wills (b). " To be undue influence in the eye of the law there must be — to sum it up in one word — coercion. * * * It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do that it is undue influence " (c). But the rule would seem to be wider than this ; coercion or fraud must be proved, e.g. misrepresentations as to the character of the natural objects of the testator's bounty (d). The influence of a person standing in a fiduciary relation to the testator may lawfully be exerted to obtain a will or legacy, so long as the testator thoroughly understands what he is doing and is a free agent (e) ; and the burden of proof of undue influence (/) lies upon those who assert it (g). But " there is one rule which has always been laid down by the Courts having to deal with wills, and that is that a person {h), who is instrumental in the framing of a will, and who (a) See judgment of KeJcewkh, J., Cas. 207; Hindson v. "Wetherill, 5 and of Lindley and Bowen, L.JJ., in De G. M. & Gr., p. 343. Allcard v. Skinner, supra; and see (c) See Wingrove ;;. W., 11 P. D. Lindsay Petroleum Co. v. Hurd, L. R. 81 ; and judgment of Lord Penzance, 1 P. C, p. 239 ; Wright v. Vander- Parfitt v. Lawless, 2 P. & D., p. 469. plank, 8DeG. M. &G. 133; Stumpv. (/) See Wingrove v. W., supra. Gaby, 2 De G. M. & G. 623 ; Wollas- {g) Boyse v. Eossborough, supra ; ton V. Tribe, 9 Eq. 44 ; Jarratt v. Theobald on Wills (1895), p. 22, citing Aldam, 9 Eq. 463 ; Turner v. ColUns, Hindson v. Wetherill, 5 De G. M. & G. 7Ch. 342; Moxon w. Payne, 8 Ch. 88; 301; Walker v. Smith, 29 B. 394; Kempson v. Asbee, 10 Ch. 15; Mit- and Parfitt r-. Lawless, supra ; PoUock, chell V. Homfray, 8 Q. B. D. 587. Contracts (1894), p. 583 (n.). (&) See Parfitt v. Lawless, 2 P. & D. (A) ? A person who has no special 462; Ashwell v. Lomi, 2 P. & D. 477. claim on the testator's bounty, see (c) Per Sir J. Hainien, in Wingrove judgment of Lord Hathrriey, Fulton v. r;. W., 11 P. D., p. 82. Andrews, 7 L. E. 11. L., p. 469. See {d) Boyse v. Eossborough, 6 H. L. also Tyrrell v. Painton, (1894) P., Cas. 4S; Allen r. M-^Phcrson, 1 ILL. p. 159. 288 CONSTRUCTIVE FRAUD. Huguenin v. Baseley. obtains a bounty by that will, is placed in a different position from other ordinary legatees, who are not called upon to substantiate the truth and honesty of the transaction as regards their legacies. It is enouffh in their case that the will was read over to the testator, and that he was of sound mind and memory, and capable of comprehend- ing it. But there is a farther onus upon those who take for their own benefit, after having been instrumental in preparing or obtaining a will. They have thrown upon them the onus of showing the righteousness of the transaction (a)." In Hegarty v. King (6), it was held that a person propounding a will prepared by himself without assistance of any third person, and under which he takes a benefit, is bound to give clear and convincing evidence that the testator knew and approved of the clause under which he took a benefit, and that this principle applied even in the case of a near relative of the testator, and in the absence of such evidence, probate of that portion of the will may be refused, and granted of the remainder. If proved that the instrument contains something induced by fraud, and therefore not the testator's will, this, if severable from the rest, may be struck out by the Probate Court and the will proved without it (c). The jurisdiction rests with the Court of Probate. The Chancery Division will not interfere and declare the legatee a trustee where this would amount to a decision on appeal from the Probate Court {d), though it will where the gift is in accordance with the testator's intention, but the legatee is bound by a secret trust (e) ; and as to cases where the old Court of Chancery would declare a legatee trustee, see Allen v. Macpherson (/). (a) Per Lord Eatherley, ibid., pp. G. 301 ; Harter v. H., L. E. 3 P. & D. 471, 472 ; cf. Donelly v. Broughton, 20 ; Allen v. McPherson, 1 H. L. Cas. (1891) A. C. 435; Tyrrell v. Painton, 209. (1894) P. 151. {d) Meluish v, Milton, 3 C. D. 27. (b) 7 L. R. Ir. 18. (e) See Boyes v. Carritt, 26 C. D. (c) Rhodes v. R., 7 App. Cas. 198; 531. Hindson v. WetheriU, 5 De G. M. & (/) 1 H. L. Cas., p. 262. ( 289 ) EARL OF CHESTERFIELD v. SIR ABRAHAM JANSSEN(a). 1750—1. 2 V. 125 (&). Post Obit Securities — Catching Bargains with Heirs Expectants and Reversioners — Confirmation. A., aged thirty, borrows 5,000/. from B., upon the security of a bond in the penalty of 20,000/., conditioned for payment of 10,000/. if A. survived C, his grandmother, from whom he had great expectations, but not otherwise. A. survived C. a year and eight months, and soon after her death executed a new bond in the penalty of 20,000/., conditioned for payment of 10,000/. to B., which he gave to B. on his delivering up to him the former bond to be cancelled. A bill being filed by the executors of A. to be relieved against the latter bond, as given upon a usurious contract, and an unconscionable bargain, the Court was of opinion that the contract was not usurious, and, without giving any opinion whether the transaction was such as the Court ought to relieve against, as an unconscionable bargain with a person dealing with his expectancy, held, that the acts of A., after the decease of his grandmother, amounted to a confirmation of the original transaction, and gave relief only against the penalty of the last bond. The state of the case upon the pleadings and proofs, as far as was material for the consideration of the Court, was shortly this. John Spencer, in 1738, being possessed of an income of 7,000^. per annum, and of a personal estate in plate, jewels, and furniture, to a great value, and having contracted a debt to the amount of 20,000^. to several persons, mostly tradesmen, by whom he was pressed, and which he was desirous to pay off, proposed to borrow money, and particularly a sum of 5,000^. for that purpose. (a) For other cases of constructive Bowes, post, Fraud on marital rights, fraud, see Fox v. Mackreth, post, Pur- (/>) S. C, 1 Atk. 301 ; 1 WUs. chase by a trustee ; Aleyn v. Belchier, 286. post, Fraud on a power ; Strathmore v. w. & T. — V(n.. I. 19 290 CONSTRUCTIVE FRAUD. Earl of Chesterfield v. Sir Abraham Janssen. As he had a well-grounded expectation of a great increase of fortune on ihe death of his grandmother, the Duchess of Marlborough, if he survived her, he resolved to contract thereon. He was above thirty, originally of a hale constitution, but impaired ; and, although afterwards he lived more regularly, yet he was addicted to several habits prejudicial to his health, which he could not leave off. She was seventy-eight, of a good constitution for her age, and careful of her health. He sent to a market a proposal, which he supposed would easily meet with a purchaser, as it was natural to expect, in common course, that his grandmother should die first, though she was a good old life, and he but a bad young one. This proposal was, that if any one would lend him 5,000Z. he would oblige himself to pay 10,000^. at or soon after the death of his grandmother, if he survived her, but to be totally lost if she survived him. This was rejected by several know- ing persons as not sufficiently advantageous, as it was at first by the defendant, but after\vards accepted by him; and a bond of 20,000^., conditioned to pay 10,000^., was given on those terms. [ (a) The Duchess of Marlborough died the 18th of October, 1744, and in the month of December following, on the defendant's delivering to Mr. Spencer the bond above mentioned to be cancelled, he executed a new bond, whereby he became bound to the defendant in the penalty of 20,OOOZ., conditioned for payment to the defendant of 10,000^., with lawful interest, on the 19th of April then next ; and at the same time executed a warrant of attorney to empower a judgment to be recorded against him in the King's Bench, at the defendant's suit, for the said 20,000^. on the said bond. The defendant, by virtue of the said warrant of attorney, caused a judgment to be made out on the said bond against Mr. Spencer, at the defendant's suit, for the said 20,000Z., to be recorded in the King's Bench of Hilary Term next ensuing the date of the said bond. In the month of December, 1745, the defendant, by the invitation of Mr. Spencer, being with him at his house at Windsor, he, on the 14th of that month, gave the defendant a bill for 1,000/. on Hoare and Company, in part of the defendant's debt, and on the 21st of March following sent the defendant 1,000/. more by his steward, (a) This statement between brackets, is taken from 1 Atk. 301. i UNCO^'SCIONABLE BARGAINS. 291 Earl of Chesterfield v. Sir Abraham Janssen. On the 19th of June, 1746, Mr. Spencer died, but before his death made his will, and after payment of his debts and legacies, gave all the residue of his personal estate to be at his son's disposal, the present Mr. Spencer, provided he left no younger child, and appointed the plaintiffs to be guardians of his son, and also executors in trust for him during his minority. The executors of Mr. Spencer, finding his specialty debts were very considerable, and that such as were upon simple contracts only, which likewise amounted to a very large sum, would receive but little satisfaction through the deficiency of the testator's assets, after payment of such sums as were really and hond fide due on specialties, brought a bill to be relieved against the defendant's demand, as being an unconscionable one, charging that the condition stipulated by his security was absolute and independent of any other contingency than that of a grandson of thirty years of age surviving a grandmother of eighty ; and as the period or point of time limited for the payment (which was in one month after the death of the duchess) could not, by reason of her great age and infirmities, be removed to any great distance, but was every day approaching, and in fact happened soon after, so the requiring such a large sum as 10,OOOZ. for the forbearance of 5,000i. for so short a time, being at the proportion of 200^. for every 100^., was a most usurious contract, and such as will never meet with the approbation or countenance of a Court of equity, especially where the demand is made upon the assets of an insolvent person, to the prejudice and defeating of his other just and honest creditors, and of an infant heir and residuary legatee ; and that the executing a new bond to the defendant after the death of the Duchess of Marlborough, is only a continuance of the former transac- tions, and partook of the original fraud ; and that, being an unrighteous and usurious bargain in the beginning, nothing which was done after- wards could help it ; but on the contrary, defendant, on acquiring such new security and judgment, and thereby seeking to conceal the true transaction, did, as far as in him lay, add to the first fraud, and ought to be restrained from taking out execution on his judgment till the Court have first inquired into and determined upon the fraud ; and therefore, it is prayed, that the defendant may be adjudged by 19 2 292 CONSTRUCTIVE FRAUD. Earl of Chesterfield v. Sir Abraham Janssen. the Court to be a creditor of Mr. Spencer, only for such suras as he shall appear to have bond fide advanced, with interest from the time of advancing the same, after deducting what he hath received ; and that he may be decreed to come in, and receive a satisfaction for the residue of such principal sums only, and interest pari passu with Mr. Spencer's other creditors, according to the nature of his demand ; and for an injunction to stay his proceedings at law till the hearing of the cause. July the 21st, 1747, the injunction was continued upon the merits till the hearing.] Mr. Noel, Mr. Clarke, Mr. Wilbraham, and Mr. Crowle, for the plaintiffs. — This case is of great importance to the estate of Mr. Spencer, but of greater to the public. The bill is to be relieved against an exorbitant, unconscientious demand, on the known terms in a Court of equity, payment of principal really advanced, and legal interest. There are three general points to be determined. First, how that contract would have stood if properly brought in judgment in a Court of law, and considered merely upon legal principles ? Next, what the fate of it ought to be, in a much stronger degree, in a Court of equity, when examined by principles of equity ? Lastly, the subse- quent transactions relied upon in the answer as a ratification of the original bargain. As to the first, it is not good in point of law, and therefore usurious (a). As to the second point : Courts of equity, not being tied up to rules, consider questions of this kind in a more extensive manner, and in general have avoided laying down any particular rule, as that would (like old statutes of usury) teach persons how far they might safely go ; but declare, that wherever there is a spark of oppression — the motive on one side, necessity to apply for money, on the other, a covetous passion for undue lucre — they always relieve ; not, indeed, setting it aside, but by giving what is really due. The following cases were cited upon this point : — Waller v. Dalt {b), which was iutro- (a) The laws against usury are now parts of the case as relate thereto are aboUshed, 17 & 18 Vict. c. 90 ; 24 & omitted. 2o Vict. c. 101, and therefore such (6) 1 Ch. Ca. 276. UNCONSCIONABLE BARGAINS. 293 Sari of Chesterfield v. Sir Abraham Janssen. ductive 0^ Barny v. Beak (a), Berny v. Pitt (b), Birney v. Tison (c), Batty V. Lloyd (d), Nott v. Hill (e), Ardglasse v. Mviscliamp (/), Ttuistleton v. Grifith (g), Curivyn v. Milner (h), Laivley v. Hooper (i). It is on the principle of public utility that Courts of equity have gone further than the law. So, from the general inconvenience, prsemiums for places are not allowed, because there the office falls to the man ; not that he is fit for it, but the office fit for him. So in Hall v. Potter (/>;), Shepley v. Woodhouse (l). No proof of fraud or undue advantage is requisite : the case speaks for it, and otherwise it would be saying, the Court will not relieve at all, as to such secret transactions witnesses are not called in. It is unjust and unreasonable, and in that light a Court of equity calls it a fraud, arising from avarice on one side and distress on the other; and will relieve on the same principles as in Sir Thomas Meere's Case (in) ; and see Bosanquet v. Dashivood {n), Twistleton v. Griffith (o). As to the third point, all the other acts of Mr. Spencer were, when under the like circumstances, as originally, proceeding from his inability to do more. His acquiescence cannot be considered a ratifi- cation, but may be excused by his looking on it as a debt of honour and a sort of wager. The bond and judgment are an evidence he could not pay ; he would go as far as possible ; no money could be raised but by annual rents, whereas an immediate payment was to be made ; and the borrower is a servant to the lender : Curwyn v. Milner {p), Wiseman v. Beake (q), Ardglasse v. Muscharap (r). Mr. Attorney-General (Sir Dudley Rider), and Mr. Solicitor- General (Mr. Murray), for the defendant. — This is indeed a matter of importance, being a question whether a man's own act, without fraud, in full senses, and having the absolute disposal, shall bind him. («) 2 Ch. Ca. 136. (k) Sliow. P. C. 76, 1 Eq. Ca. Abr. (h) 2 Vern. 14. 89. (c) 2 Vent. 359. (l) 2 Atk. 535. {(i) 1 Vern. 141. (m) 1 Vern. 465. (e) 1 Vern. 167, 271. {n) Cas. t. Talbot, 40. (/) 1 Vern. 237. (o) 1 P. W. 310. () November, 17J4. UXCONSOIONABLE BARGAINS. 297 Earl of Chesterfi.eld. v. Sir Abraham Janssen. it aside. The will did not operate there, but only showed a con- firmation. So, but in a stronger degree, does the subsequent act here. * * * To consider next the question of law (a). Next, whether this Court can set aside this legal contract upon arguments of conscience arising out of the case, and that in the utmost latitude. The proper jurisdiction of equity is, indeed, to take every one's act according to conscience, and not suffer undue advan- tage to be taken of the strict forms of positive rules. As this is only a ground of equity, it may indeed be made out by any sort of evidence upon all the circumstances ; and on all together the Court cannot say the defendant is guilty of misbehaviour (which is not charged or suggested), or say this ought not to stand. Here is no fraud or over-reaching — no evidence from whence imposition is to be presumed ; and the amount of the cases cited for the plaintiffs is, that the Court will relieve against fraud in this as in other cases. But supposing these points against the plaintiffs, another and a very general question has been made of the first impression — viz., supposing the transaction good in law and conscience, yet this Court should, for the sake of making a rule, set it aside on principles of policy or political reasoning ; for, on fraud, there can be no case in which this Court will not relieve. No political principle can be stated on which it should be set aside ; therefore, such a ground of determination is impossible in this Court. There may be a difficulty to tell what sort of rule. It is admitted that no certain one can be drawn, because it would be dangerous when applied to particular cases ; and it is, therefore, said, Acts of Parliament cannot be made to meet cases of this kind. This Court does not exercise or assume a legislative power, but disclaims it, and never will make a law to set aside contracts on public principles out of that cause, if good in law and conscience, let the convenience or inconvenience be what it will. The contracts in Exchange-alley were all contingencies ; yet it was necessary to have an Act (6) to set them aside, although easily proved inconvenient to the public. So, of fair and equal wagers, an Act of Parliament, 7 Anne, c. 16 (c), was forced to interpose. So of gaming (o) See note, supra, p. 292. (c) Eepealed Stat. Law Eev. Act, {b) 7 Geo. 2, c. 8, and 10 Geo. 2, 1867. c. 8, repealed by 23 Vict. c. 28. 298 CONSTRUCTIVE FRAUD. Earl of Chesterfield v. Sir Abraham Janssen. — money won at a fair hazard, without cheating ; this Court never set it aside before the Legislature interposed : so that political arguments are never taken into consideration. * * * Lastly, as to the case of post obits, it is said, where sons, whether in remainder or otherwise, or Jllius familias, not having a fortune or emancipation of their own, are encouraged in riot and expense, the Court relieves, without evidence, from the particular purpose, because no son, in the life of his father, shall make such a bargain : but that is not the ground of relief, for that may be denied, like all other presumptions ; from the reason of the thing, it is the misbehaviour to persons under this description to share in riot and encourage disobedience ; which appears from Domat, under the general title " Loan • " * * * and, in another place he says, that on a bargain with jilius familias, under such circumstances there may be relief, under such not ; not saying but that a son might, for a portion, even ^vhen Jilius familias, do it. As to which an observation arises on the case determined by Lord Nottingham, who relieved against many of these contracts on particular evidence. Lord North thought he went too far ; Lord Jefferies, that he did not go far enough, which is not to be wondered at ; for judging upon circumstantial evidence, they might draw different conclusions. Lord Nottingham's reasons, in manuscript, shew he did not think he was going on the general rule, that a son could not sell a contingency. The case is entitled Berny v. Pitt (a). Berny was drawn into several securities for money, to be paid after his father's death, who then was infirm, and kept alive by art ; by some he was to pay five for one, and thus was involved in debts to 50,000Z. or 60,000^., in all which he appeared to be circumvented and beset ; most of the money pretended to be borrowed, being raised by delivery of wares, at an excessive price, as wine, hemp, &c., which could not be sold for a quarter of the price ; but the plaintiff, from his necessity (his creditors being underhand procured to fall upon him), was willing to get money on terms against which he sought relief Lord Nottingham first made him pay the principal borrowed, before he would give an injunction, but relieved him as to the rest at the hearing, because, he said, this infamous dealing ought to be suppressed. That the Star Chamber used to punish, and this Court ought to do it ; and that no family (a) 2 CIi. E. 396. UNCONSCIONABLE BARGAINS. 299 Earl cf Chesterfield v. Sir Abraham Janssen. could be safe if this was suffered. But Pitt prevailed, and the bill against him was dismissed, though he gained about three for one ; for it was in the time of his father's health, three years before his death, without any circumvention or practice, upon an express agreement to lose the principal if the son died in his father's life ; which shews the ground of the determination — relieving against those defendants guilty of misbehaviour, yet thinking that a proper bargain might be made by the heir. Lord Jefferies, on the evidence of that case, when before him, laid a different stress, and relieved against Pitt also. From that time there is no case, until Tivistleton v. Grijjfith (a), which turned on the particular fraud and circum- vention. They cited further Curivyn v. Milner (b), Lawley v. Hooi')er{c), Batty V.Lloyd id). * * * Contracts for contingencies have been admitted ; Beckley v. Newland (e), Hobson v. Trevor (/), Whitfield V. Fausset (g). * * * But what is this public good which is not to be defined ? Is the end proposed by this, that none shall spend above his annual income ? That is not to be secured in human nature, or prevented. Though the Romans had that law, they were allowed to spend their estates. Is property to be locked up to another generation ? — for that effect it will have, which is contrary to the principles of the constitution of the legal part of the government ; the later books, perhaps for 200 years, giving a reason why the statute De Donis (h) is not to be kept and preserved, that mankind may apply their property to pay their debts ; and judges have said, there is great inconvenience in people not being able to sell their own estates. Is the end proposed, that a man may raise money on easier terms if this is set aside ? The consequence would be directly contrary. If one wants money, and a difficulty is laid upon contracting with fair, honest men, he will go into the hands of knaves, who will make him pay for running the risk of the law, and insist on more, when it is understood that he could not make a contingent bargain. This was not lent to feed riot, but to get rid of a pressure, which is a reasonable cause, and, therefore, no ground to (a) 1 P. W. 310. (e) 2 P. W. 182. (fc) 3P. W. 293,n. (/)2P. W. 191. (c) 3 Atk. 278. ((/) 1 V. 387, 1750. {(l) 1 Veru. 141. (A) 13 Edw. 1. 300 CONSTRUCTIVE FRAUD. Earl of Chesterfield v. Sir Abraham Janssen. set it aside on political motives. As the law cannot find out a general rule to proceed on, much less will this Court ; and in every case where equity cannot relieve, it is not fit to be relieved. February 4, 1750-1. The Court {Burnett, J., Strange, M.R,, Lee, C.J. {Willes, C.J., ahsente) ; Hardivicke, C.) delivered their opinion. [The judgments, other than that of Hardivicke, C, are omitted. They agreed with that of the Lord Chancellor.] Lord Chancellor Hardwicke. — Before I proceed to give my own opinion in this case, I must take notice that Lord Chief Justice Willes has signified to me his entire concurrence on these three points. Next, that the great and able assistance I have had in this case has made my task extremely easy ; and, as I concur in the decree I am advised to make, the great pains taken in clearing up and considering the points might have excused me from taking up any time. One thing I ought to say in the outset — that if I could have foreseen upon what particular point the judgment in this case would fundamentally turn, I should have spared the Judges the trouble of this attendance. As three points have been properly made at the Bar, it is necessary to say something to each. The first is a mere question of law upon the Statutes of Usury (a). * * * The second question is, supposing the first contract to be valid in law, whether it is contrary to conscience, and to be relieved against in this Court upon any head or principle of equity. I will follow the prudent example of not giving any direct and conclusive opinion. As it would be unnecessary, it is the safest not to do it ; yet it has been made necessary to say something on it. It cannot be said that such contracts deserve to be encouraged, for they generally proceed from excessive prodigality on one hand, and extortion on the other, which are vitia temporis, and pernicious in their consequences ; and then it is the duty of a Court, if it can, to restrain them. This Court has an undoubted jurisdiction to relieve against every species of fraud. [a) See note («), supra, p. 292. UNCONSCIONABLE BARGAINS. 301 Earl of Chesterfield v. Sir Abraham Janssen. (1)1 First, then, fraud which is dolus mains, may be actual, arising from facts and circumstances of imposition ; which is the pkinest case. (2) Secondly, it may be apparent from the intrinsic nature and subject of the bargain itself, such as no man in his senses, and not under delusion, would make on the one hand, and as no honest and fair man would accept on the other, which are inequitable and uncon- scientious bargains ; and of such even the common law has taken notice ; for which, if it would not look a little ludicrous, might be cited James v. Morgan (a). (3) A third kind of fraud (&) is, which may be presumed from the circumstances and condition of the parties contracting ; and this goes farther than the rule of law, which is, that it must be proved, not presumed ; but it is wisely established in this Court to prevent taking surreptitious advantage of the weakness or necessity of another, which knowingly to do is equally against conscience as to take advan- tage of his ignorance ; a person is equally unable to judge for himself in one as the other. (4) A fourth kind of fraud may be collected or inferred, in the consideration of this Court, from the nature and circumstances of the transaction, as being an imposition and deceit on other persons not parties to the fraudulent agreement. It may sound odd, that an agreement may be infected by being a deceit on others not parties ; but such there are, and against such there has been relief. Of this kind have been marriage-brocage contracts, neither of the parties herein being deceived ; but they tend necessarily to the deceit on one party to the marriage, or of the parent, or of the friend. So, in a clandestine private agreement to return part of the portion of the wife, or provision stipulated for the husband, to the parent or guardian. In most of these cases it is done with their eyes open, and knowing t Note. — The numbers have been try devant Hide al Hereford, il direct added for the sake of reference. le jury pur donner le value del chival (rt) 1 Lev. 111. This case is thus en damages esteant £8. Et issint ils quaintly reported by Levinge : "As- fesoient et fuit apres move eu arrest Bumpsit de payer pur un chival, un de judgment pur un petit fault en le Early-corn a nail, et double every nail ; declaration, que fuit over-rule : et et averrque la feuront ^2 nails en less judgment done pur le plaintiff." soliers dv\ chival, que dublant chescun (b) Fraud presumed from the cir- nail,veignantal 500 quarters de Early. cumstances and condition of the Et sur non assumpsit, le cause esteant parties. 302 CONSTHUCTIYE FRAUD. Earl of Chesterfield v. Sir Abraham Janssen. what they do ; but, if there is fraud therein, the Court holds it infected thereby, and relieves. So, where a debtor enters into a deed of composition with his creditors for 10s. in the pound, or any other rate, attended with a proviso that all creditors executed this within a certain period, if the debtor privately agrees with one creditor, to induce him to sign this deed, that he will pay, or secure a greater sum in respect of his particular debt — in this there can be no particular deceit on the debtor who is party thereto, but it tends to deceit of the other creditors, who relied on an equal composition, and did it out of compassion to the debtor (a). This Court, therefore, relieves against all such underhand bargains. So, of premiums, contracted to be given for preferring or recommending to a public office or employment : none of the parties are defrauded ; but the persons having the legal appointment of these offices are or may be deceived thereby : or if any person, agreeing to take the premium, has authority to appoint the officer, it tends to public mischief, by introducing an unworthy object for an unworthy consideration. These cases show what Courts of equity mean when they profess to go on reasons drawn from public utility. To weaken the force of such reasons, they have been called political arguments, and intro- ducing politics into the decision of Courts of justice. This was show- ing the thing in the light which best served the argument for the defendant, but far from the true one, if the word " politics " is taken in the common acceptation ; but if in its true original meaning, it comprehends everything that concerns the government of the country, of which the administration of justice makes a considerable part ; and in this sense it is admitted always. To apply this : thus far, and in this sense, is relief in a Court of equity founded on public utility. Particular persons, in contracts, shall not only transact bond fide between themselves, but shall not transact Tncdd fide in respect of other persons who stand in such a relation to either as to be affected by the contract, or the consequences of it ; and as the rest of mankind, besides the parties contracting, are concerned, it is properly said to be governed on public utility. (5) The last head of fraud on which there has been relief is that (a) Mare v. Sandforrl, 1 Gil'. 288 ; 20 Eq. 65 ; In re Lenzberg's Policy, 7 M'Kewan v. Sanderson, 15 Eq. 229, C. D. 650. UNCONSCIONABLE BARGAINS. 3U3 Earl of Chesterfield v. Sir Abraham Jansseru which infects catching bargains with heirs, reversioners, or expectants, in the life of the fathers, &c., against which relief always extended. These have been generally mixed cases, compounded of all or several species of fraud ; there being sometimes proof of actual fraud, which is always decisive. There is always fraud presumed or inferred from the circumstances or conditions of the parties contracting — weakness on one side, usury on the other, or extortion or advantage taken of that weakness. There has been always an appearance of fraud from the nature of the bargain ; which was the particular ground on which there was relief against Pitt, there being no declaration there of any circumvention, as appears from the book, but merely from the intrinsic unconscionableness of the bargain. In most of these cases have concurred deceit and illusion on other persons not privy to the fraudulent agreement. The father, ancestor, or relation, from whom was the expectation of the estate, has been kept in the dark ; the heir, or expectant, has been kept from disclosing his circum- stances, and resorting to them for advice, which might have tended to his relief, and also reformation : this misleads the ancestor, who has been seduced to leave his estate, not to his heir or family, but to a set of artful persons, who have divided the spoil beforehand. Consider which of these species is in the present case. There is no colour of evidence of actual fraud in the defendant, who did not think he was doing anything immoral or unjust ; although, if the declarations of Mr. Spencer can be believed, the defendant had a misgiving how far it could be held good in this Court. But though this case is clearer of actual fraud than almost any that has come, yet several things are insisted on for the plaintiffs — as necessity on one side, and advantage taken of it on the other ; unconscionableness in its nature, from the terms of paying two for one, in case of the death of an old woman, the next week or day ; that there was deceit upon her, who was in loco parentis, from whom were his great expectations. This was, however, the thing intended. I admit, also, there are more circumstances alleged on the side of the defen- dant, to weaken and take off, than have concurred in most cases of this kind. Mr. Spencer was of the age of thirty ; possessed of a great estate of his own ; not weak in mind, but of good sense and parts — though in that the witnesses differ. If it was necessary to give an opinion upon this point, I should consider the weight of these I 304 CONSTRUCTIVE FRAUD. Earl of Chesterfield v. Sir Abraham Janssen. objections, and the answers to tliera ; but as it is not, I will only con- sider the contingency inserted, which was to cure the whole. I would not have thought that the insertion of such a contingency would in every case sanctify such a bargain. Suppose such a bargain made by a son in the life of his father or grandfather, on whom was his whole dependency ; I appeal to everyone, what the consequence of it would be. Whether such a contingency is inserted or not, it will come to the same thing, the creditor knowing the fund for pay- ment must depend on the debtor surviving the father or grandfather, whether it is said so or not ; and therefore I have always thought there was great seuse in what Vernon reports to be said by the Court in Berny v. Pitt, " that the expressing the death of the son in the life of the father makes the case worse." I have not mentioned the reasons drawn from the discouragement of prodigality, and preventing the ruin of families — considerations of weight, and ingredients which the Court has often very wisely taken along with them. It is said, for the defendant, to be vain and wild for the Court to proceed on such principles. If it had been said it was ineffectual in many instances, I should have agreed thereto ; but I cannot hold that to be vain and wild which the law of all countries, and all wise legislatures, have endeavoured at as far as possible. The senate and lawmakers in Rome were not so weak as not to know that a law to restrain prodigality, to prevent a son running in debt in the life of his father, would be vain in many cases ; yet they made laws to this purpose, viz., the Macedonian decree (De Senatu Consulto Macedoniano, Dig. lib. xiv. tit. vi.), already mentioned ; happy if they could in some degree prevent it ; est aliquod iDvodire tenus. It is said for the defendant, that this would be to assume a legislative authority, and that several Acts of Parliament have been thought necessary to restrain and make void contracts of a pernicious tendency to the public. What can be properly called such an assuming in this Court I utterly disclaim ; but, notwithstanding, I shall not be afraid to exercise a jurisdiction I find established, and shall adhere to precedents. As far, therefore, as the Court went in Ber7iy v. Pitt (a), in Tivistleton v. Griffith ih), in Curwyn v. Milner (c), and the opinion of Lord Talbot on the original trans- (a) 2 Yem. 14. [h) 1 P. W. 310. (c) 3 P. W. 293, n. UNCONSCIONABLE BARGAINS. 305 Earl of Chesterfield v. Sir Abraham Janssen. action in Cole v. Gibbons (a), so far, and as far as these principles do naturally and justly lead, I shall not scruple to follow. The Acts of Parliament (b) instanced will be found to be made (many of them), not for want of power in this Court to give relief in many of these contracts, but to make the7}i void in law, to give the yarty a short remedy against them. The judgment I am going to give will not be founded upon this : but I have done it that the work of this day may not be misunder- stood, or precedents thought to be shaken : not that this establishes such a contract as is called fair, like killing fairly in a duel, which the law does not allow as an excuse for murder. Junct annuities and post obits are grown into traffic, which ought to abate of its fairness. As to the last question, of the subsequent acts of Mr. Spencer : this is the point on which the determination of this case will depend, and I entirely agree with the opinion delivered already. Had the first bond been void by the Statutes of Usury, no new engagement would have made it better ; the original would have infected it. But if a man is fully informed, and with his eyes open, he may fairly release and come to a new agreement, and bar himself of relief, which might be had in this Court. The material inquiry is, whether this was done, after full information, freely, without compulsion, &c. ; and upon the best consideration of the evidence, it appears to be so done, and with fairness. First, the condition of the necessity of Mr. Spencer was over : for though he had no power over the capital of this accession of estate, yet it was so great a one, that little more than one-third of a year's income would have paid off the whole. If that, then, be a state of necessity, how far shall it be carried ? Then the state of expectancy was over by the death of the duchess^ and also the danger of her coming to the knowledge of his conduct and circumstances, and his fear of offending her, which was the principal restraint upon him ; so that there was no ancestor or relation left upon whom any deceit could be committed in conse- quence of any new agreement ; and it appears, that, before this new bond he had sufficient notice that he had a chance, at least, that he (a) 3 P. W. 290. (h) I.e., the Acts against usmy. W. & T. — VOL. I. 20 306 CONSTRUCTIVE FRAUD. Earl of Chesterfield v. Sir Abraham Janssen. might have relief in equity, from the defendant's own declaration to him of his doubt whether it would be good. Lastly, there was no impediment against his seeking relief by dis- closing the whole case at that time in a court of justice. Under these circumstances was the new engagement, without any fraud, contrivance, or surprise to draw him in, which operates more strongly than the deed of confirmation in Cole v. Gibbons, that it is too much to set it aside. The only difference to distinguish that from this case was, that there the releasor was not in the power of the releasee ; here Mr. Spencer was debtor (a), and his creditor might immediately have distressed him by an action : but the answer is, there was neither an attempt nor threat to bring an action. It is objected further for the plaintiffs, that Cole v. Gibbons was a single case ; and there are several precedents in which such new security and subsequent transaction were not sufticient to give a sanction to a demand of this kind, as in Lord Ardglasse v. Muschamp ; but the circumstances there show it not to be at all applicable. Then the confirmation in Wiseman v. Beake was still more extraordinary : and that was a very extraordinary invention of Serjeant Philips, of a bill to be foreclosed against a relief in equity. In both those cases the original transaction was grossly fraudulent ; but I have only shown it here to be a doubtful object of relief in this Court, which surely is the most proper case of all others to put an end to by a new encragement. On the whole, therefore, the only relief is that which I am advised to give against the penalty of the last bond. The only doubt which could arise on this is as to costs, to which the defendant is not entitled. The plaintiffs are only executors ; they had a probable cause of litigating this contract, which is far from deserving favour, and were in the right to submit it to the judgment of the Court; and it is observable, that in Cole v. Gibbons, which was on this point, the bill was dismissed without costs, and no costs given on the bill, but, on the contrary, deducted. There was indeed, in that case, no penalty, as there is here ; but still that does not take away the discretion of this Court in respect of costs, accord- in) ; for (o) Benyon v. Fitch, 35 B. 570, 578; (/) 4 B. 401, infra, p. 325. Beynon v. Cook, 10 Ch. 389 ; Nevill v. {k) Croft v. Graham, 5 Gif. 1 ; Tot- Snelling, 15 C. D. 705 ; Wyatt v. Cook, tenham v. Green, 1 N. E. 466. As to 16 W. R. 502. deductions for commission and bonus, {b) Howley v. Cook, 8 Ir. E. Eq. see Mainland t\ Upjohn, 41 Ch. D. 570. 126; The Benwell Tower, 72 L. T., (c) Gowland v. Be Faria, 17 V. 20. p. 670. {d) Fry v. Lane, 40 C. D., p. 324. (/) Cole v. Gibbons, 3 P. W. 289. (e) St. Albyn v. Harding, 27 B. 11 ; (hi) Lyddon v. Moss, 4 De G. & J. but see Tyler v. Yates, 11 Eq. 365; 104. O'Eorke v. Bolingbroke, 2 App. Cas. (n) Stump v. Gaby, 2 De G. M. & G. 814. 623. (/) Twistleton v. Griffith, 1 P. "W. (o) Sibbering v. Earl of Balcarras, 310 ; Bawtree v. WilHams, 3 My. & K. 3 De G. & S. 735 ; Addis v. Campbell, p. -341 ; Dart. V. & P. (1888), p. 854. 4 B. 401 ; Lord v. Jeffkins, 35 B. 7 ; • {g) 26 B. 644. Turner v. Collms, 7 Ch. 329. (/i) Murray v. Pabner, 2 Sch. & L. {p) See supra p. 286, and Gerrardv. 489; but see the decree, ib., contra, O'EeUly, 3 Dr. & Wal. 414; Eees r. 490; Re Slater's Trusts, 11 C. D. 227. De Bernardy, 12 Times L. E. 412. UNCONSCIONABLE BARGAINS. 325 Earl of Chesterfield v. Sir Abraham Janssen. it>as been well said, "that the presumption which a Court of justice most probably entertains against stale demands (a) can never be more properly applied than in a case where the burden of proof upon a most material point in controversy is thrown upon the defendant "(6). But confirmation or acquiescence must be founded on full know- ledge of the facts, and must be in relation to a transaction to which effect may be given thereby (c), and it will be of no avail whilst the plaintiff continues in the same situation as Avhen he entered into the contract, for in such cases it has always been presumed, that the same distress, which pressed him to enter into the contract, prevented him from coming to set it aside ; it is only when he is relieved from that distress that he can be expected to resist the performance of the contract (d) ; and in Curwyn v. Milner (e) relief was given even after payment of the money due on a post-obit bond, the payment having been made from fear of an execvition. In Rae v. Jocye (/) a mortgage was held a hard and unconscion- able bargain, although the deed was approved by the m,arried woman's solicitor, and was duly acknowledged. So, where a person bought a reversion at a gross undervalue, from an heir in distressed circumstances, and resold it at a large profit to a sub-purchaser who had full notice of the original fraud, and the reversioner being still in distress, was induced by the original purchaser to join in and confirm the re-sale, and to concur in suffering recoveries which were necessary to perfect the title, but nothing was paid or secured to him as a consideration for such concurrence, the transaction was set aside as against the sub-purchaser on the repay- ment of the price paid on the first purchase {g). Where, moreover, a sale of a reversion has taken place at under- value time will not begin to run against the vendor until the («) See Salter v. Bradshaw, 26 B. v. O'Donel, 1 Ball & B. 156 ; KendaU 161, infra, and the judgment of Lind- v. Beckett, 2 Euss. & M. 88 ; Edwards ley, L.J., in Allcard v. Skinner, 36 v. Browne, 2 CoU. Ch. E. 100 ; Kemp- C. D., p. 186. son v. Ashbee, 10 Ch. 15 ; Beynon v. (h) 3 De G. & Sm. 737. Cook, 10 Ch. 393 n. See Huguenin ((■) La Banque Jacques-Cartier v. v. Baseley, supra, p. 247; Fox v. La Banque d'Epargne, &c., 13 App. Mackreth, post, and note. Cas. P. C. Ill ; Lyddon v. Moss, 4 (e) 3 P. W. 292, n. De G. & J. 104. (/) 29 L. E. Jr. 500. (d) Gowland v. De Faria, 17 V. 20, (;/) Addis v. CampbeU, 4 B. 401 ; cited with approval by Zoi/, J., in Fry and see King v. Savery, 1 Sm. &■ G. I'. Lane, 40 C. D., p. 324; Eay v. 271; 5 H. L. Cas. 627; Wright v. Jocye, 29 L. E. Ir. 500; MedHcott Yanderplank, 2 Jui\ (N. S.) 599. 326 CONSTRUCTIVE FRAUD. Earl of Chesterfield v. Sir Abraham Janssen. reversion falls into possession. See Salter v. Bradshaw (a), in which case the transaction was set aside after the lapse of forty years (6). Where a transaction is not merely voidable or impeachable, but is absolutely void, upon principles of public policy, then, as is laid down by Lord Hardwicke in the principal case, it is incapable of con- firmation. Thus, a usurious contract was, and a marriage brokage contract still is, void ab initio, and does not admit of confirma- tion (c). Infants' Relief Act, 1874. — By this Act (d), which came into opera- tion on the 7th of August, 1874, it is enacted : S. 1. "All contracts, whether by specialty or by simple contract, henceforth entered into by infants for the repayment of money lent or to be lent, or for goods supplied or to be supplied (other than contracts for necessaries) and all accounts stated with infants, shall be absolutely void ; provided always that this enactment shall not invalidate any contract into which an infant may, by any existing or future statute, or by the rules of common law or equity enter, except such as now by law are voidable." S. 2. " No action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age " (e). (a) 26 B. 161. (b) See also Beynon v. Cook, 10 Ch. 393; AUcard v. Skinner, 36 C. D., p. 186. (c) Shirley v. Martin, 3 P. W. 74 n.; Cole V. Gibson, 1 V. 506, 507. {d) 37 & 38 Vict. c. 62. (e) See as to the effect of this Act, Simpson, Infants (1890), Eatification, ch. 3, p. 67; Exp. Kibble, 10 Ch. 373; Exp. Jones, 18 C. D. 109 ; Cox- head V. Mullis, 3 C. P. D. 439 ; North cote V. Doughty, 4 C. P. D. 385 Ditcham v. Worrall, 5 C. P. D. 410 Brown v. Harker, 68 L. T. 488 Holmes v. Brierley, 59 L. T. 70 Valentini v. Canali, 24 Q. B. D. 166 Hamilton v. Vaughan - Sherrin, 10 Times Eep. 642 ; Smith v. King, (1892) 2 Q. B. 543 ; Edwards v. Carter, (1893) A. C. 360. 327 CONVERSION («). FLETCHER v. ASHBURNER. June, 1779. 1 Bro. Ch. 497. Conversion. Where a real estate is ordered to be sold, it becomes personalty, and shall go accordingly. John Fletcher, by his will devised his burgage houses and free rents in Kendal, and all his personal estate, to trustees and the survivor, and the heirs, executors, and administrators of such survivor, in trust to sell so much as should be sufficient to pay his debts, and then to permit his wife Agnes to enjoy the residue during her life, if she so long continued his chaste widow, and after her decease, to sell and dispose thereof, and the money arising thereby, after deducting charges, and half-a-guinea each to the trustees for their trouble, to pay to and between his son William and daughter Mary, share and share alike ; provided, that if his wife should happen to marry again, the trustees should, immediately after the marriage, sell all the estate and effects given to her for her life, and, after such deductions as aforesaid, should pay the remainder of the money to and amongst his wife, his son William, and daughter Mary, share and share alike equally ; and in case either his son William or his daughter Mary should die before his or their legacy should become due, that the share or legacy of him or her so dying should go to the survivor of them. The testator died, leaving Agnes his widow, William his only son and heir-at-law, and Mary his daughter. Agnes, by the custom of burgage tenure, was entitled to hold the burgage houses in Kendal during her chaste viduity, against the disposition of her husband by will. Mary attained twenty-one, but died unmarried, in the life of her (a) As to conversion between tenant for life and remainderman, see Howe v. Dartmouth, p. 68, ante. 328 CONVERSION. Fletcher v. Ashburner. mother and brother. William was twenty-one at the death of the testator, and died without issue, in the life of his mother ; the mother died the widow of the testator. Upon her death a bill was hied by the heir-at-law of William, and John the testator, against the trustees and the personal represen- tatives of the testator and of the widow, to have a conveyance of the real estates devised by the will to the plaintiff, the heir-at-law. The representative of the widow, who was the sole next of kin of William, the son, by answer claimed the property as personal ; alleging, that, by the direction to the trustees to sell the real estates, they became as personal property, and, as such, were to go to the pei'sonal representative of William, the son, who survived his sister. The cause was heard the 11th December, 1778, where the first objection taken was, that the personal representative of William was not before the Court. But Sir Thomas Sewell, M.R, was of opinion there were sufficient parties to sustain the question ; that the personal represen- tative was a mere formal party ; and that, if he thought proper to make a decree, a personal representative might be brought before the Master. Mr. Madochs and Mr. Wilson further argued, with respect to the principal question, that the real estates devised by the will were still to be considered as real estates, and to go to the real, not the personal, representative ; that it was clear the intention of the testator that the estate should remain, and, whilst it did so, was to be enjoyed by one person ; and he directed it to be sold merely for the purpose of a division ; that, in consequence of the death of the daughter no division was to be made, and therefore the reason for the directions ceased ; and, from thenceforth, the son alone becoming entitled, upon the death of his mother, it was to be considered as land. They relied upon the case of Flanagan v. Flanagan, 8th June, 1768, before Lord Camden, which was a devise of real and personal estate to trustees in trust, out of the personal estate, and by sale of a sufficient part of the real, to pay debts ; the surplus, after payment of debts, to A. A suit was instituted for payment of the debts, and the real estates decreed to be sold ; part was sold : and afterwards A. died leaving a son and daughter ; the cause was revived against the son ; and it being apprehended that sufficient was not sold to pay the OF LAND INTO MONEY AND MONEY INTO LAND. 329 Fletcher v. Ashburner. debts a further part of the real estate was sold under the order of the Court. It was afterwards proved that the money produced by the first sale was sufficient to pay the debts ; the question was, whether the heir or the personal representative was entitled to this money. It was alleged by Mr. Wilson, who cited the case, that Lord Camden's determination was, that whatever quality the fund then had, such it should retain ; and he decreed for the personal representative. The other cases mentioned were Cruse v. Barley (a) and Digby v. Legard (6). Mr. Kenyan and Mr. GJtambre (on behalf of the defendants, the executors of the widow), contended that the testator had, by his will, directed the real estate, after the death of his widow, to be sold, and blended with his personal estate, and the whole to be divided between his children, or in case either of them should die in the life of his wife, to the survivor. Upon the case of Flanagan v. F. it was observed that the Court determined the produce of the real estate to be considered as personal, because the Court had itself directed the sale to be made and the property to be changed for payment of debts. The cases of Digby v. Legard and Cruse v. Barley were treated as inapplicable to the present case, being cases of lapsed devises : Burour v. Motteux and Mallabar v. M. were cited, as decisive of the question in favour of the defendants. Sir Thomas Sewell, M.R., in June, gave his opinion. He ob- served, tliat nothing was better established than this principle : that money directed to be employed in the j)urchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be con- verted ; and this in whatever manner the direction is given, whether by will, by way of contract, marriage articles, settlement, or other- wise ; and whether the money is actually deposited, or only covenanted to be paid, whether the land is actually conveyed, or only agreed to be conveyed, the owner of the fund, or the contracting parties, may make land- money or money land. The cases established this rule universally. If any difficulty has arisen, it has arisen from special circumstances. In the case of Sioeetaj/ple v. Bindon (c), it was determined (a) 3 P. W. 20. {h) 3 P. W. 22. (c) 2 Vern. 53G. 330 CONVERSION. Fletcher v. Ashburner. that a husband was entitled to money to be laid out in land, as tenant by the curtesy : and although it is held that a wife is not entitled to dower in a similar case, yet it is allowed that it is so held, because cases have been determined, and not from any principle. The cases of land to be turned into money are fewer than those of money to be employed in the purchase of land. The principal cases have been where real estates have been directed to be sold, and some part of the disposition has failed ; so that something has resulted to the heir-at-law, as in the cases of Emhlyn v. Freeman and Cruse v. Barley. These are all cases where a devise has failed, and the thing devised has not accrued to the repre- sentative or devisee, but to the heir-at-law of the testator. The case of Diirour v. Motteiix is a strong case to the point now before the Court ; and, if anything could strengthen the general rule, the circumstances of the present case would do so. The testator has blended the real and personal estate together, and disposed of them without distinction, for the benefit of his wife and children. Both real and personal estate are made one fund. In the case of Durour V. Motteux, Lord Hardivicke made this a principal ground for considering the whole fund as personal estate; in the present case it might be uncertain, till the death of the widow, whether the estates must not be absolutely sold ; both the children, indeed, died before her ; but she might have married before the death of one or both. The interests of both the children were vested, subject, as to one of them, to be defeated in case either of them died before the mother. There could be no election to take the fund as land or money ; for, where an estate is directed to be sold, and the money divided amongst several persons, none has a right to say that any part shall not be sold {a) ; the question, therefore, is merely between the real and personal representatives of the son, whether the personal repre- sentative shall take the fund as ^^er^onal property, according to the will, or the heir-at-law shall take it, as if no will had been made. The case of Flanagan v. F. (b) is a strong authority that it shall be taken as a personal estate, according to the will. In that (a) See also Deeth v. Hale, 2 Moll. plained by Air. Scott arguendo in 317 ; Smith i'. Claxton, 4 Madd. 493; Ackroyd v. Smithson. Approved also Chalmer v. Bradley, 1 J. & W. 59; hj Jt^ssel, M.E., in Steed v. Preece, 18 Trower v. Knightley, 6 Madd. 134. Eq. 196. {h) 1 Bro. Ch. 50, cited and ex- OF LAND INTO MONEY AND MONEY INTO LAND. 331 Fletcher v. Ashburner. case the testatrix, Sarah Wooley, by will, dated 28th March, 1749, gave and devised all her real and personal estates to Francis Plum- tree, in trust, in the first place, out of her personal estate, as far as it would extend, and, in the next place, by sale of her real estate, or a sufficient part thereof, to raise so much money as should be sufficient to pay her debts and legacies ; and, after payment thereof, in trust to convey the residue of the real estate which should remain unsold, and pay the produce of such part as should be sold, and all other the residue of her real estates, between her father, James Flanagan, and her brother, James Flanagan, their heirs, executors, and adminis- trators, equally. A bill was brought by the creditors for sale of the real estate, to supply the deficiency of the personal estate, for pay- ment of debts, and a decree was made for a sale ; and if any of the money to arise by the sale should remain after payment of the debts and legacies, it was directed to be paid to James Flanagan, the father, and James Flanagan the son, equally ; and if any estate should remain unsold, the trustees were directed to convey it to them and their heirs, equally ; after the decree, James Flanagan, the son, died leaving a daughter, and a son, born after his death ; part of the estate was sold, and afterwards, James Flanagan, the grandfather, died, leaving his grandson his heir, and his grandson and grand- daughter his sole next of kin ; after the death of the grandfather, a further part of the estate was sold, under an apprehension that the produce of the first sale was insufficient to pay the debts and legacies : it appeared, however, that the produce of the first sale was sufficient, A bill was afterwards brought by the son of James Flanagan, the son claiming a moiety of the surplus, as the real estate of James Flanagan, his grandfather, to whom he was become heir, against the personal representative of his grandfather, and against the daughter of James Flanagan, the son, who claimed a moiety as one of the next of kin of her grandfather. It was objected, that the second sale, after the death of the grandfather, was improper. The Court determined, that the second sale, actually made under the decree of the Court, before the Master, could not be considered as improperly made ; that there was no fraud, no practice, and that the money ought to go to the personal representative of the grandfather. The case of Dighy v. Legard is a different question. There the testatrix (Elizabeth Byerley) directed her real estate to be sold to pay debts and legacies. 332 C02^ VERSION. Fletcher v. Ashburner. and gave the residue to five persons, to be equally divided between them, one of whom (Lady Cayley) died in her lifetime. It was resolved that the devise, so far, failed totally, and should accrue to the heir-at-law. The language of the decree is such, that the benefit of the devise to Lady Cayley should accrue to the testatrix's heir-at-law, Mr. Jervoice, who was a lunatic, and should be paid to his committee, as real estate descended to him. The case of Scudamore v. Scudamore shows, that in all cases where the dispute is between representatives, the heir or executor shall have the fund, according to the will or contract of the persons who gave or created it. There was a case of Ogle v. Cook {a), heard 12th February, 1748, which was this: Mr. Ogle made his will in 1744, and gave his real estate to trustees to sell, and to vest the money in stock, and pay the interest to his wife during the widowhood, and after her death, or marriage, to his two daughters equally, except that the eldest was to have 1000^. more than the other ; he gave the residue of his personal estate in the same way. He afterwards conveyed the real estate to one of the trustees named in his will, to whom he was considerably indebted, in trust to sell so much as should be necessary to pay the debt, and as to the residue, in trust for Mrs. Ogle : part of the estate was sold, and then Mr. Ogle died. His youngest daughter died in his lifetime. The bill was brought by the Avidow and the eldest daughter, against the son who was the heir, and the trustees, to have the residue of the estate sold, and claiming the share of the youngest daughter, as personal estate of Mr. Ogle, to be divided between them and the son as his next of kin. The son insisted the conveyance to the trustee was a revocation of the will ; and, if not, that the shai-e of the dead daughter was to be considered as real estate of Mr. Ogle, and descended to him as heir. It was determined that the con- veyance was a revocation only pro tanto, to let in the debt ; and that so much of the estate as remained unsold, should be sold, and tliat the money raised, or to be raised, by sale of the estate, made part of the personal estate of Mr. Ogle. There was another case about the same time which is in 1 V. 174 (b), where by marriage articles 500Z. was agreed to be laid out in purchase of lands, to be settled to (a) See CoUins y.Wakeman, 2y. jim. the point supposed to have been 636, where Lord Loughhorowjh says, decided by Ogle v. Cook was in reality that he had caused the Reg. Lib. to left undecided, be examined, and it was found that (6) Cunningham v. Moody. OF LAND IXTO MONEY AND MONEY INTO LAND. 333 Fletcher v. Ashburner. the use of the husband for life, with remaiEderto trustees to preserve contingent remainders, with remainder to the wife for life, with remainder to the children of the marriage, as the husband and wife should appoint; and in default of a joint appointment, as the survivor should appoint ; and in default of any appointment, to the children, to be equally divided among them ; if more than one, as tenants in common, in tail general, with cross remainders ; and if but one, to that child in tail general ; and no appointment was made. The father and mother being dead, and the daughter being married, the trustees paid the 5001. to her and her husband, and they received it as money, and executed a release. The daughter had a child, which died, and she afterwards died without issue. A daughter of the settlor, by a second marriage, filed a bill against the husband, repre- sentative of his wife, the daughter by the first marriage, for the 500?., considering it as land; and it was observed, that she w^as entitled to the money, but that the husband of her deceased sister was entitled to the interest during his life, as tenant by the curtesy. In the present case, William Fletcher, the son, had the whole beneficial title vested in him as money, subject to his mother's interest for life or widowhood. She was his sole next of kin, and her personal representatives are now entitled to the estate as money ; the bill must, therefore, be dismissed without costs. NOTES. 1. Generally. 2. Conversion of money into land by contract or will, p. 334. 3. Conversion of land into money, p. 339. 4. When conversion takes place, p. 341. 5. Conversion for fiscal purposes, p. 349. 6. Of the period at whichi conversion commences, p. 351. 7. Election to take property unconverted, p. 357. 8. Conversion by the Court or tliird parties, p. 364. 1. Generally. In the judgment of Sir Thomas Sewell in the principal case, the equitable doctrine of constructive conversion, which now applies to all Divisions of the High Court (a), is thus accurately stated, viz. : "that money directed to be employed in the purchase of land, and land (a) Judicature Act, 1873, s. 25, s.s. 11. 334 CONVERSION. rietcher v. Ashburner. directed to be sold and turned into money, are to be considered as that species of property into %vhichthey are directed to be converted; and tliis, in whatever manner the direction is given — whether by will, by way of contract, marriage articles, settlement, or otherwise, and whether the money is actually deposited, or only covenanted to be paid ; whether the land is actually conveyed, or only agreed to be conveyed. The owner of the fund, or the contracting parties, may make land money, or money land : " see Wheldale v. Partridge (a). The doctrine of conversion proceeds upon the principle, that equity considers " what ought to have been done shall he taken as done, and a rule so powerful it is as to alter the very nature of things, to make money land, and, on the contrary, turn land into money." It follows, that the neglect of trustees to perform their duty, either by converting land into money or money into land, will not affect the rights of others : Lechinere v. Carlisle (b), Scudamore v. aS^. (c). The law of conversion appears to be the same in Scotland as in England (d). As to foreign lands, see Re Piercey (e). As to conversion of land for partnership purposes, see Lake v. Craddock, post. 2. Conversion of Money into Land by Contract or "Will. Money agreed or directed to be laid out in land, becomes land so completely, as to acquire all the properties of land ; thus it will be considered as real and not personal assets. Such money would not, previously to 3 & 4 Will. 4, c. 104, have been liable to the payment of the debts of B. by simple contract (/). But it would be bound as real assets by a judgment (g). However, since the passing of 3 & 4 Will. 4, c. 104, such money will be liable, as other real assets, to the payment of simple contract debts ; and will be subject to tenancy by the curtesy; thus, in Sweetapple v. Bindon (h), where A. bequeathed 300^. to be laid out in land, and settled to the use of her daughter and her children, and if her daughter died without issue, to go over, the husband of the daughter was held to be tenant by the curtesy, although no purchase had been made during his wife's lifetime (^). (a) 5 V. 396 ; 7 E. E. 37. broke, 2 Vern. 58 ; Fulham v. Jones, {h) 3 P. W. 222. cited Pulteney v. Darlington, 7 Bro. (c) Pr. Ch. 543. P. C. 530 ; Foone v. Blount, Cowp. {d) Buchanan v. Angus, 4 Macq. H. 467. L. Cas. 374. {g) Frederick v. Aynscombe, 1 Atk. (e) (1895) 1 Ch. 83. 392. (/) Whitwick V. Jei-min, Lawrence (/') - Vern. 536. V. Beverley, cited in Baden v. Pern- (/) And see Cunningham v. Moody, OF LAND INTO MONEY AND MONEY INTO LAND. 335 Fletcher v. Ashburner. But by a singular anomaly, founded on precedent rather than reason (a), a woman was not dowable out of such money (6) ; but now by 3 & 4 Will. 4, c. 105, women married after the 1st of January, 1834, whose dower has not been barred, will be dowable out of equitable estates (c), and possibly they may be held dowable out of money to be laid out in lands of inheritance. Money agreed or directed to be laid out in land will pass under a general devise of all the lands of the person entitled to it (d), or by a devise of " all his lands in a particular country or elsewhere " (e). But such money, if it continue impressed with the character of land, will not pass as money by a general bequest to a legatee in exercise of a power or not ; though it will by a particular description, as so much money to be laid out in land, or *' as so much money left me by the will of A. " (/). Although previously to the late Wills Act (which enacts, that no will of an infant shall be valid), infants of the age of fourteen years might by will have disposed of their personalty, they could not, by will, have disposed of money directed to be converted into land (g). Fiscal Duties. — See Conversion for fiscal purposes, p. 349. Escheat, &c. — Money agreed or directed to be laid out in land, and settled upon a person in fee, will not upon his death without heirs be converted in equity, so that it should escheat to the Crown {h) or to a mesne lord (^) ; nor was such money forfeited on conviction for felony (k). 1 V. 174; Dodson v. Hay, 3 Bro. Ch. (/) Cross v, Addenbrook, 3 P. W. 404 ; Follett v. Tyrer, 14 Sm. 125. 222, n. ; Edwards v. Warwick, 2 P. (a) See the judgment supra, p. 329. "W. 171 ; Gillies v. Longlands, 4 De G. {h) Cunningliam v. Moody, IV. & Sm. 372 ; Chandler v. Pocock, 15 C. 176; Crabtreev. Bramble, 3 Atk. 687 ; D. 491, 16 C. D. 648 ; Ee Kingston, but see Fletcher v. Eobinson, Pr. Ch. 5 L. E. Ir. 169 ; Cookson v. C, 12 CI. 250; S. C, 2 P. W. 709; Otway v. & Fin. 121 ; Re Greaves, 23 C. D. 316 ; Hudson, 2 Vem. 583 ; Banks v. Sutton, Jarman (1893), p. 548 ; Be Cleveland's 2 P. W. 700 ; Ee Lismore, 1 Hog. 177. S. E., (1893) 3 Ch. 244. (c) See Ee INIichell, (1892) 2 Ch., p. (g) Earlom v. Saunders, Amb. 241. 99. (/;) Walker v. Denne, 2 V. jun. 170, (cZ) GreenhiU v. G., 2 Vern. 679, 185. Pr. Ch. 320; Guidot v. G., 3 Atk. (i) Bui-gess v. Wheate, 1 Eden, 177; 256; Eashleigh v. Master, 1 V. jun. Henchman v. A.-G., 3 My. & K. 483, 201 ; S. C, 3 Bro. Ch. 99 ; Biddulph 494. See Ackroyd i: Smithson, Pai-t V. B., 12 V. 161 ; Green v. Stephens, V., p. 389, post. 17 V. 77 ; Ee Scarth, 10 C. D. 499. (A-) Ee HaiTop, 3 Drew. 726 ; Ee (e) Lingen ■/.. Sowray, 1 P. W. 172. Wharton, 5 De G. M. ^: G. 33. 336 CONVERSION. rietcher v. Ashburner. Money in Court. — Questions frequently arise as to the mode in which money in Court, impressed with the character of realty, can be laid out upon lands settled in the same manner as the money {a). Mortmain. — See this note, infra, p, 340 ; and as to failure of trust to convert by operation of the statute, pp. 379, 381. Rights of Heir. — Money agreed or directed to be laid out in the purchase of land acquires the descendible properties of land. Where the heir claims payment of the money from strangers, he will, it seems, in all cases be preferred to the personal representatives of his ancestor. Thus, where money has been bequeathed to be invested in land, for the use of the ancestor and his heirs ; or where, on the marriage of the ancestor, money has been actually paid, either by him or by a stranger, to trustees, to be laid out in land, to be settled upon himself for his life, remainder to his wife for her life, with remainder to their issue, and in default of issue, to the ancestor and his heirs ; or if, on the marriage of the ancestor, there be a covenant on the part of a stranger to lay out money in the purchase of land to be settled to the same uses, and in all these cases the ancestor die without issue — the heir of the ancestor, and not his personal repre- sentatives, will be entitled to the money to be laid out in the purchase of land (b). If the heir seeks payment of the money from the personal representatives of the ancestor, his claims will be superior to those of the personal representatives, if there be any prior outstanding equitable interest in the fund in another person. Thus, where the ancestor has covenanted to lay out a sum of money in land, to be settled upon himself for life, remainder to his wife for her life, remainder to the issue of the marriage ; remainder to his own right heirs, if, on the death of the ancestor, the wife or any issue be living, although they may afterwards die, the heir can call upon the personal representatives for the money (c). So where money was liable to be {a) As to which see the Settled Warwick, 2 P. W. 171 ; Knights v. Estates Act, 1877, s. 34 ; Shelford, E. Atkins, 3 Vern. 20. P. S. (1893), p. 656 ; Settled Land Act, (c) Kettleby v. Atwood, 1 Vern. 298, 1882, s. 21, lb. p. 688; Partition 471 ; Lancy y. Fairechild, 2 Vera. 101 ; Act, 1868, s. 8, lb. p. 742. See also Chaplin v. Horner, 1 P. W. 483 ; Re Lloyd, 9 P. D. 65 ; Re Harman, Lechmere v. Carlisle, 3 P. W. 211 ; (1894) 3 Ch. 601. Cas. t. Talbot, 80 ; Oldham v. Hughes, (6) Scudamore v. S., Pr. Ch. 543; 2 Atk. 452; Wrightson v. Macaulay, Disher v. D., 1 P. W. 204; Chaplin 4 Ha. 487. u. Horner, 1 P. W. 487; Edwards v. OF LAND INTO MONEY AND MONEY INTO LAND. 337 Fletcher v. Ashburner. invested in land to be settled to uses in strict settlement, and all the uses were exhausted except a legal jointure, it was held by Jessel, M.R., that the jointress having an equity to compel the investment of the money in land, the same must be treated as real estate as between the real and personal representatives of the person who, subject to the jointure, was entitled thereto, though it seems it would be otherwise as to portioners (a). But if there is no outstanding equitable interest, as where, in such a case as Kettlehy v. Atwood (J)), the wife dies in the Hfetime of the ancestor, leaving no issue of the marriage, then, as the obligation to lay out and the right to call for the money centre in the same person — viz., the ancestor — the covenant, without any act on his part, will be considered as discharged : the money, to use a quaint expression, is " at home," and the heir will have no equity against the representatives of his ancestor. Thus, in Chichester v. Bicher- staff (c), it appears that, on the marriage of Sir John Chichester with the daughter of Sir Charles Bickerstaff, Sir Charles, by articles, was to pay 1,500^. in part of the portion, which, together with 1,500^. more, to he advanced by Sir John within three years after the marriage, was to be invested in land, and settled on Sir John for life, his intended wife for life, remainder to their issue, remainder to Sir John's right heirs. Within a year of the marriage the wife died, and Sir John three days after, without issue. Sir John by his will made Sir Charles his executor, and devised the residue of his personal estate, after debts, &c., paid, to Frances Chichester, his sister. The heir-at-law of Sir John filed a bill against Sir Charles to compel him to pay the 1,500^. {i.e., the 1,500^. to be advanced by Sir John), insisting that, by virtue of the marriage articles, the money ought to be looked on and considered in equity as land, and therefore belonged to him as heir. But Lord Somers said : " This money, though once bound by the articles, yet when the wife died without issue, became free again, and was under the power and disposal of Sir John, as the land would likewise have been in case a purchase had been made pursuant to the articles, and therefore would have been assets to a creditor, and must have gone to the executor or administrator of Sir John ; and this ease is much stronger where there is a residuary legatee ; " and dismissed the bill. Doubts have been thrown upon (a) Walrond v. Rossljm, 11 C. D. {h) 1 Vern. 298. 6-40. (c) 2 Vern. 295. W. & T. — VOL. L 22 338 CONVERSION. Fletcher v. Ashburner. this case by Jekyll, M.R., in Lechmere v. Carlisle (a), aad by Lord Talbot in LecJirtiere v. L. (b) ; but in the great case of Pulteney v. Darlington (c), Lord Tharlow expressed his opinion it was right. In that case money impressed with the qualities of realty had come to the hands of the person (Lord Bath) solely entitled to it under the ultimate limitation in fee ; and the person so entitled, without taking any notice of the particular sum, devised all his manors, &c., which he was seised or possessed of, or to which he was in anywise entitled in possession, reversion, or remainder, or which should thereafter be purchased with any trust moneys (except certain estates therein mentioned), to his brother H. in fee, and gave him all the residue of his personal estate, and made him executor. His brother H. subse- quently, by his will, gave all his estates, by local descriptions, to certain uses therein mentioned, and all his money, securities for money, goods, chattels, and personal estate, not before disposed of, to his executors, for certain trusts mentioned in his will. Thiirlow, C, dismissed the bill brought by the heir-at-law to have the money laid out in land. " If," said he, " A. B. has in his possession 20,000^. to be laid out in land for his use, he has nobody to sue ; the right and the thing centering in one person, the action is extinguished ; " and after citing and commenting upon the cases on this subject, his Lordship added : " The use I make of these cases, notwithstanding the dicta they contain, is this, that where a sum of money is in the hands of one without any other use but for himself, it will be money, and the heir cannot claim. . . . But whether that is clearly so or not, circumstances of demeanour in the person (even though slight) will be sufficient to decide it : a very little would do ; receiving it from the trustees, there is no doubt, would l)e sufficient. Lord Bath did receive it : he had it in his hands. Suppose he had it by way of covenant — otherwise, where would tliere be an end ? If he kept it, subject to a covenant to lay it out for fifty years, should the heir come for it at the end of that term ? It would lead to infinite inconveniences." This decision was affirmed on appeal to the House of Lords (tZ), and "went," as Eldon, C, says, in Wheldale v. Partridge (e), " no further than this, that if the property was at home, in the possession of the person under whom they claimed as heir and executor, the heir could not take it ; but if it stood out in a third person he might ; and the question in that cause was, not upon (a) 3 P. W. 221. (fZ) 7 Bro. Ch. 530. (6) Cas. t. Talbot, 90. . (e) 8 V. 235. (c) 1 Bro. Ch. 238. OF LAND INTO MONEY AND MONEY INTO LAND. 339 Fletcher v. Ashburner. the equity between the heir and executor, Ijut whether the money was at home " (a). In Walker v. Denne (h), Loughborough, C, observed, that, as between the heir and personal representative, their rights were pure legal rights ; that chance decided what should be real, what personal; and that neither had a scintilla of equity to make the property that which it is not in fact ; but this doctrine has been repeatedly dissented from in subsequent decisions (c). Macclesfield, C, stated, " that if a iiarty voluntarily and luithout any consideration covenants to lay out money in a purchase of land to be settled on him and his heirs, the Court Avould compel the execution of such contract, though merely voluntary, for in all cases where it is a measming cast betwixt an executor and an heir, the latter shall in equity have the preference " (d) ; the more correct principle appears to be that neither should be favoured, and that right to the fund must depend upon the character with which it is impressed. 3. Conversion of Land into Money. Land agreed or directed to be sold will be considered as money, and as such will not pass under a devise of land (e), but will pass under a general residuary bequest of personal estate by the cestui que trust (f); and in case of intestacy, will go to his personal repre- sentatives (g), even where conversion is not to take place until after his death (h) ; and they may maintain an action, in the case of a contract to sell by a vendor, against his heir-at-law and the purchaser for specific performance (i) ; and probate will be granted of the will (a) Chaplin v. Horner, 1 P. W. tree v. Bramble, 3 Atk. 689 ; Wilson 483 ; Bowes v. Shrewsbuiy, 5 Bro. P. v. Beddard, 12 Si. 32. C. 144; Eich v. Whitfield, 2 Eq. 583; (e) Elliott v. Fisher, 12 Si. 505. Chandler v. Pocock, 16 C. D. 648. (/) Stead v. Newdigate, 2 Mer. 521 ; (6) 2 V. jun. 175, 176. Farrar v. Winterton, 5 B. 1. (c) See Wheldale v. Partridge, 8 (g) Ashby v. Palmer, 1 Mer. 296 ; V. 235 ; Lechmere v. L., Cas. t. Burton v. Hodsoll, 2 Si. 24 ; Biggs u. Talbot, 90 ; Thornton v. Hawley, 10 Andrews, 5 Si. 424 ; Elliott u. Fisher, V. 138; Kirkman v. Miles, 13 V. 338; 12 Si. 505; Griffith v. Eicketts, 7 Ha. Stead V. Newdigate, 2 Mer. 521 ; Be 299; Hardey i-. Hawkshaw, 12 B. 552. Pedder's Settlement, 5 De G. M. & G. (7;) Clarke v. Franklin, 4 Kay & J. 890. 257. {d) Edwards v. Warwick, 2 P. W. (i) Baden v. Pembroke, 2 Vem. 58; 176 ; Lechmere v. L., Cas. t. Talbot, Hoddel v. Pugh, 33 B. 489 ; Fry, S. P. 90, 91 ; Hayter v. Bod, 1 P. W. 364 ; (1892), p. 91. Scudamore v. S., Pr. Ch. 544 ; Crab- 340 co^' VERSION. Fletcher v. Ashburner. of a married woman who disposes of real estate which is converted in equity (a). Aliens. — An alien, although he could not, previously to the Naturalization Act, 1870, hold land as against the Crown, would, nevertheless, be entitled to the proceeds arising from the sale of land devised to trustees to sell for his benefit (b). Where, however, there was no trust for absolute conversion, and the heir was an alien, the Crown was entitled to the estate (c). But now, by the Naturaliza- tion Act, 1870 (33 & 34 Vict. c. 14), s. 2, which is not retrospective, aliens may hold or dispose of property of every description like British-born subjects ((?). The Court will execute a trust of lands for an alien (created prior to the Naturalization Act, 1870), in favour of the Crown (e). Felons. — Formerly, when a felon was entitled to money arising from the conversion of land, and a sale took place before he worked out his punishment, the Crown became entitled thereto (/). Secus, where he had worked out his punishment before the time of sale, as the Crown had no equity to compel conversion (g). But forfeiture for felony has been abolished (h), and the convict's property will be vested in administrators for the purposes mentioned in the Act (i). Mortmain. — A bequest of money to arise from the sale of real estate, or a legacy from a fund to be produced by such a sale, was within the Mortmain Act (k), not because it came within its express words, but because it came within its meaning, inasmuch as if such a bequest were allowed, the charity to whom the bequest was made might elect to take the land (l). And even when land has been directed to be converted into money by a former instrument, a bequest of the whole or part of the proceeds thereof by a party entitled thereto was void under the Mortmain Act (ni) ; but see as to [a) In the Goods of Gunn, 9 P. D. {g) lb. 242. (h) S3 & 34 Vict. c. 23. (6) Du HourmeHn v. Sheldon, 1 (i) S. 10. B. 79, afiBnued on appeal by Lord [k) 9 Geo. 2, c. 36. Cuttenham, 4 My. & C. 525. {I) A.-G. v. Weymouth, Amb. 20; (c) Fourdrin r. Gowdey, 3 My. & Iv. Paicev. TheArchbishop of Canterbury, 383, 14 V. 364; A.-G. v. Harley, 5 Madd. [d) Sharp v. St. Sauveur, 7 Ch. 343. 321 ; The Incorporated, &c.. Society See also 33 «&, 34 Vict. c. 102, and 35 n. Coles, 5 De G, M. & G. 331 ; & 36 Vict. c. 39. Robinson v. E., 19 B. 201. {c) Barrow v. Wadkin, 24 B. 1 ; (m) A.-G. v. Harley, 5 Madd. 321 ; Sharp V. St. Sauveur, 7 Ch. 343. Brook v. Badley, 4 Eq. 106, 3 (/) 7?f Thompson's T., 22 B. 506. Ch. 672; Re Watts, 29 C. D. \ OF LAND INTO MONEY AND MONEY INTO LAND. 341 Fletcher v. Ashburnei". testator dyiag after 5tli August, 1S91, The Mortmain aud Charitable Uses Act (54 & 55 Vict. c. 73) : and see further pp. 379, otil, infra. Locke King's Act. — A share of the proceeds of freeholds settled, by deed, on trust for conversion, is not an interest in land within the Act, and therefore a mortgage charged on the freehold must be paid out of the residuary estate. And, seiiible, that where an interest in land is given by the testator with the option of retaining it in specie or of having it converted ; then if it is taken without conversion it must bear the burthen of the charge (a). 4. When Conversion takes place. Bu Contract. — The question between the real and personal repre- sentatives is, whether the vendor at the time of his death was either absolutely or contingently under such an agreement as equity would enforce against him (6). Where there is no specific performance of a contract possible there is no conversion (c). Where the property, however, has, either by operation of law or of contract, been converted, there is no equity between the legal and personal representatives, or between legal devisees and personal legatees (d). A mere notice to treat given by a railway company, or other persons having compulsory powers to purchase lands, to an owner of land in fee (being sui juris), although it may so far constitute an obligation as to enable the company to restrain the landowner from putting up the property for sale by auction (e), will not operate as a conversion of the land into personalty (/), although the landowner 947 ; Lucas v. Jones, 4 Eq. 73 ; such direction. Shadbolt v. Thornton, 17 Si. 49, 13 (a) Lewis v. L., 13 Eq. 218. Jur. 597; Ashworth v. Munn, 15 C. {h) See Dart (1888), p. 295; Lysaght D. 363; and as to apportionment, see v. Edwards, 2 C. D. p. 506: Jarman, jReHiU'sT., 16 C. D. 173. See now Wills (1893), p. 52. But subject to the Mortmain and Charitable Uses Locke King's Act, ^e Cockcroft, 24 C. Acts, 1888, 1891, 1892. By the Act D. 94, ante, p. 32. of 1891 (54 & 55 Vict. c. 73), it is pro- (c) Edwards v. West, 7 C. D. 858; vided that, with respect to the wills of Thomas v. Howell, 34 C. D. 166. testators dying after 5th Aug. 1891, {d) Frewen v. F., 10 Ch. 610. land assured by will to a charitable use (e) The Metropolitan E. C. v. Wood- is to be sold, and the proceeds given house, 13 W. 11. 516. to the charity, and that personal (/) Haynes i'. H., 1 Dr. & Sm. 426 ; estate dii-ected to be laid out inland butsee Walker r. The Eastern Counties for a charitable use shall go to the li. C, 6 Ha. 594. charitable use as if there had been no 342 CONVEESION. rietcher v. Ashburner. State the price he is willing to accept, if lie die before the acceptance of his offer (a). Nor will conversion take place where the contract with the landowner merely fixes the price per acre, without mentioning the quantity to be taken, and the purchase-money paid for the land taken after the owner's death will be realty (6). But where a notice to take lands by a company under their compulsory powers is followed up by the company and landowner fixing upon the price, the contract is complete, and conversion will take place (c), and the result is the same where the price is ascertained either by arbitration (d), by the valuation of two surveyors (e), or the verdict of a jury(/). So where A. devises an estate to B. and contracts to sell it, but dies before completion, the devise to B. will be adeemed, B. will take only the legal estate, and the purchase- money will form part of the testator's personal estate from the time fixed for completion ((/). But until completion the devisee or heir would be entitled to the rents (h). Where an heir adopted a parol contract of his ancestor to sell land it was held to have been converted, and the proceeds to belong to the personal representatives of the ancestor {i). When a person who has entered into a binding contract for the purchase of land in fee dies before the contract is completed, his devisee or heir-at-law becomes entitled to the land, and before the 30 & 31 Vict. c. 69, and the 40 & 41 Vict. c. 34 {k), could compel payment of the purchase-money out of the personal estate (/) ; and the rights of the purchasers, his real representatives, will not be affected by anything which takes place subsequently. Thus, if the contract ceased to be binding on the purchaser's representatives in (rt) Re Battersea Park Acts, Re (/) Haynes v. H., 1 Dr. & Sm. 426. Arnold, 32 B. 591 ; Eichmond v. North {g) Watts v. W., 17 Eq. 217 ; Re London E. C, 5 Eq. 352, 358. Manchester, &c., E. C, 19 B. 365. (i) Exp. Walker, Drew. 508. {h) Watts v. W., supra ; Townley v. (c) Ex p. Hawkins, 13 Si. 509 ; Bedwell, 14 V. 591 ; and see fui'ther Watts V. W., 17 Eq. 217; Re The Lawes v, Bennett, 1 Cox, 167, infra, p. Manchester, &c., E. C, 19 B. 365; 353; Knollys v. Shepherd, 1 J. & W. The Eegent's Canal Co. v. Ware, 23 B. 499 ; Edwards v. West, 7 C. D. 858 ; 575 ; Nash v. The Worcester, &c.. Re Adams, &c., 27 C. D. 394. Commissioners, 1 Jur. (N. S.) 973; (/) Frayne v. Taylor, 33 L. J. Ch. Adams v. London, &c., E. C, 2 Mac. (N. S.) 228. Cf. Pany v. Spencer, 56 6 G. 118; Re Pigott, 18 C. D. 146, L. T. E. 159. 150. (A;) Ante, pp. 29 and 31. (d) Harding i;. Metropolitan E. Co., (0 Gamett v. Acton, 28 B. 333; 7 Ch. 154. Langford v. Pitt, 2 P. W. 629, 632 ; (e) Watts V. W., 17 Eq. 217. Broome v. Monck, 10 V. 597, 612, 615. OF LAND INTO MONEY AND MONEY INTO LAND. 343 Fletcher v. Ashburner. consequence of the felling of ornamental timber by the vendor (a), or was rescinded by the vendor on the ground of delay or defects in title (h), or under a power reserved to him in the contract (c), the real representative of the purchaser is entitled to the purchase- money (d). Where a person contracted with a builder to erect a house on a piece of freehold land belonging to him, and died intestate before the house was finished, it was held by Romilly, KR., that the heir-at- law was entitled to have the house finished at the expense of the personal estate of the intestate (e). As to a contract with an option to purchase, see infra, p. 352. Conveyancing Act, 1881. — Formerly the devisee or heir-at-law of the person who had contracted for the sale of land, on his death, was obliged to join in the conveyance. Now, however, under the 4th section of the above Act, which commences from and after the 31st of December, 1881, it is enacted : S. 4 : " (1.) Where at the death of any person there is subsisting a contract enforceable against his heir or devisee, for the sale of the fee simple or other freehold interest, descendible to his heirs general, in any land, his personal representatives shall, by virtue of this Act, have power to convey the land, for all the estate and interest vested in him at his death, in any manner proper for aivino: effect to the contract. " (2.) A conveyance made under this section shall not affect the beneficial rights of any person claiming under any testamentary disposition or as heir or next of kin of a testator or intestate. " (3.) This section applies only in cases of death after the com- mencement of this Act." Direction to Convert must he Imperative. — The direction to convert either money into land or land into money must be express, and imperative ; for if conversion be merely optional, the property will be considered as real or personal, according to the actual condition in which it is found. Thus, where A. gave 500^. to B., in trust that B. should lay out the same upon a purchase of lands or put the same out on good securities, for the separate use of his daughter H. (che plaintiff's then wife), her heirs, executors, and administrators, and died in 1729. In 1731, H., the daughter, died without issue, before ((() Dart (1888), 6tli ed. {d) See also Curre v. Bowyer, 5 B. 6, \li) Whittaker v. W., 4 Bro. Ch. 31 ; n. ; Ayles v. Cox, 16 B. 23. Thomas v. Howell, 55 L. T. E 629. (e) Cooper v. Jarman, 3 Eq. 98. (c) Hudson V, Cook, 13 Eq. 417. 344 CONVERSION. Fletcher v. Ashburner. the money was invested in a purchase. The husband, as adminis- trator, brought a bill for the money against the heir of H., and the money was decreed to the administrator ; for, the wife not having signified any intention of a preference, the Court would take it as it was found : if the wife had signified any intention, it should have been observed, but it was not reasonable at that time to give either her heir or administrator, or the trustee, liberty to elect ; for Lord Talbot said, it was originally personal estate, and yet remained so, and nothing could be collected from the will as to what w^as the testator's jDrincipal intention {a). So, if money is directed to be laid out " in Government or other securities or in the purchase of freeholds," or "to remain at interest, or be laid out in land," or " to be laid out in freeholds or leaseholds ; " or if similar expressions are made use of, leaving the nature of the investment optional, or which do not sufficiently indicate an intention that the money should be laid out in land at all events, no conversion will take place until the trustees have actually exercised their discretion, which, when clearly given to them, the Court will not control (6). So where such is clearly the intention of the testator, the destination of the property, even under the will itself, may depend upon the exercise by trustees of their option to sell (c). The vesting also of property may be made, by clear and unequi- vocal terms, to depend upon the time when the option to sell is exercised {d). But if there is a trust for sale, the non sale will not prevent the property vesting (e). A mere power to trustees of residuary real estates given together with residuary personalty to executors upon trust, will not have the effect of converting the real estate, even though it be accompanied by a declaration that the testator's residuary estate shall for the purpose of transmission be impressetl with the quality of personal estate from the time of his decease (/). So where trustees have a mere power with the consent of a person in possession of certain settled estates («) Curling v. May, 3 Atk. 255 ; Re 708 ; Brown v. Bigg, 7 V. 279 ; Ibbitson, 7 Eq. 226. Harding v. Trotter, 21 L. T. 279; Yates (6) Walter v. Maunde, 19 V. -124 ; v. Y., 28 B. 637 ; Re Sinclair, 56 L. T. Van V. Bamett, 19 V. 102; Walker 83; of. Re Ocock, 40 Sol. Jo. 210. V. Denne, 2 V. jun. 170; "Wheldale v. {d) Elwin v. E., 8 V. 547; Faulk- Partridge, 5 V. 388, 7 E. E. 37 ; Atwell ener v. HoUingsworth, Tb. 558. V. A., 13 Eq. 23; ^e Wkitty's T., 9 Ir. (e) Minor v. Battison, 1 App. Cas. Eq. 41 ; Lucas v, Jones, 4 Eq. 77 ; Re 746. Gordon, 6 C. D. 537. (/) Hyett v. Mekin, 25 C. D. 735. (c) PoUey V. Seymour, 2 Y. & C. OF LAND INTO MONEY AND MONEY INTO LAND. 345 Fletcher v. Ashburner. to lay out personal property in laud to be settled to the same uses, no absolute conversion takes place (a). But the context may show that the power is in the nature of a trust, and that conversion is imperative (b). Although conversion is apparently optional, as where trustees are directed to lay out personalty, " either in the purchase of lands of inheritance, or at interest," "in freeholds, leaseholds, or copyholds," or " in land or some other securities," as they shall think most fit and proper ; yet if the limitations are adapted only to real estates, so as to manifest the testator's intention that land should be ultimately purchased, the money must be considered as land, although it be not actually so invested by trustees (c). In Earlom v. Saunders {d), W. P. devised lands to trustees, to the use of his wife for life, remainder to his first and other sons in tail, remainder to others in fee, as tenants in common. And he directed that 400Z. should be raised by his executrix out of his personal estate, and paid by her to his trustees, or one of them, who should lay out the samem a purchase of lands or any other security or securities, as they should think proper and convenient ; and he directed that the lands so to be purchased, and the security or securities on which the 400^. should be so laid out, should be made to and settled on the trustees, their heirs and assigns, in trust and to the use of his wife for life, and after her decease to such uses, and under such provisions, conditions, and limitations, as his lands before devised were limited. Lord Hardiuicke held, that conversion was not at the election of the trustees. " This Court," he said, " never admits trustees to have such election, to change the right, unless it is expressly given to them. Here the money is to be laid out in land or securities, for such uses as the land is before settled. If it is laid out in securities (which are personal), all the limitations might not take place ; for if there was a son born, he would take the whole money, as being tenant in tail, and the subsequent limitations would be defeated. The only way to make the clause consistent is, that the money be laid out on securities till lands are purchased, and the interest and dividends, in the meantime, to go to such persons as would be entitled to the land " (c). (a) De Beauvoir v. De B., 3 H. L. 361 ; Hereford v. Eavenliill, 5 B. 51 ; Cas. 524 ; Lucas v. Brandreth, 28 Cookson v. Eeay, 5 B. 22, 12 CI. & Fin. B. 273 ; Edwards v. Tuck, 23 B. 268 ; 120 ; Johnson v. ^Vi-nold, 1 V. 169 ; Re Bird, (1892) 1 Ch. 279. Simpson v. Ashworth, 6 B. 412 ; Ealph (6) Grieveson v. Kii'sopp, 2 Keen, v. Carrick, 5 C. D. 984, 11 C. D. 873. 653 ; and cases infra, p. 348. [d) Amb. 241. (c) Cowley V. Hartstonge, 1 Dow, (e) See also Edwards v. Warwick, 346 CONVERSION. Fletcher v. Ashburner. When there is a direction that money should be laid out in the purchase of land, a mere temporary provision, that in the meantime and until such purchase could be found, the money is to be placed out on securities, will not prevent immediate conversion from taking place (a). If, however, it appeared to be the intention that in a particular event, as, for instance, the death of a husband before his wife, the investment in securities was not to be of a merely tem- porary but of a final character, conversion will not take place (6). When there is a trust to sell within a particular time, it will be considered merely as directory, and conversion will take place, although no sale takes place within the time mentioned (c). So also when lands are directed to be sold, although the sale is to take place as soon as the trustees should see necessary for the benefit of the cestui que trusts (d). Conversion in favour of a particular legatee, to whom the proceeds of sale are bequeathed, will not be prevented by a devise of the property in an alternative event, in terms applicable to its uncon- verted state, inasmuch as the testator may have contemplated the possibiUty of the event taking place before a sale ; moreover, it may have been intended that as to one legatee, the property might be real, and as to the other legatee, to whom it was given on an alter- native event, personalty (e). But a trust for conversion will not be prevented from being imperative in both alternatives, because it is less necessary for distribution in one event than the other (/). Sale at Request or on Consent. — Where conversion is to take place at the request of certain persons, if the words of request are merely inserted for the purpose of enforcing the obligation to convert, although a conversion has taken place without consent, it will be considered to have been properly made. Thus, where the limitations are only adapted to real estate, a direction to lay out money after 2 P. W. 171; Thornton v. Hawley, Cuff v. HaU, 1 Jur. (N. S.) 972; THy 10 V. 138, infra, p. 347 ; Jolinsou v. v. Smith, 1 Coll. 434. Arnold, 1 Y. 169; Hereford v. Eaven- {d) Doughty v. Bull, 2 P. W. 320; hill, 5 B. 51 ; Cookson v. Eeay, 5 B. see also Eobinson v. E., 19 B. 494 ; Re 22, 12 CI. & Fin. 121 : but see Atwell Eaw, 26 C. D. 601 ; Re Heathcote, 58 V. A., 13 Eq. 23 ; Evans v. BaU, 30 L. T. 43. W. E. 1889. (e) Ashby v. Palmer, 1 Mer. 296 ; (a) Edwards v. Warwick, 2 P. W. Cowley v. Hartstonge, 1 Dow, 381 ; 171_ Ward V. Arch, 15 Si. 389. (b) Wheldale v. Partridge, 5 V. 388, (/) Wall v. Colshead, 2 De G. & J. 3 Y. 227. 683 ; Wilson v. Coles, 6 Jur. (N. S.) (c) Pearce v. Gardner, 10 Ha. 287 ; 1003 ; Crabtree v. Bramble, 3 Atk. 680. OF LAND INTO MOXEY AND MONEY INTO LAND. 347 Fletcher v. Ashburner. the request of persons, in the purchase of lands, will be construed as imperative, although no request may have been made, and there is a declaration, that until the purchase should be made, the money should be placed out on securities, and a disposition of the dividends and interest in the meantime, to the same persons to whom the rents and profits of the estates to be purchased would go. In fact, " nothing is more common than to direct money to be laid out upon request. The object of that is, only to ensure that the act shall be done when the request is made — not to prevent it until request " (a). So where real property was vested in trustees upon trust at the request of A. and B. and the survivor, and after their deaths at discretion, to sell and hold the proceeds upon trust for A. and B. successively for life, and then for the children equally. It was held after the deaths of A. and B. when there were three adult children living, that the trust for sale was not spent, the children not having elected to require a conveyance of the land, and that it could be exercised by the trustees without the concurrence of the bene- ficiaries (6). But where words requiring the request or consent of parties to a sale are inserted for the purpose of giving a discretion to tJtem, if the sale takes place without their request or consent the proceeds of the sale will still be considered as land. Thus, where the sale was to be " with the joint consent and approbation of the husband and wife, and not ii'ithoiit ; " conversion, therefore, in that case, was held to be not imperative, but at the option of the husband and wife (c). A person, however, whose consent or approbation to a sale is required, will not be allowed to delay it to another person's prejudice and to his own advantage (tZ). Discretionary Power of Sale or Trust for Sale. — \Yhere there is a mere discretionary power to convert real property into personalty, and to distribute it amongst certain persons, such persons must take the property in the actual condition in which they find it (e). The discretionary power of sale may be in form a ((/) See Thornton v. Hawley, 10 Newdigate, 2 Mer. 530. V. 129; Tiiquet u. Thornton, 13 V. (i) Be Tweedie, 27 C. D. 315; 345; Van v. Bamett, 19 V. 102; Biggs v. Peacock, 22 C. D. 284 ; A.-G. Symons v. Eutter, 2 A^ern. 227, ap- v. Dodd, (1894) 2 Q. B. 150. proved in Pulteney v. Darlington, 1 (c) Davies v. Goodhew, 6 Si. 585 ; Bro. Ch. 238 ; Lechmere v. Carlisle, Be Taylor's Settlement, 9 Ha. 596 3 P. W. 219 ; CosteUo v. O'Eorke, 3 Iluskisson v. Lefevre, 26 B. 157 ; Ir. E. Eq. 172; Wrightson v.Macaulay, Sykes v. Sheard, 33 B. 114. 4 Ha. 487 ; Batteste v. MauuseU, 10 (•) A.-G. v. Lomas, 9 Ex. 29 ; Be Jennings, supra; Be Goodall, (1895) Eicherson, (1892) 1 Ch. 379. 13 E. 870, option to purchase lease. (/) A.-G. v. Brunning, 8 H. L. Cas. ((/) 36 Geo. 3, c. 52, s. 19 ; De 243 ; see Be Goodall, supra. OF LAND INTO MONEY AND MONEY INTO LAND. 351 Fletcher v. Ashburner. will disposing thereof will Le entitled to probate (a). And the result would be the same where the conversion arises from the directions in the will alone (b). Legacy and probate duty is payable on real estate notionally converted into personalty in equity, in consequence of its havino- been purchased with partnership capital, and used for partnership purposes in trade (c). Money of a lunatic laid out in land by an order containing a declaration that the property was to be considered personalty, is liable to this duty although it is realty at the lunatic's death, and the persons beneficially interested elect to take it as land (d). Staiii'p Act (13 & 14 Vict. c. 97).— A settlement of land held on trusts for absolute conversion, although purchased for a particular sum, is not under this Act {see schedule Settlement, and Ih., Stamp Act, 1891), subject to an ad valorem duty as "a definite and certain principal sum of money " (e). 6. Of the Period from which Conversion Commences. Where absolute conversion is directed to be made by deed, if no time for it be pointed out, it will take place from the delivery of the deed (/). In the case of a will it will take place from the death of testator {g), although there may be a direction that a sale should take place «' whenever it should appear advantageous (h) ; unless it be directed to take place at another time, as, for instance, upon the death of a person entitled for life independently of the will (?'). Rents until Conversion. — Until conversion actually takes place, the person to whom the interest of the proceeds of the estate directed to be sold is given, will be entitled, in lieu thereof, to the rents of the estate. Thus, if an estate be devised to trustees upon trust for sale after the testator's death, or after the death of A., and to pay the interest of the proceeds to B., for life, B. will be entitled (a) Re Gunn, 9 P. D. 242. Q. B. 150. [h) A.-G. V. Lomas, 9 Exch. 29; (/) Griffiths v. Eicketts, 7 Ha. 299 ; Re Richerson, (1892) 1 Ch. 379. Clarke v. Frankling, 4 Kay & J. 2o7. (c) Forbes v. Steven, 10 Eq. 178; (. 203. 503, 1 Gif . 12 ; Ex p. Hardy, Be (e) 1 P. AV. 389. Kerry, W. N. ('89) 3. (/) Be Cotton's Trustees, 19 C. 1). (5) 27 C. D. 394. 624. (c) Ibid; per Pearson, J., 24 C. D. () Pierson v. Shore, 1 Atk. 480; (/) PhiUips v. Daycock, W. N. Mason v. Day, Pr. Ch. 319. (1867), p. 54. OF LAND INTO MONEY AND MONEY INTO LAND. 369 Fletcher v. Ashbvirner. Other Cases. — When realty has been converted by the Court or trustees for a particular purpose which does not exhaust the whole proceeds of the sale, the surplus is to be taken as personalty. The decision of Shadwell, V.-C, in Jenny v. Preston (a), appears to be the other way. But in Steed v. Preece {b), which was a suit by trustees for administration of the trusts of the instrument under which these persons were entitled, and also asking for partition (before the Act of 1868), a decree was made by which, the Court being of opinion that a sale would be for the benefit of the infant defendant, and the adult defendant consenting, a sale was ordered. A sale was made under the decree, and the purchase-money paid into Court, and upon further consideration the adult's share was paid to him, and the infant's share carried to his separate account. The infant afterwards died without having attained twenty-one. Jessel, M.R., after reviewing the authori- ties, and approving Flanaghan v. F. cited in the judgment in the principal case (supra, p. 330), held that the fund in Court belonged to his legal personal representatives, and was not to be treated as realty ; that if a conversion is rightfully made, whether by the Court or a trustee, all the consequences of a conversion must follow ; and the heir or any one else must take the property in the form in which it is found unless there be any equity in favour of the heir, or any one else, for re-conversion (c). And where the Court in the exercise of its jurisdiction makes an order for the sale of real estate, the order itself, even in the case of an estate belonging to an infant, operates as an immediate conversion, and before any sale has actually taken place (d). The judgment itself may of course make a special provision, as where a decree ordering real estate devised in strict settlevient to be sold for payment of debts, directed that if more were sold than was sufficient for that purpose the surplus should be laid out in land to be settled to the same uses as the devised estate (e). Questions have arisen with regard to moneys arising from insurance against fire of settled property, wdiether they were to be considered as the personalty of the party who had kept up the insurance or as real estate for the benefit of the parties entitled to the estate ; where {«) 13 Si. 356. Act, 1S6S ; Fowler v. Scott, 19 W. E. {h) 18 Eq. 192. 972 ; Mildmay v. Quicke, 6 C. D. 553. (c) Foster v. F., 1 C. D. 588; ((/) Hyett r. Mekin, 25 C. D. 735. Batteste v. Maunsell, 10 Jr. E. Eq. (e) Fellow v. Jermj'n, W. N. (77) 97 ; Be Barker, 17 CD. 241, sale of 95, and see A.-G. v. Ailesbury, supra, lunatic's real estate under Partition W. & T. — VOL. I. 24 370 CONVERSIOJJ. Fletcher v. Ashburner. for instance during the infancy of a tenant in tail of freehold estates devised in strict settlement, part of which consisted of a corn mill let on lease, the rents were received by his mother on his behalf, and she thereout paid the premiums necessary for keeping up a policy which had been effected in her name for insuring the mill against fire. The will contained no provision for fire insurance. The mill having been burnt down, and it not being considered for the benefit of any person interested in the settled estates that it should be rebuilt, it was held that the insurance moneys belonged to the infant tenant in tail as his personal estate, and were not treated as real estate for the benefit of all persons interested in the settled estate (a). An alien was entitled to take the proceeds of land agreed or directed to be sold (b), and by virtue of the 33 & 34 Vict. c. 14, s. 2, such person may now take, hold and dispose of real and personal property of every description. Where the sale of property belonging to persons under disability is directed by the Court under the Partition Act, 1868, there is an equity for reconversion under the Settled Estates Act, 1877, ss. 34, 35, 36, which are imported into that Act (c). On the death, intestate, of the person entitled to the proceeds of a sale under the Partition Act in its reconverted estate, the heir-at-law will be entitled thereto, as money and not as realty. In Mordaunt v. Benwell (d) a decree for the sale of real estate having been made in a partition suit, the property was sold and the proceeds paid into court. Three of the persons entitled to the shares in the property died intestate before the money was distributed, leaving their father their heir-at-law and sole next of kin. He took out administration to each of them, and then died intestate. It was held that the father took his children's shares of the money as their heir-at-law, but that he took them as money, and that on his death they passed to his personal representative and not to his heir-at-law. Where, in a partition action, an order for sale is made at the request of the person under disability under the Partition Act (e), no such equity for reconversion arises (/). A married woman can, where such an equity («) Warwicker v. Bretnall, 23 C. D. Barker, 17 Ch. D. 41 ; Grimwood v. 194. Bartels, 25 W. E. 843, lunatics. {h) Du Hounnelin v. Sheldon, 1 B. (d) 19 C. B. 302. 79; 4 My. & C. 525. (e) (1876) s. 6 ; SheKord, E. P. S., (c) Foster v. F., supra, the case of p. 748. an infant ; Mildmay v. Quicke, sup. ; (/) "Wallace v. Greenwood, 16 C. D. Be Lloyd, 9 P. D. 65 ; Fowler v. Scott, 362 ; Howard v. JaUand, (1891) W. N. 19 "W. E. 972, married women; Be 210. OF LAND INTO MONEY AND MONEY INTO LAND. 371 Fletcher v. Ashburner. arises, signify her election to take the fund as separate estate by a s eparate examination {a), and if the proceeds of her share be under 200Z. the Court will order the same to be paid out to her upon her separate receipt and upon an affidavit of no settlement, and will dispense with her separate examination (6). Where money is paid into court, the produce of real estate con- verted by compulsory powers under Acts of Parliament, as under the 69th section of the Lands Clauses Consolidation Act, it in general remains in court subject to the rights of the parties interested in it to have it reinvested in land, and it is to be considered as money or personal estate in court, subject to a trust to be invested inland, and therefore imj^ressed with the quality of real estate (c), until some act is done by the owner showing his election to take it as personalty {d). But the accumulations will be personal estate (e). It is not essential to the reconversion of the money paid into court under the 69th section, that the property should be in settlement, because the directions therein that such money is to be invested in the purchase of lands to be conveyed in the same manner as the lands taken " stood settled " means " stood limited," words applicable to an estate in fee of a person under disability (/). Where land belonging to a person of unsound mind has been taken under the Act, and the money paid into Court, and the landowner was found lunatic and died intestate, Pearson, J., ordered the money to be paid out to her heir {g), dissenting from the decision of Lord Cranworth in Ex p. Flamanh, a similar case (Ji). But where the payment in is made under the 78th section of the L. C. C. Act it will be treated as personalty {i). By the L-ish Church Act, 1869 {h), every advowson, with per- petual right of presentation to a living in the Established Church in Ireland, was converted into personalty, viz., the right to receive the compensation which should be assessed by the Commissioners : it was held that the executors of a testator and not the devisees of his livings wore entitled to the compensation under the Act (I). («) Standering v. Hall, 11 C. D. 652. (e) Dixie v. Wright, 32 B. 662. [h) Wallace v. Greenwood, supra ; (/) Kelland v. Fulford, 6 0. D. 491. Seton, p. 789. ' {) 9 Geo. 2, c. 36 ; A.-G. v. Wey- Ch. 455 ; Be Daveron, lb. p. 421. mouth, Amb. 20 ; Jones v. Mitchell, 1 (/) 2 Keen, 564. S. & S. 294 ; Hopkinson l\ Ellis, 10 B. (,v) 39 & 40 Geo. 3, c. 98. 169 ; and see Brook v. Badley, 3 Ch. {h) 8 Ch. 978. 672; ^e Watts, 29 C. D. 947. 380 COXYERSION. Aekroyd v. Smithson. estate before it was appointed, and therefore the accumulations, so far as they were void, went, notwithstanding the direction to convert into land, to the next of kin as personal estate. An express direction that the proceeds of the sale of real estate shall be deemed personalty will not prevent the operation of the rule in favour of the heir-at-law ; for however absolute such direction for conversion may be, it will be construed to extend to the purposes of the will only (a), and although a direction that the proceeds of real estate shall be deemed personalty be followed by an express declaration that the heir-at-law shall not take in case of lapse, he will not, unless there be a disposition thereof, be excluded from what the law in the absence of such disposition would give to hira. Thus, in Fitch v. Weber (b), a testatrix devised and bequeathed her real and personal estate, in trust as to the real estate for sale as soon after her decease as conveniently could be, and declared that the trustees should stand possessed of the proceeds of the sale, as a fund of personal and not real estate ; for ivhich purpose she declared such proceeds, or any part thereof, should not in any event lapse or result for the benefit of her heir-at-la,w : and, after giving legacies, the testatrix directed her trustees to pay and apply the residue of her estate and effects as she should by any codicil to that her will direct or appoint. The testatrix made no codicil. Wigram, V.-C, after an elaborate examination of the authorities, held, that the heir-at-law was entitled to the proceeds of the real estate undisposed of by the will. See further on this point, Parts 3 and 4, post, 2. Resulting Trusts when Money is directed to be laid out in Land upon Uses which wholly or partially fail. The principle upon which Achroyd v. Smithson was decided, applies also to the converse case of money directed to be laid out in the purchase of real estate, devised to uses which partially fail, as well as those which wholly fail to take effect ; for the undisposed-of interest in the money or the estate, if purchased with the money, will result for the benefit of the next of kin of the testator, and will not go to the heir-at-law. In Cogan v. Stevens (c), the testator (a) See Collins v. Wakeman, Am- 25 B. 110; Bedford v. B., 35 B. 584, phlett V. Parke, Taylor v. T., 3 De G. and Part 4, post. M. & G. 190, oveiTuHng Phillips t: P., (5) 6 Ha. 145. 1 My. & K. 649 ; Eobinson v. London -^c) 1 B. 482 (n.). Hospital, 10 Ha. 19; Ellis w. Bartrum, RESULTING TRCST. 381 Aekroyd v. Smithson. ordered that 80,000^. should be laid out immediately by his executors in the purchase of an estate or estates in the county of Devon or Cornwall, the income of which should belong to his widow during her life, and after her decease to certain persons (all of whom died during the life of his widow, without issue), in tail, with remainder to a charity. The money was not laid out, and the gift to the charity being void under the Statute of Mortmain («), it was held by Lord Cottenham, that the next of kin, and not the heir-at-law of the testator, was entitled to the fund. " The result of the whole authorities," said his Lordship, "seems to be, that, before Aekroyd v. Smiithmn, no distinction was recognised between the doctrine as applicable to a conversion of money into land, or land into money : that, as to both, an opinion prevailed that when a conversion was necessary, and part of the object failed, the unappropriated pro- ceeds belonged to that representative on whom the law cast that description of property in which such proceeds were found to exist. This, as to land converted into money, was corrected in Aekroyd v. Smithson ; but no case has occurred in which the point has been argued and determined as to money converted into land. I sa}^ argued and determined, because, if determined in Leslie v. Devon- shire (h), and Fletcher v. Chapinan (c), it certainly was not argued ; but there are undoubtedly dicta of very eminent Judges, since that time, which seem to show an impression on their mind, that the principle of Aekroyd v. Smithson was not to be applied to a conversion of money into land. Those learned Judges had not the benefit, which I have had, of hearing the point fully and most ably argued ; and having, after the fullest consideration, come to the conclusion that that principle does apply to the present case ; and as I am not bound by any of the authorities to maintain a distinction which was not originally supposed to exist, and which cannot be maintained in reason, and which, therefore, if maintained, would be a reproach to the law as it stands, I feel myself fully justified in preserving the uniformity of the rule, as applicable to the two cases, by deciding against the claim of the plaintiff; and I may be allowed to express some satisfaction in finding I am not compelled by authority to hold that any heir should take, as such, what had no inheritable quality, but was pure personal estate, at the time of the ancestor's death, or that, as devisee, he should take that which was never destined for him, but was in most unquestionable terms given (a) See now the Mortmain and {h) 2 Bro. Ch. 187. Charitable Uses Act, 1891, s. 7. (c) 3 Bro. P. C. 1. 382 CONVERSION. Ackroyd v. Smithson. to another" (a). As to whether the next of kin take the property resulting to them as real or personal estate, see Part 3. 3. How the Heir and Next of Kin take Property directed to be converted. Conversion absolute — Partial Failure of Objects of. — Where an absolute conversion of land is directed for the general ^purposes of the will, and some of these purposes fail, yet, the conversion being effectual, the surplus proceeds of the land sold, and the unsold land, both result to the heir as personal estate, and if the heir is dead goes to his personal representatives. In Re Richerson, Scales v. Heyhoe (b), a testator devised his real estate upon trust for sale, and directed that the proceeds should form part of his residuary personal estate, which be bequeathed to a class which failed. In 1890 the trusts came to an end. Part of the laud was sold, part was unsold. The heir had died in 1872 intestate. Chitty, J., held that the proceeds of the real estate sold, and the realty unsold, both went to the personal representative of the heir (c) ; and probate duty is payable upon the land unsold (d). Semble, that in such a case as the above, no act on the part of the heir electing to take such partial interest as real estate would change its character (e). Conversion absolute— -Entire Failure of Objects of. — If there is a total failure of the objects for which conversion was directed, the heir will take the estate as realty, descendible to his heir, and devisable only by a will, attested so as to pass real estate (/). And a sale unnecessarily made by trustees will not vary the rights of the parties, as the proceeds will in that case be considered as the real estate of the heir (g). If the testator Avere seised ex jjao^te niaternd, his heir in the maternal line will be entitled (/i). (a) See also Hereford v. Eavenhill, 1 B. 481. il) (1892) 1 Ch. 379. (c) See Wright v. W., 16 V. 188, 10 E. E. 161 ; Smith v. Claxton, 4 Madd. 484 ; Dixon v. Dawson, 2 S. & S. 327 ; Jessop V. Watson, 1 My. & K. 665 ; Hatfield v. Piyme, 2 CoU. Ch. E. 204 ; Wilson V. Coles, 28 B. 215 ; Wall v. Colshead, 2 De G. & J. 683 ; A.-G. v. Lomas, 9 Ex. 29 ; Hamilton v. Foot, 6 Ir. E. Eq. 572, 578. [d) A.-G. V. Lomas, supra. (e) Jarman, (1893) 566 ; see Re Wragg, 63 L. T. 219. (/) Chitty V. Parker, 2 V. jun. 271. See remarks on this case in A.-G. w. Lomas, supra ; Bagster v. Fackerell, 26 B. 469 ; Buchanan v. Harrison, 1 John. & H. 662. {g) Davenpoii v. Coltman, 12 Si. 610 ; Cooke v. Dealey, 22 B. 196 ; cf. Bowra v. Ehodes, 31 L. J. Ch. 676 ; Re Eicherson, (1892) 1 Ch. p. 383. (/;) Hutchison v. Hammond, 3 Bro. Ch. 128; Wood v. Skelton, 6 Si. RESULTING TRUST. 383 Ackroyd v. Smithson. In Smith v. Claxton (a), Leach, M.R., said : " Where a devisor directs his lands to be sold, and the produce divided between A. and B., the obvious purpose of the testator is, that there shall be a sale, for the convenience of division ; and A. and B. take their several interests as money, and not land. So, if A. dies in the lifetime of the devisor, and the heir stands in his place, the purpose of the devisor, that there shall be a sale for the convenience of division, still applies to the case ; and the heir will take the share of A. as A. would have taken it — as money, and not land. But in the case put, let it be supposed that A. and B. both died in the lifetime of the devisor, and the whole interest in the land descends to the heir ; the question would then be, whether the devisor can be considered as having expressed any purpose of sale applicable to that event, so as to give the interest of the heir the quality of money. The obvious purpose of the devisor being, that there should be a sale for the convenience of division between his devisees, that purpose could have no application to a case in which the devisees wholly failed ; and the heir would, therefore, take the whole interest as land (6)." Conversion directed for Particular Purpose. — Where a conversion is directed not absolutely, for all the purposes of the will, but for a particular purpose, such as payment of debts, all that is not required for that purpose results to the heir as land, as if the conversion had entirely failed (c). Where trust to Convert is illegal. — See gupra, p. 379. Personal Estate. — The same principles apply in the case of personalty directed to be converted. If it is directed to be laid out in land for the general -purposes of the luill, it goes, if the trusts partially fail, to the next of kin as reed estate (d) ; both the personalty which has been so invested, and that which has not (e). 1761; Buchanan v. Harrison, 1 John. & supra. H. 673. {d) Curteis v. Wormald, 10 C. D. (a) 4 Madd. 492. 172; overruling Reynolds v. Godlee, (6) See also Bagster v. Fackerell, 26 Johns. 536 ; and cf . Cogan v. Stevens, B. 469 ; Wall v. Colshead, 2 De G. & IB. 482, supra, p. 380. J. 683. (e) See Ee Richerson, Scales v. (c) Wright ?;. W. ; lie Eicherson, Ileyhoe, (1892) 1 Ch. at p. 384. 384 COXVERSIOX. Aekroyd v. Smitlison. 4. When a Residuary Devise or Bequest comprehends Property which would otherwise have resulted to the Heir or Next of Kin. In the cases we have before considered, the competition has been between the heir-at-law and the next of kin, where there has been a resulting trust for one of them ; but whatever may result to either the heir-at-law or next of kin, may, by appropriate words, be given to others. The question is, does the will of the testator show a clear intention that the conversion directed is to be an absolute conversion for all the purposes of his will ? Unless this intention is clearly indicated, the conversion will be deemed to be directed for the particular purposes of the will only. Heir and Residuary Legatee. — First, with regard to that class of cases in which the competition has been between the heir-at-law and the residuary legatee. Unless an intention is expressed in, or can be inferred from the whole will, that the proceeds of the sale of real estate undisposed of is to form part of his personal estate, it will not pass under a residuary bequest. Thus in Maugham v. Mason (a), a testator devised freehold chambers to trustees and their heirs, upon trust to sell, and to apply the money arising by such sale toward payment of legacies, and the rents, until sold, to be applied to the same uses ; and, after giving some pecuniary and specific legacies, as to the rest, residue, and remainder of his personal estate, after payment of his debts, legacies, and funeral expenses, he bequeathed the same to his trustees, upon trust to convert all the said residue into money, and to lay out the same in the purchase of freehold property, to be settled as therein mentioned. The executors paid all the debts, funeral expenses, and legacies, out of the personal estate, not making sale of the real estate. Grant, M.R., held, that the real estate, after payment of legacies, which were a primary charge upon the personalty, resulted to the heir-at-law, and did not pass under the residuary bequest. " The observation," said his Honor, "is perhaps minute, that the money, produced by the sale of the real estate, could not with propriety be spoken of as personal property to be converted into money ; at most, however, this is a general bequest of the residue of his personal estate; and the question is, what was meant to be included under that description. Properly speaking, nothing is the personal estate (a) 1 V. & B. 410. RESULTING TRUST. 3S5 Aekroyd v. Smithson. of a testator that was not so at his death. He may certainly so express himself as to show that something else was intended ; but where there is nothing but a direction to sell land, with application of the money to a particular pwrpose, and a subsequent bequest of the rest and residue of the personal estate, I know of no case in which it has been held that the surplus, after the particular purpose is answered, forms part of the personal estate, so as to pass by the residuary bequest. The mere disposition of the residue of personal estate can never solve the question, what is personal estate. The clause may be so conceived as to show the sense in which those words are used; but here is nothing more than those words, unaccompanied with anything explanatory of the sense in which they were used (a)." Where, however, a testator expressly declares, that the money arising from the sale of real estate shall be considered as part of the personalty, it will pass under a general residuary bequest of personalty in the same will (6), and it is liable to the trusts which attach to such residuary personal estate, and to the legal incidents affecting it (c) ; and the intention that the proceeds of the sale of real estate should pass under a residuary bequest of personal estate, may be inferred from expressions in the will irresistibly leading to such a conclusion : and the blending of the real with the personal estate has been considered as furnishing an indication of such intention. In Court V. Buckland (d) a testator devised and bequeathed the residue of his personal and his real estate upon trust for sale, and upon trust to dispose of the moneys to arise from such estates after payment of debts, &c. upon the trusts thereinafter declared. He declared, also, that from the time of his decease the unsold real and personal estate should be subject to the trusts thereinafter declared concerning the sale moneys, and that the rents, &c. should be deemed annual income, and that until sale such real estate should be transmissible as personal estate, and. be considered as converted in equity. He then directed a sum to be set aside out of the sale moneys and {a) See also Berry v. Usher, 11 V. /-. Foot, 6 Ir. R. Eq. 572. 87 ; Kellet v. K., 3 Dow, 248 ; Collins {b) Kidney v. Coussmakcr, 1 V. jun. V. Wakeman, 2 V. jun. 683 ; Eobinson 436. V. London Hospital, 10 Ha. 27 ; Be (c) Bright u. Larcher, 3 De G. & J. Cameron, 26 C. D. 19; Dixon 156; Field ;'. Pickett, 29 B. 568. V. Dawson, 2 S. & S. 327 ; Collis v. {d) 1 C. D. 610. Robins, 1 De G. & Sm. 131 ; Hamilton W. & T. — VOL. I. 25 386 ■ CONVERSION. Ackroyd v. Smithson. invested, and after the death of his wife to form part of iiis residuary personal estate, and subject thereto, and to the payment of his debts, &c., his trustees wei'e to hold his residuary personal estate in trust as to one moiety for his son, and as to the other for his daughter. The son died in testator's lifetime intestate, leaving a son. Jessel, M. R., whilst recognisincr the creneral rule, held that the intention was that the proceeds of sale of the real estate should be included in the " residuary personal estate," and should not go to the heir-at-law. In Singleton v. Tomlinson («), a testator directed his executors to pay his funeral expenses and debts out of the proceeds of Ids property, and reciting that he was possessed of landed and chattel property, directed his executors to sell his lands, and after some specific devises and bequests, constituted T. his residuary legatee. Held, there was a conversion not for a specific purpose only but out and out, and that the surplus passed to the residuary legatee and not to the heir (6) Failure of Gifts of Money out of Proceeds of Sale of Real Estate. — It has always been held that a will as to personalty speaks at the time of death of the testator. The residuary legatee therefore takes not only what is undisposed of by the expressions of the will, but that which becomes undisposed of at the death, by disappointment of the intentions of the will. Before the Wills Act (c), it was otherwise as to the residuary devisee of real estate, or of the price of real estate. As to him, the will spoke only at the time of making it, and he took as specific devisee the lands or the price of them, not included in the particular devises contained in the will ; but where part of the proceeds of sale was directed to be applied to a particular purpose which failed, either by lapse or illegality, such part would go to the heir-at-law, unless he was excluded directly or by inference, and not to the residuary devisee of the proceeds. In Jones v. Mitchell {d) , the testatrix by will gave 800Z. out of the money to be produced by the sale of her real estates, to trustees, for the benefit of certain charitable institutions : and she gave the residue of the money to J. R. The gift of the 800^. being void, Leach, V.-C, held that the heir of the testatrix, and not J. R., (a) 3 App. Cas. 404. 7 V. 280; Griffiths v. Pruen, 11 Si. 202 ; (/>) And see Hutcheson V. Hammond, Bromley v. Wright, 7 Ha. 334; Spen- 3 Bro. Ch. 148 ; Wright v. W., 10 R. E. cer v. WUson, 16 Eq. 506. 161 ; Kellet v. K., 3 Dow, 248 ; Byam (c) 1 Vict. c. 26. V. Munton, 1 Russ. & M. 503; Mallabar \d) 1 S. & S. 290. V. M., Cas. t. Talb. 78 ; Brown v. Bigg, RESULTING TRUST. 387 Ackroyd v. Smithson. was entitled to it. "The devisor," said his Honor, "at the time of making the will, intended that the residuary devisee of the price of the land should take such residue, subject to the deduction of the 800^., and not the 800^., which is therefore undisposed of, and results to the heir." The residue was, in fact, considered as the gift of a specific sum, after deducting 8001. from the purchase-money, and J. R had no right, therefore, in any event, to take more than the sum given to him (a). The fact, however, of the testator having blended the produce of his real with his personal estate, has in some cases been considered a sujfficient reason for excluding the heir, in favour of the residuary legatee, of the produce of the real and personal estate, by applying to the mixed fund the rule applicable to personalt}^, such rule being, even under the old law, that the residuary legatee of personalty takes what is not effectually disposed of (5). In Cruse v. Barley (c) the funds were blended, a contingent legacy given thereout failed, but the heir was held entitled. In the case of Arapldett v. Parke {d), a leading authority upon this subject, a testatrix gave her real estates upon trust to be sold, and dii-ected the moneys to arise from such sale, to be considered and taken as part of her personal estate ; she then directed, that, out of the moneys to arise from such sale, and out of all other her personal estate, certain pecuniary legacies should be paid ; and bequeathed all the residue of her personal estate, and of the moneys arising from the sale of her real estates, upon trust for two persons and their children. Some of the pecuniary legacies having lapsed, it was held by Lord Brougham, reversing the decision of Sir John Leach, that the conversion of the real estate into personal, directed by the will, luas not absolute, but partial only, for the purpose of making good the pecuniary legacies, and that such of those legacies as had lapsed, in so far as they were payable out of the produce of real estate, had lapsed for the benefit of the heir-at-law. "The rule," observed his Lordship, (a) See Jarman (1893), p. 599; also 320; the dictum of Lord Thnrlow in Ilutcheson v. Hammond, 3 Bro. Ch. Hutclieson v. Hammond, 3 Bro. Ch. 128; Collins v. Wakeman, 2 V. jun. 148; Kennel v. Abbot, 4 V. 802; 683 (a case probably of " exception") ; Green v. Jackson, 5 Russ. 35; Salt v. Gibbs V. Rumsey, 2 V. & B. 294 ; Chattaway, 3 B. 576. contra, Page v. Leapingwell, 18 V. (c) 3 P. W. 20. 463, 11 R. R. 234 ; Noel v. Henley, 7 [d) 2 Russ. & M. 221. See Jarman Price, 240. (1893), G04-607. {h) See Dui'our v. Motteux, 1 Y. 25 2 388 • CONVERSION. Ackroyd v. Smithson. " wliich I have stated to be extracted from all the cases is, that you must clearly prove that the heir-at-law is excluded ; that the words prevent the possibility of considering anj^thing to be left as a resulting trust for him ; and that the burden of such proof lies upon those who claim in opposition to him. It is not at all inconsistent with that rule, but rather flows from it, and I agree in holding, that a testator may provide, not only that the undisposed residue, which is strictly personal, shall go to the residuary legatee, but that all lapsed legacies, of whatever nature, shall also go to him ; and that, if it is clear, therefore, from express words, that he gave him the lapsed legacies that were to be raised by the sale of real property, and failed in consequence of lapse, mortmain, or any other cause ; if he says, for instance, ' I give all the lapsed legacies as parcel of my residue, to the residuary legatee,' cadit quoistio ; there is no doubt he may ; and if he can do it by express words, he can do it by plain and obvious intention to be gathered from the whole instrument. If you once arrive at the conclusion, that the testator has displaced the heir, then, of course, the lapsed fund falls into the residue by express intention." The cases in which a contest could take place between the heir and the residuary devisee are now rare, for by the 2oth section of the Wills Act, it is enacted "that unless a contrary intention shall appear by the will, such real estate or interest therein as shall be comprised, or intended to be comprised, in any devise in such will contained, which shall fail, or be void, by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law, or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contained in such will." By section 33 of the same Act, it is also enacted that devises or bequests to a child or other issue of the testator who shall die leaving issue living at the testator's death shall not lapse. Residuary Legatee. — When the proceeds of the sale of real and personal estate are made a mixed fund, the context of the will may pass surplus proceeds to the residuary legatee (a), and where the conversion is absolute for the general purposes of the will, the residue of converted realty goes to the residuary legatee {h). Charges and Exceptions. — A sum expressly excepted out of the {a) Evans v, Crosbie, 15 Si. 602 ; Cas. 404, supra, p. 386 ; cf. Gethin v. Wildes V. Davies, 1 Sm. & G. 475. AUen, 23 L. E. Ir. 236. {h) Singleton v. Tomlinson, 3 App. RESULTING TRUST. 389 Aekroyd v. Smithson. produce'of sale {a), but not attempted to be disposed of, belonged to the heir, but since the last-mentioned Act it would oro to the resi- duary devisee {h). But if the devise to a particular person or for a particular purpose is intended to be a charge only, as distinguished from an exception, the failure of the particular devise will enure for the benefit of the specific devisee, and not for that of the residuary legatee (c). 5. Undisposed of Interest where no Heir or Next of Kin. If the author of a resulting trust dies intestate as to the resulting interest, and without heirs since the 14th August, 1884 {d), any real estate consisting of any estate or interest, whether legal or equitable, and whether devised to trustees or not, escheats (subject to the Intestates Estates Act, 1890, hereinafter referred to) in the case of freeholds, to the Crown, and in case of copyholds to the lord. Before this Act the trustees of such legal estate would in such a case have been entitled beneficially (e). As to personal estate before 1 Wm. 4, c. 40, the executors took the undisposed of interest bene- ficially, subject to the payment of debts ; unless the will showed an intention that they should be trustees of it. The Act gives them such undisposed of residue as trustees for the next of kin, unless a contrary intention is expressed by the will(/). But, if there are no next of kin, the Act does not apply as between the executor and the Crown, and the executors take beneficially, unless a contrary intention is shown {g). If they are appointed trustees as well as executors they do not take, and the personal estate goes to the Crown (A). By the Intestates Estates Act, 1890, the real and personal estates of persons dying wholly intestate after 1st September, 1890, leaving a widow but no issue, are to the extent of 500Z. to belong to the widow {i). As to the exception to resulting trusts in the case of gifts to -charities, see Tudor's Charitable Trusts. (a) As in Collins v. Wakeman, 2 to copyliolds, Burgess v. "WTieate, 1 V. jun. 683. Eden, 177 ; Gallard v. Hawkins, 27 C. {})) See Jarman (1893), 598, 003, 608. D. 298. (c) See Jarman (1893j, 316, 321, 608, (/) See Harrison v. H., 2 H. & M. and Carter v. Haswell, 26 L. J. Ch. 576. 237. {d) The date of the passing of the {cj) Camp v. Coe (1886), 31 C. D. Intestates Estates Act, 1884. 460. (e) See as to freeholds, Taylor v. (h) Taylor o. Ilaygarth, 14 Si. 8 ; Haygarth, 14 Si. 8 ; Walker v. Denne, Be Gozman, 15 C. D. 67; Jarman 2 V. jun. 185 ; lie Van Hagan, 16 C. D. (1894), p.' 533. 18; Be Lashmar, (1891) 1 Ch. 258 : as (i) See Be Twigg, (1892) 1 Ch. 579. 390 DONATIO MORTIS CAUSA. WARD V. TURNER {a). 1752. 2 V. 431. Donatio Mortis Causa. Delivery necessary to donations mortis cansa ; but the delivery of receipts for South-Sea Annuities is not sufficient, though strong- evidence of the intent. The end of the bill was to have a transfer of GOOZ. New South- Sea Annuities made to the plaintiff, as executor of John Mosely, and to have certain specific parts of the personal estate of William Fly, dead, intestate, delivered or made over to the plaintiff. Another prayer of the bill was to have an account of what was due to Mosely for services performed to Fly, against whose estate this demand was made. The case the plaintiff made was this : he was executor of Mosely, who was related to Fly by affinity, having married his aunt ; that Fly had great obligations to Mosely, who took care of him in his infancy ; and to his house Fly used to come from school when it broke up : and afterwards, Mosely, who, in the latter part of his life, appeared to be in very mean circumstances, lived with Fly as bis servant until Fly's death, had his victuals there, performed services to him, and had now and then a shilling given him. From thence Fly made profession of a strong intent to do for him at his death, and had great kindness for him ; in pursuance of which, as Fly drew near his end, being in a very bad state of health, during that time he made Mosely several donations mortis causa, in prospect of death. Four times were fixed on by the witnesses, of which several were examined in the cause, speaking of actual gifts, and declarations («) S. C. 1 Dick. 170. DONATIO MORTIS CAUSA. 391 Ward V. Turner. supporting them. First, 18th January, 1746, which was spoken to by the porter of Furnival's Inn. The second, Cth February, 1746, which was the principal proof relied on by the plaintiff to support the gifts of these annuities, and was proved by Fly's barber, who, being sent for by Fly, found Mosely with him, and no other, and swore to the particular words used, and declarations made : that Fly said to him, viz. : " I intended to give him (speaking of Mosely) Longford estate for his life ; but I have considered of it ; and that which is worth 40L a year to another, is not worth so much to him; for if the tenants wanted an abatement for repairs, he would allow it; and, therefore, I will do better for him." That thereupon Fly went to his escritoire, and, taking three papers, said, " I give you, Mosely, these papers, which are receipts for South -Sea Annuities, and will serve you after I am dead." The third, 23rd February, which was proved by one who swore that in his presence Fly said, " Mosely, I give you all the goods and plate in this house." Fourthly, 3rd March, by the said barber, who swore that Fly declared to him, and to another person, who only were present, that he gave to Mosely all his household goods, money, arrears of rent, and everything that should be found in his house, except his sword, gun, and books, and that this, together with those three recei23ts, would make 2,000^. : that he wished a gentleman of his acquaintance had his sword and gun, but all the rest he gave to Mosely. He died in April following. Argument for the plaintiff. — These were argued to be so many declarations of bounty, supported by so many witnesses at different times. Two questions arose : first, Whether in fact these things were given ? secondly. Whether properly given in point of law ? ArguDient for the defendant. — On the part of the defendant, administrator of Fly, there was no evidence to impeach the evidence of the gift, but to invalidate it to a certain degree, principally from the behaviour of Mosely after the death of Fly, as not like one who thought he had a right to these donations from him : for it was sworn, that being at the house of Fly at his death, he continued there luitil Midsummer; he did not say these goods were his own, upon application made to buy them, but that they were Turner's, the administrator, and next of kin ; sent to Turner desiring him to 392 DONATIO MORTIS CAUSA. Ward V. Turner. take them awa}' ; and they were sent away, and Mosely assisted in packing them up, and declared he would not go into mourning, for, that Fly had given him nothing that he could help. Lord Chancellor Hardwicke. — There are two general questions. What is the weight and strength of the evidence in point of fact ? Next, the result of that evidence in point of law, or the law arising on this fact ? As to the first, and as to the conviction arising therefrom, there is, to be sure, very strong evidence on the part of the plaintiff, of Fly's general intention of bounty, which is not to be disputed ; but as to the evidence of the particular gifts, I cannot help taking notice, that the declarations relied on by the plaintiff to prove them, are all made to persons of extreme low degree, his porter, barber, &c. It is observable, also, that Fly Avas bred an attorney: had some property; some real estate ; was a man of business ; and must be presumed, from his profession and education, to know something of what the law required to make a will ; and certainly it would be more easy for him to have made a will in writing, than to have taken all these several steps, to give away these parts of his estate. It is likewise observable, that the behaviour of Mosely, and his declarations after the death of Fly, are some impeachment and weakening of the plaintiff's evidence; for it is extraordinary, that, if he thought himself entitled, he should not insist upon these goods being his own, instead of suffering them to be taken away, and assisting therein. At the same time, if I was to ground my opinion upon any objection to the evidence in point of fact, I should not determine it, but send it to be tried ; for this is as proper a case to be tried as any other. It is not insisted upon by the plaintiff as a testamentary cause ; for if he was to insist on that, it would overturn his demand, as he has no probate ; but it is insisted on as a donation inoriis causa. Trover might be brought for it ; for it would transfer the property : but though I have searched for it, I do not find a case of that kind in the books, of such an action at law : but it might be tried at law, was there a foundation for it; and if I was to ground my opinion upon the evidence in point of fact, I would direct a trial. But, according to my opinion, there is no reason to give the parties that trouble : for next, supposing the fact well proved, the considera- tion is the result in point of law. DONATIO MORTIS CAUSA. 393 Ward V. Turner. The relief sought, is founded upon these gifts being good dona- tions mortis causa. First, as to any specific parts (if they may be so called), except the annuities. They are clearly not good, (as I declared at the hearing,) there being no pretence of any delivery in any shape whatever. They are so general, as, in my opinion, if they prove anything, to prove an intent to make a nuncupative will of all his personal estate, (this is exclusive of annuities,) saying, •'' Mosely, I give you all the plate and goods in this house," or, "If I die, all are yours;" but nothing was delivered. It is said, he had possession by living in the house, and did not want delivery, but he lived as a servant, who had no possession ; so that, if a servant had them in custody, it would be a possession for his master. The other declarations are not only of the goods, but of all money and arrears of I'ent, and extend almost to everything ; consequently, there are no grounds to carry it so far ; and it is impossible to support any of these gifts in prospect of death, as I have declared already. Next, as to the gift of this annuity. If the witnesses deserve credit, it is strong evidence of a general intent of bounty ; but it rather turns against the plaintiff, for it shows a general intent to give the whole to Mosely, by making a nuncupative will or wills at different times. If that was to be admitted to support these several gifts as so many donations mortis causa, it would overturn not only the letter but the whole spirit and intent of the Statute of Frauds. But, notwith- standing, suppose this gift of the annuities was just, as if it was a distinct and independent donation from the other matters insisted on as gifts, the question is, whether it is such a gift as the law of England allows, as a donation mortis causa'? First, the fact of the gift is proved only by one witness : whereas the civil law, from which this doctrine is taken, requires five witnesses thereto ; for Justinian when he allowed these gifts, was apprehensive of fraud arising from them, and takes notice in that very chapter relied on for the plaintiff that he had made a constitution to regulate it, that it should be in the presence of five, limited in point of value, &c., which shows how jealous he was of it. Besides, the witness swears to this in very formal words; and, though it is pretty hard to object to a witness as loose and uncertain on one hand, and the contrary on the other, yet 394 DONATIO MORTIS CAUSA. Ward V. Turner. this argues either a very strong memory or a pretty strong assurance in swearing. But the express gift, as he swears, is only of the three receipts. That is the form of the gift. Taking it therefore according to the substance of the gift, that this amounted to a declaration that Fly, by giving these receipts, intended to give the annuities, upon this the principal point arises, whether delivery of the thing given by way of donation 'mortis causa is necessary ; and, if necessary, whether this delivery of the receipts is sufficient delivery of the thing given by way of donation onoi'tis causcl ? I am of opinion, that delivery is necessary to make good such a gift, and that the delivery of these receipts for the consideration-money of the purchase of them was no sufficient delivery to validate this act. To clear this, it is proper to consider the notion of a donation inortis causa, according to the civil and Roman law, and the law of England. According to the civil and Roman law there is a great variety, and several passages therein are pretty difficult to reconcile {a). Digest, lib. 39, tit. 6, Law 38, requires, that both donor and donee should be present at the time of the gift, " quo pro'sens prcesenti dat ; " which looks as if delivery w^as intended at the time. It is " quo " there, and in several editions : but in the Lyons edition of Gothofredus' Corpus, it is "quod;" which makes it sense. Next, in Digest, same tit., parag. 1, it speaks of it throughout as a restoring of the same thing, if the donor should recover : as if a restitution was to be. It is proper to take notice, that in the Roman law there were three kinds of donations mortis causa. And in Voet on the Pandect, lib. 39, tit. 6, parag. 3, in his 2nd vol., p. 710, the division is agreeable to that made of these donations by Swinburne. The first is a donation by one in no present danger, but in considera- tion of mortality if he died ; and this is strictly compared to a legacy ; for the property was to pass at the death, not at the time. The second kind is, where the property passed at the time, defeasible in case of an escape from that danger in view, or of recovery from that illness. The third was, where, though he was moved with the danger, yet not thinking it so immediate as to vest the prof)erty immediately in the person, but put in possession of the person as an inchoate gift, to take effect in case he should die. Vinius's (a) See Tate v. Hilbert, 2 V. jun. Ill, 2 E. E. 175 ; and Agnew v. Belfast, &c. Co., (1896) 2 Ir. E. p. 209. DONATIO MORTIS CAUSA. 395 Ward V. Turner. Comment, on this place of Justinian is more particular — puts the remedy by action the donor might have, in case he repented or revoked. That is, on the last kind of donation 'mortis causa, where he did not part with the property immediately, he should have a real action ; but where he actually parted with the property, but the gift was to be defeated by his revocation or recovery, or escape from that danger he was in, conditionem habeat (which is a personal action) to make the irritancy, or to recover damages for the thing : so that it differed not but in the nature of the action. And in Calvin's Lexicon, &c., that is the distinction. Swinburne, on the text I have quoted, implies there should be a delivery ; saying, that legacies differ from such donations, for that legacies are not delivered by the testator, but to be paid or delivered by the administrator ; putting the distinction upon the one being delivered in life, the other after death. But, notwithstanding this, several books in the civil law import the contrary ; particularly Vinius, in his Comment., lib. 2, tit. 7, sec. 1, numero 2 ; Covarruvias, vol. 1, rub. 3, and Voet on the Pandect, same chapter, num. 3 and num. 6, which passages show the different expression and opinions, some importing a delivery, others not. I have mentioned them to come at that which seems the distinction, reconciling them all, according to what is laid down by Voet, num. 6, that they did not require an absolute delivery of possession to the first or third kind of gift I have mentioned ; but, in the other case, where the property was to pass immediately, it was required ; which is the meaning of the expression in Voet, " in mortis causa donatione dominium non transit sine traditione " and of that other expression in Voet. With this distinction, those passages in the civil law are properly reconciled. Though I know these donations mortis causa could never come directly in question in the Ecclesiastical Court, they might col- laterally; and on these two heads I enquired whether there have been any cases there upon this, viz., in suits against an administrator on account of assets by the next of kin, where the administrator had insisted he could not administer such a part, because it was given tnortis causa; or, if there is a will, in which there are specific legacies, and one of those legacies he had given in his life by way of donation mortis causa, there it might come in question in the Ecclesiastical Court ; but I cannot find it has. The nearest case to 396 DONATIO MORTIS CAUSA. Ward V. Turner, it is Ousley v. Carrol (a), June, 1722, in the Prerogative Court, before Dr. Bettesworth. There wap left a writing in the presence of three witnesses, not in the form of a will but a deed, viz. : " I have given and granted, and give and grant, to my five sisters, and children of the sixth, their heirs, executors, and administrators, in case they survive me, all my goods and chattels, and real and personal estate, and all which I may claim in right of my own, whether alive or dead." The dispute was by a person claiming as his wife, and who had been so, but divorced, who insisted this was no will, but a deed of gift mortis causa (and a gift mortis causa may be made in writing as well as otherwise, and so it might by the Koman and civil law) ; but the Ecclesiastical Judge was of an opinion this was testamentary, proved it as such, as a testamentary act, and probate was granted, from which there was no appeal ; but a case was there cited of Shargold v. Shargold, upon a deed of gift by Dr. Pope, not to take place until his death, and sixpence delivered by way of symbol, to put the grantee in possession ; that was pronounced for as a will, not as a donation mortis causa ; which I mention to show how far the Ecclesiastical Court has considered these things as testamentary. Having considered these donations, the different species, and how far delivery is necessary by the Roman and civil law, I will consider it according to the law of England. They are undoubtedly taken from the civil law ; but not to be allowed of here farther than the civil law on that head has been received and allowed. Taking the law of England to consist (as Hob. says) of rules of law and equity, it might have come in question in cases of action of trover and detinue; but I have never found any action on that head. Consider it, therefore, as in this Court, the civil law not binding here, but as far as received and allowed ; which must be from adjudged cases and authorities, proving that the civil law has been received in England, in respect of such donations, only so far as attended v/ith delivery, or what the civil law calls tradition, for which see Swinburne (who, being an English writer on the civil law, what he lays down is some evidence of what has been received here). Part 1, sec. 7 ; but, in other places, sec. 6, in tit. Definition of Legac}^, he is still more express. In both places, in one directly, in the other collaterally, he lays down that delivery is necessary. (a) See Thoroldz'. T., 1 PhiUim. 1 ; A.-G. v. Jones, 3 Price, 368. DONATIO .MORTIS CAUSA. 397 Ward V. Turner. Next, consider it on the resolutions of this Court ; the same thing results from them. There are not many cases ou this head, and they are somewhat loose. The first is DviLry v. Sniitft (a), where Lord Coivper founded himself on this, and the possession transmitted and changed : next Laivson v. L. (h). All that I can recollect from thence is, that the [gift of the] purse was held good, because delivered to the wife herself. As to the other legacy of 100?. bill, I cannot say on what it depended. It is a kind of compound gift ; so many collateral circumstances are taken into it, that nothing can be inferred from it ; but, being a draught on his goldsmith, that draught was delivered ; so that it does not contradict what I lay down ; and there was delivery, so far as it was capable. In Jones v. Selby (c), the result is, that the opinion of the Master of the Rolls was founded plainly on this, of the delivery of possession, holding, that the gift of the tally, as contained in the hair trunk, was a good donation mortis causa ; and that Lord Coivper avoided determining that, on the foundation of the subsequent point of a satisfaction or ademption, on which he grounded his determination. In all the instances, it is absolutely necessary to be the person's after the party's death ; though, in some cases, it vest the property, in others not. But, to explain more fully Lord Coiupers opinion there, I will refer you back to Drury v. Smith, and to Hedges v. H. (d), which turned on another point ; but there Lord Coivper laid down a necessity of delivery very strongly ; where he says, testator " gives with his own hands." Snellgrove v, Baily (e), determined by me, 11th March, 1744, was urged, where a bond was given in prospect of death ; the manner of gift was admitted ; the bond was delivered ; and I held it a good donation mortis causa. It was argued, that there was no want of actual delivery there, or possession, the bond being but a chose in action ; and, therefore, there was no delivery but of the paper. If I went too far in that case, it is not a reason I should go further, and I choose to stop there. But I am of opinion that decree was right, and differs from this case ; for, though it is true that a bond, which is specialty, is a chose in action, and its principal value consists in the thing in action, yet some property is conveyed by the delivery ; for {) These sections are rejiealed by marines, and marines, so far as relates 1 A''ict. c. 26, s. 2 ; but as to the wills to money arising from service, see ss. of soldiers on service, or mariners, and 11 & 12, and 11 Geo. 4 & 1 Will. 4, c. as to the wills of petty officers, sea- 20. DONATIO MORTIS CAUSA. 401 Ward V. Turner. transfer, or something amounting to that : and there is no harm in it, considering how much of the personal estate of this kingdom, vastly the greatest proportion of it, subsists now in stock and funds ; and all the anxious provisions of the Statute of Frauds will signify nothing, if a donation of stock, attended only by delivery of the paper, is allowed. It might be supported to the extent of any given value, and would leave these things under the greatest degree of uncertainty, and amount to a repeal of that useful law as to all this part of the property of the subjects of this kingdom. Therefore, notwithstanding the strong evidence of the intent, this gift of annuities is not sufficiently made within the rules of the authorities ; and I am of opinion not to carry it further. If any doubt remains in any one's mind, I will add (what I very seldom do, though it has been done by my predecessors), that I should be very glad to have this point settled by the supreme authority ; for it highly ought to be settled, if there is a doubt, considering so large a property of this kind. The bill ought to be dismissed therefore, without costs, as to the demand of these annuities, or any other part of the intestate's estate by way of donation inoy^tis causa. But as there was a plain intent of bounty and kindness to this old man, who lived with him as a servant, and it seems, in expectation of what should be given at his death, therefore, on the other part of the bill an enquiry should be, what Mosely deserved over and above his maintenance, for services performed duiing the life of Fly. The account should betaken from a reasonable time, if the plaintiff thinks fit to pay it. NOTES. 1 . Generally. 2. Eequisites to a donatio mortis causa, p. -lO-l. 3. What may be the subject of a donatio mortis causa, p. 410. 4. Evidence, p. 413. 1. Generally, In Ward v. Tamer, which is a leading case on the doctrine of donations mortis causa, Lord Hardioicke, with great learning, discusses the authorities upon the civil law, from which it has bec-u W. & T. — VOL. I. 26 402 DONATIO MORTIS CAUSA. Ward V. Turner. imported irito the law of England {a). In the subsequent case of Tate V. Hubert (h), Ward v. Turner was commented on, and the civil law more fully explained, by Lord Rosslyn, in his very able judgment. A donatio 'mortis ca.usd is a sort of amphibious gift, between a gift inter vivos, and a legacy. It was not cognizable by the Ecclesiastical Courts because the title is derived from the donor in his lifetime, not from his will. It is properly a gift of property by a party who is in peril of death, upon condition that it shall presently belong to the donee in case the donor die, but not otherwise (■. Willott, 3 Mac. &G. and see liibby v. Coulter, Eidg. ("as. t. «'J-4. H. 206, n. ; bunue r. lioyd, 8 Ir. R. {(J) lb. 081. Eq. 60'J. {>-) 44 C. D. 76, 82, 8;}. (/,•) 4 Uro. Ch. 71. (/) P. 410. (/) EarqiUiarsou v. Cave, 2 Coll. {<;) See note "Dominion" (Src, p. 407. Ch. R. ojO, 1567 ; of. Moore v. Dartoi', (/i) Tate V. Ililbert, 2 V. jun. 120, 4 De G. & Sm. oil. 406 DONATIO MORTIS CAUSA. Ward V. Turner. delivery also, when there are any declarations made by the donor relative to the subject-matter of the gift, should be contemporaneous with them (a). It is said that a donatio mortis causa cannot be made merely by parol, without delivery, as in the case of the alleged gift of the house- hold goods and plate in the principal case yh). And in Spratley v. Wilson (c), Gibhs, C.J., held, but subsequently altered his opinion (cZ), that it was a sufficient delivery where a person in extremis said, " I have left my watch at Mr. R.'s at Charing Cross : fetch it away, and I will make you a present of it ; " but if the donor has done all in his power to make the gift complete, then, possibly (e), his legal personal representatives would be compelled to perfect it. In Biinn v. Markham (/) a person supposing himself in extremis, caused India bonds, bank notes, and guineas, to be brought out of his iron chest, and laid on his bed ; he then caused them to be sealed up in three parcels, and the amount of the contents to be written on them, with the words, " For Mrs. and Miss C," the plaintiffs ; he then directed the brother to replace them in the iron chest, to be locked up, the keys to be sealed up, and directed " to be delivered to J." (his solicitor), and one of his executors, after his decease, and re- placed in his own custody near his bed ; and afterwards spoke of this property as given to the plaintiffs. It was held not to be a donatio m^ortis causa, for want of a sufficient delivery, and on account of the donor continuing in possession (g). Trust or Condition. — It was, indeed, argued in Hambrooke v. Simmons (h) that a donatio mortis causa could not be coupled with a condition, or made subject to a trust ; but as an issue was directed, which left the question of law, as well as of fact, to the con- sideration of a court of law, the point was not decided. However, in the subsequent case of Hills v. H. (i), where a person on her death-bed gave a pocket-book, containing 80^. in cash and notes, to (a) Thompson v. Heffernan, 4 Dr. & in Jte Dillon, suin-a. War. 285; Hawkins v. Blewitt, 2 Esp. (/) 7 Taunt. 224. 664 ; Dunne v. Boyd, 8 Ir. E. Eq. ((/) See also Farquharson v. Cave, 609. 2 Coll. Ch. E. 356; Walsh r. Studdart, (6) See Tate v. Hilbert, 2 V. jun. 4 D. & W. 159 ; Thompson f. Heffer- 120; Smith v. S., 2 Stra. 955; War- nan, 4 D. & W. 285; Powell w. Helli- riner v. Eogers. 16 L. E. Eq. 340. car, 27 B. 261 ; Maguire v. Dodd, 9 (c) 1 Holt, 10. Ir. Ch. Eep. 452 ; but consider Be (rf) See Bunn r. Markham, 7 Taunt. Dillon, supra. 227, supra. (A) 4 Euss. 25. (e) Seethe judgmentof Cotton, L.J., (i) 8 M. & W. 401. I i DONATIO MORTIS CAUSA. 407 Ward V. Turner. her brother, wishing that he should bury her, and that he should have all she had, it was held, in the Exchequer, by Ahinger, C.B., Parke, B., Alderson, B., and Rolfe, B., that it was a good donatio mortia at asa, although coupled with a trust. " I cannot see," said Mr. Baron Eolfe, " how the annexation of a trust to the gift can make any difference. If it be lawful so to give the property out and out to the party for his own use, I cannot see that it makes any difference, that with it he is to pay for a particular tiling. If a man on his death-bed gives another 1,000/., is it any addition to the evils attend- ing this mode of bestowing property, that he attaches a condition to it ; as, for instance, that he stipulates, that his brother shall receive an outfit to India ? The case of Blount v. Burrow is expressly in point, and disposes of the question ; and I have no doubt that other cases might be found." These decisions rightly follow the civil law, according to which it is clear, that a donatio mortis causa might be made the subject of a trust or condition (a). Dominion must he 'parted with. — Even if there be a delivery to the donee or to some one for him, it will not be good, unless the donor (subject of course to the ordinary condition making void the gift, which is always either expressed or implied in case of his recovery) parts with the dominion over the thing given. Thus, in Hawkins v. Blewitt (6), in an action of trover fur a box containing money and wearing apparel, by an administrator, the case on tlie part of the plaintiff was, that the intestate in his last illness ordered the box to be carried to the house of the defendsunt, who was his aunt, and to be delivered to her ; but he gave no other directions respecting it, nor said anything about giving it to her. It was, however, further given in evidence, that on the next day, the key was brought to the intestate, who desired it to be taken back, saying that he should want some articles of clothing out of it. The plaintiff had a verdict. Lord Kenyon, C.J., said, " In the case of a donatio tnortis causa, possession must be immediately given ; that has been done here : a deliveiy has taken place, but it is also necessary that by jjarting with the possession, the deceased should also part tvith the dominion over it. That has not been done here. The bringing back the key by her the next morning to the intestate, and his declaration that he should want one of the articles of his apparel contained in it, are sufficient to show that he had no intention of making any gift or (a) Dig. lib. lil, tit. 1, I. 77, s. 1, 27, but see liibby v. Couher, Ridg. cited 4 Russ. 27, 2 Coll. Ch. R. 356; Cas. t. H. 206 n. Cod. lib. 6, tit. 42, 1. 9, cited 4 Russ. {b) 2 Esp. 663. 408 DONATIO MORTIS CAUSA. Ward V. Turner. disposition of the box. It seems rather to have been left in the defendant's care for safe custody, and was so considered by herself" (a). In Taylor v. T. (6), T. in his last illness showed a deposit note to his daughter, the plaintiff, and told her in effect it was to belong to her in the event of his death. The plaintiff took the note, and by her father's directions put it in a cash-box for safe custody. The cash-box was kept in the father's bedroom, but she had the key. Held, a good donatio mortis causa (c). Where the legal title does not 'pass by delivery. — A delivery of a thing by way of symbol, according to the opinion of Lord Hardwicke in the principal case, is not a sufficient delivery. Thus, he held that the delivery of the receipts for South Sea Stock was not a sufficient delivery to constitute a donatio mortis causa, but he said that an actual transfer, or something amounting to that, would have been necessary {d). The same conclusion has been arrived at with regard to scrip certificates of railway stock {e). And it has been held that the delivery of the book of a depositor in a savings-bank, is not a sufficient delivery to constitute a donation of the money deposited (/). Nor will tlie delivery of a note not payable to the bearer {g) ; nor in general ot a cheque (A) upon a banker (i). But in the recent case of Re Dillon (k) in the Court of Appeal, the Lords Justices Cotton and Lindley pointed out that there may be a good donatio mortis causa where the instrument does not pass the legal property by delivery, for an equitable right is thereby created and the executors or administrators will be held trustees for the donee for the purpose of giving effect to the gift (/). That in the case of a donatio mortis causa the Court wdl interfere to make the gift complete, although it would not do so in the case of a donatio inter vivos (m). («) See also Eeddel v. Dobree, 10 Si. (e G. ct Sm. 517. {/) And cf. Duffield v. Elwes, infra, (e) Moore v. M., 18 Eq. 474. p. 412. (/) M'Gonnell r. Muiiuy, 3 Ir. E. {m) See EUissou f. E., post. Eq. 460. DONATIO MORTIS CAUSA. 409 Ward V. Turner. In Re Mead (a) a testator who held a banker's deposit note for 3,700L, in his last illness, two days before his death, expressed a wish to give 500^., part of the amount, to his wife. At his request a friend filled up a seven days' notice to the bank to withdraw the deposit, and the testator signed it ; the friend then took the notice to the bank. The testator afterwards signed a form of cheque, which was on the back of the note, " Pay self or bearer 5001. ; " the note was then handed to the wife. The testator died before the expiration of the seven days' notice. The practice of the bank was, when a customer withdrew part of a sum, which he had placed on deposit, to give him a fresh note for the balance. It was held that there had not been a valid donatio riiortii^ caum of the 500/., inasmuch as the donor did not intend to give the deposit note but only to give by means of a cheque part of the money deposited (/>). In Re Dillon (c) a testator Avho hehl a banker's deposit note, not transferable, for 580/. in his last illness shortly before his death took out the note and filled in and signed upon a stamp a form of cheque indorsed on the note, "Pay self or bearer 580/. and interest." He then handed the paper to E. D., who was a relation attending him, saying, " Now you understand if I get well you'll give it me back ; and if not it will be all right." Held by C.A. that the gift was valid, for assuming the gift of the cheque to be invalid, yet the intention was to give the deposit note as well as the cheque. In Laivson v. L. (d) A., during his last illness, drew a bill upon a goldsmith for the payment of 100/. to liis wife, with a written indorsement that the money was " to buy her mourning," and A. delivered the note to his wife, it was held that slie was entitled to the money. And Lord Russlyu, in Tate v. Hllbert (e), considered the case perfectly well decided, "For," he observed, "taking the whole bill together, it is an appointment of the money in the banker's hands to the extent of 100/., for the particular purpose expressed in a written appointment ; which is a purpose that necessaril}' supposes his death." In Jonea \.Selhij (/) it was held by Trevor, M.R., that the delivery of the key of a trunk, with words of gift of the trunk and its contents, was a good delivery of a tally upon Government for 500/. contained in the trunk. Lord Hardivicke observes, that the transaction (-0 1-' 0. L). (551. (c) 44 0. D., p. 70. {h) Per (JottoH, L.J., /Zfi Dillon, Duf- {d) 1 P. W. 41. fin r. I)., 44 C. D., p. 82 ; Cain /•. Moon, {>■) 2 V. jun. 1 1 1, 2 E. 11., p. 183. 40 Sol. Jo. 500. (/) Pr. Ch. 300. 410 DONATIO MORTIS UAUSA. Ward V. Turner. " amounted to the same thing as a delivery of possession of the tally, provided it was in the trunk at the time." In Boutts V. Ellis (a), a person four days before his death said to his wife : " I am a dying man, you will want money before my affairs are wound up." On the following day he signed and delivered to her a crossed cheque upon his bankers for 1000^., and on the next day but one, remembering that the cheque was crossed, he asked a friend who visited him to take it and give the wife another for it ; which the friend did, but his cheque was post-dated. The donor's cheque ■was paid before his death to his friend, who, after that event, gave to the widow a cheque not post-dated for the other. It was held by the Lords Justices, affirming the decision of Sir J. Ilomilly, M.R. {h), that the transaction constituted a good donatio mortis causa. 3. What may be the Subject of a Donatio mortis causa. The following note must be read subject to the expressions of opinion made by the Lords Justices Cotton and Lindley, in their judgments in Re Dillon (c). Cotton,lj.^., there stated that Duffield v. Ehves id), shews that there may be a good donatio mortis causa of an instrument which does not pass by delivery, and that the Court will aid the equitable title by making the executors or administrators of the deceased do everything necessary to complete the gift to the donee, and Lindley, L.J., said that the statement of the existing law that a man could not make a donatio mortis causa of his own cheque might some day require considei'ation. Negotiable instruments which are commonly treated as money for other purposes pass as donations (e). There may be a donatio mortis causa of a bond (/), though not of a mere simple contract debt, nor by tlie delivery of a mere symbol (g), but qucsre, whether having regard to Moore v. Barton (li), and to Re Dillon, supra, the delivery of any documents which are essential to the proof of the loan or debt would not be a sufficient delivery (i). So, («) 4 I)e G. M. & G. 249. {/) Snellgrove v. Baily, 3 Atk. 214 ; [h) Reported 17 B. 121. Ridg. Cas. t. H. 202. (r) 44 C. D. 76, and supra, p. 408 ; {y) Per Leach, V.-C, in Gardner v. and see Porter v. Walsh, (1895) Ir. R., Parker, 3 Madd. 185 ; Blount v. Bur- p. 287. row, 4 Bro. Gh. 71 ; Hirst v. Beach, 4 [d) 1 Bli. (N. S.) 497, infra, p. 412. Madd. 351. 356 ; Clavering v. Yorke, {(') Ranklin v. Weguelin, 27 B. 2 Coll. Ch. R. 363, n. 309 ; Veal v. V., ib. 303 ; Byles, (1891) {h) 4 De G. & Sm. 517. p. 201. (0 See Duffield v. Elwes, p. 412 infra. DONATIO MORTIS CAUSA. Ward V. Turner. 411 likewise, of bank notes (a) ; of a deposit-note given by a bank to the donor (b), and although the receipt is expressed to be not transferable (c), or although the depositor is required by the bank to sign a cheque indorsed on the note (d), and whether it be endorsed or not (e) ; and it seems, also, of all other notes, or bills payable to the bearer (/), or to order, though not endorsed by the donor {g). A cheque {h) payable to the donor or order, and given by bim during his last illness to the donee, is on the same footing as a bill of exchange or promissory note payable to the donor or order, and will pass to the donee as a donatio mortis causa, though unendorsed by the donor (i). " In Byles on Bills (k) it is stated that a cheque drawn by the donor upon his own banker, cannot be the subject of a donatio mortis causa because the death of the drawer is a revoca- tion of the banker's authority to pay." But when the owner is dealing with the cheque of another man it stands on entirely the same footing as a bill of exchange or promissory note, which according to Veal V. V, (I), may w^ell be the subject of a donatio mortis causa. Semble, that since the case of Re Dillon above referred to, it may be held that although the banker's authority to pay is revoked by the death of the donor, yet if the donation be established, the legal personal representative of the donee would be required to give etiect to the equitable title in the donee. The delivery of a bond is still sufficient as a donatio mortis causa of the debt for which it is a security, although an action may, in certain cases, be maintained at law without profert of the bond(jJi). So likewise a policy of insurance on the life of the donor will pass by delivery as a donatio mortis causa {n). (a) Miller t;. M., 3 P. W. 356 ; Shan- Jones v. Selby, l*r. (_'h. 300 ; Bibby v. ley V. Harvey, 2 Ed. Eep. 125 ; Ashton Coulter, Ridg. Cas. t. H. 206, n. v. Dawson, Sel. Ca. 14. (g) Eanklin v. Weguelin, 27 B. 309 ; (b) Witt V. Amis, 1 B. & S. 109; Veal v. V., ib. 303; Porter v. Walsh, Moore v. M., 18 Eq. 474; Dunne v. infra. Boyd, 8 Ir. II. Eq. (509 ; Taylor v. '£., (A) See the remarks of Lindlci/. L.J., 56 L. J. Ch. 597 ; Ee Earman, 58 L. T. in lie Dillon, supra, p. 410. 12 ; Cain v. Moon, 40 Sol. Jo. oOO. (?) Be Mead, 15 C. D. 651 ; Clement {c.) Cassidy v. Belfast B, Co., 22 v. Cheesman, 27 C. D, 631 ; lollowing L. K. Ir. 68 ; Duffin v. D., 62 L. T. E. Veal v. V., 27 B. 303 ; Porter r. Walsh, 615; Re Dillon, infra. (1895) 1 I. P. 284. atlir. (1896) 1 I. K. ((/) Me Dillon, 44 C. D. 76 ; /le 148. Mead, 15 C. D. 651. (A-) (1891) p. 200. (e) Porter v. Walsh, (1895) 1 Ir. E. (/) 27 B. 303. 286. (»)) Duffield v. Elwes, infra. (/) Miller v. M., 3 P. W. 356; Hill («) Witt v. Amis, 1 B. & S. 109; 0. Chapman, 2 Bro. Ch. 612 ; and see Amis v. Witt, 33 B. 619. 412 DONATIO MORTIS CAUSA. Ward V. Turner. A delivery of the mortgage deeds of real estate will constitute a valid donatio mortis caasd. In Duffield v. Elwes (a), a man, in con- templation of speedily approaching death, wishing to make a larger provision for his daughter than he had done by will, delivered, or caused to be delivered to her, certain deeds, which consisted of, (1.) A conveyance in fee of lands to secure 2,927^., with the usual covenant for payment of the money lent, and a bond, by way of collateral security. (2.) An assignment of a mortgage debt of 30,000?., and of a judgment for that sum recovered on a bond, with the conveyance of the land, and the usual covenant for the payment of the money. It was held by the House of Lords, reversing the decision oi Leach, V.-C. (6), that there was a good donatio mortis causa, and that the daughter was entitled to the benefit of the securities. " If," said Lord Eldon, " the delivery of a bond would, as it is admitted— (notwitiistanding any change in the doctrine about profert) — if the delivery of a bond would give the debt in that bond, so as to secure to the donee of that bond the debt so given by the delivery of the bond, the question is, whether, the person having got, by the delivery of that bond, a right to call upon the executor to make his title by suing or giving him authorit}^ to sue upon the bond, what are we to do with the other securities if they are not given up? But there is another question, to which an answer is to be given : What are we to do with respect to the other securities, if they are delivered ? In the one case, the bond and mortgage are delivered ; in the other the judgment, which is to be considered on the same ground as a specialty, is deUvered ; with that, f/ie evidences of the debts are all delivered. The instrument contain- ing the covenant to pay is delivered. They are all delivered in such a way that the donor could never liave got the deeds back again. Then the question is, whether regard being had to what is the nature of a mortgage, contradistinguishing it from an estate in land, those circumstances do not as effectually give the property in the debt as it tlie debt was secured by a bond only ? * * The opinion which 1 have formed is, that this is a good donatio mortis caum, raising by operation of law a trust ; a trust which, being raised by operation of law, is not within the Statute of Frauds, but a trust which a court of e(paity will execute (c)." The delivery by a creditor to the debtor or his agent of that which (f/) I Bli. (X. S.) 497; Porter r. {<■) See also Meredith v. Watson, 17 AValsh, (1895) 1 I. E. 284; (189G) 1 Jiu-. 1063; lie Tatterson, 12 W. 11. 1. E. 148 (C. A.). 941 ; Re Dillon, supra, p. 409. {h) 1 S. & S. 239. DONATIO MORTIS CAUSA. 413 Ward V. Turner. IS essential to the recovery of the debt is, it seems, sufficient. Thus, in Moore v. Darton (a), where, upon a loan, the borrower had ^iven the lender a receipt in the following- form: "Received of Miss Darton 500^., to bear interest at 4) ; there being a tcLcit condition annexed to cdl devises of this nature, that the devisee do not disturb the disposition which the devisor Jtath made. So are the several cases that have been decreed upon the custom of London. The only difficulty in the present case is, that what is given to the plaintiff is precarious, nothing being given to him if he dies l^efore twenty-one, and, if after, then but an estate for life ; and that he appears before the Court in a favourable light of being heir-at-law ; but this will not alter the case. The estates which the testator has given him were undoubtedly in his power; he hath given them to ((0 Cio. Car. 292. {h) 2 Ycm. 581. '27 2 420 ELECTION. Streatfield v. Streatfield. trustees until his grandson attain twenty-one, and has disposed of them in such a manner as that there can never be any undisposed residue to go to the plaintiff as heir-at-law ; and surely it is as much in the power of the Court to make this bequest, thus limited to be a satisfaction, if the party will stand to the will, as in the other cases. Indeed, if he takes by the will, there is nothing to make satisfaction to his sisters for their general chance under the articles ; but that is because nothing is left them by the will ; and they cannot be said to be quite destitute of provision, since it is just and reasonable that they should be maintained by their mother, who is entitled to a large and ample provision by her marriage settlement : nor can what is devised to the plaintiff be looked upon as intended by the testator to go towards the maintenance of younger children ; for, if the plain- tift" dies before twenty-one, then all the profits already received are to go to his aunts ; and so by that construction I must take the maintenance out of their estate, and oblige them to contribute to the maintenance of distant relations, viz., nieces, at the same time that the mother (who hath an ample provision) would be left at large, and under no tie of maintaining her own children. And so decreed («) the plaintiff to have six months after becomes of age, to make his election, whether he will stand to the will or the articles. And if he makes his election to stand to the latter, then so much of the other lands devised to him as will amount to the value of the lands comprised in the articles, and which were devised to Margaret and Martha, to be conveyed to them in fee. NOTES. 1. Election generally. 2. Election in cases of deeds, p. 431. 3. Election in cases of mils, &c., p. 433. 4. Election in appointments under powers, p. 436. 5. Compulsory election, p. 439. 6. Voluntary election, p. 440. 7. Election by parties under disabilities, p. 442, 8. Death of person to elect without electing, p. 445. 1. Election generally. Election is the obligation imposed upon a party by courts of equity (a) See the decree, 1 Swans. 447; Eeg. Lib. B. 1735, fol. 205. ELECTION. 421 Streatfield v. Streatfield. to choose between two iuconsistent or alternative rights or claims in cases where there is clear intention of the person from whom he derives one that he should not enjoy both. Every case of election, therefore, presupposes a plurality of gifts or rights, with an intention, express or implied, of the party who has a right to control one or both that one should be a substitute for the other. The party who is to take has a choice, but he caunot enjoy the benefit of both (a). The principle is stated thus in Jarman on Wills (6) : " That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument " (c). The principle of the doctrine of election is now well settled. It is founded on the presumption of a general intention in the authors of an instrument that effect shall be given to every part of it (d), but this presumption may be rebutted (e). It is applicable to every species of instrument, whether deed or will (/), and it applies to every kind of property — immediate, remote, con- tingent, real or personal ((/) ; also to the interest of next of kin in the unascertained residue of an intestate's personal estate (h). To illustrate the doctrine of election, suppose A., by will or deed, gives to B. property belonging to C, and by the same instrument gives other property belonging to himself to C, a court of equity will hold C. to be entitled to the gift made to him by A. only, upon the implied condition of his conforming with all the provisions of the instrument, by renouncing the right to his own property in favour of B. ; he must, consequently, make his choice, or, as it is technically termed, he is put to his election, to take either under or against the instrument ; if C. elects to take under, and consequently to conform with all the provisions of, the instrument, no difficulty arises, as B. will take C.'s property, and C. will take the property given to him by {a) Story (1892), 732; Dillon v. 584,585. Parker, 1 Swans. 394, note (5) ; Thel- {d) Ilamnton v. 11., (1892) 1 Cli. lusson V. Woodford, 13 V. 220, 9 E. E. p. 399. 175. (e) Be Vardon's Trusts, 31 C. D., p. {h) (1893), p. 415. 279; Re WeUs, 42 C. D., p. 658; ('•) See Walpole v. Conway, Barn. Hamilton v. H. , supra. C. 159; Kirkhamv. Smith, 1 V. 258; (/) Jjord Eedesdah, in Birmingham Macnamara v. Jones, 1 Bro. Ch. 411 ; v. Kirwan, 2 Sch. & L. 444, 450. Prank u. StancHsh, 1 Bro. Ch. 588, n.; {y) Wilson v. Townshend, 2 V. jun. Blake V. Bunbury, 4 Bro. Ch. 21; G93, 3 E. E. 31 ; Webb i-. Shaftesbury, Swan V. Holmes, 19 B. 471 ; Wintour 7 V. 480, 6 E. E. 154 ; Morgan r-. M.. V. Clifton, 21 B. 447, 8 De G. 4 Ir. Ch. E. 606; Sadlier r. Butler, 1 M. & G. 641 ; Cosby v. Ashtown, 10 Ir. E. Eq. 415. Ir. Ch. E. 219 ; Heazler. Fitzmaurice, (A) Cooper r. C, 7 H. L. 53 ; Ben- 13 Ir. Ch. E. 481 ; Schroder v. S., Kay, nett v. Houldsworth, 6 C. U. 671. 422 ELECTION'. Streatfield v, Streatfield. A. ; but if C. elects to take against the instrument, that is to say, retains his own property and at the same time sets up a claim to the property given to him by A., an important question formerly arose whether he thereupon incurs a forfeiture of the whole of the benefit conferred upon him by the instrument, or is merely bound to make compensation out of it to the person who is disappointed by his election. Compensation. — The principal case of Streatfield v. >S^. is a distinct authority for thedoctrine oi compensation, v^h.\c]\ may now be considered as fully established («), and it may now be laid down in accordance with Mr. Swanston's learned note to Gretton v. Hatvard (b), " 1st. That, in the event of election to take against the instrument, Courts of equity assume jurisdiction to sequester the benefit intended for the refractory donee, in order to secure compensation to those whom his election disappoints. 2nd. That the surplus after compensation does not devolve as undisposed of, but is restored to the donee, the purpose being satisfied for which alone the Court controlled his legal right " (c). The compensation is a charge upon the benefits received under the instrument (d). If the election is not against but under the will the doctrine of compensation does not apply (e). And after the death of a person who has elected to take against an instrument, compensation will be directed to be made out of his estate to the party who has sustained a loss thereby, so far as such loss does not exceed the benefit taken under the instrument by the person making such election (/), and such party may now commence an action for damages or compensation (g). (a) "Webster v. MiKord, 2 Eq. Ca. 12 B. 403 ; Howells v. Jenkins, 1 De Abr, 363, marg. ; Bor v. B., 3 Bro. P. G. J. & S. 617 ; Grissell v. Swinhoe, C, Toml. edit. 167; Ardesoifev. Ben- 7 Eq. 291 ; Pickersgill v. Eodger, 5 net, 2 Dick. 465; Lewis v. King, 2 C. D. 163; Schroder v. S., Kay, 578; Bro. Cb. 600 ; Freke v. Barrington, 3 Howells v. Jenkins, 1 De G. J. & S. Bro. Ch. 284 ; Whistler v. Webster, 2 617 ; Cooper v. C, 7 L. E., H. L. 53. V. jim. 372, 2 E. E. ^60; Ward r. {d) Picker.sgill v. Eodger, 5 C. D. Baugh, 4 V. 627, 4 E. E. 307 ; Cavan 163. V. Pulteney, 2 V. jun. 560, 3 E. E. 8 ; (e) Be Chesham, 31 C. D. 466. See Blake v.Bunbury, IV. jun. 523, 1 E.E. Forms, Judgments, Seton (1893), p. Ill ; Welby t;. W., 2 V. &B. 190, 191 ; 1339. Dashwood v. Peyton, 18 Y. 49, 11 (/) Eogers v. Jones, 3 C. D. 688, E. E. 145; Tibbitts v. T., Jac. 316; 690; Fytche v. F., 19 L. T. (N. S.) Eancliffer. Parkyns, 6 Dow, 179. 343; Pickersgill v. Eodger, 5 C. D. {h) 1 Swans. 433, approved in Ker v. 163 ; 2 Seton (1893), p. 1341. Wauchope, 1 Bli. 25. (g) Eogers v. Jones, 7 C. D. (c) See also Padbury v. Clark, 2 345. Mac. & G. 298 ; Greenwood v. Penny, ELECTION. 423 Streatfield v. Streatfield. Moreover, where a person who elects to take a fund against an instrument has been previously receiving money under it, he mast on making his election repay such money, and the persons intei'ested under the trusts of the instrument have a lien for the repayment thereof on the fund which he elects to take (a). As the doctrine of election depends upon compensation, it follows that it will not be applicable when made contrary to the instrument unless there be a free and disposdhle fund passing thereby from which compensation can be made. Thus it was held, in Bristoive v. Warde (b), that where, under a power to appoint to children, the father made an appointment to persons not objects of the power, any child might set it aside and claim as in default of appointment, and also take a specific share appointed to him. " The doctrine of elec- tion," said Long] thorough, C, " never can be applied, but where, if an election is made contrary to the will, the interest that would pass by the will can be laid hold of, to compensate for what is taken away ; therefore in all cases there must be some free disposable property given to the person, which can be made a compensation for what the testator takes away. That cannot apply to this case, where no part of his property is comprised in the will but that which he had power to distribute" (c)- Upon the same principle in the case of a married woman, to whom an interest with a restraint on anticipation is given by the same instrument as that which gives rise to a question of election, the doctrine of election does not apply, as the nature of her interest in the property, to be relinquished by way of compensation, has by the terms of the instrument been made inalienable (d). In Hamilton v. H. (e), on the marriage of a lady in 1879, she being an infant, the settlement (ante-nuptial) contained a covenant to settle after-acquired property, and gave her certain interests, some without power ot anticipation. She was divorced, and brought an action to avoid the covenant. She married again before trial, and her second husband was made co-plaintiff. Held, that if she elected against the settle- (a) Codrington v. Lindsay, 8 Ch. 163 ; Be Fowler's Trusts, 27 B. 342 ; 578; Codrington v. C, 7 L. R, H. L. and as to heirlooms. Re Chesliam, 31 854 ; Carter v. Silber, (1 891) 3 Ch. 553 ; C. D. 466. S. C, reversed on other grounds, (1893) [d) Smith v. Lucas, 18 C. D. 531 ; A. C. 360 ; Hamilton v. IL, (1892) 1 followed in WHder v. Tigott, 22 C. I) Ch. 396. 263; Cahill v. C, 8 App. Cas. 420; (/;) 2 V. jun. 336, 2 E. E. 235. He AVheatley, 27 C. D. 613 ; Be Yar- {(■.) See also Box v. Barrett, 3 Eq. don's Trusts, 31 C. D. 275. 244; Pickersgill v. Eodger, 5 C. D. (e) (1892) 1 Ch. 396. 424 ELECTION". Streatfield v. Streatfield. ment she must give up the interests as to which she was not restrained to compensate the persons disappointed by such election, but that she could not give up the interests subject to restraint. Held also, following Codrington v. C. (a), that the date of the action to re- pudiate was not the date of her election, but that she was still entitled to exercise that right, within a time to be limited, but that if she elected to take against it she must account for all that she had received since the date of the decree nisi. A person will not be obliged to elect between benefits conferred upon him by an instrument, and an interest which he takes deri- vatively from another, who has elected to take in opposition to the instrument. Thus it was held, that a husband might be tenant by the curtesy of an estate tail, which his wife had elected to take in opposition to a will, under which he had accepted benefits : for as the Avife made complete compensation to the persons disappointed by her election, there could not be a second election, because in fact there was no one entitled to compensation (h). Nor will a person be compelled to elect between a benefit conferred upon him by an instrument, and an interest which he took adversely to the instrument and derivatively from the real owner, who took no benefit thereunder. Thus, if one co-heiress by electing to take under a will is compelled to give up her original share, she may retain a share which since the testator's death has descended to her from a deceased co-heiress (c). If however the title to property, whether derivative or otherwise, were vested in the owner before the testator's death, the owner must elect between benefits conferred upon him by the testator's will and his own property if the testator has devised it to others (d). It seems to be doubtful whether the doctrine of election applies to grants from the Crown, for the Crown is always in existence and can always be applied to, to set right the grant (e). Where, however, two persons A. and B. joined in a petition to the Crown, representing an estate to have escheated, and procm-ed a grant of it to be made to them, it was held that the assignees of A. could not afterwards set up a claim to one part under a prior title in himself, while taking the benefit of the grant as to the rest (/). (a) Supra. v. Barry, 2 V. & B. 127 ; Bennett v. {b) Cavan v. Pulteney, 2 Y. jun. Houldswortli, 6 C. D. 671. 544, 3 E. R. 8, 3 V. 384.' (e) Per Flumtr, M.E., 2 J. & W. (c) Cooper v. C, 7 L. R., H. L. 53 ; 345. Howells V. Jenkins, 2 Jolm. & H. 706 ; (/) Gumming v. Fon-ester, 2 J. & GrisseU v. Swinhoe, 7 Eq. 291. W. 3i4. {d) See Cooper v. C, supra ; Brodie ELECTION. 425 Streatfield v. Streatfield. In order to raise a case of election, at any rate in the case of a will, there must appear in the will itself a clear intention on the part of the testator to dispose of that which is not his own (a) : and it is immaterial whether he knew the property not to be his own, or by mistake conceived it to be his own ; for, in either case, if the inten- tion to dispose of it appears clearly, his disposition will be sufficient to raise a case of election (6). And it is likewise immaterial that a party put to his election by a will, after the date thereof puts into settlement property belonging to himself, which the testator affects to dispose of by his will. Thus in Middleton v. Windross (c) a testator gave all his property equally among his three daughters, Sarah, Margaret, and Jane, and directed Jane within twelve months after attaining twenty-one, to bring into hotchpot an estate to which she was entitled under the will of her gi'andfather. On Jane's marriage, subsequently to the date of the will, she, at the instance and under the superintendence of her father, settled the estate upon herself and her husband successively for life, with remainder to the children of the marriage. Afterwards, by the testator's advice, the estate was sold by the trustees for 3,000^. In a suit to administer the testator's estate, it was held that the 3,000L, less the costs of the sale, ought to be brought into account in respect of Jane's share. Moreover, though part of the benefits proposed by a testator to be conferred upon another may fail, what remains will be sufficient to constitute a case for election {d). The mere recital in a will that a party is entitled to certain pro- perty, but not declaring the intention of the testator to give it to him, will not be sufficient to raise a case of election (e). So in Box v. («) Forrester v. Cotton, 1 Eden, {h) "Wliistler v. Webster, 2 Y. jun. 531 ; Judd v. Pratt, 13 V. 168, 15 V. 370, 2 R. R. 260 ; Thellusson v. AVood- 390; Dashwood v. Pej-ton, 18 V. 27; ford, 13 V. 221. 9 R. R. 175 ; Welby Blake v. Bunbury, 4 Bro. Ch. 21, 1 v. W., 2 V. ct B. 199 ; oveiTuling Cull R. R. HI; Rancliffe v. Parkyns, 6 r. Showell, Amb. 727 ; Whitley r. W., Dow, 149, 179; DiUon v. Parker, 1 31 B. 173; Coutts v. Ackworth, 9 Eq. Swans. 359; Jervoise c. J., 17 B. 566 ; 519; Griffitb-Boscawen v. Scott, 26 Padbury v. Clark, 2 Mac. & G. 298; C. D. 358 ; Re Booker, W. N. (1886), Lee V. Egremont, 5 De G. & Sm. 348 ; 18. Wiiitour V. Clifton, 21 B. 447, 8 De (r) 16 Eq. 212. G. M. &G. 641; and Stephens v. S., {d) Newman v. N., 1 Bro. Ch. 3 Drew. 697, 1 De G. & J. 62 ; Poole 186. V. Olding, 10 W. R. 591 ; Fox v. {e) Dashwood v. Peyton, 18 Y. 41 ; Charlton, 10 W. R. 506; Thornton v. Forrester v. Gotten, 1 Eden, 522, 535 ; T., 11 Ir. Ch. R. 474; Box V. Barrett, Blake v. Bunbury, 1 Y. jun. 514, 3 L. R., Eq. 244 ; Sadher v. Butler, 1 523, 1 R. R. 111. It. Eq. 415. 426 ELECTION. Streatfield v. Streatfield. Barrett (a), under a settlement the four daughters of a testator took equal shares subject to his life interest. The testator, by his will, recited that under the settlement his tivo daugJtters, Ellen and Emily, luould become entitled to certain hereditaments, and that in making his will he had taken that into consideration, and had not devised them so large a share under his will, as he would have done- had they not been so entitled. He then devised to his daughters, Ellen and Emily, certain estates, and to his other daughters, Edith and Eliza, certain other estates of much larger value. T/te tuill did not 'purport to dispose of or affect the settled estates. It was held by Romilly, M.R., that as the will did not purport to make any disposition of the settled estates, and was only made under a mis- taken impression, Edith and Eliza were not put to their election (h). The difficulty of sustaining a case of election is always much greater where the testator has a partial interest in the property dealt with, than where he purports to devise an estate in which he has no interest at all (c). For if the testator has some interest, the Court will lean as far as possible to a construction which would make- him deal only with that to which he is entitled {d) ; and if a testator entitled to a share of a house or lands devised his interest or property therein, it is clear that he only intended his own interest therein to pass (e). Where, however, a testator entitled only to part of an estate uses words in devising it which show clearly that he intended to pass the entirety, if the owner of the other part takes other benefits by the will, he will be put to his election : as for instance where a person entitled only to a moiety of a house devises it as " all my messuage, now on lease to A. and in his occupation " (/), especially if there are also directions to repair the property specifically devised ((/), or if the testator in another part of the will correctly described a moiety ^ when it was his intention to give a moiety (li). And where the wife of a devisee alone was entitled to a particular property, a devise of it as " my interest in the A. property," will put the wife to her elec- («) 3 Eq. 244. [d) Maddison v. Chapman, 1 John. (6) See also Langslow r. L., 21 B. & H. 470 ; lit Bidwell's Settlement, 552; Blacket v. Lamb, 14 B. 482; 11 W. R. 161. Banks v. B., 17 B. 352 ; Bf Fowler's (?) Henry v. H., 6 Ir. E. Eq. 286. Trust, 27 B. 362. (/) Padbury v. Clark, 2 Mac. & G. ((•) Eancliffe v. Parkyns, 6 Dow, 298. 185 ; Henry v. H., 6 Ir. E. Eci- (.7) Ibid. 286. {h) Ibid. ELECTION. 427 Streatfield v. Streatfield. tion (a). And a specific devise b}' a particular description may be considered a sviffieient indication of an intention of a partial owner of property to pass the entirety thereof (h). So where a sum of 10,000L Consols being in settlement in trust for two sisters for life, and after their deaths two-thirds of the capital were in trust for their brother, and one-third in trust for their two sisters ; and the brother be- queathed " the whole of his property " to trustees as to part on certain trusts for his sisters, and he afterwards bequeathed the pro- perty "including the 10,000^. trust money" to other persons ; it was held that the sisters must elect between the benefits given them by tlie will, and their interest in the 10,000^. Consols ((,'). Where a testator is entitled only to a reversion in lands devised, the question sometimes arises whether he intended to include in the devise the immediate and absolute interest, or to confine it to his own estate only. Primd facie, doubtless the testator would be understood to refer only to what he had power to dispose of. He may, however, show a contrary intention, if for instance he has devised the land in question upon limitations, which cannot or probably Avoidd not ever take effect, or has conferred powers on the devisees which they cannot or probably will not ever be able to exercise, the intention to include the immediate interest will be sufficiently indicated to raise a case of election {d). So too a direction that an annuity is to be paid to a person for life, out of lands of which the testator has only the rever- sion, sufficiently indicates an intention to dispose of the whole {e). But such indications of intention will not prevail against an express confirmation of the settlement creating the estates, which come before the testator's reversion (/). But a confirmation of a part of the settlement leaves the remainder unconfirmed {g). A devise of an estate does not jper se import an intention to devise it free from incumbrances to the devisee, so as to put the incum- brancers taking benefits under the will to their election (Jt). (rt) Whitley v. ^Y., 31 B. 173 ; but 19S; AVintour v. Clifton, 8 De G. M. see Eead v. Crop, 1 Bro. Ch. 492; & G. 641. Wintom- v. Clifton, 8 De G. M. & G. (e) Usticke v. Peters, 4 Kay & J. 644 ; Grosvenor v. Durston, 25 B. 97; 437, 455. Usticke V. Peters, 4 Kay & J. 437. (/) Eancliffe v. Parkyns, 6 Dow, {h) Fitzsimous v. F., 28 B. 417; 149. Ilowells V. Jenkins, 1 De G. J. & S. (g) Blake v. Bunbury, 1 A', jun. 617 ; Miller v. Thurgood, 33 B. 496 ; 514. AVilkinson v. Dent, 6 Ch. 339 ; but see (h) Stephens r. S., 1 De G. & J. 62 ; Chave v. C, 2 John. & II. 713, n. 3 Drew. 697; Henry v. H., 6 Ir. 11. (c) Swan I'. Holmes, 19 B. 471. Eq. 286; Maddisoa v. Chapman, 1 {(2) Welby v. W., 2 Y. & B. 187, John. & 11.470. 428 ELECTION. Streatfield v. Streatfield. The intention to do so must appear conclusively from the words of the will, as for instance, if the testator repudiates the instrument creating the charge, and the dispositions of the will are inconsistent with that instrument, it will show that he intended the property to pass free from the charge (a). So if a testator entitled to an estate, subject to an incumbrance, secured by a long term, devise such estate for a term to take effect immediately upon the death of the testator, and for the immediate purpose of raising money for the payment of annuities and legacies, the incumbrancers deriving other interests under the will, if they take by it, must not disappoint it, but must permit the estate to go in the new channel free from incumbrances as the testator intended (6). General Devise or Bequest. — A mere general devise will not compre- hend property of which the devisor is not owner, although even before the Wills Act, at the date of his will and his death he had no property of his own to which the words were applicable (c). Nor will the fact that the devise is to uses in strict settlement extend general words to more than the testator's interest, though his devisable interest is only an estate pour autre vie (d). Parol evidence, dehors the will, is not admissible for the purpose of showing that a testator considering property to be his own, which did not actually belong to him, intended to comprise it in a general devise or bequest (e). But in Pickersgill v. Rodger (/), Jessel, M.R., said : " The presumption in the absence of evidence to the contrary is that the testator by his will intends merely to devise or bequeath that which belongs to him .... it is only a presumption which may be rebutted even by parol evidence, and it may be rebutted by evidence shewing that under a misapprehension of law, testator believed that property which did not belong to him did belong to him." Where a testator holds property with another in joint tenancy, (a) Sadlier v. Butler, 1 Ir. E. Eq. 523 ; Stratton v. Best, 1 V. jim. 285 ; 413, 423. Eutter v. Maclean, 4 V. 537 ; Pole v. {h) Blake ?'. Bunbuiy, 1 V.jun. 514, Somers, 6 V. 322 ; Druce v. Denison, 523. 6 V. 402 ; Doe v. Chichester, 4 Dow, (c) Eead v. Crop, 1 Bro. Ch. 402 ; 76, 89, 90 ; Clementson v. Gandy, 1 Jervoise v. J., 17 B. 566 ; Thornton v. Keen, 309 ; Dixon i'. Sampson, 2 Y. T., 11 Ir. Ch. 474; Timewell v. Per- & C. C. C. 566; overruling Pulteney kins, 2 Atk. 102. v. Darlington, 2 V. jun. 544, 3 V (d) Cosby V. Ashtown, 10 Ir. Ch. 384. E. 219, 226, 231. (/) 5 C. D. 170. (e) Blake v. Bunbury, 1 V. jun. ELECTIOX. 429 Streatfleld v. Streatfield. since on his death without severance the whole will go to the sur- viving joint-tenant, it will not pass by a general bequest in the testator's will to a third party so as to raise a case of election against the surviving joint-tenant taking other benefits by the will. Thus, where a testator both before and after making his will, transferred certain Government stock unto the names of himself and his wife and by his will made a general bequest of all his funded property, or estate of whatsoever kind to trustees for his wife for her life, and after her decease as therein mentioned, it was held that the will did not purport to dispose of the stock in terms sufficiently clear and distinct, or to put the wife upon her election (a) ; for in order to raise a case of election in such a case the stock in question must be specifically and clearly referred to (6). But a testator may in his will itself show an intention under a general devise to dispose of lands which are not absolutely his own, as for instance by describing them as being in the occupation of himself or his tenants (c). So if a testator devise land in a par- ticular locality, if there is any property of the testator answering the description it will be confined to that (d). Exclusion of Election. — The rule of election, the subject of this note, which depends, as before observed, upon an implied condition, will not be excluded by the parties being expressly put to their election, as between the benefits conferred upon them, and sums due to them from the person conferring such benefits. Thus in Wilkin- son V. Dent (e) a testatrix devised " all and singular the estate and mines of Aroa" to trustees in trust for sale, and gave to T. D. lO.OOOi., which was to be taken in full satisfaction of any sums which she might owe him at her decease, and to W. D. 3,000^., which she declared was to be taken in satisfaction of any rent-charge out of a certain part of her real estate. Her will contained the usual devise of trust and mort- gage estates. She was in possession of the entirety of the Aroa estate, but was owner only of one moiety, being in possession of (a) Dummer v. Pitcher, 2 My. & Shuttleworth. v. Greaves, 4 My. & C. K. 262 ; Blonmart v. Player, 2 S. & S. 38 ; A.-G. v. Fletcher, 5 L. J. (N. S.) 507; Crabb v. C, 1 My. & K. 511; Ch. 75. Smith V. Lyne, 2 Y. & C. C. C. 345 ; (c) See Honywood t-. Foreter, 30 Allen V, Anderson, 5 Ha. 163 ; Sea- B. 14. man v. Woods, 24 B. 372 ; and see {d) Eancliffe v. Parkyns, 6 Dow, Poole V. Adling, 10 W. E. 337. 149 ; Maddison v. Chapman, 1 John. {b) Coates v. Stevens, 1 Y. & 0. Ex. & H. 470. 66; Gi^o*r»»nor 1'. Durston, 25 B. 97; (c) 6 Ch. 339. 430 ELECTIOX. Streatfield v. Streatfield. the other moiety by virtue of a mortgage, the money due upon which was subject to trusts, under which T. D. and W. D. on her death became entitled, eacVi to one fifth. It was held, that T. D. and W. D. were put to their election between the benelits they took under the will, and their shares in the mortgage money. "The question," said James, L.J., " is, whether there is testamentary bounty to persons whose estates and rights are, under another part of the will, interfered with. It appears to me clear, that this question must be answered in the affirmative, though, before the amount of the bounty can be ascertained, the amount of the claims which the legatees had against the testatrix must be ascertained " (a). But the ordinary doctriiie of election may be excluded hy an apparent expression of intention by a testator that only one of the gifts, to an object of his bounty, is conditional on his giving up what a testator purports to take away from him. For instance, if a tes- tator had an eldest son, owner of a bit of property, and it would be convenient that this bit of property should go along with a property which the testator is devising to his second son. So, the testator devises this bit of property to the second son ; and amongst other gifts to his eldest son, he gives him a piece of property which he states in his will to be in lieu of his bit of property which the tes- tator purported to take away from him. In such case, the eldest son would merely be put to his choice between those two bits of pro- perty (6). Doiver and Free Bench. — A widow might be put to her election both at law^ and in equity between her dower and benefits given her by her husband's will, but since the Dower Act (c) and the Wills Act {d), the cases upon the subject have become of slight practical importance, and the reader is referred to the last edition of this work ; to Jarraan on Wills (1893), p. 429; and to Shelford's Statutes (189:3), p. 347. The statute does not apply to free bench, but if a man surrendered his copyhold estate to the use of his wife and then devised it the widow did not take free bench (e) ; and now, under section 3 of the Wills Act (/), a devise without surrender has the same effect (r/). (a) See also Coutts v. Acworth, 9 and see Brown v. Parry, cited Jarman Eq. 519, and consider Synge v. S., 9 on Wills (1893), p. 434. Ch. 128. (c) 3 & 4 Will. 4, c. 105. (5) East V. Cook, 2 V. 30, explained [d) 1 Vict. c. 26. in Wilkinsons. Dent, supra. See also (e) Lacey v. Hill, 19 Eq. 350. Dor V. B., 3 Bro. P. C. Toml. edit. (/) 1 Vict. c. 26. 167; Fytche f. F., 19 L. T. 343; ((/) Ibid., but see Thompsons. Burra, Coote V. Gordon, 11 Ir. E. Eq. 180; 16 Eq. 592; Powdrell v. Jones, 2 Sin. ELECTIOX. 431 Streatfield v. Streatfield. Creditors. — The doctrine of election is not applicable to creditors. Thus, if before the time when real estate was made assets for payment of debts a testator devised land in payment thereof, and bequeathed in favour of other persons funds, then assets for payment of debts, it was held that the creditors were not put to their election, and might assert their rights against such funds, without giving up their claim under the devise to the land («). In Deg v. D. {h), where a father devised his own estate and an estate of his son's for the payment of debts, the son was allowed as a creditor of his father to share with the other creditors in the benefit conferred upon them by the provision for payment of debts, without being obliged to give up his own estate. But these questions will not arise often now, as real estates are liable to the payment of debts by simple contract as well as specialty (c;. 2. Election in Cases of Deeds. The question of election principally arises in "cases of wills, because deeds being generally matters of contract, the contract is not to be interpreted otherwise than as the consideration ex- pressed requires" (cZ). The election is that of a different kind to that of wills (e), for there need not be in the case of deeds a clear intention on the part of the settlor or others to dispose of property which was not his own. The principle upon which cases of election are raised in deeds being tiiat which Lord Redendale in Birminghami v. Kirivan (/) states to be the general foundation of the law of election, viz., that a person cannot ''approbate and reprobate" under the same instrument. Thus if a person comes in directly under a settlement, and asks to have the benefit of such of its provisions as give him an advantage, and at the same time claims adversely to what was intended to be the rest of the settlement, because it was not binding, then a case of election arises. In Brown v. B. (g) marriage articles executed when a lady was a minor contained a covenant by the husband to settle her interest & G. 407 ; Eiddell v. Jenner, 10 Bing. (c) See 3 & 4 WiU. 4, c. 104. 29 ; Doe v. Gwinnell, 1 Q. B. G82 ; {d) Per Lord Redesdale, iu Binniiig- none of which cases were referred to in ham v. Ivirwan, 2 Sch. & L. 444, Lacey v. Hill. cited by Lord Ilutlierley in Codrington (0) Kidney v. Coussmaker, 12 V. v. C, 7 L. E., II. L., p. 8G7. 136, 2 R, R 118 ; Cooper v. C, 7 L. E., (e) As to which see intra, p. 433. U. L., p. 66 ; Clurk v. Guise, 2 V. (/) 2 Sch. & L. 444, 448. 617. ((/) 2 Eq. 481. [1) 2 P. W. 412, 418. 432 ELECTION. Streatfield v. Streatfield. in real and personal estate, including after-acquired property, on the usual trusts ; and she died without having confirmed the articles, leaving her husband surviving, and an only child, her heiress-at-law, who claimed an interest under the articles in the personal estate and also claimed the real estate attempted to be settled as heiress-at-law of her mother. It was held, that the heiress-at-law was put to her election. " In the present case," said Romilly, M.K, " the plaintiff comes in and claims directly under the limitation of the personal estate for her benefit under the settlement and claims the real estate adversely to the settlement on the ground that in the event the settlement did not bind it. I think, therefore, that she claims beneficially under the settlement directly, and that consequently she must elect whether she will take adversely to it or under it ; if the latter, she must give effect to the whole of it as far as she can " (a). With regard to marriage settlements, Jamef, L.J., laid down this simple rule in Codrington v. Lindsay (b) : "The only safe rule to guide the Court is to consider everything that is brought or expressed to be brought into settlement by anybody from any source as one aggregate trust fund. So considering it, it seems to me very easy and very right to read all the trusts thus : out of the aggregate property settled A. is to have so much and no more, B. so much and no more, the issue to have such interests and no more oi- other. Then if by paramount title A. or B. or any of the issue takes out of the aggregate something other than the sliare expressed to be given, he or she must take that in full satisfaction of the expressed share or interest," and he more than doubted the propriety of Gamphell v. Ingilhy (c), which was the only exception he thought to this rule. In that case the heir- at-law of an infant claimed property as not being bound by a settle- ment made by the infant, and it was held that if he had no benefit and claimed none under the settlement, he might assert his right, there being no case of election (d) ; and in Brown v. B. (e) he was held entitled to do this, though it may be, from extraneous circum- stances, and by some separate and independent cause, he had obtained some benefit under the settlement. For the application of the principle of approbation and reprobation (a) See Anderson v. Abbott, 23 B. H. L. 854. 457 ; WiUoughby v. Middleton, 8 Ch. (c) 1 De G. & J. 393. 590 ; Codrington v. C, 7 L. E., 11. L. (d) Campbell v. Ingilby, 1 De G. & 854 ; Griffith-Boscawen v. Scott, 26 C. J. 393 ; but see this case quoted 8 Ch. D. 358 ; Hamilten v. H., supra, p. 423. 593. {b) 8 Ch., p. 592; affirmed 7 L. R., (e) 2 Eq. 485. ELECTION. 433 Streatfield v. Streatfield. to voluntaiy deeds, see Llewellyn v. Machworth (a) ; Anderson v. Abbott (6) ; to cases of contract for valuable consideration resting in articles, see Savill v. S. (c), Broivn v. B. {d) ; to contracts for value completely executed by conveyance and assignments, see Bigland v. Huddleston (e) ; Chetivynd v. Fleetiuood (/) ; Green v. G. (g) ; Bacon v. Cosby (h) ; Mosley v. Ward (i) ; Willoughby v. Middleton (k). 3. Election in Cases of Wills. Where by the same will several gifts are given, some beneficial others onerous, but all of them the property of the testator, in the absence of the intention of the testator to make-the acceptance of the burden a condition of the benefit (l) the devisee may take what is beneficial and reject what is onerous (m). But where the question arises upon a single and undivided gift, such gift is prima facie evidence that it was the testator's intention that the gift should be one, and that it was the testator's intention that the legatee should either take it all or take none of it (n). But even in such a case the Court might sometimes be able to discover some subtle indication of an intention that the legatee should be at liberty to take part of the gift and leave the rest (o). In Syer V. Gladstone {p) a freehold house and the furniture therein were left to A. and B. for life. The house was mortgaged for more than its value ; A. and B. were held entitled to use the furniture, without keeping down the interest on the mortgage, see Re Hotchlys (q). In contra). 5. Compulsory Election. Election may be compulsory, as where a person is compelled to elect by a judgment of the Court. Persons compelled to elect are entitled previously to ascertain the relative value of their own property, and that conferred upon them, and time will be allowed to them for that purpose (c) ; and as to the apportionment of debts upon different funds, see Coo2:)er v. C. (d). Probably a judgment with the necessary inquiries could now be obtained upon an originating summons under R S. C. 1888, Order 55, r. 3 (g) (e). An election made under a mistaken impression will not be binding, for in all cases of election the Court, while it enforces the rule of equity, that the party shall not avail himself of both his claims, is anxious to secure to him the option of either, and not to hold him con eluded by ecpiivocal acts, performed, perhaps, in ignorance of the value of the funds (/). {'() Blacket v. Lamb. 14 B. 482 ; der v. Rose, 3 P. W. 124, n. ; Whistler Kampf V. Joiios, 2 Koeii, 7j6 ; Carver v. Webster, 2 V. jun. 367 ; Douglas v. r. Bowles, 2 Buss. & M. 301. I)., 12 Ecj. 017, 2 E. R. 260; Cod- {h) Woolridge v. W., 1 John. 63; rington r. C, L. B. 7 11. L. 868 ; Seton, Churchill r. C, u Eq. 44 ; Bouch r. p. 1339. Trood, 3 C. D. 429 ; Jte W^arren's {d) 6 Ch. 1 3. Trusts, 26 C. D. 208; but see judg- (e) See Daviesr. D., 38 C. T)., p. 212; ment of Fry, J., in White v. W., 22 Ee Boyle, 43 C. I). 18. C. D., and of C/utti/, J., in i?c' Whcatly, (/) Pusey v. Desbouverie, 3 P. W. supra. 315 ; Boynton v. B., 1 Bro. Ch. 445 ; (c) Newman i: X., 1 Bro. Ch. 186; Wake r. W., 3 Bro. t"h. 255; Kidney v. Wake V. W., 3 Bro. Ch. 255; Chal- Coussmaker, 12 V. 136; Dillon v. mers v. Storil, 2 Y. & B. 222; lien- Parker, 1 Swans. 381, and note. 440 ELECTION. Streatfield v. Streatfield. A person who does not elect within the time limited, will be con- sidered as having elected to take against the instrument putting him to his election (a). In Hamilton v. H. (6) the judgment fixed the time (c). Although before an heir can be put to his election he is entitled to know everything which concerns the situation and the value of the property in reference to which he may be required to make his elec- tion, there is no authority for the proposition that where an heir has chosen deliberately to confirm a devise of lands, which, without his confirmation, would be invalid, there must be, in order to enable the Court to hold that those claiming under him are bound by his con- firmation, some distinct evidence of his knowledge of his rights (d). 6. Vohintary Election. Election is either express (about which it is unnecessary to say anything) or implied. And here considerable difficulty often arises in deciding what acts of acceptance or acquiescence amount to an implied election ; and this question, it seems, must be determined more upon the circumstances of each particvdar case, than upon any general principle. There is generally an inquiry directed as to whom the premises (belonging to another), in the testator's will mentioned, belonged at his death, and if they belonged to A. (a person to whom he had given by will benefits), whether A. had elected in his lifetime to take under the testator's will (e). On a question of election by a party bound to elect between two properties, it is necessary to inquire into the circumstances of the propel ty against which the election is supposed to have been made ; for if a party so situated, not being called on to elect, continues in the receipt of the rents and profits of both properties, such receipt cannot be construed into an election to take the one and reject the other ; and, in like manner, if one of the properties does not yield rent to be received, and the party liable to elect deals with it as his ovvn, — as, for instance, by mortgaging it (particularly if this be done with the knowledge and concurrence of the party entitled to call for an election) — such dealing will be unavailable to prove an actual election as against the receipt of the rent of the other property (/). (a) See the decree in Streatfield r. (<-) Peck r. P., Seton, p. 1340. S., 1 Swans. 447. (/) Padbury v. Clark, 2 Mac. & G. {h) (1892) 1 Ch. 396. 298; and see Morgan v. M., 4 Ir. Ch. ((•) Ibid., p. 408. E- 606, 614; Ee Turner, 66 L. T. {d) Dewar v. Maitland, 2 Eq. 838. 758. ELECT 1 ox. 441 Streatfield v. Streatfield. Any acts, to be binding upon a person, must be clone with a full knowledge of his rights ((/) ; also with the knowledge of" the right to elect (b), and with the intention of electing (c). It is difficult to lay down any rule as to what length of time, after acts done by which election is usually implied, will be binding upon a party, and prevent him from setting up the plea of ignorance of his rights. In Wake v. W. (d), it was held that three years' receipt of a legacy and annuity, under a will by a widow iu ignorance of her rights, did not preclude her from making her election; in Reynard v. Spence (e), where a widow had received an annuity for five years, it was held, she had not elected (/). And in iSopivitJi V. Maugham {g}, where a widow had for sixteen years enjoyed a provision under a will in ignorance of her right to dower, in express satisfaction of Avhich the provision was made for her, she was held not to have elected. But where an infant made a voidable contract, but did not repudiate it until five years after, he was held bound (h). But a person may by his unequivocal acts suffer specific enjoyment by others until it becomes inequitable to disturb it ii). A sale of his own property, devised by the testator to others, Avill be considered an election to take against the will by a person taknig a beneficial interest under the will (/■), and electi. 61; (/) Barrow r. B., 4 K. & J. 409; Wintour i'.Clilton,8DeG.M. &G.G41. Greenhill r. North British, &c., Co.. ('/) 1 Y. jun. 330. (1893) 3 Ch. 474. (e) 4 B. 103. (vt) Spread r. Muigan. 1 1 II. L. ( as. (/) See also Butricko f. Brodhurst, o88; Briscoe v. B., 1 Jo. ct Lat. 3 Bro. Ch. 90; Dillon v. Parker, 1 334; Giddings r. G., 3 Euss. 241. Swans. 386; Fytche r. P., 7 Eq. 494. (;/) Xorthumberland v. Aylesford, (g) 30 B. 23o. Amb. 540, 6o7 ; Dewar r. Maitland, (A) Edwards v. Carter, (1893) A. C. supra; Stratford r. Powell. 1 Ball & 360. B. 1 ; Ai-desoife v. Bennett, 2 Dick. 463. 442 ELECTION. Streatfield v. Streatfield. principle only," as observed by Lord Hardiuicke, " not to disturb things long acquiesced in in families, upon the foot of rights which those, in whose place they stand, never called in question " (a). But if the representatives of those who were bound to elect, and who have accepted benefits under the instrument imposing the obligation of election, but without explicitly electing, can offer compensation, and place the other party in the same situation as if those benefits had not been accepted, they may renounce them and determine for themselves (6). A person entitled in remainder to an interest in property is not bound by the election of a party having a prior interest (c), and every member of a class, moreover, as for instance, next of kin, has a distinct right to elect, and will not be bound by the election of the majority nor of the administrator (d). Where an election was doubtful it has been sent to a jury to deter- mine that fact (e). Where upon an inquiry it has been found that a deceased beneficiary under the will of a testator has elected to take under his will, there will be a declaration made by the Court, that the premises belonging to such beneficiary, in the testator's will mentioned, passed in equity to the devisee thereof, and that the heir- at-law or devisee of the beneficiary is a trustee thereof for the devisee under the will (/). So where a defendant has elected to take estates appointed by the will of the testator, who has bequeathed to others the defendant's share of funds in settlement, the defendant will be directed to execute a proper release of his share and interest in the settlement to the trustees thereof, such release to be settled by the judge {[/). If no act is done affirming or disaffirming a voidable covenant it will be held binding {h). 7. Election by Parties under Disabilities. Infants. — Where an infant is bound to elect, the period of (a) Tomkyns r. Ladbroke, 2 V. (e) Eoundell v. Currer, 2 Bro. Ch. 593 ; Woi-tliington r. Wiginton, 20 B. 73 ; 1 Swans. 383, n. (57 ; Sopwith v. Maugham, 30 B. 235, (/) See Peck v. P., Seton, Form 5, 239 ; Whitley v. W., 31 B. 173. p. 1340. {b) Dillon V. Parker, 1 Swans. 385 ; (g) Fleming v. Buchanan, Seton, p. Moore v. Butler, 2 Sch. & L. 268; 1342. Tysson v. Benyon, 2 Bro. Ch. 5. (/«) Burnaby v. Eqmtable, &c. ^'oc, (r) Ward V. iiaugh, 4 Y. 643, 4 E. R. 28 0. D. 416 ; cited with approval, Jh- 307 ; Hutchison r. Skelton, 2 Macq. Hodson, (1894) 2 Ch., p. 426; and see II. L. Cas. 492, 495. Hams v. AVatkins, 2 Kay & J. 473 ; {(l) Fytche r. P., 7 Eq. 494. Dewar v. Maitland, 2 Eq. 834. ELECTION. 443 Streatfield v. Streatfield. election is, in some instances, as in Streatfield v. S., deferred until aftei- he comes of age {a). In Edwards v. Carter (b), a settle- ment was made in 1883 in contemplation of the intended mar- riage between S. and V. S, was an infant, and he did not come of age until a month after. The settlement contained a covenant to settle after-acquired property. This settlement, being voidable only and not void, might have been repudi- ated by him vjithin a reasovahle time after he attained his full age. He did not repudiate it until nearly five years afterwards. He was held bound (c). In other cases there has been a reference to inquire what would be most beneficial to the infant (d). And where the Court had sufficient materials before it an order has been made for an infant to elect without a reference to Chambers {e). Married Women. — The practice as to election by married women in cases in which she is not restrained from anticipation, as to which see supra, p. 423 (/), varies {g) ; but in general there will be an inquiry what is most beneficial for them, and they will be required to elect within a limited time {h). But where the married woman has manifestly the better interest, the inquiry may be dispensed with {%). An adult married woman may elect so as to affect her interest in real property without deed acknowledged ; and where she has once so elected, the Court can order a conveyance accordingly ; and the transaction will be enforced against the heir {h). ('/) Boughton w. B., 2 Y. 12; Bor and Eobin.son r. Wheelwright, f> De *'. r.., ;J Bro. P. C. 173, Toml. edit. G. M. & G. 535, when it was held that {b) (1893) A. C. 3()0, reported in 0. A. the Court could not enable her to bind as Carter v. Silber, (1892) 2 Ch. 278. such an interest, but see the Convoj'- {r) See Wilder v. Pigott, 22 C. D. ancing Act, 1881, sec. 39. 207; Be Hodson, (1894) 2 Ch. 421; (7) See Mr. Swanston's note to Burnaby v. Equitable, &c. Soc, 28 Gretton v. Haward, 1 Swans. 413. C. J)., p. 423; Cooper v. C, 13 (//) Cooper^'.C., 7 L. B.,II.L.53, 07, App. Cas. 88. ■ 79; Seton (1893),(n.)to Fonn 2, p. 1339. {(l) Gretton v. Haward, 1 Swans. (/) Wilson v. Townsend, 2 \'. (593, 413; Brown v. B., 2 Eq. 481 ; Seton 3 R. E. 31 ; Hamilton /-. II., (1892) 1 V. Sniith, 11 Si. 59; Seton (1893), Ch., p. 408. Form 2, p. 1339 ; Form 6, p. 1331. (A-) Ardesoife r. Bennet, 2 Dick. (e) Blunt /•. Lack, 26 L. J. Ch. 463; Barrow ?;. B., 4 Kay <^' J. 409; 148 ; Lamb v. L., 5 W. R. 772 ; Seton Smith v. Lucas, 18 C. D. 531 ; Wilder v. (1893), Fonn 3, p. 1339. Pigott, 22 C. D. 263; Br Vardon's (/) And see Hamilton ?'.H., (1892) Trusts, 31 C. D. 275; iie Hodson, 1 Ch. 396 ; Smith v. Lucas, 18 C. D. (1894) 2 Ch. 421, infra, p. 444. 531 ; Be Vardou's Trusts, 31 C. D. 275, 444 ELECTiOX. Streatfield v. Streatfield. Ordinarily a married woman cannot elect to relinquish a rever- sionary chose in action which she has no power to dispose of (a). A married woman, in the case of a reversionary interest in personalty, equally as in the case of real property where, under Malins' Act (6), she has power to dispose, in manner therein men- tioned, of such reversionary interest, would not be allowed to avail herself of a fraud, and might therefore be held to have made her election even when such reversionary interest in personalty was thereb}'^ affected (c), and it was held by Stirling, J., that the same principle applies in the case of a reversionary interest to which Malins' Act does not apply, as where her interest accrued prior to Dec. 31, 1857, if the case is one of an ante-nuptial contract {d). But otherwise if the contract is post nuptial (e). And see Harla V. Jannan (/), where North, J., explains the distinction between affirming a voidable contract, such as that of an infant spinster made before marriage, and a void contract, such as that in Seaton v. *S'., where the contract was after marriage and in respect of a reversion- ary interest not within Malins' Act, and also points out that in Beaton V. 8. and Sniitli v. Lucas and other cases the question was not one of election proper between two gifts or interests, but only of affirming or repudiating an instrument. In Re Hodson (g), an ante -nuptial settlement contained a covenant by the intended wife, a spinster and infant, to settle after- acquired property. It was not sanctioned under the Infants' Settle- ment Act. The marriage took place in 1879. In 1880 she ratified the settlement by deed, but it was not acknowledged under the Fines and Recoveries Act or Malins' Act. At the date of the settlement she had a contingent reversionar}' interest in a share of realty directed to be sold. In 1893 her husband died, and shortly after she became entitled in possession to this share of the proceeds of realty. Held, that the disability of coverture did not extend to a case of equitable election, that her voidable covenant had been confirmed, and that she was bound (It). {(i) AVhittle V. Henning, 2 Ph. 731 ; In. Co., (1893) 3 Ch. 474 ; but see this "Williams I'. Majme, 1 Ir. E. Eq. 519; case discussed in Haiie v. Jannan, Mahns' Act, Shelford, E. P. St. (1893), (1895) 2 Ch. 429. p. 315. (e) Seaton v. S., 13 App. Cas. 01. {b) 20 & 21 Yict. c. 57. (/) (1895) 2 Ch. 429. (c) Wilder v. Pigott, 22 C. D. {y) (1894) 2 Ch. 421. 263. (//) Following Wilder r. Pigott. {({) Greenhill v. N. B. & Mercantile ELECTION. 445 Streatfield v. Streatfield. Lunatics, Ac. — The right to elect to take under or against a will may, where a lunatic is so found, be exercised by his committee under the direction of the Court. Where not so found, as it cannot be exercised by himself, it may be by his representatives after his death {a). If a married woman becomes of unsound mind before electing, though not found so by inquisition, the Court has jurisdiction to make an election for her if it appears to be for her benefit (])). 8. Death of Person to Elect without Electing. If a person under an obligation to elect dies without liaving done so, and property which he takes beneficially under the will, and his own property bequeathed to strangers, go the same way ; if, for instance, both be personal property vesting either in his legatees, or in the case of the intestacy of such person, in his next of kin ; such persons would be entitled to elect (c). Each of the next of kin has a separate right of election, so that neither the elec- tion of the majority nor that of the heir or administrator binds the others, ami those of the next of kin who elect to take under the will, wall be entitled to all the beneficial interest by the will conferred on the intestate. But any of the next of kin electing to take against the will must not only give up all the benefits under it, but is bound to bring into account the interest of the person through whom he claims {d). Where a person dies without having made any election between his own property (personalty bequeathed to legatees), and real estate which he took under the will, and which go different ways, viz., the former to the executors and the latter to his heir-at-law or devisee, there can be no election on the part either of the executor on the one hand, or the heir-at-law on the other hand ; each wull retain the property to which he is legally entitled ; but the party taking the testator's own property, i.e., in the case supposed, the realty, will be under an obligation to make good what is sufficient to satisfy the disappointed legatees, and the amount sufficient for that purpose will be a charge on the real estate (e). As to election in cases of conversion, see Fletcher v. Aalihiirner, supra, p. 357. (a) Be Hewson, 23 L. J. Ch. 256; {d) Fytche v. F., 7 Eq. -190 ; follow- Pope, Lunacy (1890), 365. h\^ Ward v. Bangh, 4 Y. 623, 4 E. E. {h) Jones v. Lloyd, 18 Eq. 26j ; 307 ; Eogers v. Jones, 3 C. D. 688. Wilder v. Pigott, 22 C. D. 263. («) Pickersgill v. Eodger, 5 C. D. (c) Eytche V. F., 7 Eq. 490. 163, 175. 44G EQUITABLE ESTOPPEL. EQUITABLE ESTOPPEL. BURROWES V. LOCK (a). 1805. 10 V. 470—476 ; 8 R. E. 33, 856. Equitaljle Estoppel. The representation by a trustee that the trust fund is unencumbered, knowingly made to a person about to advance money to the cestui que trust, estops the trustee from subsequently asserting the existence of a prior incumbrance to the prejudice of such person. A trustee is thus compellable in equity to make such representa- tion good to the person whom he has thus misled : although he alleges that the representation was made by himself in good faith, and in foro-etfulness of the fact that he had previously received notice of an incumbrance affecting the trust fund. Thomas Cartwright, who died in 1787, by his will, made in 1778, crave his residuary estate to his executors, the defendant, James Lock, and two other persons, upon trust for his, the testator's, children equally. Part of the residuary estate consisted of a debt of 2,600^ due from Lord Dillon to the testator. The testator left nine children survivino' him. The defendant Edward Cartwright, as one of such children, was entitled to 288?. 17s. 9d, being his one-ninth of the 2,600Z. By a deed of the 21st of November, 1801, Edward Cart- wric'ht, in consideration of 132?. assigned his 288?. I7s. 9d. to the plaintiff, who thereupon gave James Lock notice of the assignment. On the 20th of November, 1802, the 2,600?. was paid to Lock as the then surviving executor of the will ; and he, having paid eight-ninths of it to the brothers and sisters of Edward Cartwright, retained the latter's one-ninth, i.e., 288?. I7s. 9d. On the plaintiff applying to Lock for payment of that sum, the defendant, James Cartwright, a (a) The statement of this case is trar's book, as reported in Low v. taken from the record in the Re^is- Bouverie, (1S91) 3 Ch. 82, p. 94. ESTOPPEL BY REPRESENTATION. 447 Burro Aves v. Lock. brother of Edward Cartvvright, set up a claim to 10 per cent, of it, under what appeared a deed of family arrangement, dated in 1790, whereby, amongst other things, it was agreed that Edward Cartvvright's share of the 2,G00L should be subject to a deduction of 10 per cent, in favour of James Cartwright. The bill of complaint, having stated the particulars of the assign- ment of the 21st of November, 1801, jiroceeded as follows : — " The plaintiff charges that, prior to the time of making the said assignment, application was made on the part of the plaintiff unto the defendant Lock, to know whether the defendant Edward Cart- wright was absolutely entitled to the said one-ninth 23art of the said 'debt ; and the defendants respectively, and particularly the defendant Lock, prior to the plaintiff's said purchase and assignment, did give the plaintiff an answer in the affirmative ; and particularly the defendant Lock, prior to the said transaction, and in November, 1801, did write a letter to the plaintiff, to the effect following, viz. : ' Sir, — William Edward Cartwright is entitled to his share of money secured by debentures on Lord Dillon's estate, when sold to pay them off, which he can dispose of to any one. — I am, &c. Jas. Look ; ' and, upon the faith of the said letter from the defendant Lock, the plaintiff actually purchased the defendant Edward Cartwright's said one-ninth siiare of the said debt, without knowing that the other defendant,. James Cartwright, had any right or deduction whatsoever out of the same ; for, although the defendants respectively, and particularly'^ the defen- dant Lock, before and at the time of the plaintiffs purchasing the defendant Edward Cartwright's said share in the said debt, had been apprised and did suspect that the defendant James Cartwright had a claim of a deduction of 10 per cent, out of the said defendant Edward Cartwright's said share, and had some notice relating thereto, yet they did not disclose the same to the plaintiff or give him the least notice thereof; and the plaintiff charges that he did bond fide pay the whole of the consideration money expressed in the said deed of assignment for the purchase of his one-ninth part of the said debt ; and the plaintiff charges that the said deed of assignment is a valid deed on the part of the plaintiff; and in case the defendant James Cartwright is entitled to have any deduction out of the said share so assigned to the plaintiff as aforesaid, then the said defendants, and particularly the defendant Edward Cartwright in the first instance 448 EQUITABLE ESTOPPEL. Burrowes v. Lock. and ill case of liis default then the defendant Lock, ought to make good the same, and therefore that the said defendants miglit answer the several matters aforesaid ; and that the said defendant James Lock might be decreed to pay and satisfy to tlie said plaintiff the said sum of 2S8L 17.s. 9c/., being the one-ninth part or share of the said sum of 2, GOO/, so purchased by and assigned to the plaintiff as aforesaid, together with interest and costs ; and in case the defendant James Cartwright was entitled to and should be paid anything from and out of the said debt or money so assigned to the plaintiff as aforesaid, then that the defendants, and particularly the defendant Edward Cartwright in the first place, and, in default of payment by him, then that the defendant Lock might answer and make good the same with interest unto the plaintiflf ; and for relief in the scope of the said plaintiff's bill. The defendant Edward Cartwright, by his answer submitted that, under the circumstances therein mentioned, the plaintiff ought not to be allowed to have the benefit of the assignment of the 21st of November, 1801, or to receive payment of Edward Cartwright's share of the 2,600/. The defendant, James Lock, by his answer, admitted having had notice from the plaintiff of the assignment of the 21st of November, 1801, and said he apprehended that the 288/. 17s. 9d. was subject to a deduction of 10 per cent, to James Cartwright. He submitted that, James Cartwright having made the claim, he, Lock, could not, as trustee, with safety to himself, pay over Edward Cart- wright's share of the 2,600/. to the plaintiff, but expressed his willing- ness to act as the Court should think proper. The plaintiff's bill having been amended, the defendant Edward Cartwright put in an answer to it, admitting that James Cartwright claimed the 10 per cent. ; and he stated that he believed that the plaintiff, previous to his purchase, did inquire of Lock as to whether he, Edward Cart- wright, was absolutely entitled to his one-ninth, and that Lock wrote the letter above mentioned, though he, Edward Cartwright, did not know whether the plaintiff purchased the share without knowing that James Cartwright claimed any deduction out of it; but if the plaintiff did purchase without knowledge of the claim, he, Edward Cartwright, denied that the same was wilfully suppressed by him from the plaintiff; and he believed that, had the plaintiff asked Lock whether there was any incumbrance affecting his (Edward Cart ESTOPPEL BY REPP.ESENTATIOX. 449 Burro"sves v. Lock. wrigiit's) share, vsliich inquiry was not made, Lock would have given him every information ; and that he, Edward Cartwright, did not think of mentioning it as it would naturally be discovered on an investigation of the title. The defendant James Lock, by his answer to the ainended bill, admitted the plaintiff having made the inquiry of him, and that he did write the letter ; he alleged, however, that he did not recollect ever having said that Edward Cartwright could dispose of his share free from any deduction, or that any such question was ever asked of him, but that the inquiry was whether Edward Cartwright could sell his share, to which his (Lock's) answer was that he could, and this, he submitted, was the import of his letter ; and he altogether denied any wilful suppression, saying that, had the plaintiff asked him whether there was any incumbrance affecting Edward Cartwright's share, he would not have hesitated giving him any information in his power. He admitted having, before the plaintiff's purchase, heard of James Cartwi'ight's claim, but alleged that, it being a matter in which he himself was not interested, he s'ave himself no concern about it, nor did it enter his mind during- any of the times he saw the plaintiff or when he wrote the letter. He admitted that he did not disclose the matter to the plaintiff before the purchase, but said this was entirely accidental, and he submitted to act as the Court should direct. The defendant James Cartwi'ight also put in an answer, claiming to be paid the 10 per cent, out of Edward Cartwright's share, and that his interest in such share could not be affected by any transaction that might have taken place between Edward Cartwright and the plaintiff. The case having been argued and the letter from Lock to the plaintiff produced and put in evidence, a decree was pronounced, " that the defendant James Lock do pay to the plaintiff the sum of 288^. 17s. 9fZ., being one-ninth part or share of the sum of 2,600^. purchased by the plaintiff of the defendant Edward Cartwright and assigned to him by the indenture of the 21st day of November, 1801, subject to a deduction of 10^. per cent, to the defendant James Cart- wright ; and it is ordered that the defendants Edward Cartwright and James Lock do jointly pay to the plaintiff the 101. per cent, hereinbefore directed to be deducted out of the said 288Z. 17.9. dd. and it is ordered that the plaintiff do pay unto the defendant James Cartwright his costs of this suit to be taxed," &c., and that " the costs w. & T. — VOL. L 29 450 EQUITABLE ESTOPPEL. Burrowes v. Lock. which the plaintiff shall so pay unto the said James Cartwright be repaid to him by the defendant James Lock ; and, as between the plaintiff and the said defendants, James Lock and Edward Cart- wright, no costs on either side : " liberty to apply. NOTES. 1. Generally. 2. Cases illustrating the doctrine of equitable estoppel, p. 454. 3. Infancy and coyerture, p. 469. 1. Generally. Equitable Estoppel. — The principal case belongs to a class of cases not resting on contract (a) or agreement, but in which courts of equity have compelled pei-sons to make good the representations concerning existing facts {h), on the faith of which they have induced others to act (c). It is proposed to confine this note to the consideration of cases of the above description, which illustrate the rule of equitable estoppel, namely, that where one by his words or conduct induces another to take a representation as true, and to believe that he was intended to act upon it, and such other person does act upon it so as to alter his previous position, the person making such representation is concluded from averring against such other a different state of things as existing at the same time (d). Kay, L.J., in Low v. Bouverie (e), states the result of the authorities thus : — L There has been from ancient times a jurisdiction in courts of equity in certain cases to enforce a personal demand against one who has made an untrue representation upon which he knew that (a) Although this case comes " very and Pollock, Torts (1895), p. 270. near contract," Brownlie v. Campbell, [d) See Pickard v. Sears, 6 A. & E. 5 App. Cas. 953. "l"-*, explained in Freeman r. Cooke, {h) See Jordan v. Money, 5 H. L. 2 Ex. 654; Citizens Bank of Louisiana Cas. 185, infra, p. 462 ; Williams v. v. First National Bank, &c., 6 L. E. Stern, 5 Q. B. D. p. 409 ; Maddison u. H. L. p. 361 ; Carr v. L. & N. W. E. Alderson, 8 App. Cas. p. 473 ; Pollock, Co., L. E. 10 C. P. 316 ; PoUock, Con- Contracts (1894), p. 713; Moncreiffon tracts (1894), p. 505; Moncreiff on Fraud (1891), p. 101. Fraud (1891), p. 237. (c) PoUock, Contracts (1894), p. 639, (0 (1891) 3 Ch. p. HI. ESTOPPEL BY REPRESENTATIOX. 451 BurroAves v. Lock. the person to whom it was made intended to act, if such person did act upon the faith of it and suffered loss by so acting (a). 2. This was readily done where the representation was fraudulently made, in which case an action of deceit would lie at law. 3. Relief will also be given at law and in equity even though the representation was innocently made without fraud in all cases where the suit will be etfective if tlie defendant is estopped from den3'ing the truth of the representation {b). 4. Where there is no estoppel an innocent misrepresentation will not support an action at law for damages occasioned thereby. 5. Estoppel is effective where an action must succeed or fail if the defendant or plaintiff is prevented from disputing a particular fact alleged. But the rule does not apply to an action of deceit, for in such -an action the plaintiff relies not on the truth of the statement but upon its falsehood, and he is bound to prove, not only that the representation was untrue,, but also that it was fraudulent (c). 6. It is doubtful whether relief in the nature of a personal demand has been given in equity in cases which did not involve fraud, or to which this doctrine of estoppel would not apply. Slim v. Croucher (d) is an instance of such relief being given ; but since Berry v. Peek that case is no longer law (e). Estoppel is only a rule of evidence ; an action cannot be founded on estoppel. Estoppel is only important as being one step in the progress towards relief on the hypothesis that the defendant is estopped from denying the truth of something which he has said (/). It may be defined as " an admission of a state of facts, or of fact irrespective of its truth, which, for the purpose of determining then- rights and obligations arising out of a given transaction, the parties thereto are entitled to exact from one another, or one of them is (a) See Freeman i-. Cooke, 2 Ex. further Swan r. N. B. Australian Co., 054 ; Pickard v. Sears, 6 A. & E. 469 ; 2 H. & C. 175 ; Can- v. London & N. Sheffield v. London J. S. Bank, 13 AV. E. Co., L. E. 10 C. P. 307; Bur- App. Cas. 333 ; Colonial Bank v. Cady, Idnshaw v. Nicholls, 3 App. Cas. 204 ; 15 App. Cas. 267. Re Bahia, &c. E. Co., L. E. 3 Q. B. {h) Cf. Henderson & Co. v. "Williams, 584. (1894) 1 Q. B. 521. (/) Per Boiuen, L.J., in Low v. (c) Derry v. Peek, 14 App. Cas. Bouverie, supra; and see He Bahia, 337. &c. E. Co., L. E. 3 Q. B. 584 ; Balkis ((0 1 De F. & J. 518. Consolidated Co. v. Tomkinson, 1 E. (ej Low V. Bouverie, supra, and see 178, (18'J3) A. C. 396. Of) o 452 EQUITABLE ESTOPPEL Burrowes v. Lock. entitled to exact as against the others or other " («) ; or as defined by Cotton, L.J., in Siinm v. Anglo-American Telegraph Co. (h), it means, that "where one person makes to another a statement [representation] which is afterwards acted iipou, in any action afterwards brought upon the faith of that statement by the person to whom it was made, the person making it is not to be allowed to deny the facts were what he represented them to be." The cases establish the following propositions, namely, that if A. desires to avail himself of the doctrine of estoppel, as against B., he must show that B. fraudulently or innocenth' made (c) a repre- sentation of n. fact (d) which was not true, or not true as intended to be understood (e) ; that he, A., was unaware of the untruth of such representation, and did not wilfully abstain from investigating its character {f ), and that he reasonably, in consequence of such repre- sentation (g) acted, or refrained from acting, to his prejudice. If the representation was fraudulent, its ambiguity would not be a \ Eamsden). C. D. 772. {h) 15 C. D. 96, reversed in an appeal 462 EQUITABLE ESTOPPEL. BurroTves v. liock. not, there is nothing which calls upon him to assert his own rights. Lastly, the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money, or in the other acts which he has done, either directly or by abstaining from asserting his legal right. Where all these elements exist there is fraud of such a nature as will entitle the Court to restrain the possessor of the legal title from exercising it, but, in my judgment, nothing short of this will do " («). In Jordan v. Money (Ij), a lady to whom a gentleman owed a debt on a bond, and who was at that time a great friend of his, induced him to marry by a promise that she would never enforce the bond. She changed her mind and brought an action on the bond after the marriage. It was urged that upon the doctrine of repre- sentation she was not at liberty afterwai'ds to enforce her claim. There was some difference of opinion wdth regard to the facts, but the House of Lords held she was at liberty to enforce her claim. " I think," said Lord Granworth, " that that doctrine {i.e., the doctrine of representation) does not apply to a case where the representation is not of a fact, but a statement of something which the party intends or does not intend to do." " If," says a learned editor (c), "this case was rightly decided, a person is not estopped by a representa- tion or promise as to what he will do in the future, provided that he is sincere at the time when the other party acts on his promise" (d). In Mills V. Fox (e), a female infant ward of Court was entitled to certain property as one of two tenants in tail. Part of this, Blackacre, was taken by a company and the money paid into Court. Proposals for a settlement on her marriage were submitted to the Court, which stated that she was entitled as tenant in common in tail to certain specified property, and that it was proposed to bar the entail and vest the wdiole in trustees. Amongst the property so specified was Blackacre. The settlement was approved and carried out by a disentailing deed in 1884, which included Blackacre but did not mention the fund in Court. After the marriage the lady (a) See Procter v. Bennis, 36 C. D. L. E. 6 H. L. 352 ; Gillman v. Carbutt, 740. 61 L. T. 281 ; Montefiore v. M., 1 BL W. (5) 5 H. L. Cas. 185. 363 ; Gale v. Lindo, 1 Vern. 475 ; (c) Moncreiff on Fraud (1891), p. Pickard v. Sears, 6 A. & E. 475 ; 239. Freeman v. Cooke, 2 Ex. 663 ; Dal- (fi) See Maddison r. Alderson, 8 Mac v. D., 16 V. 125 ; West v. Jones, App. Cas. p. 473 ; Citizens Bank of 1 Si. (X. S.) 208. Louisiana v. First National Bank, &c., (e) 37 C. D. 153. ESTOPPEL BY REPRESEXTATIOX. 463 Barrowes v. Lock. disentailed the fund in Court and claimed it a.s lier absolute property. The trustees brought an action to establish their right to the fund in Court. Held, that the fund in Court was not affected by the deed of 1S84 ; but that as the marriage and settlement were sanctioned by the Court upon the faith of a representation made in her behalf that she was entitled in tail to a moiety of the property, the purchase money of which was represented by the fund in Court, she was bound in equity to make good such representation notwithstanding her infancy at tlie time it was made, and that she, being the only person besides the plaintiffs who could claim any interest in this fund, was estopped from setting up any title to it adverse to the plaintiffs. An estoppel can only be effected by what is express and clear. Inference is not enough to create an estoppel. There must be a distinct positive statement of the fact which is relied on as creating it. Thus, in Oivivard Building Society v. Smithson (a), Toward obtained from trustees a conveyance of Blackacre which he mortgaged to B. He subsequently by a trick induced his vendors the trustees to execute a second conveyance to him of part of the same land. This second deed recited, that their testator was seised in fee at his death, and recited his will devising the estate to them, &c., the contract for sale in fee simple free from incumbrances. The trustees covenanted against incumbrances, and one of them for title as beneficial ownier, but there Avas no statement that the vendors were seised in fee. Toward then mortofaofed the land to the Building Society, the plaintiffs, and they then became bo7id fide purchasers for value without notice. B. afterwards took possession under his mortgage, and the security to the society became worthless. The plaintiffs brought an action against the trustees for indemnity on the ground of misrepresentation, and on the covenants for title. KekeivicJt, J., gave judgment in favour of the plaintiff on the covenants for title. The C. A. (6), held that the plaintiffs as assignees of a mere equity of redemption could have no remedy against the defendants on the covenants for title, as there was no legal estate with which they could run, and that though tin- recitals led to the inference that the vendors were seised in fee the deed did not state that they were, and so they were not estopped from saying that the plaintiffs took no legal estate by their couvey- (a) (1S93) 1 Ch. 1 ; Riglit v. Buck- (/;) LindJey, Boiutit, aud A. L. nell, infra. Compare Low v. Bouverie, Smith, L.J J. supra, p. 45S. 464 EQUITABLE ESTOPPEL. Burrowes v. Lock. ance from Toward («). A point arose in this case which it was not necessary to decide, but which is of importance. Supposing that in the last-mentioned case the defendants had been estopped from denying that the plaintiffs had the legal estate, and had pleaded fraud : could the plaintiffs have successfully replied, We are purchasers for value without notice. Could they, in short, have maintained an action on the covenants which Toward himself could not have maintained ? (6) If the director of a company is found acting as such at a time when he could not properly so act without possessing shares, he may estop himself from denying that he has entered into a contract to take shares (c). But if the director of a company sells his qualifica- tion shares, his name remaining on the register as the person entitled to the shares, the purchaser is not thereby estopped from setting up his title to the beneficial interest therein ((7). In Re BaJiia. &c., Ry. Go. (e), T. was the registered holder of five shares in the company. She deposited the certificates with her broker. These certificates, together with a transfer from T. to S. and G. purporting to be signed by T. but which was a forgery, were left with the secretary of the company for registration, and after sending the usual notice to T. and receiving no answer, the transfer was registered and share certificates handea to S. and G. A., bond fide for value, and without notice, bought these shares on the market in the usual course of business, and was duly registered as holder of them, and share certificates were duly handed to him by the company. The foro-ery was discovered. The company were ordered to restore T.'s name to the register under the Companies Act, 1862, s. 35, and upon a special case stated under that section it was held that the giving of the certificates by the company to S. and G. amounted to a statement by the company, intended by the company to be acted upon by [a) Cf . Eight V. Bucknell, 2 B. &, Ad. 4 C. P. 704 ; Simm v. Anglo-American, 278 ; Clark v. Hall, 24 L. E. Ir. 316 ; &c. Co., 5 Q. B. D. LS8. Heatli V. Crealock, 10 Ch. 22 ; General (c) Brown's Case, 9 Cli. 106 ; Ex f. Finance, »S:c. Co. v. Liberator Per- Inchiquin, (1891) 3 Ch. 28 ; Ex p. manent B. S., 10 C. D. 15 ; Lainson Cammell, (1894) 1 Ch. 528. V. Treniere, 1 A. & E. 792 ; Cuthbcrt- (r/) Howard v. Sadler, (1893) 1 Q. son V. Irving, 4 H. & N. 742 ; Re B. 1. Eddystone Marine Insurance Co., (e) L. E. 3 Q. B. 584; Re Ottos (1893) 3 Ch. 9 ; p. 466 infra, as to Kopje, «S:c. Mines, (1893) 1 Ch. 618, estoppel by recitals in contract. where ^e Bahia, &c., is explained. (/;) Cf. Foster v. Mackinnon, L. E. ESTOPPEL BY REPRESENTATION. 465 Burrowes v. Lock. purchasers of shares in the market, that S. and G. were entitled to the shares, and that A. having acted upon such statement the company were estopped from denying its truth, and damages were recoverable by A. from the company to the value of the shares at the time the company refused to recognize him as a shareholder («). In Bcdlcis Consolidated Co. v. Tonddnson (h) the plaintiff was the vendor of the shares instead of the purchaser, but this was held to make no difference. In Simm v. Anglo- American, &c. Co. (c), Burge bought stock in the defendant company, and received a transfer of stock purporting to be executed by Coates who was the registered owner, but which was in fact forged. Burge borrowed money from a bank, the stock was transferred to Ingelow as trustee for the bank, and he was registered owner and holder of the certificates. Burge then repaid the bank, and Ingelow, the bank's trustee, became tmstee for Burge. On the discovery of the forgery the company refused to recognize Ingelow as the owner of the shares, and Burge and Ingelow brought an action to compel them to recognize their title. The C. A. (d) overruling Lindley, J., held that the company were not liable, for when the loan was paid off, and Ingelow became merely a trustee for Burge, no estoppel existed in favour of Burge against the company, for Burge had acted on the faith of the forged transfer and had not relied upon any act of the company, and by sending the forged transfer to the company had induced them to recognize his nominee as the holder (e). As between banker and customer the authority given to the former by the latter is, in cases in which they the bankers have agreed to retire acceptances on account of their customers, to pay to the order of the person named as payee, and if they pay to another they cannot charge the customer (/), but representations made directly to the banker by the customer upon a material point, untrue in fact, and on which the banker acted by paying money which he would not otherwise have paid, Avill throw the loss on the customer (g). (a) See fiu-ther Hart v. Frontino, Co.. 63 L. J. Q. B. 50. &c. Co., 5 Ex. Ill; Carr v. Lon- (/) Robarts i-. Tucker, 16 Q. ?,. .300. flon & N. W. E. Co., L. R. 10 C. P. {(/) See jiidgm&nts of Lord S,'lh,>rne ■m ; Barton r. L. & N. W. E. Co., and Lord WnUon, Bank of En.^land r. •24 Q. B. D. 77. Vagliano, (1S91) A. C. 106. See fm-ther (b) (1893) A. C. 396. as to estoppel by np,) See Dr. Davis's Case, 1 P. W. Barn. 144, 145. 698 ; but this practice has some time (c ) See Lord Raymond's Case, Ca. t. since been discontinued, except per- Talbot, oS ; Smith v. S., 3 Atk. 304. haps in the case of a female ward CUSTODY, MAKKIAGK, ETC., OF INFANTS. 481 Eyre v. Countess of Shaftsbury. a peer of the realm, in whose education the public i.s interested, and where the guardianship of him is devised by a peer of the realm, viz., by the will of the late Lord Shaftsbury. As to the objection that has been made to the order of this Coui't. that there are no words therein, that the infant shall not be married without the consent of the guardian : Res'p. The Court could not suppose, or foresee, that any person would marry the infant without the guardian's consent; and, for that reason, there was no express provision against it in the order ; but still this prohibition is implied, viz., that no person, without the leave of the guardian, should marry this infant ; besides, by the same reason that these words ought to be inserted, the order should like- wise have provided that no person should take away or ravish this ward from the guardian, &c., all which things are surely implied ; but, further, it is a sufficient answer to this objection, that such negative words are never inserted in the order. But then it is objected, here is no disparagement in this marriage ; forasmuch as the birth of the noble lady to whom Lord Shaftsbury is married, and also her quality, are equal to those of her husband; and she has had the advantage of being educated under the Countess of Gainsborough, her mother, a lady of great honour, virtue, and quality. Res'p. Admitting all this to be so, yet it may be reasonably sup- posed, that, if the infant earl had staid till he had attained his age, and could have made a jointure and settlement, in such case his Lordship might have had a better portion. But, in reality, though there be no disparagement, yet this is only by way of extenuation, and can never be urged as a justification ; for, it is the marriage without the consent of the guardian that constitutes the offence ; so that, such marriage having been to one of equal degree and fortune, can at most tend but to extenuate. And it is observable, that the disparagement of the ward was not where such ward, without the guardian's consent, married one of inferior degree, as a villein, citizen, or burgess, but where the guar- j. {(■) Repealed as to England by U 4:92, GUARDIAN AND AVARU. Eyre v. Countess of Shaftsbury. grant the order, keeping, education, or governance of such maid or woman-child." This gives authority to appoint the custody of a female child for a special purpose. He that takes away the female child, and marries her or deflowers her, is an offender within that statute. So, this being a custody for a sj^ecial purpose, it was properly enough construed to be a naked authority. Therefore I take the case in Poph. 204, to be good law, that, when two persons are appointed guardians by authority of this statute, and one of them dies, it will not survive, because that statute gives an authority to a special purpose, to make the ravisher criminal within that law. But the 12 Car. 2, c. 24, gave the father a power, by deed executed in writing, or by act executed in his lifetime, or by his last will and testament, to appoint the custody and tuition of his child or children till the age of twenty-one years ; and such disposition of the custody to be as good and effectual against all and every person claiming the custody of such child or children as guardians in socage or otherwise ; and the persons to whom such custody shall be disposed, to have a writ of ravishment of ward or trespass. This statute was formed by Sir Matthew Hale, and, when wardships were taken away, introduced the testamentary guardians : and this testamentary guardian, by the rules of the civil law, was to take place before all others. But our testamentary guardian is not a naked authority, but is made after the model of a guardian in socage, and, by consequence, an interest passes to the guardian. And the Act (Rights), given to the guardian in socage, are given by this law. But 'tis said, that every interest is assignable, transferable, or devisable, and that the guardianship is not ; and therefore it is a naked authority and not an interest. Every interest of profit is assignable, because it is the nature of property, that the person who is the owner should have dominion over it, so as to assign or transfer it. But the guardian in socage has no interest of profit : it is an inte- rest of honour, and for the honour of the family committed to his CUSTODY, MARPJAGE, ETC., OF INFANTS. 493 Eyre v. Countess of Shaftsbury. next of kill, and therefore is inherent to the blood, and can't be assignable. Because a stranger could not have that interest to take care of the ward, nor have it at heart. The guardian in socage was accountable to the infant when he came to the age of fourteen, and he could not transfer that account to another. The testamentary guardian, as is said, is formed after the manner of guardian in socage, and comes instead of him, and is hi loco parentis. Therefore, though it be not assignable, nor transferable, jet it is such an interest as shall survive. 4th Question, Contempt of the Court. — The fourth question is, whether the ladies, or either of them, are in contempt of the Court ? And it is very plainly sworn upon the Lady Shaftsbury, that she has owned that she has seen him married and bedded. The mother's being present in this case, is a plain evidence ol assent. And the mother can't niMrry her child without the consent of the testamentary guardian. For the father, who had the power over his child by law, ha.s placed it under the power of the testamentary guardian. Therefore it is taken out of the power of the mother. But it is objected, that this Lord Shaftsbury has married the Lady Susannah jNoel, a lady of birth, quality, and fortune, and therefoi-e is married without disparagement, and that this will be no contempt of the Court. When the ward is put under the protection of this Court by the testamentary guardian, it is a contempt of the Court to marry him without the consent of the guardian. It is a breach of filial duty for children to marry without the con- sent of the parent. The testamentary guardian is in loco parentis, and he having put the ward under the protection of the Court, it is then a contempt to marry him without the guardian's consent, and the contempt being in marrying him without the consent of the guardian, an improvident marriage is only an aggravation of the offence, if that had been the case. 494 GUARDIAN AND WARD. Eyre v. Countess of Shaftsbury. There is nothing in the objection, that the mother has the natural power over her son, and that jura sanguinis nulla lege civili'possunt dirhni. For the father, whilst living was the head of the family : he had power over his child, and he might dispose of him by law. And it is the duty even of the mother to pay that respect to the memory of her deceased husband, as not to marry her son without the consent of the guardian appointed by the father. And when the child is by the guardian put under the protection of this Court, it will be a contempt even of the mother to marry him without the consent of the guardian. As to the Lady Gainsborough, this contempt is not sworn upon her. For an order for sequestration in the case of a peer, or a commit- ment in the case of a common person, is a judicial act of the Court, and therefore must be founded on a proper affidavit, as I apprehend. The order is the judgment of the Court, the sequestration or com- mitment is but the execution of it. And therefore the judgment is to be founded upon truth, and not upon conjecture only. For if she be examined upon subsequent interrogatories, this will not make good the determination of the Court by a matter ex post facto. Wherefore he agreed with Lord Jchjll in toto, as did also Lord Commissioner Raymond {a). NOTES. 1. Generally, p. 495. 2. Guardianship by Natui-e and Nurture, p. 495. 3. Wards of Coui-t, p. 499. 4. Testamentary Guardians, p. 509. 5. Jurisdiction of Court, j). 514. 6. Custody, p. 525. 7. Foreign Guardians, &c., p. 530. 8. Powers under Statutes, p. 531. (a) See 2 P. W. 125. CUSTODY, MARRIAGE, ETC., OF INFANTS. 495 Eyre v. Countess of Shaftsbury. 1. Generally. The jurisdiction of the Court of Chancery over infants probably resulted from the right of the Crown over the persons and property of infants as iXLvens iKdrkti where they have no other guardian. This jurisdiction was exercised by the Ciiancellor, as a part of the general delegation of the authority of the Crown, virtute officii (a), and whatever may be its origin it is now firmly established, and it is a settled maxim that the Crown is the universal guardian of infants and of their property (6). Under the Judicature Act, 1873, s. 34, subs. 3, all causes and matters relating to "the wardship of infants and the care of infants' estates " are assigned to the Chancery Division of the High Court, and b}' sect. 25, subs. 10, of the same Act, " in questions relating to the custody and education of infants the rules of equity shall prevail " (c). But the jurisdiction of the Chancery Division is concurrent with that of each of the other Divisions of the Supreme Court (d), and extends to infants who are not Avards of court and who have no property (e), although the Court cannot interfere with regard to the maintenance or education of infants, unless it has some means of providing for them (/) ; and it also extends over the whole period of infancy (g). 2. Guardianship by Nature and Nurture. RigJtts of FatJter. — Passing over the different species of guardian- ships discussed in the principal case, some of which have been either abolished by statute, have fallen into disuse, or have become of little practical importance, such as guardianship in chivalry, guardian- ship in socage, guardianship by custom, guardianship by the appoint- ment of the spiritual Courts, guardianship by election, and guarJian- (a) See Re Spence, 2 Ph. 247 ; Eeg. r. {d) Be Goldsworthy, 2 Q. 13. 1). 75 ; GjTigaU, (1893) 2 Q. B. p. 246; Tho- Be Ethel Brown, 13 Q. B. D. 614; masset v. T., (1894) P. p. 390 ; and also Be Agar- Ellis, 24 C. D. 317 ; Thoinas- WeUesley r. W., 2 Bligh, 136; Co. set v. T., (1894) P. 295, overruling Litt. 89 a. ; Ilargrave's note (70); 2 Blandlord r. B., (1892) P. 148. Fonbl. Eq. 224; Story, Eq. (1892) p. [e) Be MucGrath, (1893) 1 ("h. 143, 910; Simpson, Infants (1890), p. 146. C. A. ; and see Be Fynn. 2 Do G. & {b) Wellesley v. Beaufort, 2 Euss. Sm. p. 481; Be Spenco, 2 I'h. 247; 19 ; Beaufort v. Berty, 1 P. W. 702- Wellesley v. Beaufort, 2 Euss. p. 20. 796; Eeg. ?'. Gyngall, supra. _ (/) See Be Agar-Ellis, 24 C. D. p. (f) See judgment of A'a^, L.J., in 332; 7iV MacGrath, supra; Thomasset Eeg. V. Gyngall, (1893) 2 Q. B. p. 248 ; v. T., supra ; Wellesley v. Beaufort, 2 Thomasset v. T., (1894) P. p. 299; Euss. p. 21. Barnardo r. McIIugh, (1891) A. C. 398. (//) Thomasset v. T., supra. 49G GUARDIAN AND WARD. Eyre v. Countess of Shaftsbury. ship under stat. 4 & 5 Phil. & Mar. c. 8 (a), it may be laid down as indisputable law that the father is by nature and nurture the guardian of his legitimate cliildren, thous^h wards of Court, and is entitled to their custody and control until they are twenty-one years of age (b). And he may delegate part of his authoiity during his life to the tutor of his child, who is then in loco jxirentis (c). " The strict common law gave to the father the guardianship of his children during the age of nurture and until the age of discretion (d). Tlie limit was fixed at fourteen yesii's in the case of a boy and six- teen yeai'S in the case of a girl, but beyond tliis * * * the father had no actual guardianship except only in the case of the heir appa- rent, in which case he was guardian by nature till twenty-one * * * But for a great number of years the term 'guardian by nature ' has not been confined, so far as the father is concerned, to the case of heirs apparent, but has been used on the contrary to denote that sort of guardianship which the ordinary law of nature entrusts to the father, until the age of infancy has completely imssed and gone (e)." The father has the right to determine questions relating to the edu- cation and religious training of his child (/), and the child must, though the fatlier has died without leaving any directions, be brought up in the father's religion (r/), except where the welfare of the infant requires the rule to be disregarded, as where it is of sufficient a'Te to have received and formed, and has received and formed, other religious impressions (It) ; and neither the Guardian.ship of Infants Act, 1S86 (i), nor the Poor Law Act, 1889, affect (a) See the notes of Mr. Hargraves, Co. Litt. 88 b., and Simpson on In- fants (1890), p. 206. (i) See judgment of lirett and Boiven, L.JJ., Re Agar-Ellis, 24 C. D. pp. 326 and 336. (c) Simpson, Infants (1890), p. 120. (d) See further as to this, Reg. /•. Gyngall, (1893) pp. 250, 251; Re Agar-Ellis, 24 C. D. p. 326 ; Thomas- set V. T., infi-a ; Eeg. r. Lewis, 9 Times Eep. 226. (e) Per Boiven, L.J., ibid. p. 335 ; and S'^e Re Salisbury, 2 C. I), p. 31 ; Wuuif I'. Pemberton, 6 C. I). 19 ; Smart v. S., (1892) A. C. 425; E.n p. Hopkins, 3 P. W. 152, 154: Stileman ?;. Ashdown, 2 Atk. 480 ; Wellesley v. Beaufort, 2 Euss. 21 ; De MaDneville r. De M.. 10 Y. 52, 62; Thomasset V. T , (1894) P. p. 298. (/) As to religion, see especially Re McGrath, (1893) 1 Ch. p. 148; Re Newton, (1896) 1 Ch. 740, infra, p. 519; Re Clarke, 21 C. D. 821; Re Montagu, 28 C. D. 82; Re Nevin. (1891) 2 Ch. 299; Re Scaulon, 40 C. D. 200; Re "VMiite, 9 Times Eep. 575; Re Agar-ElHs, 10 C. D. 49, 24 C. D. 317, C. A. ((/) Talbot V. Shrewsbury, 4 Mv. & C. 672; Re North, 8 L. T. 309; Hawksworth v. H., 6 Ch. p. 542; Re Montagu, 28 C. D. 82. (7i) Re McGrath, Re Newton, suprn ; Re Besant, 11 C. D. p. 519, C. A. See Pai-t 5, p. 514. (/) See Re Scanlan, 40 C. I). 200. CUSTODY, MARRIAGE, ETC., OF INFANTS. 497 Eyre v. Countess of Shaftsbury. this rule (a). A father cannot release this right (h) nor bind himself to exercise it in a particular way (c), but after his death circumstances may arise which may lead the Court to consider whether the right has not been waived (d). As against their mother he may place the children w'ith another person (e), or put restrictions on their intercourse with their mother in a proper case, as where he believes that in the absence of such restrictions she would alienate their affection from himself (/), even when he is himself abroad (g), except where his paternal authority is controlled by the Court (Jt). The father, moreover, is entitled to judge not only what is for his children's benefit as regards the guardianship of their persons but also of their estates: it has been held, therefore, that he is ordinarily, assuming that ho has no interests hostile to the children, and has been guilty of no neglect or default, the proper person to conduct a suit on their behalf as next friend (i) ; and if the father be dead the nearest paternal relations are entitled to nominate the next friend (k). Where a person confers a benefit upon the father or upon the children for their maintenance, or otherwise, upon condition that the father give up the guardianship of them, if he accepts the benefit himself or commits the care of his children to the guardian nominated by the stranger, he will not be allowed afterwards to prejudice their interests by asserting his legal right, either by interfering with their education or enforcing the delivery up to him of their persons (l). Although a father can, before it is acted upon, rescind and abandon an agreement by which he has given up the custody of his child to a third person (on), yet if it could not be revoked without injuriously (a) See the Poor Law Act, 18S9, {rj) Be Emily Suttor, 2 Fost. & Fin 52 & 53 Vict. c. 56, s. 1, s.s. G; and 267. Simpson on Infants (1890), p. 131, note (/() Part 5, p. 514, iufra. {kj ; and cf. the Custody of Children (/) Woolf v. Pemberton, 6 C. D. 19, Act, 1891, s. 4, p. 533, infra. 22, 23. (h) Andrews v. Salt, 8 Ch. 636 ; The (A-) Talbot v. T., 17 Eq. 347. Queen v. Barnardo, 23 Q. B. D. p. 310. (/) Colston v. Morris, Jac. 227, n. ; (c) Ibid, and Jie Meades, Ir. L. R. 5 Potts v. Norton, 2 P. W. 109, u. ; Eq. 98. Blake v. B., Amb. 306; Powell v. {(i) Be Clarke, 21 C. D. p. 825. Cleaver, 2 Bro. Ch. 499 ; see also (ft) Ex p. M'Clellan, 1 Dowl. 81 ; Lyons v. Blenkin, Jac. 245 ; ^\jidrew3 Ex p. Glover, 4 Dowl. 291 ; Ex p. v. Salt, S Ch. App. 622 ; Fa(]uani i-. Skinner, 9 Moore, 278. Selwyn, Jac. 268, u. (/) lie Agar-EUis, 24 C. D. 317. (m) nill v. Gommc, 1 B. 540. W. & T. — VOL. I. 32 498 GUARDIAN AND WARD. iEyre v. Countess of Shaftsbury. from exercising the rights which at law he uudoubtedly retained (a). But the Court will not deprive a father of the custody of his children merely because a person makes an offer to maintain them, even although it might be for the benefit of the children that such offer be acceded to (6). Before the Custody of Infants Act (c), an agreement by a father to give up to his wife the custody and education of their children, was contrary to public policy, and would not be enforced in equity against the husband, even although he might have been guilty of adultery and cruelty to his wife (d) ; unless he had been guilty of such gross misconduct as totally to unfit him to have the custody and control of his children, as for instance, where he had criminally assaulted a daughter (e), but the law upon this subject was altered by sect. 2 of the last mentioned Act. The Court will not interfere with what has been well termed the "sacred right " of a father over his children (/), except under the circumstances mentioned in Part 5, p. 514, infra. Mights of Mother. — The father's right at common law to the control and custody of his legitimate children is, subject to the paramount con- sideration of their welfare {g), absolute as against the mother (A). If the father appointed testamentary guardians the mother had no right to interfere with them (/) ; but if no such guardian were appointed by the father, then the mother became guardian by nature and nurture (A'). And her right to the custody of her infant child is not lost by her allowing him to remain in a charitable institution for a little over a (a) Eeg. V. Smith, 22 L. J. Q. B. 117. {¥) Anon., Jac. 264 ; Re Fynn, 2 De Gr. & Sm. 457 ; Clavering v. Ellison, 3 Drew. 451. ((•) 36 & 37 Vict. c. 12, s. 2, infra, p. 531. {d) Hope V. H., 8 De G. M. & G. 731 ; Yansittart v. V., 2 De G. & J. 249. See further Hamilton v. Hector, 6 Ch. 701 ; Wahond v. W., 1 Johns. 18 ; Re Matthews, 26 B. 463. (e) Swift V. S., 34 B. 266. (/) Re Plomley, 47 L. T. (X. S.) !:S3, approved Re Agar-Ellis, 24 C. D. pp. 328-329. {g) Re Thomasset, (1894) P. p. 300. {h) Ex J). Skinner, 9 Moore, 278 : Ex p. Bartlett, 2 CoU. 661 ; Re Thomas, 22 L. J. Ch. 275 ; Simpson on Infants (1890), p. 120. (/) Eeynolds r. TejTiham. 4 Bro. P. C. 302 ; but see now Guardianship of Infants Act, 1886, s. 2, infra, p. 531. (A;) Yillareal v. Mellish, 2 Swans. 533 ; Mellish v. De Costa, 2 Atk. 14 ; Eoach r. Garvan, 1 V. 158; Mendes v. M., 1 V. 91 ; The Queen r. Clarke, Rv AHcia Eace, 7 EU. & Bl. 186; Re Moore, 11 Ii\ C. L. 1 ; and see Re D'Ai-cys, lb., p. 298; see the Guar- dianship of Infants Act, 1886, s. 3, infra, p. 532. CUSTODY, MARRIAGE, ETC., OF INFANTS. 490 Eyre v. Countess of Shaftsbury. vear (a). But if a wife is divorced for adultery, she, by sect. 35 of the Divorce Act (6), may, at the discretion of the Court, be deprived of the custody of, and of access to, her children (c) ; and the discre- tion of the Court may be exercised after decree (d). If the child is illegitimate the mother has a prima facie, not an absolute right (e), to its custody up to the age of fourteen in preference to the reputed father, or any other person (/),and this right must be recognised, unless there are strong grounds for displacing her {()). 3. Wards of Court. 1. Generally. — The term " ward of Court " is used to express either that a person is under the care of a guardian appointed by the Court, or that an infant is under the care of the Court of Chancery by reason of such infant being either actually a party to an action in which the property of the infant is being administered, or being in the position of a party (//,)• An order made on summons, or petition for a guardian {i); or for maintenance {h) ; or payment into Court of the fund of an infant under the Trustee Relief Act (/) ; or money paid to the separate account of an infant in an administration action to which the infant was not a party will make the infant a ward of court {ra). But the jurisdiction exists from the fact that the infant is a British subject, and not from the fact of there being property under control of the Court {n), therefore wdiere such an infant is an alien, the Court on a petition by the infant alien for payment out will not require a settlement, but will {a) Reg. V. Barnardo, 23 Q. B. D. p. 36 Sol. Jo. 255; Eeg. v. Lewia, 9 Times 310; 24 Q. B. D. 283. L. E. 22G ; Ex p. Emerson, 11 Times (6) 20 & 21 Vict. c. 85. Eep. 218; and see the Cnstody of ((■) Handley v. H., (1891) P. 124; Childi-en Act, 1891, infra. Witt r. W., ib., p. 163. (A) Marquis of Bute, 9 H. L. C. 440 : {(l) Manders /■. M., 7 Times L. R. Brown v. Collins, 25 C. D. 60; Gynn 142. V. Gilbard, 1 Dr. & Sm. 356 ; 7?e Leigh, (e) Re UUee, 53 L. T. 711 ; 54 L. 40 C. D. 290. T. 286; Barnardo *'. McIIugh, infra. (/) Stuart v. Bute, 9 II. L. ('. 410. (/) Barnardo v. McIIugh, (1891) (/,•) Bp Graham, 10 Eq. 530. A. C. 38cS ; Rr White, 10 L. T. 349 ; Reg. (/) Re Benand, 16 W. R. 538. r. Nash, 10 Q. B. D. 454; AV Taylor, {m) De Pereda v. De Mancha, 19 4 C. D. 157; Seton (1893), p. 879. C. D. 451, hut see Brown r. Collins. (/y) Re Carey, 10 Q. B. D. 454 ; The 25 C. D. p. 62. Guardians of St. Maiy Abbott's, 4 [u) Brown v. Collins, supra ; Re Times L. E. 63; Reg. v. Bolton Union, McGrath, (1893) 1 Ch. 143. 82 2 500 GUARDIAN AXD WAED. Eyre v. Countess of Shaftsbury. pay it to the person proved to be entitled to receive it according to foreign law (a). Although the Court has a discretion in the matter (b). But payment in of an infant's legacy under the Legacy Duty Act (c), or of purchase-money under the Lands Clauses Act, belonging to an infant (d), or an order approving a settlement under Infant Settle- ments Act (e), does not constitute the infant a ward of court (c), nor does an order under the Divorce Act, 1857, s. 35 (/). Taking Ward out of the Jurisdiction. — See p. 523. 2. Marriage of Ward., &c. — A male infant may contract marriage at 14, a female at 12 (r/). — Under the Marriage Acts {h), tlie consent to the marriage of an infant must be given by the father, or if he be dead, by the guardians or one of them, and if there be none, by the mother if unmarried, and if not by the guardians appointed by the Court of Chancery or one of them ; and such consent is required for the marriage of such a party so under age, unless there be no person authorised to give such consent (i). And although the infant has no property, a guardian for the pur- pose of giving consent may be appointed by the Court of Chancery on petition, as where the father and mother are dead and there is no guardian (k), or if the father, guardian, or mother be nan coiwpos or beyond seas, or unreasonably refuse to consent to the marriage (l). When a marriage takes place, the law presumes that it was with due consent till the contrary appear {ni), and after a considerable lapse of time a presumption arises that consent has been given. That pre- sumption, however, may be rebutted by evidence to the contrary {n). It is to be noticed that the consent required by sect. 16 of 4 Geo. 4, c. 76, is directory merely, and a marriage without such consent is valid (o). As to the penalties in the case of the marriage of persons under age without proper consent when the licence or the publication of (rt) Brown v. Collins. 25 C. D. 56. {}>) Ibid, and Hope v. H., 4 De G. M. & G. 328, 345. (c) Re Hillary, 2 Dr. & S. 461. (d) Re Wilts,' &c. R. Co., 2 Dr. & S. 552. (e) Rt Strong, 26 L. J. Ch. 64. (/) Hyde v. H., 13 P. D. 166. {(j) Simpson (1890), 87; 2 StepL Com. p. 241. {h) 4 Geo. 4, c. 76, and 6 & 7 Will. 4, c. 85; Simpson (1S90), p. 123. (0 See s. 16. (A-) Re Woolscombe, 1 Madd. 213 ; Ex p. Becher, 1 Bro. Ch. 556. (0 4 Geo. 4, c. 7(), s. 17. {m) Balfour v. Carj^enter, 1 Phill. Ecc. E. 221 ; Osborne v. Goldham, Selby r. S., lb. 223. {n) Harrison v. Mayor of Southamp- ton, 22 L. J. Ch. (N.'S.) 722. (o) Reg. V. Birmiiigham, 8 B. & C. 29, 2 Man. & Ry. 230. CUSTODY, MARRIAGE, ETC., OF INFANTS. 501 Eyre v. Countess of Shaftsbury. the banns lias been procured by false swearing or fraud, see 4 Geo. 4, c. 70, ss. 23, 24. As to the same penalties being extended by the Marriage and Registration Amendment Act, 1856 (a); in the case of a marriage before a registrar had by means of any false declaration, notice, or certiticate (6). Where the infant is not a war.! of Court, the Court can do nothing unless jurisdiction be given it by an application before marriage (c). In the case of wards of Court, even when they have parents living, or guardians, it is uecessary to apply to the Court for leave for them to marry, which will only be granted upon its appearing that the marriage is suitable as to age and rank, and that the settlement pro- posed is proper (c/j. The Court will prevent a clandestine marriage, bv ordering that the ward shall not be married without leave of the Court, and that the person desirous of marrying the ward shall not have access, by letter or otherwise (e). It will likewise restrain the guardian or father from allowing the marriage to take place (/). If the Court considers the proposed marriage unsuitable, it makes no difference that the guardian has given his consent (g), or seruhle the father either (It). It is the duty of a guardian to prevent an unfitting marriage (i), and if he connives at such a marriage tlie Court will commit the ward to the care of others {k). Formerly there was a disinclination on the part of the Court to sanction the marriage of an infant ward, where it was impossible for him by reason of his infancy to settle his real estate so as to go along with his title, and to make a provision for his younger children (I). {'. Pemberton, 1 De G. & Sm. B. 292 ; Birkett v. Hibbert, 3 My. & 644. K. 227 ; Baseley v. B., 4 CI. & Pin. {h) Duncan v. Dixon, 44 C. D. 211. 378 ; AVortbain r. Pemberton, 1 De G. ((•) Stevens v. Trevor - Garrick, & Sui. 644 ; Martin r. Foster, 7 De G. (1893) 2 Cb. 307 ; Hancock v. H., 38 M. & G. 98; Gynn v. Gilbard, 1 Dr. & C. D. 78. Sm. 356; i?e Tweedale's Settlcmout, (fZ) Edes r. Brereton, West., Cas. t. Johns. 109, 111; Be Sampson and Hardw. 348. Wall, 25 C. D. 482. (e) Herbert's Case, 3 P. W. 116; (/) Brummell /•. McPherson, 7 V. Hill V. Tiirner, 1 Atk. 515; More v. 237; 7?^ Strong, 5 W. R. 107; 26 L. J. M., 2 Atk. 157 ; Butler v. Freeman, Cb. 64. Amb. 301 ; Stevens v. Savage, 1 V. (/;) Butler v. Freeman, Amb. 301. jun. 154; Stackpole r. Beaumont, 3 V. [ji) Salles r. Savignon, 6 V. 572; 89; Wincb v. James, 4 V. 386; Batburst v. Miu-ray, 8 V. 74; Re Priestley /•. T^amb, 6 V. 420 ; Millet r. Walker, L. & G. t. Sugd. 299. Eowse, 7 V. 419 ; Pearce v. Crutcb- (/) Warter v. Yorke, 19 V. 453. 504 GUAKDIAX AND WARD. Eyre v. Coujitess of Shaftsbury. meantime be restrained, and if it be found that the marriage of a ward is invahd, a valid mamage will be ordered (a). In one case where a Tnale ward had been led into a marriage dero- gatory to his rank, which turned out to be invalid, a different practice was adopted. Thus, in Warter v. Yorke (b), although it appeared that a woman who had gone thi'ough the ceremony of marriage with an infant ward of the Court, was pregnant. Lord Melon, upon the Master's report, pronounced an order, that, on the part of the infant, a suit should be instituted in the Ecclesiastical Court, for nullity of the marriage, at the expense of the infant's estate, and the parties to the transaction were to be restrained from all intercourse, personal, by correspondence, or otherwise, with the infant (c). It seems that, although the parties contriving or assisting at a marriage are not aware that the infant is a ward of the Court, their ignorance, although it may be urged in mitigation of the offence (d), Avill not be sufficient to acquit them of contempt of Court (e). In Salles V. Savignon (/), although the bill, the object of which was to make the lady a ward of the Court, was only filed on the. day of her marriage. Lord Eldon held, that the marriage in fact was sufficient to ground a contempt of Court. Although the communication of the fact of a contempt having been committed by the marriage of a ward of the Court be not made to the Court until some years after the marriage, there is no doubt but that the Court has jurisdiction, and may feel it a duty to punish that contempt ig). " Yet it would not," Lord Eldon there observes, " be a very wholesome exercise of discretion to visit that offence strongly, if, upon attention to circumstances that have occurred in the course of six, seven, or eight years, it is not very strongly called upon to vindicate the jurisdiction ; and in these cases, where it is exercised really for the benefit of the party, the Court ought to look with great attention to all the circumstances of each case " (h). And the Court has restrained proceedings taken in the Ecclesias- tical Court against the ward or his guardian in alimony and resti- (a) Bathurst v. Murray, 8 V. 74; (e) Mr. Herbert s Case, 3 P. W. 116. Jie Walker, L. & G. t. Sugd. 299 ; Be See King v. Harwood, 2 Lev. 32, 1 Murray, 3 D. & War. 83 ; Be Wood, Vent. 178 ; Nicholson v. Squire, 16 V. Seton (1893), 900. 259; Mastin v. Foster, 7 De G. M. & (b) 16 V. 451. G. 98. (c) And see Batlmrst v. Murray, 8 (/) 6 V. 572. V. 74. ' (g) Ball V. Coutts, 1 V. & B. {d) More v. M., 2 Atk. 157 ; S.C., 302. ]5arn. C. 404. {h) Ibid. CUSTODY, MARRIAGE, ETC., OF INFANTS. 505 Eyre v. Countess of Shaftsbury. tutiou of Conjugal rights by a person who married the ward in Contempt of the Court («). The punishment for the contempt of Court by marrying or aiding in the marriaoe of a ward of the Court, is, as before observed, com- mitment to prison, by way of punishment ; and in the principal case Lady Shaftsbury being a peeress, a sequestration was issued against her. It would seem, therefore, that privilege of Parliament wnll not shield a person from being committed for contempt of Court (6). Prosecutions for conspiracy or perjury for making a false declaration as to age or consent may also be directed (c). Punishment, however, for the offence is not the only object of the commitment, as it is frequently made use of by the Court as the means of compelling the husband to make a proper settlement (d) ; and an inquiry may be directed as to whether the marriage was valid, what was the fortune of the infant ward, and what would be a proper settlement (e) ; and where there are onitigatinr/ circumstances, the husband, upon petition, undertaking to make a settlement approved of by the Court, may obtain his discharge (/). But in a flagrant case, he will not be discharged, upon his offering to execute a proper settlement until the Court considers him sufficiently punished ({/) ; nor, if the Court has ordered that he should be indicted for a conspiracy in procuring the marriage (Ji) ; at any rate, until he has either been acquitted, or upon being found guilty, has suffered punishment (i) ; and in general the husband in such cases will not be discharged until a certificate that the marriage is valid has been produced, and a proper settlement has been executed, and costs paid by him (A;). But, as Mr. Simpson observes (l), the power of the Court is now considerably hampered, for the adult husband, in marriages made on and after January the first, 1883, can no longer effect a valid settle- («) Hill V. Turner, 1 Atk. olo. 154 ; Stackpole v. Beaumont, 3 V. 89 ; (6) See Mr. Long Wellesley's Case, Seton (1893), Form 16, p. 89y. 2 Euss. & My. 639 ; Ex p. Miichell, 2 {g) Bathur^t v. MiuTuy, 8 Y. 79 ; Atk. 172 ; Rr Armstrong, (1892) 1 Baseley v. B., 4 CI. & Fin. 378. Q. B. p. 328. [h) Priestley v. Lamb. V. 424. (c) Ball V. Coutts, 1 V. & B. 292; (j) Millet v. Eowse, 7 Y. 419. Wade V. Broughton, 3 V. & B. 172; {k) Field v. Brown, 17 B. 146; Millet '•. Bowse, 7 Y. 419; Cox v. Stevens v. Savage, 1 Y. jun. 154; Bennett, 22 W. E. 819. Millet v. Eowse, 7 Y. 419; Cox v. (f/) Ball r. Coutts, 1 Y. & B. 300. Bennett, 22 W. E. 819; Seton (1893), (<) See Buckmaster v. B., 35 C. D. Form 18, p. 899. p. 22, affii-med 13 App. Cas. 61. (/) Simpson, Infants (1890), pp. 344, (/) Stevens v. Savage, 1 Y. jun. 345. 506 C4UARDIAN AND WARD. Eyre v. Countsss of Shaftsbury. merit of the infant wife's property («), and by recent decisions it is clear that there is no jurisdiction to compel a ward to make a settle- ment {!)), whilst it is doubtful to what extent there is jurisdiction to order a post-nuptial settlement (c). If a ward enters into an engagement and the intended husband gives an undertaking to abide by the orders of the Court, and the marriage is intentionally postponed until the lady becomes of age, the Court cannot interfere either with the lady or her property (d). Settlement on Marriage of a Ward of Court. — Where the mar- riage takes place hy the leave of the Court, a settlement will be directed to be made. It is difficult to lay down any rule upon the subject, as so much depends upon the circumstances of the parties, and, as Turner, L.J., said in Martin v. Foster {e), " the Court will give its sanction to any arrangement such as a prudent father would approve of" As a rule the husband would take the first life-interest in his own property, and the wife the first life- interest in hers to her separate use, with- out power of anticipation. Then provision would be made for the issue of the marriage, and, in default of issue, the husband's property is limited to himself absolutely, and the property of the wife, if she survive her husband, to her absolutely, but if she dies in his life-time, according as she shall appoint by will, and in default of appointment to her statutory next-of-kin. It is now general to give the wife a power of appointment whether she survive the husband or not (/). If she be illegitimate and so have no next-of-kin, the ultimate limi- tation will be to her absolutely {g). Provision should also be made for the children of a second marriage (/i). Formerly if a female ward, of age, made a settlement without the leave of the Court, the Court nevertheless still considered her under its protection, and would inquire, if necessary, whether the settlement was a proper one (i). And where proposals for a settlement on the mar- riage of a ward had been entertained by the Court, the parties were not allowed to defeat the intention of the Court, by deferring the marriage until the ward came of age and then entering into fresh («) See The Married Women's P. Smith v. IliS, 20 Eq. 666. Act, 1882; Simpson (1890), p. 33. (,). As to the exception of Popish recusants ; Roman Catholic and other disabilities are now removed (c), and it seems that the religious tenets of the person appointing, and of the persons appointed, testa- mentary guardians, will not be any obstacle to the validity of the appointment. Thus an appointment by a Jew (d), or of a Roman Catholic, though an ecclesiastic in England (e), or in Ireland (/), or of a dissenter (g), will be valid. And although the Court would allow the appointment of members of a firm individ'ually as guar- dians, it will not recognise the appointment of a firm, as " the house of Messrs. A. B. and C," in that capacity (A). The mother may be appointed testamentary guardian (l). A father, moreover, may appoint a person to be guardian upon the happening of some future event (k), but if the event do not take place the person so appointed will not be guardian. Thus, a man appointed his wife guardian of his son, and added that if his wife married again before his son attained twenty-one, from thenceforth he appointed his brother sole guardian. The wife, not having mar- ried again, died before the son attained twenty-one, and it was held that the brother could not be guardian (l). If au unmarried woman be appointed, and afterwards marries, the husband is not guardian, nor is the guardianship forfeited by his misdemeanour (to) ; but if the infant be a ward of Court, the Court may inquire what ought to be done {ii). (ft) Peckham v. P., 2 Cox, 40 ; Ward 5^8. V. St. Paid, 2 Bro. Ch. 583. (e) Talbot /•. Shrewsbury, 4 ^ly. & {b) Ord V. Blackett, 9 Mod. IIG. C. 673. (c) See as to Popish recusants, 3 (/) Ee Byrnes, 7 Ir. R. C. L. 19!). Jac. 1, c. 5; 25 Car. 2, c. 2, s. 5, {g) Corbett v. Tottenham, 1 Ball e'c repealed by 7 & 8 Vict. c. 102 ; 26 & B. 59. 27 Vict. c. 125; the E. C. Emaucipa- (h) De Mazar r. Pybu.-?, 4 V. 047. tion Act, 10 G. 4, c. 7. As to persons (/) See Selby v. S., infra, denying the Trinity or the Chi-istian (A) Selby v. S., 2 Eq. Ca. Abr. 488. religion, .see 9 & 10 Will. 4, c. 32, (?) Selby v. S., supra, repealed as to the Trinity, 53 G. 3, c. {m) Com. Dig. Guardian. E. 2. 160; and see Simpson, Infants (1890\ (h) Jones r. Powell, 9 B. 345; ]). 218. Simpson, Infants (1890), p. 223. [d) Villareal v. MeUish, 3 Swans. 512 GUARDIAN AXD WARD. Eyre v. Countess of Shaftsbury. By the Statute of Wills (a), the power of making a will is taken away from an infant, who can, therefore, now only appoint a guardian for his children by deed. No particular form of Avords is essential for the appointment of guardians. Thus, where a testator desires " his son and daughter to be under the care and direction of A. B. and C. D." (6), or directs M. to " take the care and management of B. house, and my children " (c), they will be held to have been properly appointed guardians under the Act (d). But, where a testator devises his land "to A. B. during the minority of his son and heir in trust for his heir, and for his main- tenance and education until he be of age " (e), or appoints A. B. to " be guardian of the estate " of his infant children (/), A. B. will not thereby be constituted a testamentary guardian. An appointment of a guardian by deed is said by Eldon, C, " to be only a testamentary instrument in the form of a deed or will" (g), and may be revoked by a will {II). But a testamentary appointment of guardian is not revoked by a subsequent informal appointment of others (i), or by a codicil, by which the care, charge, and education of the children is left to another (k), and where persons are trustees and guardians, although the trusteeship may be revoked, they will still remain guardians {I). The office of testamentary guardian, where there are more than one, o-oes to the survivor (see the principal case), and it has been recently decided, that sect. 8 of 12 Car. 2, c. 24, sanctions a father in o-ivino- authority to a surviving guardian to nominate a person in the place of one who has died {m). A o-uardianship, however, as is laid down in the principal case, is not assignable {a). (a) 1 Vict. c. 26, s. 7. \h) Bridges v. Hales, Mos. 108, and see Teynham v. Lennard, 4 Bro. P. C, Toml. ed. 302, where the appointment was by parol, but see the s. 8, supra, and He Matthews, 12 Ir. C. L. 233. Simpson, Infants (1890), p. 217. (c) ISliller v. Harris, 14 Si. 540. (d) See also Mendes v. M., 3 Atk. 619 ; Re Park, 14 Si. 89 ; but see Ed- wards V. Wise, Barn. C. 139. (e) Bedell c. Constable. Yaugh. 184- [f) Re Lord Norbury, 9 Ir. Pt. Eq. 134. [(j) Ex p. Ilchester, 7 V. 367. (/i) Shaftsbury v. Hannam, Cas. t. Pinch, 323. (?■) Ex p. Hchester, supra. (/v) Hare v. H.. 5 B. 629, and see Knott V. Cottee, 2 Ph. 192. {I) Re Park, 14 Si. 89. (m) Re Parnell, 2 P. & D. 379. (n) See also Mellish v. De Costa, 2 Atk. 14 ; Eeynolds r. Tenham, 9 Mod. 40 ; ViUaxeai v. Mellish, 2 Sw. 536. CUSTODY, MARRIAGE, ETC., OF INFANTS, 513 Eyre v. Countess of Shaftsbury. Testamentary guardians, before acting, may disclaim (a), but if they have once acted, they cannot renounce (h), although where there is no charge against them, they may be removed with their consent (c), and the Court may appoint other persons as quasi guardians to have charge of the infant until further order (d). Where a will contains simply an appointment of a guardian but no disposition of personal property, or an appointment of an executor, it is not entitled to probate (e). A testamentary guardian will not be disabled from exercising the oflfice from having been a witness to the execution of the deed by which he was appointed (/). A testamentary guardian of minor children is entitled to a grant of administration for their use and benefit, preferably to a guardian elected by the children, and a grant made to the latter will be revoked, and a fresh grant made to the testamentary guardian (g). A testamentary guardian is a trustee by construction, not by name, of all property which comes into his hands as guardian (h), and there- fore the Statute of Limitations is (^) inapplicable to accounts as between him and his wards (k). They may, however, lose all right to make any claim against him or his estate by acquiescence (l). The guardianship may be appointed to last until twenty-one, or for any less time (m). If no period is mentioned for its duration, it will last during minority {n). It is not determined, as was decided in the principal case, by the marriage of a male infant. In Mcndes V. M. (o), Lord Hardivicke is reported to have said that the marriage of a female ward would determine the guardianship, but this dictum does not appear in the case as reported in 3 Atk. C24, and in another case the same Judge held that the guardianship of a person (a) O'Keeffe v. Casey, 1 Sch. & L. (A) Sleeman v. Walker, 13 Eq. 36 ; 106. and see Ee Agar-Ellis, 24 C. D. p. (b) Spencer v. Chesterfield, Amb. 332. 146. (0 Cf. Judicatm-e Act, 1S73, s. 25, (c) Ee McCullochs, Dr. 276. s.s. 2 ; and the Trustee Act, 18S8, s. 8, {(1) Spencer c. Chestei-field, Amb. {k) Mathew v. Brise, 14 13. 341. 146 (/) Sleeman v. Wilson, 13 Eq. 36. (e) Lady Chester's Case, 1 Vent. (ni) Vaugh. 184, Simpson, Infants 207; Ee Morton, 12 W. E. 320; (1890), p. 220. Gilliat V. G., 3 Phill. 222. (n) Mendes v. M., 1 V. 91 ; but see (/) Morgan v. Hatchell, 19 B. 86. Vaugh. 184, 185. Ig) Ee Morris, 2 Sw. & Tr. 360. (o) 1 V. 91. W. & T. — VOL. I. 33 514 GUARDIAN AND WARD. Eyre v. Countess of Shaftsbury. appointed by the Court of Chancery did not determine by marriage of a female ward (a). No power was given to the mother under the Statute of Charles of appointing a testamentary guardian (b), and the appointment of one by her husband supersedes her guardianship by nature and nurture. But, although a mother had no legal power by will to appoint a guardian for her children, yet the Court had regard, in the appoint- ment of a guardian, to the expression of her wishes, especially when there has been a similar indication to those of the father (c). With respect to the real estate of his ward a testamentary guardian had no estate, but only certain undefined powers (d), but under the Settled Land Act, 1882, s. 60, such powers may be exercised by the trustees of the settlement, or, if there are none, then by the Court, on the application of the testamentary or other guardian. 5. Jurisdiction of Court. Over Father. — " The law of England has recognised the natural rights of a father, not as guardian of his children, but as the father, because he is the father. * * The father has greater rights than the testamentary or any other guardian. These are sacred rights because the duties of a father are sacred duties" (e). "The Court must not be tempted to interfere with the natural order and course of family life, the very basis of which is the authority of the father, except it be in those special cases in which the State is called upon, for reasons of urgency, to set aside the parental authority, and to intervene for itself" (/). For as parents are entrusted with the custody of the per- sons and the education of their children, upon the presumption that the children will be properly taken care of, will be brought up with due education, and will be treated with kindness and affection, when this presumption is removed by the conduct of the parents, the Court will interfere, and will appoint a suitable person as guar- dian (g), or, if the father be living, to act as guardian (h). (o) Eoacli V. Garvan, 1 Y. 160; 24 C. D., pp. 328-329, approving Be Jones V. Powell, 9 B. 345, {h) See now Guardianship of Infants Act, 1886, s. 3, p. 532, and judgment of Eekewich, J., in. Re G , (an infant) (1892) 1 Ch. 292. (c) Be Kaye, 1 Ch. 387. {d) Simpson, Infants (1890), p. 223; citing Gardner v. Blanc, 1 Ha. 381. {p) Per Brdt, M.E., Re Agar-Ellis, Ploniley, 47 L. T. (N. S.) 284. (/) Per Boiuen, L.J., in Re Agar- Ellis, 24 C. D., p. 335. Cf. Smart '■. S., (1892) A. C. 425. ((/) See Storj^ Eq. (1892), p. 920 ; and judgment of James, L.J., in Re Agar- EUis, 10 C. D. 71. (h) See Ex p. Mountfort, 15 V. 446. CUSTODY, MARRIAGE, ETC., OF INFANTS. 515 Eyre v. Countess of Shaftsbury. The High Court will not exercise this delicate and difficult juris- diction unless and until it is " satisfied not only that it has the means of acting safely and beneficially, but also that the father has so conducted himself, or has shown himself to be a person of such description, or is placed in such a position, as to render it not merely better for the children, but essential to their safety or to their welfare in some very serious and important respect, that his rights should be treated as lost or suspended, — should be superseded or interfered with " (a). But it is impossible to state " in other than elastic terras, the grounds on which the Court should think fit to interfere " (h). ■ " The course of legislation shows distinctly a growing sense tliat the power formerly accorded by law to fathers of families was excessive, and that the welfare of the children, now recognised as the paramount consideration (c), required that it should be cut down " {). The clandestine removal of a ward of Court from the custody of the person with Avhom such ward is residing, under the authority of the Court, is, in its nature, a criminal attempt (66). Tlius in Wellesley v. Duke of Beaufort (c), a member of the House of Commons who had carried off his infant daughter, a ward of the Court, from the house of the ladies under whose care she had been placed by the guardians appointed by the Court, and who, on being personally examined by the Court, admitted the fact, and refused to state the present residence of his daughter, was ordered to be committed to the Fleet, although he was not a party to the suit. It is a contempt of the Court to remove an infant out of the jurisdiction, even when he has enlisted in the army, without the leave of the Court {d) ; but where it appeared to be beneficial to the infant, he has been allowed to remain in the army (e). As it is obviously impossible for the Court of Chancery, with the number of wards which it has under its care, to be aware of their conduct, it requires the guardians, from time to time, to give general information of what is taking place. If, for instance, a ward of the Court goes out of the jurisdiction, or from extravagant habits gets into difficulties, it becomes the duty of the guardians at once to apply to the Court in Chambers, where such assistance will be afforded as will extricate the ward from his difficulties (/). A solicitor is bound to give to the Court any information which may lead to the discovery of the residence of a ward of the Court, whose residence is being concealed from the Court, although such information may have been communicated to him by his client in the course of his professional employment. Therefore, where the mother of wards of the Court had absconded with the wards, her solicitor was ordered to produce the envelopes of letters which he had received from her as her solicitor, with the object of discovering her residence from the postmarks (g). {a) See Be Callaglian, 28 C. D. 186 ; Be Montagu, 28 C. D. 82. (&) See Jackson v. Hankey, cited as Anon., Jac. 265 ; Simpson (1890), 158 ; Campbell r. Mackay, 2 My. & Cr. ; Be Clarke, 21 C. D. p. 830. (bb) As to privilege, of. Be Gent, 40 C. D. 190; as to appeal, O'Shea v. O'S., 15 P. D. p. 62. ((•) 2 Euss. & My. 639. (. 118; Stevenson r. Abington, 11 "W. Branton, 3 Mer. 117. E. 935. (e) Paget r. Haywood, cited 1 Atk. W. & T.— VOL. I. 3G 562 HUSBAND AND WIFE. Scott V. Tyler. 5. Limitations until Marriage as Distinguished from Conditions. Although iu some respects a conditioD and a limitation may have the same effect, yet in English law there is a great distinction between them (a). The Court should first determine whether the par- ticular gift by way of limitation is the subject of a condition, and then apply the law (6). The distinction does not apply to real estate (c). Where property is limited to a person until marriage, and upon marriage tlien over, the limitation is good. " It is difficult," says Wigram, V.-C, "to understand how this could be otherwise: for in such a case there is nothing to give an interest beyond the marriage. If you suppose the case of a gift of a certain interest, and that interest sought to be abridged by a condition, you may strike out the condition and leave the original gift in operation ; but if the gift is until marriage, and no longer, there is nothing to carry the gift beyond the marriage " (d). In Heafh v. Leivis (e), a testator bequeathed an annuity to a single lady (if living and unmarried at the death of a prior annuitant) "durins: the term of her natural life, if she shall so long remain unmarried : " it was held by the Lords Justices to be a limitation as distinguished from a condition, and that the annuity ceased when the lady married. No gift over is required in the case of a limitation as distinguished from a condition. In lie Moore (/), a testator directed his trustee to pay to his sister " M.," "during such time as she may live apart from her husband, before my son attains twenty-one years, the sum of 21. 10s. per week for her maintenance whilst so living apart from her husband." M. and her husband were married some years before the date of the will and never lived apart until some time after the death of the testator. The testator's son was living and an inl'ant. Held on a full consider- ation of the cases that this was a limitation of weekly payments during a specified time, and not a legacy subject to a condition precedent or subsequent, and that the object of the limitation being to induce M. to live apart from her husband it was void (g). (a) Per Cotton, L.J. in Be Moore, 39 369 ; Bird v. Ilunsdon, 2 Swans. 342 ; C. D. p. 129. Marples v. Bainbridge, 1 Madd. 590; (h) Per Kay, J., Be Moore, 39 C. Evans v. Eosser, 2 Ilem. & M. 190. D. p. 119. (ft) 3 De G. M. & G. 9o4. {(■) See Jones v. J., p. 559, supra. (/) 39 C. D. 116. {(l) Morley v. Eennoldson, 2 Ha. {;/) And see "Webb r. Grace, 3 Pli. 580. See also Jordan v. Holkbam, 701, intra, p. 563; Heath v. Lewis, 3 Amb. 209 ; Barton r. B., 2 Vern. 308 ; De G. M. & G. 954 ; Evans v. Eosser, 2 Low V. Peers, C. J. Wilmot's Cases, Hem. &M, 190; Eochford y. Hackman, CONDITIONS IN RESTKAINT OF MARRIAGE. 563 Scott V. Tyler. A limitation over is valid not only in the case of the marriage of a widow (a), but also in the case of a Avidower (6). A gift to an unmarried person cannot be construed to mean a gift to that person so long as he shall remain unmarried. If, therefore, a testator makes a bequest to liis unmarried children and a child became entitled to participate in the bequest by filling the character of an unmarried child, such child will not lose that right by a sub- sequent marriage (c). And where there is a contract to pay a certain sum until martiage, with a proviso that a smaller sum is to be paid afterwards, the limitation will hold good. Thus in Webb v. Grace (d), A. cove- nanted to pay to E. C. during her life, subject to the proviso therein- after contained, an annuity of 40Z., the proviso being that in case E. C. should at any time thereafter happen to marry, the annuity should thenceforth be reduced to 20^. only, which sum should, in such case, be paid and payable to E. C. from the time of her marriage for the remainder of her life. E. C. having married. Lord Cottenham, reversing the decision of Shadwell, V.-C. (e), held her only to be entitled to the annuity of 201. " The question," said his Loi'dship, " turns upon the construction of the covenant ; for there really cannot be any doubt as to the rule of law. The questions which have arisen as to conditions subsequent in restraint of marrying do not appear to me to apply. There can be no doubt that marriage may be made the ground of a limitation ceasing or commencing. It is unnecessary to refer to authorities for this purpose : Richards v. Baker (/), Sheffield v. Orrery (g), Gordon v. Adolphus (h), were cited in the argument. If, then, this grant is a grant of 40/. per annum until marriage, and, from that event happening, of 20/. per annum for life, there can be no doubt but that sucli a gift is lawful, and that, after marriage, there can be no demand for the 40/. per annum. The claim is grounded upon contract and obligation on the part of the grantor ; the parties claiming must therefore prove that their claim is within the terms of the contract and obligation Is there, in i) Ha. 475; Brown v. Peck, 1 Eden, Hall v. Eobertson, 4 De G. M. & G. MO ; Wren v. Bradley, 2 De G. & Sm. TNI. 4!); whicli were considered in i?e Moore; ('/) 2 Ph. 701. See Jones r. J., iind see Potter v. Eichards, 24 L. J. p. oo9, supra. Oh. 488, and cf. Corbett v. C, 14 P. & (e) 15 Si. 384. D. 9. (/) 2 Atk. 321. (n) Jordan c. Ilolkham, Amb. 209. (r/) 3 Atk. 282. [h] Allen v. Jackson, 1 C. D. 399. (h) 3 Bro. P. C. 306, Toml. edit. (e) Jubber r. J., 9 Si. 503. See also 36 2 564 HUSBAND AND WIFE. Scott V. Tyler. the covenant, any contract or obligation to pay 40i. per annum after the marriage of E. C. ? The argument in favour of the claim assumes that there is an unqualified grant of an annuity of 40L per annum for life, and an attempt to defeat the gift by an illegal condition subsequent. This proposition, I think, fails in all its parts : for there is not any unqualified gift of an annuity of 40^. for life ; the contract and obligation is, to pay to E. C. during her life, subject to the proviso hereinafter contained, an annuity of 40^. at certain times specified. The contract and obligation is not absolute and unquali- fied, but explained, qualified, and bound by the proviso, and must be construed precisely in the same manner as if the terms of the proviso had been introduced into and made part of the contract and obliga- tion. It is, therefore, to pay 40^, per annum to her during so much of her life as she shall remain unmarried, which brings the case within the unquestioned rule of law, as acted upon in the cases referred to. One of them, indeed, — SJiejffield v. Orrery — is, upon this point, stronger than the present ; for there was a gift for life, without any qualification in the terms of the grant, but a subsequent condition, giving the property over in the event of marriage ; and Lord Hardwicke said, that the gift over was to take efifect on the marriage. There is another way in which this may l)e viewed equally fatal to the claim. The contract and obligation is, to pay a certain sum at certain stipulated periods during the life of E. C. ; but she is, by the proviso, at each of those periods to be qualified to receive it by the fact of not being married. Can she claim any of such payments, though disqualified by the fact of marriage ? The condition, therefore, if there be one, is precedent and not subse- quent " (a). A limitation over on marriage, if the marriage be with the testator himself, will not take effect, at all events, if the will be republished after the marriage, as the limitation would then, it seems, have reference to a subsequent marriage. Thus in Cooper v. G. (b), a testator by his will, dated in 1841, devised lands to trustees upon trust for B. for life, " provided she does not marry, and from and after her decease or second marriage," for other persons. In 1847 the testator married B., and afterwards made a codicil to his will which had the effect of republishing it. It was held by Lord Chancellor Brady, that the devise to B. took effect notwithstanding her mar- riage to the testator (c). (a) Cf. Be Moore, supra, ix 562. Ii-. Jm-. 31G; "West v. Kerr, 6 Ii-. Jiir. (&) 6 Ir. Ch. E. 217. 1-il ; M'Culloch v. M'C, 3 Gif. 606. (c) See also lie Corkers, ;Minors, 1 CONDITIONS IN RESTRAINT OF MARRIAGE. 565 Scott V. Tyler. Where the object of a devisor appears to be, not to restrain marriage, but to provide for a single woman while she is unmarried, a gift over upon her marriage will take effect, and the question as to whether the clause containing such gift amounts to a condition or a limitation is immaterial, inasmuch as such a distinction does not apply to a devise of realty (a). A condition that trustees shall not pay over the shares of legatees without taking from them bonds that they will not intermarry or illegally cohabit with certain persons, will not be enforced (h). 6. As to Consent to Marriage. In the case of a condition ■sithseqiient a marriage in the lifetime of the father, with his consent, or even his subsequent approbation (c), is equivalent to a marriage after his death with the consent of trustees (d). A condition in a will requiring the consent of trusitees to marriage has been held not to be applicable to the second marriage of a dauo-hter who had married between the date of the will and the death of the testator, and was a widow at his death (e). A condition forfeiting a legacy in the event of the legatee marrying a certain person without the testator's written consent, has been limited to a marriage in the testator's lifetime (/). Courts of equity will consider whether a substantial consent may not be referred from the acts of the persons whose consent is required although no formal consent has been given. Thus where no par- ticular mode is prescribed for trustees to give their consent, it may be presumed that they have given it where they have allowed courtship and marriage to take place without expressing their dissent (g), especially if from any fraudulent or corrupt motive they have with- held actual consent (It). And so where a long period has elapsed after the forfeiture and no objection has been taken, assent may be presumed (i). And in Strange v. Smith (k), although the written {a) Jones v. J., 1 Q. B. D. 279, and lett v. Brookman, 5 W. E. 342. compare with the judgment of the (e) Crommelin y. C, 3 V. 227; Hut- M.R. in Bellairs v. B., 18 Eq. 510, at cheson v. Hammond, 3 Bro. Ch. 128. p. 517. (/) Booth V. Meyer, 38 L. T. (N. S.) (b) Poole V. Bott, 11 Ha. 33. 125. (c) Wheeler v. Warner, 1 S. & S. 304, {(/) Campbell v. Lord Nettei-ville. followed in Tweedale o. T., 7 C. D. cited 2 V. 530, 10 V. 243; D'Aquilai (533. u. Drinkwater, 2 V. & B. 225. {(l) See Clarke v. Berkelej', 2 Vern. (A) Mesgrett y. M., 2 Vem. 580. 720 ; Coffin v. Cooper, cited 1 V. & B. (/) Jurman (1893), p. 894, citing Be 481 ; Painell v. Lyon, 1 V. & B. 479 ; Birch, 17 B. 358. Coventry r. Higgins, 14 Si. 30 ; Yio- {k) Amb. 203. 566 HUSBAND AND WIFE. Scott V. Tyler. consent of the mother was made requisite, Lord Hardwicke held that the mother having made her first offer to the intended husband received him at her house, encouraged his addresses to her daughter, and treated with him and his father about the settlement, had thereby given her consent (although it does not appear by the report, that it was in writing) ; and that she could not withdraw it. Eldon, C, cites this case in Clarke v. Parker (a), but does not notice that the consent was required to be in writing. In Wortlt- ington v. Evans {h), a letter was written by the trustee the day before the wedding, and was held to be a sufficient consent in writing, and Leach, V.-C, said : " If there had not been such a letter, inasmuch as the formal consent in writing would have been executed by him, but for the accidental delay occasioned by the other trustee, and not from any change of purpose, the Court would have considered his consent to have been substantially given, according to the will ; be- cause he had expressed his full approbation of the marriage, and only did not sign it for a reason personal to himself" (c). In Pollock V. Croft (d,), there was a bequest of personal estate to A., provided she married with the consent of B., but if she married without such consent, then to C, Grant, M.R., held, that a general permission given by B. after A. attained twenty-one, to contract marriage as she might think fit, and subsequent approbation of a marriage contracted under such general permission without his know- ledge, was a sufficient compliance with the requisition. The Court will interfere where the refusal of consent by a trustee proceeds from any vicious, corrupt, or unreasonable cause (e). But even if the person who refuses his consent be the devisee over, he is not obliged to show his reason for dissent — it lies upon the party requiring assent to show that it has been unreasonably refused : " for the testator must know that he has made necessary the consent of a person who has an interest " (/). And if a trustee, where consent to a marriage is required, refuse to {a) 19 V. 12, 12 R. E. 124. (e) Dashwood v. Bulkeley, 10 V. (6) 1 S. i&S. 165. 245, 12 E. E. p. 128 (n.); Clarke v. (r) And see Daley v. Desbouverie, Parker, 19 V. 18; Peyton v. Bury, 2 2 Atk. 273, foUowed in Clarke v. Par- P. W. 628. ker, 19 V. 1, 24, and in Be Smith, 44 (/) Clarke v. Parker, 19 V. 22, 12 C, D. p. 659; D'Aquilar v. Drink- E. E. 124. See, however, the remarks water, 2 V. & B. 225. of Lord HarclwicJte in Harvey v. Aston, (d) 1 Mer. 181. See also Mercer v. 1 Atk. 381 ; and of Lord Mansfield in Hall, 4 Bro. Ch. 228. Long v. Dennis, 4 Burr. 2052. CONDITIONS IN RESTRAINT OF MARRIAGE. 56i Scott V. Tyler. interfere, either by consenting or objecting to a proposed matcli, the Court will direct a reference to inquire and state to the Court whether the marriage is a proper one (a). If consent be once obtained, unless by fraud or misrepresenta- tion (6), it cannot wdthout a sufficient reason be withdrawn, especially if the person so withdrawing his consent would derive a benefit from a marriage without consent (c). A conditional consent may be withdrawn upon non-performance of the conditions ((/). When the consent of all the trustees is requii'ed, the consent of two, without the third being consulted, is insufficient, as there is a discretion in him as well as the others (e) ; but the consent of one of the executors or trustees who renounced or never acted, would according to the more recent authorities be unnecessary, the authority of consent being annexed to the office (/). ' Where the condition has become impossible by all the persons dying whose consent was necessary before marriage, it is dis- charged ((/). But if some only of such persons survive, the consent of such sur- vivors, although only a performance of the condition cy-pres will be sufficient. Thus where a legacy is given to a legatee on marriage upon a condition precedent requiring the consent of both parents ot the legatee, the consent of the surviving parent will be deemed a sufficient compliance with the condition {h). A fortiori will this doctrine be applicable in the case of conditions .subsequent. Thus where a legacy was bequeathed to a lady upon condition of her marrying with the consent of two persons who were also executors ; on the death of one of them, the condition being subsecpient and {a) Goldsmicl v. G., G. Coop. 225. 16, contra, was cited; Ewens r. Addi- {h) Dillon f. Harris, -4 Bligh, 321. son, 4 Jur. (N. S.) 1034; White /•. (r) Strange v. Smith, Amb. 263; M'Dennott, 7 Ir. E. C. L. 4; cl. Merry ?'. Eyves, 1 Eden, 1 ; Le Jeune Crawford v. Forshaw, (lSi»l) 2 Ch. V. Budd, 6 Si. 441. 261. {d) Dashwood v. Bulkeley, 10 V. (//) Per Lord Hardwuke in Graydon 230 ; D'Aqiiilar v. Drinkwater, 2 V. & v. Hicks, 2 Atk. 16 ; Jones »•. Suffolk. B. 225. 1 Bro. Ch. 528 ; Aislabie »•. Rico, 3 {e) Clarke v. Parker, 19 V. 1, 12 Madd. 256; Grant v. Dyer, 2 Dow. E. E. 124. 93. (/) See Clarke v. Parker, supra ; [h) Dawson v. Olivor-Massey, 2 C. Worthington v. Evans, 1 S. »& S. 165 ; D. 753. See also Green r. G., 2 Jo. & Boyce v. Corbally, LI. & G., 102, in Lat. 529; Ewing ;-. Addison. T W. P.- which case, Graydon /-. Hicks, 2 Atk. 23. 568 HUSBAND AND WIFE. Scott V. Tyler. become impossible, she might marry without the consent of the sur- vivor (a). Where, however, the consent of a class of persons as guardians is required, whose temporary non-existence could be easily replaced by an application to the Court, a marriage during the non-existence of guardians and consequently without consent, will prevent the vesting of a legacy given upon their consent (6). And the consent of a guardian appointed by the infant herself would not have been sufficient (c). The same result was arrived at in the case of the marriage settle- ment of the father in which sums of money were held in trust for daughters who attained twenty-one or married with the consent of their parents or guardians (d). The subsequent approbation of persons whose consent is necessary to a marriage, is not generally sufficient, because it cannot amount to a performance of a condition, or dispense with a breach of it (e). In Burleton v. Humphrey (/), the marriage was to be with " the consent or approbation " of a trustee, who did not give his approbation until a month after the marriage : Hardiviche, C, distinguished between consent and approbation, and inclined to the opinion that the subsequent approbation would do. See, however the remarks of Eldon, C, in Clarke v. Parker (g). In Long v. Ricketts {h), the condition was that the party should not marry against the consent of the trustees : a marriage contracted ■without their knowledge, but with their subsequent approbation, was held a breach of the condition. Where a legacy is to vest or be paid at a particular age, and then there is a clause of forfeiture on marriage without consent, such clause will be construed as having relation to a marriage under the specified age : and a marriage subsequent thereto without consent is no forfeiture (?'). So if a bequest be made in trust for A. his heirs and executors ivhen and as soon as he attained twenty-one, or nia'iried before that age ivith consent of guardians, but if he should Fry V. Porter, 1 Cli. Cas. 138 ; 1 Mod. 300. (/) Amb. 286. Cv) 19 V. 21, 12 R. E. 124. 61. [h) 2 S. & S. 179. («) Peyton c. Bury, 2 P. W. 626 ; but see Jones v. Earl of SufEolk, 1 Bro. Cb. 529 ; Collett v. C, 35 B. 312. {h) Re Brown's Will, &c., 13 C. D. (c) lb. (d) Re Browu's WiU, &c. 18 C. D. 61. (c) Eeynisb r. Martin, 3 Atk. 330 (0 Lloyd V. Branton, 3 Mer. 116; Osborn v. Brown, 5 V. 527 ; Knapp v. Noyes, Ambl. 662 ; Duggan v. Kelly, 10 Ir. Eq. Eep. 473. CONDITIONS IN RESTRAINT OF MARRIAGE. 569 Scott V. Tyler. not attain twenty-one or marry without such consent, then over, Grant, M.R, held that on attaining twenty-one, A. svas absolutely entitled, although he had ])reviously married without consent (a). Where, however, there was a bequest to A. to be paid at ttventy- one or r)iarriage, but if A. died under twenty-one or married without consent of B. then over. On marriage of A. under twenty-one with- out consent, it was held by Hardicicke, C, that a forfeiture had taken place {h). In the former class of cases it will be observed that the legacy given on a condition ^jrecedent vests, if either of the two contingencies happen. On the other hand, in the latter class the legacy given on a condition subsequent determines if either of these liappens. The Court may relieve against forfeiture occasioned by the negli- gence of a trustee. Thus, in O'Callaghan v. Cooper (c), a trust term was limited to trustees, to raise out of real estate portions for daughters, to be paid on marriage, upon condition that they should be married with consent of their mother, or, after her death, of the trustees, and that the husband should previously make a settlement. A marriage having taken place with the consent of the mother and the privity of the trustee, but by the neglect of the trustee, without any settlement, the Court, on a settlement being made, relieved against the forfeiture. A testator's consent to a marriage to take place dfter his death, does not dispense with a condition of forfeiture aimexed to a bequest in his will that the legatee shall forfeit the same in case he marry without the consent of persons named in the will {d). And where a bequest is until marriage, the consent of the testator to a marriage will not extend the bequest {e). But where the testator has not made the consent of other persons requisite, the question may arise, when he has imposed any condition with respect either to the time of marriage, or against marriage with a particular person, how far by his otvn consent to the marriage he will be held to have dispensed with the condition, and it seems that where the condition is subsequent, the consent of the person who imposed the condition will remove the consequence of its non-perfor- {(() Austen v. Ilalscy, 18 V. 125; (r) 5 V. 117. Knight V. Cameron, 14 V. 389 ; cf. Pey- {\ Kerr, 6Ir. Jur. (c) 3 V. 227. 141 ; Davis v. Angel, 31 B. 223. ((/) 1 V. & B. 479 ; see Violett v. (/) 3 V. 89, 3 E. R. 52. Brookman, 26 L. J. Ch. 308. Jarman (^) Clifford >\ Beaumont, 4 Russ. (1893), p. 893 (u.). 325. (e) Bullock V. Bennett, 7 De G. M. CONDITIONS IN RESTllAINT OF MARRIAGE. 571 Scott V. Tyler. ever, raised before Leach, V.-C, was not decided by Lougltborough, C, and LeacJts, V.-C, judgment has been doubted {a). In Randal v. Payne (b), there was a bequest to J. and M., in case they married into certain families, and if they should not marry then over. Upon their marrying into other families Lord Thurlow (without suggest- ing that any forfeiture had thereby taken place) held that marriage with certain families being a condition precedent nothing could vest until it had taken place, and that they had their whole lives for the performance of the condition (c). In Lowe v. Manners (d), however, a devise, subject to a similar con- dition, was held to be at once forfeited by marriage into another family. This case, however, is distinguishable from Randal v. Payne by the circumstance that, in Lowe v. Manners, from the day of marriage into another family each daughter was to be entitled to a fortune substituted for that given in the event of her husband having been one of the favoured families, thereby showing that the choice was only once tendered to her. Where a condition against marriage was broken by a widow, who concealed her second marriage, her husband, who was aware of the condition, was held bound to refund the income which trustees had paid to her in ignorance of the marriage (e). Persons will not be permitted to allow a long time to elapse with- out making any claim, and then to insist on a forfeiture and throw on the persons entitled the burden of proving that there has been none (/). Ignorance of a condition annexed to a gift by will does not protect the devisee or legatee from the consequences of not complying with the condition (g), except where the devisee in such case is also heir- at-law of the devisor, for it has been expressly decided that neither neglect nor refusal to comply with a condition will subject an heir-at- law to the loss of an estate unless he has notice of the condi- tion (/i). (a) Beaumont v. Squii-e, 17 Q. B. (/) lie Bu-ch, 17 B. ;JJ!S, iu which 905 ; Davis v. Angel, 31 B. 223. case 28 years elapsed. (6) 1 Bro. Ch. 55. (g) Porter v. Fry. Vent. 191» ; h'r (c) See Buddy c. Gresham, 2 L. R. Hodges' Legacy, KJ Eq. 92 ; Astley r. Ix. 442. Essex, 18 Eq. 290. {(l) 5 B. & Aid. 917. (/i) Doe d. Kenrick v. Bi>auclerk, 11 (e) Charlton v. Coombes, 4 Gif. East, 657, 667 ; Doe d. Taylor v. Crisp, 382 ; cf. Preece v. Searle, 3 Jui-. (N. S.) 8 A. & E. 778 ; Murphy r. Broder, 9 711. Ir. R. C. L. 123. 572 .HUSBAND AND WIFE. Seott V. Tyler. 7. Contract in Restraint of Marriage, or in Fraud of the Marriage Contract. Certain agreements are treated as against public policy either as tending to impede freedom of consent and to introduce unfit and extraneous motives into the contracting of particular marriages, or for tending to hinder mamage in general {a). But where a contract is divisible, one alternative which is valid will not be rendered invalid by another alternative which is void, as being in restraint of marriage. Thus in Robinson v. Ommaney (6), an unmarried woman, having a power of appointing a sum of money by will, made a will appointing it to a mortgagee and covenanted not to cancel, revoke, or annul the will. She afterwards became bankrupt, apd obtained her discharge, and after her discharge, she revoked her will, and made another appointing the sum of money to another person. The C. A., affirming the decision of Kay, J. (c), held, that the covenant not to revoke the will was divisible, and was not wholly void, although in one alternative it tuas in restraint of 'marriage. A contract to marry a particular person, when that person is not bound by corresponding obligation, will be cancelled : " it being con- trary to the nature and design of marriage, which ought to proceed from a free choice, and not from any compulsion " {d). A contract by which persons were mutually bound to marry each other has been held valid at law (e). But although the contract may have been mutual and valid at law a Court of equity has relieved against it, if it was a fraud upon a parent or a person in loco parentis from whom expectations were entertained ; thus, a bond given to her suitor by a daughter, the father having forbidden her to see or encourage him, was, on the application of the daughter, set aside after the death of her father on the ground that had the father known of the bond and that the daughter had not submitted to his opinion about the match, he might probably have made other pro- visions for his daughter in his will, and was therefore a fraud upon the father. This decision was given although mutual bonds had been exchanged between the daughter and her suitor (/). (a) PoUock, Contracts (1894), p. 334; Cock c Eichards, 10 V. 429, 8 R. E. Baker v. White, 2 Vem. 215. 23 ; Hartley v. Eice, 10 East, 22. [h) 23 C. D. 285. (e) See Cock v. Eickards, 10 V. 438, ((•) 21 C. D. 780. 439 ; and Atkins v. Farr, 1 Atk. 28; [d) Key v. Bradshaw, 2 Vern. 102 ; S. C, 2 Eq. Ca. Abr. 247. and see Woodkouse o. Shepley, 2 Atk. (/) Woodhouse v. Skepley, 2 Atk. 535 ; Lowe v. Peers, 4 Burr. 2225 ; 535. CONDITIONS IN RESTRAINT OF MARRIAGE. 573 Seott V. Tyler. A covenant to pay a woman a sum of money as long as she con- tinues sole and unmarried is not illegal (a). In another respect our Courts have not followed the civil law, by which proxeneta' of the Roman Law, or matchmakers, were allowed to stipulate for a reward not exceeding a certain amount, for pro- moting marriages ; for it has been held in equity, from a very early period, that all contracts or agreements for promoting marriages for reward (usually termed marriage brokage contracts) are utterly void (6). The vice of such a consideration was afterwards pleadable at law (c). And so far has the principle been carried, that Lord Redesdale declared a bond void which was given as a remuneration to the obligee for having assisted the obligor in effecting an elopement and marriage without the consent of the wife's friends, although it was given voluntarily after marriage, and without any previous agreement for the same (d). The fact of the match being an equal or proper one, will not render a marriage brokage contract valid (e) ; and such contract being con- trary to public policy, is not capable of confirmation (/); and money paid pursuant to such contract has been recovered back in equity (g). Upon the same principle, every contract by which a pai-ent or guardian obtains any security for promoting or consenting to the marriage of his child or ward, is void {h). So, in Lulr of HamiUo'ti V. Lord. Moliun (i), the mother being guardian, on the marriage of her daughter, insisted upon having from the intended husband a bond, in a penalty that he would give her a release of all accounts as guardian, within two years after the marriage. The bond was set aside, as the case was in the nature and within the reason of marriage brokage bonds, and that there was no difference between giving a bond for procuring a marriage, and a bond to release part of what became due. {a) Gibson v. Dickie, 3 M. & S. 463. (e) Cole v. Gibson, 1 Y. 506. (h) Eobertsv. E.,3 P. W. 76; Heap (/) Cole r. Gibson, 1 V. o();j, 506, V. Harris, 2 Q. B. J). 630; Chester- 507; Eoberts r. E., 3 P. W. 74, and field >\ Janssen, 2 V. 156 ; ante, p. 289. Cox's note (1). Law V. L., Cas. t. Talb. 142; HaU v. (,\ Allen, 2 Vern. 5S8 ; S. C., ((/) Williamson r. Gihon, 2 S. & L. Pr. Ch. 267. 357, 362. (/) 2 Yern. 652; Gilb. Kq. E. 297. 574 HUSBAND AND WIFE. Scott V. Tyler. Upon similar grounds, all contracts upon a treaty for a marriage, tending to deceive or mislead one of the parties to it, or their relatives, will be held void. Thus a security given by a sou without the privity of his parents, who provided for him on his marriage, to return part of the portion of his wife, is void (a). So whe^-e, upon a marriage, a settlement was agreed to be made of certain property, by relations on each side, and after the marriage one of the parties procured an underhand agreement from the husband to defeat the settlement, it was set aside, and the original agreement carried into effect (h). So, where a man, on the treaty for the marriage of his sister, let her have money, privately, in order that her portion might appear as large as was insisted on by the intended husband, and she gave a bond to her brother for the repayment of it, it was decreed to be delivered up (c). So, where a father, having, upon the marriage of his son, made a settlement of an annuity upon the wife in full for her jointure, and in lieu of dower, the son, privately, without the knowledge of his intended wife or her father, gave a bond to in- demnify his father against the annuity or rent-charge, it was held void by Sir W. Grant, M.R., as a fraud upon the faith of the marriage contract {d). Relief will be granted in such transactions, although the party to the marriage seeking it be ■parHceps criminis ; thus, in Redman v. R. (e), upon a treaty of marriage between A. and the daughter of B,, B. would not consent to the marriage, because A. owed 200L to C. A.'s brother thereupon gave his bond to secure the debt, and A.'s bond was cancelled ; A., however, without the knowledge of B., but with the privity of his daughter, gave a counter-bond to his brother. Upon A.'s death, it was held, that the wife, though a party to the fraud, might set aside the bond ; and the Lord Chancellor said, that if A. had been alive, and a party, he might also have been relieved. The principle upon which this class of cases proceeds was much discussed in the case of Neville v. Wilkinson (/). There Mr. Neville, being about to marry, inquiry was made by the lady's father to what extent he was indebted. Wilkinson, who was applied to, at the desire of Neville concealed a demand which he had against him ; («) Turton v. Benson, 1 P. W. 496 ; (c) Galk r. Lindo, 1 Yern. 475 ; and and see Kemp v. Coleman, Salk. 156. see Lamlee v. Haunian, 2 Vern. 499. [h) Peyton V. Bladwell, 1 Vern. 240 ; {otior est in jure (c). As to settlements or contracts by a woman about to be married in fraud of marital rights, see Countess of Strathraore v. Boifcs, ante, and notes. (a) And see Scott r. S., 1 Cox, 366 ; {h) 3 P. W. 65. Sim-ley v. Ferrers, cited 11 V. 536; (e) See the remarks on this case in The Vauxhall Bridge Company v. The Lee v. Hayes, 17 Ir. C. L. E. (N. S.) Earl of Spencer, Jac. 67. 394. 576 HUSBAND AND WIFE. Scott V. Tyler. 8. As to Conditions annexed to Gifts for the purpose of effecting the separation of Hushand and Wife. Upon principles of public policy it has been held, that where bequests are made to married women upon condition of their livino- separate from their husbands, the conditioTi is void, being considered 'pro non scripio, but the bequest will be good {a). This principle is not applicable where the bequest is of such a nature as not to influence the conduct of the husband and wife, and the bequest to the husband or wife living apart from each other is to take effect immediately on the death of the testator. See Shewell v. Dvjarris {h) : in that case a testatrix made a bequest of a moiety of her residuary personal estate to her nephew, provided and on the express condition that he should be residing with his then present wife, if she should be living at the time of the testatrix's decease, but in case they should not at that time be living together as man and wife, then (subject as aforesaid) she gave and bequeathed one half of such moiety of the said residue unto the wife absolutely and the other half part thereof to the husband. It was held by Sir W. Page-Wood, V.-C, that the bequest Avas good notwithstanding the rule which avoids gifts providing for a future separation. "The rule," said his Honor, " which avoids gifts providing for a future separation between hu.sband and wife does not apply to a case like the present. Here the gift is by will, and merely provides for either contingency, namely, that of the husband and wife living together or separate at the moment when the will must take effect, namely, at the death of the testatrix. The bequest cannot influence their conduct, but takes effect immediately on the death, according to the then state of facts." As to separations effected between husband and wife by their mutual consent, see the note to Stapilton v. S., post. ('0 Tennant v. Brail, Toth. 141; Brown v. Peck, 1 Eden's Eep. 140 ; Wren v. Bradley, 2 De G. & Sm. 49. As to a limitation to the same effect, see Re Moore, p. 562, supra, (i) Johns. 172. 577 JOHN WRIGHT HEXXIKER AVILSOX, Esq.. Appellant, v. MARY WRIGHT HEXXIKER WILSOX (the Appellant's Wife) and Others, Respondents. 1848. 1 H. L. Cas. 538 ; 5 H. L. Cas. 40. Husband and Wife. Articles of Separation. Specific Performance. Jurisdiction. The Court of Chancery exercises only its ordinary jurisdiction in giving effect to articles of separation between husband and wife, so far as they regard an arrangement of property agreed upon. The Court, in decreeing specific perfonuance of such articles, does not inquire into the cause of the separation. The stopping of a suit in the Ecclesiastical Court for nullity of marriage, on the ground of impotency of the husband, is a sufficient consideration to him for articles of separation ; and so, it seems, is a covenant by a third party to pay his debts. Semhle, that the Court, after decreeing specific performance of the articles, may restrain the wife, as well as the husband, from pro- ceeding in the suit for nullity (a) . This was an appeal against a decree for specific performance of articles of separation between the appellant and his wife, the respon- dent. They were married in April, 1839. Differences arose between them soon after the marriage, and continued until May, 1843, when Mrs. Wilson, by advice of her friends, went to reside at tlie house of Mr. Foster, her solicitor. On the Sth of that month the appellant was served with a citation from the Consistory Court of London, in a suit for nullity of marriage by reason of impotency. The appellant called next day on Mr. Foster, expressed his anxiety to stop the suit, and to enter into an amicable arrangement for a separation ; and proposed to execute a proper deed for that purpose, and to give up (a) 1 H. L. Cas. 556, 575, and infra, 588, 596. W. & T. — VOL. L -37 578 HUSBAND AND WIFE. Wilson V. Wilson. the interests which he took in his wife's jDropeity under their marriage settlement, and in virtue of his marital rio-hts, in considera- tion of an annuity of 1,500Z. By the settlement executed previous to the marriage, a freehold estate in the county of Southampton, called Drayton Lodge, of the value of 2,000^. a-year, to which Mrs. Wilson was entitled for her life, for her separate use, with remainder to her issue, under the will of Lady Frances Wilson, was secured to the same use, together with 3,000^. consols, part of her own funds ; and a leasehold house and premises, called the Chelsea Park estate, which, with the land tax charged thereon, she had purchased some time before the marriage, were settled to the use of the appellant during their joint lives, and to her, for her life, if she survived him, with remainder of the term absolutely to the appellant, his executors and assigns. The rest of the respondent's property — consisting of freehold estates in the counties of York and Essex, worth together about 3,000/. a-year, devised to her by Sir Henry Wilson, for her life, with remainder to her issue, with other remainders over ; of a leasehold house in Grosvenor Place, in the county of Middlesex, bequeathed to her by the same will, and also of considerable sums of money in the public funds, in bank and on mortgage, and other personal estate of large amount, — was not included in the settlement, and therefore, after the solemnization of the marriage, belonged, as the settlement recited, to the appellant in his marital right (a). The appellant was informed, on the 13th of May, that the terms of separation which he proposed to Mr. Foster would not be accepted, and that it was determined by Mrs. Wilson and her advisers to proceed with the suit in the Consistory Court. A notice to that effect was sent on the 25th of May to the appellant, who, on the next day, called again on Mr. Foster, and was informed that the libel in that suit would be filed on the 2nd of June then next ensuing, unless an arrangement was completed in the meantime. The appellant on the 26th of May again called on Mr. Foster, and with a view of pre- venting the suit, and the consequent publicity of the charge therein made, proposed (without prejudice) " to bind himself to enter into a deed of separation to be executed immediately, whereby Mrs. Wilson .should be secured in the undisturbed enjoyment of Chelsea Park, (a) See 14 Si. 40,"). SEPARATIOX DEEDS. 579 Wilson V. 'Wilson. with the furniture tliere, and at Drayton also ; Mrs. W. to receive the rents of the adjacent property at Chelsea, paying the ground rents ; the rents of the property in. Yorkshire and Essex to be placed under the control of Mrs. W., there being reserved to Mr. Wilson a certain sum annually, which he would prefer hearing suggested by Mrs. Wilson or her advisers. In considering this amount, it should be recollected that Mr. W. had, in pursuance of the agi-eement made before marriage, effected policies of insurance requiring annual payments to the amount of 6001." This memorandum was dated May 26, 1843, and signed by Mr. W. H. Wilson. Mr. Foster having submitted this proposal to Mrs. Wilson and her advisers, by their direction offered the appellant 1,000?. a-yearout of the property, on his entering into a deed to carry the proposiil into effect. The appellant required 1,200?. a-year, but finding after several discussions with Mr. Foster, on the 30th and 31st of May, that unless he accepted the annuity of 1,000?., the suit in the Consistory Court should proceed, he submitted to the terms proposed, and wrote and signed this memorandum : " The annual sum agreed upon on the part of Mrs. W. H. Wilson, to be paid to Mr. W. H. Wilson under the deed of separation, to be executed immediately, is 1,000?. The deed made to carry into effect the terms proposed in a memorandum dated the 26th of May, 1843, signed by Mr. H. Wilson, and to be a bar to suits ; suit now pending to be withdrawn on the mutual execution of the agreement." Articles of agreement for separation were immediatel}' prepared, and the appellant — having before refused to appoint a solicitor, as being himself a barrister, and competent to conduct the negotiation — perused the draft and suggested alterations in it, and perused it again after it was finally settled on behalf of the respondent, and he assisted also in examining the engrossment. The articles so prepared, dated the 1st of June, 1813, and made between the appellant of the first part, the respondent, his wife, of the second part, and Nathan Wetherell, Esq., of Lincoln's Inn, and the said Mr. Foster, of the third part — after reciting that unhappy differences having arisen between the appellant and his wife, they had agreed to live separate, and to enter into the arrangements after- mentioned — witnessed that the appellant on the one part, and the said N. Wetherell and W. C. Foster on the other part, with the privity 37 2 580 HUSBAND AND WIFE. Wilson V. Wilson, and approbation of Mrs. Wilson, mutually covenanted and agreed to the effect following : — First, That the appellant should at all times thereafter permit Mrs. Wilson to live separate and apart from him, &c. Secondly, That the Chelsea Park estate, and the land tax thereon, comprised in the marriage settlement of Mr. and Mrs. Wilson, and thereby settled as before stated, and all such other estates (if any) as might be purchased or taken in exchange under the provisions thereof, should, from and after the 24th of June, 1843, be held by the trustees of the said settlement, in trust for Mrs. Wilson, for her separate use during the joint lives of herself and the appellant, to the intent that his life interest in the premises during the life of Mrs, Wilson might be .superseded ; but nevertheless without prejudice to his ultimate interests in the said premises expectant upon her decease. Thirdly, That the estate in the county of Southampton, devised by Lady F. Wilson, and also the sum of 3,000^. consols, comprised in the marriage settlement, should remain subject to the trusts thereof. Fourthly, That all other freehold, copyhold, and leasehold estates, to which Mrs. Wilson was, at the time of her marriage, or since become, entitled under the wills of Sir Henry and Lady Wilson should after the said 24th of June, subject, as to such of these estates as were situate in the county of York, to the annuity of 1,000^. after mentioned, be conveyed by the appellant to the trustees of the settlement, for the separate use of Mrs. Wilson, for the joint lives of her and the appellant. Fifthly, That all the furniture in the mansion at Chelsea Park should be held and enjoyed by Mrs. Wilson during her life, for her separate use, and after her decease should belong to the appellant, his executors, &c. ; and that all other goods and effects in the said mansion (except books belonging to the appellant) and all additions to be made thereto, and to the furniture, and all furniture, goods, and effects, in the mansion at Drayton Lodge, and all jewels, ornaments, wearing apparel, &c., belonging to IMrs. Wilson, and also all real and personal estate afterwards acquired by her, should belong absolutely to her for her separate use, with power to dispose of the same by deed, or will, &c. Sixthlv, That all rents, taxes, and other outgoings in respect of the SEPARATIOM DEEDS. 581 Wilson V. Wilson. Chelsea Park estate, and all expenses of repairs upon the same, should be paid by the appellant up to the same 24th of June. Seventhly, That, if and so long as the appellant should duly observe and perform the said covenants and agreements, all the rents, taxes, and other outgoings in respect of tlie said several estates, and all expenses of repairs upon the same, should, after the 24th of June be paid by Mrs. Wilson during her life, and " that he, the said John Wright Henniker Wilson, his heirs, executors, and administrators, and his and their estates and effects, should be indemnified therefrom, and from all the present debts and liabilities of the said John Wright Henniker Wilson, by the joint and several covenant of the said N. Wetherell and W. C. Foster." Eighthly, That, if and so long as the appellant should duly observe and perform the covenants and agreements herein contained, a clear annuity of 1,000Z., commencing from the 24th of June, should be paid to him by equal half-yearly portions, during the joint lives of himself and Mrs. Wilson, the said annuity to be charged on the freehold estates in the county of York, which belonged to Mrs. Wilson before her marriage. Ninthly, That a proper deed or deeds for effectuating the objects of the articles should, with all convenient speed, be executed by all the 2)arties to these presents, " such deed or deeds containing all such covenants and provisions as should be deemed expedient," to be settled on behalf of all parties by counsel ; and that in case of any unnecessary delay in the execution of such deed or deeds by any of the parties, the other of them should be at liberty to make void these presents. And lastly, That, upon the execution of these presents by the appellant, the proceedings instituted against him in the Ecclesiastical Court by Mrs. Wilson, should be suspended, and upon the execution of the deed or deeds to be so prepared as aforesaid, should be put an end to and withdrawn, but nevertheless without prejudice to Mrs. Wilson's right to institute any other proceedings against him, in case he should make default in the performance of any of these covenants and agreements. These articles were executed by all the parties to them, and the proceedings in tlie suit, in the Consistory Court, were suspended. The appellant having, at first, interposed some delay in quitting 582 HUSBAND AND WIFE. "Wilson V. Wilson. Chelsea Park, in compliance with the articles, soon afterwards, in the course of a correspondence with Mr. Foster, objected to them altogether, on various grounds hereinafter mentioned. In August, 1843, Mrs. Wilson, by her next friend, and Messrs. Wetherell and Foster, filed their bill against the appellant, stating, among other things, that they, with the view of carrying the said articles into effect, had caused a proper deed to be prepared as thereby provided ; that a clerical error occurred in the coj^ying of the original draft of the 7th article, which mentioned that the appellant should be indemnified against his own debts instead of his wife's, as was intended, and that they caused to be substituted in the said deed the usual covenant for indemnifying the appellant against the debts and liabilities of his wife. The bill prayed that, subject to the correction of the said error, the appellant might be decreed to execute the deed so prepared for carrying the articles into effect, according to their true intent and meaning. The appellant, in his answer, stated the various grounds on which he objected to perform the articles : that they were procured from him by intimidation, duress, and surprise ; that he agreed to them from an apprehension of degradation and ridicule, by the exhibition against him of a charge of impotency, which was false, as Mrs. Wilson well knew ; that in making the proposals of the 26th and 31st of May, and in executing the articles, he acted not only without due advice, but also under mental incapacity to contract, arising from apprehension of publicity being given to the said calumnious charge, and that Mrs. Wilson and her advisers instituted the suit in the Ecclesiastical Court, and took advantage of his alarm and appre- hension, to coerce him into the arrangement ; that her sole object was to obtain from him some concessions of property which he acquired under the marriage articles, or his marital rights, for which purpose she had previously threatened him wdth a divorce upon equally false charges of adultery and cruelty ; and the suit for nuUity of the marriage by reason of impotency, was another contrivance and device resorted to by her for the same purpose, without any belief in the imputation. He also insisted that the articles differed materially, to his prejudice, from his said proposals, and the draft deed prepared for his execution by the respondents, was itself a deviation from the articles, which did not contain any such clerical eiTor as they SEPARATION DEEDS. 583 Wilson V. "Wilson. alleged ; that the suit instituted in the Consistory Court, although suspended, might still be prosecuted by Mrs. Wilson, notwithstanding the articles, so that he had no benefit or protection from the articles in that respect : but he repudiated such benefit, and stated that he would compel her to proceed in that suit, so as to give him an opportunity of refuting the false charge of impotency. He sub- mitted that the articles, not being deliberately entered into by him, nor fairly, but fraudulently, obtained from him, were not binding on him; and as the respondents, Messrs. Wetherell and Foster, did not offer to perform their covenant, to pay his debts, exceeding 6,000^., the articles were without any consideration to him, inasmuch as t'.ie covenant which they proposed to insert in the deed to indemnify him against Mrs. Wilson's debts, was never desired or contemplated by him, knowing, from her habits, and possessed as she was of large property, that she would not incur debts. The appellant's proctor took a proceeding in the Consistory Court, to compel Mrs. Wilson to file her libel there. Her proctor obtained time to do so, and then she and the other respondents filed a supple- mental bill in Chancery for an injunction to restrain the appellant from taking further proceedings to compel her to continue the said suit, or to dismiss it; and such injunction was issued, but was discharged upon the appellant's answer being put in. In May, 1844, the appellant filed a cross bill, stating the contents of his answers to the original and supplemental bills, and that he had consummated the marriage, and charging that Mrs. Wilson admitted his competency, and that her imputation of his impotency would appear to be unfounded if she would proceed to proofs in the suit in the Consistory Court, to which he endeavoured to compel her ; but she avoided the prosecution thereof, well knowing that she could not succeed therein. The cross bill prayed that the articles might be declared void, and be delivered up to be cancelled. Mrs. Wilson in her answer repeated her denial that the marriage was ever consummated, and added that, to the best of her belief, it was not consummated by reason of the impotency or physical inability of the appellant, owing to some mal-conformalion, &c. And she denied that the suit in the Consistory Court was instituted for such purposes as were alleged in the cross bill, but bond Jide to obtain a sentence of nullity of marriage, to which she and her legal 584 HUSBAND AND WIFE. Wilson V. Wilson. advisers, including eminent counsel and civilians, conceived her to be entitled ; and she denied that she ever admitted to any person the appellant's competency. Witnesses were examined in both causes, in the original cause by the respondents only, in the cross cause by both parties, and orders were made that the evidence taken in either cause might be read in the other. The causes were heard by the Vice-Chancellor of England, in January and February, 1845, when his Honour rejected certain evidence proposed to be read on behalf of the appellant, * * and declared, that, although the covenant, contained in the seventh article, to indemnify the appellant against his own debts, instead of his wife's, was an error committed by the conveyancer's clerk in copying the original draft of the articles, it could not be considered an error as between the appellant and the other parties ; and as they had offered to covenant to indemnify him against his wife's debts, his Honour decreed that it be referred to the Master to settle a proper deed of conveyance for carrying into effect the articles of separation, and that he should insert therein a joint and several covenant by the respondents, Messrs. Wetherell and Foster, with the appellant, to indemnify him against all debts and liabilities of Mrs. Wilson whicli existed on the 1st of June, 1843, and all her subsequent and future debts and liabilities. [A.n order was made for the delivery up of the mansion at Chelsea Park by the appellant, and inquiries and accounts were directed. And it was ordered that an injunction should be awarded to restrain the appellant], until after execution of the said deed, from taking any proceedings in the suit instituted by Mrs. Wilson in the Consistory Court, for the purpose of compelling her to proceed therein, and from applying for any order of the said Court for the purpose of dismissing such suit, or otherwise putting an end to it, or whereby the respondents might be made liable for the costs thereof. [And that the bill, in the cross cause, be dismissed with costs.] The appeal was against the whole decree. Sir Fitzroy Kelly and Mr. G. Turner (Mr. Busk and Mr. Henniker being with them), for the appellant. — This case SEPAKATION DEEDS. 585 Wilson V. Wilson. presents several points of great importance, never yet decided. The principal question is, whether a Court of Ec^uity, considering the nature and contents of the articles, and the circumstances under which their execution was obtained from the appellant, has jurisdiction, and ought to exercise it, to compel specific perform- ance of them. * * * The articles executed, under surprise and misrepresentation, purport to be made between the appellant and wife, and Messrs. Wetherell and Foster, as trustees for her ; they recite that Mr. and Mrs. Wilson had agreed to live separate ; and the first article stipulates for such separation — which is contrary to the policy of the law and to moral duty : they contain no allegation of adultery or cruelty — which are the only justifiable grounds of separation, being those on which alone the spiritual Courts grant divorces, and on which the temporal Courts recognize articles of separation as beneficial private arrangements, resorted to for the purpose of avoiding public exposure ; they contain no covenant, on the part of the trustees, to protect the husband against the wife's debts, — without which Courts of Equity have no jurisdiction to enforce the articles. The principal covenants are those by which Mr. Wilson gives up the property which he acquired by his marriage. And what is the consideration ? Messrs. Wetherell and Foster covenant to indemnify him against his own debts ; but their bill alleges that that is a clerical error, and prays it may be corrected by substituting a covenant to protect him against Mrs. Wilson's debts. The appel- lant never required or contemplated any such protection, knowing that she, with so large a property, and parsimonious habits, would not incur debts. The only consideration, therefore, for the appellant's resigning the enjoyment of at least 3,000^. a-year, for a life annuity of 1,000^., was the suspension of the suit in the Ecclesiastical Court, which is no consideration at all, because Mrs. Wilson may, at any time, proceed with that suit, or institute another, notwithstanding the covenant of her trustees to stop it. * * * The most eminent equity Judges disapproved of separation deeds, and expressed their surprise how they came to be recognised by any Court. Lord Rosslyn, in Legard v. Johnson (a), says : "The common law will not entertain a suit upon contract by a wife against her {a) 3 V. 359. 586 HUSBAND AND WIFE. Wilson V. Wilson. husband. The Ecclesiastical Court has exclusive cognizance of the rights and duties arising from the state of marriage." [And see Head V. H. (a), Seeling v. Craivley (h), Angler v. A. (c).] Lord Eldon frequently declared his repugnance to such deeds. In Lord St. John V. Lculy St. J. (d), he expresses strongly his dissent from the dicta that fell from judges in cases at law in favour of deeds of separation, which he considers to be contrary to the sacred nature of the contract of marriage, and to the policy of the law, that marriage should be indissoluble, except by the legislature : He further says that there could not be even a separation a mensd et thoro except propter scevitiam aut adulterium, and that even where the parties, after such separation, came together again, there would be a complete end of it : And — after referring to deeds of separation, containing cove- nants by third persons to indemnify the husband against the wife's debts, on which the jurisdiction in equity was said to be founded, and which was exercised, for the first time, in Guth v. G. (e), of which he disapproves, as Lord Rosslyn did in Legard v. JoJvason (/) — he says : " Lord Tlourloiv doubted whether covenants with such objects ought to be the foundation either of action or specific per- formance. That doubt has long since had place in my mind. If this were res Integra, untouched by dictum, or decision, I would not have permitted such a covenant to be the foundation of an action or a suit in this Court. But if dicta have followed dicta, or decision has followed decision, to the extent of settling the law, I cannot, upon any doubt of mine as to what ought originally to have been the decision, shake what is the settled law upon the subject. It is better that the case should go to the House of Lords than that the law should remain in this state upon a point connected with the very well-being of society." [And see The Earl of Westmeath v. The Countess of W. (g).] * * * Sir William Grant says, in Worrall v. Jacob Qt) : " It is now settled that this Court will not carry into execution articles of separation between husband and wife. It recognizes no power in (a) 3 Atk. 547. (e) 3 Bro. Cli. 614. (6) 2 Vern. 386. (/) 3 V. 361. (c) Pr. Ch. 496; S. C, GHb. Eq. {g) Jac. 135. Eep. 152. (A) 3 Mer. 268. {d) 11 V. 529. SEPARATION DEEDS. 587 Wilson V. Wilson. them to vary the riglits and duties gi'owing out of the marriage, or to effect at their pleasure a partial dissolution of it." * * * Now, as that covenant by a third party for indemnifying the husband against the wife's debts, which Avas in some of the preceding decisions held sufficient (a), and in all held to be indispensable, to support separation deeds, does not find a place at all in these articles ; and the want of it cannot, as Lord Eldon said, be supplied by a Court of equity ; they contain no foundation for an action or suit in equity, and they are all directly within the principles laid down by Lords Thurloiv and Rosslyn and Eldon, and by Sir W. Grant. The appellant, it is admitted, never desired any such covenant, and now resists the insertion of it in the articles \ but he is not therefore precluded from insisting that without it the articles are void. Reliance may perhaps be placed on the covenant to stop the suit in the Ecclesiastical Court — for which the appellant most anxiously stipulated — as a sufficient consideration for the articles. Can that covenant be enforced ? Can the trustees or the Court of Chancery prevent Mrs. Wilson from proceeding in that suit ? '• That," says Lord Eldon, in Westmeatii v. W., " leads to a most important ques- tion, whether deeds of this kind raise such an equity between husband and wife as to authorize the Court of Chancery to prevent them from proceeding in the Ecclesiastical Court ; for unless it could be carried to that length, I cannot see how they can be supported " (6) ; his Lordship having before said (c), " it was a question whether such a covenant would be binding," and that " none of the cases touched it in decision or in principle." Courts of equity, and of law also, most anxiously avoid interference with the Ecclesiastical Courts, whose exclusive province it is to entertain causes matrimonial, and grant separations. * * * They cited Durant v. D. (d), Beeby v. B. (e), Westmeath v. If. (/), Smith V. S. (g), Mortimer v. M. {h), Warrender v. W. (/). But neither they, no more than the temporal Courts, sanction any act (rt) See Seeling v. Crawley, Angier n. {(■) 1 Hag. Con. H2, u. A., supra. ' (/) 2 Hag. Ec. (Supp.) 115. {b) Jac. 139. (g) 2 Hag. Ec. (Supp.) 44, n. (c) P. 136. {h) 2 Hag. Con. 31S. {d) 1 Hag. Ec. 760. (0 2 CI. & Fin. 527 & 61. 588 HUSBAND AND WIFE. Wilson V. Wilson, that would have the effect of preventing a return to cohabitation ; on the contrary, they promote and enjoin it, where there does not appear to be adultery or cruelty enough to warrant a separation. And when the husband and wife do return to cohabitation, whether by voluntary reconciliation or by decree for restitution of conjugal rights, there is an end to the separation, and to all the covenants in the deed, and all things are restored to the state in which they were before the separation ; Fletcher v. F. (a), St. John v. St. J. {b), Bate- man V. Hie Countess of Ross (c), Westmeath v. W. {d). But how can things be restored in the present case, if this decree, compelling the husband to convey property worth from 2,000/. to 3,000/. a-year, for the benefit of the wife, be affirmed ? Can reconciliation, putting an end to the separation, revest in the appellant that property, after it is conveyed away absolutely by force of this decree ? The trustees may, by the wife's direction, have conveyed it away to strangers, before the reconciliation ; and if not, the retention of it will operate as a premium to the wife to reject all overtures towards reconcilia- tion. * * * The injunction in effect enjoins perpetual separation of these parties ; because it prevents the husband from putting his wife to the proof of her charges, and from proceeding to negative them : after which he might graft on her libel liis suit for restitution of conjugal rights ; Clowes v. C. (e). If, independently of the injunction, Mrs. Wilson cannot be prevented from proceeding in the pending suit, or instituting any other in the Ecclesiastical Court, the articles, for which the trustees' covenant to put an end to the suit was the sole consideration, are void. The House will, therefore, have to decide the question, whether she can be prevented. [Lord Cottenham. — Is there not jurisdiction in equity to prevent her, as Mr. Wilson has been prevented, by injunction, as conse- quential on the decree for specific performance ? Courts of equity constantly restrain proceedings in the law courts, without any con- flict of jurisdiction, because the injunction affects the parties, and not the Courts.] In such cases the equity Courts have a concurrent, or the sole, (a) 2 Cox, 107. {d) 2 Hag. Ec. (Supp.) 52. {b) 11 V. 532 & 537. (0 1 Curt. 145. (r) 1 Dow, 245. SEPARATION DEEDS. 589 Wilson V. Wilson, jurisdiction over the subject-matter, but in causes matrimonial they have none, and no instance of their interference by injunction can be produced. There are strong observations applicable to this point — and to articles of separation generally — see Warrender v. W. (a), in this House. * * * If Courts of equity will not interfere to stay a suit for divorce, or restitution of conjugal rights, will they stay a suit for nullity of marriage ? Assuming Mrs. Wilson's allegations, that she was defrauded into the state of marriage by an impotent person, to be true, will they compel her to forego the proper legal process to get rid of the false marriage ? But, be the allegations true or be they false, no Court can prevent her from trying to establish them (6). * * [The learned counsel then proceeded to examine the Vice Chan- cellor's judgment (c), and the cases there referred to, some of which they had already cited.] * * * The third and last ground of objection to the decree is the dismissal of the cross bill, and rejection of evidence material to the appellant's case. * * * Mr. Bethell and Mr. Lloyd, for the respondents. — The arguments for the appellant have stirred up questions of law which have been long considered as settled. Upon all general principles now established and recognised in numerous decisions, not only of the Courts of law and equity, but also of this House, these articles are not open to any of the objections raised against them. The agreement was not, as alleged, for a future or prospective separa- tion ; these parties had lived in a manner separate for a considerable time, though the actual separation is to be dated only from the day on which Mrs. Wilson took up her residence at the house of her solicitor, which, however, was prior to the execution of the articles. One can easily understand the feelings of delicacy which prevented her from making an earlier disclosure of the appellant's impotency. That charge was the ground of the suit in the Consistory Court, and the articles were founded on a compromise of that suit. The appellant alleges in all his pleadings that the charge is false, but he (a) 2 CI. & Fin. 527, St. John r. St. J. (h) See observations of Eldon, C, in (t) 14 Si. 414. 590 HUSBAND AND WIFE. Wilson V. Wilson, does not swear that he consummated the marriage ; he says in the cross bill that it was consummated, but Mrs. Wilson, in her answer, denies it, in the most solemn and circumstantial manner, and re- asserts the charge of his inability to consummate it. They then dealt with the various pretences set up by the appellant against the validity of the articles, alleging that they were obtained from him by " conspiracy and intimidation;" by "fraud and false- hood" as to the grounds of the suit; by the "influence of fear, and apprehension of publicity, and consequent ridicule and degrada- tion ; " by " surprise " and " under mental incapacity to contract, and want of professional advice." * * * Then as to the appellant's objections to the legal validity of the articles. The first was that all agreements for separation of husband and wife are contrary to public policy, to the policy of marriage, and to moral duty ; and that to enforce them in equity or at law is an invasion of the jurisdiction of the Ecclesiastical Courts ; but the Judges, whose doubts and dicta were cited in support of this objection, oave effect to such agi'eements in some of the cases that were referred to. [They cited Legard v. Johnson (a), Fletcher v. F. (h), Worrcdl v. Jacob (c), Bateman v. The Countess of Ross (d), Tovey v. Lindsay (e). * * * There is no case in which it has been said that a Court of equity is decreeing a separation of husband and wife, when it decrees performance of the husband's covenants in such deeds, over which it only exercises the same jurisdiction that it does on other executory ao-reements. There are, however, some classes of cases in which neither Courts of law nor equity will interfere in enforcing articles, as where they are inade in contemplation of a future separation : Durand v. L. (/), Durant v. Titley (g), Westmeath v. W. {h), Hind.ley v. Westmeath (i); or in fraud of creditors ; Hobhs v. Hidl (k), Legard v. Johnson (1) ; or where an end is put to the separation by voluntary reconciliation, or decree of restitution of conjugal rights ; Head v. H. (m), Fletcher v. F. (n). The present case does not fall within any of these classes. (a) 3 V. 352. (&) 2 Cox, 99. (r) 3 Mer. 268. {d) 1 Dow, 135. (e) Id. 117. (/) 2 Cox, 207. {S^!^. John v. St. J. (b), and Westmeath v. If. (c), a Court of equity has no power to do. The injunction does not go to that extent, although, if it did, there appears to be no reason for saying that the Court may not, on the application of the trustees, prevent the appellant from a breach of his contract, after a decree for specific performance. The injunction was not an invasion of the jurisdiction of the Ecclesiastical Court, but was intended to preserve the jurisdiction of the Court of Chancery over its own decree, and to prevent the appellant from defeating it, by resorting to another Court. In Hill v. Turner (d), Lord HardivicJce restrained a woman, who married a ward of Court clandestinely, from proceeding in the Ecclesiastical Court against the infant for restitution of conjugal rights, or against his guardian for alimony. In The Bii^hop of Winchester v. Paine (e), a party was restrained by injunction from obtaining probate of a will by fraud. This injunction had for its object to compel obedience to the decree ; if that is not sustamed, the injunction falls with it ; but if it is sustained, the appellant has no reason for complaining of the injunction. * * * [They then considered the rejection of the evidence by the Vice-Chancellor.] Sir F. Kelly, in reply. * * * The Lord Chancellor (/). — In this case the articles of sepa- ration are between the husband, of the first part, the wife of the second part, and two trustees of the third part, reciting that the husband and wife had agreed to live separate and apart. The agreement is between the husband on the one part, and the two trustees, with the privity and approbation of the wife, on the other part ; and it provides, first, that the wife may live separate ; secondly, that the husband shall give up, for the use of the wife, certain property belonging to her, but in which he liad a life estate under the marriage settlement ; thirdly, that certain other estates, not included in the marriage settlement, should be enjoyed by the (a) 2 Cox, 99. (/) The case was partly hoard in \h) 11 V. 527. 184G, by Lord Lyndhurd (then Chan- (f) Jac. 125; 1 Dow & CI. 54". cellor), Lord Broughain, and Lord {d) 1 Atk. 515. Cottcnham. It was fully heard in IM 7 , (e) 11 Y. 199 (scd qiia-re, as to the by Lord Cottenham (then and in 1S)8 point). Chancellor) \\-ithout any law lord. W. & T. — VOL. I. :i8 594 HUSBAND AND WIFE. Wilson V. Wilson. wife for her separate use during their joint lives, subject to an annuity of 1,000Z. a-year to the husband ; fourthly, it provides for securing to the wife certain jewels, furniture, and other articles, and securing to the husband 1,000^. per annum ; then it provides for executing a proper deed to effect these objects ; and, lastly, it pro- vides for putting an end to a suit instituted by the wife for nullity of marriage, conditioned if the husband should keep this contract. The decree against which the appeal has been presented, directed a specific performance of these articles, and the execution of a proper deed for that purpose, with the necessary inquiries and directions ; and it restrained the husband from any proceeding to compel the wife to proceed in the suit in the Ecclesiastical Court, or to pay the costs ; and it dismissed the husband's cross cause, and ordered him to pay the costs of both suits. The appeal was attempted to be supported upon two grounds : first, on the ground that the articles had been obtained by intimi- dation and duress— this, I think, wholly failed, and the cross bill was properly dismissed, with costs; — and, secondly, because Courts of Equity ought not to entertain jurisdiction for performance of articles of separation. The second head gave rise to a very protracted and learned argu- ment, in which very many cases were cited, but of which very few of the later date, seem to me necessary to be adverted to ; for if those later cases, particularly some which have been decided in this House, have settled the law, all those which preceded them may be thrown aside. It must be observed that the decree appealed from does not touch the question of separation, but only makes provision for a previous contract for that purpose; and enforces a contract respecting property growing out of such separation. If an agreement for the separation and living apart of a husband and wife be so contrary to public policy, and therefore illegal, as to make void all arrangements of property arising from it, then, in all cases, the only question would be, whether the arrangement of property was in consideration of or dependent on such illegal agreement. But what has this House decided upon the subject ? In the very recent case of Jones V. Waite (a) the question was whether the execution of a deed {<() 9 CI. & Fin. 101. SEPARATION DEEDS. 595 "Wilson V. "Wilson, of separation was a sufficient consideration for the agreement in question there, or whether it was illegal and void. Chief Justice Tindal said : " My brothers and myself are of opinion that there is no illegality disclosed hy this agi'eement ; one part of the considera- tion for it is the execution of the deed of separation, which, as clearly , appears from the declaration, was previously agreed upon and drawn up." A case of Bateman v. Tlte Countess of Ross (a) had previously (in 1813) occurred in this House, in which Lord Eldon and Lord Redesdale held an award good, which confirmed an arrangement of property "provided the husband and wife shall continue to live separate and apart ; " Lord Eldon saying : " It was objected to the award that it assumed the jurisdiction of the Ecclesiastical Court in awarding a separation; but it did no such thing, it only assumed that there must be a separation, and provided accordingly." This case coming after that of >S'^. John v. ^t. J. (h), takes off much from the weight of Lord Eldon's observations in that case. In Westmeath v. W. (c) the objection was, that the deed provided for a future separation ; and there Lord Eldon says : " I apprehend that any instrument which provides for a present separation, and which prospectively looks to the parties living together again, and then to a future separation, that such a deed, so far as it provides for that future separation, will never be carried into effect." The authorities in this House are therefore against the appellant ; and a now long train of authorities at law and in equity has pro- ceeded upon the same ground, but I will only mention the case at law of Wilson v. Musshett (d). In Frampton v. F. (e), Lord Lang- dale considered the principle established ; and the Vice-Chaucellor has held the same in several cases, sach as Clou(jh v. Lambert (/), and Wellesley v. W. (g). It was contended that there was no consideration for the deed because there was no indemnity against the wife's debts, but only against those then owing by the husband. That, under the circum- stances, was probably a more valuable indemnity than the other (a) 1 Dow, 235. (e) 4 B. 287. (b) 11 V. 0-2H. If) 10 Si. 174. (c) 6 Bli. 367 ; 1 Dow & CI. 519. (. G70. (c) See judgment of Brett, M.E., (/) See Wilson i-. West Hartlepool Ibid., p. 427, and see further Wilson r. Ey. Co., 2 I)e G. J. & S. 47o. And iu W., supra; Hart v. II., 18 C. D. 670; McGregor v. M., supra, the considera- Hobbs r. Hiill, 1 Cox, 445. And see tion was held to be executed. GOO HUSBAND A'ND WIFE. Wilson V. Wilson. It is a principle of the Court that it will not compel specific performance of executory contracts — that is, contracts which are not intended by the parties to be final (a) — unless it can execute the whole contract on both sides (6). So where there are any stipulations in an agreement for separation contrary to law or public policy, a Court of equity will not, even if it be made on sufficient consideration, separate one portion of it from the other, and decree specific performance of part, but will refuse to decree specific performance altogether. Thus, in Vansittart v. V. (c), by a memorandum of agreement made between a husband and his wife who was suing him for a divorce, it was agreed that a deed of separation should be executed, containing, among other provisions therein mentioned, provisions that two of their children should be placed entirely in the custody of the wife, and that none of the children should be sent to any school in Berkshire, or at a less sum than 60^. a year for each child, and that neither of the two eldest sons should be sent to any school without the written consent of both husband and wife, unless to certain specified places of education. It was held by the full Court of Appeal (affirming the decision of Sir W. Page- Wood {d), that the provisions as to the children wei'e contrary to public policy, as inter- fering with the due discharge of the father's duties with respect to them ; and that on this ground, apart from all other objections, a decree for the execution of the deed of separation could not be made (e). By the Custody of Infants Act, s. 2 (/), it is provided that, " No agreement contained in any separation deed made between the father and mother of an infant or infants shall be held to be invalid by reason only of its providing that the father of such infant or infants shall give up the custody or control thereof to the mother : Provided always, that no Court shall enforce any such agi'eement if the Court shall be of opinion that it will not be for the benefit of the infant or infants to give effect thereto." In Hart v. H. (. W., 1 John. 18; Re L. J., on the authority of Evans y. Car- Matthews, 26 B. 463 ; Swift v. S., 13 rington, 2 De G. F. & J. 481. W. E. 378 ; Hunt v. H., 4 De G. F. & J. [k) King v. Mead, 1 Buit. 542 ; 221; MarshaU v. M., 5 P. D. 19; King r. Winton, 5 T. R. 91. 602 HUSBAND AND ^VIFE. Wilson V. Wilson. 2. Consideration. The following are instances of sufficient consideration : — A covenant b}^ the wife's trustees to indemnify the husband against the wife's debts {a), even when conditional upon an annuity which was covenanted to be secured being secured {h) : a contract by a third party to pay the husband's debts (c) : a contract by the wife's father that the husband and wife should live apart and that he (the father) should pay half the costs of the separation deed {d) : a renunciation by the husband of his rights in the wife's property (e) : an agreement between the husband and the wife's father that a deed of separation should contain all usual and proper clauses was held to be founded on good consideration, inasmuch as {inter alia) a covenant on the part of the father to indemnify the husband against the wife's debts would, under those words, be included in the deed as a proper and usual clause (/). As to agreements to compromise matrimonial suits, see Wils07i v. W. [g], and as to an agreement to compromise any litigation as to the wife's rights, or, semble, any intention to litigate in respect of them, see McGregor v. M. {h). An agreement by a wife who has property settled to her separate use without power of anticipation on a separation to indemnify her husband against debts, will not amount to valuable consideration, as a married woman has no power to contract so as to bind property of that description (i). But in Sweet v. S. (k), (since the i\iarried Women's Property Act, 1882), the contract by the wife alone not to molest and annoy the husband was treated as binding. 3. Breaches of Contract in Agreements for Separation. The Ecclesiastical Courts considered a separation b\' private ar- rangement as an illegal contract, implying a dereliction of stipulated duties, which the parties were not at liberty to desert, and, conse- quently, entirely disregarded it as a bar to a suit for the restitution of conjugal rights (l). (a) Stephens v. Olive, 2 Bro. Ch. () See Judicature Act, 1873 (36 & 713. 37 Vict. c. 66), s. 24. [i) Per Baggallai/, L.J.. in Clark (c) See Judicatm-e Act, 1873, s. 25, r. C, 10 P. D. 192. s.-s. 5. (k) Clark v. C, supra. Compav (d) Marskall v. M., 5 P. D. 22. AVilliams i: Baily, 2 Eq. 731. (f) Besant v. Wood, 12 C. D. 605, (/) 13 P. D. 210. 630 ; Hart v. H., 18 C. D. 670. 604 HUSBAND AND WIFE. Wilson V. Wilson. law was ordered to be decided first (a), with the result that the petition was dismissed. In Gooch V. G. (b) the parties had separated under a deed dated in 1886, which provided that no proceedings should be commenced or prosecuted by either party against the other in respect of any cause of complaint which then existed, or had arisen before the date of the deed. In 1890 the wife presented a petition for judicial separation on the ground of adultery in 1889 and 1890, whereupon the husband charged his wife with adultery in 1884. Both parties were found guilty. Held, that such words did not prevent the husband from setting up his wife's adultery as a defence. If the agreement had been framed as in Rose v. R. (c), the result would have been different, for there is no rule which prevents parties from agreeing that they wall not found an application to the Court on past misconduct (cZ). But they cannot contract the Court out of its dutj(cld). The covenants in separation deeds are not so far reciprocal that the observance of the one is a condition subsequent, on the breach of which the other fails. Thus, a breach of covenant not to molest is no answer to a breach of covenant to pay an annuity (e). A suit by a wife for judicial separation is no breach of a covenant not to "molest or disturb" the husband (/), and neither adultery alone by the wife, nor adultery by her followed by the birth of a spurious child, is a breach of a covenant in a separation deed against molestation by the wife (g). But semble, adultery by the wife, followed by the birth of a spurious child whom she puts forward as the child of her husband, especially if this is done with intent to claim a title or property to which the legitimate offspring of her husband would be entitled, is evidence of a breach of a covenant against molestation by her (/i). And a husband is not debarred from enforcing a deed of separation, and from obtaining an order restraining his wife from commencing an action for the restitution of conjugal rights by reason of trifling breaches of the covenants on his part. But he may so misconduct (a) E. S. C. 1883, O. 25, r. 2. (b) (1893) P. 99. (c) p. 605, infra. ((/) See Eowley v. E., 1 L. E. H. L. Sc. 63; Besant v. Wood, 12 C. D. 605 ; Gandy v. G., 7 P. D. 77, 168 ; Eose v. E., p. 605, infra. {dd) Good?'. G., at p. 107. (e) Fearon v. Aylesford, infra ; Hart V. H., 18 0. D., p. 683. (/) Thomas v. Everard, 6 H. & N. 448. {g) Fearon v. Aylesford, 14 Q,. B. D. 792 ; Sweet v. S., (1895) 1 Q. B. 12. (A) Fearon v. Aylesford, 14 Q. B. D. 792. SEPARATION DEEDS. 605 Wilson V. Wilson. himself as to lose his right to insist upon her covenants not to institute matrimonial suits (a). In Besant v. Wood (h) the husband had covenanted in a separation deed to allow an infant child to reside with the wife, but had subsequently concurred, as next friend of the infant in a petition under the Infants' Custody Act (c), for the removal of the infant from the wife's custody, which had been ordered by the Court ; and it was held by Jessel, M.R., that this was not a breach of the husband's covenant. In Gandy v. G. (d) there was a separation deed, by v/hich, inter alia, the wife agreed to take 250^. per annum for the support of herself and family, and not to commence or prosecute any suit to compel her husband to allow her more. The husband committed adultery and cruelty. The wife instituted a suit for judicial separation, obtained a decree, and applied for an increase of alimony contrary to the covenant. The husband set up the deed, and the C. A. held that the fact of adultery subsequent to the deed was not sufficient misconduct to deprive him of the benefit of the covenant, and that as the Court could not rectify the deed after a decree for separation, as it could have done after a dissolution (e), the deed was binding (/). In Rose v. R. (g) a wife contracted with her husband that she would not in any suit enter into his conduct before the execution of the deed. She filed a petition for adultery and cruelty committed both before and after the deed. At the hearing the adultery was admitted, and the Court held that no cruelty had been committed since the deed. The Court granted a judicial separation founded on the adultery since the deed, but refused a dissolution, as the cruelty before the deed could not be gone into. In Neivsome v. N. {h) a wife, for valuable consideration, agreed not to take proceedings against her husband on account of his incestuous adultery, " provided he remained true to her in love and duty." Upon his subsequently committing adultery, it was held that the agreement, by the terms of it, was no longer binding, and that she might proceed against him on the ground of the incestuous adultery. («) Cf. Gandy v. G., 7 1'. D., p. 80, (/) Cf. Besant /•. Wood, 12 C. D. and on appeal, p. 168. 60o ; Powell v. P., 3 P. & D. 56 ; {!)) 12 C. D. mo. Benyon v. B., 1 P. & D. 447 ; George (c) 36 Vict. c. 12. V. G., 1 P. & D. 544. {d) 7 P. D. 77, 168, C. A. {y) 7 P. D. 225 ; 8 P. D. 98, C. A. (e) Morrall v. M., (> P. D. 98 ; {h) 2 P. & D. 306. Clifford r. C, 9 P. D. 76. 606 HUSBAND AND WIFE. Wilson V. "Wilson. Seriible, that, in the absence of the proviso, he might have set up the agreement as a defence to the suit founded on the incestuous adultery before the agreement (a). The discovery of misconduct not contemplated in the separation deed, committed by one of the principal parties to the deed previous to its execution, may prevent its being set up as a bar to proceedings- in Court, contrary to a covenant therein contained. Thus, where there was a deed of separation, whereby a wife agreed to accept certain sums as a provision for her support, and not to sue her husband for any further maintenance, but subsequently having dis- covered that he had been guilty of incestuous adultery, obtained a decree for dissolution of the marriage, it was hekl that notwith- standing the deed she was entitled to the usual order for permanent maintenance. "When," observed the President, "the wife has established that her husband has been guilty of incestuous adultery, a state of things arises not in contemplation when the deed was executed, the wife is not restrained by the deed. Circumstances now justify her in bringing a suit for dissolution of marriage, and she is entitled to all the incidents of that suit, and amongst them to an allowance based on her husband's income (6). Improper conduct, also, by one of the parties, subsequent to the execution of the separation deed, may prevent such party setting it up against the other. Thus, if, after the deed of separation has been executed and acted upon, the husband institutes a suit against the wife, based on an unfounded charge, which compels her to make known, in self-defence, her own grounds of complaint against him, the foundation of the arrangement between them is removed, and the consideration fails upon whieli it was entered into, and in such case the wife is remitted to her original position, and will be allowed, notwithstanding the provisions of the separation deed, to claim the fullest redress to which before its execution she was entitled (c). In Tress v. T. (d) a wife covenanted in a separation deed that she would not take any steps to compel her husband to cohabit with her. The husband covenanted to pay her an annuity. This he paid for a short time and then made default. She sued for restitution of con- (a) See Eowley v. E., 1 L. E. 14 Q. B. D. 792, C. A. 11. L. Sc. 63; MorraU v. M., infra. (c) See Brown v. B., 3 P. & D. 202; {b) Morrall V. M., 6 P. D. 98 ; com- compare Gooch r. G., (1893) P. 99, pare Newsome v. N., supra, 605 ; supra, p. 604. Gandy v. G., 7 P. D., p. 175, C. A., {d) 12 P. D. 128. supra, p. 605 ; Fearon v. Aylesford, I SEPAflATIOX DEEDS. 601 Wilson V. Wilson. jugal riglits. He did not appear. Held, the covenant of the wife was, under the circumstances, no bar. In Moore v. M. (a) the parties separated under a deed which contained no covenant not to sue. The husband petitioned for divorce on the ground of adultery, which failed, and the wife in her answer asked for separation ; the husband did not set up the deed, and a decree for judicial separation was made. Where a deed of separation does in fact give a licence to commit adultery, it amounts to connivance, and would be a complete bar to the suit (h). Where a husband, by a separation deed to which he, the trustees, and his wife, were the only parties,, covenanted to pay the trustees an annual sum for the use of his wife, and for the expenses of main- taining and educating his daughters, it was held by the C A. that neither of the daughters by her oext friend, without the trustees, could bring an action to enforce the covenant ; but leave to amend was given, and upon the trustees refusing to be joined and to sue the husband, the Court held the wife might do so (c). " Lum casta" Clause.- — In Ga.vdy v. G. (d) it was held, that a deed of separation must be construed as an agreement, amongst other things, that the parties shall live apart in chastity, and that the subsequent adultery of the husband deprived him of the right to have the restraining provisions of the deed enforced. But it was held by the C. A. that this is not so unless the misconduct is so gross, so entirely different from that which the parties were providing for when they entered into the deed, as to entitle one of them to disregard the bargain (e). So a covenant by the husband in a separation deed to pay his wife an annuity, without restricting his liability to such a time as she shall be chaste, is good, and continues in force although the wife afterwards commits adultery (/). So where an agreement to separate provided for the execution of a deed of separation which was to contain the '■' usual covenants," Kaij, J., held that these words did not include the " dum casta" clause (^). (o) 12 P. D. 194. (/) See judgment of Br'. J., 8 P. D. 159 ; (/) See Oharlesworth u. Holt, 9 Ponsonby ;•. P.. 9 P. D. 58; Noel c. Exch. 38. N., 10 P. D. 179. ifj) lb. 41, per BruinweU, B. W. & T.— VOL. I. 39 610 HUSBAND AND WIFE. Wilson V. "Wilson. the marriage (a). There a wife, by a deed of separation, agreed to accept certain sums as a provision for her support, and not to sue her husband for any further maintenance. Subsequently, having dis- covered that he had been guilty of incestuous adultery, she obtained a decree for the dissolution of the marriage. It was held that, not- withstanding the deed, she was entitled to the usual order for permanent maintenance (b). Judicial Separation. — But in the case of judicial separa- tion (c), there being no such power, any deed executed remains binding. In Gandy v. G. (d) a husband committed adultery, and disputes ai'ose between him and his wife, which led to his committing acts of legal cruelty. A separation deed was then executed, by which he agreed to allow her 250^. a year, and to maintain the two youngest children, who were not to be in her custody ; and she covenanted not to take any proceedings to compel her husband to allow her a larger amount of alimony. Subsequently the husband again committed adultery, and the wife obtained a decree for judicial separation and an order that she should have the custody of the two youngest children. The husband had, since the date of the separation deed, become wealthy, and the wife applied for an inquiry as to his means with the view of obtaining increased alimony. It was held by the C. A., that increased alimony could not be ordered, for since the Court had not, as in the case of a decree for dissolution of marriage, power to alter the separation deed, the covenant by the wife not to sue for increased alimony was binding on her, and must have effect given to it, the husband not having been guilty of such misconduct as under the circumstances of the case would disentitle him to claim the benefit of the deed (e). But the wife would not be bound by the provisions of such a separation deed, if, although she had trustees, she had not herself un- equivocally asserted her rights under it (/). But if there is an 'agree- ment by her, of which a recital in the deed may furnish evidence, and she has accepted benefits thereunder, then she will be bound, although she herself has not covenanted, but only her trustee (g). (a) See Morrall V. M., 6 P. D. 98. Vict. c. 19; and the Matrimonial (b) See Jump v. J., 8 P. D. 159; Causes Act, 1884(47 & 48 Vict. c. 68). CMord V. C, 9 P. D. 76. {d) 7 P. D. 182. (c) As to which, see Divorce and (e) See Morrall v. M., supra. Matrimonial Causes Act (20 & 21 Vict. (/) Williams v. Baily, 2 Eq. 731. c. 85); 22 & 23 Vict. c. 61 ; 23 & 24 {g) Clark v. C, 10 P. D., p. 195. Vict. c. 144; 29 & 30 Vict. c. 32; 41 SEPARATION DEEDS. 611 Wilson V. Wilson. The existence of a separation deed, none of the provisions of which had been acted upon, was held to be no ground for refusing relief to the wife on account of the desertion of the husband some time after the execution of the deed (a). After a separation by private arrangement of the parties, a husband and wife still retain their relative positions which formerly could only be dissolved by Parliament (h), and now by proceedings under the Divorce and Matrimonial Causes Act (c) ; the husband will, conse- quently, be liable to his wife's debts, unless he provides for her main- tenance by an adequate allowance, and it is regularly paid ; in which case, he will have a good defence to an action brought against him for goods supplied to his wife {d). An ordinary deed of separation does not amount to a licence to commit future adultery (e). Hence, it was no bar to an action for damages by the husband for the seduction of his wife (/) ; nor will it, in the absence of express stipulation to that effect, prevent a wife from claiming her share of her husband's personal estate under the Statute of Distributions {g). 5. Contracts for Future Separation. All agreements providing for future separation are void, as contrary to public policy (h). However, in Rodney v. Chambers (i), a covenant to allow maintenance in case the separation took place with the approbation of trustees, was held valid (k). And a separation deed providing for immediate separation may, if (a) Cock V. C, 13 W. E. 188. {h) MarshaU v. Rutter, 8 T. E. 545. (c) 20 & 21 Vict. c. 85. (d) Hadkinson v. Fletcher, 4 Camp. 70 ; Hindley v. Westmeath, 6 B. & C. 200 ; Mizen v. Pick, 3 M. & W. 481 ; Eeeve v. Conyngham, 2 C. & K. 444. {(') Sullivan v. 8., 2 Adams, 299, at p. 303. (/) Chambers v. Caulfield, 6 East, 244. ((/) Slatter v. S., 1 Y. & C. Exch. Ca. 28. (/() Westincath v. "\\., 1 Dow & CI. 519; We.stmeath v. Sulisbuiy, 5 Bli. (N. S.) 339; and see Durant v. Titley, 7 Price, 577 ; Vandex-gucht i'. De Blaquiere, 5 My. & C. 229 ; and see Cocksedge v. C, 5 Ha. 397; Cartwriglit V. C, 3 De G. M. & G. 982 ; Bp-ne v. Carew, 13 Ir. Eq. E. 1 ; H. v. W., 3 Kay & J. 382 ; MeiTyweather r. Jones, 4 Gif. 499; Procter w. Eobinson, 14 W. E. 381. {i) 2 East, 297. {k) And see Gawden v. Draper, 2 Vent. 217; Chambers v. Caulfield, 6 East, 244 ; Soilleux v. Herbst, 2 Bos. & Pul. 444 ; Bateman v. Ross, 1 Dow, 235. 89 2 612 HUSBAND AND WIFE. Wilson V. "Wilson. not acted upon, be held void (a) if it is not something more than a mere separation deed (b). In Re Moore (c), testator directed his trustees to pay to his sister during such time as she may live apart from her husband, before his son attained twenty-one, the sum of 21. 10s. per week. The sister was then living, and until after the testator's death was living with her husband, but subsequently they separated. Held, the object of the gift was to promote separation, and therefore void. («) Westmeath v. Salisbury, supra ; supra, p. 60S. BincUey v. Mulloney, 7 Eq. 343. (c) 39 C. D. 116. (5) Euffles V. Alston ; Nicol v. N., i 613 COUNTESS OF STRATHMORE v. BOWES (a). 1789. 1 Y. juu. 22 ; 1 E. E. 76. Fraud on Marital Rights. A woman, pending a treaty of marriage with A., settled all her property to her separate use, with his approbation ; a few days after, B., by stratagem, induced her to marry him, the day after she first thought of it : B. had no notice of the settlement. The settlement was established, and a deed of revocation obtained by duress set aside. The burthens, to which a husband is liable, are a consideration for his marital rights, upon which, therefore, fx-aud may be committed. Conveyance by a woman under any circumstances, and even the moment before marriage, is good, 2^^^^'"^^'^ facie : is bad only if fraudulent, as where it is made pending the treaty, without notice to the intended husband. Lady Strathmoke, being seised and possessed of great property, both real and personal, pending a treaty of marriage with Mr. Grey, conveyed all her real, and assigned all ber personal, estate to trustees for her sole and separate use, notwithstanding any future coverture. This settlement was prepared with the approbation of Grey. A few days after the execution, hearing that Mr. Bowes had fought a duel on her account with the editor of a newspaper, who had traduced her character, she determined to marry him, and the marriage took place the next day. Bowes had not notice of the settlement. There were two bills : an original bill by Lady Strath- more, to set aside a deed revoking the settlement, as having been obtained by duress : and a cross bill by Mr. Bowes, to set aside the settlement, as against the rights of marriage, and a fraud upon him, and to establish the deed of revocation. An issue was directed, to try whether the deed of revocation had been obtained by duress ; and the verdict in the Common Pleas was against the deed. The (a) S. C, on the first hearing, 2 on ajjpeal, 6 Bro. P. C. 427, Toiiil. Bro. Ch. 345; 2 Cox, 28, affirmed, edit. 6L4 HUSBAND AND WIFE. Countess of Strathmore v. Bowes, cause coming on upon the equity reserved, Mr. Justice Buller, sitting for the Lord Chancellor, decreed in favour of Lady Strathmore, and dismissed the cross bill with costs. It came on again, upon the petition of Mr. Bowes, for a rehearing, and reversal of that decree so far as it dismissed the cross bill. Mr. Richards, for Mr. Bowes. — The question is whether this settle- ment, made before marriage, is valid or not, as being in derogation of the common rights of marriage. A wife, by the marriage contract, becomes extinct, from the nature of it, for several civil purposes with regard to which she mersjes in the husband. He becomes liable to all her debts, and answerable for all her acts that do not amount to felony ; and even for that, if committed in his presence ; because her mind is supposed to be under his coercion. In order to enable him to answer this, he has by the law all her property. It is absurd to say, the wife shall by her own act deprive the husband of what the laAV has given him. * * * Mr. Mansfield, Mr. Hardinge, Mr. Laiv, and Mr. King, for Lady Strathmore. — Lady Strathmore is in possession by a deed to trustees, giving her own property to her use. It was done in contemplation of marriage with another person ; therefore not fraudulent as to Mr. Bowes, unless any deed by a feme sole, by which she disposes of her property, shall be construed to be fraudulent if not communi- cated to any future husband. Want of communication is the only circumstance that can be alleged ; but that is very different from concealment, for which there can be no pretence here. * * * It is enough for us to say, Mr. Bowes was not cheated. Lord Chancellor Thurlow. — The mere question seems to be, what is the true foundation for setting aside an instrument j57"m^ facie good ? Can less be imputed to it than fraud ? Or can it be void upon the notion of general policy, as has been urged for Mr. Bowes ? If not, must not fraud be imputed ? and, if so, will the circumstances of its being made in contemplation of marriage affect it with fraud ? Suppose a relation had given 10,000/. for her sole and separate use ; if she had represented it as her own absolutely, so that, upon a marriage, it would have gone to her husband, this Court would have FEAUD ON MARITAL RIGHTS. 615 Countess of Strathmore v. Bowes, compelled the trustees to give it to the husband, but not other- wise {a) ; nor is there any difference between a fortune so circum- stanced by an act of her own, or of the donor. Consider what will be the effect of this void deed of revocation ? If he had joined with her to revoke that settlement and appoint new uses, he could not have rescinded that afterwards ; because he had affirmed the deed by acting upon it. If he had acted honestly upon it, as in the case I have put, he could not have set that aside ; his counsel are to show that he may, because he has acted dishonestly upon it, which at present I think rather a vain attempt. I never had a doubt about this case. If it is to be considered upon the ground of its being against a rule of judicial policy, the arguments for Mr. Bowes would have had great weight. The law conveys the marital rights to the husband, because it charges him with all the burthens, which are the consideration he pays for them ; therefore, it is a right upon which fraud may be committed. Out of this right arises a rule of law that the husband shall not be cheated on account of his consideration. A case of this kind came before me a few days ago (6). A woman adult, about to marry an infant, made a settlement, in con- templation of that marriage, in which he joined, though an infant, for the purpose of expressing his consent. As it was upon fair con- sideration, and no fraud to draw him in as an infant, I thought the circumstance of its being fair would bind him, though, as an infant, not capable of consenting; according to which I held the settlement good, as she was capable of conveying ; and as it was a public and open transaction, with the consent of the family, and consequently no fraud, though his being privy to it would not have concluded him from any rights as being an infant. A conveyance by a wife, whatsoever may he the ci/reumstances, and even the moment before the marriage, is prima facie good, and becomes bad only wpon the imputation of fraud. If a vjoman, during the course of a treaty of marriage with her, makes ivithout notice to the intended husband, a conveyance of any part of her property, I should set it aside, though good prima facie, because affected tvith that fraud. {(() See Ashton v. M'DougaU, 5 B. {h) Slocombe v. Glubb, 2 Bro. Ch. 66. 545. 616 HUSBAND AND WIFE. Countess of Strathmore v. Bowes. As to the morality of the transaction, I shall say nothing to that. They seem to have been pretty well matched. Marriage in general seems to have been Lady Strathmore's object : she was disposed to marry anybody, but not to part with her fortune. This settlement is to be considered as the effect of a lucid interval, and if there can be reason in madness, by doing this she discovered a spark of understanding. The question which arises upon all the cases is, whether the evidence is sufficient to raise fraud. Even if there had been a fraud upon Grey, I would not have permitted Bowes to come here to complain of it. But there was no fraud, even upon Grey, for it was with his consent ; and so I cannot distinguish it from a good limita- tion to her separate use. Being about to marry Grey, she made this settlement with his knowledge ; and the imputation of fraud is, that having suddenly changed her mind and mamed Mr. Bowes, in the hurry of that improvident transaction she did not communicate it to him ; but there was no time, and could be no fraud, which consists of a number of circumstances. It is impossible for a man marrying in the manner Bowes did, to come into equity and talk of fraud. There- fore, the decree must be affirmed, with costs ; but let him have all just allowances as to what he paid when in receipt of the profits, and as to the annuities, which are declared not to be disturbed by the decree. Is^OTES. The doctrine of fraud on marital rights has, having regard to the Married Women's Property Act, 1882, lost much of its importance. Mr. Vaizey, in his work on Settlements, says (a) : " In the old sense, therefore, of the husband being deprived of something to which, as a husband, he would have a right, if the wife had not before marriage executed a conveyance, fraud on marital right does not appear to be any longer possible, . . . but the necessity of the most abundant good faith in such a contract as that of a settlement made on a marriage is so obvious and cogent that it would be rash to conclude that the Act has wholly deprived of effect the doctrine here con- sidered." The nile upon which the Courts acted in setting aside a settlement (a) Vaizey, Settlements, pp. 1581, 1585, 1586. FRAUD ON MARITAL RIGHTS. 61' Coxmtess of Strathmore v. Bowes. made by a woman of her own property previous to maiTiage, in violation or fraud of the marital rights of her intended husband, is well laid down by Lord Thurloiu. " A conveyance by a wife, whatsoever may be the circumstances, and even the moment before the marriage, is priTnd facie good, and becomes bad only upon the imputation of fraud. If a woman, during the course of a treaty of marriage with her, makes, without notice to the intended husband, a conveyance of any part of iier property, I should set it aside, though good prima facie, because affected with that fraud." The concurrence of two circumstances, pendency of a marriage treaty and ignorance on the part of the intended husband, ordinarily sufficed to invalidate a settlement, but fraud will depend on the particular circumstances of each case (a). The actual decision, however, does not come within this principle ; for it will be observed, the settlement was made by Lady Strathmore with the consent of Grey, her then intended husband, and not during the course of a treaty of marriage with Bowes, whom she afterwards married, and it was, therefore, not a fraud upon him. It was necessary, therefore, for a person impeaching a settlement on the ground of this species of fraud, to prove that, at the time of its execution, he was the then intended husband, otherwise it would not be set aside (6), and the husband only and not his representatives could complain (c). It is clearly settled, that if a woman, during a treaty for marriage, held herself out to her intended husband as entitled to property, which will become his upon the marriage, and then makes a settle- ment of it without his knowledge or concurrence, actual friiud would be imputed to her, and the settlement would be set aside in a Court of equity {d). It was observed by Buller, J., that " Fraud consists in falsely holding out that a woman has an estate unfettered, and that the husband will be of course entitled to it. No case has yet established, that all conveyances by a wife before marriage are void merely because not communicated to the husband." And again, " It is necessary to show other facts, and that the husband is actually deceived and misled; and the bare concealment is not sufficient (e)." These dicta, however, can scarcely be supported, (a) See Vaizey, Settlements, vol. ii., 1585 ; Grazebrook v. Percival, 14 Jur. p. 1583. 1103. (J) England v. Downs, 2 B. 522 ; {d) England v. Downs, supra ; see Ball V, Montgomery, 2 V. 194, 2 E. E. also Howard v. Hooker, 2 Ch. E. SI , 197. Carleton r. Dorset, 2 Cox, 33. (c) Vuizey, Settlements, vol. ii., p. {e) 2 Cox, 29, 30. •■•i 618 EUSBAND AND WIFE. Countess of Strathmore v. Bowes. although there have been some cases in which, under peculiar circum- stances, it has been held that a hare concealment by a woman from her intended husband, of a gift or a settlement of part of her property made during the treaty for a marriage, was not sufficient evidence of fraud, so as to render the settlement void as against the husband (a). However, in Goddard v. Snow (h), a woman ten months before marriage, but after the commencement of that intimate acquaintance with her future husband which ended in marriage, made a settle- ment of a sum of money which he did not know her to be possessed of. The marriage took place, she concealing from him both her right to the money and the existence of the settlement. Ten years after- wards she died, and after her death the husband filed a bill to have the money paid to him. It was argued, on behalf of the defendants, that, as the husband did not know of the existence of the sum of money, and was therefore not induced to contract the marriage on the notion that it would be subject to his marital rights, no fraud, such as the authorities held to be necessary, had been committed ; that there was, at the utmost, only concealment, and that conceal- ment alone was not sufficient to avoid a settlement confessedly valid at law. Gifford, M.R., however, held that the settlement was void against the husband, as a fraud upon his marital rights (c). It has been supposed that a settlement by a widow upon her children by a former marriage, even if made during the treaty for a~ second marriage, without the knowledge of her intended husband, is valid, because the object of the settlement, it has been said, is meritorious. Hunt v. MattJtetvs {d), and King v. Cotton (e), have been cited as supporting the proposition; it appears, however, by an extract from the decree in Raithby's edition of Vernon, that the husband, in Hunt v. Mattheius, consented to the settlement being made by his intended wife upon her children by a former marriage ; and in King v. Cotton, the settlement was made by Lady Cotton upon the children of a former marriage, previous to her entering wpon a treaty for a second marriage. And see England v. Doiuns, supra. {a) See Thomas v. Williams, Mos. case ; see also Downes v. Jermings, 177. 32 B. 290; Prideaux v. Lonsdale, 1 De {h) 1 Euss. 485. G. J. & S. 433 ; Chambers v. Crabbe, (c) See St. George v. Wake, 1 My. 34 B. 457. & K. 622, where Lord Brougham says, {d) 1 Vern. 408, that the principle was carried fui-ther (e) 2 P. W. 674. in Goddard v. Snow than in any other FRAUD ON MARITAL RIGHTS. 619 Countess of Strathmore v. Bowes. The fact that the husband was ignorant that his wife had any property, or that she has practised no actual deception upon him, would not, it seems, be sufficient to prevent the Court from setting aside a settlement made in fraud of the marital right. See Taylor v. Pugk (a), in which case, however, Wigixim, V.-C, decided against the husband upon other grounds. But a gift or settlement, by a woman, of her property, during the treaty for marriage, would not be set aside, if the husband knew of the gift or settlement before the marriage (b), even though the husband be a minor (c). The seduction by a man of his intended wife might be a reason why the Court should not set aside a settlement made by her before marriage. Thus, in Taylor v. Pugh (d), where a man had induced his intended wife to cohabit with him previously to marriage, Wigram, V.-C, refused to set aside a settlement of her property, although executed without his knowledge, during the treaty for the marriage, because her husband, before the marriage, had put it out of the power of the wife effectually to make any stipulation for the settlement of her property, by his conduct towards her (e). The concurrence of the husband in making a settlement would preclude him from taking any objections to it ; but not, it seems, if he be a minor (/). The case of Slocombe v. Gluhb, reported in 2 Bro. Ch. 545, and referred to in the principal case, was, according to Selborne, C, decided against the husband, who had concurred in the settlement while a minor upon the ground " that as he had taken a benefit under the settlement, he could not reject it in part and accept it in part (g). As to settlements made under the Infants Settlements Act (/i), see note to Eyre v. Countess of Shaftsbury, ante (i). In a case in 1863, a settlement made by a woman of her personal property after her engagement to be married, was set aside at the suit of the husband, although he was told before the marriage that she had executed a settlement affecting her property, it appearing {(() 1 Ha. 608. (e) But see Downes v. Jennings, 32 {h) St. George v. Wake, 1 My. & B. 290. K. 610 ; Ashton v. M'DougaU, 5 B. (/) Nelson v. Stocker, 4 De G. & J. 56 ; Griggs v. Staplee, 2 De G. & Sm. 458. 472. (v) Kingsman v. K., 6 Q. B. D., p. (c) Slocumbe v. Glubb, 2 Bro. Ch. 125. 645 ; Wrigley v. Swainson, 3 De G. & (7i) 18 & 19 Vict. c. 43. Sm. 458. (0 Shelford, R. P. S. (1893), p. 312. {(l) 1 Ha. 608. 620 HUSBAND AND WIFE. Countess of Strathmore v. Bowes. that neither she nor her husband was accurately informed of the nature and effect of the trusts of the settlement (a). If a husband acquiesced in, or confirmed, a settlement, he would not afterwards be allowed to dispute it (b). But in Doivnes v. Jennings (c), it was held that delay in institut- ing a suit for two and a half years after the discovery by the husband of the settlement did not operate as a bar. If a woman gave a security to a volunteer, prior to marriage, with- out the consent of the intended husband, it might be set aside by him {d). But where a woman, about to marry, gave a bond for valuable consideration, although without her intended husband's knowledge, it was held that the husband could not be relieved against it. But concealment of such securities or debts is not to be encouraged (e). Fraud on Intended Wife. — It has been stated that a conveyance in trust privately made by the husband on the eve of marriage, for the purpose of barring dower, would be decreed fraudulent, as being designed to deprive the wife of the provision given her by the common law (/). But Mr. Vaizey points out that this equity, as regards the husband, rests upon the peculiar right which a man had in his wife's property, and that a wife has no similar equity {g). For a decree setting aside a settlement as a fraud on marital rights, and declaring the trusts of a new settlement, see Seton (1893), p. 1951. (a) Prideaux v. Lonsdale, 4 Gif. 159; 1 De G. J. & S. 433. (?;) St. George v. Wake, 1 My. & K. 610 ; Maber v. Hobbs, 2 Y. & C. Ex. Ca. 317, 2 B. 535. (c) 32 B. 290, 523. (c^) Lance v. Norman, 2 Ch. R. 79. (e) Blanchet v. Foster, 2 V. 264 ; Llewellin Cobbold, 1 Sm. & G. 376. (/) Lex Prcet. 267 ; 1 Bright, H. & W. 356; and see Drury v. D., Wil- mot's Opinions, 177 ; 4 Bro. Ch. 506, n. (o). {g) Vaizey, Settlements, vol. ii., p. 1587 ; and see Swannock v. Lyford, Co. Litt. 108, n. 1 ; Banks v. Sutton, 2 P. W. 700 ; 1 Bright, H. & W. 357 ; McKeogh V. M., Ir. R. 4 Eq. 346. 621 ELIBANK V. MONTOLIEU. 1799, 1801. 5 V. 737 ; 5 E. E. 151. I Wife's Equity to a Settlement. Upon the bill of a married woman, entitled to a share of the personal estate as one of the next of kin of the intestate, against her husband and the administrator, the latter claiming to retain towards satisfaction of a debt by bond from the plaintiff's husband to him, it was declared he was not entitled to retain : but that the plaintiff's share was subject to a further provision in favour of her and her children, the settlement on her marriage being inadequate to the fortune she then possessed ; and it was referred to the Master to see a proper settlement made on her and her children, regard being had to the extent of her fortune and the settlement already made upon her. In 1795, Lady Cranstown died intestate, possessed of large personal property, leaving two brothers and two sisters her next of kin. Lewis Montolieu, one of her brothers, took out letters of administration to her. The bill was filed by Lady Elibank, one of the sisters, against her husband Lord Elibank, and against Montolieu, praying an account of the "plaintiff's share, and that it may he settled on her and her family. The defendant Montolieu, by his answer, claimed to retain Lady Elibank's share towards satisfaction of the debt due to him from Lord Elibank by two bonds — one dated the 31st of May, 1783, for 12,217Z. 9s. 9fZ. ; the other, dated the 14th November, 1794, for l,000i. — upon the ground of the provision made for the plaintiff hy the settlement previous to her marriage with the defendant Lord Ulibank, in 1776. By that settlement, the sums of 12,000^. and 5,000^. New South Sea Annuities were settled in trust for Lord Elibank for life; and after his decease, for Lady Elibank for life as a jointure, and in lieu of dower or thirds ; and after the decease of both, in trust for the children. The sum of 4,000^. New South Sea 622 HUSBAND AND WIFE. Elibank v. Montolieu. Annuities was settled in trust for her separate use for life ; and after her death, for her children ; and 2,000L 51. per cent. Bank Annuities for her separate use for life ; and after her death, for her children, as she should by will appoint. All these sums were her property before marriage. The settlement also gave her some contingent interests. In the entail of Lord Elibank's estate, a power was reserved to charge 200^. a year jointure, and 501. a year to each of his younger children, not exceeding in the whole 200^. a year, under a condition, that the estate should be chargeable with only one jointure at a time ; and that, if the power of charging for children had been exercised by a preceding heir in tail, the heir in possession should not charge for his younger children. The defendant Lord Elibank, by his answer, stated that a former Lord Elibank did charge to the full extent of that power. The Solicitor-General, Mr. Grant, and Mr. Alexander, for the plaintiff. — The plaintiff desires an account of the personal estate of Lady Cranstown, and that a provision may be made for her. The defendant Montolieu insists that is not to be done, because he is a creditor of her husband ; contending that this case is out of the usual rule upon which the Court acts for a wife ; and that there is no necessity to come to this Court, the fortune not being in Court nor under the control of the Court. * * * But suppose the husband could sue at law, this defendant could not make this defence, that he will not pay, but will keep this fund in satisfaction of the husband's debt to him ; for it is clear, at law, a creditor of the husband cannot set off the husband's debt against the demand of the husband and wife, and being entitled in her right he must sue with her. Still less should he be permitted to retain in equity upon that ground ; for, where he is permitted to avail himself of the legal right, the right must be clear. * * * The Attorney -General, Mr. Mansfield, and Mr. W. Agar, for the defendant Montolieu. — The objection to the form of the suit would merely occasion delay ; and a bill would be filed in their joint names. There is no case in which the Court has decreed against a trustee who had paid the husband without suit that the wife had an equity to charj^e the trustee. * * * All the instances are, where the WIFES EQUITY TO A SETTLEMENT. 623 Elibank v. Montolieu. person has refused to pay, unless compelled by a Court of equitv. That gives the jurisdiction ; and none can be produced, where the executor has been prevented from paying to the husband, if he chose to do so ; or where, having paid to the husband, he has been charged as upon a breach of duty by reason of that payment, and made to refund. This case is certainly new, in the circumstances that the husband is debtor to the other defendant; but if he could have paid the husband, and the Court would not have made him refund, there can be no difference from his retaining against the husband. Suppose Lord Elibank had sued, and the equity of the wife, having a ver}'- large provision, was out of the question, this Court would never compel the administrator to pay that share to his debtor, unless the latter would allow the debt. This Court goes infinitely beyond Courts of IsiW, as to set-off. It would be strange to permit the wife to intervene against the administrator retaining, where she could not intervene to prevent his paying her husband, and the husband paying his debt out of that. * * * There is no instance of a bill, by the wife against her husband, to have the property settled to her separate use ; which is the object of this bill. This property, though subject to the equity of the wife, is the property of the husband. The Solicitor- General, in reply. — The rule is clear, that, wherever the husband becomes entitled to sue in right of his wife, she must consent that he shall have it, or he is under the necessity of making a settlement, unless the Master is of opinion that the settlement already made by the husband is such as to answer all the purposes of the wife. * * * Lord Chancellor Loughborough (a). — I wish to consider this case. Feb. 19th, 1801. Lord Chancellor Loughborough.— The only difficulty I had in this cause was upon the form of the suit; whether a married woman by her next friend could be the plaintiff in this Court. With respect to the point made by the answer of Montolieu, that («) Afterwards Earl of Eopslyn. 624 HUSBAND AND WIFE. Elibank v. Montolieu. he had a right to retiin against the debt of the husband, being possessed of the fund as administrator, and the wife being one of the next of kin, I am very clearly of opinion the defendant had no right to retain. The administrator is trustee for the next of kin : the plaintiff being one of them, if she has any equity against her husband with regard to this money, that equity will clearly bar any right of retainer he can set up to the property of which he became administrator. With respect to the only difficulty I had upon the point of form, if she is entitled, and there is no way of asserting her right against the husband, except by a bill, that objection, I think, does not weigh much. If the defendant Montolieu had done what would have been the natural thing and the right thing, and what he certainly would have done but for his own interest, he would have been the plaintiff, desiring the Court to dispose of the fund, and for her benefit, to protect her interest in it. Then, upon all the circumstances, it is very clear, if it had come before the Court, it would have been matter of course to have pronounced upon her equity upon the bill of the administrator, praying that the money in his hands might be properly disposed of; and I would not have suffered this money to be paid to Lord Elibank without making a provision for her, for the provision upon her marriage was clearly not adequate to her fortune ; and it is clear that provision was made upon the expectation, that, by circum- stances to occur in his family, there would be an opportunity to do better for her at a future period. The difficulty was, that it was very unusual in point of form — the bill coming on the part of the wife, instead of the husband. Declare, that the defendant Montolieu is not entitled to retain, in satisfaction of the debt due from the defendant Lord Elibank to him, but that the distributive share of Lady Cranstown's fortune, accruing to the plaintiff, as one of her next of kin, is subject to a farther provision in favour of the plaintiff and her children, the settlement made upon her marriage being inadequate to the fortune she then possessed. Refer it to the Master to take the accounts, and to see a proper settlement made upon the plaintiff and her children, regard being had to the extent of her fortune and the settlement already made upon her. 625 MURRAY V. LORD ELIBANK. 1804. 10 V. 84 ; 7 E. R. 346. Wife's Equity to a Settlement. Children have a right to a provision out of the property of their mother, under a decree directing a settlement by the husband on her and her children, notwithstanding her death before the report, but the mother may waive her equity to a settlement, and so defeat the riglit of the children at any time before completion. Previously to a bill a trustee for a feme covert may pay her personal property, or the rents and profits of her real estate, to her husband ; not after bill filed. Demurrer to the bill of the children was overruled. The bill was filed by the infant children of Lord Elibank, statin^ the proceedings in the cause Lady Elihanh v. Montolieu, and the decree, directing the Master to approve a proper settlement to be made by the defendant Lord Elibank on the plaintiff, Lady Elibank his wife, and her children by him, regard being had to the extent of her fortune and the settlement already made upon her by Lord Elibank. The bill farther stated, that before any report Lady Elibank died intestate ; and prayed that it may be declared, that the plaintiffs and the defendant Alexander Murray, another child of Lord and Lady Elibank, have, under the decree of the 19th February, 1801, a right to have a provision made for them out of the said one-fourth of the personal estate of Lady Cranstowu : and that it may be referred to the Master to approve of a proper settlement to be made bv the defendant Lord Elibank upon the plaintiffs and the defendant Alexander Murray, being all the children; regard being had to the extent of the fortune of Lady Elibank, and the settlement already made by Lord Elibank. To this bill the defendant Montolieu put in a demurrer. Mr. Alexander and Mr. Cooke, in support of the bill. — * * * Here is a decree, establishing this right of the children in tlie life of w. & T.— VOL. I. 40 626 HUSBAND AND WIFE. Murray v. Lord Elibank. the wife, and the settlement is to be considered as made at the date of the decree, and in the nature of an agreement sanctioned by the Court, giving the husband the fortune upon terms. In Martin v. Mitchell, the case before Lord Thurlotu in 1779, the Court, after the death of the wife before a settlement, carried the proposal into execution against an assignment to a creditor. They also cited Roiue V. Jackson (a) and Hearle v. Greenhank (h). Mr. Richards and Mr. W. Agar, in support of the demurrer. — * * * In Macaulay v. Phillips (c), it was held, that the decree gave no interest to the husband, but it survived to the wife ; and Lord Alvanley says, if she died, notwithstanding his proposal, he would have been entitled. * * * LoED Chancellor Eldon. — There are two points upon this demurrer ; one of form, the other upon the merits. If the wife has this equity for a provision for herself and her children up to the moment of the completion, it is competent to her to give it to her husband. A great variety of proceedings have occurred, in which the Master has stated, that, with reference to the point of settlement, the party had waived it ; and I apprehend, it will be found that she may, between the period of the order and her death, waive the benefit of that order {d). The question then is, if between the date of the order and her death, she does not, by some authoritative proceeding, express an alteration of her mind, whether that order is to stand for the benefit of the children. The two decisions that have been mentioned are strong authorities for that. Let an inquiry be made into the circumstances of those cases ; and, as to the latter, whether the assignees of the husband were heard or not. July 30th, 1804 Mr. Alexander, for the plaintiffs, stated the case of Martin v. Mitchell, from the Register's book, in which the motion before Lord (a) 2 Dick. 604. [d) See Lloyd v. Williams, 1 Madd. (i) 3 Atk. 695. 466. (c) 4 V. 15. wife's equity to a settlement. 627 Murray v. Lord Elibank. Thurloiv, in 1779, was made. In 1777, a decree was made for an account, and that what should be found due to Hannah Fearns should be paid into Court, to her separate account, with the usual direction for a settlement. The sum of 3,000^. was, by the report, stated to be due, and was carried over. After her death, in 1779, the motion referred to in Roiue v. Jackson, to pay that sum to the husband, was made, and refused ; and an order was made, directing the husband to go before the Master, and execute the order for a proposal. That proposal Avas carried into effect, by petition, at the Rolls ; and, under another order, in 1803, stating all the proceedings, the children were paid. * * * Lord Chancellor Eldon. — The question is, what is the effect of such an order, as constituting a right in the issue to a provision, if the wife dies without any act done after the date of that order. If this case had been antecedent to the period when the manuscript case to which Mr. Madocks alluded was decided, it would have been very difficult, consistently with what the Court does with the wife's property, to say there was such a right as is now asserted, upon a proceeding that went no farther than an order to lay a proposal before the Master. The husband, where he can, is entitled to lay hold of his wife's property, and this Court will not interfere. Previously to a bill, a trustee, who has the wife's property, real or personal, may pay the rents and profits, and may hand over thu personal estate to the husband. Lord Alvanley, in Macaiday v. Philips, has laid down, that, after a bill filed, the trustee cannot exercise his discretion upon that ; that the bill makes the Court tlie trustee, and takes away his right of dealing with the property, as he had it previously. I have heard that otherwise stated in this Court, at the bar, at least. But that case is the last ; and I think contains very wholesome doctrine upon that point. I should have supposed, a decree made in the cause proceeded upon the right or equity in tlio wife at the filing of the bill ; for decrees are only declarations of the Court upon the rights of the parties when they begin to sue. The wife is entitled to call for a declaration, that she then had a right to a provision for herself and her children ; and yet it is clear, after such a bill filed, she might come into Court and consent to her husband's having the fund entirely under his dominion. If she does not, the 40 2 628 HUSBAND AND WIFE. Murray v. Lord Elibank. Court, by the decree, orders a proposal to be made for a settlement upon the wife and issue. It has been truly observed, that this doctrine is a mere creature of the Court, founded altogether in its practice. The case of Macavlay V. PJiilijJS proves, what I should have had no doubt upon, that not- withstanding that order for a proposal, if either party died while it rested merely in proposal, that would not affect the right by survivor- ship as between the husband and wife. There were no children in that case, certainly. It is not unfrequent, where the Master makes his report after a decree, for him to state, that the parties had declined to lay a proposal for a settlement before him. That has occurred since I have sat here; but, when at the bai', I was frequently concerned in this final arrangement, that, notwithstanding such order by the original decree, upon further directions the wife came consenting that the fund should be taken out of Court, and was permitted to do so. If, therefore, the issue have a right against the father, it is dependent altogether upon the will of the mother. There is, perhaps, some difficulty in making all the principles of the Court upon this subject consistent with the notion of such right in the children ; but it is not for me to reconcile all these principles, if there is practice sufficient to establish a given course as to that. In Rotoe V. Jackson (and I can, from my own memory, confirm both accounts of that case), upon an application, where it was necessary to consider whether, the wife never having expressed any change of opinion between the period of the order for a proposal and her death, that order gave the children any right, Mr, Madocks stated, that it was not according to the practice, after that order, to permit the husband to avail himself of the deatii of the wife to take the fund, leaving the children unprovided. His authority, always considerable, is in that instance peculiarly to be regarded, as he referred to another case, in which Lord Thurloio was satisfied that such was the rule, and acted upon it. But it does not rest there ; for in a subsequent case it is clear from the Register's books that Mr. Mansfield, after the death of the wife, moved that a sum of money should be paid to the husband ; and Lord Thurlow refused that application, upon the ground that the order for a proposal on behalf of the children was an obstacle. That was followed by what Lord Alvanley did upon a petition ; whether regularly or not, will not shake the doctrine, considering what had wife's equity to a settlement. 629 Murray v. Lord Elibank. been done before. lu that instance, Lord Alvanley would not deliver out that small sum, little more than 300^., until satisfied that there was some provision for the children. Taking all this together, however numerous the difficulties upon it, it is too much for me to say, upon the argument of a demurrer, all that has been done in the cases referred to is to go for nothing, because it is difficult to say, ah mite, it should be done, and that I am to set up a different course of practice. I agree also with Mr. Alexander, as to tlie dictum of Lord Alvanley in Macaulay v. Philips, which construction is necessary to make him consistent ; and attention being given to the circumstance that there were no children, there is no inconsistency in that case. The principle must be, that the wife obtained a judgment for the children, liable to be waived, if she thought proper ; otherwise, to be left standing for their benefit at her death. Next, as to the form : if the children have acquired a riglit by the judgment in the former suit, it is subsequent to the institution of the proceeding in that suit; and unless they can apply by petition, under the liberty to apply, I do not see how they can, except by supple- mental bill. The demurrer, therefore, ought to be overruled. If, upon the hearing of the cause, this should turn out to be wrong, it is infinitel}' better that it should go to the House of Lords upon a full hearing. Demurrer overruled. Subsequently in 1809, this cause came for hearing before Grant, M.R., and the plaintiffs were held clearly entitled. The case is reported in 13 V. p. 1, and 14 V. p. 496. 630 HUSBAND AND WIFE. Murray v. Lord Elibank. NOTES. 1. Generally. 2. Duty of trustee, p. 632. 3. Property subject to the equity, p. 632. 4. Eights of children, p. 637. 5. As to the amount to be settled, p. 639. 6. As to the settlement, p. 641. 7. Waiver of settlement, p. 644. 8. Where the equity is barred or does not arise, p. 649. 9. Against whom the equity is binding, p. 652. 1. Generally. From a very early period the Court of Chancery recognized in certain cases a wife's equity to a settlement out of property which the husband was entitled to receive "jure mariti." This equity is now superseded to a great extent by the Married Women's Property Act, 1882, which excludes the husband's rights where the marriage took place after 31st Dec, 1882. It is only applicable now in cases in which the marriage happened before 1883 («), and the property accrued before that date (b). By common law, on marriage, the husband became entitled to receive the rents of the wife's real estates during their joint lives, and he became absolutely entitled to all her chattels personal in possession and to her choses in action, as debts by obligation, contract, or otherwise, if lie reduced thevi into possession; or if he did not, as administrator of his wife, if he survived her ; and he became also entitled to her chattels real, with full power to alien them, though if he died before his wife, without having reduced into possession her choses in action, or without having aliened her chattels real, they would survive to the wife (c). The jurisdiction to compel the husband, or those claiming under him, to make a settlement upon the wife, was first assumed where it was necessary for the husband to apply to the Court, as in cases in which a trustee declined to pay, &c., the wife's possessory interest to the husband, and the Court, acting upon the maxim, that [a) Vaizey, Settlements, p. 271 ; (6) Cf. Eeid r. E., 31 C. D. 402. Lewin (1891), p. 848 ; Seton(1893), p. (V) See Langham v. Nenny, 3 V., 800. p. 469 ; Fleet v. Perrins, 4 Q. B. 500. WIFES EQUITY TO A SETTLEMENT. G31 Murray v. Lord Elibank. he who seeks equity must do equity, withheld its aid until an adequate settlement was made upon the wife {(i). But since the decision oi Elihanh v. MontoUeu, the wife has been permitted actively to assert her equity as a plaintiff in a suit (6) ; or if there be already an existing suit, by petition therein (c) at any time before the husband has actually reduced his wife's equitable property into possession {d). Judicature Act, 1873. — The Supreme Court "is now not a Court of law or a Court of equity, but a Court of complete jurisdiction, and if there is any variance between what a Court of law and a Court of equity would have done, the rule of the Court of equity must now prevail," per Earl Cairns in Pwjh v. Heatli (e), and all the Courts are to recognise and take notice of all equities (/). But the distinction between legal and equitable interests is not abolished (g). The ques- tion may therefore arise whether a woman is entitled to claim an equity to a settlement out of a legal chose in action (h), and it seems it would be answered in the affirmative, see judgment of North, J., in Fowke v. Draycott (i). As the equity first arose upon the husband's coming to a Court of equity for assistance, which the Court withheld until a i^rovision for the wife was secured (k), it would se§m that the Supreme Court will now, as the equitable rule is to prevail, recognise and give effect to this equity whether the subject- matter of the action be legal or equitable. As to the jurisdiction of the Court of Bankruptcy, that Court is now part of the Supreme Court (^). As to its former jurisdiction with regard to this equity, see J^xp. Norton (m) and Ex 2). Goysegame{n). The right is an obligation which the Court fastens not on the property, but upon the right to receive it (o). (a) Bosvil V. Brancler, 1 P. W. 459 ; Act, 1873, s. 25, s.s. 11. and see Story (1892), p. 957; Lewiii, (/) Ibid., s. 24, s.s. 1, 2, 4 and 11. (1891), p. 835; Seton (1893), p. 800; [y) Joseph v. Lyons, 15 Q. 13. D. Vaizey, Settlements, p. 271. 280. {!>) Duncom.be v. Greenacre, 28 B. {h) See Ruffles v. Alston, 19 Eq. 472 ; Jte Briant, infra. 539. {<■) Greedy v. Lavender, 13 B. 62 ; (i) 29 C. D. p. 1003, infra, p. (533. Scott V. Spashett, 3 Mac. & G. 599. (A-) Ward v. W., 14 C. L. 508. ('/) And see Newenham v. Pember- (/) Bankruptcy Act, 1883, s. 93. ton, 1 Le G. & Sm. 644, and the re- [m) 8 De G. M. & G. 258. marks thereon in Be Potter, 7 Eq. (?i) 1 Atk. 192. 487 ; and lie Briant, 39 C. D. p. 476. (o) Osborn v. Morgan, 9 Ila. 432. («) 7 App. Cas., p. 237 ; Judicature 632 HUSBAND AND WIFE. Murray v. Lord Elibank. 2. Duty of Trustees. A trustee is always justified in refusing to pay over, even at her request, the wife's fund to the husband, thereby enabling him to reduce it into possession ; and in thus insisting on affording her an opportunity of asserting her equity to a settlement (a). Where a trustee has reason to believe that the husband and wife have agreed to settle a sum of money in his hands, and especially if the wife does not distinctly express a wish that a payment is to be made to her husband, he would be justified in paying the money into Court (b). Where a trustee paid into Court, under the Trustee Relief Act, a fund to which a married woman was absolutely entitled, he was held entitled to his costs as between solicitor and client (c). And probably unless his conduct has been capricious or vexatious he would now generally get his costs. The trustee may join in a settlement of the wife's funds, and, with the consent of the husband, he may transfer them to the trustees of an existinof settlement, and such a settlement will be as valid as if directed to be made by the Court (d). As to the liability of trustees for acts after action commenced, see infra, p. 64<9, 3. Property subject to the Equity. The wife's equity includes all unsettled property to which she is entitled, Avhether vested in her in interest before or after marriage (e), and she has the same equity out of property in which she has a life interest, as out of that in which she has an absolute interest (/). Where the property of the wife is equitable (or legal?) (g) the husband or his assignees will only obtain it upon the terms of making a settlement upon the wife and her children, if she require one to be mafle (h). Where an equitable estate in fee descended on a married woman, the Court, by virtue of her equity to a settlement, has settled ((f) Re Swan, 2 Hem. & M. 34 ; Eli- bank V. Montolieu, supra. (h) Re Bendysbe, 3 Jur. (N. S.) 727. See the Trustee Act, 1893, s. 42. (c) Re Swan, supra, not followed in Re Roberts, W. N. (69) 88. {d) Montefiore v. Behrens, 1 Eq. 171 : Re Roberts' T., 38 L. J. Ch. 708. (e) Williams, Exors. (1893), p. 1278. (/) Taunton v. Morris, 11 CD. 779. {g) See now (n.) " Judicature Act, &c." supra, p. 631, and Fowke v. Draycott, infra, p. 633. {h) Milner v. Colmer, 2 P. W. 639 ; Elibank v. MontoHeu, supra. wife's equity to a settlement. 633 Murray v. Lord Elibank. the estate on her during her life, but has refused to interfere witli the possible estate by curtesy of the husband (a). And even where the property, though in its nature legal, became, from collateral circumstances, the subject of a suit in eijuity, it appears that the wife's equity to a settlement would attach (6). In Fo'wke V. Draycott (c) F., a woman married in 1858, who was entitled to a share in an estate in fee, in 1882 conveyed this estate, under the 91st section of the Fines and Recoveries Act, to A. in fee, her husband not joining. In 1888 her husband, F., commenced an action against A., his wife, and others claiming to be entitled to the rents and profits of her share. North, J., held his common law right to the rents during the coverture was not affected by his wife's alienation, but that she asserting her equity, he was bound, wJtetJter the estate ivas legal or equitable (d), to provide for her out of the rents, and the whole were settled upon her. Whatever may be the right of a married woman to have a provision made for her out of the income of an estate of which she is equitable tenant in tail, it is not according to the course of the Court, or indeed in its power, to order a settlement to be made of the estate or land to be purchased with money of which the married woman is equitable tenant in tail. For it is clear that the equity to a settlement attaches upon what the husband takes in right of the wife (e), and not upon what the wife takes in her own right, and the estate tail being in the wife, the Court has no power to order a settlement of it to be made, or to render such a settlement, if made, binding and effectual against the wife (/). Where copyhold property descended in fee upon a married woman, subject to a covenant entered into by a former owner upon his marriage to surrender it to certain uses, under which, had the surrender been made, tiie married woman would have been legal tenant in toi^, it was held that she had no equity to a settlement out of property so circumstanced [g). And it is clear that she has no equity to a settlement as against the assignees for value of her husband's interest in land of which she is («) Smith I'. Matthews, 3 De G. F. (c) 29 C. D. 996, 1U03. & J. 139. ((/) See (n.) "Judicatui-e Act, 1873," (h) Sturgis V. Champneys, 5 My. & supra, p. 031. C. 97 ; as to which see the remarks (e) See Ward v. W., (n.) " Teuaucy of Westhnry, C, in Gleaves v. Paine, by entireties," infra, p. 6Jl. I De G. J. & S. 87; Bonfield v. Has- (/) Life Association, &c. v. Siddal, sell, 32 B. 217 ; Barnes v. Robinson, 3 De G. F. & J. 271, 276. II W. E. 276; cf. lie Briant, 39 C. D. (g) Be Gumming, 2 De G. F. & J. p. 476. 376. 634 HUSBAND AND WIFE. Murray v. Lord Elibank. seised for an estate of inheritance in fee (a). Where, however, a sum of money, being rent of real estate (not, as it seems, equitable) to which a husband was entitled j ito^e mariti, was paid into Court by an agent, Shadiuell, V.-C.,upon the authority ofSturgisY. Chamiyneys (h) , held that the assignee of the husband (who was insolvent) was not entitled to it, without a settlement upon the wife (c). A wife will also be entitled to a settlement out of her trust term in land, not only as against her husband, but also against his assignee for valuable consideration. Thus, in Hanson v. Keating [d), where a husband and wife assigned, by way of mortgage, the equitable interest of the husband in right of his wife in a term of years, the mortgagee filed his bill against the husband and wife, and the trustee of the legal estate, for a foreclosure and assignment of the term ; it was held by . Wigram, V.-C, upon the authority of Sturgis v. Glia'nipneys (e), contrary to his own opinion, that the wife was entitled to a provision for her life, by way of settlement, out of the mortgaged premises. The estate of a feme covert tenant in tail in possession, subject to a term to secure a jointure, has been held to be equitable during the continuance of the term, for the purpose of entitling her to a settle- ment on a bill filed by her (/). As against Mortgagees and. Assignees (see also Part 7). — Although the Court migfht allow the wife the income of her property, it by no means follows, when the property out of which she ' claims a settlement is in the hands of a mortgagee, that he will be allowed by the Court, as against the assignees of the husband, what he may have paid to the wife, out of the income of the property. Thus in Clark v. Cook (g), a husband and wife, by deed acknowledged, demised freeholds of the wife to a mortgagee by way of trust, the trusts being to apply the rents and profits in pay- ment of certain premiums of insurance, and of the interest on the mortgage debt, and then in reduction of the principal, until it should be paid off. The husband took the benefit of the Insolvent Debtors' Act. It was held by Knight-Bruce, V.-C, in a suit for redemption, instituted by the assignee of the husband against the mortgagee, that (rt) Durham v. Crackles, 8 Jur. Siddal, supra. N. S. 1174 ; Life Association, &c. ;;. ((/) 4 Ha. 1. Siddal, supra ; Newenham v. Pember- (e) Supra, p. 633 {b). ton, 17 L. J. Ch. 991. (/) See Wortham v. Pemberton, 1 (h) Supra, p. 633 (h). De G. & Sm. 644, and (n.) "Judicature (c) Freeman v. Fairlie, 11 Jur. 447; Act, 1873," supra, p. 631. and see Life Association, &c. v. ((/) 3 De G. & Sm. 333. wife's equity to a settlement. 635 Murray v. Lord Elibank. the latter was chargeable with the surplus rents which he allowed to the insolvent's wife for her maintenance. " I cannot lielp suspecting," said his Honor, "that the wife might have had all that has been paid to her if a proper application had been made to the Court. It is a hard and peculiar case, and there must be no costs on either side." Where, however, a person entitled, jure tnarlti, to the legal interest in leaseholds, mortgages them, the wife has no c([uity to a settlement thereout, as against the mortgagee seeking foreclosure or sale («), but if the proviso for redemption in such a case is on the repayment by the husband (who has become insolvent), and his wife, of the sum advanced, the power to redeem must be given to her as well as the insolvent assignee (b). A wife is entitled to a settlement out of a life interest in (equitable) property to which her husband is entitled in her right, as against his assignees in bankruptcy or insolvency, for the general assignee of the husband is in exactly the same position as the husband himself, and as against him there can be no distinction between corpus and income, see Taunton v. Morris (c), where the C. A. gave the whole income to the assignee {d). The wife is also entitled to a settlement or maintenance out of her (equitable (e) ) lite interest, when she is deserted by her husband {ee). But she is not entitled to a settlement out of a life interest when she is living luith and is maintained by her husband, who is neitiier bankrupt nor in- solvent (/). Nor to a settlement out of property in which she has an (equitable) life interest, as against a person to whom iier husband has assigned it for value previous to his insolvency or his desertion of her ig) : Seeus, if her interest is absolute {h). In Tidd v. Lister (i), it was held by Turner, V.-C, after a very careful examination of the authorities, that a married woman whose liusband did not maintain her, (a) Iltitchell V. Eggleso, 1 Ir. Ch. R. (e) See (u.) " Judicatvire Act, 1873," 215. sixpra, p. (333. {b) Hill V. Edmonds, o De G. & Sm. (fc) Gilolui.st v. Cator, 1 De G. & 8m. 603 ; Durham i;. Cockles, 11 W. R. 138. 188, p. laU, and cases cited p. (540, (c) 11 C. D. 780. See infra, (n.) infra. " Life interest of wife," p. 652. (/) Vaughan r. 15u(k, 13 Si. 40-4, {(l) And see Lamb v. Milnes, 5 V. sed ride Wilkinson r. Charles worth, 517 ; Brown v. Clark, 3 Y. 166; Jacobs Marsack i: Lyster, 10 13. 324. V. Amyatt, 1 Madd. 37(), n. ; Squires v. Ashford, 23 B. 132 ; Sturgis v. Champ- neys, 5 My. & C. 97 ; Koeber v. Sturgis, 22 B. 588 ; Barnes v. Eobin- son, 9 Jur. (N. S.) 245 ; Yate Lee, Bankruptcy (1891), p. 298. (.'/) Elliott I'. Cordelb 5 Madd. 149; Stanton V. Hall, 2 Russ. & M. 175. (/') Scott r. Spasliett, 3 Mac . & G. 589. (0 10 lla. 140. G36 HUSBAND AND WIFE. Murray v. Lord Elibank. was not entitled, as against a particular assignee of the husband, to a settlement, or maintenance out of the income of the real and personal estate to which she was entitled in equity for her life, and his decision was on appeal reluctantly affirmed by Gramvorth, C. (a). With regard to Elliott v. Cordell (b), it is clear, since the decision of Stiffe V. Everett (c), that the assignment of a life interest of a married woman in a fund not settled to her separate use, could not, unless it came within the provisions of Malins' Act(^), in any event, be supported beyond the period of the joint lives of the husband and wife. Harley v. H. (e), and Stanton v. Hall differed from Elliott v. Cordell, inasmuch as in those cases the interest of the wife was determinable upon the death of her husband (/). Even in the case of the wife's estate of inheritance, the husband's assignment by way of mortgage has prevailed to the extent of his life interest (g). And the husband's assignment for value, when maintaining his wife, of income to which he becomes entitled in her right, will be effectual to deprive her of her equity to a settlement as against the assignee for value, though the interest of the wife at the time of the assignment was reversionary (h). A wife is entitled to a settlement out of property to which she becomes entitled before, as well as out of what she becomes entitled to after marriage (/). Reversionary 'property. — The Court, however, cannot order a settlement to be made of the reversionary personal property of a married woman. The reason for this is, that the right to the settle- ment is an obligation which the Court fastens, not upon the property. but upon the right to receive it, and if the right attaches at all, it must attach with all its incidents, one of which is, that the wife waiving it, must waive it (see Part 7) by her consent in Court, which she cannot do in the case of reversionar}'^ personal property ijc) ; the question as to whether a wife is entitled to a settlement can only be decided when the reversionary property falls into possession (I). («) 3 De G. M. & G. 857, 870 ; see also Durham v. Crackles, 11 W. R. 138; llf Duffy's T., 28 B. 386; but see Taunton v. Morris, 11 CD. 780; Re Dixon's T., 48 L. J. Ch. 592. (i) Supra. (c) 1 My. & C. 37. ((i) 20 & 21 Vict. c. 57. (e) 10 Ha. 325. (/) Re Godfrey's T., 1 Ir. E. Eq. 531. [g) Durham v. Crackles, .11 W. E. 138. (A) Life Association, &c. v. Siddal, 3 De G. F. & J. 271 ; Re Carr's T., 12 Eq. 609. (0 Barrow v. B., 18 B. 529. (A-) Osborn v. Morgan, 9 Ha. 432, 434. (/) Ibid., and see Taylor v. Austen, 1 Dr. 459, 464 ; but see now Malins' Act (20 & 21 Vict. c. 57) ; Roberts v. Cooper, (1891) 2 Ch. 335; and the Married Women's Property Act, 1882, wife's equity to a settlement. 637 Murray v. Lord Elibank. Husband defaulting executor. — So where the husband of a legatee, as executor, is indebted as a defaulter to the testator's estate, and has no right to receive any part of the assets in right of his wife, his wife can claim no equity to a settlement iu respect thereof (a). But see Re B riant, cited infra, p. 652. 4. Rights of Children. When a woman insists upon her equity to a settlement, out of property to which she is absolutely entitled, and not out of a mere life interest, it will always be extended to her children, although she has no children at the time, and a reference will be directed to ascer- tain what is a proper settlement to be made upon her and her chil- dren (6) ; and iu Conington v. Gillat (c) the children of a former marriage were provided for. The equity is strictly personal to the wife. If she dies before asserting her right, her children cannot insist upon a settlement {d). For all the cases concur in showing that children have no right to a settlement " independent of contract or decree " () Gleaves v. Paine, 1 De G. J. & J. 139 ; Seton (1893), p. 79G. wife's equity to a settlement. 643 Murray v. Lord Elibank. In Roberts v. Cooper (a) a husband and wife in very poor circum- stances had assigned two reversionary interests of the wife to a purchaser for 170^., the deed being acknowledged by the wife ; as a matter of fact the interests were not within Mahns' Act and the assignment was ineffectual in law. One interest, 500^., was paid into Court and carried to a separate account. The assignees applied for payment to them, the wife set up her equity. It appeared that the other interest, value about 500^., had been received by the husband and wife, and that the wife had received benefit from the purchase money. The C. A., ivitli the assignees' consent, settled a moiety, and settled it in such a manner that the wife should receive yearly a sum out of income and capital, and that in default of children the fund should go to the assignee (b). Where there is a fund in Court, to a share of which a married woman is entitled in actual possession, the Court in an action by her may order a settlement in favour of her or her children although the fund is not distributable until further consideration, and although her share has not been ascertained (c). Small Fund. — In order to avoid the expense of a settlement where the fund is small, it will be ordered to be brought into Court {d), if not there already, and the Court will direct the divi- dends to be paid to the wife for her separate use for life, and either declare the trusts after her death (e), or give liberty to the persons entitled at her death to apply (/). Refusal to execute Settlement. — If a person ordered by the Court to execute an instrument neglects or refuses to do so the Court can nominate a person to execute it {g). Post-nuptial Settlement. — It is clear that where the Court directs a settlement to be made upon the wife, " the Court will support it as a good settlement, for valuable consideration " (h) ; and if after («) (1891) 2 Ch. 335. 17 B. 484 ; Wright v. King, 18 B. 461. {h) Seton (1893), F. 10, p. 799; and (/) Be Cutler, 14 B. 220, 222; and see Boxall v. B., 27 C. D. 220. see Smithcrs v. Green, Seton (1893), p. {(■) Rt Eobinson's S. E., 12 C. D. 798. And see the case of a lunatic 188. husband not so found, Stead v. Collej', [d) Bagshaw v. Winter, 5 De G. & 2 My. & K. 52. Sm. 468. {(i) See Judicatui-e Act, 1884, s. 14 ; (e) Ibid., and see Guy v. Pearkes, Seton (1893), Form 2, p. 375. 18 V. 195, a case of desertion referred {h) See Wheeler v. Caryl, Amb. to in ii!eSuggitt'sTrusts, 3Ch.,p. 219 ; 121; Simson v. Jones, 2 Euss. & M. Re Ford, 32 B. 621 ; Watson v. Mar- 365. shall, 17 B. 363; Walker v. Drury, 41 2 644 HUSBAND AND WIFE. Murray v. Lord Elibank. marriage, the wife being entitled to a portion which the husband cannot touch without the aid of the Court, and the trustees will not pay it without a settlement, if the husband does agree to it, and do that which the Court would decree, it is a good settlement as against his creditors {a). So a legacy due to a mai'ried woman may, with the consent of her husband, be paid to the trustees of a settlement already in existence, upon trusts under which the life interest of the husband is determinable on alienation or incumbrance thereof (6). Even if trustees in possession of the property of a married woman should, on the mere request of her husband, transfer it to new trustees upon trust for her separate use, such trust will be good as against his creditors (c). But if the husband has once reduced into possession the equitable choses in action of his wife, any subsequent settlement of them would not be valid as against his creditors (d). 7. "Waiver of Settlement. By Consent of Wife. — If a woman wish to waive her equity to a settlement, her consent to her husband having her property must be formally taken upon her examination in Court (e). Where, however, a married woman upon being examined, expressed a wish that part of the fund to which she should be entitled should be retained in Court, and the income paid to her with liberty for her to apply for payment of the capital at a future period, if she desired it, the Court made the order to carry out her wish (/). In general, if the wife is abroad, her consent to payment of the fund to her husband must be taken by commission issuing from the Court ((/), or from a competent Court abroad (It). However, in the case of Minet v. Hyde {i), it was ordered that the married woman should appear before some of the plaintiffs and a magistrate of Breda, to be privately examined in the French or German language, as to her consent, and the examination (a) Wteeler v. Caryl, Amb. 121, (e) Beaumont v. Carter, 32 B. 586. 122 ; Moor v. Eycault, Pr. Ch. 22. Where the fund is small, see infra, p. {V) See Montefiore v. Behrens, 1 647. Eq. 171 ; Middlecome v. Marlow, 2 (/) Re Craddock's T., W. N. 1875, Atk. 519; Re Wray's T., 16 Jur. p. 187. 1126. [y) Gibbons v. Kibbey, 10 W. E. (c) Eyland v. Smith, 1 My. & Q. ob ; Ireland v. Trinbaith, 14 W. E. 53. 275. (d) Eyland v. Smith, 1 My. & C. {h) CampbeU v. French, 3 Y. 323, 4 53 ; Wall v. Tomlinson, 16 V. 413, and E. E., p. 5. Glaister v. Hewer, 8 V. 207. (i) 2 Bro. Ch. 663. wife's equity to a settlement. 645 Murray v. Lord Elibank. attested by notaries public, and translated on oath (a). In order that the examination may be such that the free and unbiased wishes of the wife may be ascertained, neither her husband nor his solicitor nor any persons connected with him ought to be present (6), and the examination cannot be dispensed with, by reason of her wishes having been ascertained by the trustees (c). The Court cannot, in the absence of fraud or compulsion on the part of the husband, refuse to take the wife's consent {d), even when it appears the wife, a ward of Court, married the day after she came of age (e). The consent of a married woman will not be taken until the amount of the fund is ascertained (/) ; except perhaps where it is only liable to diminution by the deduction of unascertained costs, the taxation of which has been directed {g) ; in which case her consent refers to tlie residue of the fund after such payment {it). The consent will not be binding if made under a mistake. Thus, where she consented to her husband receiving the whole fund, being ignorant that the effect of his previous insolvency (of which the Court was not informed) would be to give it to his assignees, the Court ordered the whole fund to be settled, for it is the duty of the Court to explain to a married woman what she gets and loses by her consent {i). The Court has power to postpone for a time the transfer to the husband, notwithstanding the consent {k), and she may retract at any time before the transfer has been completed {I). It has been held, however, that upon the application of husband and wife for the payment of a life annuity given to her by will, her consent was unnecessary (r/i). («) And see Bourdillon v. Adair, 3 Sperling v. Eochfort, 8 Y. 180 ; God- Jjto. Ch. 237 ; and the order given, ber v. Laiirie, 10 Price, 152 ; Moss v. Seton (1893), F. 4, p. 784. Dunlop, 8 W. E. 39. Qj) Re Bendyshe, 3 Jur. (N. S.) [g) Packer v. P., 1 CoU. Ch. E. 727. 92. (t) Re Swan, 2 Hem. & ]\[. 34. {h) Musgrove v. Flood, 1 Jur. (N. S.) [d) Willats V. Cay, 2 Atk. 67 ; 1086. Wright V. Eutter, 2 V. jun. 673, 3 {i) Watson v. Marshall, 17 B. E. E. 24; Longbottom v. Pearce, 3 363. De G. & J. 545, and Biddies v. Jack- (/c) Wright v. Eutter, supra ; Pen- son, ibid., 544. fold v. Mould, 4 Eq. 565. (e) White v. Herrick, 4 Ch. 345. {I) Pcnfold ;■. Mould, supra. (/) Edmunds v. Townshend, 1 Anst. (m) Shilleto v. Collett. 7 Jur. (N. S.) 93 ; Jernegan v. Baxter, Madd. 32 ; 385. 646 HUSBAND AND WIFE. Murray v. Lord Elibank. Where the wife waives her equity to a settlement, and consents to her husband having her property, an affidavit must be made by the husband and wife, either that there was no settlement upon their marriage, or if there be a settlement, it should be produced, and an affidavit made by the husband and wife that there was no other settlement, and the Court must be satisfied on the certificate of counsel, or by inspection which is now the usual practice (a), that the settlement itself does not affect the property which the wife consents to her husband having (h). The affidavit of the wife alone has been allowed where the husband is residing perma- nently abroad (c) or refuses to make an affidavit {d). And where the husband and wife are both resident abroad, the Court has accepted as evidence that there was no settlement on their marriage, an affidavit by a solicitor disclosing facts, which made it unlikely that there was a settlement, and stating positively that he had been told by the lady and her husband that there was none (e). Even where it is proposed to pay the fund to the wife, with the husband's consent, on her separate receipt, or to her trustees, her examination will not be dispensed with (/), unless the wife is entitled to the fund to her separate use, in which case her ex- amination and consent are unnecessary (g), and on her petition payment would be made on her receipt alone. An affidavit, however, that there is no settlement thereof must be produced {h). In one case, however, a transfer of such a fund was made into the Joint names of the husband and wife without her examination, and consent on their joint petition (i). And in another case, her consent to the transfer of a fund in Court, her separate property, to her husband, was required, though she had joined him in a petition tor the purpose (k). And payment will be made to a married woman suing as a feme sole under a protection order of her share in an administration suit, (rf) Seton (1893), p. 787. (/) Mawe v. Heaviside, 7 Jur. {b) Britten v. B., 9 B. 143, and (N. S.) 817; Gibbons v. Kibbey, 10 note ; Eose v. Eolls, 1 B. 270. W. E. 55. (c) Wilkinson v. Schneider, 9 Eq. {g) Macq. H. & W. 304. 423 ; ElHott v. Eemington, 9 Si. (h) Anon., 3 Jur. (N. S.) 839. 502. {i) He Crump, 34 B. 576. {d) Anon., 3 Jur. (N. S.) 839. (A-) Wordsworth v. Dayrell, 4 W. E. (e) Woodward v. Pratt, 16 Eq. 689. 127. wife's equity to a settlement. 047 Murray v. Lord Elibank. upon her affidavit, that the separation continues, and that there was no settlement nor agreement for a settlement {a). Where the wife is domiciled in a foreign state, upon proof that l>y the laws of such state her husband would be entitled to the whole of the property, without making any provision for her, the consent of the wife will not be required by the Court, and the fund will be ordered to be paid to the husband, without his being required to make any settlement upon her (b) ; or if the property of the wife was money to arise from the sale of land, the husband (not being an alien) electing to take it in an unconverted state might have a con- veyance of it to himself in fee (c), and semble an alien might now do so under the Naturalization Act, 1870 (d). But where the lady is a ward of the Court, although by the law of the country where her husband is domiciled she has no equity to a settlement, the Court will not part with funds belonging to her unless satisfied that a proper provision has been made upon her (e). The Court, however, has a discretion in such a matter : thus where the infant was not and never had been domiciled here, and the only circumstance rendering it possible to treat her as a ward of Court was the fact that money had been paid to her account in the Court of Chancery, the Court ordered the money to be paid to her husband, a domiciled Frenchman (/). The proof of the law in foreign states in such cases being one of fact, it will not be decided by authority, but by the evidence in each case (g). Where the fund is under 200^. or 10^. a year, or is likely to be reduced below that sum by costs, it may be ordinarily paid to the husband without the consent of the wife being taken by examination, but under special circumstances, as for instance, where she married the day after she came of age, the Court insisted upon her separate examination (h). But before payment it must be shown that it is (a) Ewart v. Chubb, 20 Eq. ioi. 33 & 34 Vict. c. 102 ; 35 & 3(5 Vict. c. {b) Bawj-er v. Shute, 1 Anst. 63 ; 39. Campbell v. French, supra ; Anstru- (e) Me Tweedale's Set., John. 109. ther r. Adair, 2 My. & K. 513; Be (/) Brown v. Collins, 25 C. D. 56 ; Molyneux, 5 Ir. Ch. E. 346; M'Cor- and see Hope t>. II., 4 De G. M. & G. luick V. Garnett, 5 De G. M. & G. 328, 345. 278 ; Me Letts' T., 7 L. E. Ir. 132 ; Be {g) Cf. Ex p. ^V( 'ormick r. (Janintt, Marsland, bb L. J. Ch. 581. 5 De G. M. ct (i. 278 ; llr Todd, 19 P.. (c) Hitchcock v. Clendinen, 12 B. 582. 534. (//) ^Vhite v. Ilerrick, 4 Ch. 345. ((/) 33 & 34 Vict. c. 14, amended by 648 HUSBAND AND WIFE. Murray v. Lord Elibank. Hot in settlement (ci). An affidavit of no settlement has also been dispensed with where the fund was only 101. (h); and where the husband consents to payment to his wife on her own separate receipt, her separate examination where the sum does not exceed 500/. will be dispensed with (c). In Ireland, it seems money in Court belonging to the wife, not exceeding 100/., may be paid to her husband without her consent (d). The wife, although her consent may not be requisite before pay- ment, is as much entitled to a settlement out of a small as out of a large sum (e). Except in some cases under Malins' Act (/), a married woman cannot waive her right to take her Teversionary personal property by survivorship {g), whether it might possibly vest in possession during the coverture, or could only vest after the husband's death Qi). Nor would the Court allow the interest of the wife to be accelerated, to enable her to dispose of it as if in possession (i). An infant feme covert cannot give her consent to payment to her husband (/i,-). A female w^ard of the Court, married without its authority, or in contempt of it, will not be allowed to waive her right to a settlement out of her own property (/) ; and the settlement will in general be much less in favour of the husband than in ordinary cases, as the Court will attend principally to the interest of the wife, and her children ; and if the contempt has been flagrant, the rule has been to exclude the offending husband from all interest in the wife's fortune {in). Where an infant ward of the Court married with the consent of (rt) Elwortliy v. Wickstead, 1 J. & "W. 69 ; Hedges v. Clarke, 1 De G. & Sin. 354 ; Eoberts v. Collett, 1 Sm. & G. 138; Wallace v. Greenwood, 16 C. D. 362. (6) Veal t;. v., 4 Eq. 115. {(•) Re Morton's Estate, W. N. (1874) 181; Andi-ewes v. Tyrrell, 29 Sol. Jo. 622; Seton (1893), p. 789. [d) Re Siirridge's T., 17 Ir. Ch. 163. (e) Re Cutler, 14 B. 220; Re Ean- caidT., iDrew. 326. (/) 20 & 21 Vict. c. 57. {<]) Osborn v. Morgan, 9 Ha. 432, 434 ; Re Godfrey's T., 1 Ir. Eq. 531 ; Whittle V. Henning, 2 Ph. 731. (A) Box V. B., 2 Con. & Law. 605 ; Box V. Jackson, Dru. Cas. t. Sugd. 42, where all the authorities on the subject are reviewed. (/) Pui'dew V. Jackson, 1 Euss. 1 Cresswell v. Dewell, 4 Gif. 460 Fitzgerald V. F., L. E. 2 P. C. 87 Shelford, E. P. S. (1893), p. 315; see note to Eyall v. Eowles. (A-) See Stubbs v. Sargon, 2 B. 596 ; Abraham v. Newcombe, 12 Si. 566 ; Shipway v. Ball, 16 C. D. 376. (/) Stackpole v. Beamnont, 3 V. 89, 3 E. E. 52 ; Gynn v. Gilbard, 1 Dr. & Sm. 356. (m) See Seton (1893), p. 901 ; Simp- son, Infants (1890), p. 344. wife's equity to a settlement. 649 Murray v. Lord Elibank. her mother, but without any application to the Court, Matins, V.-C, refused to take her consent while a minor, but made an order for payment of the dividends of a fund in Court to her separate use, until further order (a) ; and in another case a ward of the Court, who married without its leave, though with the consent of her guardian, was allowed, on comiing of age, to consent to her husband having her property without his making a settlement on her (6). The Court cannot compel an infant ward to make a settlement (c). 8. Where the Equity is barred, or does not arise. Reduction into 2^ossession by Husband. — The actual reduction into possession by the husband of the rents and profits of his wife, or of any fund belonging to her, or of her choses in action will defeat the wife's right to a settlement thereout ; and, as laid down by Lord Eldon, in the principal case, " previously to a bill, a trustee, who has the wife's property, real or personal, may pay the )ents and profits, and may hand over the personal estate to the husband, but not if the bill has been filed ; and if the husband, or those claiming under him, can obtain the property of the wife by an action at law, equity will not by injunction prevent them from doing so " {d). But after a writ has been filed, trustees cannot safely make any payments to the husband (e), and cannot be advised to act without first consulting the Court (/). With regard to the latter part of the above citation, injunc- tions were formerly granted to restrain the husband from proceedings in the Ecclesiastical Courts for a legac}^ due to his wife until he had agreed to make provision for her (g). As to what constitutes reduc- tion into possession, see Hornsby v. Lee (fi), Donelly v. Foss (i), Re Barber (k), Widgery v. Tepper (I), Rogers v. Bolton (')n). Adequate Settlement. — The equity will be barred by an adequate (a) Shipway c. Ball, 16 C. D. 37(5. 347. {h) Bennett u. Biddies, 10 Jur. (/) Lewin (1891), p. (574. u34. [(j) Jewson r. Aloulson, 2 Atk. 420 ; (c) Buckmaster v. B., 13 App. Cas. Gardner v. Walker, 1 Stra. 503; and (51 ; Leigh v. L., 40 C. D. 290. see (n.) " Judicatm-e Act, 1873," {d) See Milner v. Wiliner, 2 P. W. supra, p. 631. 641; Jewson v. Moulson, 2 Atk. 420; (Ji) Post. Allday v. Fletcher, 1 De G. & J. 82 ; [i) 7 L. E. Ir. 439. R<: Swan, 2 Hem. & M. 34, 37 ; \k) 11 0. D. 442. Hornsby v. Lee, post. (/) 7 C. D. 423. (e) Macaulay v. Philips, 4 V. 18; (?») 8 L. B. Ir. (59; Lewin (1891), De la Garde v. Lempriere, 6 B. 344, p. 834. 650 HUSBAND AND WIFE. Murray v. Lord Elibank. settlement having been made upon her, but not by an inadequate settlement, unless it be by an express stipulation before marriage (a). And in a case, where an adequate settlement had been made upon the wife, the husband was held to be entitled to the whole fund, although he was living apart from his wife, they having separated by mutual consent and agreement, and no blame being imputed to one party more than the other {h). And it is not essential that the settlement shall have been made by the husband (c). The wife's equity to a settlement, moreovei", may be excluded by an exception of the particular fund or property from the husband's covenant in her marriage settlement to settle future acquired property (d). If the settlement is inadequate, the Court may direct a further settlement (e). If it is illusory, her equity will not be barred (/). Fraud of Wife. — The Court will not allow the equity to be made an instrument of fraud {g). So where a woman at the time of her marriage owes more than the whole amount of her property, she will have no equity to a settlement out of it as against the assignees of her husband, in whose bankruptcy her debts are proved {k). But if the value of her property exceeds the amount of the debts she owed before marriage, she may be held entitled to a settlement out of the property, after i^rovision has been made for payment of the debts {i). A married woman may, by fraud, as for instance, in holding out to a purchaser for value, that an assignment made after marriage was made before, preclude herself from claiming her equity to a settle- ment, as against the purchaser {k). Adidtery of Wife. — If the wife be living in adultery, apart from her husband, she cannot, except under very peculiar circum- stances {I), insist upon her equity to a settlement {in) ; but even (a) Salwey v. S., Amb. 692 ; Gar- forth. V. Bradley, 2 V. 675 ; Spirett v. Willows, 1 Ch. 520, 4 Ch. 407. {h) Re Erskine's T., 1 Kay & J. 302 ; Spicer v. S., 24 B. 365 ; Aqiiilar V. A., 5 Madd. 414. (c) Giacometti v. Prodgers, 8 Ch. 338. {d) Brooke v. Hickes, 12 W. E. 703. (e) Stackpole i\ Beaumont, 3 V. 98 ; and see Spirett v. Willows, 1 Ch. 520, 4 Ch. 407. (/) Irwin V. I., 5 Ir. Eq. E. 373. {(j) i2e Lush's T., 4 Ch. 591. [h) Bonner v. B., 17 B. 86. (/) Barnard v. Ford, 4 Ch. 247; MiUer v. Campbell, W. N. (1871), p. 210. (A) TZe Lush's T.,4 Ch. 591 ; BaiTow ('. Manning, W. N. (1878), p. 122; Cahill V. C, 8 App. Cas. 437; and see Eoberts v. Cooper, (1891) 2 Ch. 335. (?) Re Lewin's T., 20 B. 378. (to) Carr v. Eastabrooke, 4 V. 146. wife's equity to a settlement. 651 Murray v. Lord Elibank. then it seems the husband will not be allowed to receive the whole of her property, while he does not maintain her. See Ball v. Mont- gomery (a), in which case the Court ordered the future dividends of a settled fund to be paid into Court, subject to further order ; observing that the wife's delinquency was a good ground for not paying it to her, but was not a ground for letting the husband receive the whole of the property, which, being hers originally, was intended to be his, partly to support her. Secus, where the husband has by contract an interest in her property during their joint lives, and her misconduct obliges him to separate (6). Where both husband and wife are living in adultery, it has been held that the wife may claim a settlement (c). But mere living apart from her husband is no bar (d). A female ward of Court, married without its consent, will not be barred from her claim to a settlement, although she should be living in adultery (e). Foreign Domicil of Husband. — The equity does not arise where the domicil of the husband is foreign, and his country does not recognise such a right (/). Reversionary Property. — The equity only arises when the fund is ready for reduction into possession, and does not arise where the fund is reversionary {g). Tenancy by Entireties. — The equity arises where the husband has to get the assistance of the Court to get the benefit of Itis tuife's property. Therefore, when husband and wife take by " entireties." the property not being hers, but her husband's, the equity does not arise {h). And the M. W. P. Act, 1882, has not, practically, affected the law, for the operation of that statute upon an interest of a husband and wife held by entirety was determined by the C. A. to be that the husband would take one half of the joint share in his own right, and the wife the other to her separate use {i). Thus, (a) 2 V. jun. 191, 2 R. E. 197. domicil. But where the lady i.s u ward (b) See Duncan v. Campbell, 12 Si. of Court, seei?e Tweedale's Set., John. 616. 109 ; Brown v. CoUins, supra, p. 647. (c) Greedy v. Lavender, 13 B. 62. (f/) Supra, p. 636; Osboru c. Morgan, {d) Eedes v. E., 11 Si. 569. 9 Ha. 432; Purdew i-. Jackson, 1 Russ. 1. (e) Ball v. Coutts, 1 V. & B. 302, (//) Atcheson r. A., 11 B. 4.Sj ; Ward 304; Re Anne Walker, L. & G. t. v. W., 14 C. D. oU7 ; lie Bryan, ibid., Sugd. 299. p. 519. (/) Supra, p. 647, note (6) ; Camp- ((") Re March, 27 C. I). 166; Re beU V. French, 3 V. 321 ; 4 R. R. 5; Jupp, 39 C. D. 151. Cf. Bias i'. De Anstruther v. Adaii-, 2 My. & K. 513; Livera, 5 A. C. 123; Re Dixon, 42 C. Re Marsland, 34 W. R. 540, Manx D. 306. G52 HUSBAND AND WIFE. Murray v. Lord Elibank. although the rights of the husband and wife are altered, inter se, the equity does not arise, for there is no wife's property which the husband can claim. Life interest of Wife. — It has been before stated, p. 635, that, although a married woman, as against the assignees of her husband in hanhriLptcy or insolvency, is entitled to have a settlement or main- tenance out of her equitable property, in which she has only a life interest, she, nevertheless, cannot claim either, as against the legal right of her husband, not being bankrupt or insolvent, although he may be in difficulties, for the husband is entitled to the wife's income as long as he maintains her to the best of his ability, and they are living together (a). Nor can she claim a settlement or maintenance out of the income of her equitable property, as against the ixirticiilar assignee for value of her husband, although subsequently to the assignment he may become bankrupt or insolvent, or desert and leave her utterly destitute (6). But if the husband deserts the wife, leaving her unpro- vided for, the Court will allow her past and future maintenance out of the income of her life interest in equitable property, not specifically assigned by the husband for value (c). 9. Against whom the equity is binding. The equity of a wife to a settlement is binding not only upon her husband, but also upon all persons claiming generally from or under him as executor, his trustees in bankruptcy, or under a general assignment for the payment of his debts {d). It is also binding upon a purchaser from the husband for valuable consideration (e), subject to the somewhat anomalous exception in the case of an equitable life interest of the wife which has been already noticed (/). The wife's equity to a settlement is moreover paramount to the risfht which an executor or administrator has to set off a debt due to the estate from a husband, against any legacy under the will or share under the intestacy to which his wife is entitled, unless, perhaps, when he is indebted as executor, see p. 637, supra. Thus in Re Briant (g), by a will of a person who died in 1877, a share of residue was settled (a) Vaughan v. Buck, 13 Si. 404. {b) Tidd V. Lister, ante, p. 635. (c) Wright V. Morley, 11 V. 12, 23, 8 R. E. 69 ; Gilchiist v. Cator, 1 De G. & Sm. 188 ; Coster v. C, 1 Keen, 199. (d) See supra, pp. 634,636. "Williams' Exors. (1893), p. 1282. (e) Macaulay v. Philips, 4 V. 19; see also Scott v. Spashatt, 3 Mac. & G. 599 ; Marshall v. Gibbons, 4 Ii-. Ch. E. 276. (/) See Tidd v. Lister, supra, p. 635. () 18 B. 112. WIFES SEPARATE PROPEETY, 6G5 Hulme V. Tenant. married woman and her assigns " (a) ; or there is a gift " to her use" (6); "to her own use and benefit" (c) ; to her "absolute use" {d) ; unless the context requires the words " absolute use "to be construed as " separate use " (e) ; or when a payment is directed to be made " into her own proper hands, to and for her own use and benefit" (/); into her proper hands " to her own proper use and benefit " (g) ; or when property is " to be under her sole control " (h) or where there is a devise without the intervention of trustees, " for her sole use and benefit " (i) ; or a direction to transfer " to own use and benefit " (k). So, a bequest to a woman and her assigns for her life, "for her and their own absolute use and benefit," does not confer upon her a separate estate " (l). And a bequest by will to the testator's wife for life of the income of property, " to be expended by her as she might think fit and proper and agreeable to her free will and pleasure," has been held not to give her a separate use in the same (m). And where a testator gave 1,000L to his sister for her, or for her children's sole use and benefit for ever, and directed his executors to pay the same to her as soon as possible, it was held that the sister did not take the 1,000^. to her separate use {n). Separate Estate by Implication. — Where under a trust deed for pro- viding pensions (amongst other objects) for the widows of clerks in the East India Company's service, there was a provision that the pension should be paid " to provide a comfortable maintenance " for the widows, and that it "should not be disposed of or incumbered («) Dakins v. Berisford, 1 Ch. Ca. 194 ; Lumb v. Milnes, 5 V. 517. (i) Jacobs V. Amyatt, 1 Madd. 376, n. (c) Jobnes v. Lockbart, cited 3 Bro. Cb. 383, n. ; Wills v. Sayers, 4 Madd. 409 ; Roberts v. Spicer, 5 Madd. 491 ; Kensington v. DoUond, 2 My, & K. LS4 ; Beales v. Spencer, 2 Y. & C. C. C. (351 ; Taylor v. Stainton, 2 Jur. (N. S.) 634. {d) Rycroft v. Cbristy, 3 B. 238; but see Negus v. Jones, 1 C. & E. 52. (e) Sbewell v. Dwarris, Jobn. 172 ; Ee Turner, 66 L. T. 758. (/) Tyler r. Lake, 2 Russ. & My. 183. (g) Blacklow v. Laws, 2 Ila. 49 ; but see Hartley v. Hurle, 5 V. 545; Negus v. Jones, 1 C. & E. 52. (Ji) Massey v. Parker, 2 My. & K. 174. (/) Gilbert v. Lewis, 1 De G. J. & S. 38 ; Lewis v. Mattbews, 2 Eq. 177 ; Massy v, Rowen, L. R. 4 H. L. 288. {k) Darcy v. Croft, 9 Ir. Cb. R. 19, 31. (/) Rycroft v. Cbristie, 3 B. 238. (m) Ih Grabiuu's T., 20 W. R. 289. (h) Cbipcbase v. Simpson, 16 Si. 485. 666 HUSBAND AND WIFE, Hulme V. Tenant. either directly or indirectly," it was held by Malins, V.-C, that a widow of a clerk was, as against a second husband, entitled to her pension to her separate use (a). Where a husband in taking proceedings with reference to property of his wife's makes her a defendant, he thereby admits that the property is her separate estate (b). But a separate use will not be inferred merely from a restraint on anticipation (c). Where a precatory trust has been created by will in favour of "children" simiDliciter, the trustee may, in executing the trust, limit the shares of the daughters to their separate use (d). A married woman under her equity to a settlement, may have her property, which her husband was entitled to receive /tcre mariti, or which he could only recover in a Court of equity, settled to her separate use and to the use of her children (e). Equitable Assets. — The separate property of a married woman is " equitable assets," and her creditors are paid thereout pari passu (/) ; there is therefore no right of retainer in her executor {g). Arrangements or Agreements betiveen Husband and Wife. — If a husband either expressly or impliedly agrees that his wife shall carry on a business for her own benefit separately from and independently of him, which is always a question dependent on the facts of each case, then the trade becomes her separate property, and everything that is incident to and connected with the trade becomes part of that separate trade, and the husband is, if and so far as it is necessary, a trustee of everything which was devoted to that trade of which he allowed the wife to be the separate owner (h). And it is immaterial whether the business were one which the wife had before marriage or one which she had established after the marriage with the consent of her husband (i), or which she had established before and carried on after (k), or that the business was one carried on (a) Be Peacock's T., 10 C. D. 490. Johnson v. Gallagher, 13 De G. F. & {b) Earl v. Ferris, 19 B. 67 ; Be J. 494 ; London Chartered Bank v. Martin, Butterfield v. Mott, W. N. Lempriere, 4 P. C. 572, 594. (84) 164; Baker v. Newton, 2 B. ((/) i^e Poole's Estate, 6 C. D. 739; 112. but quoere whether this is so under (c) Stogdon V. Lee, (1894) 1 Q. B. Married Women's Property Act, 1882. 661. Sees. 23. {d) Willis V. Kymer, 7 C. D. 181. [h) Ashworth v. Outram, 5 C. D. (e) Eoberts v. Cooper, (1891) 2 Ch., 923 ; Pearse v. P., 22 W. E. 69 ; Slan- p. 348. ning v. Style, 3 P. W. 334. (/) Silk V. Prime, see vol. ii., infra ; (/) Ashworth v. Outram, supra. Owen V. Dickenson, Cr. & Ph. 48; (A) ^e Dearmer, 53 L. T. 505. wife's separate property. 6G7 Hulme V. Tenant. formerly by the husband before he became incapacitated, as for instance by habitual drunkenness and delirium tremens, from carry- ing it on (a). If the permission by the husband to bis wife to carry on business be given before marriage, it will not only be obligatory upon the husband, but also upon his creditors ; if it be given after marriage, it will be binding as betAveen him and her but not as against his creditors (6). Where a husband and wife agree to live separate and not to inter- fere with any property which each may subsequently acquire, the subsequently acquired property of the wife will be considered as her separate estate (c). 2. Statutory Extension of the Doctrine of Separate Estate. Matrimonial Causes Act, 1857, ss. 21, 25, 26, 45 {d). S. 21 : "A wife deserted by Iter Imsband, may at any time after such desertion, if resident within the metropolitan district, apply to a police magistrate, or, if resident in the country, to justices in petty sessions, or in either case to the Court (for divorce and matrimonial causes) for an order to protect any money or property she may acquire by her own lawful industry, and property which she may become possessed of, after such desertion, against her husband or his creditors, or any person claiming under him ; and such magis- trate or justices, or court, if satisfied of the fact of such desertion, and that the same was without reasonable cause, and that the wife is maintaining herself by her own industry or property, may make and give to the wife an order protecting her earnings and property acquired since the commencement of such desertion, from her husband and all creditors and persons claiming under him, and such earnings and pro- perty shall belong to tlte ivife as if she were a feme sole. Provided always, that every such order, if made by a police magistrate or justices at petty sessions, shall within ten days after the making thereof, be entered with the registrar of the County Court within whose jurisdiction the wife is resident; and that it shall be lawtul for the husband, and any creditor or otlier person claiming under (a) Lovell v. Newton, 4 C. P. D. supra, p. G59. 7. (<;) Haddon v. Fladgate, 1 Sw. & (h) See Afehworth v. Outram, 5 Tr. 48 ; and as to joint accounts, &c., C. D., pp. 932, 933, per Malins, V.-C. between husband and wife, see Re See Married Women's Property Act, Young, 28 C. D. 705. 1882, s. 1, s.s. 1, 2, 3, 4, and Ex p. [d) See also Summaiy Jurisdiction Whitehead, 14 Q. B. D. 419, cited (Married Women) Act, 1895, p. 72(3. 668 HUSBAND AND WIFE. Hulme V. Tenant. him, to apply to the Court, or to the magistrate or justices by whom such order was made, for the discharge thereof : provided also, that if the husband or any creditor of, or person claiming under the husband shall seize or continue to hold any property of the wife after notice of any such order, he shall be liable, at the suit of the wife (which she is hereby empowered to bring), to restore the specific property, and also for a sum equal to double the value of the pro- perty so seized or held after such notice as aforesaid : if any such order of protection be made, the wife shall during the continuance thereof be and be deemed to have been, during such desertion of her, in the like position in all respects, with regard to property and contracts, and swing and being sued, as she would be under this Act if she obtained a decree of j udicial separation." An order of protection obtained by a married woman who has been deserted by her husband does not protect property acquired by im- moral practices, as by her living in adultery, and keeping a brothel (a). It has been held that a married woman who has been deserted by her husband, and has obtained an order for protection, is entitled to sue in tort, as for instance for a libel (h). S. 25 : " In every case of a judicial separation the wife shall from the date of the sentence, and whilst the separation shall continue, be considered as a. feme sole with respect to property of every description which she may acquire, or which may come to or devolve upon her ; and such property may be disposed of by her in all respects as a, feme sole, and on her decease, the same shall in case she shall die intestate, go as the same would have gone if her husband had been then dead ; provided, that if any such wife should again cohabit with her husband, all such property as she may be entitled to when such cohabitation shall take place, shall be held to her separate use, subject however to any agreement in writing made between herself and her husband while separate " (c). This section applies only to property which she may acquire or which may come to or devolve upon her after the decree of separation or desertion, and not to property to which she was entitled in posses- sion at the date of the decree {d). So, where a woman had an equit- («) Mason v. Mitchell, 3 H. & C. FuUer, 26 B. 99 ; Rt Coward, 20 Eq. 528. 179; Re Dawes v. Creyke, 30 C. D. (6) Eamsden v. Brearley, 10 L. E. jOO. Q. B. 147 ; see now Married Women's [d) Waite v. Morland, 38 C. D. Property Act, 1882, s. 1, s.s. 2. 135, C. A. ; Cooke v. Fuller, supra, (c) Rt Insole, 1 Eq. 470; Cooke y. distinguisked. WIFES SEPARATE PROPERTY. 669 Hulme V. Tenant. able life interest for her sole and separate use without power of anticipation, and obtained a protection order and subsequently mort- gaged her interest and covenanted to pay the mortgage debt and judgment went against her as a feme sole in an action on the cove- nant, it was held a receiver of her life interest could not be appointed {a). S. 26 : " In every case of a judicial separation, the wife shall whilst so separated, be considered as a feme sole for the purposes of contract, and wrongs and injuries, and suing and being sued in any civil proceeding ; and her husband shall not be liable in respect of any engagement or contract she may have entered into, or for any wrongful act or omission by her or fur any costs she may incur as plaintiff or defendant ; provided, that where upon any such judicial separation alimony has been decreed or ordered to be paid to the wife, and the same shall not be duly paid by the husband, he shall be liable for necessaries supplied for her use " (6). See also s. 45, by which the Court may, on pronouncing a sentence of divorce or judicial separation for the adultery of the wife, order a settlement to be made of property to which the wife is entitled in possession or reversion for the benefit of the innocent party and for the children (c). This Act was amended by 21 & 22 Vict. c. lOS, which gives juris- diction to the judge ordinary to grant protecting orders {d), and extends the provisions of both Acts to property of which the wife obtaining such order has or shall become entitled as executrix, ad- ministratrix, or trustee, and to property to which she is entitled in remainder or reversion at the date of the desertion or decree (e). The protecting order, which must state the time at which the deser- tion commenced (/), is to be deemed valid until reversed (^), and persons or corporations making payments under orders afterwards reversed are to be protected and indemnified (A). Where a wife has obtained a protecting order, which, it seems, is drawn up in general terms {%), she may obtain payment to herself of (a) HiU V. Cooper, (1893) 2 Q. B. 1895, infra, p. 726. 85. (e) Sects. 7 and 8. (i) See Hill i\ Cooper, sujwa. (/) Sect. 9. (c) See MHne v. M., 2 P. & D. (,) Allen >: Walker, 5L. E. Ex. 187. see Fines and Eecoveries Act, 3 & 4 684 HUSBAND AND WIFE. Hulme V. Tenant. her liusbaijd bar the estate tail, acquire the fee simple, and defeat his estate by curtesy (a), although she may be restrained from the alienation of the rents and profits (6), and although her hijsband had become bankrupt, and had obtained his order of discharge (c). Where property is limited to the separate use of a married woman, upon a contingency which has not happened, she cannot, pending the contingency, dispose of her interest in the property (d). Where she had power to appoint realty, her general devise passed the estate subject to the power (e). By the Married Women's Property Act, 1882, ss. 2 and 5, every woman married after the year 1882, and every married woman, as to property accrued after the 31st December, 1882, is in the position of a feme sole, and can dispose by will of property, or can convey it without any acknowledgment under the Fines and Recoveries Act, without the concurrence of her husband, and without separate ex- amination (/). By the Conveyancing and Law of Property Act, 1881, s. 65 (2) (i), "a married woman with the concurrence of her husband, unless she is entitled for Iter separate use, whether with restroAnt on anticipa- tion or not, and then without his concurrence" may enlarge the residue of a long term to which she is entitled into a fee simple. By the Settled Land Act, 1882, s. 61 (2), "where a married woman who, if she had not been a married woman, would have been a tenant for life, or would have had the powers of a tenant for life under the foregoing provisions of this Act, is entitled for Iter separate use, or is entitled under any statute, passed or to be 'passed, for her sepjarate property, or as a feme sole, then she, without her husband, shall have the powers of a tenant for life under this Act. (3) Where she is entitled otherwise than as aforesaid, then she and her husband together shall have the powers of a tenant for life under this Act. (4) The provisions of this Act referring to a tenant for life, and a settlement and settled land shall extend to the married woman without her husband, or to her and her husband together, as the case may require, and to the instrument under which her estate or interest arises, and to the land therein (a) Cooper v. Macdonald, 7 C, D. Luther ?•. Bianconi, 10 Ii". Cli. E. 194; 288. -Se Smallman's Estate, 8 Ii-. E. Eq. ih) Ibid. 249. (c) Ibid., see Rt Jakeman's T., {f) Curteis v. Kenrick, 2 M. & W. 23 C. D., p. 350. 461. Cf. Re Eoper, 39 C. D. 482; Re (d) Mara v. Manning, 2 Jo. & Lat. De Burgh-Lawson, 41 C. D. 568. 311 ; Bestall v. Bimbmy, 13 Ir. Eep. (./) Ss. 2 and 5, supra, pp. 673, 674 ; 318 ; Keays v. Lane, 3 Ir. E. Eq. 1 ; Eiddell r. Errington, 26 C. D. 220. wife's separate property. 685 Hulme V. Tenant. comprised. (5) The married woman may execute, make, and do all deeds, instruments, and things necessary or proper for giving effect to the provisions of this section. (6) A restraint on anticipation in the settlement shall not prevent the exercise by her of any power under this Act " («). 4. Liability of Corpus of Married Woman's Property when she has a Life Interest with a Power. The separate estates of married women being generally bound by their engagements, it has next become a question how far these engage- ments affect the corpus, where the married woman has a limited interest only, such for instance, as an estate for life with a power of appointment. The case may be classed under three heads : (i.) Where the power of appointment is general, by deed or writing or bv will, (ii.) Where it has been by will only, and the power has been exercised, (iii.) Where there has been a limitation in default of appointment, and the power has not been exercised (b). With regard to the first class of cases, where property is limited to a married woman, to her separate use for life, with remainder as she should, notwithstanding her coverture, by deed or will appoint, and a fortiori where there is a remainder to her executors or administrators, it- will be treated as an absolute gift to the sole and separate use of the married woman, and consequently will be liable to her general engagements and debts (c). In the London Chartered Bank, ct;c. v. Leriipriere (t^), a widow settled on her second marriage certain property for her separate use for life, with remainder as she should by deed or will appoint, with remainder in default to her executors and administrators. This was held to be an alisolute settlement for her sole and separate use, and such a form of gift, without restraint on anticipation, vests in her, in equity, the entire corpus for all purposes (e). See also the principal case, supra, which, in one respect, is a strong one, as there was no gift over in the event of the wife's dying in her husband's lifetime (/). In Re («) See Re Bentley, 33 W. E. Heatley v. Thomas, 15 Y. 59G, 10 R. R. 610. 1!^^ ; and see note [d), iufra. (6) Per Turner, L.J., hi Johnson o. {d) L. E. 4 V. C. o~'l, overrulini: Gallagher, 3DeG.F. & J. 513, cited by Shattock v. S., 2 Eq. 182, but see James, L.J., in The London Chartered remarks of Kay, J., lie Eoper, 39 C. D., Bank, &c., v. Lempriere, infra, L. E. 4 p. 489 ; and Re Ilastmgs, 35 C. D. 94. P. C. p. 592. (e) Ibid., L. E. 4 P. C, p. 595. (c) See AUen v. Papworth, 1 V. 163 ; (/) Ibid., L. E. 4 P. C, p. 595. 086 HUSBAND AND WIFE. Hviline V. Tenant. Armstrong, Ex p. Gilchrist (a), real estate was settled by a woman before her marriage to her separate use for life, without restraint, remainder as she should by deed or will appoint and in default to her children in fee. She traded, became bankrupt, and the trustee in bankruptcy required her to execute her power in his favour. The Court of Appeal, overruling the Divisional Court, held, that such a power was not " property " under the Married Women's Property Act, 1882, s. 1, s.s. 5, and that she could not be compelled to exercise it; also, that although equity has given effect to the contracts of a married woman out of property over which she has a general power of appointment, where the remainder in default is limited to her executors and administrators, yet it has never done this in her lifetime, or where there is a gift over in default to others (6). And there is no distinction between a case where the life estate precedes the power and where it follows it (c). In cases falling under the second head, where the power of appointment is by will only, and has been exercised but not for creditors, the authorities do not appear to be consistent. Thus, although where a man having a general power of appointment over property by will, which, in default of appointment, goes to others, by exercising his appointment renders the appointed property assets for payment of his debts (d), it has been held that if a married woman exercised such a power, although having a life estate to her separate use, the appointed property would not be applicable to the payment of debts which she may have contracted as a feme sole (e). In com- menting on this class of cases, Turner, L.J., says : — "In the case of Norton v. Turvill (/), and in Sockett v. Wray (g), the exercise of the power by the will of the married woman seems to have been held to let in a bond-creditor against the appointees under the will ; and in Hughes v. Wells (h), I seem to have intimated that this might be the effect of the exercise of the power, as in other cases of the exercise of the general power of appointment by will, and certainly (a) 17 Q. B. D. 167, 521, C. A. (b) See Be Eoper, infra. (c) See Mayd v. Field, 3 C. D. 587, 593 ; commented upon in lie Eoper, 39 C. D. 490. (d) Jenney v. Andi-ews, 6 Madd. 264. Drew. 165 ; and see Ileatley v. Thomas, 15 V. 596, 10 E. E. 122 ; Hobday v. Peters, 28 B. 354, 356 ; Blatchford v. WooUey, 2 Dr. & Sm. 204. (/) 2 P. W. 144, explained in lie Hastings, 35 C. D., p. 99. {!/) 4 Bro. Ch. 483. (e) Vatighan v. Yanderstegen, 2 (A) 9 Ha. 749. WIPES SEPARATE PROPERTY. 68' Hulme V. Tenant. not upon the ground that power is property," and after commentinir upon Vaughan v. Vanderstegen (a), and Heathy v. Thoinas (b), concludes that this point may be considered open (c). But in Re ParJcin (d), Stirling, J., held that a general power was assets for the payment of the ante-nuptial debts of a woman married in 1867. In Re Harvey's Estate (e), property was settled on a married woman for life to her separate use, remainder as she should by will appoint ; she appointed, and it was held that the appointed propertv was liable to the payment of her debts as if it were her separate estate, following TJie London Chartered Bank, &c. v. Lempriere, but not Vaughan v. Vanderstegen. See also Hodges v. H (f) ; Re Lady Hastings (g) ; Re De Burgh Lawson (h). In Re Roper (i), Mrs. R. was entitled to her separate use, without restraint, to a policy of insurance and some furniture ; she also had a general power of appointment by will over 12,400^. She became surety with her husband for the payment of a debt, and assigned her interest in her separate estate to secure such debt and covenanted to pay the interest. She died in the lifetime of her husband, having appointed the 12,400^. to her daughter at 21. The question arose, whether the property appointed by her will was liable to satisfy her covenant. Kay, J., after reviewing the cases, held, that the case was not within the Married Women's Property Act, 1882 ; and also, that the exercise by will of this general power could not make the appointed fund (12,400^.), luhich never luas her separate estate, liable ; and even if it could be said to have become her separate property by the appointment, yet this could only be so at her death, which took place long after the engagements were entered into, and therefore the appointed property could not be liable (^)- By the Married Women's Property Act, 1882, s. 4, which came into operation on the 1st of January, 1883, it is enacted that "tJie execution of a, general poivcr by will of a married woman shall have the effect of making the property appointed liable for her debts and other liabilities in the same manner as her separate estate is made liable under this Act," As to which see Pike v. Fitzgihhon, supra, (a) 2 Drew. l(3o. (/) 20 0. D. 749. (h) 15 V. 596, 10 E. E. 122. {,j) 35 C. D. 95. (c) Johnson i\ Gallagher, 3 De G. [h) 41 C. D. 5G8. F. & J. 513. (/) 39 C. D. 482. ((0 (1892) 3 Ch. 510, 521 ; Fleming (A) Pike v. Fitzgibbou, 17 C. D. V. Buchanan, 3 De G. M. & G. 976. 454 ; Re Ann, (1894) 1 Ch. 549. (e) 13 C. D. 216. 688 HUSBAND AND WIFE. Hulme V. Tenant. Re Ann (o), Re Roper, Re Gilchrist, supra, and see the Married Women's Property Act, 1893, s. 3, p. 681, supra. "With regard to the cases falling under the third head, viz., where there has been a limitation in default of appointment and the power has not been exercised, it has been laid down " that there cannot be any reasonable doubt that the debts and engagements of a married woman cannot prevail again.st the parties entitled in default of appoint- ment, and the case of Nail v. Punter {h) impliedly decides that point " (c). Semhle, that a married woman may now by deed unacknowledged, release her power over any property (d). 5. Liability of Separate Estate to Wife's General Engagements. "I think that in order to bind the separate estate by a general engage- ment, it should appear that the engagement was made with reference to and upon the faith and credit of that estate ; and whether that was so or not, is a question to be judged by the Court upon all the circumstances," per Turner, L.J., in Johnson v. Gcdlagher{e). "When a woman has property settled to her separate use, she may bind that pro- perty without distinctly stating that she intends to do so." She may enter into a bond, bill, promissory note or other obligation which, considering her state as a married woman, could only be satisfied by means of her separate estate; and therefore, the inference is conclu- sive, that there was an intention, and a clear one, on her part, that her separate estate, which would be the only means of satisfying the obligation into which she entered, should be bound " (/). The following has been laid down by a very accurate and learned judge, as the principle upon which the Courts acted (previous to recent legislation on the subject), viz. that — " If a mariied woman, having separate property, enters into a pecuniary engagement. (a) (1894) 1 Ch. 549, infra. (6) 5 Si. 599 ; and see Be Parkin, (1892) 3 Ch. p. 518. (c) Per Turner, L.J., Johnson v. Gallagher, cited in the London Char- tered Bank, &c. v. Lempriere, L. E. 4 P. C, p. 592. (f?) Re Onslow, 39 C. D. 622; Ee Davenport, (1895) 1 Ch. 361; Convey- ancing and Law of Property Act, 1881 , s. 52, discussed in Wolstenholme, Convey. Acts, ed. 1895, p. 108 ; Par- well on Powers (1893), p. 18. (e) 3 De G. P. & J. 513, cited London Chartered Bank, &c. v. Lempriere, L. E. 4 P. C, p. 590; Miuray v. Barlee, 3 My. & K. 209 ; Pollock, Contract, (1894) p. 669 ; Waynford v. Heyl, 20 Eq. 321. (/) Per Lanrjdale, M.E., in Tullett V. Armstrong, 4 B., p. 323, followed in Johnson v. Gallagher, 3 De G. P. & J., p. 515; Picard v. Hine, 5 Ch. 274; London Chartered Bank, &c. v. Lem- priere, supra. WIFES SEPARATE PROPERTY. 689 Hulme V. Tenant. whether by ordering goods or otherwise, which (if she were a /erne sole) would constitute her a debtor, and in entering into such engage- ment she purports to contract, not for her husband, but for herself, and on the credit of her separate estate, and it was so intended by her, and so understood by the person with whom she is contracting, that constitutes an obligation for which the person with whom she contracts has the right to make her separate estate liable ; and the question whether the obligation was contracted in such manner must depend upon the facts and circumstances of each particular case. It clearly is not necessary that the contract should be in writing (a), because it is now admitted that if a married woman enters into a verbal contract, expressly (or impliedly) making her separate estate liable, such contract would bind it ; nor is it necessary that there should be any express reference made to the fact of there being such separate estate, for a bond or promissory note given by a married woman, without any mention of her separate estate, has long been held sufficient to make her separate estate liable. If the circum- stances are such as to lead to the conclusion that she was contracting, not for her husband, but for herself, in respect of her separate estate, that separate estate will be liable to satisfy the obligation " (6). As the "engagement " of a married woman differs from a contract, not in the nature of the transaction itself, but in making only the separate estate the debtor, it follows that in all that relates to the transaction itself, the ordinary rules and limitations of contract apply (c). A verbal engagement, therefore, will not bind the separate property of a married woman in a case where, had she been a, feme sole, a writing would have been required. As if a feme covert were to undertake verbally to pay the debt of a stranger or of her husband (d). A separate estate in realty cannot, by reason of the Statute of Frauds, be rendered liable to satisfy the general engagements of a married woman not in luriting even if her personalty can (e). And the Statutes of Limitation are also applicable, by analogy, for " the Courts have created an imaginary creature, namely, a married woman with the powers of Si feme sole, and it is, in (a) See Mun-ay v. Barlee, 3 My. & H. 415. K. 209 ; Owens v. Dickenson, Cr. & (e) Burke v. Tuitc, 10 Ir. Ch. E. 467 ; Ph. 53. see also Shattock v. S., supra, com- [h) Per Kinder slejj,Y.-C., in Mrs. mented on in iZe Koper, 39 C. D., ji. Matthewman's Case, 3 Eq. 787. 489; Jolinson v. Gallagher, 2 De G. (c) Pollock on Contract, p. 71. F. & J., p. 514. {d) See Be Sykes's T., 2 John. & W. & T. — VOL. 1. 44 GOO HUSBAND AND WIFE. Hulme V. Tenant. my opinion, properly and duly following the analogy of the Statute of Limitations to say that if the Court can allow her to contract in the same way as a feme sole, the statute must run against her contracts as if she were a, feme sole" (a). As the general engagements of a feme covert are binding upon her separate estate, on the ground only of her intention that they should be a charge upon it, therefore, wJten it is not her intention to contract a personal debt, or to charge a gross sum upon her separate estate, the Court cannot raise an implied assumpsit to charge it in opposition to her intention (6). For the doctrine of appointment is long exploded, and the " engagement " (c) does not create any lien or charge id), and the separate estate of a married woman is now made liable simply by a process of equitable execution (e). Such " engagements " give rise to no personal remedy against the wife (at any rate before the Married Women's Property Act, 1882, as to which see infra, p. 692) ; but only against such part of her separate property unrestrained from anticipation as was in existence at the date of such engagement, and had not been disposed of by her at the date of the judgment recovered (/). So where a married woman received from the trustee rents of an estate to which she claimed to be entitled as her separate property, but it turned out that she was not entitled, the Court refused to give relief to the real owner against her other separate estate ((/). 8ome Cases imvhich her " Engagements" have been enforced. — Her separate estate has been made liable in the following instances : On her bond (h) ; on her covenant (i) ; in a suit by her husband for money paid on her behalf and money lent (k) ; on bill of exchange (l) ; (a) Per Cotton, L.J., lie Hastings, 45 C. D. 320. 35 C. D., p. 105. (A) Norton v. Tm-vill, 2 P. W. 144, (6) Williams v. Bolton, 2 V. jnn. explained in Re Hastings, 35 C. D., 138, 4 R. E. 21 ; Jones v. Harris, 9 p. 99 ; Hulme v. Tenant, supra ; La V. 486, 7 E. E. 282. Touche v. L., 3 H. »& C. 576 ; Heatley (c) See Pollock, 66. v. Thomas, 16 V. 596, 10 E. E. {d) Johnson v. Gallagher, supra; 122. lie Hastings, supra, p. 97 ; Ee Eoper, (/) Maycl v. Field, 3 C. D. 587, 39 C. D., p. 491. commented upon, 39 C. D. 490. (e) Re Eoper, p. 491 ; Re Peace (/c) Butler v, B., 16 Q. B. 374. and Waller, 24 C. D., p. 407. (0 Owen v. Homan, 4 H. L. Cas. (/) Thicknesse, H. & W., p. 145; 997; McHenry v. Davies, 10 Eq. 8S, Vike r. Fitzgibbon, 17 C. D. 424; Col- as to which see PoUock, Contract, p. lett I'. Dickenson, 11 C. D. 687. 71 ; and see Eobinson v. Lynes, AV. N. ((/) Wright V. Chard, 1 De G. F. & (1894), 142. J. 567 ; and see Whittaker v. Kershaw, wife's separate property. 691 Hulme V. Tenant. where a married woman was sued upon a bill accepted before her marriage, and judgment was given in the form in ^Scott v. Morley (a) ; on her promissory note (b) ; on her contract to purchase (c) ; by an agreement to pay rent {d) ; on an agreement to take a house, and taking possession (e) ; on retainer of solicitor (/). For costs of suit improperly instituted against husband {g), see now as to her liability to costs, Married Women's Property Act, 1882, s. 1, s.s. 2, and Married Women's Property Act, 1893, s. 2, supra. Tort, Bveacli of Trust, Fraud. — The separate estate of a married woman was not, in general, liable for breaches of trust or tort committed by her. " The principle," said Jessel, M.R., in Waivford v. Heyjl (h), " as I have always understood it, is this : a married woman is liable — or rather her separate estate is liable (for there is no personal liability as far as she is concerned) — to make good all contracts which are made by her with express reference to the separate estate, or which from the nature of the contract itself must be intended to be so referred ; but she is not liable even for general contracts which from their nature cannot be so referred ; a fortiori she is not liable for general torts, but her husband is liable." But where she was an actual actor in the breach of trust, see Croshy v. Church (i), Pemberton v. McGill (k), Clive v. Careiu {I), Mara v. Mannrng (m), Davies v. Stanford {n}: and as to fraud, see Wainford v. Hey I (supra), Sharpe V. Foy (o), Re Lush {p). But a married woman" can now be sued in respect of any thing in respect of which a man could be sued {q). As to her torts see Seroka v. Kattenhurg (r). As to her breaches of trust : Sawyer V. S. {s). But her power to contract is limited, see s. 1, s.s. 2 (a) 20 Q. B. D., p. 132. (A) 1 Dr. & Sm., referred to Sawj-er (h) Davies v. Jenkins, 6 C. D. 728. v. S., 28 C. D., p. 605. (c) Picard V. Hine, 5 Ch. 274. (/) 1 John. & H. 199. (d) Master v. Fuller, 4 Bro. Ch. {,n) 2 Jo. & Lat. 311. 19. (//) 01 L. T. (N. S.) 234; Lewin, (e) Gaston v. Frankum, 2 De G. & Sm. 9th ed. , 867 . 561. (o) 4 Ch. 35. ( /) Murray v. Barlee, 3 My. & K. {]>) 4 Ch. 591. 210 ; cf. CaUow v. Howie, 1 De G. & {<]) AVhittaker v. Kershaw, 45 C. D., Sm. 531; Wright v. Chard, 4 Dr. 702 ; p. 329; Butler r. B., 16 Q. B. D. Be Pugh, 17 B. 336; and see Peace 375. and Waller, 24 C. D. 405. (/•) 17 Q. B. D. 177. («/) M. V. C, 2 P. & D. 414. (s) 28 C. D. 595; Lewin, 9th od., (/0 20Eq. 321. pp. 867, 1043; Trustee Act (1893), (t) 3 B. 485. s. 45, infra. 44 2 692 HUSBAND AND WIFE. Hulme V. Tenant. of the Act of 1882, supra p. 672, and the remedy is confined to her se-pande estate (a). Under that Act, if she has existing separate estate her contract will bind it ; if she breaks her contract, any separate estate which she has since acquired, and which she has at the time when judgment is recovered against her, will be liable for her breach (h). Those, therefore, who assert the existence of a contract binding the married woman, must first shew the existence of separate property at the time of making the contract, for otherwise there is no power to contract (c). This section does not create a ^personal liability in a married woman, but only a proprietary liability {d), that is, the judgment under this Act is to be executed against her property, not against her person, and cannot make her liable to penal consequences (e). T/nder this Act a contract is only presumed to be made against separate estoAe, unless the contrary shall appear, and^ if the separate estate is inalienable, the contrary does appear (/), and there is no such thing as separate property of an unmarried woman or widow {g). The question is, had she at the date of the contract free separate property with respect to which she might reasonably be deemed to have contracted ? (/t). If the separate estate is very small, the presumption that she intended to contract on the faith of it does not arise {i). But since the Act of 1893 (supra, p. 679), her contract binds sepa- rate estate she may thereafter be possessed of or entitled to. 6. Of the receipt by the Husband of the Income or Corpus of the Separate Estate. As to the trading and bankruptcy of a married woman, see the Married Women's Property Act, 1882, s. 1 (5), supra, p. 672. Where property is settled to the separate use of a married woman without any restraint upon anticipation, she can deal with (a) WMttaker v. Kershaw, supra ; 128. Hoare v. Niblett, (1891) ,1 Q. B. (e) Holtby v. Hodgson, 24 Q. B. D. 781. . 105. {h) Re Shakespear, 30 C. D., p. (/) Harrison j'. H., 13 P. D., p. 185. 171 ; PaUiser v. Gurney, 19 Q. B. I). {(j) Beckett v. Tasker, 19 Q. B. D., 519; Stogdon v. Lee, (1891) 1 Q. B. p. 424 ; Pelton i\ Harrison, (1891) 2 661; Hood-Barrs v. Cathcart, (1894) Q. B., p. 425. 42 W. R. 628. [h) Lake v. Driffield, 24 Q. B. 98 ; (c) Palliser v. Giu-ney, 29 Q. B. D., Bonner v. Lyon, 38 "W. E. 541. p. 521 ; but see now Married Women' s ■ (/) Braunstein v. Lewis, (1892) 65 Property Act, 1893, s. 1, post. L. T. 449. {d) Scott V. Morley, 20 Q. B. D., p. wife's separate property. 693 Hulme V. Tenant. the income or corpus as she pleases, and may make a gift thereof to her husband or any one else {a). Income, — The rule in equity is clear from the earliest' times that when husband and wife have lived together the wife cannot charge her husband, or her husband's estate, as her debtor, for arrears of her separate income which she has expi:essly or impliedly permitted him to receive. So where a married woman living with her husband in Scotland was entitled to the income of a fund for her separate use, which stood in the names of trustees of whom her husband was one, and payments of income were at first lodged in a bank to the credit of the wife's separate account, and then to an account in the names of husband and wife, but for many years before the husband's death and when he had become sole trustee, the income was paid into his own bankincr account and mixed with his own funds, the House of Lords inferred from these circumstances a complete gift (b). To displace the rule it is not sufficient to show that the separate income has accumulated in the husband's hands and remains unspent (c), or that the husband is himself a trustee of the income {d), or that the wife is restrained from anticipation (e). The rule that the arrears of the wife's separate estate cannot be recovered as against the husband, being founded on the presumption that it has been applied to t-he maintenance of the wife or ta the general purposes of the family, with the assent of the wife, does not, it seems, apply where there is a receiver over the property liable to pay it, nor has it any application against a purchaser for valuable consideration (/). In some cases, however, the husband has been obliged to account for one year's receipts (g) ; but the authorities are divided, and the better opinion seems to be, that the wife can recover nothing (h). (a) Caton v. Eideout, 1 Mac. & G. comments thereon, Sugden, Property, 599, 601 ; Dixon v. D., 9 C. D. 587, 162; Fajne v. Little, 26 B. 1. 590; Lewiu, p. 880; Vaizey, Settle- (/) Foss v. F., 15 Ir. Cli. R. ments, p. 787. ^ 215. (6) Edward v. Cheyne, 13 App. Cas. (,'y) See cases cited in note to Ex ]). 384, 398 ; Eowley v. Unwin, infra. Elder, 2 Madd. 286 ; Alexander v. (c) Beresford v. Annagh, 13 Si. BarnhiU, 21 L. R. Ir. 511. 643. (h) See Lewin, 880; and see Lord {d) Caton v. Eideout, supra. Cottenham' s judgment in Caton v. (e) Eowley v. Unwin, 2 Kay & Eideout, 1 Mac. & G. 599, and the ^. 138, cited (1896) A. C, p. 185; see note in Vaizey on Settlements, pp. 788 13 App. Cas., p. 398, Howard v. Digby, —792. ' 2 CI. & Fin. 643 (pin-money), and the G94 HUSBAND AND WIFE. Hulme V. Tenant. Where, however, there is no evidence of the wife's having assented to or acquiesced in the receipt of her income by her husband she will be entitled to reimbursement out of his estate {a), and without knowledge you must not presume assent (6). But there must be evidence of a serious demand for her income, and not mere trifling complaints at the receipt thereof by her husband (c). Where the consent of the wife to her husband receiving the income of her separate estate could not be presumed, on account of her lunacy, an allowance was made to the husband of a proper sum, for what he had expended in her support {d). Corpus. — With regard to the corpus of her separate estate, a married woman may give her husband the same interest therein as she can to any other person (e), chattels settled to her separate use passing by manual delivery (/) ; and if she authorises money to which she is entitled to her separate use to be paid to him, she cannot recall it {g). But the onus lies on him of proving that it was so intended, otherwise he will be a trustee for her (Ji), in which case a trustee of stock bequeathed to the separate use of a married woman, transferred it to her husband. The husband failing to prove clearly that his wife intended to give him the stock, he was held by Lord Eldon to be a trustee thereof for her. " As at the time the legacy was given," said his Lordship, " it was for the separate use of the wife, and it continued so until transferred to the husband, that transfer could not destroy the separate trust, unless clear evidence is produced by the husband, that it was intended, with her assent, to destroy it. If the evidence is short of that, as it is perfectly settled that a husband may in this Court be a trustee for the separate use of his wife, he would be pre- cisely in the same situation as to the beneficial interest as the person who made the transfer. Therefore he is a trustee " (i). By the Conveyancing and Law of Property Act, 1881, s. 50, freehold land, or a thing in action, may be conveyed by a husband to his wife, (a) Parker v. Brooke, 9 V. 583, 7 (e) Gardners. G., 1 Gif. 126. E. E. 299; Moore v. M., 1 Atk. 272 ; (/) Farington v.. Parker, 4 Eq. 116. Dixon V. D., 9 C. D. 587 ; Wassill v. {(/) Caton v. Eideout, 1 Mac. & G. Leggatt, (1896) 1 Ch. 554. 599, 601 ; and see Lynn v. Ashton, 1 (6) Dixon V. D., 9 C. D., p. 592. Euss. & M. 190. (c) Thrupp V. Harman, 3 My. & K. (/<) Eich v. Cockell, 9 V. 869, 7 E. E. 513; Corballis v. Grainger, 4 Ir. Ch. 227. E. 173. (i) Re Flamank, 40 C. D. 461 ; Re (d) A.-G. V. Parnther, 3 Bro. Ch. Blake, 60 L. T. 664. See Wassill v. 441. Leggatt, supra. wife's separate property. 695 Hulme V. Tenant. and by a wife to her husband alone or jointly with another jjerson. When the husband has received, with the consent of his wife, the capital or savings of her separate property, but it is also shown that he received them for her use, he is liable to an account (a). And the separate estate or the savings of the wife from separate estate, not c^iven by her to the husband, may be followed, if invested in his name in real estate (h). A wife may by her acts, without any express gift, show that it was her intention that her husband should have her separate property without liability to account. Where for instance the husband has employed it with the knowledge and consent of his wife, in his business and for the expenditure of his family, a gift thereof from the wife will, in absence of an agreement to the contrary, be presumed (c). But semhle there must not only be an intention on the part of the wife to give, but an acceptance by the husband of the gift (d). When the husband has received the wife's property not as a gift, she can prove as a creditor against his estate in an administration suit (e). By the Married Women's Property Act, 1882, s. 8, " any money or other estate of the wife lent or entrusted by her to her husband for the purpose of any trade or business carried on by him, or otherwise, shall be treated as assets of her husband's estate in case of his bankruptcy, under reservation of the wife's claim to a dividend as a creditor for the amount or value of such money or other estate after, but not before, all claims of other creditors of the husband for valuable consideration in money or money's worth have been satisfied." The wife in proving must show for what purpose she lent the money. The natural inference would be that she lent him the money for the purpose of his trade ; unless she can prove she did not, she cannot prove or vote until all other creditors have been paid 20 shiUings in the pound (/). If a woman lends money to a firm of which her husband is a partner she can prove against the joint estate (g). As to " lent or entrusted," see Alexander \. Barnehill (h). (a) Darkin v. D., 17 B. 578; (c) Gardner r. G., 1 Gif. 12G. Green v. CarliU, 4 C. D. 882 ; ((/) See Be Blake, 60 L. T. 663. Carnegie v. C, 22 W. E. 595. (e) Woodward v. W., 3 De G. J. & (6) See Darkin v. D., supra; Eowe S. 672 ; and see Be Blake, supra. V. R., 2 De G. & Sm. 294; Bar- (/) 7?e Genese, 16 Q. B. D. 700. rack V. M'Cullocli, 3 Kay & J. 110; (g) Partnership Act, 1890, s. 4 ; Be Scales V. Baker, 28 B. 91 ; and see Tufi, 19 Q. B. D. 88. and consider Hughes v. Wells, 9 Ha. (h) 21 L. E. Ir. 511. 749. 696 HUSBAND AND WIFE. Hulme V. Tenant. A woman lent money to her husband, a trader, which went into his business. She was held entitled as administratrix to • retain the amount of her debt (a). 7. Wife's ante-nuptial Debts and Liabilities. "At common law the husband was liable for his wife's ante- nuptial debts to the whole extent of his property, whether he knew of their existence or not, and whether he obtained any property from his wife or not, but he could not be sued alone for such debts if his wife were , alive, and he could not be sued at all for them after her death " (6). At common law as regarded a contract made by a woman before her marriage, but wbich was not sued upon till after marriage, she and her husband were sued together, and if it was proved that the contract on which the action was brought, had been made by the wife before marriage, the judgment went against both husband and wife, and the execution followed the judgment. Up to the time of the Married Women's Property Act, 1882, a married woman could be taken in execution upon a judgment recovered after her marriage against her and her husband, in respect of her contract made before marriage (c), and the Act of 1882 does not alter the legal liability of a woman {d), and where she was liable to be taken in execution she can now be sum- moned under the Debtors Act, 1869, s. 5, which is a substitute (e) for the old process of capias, and see judgment of Lindley, L.J. in Bech v. Pierce (/), and see Sparkes v. BeU (g), Evans v. Chester {It), Larhin. v. Marshall (i), Edwards v. Martyn (k), Ivens v. Butler (l), Nagley. 0' Donnell {m). Bat if no action were brought during the covertui'e and the wife survived, she remained just as liable for the debt as she was before marriage {n). But if an action were brought and judgment recovered against the husband and wife during the coverture, and the husband became bankrupt and obtained his (o) Re May, 45 C. D. 499 ; cf. Mack- (rZ) Eobinson King v. Lynes, (1894) intosh V. Pogose, (1895) 1 Ch. 505. 2 Q. B. 577. (fc) Per Lindley, L..7-, Beck v. (e) See judgment of iJoiwew, L.J. Pierce, 23 Q. B. D. 320; cited Be (/) 23 Q. B. D., p. 320. Parkin, (1892) 3 Ch. 519; and see (g) 8B.&G.1. Adair v. Skaw, 1 Sck. &L. 263 ; Ckubb (h) 2 M. & W. 847. V. Stretch, 9 Eq., p. 559; Heard v. (r) 4 Exck. 806. Stamford, 3 P. W. 409 ; Bell v. Stocker, (k) 17 Q. B. 693, 700. 10 Q. B. D., p. 130. (0 26 L. J. N. S. (Q. B.) 145. (c) See judgment of Esher, M.E., (m) Ir. E. 7 C. L. 79. in Scott V. Morley, 20 Q. B. D., p. 124. {n) Chubb v. Stretch, supra. wife's separate property. 697 Hulme V. Tenant. discharge, the liability of the husband and the wife for the wife's debt was gone at laiv (a), but the wife's separate estate still remained liable m equity to satisfy her debts (6). And her husband, as her administrator, was subject to all her ante-nuptial liabilities to the extent of her property in his hands in that capacity (c). By the Married Women's Property Act, 1870, s. 12, it was enacted that " a husband shall not by reason of any marriage which shall take place after this Act has come into operation (9th August, 1870), be liable for the debts of his wife contracted before marriage, but the wife shall be liable to be sued for, and any property belonging to her for her separate use shall be liable to satisfy such debts as if she had continued unmarried." As to what are debts contracted before marriage, see Re Hedgely{d). This section extends to property settled to the separate use of a married woman, without povjer of anticipation. W. S. by his will gave an annuity to his wife J. S. for her separate use without power of anticipation. He died in 1857. A fund was set aside in an administration action to answer the annuity. On 19th January, 1871, J. S. intermarried with W. H. ; no settlement. On same day, but later, judgment was entered in an action against J. S. in respect of a debt incurred after 1857. In March, 1871, an order was made charcring the fund in Court with the amount of the debt. On petition for a stop order on the same fund, held, that she must pay the debt out of the fund (e). And see the judgment against a married woman, married after 1870 and before 1883, in respect of such a debt, in Seton (1893), p. 750. By the Married Women's Property Act (1870) Amendment Act, 1874, s. 1, the Legislature, not considering it right that the property which a woman had at the time of her marriage should pass to her husband, and that he should not be liable for her debts contracted before marriage, enacted that "so much of the Married Women's Property Act, 1870, as enacts that a husband shall not be liable for the debts of his wife contracted before marriage is repealed so far as respects marriages which shall take place after the passing of this Act (30th July, 1874), and a husband and wife married after the (a) Lockwood v. Salter, 5 B. & xVd. 201. 303; Miles v. Williams, 1 P. W. 249, [d) 34 C. D. 379. 257. (e) Sanger v. S., 11 Eq. 470; Lon- {h) Chubb V. Stretch, supra; and don, &c.. Bank v. Bogle, 7 C. D. 773; see the judgment, Seton (1893), p. 756. Rt Hedgely, 34 C. D. 379; Axford v. (c) Adaii- V. Shaw, 1 Sch. & L. 243, Eeid, 22 Q. B. D. 548. 698 HUSBAND AND WIFE. Hulme V. Tenant. passing of this Act may be jointly sued for any such debt." This Act relates to marriages which took place after the 30th July, 1874, and before the 1st January, 1883, when the Married Women's Property Act, 1882, came into operation. By section 2, the husband, in such action, and in any action brought for damages sustained by reason of any tort committed by the wife before marriage, or by reason of the breach of any contract made b}'' the wife before marriage, was to be liable for the debt or damages respectively to the extent only of the assets hereinafter speci- fied, and in addition to any other plea or pleas may plead that he was not liable to pay the debt or damages in respect of any such assets as hereinafter specified ; or confessing his liability to some amount, that he was not liable beyond what he so confessed ; and if no such plea was pleaded the husband should be deemed to have confessed his liability so far as assets were concerned. But he is not liable to be sued after her death {a). It is sufficient in an action hereunder to allege that the husband is liable for the debt (6). By section 3, if it was not found in such action that the husband was liable in respect of any such assets, he should have judgment for his costs of defence, whatever the result of the action might be against the wife, as to which see London, etc. Bank (c). By section 4, when a husband and wife were sued jointly, if by con- fession or otherwise it appeared that the husband was liable for the debt or damages recovered, or any part thereof, the judgment to the extent of the amount for which the husband is liable shall be a joint judgment against the husband and wife ; and as to the residue, if any, of such debt or damages, the judgment shall be a separate judgment against the wife. By section 5, the assets in respect of and to the extent of which the husband shall in any such action be liable, are as follows : — (1) The value of the personal estate in possession of the wife, which shall have vested in the husband : (2) The value of the choses in action of the wife which the husband shall have reduced into possession, or which with reasonable diligence he might have reduced into possession : (3) The value of the chattels real of the wife which shall have vested in the husband and the wife : (a) Bell V. Stocker, 10 Q. B. D. 811. 130. (c) 7 C. D. 773. (6) Matthews v. "SMiittle, 13 C. D. wife's separate PROPERxy. 699 Hulme V. Tenant. (4) The value of the rents and profits of the real estate of the wife which the husband shall have received, or with reasonable diligence might have received : (5) The value of the husband's estate or interest in any property, real or personal, which the wife in contemplation of her marriage Avith him shall have transferred to him, or to any other person : (6) The value of any property, real or personal, which the wife in contemplation of her marriage with the husband shall, with his consent, have transferred to any person with the view of defeating or delaying her existing creditors. And there is a proviso to section 5 that where the husband after marriage pays any debt of his wife, or has a judgment bond fide recovered against him in any such action as is in this Act mentioned, then to the extent of such payment or judgment the husband shall not in any subsequent action be liable (a). By the Married Women's Property Act, 1882, which repeals, with the usual saving, the Acts of 1870 and 1874 (see section 22), it is enacted by section 13, that "a woman after her marriage shall continue to be liable in respect and to the extent of her separate yroperty for all debts contracted, and all contracts entered into or wrongs committed by her before her marriage, including any sums for which she may be liable as a contributory, either before or after she has been placed on the list of contributories, under and by virtue of the Acts relating to joint-stock companies ; and she may be sued for any such debt and for any liability in damages or otherwise under any such contract, or in respect of any such wrong ; and all sums recovered against her in respect thereof, or for any costs relating thereto shall be payable out of her separate property ; and as between her and Iter husband, unless there be any contract between them to the contrary, her separate property shall be deemed, to be primarily liable for all such debts, contracts, or wrongs, and for all damages or costs recovered in respect thereof : Provided always, that nothing in this Act shall operate to increase or diminish the liability of any woman married before the commencement of this Act for any such debt, contract, or wrong, as aforesaid, except as to any separate property to which she may become entitled by virtue of this Act, and to which she would not have been entitled for her separate use under the Acts hereby repealed or otherwise, if this Act had not passed." (a) See Turner r. Caulfield, 7 L. E. Bogle ; Axford v. Eeid, &c., cited Ir. 347; and London, &c., Bank v. supra, note (e), p. 697. 700 HUSBAND AND WIFE. Hulme V. Tenant. This section is wider than section 1, sub-section 2 (supra, p. 672), and under it a personal judgment can be made against a married woman and her separate property taken in execution («). In Jay v. Robinson (h), judgment was recovered substantially in the form in Scott v. Morley, supra, against a married woman for a debt contracted during her marriage. She subsequently obtained a decree absolute for a dissolu- tion, and married again, and thereupon settled property belonging to her, to her separate use without power of anticipation : held, that the debt was contracted " before her marriage," within this section and section 19 of the same Act, and that the restriction on anticipation was of no validity, and a receiver was appointed, an^l an injunction granted restraining her from dealing with' her separate estate. And the word "debt'' in both these sections comprehends both common law debts contracted by a married woman when single, and debts contracted in respect of her separate estate during a previous marriage (c), although there may be no personal liability under the Debtors Act." A husband cannot maintain any action against his wife for money lent to her, or for money paid to her before their marriage at her request, secus, for money, &c., lent or paid after their marriage {d). By section 14, "a husband shall be liable for the debts of his wife contracted and for all contracts entered into and lurongs committed by her, before ma7'riage, including any liabilities to which she may be so subject under the Acts relating to joint-stock companies as afore'said, to the extent of all property whatsoever, belonging to his wdfe which he shall have acquired or become entitled to from or through his wife, after deducting therefrom any payments made by him, and any sums for which judgment may have been bond fide recovered against him in any proceeding at law, in respect of any such debts, contracts, or wrongs for or in respect of which his wife *was liable before her marriage as aforesaid, but he shall not be liable for the same any further or otherwise ; and any court in which a husband shall be sued for any such debt shall have power to direct any inquiry or proceedings which it may think proper for the purpose of ascertaining the nature, amount, or value of such property : Provided always, that nothing in this Act contained shall operate to increase or diminish the liability of any husband married before the (a) Eobinson v. LjTies, (1894) 2 Q. B. {d) Butler v. B., 14 Q. B. D. 831 ; 577; 38 Sol. Jo. G66. 16 Q. B. D. 374, C. A. See also (&) 25 Q. B. D. 467. Hallett v. Hastings, 35 C. D. 94 ; (c) Per Fry, L.J., ibid., p. 474. Beck v. Pierce, 23 Q. B. D. 316. wife's separate property. 701 Hulme V. Tenant. commencement of this Act for or in respect of any such debt or other liability of his wife as aforesaid." As to her liabilities to joint-stock companies, see Companies Act, 1862, s. 78. " The effect of the Act seems to be that where the shares are standing in the name of a married woman at the commencement of the Act (i.e., of 1882, supra, p. 672) she herself is liable as a contributory on the principle of 3Irs. Matthewman's •case (a), but her husband's liability jis the same as it was before the Act. If the shares are placed in the name of the married woman after the Act she alone is liable. Where a man marries a shareholder after the Act, the wife is liable to the extent of her separate property, and the husband is liable to the extent of the assets received from or through his wife " (6). This section (14, supra, p. 700) and the following section are in relief of the husband, but there is no section relieving him from liability for wrongs done by his wife after marriage, and the plaintiff may sue the wife for such wrongs alone or with her husband (c). In Becky. Pierce (d), a solicitor sued a married woman for costs incurred before marriage, and recovered judgment, which, as she had no sepa- rate estate, remained unsatisfied. An action was then brought against the husband. Held, that since the Act he can now be sued alone, that the judgment against the wife was no bar (e), having no application to such actions, and that the Statute of Limitations is not affected by this statute. By section 15, a husband and wife may be jointly sued in respect of any such debt or other liability (whether by contract or for any wrong) contracted or incurred by the wife before marriage as afore- said, if the plaintiff in the action shall seek to establish his claim, either wholly or in part, against both of them ; and if in any such action, or in any action brought in respect of any such debt or liability against the husband alone, it is not found that the husband is liable in respect of any property of the wife so acquired by him or to which he shall have become so entitled as aforesaid, he shall have judgment for his costs of defence, whatever may be the result of the action against the wife if jointly sued with him ; and in any such {a) 3 Eq. TSl. Act of 1882, ss. 6 and 7, supra, p. 675. (6) See the Law of Joint-Stock (c) Scroka v. Kattenburg, 17 Q. B. Companies, by Chadwyck Ilcaley, D. 177. Wlieeler and Burney (1894), p. 829; (d) 23 Q. B. D. 316. and cf. Married Women's Property (e) Kendall v. Hamilton, 4 App. Acts, 1874, s. 2, supra, p. 098, and the Cas. 504. 702 HUSBAND AND WIFE. Hulme V. Tenant. action against husband and wife jointly, if it appears that the husband is Hable for the debt or damages recovered, or any part thereof, the judgment to the extent of the amount for which the husband is liable shall be a joint judgment against the husband personally and against the wife as to her separate property ; and as to the residue, if any, of such debt and damages, the judgment shall be a separate judgment against the wife as to her separate property only (a). By section 16 " a wife doing any act with respect to any property of her husband, which, if done by the husband with respect to property of the wife, would make the husband liable to criminal proceedings by the wife under this Act, shall in like manner be liable to criminal proceedings by her husband" (6), Questions, moreover, between husband and wife as to property are to be decided in a summary way, section 17. If there is no action pending the application will be by originating summons (c). 8. Lial)ility and Devolution of Separate Estate after Death. Prol3ate. — The present practice of the Probate Court is not to grant probate of the will of a married woman to the executors in respect of such personal estate as she had power to dispose of by will, and to grant letters of administration " cceterorum " to the husband, which was the old practice, but to grant to the executors probate in general terms, and not to grant any administration to the husband. So, without entering into the question whether there was property which she could not dispose of, and which would go to the husband, it grants general probate (d). But the granting of probate to the executors does not recognize the right of the testatrix to dispose by will of the beneficial interest in all the property which the executors get in by virtue of the probate : Smart v. Tranter (e), in which case a married woman entitled to choses in action, but to no separate estate nor any property which she could dispose of by will, made a will by which she appointed executors, and gave all her property away from her husband, and probate in general form was granted to the executors, who were held to be trustees of the beneficial interest in the choses in action for the husband (/). (a) See Beck v. Pierce ; Eobinson v. {c) 43 C. D., pp. 591, 593; Be Lam- Lynes, 38 Sol. Jo. 666, supra. bert, infra. {b) See Married Women's Property (/) And see Goods of Price, 12 P. D. Act, 1884, s. 1. 137 ; Be Lambert, 39 C. D. 626; Sur- (<■) See D. C. F., p. 1011, F. 2286. man v. "N^Tiarton, infi-a, p. 705. {d) Williams, Exors. (1893), p. 323. I WIFE S SEPARATE PROPERTY. 703 Hulme V. Tenant. The Married Women's Property Act, 1882, has not altered the devolution of the undisposed of separate personalty of a married woman, and on her death the quality of separate property ceases, and the right of the husband thereto accrues («), jure mariti, without administration (6). But as to her " choses in action" undisposed of, it seems he would have to take out administration to her estate before he could claim them (c). Semhle, the Court should decide of what the separate estate consists {d). If her executors have died in her lifetime, administration ciirn testaniento aniiexo will be granted to the nominees of the residuary legatees and not to her husband (e). Her creditors may commence an action for payment of their debts out of her separate estate (/) ; and even before Hinde Palmer's Act ig), her specialty debts would not have priority over her simple contract debts, but would both be paid ixtri "passu (h). It has been held that the earnings of a married woman, under the Married Women's Property Act, 1870, being equitable assets, her executor has no right to retain in full his own debt thereout (i) ; but see the Married Women's Property Act, 1882, s. ], s.s. 2, s. 23, and the judgment of Stirling, J. in Hojoe v. H. (k), as to the effect of the words in Act " as if she were a feTiie sole." In other respects, if she has left a will, her estate will be adminis- tered according to the ordinary rules in creditors' suits, specific legacies being paid before general legacies (Z). And all arrears of income due to her at the time of her death will fall into the creneral residue (m). By the Married Women's Property Act, 1882, s. 23, it is provided that, " For the purposes of this Act, the legal personal representative of any married woman shall in respect of her separate estate have the same rights and liabilities and be subject to the same jurisdiction as («) Williams, Exors. (1893), p. 347 ; 90 ; Surman r. Wharton, iufra, \). 70.5. Re Lambert, 39 C. D. 626. (. 662 and (n.) & G. 80; Davies v. Hodgson, 25 B. {e) Re Warren, 49 L. T. 696.— C. A. 186. (,/■) Re Little, 40 C. D. 424.- [r) Wilton /•. Hill, 2.-) L. J. Vh. C. A. 46 2 724 HUSBAND AND WIFE. Hulme V. Tenant. for its exercise is made out (a). Orders hereunder have been made in the following cases : Hodges v. H. (6), Re Little (c), Sedgiuick v. Tliomas (d), Re Currie (e). In Re Milner (/) the restraint was removed until further order, to allow income to be applied in payment of policies and interest. In this case and Re G.'s Settle- 'ment (g), the husband got considerable benefit. In Re S.'s Settle- ment {h), it was refused as creating too large a reduction of the wife's income. In Re Jordan (?'), the order was refused, as it might have caused a forfeiture of the woman's interest, and so in Re Little {k), as it would have enabled her to obtain a personal benefit by the release of a limited power of appointment among her chil- dren (I). The principles on which the Court will grant or refuse such an application were discussed by Chitty, J., in the case of Re Pollard's Settlement (m). An application thereunder should in general be made by summons in chambers and not by petition (n), and the consent of the married woman need not always be taken by a separate examination (o), and semhle the trustees of the settlement need not be served {p). By the Trustee Act, 1893, s. 4.5 {q), it is enacted that (1) Where a trustee commits a breach of trust at the instigation or request or with the consent in writing of a beneficiary, the High Court may, if it thinks fit, and nottvithstanding that the beneficiary may he a married tvoman entitled for her separate use and restrained from anticipo.- tion, make such order as to the Court seems just, for impounding all or any part of the interest of the beneficiary in the trust estate by way of indemnity to the trustee or person claiming through him. (2.) This section shall apply to breaches of trust committed as well before as after the passing of this Act, but shall not apply so as to prejudice any question in an action or other proceeding which was (o) Be Little. 40 C. D. p. 424 ; and {!) And see Shelford, E. P. S. (1893), seeTampHn v. MHler, 30 W. E. 422; p. 605; Seton (1893), p. 769; Lewin Re Jordan, 55 L. J. Cli. 330. (1891), 893; Godefroi (1891), 593. (6) 20 C. D. 749 (to pay debts). ' (m) (1890) 1 Ch. 901. (c) 36 C. D. 701. ' {n) Re LiUwall's Settlement, 30 {d) 48 L. T. (N. S.) 100. W. E. 343. (e) 56 L. T. 80. (o) Re Currie, 56 L. T. 80. (/) (1891) 3 Ch. 547. [p) Re Little, 36 C. D. 701. but in {g) 56 L. J. Cb. 556. practice the Court frequently directs (/() W. N. 1893, p. 127. they should be served. (t) 54 L. T. 127. ('/) Eeplacing sect. 6 of the Trustee (it) 40 C. D. 424. Act, 1888. wife's separate property. 725 Hulme V. Tenant. pending on the twenty-fourth day of December one thousand eight hundred and eighty-eight, and is pending at the commencement of this Act (a). 12. Married Woman Trustee. As to a married woman becoming a trustee, sect. 24 of the Married Women's Property Act, 1882, provides that the word contract in the Act shall include the acceptance of any trust, or the office of executrix or administratrix, and protects the husband from liability unless he has acted or intermeddled; and sect. 18 enables a married woman who is an executrix or administratrix to act in such office as if she were a " feme sole." See as to the law before the Act Lewin on Trusts {h) and cases there cited ; and judgment of Cotton, L. J., in Bali in v. Hughes (c) ; and as to a married woman being- administratrix or executrix before the Act, Williams on Executors (cZ). As regards the law since the Act, it seems to have been generally assumed that it enables any woman to accept the office of trustee or administratrix and act without the concurrence of her husband whether she had separate estate or not. See Lewin on Trusts (e), Williams on Executors (/), the Conveyancing and Settled Land Acts (g), and see Godefroi on Trusts {h), and Re Ayres (i), where it was held that it is not now necessary for the husband to join in the administration bond, and lie Hatuksiuorth (k), where it appears that money was to be paid to a married woman either as executrix or as trustee, and Chitty, J., said that the words " on her separate receipt " were not necessary since the Act. No question was raised in these cases whether or not it was necessary that the married woman should have separate estate at the time of accepting a trust without her husband's concurrence, as in cases of contract, and the doubt, if any, seems for the future to be removed by the Married Women's Property Act, 1893. The 18th sect, of the Married Women's Property Act, 1882, gives express power to a married woman to transfer certain stocks and funds vested in her as an executrix or trustee, and sect. 16 of the Trustee Act, 1893, replacing sect. 6 of the Vendors and Purchasers (a) See Trustee Act, 1888, and {d) Vol. i. (1893), p. 185. Griffitli V. Hughes, (1892) 3 Ch. 105; (e) Sth ed., p. 33. SaTv^er v. S., 28 C. D. 595 ; Eicketts v. (/) Vol. i. (1893), p. 386. E., 64 L. T. (N. S.) 263; Mara v. ((/) Wolstenholme & Turner (ed. Browne, (1895) 2 Ch. 69 ; (1896) 1 Ch. 1889), pp. 180 and 202. 199; Be Somerset, (1894) 1 Ch. 231; (//) (1891), p. 251. The Judicial Trustee Act, 1896, s. 3. (0 8 P. D. 168. (fc) Sth ed., p. 23. (A-) W. N. (1887), p. 113. (c) 31 C. D. 390. 726 HUSBAND AND WIFE. Hulme V. Tenant. Act, 1874, enacts that " when any freehold or copyhold hereditaments are vested in a married woman as a bare trustee she may convey or surrender it as if she were a feme sole." In the recent case of Be Harkness, &c., Contract (a), the question arose whether a married woman could convey the legal estate in real estate vested in her as trustee without a deed acknowledged. North, J., held that the deed must be acknowledged with the concurrence of her husband. But although the enabling clauses of the Married Women's Property Act are more adapted to beneficial than trust properties, the intention seems clear that the married woman should be able to convey alone. The 24th sect, of the Married Women's Property Act of 1882 exempts the husband from liability unless he has acted or inter- meddled in the trust, and he would seem to lose this advantage if he joined to convey the property (&). 13. The Summary Jurisdiction (Married Women) Act, 1895. This Act came into operation on January 1st, 1896, repealing sect. 4 of the Matrimonial Causes Act, 1878 (c), and the whole of the Married Women (Maintenance in case of Desertion) Act, 1886 (d), and giving more effectual remedies in case of an assault by the husband on the wife, cruelty or neglect. There have been already several decisions on the Act, but the editors do not consider that it comes within the scope of this work. 14. Pin-Money. It was said in the leading case of Hoivard v. Dighy (e), that no definition of pin-money was to be found in the books upon which reliance could be placed ; that the line which divided it from the separate property of the wife could not be traced with any distinct- ness, or in a way on which dependence could be placed. Pin-money, however, may be described with sufficient accuracy to be an allowance settled upon the wife before marriage for the wife's expenditure on her person ; it is to meet her personal expenses, and to deck her person suitably to her husband's dignity, that is to say, suitably to the rank and station of his wife (/). Gifts or gratuitous payments may from time to time be made by the husband for the same purposes (g). (a) (1896) 2 Ch. 358. (e) 8 Bli. N. E. 259. (6) See a letter on this case, 40 Sol. (/) lb. p. 268. Jo., p. 543. (fj) 2 Bright, H. & W. 288 ; Eoper, (c) 41 & 42 Vict. c. 19, s. 4. H. & W., 2nd ed., 132. (d) 49 & 50 Vict. c. 52. wife's separate property. 727 Hulme V. Tenant. When so settled, her savings thereout will he protected as her separate property, against her husband and those claiming under him. But when not so settled, her savings will be assets, for the payment of her husband's debts, in the hands of his executor (a). It has been held that where the wife permits her pin-money to run in arrear, she cannot, on the death of her husband, claim arrears for more than one year prior to his death ; for the very object of the allowance of pin-money being to enable the wife to deck her person suitably to her husband's rank without having recourse to hini continually for small sums of money, excludes the supposition that she may accumulate her pin-money while her husband pays her bills (6). Where, however, a wife from time to time demanded the arrears of her pin-money from her husband, and he promised that she should have it at last, it was held by Hardtuicke, C, that she was entitled to all the arrears due at her husband's death (c). On the other hand it has been held that where a husband has paid for all the wife's apparel, and provided for all her private expenses, she cannot, it seems, at any rate where there is no evidence that she ever demanded her pin- money, claim for any arrears at the death of her husband (d). And even where the wife has been lunatic, if the Imsband has maintained her in a manner befitting her rank and station, providing all those things for her for which her pin-money was set apart, neither she nor a fortiori her personal representatives can claim any arrears of pin- money (c). The personal representatives of the wife cannot go back for a year or even any part of a year, for the arrears of pin-money, for the allowance of pin-money has relation only to the ijersonal dress and expenses of the wife (/). 15. Paraphernalia. The paraphernalia of the wife signifies such apparel and ornaments of the wife as are suitable to her condition in life. They are gifts to the wife hy her husband, not absolute, but for her use as a wife only, and they can be aliened or reclaimed by him {g). (a) Williams, Exors., vol. i.(189;5), p. (^ Howard c. Digby, 8 BH. 224; 672, cithig Wilson v. Pack, Pr. Ch. 297. 2 CI. & Pin. G3-i ; Jodrell v. J., 9 B. ih) Peacock r. Monk, 2 V. 190; 4-5; and see Vaizey, Settlements Howard v. Digby, infra. (1887), pp. 788, 792. (c) Kidout V. Lewis, 1 Atk. 269. (/) Howard v. Digby, 3 Bli. X. P.. \d) Powell V. Hankey, 2 P. W. 84 ; 245. Thomas v. Bennet, 2 P. W. 341 ; {<]) Tasker v. T., (1895) P., p. 4 ; Powler V. P., 3 P. W. 355. Graham v. Londonderry, 3 Atk. 394. 728 HUSBAND AND WIFE. Hulme V. Tenant. The question which has generally to be determined in these cases is one of fact, namely, What was the intention of the husband in making the gift. Was it intended as a gift for her personal use, or merely for the decoration of her person for so long as her husband during his life might think fit (a). Old family jewels of the husband, though worn by the wife, do not constitute part of her paraphernalia, unless she has acquired them by gift from her husband with that intention (6). See p. 729, iufra. The wife has no power to dispose of her parapherualia during her husband's life {c). The husband, however, may by act inter vivos during the life of his wife, dispose of her paraphernalia either by sale or gift {d). He cannot, however, dispose of them by will (e), but if he does so and confers other benefits upon the wife by his will, she will be put to her election between her paraphernalia and the benefits she may take under the will (/). The paraphernalia of the wife are liable to the debts of the husband (g). In the administration of assets, however, the widow's claim to her paraphernalia is preferred to general legacies (h). As to marshalling, see note to Aldrich v. Cooper, supra. Where, however, a husband only pledges the wife's paraphernalia and dies leaving a sufficient estate to redeem the pledge and pay all his debts, she is entitled to have it redeemed out of his personal estate even to the prejudice of legatees (i). The widow may bar her right to paraphernalia by settlement (/.•), and if her husband bequeaths to her her paraphernalia for life, and she dies without claiming them as paraphernalia, she will, it seems, be presumed to have elected to take them under the will, and her executor or administrator will not be entitled to them (I). It m.ust be borne in mind that where articles such as ordinarily constitute paraphernalia are given to the wife, either before or after marriage, by a relative or friend, they will be considered as given to her separate use, in which case, as we have before seen, she («) Tasker v. T., (1894) P., p. 4. (b) Jervoise f. J., 17 B. oGG; Laing V. Walker, 64 L. T. 527. (c) 1 Bright, H. & W. 287. (t/) 1 P. W. 730; Wilcox v. Gore, 11 Via. Abr. 180, PI. 19; Northey v. N., 2 Atk. 78 ; Seymour v. Tresilian, 3 Atk. 358, 359. (e) SejTnour v. Tresilian, svipra ; but see Hastings v. Douglass, Cro. Car. 344 . (/) Churcliill V. Small, 2 Kenyon Eep., part 2, p. 6. (g) Campion v. Cotton, 17 V. 273; Eidout V. The Earl of Pljonouth, 2 Atk. 104. (h) Tipping V. T., 1 P. W. 730 ; Snelson v. Corbett, 3 Atk. 369. (/) Graham t.\ Londonderry, 3 Atk. 393. (A-) Cholmely v. C, 2 Vern. 83. (J) Clarges v. Albemarle, 2 Vern. 247. wife's separate property. 729 Hulme V. Tenant. may dispose of tliem as a fone sole and they will not be liable to the debts or disposition of her husband. Thus, in the leading case of Grahart% v. Londonderry (a), the question in the cause between Mr. Graham and Lord Londonderry was, whether Lady Londonderry, then the wife of the plaintiff, but originally the wife of the then late Lord Londonderr}^ was entitled in her own right, or as paraphernalia, to particular jewels thereafter mentioned. First, as to diamonds given to her by Governor Pitt, her husband's father, and which were a present to her on the marriage with his son, Hardwlcke, C. said, " This Court of latter years has considered such a present as a gift to the separate use of the wife, and I am of opinion she is entitled in her own right." The next question was as to four diamonds set about the picture of the late Regent of France. Lord Londonderry returned from France, and delivered this picture to Lady Londondeny, and said at the same time it was a present sent to her by the Regent of France. With respect to this, his Lordship said, " If this be a present from the Regent of France, it falls under the same rule, for being a present from a stranger during the coverture, it must be construed as a gift to her separate use, though I do not think it so clear a case as the others " (b). Gifts also from the husband to the wife may be made to her separate use, where they are made to her absolutely and not merely to be worn as ornaments to her person only. See Grahain v. Londonderry, sM^xdi, where Lord Hardwicke says, "I have indeed admitted a husband may make such gifts, but where he expressly gives anything to a wife to be worn as ornaments of her person only, they are to be considered as mere paraphernalia, and it would be of bad consequence to consider them as otherwise : for if they were looked upon as a gift to her separate use, she might dispose of them absolutely, which would be contrary to his intention " (c). It has been held that the Married Women's Property Act, 1882, has not abolished the old law as to paraphernalia (d). (a) 3Atk. 393. . Estate, 17 C. D. 410; Tasker v. T., (b) See also Lucas v. L., 1 Atk. infra. 270; Brinckman v. B., 3 Atk. 394, {d) Tasker v. T., (189u) P. 1, and cited. Sed vide Jervoise v. J., 17 B. see /iVVansitart, L'x 2^. Brown, (1893) 066; Tasker V. T., infra. 1 Q. B. 181, and as to settlements (c) Sec Grant v. G., 34 B. 623; 13 of jewellery, Williams v. Mercier, 10 W. R. (M. E.) 1057; lie Breton's App. Cas. 1. 730 JURISDICTION. EARL OF OXFORD'S CASE (a). 13 Jac. 1. 1 Ch. Rep. 1. Jurisdiction of Equity as to Proceedings at Law. Principles on which equity resti'ains proceedings under a judgment obtained at law. Magdalen College, 39 Hen. 8, seised in fee of the Rectory of Christ's Church, and the Covent Garden, without Aldgate, London, containing seven acres, demised them for seventy-two years render- ing 40^. per annum for the rectory, and 91. for the garden. And 17 Eliz. (fifty years of the said lease being expired), the Queen, at the suit of the said College, licensed them to alien, which they did, and then received for the rectory 251. per annum, and lol. for the garden. It being her Majesty's intent that the College should be advanced greatly in profit, by having the Rectory to them and their successors, discharged of the lease for years, which in present was worth to them but 50^. per annum, the utmost rent ; the same was accordingly per- formed by a conveyance to her Majesty, and by her Majesty to Spinola and the Rectory, from Spinola to the College ; after which, Spinola and the Earl of Oxford, his assignee, and his under tenants have built upon the Garden one hundred and thirty houses, and therein bestowed 10,000L, which assignee and his under tenants have bonds and security given for the enjoyment thereof, to the sum of 20,000?. Note. — The College is hereby advanced 1,700L more than they should have been if the former lease had continued, which is not yet expired. (a) S.C, Toth. 126 (edit. 1823), nom. Comes Oxon v. Neeth. KESTRAINING PROCEEDINGS AT LAW. 731 Earl of Oxford's Case. This conveyance having been in peace forty years, and thus advanced by the purchasers from a thing of little value to a great and considerable one ; and it being a general case wherein persons of all degrees and callings have made purchases, they resting secure on its passing through the Crown, the greatest protection. The present Master of the College having by undue means obtained possession of one of the one hundred and thirty houses, whereof one Castillion was lessee, who being secure of his title, both in law and equity, sealed a lease thereof for three years to one Warren, who thereupon brought an ejectment against one John Smith, for trial of the title in B. R. Wherein a special verdict was had ; and while that depended in argument the lease ended, and so no possession could be awarded for the plaintiff, nor fruit had of his suit. Yet he proceeded to have the opinion of the Judges to know the law (which was a voluntary act of his), to the intent, if the law were with him, he might begin a new suit at law, and spare to proceed in equity, and if the law were against him, that then he might proceed in Chancery. And the judges of that Court having delivered their opinions against his title, before any judgment entered upon the roll, the Earl and Mr. Wood, for themselves and their lessees, preferred their bill in Chancery ; and then judgment was entered, quod querens nil capiat per hillaon {a). To which bill in Chancery the defendant put in a plea and demur- rer, alleging the conveyance to be void by the statute of 13 Eliz., and that they evicted one house, parcel of the premises, by judgment at law ; which plea and demurrer were referred by order to Sir John Tindal and Mr. Woolridge, who reported that they thought it fit the cause should proceed to hearing, notwithstanding the plea and demurrer; and afterwards, in default of an answer, an attachment was awarded against the defendants, whereupon they were attached, and a cepi corpus returned, and by order of the 22nd of October, 13 Jac. 1, they were committed to the Fleet for their contempts in refusing to answer ; and do now stand bound over to answer their contempts, they still refusing to answer. And now this term it was argued, that the defendants thus stand- ing in contempt, &c., may be sequestered until answer. (a) See Magdalen College case, 11 Co. G6, 732 JURISDICTION, Earl of Oxford's Case. Lord Chancellor Ellesmere. — 1. The law of God speaks for the plaintiff, Deut. xxviii. 2. And equity and good conscience speak wholly for him. 3. Nor does the law of the land speak against him. But that and equity ought to join hand in hand in moderating and restraining all extremities and hardships. By the law of God, he that builds a house ought to dwell in it ; and he that plants a vineyard ought to gather the grapes thereof ; and it was a curse upon the wicked, that they should build houses and not dwell in them, and plant vineyards and not gather the grapes thereof. Deut. xxviii. 30. And yet here in this case, such is the conscience of the doctor, the defendant, that he would have the houses, gardens, and orchards, which he neither built nor planted ; but the Chancellors have always corrected such corrupt consciences, and caused them to render quid pro quo ; for the common law itself will admit no contract to be good without quid pro quo, or land to pass without a valuable con- sideration ; and therefore equity must see that a proportionable satis- faction be made in this case. As in the case of Peterson v. Hickman, the husband made a lease of the wife's land, and the lessee being ignorant of the defeasible title, built upon the land, and was at great charge therein ; the hus- band died, and the wife avoided the lease at law, but was compelled in equity to yield a recompense for the building and bettering of the land. For it was so much the more worth unto her : and whereso- ever one hath a benefit, the law will compel him to give a recom- pense, as if cestui que use sell the land to one that hath no notice of the use, and dieth ; by reason that he had the benefit of the sale, his executors were ordered to answer the value of the land out of his estate, as appeareth by a judgment roll of 34 Hen. 6. And his Lordship, the plaintiff in this case, only desires to be satisfied of the true value of the new building and planting since the conveyance, and convenient allowance for the purchase. And equity speaks as the law of God speaks ; but you would silence equity. First. Because you have a judgment at law. Secondly. Because that judgment is upon a statute law. To which I answer, — RESTRAINING PROCEEDINGS AT LAW. 733 Earl of Oxford's Case. First. As a right of law cannot die, no more can equity in chancery die ; and, therefore, nullus recedat a Cancellarid sine remedio (a). Therefore, the Chancery is always open ; and although the term be adjourned, the Chancery is not ; for conscience and equity are always ready to render to every one their due (6). The Chancery is only removable at the will of the King and Chancellor ; and by 27 E. 3, 15, the Chancellor must give account to none, but only to the King and Parliament. The cause why there is a Chancery is, for that men's actions are so divers and infinite, that it is impossible to make any general law which may aptly meet with every particular act, and not fail in some circumstances. The office of the Chancellor is to correct men's consciences for frauds, breach of trusts, wrongs, and oppressions, of what nature soever they be, and to soften and mollify the extremity of the law, which is called sumTiiuvi jus. And for the judgment, &c., law and equity are distinct, both in their courts, their judges, and the rules of justice; and yet they both aim at one and the same end, which is to do right ; as Justice and Mercy differ in their effects and operations, yet both join in the mani- festation of God's glory. But in this case, upon the matter there is no judgment, but only a discontinuance of the suit, which gives no possession ; and although to prosecute law and equity together be a vexation, yet voluntarily to attempt the law in a doubtful case, and after to resort to equity, is neither strange nor unreasonable. But take it as a judgment to all intents, then I answer, that in this case there is no opposition to the judgment, neither will the truth or justice of the judgment be examined in this Court, nor any circum- stance depending thereupon, but the same is justified and approved ; and therefore a judgment is no let to examine it in equity, so as all the truth of the judgment, &c., be (not) examined. No . possession is established by the King's writ, after that any judgment is sought to be impeached ; for when the plaintiflF, by his lessee seeking relief at the common law, is barred, then is his time to seek relief in Chancery when the common law is against him ; Doc- (o) 4E. 4, 11, a. (6) 9 E. 4, 11, a. 734 JURISDICTION. Earl of Oxford's Case. tor and Student, fol. 15. A seijeant is sworn to give counsel accord- ing to law, — that is, according to the law of God, the law of reason, and the law of the land ; and upon both the laws of God and reason is granted that rule, viz., To do as one ivoidd he done unto. And, therefore, where one is bound in an obligation to pay money, payeth it, and takes no acquittance, by the common law he shall be compelled to pay the money again. But when it appeareth that the plaintiff will recover at law, the serjeant may advise the defendant to take a subpoena in Chancery, notwithstanding his oath. So 1 Hen. 7, 14, if he deliver an acquittance without seal, or the money is paid within a short time after the day, or if he lose the acquittance, if judgment be had in any of these cases, the party may resort to equity (a). Also, after judgment in those cases, if the party have a release, he may have an audita querela, which is a Latin bill in equity, if the other party's conscience be so large as to demand a double satisfac- tion. So, if the statute be entered into by duress or menace, though the party be in execution, yet he may avoid it by duress of imprison- ment (h) : and yet it is a judgment upon record ; and so of a judgment by a confession and satisfaction, acknowledged by a letter of attorney, which is lost or cannot be produced. And in the case of Harning v. Castor (c), in B. R. on an audita querela brought ^^er opinionerii curim, if a judgment be given upon an usurious contract, and it is part of the agreement to have a judg- ment, the defendant may avoid such judgment by an audita querela, or by a scire facias, brought upon the same. So, if a judgment be had against an infant by covin, as if an infant be inveigled to be bail for one in any Court at Westminster, he may have an audita querela to avoid the same (d). So, if judgment be had by covin or collusion against an executor, to defraud the creditors, if it be pleaded in bar. The covin and collusion may be averred at law by replication, and the judgment frustrated thereby (e) ; and note, every outlawry is a judgment, yet the party may have remedy (a) 22 E. 4 & 7 Hen. 7, 11. {d) Tiin., 7 Jac, Markhain v. {b) 15 E. 4 ; Fitz. Nat. Brev. 104, Tiirner, and 8 Hen. 6, 10. L. 5, Ed. 4, Audita Querela, 27. (e) 3 Hen. 6, 36. (r) Micli., 3 Jac. RESTRAINING PROCEEDINGS AT LAW. 735 Earl of Oxford's Case, in conscience against him that caused him to be outlawed without just cause (a). So, if one neglect to enrol his deed of bargain and sale, being his only assurance, as in Jacques and Huntley's Case, in this Court, 13° Junij, 1599, and the bargainor brings an ejections fii^mce against him, and hath judgment, the bargainee may resort to Chancery, and there be relieved, if not for the land, yet for the money paid. And in Morgan and Parry s Case (h), a woman had an estate in a house for her life, dispunishable of waste, and yet she was enjoined not to commit waste in the house, contrary to the case of Leivis Bowles (c) : {quere, if not because of the prejudice to him in re- mainder ?) By all which cases it appeareth, that token a judgment is obtained by oppression, wrong, and a hard conscience, the Chancellor will frustrate and set it aside, not for any error or defect in the judg- ment, but for the hard conscience of the p)arty ; and that, in such cases, the Judges also play the Chancellors ; and that these are not within the statute {d) ; which is, that after a judgment given in the Court of our Sovereign Lord the King, the parties and their heirs shall be in peace until the judgment be undone by attaint or error. But, secondly, \i is objected, that this is a judgment upon a statute law. To which I answer, It has ever been the endeavour of all Parlia- ments to meet with the corrupt consciences of men as much as might be, and to supply the defects of the law therein ; and if this cause were exhibited to the Parliament, it would soon be ordered and determined by equity ; and the Lord Chancellor is, by his place under his Majesty, to supply that power until it may be had, in all matters o^ meuni and tuum, between party and party ; and the Lord Chan- cellor doth not except to the statute or the law (judgment) upon the statute, but taketh himself bound to obey that statute, according to 8 Ed. 4 ; and the judgment thereupon may be just ; and the College, in this case, may have a good title in law, and tlie judgment yet standeth in force. (a) Doctor and Student, lib. 2, cap. (c) 11 Co. 79; 1 Roll. Rep. 177; 21 ; 21 Hen. 7, 7 ; 9 Hen. G, 20. ' Raym. 284. (6) Pascli., 27 Eliz. ('0 4 Hen. 4, cap. 2.3. 736 jL'iasDiCTiON. Earl of Oxford's Case. It seemeth, by the Lord Cokes report, in Dr. Bonham's Case (a), that statutes are not so sacred as tliat the equity of them may not be examined. For he saith, that in many cases, the common law hath such a prerogative as that it can control Acts of Parliament, and adjudge them void; as, if they are against common right or reason, or repugnant or impossible to be performed ; and for that he vouches (b). And yet our books are, that the acts and statutes of Parliament ought to be reversed by Parliament (only), and not otherwise (c), and, upon that reason, the Lord Chancellors, since the device of the action to be brought by Parsons upon the statute of 2 Ed. 6, have enjoined the stay thereof. And the Judges themselves do play the Chancellors' parts upon statutes, making construction of them according to equity, varying from the rules and grounds of law, and enlarging them, pro bono publico, against the letter and intent of the makers, whereof our books have many hundreds of cases {d). Will you, then, have equity sup- pressed in all cases wherein a judgment at law, or upon a statute, is had ? The use of the Chancery has been in all ages to examine equity in all cases, saving against the king's prerogative (e) ; then you must have a special statute to except the Chancellor. For general statutes do extend to all the particular usages of the great Courts at West- minster, especially of the Chancery, and especially for matters of equity. In Chancery upon a recognizance, a capias may be awarded, and the proceedings of that Court shall close up the mouths of the Judges of the common law, notwithstanding the statute of Magna Charta, chap. 29 : " Quod nullus liber homo capiatur aut imprisonetur nisi per legale judicium parium suorum vel per legem terrse." And so it was adjudged in Clement Parsons Case (/); and every Court at (a) 8 Co. 118. ■ {e) 35 Hen. 6, 27; 11 Hen. 4, 16; {h) 8 E. 3, 30 ; 33 E. 3, Cessavit, and Doctor and Student, lib. 2, cap. 5, 41, 42; Nat. Brev. 209; Plowd. 110; 16. 27 Hen. 6, Anmiity, 41 ; 21 Eliz. Eot. (/) 21 Eliz. in the Exchequer, 303. which you may see in 8 Co. 142 ; and {(■) Bro. tit. "Error," 65, &c. ; and 25 Eliz., in Martin and Bye's Case, 7 Hen. 6, 28; 21 E. 4, 46; 29 E. 3, and in 7" Jac. in Com. Banco, 24. Higham's Case, and Kilwaj^'s Case, {d) 15 Hen. 7, and 14 Hen. 7, 14; vouched to be adjudged, 9 Co. 29, 42 E. 3, 6, &c. vide Doctor and Student, 306 a. RESTRAINING PROCEEDINGS AT LAW. 737 Earl of Oxford's Case. Westminster ought to take notice of the usages and customs of the rest of the Courts at Westminster, which are as a law to those Courts, and of which the common law takes notice («). The statute of 5 Eliz. c. 9, of perjury, directeth how perjury shall be punished, saving the authority of the Star Chamber ; yet, for peijury, committed in Chancery, either in an affidavit or an answer, &c., if such perjury appear to the Chancellor, the party may be punished according to his direction. Also, no Exchequer man hath privilege against a subpcena, for matters between party and party, where the king's interest cometh not in question (h), and yet their privilege hath several statutes that give strength thereunto ; but the use and precedents of the Chancery are not altered by those laws. And if a statute staple be extended, which by the statute is a judgment of itself, and the execution thereof is directed by the statute ; 5'^et it hath been usual in all ages to moderate the hard con- sciences of the conusees, and if they have been satisfied with their costs and damages, after the rate of the full value of the land, the land hath been discharged by a decree of equity. Thirdly, The law of the land speaks not against this. For, by 2 Ed. 4, 15, the Chancellor sits in Chancery according to an absolute and uncontrollable power, and is to judge according to that which is alleged and proved ; but the Judges of the common law are to judge according to a strict and ordinary (or limited) power. As 7 Hen. 7, fo. 10 : A, had lands extended to him in ancient demesne upon a statute merchant. B. purchased the lands, and had a recovery by sufferance in the Court of ancient demesne, with voucher, and entered, and ousted A. A. brought a subpoena, and it was holden, that A. could not falsify the recovery at law, and therefore he should be restored to the possession by the Chancery, for he had not any remedy by the common law. Where note, That notwithstanding a double judgment, yet the Judges directed them to the Chancery. And the statute of 4 Hen. 4, chap. 23, was never made nor in- (a) 2 Co. 53, 65, u()3-4 ; 11 E. 4, (A) 20 Eliz., Cuttsco»fra Peter Good- 2. wiu d al. W. & T. — VOL. I, 47 738 JURISDICTION. Earl of Oxford's Case. tended to restrain the power of the Chancery, in matters of equity, but to restrain the Chancellor and the Judges of the common law, only in matters merely determinable by law in legal proceedings, and not inequitable; and that they should be constant and certain in their own judgments, and not play fast and loose. For by 37 Hen. 6, 13, and divers other authorities, no writ of error or attaint lieth when the suit is by subpoena, and the party only seeks to equity for the equity of his cause. And, therefore, judgments by default, confession, &c., and not by verdict, arc not within this law, so as to bind the Judges on their legal proceedings (a). In debt, upon an obligation" against A., B., C, and D. judgment by default is had against A, and B., C. demurs, and D. pleads to issue ; and, by the opinion of the Judges, a super- sedeas was awarded, et hoc causa conscientke, for that the judgment was by default. In the next place, it is considerable how far the statute of 27 E. 3, cap. 1, doth extend, to check the power of the Chancery in this case. Now, the proper exposition of this statute is from those statutes that were the foundation thereof, and whereupon the statute was built, it not being introductive of new law, but declarative antiqui juris. The precedent statutes which do explain this statute are 35 E. 1, made at Carlisle ; 4 Ed. 3, c. 6, in confirmation thereof ; 25 E. 3, cap. 22, and 25 E. 3, cap. 6, " Of provisors of benefices ; " these being in time before 27 E. 3, and 38 E. 3, which comes after, and recites the statute of 25 E. 3, and this statute of 22 E. 3, and confirms them, with additions for further remedies, they being all linked together in one chain ; which is further apparent by the recitals in the law, and by the preamble thereof, which doth manifest the minds of the law- makers, and do naturally explain the laws, that they do all extend to ecclesiastical jurisdiction and conusance, and not to temporal ; and the same is more apparent by other subsequent laws in several kings' reigns following. But for the temporal Courts, and the support of their judgments, there are only two statutes, viz., Westminster, 2, cap. 5, and 4 Heo. 4, cap. 23, which are already answered (6). (a) 5 E. 4, 38. <>/ Chancery, at the end of 1 Ch. Eep., (b) Vide the argument, for the luhere these two statutes are explained. author-it)j and jnrisdidion of the Court RESTRAINING PROCEEDINGS AT LAW. 739 Earl of Oxford's Case. IS'OTES. 1. Generally. 2. Modern legislation as to Supreme Coiut of Judicature, p. 740. 3. Powers of tlie High. Court, p. 741. 4. Power to restrain proceedings in foreign Courts, p. 749. 5. Power to restrain applications for Acts of Parliament, p. 704. 1. Generally. In the principal case Lord Ellesimere examines the principles upon which equity formerly entertained jurisdiction to grant injunctions to stay proceedings at law. This sul)ject is interesting historically, as having been the cause of a warm contention between Lord IJllesmere and Lord Chief Justice Coke {a). Equity never affected to examine or overrule a judgment at law, but prevented a party from making an unjust use of it such as courts of law, could they have taken cognisance of the equitable circumstances, would not have permitted ; for, as observed by the Lord Chancellor with reference to the principal case, " in that case there was no opposition to the judgment, neither would the truth or justice of the judgment be examined in the Court, nor any circum- stance depending thereon ; but the same was justified and approved, and therefore a judgment was no let to examine it in equity, so as all the truth of the judgment be not examined." And when, after citing various cases, he concludies "that when a judgment is obtained by oppression, wrong, and a bad conscience, the Chancellor will frustrate and set it aside, not for any error or defect in the judgment, but for the hard conscience of the party," he evidently means only that a party would be prevented from taking advantage of it if it was inequitable that he should do so. Lord Ellesmere, in the principal case, has noticed certain instances in which the Court had interfered to stay proceedings at hiw, on account of some equity of which the plaintiff in equity could not take advantage at law ; and Mr. Eden, in his work upon injunctions, has included under the different heads of Accident, Mistake, Fraud, Accoinits, Illegal and L)inioral Contracts, Penalties and Forfeitures, Breaches of Covenants, Administration of Assets, Marshalling of Secu- (a) See Hall, Const. Hist. vol. i., Court of Chancery Vindicated, 1 Ch. p. 472 ; and The Jurisdiction of the Rep. Append. I. ; Cary, 163. 47 2 740 JUItlSDICTIOX. Earl of Oxford's Case. rities and Suretyship (most of wliicli subjects are noticed in this work), the different cases in which a court of equity woukl by injunc- tion stay proceedings at law («). 2. Modern Legislation as to the Supreme Court of Judicature. An attempt to confer equitable jurisdiction upon courts of common law was made by the Common Law Procedure Act, 18-54 (b), under which, by section 83, equitable pleas and replications might be made use of at law ; but a narrow construction was put upon that Act by the Judges of the Courts of common law, who held that no equitable plea was good unless it disclosed facts which would entitle the defen- dant to a perpetual and unconditional injunction in equity (c). By the Supreme Court of Judicature Act, 1873 (c?), and subse- quent Acts and Orders, the Court of Chancery, the Courts of Common Law, the Court of Probate, the Court of Divorce and Matrimonial Causes, and Admiralty have been united and consolidated into one Supreme Court of Judicature in England, consisting of two permanent divisions, "Her Majesty's High Court of Justice" and " Her Majesty's Court of Appeal." The High Court of Justice now consists of three divisions, namely, the Chancery Division, the Queen's Bench Division, and the Probate, Divorce and Admiralty Division, By section 24 of the last mentioned Act, in every civil cause or matter commenced in the High Court of Justice, law and equity are to be administered by the High Court of Justice and Court of Appeal respectively, according to the rules in the Act mentioned. By sub-sections 2 and 4 of section 24, all equitable estate rights, duties, and liabilities, are to be recognized by all the said Courts, and equitable defences are to have the same effect given to them as the Court of Chancery gave to them. And by sub-section 5, it is enacted that " No cause or pro- ceeding, at any time pending in the High Court of Justice, or before the Court of Appeal, shall be restrained by prohibition or injunction ; but every matter of equity in which an injunction against the prosecution of any such cause or proceeding might have been obtained, if this Act had not passed, either unconditionally or on any («) See Eden on Injunctions, and Miners Co., 17 C. 13. 561 ; Wake v. Joyce on Injunctions. Harrop, 6 H. »S: N. 768, 18 H. & 0. {h) 17 & 18 Vict. c. 125. 202. (c) Iklines Eoyal Societies v. Mag- (J) 36 & 37 Vict. c. 66, ss. 3, 4, 16, 19. nag, 10 Ex. 489 ; Wood v. Copper KESTEAIXIXa PROCEEDINGS AT LAW. 741 Earl of Oxford's Case. terms or conditions, may be relied on by way of defence thereto : Provided always, that nothing in this Act contained shall disable either of the said Courts from directing a stay of lyroceediays in any cause or matter pending before it if it shall think fit ; and any person, whether a part}^ or not to any such cause or matter, who ■would have been entitled, if this Act had not passed, to apply to any Court to restrain the prosecution thereof, or who may be entitled to enforce, by attachment or otherwise, any judgment, decree, rule, or order contrary to which all or any part of the proceedings in such cause or matter may have been taken, shall be at liberty to appl}' to the said Courts respectively, by motion in a summary way, for a stay of proceedings in such cause or matter, either generally, or so far as may be necessary for the purposes of justice ; and the Court shall thereupon make such order as shall be just." See infra, p. 744. And by the 25th section, sub-section 11, it is enacted that " Generally in all matters not hereinbefore particularly mentioned, in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity sJudl prevail " (a). And under the Bankruptcy Act, 1883(6), "From and after the commencement of tlie Act (c), the London Bankruptcy Court shall be united and form part of the Supreme Court of Judicature, and the jurisdiction of the London Bankruptcy Court shall be transferred to the High Court. 3. Powers of the High Court. It results from the above mentioned legislation (d), that an injunction to restrain proceedings pending in one Division of the High Court can no longer be granted by another Division (e), but a " stay of proceedings " takes its place : see infra, p. 744. But although the Court cannot restrain an action pending in another Division it may grant an injunction to restrain a person from instituting proceedings, and this was done by Jessel, M.R., in Besant V. Wood{f). (a) Semhle, the jH-ovisions of this ('-) 1 Jan. 1SS4. section -would appear from the context (d) Judicatiu-e Act, 1873, s. 24, s..s. 5. to relate to matters of substantive law, ('') Garbutt i\ Fawcus, 1 C. D. loo ; not of mere practice: La Grange r. Wright v. Redgrave, 11 C. D. 24. McAndrew, 4 Q. B. D. p. 211. (/) 12 C. D. 605 ; Hart v. H., 18 (i) 46 & 47 Vict. c. 52, s. 93. C. D. 680. 742 JUIUSDICTION. Earl of Oxford's Case. The Court has also restrained a person from presenting a petition for winding up a company (a), and from advertising a petition presented maid fide (b). A Judge of the Chancery Division cannot restrain a sheriff from the selling of goods taken in execution under a judgment of another Division (c), or a creditor from enforcing an order made by a county court for commitment of an executrix defendant in an administration action in the High Court, on a judgment obtained against her before the order in the administration action (d). The jui-isdiction of the Chancery Division to restrain proceedings in courts not forming part of the Supreme Court of Judicature is not, it seems, taken away. For instance, suppose there were some grounds which rendered it inequitable for a person to take pro- ceedings in the Lord Mayor's Court (e), there does not appear to be any reason why, upon a proper case being made, the Chancery Division, or any other Division of the High Court (/) should not restrain proceedings in such court. So in "The Teresa" (g), it was held that a Judge of the Admiralty Division had power in a salvage action to issue an injunction to restrain proceedings in the Liverpool Court of Passage ; in that case the Court had power to grant a prohibition. And in Hedley v. Bates (It), as explained in the judgment of the M. R, in Stannard v. Vestry of St Giles {i), an injunction was granted to restrain proceedings before magistrates, where it appeared they had no jurisdiction and a prohi- bition might have been granted. In Dyke v. Stephens (k), an infant plaintiff in an action in the Chancery side moved for an injunction to restrain an action in the Palatine Court to which he was not a party. Pearson, J., only allowed the plaintiff in the Palatine Court to pro- ceed with his action on undertaking to submit to certain terms. By the Judicature Act of 1873, s. 2o, s.s. 8, a mandamus or in- junction may be granted in all cases in which it shall appear to the Court to be " just and convenient," but it has been held that (a) Cercle Restaurant Castiglioni Furnival r'. Bogle, 4 Euss. 142 ; Sieve- Co. V. Laverjs 18 C. D. 555 ; New king v. Behrens, 2 My. & C. 581 ; Travellers' Chambers v. Cheese, 70 Cotesworth v. Stephens, 4 Ha. 185; cf. L. T. 271. Ex p. Ditton, 1 C. D. 557, infra, p. 749. (b) Re A. Company, (1894) 2 Ch. 349. (/) See further the notes on this sec- (c) Wright V. Eedgrave, 1 1 C. I). 24 ; tion in the Annual Practice, 1897, p. 21. Powell V. Jewesbury, 9 C. D. 39; (//) 71 L. T. 342. Crowle V. Eussell, 4 0. P. I). 186. (//) 13 C. D. 498. (r?) Re Womersley, 29 C. D. 557. (/) 20 C. D. 196. ((') Mikb-ed v. Neate, 1 Dick. 279; (/,) W. N. (85), 177. EESTRAINING PROCEEDINGS AT LAW. 743 Earl of Oxford's Case. this section has not enhirged the jurisdiction of the Conrt so as to enable it to grant an injunction where before the Act it coukl not have done so (a). This sub-section must be read with the restriction imposed by the sub-section 5 above referred to, proliibiting injunctions to restrain actions in other Divisions : see supra, p. 740. The transfer of causes in any action or actions from one Division to another of the High Court is provided for by the Judicature Act, 1873, s. 36, by the Judicature Act, 1875, and by K S. C, 1883, 0.49. By r. 5 of this Order it is provided " That when an order has been made by any judge of the Chancery Division for the winding up of any company (6), or for the administration of the assets of any testator or intestate, the judge in whose court such winding up or administration shall be pending shall have power, without any further consent, to order the transfer to such judge of any cause or matter pending in any other Court or Division brought or continued by or against such company, or by or against the executors or administrators of the testator or intestate whose assets are being so administered, as the case may be." Where a question raised in an action in one Division can be more conveniently determined in another Division— as, for instance, a question of specific performance in the Chancery Division — a transfer thereto has in some cases been made : Hillman v. Mayhew {c), fol- lowed by the Court of Appeal, consisting of Melli^h, L.J., Jessel, M.R., and BcKfjaliay, L.J., in Holloway v. York {d). But a defendant sued in the Queen's Bench Division will not become entitled to have the action transferred to the Chancery Division merely by putting in a counterclaim for the specific performance of some contract relating to land between himself and the plaintiff (e)- («) North London Railway Co. v. Land Co. v. Harris, 13 Q. B. D. 540 ; Great Northern Eailway, 11 Q. B. D. Young v. King, W. N. (1S7G) 11; 30 ; London & Blackwall Eailway Co. Johnson v. Moffat, W. N. (1876) 21 ; V. Cross, 31 C. D. 3J-1 ; Ivitts v. Moore, Holmes v. Hervey, 25 W. R. 80 ; Baer- (1895) 1 Q. B. 253; Annual Practice, lein v. Chartered Mercantile Bank, 1897, p. 910. (1«95) 2 Ch. 488. (b) By an order of the L. C, 26 (e) Story v. AVadtUe, 4 Q. B. D. March, 1892, the jm-isdiction under 289; Standard Discount Co. y. Barton, the Companies (Winding up) Act is to 37 L. T. 581 ; and see as to transfer, be exercised by V. Willixms, J. Cannot v. Morgan, 1 C. D. 1 ;^ Ilum- (c) 1 Ex. D. 132. phreys v. Edwards, 45 L. J. Ch. 112, {,1) 2 Ex. D. 333, reversing the Ex- W. N. (1875) 20S ; Hawkins r. Morgan, chequer Division. See also London 49 L. J. Q. B. 618 ; The EuUca, W. N. 744 JCRISDICTION. Earl of Oxford's Case. The Court, however, will take notice of an equitable right to specific performance appearing incidentally in the course of an ejectment action, though there be no counterclaim for such performance (a). So where the defendant in an action in one of the Divisions of the High Court other than the Chancery Division relies on an equity — as, for instance, to have a deed set aside as part of his defence — the Division in which the action is must give effect to the equity so far as it is incidental to the purposes of th6 defence (b). A transfer from the Chancery to one of the Common Law Divisions will not be ordered merely because the action is one which ought to be tried by a jury, or is for damages only (c). Sub-section 5 of section 24 of the Judicature Act, 1873 (d), enacts that a "stay of proceedings" may be directed in cases where before the Act persons might have been entitled to apply for an injunction to restrain proceedings. It still, tlierefore, is material to consider the cases in which such injunctions were granted. In administration actions a decree in a creditor's suit, on behalf of himself and all the other creditors, is a judgment for the benefit of ■all the creditors, and all powers of preference of the executor or administrator between creditors of equal degree cease to exist (e). All proceedings at law by any of them, whether the action were for an ascertained debt or for unascertained damages, as upon a breach of covenant, would after the decree have been restrained by injunc- tion (/), but not until a decree were obtained, although a bill were (1880), 172; Ladd v. Puleston, W.N. (1883), p. 72; 31 W. E. 539, 802; diina Transpacific Steamsliip Co. v. Marine Insurance Co., W. N. (1881), p. 89. (a) Jud. Act, 1873, s. 24, s.s. 4 ; and see Williams v. Snowden, W. N. (1880) 124. (?;) Mostyn v. The West Mostyn Coal and Iron Co. Limited, 1 C. P. D. 145 ; Breslauer v. Barwick, 24 W. E., C. P. D. 901 ; Grarbutt v. Fawciis, 1 C. D. 155. (c) Cannot v. Morgan, 1 C. D. 1 ; Hobnes v. Hervey, 25 W. E. 80 ; and see Annual Practice, O. 49 ; Seton, 1891 Ed., vol. 1, pp. 695-700. {d) Vid. supra, p. 740. See Annual Practice (1897), notes to sub-section 5, p. 21 ; Ee Stubbs, 8 C. D. 154 ; Cottrell V. Briggs, 32 Sol. Jo. 108. (e) Jones v. Jukes, 2 V. jun. 518; ISIitchelson v. Piper, 8 Si. (54; Ii-by V. I., 24 B. 525. (/) Morrice v. Bank of England, Cas. t. Talb. 217, 3 Swanst. 573, 2 Bro. P. C. 465, Toml. edit. ; Kenyon V. Wortbington, 2 Dick. 668 ; Brooks V. Eeynolds, 1 Bro. Ch. 183 ; Paxton V. Douglas, 8 V. jun. 520; Perry v. RESTRAINING PROCEEDINGS AT LAW. 745 Earl of Oxford's Case. filed {a), nor unless a decree gave a present right to go in and prove debts {h). Where, however, a creditor in an action at law has before a decree for administration actually obtained a jiuhpnent, though it be unregistered, he will as against an executor have priority in tlie administration of assets over the debts of all other creditors having debts of equal rank with that for which judgment was recovered (c), and altiiough by the statute 32 & 33 Vict. c. 46 (d), the distinction between specialty and simple contract debts in the administration of assets is abolished, nevertheless a creditor who first takes legal proceedings against the legal personal representative, and obtains judgment, is, though it be not registered, entitled to be paid his debt in full priority over all other creditors (e). So, where before an administration decree the creditor of a deceased person had obtained judgment against the executrix of the deceased, and a garnishee order ^lisi against a debtor to the estate, the Court after decree, refused to restrain proceedings on the garnishee order (/). As a charging order, when made absolute, operated from the makinfj of the order nisi, if a charging order obtained before a decree for administration were made absolute after the decree, pro- ceedings in the charging order would not be restrained {(j). Where, however, a creditor obtained a judgment against the executor, and on the s. oH ; and see Ann- Lord Huntley, Jac. 54(3; Be Low, strong i-. A. (1.S92) P. 99. (1N94) 1 Ch. 157. (f) Lord Portarlington r. Soully, li {(t) Woddt'ibuin v. W., 4 ily. & C. JMy. & K. 104; Simpson v. Fogo, I o^o. John. & H. 18, 1 Horn. & M. 195 ; and (/;) Beckford i\ Kcmlilo, 1 S. oi S. 7. see London and Mediterranean Bank (c) Bootli /'. Leycester, 3 My. & C". v. Strutton, IS W. R. 107. 45i); Rigby r. Macnaniara, 2 ('ox, 415. (/) Liverpool Marino Credit Co. v. {(I) See per Lord Cruuworth, C, 5 Hunter, 4 E(j. 02, affirmed on apjjeal H. L. Cas. 438 ; Busliby v. Munday, 3 Ch. A. 479. 5 Madd. 297 ; liaillic r. B., 5 Eq. 175; 752 JURISDTCTIOX. Earl of Oxford's Case. And where the matter may be more conveniently litigated in the foreign Court, equity will not interfere (a). So Avhere an incumbrancer on immovable property, situate in a foreign country, has instituted proceedings in that country for the purpose of enforcing his rights, he will not be restrained by injunction from prosecuting such proceedings, even though the mortgagor is a company in the course of winding up in this country, at all events if the party seeking to restrain the incumbrancer can appear before the foreign tribunal and have his rights finally settled (b) ; and the proceedings in our own Courts for the same matter will be stayed pending the result of the litigation in the foreign Court (c). Ao-ain where there is a suit by the same plaintiff as in the English Court pending in a foreign Court, which can afford a complete remedy, the proceedings in the English Court may be suspended, and the plaintiff in the English proceedings put to his election in which Court he will proceed {d). And where a plaintiff has commenced an action in a foreign Court, as for instance the Irish Admiralty Court, he will not be allowed to proceed with the English until he has abandoned the foreign action (e). The Court will refuse an injunction if it would be ineffectual. Thus when a person sought to be restrained is not within the jurisdiction, it has been held that the Court will refuse the applica- tion for want of power (/) ; Lord Cramvorth in The Carron Iron Co. V. Maclaren (g), said, that property within the jurisdiction would enable an injunction to be made effectual against the owner out of it, but it does not appear that this would be treated in England as ground for jurisdiction, though it might be in Scotland {h), and in the case of an application to restrain an act within the jurisdiction it has been treated as material (i). See also the general rules as to jurisdic- tion in transitory or personal actions against persons out of the jurisdic- tion stated by Lord Selborne in Slrdah Gurdyid Singh v.Iiajah,c(:c.(j). (o) Jones V. Geddes, 1 Ph. 725; (e) The Catterina Chiazzare, 1 EUiottv.Minto,6Madd. 16; Phosphate P. I). 368; The Delta, 25 W. E. 46. Sewage Co. v. Molleson, 1 App. Cas. (/) Per /esse/, M.E., 7?e International 780; Venning v. Loyd, 1 De G. P. & Pulp, &e. Co., 3 C. D. 594 ; per Chithj, J. 193; 29 L. J. (N. 8.) Ch. 152. J., i.V North Carolina Estate Co., 5 {h) Moor V. Anglo-Italian Bank, 10 Times L.E. 518 ; per Bacon, V.-C, in C. D. 681. ^c Chapman, 15 Eq. 75. (c) Elliott y. Minto, vid. supra («); (g) 5 II. L. C. 416. Venning v. Loyd, vid. supra (ra ; Bockwoldt, 23 C. D. 225 ; Baird v. and see Hope v. Carnegie, 1 Ch. App. Prescott, 6 Times Eep. 231 ; Arm- 320. W. & T.— VOL. L 48 754 JURISDICTION. Earl of Oxford's Case. Court, as an appeal lies from that Covirt to the appellate jurisdiction in this kingdom (a). 5. Power to restrain applications for Acts of Parliament. It has been laid down by many eminent Judges that the Court of Chancery acting in personam had power in a proper case to grant an injunction against a party applying to Parliament for a private Act, or an Act respecting property (b) ; but no such injunction has, it seems, yet been granted, nor has any judge yet ventured to say in what par- ticular case such an injunction will be granted. A leading case upon this subject is that of Heathcote v. The North Staffordshire Railway Co. (c). Upon the same principle, in the absence of any equity, the Court will not restrain an application in a proper case to the legislature of a foreign country (d). As, however, it is unlawful and in fact a breach of trust to apply the funds of a company in an application to Parliament for powers to extend the business of the company beyond the objects for which it was constituted, the Court will interfere by injunction at the suit of any of the shareholders to restrain such application (e). (fl) See Henderson v. H., 3 Ha. 100 ; and Mutrie v. Binney, 35 0. D. 014. {h) See now Jud. Act, 1873, s. 2o, h;s. 8. (c) 2 M. & G. 100 ; see also Attor- ney-General V. Manchester & Leeds Kailway Co., 1 Ely. Cas. 430; Lan- caster & Carlisle Railway Co. v. North Western Eailway Co., 2 Kay & J. 293 ; Steele v. North Metropolitan Eailway Co., 2 Ch. 237 ; lie London, Chatham & Dover Eailway Arrangement Act, /^AV p. Hartridge, 5 Ch. 671, 682 ; Tel- ford V. The Metropolitan Board of Works, 13 Eq. 574 ; 20 W. E. 481. {d) See Bill v. The Sierra Nevada Lake Water and Mining Co., 1 De G. E. &J. 177. (e) Simpson v. Denison, 10 Ha. 51 ; Great Western Eailway Co. v. Eush- out, 5 De G. & Sm. 220 ; Cunliff v. Manchester & Bolton Canal Co., 2 Euss. & My. 480 (n.); Ward v. The Society of Attornies, 1 Coll. 370 ; Col- man V. The Eastern Counties Eailway Co., 10 B. 1 ; Cohen v. Wilkinson, 12 B. 125, 138 ; Hunt ('. The Shi-ewsbuiy & Chester Eailway Co., 13 B. 1 ; sed vide Ware v. The Grand Junction Waterworks Co., 2 Euss. & My. 470 ; Vance v. East Lancashire Eailway Co., 3 Kay & J. 50. 755 PENN V. LOKD BALTIMOKE. 1750. 1 V. 444. Power of Court of Equity over Property out of its Jurisdiction by a Decree in Personam. Specific performance decreed, of articles executed in England, con- cerning boundaries of two provinces in Amei'ica. The bill was founded on articles entered in between the plaintiffs and defendant, 10th May, 1732, which articles recited several matters as introductory to the stipulation between the parties, and particu- larly letters patent, granted 20th June, 8 Car. 1, by which the dis- tinct property and government of Maryland, under certain restrictions, is granted to the defendant's ancestor, his heirs and assigns ; farther, reciting charters or letters patent in 1681, by which the province of Pennsylvania is granted to Mr. William Peun and his heirs ; and stating a title to the plaintiffs, derived from James, Duke of York, to the three lower counties, by two feoffments, both beai'ing date 24th August, 1682. The articles recite that several controversies had been between the parties, concerning the boundaries and limits of these two provinces and three lower counties ; and make a particular pro- vision for settling them, by drawing part of a circle about the town of Newcastle ; and a line to ascertain the boundaries between Mar}^- land and the three lower counties ; and a provision in what manner that circle and line should run and be drawn ; and that commissioners should do it in a certain limited time, the final time for which was on or before the 25th of December, 1738. There was, beside, a provision in the articles, that if there should be a want of a quorum of com- missioners meeting at any time, the party by default of whose com- missioners the articles could not be carried into execution, should forfeit the penalty of 5,000^. to the other party ; and a provision for making conveyances of the several parts from one to the other in these boundaries, and for enjoyment of the tenants and land- holders. 48 2 756 JURISDICTION. Penn v. Lord Baltimore. The bill was for a specific perfurmance and execution of the articles ; what else was in the cause, came by way of argument to support, or objection to impeach, this relief prayed. When the cause came on before, it was ordered to stand over, that the Attorney-General should be made a party (a) ; who now left it to the Court to make a decree, so as not to prejudice the right of the Crown. The first objection for defendant was, that this Court has not juris- diction nor ought to take cognizance of it, for that the jurisdiction is in the King in Council. Second objection, that, if there is not an absolute defect of juris- diction in this Court, yet, being a proprietary government and a feudary seigniory held of the Crown, who has the sovereign dominion, the parties have no power to vary or settle the boundaries, by their own act ; for such agreement to settle boundaries, and to convey in consequence, amounts to an alienation, which these lords proprietors cannot do. But supposing they may alien entirely, they cannot alien a parcel, as that is dismembering, for which there is a rule in the feudal books concerning feiida iiulivisibilia. Thirdly, this agreement ought not to be carried into execution by this Court, as it affects the estates, rights, and privileges of the planters, tenants, and inhabitants within the district, and the tenure and law by which they live, without their consent. Fourthly, supposing all this answered, yet this agreement is not proper to be established, from the general nature and circumstances. First, as it is merely voluntary, and the Court never decrees specific- ally without a consideration ; secondly as the time for performance is lapsed ; thirdly, that these articles are in nature of submission to arbitration, which cannot be supplied by interposition and act of this Court ; fourthly, that defendant was imposed on or surprised in making this agreement ; fifthly, that, if there was no imposition or fraud, de- fendant grossly mistook his original right, and, under that mistake and ignorance, the articles were founded and framed ; sixthly, the agreement in some material parts is so uncertain, that it cannot be decreed with certainty, according to the intent of the parties, for that no centre is fixed, without which it is impossible to make a circle ; (a) See Ridg. Ca. t. Hardw. 444. CONTflACTS AS TO LAND OUT OF THE JURISDICTION. 757 Penn v. Lord Baltimore. nor is it sufficiently described, wliether it should be a circle with a radius of twelve miles, or oidy a peripher}^ of twelve miles ; seventhly, there is a covenant for mutual conveyances, whereas the plaintiffs have no estates in the lower counties, so as to make an effectual con- veyance to defendant ; and an agreement must be decreed entirely, or not at all. On the plaintiff's own showing the legal estate and property is in the Crown ; so that, at most, they have but an equit- able riufht, in which the Crown is trustee ; and then, this Court cannot decree a conveyance. In Reeve v. Attorney -General, iT'il, lands were devised to a wife, and, after her death, to be sold, and the money to be divided among the plaintiffs. The testator died without heirs, so that the legal interest in the estate descended to the Crown, but with a trust to be sold. On a bill to have the will established, and to hold against the Crown, or the lands sold, his Lordship dis- missed the bill, and said, where the Crown was trustee, the Court has no jurisdiction to decree a conveyance, but they must go to a petition of right ; eighthly, this Court cannot make an effectual decree in the cause, nor enforce the execution of their own judgment. Lord Chancellor Hardwicke. — I directed this cause to stand over for judgment, not so much from any doubt of what was the justice of the case, as by reason of the nature of it, the great con- sequence and importance, and the great labour and ability of the argument on both sides, it being for the determination of the right and boundaries of two great provincial governments and three counties ; of a nature worthy the judicature of a Roman senate, rather than of a single Judge ; and my consolation is, that, if I should err in my judgment, there is a judicature, equal in dignity to a Roman senate, that will correct it. It is unnecessary to state the case on all the particular circum- stances of evidence, which will fall in more naturally, and very intelligibly, under the particular points arising in the case. The relief prayed must be admitted to be the common and ordinary equity dispensed by this Court, the specific performance of agreements being one of the great heads of this Court, and the most useful one, and better than damages at law, so far as relates to tlie thing in specie, and more useful in a case of this nature than in most others, because no damages in an action of covenant could be at all adequate to what is intended by the j^arties, and to the utility to 758 JURISDICTION. Penn v. Lord Baltimore. arise from this agreement, viz., the settling and fixing these boun- daries in peace, to prevent the disorder and mischief which, in remote countries distant from the seat of government, are most likely to happen and most mischievous. Therefore, the remedy prayed by a specific performance is more necessary here than in other cases, provided it is proper in other respects ; and the relief sought must prevail, unless sufficient objections are shown by defendant, who has made many and various for that purpose. First, the point of jurisdiction ought in order to be considered, and, though it comes late, I am not unwilling to consider it. To be sure, a plea to the jurisdiction must be offered in the first instance, and put in primo die ; and answering submits to the jurisdiction, much more when there is a proceeding to hearing on the merits, which would be conclusive at common law ; yet a Court of equity, which can exercise a more liberal discretion than common law Courts, if a plain defect of jurisdiction appears at the hearing, will no more make a decree than where a plain want of equity appears. It is certain that the original jurisdiction, in cases of this kind relating to boundaries between provinces, the dominion and pro- prietary government is in the King and Council ; and it is rightly compared to the cases of the ancient commotes and lordships marches in Wales ; in which, if a dispute is between private parties, it must be tried in the commotes or lordships; but in those disputes, where neither has jurisdiction over the other, it must be tried by the King and Council : and the King is to judge, though he might be a party, this question often arising between the Crown and one lord pro- prietor of a province in America. So, in the case of the marches, it must be determined in the King's Courts, who is never considered as partial in these cases, it being the judgment of his Judges in B. R. and Chancery. So, where before the King and Council, the King is to judge, and is no more to be presumed partial in one case than in the other. Tkis Court, therefore, has no original jurisdiction on the direct question of the original right of the boundaries ; and this hill does 7iot stand in need of that. It is founded on articles executed in England under seal, for mutual considerations, ivhich gives jurisdiction to the King's Courts, both of laiu and in equity whatever be the subject-matter. An action of covenant could be brought in B. R. or C. B., if either side committed a breach ; CONTRACTS AS TO LAND OUT OF THE JURISDICTION. 759 Penn v. Lord Baltimore. SO might there he for the .5,000/. penalty, without going to the Council. There are several cases wherein collaterally, and by reason of the contract of the parties, matters out of the jurisdiction of the Court originally, will be brought within it. Suppo.se an order by the King and Council in a cause Avherein the King and Council had original jurisdiction, and the parties enter into an agreement under hand and seal for performance thereof, — a bill must be in this Court for a specific performance, and, perhaps, it will appear this is almost literally that case. The reason is, because none but a Court of equity can decree that. The King in Council is the proper judge of the original right; and if the agreement was fairly entered into and signed, the King in Council might look on that, and allow it as evidence of the original right ; but if that agreement is disputed, it is imposaible for the King in Council to decree it as an agreement. The Court cannot decree in personam in England, unless in certain criminal matters, being restrained therefrom by stat. 16 Car. 1, c. 10 ; and, therefore, the Lords of the Council have remitted this matter very properly to be determined in another place, on the foot of the contract. The conscience of the party was hound by this agreement ; and, being within the juris- diction of this Court, which acts in personam, the Court may pro- peri// decree it as an agreement, if a foundation for it. To go a step farther, as this Court collaterally, and in consequence of the agreement, judges concerning matters not originally in its jurisdic- tion, it Avould decree a performance of articles of agreement to perform a sentence in the Ecclesiastical Court, just as the Court of law would maintain an action for damages in breach of covenant. As to the second objection : If it was so, it would be very unfor- tunate ; for suits and controversies might be, for that reason, endless ; and this has subsisted above seventy years. This objection is insisted ou at the bar, and not by the answer. The subordinate proprietors may agree how they may hold their rights between themselves ; and, if a proper suit is before the King in Council, on the original right of these boundaries, the proprietors might proceed therein without making any other parties except themselves. In this respect also, it is properly compared to the case of lordships marches, and to counties palatine. When the marches subsisted, there might be a suit in B. E,. concerning their boundaries; and the lord of each 760 JURISDICTION^. Penn v. Lord Baltimore. march in question need be the only party. If a matter of equity arose, either of the lordships marches might have sued in equity to settle, because this is the King's court of general jurisdiction as to matters of equity ; and an agreement between the parties relative to these boundaries, if proper in other respects, to carry it into a specific performance, is a matter of equity. The Court might, indeed, by reason of their tenure, require the Attorney-General to be made a party, to know if he had anything to object, but then, might hold plea of the cause. Suppose both counties palatine were in subjects' hands (as both have been formerly), and subsisted so, and a question had arisen concerning the boundaries of these two counties palatine, and the respective Earls Palatine had entered into articles concerning these boundaries, this Court would have held plea of such articles as well as concerning the boundaries of the manors, seigniories, and honours : for these are honours, only a franchise of a higher nature. To say that such a settlement of boundaries amounts to an alienation is not the true idea of it ; for, if fairly made, without collusion (which cannot be presumed), the boundaries so settled are to be presumed to be true and ancient limits. But suppose it savours in some degree of an alienation, wl)}' ought it not to be ? There is no occasion to determine that, nor will I ; but it is a new notion, that the lords pro- prietors of these provinces may not alien to natural-born subjects. This is no opinion ; but the grants themselves are framed so as to be most open to alienation ; being grants to them and their heirs, to be held in common socage, not in capite of the Crown, bu^ as Windsor Castle is. What rule of law is there, that lands or a franchise granted to be held in common socage, not in capite, but as a parti- cular honour or manor, cannot be aliened without license ? all the objections concerning knights' service or capite lands, are out of tlie case, and the Act 7 & 8 Will. 3, c. 22, s. 16, supposes the proprietors may alien to a natural-born subject. The first words of the clause there are, " that they and their assigns may be restrained from alienating without license," which supposes that it was assigned, and this appears in the case of Carolina. As to the not alienating a parcel, the rule cited out of the feudists is not applicable, those books treating of different tenures : but I admit neither of these proprietors could dismember their provinces, so as to alter the nature of the thing granted, and hereby bind the Crown, of whom they held; for the tenure and services Avould still remain on the whole, and the CONTRACTS AS TO LAND OUT OF THE JURLSDICTIOX. 761 Penn v. Lord Baltimore. Crown might demand the whole services from either. It is, there- fore, something like the case of the office of high constable ot England, held by tenure of grand serjeanty ; which was very extra- ordinary, to hold the manors by tenure of such an office. In Kel. 170, and Dy, 285 {<(), the Judges reported their opinion to King Henry 8, that the tenure was not extinct by the division, but that the King had a right to insist on the performance of that office from the Duke of Buckingham, by reason of his moiety ; but this exacting the performance of the service from either subject is at the King's pleasure to do or not. This is an instance, that, in honours and tenures of this kind, the King cannot be prejudiced by any aliena- tion, division, or severance between the parties ; and if material services are reserved on the grant (though here it is by fealty only, in lieu of all), the entire services might be exacted from either, not being apportionable. But the settling limits is not a dismembering, and if a license to do this was necessary from the Crown, in law or policy, it sufficiently appears there was such ; for it appears by Orders of Council made in 1686 and 1709, the Crown has not only recommended, but ordered, this division to be made, so far as respects the three lower counties, as to which there is no dismem- bering ; for the dividing line is thereby exactly the same ; indeed, the circle is not within these Orders ; but as to that no difficulty can arise. As to the third objection : The tenure of the planters, &c., remains just the same as before, and is preserved by this agreement. The proprietors could not prejudice them by their agreement ; but if they could, care is taken by the agreement to preserve them. The King of England is still their sovereign and supreme lord ; both charters require the law of the respective provinces should be conformable to the law of England, as near as could be. Consider to what this objection goes : in lower instances, in the case of manors and honours in England, which have different customs and bye-laws frequently, yet, though different, the boundaries of these manors may be settled in suits between the lords of these manors, without making the tenants parties ; or may be settled by agreement, which this Court will decree, without making the tenants parties, though in case of fraud, collusion, or prejudice to the tenants, they will not be bound; but (a) 1 lust. lOG, 149, 1G5. 762 JURISDICTION. Penn v. Lord Baltimore. notwithstanding, it is binding on the parties, and to be established as to them. Suppose two bordering manors had been granted out in tail in recompense of services, the reversion in fee to the Crown ; in a suit between the lords concerning the boundaries, it is not necessary to make the King or tenants parties to this suit. Indeed, the Crown would not be bound by that agreement or decree ; but it is still binding between the parties. But in this case the same final answer occurs that does under the other objection, viz., that if there is no fraud or collusion, it must be presumed to be the true limits, being made between the parties in an adversary interest, each concerned to preserve his own limits, and no pecuniary or other compensation pretended. And (abstracted from the general question of want of jurisdiction) suppose either party insisted there was such a breach of the proviso here, as incurred the penalty, and brought debt in B. R. for that penalty, and the defendant there brought a bill here to be relieved (which probably would have been done), the Court must have relieved against the penalty, on performance of the articles ; judging on the terms of the relief, and dispensing with the point of time, the Court could not have avoided it. Then how does this case differ ? For it will not be pretended the King in Council would have had plea in that case ; it must have come into the King's Courts of equity, which must have judged of the manner of performing that agreement. The next head of objection is taken from the general nature and circumstances of the agreement. First, it is true, the Court never decrees specifically without a consideration : but this is not without consideration ; for though nothing valuable is given on the face of the articles as a considera- tion, the settling boundaries, and peace and quiet, is a mutual con- sideration on each side, and in all cases make a consideration to support a suit in this Court for performance of the agreement for settling the boundaries (a). The objection of the time for performance being lapsed may be answered ; for it is the business of this Court to relieve against lapse of time in performance of an agreement, and especially where the non-performance has not arisen by default of the party seeking to have a specific performance, as it plainly does not here. («) And see Stapilton v. S., p. 223, ante. CONTRACTS AS TO LAND OUT OF THE. JURISDICTION. 763 Penn v. Lord Baltimore. Next, these articles are not like submission to arbitration. In those cases generally the time is conditional so as determination be made by such a day ; here the line and circle are agreed on by distinct, independent covenants, and that they shall forar the boun- daries of these tracts of land ; this, therefore, is a particular, certain, specific contract of the parties, that tiiere shall be the boundaries ; nothing left to the judgment of the commissioners, who are merely ministerial, to run the line, &e., according to the agreement, and set the marks. Therefore, it is not like an award, but is an agreement, which this Court will see pursued. As to any imposition or surprise, the evidence is clearly contrary thereto. It would be unnecessary to enter into the particulars of that evidence ; but it appears, the agreement w\as originally pro- posed by the defendant himself; he himself produced the map or plan afterwards annexed to the articles ; he himself reduced the heads of it into writing, and was very w^ell assisted in making it : and farther, that there was a great length of time taken for con- sideration and reducing it to form. But there is .something greatly supporting this evidence, viz., the defect of evidence on the part of the defendant, which amounts to stronger negative evidence than if it was by witnesses ; for it was in his own power to have shown it, if otherwise. Then, am I to presume he was imposed on, in a plan, too, sent to himself by liis own agents ? As to the plan itself, it was in his own power : with regard to the original of these minutes of the agreement, wrote by himself, though ordered by the Court to be produced, they are not produced ; which negative evidence supports the evidence of the fairness of carrying on this agreement on the part of the plaintiffs. I admit, that, though no imposition or fraud, yet a plain mistake contrary to the intent would be a ground not to decree .specific per- formance. But consider the evidence thereof: the defendant and his ancestors were conversant in this dispute about fifty years before this agreement was entered into, and had all opportunities ; therefore, no ignorance, want of information, or mistake, are to be presumed ; and in cases of this kind, after an agreement, and plain mistake contrary to intent of parties not shown, it is not necessary for the Court to resort to the original rights of the parties ; it is sufficient if doubtful. To consider the points in dispute ; and first, upon the defendant's charter, in which it is insisted the wdiule 40th degree of north lati- 764 JURISDICTION. Penn v. Lord Baltimore. tilde is included, and if so, that it is not to be limited by any recital in the preamble. There is great foundation to say, the computations of latitude at the time of the grant vary much from what they are at present ; and that they were set much lower anciently than what they are now, as appears by Mr. Smith's book, which is of reputation ; but I do not rely on that, for the fact is certainly so. But whatever that was, does it take it in by the description ? It comes to the question, whether the usque ad is inclusive or exclusive ; therefore, however described, the same question remains. But there is another argument used by the plaintiffs to restrain the defendant's charter from taking in the whole 40th degree, viz., the recital of it ; for the plaintiffs say, the information given to the Crown by Lord Baltimore was, that this part was land uncultivated and possessed by barba- rians, whereas it was not so, but possessed by Dutch and Swedes ; and therefore the Kincj was deceived in his grant. There is consider- able evidence that Dutch and Swedes were settled on the east part of that country, but this is said to be no deceit on the Crown ; for though some stragglers were settled there, yet if not recognised by the Crown, that is not a settlement. I am of a different opinion ; for in these countries it has been always taken, that that European country which has first set up marks of possession has gained the right, though not formed into a regular colony ; and that is very reasonable on the arguments on which they proceeded. Then, will not that affect the grant ? If the fact was so, that would be as great deceit on the Crown, in notion of law, as any other matter arising from the information of the party, because such grants tend to involve this Crown in wars and disputes with other nations ; nor can there be a greater deceit than a misrepresentation tending to such a conse- quence, which would be a ground to repeal the letters patent by scire facias. Next consider the dispute on Penn's charter, which o^rants to him all that tract of land in America, from twelve miles distance from Newcastle to the 43rd degree of north latitude, ikc, under which the plaintiffs do not pretend a title to the three lower counties, which relate to the two feoffments in 1682. Upon that charter it is clear, by the proof, that the true situation of Cape Hen- lopen is as it is marked in the plan, and not where Cape Cornelius is, as the defendant insists, which would leave out great part of what was intended to be included in the grant ; and there is stroug evidence of seisin and possession by Penn of that spot of Cape Hen- I CONTRACTS AS TO LAND OUT OF THE JURISDICTION. 765 Penn v. Lord Baltimore, lopeo, and all acts of ownership. But the result of all the evidence, taking it in the most favourable light for the defendant, amounts to make the boundaries of these counties and rights of the parties doubtful. Senex, who was a good geographer, says that the degrees of latitude cannot be computed with the exactness of two or three miles ; and another geographer says that, with the best instruments, it is impossible to fix the degrees of latitude without the uncertainty of seventeen miles, which is near the whole extent between the two capes. It is therefore doubtful, and the most proper case for an agreement, which, being entered into, the parties could not resort back to the original rights between them ; for if so, no agreements can stand, whereas an agreement entered into fairly and without surprise ought to be encoui'aged by a Court of justice. The objection of uncertainty arises principally on the question concerning the circle of twelve miles to be drawn about Newcastle ; it was insisted on in the answer, and greatly relied on in America, but it is the clearest part of the cause. As to the centre, it is said that Newcastle is a long town, and therefore, it not being fixed by the articles, it is impossible that the Court can decree it; but there is no difficulty in it : the centre of a circle must be a mathematical point (otherwise it is indefinite), and no town can be so. I take all these sort of expressions and such agreements to imply a negative : to be a circle at such a distance from Newcastle, and no part to be farther. Then it must be no farther distant from any part of New- castle. Thus, to fix a centre, the middle of Newcastle, as near as can be computed, must be found, and a circle describing round that town, which is the fairest way, for otherwise it might be fourteen miles in some parts of it, if it is a long town. Then what must be the extent of the circle ? It is given up at the bar, though not in the answer. It cannot be twelve miles distant from Newcastle, unless it has a semidiameter of twelve miles ; but there is one argument decisive, without entering into nice mathematical questions : the line to be the dividing-line, and to be drawn north from Henlopen, was either to be a tangent or intersecting from that circle ; and if the radius was to be of two miles only, it would neither touch nor intersect it, but go wide. There is no difference as to the place or running of the line from south to north, though there is as to the cape from which it is to commence. As to the seventh head of this objection, it is truly said, tha 766 JUKISDICTION. Penn v. Lord Baltimore. agreements must be decreed entire, or not at all. As to the plaintiff's estate and possession, this must concern only the three lower counties, which plainly passed by the feoffment. I will lay aside the question of estoppel, which is a nice consideration ; for the Duke of York, being then in nature of a common person, was in a condition to be estopped by a proper instrument. In 1683 the Duke of York takes a new grant from the Crown, and, having granted before, was bound to make further assurance ; for the improvements made by Penn were a foundation to support a bill in equity for further assurance. The Duke of York, therefore, while a subject, was to be considered as a trustee, why not afterwards as a royal trustee ? I will not decree that in this Court, nor is it necessary, but it is a notion estab- lished in Courts of revenue by modern decisions, that the King may be a royal trustee ; and if the person from whom the King takes by descent was a trustee, there may be grounds in equity to support that ; and if King James II., after coming to the Crown, was a royal trustee, his successors take the legal estate under the same equity; and it is sufficient for the plaintiffs if they have an equitable estate. Then, consider this in point of possession of the Penns, the proof of which is very clear : they have been permitted to appoint governors of these lower counties, which have been approved by the Crown, according to the statute of King WiUiam. Indeed, all the acts of possession are with a salvo jure to the Crown ; but the evidence for the defendant amounts to this : not ot a real possession or enjoyment, but of attempts to take possession, sometimes by force, sometimes by inciting people to come there ; otherwise, why should Lord Baltimore orant here for half what he granted in other places ? Which shows plainly it was an invitation to get settlers there under their title. Now I am of opinion that full and actual possession is sufficient title to maintain a suit for settling boundaries (a) ; a strict title is never entered into in cases of this kind, neither ought it. But what ends this point of want of title to convey is, that no part of the lower counties is left to be conveyed by the plaintiffs to the defendant ; so that, nothing being to pass by the plaintiffs, it is not material whether they have title to convey or not. But now, in cases of this kind, of two great territories held of the Crown, I will say, once for all, that long possession and enjoyment, peopling and cultivating countries, is one of the best evidences of title to lands, or district of lands in (a) Wake v. Conyers, ante, p. 170. I CONTRACTS AS TO LAND OUT OF THE JURISDICTION. 76' Penn v. Lord Baltimore. America that cau be ; and so have I thought in all cases since I have served the Crown; for the great beneficial advantages arising to the Crown from settling, &c., is, that the navigation and the commerce of this country is thereby improved. Those persons, therefore, who make these settlements, ought to be protected in the possession, so far as law and equity can ; and both these proprietors appear to have great merit with regard to the Crown and tlie public ; for these two provinces have been improved in private families to a great degree, to the advantage of their mother country ; this regards the three lower counties, the strength of which is vastly on the side of the plaintiffs. As to the Court's not enforcing the execution of their judgment, if they could not at all, I agree it would be vain to make a decree ; and that the Court cannot enforce their own decree in rem in the present case. But that is not an objection against making a decree in the cause ; for the strict primary decree in this Court, as a Court of equity, is in personavi, long before it was settled whether this Court could issue to put into possession in a suit of lands in England, which was first begun and settled in the time of James 1., but ever sincedone by injunction or writ of assistant to the sheriff; but the Court cannot to this day, as to lauds in Ireland or the plantations. In Lord King's time, in the case of Richardson v. Hamilton, Attorney General of Pennsylvania, which was a suit of land and a house in the town of Philadelphia, the Court made a decree, though it could not be enforced in rem. In the case of Lord Anglesey, of land lying in Ireland, I decreed for distinguishing and settling the parts of the estate, though impossible to enforce that decree in rem; but the party being in England, I could enforce it by process of contempt in personam and sequestration, which is the proper juris- diction of this Court. And, indeed, in the present case, if the parties want more to he done, they mii.st resort to anotlier jurisdiction ; and it looks, by the order in 173-5, as if that was iu view, liberty being thereby given to resort to that Board. This opens a wa}^ to that part of the case relating to the Crown. The Attorney-General acts a very impartial part ; and I shall express in the fullest words, that this decree is entirely without prejudice to any prerogative, right, or interest iu the Crown. I will go farther, that, as I do not know how far that interest of the Crown may be, I will reserve liberty for either party to apply to this Court, if by any 768 JURISDICTION. Penn v. Lord Baltimore. act or right of the Crown execution of this shall be obstructed ; for the Court is at liberty to suspend its decree if a difficulty to perform it is shown ; and I will reserve further directions as between the parties, as to that matter, so de novo arising. Judgments have been at law with a salvo jure of the Crown ; as in Rastal and Coke's Entries, in the title of Intrusion and Quo Warranto, which, particu- larly in the cases of lands relating to intrusion, is very analogous to the present. I am of opinion, therefore, to decree a specific performance of this ao-reement, without prejudice to any right, &c., of the Crown. NOTES. 1. Generally. 2. Necessity for some equity to give jm-isdiction, p. 769. 3. The lex situs must be considered, p. 777. 1. Generally. In the British South Africa Co. v. Companhia de Mozambique (a) it was decided by the House of Lords that the rules of procedure under the Judicature Acts abolishing local venue (6) have given no new jurisdiction with respect to " local" actions relating to land abroad, and that apart from cases of contract or equity such as that in the principal case, the English Courts have no jurisdiction to entertain any local action relating to land abroad, such as an action for damages for trespass. Lord Herschell explained (c) the distinc- tion between transitory and " local " actions to be " those in which the facts relied on as the foundation of the plaintiff's case have no necessary connection with the particular locality and those in which there is such a connection." The jurisdiction, therefore, of the High Court remains in substance the same as that of the old Court of Chancery when the principal case was decided, and Lord Hardwicke there lays down the principle that equity, as it acts primarily m^^erso- nam, and not merely in rem, may, where a person against whom relief is sought is xcithin the jurisdiction, make a decree upon the ground of a contract or some equity subsisting between the parties respecting immoveables situated out of the jurisdiction ; but while he enforces the (a) (1893) A. C. 602. (c) P. 618. \h) R. S. C, 0. 36, r. 1. CONTRACTS AS TO LAND OUT OF THE JURISDICTION. 769 Penn v. Lord Baltimore. right of the Court in proper cases to act in personam, he recognises the principle that the lex situs must be resorted to in order to put the plaintiff into possession. It was said by Wright, J. (a) : " Courts of equity, since Lord Barchvickes decision, exercised jurisdiction in personmn with respect to foreign land against persons locally within the jurisdiction of the English Court in cases of contract, fraud, and trust, enforcing their jurisdiction by writs of ne exeat regno during the hearing (b), and by sequestration, commitment, or other personal process after decree." The exercise of this jurisdiction is therefore subject to certain limitations. First, there must be some equity against the defendant affecting the land in local actions. As regards mere personal or transitory actions, the Courts of common law have entertained them where a defendant is within the jurisdiction, although the cause of action arose out of the jurisdiction, on the ground, as stated by Wright, J. (b), quoting De Grey, C.J., that " personal injuries are of a transi- tory nature and sequuntur foram rei." The second limitation is, that as the Court can only enforce its order indirectly in manner above stated in order to put the plaintiff in possession, the jurisdiction of the lex situs must be invoked. The third limitation, which seems to follow as a corollary to the second, is, that though the Court, in deciding on the equity, acts on its own rules, it will not enforce a judgment where it is illegal or impossible according to the lex situs, to give the plaintiffs possession. 2. Necessity for some Equity to give Jurisdiction. Lord Hardwicke. in the piincipal case (c), says, " This Court there- fore has no original jurisdiction on the direct question of the original right of the boundaries, and this Bill does not stand in need of that. It is founded on articles executed in England under seal for mutual considerations, which gives jurisdiction to tlio King's Courts, both of law and in equity, whatever be the subject matter." In examining the cases in which the jurisdiction has been exercised, it will be found that, with the exception of some few old cases which have been overruled, the jurisdiction was entertained on the ground of some contract or equity between the parties (d). {a) British South Africa Co. r. Com- (c) Supra, p. TJS. panhia de Mozambique, (1892) 2 Q. B. (d) See Westlake, luternational Law, 3oS; (1S9;J) A. C. 602. (1890) pp. 194, 195; Dicey's Conflict {/>) lb., p. -Mui. of Laws, (1896) p. 216. W. & T. — VOL. I. 49 770 JURISDICTION. Penu V. Lord Baltimore. Thus, in Lord Cranstoiun v. Johnston (a), a creditor having fraudulently obtained a judgment in one of the West Indian Islands (St. Christopher's) against his debtor, then absent from the island, and sold his debtor's real estate situate there, the sale was set aside by Arden, M.R.., who, after referring to the cases of Archer v. Preston (b), Arglasse v. Muschamp (c), K'ddare v. Eustace (d), H&ys (e) : " Those cases clearly show, that with regard to any contract made, or equity between persons in this country respecting lands in a foreign country, particularly in the British dominions, this Court will hold the same jurisdiction as if they were situated in England." Lord Hardivicke lays down the same doctrine in Foster v. Vasscdl (/). There is no distinction between lands in a colony or a foreign country with respect to the exercise of this jurisdiction (g). Specific Performance. — At a very early date specific performance of a contract for sale of lands out of the jurisdiction was enforced. Thus, in Archer v. Preston (h), a contract was entered into for the sale of land in Ireland, and the defendant, who refused to carry out the contract, coming over to England, a bill was filed against him in Chancery and a ne exeat regno granted, and when he departed for Ireland without answering, he was sent for by special order and made to answer for the contempt. In the principal case, a contract respect- ing the settlement of boundaries out of the jurisdiction was enforced. Foreclosure and Redemption. — So bills have been entertained for the foreclosure or redemption of mortgages of property out of the jurisdiction. First, as regards foreclosure of mortgages, see Toller v. <7'M'^e7'ei (i), where a bill was filed by the mortgagee for foreclosure of the Island of Sark ; see also Paget v. Ed.e {k), where foreclosure was decreed of lands in the West Indies, the Judge treating the case of foreclosure as merely extinguishing a right to redeem and enforcing a personal contract (l). As to redemption of mortgages, in Beckford v. Kemhle (m), the Court entertained a bill for redemption, and granted an injunction (o) 3 V. jun. 170. Jackson v. Petrie, 10 V. jun. 165; (h) 1 Eq. Ca. Abr. pi. 133. Colyer v. Fincli, 5 H. L. Ca. 90o. (c) 1 Vera. 75. (i) 2 Vern. 495. (d) 1 Vera. 419. (/.-) 18 Eq. 118. (e) P. 182; see per Lord Ilerschell, (/) See per Kai/, J., in Be Ilaw- (1893) A. C. at p. 626. thorne, 23 C. D. 748. (/) 3 Atk. 589. (m) 1 Si. & St. 7 ; Bent v. A'oung, 9 Si. ((/) Angus r. A., West temp. Hard- 180, p. 190. And see Westlake, Inter- wicke, 23. national Law, 1890 Ed., pp. 196, 197. (//) 1 Eq. Ca. Abr. pi. 133, pt. 3; CONTRACTS AS TO LAND OUT OF THE JUELSDICTION. 771 Penn v. Lord. Baltimore. to restrain the defendants from foreclosing in the foreign Courts, hohling that the plaintiff had a clear ecjuity to be protected against a double account. FtchuI. — In cases of constructive trust, where lands abroad have been acquired by fraud, the transaction has been set aside, and the defendant ordered to execute the necessary reconveyances («). Waste. — And a tenant in coininon of lands abroad, resident here, was held liable to an account for waste committed {h), and also for an account of rents and profits (c). Partnership and Companies. — So likewise on a bill filed by one of tlie parties in England, a decree has been made for winding up a partnership in Hayti, and taking accounts of agency transactions between the partnership and a Liverpool firm {d). The residence and domicile of an incorporated company are determined by the situation of its principal place of lousiness. The jurisdiction of the Courts of one country over companies domiciled in another country appears to depend on the answer to the question whether these companies are, through their property or their agents, amenable to the process of the Courts in which the companies are sued (e). A joint stock company formed in India, and incorporated by regis- tration under Indian law, and having its principal place of business in India, with an agent and a branch office in Eugland, may be wound up under the Companies Act, 1862 ( /"). The Companies Winding-up Act, 1890, applies to a company which has not a registered office in England, but has carried on business there {g). It has been decided that the registrar is not bound to refuse registration of a company formed by foreigners residing abroad and in many respects a foreign company Qi). {a) Arglasse v. Muschamp, 1 Vern. (N. S.) G02. 75; Lord Cranstown v. Johnston, 3 V. ('') See Lindley, Companies, 1889 jun. 170, supra, p. 770; Jackson v. Ed., pp. 210, 212. Petrie, 10 V. jun. 164. {/) /ie Commercialliankof India, (5 [h) Cateret v. Petty, 2 Swanst. 323 ; Eq. 517 ; Re Matheson Bros., Ld., 27 Batthyany v. Walford, 33 C. D. C. D. 225. G24. (/y) /Ze Mercantile Bank of Australia, (r) Robcndean v. Rous, 1 Atk. (1892) 2 Ch. 204. 543. (/') Re General Company for the (J) Maunder r. Lloyd, 2 John. & II. Promotion of Land Credit, 5 Ch. 718; Ilendrich v. "Wood, 9 W. 11. 3()3. affirnioil, Princess of Reuss 588; Rainy r. Ellis, 20 L. T. \\'-\). r. Bos. 5 L. R. U. L. 17(). 4!J -1 772 JURISDICTION. Penn v. Lord Baltimore. Receivers have been appointed (a), not only in foreign countries such as Brazil (/;), but also in our colonies, West Indies {Bunbivry v. B.) (c), and in Ireland (d). Adininistration. — As regards administration of estates, in Eiving V. Orr-Ewhig [e) a testator domiciled in Scotland, and possessed of a large personal and some heritable property in Scotland, and of a comparatively small personal property in England, b}' v>'ill made in Scotcli form, appointed several persons to be executors and trustees, .Home of ivhom resided in England, and some in Scotland. The trustees obtained a confirmation of the will in Scotland, and the confirmation was sealed by the English Court of Probate, imder 21 & 22 Yict. c. 50. An infant, resident in England, brought by his next friend an action here to administer the estate, and the writ was served upon some of the trustees in England, and (under an order) upon the Scotch trustees in Scotland. The trustees appeared without protest, and took no steps to discharge the order, but obtained an order of reference to inquire whether the further prosecution of the action would be for the benefit of the infant plaintiff, upon which an order (not appealed from) was made for the further prosecution of the action. The trustees removed all the English personalty into Scotland before the action came on for trial. It was held by the House of Lords, affirming the decision of the Court of Appeal (/), that the English Court had jurisdiction to administer the trusts of the wdll as to the whole of the estate, both Scotch and English ; and that as no proceedings were pending in a Scotch court (if such were possible), by which the interests of the infant plaintiff could have been equally protected, the jurisdiction was not discretionary, but that the decree was as a matter of course (g). If English trustees, having in their hands English trust funds, were found within the jurisdiction of the Scottish Courts, those courts, on the same principle, might compel them to do their (a) See Seton, 1891 Ed., vol. i., p. infra. 684. (') 9 -A-pj). Ca. 34 ; and see Lewin [h] Sheppard v. Oxenford, 1 Kay & (1891), pp. 47, 48. J. 500. (/) Reported 22 C. D. 456. (c) 1 B. 33(5. (.'/) See also Stii-ling-Maxwell v. \ersonaiin against the defendant (see ante, p. 769), yet the Court, before making any decree in personam, must have regard to the law of the foreign country to see if it be possible tliat the decree would be obejed (/). In Ex p. Pollard (fj), where the Court compelled a defendant to give effect to an equitable mortgage on lantls in Scotland, the Scotch law not recognising such a charge, but there being nothing in the law or circumstances to prevent the defendant carrying out the decree, Lord Cotten/ra/ni, in his judgment, said : "If the law of the country where the land is situate should not permit or not enable the defendant to do what the Court would otherwise think right to decree, it would be useless and unjust to direct him to do the act; but when there is no such impediment, the Courts of this country, in the exercise of their jurisdiction over contracts made here, or in administering equities between parties residing here, act upon their own rules, and are not influenced by any consideration of what the (a) 29 B. 246 ; 3 De G. F. & J. 583. Forbes, L. E. 10 C. P. oSli, 1 C. P. I). (6) 29 13. 254 ; sco too Matthaei c. 51 ; Eeiner v. Salisbiuy, 2 C. D. 37N. Galitzin, 18 Eq. 340. (/) Nelson v. Bridport, supra; Mar- (c) Pike V. Hoare, 2 Eden, 182. tin v. M., 2 Russ. & My. 507 ; Water- (d) Cartwrigbt v. Pettus, 2 I'h. Ca. house v. Stansfield, 9 Ha. 234, 10 Ha. 214. 254; Xoms v. Chambers, vid. supra, {(') 23 ('. D. 748; see also Matthaei note (a), 3 De G. F. & J., p. 584. V. Galitziii, 18 Eq. 340; Whitaker /•. (y) Mont. & Ch. 239. 778 JURISDICTION. Penn v. Lord Baltimore. effects of such contracts might be in the country where the lands are situate, or of the manner in which the Courts of such countries might deal with such equities. . . In giving effect to the security, I act upon the well-known rules of equity in this country, and do not violate or interfere with any law or rule of property in Scotland, as I only order to be done what the parties may by that law lawfully perform." In other cases relief has been refused because a title had been acquired by tliird persons, under the lex loci, which prevented the defendant froin carrying out the order. In Nortoii V. Florence, c(-c., Go. {a), a company, having house pro- perty at Florence, raised money on bonds expressed to be binding on "all their estate." Subsequently, by a mortgage in Italian form registered in Florence, the same company mortgaged the Florence property to a bank, which had notice of the bonds. The bank took proceedings in Florence to realise their security. It was held that the bonds did not create a charge (6) ; and, secondly, if they did create a charge, as, accofding to the lex loci, it did not bind the property, the bank, notwithstanding notice, took the title free from tlie bonds. In The Mercantile Investment and General Trust Co. v. River Plate Trust, Loan and Agency Go. (c), laud in Mexico was assigned by an American company to the defendants, an English company, expressly subject to a charge for debentures of the American com- pany. The defendant company, by registration in Mexico, obtained a title, by the lex loci, free from a charge for the debentures. North, J., held that there was jurisdiction to appoint a receiver for the debenture holders, but refused it as under the circumstances useless. In WaterJiO'iise v. Stansjiehl (d), relief was refused to the plaintiff in respect of an assignment, by way of security of the assignee's interest, under a contract for the purchase of land in Demerara, to secure monies lent. The V.-C. (p. 259) says : " When the law of a foreign country places a restraint upon the alienation of the pro- perty of a debtor situated in such country, an equit}^ arising here on a contract entered into in respect of such property cannot be enforced against the lex loci rei sitce." If the lex loci is merely silent, and no further title has been (a) 7 C. D. 332. (c) (1892) 2 Ch. 303. (6) But in lie Florence, &c. Co., ((/) 9 Ila. 234, 10 Ila. 254; and see J£x p. Moor, 10 C. D. 530, the case Hicks r. Powell, 4 Ch. 741, where it ■was overruled, so far as it decided that was held that a deed void under the the bonds did not create a charge ; Indian Registration Acts, and not to and see Moor v. Anglo-Italian Bank, be received as evidence there, could 10 C. D. 681. not be sued iipon in England. I CONTRACTS AS TO LAND OUT OF THE JUKISDICTION. 779 Penn v. Lord Baltimore. acquired by a tliird person, the Court will not refuse a decree (a). Parties out of the jurisdiction may be served abroad, but this does not extend the jurisdiction of the Court in granting relief (7>). The cases of restraining actions abroad are distinguishable from those of restraining some act within the jurisdiction — e.g., restraining a libel being published in England, as in such case an injunction has been granted, it appearing possible that the defendant might come into England (c), or where a primd facie case is made out of infringe- ment of a patent within the jurisdiction {d), or a trade mark (e), or cases within Order XLVIIIa, or the former order, as to suing a firm carrying on business within the jurisdiction (/"). It has been held that the Courts in England cannot authorise service of a writ out of the jurisdiction except in cases provided for by the R. S. C. {: J., 3 Atk. 120; Webster v. Hale, 8 V. jun. 410. Eobinson /•. Addison, 2 B. olo ; see also {b) Ashton v. A., Cas. t. Talbot, 152, Walker r. Laxton, 1 Y. & J. 557. 3 P. W. 384. (h) Davies v. Fowler, 16 Eq. 308 ; (c) Sleech v. Thorington, 2 V. 562 ; see also Jte Young, Trye v. SnUivan, Simmons v. Vallance, 4 Bro. Ch. 345 ; 52 L. T. 754. Millard v. Bailey, 1 Eq. 378. (/) Tatham v. Drummond, 2 Hem. {d) Hosking v. NichoUs, 1 Y. & C. & M. 262 ; Davies r. Fowler, supra. C. C. 478. (/.) Ford v. Fleniing, 1 Eq. Ca. (e) iZeNottage,No.2,(1895)2Ch.657. Abr. 302, pi. 3, 2 P. W. 469; Nelson (/) Townseud V. Martin, 7 Ha. 471 ; v. Carter, 5 Si. 530; Oliver v. 0., 11 Queen's College f. Sutton, 12 Si. 521 ; Eq. 506; Be Sayer, McClellan v, Fontaine r. Tyler, 9 Price, 94. Chirk, 53 L. J. Ch. 832. 794 LEGACIES. Ashburner v. Macguire. A bequest of a specific fund to be sold and divided in definite shares among several persons is specific: see Je^erys Trusts (a), where the bequest was " The pink coupons in the pigeon-hole are for 3,666^., send those to Irving & Slade (brokers), and he is to pay to E. T. 2,500^., the rest for the Archdeacon G. for B. and E." It was held that this was a specific legacy to sell and pay 2,500Z. to E. T., and the residue to Archdeacon G., and that E. T. was entitled to a dividend on the portion which at the death would have been requisite to realize 2,500Z. See a like decision in gift of parts of proceeds to be received under a policy : Walpole v. Apthorp (b), and of proceeds of sale of land, Page v. Leapingivell, and Newhold v. Road- knigJtt, post, pp. 797, 838. Somewhat fine distinctions have been taken. It has been held where there is a legacy of " stock out of stock" (c), or of money out of a specific fund as a bond debt (d), it will be specific, being the gift of part of a specific fund (e), and on the other hand that where there is a bequest not oi part of certaii stock or of stock out of stock (in which case the legacy, as before shown, is specific as being part of a specific fund), but of money out of stock, " as of 1,000^. out of my Reduced Stock," then the legacy will not be specific, but demonstrative (/). So where a certain sum is given, and the fund in which it is invested and out of which it is to be paid is described or pointed out merely, the legacy will be demonstrative (g). But the intention, which always governs in these cases, may show that so much of the identical stock was intended, in which case the legacy will be specific. Thus, where a testator directed A. to pay to certain persons "four hundred pounds out of seven now lying in the (a) 2 Eq. 68. (6) 4 Eq. 37. (c) Morley v. Bii-d, 3 V. jun. 629 ; Hosking v. Nicholls, supra. {(l) liadi'ick -('. Stevens, 3 Bro. Ch. 431. (e) Drinkwater v. Falconer, 2 V. 623; MuUins V. Smitli, 1 Dr. & Sm. 204. (/) Kirby r. Potter, 4 V. jun. 748 Deane v. Test, 9 V. jun. 146, 152 Eogers v. Clarke, 1 C. P. Coop. 376 Attwater v. A., 18 B. 330 ; and see Jones V. Southall, 32 B. 31 ; Hosking r. Nicholls, supra, Mullins v. Smitli, supra; Page v. Young, 19 Eq. 501. (g) Raymond v. Broadbelt, 5 V. jun. 199 ; Gillaume i\ Adderley, 15 V. jun. 384 ; Sparrow v. Josselyn, supra; Thomas v. T., 3 Ir. Ch. R. 399 ; and see Mytton v. M., 19 Eq. 30, explained in Be Pratt, (1894) 1 Ch. 491 ; Lambert v. L., 11 V. jun. 607 ; Danvers v. Manning, 2 Bro. Oh. 18, S. C, 1 Cox, 203; Oliver v. 0., 11 Eq. 506 ; Le Grice /•. Finch, 3 Mer. 50, disapproved of in Harrison v. Jack- son, 7 0. D. 339. SPECIFIC LEGACY ADEMPTION. 795 Ashburner v. Macguire. Three per Cent. Consolidated," Lord Alvanley held that the legacy was specific (a). Where a testator makes a specific bequest, for instance, of stock which he accurately describes, that stock only, and not stock of a different denomination, will pass, though the amount be less than what he states it to be (6) ; but if he had no such stock as that which he mentions in his will, other stock nearly answering the description might pass (c). As to the admissibility of evidence and words to determine whether legacies are specific, see post, p. 836. Legacies of Personal Chattels. — A bequest of a brooch whicli I received as a present from A. B. {d), my horse named Castor (e), as many of my horses as will amount to 800Z. (/), any stock of trade of wines and spirituous liquors which I shall be possessed of at the time of my death ((/), all the books in my chambers (It), will be specific, and can only be satisfied by a delivery in specie. But where a person having many chattels of the same kind bequeaths them in such terms as not to show that any particular chattel was intended, and so that the bequest will be satisfied by something of the same species as that mentioned, the legacy will not be specific. Thus, if A., having many brooches or horses, bequeath " a brooch" or *'a horse," in these and such cases the bequests will not be specific, but general (i). A gift of my grey horse will pass a black horse, which is not strictly grey, if it be found to have been the testator's intention that it .should pass by that description (Ic). But if the testator has no horse, the executor is not to buy a grey horse {I). Things ordered by and made for the testator will pass under his will, although not delivered or paid for until after his death {in). (a) Morley v. Bird, 3 V. jun. 629 ; B. 240 ; Drake v. Martiii, 23 B. 89 ; see also Drinkwater v. Falconer, 2 V. Ellis c Edeu, 25 B. 482 ; Trinder v. 623 ; Townsend u. Martin. 7 Ila. 471 ; T., 1 Eq. 695 ; Be Nottage, (1895) 2 and see Re Pratt, (1894) 1 Ch. 491. Ch. 657. • (6) GilHat V. G., 28 B. 481 ; and see {) Evans i-. Tripp, 6 Madd. 92. Ley, 2 J. & W. 207 ; Gallini v. Noble, (/) Ibid. 3 Mer. 691 ; Uutnnell v. Tiu-uer, 13 [m) Field v. Beckett, 29 B. 575. 796 LEGACIES. Asliburner v. Maeguire. 3. Specific Bequest for Life of Consumable Articles. A gift for life, if specific, of things '^quce ipso usu consuiiiuntui-," is a gift of the property, and there cannot be a limitation over after a life interest in such article («). Thus it was laid down by Knight-Bruce, V.-C, that a gift of " wine, spirits, and hay," to a woman so long as she should be living unmarried, is a gift of the absolute interest (6). The result is that such legacy will lapse on the death of the first taker during the life of the testator (c). The gift, however, may of course be limited so as to apply only to such as she may require (cl). But the gift, it seems, will not as a rule be absolute of consumable articles constituting the testator's stock in trade, as for instance, that of a wine merchant (e). The same result has been arrived at with regard to farming stock (/). Hatherley, C, when Vice-Chancellor, arrived at the same con- clusion in Groves v. Wright (g), with respect to a gift of farming stock and implements of husbandry for life; but the ground his Lordship proceeded on was, that farming stock and implements of husbandry were not things quce ipso usu consuinuntur. Stuart, V.-C, however, in Bryant v. Easterson (It), held that a legatee for life of farming stock, consisting among other things, of growing crops, oxen, sheep, pigs, and horses, took such stock abso- lutely, as things quce ip)S0 usu consumuntur, and that they did not, therefore, go to the legatees in remainder. This case, however, appears to be opposed to the modern current of authorities. But even if stock m trade be given to a person for life, he will take absolutely, and consequently a gift over thereof will be void, if by the terms of the will the legatee is not to be liable to account for any diminution or depreciation {i). Where a man's wearing apparel was given to his widow for life, with remainder over, it was held by Page- Wood, V.-C, that (a) Randall v. Eussell, 3 Mer. (/) C'Lckayne v. Harrison, 13 Eq. 195. 432. {b) Andrew v. A., 1 Coll. 690, 691, (g) 2 Kay & J. 347. 692; Twining v. Powell, 2 CoU. 262; {h) 5 Jur. (N. S.) 166, 7 W. E. Be Hall's WiU, 1 Jur. (N. S.) 974. 298. (c) Andrew v. A., supra. (/) Breton v. Mockett, 9 C. D. (d) Be Coljev, 55 L. T. 344. 95. (e) PlulHps V. Beal, 32 B. 25. II SPECIFIC LEGACY — ADEMPTION. 797 I Ashburner v. Macguire. the wearing apparel did not vest in the widow absolutely as things quce ipso usu consummitur, and that the sale thereof, and the pay- ment of the income to the widow for her life, was reasonable (a). So if consumable articles are included in a residuary bequest for life, they must be sold, and the interest only enjoyed by the tenant for life (h). 4. Legacies connected with Realty. Every devise of land even in the form of a general residuary devise is specific (c). And a devise of land upon trust to sell and divide amongst certain persons makes them specific legatees (d). This has been held to be the case where there is a direction to pay to an individual a definite sum out of the proceeds of the sale and the residue to others; thus, in a devise upon trust to sell, and out of the proceeds to pay A. 3,000/., and the residue to others, the sum «o given was held to be substantially a portion of the real estate, and not a gift with a collateral charge, and the testator having sold the estate in his lifetime, the legacy was held to be adeemed (e). So in Page v. Leapingwell{f), the testator devised an estate in trust to sell, but not for less than 10,000/., and pay several sums amounting to 7,800/-., and the overplus moneys arising from the sale to A. : Grant, M.R., held that it was a specific legacy of 10,000/., and the sale producing less, the otlier legatees were obliged to abate with A., and that two charitable legacies given out of the fund were void, and fell into the general residue of the testator's estate. A gift of a rent out of land or a term of years is specific {g\ and a gift of rents generally passes the fee Qt). So also every bequest of a lease for years of land {%), or of tithes {k), is specific. (a) Re Hall's Will, 1 Jui-. (N. S.) Walpole v. Apthorp, 4 E3, SPECIFIC LEGACY ADEMPTION. 799 Ashburner v. Maeguire. An annuity when given with words of inheritance is descendible and goes to the heir to the exclusion of executors {a) ; but not being within the statute De Bonis it cannot be entailed ; a devise there- fore of a personal annuity to A. and the heirs of his body will o-ive A. a fee simple conditional {h). If, although the annuity be per- petual, words of inheritance are not used, it is personal estate thouo-h charged upon real a» well as personal estate (c). And see Parsons v. P. {(1), where the gift was to six children or their heirs, and it was held that the next-of-kin took. The question often arises, whether an annuity is perpetual or whe- ther it is for life only. The answer to it depends upon the intention of the testator. If an annuity is given simpliciter, that is, to one generally, a life interest only passes (e). Where an annuity is given for the maintenance and education of children, as it is obvious that it was meant to be for their personal enjoyment and benefit, it will be held not to be meant to be continued beyond their lives (/), and will not ordinarily be confined to minority (g). A bequest of SOL a-year to A. together with her children B., C, and D., and /or their joint maintenance, was held to be a bequest of an annuity to the mother and her children as joint-tenants for the life of the longest liver of them {h). See, too, in Re Booth (i), where the gift was to the widow for her use and benefit and the main- tenance and education of my children. If an annuity be given to one for life, and after his death to ano- ther simply (k), or to one for life with power to him to give it after his death to another or to several others or the survivors or sur- vivor (l), unless there are some other circumstances to vary the (a) Tui-ner /'. T., Amb. 782 ; Stafford 564, 570 ; see also Soames v. Martin, V. Buckley, 2 V. 179. 10 Si. 287. (h) Ibid. {g) Ibid. (c) Taylor r. Martindale, 12 Si. {h) AVilson v. Maddison, 2 Y. & C. 158. C. C. 372. {: T. — VOL. I. 51 802 LEGACIES. Ashburner v. Macguire. If the Court once infers from the will that the testator intended to give a sum certain per annum in perpetuity, the absence of any direction as to the particular part of the testator's property to be segregated or appropriated to meet it is immaterial, as the Court will take care that a sufficient part of the testator's property is set apart for that purpose (a). The question often arises as to whether an annuity is a charge upon the corpus of a fund, or is payable only out of the income ; this is a question of intention. Where there is a direct legacy of an annuity, charged on the general estate, the annuitant is entitled to have that made good, not only out of the income, but out of the capital, unless there are words sufficient to cut down the claim of the person to the income only, nor can the residuary legatee take anything until all the legacies (in which annuities are included) have been provided for (6). And it is immaterial that the fund directed to fall into the residue, on the death of the annuitant, goes not to the residuary legatees, but to other persons (c). Where a testator directs a sufficient s'.im to be set apart in order to produce an annuity, which is afterwards to fall into the residue, if he does not leave sufficient assets {: Eq. 239. Sutton, 19 B. 556; Howarth r. Eoth- (A-) Be Tucker, (1893) 2 Ch. 323; well, 30 B. 516; and see cases cited, Hambro v. H., (1894) 2 Ch. 564. ibid., p. 519 (n.). SPECIFIC LEGACY ADEMPTION. S05 Ashburner v. Macguire. rents and profits, until the arrears of the annuity are paid, but not a charge upon the corpus (a). A specific sum to be spent in tlie purchase of an annuity, whether the annuity be in possession or reversion, will vest in the annui- tant (h), and under a general direction for lywrcltase, the annuitant is entitled to receive the money necessar}' (c), although tliere be a declaration in the will that he shall not be allowed to receive the value {d), or there be a discretionary trust to apply the annuity for the benefit of the annuitant in case of incapacity (e). On a simple gift of legacies and annuities abating, donees may claim apportioned values of annuities (/). Contra where a fund is to be set aside and fall into residue {g), or the annuity is subject to determination Qi) ; and see post, pp. 842, 843. A direction that an annuity should cease on alienation, or the value not be paid to the donee, is (except in the case of a married woman) inoperative if there is no gift over (i). Where tliere is a gift over in case of bankruptcy or alienation, it is difficult to recon- cile the cases. In Day v. D. (k), the gift over seems to have been treated as immaterial by Kindersley, V.-C, and the decision of Hall, V.-C, in H'unt-Fouhton v. Fiirher (/), apparently proceeded on the same footing, though in that case there was a direction to purchase a Government annuity in the name of the annuitant, and the V.-C. De G. & S. 357; Can- r. Ingleby,ib., p. 362; Long v. Hughes, ib., p. 364; Junes V. Mitchell, 2 Ph. 710; Heath i\ Nugent, 29 B. 227 ; and as to the mode of valuation. Potter i\ Smith, 8 Eq. 683 ; Dewes v. Newington, 52 L. T. 512; He Wilkins, 27 C. D. 703, infra, p. 861. {g) Wright v. Callender, 2 De G. M. tS: G. 652 ; and see Be Grant, 52 L. J. Ch. 552; Miner ?■. Baldwin, 1 Sm. & G. 522. (A) Carr i\ Ingleby, supra ; Gratrix ('. Chambers, 2 Gif. 321 ; Uattoii c. May, 3 Ch. D. 148. (?) See per Kel-ewic}i,J., in Re Mab- bett, Pitman v. Ilolborrow, (1891) 1 Ch. 707 ; and see the older cases, Day r. D., 1 Drew. 569 ; Woodmeston v. Walker, 2 Puss. & M. 197 ; He Browne's Will, 27 B. 324. (A-) 1 Drew. 569. (0 3 C. D. 285. (a) See Booth v. Coulton, 5 Ch. 684 ; Philipps V. P., 8 B. 193; Forbes v. Eichardson, 11 Ha. 354; Phillips a. Gutteridge, 3 De G. J. & S. 332 ; Salvin V. Weston, 14 W. E. 757 ; Taylor v. T., 17 Eq. 324 ; Be Mason, Mason i\ Eobinson, 8 C. D. 414; Wormald k. Muzeen, 17 C. D. 167. {b) See Yates r. Compton, 2 P. W. 309 ; Barnes v. Eowlej', 3 V. 305 ; Bayley /'. Bishop, 9 V. 6 ; Palmer r. Craufurd, 3 Swans. 482 ; Smith v. King, 1 Euss. 363 ; but see Be Draper, infi'a, p. 807. (c) Ford V. Batley, 17 B. 303; Yates /'. Y., 28 B. 637 ; and see Palmer i\ Crairfurd, 3 Swans. 482, 488 ; Dawson V. Hearn, 1 Euss. & M. (i06 ; Wood- meston 0. Walker, 2 Euss. & M. 197 ; Day V. D., 1 Drew. 569. (d) Stokes V. Cheek, 28 B. 620 ; Be Mabbett, (1891) 1 Ch. 714. (e) Be Browne's Will, 27 B. 324. (/) Wroughton r. Colquhoun, 1 80G LEGACIES. Ashburner v. Maeguire. seems to have treated this, when so purchased in his name, to have been necessarily an absolute interest. On the other hand, in Power V. Hayne (a), Malins, Y.-C, disapproved of the decision in Day v. D., and in Hidton v. May (6), where there was a gift over in ca^e of alien- ation, the same Judge held that the annuitant was not entitled to the value of the annuity, and in Roper v. R. (c), he gave his explanation of the decision as follows : " I laid down the rule on that subject in the recent case of Hatton v. May, that where there is merely a direction that the widow shall not have the value of her annuity, that goes for nothing ; but in order to prevent her having the value, there must be a gift over " ; and this rule is referred to, apparently with approval, by KekeivicJi, J., in the case of Re Mahbett, Pitman, V. Holborroiv (d), where, however, he seems to consider tlint the decision of Hall, V.-C. in Hunt-Foidston v. Furber (supra), can be reconciled with the other decisions. See also Re Dra'pers Trusts (e). The decision in each case would probably depend on the answer to the question, whether the gift comes within the rule that, under the direction to purchase the annuity, the annuitant is entitled to take the sum to be invested in the purchase, and consequently the gift is to be treated as an absolute gift of such sum (in which case a direc- tion that it shall go over if the legatee alienates comes within the rule that a gift over in case of alienation of an absolute interest is void, as repugnant) (/) ; or whether the gift is to be treated as a life estate (in which case the gift over on alienation would not be void, as repugnant) ; probably, having regard to the decisions, the latter would be the view which would be followed. If the annuity comes within the rule that the annuitant, if living, would be entitled to take the capital to be expended in the purchase, it has been held in several cases that if he dies after the testator, but before the pui'chasc is effected, his personal representatives would be entitled to the money directed to be laid out in the purchase (g). So where the direction was to purchase out of proceeds of sale of real estate to be sold after the death of the tenant for life, and the annui- tant died during the lifetime of the tenant for life (It). In Day v. D. (supra) the annuitant had died in the lifetime of the tenant for life, but, as noticed above, this case was disapproved of in Power v. Hayne (i), because of the gift over. (a) 8 Eq. 2G2. C. D. 176. (6) 3 C. D. 148. (g) Barnes v. Eowley, 3 V. jun. 305 ; (c) 3 C. D. 714. Palmer v. Craufurd, 3 Swans. 482 ; (d) (1891) 1 Ch. 707, 713. Pearson v. Dolman, 3 Eq. 315. (e) 58 L. T. 942. (h) Bailey v. Bishop, 9 V. jun. 6. If) Br Dugdalc, Eugdale v. J)., 38 (/') 8 Eq. 262. SPECIFIC LEGACY ADEMPTION". 807 Ashburner v. Macguire. But Id a case where there was a bequest by will of annuities charged on land, and subject thereto a devise on trust for sale, and a discretionary power given by codicil to purchase Government annui- ties for the annuitants, it was held that the legal personal represen- tative of an annuitant who died after a contract for sale by the trus- tees, but before completion of the sale, was not entitled to the sum that would have been spent in purchasing his annuity, but that the representatives of an annuitant who died after completion were so entitled (a). So in Re Drapers Trusts (h), testator gave a sum after deatii of wife to purchase an annuity for J. D. ; if J. D. should alienate or go bankrupt, annuity to fall into residue. J. D. died in lifetime of tenant for life. It was held that his representative was not entitled to the annuity. And where a testator does not direct an annuity to be bought, but has entered into a covenant to pay, or directs the payment of one out of his estate, the annuitant is not entitled to have the estate or a portion of it sold for the purpose of obtaining payment of the value of the annuity in a gross sum (c). And where there is a discretionary trust to purchase an annuity, advances to the legatee from time to time may be made by the trustees : see Messcena v. Carr (d). There a bequest was made of a share of a residue to trustees upon trust to pay the income to C. for life, with a gift over of the principal, and a proviso that it should be lawful for the trustees, if they shoidd think it desirable, to purchase with such share for the benefit of A. an irredeemable annuity. No annuity was purchased, but the acting trustee paid A. various sums, exceeding the income of the share, and amounting to three-fourths of the capita). It was held by Lord Romilly, M.R., that the discre- tionary power was pro taato well exercised, and that the remainder- men were on the death of C. only entitled to so much of the share as was undisposed of. As to the date at which the payment of an annuity commences, see post, pp. 858, 859. 6. Whether Bequests contained in a Residuary Clause are Specific or General. Bequest of a Residue when Specific. A bequest of personalty in a residuary clause, even though com- prised in the same sentence with a general devise of realty (which is specific) is ordinarily a general and not a specific legacy (e), and, as («) Be Mabbett, Pitman v. Holbor- ('/) 9 Eq. L>(K). row, (1891) 1 Ch. 707. (c) Howe c. Earl of Dartmoutli, 7 {!>) 5S L. T. (X. S.) 042. V. jun. 138, aute, p. 68. {<:) Yatos r. Y'., 2S l!. ():J7. 808 LEGACIES. Ashburner v. Macguire. we have before seen, it is not the less general because it is either preceded or followed by an enumeration of some of the particular articles of which it may consist, ante, p. 788. If, however, the bequest be restricted to property in a particular locality it will be specific. Thus, if a testator bequeaths " all the residue of my personal estate in the island of Jamaica" («), in a particular county (6), or room (c), or at a particular place (cZ), the legacy will be specific. A fortiori, where there is a gift of plate, linen, and furniture in a particular house, or which shall be therein at the time of the testator's decease {e). The question, whether a bequest contained in a residuary clause is specific or general, is of much importance where the attempt is made to shift the primary liability of the personalty upon realty (/) : and where the personal estate comprised in such clause consists of property of a wasting nature, as long annuities and leaseholds, and is given to persons in succession, see Howe v. Earl of Dartmouth, ante (p. 68). 7. Effect of the Wills Act upon Specific Bequests. Previous to the late Wills Act(/i), a bequest of "my stock," " my shares," or " the black horses I now have," would be specific, and would pass only such stocks, shares, or black horses as the testator possessed at the time when he made his will, the time of the making of the \vill in absence of a contrary intention expressed by the testator, being the time for ascertaining the extent of the specific bequest (i). Where, however, even previous to the Wills Act, bequests were made rendering the time for the ascertainment of the legacies the time of the death of the testator, they were nevertheless specific. Thus a bequest of " any stock-in-trade of wines and spirituous liquors which I shall be possessed of at the time of my death " {k), of " all the horses which I may have in my stable at the time of my (.() Xisbett V. Murray, 5 Y. 149 ; vaynes, 4 Bro. Ch. 537. Eobinson v. Webb, 17 B. 260. (/) See Ancaster v. Mayer, ante, (b) Moore v. M., 1 Bro. Ch. 127. p. 1. {<■) Green u. Symonds, 1 Bro. Ch. {h) 1 Vict. c. 26. 129 (n.). (0 Kirby v. Potter, 4 V. 748 ; (d) Sayer r. S., 2 Yern. 688, S. C, Humpbreys v. H., 2 Cox, 184 ; Miller Pr. Ch. 392. i'. Little, 2 B. 259. (e) Gayrer. G.,2Yeni. 538; Shafts- (A-) Stewart v. Denton, 4 Doug, buiy V. S., ibid., 747 ; Land v. De- 219. SPECIFIC LEGACY ADEMPTION. 809 Ashburner v. Macguire. death " (a) were specific. It is true that in Farrott v. Worsfold (b), where the testator gave 1500/. Five per Cents., and all other his stocks that he might be possessed of at the time of his death, Plumer, M.R., held that such a legacy was not specific, upon the ground that you cannot have a specific legacy that was not capable of ademption. This case, however, must be considered as overruled, and contrar}^ to the whole current of authorities, and, as observed by Jessel, M.R., "A specific legacy cannot be subject to ademption when the time of the death is the time for the ascertainment; for a man does not live after his own death, and therefore there is no period at which ademption can take place " (c). The question has been frequently raised how far the Wills Act {d) has affected specific bequests. Now by the Wills Act (e) it is enacted "that every will shall be construed with reference to the real and personal estate comprised in it, to speak and take efect as if it lead been executed iinmediately before the death of the testator, unless a contrary intention shall appear by the wUl " (sect. 24). The cases upon this subject are very fully discussed in the important case of Botliamley v. Sherson (supra). There a testator, by will in 1869, made a bequest of all " my shares of stock in the Midland Railway Company " to trustees upon certain trusts. Jessel, M.R., held that it was a specific legacy. "No doubt," said his lordship, "one class of specific bequests is affected by the Act, namely, the class of specific bequests described as generic, that is, a specific bequest which points to a class of objects given by the testator, and which from their nature would not naturally be referable to the date of the instrument, A good illustration of this class of bequests is a gift ' of my household liirniture.' There are very few persons not in artlcido mortis who would not expect that some articles of household furniture would wear out, or be bioken, or otherwise be parted with, and be replaced by other articles of a similar kind. It would not be natural to assume that a man giving that kind of legacy intended to restrict it to the property of that description which he hcxd at the date of the will. It has been held in Goodlad v. Burnett (/), and in some other cases to which reference has been made, that in cases of that {(() Foutaiiie r. Tyler, 9 Price, 98 ; Eq. 309, 310. and see Stephenson v. Dowson, 3 13. (^0 1 Yict. c. 2(5. 342. (e) 1 Vict. c. 26. (h) 1 J. & W. o94. (/) 1 Kay & J. 341. {(■) See Bothamley v. Sherson, 20 8 1 LEGACIES. Ashburner v. Macguire. description tlie nev\- law brings down the specific bequest to the date of the death ; in other words, the new hiw makes a specific bequest of ' my furniture,' to mean not ' the furniture which belongs to me at the time of making this my will,' but ' the furniture which shall belong to me at the time of my death.' Legacies expressed in botk ways tuere specific before the Wills Act, and they equally remain specific now. On this point there is an authority with which I entirely agree, but which would be binding upon me even if I did not agree with it " («). The case of Everett v. E. (b), proceeds upon the same principle. There a testator, after reciting that his son was " novj indebted " to him in various sums of money in respect of advances, and that he was desirous that liis son should be released from the said several sums, and that the securities held in respect thereof should be given up to him, bequeathed to his son all the aforesaid several moneys, with the securities then in the testator's custody relating thereto, and also released him from all claims in respect of the aforesaid moneys, and " all other moneys due from him to the testator." By a codicil the testator released the son from another specified debt for moneys misappropriated by the son. It was held by the Court of Appeal, reversing the decision oi Malins, V.-C. (c), that the will must be construed as speaking from the death of the testator, and that the son was released from the repayment of money advanced to him by the testator, between the date of his codicil and of his death. So in a bequest of " all my ready money, bank and other shares, freehold property * * * and any other property I may now possess," it was held by Lord Romilly, M.R., that personal estate acquired subsequently to the date of the will passed by the bequest {d). Seciis, if the words referring to present possession or title are an essential part of the description. Thus in JRe Champion, Dudley V. Champion (e), per North, J., there the will devised lands " now in my own occupation;" by codicil testator confirmed his will ; lands purchased between date of will and codicil were held to pass. (a) See also Lady Langdale v. 4 Kay & J. 673 ; Re Old, Dickinson Briggs, 8 De G. M. & G. 391 ; Trin- v. D., 9 C. D. 667, 12 C. D. 22 ; and der V. T., 1 Eq. 695 ; Morrice v. Ayl- Re Cliampion, Dudley v. Champion, mer, 10 Ch. 148; Douglas v. D., Kay, (1893) 1 Ch. 101. 400 ; Moore v. Madden, 2 Ir. E. Eq. {h) 7 C. D. 428. oil ; Beahan v. B., 3 Ir. E. Eq. 427 ; (c) Eeported 6 C. D. 122. Ferguson v. F., 6 Ii-. E. Eq. 199; (c^) Wagstaff v. W., 8 Eq. 229. Corbet v. C, 7 Ir. E. Eq. 456; Castle (e) (1893) 1 Ch. 101. V. FoX; 11 Eq. 542: Rp Earl's Trust, i SPECIFIC LEGACY— ADEMPTION. 811 Ashburner v. Maeguire. So in Cole v. Scott (a), the testator gave " all the estates of which I am now seized or possessed ;" and used the word "now" in other parts of the will, clearly alluding to the time at wliich he was making his will ; it was held that he had indicated a contrary intention so as to prevent after-acquired estates passing, and it was laid down that the effect of the Wills Act is to extend to real estate the same rule of construction as to the time from which the will is to be construed as speaking as that which before the act was applied where the gift was of personalty. So a devise of " my Quendon Hall estates " was confined to estates answering the description at the date of the will (b). In Re Bridger, Brampton Hospital v. Leivis (c), Davey, L.J., said, " If the words describe a particular property which the testator had at the date of his will, that and that alone will pass. This was the decision of this Court in Re Portal and Lamb (d), where the Court differed from Kay, L.J., in the Court below, not on the law but on the construction of the language. Rut where the specific gift is generic, as ' all my lands in the parish of Dale,' it will by force of the Wills Act pass all the testator's lands in that parish at the time of his death." But where there is a bequest of a distinct and specific thing, and not of a genus, there is a sufficient indication of a " contrary intention " to exclude the operation of the rule established by the 24th section of the Wills Act, and to limit the operation of the wnll to the state of thino-s existino^ at the date of the will. Hence, if a testator, after bequeathing a specific thing, as stock, or a horse, or a picture, were to sell it, the legacy being thereby adeemed, nothing would pass to the legatee, although the testator before his death purchased similar stock, a horse or a picture of the same kind : see Re Gibson (e). There a testator being at the time possessed of 1000^. "guaranteed stock" in the North British Rail- way, bequeathed to his son " my one thousand North British Railway Preference Shares." After making his will, he sold his North British guaranteed stock, and died possessed of shares and stock in the North British Railway, acquired by several successive purchases, exceeding the amount bequeathed to his son. It was held by Wood, V.-C, that the bequest, being of a specific tiling, which had been adeemed, and was not in the testator's possession at the time of his death, a contrary intention, so as to exclude the (rt) 1 M. & G. 518. (c) (1894) 1 Ch. 302. {h) Webb /•. Byng, 1 Kay & J. {d) 30 C. D. 50. 580. ' ('') 2 Eq. G60. 812 LEGACIES. Ashburner v. Macguir.. operation of 1 Vict. c. 26, s. 24, sufficiently appeared upon the will, aud that the son was not entitled to have his legacy satisfied out of the North British Railway shares and stocks in the testator's possession at the time of his death. " Suppose," said his Honor, " a man to have, at the date of his will, a picture of the Holy Family, by some inferior artist, and to give by his will 'my Holy Family.' He afterwards disposes of this picture, and subsequently acquires by purchase or gift a very much better one, on the same subject, painted by an eminent artist. Would it not be a monstrous construction to hold, that the picture existing in the testator's possession at the time of his death would pass ? When there is a clearly indicated intention upon the face of the will, to give the single specific thing and nothing else, it would be a very narrow construction of the Avords of section 24 of the Wills Act, to hold that you must sweep in everything to which the words might be held to apply, without the slightest reference to the state of things existing at the date of the will. It is true that the testator had not at the date of his will 1000 shares, but 1000 guaranteed stock. But he had nothing else to which the words of the will could be applied, and no one could doubt that this stock was the thing pointed out by the will. After the date of his will he sold this lOOOL stock, and purchased not ttno ictu, but bit by bit a number of other shares or stock. This bit-by-bit purchase would not come within the reasoning of Lord Harchulcke in Avelyn v. Ward {a), as being a substitution of one entire fund for another. On the contrary, it was rather like the purchase of some totally different article * * * I adhere to my view, that where there is a distinct reference to a distinct and specific thing, and not to a genus, there is sufficient indication of ' a contrary intention,' to exclude the operation of the rule established by the 24th section of the Wills Act, and liniit the operation of the will to the state of things existing at the date of the will. In this case, the testator, at the time of his death, had not this specific stock in any shape. He had parted with it, and acquired by subsequent purchase a much larger number of shares. These subsequent purchases were not in any shape a replacing of the original fund, and there is nothing to lead the Court to suppose that, having once adeemed the specific bequest, the testator had replaced the identical thing. He has distinctly referred to one thing in his will, which was no longer in existence at the time of his death : that thing, and that only, can be considered as the subject of the bequest. I must, therefore, hold {a) 1 V. sen. 430. J SPECIFIC LEGACY ADEMPTION. 813 Ashburner v. Macguire. that the claim of the son to have his legacy satisfied out of the New- Guaranteed North British Stock existing at the testator's death, fails " (a). In Castle v. Fox (h), Malins, V.-C, says : " Suppose a testator has a house in Grosvenor Square, and he says in his will, ' I give my house in Grosvenor Square,' then suppose he sells the house he had at the date of his will and buys another in Grosvenor Square, my opinion is, and I have not a doubt about it, that under that general description, ' my house in Grosvenor Square,' the house would pass. The Legislature says : ' I must read the will as if it were made immediately before the death of the testator.' Doing that, I find he has a house in Grosvenor Square, and that must necessarily pass." But these dicta are inconsistent with the decisions in Re Gibson (supra), Cole v. Scott (supra), and in Portal v. Lamb (supra) (c). In the latter case the Court of Appeal held that the words of the section did not prevent the Court from giving effect to what appeared to be the meaning of the devise in the will. There the question arose between specific and residuary devisees. The testator devised to G. for life his cottage and all his land at S., and made a residuary devise of his other real estate. At the date of his will he was possessed of a cottage and 22 acres of rough land at S. He subsequently purchased a large house and other land at S. It was held by the Court of Appeal that the cottage and 22 acres of rough land passed by the specific devise, the large house and other land at S. under the residuary devise. Lindley, L.J., further said: "Section 24 of the Wills Act which provides that a will shall speak as to the real and personal estate comprised in it from the day of the testator's death, leaves open the question whether a particular property passes l)y the specific or the residuary devise." But nothing will pass as a specific legacy, unless the testator has actually acquired it before the time of his death. Thus, if a testator, who has made a specific bequest of all the money in the public funds of which he may die possessed, gives instructions to his broker to purchase stock, but no stock is purchased until after the death of the testator, it will not pass by his will, even though the broker may in his books have given him credit for the stock (c/) ; but if the broker had entered into a contract for the purchase of the stock before the testator's death, the vendor would be held a trustee of the stock for (a) See also Pattison v. P., 1 My. & p. 205, see at ji. 207. K. 12; Sidney r. S., IT Eq. 65, sed {h) 11 Eq. 642. vide Castle r. Fox, 11 Eq. 542; see {<•) 30 C. D. 50. also per Kay. J., in Re Gray, 36 C. D., \d) Thomas v. T., 27 B. 537. 814 LEGACIES. Ashburner v. Macguire. the testator, and it would consequently pass by his will (a). The result would be the same where the broker was the owner of the stock, and gave the owner credit for the amount in his books (b). And see as to the effect of sect. 23, post, p. 827 ; and as to property subject to a power of appointment, post, pp. 827, 828. 8. Legatee's Right of Selection. If a testator bequeaths to a legatee a given number of articles, forming part of a stock of articles of the same description ; as, for instance, if he has twenty horses in his stable, and bequeaths six of them, or if he has three houses in a street, and he devi^-es two of them, the legatee has the right of selection (c). Upon the same principle, if a testator has shares in an undertaking, part of which are fully paid up, and part partially paid up, and he bequeaths a certain number of them specifically, the specific legatee has the option of selecting those shares that are fully paid up, even although the shares are given to trustees in trust for the lega- tees (d). A gift to a legatee of such parts of property of a particular kind, as for instance plate, as he may signify his intention to possess, in effect amounts to a gift of the whole, for it has been said that, follow- ing the words of the will literally, the legatee might take the whole of the plate with the exception of one article probably of no value, and then the maxim cle minimis would apply (e). 9. Gifts to he applied (1) for Particular Ohject, or (2) at Discretion for Benefit of Legatee. As regards gifts to trustees, (1) to apply in a particular mode directed by the testator for the benefit of the legatee, or (2) with discretion- ary power to apply for the benefit of the legatee, if no other person is interested, it has been frequently held the legatee or his assigns can claim the property free from the discretion or restrictions. As to (1), the principle is stated by the L. C, in Lassence v. Tier- (a) Thomas v. T., 27 B. 541. (d) Jacques r. Chambers, 2 CoU. (b) Ellis V. Eden, 25 B. 482. 435 ; and see Millard v. Bailey, 1 Eq. (c) Jacques v. Chambers, 2 CoU. 378. 435; Eichards v. E., 9 Price, 226; (e) Ai'thur r. Mackinnon, 11 CD. Kennedy t'. K., 10 Ha. 438; Hobson 385, approved C. A.; i?e Sharland, r. Blackburn, 1 My. & K. 571 ; Duck- Kemp v. Eozey, W. N. (1896) 62, 74 manton c. D., 5 H, & N. 219, 29 L. J. L. T. 664, distinguishing Kennedy v. Ex. 132; Tapley v. Eagleton, 12 K., 10 Ha. 438; and see Cooke v. C. D. 683 ; and Asten v. A., (1894) 3 Earrand, 7 Taunt. 121. Ch. 260. SPECIFIC LEGACY ADE.MPTIOX. 815 Ashburner v. Macguire. iiuy (a), in the following words : " If a testator leave a legacy abso- lutely as regards his estate, but restricts the mode of the legatee's enjoyment of it to secure certain objects for the benefit of tlie legatee upon failure of such objects, the absolute gift prevails, but if there be no absolute gift, as between the legatee and the estate but particular modes of enjoyment are prescribed, and those modes of enjoyment fail, the legacy forms part of the testator's estate as not having in such event been given away from it." Wood, V.-C., in Re Skinners Trusts (6), states the rule thus : " There is no doubt that if the main object of the gift is to benefit the person who is to take, and no other person is interested in the bequest, in such a case, if the gift cannot be applied to the purposes specified, or if the legatee prefers to have it otherwise applied, he has the option of saying that, although the testator has expressly desired thatthe benefit should be conferred in a particular form,and he does not like to take it in that manner, he may ask the Court to give him the property absolutely. On the other hand, if there is another purpose distinctly and clearly expressed, independent of the object of benefit- ing the legatee and beyond the mere intimation of a wish as to the mode in which the benefit shall be conferred there, it is settled the principle does not apply." See also per Stirling, J., in the case of Be Johnston, Mills v. Johnston (c). See also Gott v. JS^iirne (d), Talhot v. Jevers () Saunders v. Vautier, Or. & Ph. (/) 1 John. & n. 102. 240; Gosling v. G., John. 272; Ilar- (g) 1 Vem. 255. bin v. Masterman, (1894) 2 Ch. 184, (/') 2 Vem. 431. aff. dom. proc. nom. Wharton v. Mas- (0 5 Y. 461. terman, (1895) A. C, p. 186. and cases (./) T. & E. 207. there cited. {k) 16 Si. 309. 816 LEGACIES. Ashburner v. Macguire. In Green v. Spicer (a) and Yoiingliudxtnd v. Gishome (h), there were directions for application of funds for the benefit of the legatee at the discretion of the trustees, and so that the legatee should not have power to mortgage or alienate, and it was held that on the bankruptcy of the legatee the property passed to his assignee in bankruptcy. See also Piercy v. Roberts (c), Snoiudon v. Dales (d), and Godden V. Crowhurst (■ Ashby, (1892) 1 Q. B. (e) Ed. 7 (1890). 872. (/) Ed. 8 (1885), vol. 2, 558. (c) 39 W. E. 472 ; 64 L. T. 736 ; 60 {(j) Ed. 14 (1870), p. 466. L. J. Ch. 341. {Ji) 3 App. Cas. 795. i SPECIFIC LEGACY — ADEMPTION. 819 Ashburnei' v. Macguire. shares of the cliildren ; and it was declared that during such post- ponement the children should only receive the income for their lives, or for such time as the trustees should think fit ; that the capi- tal might be settled for the behoof of the children, grandchildren, or their lawful issue ; and it appears that the trustees, by two deeds executed after action brought, settled the disposal of the shares by giving a life-rent to the children, and making it an alimentary pro- vision for them. Although there are expressions in the judgments which indicate that, so far as regards at least some of the powers, the Scotch and English law was the same, the decision seems to have turned on the deeds making an alimentary provision of the income, and neither that case nor the decision of Kekewich, J., in Re Bullock can be taken as an authority for saying that where there is only one legatee interested, trustees could apply, according to English law, a fund for his maintenance after he had become bankrupt, although, apparently by Scotch Law, creditors could not arrest income subject to such a trust in Scotland. Where a discretion is given to trustees to apply money for a cer- tain specified purpose, the Court will inquire whether the occasion for the gift has arisen (a) ; and if the trustees refuse to exercise their discretion, although there is a gift over of so much as is not applied for the benefit of the legatee, the lultole fund may be held to belong to the legatee (6). 10. Ademption of Legacies. A general legacy, as it is payable out of the personal assets generally, will not, if they are sufficient for that purpose, be liable to ademption, except in the case of a legacy to a child where a subse- quent portion is given by the parent or person in loco jxcrentis. As to which, see note to Ex parte Pye (c). The claims of a specific legatee will be defeated, if the thing specifically bequeathed to him be not in existence at the time of the testator's decease ; — the legacy, to use the common expression, being adeemed. It must not, however, be supposed that the ademption of a specific legacy is in principle in any way similar to the ademption of a general legacy by a portion ; for, in the latter case, all depends upon the intention, either express or presumed, of a parent or one in (a) Lewis r. L., 1 Cox, 162: Eobin- (b) Gucle r. "Wortliington, 3 De G. son i\ Cleator, 15 V. 526 ; Cowiier r. & Sm. 389 ; Gough /■. Bult, 16 8i. Mantell, 22 B. 231; Sanderson's 45 ; cf. ^p Johnston, (1894) 3 Ch. 204. Tnists, 3 Kay & J. 497 ; Be Ward's (c) See Vol. 2, " Satisfaction." Trust, 7 Ch. 72: 52 2 820 LEGACIES. Ashbumer v. Macguire. loco iDarentifi to substitute a portion for a legacy ; in the former, the intention of the testator is immaterial. According to the rule, as laid down by Lord Thiirlow in the principal cases, the question in the former cases will be, whether the legacy be specific, and, if so, whether it is in existence at the testator's death. In a subsequent case, Lord TJiurloiv again repeats the rule laid down in the principal case, in iHiiguage strongly condemnatory of those authorities which proceeded upon the notion, that the animus adimendi should be considered (a). A specific legacy of goods at a particular place, will, in general, be adeemed l)y their removal. Thus, in Green v. Sijmonds (b), the testator bequeathed to C. all his books at his chambers in the Temple ; he afterwards removed the books into the country, and it was held tliat the removal effected an ademption of the legacy (c). The like result will follow if the goods are removed by an agent, wdth the testator's approbation (d). A legacy of specific chattels will also be adeemed upon their total loss or destruction during the life of, or at the same time as the death of, the testator, even although they may have been insured, and their value recovered from the insurers, for the insurance money will vest in the executors as part of the residuary estate (e). A mere temporary or accidental removal may not amount to an ademption. Thus, in Land v. Devaynes (/), a testator gave all his plate and linen in his house in S. (with the lease) to his wife. He had but one set of plate and linen, which was usually removed, with the family, from house to house. The plate happened to be at B., the country house, at his death, yet it passed to the wife. So likewise, under a bequest of household furniture, pictures, and books, wliich might be at the testator's decease in, upon, or about his mansion, it has been held, that pictures removed from the mansion, and in the hands of a picture- cleaner to be cleaned, and books sent to be repaired, passed, but not articles purchased for the mansion, and not sent home at the testator's decease {g). (a) Stanley r. Potter, 2 Cox, 180. & Sm. 343. (6) 1 Bro.'cii. 129. (/) 4 Bro. Ch. j37. (c) See also Heseltine v. H., 3 ('^o tanto (/). Under particular circumstances the receipt of a debt has not been held to amount to an ademption (g). It has been held that a bequest of a debt may be in its terms so comprehensive as to extend to the fund in its altered state after it has been received by the testator (h). Where as in the principal case, stock specificallj^ bequeathed, has subsequently been either wholly or partially sold out by the testator, the legacy will be adeemed either wholly or j)ro tanto {i). (a) Be Bridle, 4 C. P. D. 336. of Tliomond v. Earl of Suffolk, 1 P. (6) See Smallman v. Goolden, 1 W. 462, 464; Pulsford v. Hunter, 3 Cox, 329, cited in 17 L. E. Eq. 67. Bro. Ch. 416. (c) Everett v. E., 7 C. D. 428. (A) Clark v. Browne, 2 Sm. & G-. {d) 38 C. D. 373. 524, but tiiis case was disapproved in (e) Sidney v. S., 17 Eq. 65. Harrison v. Jackson, 7 CD. 339; and (/) Jones V. Southall, 32 B. 31; see Manton v. Tabors, 30 C. D. 92. Makeown v. Ardagb, 10 Ii-. E. Eq. (/) See Sleech v. Thorington, 2 V. 445. 560 ; Drinkwater v. Falconer, 2 V. () Ibid. (d) 1 Vict. c. 26, s. 23. {(•) Eudstone v. Anderson, 2 V. 418; (e) 12 Si. 139. Hone c. Medcraft, 1 Bro. Ch. 261 ; (/) Shelford, E. E. Statutes, 1893 Coppin V. Pernyhough, 2 Bro. Ch. ed., p. 421 ; and see per Jessel, M.E., 291; Colegrave v. Manby, 6 Madd. iu Blake r. B., 15 0. D. 487; Be 72; 2 Euss. 1:38; James v. Dean, 15 Clowes, (1893) 1 Ch. 214. V. 236 ; sod vide Digby v. Legard. 2 (). Where executors improperly detain a specific legacy, the legatee will not be allowed to suffer from its depreciation. Suppose, for instance, a horse were bequeathed to A., and the executors were to keep the horse until he were worn out, and then offer him to A., he would not be obliged to take him, as he would be entitled to the value of the horse from the time when the horse was used for any purpose, just in the same way as, if the horse had been sold and the price applied in payment of debts, the legatee would have been entitled to the value with interest from the moment it was used for any other purpose (c). Upon the same principle, where a debt due on a promissory note was specifically bequeathed, and the executors, thinking that the legacy was a pecuniary one, instead of delivering the promissory note to the legatee, called in the debt, and the money was paid into Court, and invested in the purchase of stock, which afterwards became depreciated in value, Lord Alvanley held that the legatee was entitled to the sum due upon the note at the time it was paid into Court, wdth interest at 4/. per cent, from that time. "The legatee," said his Lordship, " had a right to the specific legacy. If the assets did not want it, she had a right to have it delivered up. She was not bound to lay it out in the funds : if she had done so, she would have a right to the rise, and be liable to the fall. Instead of that, the executors insisting it should not go out of Court, it was paid in and laid out in stock. It is no more than the case that was put in argument of a legacy of a horse, which the executors refused to let go, lest there should be a deficiency of assets, and having used and worked the horse a considerable time, afterwards offered to return him ; the legatee then may insist upon the value " {d). So, if the bequest were of specific stock, and it happened to be sold out by the executor, when there was no necessity for the sale to («) Ri- Box, 1 Hem. & M. bo'l. (e) Chaworth v. Beech, 4 Y. 563. (6) Ibid. {d) Ibid. 567. 832 LEGACIES. Ashburner v. Maeguire. pay debts, the equity of the legatee is to have the stock replaced according to its value at the end of a year next after the testator's death, since the fund, if not sold, ought then to have been transferred to the legatee (a). Where a testator bequeaths a policy of assurance on the life of another to persons in succession, it seems that the proper mode of paying the premiums would be to raise them by way of charge upon the policy, so that those who would eventually become entitled to the benefit of the policy, would bear the burden to the extent of their respective interests (6). A gift of a specific legacy carries with it everything incident to the subject-matter of the gift. Thus the gift of the amount of a bond will carry the interest accrued due thereon during the life of the testator (e) ; but the interest will not pass where the gift is confined to the principal, as where the testator gives 300^., due upon a bond (d). Moreover as a genei-al rule, not only interest or dividends but also bonuses which accrue due after the death of a testator, upon shares specifically bequeathed by him, belong to the specific legatee (e) ; even although they may arise in consequence of the fraudulent retention of moneys which would have increased the dividends of any former owner, whether he be the testator or any person taking from him (/). But where a dividend or bonus on shares has been declared during the life of the testator, it will not pass to the specific legatee, although payable after the death of the testator (g). A bequest of 2000?., " insured on my life " with the H. Company, was held by Roniilly, M.R., to pass a bonus due at the testator's death (h). Upon the same principle, the profits of a partnership made during a conventional period, which Avas wholly included in the testator's lifetime, will be considered to be capital belonging to the testator's (a) Morley v. Bh'd, 3 V. 629. 460. (h) Macdonald t'. Ii-vine, 8 C. D. 101, (/) Ibid. And see Edmondson v. 120. Crostliwaite, 31 B. 30 ; The Carron {(•) Harcoui-t v. Morgan, 2 Keen, Co. v. Hunter, 1 II. L. Sc. App. 274. 362. (fZ) Roberts t'. Kuffin, 2 Atk. 112; {■. Elam, 1 Eq. 122. 188, 35 B. 594. {d) Plumbe v. Xeild, 29 L. J. (X.S.) (6) Bates v. Mackinley, 31 B. Ch. 618. 280. (e) 18 Eq. 697. (c) Ibbotson V. Elam, 1 Eq. 188; (/) See iZe Ezekiel Barton s Trust, 5 Browne v. ColUns, 12 Eq. 586 ; Gow Eq. 23S. W. & T. — VOL. I. 53 834 LEGACIES. Ashburner v. Macguire. resolution may not be at variance with the deed of settlement of the company (a). The case of Bouch v. Sproule (b), after reviewing a great number of cases, established the principle that what a tenant for life is to take under an ordinary bequest of shares is what is declared as dividends or bonuses in the shape of dividends during the lifetime of the tenant for life. This does not include profits paid on the shares on realisation after a winding-up (c). Where a dividend is declared upon shares during the life of a tenant for life, his representatives will be entitled to it, although it is not paid until after his death ((/), unless the deed of settlement provides that in such case it shall be paid to some one else (e). 12. Apportionment. Ordinarily the income arising from personalty specifically be- queathed as well as property comprised in a residuary gift is appor- tionable under the Apportionment Act, 1870 (/), as between the specific legatee and the estate of the testator (g). The Act has been held to apply to a will executed before the Act, and confirmed by a codicil executed after the passing of the Act (/<,). It has also been held applicable to the will of a testator who died before the Act came into operation (i). A tenant for life, however, may first of all get all the benefit of the old law before the Appor- tionment Act, 1870, and his estate may afterwards get the benefit of the new law under the Act. See Lawrence v. L. (k). There a testator who died before the Apportionment Act, 1870, came into operation, gave the income of his residuary estate which included railway preference and ordinary stock to his wife for life, with remainder to his nephews. The widow claimed under the old law, and received the entire dividends upon the railway stock which were (a) Be Hopkin's Trust, supra. (b) L. E. 12 App. Cas. 385. (c) Be Armitage, (1893) 3 Ch. 337 ; Be Malan, (1894) 3 Ch. 578 ; ^e Tin- dal, 9 Times L. E. 21 ; i?e Northage, 60 L. J. Ch. 488. (d) Wright V. Tuckett, 1 John. & H. 266. (e) CHve v. C, Kay, 600. (/) 33 & 34 Yict. c. 35, ss. 2, 5. (g) Capron v. C, 17 Eq. 288 ; Pol- lock V. P., 18 Eq. 329 ; Daly v. Attor- ney-General, 8 Ir. E. Eq. 595, over- ruling Whitehead v. W., 16 Eq. 528 ; and see Attorney- General v. Daly, 8 Ir. E. Eq. 595. (//) Constable v. C, 48 L. J. Ch. 621 ; Hasluck v. Pedley, 19 Eq. 271 ; Eoseingrave r. Burke, 7 Ir. E. Eq. 187. (0 Be Cline's Estate, 18 Eq. 213; Patching v. Barnett, 28 W. E. 886 ; and see Jones v. Ogle, 8 Ch. 192. (A) 26 C. D. 795. SPECIFIC LEGACY — APPORTIONMENT. 835 Ashburner v. Macgviire. declared, and became receivable after the testator's death. On the death of the widow the residuary legatees claimed the whole of tlie railway dividends becoming payable after the death of the widow ; it was held that the executors of the widow were entitled, under the new law, to an apportioned part of clie dividends up to her death. The word "dividends" in the Apportionment Act, 1870, includes payments by way of bonus, or surplus profits to the shareholders of a public company, even though such payments may be only occasional, and not strictly periodical, and which will therefore oe apportion - able. See Re Griffith (a). There the testator, by his will dated 4th August, 1879, made a specific bequest of ninety shares then standing in his name to his eldest son, and a residuary bequest in favour of all his sons. The testator died on the Sth of November, 1875. And the last division of profits in the testator's lifetime, was made for the five years ending on the 13th of December, 1873. On the 3rd of March, 1879, a bonus consisting of a part of the surplus profits for the five years ending on the 31st of December, 1878, became payable. It was held by Jessel, M.R., that such quinquennial bonus nmst be treated as interest on money from day to day, and the apportionment to take place as from the 31st of December, 1873. Where, however, a testator by a will made before the passing of the act bequeathed the dividends and income eo nomine of his share and interest in a company to one for life, with remainder to another absolutely, it was held by the C. A. in Chancery, affirming the decision of RoTiiilly, M.R. (6), that the bequest included the whole dividends, irrespective of any apportionment (c). The Apportionment Act of 1870 does not, it seems, apply to a bequest of shares in a mere 'private partnership, which, although it may pay what are called dividends, are in reality payments of an entirely different nature, and do not proceed upon the basis of a fixed income recurring from time to time {d). The words " trading or other public companies " in section 5 of the Apportionment Act, 1870, include any public company, but not a private partner- ship (e) ; and it is not essential that it should be an incorporated company (/). (ff) 12 C. D. 6od. 192. See also Re Cox's Trusts, 9 (i) Eeported 14 Eq. 419. C. I). 159 ; Re Griffith, 12 C. 1). (c) Jones V. Ogle, 8 Ch. 192 ; aud 655. see per ilf(Jins, V.-C, in Capron r. C, (c) Re Griffith, Carr v. Griffith, 12 17 Eq. 288. C. D. Ooo. (d) Jones u. Ogle, 14 B. 419, 8 Ch. (/) Ibid. 53 2 836 LEGACIES. Ashburner v. Macguire. And a surplus or bonus pi-ofits, distributable among shareholders of a public company once in five years is apportionable under the Act (a). The Apportionment Acts Avill be applicable, not only as between tenant for life and remainder-man, but also when in certain events an absolute interest is cut down to a life interest (b). The Apportionment Act, 1870, is not applicable to apportion the dividends of funds on which trust money was investeil, at a time dividends to a considerable amount had been earned, and would shortly become payable. See Re Clarke (c). There a testator after the Apportionment Act, 1870, bequeathed a considerable sum to trustees, such sum to carry interest at four and a half per cent, until the same should be paid and appropriated, upon trust with the consent of his wife, to invest the same in certain specified securities, and pay the annual income of the legacy, and the investments thereof, including in such income the interest payable in respect of such legacy to his wife for life, with remainders over. Interest was paid to the widow up to the day when, pursuant to an order of the Court, the bequeathed sum was invested in stocks, on some of which five months' dividend had then accrued, it was held that the Apportionment Acts did not apply, and that the widow was entitled to the whole of the dividends when received upon the purchased stock. Where a testator had bequeathed some railway shares, " and all his right, title, and interest therein," it was held by Lord Langdale, M.K, that moneys which he had paid in advance beyond the calls passed to the legatee (d). As to apportionment in gifts of residue in succession, see p. 857. 13. How far Parol Evidence admissible to determine whether Legacies are Specific or not. Parol evidence of the state and value of a testator's funded pro- perty is admissible, in order to determine whether a legacy is specific or general (e). nereau v. {a) Re Griffith, Can- v. Griffith, 12 WiUiams, C. D. 655. {h) Clive V. C, 7 Ch. 433. (c) 18 C. D. 162. {(l) Tanner r. T., 11 B. 69. (e) See Attorney-General v. Grote, 2 Euss. & M. 690, where Lord Eldon overruled the decision of Sir W. Grant, iI.E., reported 3 Mer. 316 ; Eoys r. I Russ. & M. 689; Fon- Poyntz, 1 Bro. Ch. 471 ; Warren v. Postlethwaite, 2 Coll. 116, 121 ; Collison v. Curling, 9 CI. & Fin. 88 ; Innes r. Sayer, 3 Mac. & G. 606 ; Horwood V. Griffith, 4 De G. M. & G. 700. But see Millard v. Bailey, 1 Eq. 378. SPECIFIC LEGACY — PAROL EV^IDENCE. 837 Ashburner v. Macguire. Where there is a specific bequest jjarol evidence is admissible to show what property there is answering to the description of it ; but if, on that evidence, it appears that there is property correctly answering the description, no evidence can be adduced to show that it was intended to apply to other property («). If a testator makes a specific bequest of a thing which lie once had, but which he had not at the date of the will, evidence is admissible to show how the mistake arose, and the fact that the subject-matter of the bequest had been exchanged for something else before the date of the will, and in such case the legatee will be entitled to a sum of money equal in value to the specific legacy at the death of the testator, although if he had made the exchange after the date of the v/ill the legacy would have been clearly adeemed. See Selwood v. Mildmay (b). There the testator gave 1,250^., part of his Four per Cent. Bank annuities, to his wife for life, and after her decease to several relations. The testator had no such stock at the date of his will, having previously sold it all, and invested the produce in Long annuities. Evidence to prove these facts having been admitted, it was held by Alvanley, M.R., that the legatees of the 1,250^. stock were entitled to their legacies out of the testator's personal estate. " It is clear," said his Lordship, " that the testator meant to give a legacy, but he mistook the fund. He acted upon the idea that he had such stock. The distinction is this : if he had had the stock at the time it would have been considered specific, and that he meant that identical stock ; and any act of his destroying that subject would be proof of animus revocandi, but if it is a denomination, not the identical corpus, in that case if the thing itself cannot be found, and there is a mistake as to the fund out of which it is to arise, that will be rectified." But if the subject-matter of such a bequest had been a ring or a pic- ture and it could not be found, " the Court could not rectify that " (c). Where, however, a testator makes a specific bequest, as for instance of a sum of stock " standing in his name," and has not the stock de- scribed, nor any other stock, the legacy altogether fails, even although the testator may have intended to buy sucii slock but never did {d). («) Horwood *'. Griffith, 4 De G. M. (c) Selwood v. Mildmay, supra. & G. 700. {d) Evans ?;. Tripp, 6 M;idd. 91, {h) 3 V. jtm. 306 : and see Lindgren And see Waters v. Wood, 5 De G. & V. L., 9 B. 358 ; Goodlad v. Biu-uett, Sm. 717 ; Millar v. Woodside, 6 Ir. E. 1 Kay & J. 341. Eq. 546. 838 LEGACIES. Ashburner v. Macguire. 14. Aljatement of Legacies. In the administration of assets, general legacies are not applicable in payment of debts, until after the general residuary personal estate, real estates devised for payment of debts, real estates descended, and real estates charged with payment to debts, have been exhaus- ted ; after which general legacies, in priority to specific legacies, are applicable ; or, if the whole amount of them is not wanted for that purpose, they must abate among themselves 'pro rata. But a testator may show his intention that a general pecuniary legacy is to be paid out of his specific legacies, and in that case the specific legatees could not call on the pecuniary legatee to abate. Suppose for instance the testator left all his personal estate at X. to A. and all his personal estate at Y. to B., and afterwards gave SOOl. out of his personal estate to C, if the testator had no personal estate except at X. and Y., the 800^. would be payable out of the specific bequest of the personal property at those places {a). A legacy at first sight appearing to be residuary, may be shown by the testator's intention to be specific, in which case it will only abate with other specific legacies. As for instance where a testator estimates a specific sum in money and gives definite portions of it, a gift of the rest will be as specific as if he had stated the actual amount. See Page v. Leajnngwell (b). There a testator devised land upon trust to sell, but not for less than 10,000^, and gave legacies thereout amounting to 7,800^., and " the overplus monies," to A. and B. The estate sold for less than 7,000Z. ; Grant, M.R., held that the other legatees ought to abate equally with A. and B., his Honor being of opinion, that the inference to be drawn from the expressions in the will was, that the testator did not mean by the word " overplus " what it usually imports, viz., whatever shall turn out to be the overplus ; but that he was contemplating a certain overpliLs, and was making his disposition accordingly. "I conceive," he added, "the true intention to have been that these persons should take as specific legatees ; and, there- fore, they must abate among themselves " (c). And upon the same (a) See Sayer v. S., Pr. Ch. 392, 393. Elwes v. Causton, 30 B. 554 ; Re {h) 18 V. jiin. 463 ; HE. E. 234. Jeffery's Trust, 2 Eq. 68; Walpole v. (c) See also Hewitt r. George, 18 B. Apthorp, 4 Eq. 37 ; Miller v. Huddle- 522 ; Hunt v. Berkeley, Mose. 47 ; stone, 6 Eq. 65 ; Re Young, Trye r. Laui-ie v. Glutton, 15 B. 65 ; Wright v. SuUivan, W. N. Feb. 21st, 1885, p. 36. Weston, 26 B. 429 ; Duncan v. D., 27 52 L. J. 754. B. 386 ; Haslewood v. Green, 28 B. 1 ; SPECIFIC LEGACY ABATEMENT. 839 Ashburner v. Macguire. principle, where a testator, giving the residue of a specific fund, esti- mates that residue in money the gift of the residue will be specific, although the testator sweeps into that residue any future additions to the fund (a). Where, however, a testator neither knows, nor assumes to know, the amount of a fund, and after bequeathing certain portions thereof, he makes a bequest of the residue, the latter is not specific, and must be applied first in payment of debts (6). So if a fund is given, subject to debts, the gift of the residue will not be specific (c). A question sometimes arises between pecuniary and residuaiy legatees, where there has been a devastavit by the executor, whether the pecuniary legatees ought not to share the loss proportionably with the residuary legatees. The better opinion (in opposition to that of Lord Coioper, in Dyose v. D. (d) is, that they ought not (c). But the case may be varied by the dealings of the pecuniary lega- tees with the executor, as by suffenng their legacies to remain in his hands, and receiving interest thereon, thus making him their debtor; for then they may be considered to have waived their priority under tlie will, and will only be entitled to have what is left divided between them and the residuary legatees, in the proportion of the amount of their legacies, and of the residue, as it was computed at the death of the testator, with interest on each (/). In other words, "If all the lega- tees have consented that they will have the fund out of which their lega- cies are payable appropriated as a specific sum, it is the same as if the testator had appropriated it; and if any part of the fund is lost they must all suffer rateably. But unless there is this common consent, (a) Haslewood v. Green, 28 B. 1 ; Jeffery's Trust, 2 Eq. 68. Walpole V. Apthorp, 4 Eq. 37, sed (c) Haiiey v. Moon, 1 Dr. & Sm. vide De Lisle v. Hodges, 17 Eq. 623 ; Baker v. Farmer, 3 Ch. App. 440. 537. {b) See Eead v. Strangeways, 14 B. {d) 1 P. W. 305. 139 ; Williams v. Ai-mstrong, 12 Ir. (e) See Fonnereau v. Poyntz, 1 Bro. Eq. R. 356; Vivian v. Mortlock, 21 B. Ch. 478; Humphreys v, H., 2 Cox, 252. And see Carter v. Taggart, 16 184 ; Page v. Leapingwell, 18 V. 466, Si. 423 ; Loscombe v. Wintringham, 11 E. R. 234 ; and Wilmott *'. Jen- 12 B. 46 ; Booth v. Alington, 6 De G. kins, 1 B. 401 ; 7^« Lyno's Estate, 8 Eq. M. & G. 613 ; Greenwood v. Jemmett, 4S2. 26 B. 479; Baker v. Farmer, 3 Ch. (/) Ex j'. Chadwin, 3 Swans. 380; App. 537, reversing S. C, 4 Eq. 382 ; see and consider Mallory r. French, Petre v. P., 14 B. 197 ; De Lisle o. 11 Ir. Eq. E. 376. Hodges, 17 Eq. 440, 449, sed vide lie 840 LEGACIES. Ashburner v. Maeguire. we must look to the intention of the testator and to nothing after- wards {(i). Where, moreover, one of several residuary legatees, or next of kin, has received his share of the estate of a testator or an intestate, the others cannot call upon him to refund if the estate is subsequently wasted {h) ; but if part of the estate had been previously wasted, the person so paid can be called upon to refund, the rule being that what is available when one is paid, should be equally divisible among all (c). But where one residuary legatee calls upon another to refund, upon the ground of being overpaid, the burden of proof lies upon the person requiring the money to be refunded, to show that the payment was made in excess (d). Where some of the legatees have been paid, and the assets which were sufficient for the payment of the other legatees, have neither been applied or appropriated in a manner equivalent to payment of the legatees, but have been wasted by the trustees, if other assets should unexpectedly fall in, they ought to be first applied in payment of the last-mentioned legatees (e). Where a legacy is charged on real estate should the personal estate be insufficient to pay it, if the personal estate was sufficient for that purpose at the time of the testator's death, and became inadequate in consequence of a devastavit, the legacy will not be a charge on the real estate (/). Secus, if the devisees of the real estate were the same persons as those who wasted the personal estate (g). As a rule, general legacies and annuities stand upon an equal footing, all taking precedence of a residuary gift (h), and upon a de- ficiency of assets, general legacies and annuities must abate rateably, and the onus lies on any legatee or annuitant seeking priority to make out clearly and conclusively that such priority was inten- ded (i). And wliere a testator bequeaths legacies to creditors, when debts (a) Per Lord Justice Wood, in Baker (e) Wilmott v. Jenkins, 1 B. 401. 7j, Farmer, 3 Ch. 541 ; see as to execu- (/) Ei chard son v. Morton, 13Eq. 123. tors' right to appropriate. Me Lepine, (g) Howard v. Chaffers, 2 Dr. & Sm. (1892) 1 Ch. 210; Be Eichardson, 236; Humble ;'. H., 2 Jur. 696. (1896) 1 Ch. p. 512. {h) See Croly v. Weld, 3 De G. M. (ft) Peterson v. P., 3 Eq. Ill, 114 ; & G. 995. Morris v. Livie, 1 Y. & C. C. C. 380. (i) Miller v. Huddlestone, 3 Mac. (c) Peterson!^. P., 3 Eq. 110, 114; & G. 513 ; Thwaites v. Eorman, 1 CoU. Be Winslow, 45 0. D. 249. - 409 ; Brown v. B., 1 Keen, 275 ; and {d) Ibid. see Ooore v. Todd, 7 De G. M. & G. 520. SPECIFIC LEGACY ABATEMENT. 841 Ashburner v. Maeguire. have been already satisfied by compositions for less than what was really owing (a), or bequeaths money to pay the debts of others (b), such legacies, being purely voluntary, must abate with other legacies. See also Turner v. Martin (c). It may be here mentioned that a legacy is not entitled to priority over others becatise it is given to a wife or child of the testator {d) ; to servants (e) ; charities (/) ; executors for their care and trouble {g) ; or for a mourning ring (li) ; and it must abate with other general legacies. Priority will l)e given to legatees for life, when it is directed that the legacies on their deaths are to go in payment of other legacies (i). Merely inti-oductory words such as " in the first place," " in the next place," " afterwards " will not create any priority between the legacies they precede (/.;). Where a general legacy is given for any valuable consideration, as the relinquishment of dower by a widow (I), or of a debt actually due (m), it will be entitled to priority over all other merely voluntary legacies. And this priority as to legacies given in satis- faction of dower is preserved by the Dower Act (3 »& 4 Will. 4, c. 105), s. 12. Where, however, the husband leaves no real estate at all (n), or none out of whicli his widow is dowable, as, for instance, where it has all been conveyed by him to uses in bar of dower (o), or where the testator by the will devises the real estate so as to bar dower (p), the (a) Coppin V. C, 2 P. W. 296. Haynes i-. H., 3 De G. M. & G. 590. (i) Shirt V. Westby, 16 V. 396. (k) Thwaites v. Forman, 1 Coll. (c) 7 De G. M. & G. 429. 409 ; Beestqn v. Booth, 4 Madd. 161 ; (d) Blower r. Morret, 2 V. 420 ; Whitehouse v. Insole, 7 L. T. (N. S.) Miller ?>. Huddlestone, 3 Mac. & G. 400, but see i?e Hi rdy, Wells r. Bar- 526—529 ; but see Be Hardy, Wells wick, 50 L. J. Ch. 241. *'. Barwick, 50 L. J. Ch. 241 ; and see (/) Burridge v. BradyL 1 l\ W. ^eSchweder's Estate, (1891) 3 C. H. 126; Blower r. Morret, 2 V. 420; 44, where C/r/'%, J., dissented from i?e Davenhill v. Fletcher, Amb. 244; Hardy. Heath r. Dendy, 1 Euss. 543 ; Nor- (e) Attorney-General r. Robins, 2 cott v. Gordon, 14 Si. 258 ; Stahl- P. W. 25. Schmidt v. Lett, 1 Sm. & G. 421 ; BeU (/) Ibid. V. B., 6 Ir. E. Eq. 239. ((/) Ibid., and see Fretwell v. Stacy, (in) Davies v. Bush, 1 Youuge, 341. 2 Vern. 434 : Heron i-. H., 2 Atk. 171 ; (») Acey v. Simpson, 5 B. 35. Duncan v. Watts, 16 B. 204. (o) Eoper r. E., 3 C. D. 714. (/*) Apreece v. A., IV. & B. (jj) Greenwood v. G., (1892) 2 Ch. 364. 295, disapproving of dictum to the (?) Brown r. B., 1 Keen, 275; contrary in Roper r. E. (supra). 842 LEGACIES. Ashburner v. Macguire. widow will not be entitled to priority over other legatees in respect of a leyacy which her husband may have given to her in lieu of dower, because there is nothing of which she is a purchaser. Upon the same principle, in Davies v. Bush (a), Avhere a testator had given a legacy to a person, on condition of his executing a general release of all claims which the legatee had on the testator, Lord LyndJiurst was of opinion, that if there was not a debt actually due to the legatee, he could not be considered as a purchaser of the legacy, so as to avoid an abatement with the other legatees. If no debt were due, and the release were required merely for the sake of peace, then unquestionably the legatee could not be treated as a purchaser. Where annuities are made payable out of a sum to be set apart for that purpose, and eventually to sink into the residue, if such sum prove insufficient for that purpose on the death of one of the annuitants, the surviving annuitants will be entitled to have the deficiencies of their annuities satisfied out of the released fund before it sinks into the residue (6) ; secus, where the testator directs that upon a deficiency of the sum set apart to meet the annuities they are to be rateably reduced (c). Where legacies and annuities are charged on real estate, the fact that powers of distress and entry are conferred on the annuitants will not give them priority over the legatees {d). An annuity charged on the personal estate by a testator, being a general legacy, on a deficiency of assets, as before mentioned, abates proportionably with the general legacies. In such cases a value is put upon the annuity, and then a pro- portional abatement is made between the annuity and the legacies, and then the annuitant, although it is only a life annuity, or his representative, if he be dead, is entitled at once to receive a sum equal in amount to the valuations so abated {e). But if annuities are given as gifts of specific interests in the real estate, they will not abate with legacies charged on the real estate (/). (a) 1 Yoimge, 341. cases. Sed vide Wright v. Callender, {h) Arnold c. A. 2 My. & K. 374. 2 Do G. M. & G. 652 ; Gratrix v. (c) Fanner v. Mills, 4 Russ. 86. Chambers, 2 Gif. 321 ; see this dis- {d) Roper r. R., 3 C. D. 714. cussed, ante, p. 805. (e) Carr r. Ingleby, 1 De G. & Sm. (/) Creed v. C, 11 CI. & Fin. 491, 362; Long i\ Hughes, ibid., 364; overruling the decision of Sugden, C, Wroughton t'. Colquhoun, ibid., 357; in 1 Dr. & War. 410; and see Be and see " Forms of Decrees " in those Briggs, Briggs u. George, 29 AV. R. 925. SPECIFIC LEGACY — ABATEMENT. 843 Ashburner v. Macguire. As annuities on a deficiency of assets abate with legacies, so they abate among themselves (a). When the corpus of an estate charged with annuities is insufficient to pay the arrears, it will be divided between the annuitants in pro- portion to the value of their respective annuities (6). If all the annuitants are living at the period of division, the value must be ascertained as at the death of the testator (c). If all the annuitants are dead, the arrears of their annuities must be ascertained, and the fund divided in the proportion of those arrears (d). li some are dead, and the others living, the value as to the former will be taken at the amount of their arrears, and as to the latter, at the amount of their arrears, added to the calculated value of the future payments (e) : and it is immaterial that an annuity is rever- sionary, and falls into possession after the testator's death (/). A bequest of an annuity to an executor for his trouble in the conduct and management of the testator's affairs will not be entitled to priority over other legacies (g). Where the testator's intention is clearly to prefer one legatee to another, preference will of course be given (Ji), but not where it is at all doubtful whether he intended to give such preference (i). Specific legacies, as has been shown, are not applicable in the administration of assets in payment of debts, until after general legacies have been exhausted {ante, p. 789), nor are demonstrative legacies, that is to say, legacies payable out of a particular fund (k) ; (a) Innes v. Mitchell, 1 Ph. 710. liley, 12 Si. -12; Brown v. B., 1 Keen, {h) Wroughton v. Colquhoun, 1 De 275 ; Weir c. Chomley, 1 Ii". Ch. E. G. & Sm. 357 ; Todd /•. Beilby, 27 B. 356. 295 ; Spong v. S., 3 Bligh (N. S.) 84, (c) Todd V. Beilby, supra ; Be WU.- Sugd. Prop. 422 ; Dyer v. Bessonett, kins, Wilkins v. Eotheram, 27 C. D. 4 Ir. Ch. E. 382 ; Haynes v. II., 3 De 703. G. M. & G. 590 ; 'lit Hardy, Wells v. (d) Todd v. Beilby, supra. Berwick, 17 C. D. 798. ((') Todd V. Beilby, supra ; Heath r. (/) See Blower i: Morret, 2 Ves. 420 ; Nugent, 29 B. 226. Beeston v. Booth, 4 Madd. 161 ; Eave- (/) Potts r. Smith, 8 Eq. 683; and staffe l: Austin, 19 B. 591; and see see Fielding v. Preston, 1 De G. & J. Coore v. Todd, 23 B. 92, 7 De G. M. & 438 ; and see Innes v. Mitchell, 2 Ph. G. 520; Wright v. Weston, 26 B. 429; 346. Haslewood v. Green, 28 B. 1 ; Elwes (ry) Duncan o. Watts, 16 B. 204. v. Causton, 30 B. 554 ; Campbell v. {h) Lewin v. L., 2 B. 415 ; Marsh v. M'Conaghey, 6 Ir. E. Eq. 20. Evans, 1 P. W. 668; Attorney-General r. (k) Eoberts v. Pocock, 4 V. 150; Eobins, 2 P. W. 23 ; Beeston v. Booth, Lambert v. L., 11 V. 607 ; Acton f. A., 4 Madd. 161, 170; Stammers v. Hal- 1 Mer. 178. 844 LEGACIES. Ashburner v. Macguire. except when they become general legacies by faUure of the fund (a) ; and persons to whom specific and demonstrative legacies are be- queathed, can compel devisees of laud not charged with debt, to abate or contribute with them, 2^ro rata, towards their payment (h) ; and although a specific legacy be charged with debts and legacies, the general undisposed-of residue will be first applicable (c). It may be here mentioned that it is a settled rule that the plaintiff in a legatee's administration action, when the estate is insufficient to pay the legacies in full, is entitled to receive his costs out of the fund as between solicitor and client, and that this rule applies even where there is a contest between him and another legatee as to the proper mode of dividing the fund (d). But if the plaintiff under such circumstances refuses to take an order (at his own risk as to costs) for the usual administration accounts and inquiries, the action will be dismissed without prejudice to his bringing another action (e). As to the lapse of legacies, see Elliot v. Davenport (/). 15. To whom Legacies are to be Paid. Where legatees are sid juris, legacies will be payable to them, care being taken that they answer the description given to them in the will. As to the description of legatees, see Roper on Legacies, Vol. I., pp. 28, 30, 4th ed. ; Williams on Executors, Vol. II., pp. 1051, 1052, 7th ed. An executor, however, is not justified in paying a legacy left to an infant until he comes of age {g), unless there is express direction to pay while under age {h) ; nor will a payment thereof to a parent or relation in his behalf be good without the authority of the Court of Chancery {%), which has under special circumstances ordered a small legacy belonging to an infant to be paid to the father (/i) ; (a) Mullins v. Smitli, 1 Dr. & Sm. (/) Lead. Cas. Eeal Prop. 902, 8rd 210. ed., and note. (&) See Eoberts v. Pocock, 4 V. 160; (\ Tew, 4 Dr. & W. 139, Bague v. Dumergue, 10 Ha. 462 149 ; sed vide Sitwell v. Bernard, 6 V. Baker v. B., 6 H. L. Cas. 616, 628 543. Hickman r. Upsall, 2 Gif. 124. 848 LEGACIES. Ashburner v. Maeguire. and it seems that if the annuitant assented to the appropriation (wliich, however, must be clearly established), it would be at his own risk (a), even in the case of a wife (6). 17. Time of Payment of Legacies and Interest and Maintenance. Assuming that an executor has paid debts and given his assent, expressed or implied, to a legacy, the question then arises, at what time it becomes payable, and interest thereon begins to run. With regard to specific vested legacies, they are considered as severed from the bulk of the testator's property by the operation of the will, from the death of the testator, and are specifically appropriated, with their increase and emolument, for the benefit of the legatee from that period ; so that interest is computed on them from the death of the testator; and it is immaterial whether the enjoyment of the principal is postponed by the testator or not : 2 Rop. Leg. 1250, 4th ed. Thus, where there is a specific legacy of stock, the legatee will be entitled to the dividends from the death of the testator (c), although it may have been directed " to be paid within twelve calen- dar months " after the testator's decease (d) ; and see Re Jeffrey's Trusts, ante, p. 794. Secus, in the case of contingent specific legatees not directed to be set apart (e). If the thing specifically bequeathed were reversion ai'y, the legatee would only be entitled to it upon the reversion falling into possession (/). A demonstrative legacy is payable one year after the testator's death, and carries interest from that time, and not from the testa- tor's death ((/). A demonstrative legacy, where the property out of which it is payable is reversionary, is only payable where the reversion falls in (/i). With regard to genercd legacies where the testator has fixed no time for their payment, as we have before seen, they will not be payable until a year after his decease (i) ; they will, therefore, as a (a) Arundell v. A., 1 My. & K. 316. (e) See per Kay, J., He Woodin, (&) Stent V. Kobinson, 12 V. 461; (1895)2 Ch. p. 116; Guthrie v.Wal- Re Wliittaker, Whittaker v. W., 21 rLiul, 22 C. D. 575. C. D. 662, overruling the dictum of (/) Re Ludlam, 63 L. T. 330. Lord Alvunlnj in Crickett v. Dolby, 3 ((/) Mullins v. Smith, 1 Dr. & Sm. V. 10, 16. 210 ; Sleech v. Thorington, 2 V. 560, (c) Barrington v. Tristram, 6 V. 563. 345; see also Clive v. C, Kay, 600. {h) Earle v. Bellingham, 24 B. 448. {d) JBristow v. B., 5 B. 289. (/) Wood r. Penoyre, 13 V. 333, 334. PAYMENT, INTEREST, ETC. 849 Asliburner v. Macguire. general rule, carry interest only from that time, even although there be a direction in the will to pay the legacy as soon as possible (a) ; but it will be due then even though the payment of the legacy be impractic- able (6), and v/hether the assets are productive or not (c), and though a sale of estates directed for the legacies may, in the discretion of the trustees, have been postponed (d), on a general legacy of long annuities, the legatee was not entitled to dividends accruing before the end of a year (e). As, however, the rule for the payment of legacies a year after the testator's death was made for the convenience of executors, if they find the state of the testator's assets justifies such a course they may if they think fit, pay the legacies at an earlier period (/). And a person who some years after the testator's death becomes by substitution entitled to a legacy, may call for immediate payment as the year runs from the testator's death (g). In an administration suit the Court ordinarily pays the particular legacies when a clear fund is ascertained, together with interest if due at 4 per cent, up to that time {h) ; but sometimes the Court, if it can be done with safety to creditors, will, by anticipation, direct proportional payments to be made to pecuniary legatees (i) ; and a jointure and annuities have been directed to be paid out of the income of the estate before decree, though payment of pecuniary legatees was refused (k). By the Rules of the Supreme Court, 1883, by Order LV., r. 6-i, it is provided that where a judgment or order is made directing an account of legacies, interest shall be computed on such legacies after the rate of 4 percent, per annum from the end of one year after the testator's death, unless otherwise ordered, or unless any other time of payment or rate of interest is directed by the will, and in that case according to the \\\\\. Where an immediate legacy was given, subject to be divested on a future contingency, it has been held the legatee can call for payment (a) Webster v. Hale, 8 V. 410 ; Sm. 404. Benson v. Maude, 6 Madd. 15. (/) Pearson v. P., 1 Sch. & L. 12 ; (6) Wood V. Penoyre, 13 V. 333, Angerstein (-. Martin, 1 T. & E. 1^41; 334 ; Gibson v. Bott, 7 V. 96 ; see per Garthsliore v. Chalie, 10 V. 13. Cairns, L.C., Lord y. L., 2 Cb., p. 789. (.-. Sewel, 3 Atk. 99. C. C. 372. (d) 16 V. 393 ; sed vide Askew v. (h) Raven v. Waite, 1 Swans. 5 o ; Thompson, 4 Kay & J. 620. WaU ;•. W., 15 Si. 513. 54 2 852 LEGACIES. Ashbiirner v. Macguire. the Court extended it to a natural child (a), nor is it extended to other relatives than children, such as grand-children or nephews or nieces unless the testator has put himself in loco parentis (b), nor has the exception been extended to a wife (c). Where, however, there is a direction to apply a competent part of the interest on a legacy for the maintenance of a natural child (d), or of a stranger, even where the legacy is contingent (e), or merely a general intention expressed (/), interest will be payable from the testator's death. In cases not within these exceptions a contingent legacy does not carry interest while in suspense (g). Where a legacy is charged on lands only, and no time is fixed for its payment, interest will be due from the testator's death (h). Where real estate is devised upon trust for sale, and out of the proceeds to pay legacies, interest is only payable from the period of a year after the testator's death (i). Where the sale was to be made after the death of the tenant for life, interest was payable from her death : Re Waters {k). A legacy to wife in lieu of dower out of a mixed fund of proceeds of sale of real and personal estate was held to carry interest only from the end of the year : Re Bignold (l). Where the testator has fixed a time for payment it will not, although it be vested, carry interest until that time {m). (rt) Beckford v. Tobin, 1 V. 310; Lowndes v. L., 15 V. 301. {h) Houghton V. Harrison, 2 Atk. 330 ; Desbrambes v. Tompkins, 4 Bro. Ch. 149 (n. ), 1 Cox, 1 a3 ; Festing v. Allen, 5 Ha. 579 ; Crickett v. Dolby, 3 V. 10. (c) Stent V. Eobinson, 12 V. 461 ; Lowndes v, L., 15 V. 301; Freeman i\ Simj)son, 6 Si. 75 ; Milltown v. Trench, 4 CI. & Fin. 276, 11 Bligh (N. S.) 1; Be Whittaker, Wbittaker v. W., 21 C. D. 657. {d) Newman /;. Bateson, 3 Swans. 689; Dowling v. Tyrell, 2 Russ. & M. 343. (e) Harris v. Finch, McClel. 141 ; Re Peek's Trust, 16 Eq. 221 ; Re Richards, 8 Eq. 119 ; Chidgey v. Whitby, 41 L. J. Ch. 699. (/) Pitt V. Fellows, 1 Swans. 561 (n.) ; Lambert v. Parker, Coop. t. Eldon, 143 ; Leslie v. L., L. & G. 1. (,(/) Re George, 4 C. D. 843 ; Re Moody, (1895) 1 Ch. 108. {h) Per Lord Redesdale, Pearson v. P., 1 Sch. & L. 10 ; and see Maxwell v. Wettenhall, 2 P. W. 26 ; Stonehouse v. Evelyn, 3 P. W. 254 ; Spurway v. Glynn, 9 V. 483 ; Shirt v. Westby, 16 V. 393. (/) Turner v. Buck, 18 Eq. 301. {k) 42 C. D. 517. Q) 45 C. D. 496. (m) Lloyd v. Williams, 2 Atk. 108 ; Heath v. Perry, 3 Atk. 101 ; Tyrell v. T., 4 V. 1 ; and see Thomas v. Attorney-General, 2 Y. & C. Exch. Ca. 525 ; Festing v. Allen, 5 Ha. 575 ; Gotch V. Foster, 5 Eq. 311; Lord », L., 2 Ch. 782 ; Holmes v. Crispe, 18 L. J. Ch. 439 ; Hearle v. Greenbank, 3 Atk. 716. PAYMENT, INTEREST, ETC. 853 Ashburner v. Macguire. If the time of payment arrives in the testator's lifetime, interest will run from bis death (a). Where a legatee is only entitled to the payment of a vested legacy at a certain time, in the event of his death his personal representa- tives, who simjDly stand in his place, cannot demand payment at an earlier period (6). Although the exception to the general rule is well established that where a legacy is left by a parent or a person in loco 'parentis to an infant, in that case, whether the legacy be payable at a particular time, or be vested or contingent, if no other maintenance is provided for the infant by the will, interest on the legacy will be allowed as maintenance from the death of the testator (c), or if the child be en ventre sa 7)iere from its birth (d), and although there be a direction to accumulate (e) ; but this exception is subject to another exception, viz., maintenance will not be allowed out of a legacy to a child, where another fund is provided for that purpose (/). In Re Moody {g), Kekeivich, J., discussed the cases, and refused to allow this exception to apply where the will only contained a power of advancement and a gift of a share of residue. He said : "The rule of law, as was said by Lord Justice Jariiei^ in that case — Re George (h) — is well estaVjlished, that a contingent legacy does not carry interest while it is in suspense, except in a case of a legacy by a parent, or one standing in loco ])arentis to the legatee ; and that exception is subject to another exception, that the rule giving inte- rest to the child does not take effect when the testator has provided another fund for his maintenance, so that the income of the legacy is supposed not to be required for the purpose. There the Lord (a) Coventry i;. HigginSj 14 Si. 30; ham, 9 B. 1(34; May v. Putter, 25 Pickwick i;. Gibbes, 1 13. 271. W. E. 507 ; Re Moody, (1895) 1 Ch. (6) Roden v. Smith, Amb. 588; 109. Chester v. Painter, 2 P. W. 33(5 ; {d) Eawliii.s v. E., 2 Cox, 425. Maher v. M., 1 L. E. Ir. 22. (e) Mole v. M., 1 Dick. 310 ; M'Der- (c) Acherley v. "Wheeler, 1 P. W. mott v. Kealy, 3 Euss. 265 («.). 783 ; Hill v. H., 3 V. & B. 183; Mills (/) Wynch v. W., 1 Cox, 433, 434 ; V. Eobarts, 1 Euss. & M. 555; Leslie Wall v. \V., 15 Si. 513; Donovan i'. V. L., L. & G. t. Sugd. 1 ; Eogers v. Needham, 9 B. 1G4 ; Eudge v. Soutten, 2 Keen, 598 ; Wilson ^•. Winnall, 12 B. 357 ; Re Eouse's Maddisou, 2 Y. & C. C. C. 372 ; Eus- Estate, 9 Ha. G49 ; Re George, 5 C. D. sell V. Dickson, 2 Dr. & War. 133 ; 837 ; see Re George, discussed Re Harvey v. H., 2 P. W. 21 ; Incledon Dickson, 28 C. D. 291, 29 C. D. 331. V. Northcote, 3 Atk. 438; Chambers {^ cannot be given tvvice. With regard to legacies of quantity, if a legacy of the same amount is given twice for the same cause, and in the same act, and totithm verbis, or only with small difference, it will not be double : but where in different writings there is a bequest of equal, greater or less sums, it is an augmentation. The Lady Isabella Finch, by her will (6), bearing date the 30th of August, 1768, gave to Lydia Hooley, her woman, the plaintiff, a legacy of 500^. The will was executed in the presence of two wit- nesses. By a codicil, she gave Lydia Hooley GO^., to be paid to her. She afterwards made a second codicil, dated the 28th of October, (o) 1 Bro. Ch. 390 (n.); S. C, 2 Dick. 4G1 ; Lofft, 122, nom. Hatton v, Hooley. {h) In this report of Hooley r. Hat- ton, the codicils of Lady Isabella Finch are not set forth in the order in which they ought to stand. By an extract from the registry of the l*rero- gative Court of Canterbury, it appears that the legacj' given to her luaid was in these words : — " I give to my woman Lydia Hooley 500/., to be paid to her within three months after my de- cease." The first codicil was in these words : "October 28th, 1769.— This codicil I add to my will. I give 1,000/. to Lydia Hooley. — Cecilia Isabella W. & T. — VOL. I. Finch." The second codicil was as follows : — " I, Lad}^ Cecilia Isabella Finch, do desire this paper writing may be ac- cepted and taken as a codicil to my will. I give to my servant Lydia Hooley, over and besides what I have left her by my will, an annuity of 12/. jier annum for her life, to be paid quarterly, on the usual days of pay- ment ; the first of the said payments to commence on the first of the said days which shall happen after my de- cease. Lady Isabella Fiucii further orders the sum of GO/, to be paid ti> Eebecca Hooley. — Cecilia Isabella Finch."— Note by Mr. Mdler, 2 Euss. 2(;9. 866 LEGACIES. Hooley v. Hatton. 1769, in these words : "I add this codicil to my will: I give Lydia Hooley l.OOOL" This was in her own handwriting, but not executed before witnesses. The plaintiff filed her bill for the said legacies and annuity. The question was, whether the last legacy alone passed, or the legatee should have both the 1,000/. and the 5001. The Master of the Rolls (Sir Thomas Seiuell) had decreed both to the plaintiff, and the defendant appealed to the Chancellor (Lord Apsley), who was assisted by the Lord Chief Baron Smythe, and Mr. J n&tice Aston (a). This case, after having been argued very- much at large (b), stood over till Hilary Term, when the Court gave judg- ment. Mr. Justice Aston". — -There is in this case no internal evidence;' therefore, we must refer to the general rule of law. The counsel applied the rules laid down in the case of The Duke of St. Albans v. Beauclerk (c). It is evident those rules are not general, but go on the particular circumstances of that case. It was contended there, that the fourth codicil was to stand in the room of the first. There are four cases of double legacies: First, when the same specific thing is given twice, Cujacius takes a distinction between the same res and the same quantity. In the first case, it can take place but once, "at eodem qaantitas soipius jyrcestari potest " (d). Secondly, where the like quantity is given twice, Lord Hardwicke, in Duke of St Albans v. Beauclerk (e), alluding to the particular circumstances of the case, laid down, one only should be taken, unless an intention appeared to the contrary (/), but nothing can be collected from hence, as the title of the Digest must be attended to, which expressly says anirao adhnendi (g), where 100^. and 100^. [are given by different instruments], the legatee [is] entitled to both. (a) Sir S. S. Smythe, \C.B., and Sir Richard Aston, J., had, previous to the Great Seal being delivered to Lord Apslet/ as Chancellor, been with hita Lords Commissioners. (b) Lofft, 122. {<■) 2 Atk. 63'! ((/) Dig. 1. 22, tit. -3, 1. 12; Cuj. op. t. 5, 281, 382. (e) 2 Atk. 63S. (/) Dig. 34, tit. 4, 1. 9. ((/) Godolphin's Orphan's Legacy, pt. 2, c. 26, s. 46 ; Swinb. 526, 530, edit. 1728. REPETITION OF LEGACIES. 8G7 Hooley v. Hatton. The doctrine from the repetition of two equal sums in one will being bad, and in a will and a codicil being good, attributing the former to forgetfulness, is strange. The case of the Slaves (a), is upon entirely different principles. It would be strange to suppose Lord Hardivicke applied this as a general rule, which would be inconsistent with his recognising (as he did expressly) the authority of Swinb. 526, 530 ; but said that the case before him was different, from the internal evidence. In regard to the' cases in the Roman law, — first, where equal sums are given in two distinct writings, both shall pass by the Roman law, a,nd the decisions of this Court are agreeable thereto (b). Thirdly, as to a less sum in the latter deed, as 100^. by will, and 50^. by the codicil, the legatee shall take both (c). Fourthly, as to a larger sum after a less, Richard (d) says, where they are in the same instrument, the two sums are not blended, but the legatee has two legacies ; and the heir must show that the one was meant to be blended with the other, the presumption being in favour of what is written (e). The law seems to be, and the authorities onl}^ go to prove the legacy not to be double where it is given for the same cause in the same act, and totidem. vevhis, or only with small difference ; but where indifferent writings there is a bequest of equal, greater, or less sums, it is an augmentation, and therefore Lydia Hooley is entitled to both the sums of 500Z. and l.OOOL LoKD Chief Baron Smythe. — I am clearly of the same opinion and therefore shall be very short. The intention is the clearest ru here is no internal evidence ; we e ; but it is admitted on all hands, therefo2'e must refer to the rule of («) Dig. 34, tit. 1, 1. 18, and that iu 2 D'Aguesseau, Pleading tlie First, p. 21. {h) Dig. 22, tit. 3, 1. 12 ; and Gol- thofred's note in Diversis Scriptnris, Dig. 30, tit. 1 , 1. 34 ; in Eadem Hcrip- tiird, Cujaciiis, 4, 311, distinguishes between a corpus and quantity : Voet on 31 & 32 Digest ; Godolphin, pt. 3, c. 26, s. 46; Swinburne, o26 ; Eicard, Traite des Itonations, Vol. 1, p. 41J», 420, 421 ; Wallop v. Hewett, 2 Ch. Rep. TO ; Newjiort /•. Kynaston, Rep. t. Finch. 294; ^Lenochiut^de Pra'sump- iionihiis, 1. 3 ; 1 Ch. Rep. 58. (c) Godolphin, pt. 3, c. 25, s. 19 ; Ridout r. Rayne, 1 V. 10 ; Pitt r. Pidgeon, 1 Cli. Ca. 301. ((/) Vol. 1, p. 451 (Traite des Dona- tions), folio edition. ((•) AVindham r. W., Rep. t. Finch, 2()7 ; I'ltt /•. Pidg.^on, 1 Ch. Ca. 301 ; Masters /•. M., 1 P. W. 421, 423; and eee Cuiry r. Pile, 2 Bro. Ch. 225. 55 2 868 LEGACIES. Hooley v. Hatton. law. The rule of law is different with respect to a corpus and to quantities. On the other side was quoted The Mayor of London v. Russell (a), where the words were satisfied by some goods. In The Duke of St. Albans v. Beaiiclerk, the last codicil was evidently the same as the first. Lord Chancellor Apsley (6). — It would be sufficient for me to say, I am of the same opinion, if Mr. Justice Aston had not referred to me with respect to some of the cases. By the civil law, where two pecuniary legacies were given by the same will, the legatee must prove it was to be doubled : but where the two bequests are in different writings, there the presumption shall be in favour of the legatee. No argument can be drawn, in the present case, from internal evidence : we must therefore refer to the rule of the civil law. In the case of Tlie Duke of St. Albans v. Beaiiclerk, Lord Hard- wicke laid down the rule as applicable to that case, and not as a general rule. " This question," said Lord Hardwicke, " divides itself into different parts. I am of opinion, that, upon the reason of the thing, and according to the best writers, these legacies, being in different writings, will make no difference in this case." Neither was it put upon being o-zie instrument. Certainly, they are different : ■' And as the will and codicil make but one will." Lord Hardwicke ([uoted Gothofred, " immo hoeres jprioreim probare inanem esse non tenetur," but did not speak of proving both will and codicil as he is represented to do in the report. Then Lord Hardivicke considered t he internal evidence, and added, " By the power reserved in her will, she has shown her intent to make them one instrument " (c), which words are omitted in the report. Lord Hardtvicke probably thought that Sir Joseph Jekyll, in Masters v. M., gave two reasons, where he seems to give only one. I will hazard a conjecture upon the pointing of the report (cZ); the semicolon in the passage " should not be taken as a satisfaction unless (a) Eep. t. Finch, 290. words marked with inverted commas. {h) Lord J^'s/py was afterwards Earl from Lord Hardwiche's original of Bathurst. "" note. (c) The Lord Chancellor read the {,!) 1 V. W. 424. REPETITION OF LEGACIES. 869 Hooley v. Hatton. SO expressed ; that it was," &c., was wrongly placed, and should be after the words " that it was ; " by which means the passage would stand, " should not be taken as a satisfaction, unless so expressed that it was ; as if both legacies had been given by the same will," &c. This case, therefore, is an authority in point, because there are two distinct writings. So in Wallop) v. Hewett (a), the Registrar's book shows that the case went upon the general doctrine of the civil law, and not on any internal evidence. His Lordship further cited Windham v. W. (h), Mayor of London V. Russell (c), Neivport v. Kynaston {d);Pitt v. Pidgeon (e), 3 Huber, Prselectiones Leg. Civ. 122, and Stirling's Case, in Scotland (/), and concluded with saying, I have therefore the satisfaction to think we confirm Lord Hardwicke's opinion. The decree of the Master of the Rolls attirmed. NOTES. 1. Generally. 2. Legacies of quantity given in different instruments, p. STO. 3. Legacies of quantity given in the same instrument, p. 874. 4. Extrinsic evidence of testator's intention, p. 875. 5. Incidents of original attach to substitutional legacies, p. 875. 1. Generally. Hooley v. Hatton has usually been referj-ed to as containing a sound exposition of the law as to the repetition of legacies, when the point to be determined is, whether a second legacy is to be taken as substitutional or accumulative (\ Wainwiight, 3 V. (e) 1 Ch. Ca. 301. 465 ; Suisse v. Lowther, 2 Ha. 432 ; (/) 2 Fountainhall, 231. AVilson u. O'Leary, 12 Eq. 531, 7 Ch. \^y) See per Lord Eldon in Hemiug App. 448. 870 LEGACIES. Hooley v. Hatton, specific thing is given twice whether in the same or different instruments it is one gift (a). But following the civil law our law takes a distinction between res and quantity, and the second rule is (2) that where legacies are given by different writings, the presumption is that they are cumu lative whether the amount be equal, greater, or less (b). (3) The third rule is that where legacies of the same amount are given by the same document, the presumption is that they are not cumulative. Mr. Justice Aston says (c), " The law seems to be, and the authorities only go to prove the legacy not to be double, where it is sfiven for the same cause in the same act, and totideni verbis, or only with small difference." The first rule seems to follow ex necessitate rei, the only question to be decided is whether there are separate articles referred to. Double gift of the same specific thing. — With regard to the first case mentioned by Mr. Justice Aston, it is clear that where the same specific thing or corpus is given, either in the sariie instrument or in different instruments, in the nature of the thing it can but be a repetition ; where, for instance, there are two gifts of a ruby ring, and there is no pretence that there are two ruby rings {d). The second is the principal and most important rule. 2. Legacies of Quantity given in Different Instruments. Legacies of quantity given by different testamentary instruments (see p. 874), are prima facie cumulative whether the second be of the same amount (e), or less (/), or as in the principal case larger (g) than the other. (a) Duke of St. Albans /•. Beauclerk, 2 Atk. 638 ; Eidges v. Morrison, 1 Bro. Ch. 392 ; Siiisse v. Lowther, 2 Ha. 432 ; Eoxburgh v. Fuller, 13 W. E. (M. E.) 39. (6) See cases. Part 2. (c) Principal case (see j). 867 supra). (J) See cases to note (a) supra. (V) Wallop V. Hewett, 2 Ch. Eep. 70; Newjiort v. KjTiaston, Eep. t. Fincli, 294 ; EaiUie >:. Buttei-field, 1 Cox, 392 ; Forbes v. Lawrence, 1 Coll. 495 ; Eadbm-n r. Jervis, 3 B. 450 ; Lee V. Pain, 4 Ha. 201, 216 ; Eoch l: Callen, 6 Ha. 531 ; Eussell v. Dickson, 4 H. L. Cas. 304. (/) Pitt V. Pidgeon, 1 Ch. Ca. 301 ; Hurst V. Beach, 5 Madd. 358 ; Towns- hend v. Mostyn, 26 B. 72 ; Wilson v. O'Leary, 12 Eq. 525, 7 Ch. 448 ; Walsh V. W., 4 Ii-. E. Eq. 396. (g) Suisse v. Lowther, 2 Ha. 424 ; Hertford v. Lowthej", 7 B. 107 ; Lyon v. Colville, 1 Coll. 449 ; Brennan v. Moran, 6 Ir. Ch. E. 126 ; Cresswell v. C, 6 Eq. 69, 76 ; Wilson v. O'Leary, 12 Eq. 525, 7 Ch. 448. REPETITION OF LEGACIES. 871 Hooley v. Hatton. A fortiori will the legatee be entitled to both legacies where there is any variation as to the mode or times of payment of each legacy, as, where the legacy given by a will, and that given by a codicil, are payable at different times, carry interest from different ilates, are given over to different persons (a), or are given to different trus- tees (6), or upon or for different trusts and purposes (c), or where the gifts are not ejusdem generis — e.g., a legacy and an annuity (cZ), share of a residue and a pecuniary legacy (e), a pecuniary and a specific legacy, although the codicil recited the bequest in the will(/). Of course, the rule is merely a rule of construction, and must yield to clear expression or intrinsic evidence of intention that one legacy is to be in substitution for the other ; l)ut the express statement that some legacies are to be " in addition," and the omission of those words as to others, is not sufficient to show that the latter are not to be cumulative. See as to the weight given to such w^ords note ((/). As to what intrinsic evidence will be sufficient to exclude the rule, in an early case it was said that " simple repetition, where exact and punctual," is evidence that the second is substitutional (/i) ; and in another case, that where the same quantity has been given, and the same cause or no additional reason is given in the second instru- ment, the second is substitutional (i). The modern rule, however, appears to be somewhat narrower — namely, that when in both instru- ments a motive, and the same motive, is expressed for the gift, and the amount is identical, this will raise the presumption that the (a) Hodges r. Peacock, 3 Y. 735, {g) Moggridge v. Thackwell, 1 "N". 737; Macketsie r. M., 2 Euss. 262; jun. 464; Barclay v. Wainwright, 3 Baitlett /■. GiUard, 2 Euss. 149 ; Guy V. 466 ; Mackensie v. M., 2 Euss. /•. Sharp, 1 My. & K. 589 ; Wray v. 273 ; Wray v. Field, 2 Euss. 257 ; Field, 6 Madd. 300 ; S. C, 2 Euss. Townshend /•. Mostyn, 26 B. 72; and 257 ; Watson v. Eeed, 5 Si. 431 ; Strong in Allen /;. Callow, 3 V. 289. See also V. Ingram, 6 Si. 197 ; Eobley v. E., 2 per Lord Stigden, C. in Eussell v. B. 95 ; The Attorney-General v. Dickson, 2 Dr. & War. 133, 4 H. L. George, 8 Si. 138 ; Lee /•. Pain, 4 Ha. Cas. 293; Lee v. Pain, 4 Ha. 201 ; 201, 223. Watson v. Eeed, 5 Si. 431 ; Sawrey /•. (h) Benyon r. B., 17 T. jun. 34. Euuiney, 5 Do G. & Sm. 698; Spire {<■) Sawrey >-. Emuney, o I 'e G. & v. Smith, 1 B. -J 19. Sm. 698 ; Spire r. Smith, 1 B. 419. (/*) Per Lord Thnrlow in Moggridge {d} Masters v. M., 1 P. W. 421, v. Thackwell, 1 V. jun. 473. 423. (/) Per Lord Thiirhnv in Eidges v. (e) Gordon /•. Anderson, 4 Jur. Morrison, 1 Bro. Ch. 388 ; and see (N. S.) 1097; Ledger v. Hooker, 18 comments of Sir W. d runt, in Benxon Jur. 481. '•• B., 17 V. jun. 42. (/) Guy c. Sharp, 1 My. & K. 589. 872 LEGACIES. Hooley v. Hatton. second gift is substitutional ; but not if in either instrument there be no motive, or a diiferent or additional motive expressed, although the sums be the same (a). The fact that a repeated bequest is only adapted to meet altered cases has been held sufficient to raise the presumption that it is substitutional (6). Where a second instrument expressly refers to the first, although the legacies given in each to the same person may be of different amounts, it may appear — as in Currie v. Pye (c), where the gift of a picture accompanied both bequests, and see per Lord Cramvorth in Russell V. Dickson (d) — that the latter gift was intended to be substitutional. So, where a codicil furnishes intrinsic evidence that the testator is thereby revising, explaining, and qualifying his will, legacies may be construed to be substitutional (e). And where a testator in his codicil refers to a bequest therein as a sufficient provision, he may thereby sufficiently manifest his intention, that the legatee w^as to have nothing else (/). In other cases, though there may be two documents in form, they may really be one, the second being substitutional for or explanatory of the earlier. Thus, where a later instrument as to the legacies appears to be a mere copy of the formei-, whether the dates be the same or different, it will so far be held substitutional for the former instrument and the legacies not cumulative (g). {n) Hui'st V. Beach, 5 Madd. 358 ; Benyon lk B., supra ; and cf. Eocli t\ Callen, 6 Ha. 531 ; Suisse v, Lowther, 2 Ha. 424 ; M'Kinnon v. Peach, 2 Keen, 555; Wilson v. O'Leary, 12 >'q. 525, 7 Ch. App. 448 ; Lobley v. Stocks, 19 B. 392; Lord r. Sutcliffe, 2 Si. 273. {h) Allen r. Callow, 3 V. jun. 289 ; Osborne r. Duke of Leeds, 5 V. jun. 369 ; see too Lee v. Pain, 4 Ha. 243 ; and Barclay v. Wainwright, 3 V. jim. 462. (c) 17 V. jun. 462 ; Martin r. Drinkwater, 2 B. 215 ; Bristow v. B., 5 B. 289 ; Maj'or of London r. Eussell, Eep. t. i'inch, 290. {(l) 4 H. L. Cas. 305. (e) Moggridge v. Tliackwell, 1 Y. jun. 464, 3 Bro. Ch. 517; Benyon v. B., 17 V. 34, 43 ; Hinchcliffe v.Yl., 2 Praser Byng, 1 Ch. 521, Dr. & Sm. 96 , Euss. & M. 90. (/) Eobley v. E., 2 B. 95, {: Bedford, 4 App. {i) Cooper r. Day, 3 Men 154 ; Lea- Cas. 96, 103. croft v. Maynard, 3 Bro. Ch. 233 ; (d) Boulcott r. B., 2 Drew. 25. Crowder >: Clowes, 2 V. jim. 449; (e) Be Tussaud's Estate, 9 C. D. Shaftesbury v. Marlborough, 7 Si. 363; Ooote v. Boyd. 2 Bro. Ch. 237; Bristowr. B., 5B. 289 ; Cookson r. 876 LEGACIES. Hooley v. Hatton. But not when the substituted legacy is to a different person (a), nor when the conditions are by one document confined to legacies '■' hereafter " given (&), nor when the second legacy is given absolutely, the former limited (c). The cases, however, have not gone further than this, where the first gift is given absolutely to the party, or is made defeasible, the second gift has been held to be given upon similar terms ; for example, if the former gift were absolute and free of legacy duty, the additional gift has been held to have all the same incidents ; so if the former gift is to be lost on a certain event, the additional gift is to be defeated on the same condition ((/). Hancock, 1 Keen, 817, 2 My. & C. 606 ; Day r. Croft, 4 B. 561 ; Duncan V. D., 27 B. 392 ; Warwick v. Hawkins, 5 DeG. & Sm. 481 ; Johnstone v. Earl Harrowby, 1 De G. F. & J. 183, re- versing S. C, 1 Johns. 425; Duffield r. Cnrrie, 29 B. 284 ; Fisher /,'. Brier- ley, 30 B. 265 ; Ec Wright, Knowles *;. Sadler, W. N. 1879, p. 20; Alex- ander V. A., o B. 518 ; King v. Tootel, 25 B. 23 ; iZeBoddington, 25 C. D. 685; Be Lawrensen, Payne Collier v. Vyse, €. A. (1891), W.N. 28. (o) Chatteris v. Young, 2 Euss. 184. {h) Bonner v. B., 13 V. jun. 379 ; Strong c. Ingram, 6 Si. 197. ((•) More's Trust, 10 Ha. 171 ; Mann V. Fuller, Kay, 624, 626; and see Haley v. Bannister, 23 B. 336 ; Hill v. Jones, 37 L. J. Ch. 465 ; Cookson v. Hancock, 2 My. & C. 606 ; Hargreaves V. Pennington, 12 W. R. 1047. {(l) Per Wood, V.-C.,Mann v. FuUer, 1 Kay, 626. See also Overend v. Gurney, 7 Si. 128. INDEX TO VOLUME I. ABATEMENT OF LEGACIES, 838 Annuities, 840 Api^ropriated fund, 839 Bequest of residue of a fund, ih. Creditors, legacies to, 840, 84 1 Devastavit by executor, 839 Devises of land not charged with debt, abate when, 844 Dower, 841, 842 General legacies, 840 Intention governs, 838, 840 Legacy on condition of legatee executing general release, 842 Onus on legatee seeking jjrioritj-, 840 Power of distress, 842 Priority in what cases, 841 Eule as to, 838 Share received, estate subsequently wasted, 840 ACTS OF PAELIAMENT, Power to restrain ajiplications for, 754 ADEMPTION OF LEGACIES, 819 Ai-ticles pui-chased but not sent home, 820 Confirmation of a will by codicil, 829 Debt, 822 Eeceived by the testator, 821 Demonstrative legacy, 828 Devise of freehold followed by mortgage of same, .S_'7 General legacy, 819 Subsequently made specific, 828 Household furniture, &c., 820 Lease with covenant for renewal, 826 Leaseholds, 825, 826 Fee subsequently purchased, 828 General devise of, 627 Legacy of specific chattels, suljsequent loss or destruction, 820 Mortgage debt, 822, 827 Mortgagee purchasing 0(|uit>- of ademption of the mortgage and devised estate, 82(5 Partition, effect of, on, ib. Partnerships, share, 825 Payment dii-ected out of a particular fund, 829 Pecuniary legacy remaining a charge on land though revoked by general bequest of all personalty to another, ih. 878 INDEX. ADEMPTION OF l.BGACIES— continued. Policy on life of another person, 821 Proi^erty subject to power of appointment, 827, 828 Railway company serving notice to treat, 826 EepubUcation of will, 829 Share of testator under will of another, 824 Specific chattels, of, 820, 821 Specific legacy, 819, 820 Of goods at a particular place, 820, 821 Stocks and shares, 822 Stock converted at option of holder, 824 Converted by Act of Parliament, 823 Repurchased, ib. Standing in the name of a trustee, 823 Transferred by tortious act, 824 Unauthorised acts of parties, by, 825 Underlessee taking assignment of original lease, 826, 827 ADMINISTRATION, Exoneration of personal estate from debts (q.v.), 12 Marshalling of assets, 34. See Marsludliwj . ADMINISTRATION SUIT, Administx'atioa of the real and personal estate of the testator who has property within and without the jurisdiction, 750, 772, 773, 774 Creditor proceeding at law after notice of, 746 Restrained from proceeding, when, 744, 745 When restrained from proceeding on charging and garnishee order, 745 Who has judgment obtaining priority in, 744, 745 Legatee restrained from proceeding to recover legacy, 746 ADMIRALTY, Marshalling in cases in, 67 AFTER-ACQUIRED PROPERTY, Covenant to assign subsequent bankruptcy raises right of proof, 114 Licence to seize, 113 ALIEN, Conversion of land into money, in cases of, 340 Before Naturalization Act, 1870, could not hold land against Crown, 340 ALIMONY, Assignment of, 144 ANNUITY. Abatement of, 805, 840, 842, 843, 862 Annuitant acquiescing in payment not in full, 804 Appropriation to secure, 847, 848 AiTears of, will not bear interest, 860 Bankruptcy or alienation, gift over on, 805 Charged on residue, conversion in cases of, 79 Corpus, when liable for, 803, 804 I INDEX. 879 ANNUITY— a>/,. DIVOECE, Custody of children, under, 489 DONATIO MORTIS CAUSA, 402 Agent, delivery to, not good donatio mortis causd, 405 Condition coupled with, 406 Court will interfere to make gift complete, 408, 410 Definition of, 402 Delivery necessary, 405, 406 Delivery, what is sufficient, 410 Deposit note, donatio mortis causd of, 408, 409 Doctrine of, 402 Dominion must be parted with, 407 Donee may sue in name of personal representatives of donor when, 403 Trustee for donor on latter's recovery, 405 Election in cases of, 403 Evidence, 413 Executor's assent to, npt necessary, 402 Gift inter vivos distinction between and donatio mortis causd, 402 Intermediate gift not good donatio mortis causd, 405 Legacy, distinction between and donatio mortis causa, 402 May satisfy, 403 Legal title not passing by delivery, 408 Practice as to suing for, 403 Probate of, unnecessary, 402 Requisites to, 404 Testamentary gifts not supported as donatio mortis causd. 403 Trust coupled with, 406 What may be subject of, 410 DOWEE, Money directed to be converted into land liable to, 335 Partition, in cases of, 221, 222 Priority of legacy given for, 841, 842 DOWER AND FEEE BENCH, Election, 430 DUTIES UNDER STAMP ACTS, In cases of land directed to be converted into monev, 349 INDEX. 889 ELECTION, 420 Acts amounting to, 440, 441 Ai^pointments under a power, 436 Approbation and reprobation, 431 — 433 Compensation in cases of, 422 Compulsory, 439 Conversion, election in cases of, 357 Coverture, in cases of, 434 Creditors, doctrine not applied to, 431 Death of person to elect without electing, 445 Debts apportioned upon different funds, 439 Deeds, in cases of, 431 Doctrine of, 420—424 When excluded, 429 Donatio mortis causa, in cases of, 403 Dower and free bench, 430 General devise or bequest, when there is, 428, 429 Heir, in case of, 434 — 436 Entitled to know all facts before, 440 Implied, ih. Infants, in case, 358, 434, 443 Inquiry ordered when, 442 Intention governs, 425, 428, 429, 433, 441 Interests to which applicable, 425 — 427 Judgment compelling election, 439 Form of, 442 Juiy detei-mining case of doubtful election, ib. Knowledge of rights necessary to, 441 Legatee, election by, under appointments under power. 436 — 3S Lunatic, in case of, 358, 445 Married Women, by, 358, 443 Woman's reversionary interest in personalty, 444 Mistake, made under, not binding, 439 ■ Next of kin, each has separate right of, 445 Parol evidence, 428 Parties under disabilities, 442 Eemainderman bound when, ih. Eepresentatives bound by, 441, 442 Scotland, in case of heii- in, 436 Time after which election implied, 441 When election must take place, 440 To take property unconverted. See Conversion, 'Sol "Voidable covenant when held binding, 442 Voluntary, 440 Who bound by, 442 Wills, in case of, 433 ENCUMBEANCES, Costs of, in partition suit, 217 Inquiries as to, in partition actions when directed, 215 EQUITY TO A SETTLEMENT, 630 Adequate settlement, 649 890 INDEX. EQUITY TO A 8ETTLB^LEy:T— continued. Adultery of wife, 650 Against whom eqiiity binding, 652 .Imount to be settled, 639 As against mortgagee and assignee, 634 As to examination of wife, 647 Doctrine of equity with reference to, 630 Duty of trustee, 632 Equity ban-ed when, 649 Eorm of settlement, 641 Fraud of wife, 650 Husband defaulting executor, 637 Infant, 648 Judicature Act, 1873. ..631 Life interest of wife, 652 Misconduct on part of husband, 640 Pa^-ment to husband, 646 Post-nuptial settlement, 643 Property, subject to, 632 Pieduction into, possession by husband, 649 Eefusal to execute settlement, 643 Eeversionarj' propei-ty, 636, 651 Eights of children, 637 Separate use attaching to, 666 Settlement of whole, when, 637 Small fund, 643 Strictly personal to wife, 637 Tenancy by entireties, 65 Ij Waiver of, 638, 644 By consent of wife, 644 Ward of Court, 647 Wife domiciled in foreign state, 647 Obtaining decree for judicial separation, 640 Wife's reversionary interest falling into possession, 165 ESCHEAT, Money directed to be converted into land, 335 ESTOPPEL, Acquiescence may revive estoppel, 453 Banker and Customer, between, 465 Cases illustrating the doctrine of, 454 Definition of, 451 Director of a company acting as such without possessing shares, 464 Doctrine of equity, as to, 450 Dutj' to disclose, 453 Eorged transfers of shares, 464 If relied on, real facts cannot be, 468 Infancy and coverture, in cases of, 469 Lessor and lessee, between, 468 INDEX. 891 l^STOPFEL— continued. Misrepresentation must be of a fact not of intention, 462 Xecessary facts to create, 452 Negotiable securities, 466 Only rule of evidence, 451 Partner holding himself out member of the fii-m, 468 Shares in comivanies, 464, 466—468 Silence kept, 45o k EVIDENCE, Donatio mortis causa, in cases of, 413 How far admissible to shew whether legacy specific or general, 836, 837 EXECUTOE, Abatement of legacies in case of devastavit by, 839 Annuity to, not entitled to priority, 843 Assent to donatio mortis causa unnecessary, 402 Assignee of executor's interest in will takes subject to equities attaching to assignor, 134 Conversion of wasting securities, duty of as to, 90 Exemption of personal estate fi-om debts. See Exoneration. Infants legacy, payment of, 844, 845 Of married woman has no right of retainer out of separate property, 666 Payment into Court of infant's legacy, 845 Protected after he has administered, 746 EXONEEATION, Charge of debts on specific fund, 22 To pay legacies, 20 Charging fimeral and testamentary expenses on land, 13 Exoneration in respect of mortgaged estates not within Locke King's Act, 23 Of mortgaged estates under Locke King's Act, 24 Express words, by, 12 Expressions amounting to exoneration, 18 Intention of a testator governs, 12 Lapse, in case of, 9 Onus of proof on those claiming exemption, 12 Parol evidence not admissible to prove intention to exonerate, ib. Personal estate becjueathed specifically not as residue, 15 Expressly charged, 16 Personal estate from debts, 12 Plain intention, 13 Trust to pay legacies, 20 Certain debts, 22 EXPECTANT HEIRS, Dealings with, 310—312 892 INDEX. FAMILY ARRANGEMENTS, 242 All parties must execute deed of, 245, 581 Creditors void against, when, 244 Dealing with reversionary interest, 314 Disentailing an estate, 243 Doctrine of equity, as to, 242 Husband and wife separation deeds {q.v.), 246 Implied without any express written contract, when, 24:> Mistake of law in cases of, 233 Misunderstanding of rights, how far affects, 245 Set aside on ground of mistake of law, when, 235 Valid, though debts defeated thereby, 244. See also Compromise. FARMING STOCK. Legacy of, 796 FATHER, Rights of, over children, 495. See Guardian and Ward. FELON, Conversion when felon entitled to money arising from conversion of land, 340 FEME COVERT, Election in cases of, 434 FIRE INSURANCE MONEYS, 355, 370 As between landlord and tenant, 355 In cases of settled property, 370 FORECLOSURE AND REDEMPTION, Land out of the juiisdiction {q.v,), 770 FOREIGN CHARITIES, Administration of, 775, 776 FOREIGN COURTS, Power to restrain proceedings in, 749 Principle upon which the Coui't acts to restrain the proceedings of, 752, 753 FRAUD ON IklARITAL RIGHTS, Doctrine of eqmty as to, 616 FREE BENCH, Dower Act not applicable to, 430 Wills Act, s. 3, ih. FREIGHT, Mortgage of, 129 Mortgagee of ship entitled to, ib. FUNDED PROPERTY, Legacy of, 792 INDEX. 893 GENERAL BEQUEST, Monej' directed to be laid out in land will not pass as uionej- under, 335 GENERAL DEVISE, Passes money directed to be converted into laud. 335 GENERAL DEVISE OR BEQUEST, Election, 428 GENERAL LEGACY, Ademption of, 819 GUARDIAN AND WARD, 494 Age until which, guardianship continues, 496 Applications as to, how made, 521 Appointment of guardian, 511 Contract to give up custody of child by father, 497, 498 Custody of Children's Act, 1891. ..533 Custody of Infants' Act, 531 AVhere infant of years of discretion, 522 Custody, recovering of child, 525 Of ward, 496 Dvu-ation of guardianship, 513 Duties of guardian, 522 Education and religious training of chili, 49(5 Foreign guardians and guardians appointed for foreign infant, 530 Forfeiture of property where marriage obtained by false oath, 509 Guardianship of estates of children, 497 Infants' Act, 1886.. .531 Habeas Corpus (practice on), 525 lUegitimate child, 499 Infant can only appoint guardian by deed. 512 Settlement Act, 502 Jurisdiction of Court over guardians, 514 Of Chancery, 495 Coiu-t over father, 514 Guardians appointed by the Court, 521 Testamentary guardian, 520 Marriage of infants, 500 Ward, lb. Mother guardian where no guardian appointed by father, 498 Next friend, appointment of, 497 Office of guardian not assignable, 512 Powers of Chancery Division, 527 Of Divorce Com-t as to custody, 529 Practice under Divorce Coiu't Act, 1857. ..499 Release of guardianship, 512 Religious education of child, 496 Removal of guardian, 520 Rights of father, 495 Mother, 498 Statutory provisions as to guardians, 531 894 INDEX. GUARDIAN AND V^A'RD— continued. Sui-vivorship in guardianship, 512 Testamentary guardian, 509 Though testamentary guardian appointed, father's wishes as to custody complied with, 522 Voluntary donations between, set aside, 272 Wardsof Court f (/.)'.), 499 "^Tio may a^^point guardian, 511 Be guardians, ib. Will appointing guardian, and not disposing of personal property not entitled to probate, 513 HABEAS CORPUS, Deed of separation good answer to, on application by husband, 601 Infants in cases of, 525 HEIR, Agreement with, contrary to public policy, 150 Annuity when descendible to, 799 Conversion of money into land, 336 Election, 434 Entitled to know all facts befoi'e, 440 Entitled to have house finished at expense of personal estate, 343 land contracted to be purchased by ancestor, 342 Excluded in favoiu- of residuary legatee on conversion of real estate into personal, when, 387 HUSBAND AND WIPE, Agi'eeLng to live separate, subsequently acquired property of wife will be to separate use, 667 Appointment by wife in favoru" of husband, 2S.i Bankniptcy of wife, 673 Choses in action, assignment of wife's, 156 Conti-act between, 597 By wife binds what property, 679 Eor separation, 597. See Separation. Ctmveyances by, under Conveyancing Acts, 660 To and between, 695 Devolution of wife's separate personalty after death, 703 Gifts between, 660 By, to the separate use of wife, 725 Wife to husband when impUed, 695 Husband's concurrence to transfer of stock by wife, when necessary, 671 Interest taken by husband in wife's property prior to 1883... 156 Judgment against married woman, form of, 678 Judgment against wife, against what property enforceable, 679 foiin of, 707 Judicial separation, effect on wife's property, 668, 669 Liability of husband for wife's debt, 698 Loans by wife to husband, 695 Mortgaging wife's estate, subsequent mortgage by one, 65 [NDEX. 895 HUSBAND AXD ^YIFE—co7^tmued. Power of appointment by wife, 682 Proceedings by, to recover separate property, 707 Real estate of wife's in cases of intestacy, 705 Receipt by husband of i^roceeds of partition, 213 By husband of the income or corpus of the separate estate of wife, 692, 693 Reduction into possession ((/.?■.), 156 Separate examination of wife, 674 Use (q.v.), 658 Separation deeds upheld as compromises, 246 Voluntary donations between, set aside, when, 272 Wife carrying on trade separate from husband, 673 Creditor on husband's estate, when, 695 Deserted may obtain protecting order, 668 Equity to a settlement, 630. See Equity to a Settlement. Wife's ante-nuptial debts, 696 Conti-act, 672, 673 Power of disposition of real estate, 682 Over property given or settled to her separate use abso- lutely, 681 Wm, ib. ILLEGITIMATE CHILD, Custody of, 499 INFANCY, Election in cases of, 434 INFANT, Compromise by Court on behalf of, 239, 240 Could not dispose of money directed to be converted into land, 335 Election by, 358, 366, 434, 443 Estoppel in cases of, 469 Gift by where no undue influence, 283 PajTuent of legacy to, 844 Request for sale in partition suit, how made, 220 Support and maintenance out of legacy, 845 See also Guardian and Ward. INJUNCTION, Restraining proceedings at law (q.v.), 739 INSURANCE POLICIES, Marshalling in cases of, 62 INTEREST, Separate use of wife, gift of interest carries the capital, ()(i4 INTEREST IN LAND, What is, 130 896 INDEX. INTEEEST ON LEGACY, 849 Administration suit, ib. Child for maintenance, 853 Legacy to, 851 Computed on the principal, 859 Contingent legacy, in, 852 To a class, 864 Executory bequest of personal estate, 856 Gift of real estate, ib. General legacies, no time fixed for payment, 849 Gift of real and personal estate together, 857 Ijegacy charged on land only, 852 Legatees entitled to arrears of interest when, 858 Rate of, 849, 858, 859 Specific vested legacies, 848 Testator fixing time for payment, 852 Time fixed for payment, 850 Lender Lord Cranworth's Act, 854 INTESTATE'S ESTATES ACT, 1884... 389 INTESTATE'S ESTATES ACT, 1890, ib. lEISH CHUECH ACT, 1869, Compensation under goes to executor and not to devisees of li\ing. 371 JOINT TENANCY, Effect of marriage on, 166 JOINT TENANTS, Election, case of, not raised against sui-viving joint tenant by general bequest of joint tenant, 429 JUDGMENT, Creditor obtaining priority by, 744, 745 Election compelled by judgment of Court, 439 Married woman against, 678 JUDGMENT DEBTS, Marshalling in cases of, 62 JUDGMENTS AND OEDEES, In partition actions, 215 JUDICIAL SEPAEATION, Effect of on wife's property under Matrimonial Causes Act, 1857... 668, 669 Wife's contracts after, 669 JURISDICTION, Administration of estates out of, 772 Foreign sovereign or government, over, 779 Issue as to validity of will of lands out of jurisdiction, 777 INDEX. 897 JVmSDICTlO'N— continued. Land out of, 768 Libel published abroad, 779 Personal actions, bringing, in EngUsh courts, 769 Service of parties abroad. 779 To wind up foreign partnersbip, 771 Trusts of land abroad, 776 JUEISDICTION IX FEBSOXJM, Contracts as to land out of the jurisdiction (q.v.). 768 LAND, ^\-dministration of land out of jurisdiction, 772, 773. 774 Contracts as to land out of the jurisdiction (q.v.), 768 Liability of, for debts, 13. See Adininistration. Trust to raise a sum of money out of and bequest of same, 798 LANDLORD AND TENANT, Issue of commission to determine boundaries between, 175, 176 Marshalling between landlord and mortgagee of tenants' chattels, 65 LEASE FOR YEARS OF LAND, Legacy of, 797 LEASEHOLDS, Ademption of, 825, 826 EnjojTnent in specie of by tenant for life, 87 LEGACY, 786 Abatement of (q.v.), 838 Accretions to, 832, 833, 834 Ademption of (q.v.), 819 Administration action, legatee plaintiff entitled to costs as botu-een solicitor and client, 844 Annuities (q.v.), 798 Apportionment of (q.v.), 834 Appropriation of legacies payable in future (q.v.), 846 Arrears of interest, 862 Assigned legacy to whom payable, 850 Benefit of legatee, for, 814, 815 Bequest of property in particular locality or place, 808 Calls paid in advance pass to legatee of shares, 836 Champerty with reference to, 150 Charge on, notice of to executor, 131 Chattels to one for life with remainder over, 860 Consumable articles in residuary bequest, 797 Currency in which legacies are payable, 863 Debts of, 790 Demonstrative (q.v.), 787, 788 Devastavit, effect of, on, 840 Devise of land is specific, 797 Upon trust to sell and divide is specific, ib. Discretion to trustees to apply money for specified purpose. 819 W. & T. — VOL. I. -57 898 INDEX. LBGAGY—rontiniied. Distinction between legacy and donatio mortis causa. 402 Siiecific and demonstrative, 794 General specific and demonstrative, 789 Donatio mortis causa may be satisfied by legacy, 403 Farming stock, 796 General, 787 Pecuniary, ih. Gift of part of proceeds to be received under policy, 794 Eesidue, 788 In the dii-ection to pay the legacy out of a particular fund. 798 Incidents of original attaches to substitutional legacies, 874 Income-tax, by whom paj-able. 861 Infant, payment of, to, 844 Infant's legacy paid into Court, 845 Interest on (q.v.), 848 Lapse, 844 Lease for years of land, 797, 798 Legacy duty, by whom payable, 860 Legatee's bankruptcy, legacy payable to trustee, 850 Eight of selection, 814 Maintenance (q-v.), 848 And education of infant, 845 Money, of, 789 Not specific unless clearly intended to be so, 793 Of married woman, to whom jjayable, 846 Of quantity given in different instruments, 870 In the same instrument, 874 Parol evidence to detei-mine whether legacies are specific or not, 836, 837 Part of a specific fund is specific, 793 Particular object, for, 814, 815 Personal chattels of, 795 Estate acquired subsequent to date of the will, 810 Power of distress does not give priority, 842 Presumption of death, 846 Priority of, 841, 842 Property in colony, duty on, 863 Eealty, connected with, 794 Eegistration of assignment of. unnecessary, 130 Eent, gift of, 797 Eepetition of legacies (q.v.), 869 Eesiduaiy, 788 Clause, bequest contained in, when specific or general, 807 Eesidue, bequest of, when specific, 807 Satisfaction, 820 Specific (q.v.), 787, 788, 829 Bequest for life of consumable articles, 796 Sum to be sold and divided is specific, 794 Thing afterwards adeemed, 811, 812, 813 Statute of Limitation, application of, to, 862 I I INDEX. 899 J.WjA.QY— continued. Stock, Government Securities, &c., 791 Purchased after death, 813 Term of years, gift of, is specific, 797 Things ordered by and made for testator will pass by will when. 79,> Time of pajonent of (q.v.), 848 Tithes, 797, 798 To whom payable, 844, 850 Trust to raise a sum of money out of land, 798 Wearing apparel, 797 Will's Act, effect of, upon specific bequests, 808, 809 What bequest specific before, 808 LEGACY DUTY, By whom payable, 80 1 In cases of land directed to be converted into money, 34f» Gift of, payable on a specific legacy ranks as a pecuniary legacy, 861 LEGATEE, Banki-uptcy of, assignee when entitled to legacy, 810 In case of discretionary trust, 817, 818 Discretionary legacy for benefit of, 814 Election by legatee in case of appointments under powers. 4;i(), 437 438 Marshalling between, 49 Presumjition of death, 846 Eestrained from proceeding to recover legacy when, 74 (i Eight of selection, 813 Share paid to, can be called to refimd when, 840 LETTEES WITHOUT PEEJUDICE, 245 LEX SITUS, Land out of jurisdiction, 777 LIABILITY, Of pers«jual estate for payment of debts, 12. See Administmii^in. LIBEL, Jmisdiction to restrain libel published abroad, 779 LOCKE KING'S ACT, 24 Interest in land, what is within meaning of, 341 Land on trust for conversion, //). LUNATIC, Election by, 358, 364, 445 MAINTENANCE, For child where interest not given, 853 Infant out of legacy UTider Conveyancing Act, 854 Out of legacy, .S45 Specific sum given for maintenance of child, 854 Under Lord Cranworth's Act, ih. The Conveyance Act, 1881, sect. 43, 854—856 See Champerty, 145 .57 2 900 INDEX. MATRIX'S ACT, 167—169 ALIEEIAGE, Conditions as to consent to. 565 In restraint of (q.v.), 553 Forfeiture of gift on marriage without consent. 569 MAEEIAGE AETICLES, Election in, 431, 432 MAEEIAGE BEOKAGE CONTEACT, 572 MAEEIAGE SETTLEMENT, Election in cases of, 432 MAEEIED WOMEN. Breaches of trust by, 692 Choses in action how far assignable, 161 Under Divorce Court Act, 165, 166 Compromises by Court, on behalf of, 240 Election by, 358, 423, 443 Enlargement of term into fee simple by, 684 Equity for reconversion, election to take fund to separate estate, 371 Estoppel in cases of, 471 Joint tenancy, effect of marriage on, 166 Judgment against, 678 Legacy to, to whom payable. 846 Paraphernalia, 727 Pin-money, 726 Power of appointment under will, 682 Powers under Settled Land Act, 684 Eequest for sale in partition suit, how made, 220 Eeversionaiy personal interest invested in land in breach of trust, ackncw ledged deed by, 165 Sale under Partition Act. 1876... 212 Separate property of, is equitable assets, 666 Statute of limitations applicable to, 689 Tenant for life under Settled Land Act, 1882... 684 Trustee, 725 WiU by, 682 Of real estate, ih. Probate of, 702 MAEEIED WOIklEN'S PEOPEETY ACT, 1870... 670 MAEEIED WOMEN'S PEOPEETY ACT, 1882.. .672 MAEEIED WOMEN'S PEOPEETY ACT, 1893.. .679 MAESHALLING, Admiralt\ -ises, 67 As bet\\< ■^Il principal and agent, 64 Bankruptcy, securities in, 62 ^ INDEX. 901 MAESIIALLING— ooHffnHed. Between creditors, 48 Legatees, 48, 49 Mortgagees, 48 Charities in cases of, 54 Doctrine of equity as to, 46 Husband and wife mortgaging wife's estate, 65 Insui'ance policies, 62 Judgment debts, ih. Landlord and mortgagee of chattels of tenant, 65 Mortgages, 59 Portioners and the persons entitled to the real estate, 66 Securities, 56 Sm-eties against principal debtor where creditor has two funds. 6;J The Crown, by, 66 Two funds, one subject to lien, ib. Volunteers, 59 "Widows' paraphernalia, 53 MATRIMONIAL CAUSES ACT, 1857... 667 I^IISEEPEESENTATIOX. Equitable estoppel, 453 J^nSTAKE, Election, in cases of, 439 MONEY, Legacy of, 789 MOETGAGE, Assignment of right to further advances under. 111 Charged on freehold on trust for conversion, 341 Held unconscionable bargain, the deed approved by married woman's- solicitor and duly acknowledged, 325 Locke Iving's Act, payment of, under, 24 Marshalling, 56 Notional conversion, in cases of, 352 Payment of, when estate exonerated, 33 MOETGAGE DEEDS, Donatio mo7'tis causd of, 412 MOETGAGEES, Marshalling between, 48 MOTHEE, Eights of over children, 498. See Guardian and Want. MULTIPLICITY OF SUITS, Eestrained, wiion, 748 NEGOTIABLE INSTEUMENTS, Assignment of. 136 Donatio mortis causii of. 410 Instrument signed in blank by third party. 137 902 INDEX. NEGOTIABLE SECURITIES, Estoppel in cases of, 466 NEXT FRIEND, Who may be in case of infants, 497 NEXT OF KIN, Accumulation void under Thellusson Act, 379 Election in cases of, 421, 445 Resulting trust in cases of, 379, 380, 384. See Resultiiuj Trust. NOTICE, Assignment, 115 Debts, notice of assignment of, 128 Distringas, stop orders, 115 Doctrine of as to priority not applicable to equitable estates in land, 129 Freight, assignment of, ih. How and to whom should be given, 121 In cases of debts due to bankrupt, 128 Interests in land, assignment of equitable interest, 130 To companies, 125, 127 To solicitors, 125 ONUS OF PROOF, Exemption of personalty from debts, 12. See Admin istmtiov. OPTION TO PURCHASE, 353—357 Conversion in cases of, 353 Given to a lessee of term his executors and administrators is attached to lease, 357 PARAPHERNALIA, Widows, 53 Wife's, 727 PAROL EVIDENCE, Intention to exonerate personalty from debts, 12, See Administra- tion. PARTITION, 196 Ademption of legacy by, 826 Advowson, 204 Conversions in cases of sale under Partition Act, 370 Conversion on, 212 Conveyances on, 205 Coparceners, 199 Copyholds, 198 Cost of encumbrancers in partition suit, 217 Costs of suit, 216 Difficulty of partition, 197 Disputed legal title, 198 Dower in cases of, 221 INDEX. 903 FARTITlOl^i— continued. Form of judgment, 205 Freeholds, 198 And copyholds mixed, 198 How carried out, 204 Infants, 205 Inquiry as to encumbrances when dii-ected, 215 Joint tenants, 199 Judgment and orders in partition actions, 202, 214 — 18 Jurisdiction of equity as to, 196 Under various acts, 221 Land out of jurisdiction, 777 Leaseholds, 198 Legal title must be before the Court. 201 Lunatics, 200 Mode in which partition is effected. 202 Mortgagee, 201 Mortgagor, 200 Overriding trusts, in case of, 197 Parties, 201 Partition Act, 1868.. .206 Act, 1876. ..218 Power of sale for pm-pose of division, 198 Property of which partition may be ordered. 197 Receiver, appointment of in partition actions, 203 Eeceipt by husband of wife's share under. 213 Request for sale by married woman, how made, 220 Eights of third parties, 204 Sale when ordered, 206 — 10 Out of Court, 212 Supreme Com-t of Judicature Act, 1873, sect. 34, under, 197 Tenant for life and years, 199 In tail, 200 Terms on which partition granted, 203 Title deeds, custodj'- of, 205 Referred to chambers, 202 Transfer of legal estate on, 211, 212 When married woman interested, 213 Who may claim partition, 199 PARTITION ACT, 1868... 206 PARTITION ACT, 1876.. .218 PARTNERS, Estoppel in cases of holding out, 468 PARTNERSHIP, Ademption of share bequeathed, 825 Assignment of debts in, 128 Jiu'isdiction to wind up foreign partnership, 771 PATENTS, Assignment of future improvements in. 144 904 INDEX. PAYMENT INTO COURT, Infant's legacy, 845 PENSIONS AND SALAPJES, Assignment of, 141 — 3 PERSONAL ACTIONS, Jiu'isdiction of English Coui't when defendant within the j urisdic- tion, 769 PERSONAL CHATTELS, Legacy of, 795 PERSONAL ESTATE, Primarily liable for pajnnent of debts, 12. See Administmtiov. PERSONAL LICENCE, Cannot be assigned, 106 PERSONAL REPRESENTATIVE, Conveys land contracted to be sold before death, 343 PERSONALTY, Liable for debts if land simply given for payment of debts is insuffi- cient, 13 PIN MONEY, 727 POLICIES OF ASSURANCE, Assignment of, 138 POLICY OF ASSURANCE, Gift of parts of proceeds of, 794 Notice by encumbrancer of, 139 Specific legacy of, 832 POLICIES OF MARINE ASSURANCE, Assignment of, 139, 140 POLICY OP INSURANCE, Donatio mortis causa of, 411 PORTIONS, Marshalling as between portioners and creditors on real estate, 66 POWER, Election in cases of api^ointments under, 436 — S POWER OF APPOINTMENT, Ademption of legacy produced by exercise of, 827, 82(S By married woman under will, 082 Exercise of by married women, 686 PRECATORY TRUST, Trustee in executing, for children may limit shares of daughters to their separate use, 666 INDEX. 905 PEINCIPAL AND AGENT, Mandate from principal to agent equitable assignment, wlien, 111 Marshalling as between, 64 PRIOEITY, Gained by subsequent purchaser or encumbrancer giving notice. 116 Mortgages of ship and freight, 1 29 See also Notin-. PROHIBITION, To restrain proceedings, 742 PROTECTING ORDER, Effect of on property of wife, 670 Matrimonial Causes Act, 1857, under, 668, 669 PUBLIC POLICY, Agreement contrary to, 140 — 50 PURCHASE MONEY. Real representative of purchaser deceased entitled to piu'chase money of uncompleted contract to buy land in fee, 342 PURCHASER OF VALUE WITHOUT NOTICE, Instrument signed in blank by third party, 137 PURCHASER WITHOUT NOTICE, 134, 135 RAILWAY COMPANY, Conversion, notice to treat given by, effect of, 341, 3-12 RATE OF INTEREST, Legacies, 849, 858, 859 REAL ESTATE, Married woman's power of disposing' of by will, 682, 683 Notice in cases of eqviitable interests in, 130 Proceeds of sale of, luidispos.ed of, will not pass under a residuaiy bequest, 384 RECEIPT, Delivery by creditor to borrower of receipt, a good donatio mortis causa, 413 RECEIVERS, Appointment of in foreign countries, 772 Foreign companies, appointed of, 771 REDUCTION INTO POSSESSION, Husband by, of wife's choses in action, 157 Husband dying in wife's lifetime after assignment, 163 REGISTRY COUNTY, Assignment of legacy unnecessary in, 130 906 INDEX. EEMAINDEEMAN, Election, bound by, wben, 442 To take property unconverted, 35;) EENT, Gift of, passes the fee, 801 Legacy of, 797 EEPETITION OF LEGACIES, 869 Codicil explaining, 872 Different instruments co-extensive in their pro-vdsions, 873 Evidence of testator's intention, 875 Incidents of original attacb to substitutional legacies, 875 Intention governs, 871, 873 Intrinsic evidence, 871 Legacies of c^uantities given by the same instrument. 874 Quantity given in different instruments, 870 Modes or times of payment of each legacy varied, 871 No motive or different motive expressed, 872 Parol evidence, 873 Same motive expressed, 871 Specific thing given twice, 870 Second instrument referring to the first, 872 Several codicils, 874 Two documents in form although really one, 872, 873 Two instruments admitted to probate as one testament, 874 EESIDUAEY BEQUEST, Moneys arising from sale of real estate pass under residuary bequest of personalty, when, 385, 386 Proceeds of sale of real estate undisposed of, will not pass under, 384 Eesulting trust of personal estate, falls into, 386 To persons in succession, conversion in cases of, 79 EESIDUAEY DEVISEE, Previous to WiUs Act did not take an undisposed of sum except from real estate devised for sale, 386, 387 EESIDUAEY ESTATE IN COUET, Assignee of, takes subject to equities on, 134 EESIDUAEY LEGATEE, Entitled to proceeds of sale of real estate undisposed of, when, 384, 385 EESIDUE, Apportionment between tenant for life in gifts of residue in succes- sion, 857 Liability of for debts if land and residue are given exempt from debts, 13 EESTEAINING PEOCEEDING AT LAW, 739 Action in foreign country, 747 Administration under Bankruptcy Act, 746 Charging order obtained by creditor, 745 INDEX. 907 RESTEAINING PEOCEEDING AT luA^Y—rontinued. Company, after winding up order, 747 Creditor from proceeding after administration decree, 745, 746 Proceeding after notice of decree for administration, 746 Who has a judgment obtaining priority in administration suit, when, 744, 745 Discretion of Court, 748 Executor from being jH-oceeded against by creditor, 746 Garnishee order obtained by creditor, 745 Jurisdiction of High Court to restrain proceedings in Inferioi Coui't, 742 Legatee from proceeding to recover a legacy, 746 Modern legislation, 740 Numerous actions raising same point, 748 Old jiu'isdiction of equity as to, 739 Power to restrain applications for Acts of Parliament, 754 To restrain proceedings in foreign Courts, 749 Powers of High Court, 741 Principle upon which Court acts to restrain proceeding in foreign Coiirts, 752, 753 Prohibition, 742 Several proceeding in this coiuitry, 747 Shareholders bringing separate actions, 748 Stay of proceedings, when granted, 744 Transfer of proceedings from one division to another, 743, 744, 746 EESTEAINT ON ANTICIPATION, Attached to what, 710 Breaches of trust committed at the instigation of a woman restrained from anticipating, 724 Of trust committed by married woman restrained, 712 Covenant to settle after- acquired propei'ty, 721 Doctrine of equity as to, 709 Druation and extent of, 718 Englishwoman married, husband domiciled abroad, 712 Income accruing due de die in diem, 711 Judgment against married woman, ib. . Lapse of time and acquiescence, 723 Eelease of restraint by Court, 722, 723 AVhat words will restrain alienation, 711 When restraint ceases, ib. ELSULTING TEUST, 378 Accumiilatious void under Thellusson's Act, 379 Of personalty which are void notwithstanding diii-ction to con- vert into land, go to next of kin, ib. Blended fund of produce of real and personal estate, 387 Conversion absolute, partial failure of objects of, 382 Absolute, and entire failure of objects of, ib. Directed for jiarticular purpose, 38 .> For all purposes of the will, 384 For jiarticular piuposes of will only, 378 — 82 908 INDEX. RESULTING TUVST— continued. Devise to a particiilar person intended to be a charge only as distiu- guished from an exception, the failui-e of a particular devise will enure for benefit of specific devisee, 389 Direction, that the proceeds of sale shall be deemed personalty, 386 Doctrine of, in equity, 37iS Failure of disposition of money to arise from sale of land, //'. Gifts of money out of proceeds of real estate, 386 Heir, accumulations void under Thellusson's Act, go to, 379 And residuary legatee, 384 Eesulting trust to, 378 When excluded in favour of residuary legatee, 387 How heir and next of kin take property directed to be converted, 382 Intestate Estates Act, 1884... 389 Intestate Estates Act, 1890, ih. Mixed fund, 378, 388 Money directed to be laid out in land, 380 Next of kin, accumulations of personalty, which are void not- withstanding direction.s to convert into land, go to, 379, 380, 381 Residuary devise or bequest comprehending what would otherwise have resulted to heir or next of kin, 384 Sect. 25 of Wills Act, 388 Sum excepted out of produce of sale but not disposed of, 389 Undisposed of interest where no heir- or next of kin, ih. RE^TIRSIONARY INTEREST, Wife's, assignment of by husband, ]64, 165 REVERSIONARY PROPERTY, Conversion of, 77 REVERSIONS, Agreements between expectant heirs, 317 " Any reversionary interest," meaning of, under Sales of Reversions Act, 1867... 320 Family an-angements as to, 314 Inadequacy of price, what constitutes, on sale of. 317 Onus prohandi under Sales of Reversions Act, 319 Purchases of, when set aside, 318 Sales by auctions, 315 Sales of Reversions Act, 1867... 318 Under value, material when, 322 Still material under Sales of Reversions Act, 1867. ..31S "V\Tiat dealings with reversionary interest are impeachable, 314 SALES OF REVERSION ACT, 1867 . . .318 SCOTLAND, Election in case of heir of heritable property in, 436 LXDEX. 909 SET-OFF, after notice of assignment, 135 SEPAEATE PROPERTY, Executor of married woman has no right of retainer out of, 666 Of married woman, is equitable assets, ih. SEPARATE USE, Conveyance by husband or wife under Conveyancing Act, 660 Corpus, receijit by husband of, 694 Creditors bound by husband's aUowing wife to carrv on business for separate use, when, 666, 667 Doctrine of, 650, 659 Extended by legislation, 659, 667 Duration and extent of, 718 Equity in, 659 To settlement, under, 666 Fee simple of wife, how affected with trust for, 661 Gift without the interposition of trustees, 660 Husband agi-eeing to wife carrying on business independently, 660 And wife agreeing to live apart, 667 Converted into trustee for wife, when, 660 Gift by, 660 Outlay, will be for benefit of wife, 661 Suing wife, admits, 666 Trustee for wife, when, 666 Implication, by, 665 Income, receipt by husband of, 693 Interest of a fund, gives capital, 664 Law at, 658 Liability and devolution of separate estate after death, 702 Of corpus of married woman's property when she has a life interest with a power, 685 Of separate estate of wife's to general engagement. 688 Life, property settled for, with power to dispose by deed or will, 664 Mai-ried Women's Property Acts, 1870, 1880, 1893!. .670, 672, 679 Matiimonial Causes Act, 1857... 667 Parol agreement, treating, 659 Personal estate, wife's power of disposition over, when settled to her 081 Probate of will, 702 Real estate, wife's power of disposition over, when settled to her, ()82 Receipt by the husband of the income or coipus of the separate estate, 692 Restraint on anticipation does not infer, 666 Savings and arrears of separate estate, 706 Statutory extension of, 667 Torts, liability for, 691 Trustee in executing precatory trust for children may liniit shares of daughters to their separate use, 666 Wife's ante-nuptial debts and liabilities, 696 Power of disposition over property settled to, 6S1 Words not sufficient to create, 664, 665 Sufficient to create, 661 — 63 910 INDEX SEPx^RATIOX, Agreement to compromise matrimonial suit, (302 Agreements for, between husband and wife, J97 Breaches of contract for, 602, 603 Consideration in agreement for. 602 Contracts for future, 611 Dissolution of marriage, 609 " Dum casta " clause, 607 Judicial separation, 610 SETTLED LAND ACT, 18S2. Married woman tenant for life, 684 SHIP, Mortgage of, 129 Mortgagee entitled to freight, ih. SOLICITOE, Agreements by, with clients, 150 Catching bargain, by, 314 Compromise by, 238 Tuxchsised hy pendente life, 148, 149 SPECIFIC BEQUESTS, Effect of WiUs Act upon, 808—10 SPECIFIC LEGACY, 829 Abatement of, 843 Accretions to, 132 — 34 Bequest of residue of a fund, 839 Bond, 832 Bonus due at testator's death, 832 Compensation to legatee if specific legacy pawned, 829 Debt due on promissory note, 831 Dividends declared after death, 833 Fund given subject to debts, residue not specific, 839 Interest and dividends on shares specifically bequeathed, 832 Xatui-e and incidents of, 829 — 34 Part of specific fund is specific, 793 Pledged for more than worth, 829 Pledging or pawning does not adeem, 829 Policy of assurance to persons in succession, 832 Profits of partnership business, 832, 833 Specific sum to be sold and divided, 794 Stocks and shares, payment of caUs on, 830 Taken cum oriere, when, 829, 830 Tenant for life when entitled to dividend, under ordinary bequest of share, 834 Term of years, 797 WiUs Act, 808, 809 SPECIFIC PEEFOEMANCE, Ao-reement for separation between husband and wife, 597 Agreements between expectant heirs, 317 Executory contract, 600 Land out of the jurisdiction, 770 INDEX. 911 STATUTE OF LIMITATIONS, Api^licable to married women, 689 Legacy, 862 STAY OF PROCEEDIXGS, Instead of injunction, 741, 744 Jurisdiction of Coui't of Bankruptcy, 748, 749 STOCK Purcliased after death will not pass under specific legacy of, 813 STOCK IN TRADE. Legacy of, 796 STOCKS AND SHARES, Specific legacy of, 833 Legacy of, when legatee entitled to have calls jiaid out of testator's estate, 830 STOPPAGE IN TRANSITU, 137 SURETY, Marshalling in favour of, 63 TENANT FOR LIFE AND REMAINDERMEN, Apportionment between, gifts of residue in succession, 857, 858 TENANT FOR LIFE, Conversion between. See Conversion of Residue. Income of fund set aside for contingent legacies when tenant for life entitled to, 88 Leaseholds taken by railway company, 87 TENANTS IN COMMON, Election to take property unconverted, 359 TENANTS IN TAIL, Election to take property unconverted, 359 TEEM OF YEARS, Legacy of, 797 TEST ACTION, 748 THELLUSSON ACT, accumulations void under, 379 TIME OF PAYMENT OF LEGACIES, 848 Administration suit, 849 Demonstrative legacy, 848 Exception to rule of payment of legacies, 850, 851 General legacies, no time fixed by testator, 848 Immediate legacy, subject to be divested on a future contingency, 849, 850 Legacy to wife in lieu of dower, 852 91^ INDEX. TIME OF PAYMENT OF LEG ACIBS -continued. Eeal estate upon trust for sale, 852 Reversionary interest bequeathed, 848 Specific vested legacies, 848 TITHES, Legacy of, 797 TOET, Separate estate of married women liable to, when, 691 TRUST FOR SALE, Election ends, 357 Non sale will not prevent property vesting, 344 TRUSTS, Land abroad, of, 774 Discretion to sell. Court does not interfere with, 82 TRUSTEES, Election, trustee may exercise power when, 357 Not bound to answer enquii-ies as to encumbrances, 120 Notice to, 121, 122 UNDUE INFLUENCE, 265, 269. See Voluntary Donations. Appointment by wife in favour of husband, 283 Contract obtained by fear, 282 Delay, acquiescence, confirmation, 286 Fraud, or undue influence, must be proved when no special relation- ship between donor or donee, 281 Gifts by will, 287 How far Court will interfere as against third parties. 283, 284 Purchaser for value with or without notice, 285 Inadequate consideration, 283 Presumed from relation between parties, 269 Guardian and ward, 272, 284 Husband and wife, 272 Legal adviser and client, 274 Medical attendant, 279 Parent and child, 270 Persons in loco ixirentii, 270 Religious influences, 276 Other instances, 280 VOLUNTARY DEEDS, Election, 433 ' VOLUNTARY DONATIONS, Classification of cases invalidating, 267 Doctrine of equity as to setting aside, 266, 267 No special confidential relationship between donor and donee, 281 Set aside on ground of undue influence, 266 Undue influence [q-v.), ib. What amoimts to undue influence (q-v.), 268 INDEX. 913 YOLUNTEERS, Marshalling in cases of, 59 WAGES AND EARNINGS, Wife's under Married Women's Property Act, 1870.. .070 WARD OF COURT, 499 Annulling of marriage induced by fraul, 508 Contempt of Court to marry without leave, 503 Enquiry as to whether marriage valid, 503, 504 Equity to a settlement, 647 Marriage of ward, 500 Meaning of term, how made, 499 Not allowed out of jurisdiction, 523 Settlement on marriage, 502, 506 On ward where marriage without leave of Court, 504 Under Infant Settlement Act, how far valid, 508 WASTE, Committed abroad, 771 WEARING APPAREL, Legacy of, 797 WIFE, Law, at. could not be sued, 658 Power of disposition over property, 681 Separate use (q.v.), 658 WILL, C(mtrary intention within meaning of section 24 of Wills Act, 811 Election, in cases of, 421, 423, 433 Election, will not arise by mere recital in a will, 425 Gifts by, set aside on ground of undue influence, 287 Husband taking out probate to wife's, when, 703 Legacy adeemed not revived by republication of, 829 Lands purchased between date of will and codicil, pass when, 860 Lauds out of the jurisdiction, 777 Married woman by, 681 END OF VOLUME I. W. & T. — VOL. I. 53 BRADBURY, AGNEW, & <0. LD. , PRTXTERS, LONDON AND TONBRIDGE. LAW BOOKS.— SWEET AND MAXWELL, LIMITED, County Courts. — The Aunual County Courts Practice ; contaiuing the Jurisdic- tion aud Practice under the County Courts Act, the Bills of Exchange Act, and the Employers' Liability Act, and the Statutes and Rules of Practice. By His Honour Judge Smyly. 2 vols. 25s. Criminal Law. — Archbold's (J. F.) Pleading, Evidence and Practice in Criminal Cases, with the Statutes and Precedents of Indictments, by Sir J. Jervis. 22nd Edit. By W. F. Craies. 11. lis. 6d. 1900. The Ciiminal Evidence Act, 1898, with Intro- duction and Notes, by A. R. Butterwoi:th. 5s. 1898. A Collection of Criminal Acts, with Notes, &c. By W. F. Craies. 10s. 1894. Mew's Digest of Cases relating to Criminal Law to the end of 1897. 25s. 1898. Russell (Sir W. O.) on Crimes and Misde- meanours. 6th Edit. 3 vols. 5l.l5s.6cl. 1896. Roscoe's (H.) Digest of the Law of Evidence in Criminal Cases. 12th Ed. Bv A. P. Keep. 11. lis. 6d. 1898. Deeds. — Rules for the Interpretation of Deeds. With a Glossary. By Sir H. W. Elphinstone, R. F. Norton, and J. W. Clark. 2nd Edit. In 'preparation. Kelke's Epitome of Rules for Interpretation of Deeds. 6s. 1901. Dictionary. — The Judicial Dictionary of Words and Phrases Jlidicially Interpreted. By F. Stroud. 2nd Eilit. 3 vols. In the Press. Digest of English Case Law (The). — Sujierseding and Consolidating all previous Digests of the Reports down to the end of 1897, including a selection of Irish Cases. By John Mews, assisted by Nineteen other Barristers-at-Law. 201. 1898. Continued annually. A Digest of Cases Overruled, &c., in the English Courts to the end of 1899, By AV. A. G. AVooDS and J. Ritchie. In 2)reparation. Divorce. — Bkowne & Powles' Law and Practice in Divorce and Matrimonial Causes ; with the Statutes, Rules, Fees and Forms. 6th Edit. 25s. 1897. Easements. — Gale on Easements. 7th Edit. By G. Cave. 25s. 1899. Ecclesiastical Law. — Phiiiimore's Ecclesiastical Law of the Church of England. By Sir Robert Phillimore. 2nd Edit. 2 vols. 3Z. 3s. 1895. Ejectment.— Williams (J. H.) and Yates' (W. B.) Law of Ejectment. 16s. 1894. Equity. — White & Tudor's Selection of Leading Cases in Equity, with Notes. 7th Edit. By T. Snow and W. F, Phill- potts. 2 vols. 3Z. 15s. 1897. Kelke's Epitome of Leading Cases in Equity, founded on White and Tudor. Qs. 1901. Evidence. — Taylor's (Pitt) Treatise on the Law of Evidence, as administered in England and Ireland. By His Honour Judge Pitt-Taylor. 9th Edit. By G. Pitt- Lewis. In 2 vols. 3Z. 3s. 1895. Best's Principles of Evidence. With Elemen- tary Rules for conducting the Examination and Cross-Examination of Witnesses. 9th Ed. By J. M. Lely. 25s. 1902. Executors. — Williams' (Sir E. V.) | Treatise on the Law of Executors and Ad- [ ministrators. 9th Edit. U. 16s. 1893. i Factories. — Law relating to Factories and Workshops under the Factoiy and Workshop Act, 1901. AVith Rules, Orders, &c., and other Statutes aliecting the subject. By \V. BowsTEAD. 10s. 1901. Forms and Tables. — PtousE's Prac- tical Man. 1 7th Edit. Giving many extra Instructions, Forms, Rules and Tables. By E. E. H. Birch. 10s. U. 1900. Chitty's Forms of Proceedings in the King's Bench Division, and on appeal therefrom. 13th Edit. 36s. 1902. Fraud. — Kerr's Treatise on the Law of Fraud and Mistake. 3rd Edit. By S. E. Williams. 25s. 1902. Guide for Articled Clerks.— A new ' Guide for Articled Clerks, containing the most recent Regulations and Examination I Papers. By H. W. Stiff, Solr. 6s. 1895. j Guide to the Bar. — A New Guide to j the Bar, containing the most Recent Regu- lations and Examination Papers. By M.A. and LL.B., Barristers-at-Law. 5s. 1896. Horses. — Oliphant's Law of, including the Law of Innkeepers, Veterinary Surgeons, &c., and of Hunting, Racing, Wagers and Gaming. 5th Edit. By Clement Elphin- stone Lloyd, b.a. Oxon. 21s. 1896. Income Tax. — Income Tax Acts, with Introduction, Notes, and Cross-references. By H. St. G. Peacock. 15s. 1901. Injunctions. — Kerr on the Law and Practice of Injunctions. 4th Edit. By E. P. Hewitt, S. E. Williams, and J. M. Patersox. 35s. 1903. International Law.— Wbstlake, J., K.C., on Private International Law. 3rd Edit. 16.?. 1890. Interpleader. — Law and Practice of Interpleader in the High Court and County Courts. With Forms, &c. By M. Cababe. 3rd Edit. 6s. 1900. Justices. — Wigram's Justices' Note Book. 7th Edit. 10s. Qd. 1900. Landlord and Tenant.— Woodpall's Law of Landlord and Tenant. 17th Edit. By J. M. Lely. 38s. 1902. Leading Cases. — Smith's Leading Cases. 11th Edit. By T. AV. Chitty, H. Chitty and J. Herbert Williams. £3 10s. 1900. Fifteen Decisive Battles of the Law. By E. A. Jelf. 3s. M. 1903, Licensing. — Licensing Law. — So far as it relates to the Sale of Intoxicating Liquors, Theatres, Dancing, etc. ByR. M. Montgomery. 2nd Ed. 18s. 1902. Local Government and Taxation. An Outline of, in England and Wales, ex- cluding London. By R. S. Wright and H. Hobhouse. 2nd Edit. 7s. M. 1894. Master and Servant.— Smith's Law of Master and Servant, including therein Masters and Workmen in every description of Trade and Occupation. 5th Edit. 28s. 1902. Maxims. — Broom's (Dr.) Selection of Legal Maxims, Classified and Illustrated. 7th Ed. bv H. F. Manistt and H. Chitty. 28s, 1900. .if I SCKCCL CF LAW LIBRARY AT TTTATJIMTA 3, CHANCERY LANE, LOND Mercantile Law.— Smith's (J. ^v.) Compendium of Mercantile Law. lOtli Ed. By J. Macdonell, M.A. 2 vols. 21. 2s. 1890. Merchant Shipping.— A Treatise on the Law of Merchant Shipping. 4th Edit. By David Maclachlan, M.A. 2Z. 2s. 1892. Marsden's Digest of Cases relating to Shipping. Admiralty, and Marine Insurance to the end of 1897. 30s. 1899. Mining. — MacSwixxey (R. F.) on the Law of Mines, Minerals and Quarries. 2nd Edit. 21. 1897. Mortgages. — Robbins' (L. G. G.) Trea- tise on the Law of IMortgages, Pledges, and Hypothecations. 3/. 1897. Municipal Corporations.— Rawlin- s(in"s ^lunicipal Corporations Acts. 9th Edit. By J. F. P. Lawlinwon, k.c, and J. A. .loHNSTOX. 21. 2s. 1903. Nisi Prius. — Roscoe's (H.) Digest of the Law of Nisi Prius Evidence. 17th Edit. 2 vols. 21. 2s. 1900. Parish Law. — Steer's Parish Law. 6th Ed. 20s. 1899. Partnership. — A Treatise on the Law of Partnership. By the Right Hon. Sir Nathaniel Lindley, Knt., Master of the Rolls. 6th Edit., by W. B. Lindley, m.a. 35s. 1893. Patents. — Terrell's Law and Practice relating to Letters Patent for Inventions. By Thos. Terrell. 3rd Edit. 25s. 1895. Personal Property.— Goodeve's Mo- dem Law of Personal Property. 3rd Edit. By J. Herbert William.s. 18s. 1899. Kelke's Epitome of Pei-sonal Property Law. 6s. 1901. Williams' (Joshua) Principles of the Law of Personal Property, intended for Students. 15th Edit. 21s. 1900, Privy Council. — Practice of the Privy Council on Appeals from British and Colonial Courts. With Forms and Prece- dents. By F. Stafford and G. Wheeler. 21. 10s. 1901. Probate. — Powles & Oakley. A Treatise on the Principles and Practice of the Court of Probate in Contentious and Non-Contentious Business. Being the 3rd Ed. of Browne ON Probate. 1vol. 30s. 1892. Practice. — Stringer's ABC Guide to the Practice of the Supreme Court. 5s. 1902. Procedure. — High Court Procedure with reference to Firms, Cor[)orations, Com- panies, and other Associations. By R. E. Ross. 6s. 1902. Real Property. — Principles of the Law of Real Property. Intended as a First Book for the Use of Students in Conveyancing. By the late Jo.shua Williams, Esq. 19tli Ed. By T. C. Williams, LL.B. 21s. 1901. Goodeve's Modern Law of Real Property, with an Introduction for the Use of Students. 4th Edit. By Sir H. W. Elphin.stone and J. W. Clark. 21s. 1897. An Epitome of Real Property Law, for the Use of Students. By W. H. Hastings Kelke, M.A. 2nd Edit. 6s. 1899. Carson's Real Property Statutes. 10th Edit. By Thomas H. Car.son, k.c, assisted by Harold B. Bompas. 35s, 1902. AA 000 818 684 3 Receivers. — Kerus Law and Practice as to Receivers appointed by the Court of Chancerv. 4th Edit. By P. F, Wheeler and C. BruNEY. 10s. 1900. Roman Law. — Kelke's Epitome of Roman Law. ^os. 1901. Sale. — Bexjamin's (J. p.) Treatise on the Law of Sale of Personal Property, with reference to the American Decisions and the French Code and Civil Law. 5th Edit. In preparation. Ker{W. C. A.) and Pearson Gee's (A. B.) Commentary on the Sale of Goods Act, 1893 ; forming a supplement to Benjamin on Sale. 18s. 1894. Settled Land Acts.— The Law and Practice under the Settled Land Acts, 1882 to 1890, By Aubrey St, John Clerke, B.A. 2nd Edit. 9s, 1891, Sheriff Law.— Mather's (P. E.) Sheriff and Execution Law. 2ud Edit. 30s. 1903. Statutes. — Chitty's Statutes of Practi- cal Utility. New Edit. By J, M. Lely. Magna Charta to 1901. 14 vols. 15/. 15s. Continued by Annual Supplements. Maxwell on the Interpretation of Statutes. 3rd Edit. 21s. 1896. Support and Subsidence.— Banks. A Treatise on the Law of Support for Land, Buildings, and Public Works. By G. Banks, 12s. 1894, Title. — Hiuts as to Advising on Title. 3rd Edit. By W. H. Gover. 8s. 1896. Torts.— TJie Law of Torts. By J. F. Clerk and W. H. B. Linusell. 2nd Edit. 25s. 1896. Eraser's Compendium of the Law of Torts. 5th Edit. 8s. 1902. Trade Marks.— A Treatise on the Law of Trade Marks, Trade - Name, and Merchandise Marks. By U. M. Kerly. 2nd Edit. 35s. 1901. Trade Unions. — Trade Union Law and Cases. By H. Cohen and G. Howell. 6s. net. 1901. Trusts. — Lewin's (Thomas) Practical Treatise on the Law of Trusts. 10th Edit. 21. 2s. 1898. Romer's Judicial Trustees' Guide. Com- prising Synopsis and List of Trustees' In- vestments, and the Law and Practice on the subject. By T. A. Romer. 8s. 1898, Vendor and Purchaser. — Law re- lating to Vendors and Purchasers of Heal Property. ByT. C. William.s. In the Press. Waters. Law of Waters, Sea, Tidal, and Inland. Bv H. J. AV. Coul.son and U. A. Forres. 2nd Edit. 35s. 1902. Wills.— Jarman's (T.) Treatise on Wills. 5th Edit. 2 vols. 3/. 10s. 1893. Hayes (W.) and Jarman's (T.) Concise Form of Wills; witii Practical Notes. 11th Edit. By J. B. iMattiiews. 21s. 1898. Workmen's Compensation. — Law relating to Workmen's Compensation. With Rules, Regulations, Orders and Forms. By W. Bowstead. 9s. 1901. Minton-Senhouse. Accidents to Workmen, 2nd Edit. 25s. 1902, m