UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 A PRACTICAL EXPOSI'l'IOX 
 
 PRINCIPLES OF EQUITY. 
 
 [I.LUSTRATED BY TKE 
 
 LEADING DECISIONS THEREON 
 
 ^tui)entj) au& IBvactitioner.s. 
 
 BY 
 
 H. ARTHUR SMITH, M.A., LL.B. (Lond.) 
 
 OF THE MIDDLE TEMPLE, BAEBISTEB-AT-LA.W. 
 
 FIFTH EDITION, 
 
 LONDON : 
 
 STEVENS AND SONS, LIMITED, 
 119 & 120, CHANCEEY LANE. 
 
 TORONTO : PHILADELPHIA : 
 
 CANADA LAW BOOK CO., LTD. CROMARTY LAW BOOK CO. 
 
 1914.
 

 
 Ill 
 
 PREFACE 
 
 TO THE FIFTH EDITION. 
 
 Since the last edition of this work appeared in 
 1908, the Legislature has produced but few statutes 
 affecting the matters herein considered. The most 
 conspicuously important have been the Conveyancing 
 Act of 1911, which is of far-reaching effect in many 
 respects, and the Copyright Act of the same year. 
 The latter, embodying as it does many principles 
 which previously rested on the authority of decisions 
 in the equity Courts, has necessitated the re-writing 
 and admitted of the abbreviation of the section 
 dealing with that subject. The Bankruptcy Act, 
 1913, has also required numerous references. 
 
 The decisions of the Courts bearing on the 
 matters under review have been, as usual, numerous, 
 and have been carefully, and it is hoped sufficiently, 
 noted so as to guide not only the student but the 
 practitioner in all questions within the scope of the 
 work. 
 
 H. A. S. 
 
 4, Elm Court, Temple, 
 June, 1914.
 
 PREFACE 
 
 TO THE FIEST EDITION. 
 
 In the course of his own reading for law examinations, and in 
 directing the studies of others, the author has often experienced 
 a difficulty in distinguishing between the principles of law and 
 equity for the time being in force, and doctrines which have 
 been rendered obsolete by the course of recent decisions or the 
 current of legislation; and he has observed that this difficulty 
 is often traceable to the fact that though the standard books in 
 use have, whilst passing through their many editions, recorded 
 the bare results of changes, yet no attempt has been made to 
 modify accordingly the general outline and classification of the 
 subject. 
 
 .. . Another frequent difficulty has been to meet the require- 
 ments of examiners by establishingva clear association of leading 
 principles with leading cases. It is indeed true that many 
 works designed to effect this object are before the public, all, as 
 far as equity is concerned, deriving their inspiration from the 
 invaluabk' work of Messrs. White and Tudor. But this work, 
 to which almost all living writers on the subject must acknow- 
 ledge their obligations, is too voluminous for convenient use by 
 students, and, moreover, it makes no pretension to a classification 
 of its admirably selected cases, or to any systematic exposition 
 of the principles of equity. The other works referred to are, 
 on the contrary, all of them too small and elementary to be 
 relied on alone. Readers have, therefore, . been compelled to 
 refer to one book as their main informant on their subject, and 
 to another as a means of cementing the association between its 
 leading doctrines and its leading decisions. 
 
 It has been the author's especial design in the preparation of 
 this work to meet both these difficulties. With respect to the 
 former of them, such an effort has been rendered all the more 
 necessary by the extensive and radical change which was effected
 
 VI rKEFACE TO THE FIRST EDIl'ION. 
 
 by the Judicature Acts of 1873 and 1875. Not only is detailed 
 reference to the provisions of these statutes necessary under 
 almost every branch of the subject, but the fusion of equity 
 and law thereby effected demands a fundamental change in the 
 general classification and division thereof. It is evidently no 
 slight advantage to the reader to have before him a classification 
 based on existing conditions, rather than one which, having 
 been devised under very different circumstances, has been from 
 time to time corrected and modified in an unsystematic and 
 disjointed manner. 
 
 But besides these statutes of supreme importance, there arc 
 many others which, not being retrospective, have introduced 
 new law without rendering the old obsolete. In such cases the 
 student has to learn two sets of doctrines, one of which is 
 applicable to one set of cases, another to another. In order 
 to avoid confusion in these circumstances the author has been 
 careful to indicate the difference by the use of appropriate 
 tenses, as well as by marking the change conspicuously in the 
 division of the various chapters and t^ections. This may be 
 illustrated by reference to the recent Real Property' and Con- 
 veyancing Act (1881), the provisions of which, so far as bearing 
 upon the matters discussed, have been fully set out. 
 
 With the view of bringing important leading cases promi- 
 nently before the eye of the reader, they have been conspicu- 
 ously printed under their respective headings. The selection 
 of Messrs. White and Tudor has been followed in the main, as 
 not only being excellent in itself, but as being familiarly known 
 by the profession, and more or less so by all Avho have entered 
 upon the study of equit}^. It has, however, been supplemented 
 by many additional cases bearing on matters not treated of by 
 those learned authors. 
 
 It is hoped that the designs thus attempted will jirove to 
 have been accomplished, at least to a sufficient degree to confer 
 some benefit upon the present and future members of the 
 profession. 
 
 H. A. S. 
 
 1, New Square, Lincoln's Inn, 
 
 January, 1882. >
 
 Vll 
 
 TABLE OF CONTENTS. 
 
 INTRODUCTION . 
 
 I. Design of tlie Wurk . 
 II. Division of the Subject 
 
 PAGE 
 
 1—6 
 
 PART I. 
 
 WHERE THE JURISDICTION RESTS ON THE DISTINCT 
 SUBSTANTIVE PRINCIPLES OF EQUITY. 
 
 Inteoduction . . . . . 
 I . Meaning' of the woi'd Equity 
 H. l')istinction between Equity and Law 
 III. Analysis of the Maxims of Equity 
 
 7—18 
 
 CHAPTER 1. 
 
 TRUSTS. 
 
 Sectiox I. Genkeal Vikw . 
 
 I. Historical Outline and Definition . 
 II. What may be the subject of a Trust 
 Who may be a Trustee . 
 Who may be a Cestui que Trust 
 
 Charities . 
 Classification of Trusts . 
 
 III. 
 IV. 
 
 Section II. Expeess Trusts 
 I. The creation of the Trust 
 II. Distinction between executed and executory 
 III. Voluntary Conveyances and Trusts 
 
 Section III. Resulting oe liiPLiED Teusts . 
 Definition and Classification 
 I. Parting with Legal and retaining Equitable 
 II. Purchase in the names of Third Persons 
 
 III. Exceptions. Presumption of Advancement 
 
 IV. Joint Purchases 
 
 Trusts 
 
 Interest 
 
 19—36 
 
 7G— 91
 
 VIU 
 
 IVVBLK OF ('ONTKN'I'.S. 
 
 Section iV. Cox&teuctive Trusts 
 
 I. Definitiou ...... 
 
 II. Renewal of Leases by Trustees 
 III. Purchase of Trust Property by Trustees 
 
 Section V. Duties and Liabilities of Trustees . 
 
 I. Gcttiug in Trust Property. Perislmble Property 
 II. Custody of Trust Property 
 
 III. Investment . 
 
 IV. Liability of Co-trustees 
 V. Remedies ag'ainst Trustees 
 
 VI. Remuneration of Trustees 
 
 nd 
 
 PAiii'; 
 ;i2 11.') 
 
 ll(j— 17 
 
 CHAPTER II. 
 
 FRAUD 
 
 Distinction between Law and Equity" 
 Classification of Frauds 
 I . Actual Fraud .... 
 
 1. Arising from Wrongful Acts 
 
 2. ,, ,, ,, Omissions 
 n. Transactions deemed on general grounds inequitable . 
 
 1 . Fraud presumed from the nature of the Transaction 
 '2. ,, ,. ,, cii'cumstances of the Partie.' 
 
 HI. Frauds on Public Policy ....... 
 
 IV, Frauds on tlie Priv^ate Rights of Third Persons 
 
 219 
 
 CHAPTEE III. 
 
 MISTAKE AND ACCIDENT. 
 Section I. Mistake 
 
 Description .... 
 I. Mistakes of Law . 
 ri. Mistakes of Fact . 
 
 1. Fundameutal Mistakes 
 '2. Unilateral Mistakes as to Subject-nuitte 
 Mistakes of Expression 
 
 Rectification of Instruments 
 Defective execution of Powers 
 
 Section II. Accident ..... 
 
 Definition ...... 
 
 I. Remedy at Law ..... 
 
 II. Remedies in E<|uity .... 
 
 ■-'•20—244 
 
 21.' 
 
 -251
 
 TABLE OP^ CONTENTS. 
 
 IX 
 
 CHAPTER IV. 
 
 RELIEF AGAINST PENALTIES AND EORFEITURE 
 
 I'rinciple of ynmting' Relief ..... 
 
 PAGE 
 
 .'52—263 
 
 I. Relief, when given 
 II. Limits of the Principle 
 
 CHAPTEE V. 
 MORTGAGES AND LIENS. 
 
 Section I. MoETOACiKS at Law and in Euuity 
 I. Mortgages at Counnon Law 
 II. The Equity of Redemption . 
 
 III. Assignment of Mortgage.s 
 
 IV. Persons entitled to redeem . 
 V. Time of Redemption 
 
 VI. Mortgages of a Wife's Property 
 VII. Mortgages of Personalty. Bills of Sale 
 Section II. Rights of Moetgagoe and Moetgagee 
 I. Rights of a Mortgagor in Posses.sion 
 II. Accounting ..... 
 III. Remedies of Mortgagees 
 
 IV. Tacking 
 
 V. Consolidation .... 
 
 Section III. Equitable Moetgages 
 I. By Agreement 
 [I. By deposit of Title Deeds 
 III. Remedies 
 
 Section IV. Liens ......... 337 — 35'J 
 
 Generally 
 I. Liens at Law 
 II. Equitable Liens . 
 
 1. Charges 
 
 2. Vendor's Lieu 
 
 3. Vendee's Lieu 
 
 SErnoN y. EauiTABLE Peinciples pahtioularly ai'fectinu Mortgages 
 
 AND Sales ......... 3.53—391 
 
 I. Notice 
 
 1. What constitutes Notice 
 
 Actual Notice . 
 Constructive Notice . 
 
 2. Effects of Notice . 
 
 3. Matters analogous to Notice 
 II. Defence of Purchase for Value without Notice 
 
 III. Liability of Purchasers for application of Purchase-money 
 
 IV. Assignment of Possibilities and Choses in Action . 
 
 2(34—290 
 
 2y 1—324 
 
 —336
 
 TABLE OF CON'J'KN IS. 
 
 CHAPTEK VI. 
 
 SURETYSHIP 
 
 I. Contrast between Legal and E<iuitablp Doctrines 
 II. General Principles of Equity 
 
 III. Releases and Compositioni? . 
 
 IV. Continuing Suretyship or Guamnteo 
 V. Ciintribution between Co-sureties 
 
 VI. Right of Surety to Securities 
 
 Fi.QE 
 
 392—411 
 
 CHAPTEK VII. 
 MARRIED WOMEN. 
 Section I. Equitable Uocteixes as to Makeieu ^\'oMf:N . . H2 — 462 
 General Comparison of Law and Equity 
 I. Separate Estate in Equity . 
 
 Restraint on Anticipation . 
 Pin-money 
 Paraphernalia 
 II. Tlir Equity to a Settlement 
 
 1 . The Nature of the Right 
 
 2. Out of what Property it may 
 ."i. Waiver .... 
 
 4. How barred . 
 
 5. Amount settled 
 
 6. Form of Settlement 
 
 7. How far binding on Creditors 
 Reduction into Possession by Husband 
 
 III. Fraud on Marital Rights 
 
 Skction II. The Makeied Women's Peoveety Act, 1882 . i.'i'c 
 
 I. Statutory separate Property .... 
 
 II. Contractual PoAvers ...... 
 
 be claimpd 
 
 -461 
 
 CHAPTP]E VIII. 
 
 INFANTS 
 
 I. Guardianship ..... 
 Parents ..... 
 Testamentary Guardians 
 Appointment by the Court . 
 II. Maintenance ..... 
 III. Advancement ■ . 
 Xute. 
 Jui'isdiction as to Lunatics . 
 
 460—486 
 
 186—489
 
 TABI>K OF CONTENTS. 
 
 M 
 
 CHAPTEE IX. 
 
 SATISFACTION. 
 
 ELECTION. TON VERSION, 
 FORMANCE. 
 Section I. Elkction 
 I. General Principle 
 II. Conditions of Election . 
 
 III. Election under Powers 
 
 IV. Miscellaneous Cases 
 V. Election, how effected . 
 
 VI. Effects of Election 
 
 Section II. Conveesion and Kkconvkesiox 
 General Principle 
 I. Conversion, how effected 
 II. Effects of Conversion . 
 
 III. Time from which it tiikes place . 
 
 IV. Failure of Purposes of Conversion 
 V. Character of Resulting Property 
 
 Reconveksion. 
 
 AND PER- 
 
 PAOB 
 
 .jr)O_506 
 
 .507—530 
 
 Section III. Satisk action and Pbefoemance 
 Satisfaction. 
 I. Where the satisfied Claim arise« from Bountv 
 Legacies- Portions . . . - 
 II. Satisfaction of Debts ..... 
 Pbefohmancf,. 
 
 .731-558 
 
 PART II. 
 
 N^TIERE the .IURISDICTION rests on the DISTINCTIVE 
 PROCEDURE OF EQUITY. 
 
 Inteoductio.v ........... 5.55 — 560 
 
 CHAPTER 1. 
 
 THE GENERAL PRINCIPLES OF ACCOUNT .... -561 -577 
 
 I. Appropriation of Payments ........ 
 
 II. Appropriation of Securities ........ 
 
 III. Set-off 
 
 IV. Apportionment .......... 
 
 V. Contribution 
 
 VI. Defences to an Action for Account ......
 
 Xll 
 
 TABLK UF C0NTKNT8. 
 
 CHAPTER 11. 
 THE ADMINISTRA.TION OF ASSETS. 
 
 Section I. Abministeation Genekally 
 
 I. What is meant by Assets 
 
 Legal and Equitable Assets 
 II. Priority of Debts . 
 
 III. Ordei' of Administration 
 
 IV. Payment of Mortgage Debts 
 V. Marshalling of Assets . 
 
 VI. ,, ,, Securities 
 
 Section II. Matters Relative to AD.\riNisTKATiON 
 I Legacies ....... 
 
 1 . Specific, ...... 
 
 '1. Demonstrative ..... 
 
 ;i. Time of Payment and Inter<:'st . 
 
 II. honufioi/es Mortis (Jausd . 
 
 PAGE 
 .578-614 
 
 Glo— G34 
 
 CHAPTEE III. 
 
 PARTNERSHIP 
 
 Development of the Law of Part uershij) 
 I. The Nature of Partnership . 
 II. The Relations of Partners to Third Persuns 
 
 III. The Relations of Partners lulcr nr 
 
 IV. The Dissolution of Partnership 
 
 630—661 
 
 CHAPTER IV. 
 
 PARTITION AND SETTLEMENT OF BOUNDARIES. 
 
 t 
 
 Section I. Paktition ......... 662—677 
 
 I. Who may claim Partition 
 II. What is subject to ,, 
 
 III. Mode of effecting ,, 
 
 IV. The Partition Acts 
 V. Costs 
 
 Section II. Settlement of Bound awes ..... 678 — 6 to
 
 TABLE OF CONTENTS. 
 
 Xlll 
 
 CHAPTER V. 
 
 SPECIFIC PERFORMANCE. 
 
 .Skction I. Principles of the Jueisdiction . 
 
 I. Generally ........ 
 
 II. Grounds for refusing Relief .... 
 
 III. Statutory Modifications ..... 
 
 Section II. To -what Contracts the Remedy is applied 
 I. Contracts relating to Land ..... 
 
 II. ,, ,, ,, Personal Chattels 
 
 III. ,, ,, ,, Per.Honal Acts 
 
 Section III. Defence of the Statute of Frauds 
 
 I. Part Performance ...... 
 
 II. Other Grounds for Relief ..... 
 
 III. Evidence as to Parol Variations .... 
 
 Section IV. Specific Performance with a Variation 
 Contrast of Law and Equity .... 
 
 I. Where the Dispute relates to Time 
 II. ,, ,, ,, ,, ., Quantity or Quality 
 
 CHAPTEE VI. 
 INJUNCTIONS. 
 
 Generall.y ...... 
 
 Section I. Restraining Equitable Wrongs 
 I. Preventing Abuse of Legal Processes . 
 II. Protecting Equitable Estates and Interests 
 Section II. Restraining Legal Wrongs 
 I. Protecting Rights in Land 
 
 1. Waste . 
 
 2. Trespass 
 
 3. Nuisances 
 
 4. Injunctions against Libel, &( 
 IT. Protecting Patent Rights, &c. . 
 
 1. Patents . 
 
 2. Copyright 
 
 3. Trade-Marks 
 
 4. Goodwill 
 
 PAGE 
 
 681— r,88 
 
 G89— 700 
 
 701 
 
 '16 
 
 —715 
 
 r33 
 
 734—738 
 739—7,50 
 
 7.51 
 
 -796 
 
 CHAPTER VII. 
 
 INSTANCES OF JURISDICTION ANALOGOUS TO 
 TION 
 
 I. Cancellation and Delivery up of Documents 
 II. Actions to establish Wills .... 
 
 III. Actions Quia Timet ..... 
 
 IV. Actions in the Nature of Bills of Peace 
 V. Writ of Kr Exeat Regno .... 
 
 VI. Actions to perpetuate Testimony . 
 
 INJUNC- 
 
 r97 
 
 81.5
 
 ( ^y ) 
 
 TABLE OF STATUTES. 
 
 20 Hen. III. c. 4 (Commons) 
 
 I Rich. III. c. 1 (Uses) . 
 19 Hen. VII. o. lo (Uses) . 
 
 26 Hen. VIII. c. 13 ( ,, ) . 
 
 27 Hen. VIII. c. 10 ( „ ) . 
 
 31 Hen. VIII. c. 1 (Statute of Partition) 
 
 32 Hen. VIII. c. 32 (Partition) . 
 4 & 5 Pli. & Mary, c. 8 (Guardians) . 
 13 Eliz. c. 5 (Fraudulent Conveyances) 
 27 Eliz. 0. 4 (Voluntary ,, i 
 43 Eliz. c. 4 (Charities) 
 
 21 Jac. I. c. 3 (Patents) 
 
 c. 16 (Limitations) 
 
 12 Car. II. c. 24 (Testamentary Guardians) 
 29 Car. II. <^. 3 (Frauds)— 
 
 s. 4 (Agreements in Writing) 
 ss. 7—9 (Trusts) 
 
 3 & 4 Will. & Mary, c. 14 (Fraudulent Devises 
 
 4 k 5 Will. & Mary, c. 20 (Dockets) . 
 
 8 & 9 Will. III. c. 11 (Penalties of Bonds) 
 
 3 & 4 Anne, c. 4 (Assignment of Notes) 
 
 4 & 5 Anne, c. 16 (Penalties of Bonds ; Accouu 
 
 6 Anne, c. 2 (Irish Registration) 
 
 7 Anne, c. 20 (Middlesex Registry) . 
 
 e. 25 (Assignment uf Notes) . 
 4 Geo. II. c. 28 (Leases) .... 
 
 8 Geo. II. c. 13 (Copyright) 
 
 9 Geo. II. c. 22 (Set-off) .... 
 
 c. 36 (Mortmain) 
 
 II Geo. II. c. 19 (Apportionment; 
 17 Geo. II. c. 38 (Poor Rates) . 
 7 Geo. III. c. 38 (Copyright) . 
 
 13 Geo. III. c. 63 (Evidence) . 
 
 46 Geo. III. c. 69 (Assignment of Salaries) 
 
 47 Geo. III. c. 2;') ( ,, „ ) 
 
 c:. 74 (Real Assets) 
 51 Geo. III. c. 56 (Copyright) , 
 
 t) 
 
 PAOE 
 
 808 
 21 
 
 21 
 
 21 
 
 21-23 
 
 . 6G4 
 
 664, 667 
 
 . 466 
 
 6;j, 67, 87. 447 
 
 68, 69. 87, 27.^) 
 
 28 
 
 . 778 
 
 . 149, 277 
 
 . 47(1 
 
 iS, 326, 689, 701 
 
 37, 38 
 
 315, .'.79. 582 
 
 . 586 
 
 . 254 
 
 . 379 
 
 3.^4, 557 
 
 . 362 
 
 . 349 
 
 . 379 
 
 . 255 
 
 783 
 
 . 568 
 
 34, 34.'), .il.), 683 
 . 573 
 . 584 
 . 783 
 . 815 
 . 389 
 . 389 
 . 579 
 . 783
 
 XVI 
 
 TABLE OB^ STATUTES. 
 
 55 Geo. III. c. 184 (Legacy Duty) . 
 4 Geo. IV. c. 76 (Marriage of Infants) 
 
 1 Will. IV. c. 22 (Evidence de bene esae) 
 
 c. 40 (Undisposed- of Residue) 
 c. 46 (Illusory Appointments) 
 
 2 & 3 Will. IV. 0. 71 (Prescription^ . 
 
 3 & 4 Will. IV. c. 15 (Copyright) 
 
 c. 27 (Limitations) 
 
 c. 42( „ ) . 
 
 c. 74 (Fines and Recoveries) 
 
 c. 104 (Real Assets) . 
 
 c. 105 (Dower) . 
 
 c. 106 (Descents) 
 
 4 & 5 Will. IV. c. 40 (Building Societies) 
 
 5 Will. IV. c. 22 (Apportionment) . 
 
 5 & 6 Will. IV. c. 65 (Copyright) 
 
 6 & 7 Will. IV. c. 92 (Building Societies) 
 
 1 Vict. c. 26 (Wills) 
 
 34, 242, 
 
 1 & 2 Vict. c. 110 (Judgments) . 
 
 2 & 3 Vict. c. 11 ( „ ) . 
 
 c. 54 (Custody of Infants) 
 
 4 & 5 Vict. c. 35 (Partition) 
 
 5 & 6 Vict. c. 45 (Copyright) . 
 
 c. 69 (Perpetuation of Testimony) 
 8 & 9 Vict. c. 18 (Lands Clauses) 
 
 c. 19 (Railway Bonds) 
 
 c. 76 (Legacy Duty) 
 
 c. 89 (Registry of Ships) 
 
 c. 106 (Real Property) 
 10 & 1 1 Vict. c. 96 (Trustee Relief) . 
 
 12 & 13 Vict. c. 26 (Leasing Powers) 
 
 c. 74 (Trustee Relief) . 
 
 13 & 14 Vict. c. 17 (Leasing Powers) 
 
 c. 60 (Trustee Act, 1850) 
 
 14 & 15 Vict. c. 83 (Lords Justices) , 
 
 15 & 16 Vict. c. 12 (Copyright, Lithographs 
 
 c. 55 (Trustee Act) 
 
 c. 76 (C. L. P. Act) . 
 
 c. 86 (Chancery Amendment) 
 
 16 k 17 Vict. c. 70 (Lunacy) 
 
 17 & 18 Vict. c. 36 (Bills of Sale) 
 
 c. 90 (Usurj^) 
 
 c. 104 (Merchant Shipping) 
 c. 113 (Mortgage Debts) 
 c. 125 (C. L. Procedure) 
 
 277 
 
 45, 502, 51i 
 
 PAGE 
 
 . 514 
 
 . 474 
 
 . 815 
 
 . 167 
 
 . 218 
 
 . 770 
 
 . 783 
 
 278, 309 ff, 346, 664, 756 
 
 310 ff 
 
 38, 419, 443, 527, 528 
 
 315, 498, 579, 582 
 
 502, 514, 617, 666 
 
 502, 596 
 
 . 584 
 
 . 573 
 
 . 783 
 
 . 260 
 
 522, 598, 600, 616, 617, 
 
 632, 709 
 
 66, 318, 584, 580 
 
 363, 586 
 
 . 468 
 
 . 666 
 
 783, 791 
 
 . 814 
 
 96, 121, 512 
 
 . 379 
 
 . 634 
 
 . 695 
 
 6, 381, 443 
 
 . 159 
 
 . 241 
 
 . 159 
 
 . 241 
 
 152, 670 
 
 . 487 
 
 . 783 
 
 . 152 
 
 247, 255 
 
 305, 370 
 
 . 487 
 
 284 et seq. 
 
 . 190 
 
 . 695 
 
 346, 600 ff, 606 
 
 249, 558, 698, 740, 762
 
 TABLE OF STATUTES. 
 
 XVII 
 
 
 
 
 PAGE 
 
 18 & 19 Vict. c. 43 (Infants' Settlements) 478 
 
 n. Ill (Bills of Lading) 
 
 
 
 . 379 
 
 19 & 20 Vict. c. 97 (Mercantile Law Amendment 
 
 
 
 . 410 
 
 20&'21 Vict. c. 57 (Malins' Act) .... 
 
 
 
 . 443, 506 
 
 0. 77 (Court of Probate) 
 
 
 
 . 803 
 
 c. 85 (Divorce, &c.) 
 
 
 
 . 453 
 
 21 & 22 Vict. c. 27 (Cairns' Act) 
 
 
 
 r.SG, 687, 696 
 
 c. 93 (Legitimacy, Declaration) . 
 
 
 
 . 814 
 
 c. 94 (Partition) 
 
 
 
 . 666 
 
 c. 108 (Protection Order) 
 
 
 
 . 453 
 
 22 & 23 Vict. c. 35 (Lord St. Leonards' Act) — 
 
 
 
 
 s. 4 (Insurance) . 
 
 
 
 . 263 
 
 ss. 12, 13 (Execution of Deeds) 
 
 
 
 . 242 
 
 S8. 14—18 (Charge of Debts) 
 
 
 
 . 378 
 
 s. 23 (Trustee's Receipts) 
 
 
 
 . 377 
 
 s. 29 (Trustee's Protection) . 
 
 
 
 , 145, 589 
 
 s. 30 (Advice and Direction) 
 
 
 
 . 159 
 
 s. 31 (Indemnity) 
 
 
 
 . 126, 140 
 
 s. 32 (Investments) 
 
 
 
 . 133 
 
 23 & 24 Vict. c. 38, ss. 3—5 (Judgments) . 
 
 
 
 . 274, 364, 586 
 
 c. 83 (Infants' Settlements) . 
 
 
 
 . 478 
 
 c. 126 (C. L. Procedure) 
 
 
 
 . 254, 263 
 
 c. 127 (Solicitor's Lien) 
 
 
 
 . 340 
 
 c. 145 (Lord Cranworth's) — 
 
 
 
 ss. 11 — 16 (Mortgagees' Powers) 
 
 
 . 299, 303 
 
 s. 26 (Maintenance) . 
 
 
 480 ff 
 
 s. 29 (Trustee's Receipts) . 
 
 
 
 . 377 
 
 s. 30 (Compounding Debts) 
 
 
 
 . 117 
 
 24 & 25 Vict. c. 96 (Fraudulent Trustees) . 
 
 
 
 . 150 
 
 25 & 26 Vict. c. 28 (Copyright, Paintings) 
 
 
 
 . 783 
 
 c. 42 (Rolfs Act) .... 
 
 
 
 G8S, 768, 809 
 
 c. 53 (Land Registry) . 
 
 
 
 . 328 
 
 c. 63 (Merchant Shipping) . 
 
 
 
 . 339 
 
 c. 89 (Companies) 
 
 
 
 585, 638, 749 
 
 26 & 27 Vict. c. 57 (Regimental Debts) 
 
 
 
 . 584 
 
 27 & 28 Vict. c. 112 (Judgments) 
 
 
 
 274, 318, 364 
 
 c. 114 (Improvement of Land) 
 
 
 
 . 101, 131 
 
 28 & 29 Vict. c. 86 (Bovill's Act) 
 
 
 
 .639 
 
 30 & 31 Vict. c. 59 (Relief from Forfeiture) 
 
 
 
 . 255 
 
 c. 69 (Vendor's Lien) . 
 
 
 
 . 346, 606 
 
 c. 144 (Life Policies) . 
 
 
 
 64, 379 
 
 31 Vict. c. 4 (Sales of Reversions) 
 
 
 
 . 186 
 
 31 & 32 Vict. c. 40 (Partition) .... 
 
 
 
 513, 523, 669 ff 
 
 c. S6 (Mai'ine Policies) . 
 
 
 
 64, 379 
 
 32 & 33 Vict. c. 46 (Specialty Debts) . 
 
 
 
 581, 583, 589 
 
 c. 62 (Debtors) 
 
 S. 
 
 
 
 . 811 
 
 b
 
 XVlll 
 
 TABLE OF STATUTES. 
 
 85. 4 
 
 33 Vict. c. 1 4 (Naturalisation) .... 
 
 33 & 34 Vict. c. 23 (Forfeiture) .... 
 
 c. 28 (Solicitor's Remuneration) . 
 
 c. 35 (Apportionment) . 
 
 c. 93 (Married Women's Property) 
 
 36 Vict. c. 12 (Infants' Custody) . . \ 
 
 3G & 37 Vict. c. 66 (Judicature) 
 
 s. 18 (Appeal to Privy Council) . 
 s. 24 (Concurrent Jurisdiction) 
 § 2 (Equitable Defences) 
 § 5 (Injunctions) .... 
 § 6 (Legal and Equitable Claims) 
 s. 2r), § 2 (Trusts) .... 
 
 ^ 3 (Waste) 
 
 § 5 (Mortgagor's Rights) . 
 
 ^ 6 (Assignment of Choses in Action) 
 
 § 7 (Stipulations in Contracts) 
 
 § 8 (Injunction, Receiver) . 
 
 § 11 (Equity to prevail) 
 
 14, 4 
 
 49, 1 
 
 PAGE 
 
 26, 28, 514 
 
 . 154 
 
 113, 198, 390 
 
 . 573 
 
 3, 463, 581 
 
 466 ff 
 
 369, 439 
 
 . 487 
 
 s. 34 (Jurisdiction of Chancery Div.) 
 
 O. III. (Summary Pi'ocedure) 
 XIV. (Summary Procedure) 
 XIX. (Set-off) 
 XXXI. (Discovery) 
 XXXVII. (Evidence) . 
 XLVI. (Stop Order) 
 XLIX. (Transfer of Causes) 
 LI. (Sale out of Court) . 
 LV. (Powers of Masters) 
 LXV. (Set-off for Costs) 
 
 37 & 38 Vict. c. 37 (Exclusive Powers) 
 
 c. 50 (Married Women's Property) 
 
 c. 57 (Limitations) 
 
 c. 62 (Infants' Relief) 
 
 c. 78 (Vendor and Purchaser) 
 
 38 & 39 Vict. c. 60 (Friendly Societies) 
 
 c. 77 (Judicature) 
 
 s. 7 (Lords Justices) 
 8. 10 (Administration) 
 
 c. 87 (Land Transfer) . 
 
 39 & 40 Vict. c. 17 (Partition) . 
 
 40 & 41 Vict. c. 34 (Mortgage Debts) 
 
 41 Vict. c. 19 (Protection Order) 
 
 41 & 42 Vict. c. 31 (Bills of Sale) 
 
 42 & 43 Vict. c. 59 (Set-off) 
 
 . 370 
 
 . 740 
 
 370, 439 
 
 . 149 
 
 . 757 
 
 . 294 
 
 64, 387 
 
 . 718 
 
 762, 807 
 
 3, 757 
 
 2, 267, 465, 636, 662, 
 
 688, 787, 809 
 
 . 301 
 
 . 301, 584 
 
 . 569, 571 
 
 . 815 
 
 . 815 
 
 . 386 
 
 . 745 
 
 . 674 
 
 . 160, 558 
 
 . 341 
 
 . 219 
 
 453, 463, 464 
 
 265, 278, 309 ff, 346 
 
 . 192 
 
 320, 358, 717 
 
 . 584 
 
 . 740 
 
 . 487 
 
 336, 583, 590 
 
 320, 328, 357 
 
 670, 671, 675 
 
 346, 606, 607 
 
 . 453 
 
 285 ff 
 
 . 568
 
 TAT5LE OF STATUTES. 
 
 XIX 
 
 44 & 4") Vict. c. 12 (Probate Duty) . 
 
 c. 21 (Savings Banks) .... 
 
 c. 41 (Conveyancing and Law of Property) 
 s. 2 (Definitions) ..." 
 s. 6 (General Words) 
 s. 10 (Lease) .... 
 
 s. 14 (Forfeiture of Leases) . 
 8. 15 (Conveyance by Mortgagor) . 
 s. 17 (Consolidation) 
 
 s. 18 (Leases by Mortgagor and Mortgagee) 
 ss, 19 — 23 (Mortgagees' Powers) . 
 s. 21 (Application of Purchase-money) 
 H. 24 (Receiver) .... 
 s. 25 (Power of Sale) 
 s. 30 (Descent of Trust Property) . 
 s. 36 (Trustees' Receipts) 
 s. 39 (Restraint on Anticipation) . 
 s. 41 (New Trustees) 
 ss. 42, 43 (Infants' Maintenance) . 
 ss. 54, 55 (Receipt Clause) 
 s. 65 (Long Terms) 
 
 c. 44 (Solicitors' Remuneration) 
 
 c. 59 (Law Revision) .... 
 
 45 & 46 Vict. c. 38 (Settled Land) .... 25, 97, 101, 
 
 c. 39 (Conveyancing) . 152, 276, 335, 354, 360, 
 
 c. 40 (Copyright) 
 
 c. 43 (Bills of Sale) 
 
 c. 50 (Municipal Corp.) ..... 
 
 c. 61 (BUls of Exchange) 
 
 c. 75 (Married "Women's Property) . 25, 85, 414, 
 454 ff, 462, 483, 503, 527, 
 
 46 & 47 Vict. 0. 49 (Repeals) 
 
 c. 52 (Bankruptcy Act) . 
 
 27, 67, 75, 151, 
 386, 447, 572, 588, 
 
 c. 57 (Patents, &c.) 
 47 & 48 Vict. c. 54 (Yorkshire Registry) 
 c. 71 (Intestates' Estates) 
 c. 4 (Yorkshire Registry) 
 Vict. c. 26 (Yorkshire Registry) 
 Vict. c. 27 (Guardianship) 
 c. 37 (Patents, &c.) 
 c. 52 (Married Women ; Desertion) 
 50 & 51 Vict. c. 40 (Savings Banks) . 
 
 c. 57 (Deeds of Arrangement) 
 c. 2 (Investments) 
 Vict. c. 42 (Mortmain) . 
 
 b2 
 
 48 Vict. 
 
 48 & 49 
 
 49 &50 
 
 51 Vict. 
 51 & 52 
 
 PAGE 
 
 . 634 
 . 458 
 
 . 334 
 . 770 
 
 . 294 
 
 . 262 
 
 . 276 
 
 . 324, 330 
 
 . 291, 292 
 
 298, 303, 701 
 
 . 297 
 
 . 307 
 
 . 305, 334 
 
 . 272 
 
 . 377 
 
 . 430 
 
 . 152 
 
 480 ff, 627 
 
 . 347, 356 
 
 . 130 
 
 . 113, 198 
 
 . 568 
 
 134, 431, 756 
 
 364, 377, 443 
 
 . 783 
 
 284 ff 
 
 . 25 
 
 . 248 
 
 423, 424, 443, 
 
 581, 588, 641 
 
 . 814 
 
 250, 336, 385, 
 
 591, 742, 812 
 
 . 778 
 
 321, 349, 365 
 
 . 166, 515 
 
 . 321, 349 
 
 321, 349, 365 
 
 469 ff 
 
 778 
 
 453 
 
 60 
 
 75 
 
 251 
 
 20, 345, 655
 
 XX 
 
 TABLE OF STATUTES. 
 
 ol & 52 Vict. c. 50 (Patents, &c.) 
 
 c. 51 (Lands Charges Registration) 
 c. 59 (Trustees) .... 
 c. 62 (Bankruptcy) 
 
 52 & 53 Vict. c. 7 (Customs and Inland Revenue) 
 
 c. 30 (Settled Land) 
 
 c. 32 (Trustee Investments) . 
 
 c. 49 (Arbitration) 
 
 53 Vict. c. 5 (Lunacy) 
 
 53 & 54 Vict. c. 39 (Partnership) — 
 
 8. 1 (Definition) 
 s. 2 (Conditions of Partnership) 
 
 9. 3 (Rights of Partner Creditor 
 88. 5 — 8 (Agency of Partner) 
 ss. 9—12 (Joint Liability) 
 s. 16 (Notice) 
 s. 20 (Conversion) 
 s. 22 (Partnership Land) 
 s. 29 (Trusteeship of Partner) 
 ss. 32 — 41 (Dissolution) 
 s. 46 (Saving Rules of Law) 
 
 0. 57 (Agricultural Leases) . 
 c. 70 (Bankruptcy) 
 54 Vict. c. 3 (Infants' Custody) . 
 
 54 & 55 Vict. c. 73 (Mortmain) . 
 
 55 Vict. c. 4 (Infants' Betting) . 
 55 & 56 Vict. c. 13 (Conveyancing) . 
 
 c. 39 (National Debt) . 
 
 5G & 57 Vict. c. 21 (Voluntary Conveyances) 
 c. 53 (Trustees)— 
 
 s. 1 (Investments) 
 s. 5 (Real Securities) 
 R. 8 (Investments) 
 s8. 10—12 (New Trustees) 
 s. 14 (Conditions of Sale) 
 s. 17 (Employing Au'ents) 
 s. 18 (Insurance) . 
 s. 19 (Renewable Leaseholds) 
 s. 20 (Trustees' Receipts) 
 s. 21 (Composition) 
 s. 24 (Liability of Trustee) 
 s. 25 (Bankruptcy) 
 s. 31 (Vesting Order) . 
 s, 45 (Indemnity to Trustee) 
 c. 63 (Married Women) 
 
 PAGE 
 
 . 778 
 
 75 
 
 131, 149, 312 
 
 . 592 
 
 . 634 
 
 . 101 
 
 . 133 
 
 , 698, 699 
 
 488, 489, 670 
 
 . 637 
 639 fi- 
 . 641 
 643, 644 
 . 644 
 . 361 
 . 651 
 . 654 
 
 98, 111, 651 
 657 £E 
 . 636 
 . 293 
 . 150 
 . 468 
 
 34, 515, 612 
 
 . 193 
 
 152, 262 
 
 . 247 
 
 . 69 
 
 . 130 
 
 . 130 
 
 131, 133 
 
 . 152 
 
 . 684 
 
 . 127 
 
 . 163 
 
 . 102 
 
 . 377 
 
 . 117 
 
 (i. 141, 163 
 
 26, 126 
 
 . 670 
 
 . 146 
 
 425, 432, 457, 459
 
 TAHLE OF STATUTES. 
 
 XXI 
 
 56 & 57 Vict. c. 71 (Sale of Goods) 
 
 57 & 58 Vict. c. 10 (Trustees) . 
 
 c. 30 (Estate Duty) 
 
 c. 46 (Copyholds) 
 
 0. 60 (Merchant Shipping) 
 
 58 & 5!) Vict. c. 25 (Mortgagees' Costs) 
 
 c. 39 f Married "Women's Protection 
 
 59 & (10 Vict. c. 25 (Friendly Societies) 
 
 c. 35 (Judicial Trustees) 
 c. 47 (Irish Land) 
 
 60 & 61 Vict. c. 19 (Winding-up) 
 
 c. 65 (Land Transfer) . 
 
 62 & 63 Vict. c. 20 (Corporate Trustees) 
 
 63 & 64 Vict. c. 26 (Land Charges) . 
 
 c. 48 (Companies) 
 
 c. 51 (Money Lenders) . 
 
 c. 62 (Colonial Stock) . 
 
 1 Edw. VII. c. 18 (Patents) 
 
 2 Edw. VII. c. 34 (Trade Marks) 
 5 Edw. VII. c. 15 (Trade Marks) 
 
 VII. c. 55 (Public Trustee) . 
 
 VII. c. 18 (Married Women's Property) 
 
 c. 24 (Limited Partnership) . 
 
 c. 28 (Patents) 
 
 c. 29 (Patents) 
 
 c. 50 (Companies) . 
 
 28 (Agricultural Holdings) 
 
 c. 40 (Old Age Pensions) 
 
 c. 69 (Companies Consolidation) 
 1 & 2 Geo. V. c. 37 (Conveyancing) . 
 
 c. 46 (Copyright) 
 3 & 4 Geo. V. c. 34 (Bankruptcy) 
 
 6 Edw, 
 
 7 Edw. 
 
 8 Edw. VII. 
 
 PAOB 
 
 . 692 
 
 . 134 
 . 634 
 272, 666 
 . 283 
 170, 269 
 . 453 
 60 
 125, 132, 141, 153, 166 
 . 299 
 . 592 
 138, 328, 357, 378, 458, 580, 588, 
 596, 610, 803, 805 
 . 25 
 . 274 
 180, 638 
 . 189 
 . 134 
 . 778 
 777, 778 
 . 793 
 154 ff, 166 
 26, 457, 464, 478 
 647, 648, 656, 657, 658, 660 
 . 778 
 780, 783, 791 
 . 638 
 . 298 
 . 389 
 . 181, 592 
 294, 304, 305, 306, 356, 379, 
 431, 506, 586, 701 
 783 if 
 461, 634, 648, 775, 791 
 
 i92,
 
 ( xxiii ) 
 
 TABLE OF CASES. 
 
 A. & B., lie, 467, 470 
 
 Aas V. BcDham, 650 
 
 Abbot, Exp., 417 
 
 Abdy V. Loveday, 371 
 
 Aberanian Iron Works v. Wickens, 
 
 352, 724 
 Aberdeou v. Chitty, oSr) 
 Abrahal v. Bubb, 759 
 Abrahams & Sons, Re, 287 
 
 V. Bendon, 481 
 
 Acasou V. Greenwood, 427 
 Ackermaun v. Lockhart, 339 
 Ackroyd v. Smithson, 77, 519, 520, 522 
 Acton V. White, 427 
 
 V. Woodgate, 73 
 
 Adam's Trust, Re, 27 
 Adams v. A., 481 
 
 v. Claxton, 315, 328 
 
 and Kensington Vestry, Re, 
 
 39, 40 
 
 — V. Ursell, 769 
 
 Adamsoii, Exp., 646 
 
 V. Armitagc, 417 
 
 Adcock r. Evans, 586 
 Addams v. Ferick, 623 
 Adderlcy i>. Dixon, 692, 693 
 Adey r. Arnold, 585 
 Adlingtou t'. Cann, 710 
 Adney v. Field, 242 
 Agar V. Fairfax, 665, 666, 676 
 Agar-EIlis v. Lascellee, 467 
 Agassiz V. Squire, 218 
 Agra, &c. Bank, Re, 387 
 Aguilar r. A., 445 
 Ainsworth, Exp., 332 
 
 V. Wilding (1890, 1 Ch.), 224 
 
 r. (1905, 1 Ch.), 297 
 
 Aird's Estate, Re, 238 
 Aitcheson v. Dixon, 449 
 Akerman v. A., 589 
 Albion, &c. Co., Re, 592 
 Alcock V. Sloper, 120, 121 
 Alderson v. Elgey, 276 
 V. Peel, 56 
 
 Alderson v. White, 270 
 Aldin V. Clark & Co., 771 
 Aldis V. Eraser, 764 
 Aldred's Case, 771 
 
 Estate, 100 
 
 Aldrich v. Cooper, 608 
 Aldritt V. Machonochy, 359 
 Alexander v. Steinhardt, 383 
 
 V. Wellington (D. of), 389 
 
 'V. Young," 427 
 
 Aleyn v. Belchier, 212, 217 
 Allcard v. Skinner, 198 
 
 • V. Walker, 225, 443 
 
 AUday v. Fletcher, 442 
 
 Allen, Re (1898, 2 Ch. 497), 310 
 
 , Re (1905, 2 Ch. 400), 30 
 
 , S., Re, 331 
 
 V. A., 672 
 
 r. Jackson, 204 
 
 V. Knight, 316, 348, 367 
 
 r. Martin, 764 
 
 V. M'Pherson, 803 
 
 V. Seckham, 358 
 
 V. Sinclair, 598 
 
 Alley V. Deschamps, 724 
 
 Allgood V. Merrybent, &c. Co., 345 
 
 Allison r. Frisby, 311 
 
 Alston, Exp., 614 
 
 V. Houston, 573 
 
 Alt t'. Lord Stratheden, 34 
 Alven V. Bond, 109 
 Amand v. Bradbourne, 163 
 Amber Size Co. v. Meuzel, 796 
 Ames V. Parkinson, 123 
 
 V. Taylor, 169 
 
 Amis r. Witt, 631 
 Amphlett v. Parke, 522 
 Ancaster r. Mayer, 593, 603 
 Anderson r. London City Mission, 6"J 
 
 r. Radcliffe, 390 
 
 Andi'ew v. Cooper, 150 
 
 V. Ramsay. Ill 
 
 V. Trinity Hall, 498 
 
 V. Wrigley, 372
 
 XXIV 
 
 TABLE OF CASES. 
 
 Andrews, iiV. Audrews v. A., 631 
 
 V. Mockford, 209 
 
 i. Partington, 478 
 
 V. Salt, 467, 472 
 
 V. Waite, 771 
 
 V. Weall, 127, 164 
 
 Angel r. Jay, 234 
 
 Angell f. A., 813, 815 
 Anglo-American Brush, &o. Corp. v. 
 
 King, 780 
 Anglo-Italian Bank v. Davis, 275 
 Angus V. Clifford, 179, 209 
 
 r. Daltou, 773 
 
 Ankerson v. Counelly, 770 
 Annaly v. Agar-Ellis, 310 
 Anon. (1 Atk.), SlO 
 
 (3 Atk.), 274, 277 
 
 (Freem. 137), 35.5 
 
 ■ (Freem. 145), 380 
 
 (Freem. 224), 241 
 
 ■ (Jac.), 475 
 
 (2K. & J.), 650 
 
 (6 Mad.), 750 
 
 ■ (1 Salk.), 273 
 
 (2 Vem.;, 448 
 
 (2 Ves. sr.), 697 
 
 (3 Ves.), 162 
 
 (5 Vin. Abr.), 712 
 
 Anthony v. A. (No. 1). 607 
 
 V. A. (No. 2), 605 
 
 Antrobus f. Smith, 58 
 Apollinaris Trade Mark, He, 794 
 Appleton r. Rowley, 420 
 Apreece v. A., 621 
 
 Ap- Rice's Case, 755 
 Apthorpe r. A., 389 
 Arab, The, 614 
 
 Arbib & Class" Coutr., Jie, 733 
 Arbuthnot v. Norton, 389 
 Arcedeckne v. Howard, 407 
 Archer v. Hudson, 196 
 Ai-den v. A., 354 
 Ardesoife v. Bennett, 506 
 Armitage v. Baldwin, 410 
 
 r. Coates, 428 
 
 r. Garnett, 623 
 
 Armstrong & Sons, Jic, 488 
 
 r. Burnet, 623 
 
 Arnold, £.rp., 517 
 
 V. A., 628 
 
 V. Burt, 481 
 
 V. Hardwick, 213, 217 
 
 V. Smith, 118 
 
 V. Woodhams, 430 
 
 Ascherson t'. Tredegar & Co., 399, 807 
 Ashburner v. Macguire, 621, 624 
 
 r. Sewell, 733 
 
 Ashbumham v. A., 505. 
 Ashby v. Coston, 60 
 
 Ashby r. Balmer, 514, 526 
 Ashenhurst v. James, 273 
 Ash ton V. A.. 622 
 
 V. Blackshaw, 285 
 
 V. Corrigan, 699 
 
 V. Dalton, 330 
 
 V. McDougall, 418, 452 
 
 Ashurst V. Mill, 227 
 Ashwellf. Lomi, 201 
 Ashworth v: Lord, 296 
 
 V. Munn, 596, 655 
 
 Askew I. Rooth, 418 
 Astbury, Hxp., 331 
 
 V. A., 279 
 
 Astley V. Weldon, 254, 256 
 Aston V. A.. 433, 758, 759 
 
 V. Wood, 31 
 
 Atcheson v. A., 445 
 Atkins V. Ai'cedeckne, 409 
 
 v. Hatton, 678 
 
 Atkinson v. Littlewood, 549 
 
 v. Powell, 588 
 
 V. Rawson. 588 
 
 Atterbury v. Wallis, 361 
 
 Att.-G. V. Ailesbury (M. of), 514, 526 
 V. Alford, 147 
 
 V. Anderson, 167 
 
 V. Ashbourne, 775 
 
 V. Aspinall, 753 
 
 V. Biimingham, iSrc, 774 
 
 V. Bowyer, 678 
 
 ■ r. Bristol (M. of), 79 
 
 V. Clarendon, 105 
 
 V. Cleaver, 765 
 
 t'. Clerkeuwell Vestry, 754 
 
 V. Coopers' Co., 151 
 
 • — V. Crofts, 275 
 
 V. Day, 729 
 
 V. Dodd, 51 i 
 
 V. Doughty, 771 
 
 ■ r. Dudley, 115 
 
 V. Edmunds, 170 
 
 v. Forbes, 765 
 
 V. FuUerton, 680 
 
 f. G. E. R. Co., 752 
 
 V. Grand Junction, 775 
 
 ■ v. Grote, 623 
 
 r. Herrick, 78 
 
 V. Holford, 514 
 
 i\ Hubbuck, 655 
 
 V. Hughes, 30 
 
 V. Ironmongers' Co., 32 
 
 V. Jefferys, 43, 167 
 
 V. Kingston (M. of), 774 
 
 V. Leeds Corp., 775 
 
 V. Leonard, 584 
 
 • V. Lewes Corp., 774 
 
 V. Lomas, 514 
 
 V. Lonsdale, 774
 
 TAHI.E OP CASES. 
 
 XXV 
 
 Att.-G. V. Lucas, 29 
 
 V. Manchester Corp., 768, 807 
 
 ■ V. Manchester and Leeds Rv-, 
 
 747 
 
 /•. Marlborough (D. of), 760 
 
 t'. Mouutniorris, 610 
 
 V. Northiunberland (U. of), -'A 
 
 V. Norwich (M. of), 161 
 
 V. Pelly, 31 
 
 ■ V. Ray, -209 
 
 v. Sheffield Gas Co., 766 
 
 V. Shrewsbury, &c. Co., 752, 
 
 765 
 
 V. Smith \ Co., 777 
 
 V. South Moulton, 79 
 
 V. Stephens, 679, (iSO 
 
 V. St. John's Hosp., 25 
 
 v. Syderfiu, 31 
 
 — ■ ■ V. Terry, 774 
 
 V. Tod Heatley, 767 
 
 V. Touner, 78 
 
 v.JJ. K. Telegraph Co., 766, 
 
 767 
 
 V. Weymouth, ^In, r)20 
 
 of Jamaica r. Manderson, 562 
 
 Att. and Sol. Act, 1870, Ee, 390 
 Attwood V. Small, 178, 181, 685, 733 
 Atwell V. A., blO 
 
 Atwood V. Maude, 659, 660 
 Aubin i\ Holt, 649 
 Austen v. Halsey, 477 
 
 V. Taylor, 4S, 51 
 
 Austin V. Mead, 63 1 
 Aveling v. Knipe, 89 
 Avenon's Charity, Er, 31 
 Avis V. Newman, 759 
 Axford V. Reid, 463, 464 
 Ayerst v. Jenkins, 82, 801 
 Ayles 1^. Cox, 728 
 Aylesford's Case, 705 
 Aylesford r. Morris, 186, 187, 189 
 Ayliffe v. Murray, 165 
 Aynsley r. Woodsworth, 573 
 Aynsly r. Reed, 275 
 
 Ayres, lie, 459 
 
 Babee's Trusts, In yr, 74 
 Bach V Andrew, 88 
 Back v. Stacey, 770 
 Backhou.se v. Charlton, 334 
 Bacon )•. B., 137 
 
 r. Jones, 782 
 
 Baddeley r. B., 61 
 
 Badeley v. Consol. Bk., 318, 641, 642 
 Badger v. B., 482 
 
 Badische Anilin v. Basle Chemical 
 Works, 781 
 
 Badi.sche Anilin v. Hickson, 781 
 
 V. Levinstein. 780, 782 
 
 r. Schott, 207 
 
 Baduall r. Samuel, 398 
 Bagell V. Miller, 644, 661 
 Baggett V. Meu.x, 425, 426 
 Bagot V. Chapnuin, 229 
 
 V. Oughton, 280 
 
 Ballet'. B., 341 
 Bailey v. B., 597 
 
 V. Barnes, lOS, 301, 360 
 
 r. Birchall, 341 
 
 V. Edwards, 403 
 
 r. Finch, 571 
 
 V. Hobson, 762 
 
 r. Richardson, 357 
 
 Baillie r. B., 747 
 
 Baily v. British Equit. Ass. Co., 752 
 
 V. Taylor, 791 
 
 Bain r. Sadler, 582 
 Bainbridge v. Smith, 293 
 Bainbrigg-e v. Blair, 151 
 
 — V. Browne, 196 
 
 Baines r. Geary, 796 
 Baird r. Wells, 777 
 Baker v. Bradley, 426 
 
 V. Gray, 323 
 
 V. Hull, 448 
 
 V. Martin, 165 
 
 ('. Monk, 114 
 
 V. Peck, 105 
 
 c. White, 204 
 
 Baldwin v. Rochford, 187 
 
 ■ — V. Smith, 512 
 
 Balfe V. Lord, 325 
 Balfour v. Grace, 401 
 Ball r. B., 467 
 
 V. Coutts, 444, 477 
 
 r. Harris, 376 
 
 V. Kemp-Welch, 677 
 
 V. Montgomery, 444 
 
 V. Ray, 772 
 
 Ballard v. Strutt, 726 
 
 V. Tomlinson, 773 
 
 'Balls V. Strutt, 749 
 Balmain i\ Shore, 651 
 Balsh V. Higham, 163, 164 
 r. Symes, 342 
 
 Bank of England Case, 653 
 Bank of Ireland v. Beresford, 397 
 Bank of London v. Tyrrell, 112 
 Bank of Montreal v. Stuart, 199 
 Bank of Scotland v. Christie, 564 
 Banks r. Bushbridge, 595 
 
 i\ Scott, 512, 517 
 
 Banner, E.cp., 567 
 
 V. Berridge, 99, 312, 377 
 
 Barber's Settled Estate, Rr, 102
 
 XXVI 
 
 TABLE OF CASES. 
 
 Barber, Ej-p., .576 
 
 , Ee, 170 
 
 Barclay, Exp., 331 
 
 V. Andrew, 129 
 
 Barclay & Co. v. Poole, 283 
 Bardswell r. B.. 39, 41 
 Baring, Re, 103 
 
 V. Nash, 664, 667 
 
 r. Noble, 645 
 
 Barker's Trusts, Re, 27, lol 
 Barker, Rv (17 Ch. T>.), 513 
 , Re (6 Sim.), 339 
 
 V. Illiugworth, 303, 30.3 
 
 /'. Ivimey, 133, 146 
 
 V. Lea, 438 
 
 V. Perowne, 573 
 
 V. Rayner, 624 
 
 — V. Smart, 351 
 
 V. Vau.sommer, 188 
 
 Barling v. Bishop, 66 
 Barlow v. Grant, 482 
 Barnard's Case, 758 
 Barnard v. Ford, 442 
 Barnardo v. McHugh, 469, 474 
 Barnes v. Glentun, 311 
 
 V. Racster, 614 
 
 V. Ross, 483 
 
 Bamett, Re, 742 
 
 V. E. of Guildford, 295 
 
 V. Howard, 430, 461 
 
 Bamewell v. Cawdor, 597 
 
 Barney t^ United Telephone Co., 783 
 
 Barrack v. McCulIoch, 419 
 
 Barrel!, Exji., 260 
 
 Barret v. Blagnive, 700 
 
 Barrett v. Day, 783 
 
 V. Hartley, 101, 197 
 
 Barretts v. Young, 242 
 Barrington r. Tristram, 626 
 Barrow v. B., 506 
 
 V. Isaacs, 262 
 
 Barrow-in-Furness Corp. and Kawliu- 
 
 8on's Contract, Re, 378 
 Barrs v. Fewke, 77 
 Barry r. Croskey, 180, 209 
 Bartholomew v. Menzies. 630, 631 
 Bartlett v. Pickersgill, 81 
 
 r. W. M. Tramways, 290 
 
 Barton v. Bk. of N. S. W., 271 
 
 V. Cooke, 621 
 
 Basan v. Brandon, 625 
 Basingstoke (M. of) v. Bolton, 679 
 Basset v. Nosworthy, 365, 369 
 Bassett, Re, 342 
 
 V. Allen. 310 
 
 Bastard v. Proby, 53, 54 
 Batard v. Hawes, 394 
 Batcheldor v. Yates, 289 
 Bate V. B., 597, 610 
 
 •Bate V. Hooper, 121 
 Bateman v. Faber, 432, 444 
 
 r. "VVilloe, 744 
 
 Bates f. Mackinley, 623 
 Bateson v. Gosling, 402 
 Bath (E. of) V. Sherwin, 809 
 Bath c. Standard Laud Co., 171 
 Batstone ;•. Salter, 85 
 Batten r. Gedye, 752 
 Battison v. Hobson, 321, 348 
 Batt's Settled Estate, Re, 457 
 Baudains v. Richardson, 201 
 Baxter v. ConoUy, 695 
 
 V. West, 650, 659 
 
 Bay ley v. Williams, 200 
 Bay lis. Re, 113 
 BajTiton r. Collins, 436 
 Baj'spoole v. Collins, 69, 7<' 
 Beadel v. Perry, 770 
 Beak's Estate, i?f, 631 
 Beale v. Kyte, 230 
 
 f. Symonds, 166 
 
 Beale's Settlement, Rr, 501 
 Beall V. Smith, 487 
 Beanland v. Bradley, 200 
 Beard v. Travers, 750 
 Beauchamp, Exp., 193 
 
 r. Huntlev, 746 
 
 V. Winn, 226 
 
 Beauclerk v. James, 496, 499 
 
 V. Mead, 517 
 
 Beaufort v. Patrick. 211 
 Beaufoy's Estate, In re, 122 
 Beaumont, Re, 631 
 
 V. Ewbank. 6.'] I 
 
 Beavan v. Oxford (E. of), 3S4 
 Beck V. Pierce, 464 
 
 Beckett I'. Addyman. 104 
 
 V. Grimthorpe, 517, 525, •■)29 
 
 V. Ramsdale, 645 
 
 r. Tower Assets Co., 286 
 
 Beckford i.B., 84 
 
 t. Tobin, 627 
 
 Beckley /'. Newland, 381 
 Beddingtou v. B., 624 
 Bee<jher v. Major, 86 
 Beere v. Hoffnxister, 215 
 Beeston v. Stutely, 684 
 Beetham. Re, 330 
 Beevor v. Luck, 322, 323 
 Behrens v. Richards, 761 
 Belcher v. Williams, 677 
 Belchier, Exp., 126 
 Bell V. Balls, 702. 708 
 V. L. .t N. W. R., 383 
 
 V. Phyn, 655 
 
 Bellairs r. B., 204 
 
 V. Tucker, 178 
 
 Bellamy v. Davey, 337
 
 TABLE OF CASES. 
 
 XXVll 
 
 Bellamy t'. Debeuham, 703 
 
 V. Sabine, 363 
 
 Bellasis' Trust, In n; oO 
 Bellasis v. Comptou, 82 
 
 V. TJthwatt, 541 
 
 Bence v. Sherman, 387 
 Benett v. Wyndham, 164 
 Bengough v. "Walker, 538 
 Beningfield v. Baxter, 109 
 Bennet v. B., 85 
 Bennett, Rvp., 104, 105 
 
 V. Biddies, 441 
 
 V. Slater, 60 
 
 V. White, 570 
 
 Benson v. B., 526, 528 
 
 V. Whittam, 39 
 
 Bentinck v. B., 5'jO 
 Bentley v. Craven, 111 
 Benyon v. Fitch, 188, 189 
 Berkley, Re, 26 
 Berridge r. B., 408, 40'J 
 Beny v. Bryant, 480 
 
 V. Kean, 754 
 
 Berwick v. Price, 348, 359, 361 
 Besant v. Wood, 698 
 Best V. Drake, 764 
 Bethell v. Abraham, 540 
 Betjemann «;. B., 100, 184, 660 
 Betts V. Kinipton, 413 
 Betty V. Att.-Gen., 760 
 Bevan v. Webb, 94, 98 
 Beverley v. Att.-Gen., 79 
 Beyfiis V. Lawley, 600 
 
 ■ — ■ and Masters, lie, 085, 728, 729 
 
 Biaggi, Jic, 455 
 Bickford v. Skewes, 782 
 Bidder r. Bridges, 815 
 Biddulph V. Peel, 53G 
 Bidwell's Settlement, Jte, 496 
 Biedermanu r. Seymour, 597 
 Biel's Estate, In rr, 109 
 Biggs r. Peacock, 666 
 
 V. Terry, 475 
 
 Bigland r. Huddlestone, 505 
 Bignall r. Chapman, 162 
 Bignold r. B., 627 
 
 Bill V. Cureton, 802 
 
 V. Sierra, &c. Co., 748 
 
 Bilke V. Roper, 457 
 Billing ;'. Brogden. 117 
 Billinghurst v. Walker, 603 
 Bingham t-. B., 224 
 Binks V. Eokeby, 726 
 Birch, He, 606 . 
 
 r. Balgrave, 78 
 
 V. Ellames, 355, 361 
 
 V. Joy, 726 
 
 Birchall t'. Ashtou, 153 
 
 V. Pugin, 340 
 
 Bii-d V. Boulter, 708 
 V. Fox, 375 
 
 - r. Lee, 44 
 
 V. Wenn, 298, 314 
 
 Birkett, lie, 44 
 Birley r. B., 214 
 Birmingham v. Kirvvau, 501 
 Birmingham, &c. Co. v. Powell, 792 
 
 V. Ross, 770 
 
 Birmingham Excelsior, iScc. Soc. v. 
 
 Haywood, 461, 464 
 Birrell v. Greenough, 131 
 Bisco V. E. of Banbury, 358 
 Biscoo V. Jackson, 33 
 Bishop v. Wall, 420 
 Biss V. B., 96, 97 
 Black v. Williams, 283 
 Blackborn r. Edgeley, 196 
 Blackburn i'. Stables, 49 
 Blacket v. Lamb, 500 
 Blackie v. Clark, 200 
 Blacklow v. Laws, 417 
 Blackwood r. London, &c. Bank, 366 
 Blagden, £xp., 570 
 
 V. Bradbear, 708 
 
 Blair v. Duncan, 30, 33, 42 
 
 V. Maidstone Palace, &c., 749 
 
 Blake v. Bunbury, 496 
 
 V. Gale, 587 
 
 r. Peters, 761 
 
 Blakey v. Latham, 342 
 Blakely Ordnance Co., lie, 387 
 Blauchet v. Foster, 451 
 Bland V. Dawes, 417 
 Blandy v. Widmoro, 552 
 Blenkinsopp v. B., 66 
 Bleunerhasset v. Day, 113 
 Blockley, Re, 485. 
 Blogg V. Johnson, 162 
 Blount V. Barrow, 632 
 Blow, lie, 150, 312 
 Bloye's Trust, In re, 108 
 Bluck V. Capstick, 660 
 
 V. Lovering, 339 
 
 Blue V. Marshall, 117 
 Blundell, Re, 431 
 
 V. B., 540 
 
 Blunt r. Bestland, 448 
 
 Blyth r. Fladgate, 139, 145, 645 
 
 Boast V. Firth, 247 
 
 Bock V. Gopisson, 338 
 
 Boden v. Hensby, 339 
 
 Boehm v. Wood, 720 
 
 Bold v Hutchinson, 237 
 
 Bold's Contract, Re, 105 
 
 Bolitho V. Gidley, 429 
 
 Bolton V. Buckenham, 397 
 
 V. Curre, 146, 430 
 
 t'. Salmon, 397
 
 XXVlll 
 
 TAhLK OF CA.SKS. 
 
 Bolton /■. WmkI, CGG 
 Bonar r. Macdouald, 401 
 Bond v. Kent, 350 
 
 V. Simmons, 448 
 
 v. Walford, 799 
 
 Bone V. Pollard, 91 
 Bonham v. Newcomb, 271 
 Bonhote r. Henderson, 237, 802 
 Bonithou v. Hickmore, 1G4 
 Bonnard r. Ferryman, 776 
 Bonner v. B., 442, 610 
 Bonnewell r. Jenkins, 702 
 Bonnim v. Neame, 608 
 Bonser r. Cox, 400. 401 
 Booker r. Allen, 533 
 
 Booth r. B.. 136 
 
 V. Robinson, 494 
 
 Bootle V. Blundel], 594, 596, 801 
 Bosanquet r. Dashwood, 800 
 
 V. Wray, 643 
 
 Boston, &c. Co. V. Ansell, 111, 170 
 Boswell V. Coaks, 112 
 Bothaniley r. Sherson, 618, 621 
 Bottomley's Case, 259 
 Boiighton V. B. (23 Ch. D.), 339 
 
 f. B. (2 Ves. sr.), 500, 503 
 
 Boultbee v. Stubbs, 398 
 Boulton r. Bull, 779 
 
 V. Jones, 230 
 
 Bouryeoise, Mr, 475 
 Bourne v. B. (2 Ha.), 509 
 
 V. B. (1906, 2 Ch.), 338 
 
 V. Swan & Edgar. 794 
 
 Boursot V. Savage, 143, 361 
 Boustead v. Cooper, 123 
 Bouverie r. Prentice, 679 
 Bovill V. Crate, 783 
 
 r. Endle, 277 
 
 Bovril Trade Mark, He, 794 
 Bow, Maclachlan v. Camosun, 569 
 Bowerman, lie, 607 
 Bowker v. Austin, 341 
 
 V. Bull, 411 
 
 Bowlby t^. B., 481 
 Bowles' Case, 755 
 Bowles V. Stewart, 99 
 Bowmaker r. Moore, 393 
 Bown, Jie, 427 
 Bowra r. Wright, 670 
 Bowser v. Maclean, 765 
 Bowsher r. Watkins, 807 
 Bowyear v. Pawson, 570 
 Box r. Barrett, 239 
 Boxall V. B., 440, 446 
 Boyce v. Edbrook, 215 
 
 — ■ v. Paddington Couui;il, 767 
 
 Bovd's Settled Estate, lie, 130 
 Boyd, Rrp., 460 
 
 i\ Alleir, 666 
 
 Boyd r. Dickson, 722 
 Boyes v. Carritt, 41 
 
 V. Liddell, 721 
 
 Boynton /■. Parkhurst, 599, 609 
 Boyse v. Rossborough, 192, 805 
 Bozon f. Bollond, 339, 340 
 Brace v. D. of Marlborough. 316, 319, 
 368 
 
 r. Wehnert, 696 
 
 Bracebridge v. Buckley, 25<S 
 Bi'adbury v. Morgan. 404 
 
 r. Wild, 269 
 
 Bradford v. Romney, 237 
 
 V. Young, 3, 804 
 
 Bradford Corp. r. Ferrand, 774 
 
 v. Pickles, 773 
 
 Bradish v. Gee, 529 
 Bradlaugh v. Newdegate, 390 
 Bradley v. Carritt, 268 
 Bradshaw, Jie, 501 
 
 r. B., 474 
 
 V. Huish. 548 
 
 I'. Widdrington, 309 
 
 Braham v. Bustard, 792 
 Brain, He, 260 
 Braithwaite v. Att.-G., 78 
 Brail, Jie, 66, 67 
 
 Brandon v. Hughes, 458 
 
 i\ Robinson, 425 
 
 Brandreth v. Colvin, 120 
 Brandt r. Dunlop Rubber Co., 383 
 Brassey v. Chalmers, 668 
 Breadalbanc r. Chandos, 237 
 Brecon (M. of) r. Seymour, 31 S 
 Breed's Will, Jie, 481 
 
 Brennan v. Bolton, 706 
 Breton r. Woollven, 59 
 Brewer r. Brown, 685 
 
 V. Square, 306 
 
 - — — V. Swirles, 421 
 Brice v. Bannister, 384. 385 
 
 V. Stokes, 136, 138, 139, 148 
 
 Bridge ij. B., 62 
 
 Bridger v. Deane, 213 
 Bridges v. Hales, 470 
 
 V. Highton, 774 
 
 Bridgman t: Dove, 594 
 
 r. Green, 200 
 
 Bridson v. Benecke, 783 
 
 V. Macalpine, 782 
 
 Brier, Jie, 126, 141 
 
 Brierley Hill Local Board v. Pearsall, 
 
 699 
 Briggs, Jie, 643 
 
 V. Chamberlain, 527 
 
 v. Merchant, &c. Assoc, 338 
 
 r. Penny, 43 
 
 r. Ryan, 461. 
 
 Briggs & Spicer, Ee, 07, 685
 
 TABLE OF CASES. 
 
 XXIX 
 
 Bright V. Campbell, 269 
 
 V. Larcher, 521 
 
 V. North, 163, 748 
 
 Brighton Arcade Co. r. Dowling, 571 
 Briscoe v. B. (7 Ir. Eq.), 505 
 
 V. B. (1892, 3 Ch.), 341 
 
 V. Baillie- Hamilton, 238 
 
 Bristol, &c. Co. v. Maggs, 703 
 
 Bristow V. B., 626 
 
 Bristowe r. Ward, 497 
 
 British Homes, &c. Corp. r. Paterson, 
 
 646 
 British Motor Syndic'ate v. Taj'lor, 781 
 British S. Africa Co. r. Companhia do 
 Mo(j'ambique, 742 
 
 r. De Beers, 268 
 
 British Vacuum Co. t'. New Vacuum 
 
 Co., 792 
 Briton Medical, &c. Co., lit-, 749 
 Brittain r. Rossiter, 704 
 Britten v. Partridge, 360 
 Broad r. B., 281 
 Bi'oadbent v. Barrow, 613 
 Broadwood, Ee, 704, 707 
 Brocklesby r. Temperance, Sec. Soc, 
 
 328 
 Brocksopp V. Barnes, 161 
 Bromfield, Exp., 512 
 Bromley v. Brunton, 50 
 
 V. Holland, 799 
 
 r. Smith, 186 
 
 Brompton Hospital r. Lewis, 34 
 Brook r. Badley, 515 
 
 v. Hertford, 665 
 
 Brooke & Fremlin's Cont. , Ite, 26, 457 
 
 r. B. (25 Beav.), 419 
 
 — V. B. (1894, 2 Ch.), 289 
 
 V. Garrod, 271, 720 
 
 V. "Warwick, 624 
 
 Brookes v. Cohen, 213 
 Brooking v. Jennings, 586 
 
 r. Maudslay, 799, 813 
 
 Brookman r. Rothschild, 110 
 Brooks r. Marston, 309 
 
 V. Muckleston, 15 
 
 V. Stuart, 393 
 
 Brooman r. Withall, 607 
 Broomfield v. Williams, 770 
 Broth wood v. Keeling, 610 
 Broughton v. B.. 168 
 Broun v. Kennedy, 197 
 Brown r. B. (1 Dick.), 694 
 
 V. B. (1893, 2 Ch.), 311 
 
 V. Cole, 276 
 
 r. Collins, 476 
 
 V. Dimbleby, 430, 461 
 
 r. G. E. R. Co., 257 
 
 V. Gellatly, 122 
 
 — f. Higgs, 44 
 
 Brown r. Litton, 171 
 
 V. Oakshot, 653 
 
 V. Peck, 206 
 
 ■ V. Sewell, 297 
 
 V. Temperley, 482 
 
 V. Wales, 680 
 
 Brown, Shipley & Co. v. Kough, 383, 
 
 567 
 Browne, Ee, 467 
 
 r. Cavendish, 73 
 
 r. Peto, 291 
 
 Browning v. Wright, 235 
 Bruce, Exp., 330 
 Bruin v. Knott, 484 
 Brunton r. Elec. Corp., 341 
 Bruty c. Mackay, 30, 78 
 Bryant, Exp., 339 
 
 Bryant & Barningham's Conti-act, Re. 
 718 
 
 r. Hickley, 480, 483 
 
 Brydges v. Phillips, 59 i 
 
 V. Stevens, 759 
 
 Bryson i'. AVhitehead, 207 
 Buchanan v. Harrison, 524 
 Buck V. Robson, 585 
 Buckell ♦'. Blenkhorn, 243 
 Buckland v. Pocknell, 344 
 Buckle V. Mitchell, 68, 367 
 Buckley v. Royal, &c. Assoc, 131 
 Buckmaster v. B., 478 
 
 V. Harrop, 708 
 
 Buggins V. Yates, 41 
 Bulkeley v. Stephens, 573 
 Bull V. Hutchens, 364 
 
 V. Trevor- Battye, 756 
 
 Bulley r. B., 341 
 Bullock t'. Dommitt, 249 
 
 r. Wheatley, 117 
 
 Bullpin V. Clark, 422 
 
 Bulmer v. Hunter, 66 
 
 Bulteel V. Jarrold, 393 
 
 r. Plummer, 219 
 
 Bunbury's Estate, He, 728 
 
 Bunn r. Grey, 206 
 
 Burden r. B., 168 
 
 Burdon v. Barkus, 652 
 
 r. Dean, 439 
 
 Burge ('. Brutton, 169 
 
 Burgess v. B., 792, 793 
 
 V. Booth, 523 
 
 r. Eve, 404 
 
 r. Hills, 795 
 
 — ('. Viniconie, 168 
 
 ■ V. Wheate, 166 
 
 Burgh V. Langton, 303 
 
 Burgis V. Constantine, 333 
 
 Burgoyne r. Hatton, 358 
 
 Burke r. Greene, 390 
 
 Burlase v. Cooke, 369
 
 XXX 
 
 TABLE OP CASES. 
 
 Burley v. Evelyn, 520 
 
 Burn V. Carvalho, 382 
 
 Burridge v. Bradyl, 598 
 
 Burrough v. Philcox, 44 
 
 Burroughs, Wellcome Trade Mark, lie, 
 
 794 
 Burrow v. Scammell, 731 
 Burrowes v. Lock, 179 
 Burrows v. Lang, 774 
 Bursill V. Tanner, 461 
 Burt V. Arnold, 481 
 Burton r. Gray, 329 
 Bury V. Bedford, 792 
 BushelU'. B., 362. 364 
 Butchart r. Dresser, 661 
 Butchers' Co. v. Rutland, 30 
 Bute's Case, 110 
 
 Bute V. Glamorgan Canal Co., 679 
 Butler, Ee, 598 
 
 V. B. (5 Ch. D.), 136 
 
 V. B. (16 Q. B. D.), 462 
 
 ■ — V. Cumpston, 418 
 
 V. Freeman, 473, 482 
 
 Buttanshaw v. Martin, 429 
 Butterfield v. Heath, 70 
 Butterley v. New Hucknall, 238, 772 
 Buttricke r. Broadhurst, 504 
 Buxton r. B., 117 
 
 • V. Lister, 692 
 
 Byam v. Munton^ 522 
 
 Bygrave v. Met. B. of Works, 727 
 
 Bjme V. Blackburn, 479 
 
 V. Vivian, 799 
 
 Byram v. Tull, 456 
 
 Byrne v. Reid, 642, 649, 697 
 
 Caballeeo r. Henty, 357, 732 
 
 Cable V, Bryant, 771 
 
 Cadmau v. C, 482 
 
 Cafe V. Bent, 121 
 
 Caflrey r. Darby, 117, 163 
 
 Cahill v. C, 698 
 
 Cain r. Moon, 630 
 
 Calcraft r. Roebuck, 726, 729, 732 
 
 Caldwell r. Vanvlissengen, 782 
 
 Calham v. Smith, 547 
 
 CaUsher v. Forbes, 385 
 
 Callow r. C, 621 
 
 Calver v. Laxton, 587 
 
 Calverley r. Williams, 713 
 
 Calvert v. Gordon, 404 
 
 V. London Dock Co., 400, 401 
 
 Cambefort'r. Chapman, 645 
 Cameron & Wells, Jie, 71 
 Camp V. Coe, 167 
 Campbell's Trusts, Jie, 26 
 V. C. (16 Ch. D.), 587 
 
 Campbell t: C. (1893, 2 Ch.), 606 
 
 V. Dalhousie (E. of), 814 
 
 V. French, 239 
 
 ■ V. Home, 215 
 
 V. Leach, 242, 243 
 
 V. Lloyds Bk., 307 
 
 ■ V. Paddington Corp., 771 
 
 r. Walker, 105, 106, 115 
 
 V. Wardlaw, 756 
 
 Campden Charities, He, 32 
 Campion v. Cotton, 434 
 Candler v. Tillett, 137 
 Cane v. Allen, 112 
 Cann v. Wilson, 209 
 Canning r. C, 668 
 Cannon v. Johnson, 677 
 Capel V. Butler, 408 
 Capell V. Winter, 329 
 Capper r. Spottiswoode, 350 
 Carlish v. Salt, 182 
 Carlisle Bk. v. Thompson, 319 
 Carmichael v. Evans, 659 
 Carr's Trust, Me, 440, 441 
 Carr, i:^-p., 276 
 
 V. C, 482 
 
 V. Collins, 524 
 
 r. Eastabrook, 444 
 
 V. Ellison, 526 
 
 V. Lynch, 703 
 
 Carrick r. En-ington, 77 
 
 Carritt /. R. & P. Advance Co. 317, 
 
 333, 355 
 Carron, «fec. Co. v. Maclaren, 746, 747 
 Carter, Kcp., 285 
 
 ■ V. Andrew, 78 
 
 ■ t'. C. (3 K. &J.), 317 
 
 V. C. (34 W. R.), 340 
 
 V. Fey, 753 
 
 V. Palmer, 112 
 
 r. Silber, 497 
 
 V. Taggart, 444, 446, 447 
 
 V. Wake, 282, 334, 335 
 
 — — — - and Kenderdiue's Cont., 7?e, 67 
 Carteret v. Pettus, 17, 667 
 Cartwright v. Pultney, 665 
 Carver r. Bowles, 499 
 
 r. Richards, 214 
 
 Cary v. C, 105 
 
 Casberd v. Ward, 332 
 
 Casbome v. Scarfe, 271 
 
 Cash r. C, 793 
 
 Castle & Sons, Ld.,^^, 263 
 
 Castle r. Warland, 127 
 
 r. Wilkinson, 731 
 
 Caton V. C, 704, 706 
 
 V. Rideout, 420 
 
 Cator V. Pembroke (E. of), 346, 349 
 Catton V. Banks, 677 
 Cavan v. Pulteney, 503
 
 TABLE OF CASES. 
 
 XXXI 
 
 Cavander v. Bulteel, 357 
 Cavet'. C, 361, 478 
 Cavendish, Exp., 384 
 
 V. Dacre, 497 
 
 V. Greaves, 386 
 
 Cawdor v. Lewia, 211 
 Cellular Clothing Co. v. Maxton, 792 
 Central R. Co. v. Kisch, ISO 
 Chadwick v. Grange, 5 1 1 
 
 r. Manning, 707 
 
 Chalk p. Danvers, 81 
 Challinor v. Sykea, SIS 
 Chamberlayne r. Brockett, 34 
 Chambers v. Goldwin, 273 
 
 r. Howell, 111 
 
 r. Minchin, 138 
 
 r. Waters, 109 
 
 Champneys r. Burland, 318 
 Chancellor v. Brown, 120 
 Chancey's Case, 546, r)48 
 Chaplin, Exp., 66 
 
 r. Braramall, 229 
 
 Chapman v. Browne, 132, 133 
 i'. C, 329 
 
 ■ V. Gibson, 240, 244 
 
 V. Hart, 624 
 
 V. Wood, 426 
 
 Charlton v. Coombes, 204 
 r. C. 242 
 
 r. West, 548 
 
 Charnley v. Grnndy, 247 
 
 Chartered Bank, &c. i\ Henderson, 387 
 
 Chase v. Box, 565 
 
 Chastey v. Ackland, 771 
 Chaston v. Seago, 42 
 Chatteris r. Young, 545 
 Chatterton v. Cave, 789 
 Chattock V. Muller, 684, 703 
 Chaytor r. Horn, 122, 574 
 Cheetham v. Ward, 403 
 Cherry v. Mott, 612 
 Chertsey Market, He, 750 
 Chester r. Henson, 378 
 Chesterfield's Trusts, lie, 122 
 Chesterfield r. Janssen, 63, 175 
 Chesworth v. Hunt, 324 
 Chetwynd v. Morgan, 244 
 Chichester v. Bickerstaffe, 516 
 
 V. Coventry, 536, 539, 540, 
 
 541 
 
 Child V. C, 129 
 
 V. Elsworth, 627 
 
 Childers V. C, 88 
 Chilliner r. C, 261 
 Chillingworth r. Chambers, 145, 146 
 Chinnock v. Sainsbury, 698 
 Chitty V. Parker, 524 
 Cholmeley's School r. Sewell, 263 
 Chorley, Exp., 387 
 
 Christ's Hospital v. Grainger, 34 
 Christian v. Field, 275 
 Christie v. Davey, 769, 772 
 
 V. Taunton, 572 
 
 Christison v. Bolam, 315 
 Christmas v. Jones, 569 
 Christophers v. White, 168 
 Christy r. Courtenay, 87 
 
 V. Tipper, 794 
 
 Churchill r. 0., 499 
 
 V. Small, 434 
 
 City Bank, Exp., 387 
 V. Lnckie, 567 
 
 City Discount Co. i'. McLean, 564 
 City of London Breweiy v. Tennant, 
 
 688, 770 
 Civil Service Supply Ass. r. Dean, 794 
 Clack r. Carlon, 169 
 Clapham v. Andrews, 324 
 Clare Hall (M. of) r. Hardintj-, 211 
 Clarendon r. Hornby, 668 
 Clark V. Clark, 105, 109 
 
 V. Gird wood, 237 
 
 V. Holland, 117 
 
 V. Hoskins, 128 
 
 V. Sewell, 547, 627 
 
 V. Taylor, 33 
 
 Clarke, Jie (21 Ch. D.), 467, 475 
 
 , He (1898, 1 Ch.), 489 
 
 , He (1898, 2 Q. B.), 462 
 
 v. Birley, 398 
 
 V. Boyle, 344 
 
 V. Cobley, 193, 212 
 
 V. Cort, 570 
 
 V. Franklin, 517, 524 
 
 r. Hart, 259 
 
 v. Henty, 393. 401 
 
 f. Palmer, 348 
 
 V. Ramuz, 727 
 
 V. St. Peter's School, 34 
 
 • V. Tipping, 576 
 
 V. White, 607 
 
 r. Wright, 71 
 
 Clarkson r. Henderson, 269 
 Clavering v. C, 756 
 Clay, E.ip., 647 
 
 , Re, 378 
 
 Clayton's Case, 562, 564, 566 
 Clayton i'. Illingworth, 690 
 Clegg V. C. (3 Giff.), 762 
 
 r. C. (44 Ch. D.), 698 
 
 r. Edmondson, 82, 99 
 
 v. Fishwick, 98, 652 
 
 V. Hands, 700 
 
 V. Rowland, 589 
 
 Cleland, Exp., 341 
 Clement r. Cheesman, 631 
 Clements v. Hall, 98 
 
 V. Pearsall, 481
 
 XXXll 
 
 TABLE OF CASES. 
 
 Clementson v. Gandy, 496 
 Clermont v. Tasburgh, G8o 
 Clews V. Grindey, 133 
 Clifden, Ld., He, 310 
 Clifford, Jie, 625 
 
 V. Gurney, 584 
 
 V. Lewis, 598 
 
 V. Turrell, 692 
 
 Clifton V. Burt, 598 
 
 V. Cockburn, 226 
 
 Climpson v. Coles, 289 
 Clinan v. Cooke, 705. 711, 712 
 Cline's Estate, Me, 573 
 Clinton v. Hooper, 280, 281 
 Clive r. Carew, 148, 422, 430 
 Close r. C, 3;J9 
 Clough, Kvp., 70, 285, 381 
 
 V. Bond, 128, 137, 251 
 
 V. Lambei't, 59 
 
 Cloutte V. Story, 216 
 Clowes, Re, 345, 624 
 v. Higginson, 712, 713 
 
 r. Staff. Potteries Co.. 775 
 
 Clydebank Engineering Co. 
 
 Yzquierdo, 261 
 Coakst;. Boswell, 112, 181 
 Coard v. Holderness, 626 
 Coates V. Moore, 288 
 Coats V. Chadwick, 776 
 Cochran's Estate, He, 410 
 Cochrane v. Moore, 56 
 
 V. Willis, 225, 231 
 
 Cock V. Ravie, 811 
 
 r. Richards, 205 
 
 Cockburn v. Edwards, 565 
 
 t'. Peel, 135 
 
 Cockcroft V. Black, 586 
 Cocker v. Bevis, 303 
 
 V. Quayle, 129, 148 
 
 Cockerell r. Cholmeley, 150 
 
 v. E. of Essex, 55 
 
 Cocking V. Pratt, 196 
 Cocks V. Chandler, 792 
 
 V. Chapman, 124, 132, 134 
 
 Coffin V. C, 759, 763 
 
 V. Cooper, 725 
 
 Cogan V. Duffield, 50 
 
 r. Stephens, 520, 525 
 
 Cogent «'. Gibson, 692 
 Cohen, 7?^, 213 
 Colburn r. Simms, 791 
 Cole V. Eley, 340 
 
 V. Gibbons, 189, 733 
 
 r. Gibson, 205 
 
 V. Wade, 46 
 
 r. White, 706 
 
 V. Willard, 547 
 
 Coleman v. Bucks, &c. Bank, 143 
 —=. V, Mellersh, 576 
 
 Coleman r. Winch, 315 
 
 Coles V. Peyton, 406 
 
 V. Trecothick, 106 
 
 Collard v. Marshall, 776 
 
 Colley i\ Hart, 783 
 
 Collier v. Jenkins, 729 
 
 Colling wood v. Row, 519 
 
 Collins V. Archer, 370 
 
 V. C. (2 My. & K.), 121 
 
 V. C. (32 Ch. D.), 482 
 
 V. Lewis, 599 
 
 r. Stutely, 688 
 
 V. Wakeman, 520, 522 
 
 Collin son v. C, 87 
 
 Collis r. Robins, 595 
 
 Colls V. Home & Colonial Stoi-es, 736, 
 770, 771 
 
 Collyer v. Finoji, 367 
 
 V. Isaacs, 381 
 
 Col man v. St. Albans (D. of), 291 
 
 Colonial Bank v. Whiuney, 385 
 
 Colston r. Morris, 472 
 
 — ■ r. Roberts, 607 
 
 Columbine r. Penhall, 66 
 
 Colverson v. Bloomfield, 810 
 
 Colwell V. St. Pancras Borough Coun- 
 cil, 775 
 
 Combe v. Hughes, 54 
 
 Combined Weighing Co. r. Automatic, 
 &c. Co., 783 
 
 Comfort V. Betts, 388 
 
 Coming, £xp., 328 
 
 Comiskey v. Bowring-Hanbury, 40 
 
 Comm. of Stamps r. Byrnes, 86 
 
 Companhia de Mo(,ambique r. B. S. A. 
 Co., 17 
 
 Comyns v. C, 268 
 
 Condon v. VoUum, 467 
 
 Conlan v. Carlow Co., 388 
 
 Connolly r. C, 40 
 
 Consol Car Heating Co. r. Caine, 779 
 
 Consterdine v. C, 135 
 
 Conway v. Fen ton, 101 
 
 r. Shrimpton, 277 
 
 Conyers v. Abergavenny, 809 
 
 Good V. Pollard, 351 
 
 Cook V. Andrews, 727 
 r. Black, 383 
 
 V. Culverhouse, 634 
 
 V. Frederick, 55. 501 
 
 V. Gregson, 581 
 
 V. Hutchinson, 79 
 
 Cooke v. Clay worth, 192, 6S(') 
 
 V. C, 698 
 
 V. Stevens, 141, 589 
 
 V. Wilton, 320 
 
 Cookes V. Hellier, 494 
 Cookson V. C, 530, 654 
 Coombe, Hxp., 330
 
 TABLE OF CASES. 
 
 XXXlll 
 
 Coombe r. Carter, 381 
 
 V. Stewart, 'iO'A 
 
 Coomberr. C. 199 
 Coombs V. Wilkes, 70:^ 
 Coope V. Twynani, 407 
 Cooper V. Adams, G47 
 
 V. C. (5 Ch.), 2ir) 
 
 v.C. (6Ch. ; 7L. R. H. L.),503 
 
 V. C. (SCh.),541 
 
 r. C. (1913, 1 Ch.), 480 
 
 r. Crabtree, 764, 769 
 
 V. Day, 545 
 
 V. Evans, 400 
 
 V. Gjers, 760 
 
 V. Griffin, 293 
 
 r. Jenkins, 408 
 
 V. Laroclie, 427 
 
 r. Macdonald, 420 
 
 V. Martin, 241 
 
 V. Phibbs, 96, 101, 223, 713 
 
 V. Vesey, 308, 799, 801 
 
 Coote V. Boyd, 545 
 
 V. Lowndes, 605 
 
 Cooth V. Jackson, 705 
 Cope V. Wilmot, 485 
 Copis r. Middleton, 410 
 Coppin v. Fernyhough, 358 
 Corbauld- Ellis v. Dales, 541 
 Corbett v. Brock, 199, 201 
 
 V. Cobham, 534 
 
 V. Plowdon, 293, 294 
 
 Cordingley v. Cheeseborough, 732 
 
 Corelli v. Wall, 770 
 
 Cork (E. of) V. Russell, 274 
 
 Cornick v. Pearce, 509 
 
 Cornish, Ee, 150 
 
 Cornwall v. Henson, 719 
 
 Cory V. C, 226 
 
 Cory Bros. v. Owners of The Mecca, 
 
 564 
 Cosens v. Bognor, &c. Co., 345 
 Cosser v. Radford, 73 
 Coster V. C, 446 
 Cotterell v. Purchase, 270 
 Cottesworth v. Stephens, 742 
 Cottington v. Fletcher, 44 
 Cotton, Re, 483 
 Couch V. Stratton, 553 
 Coulson, Exp., 460 
 
 V. Allison, 199 
 
 Court V. Berlin, 661 
 
 r. Buckland, 522 
 
 Cousins, Re, 360 
 Coutts V. Ack worth, 200, 495 
 Couturier v. Hastie, 230 
 Coventry v. C, 602 
 Coverdale v. Eastwood, 699 
 Cowdry v. Day. 268 
 Cowell V. Edwards, 394 
 
 S, 
 
 Cowen V. Truefitt, 231 
 Cowley V. C, 754 
 
 V. Harstonge, 509 
 
 Cowman v. Harrison, 41 
 Cowper V. Clerk, 809 
 
 V. Mantell, 43 
 
 v. Scott, 494 
 
 Cox V. Bennett, 430 
 
 V. Coventon, 359 
 
 V. Dolman, 312 
 
 V. Hickman, 638, 640, 641 
 
 Coxe and Neve's Contract, Re, 358 
 
 Coxen V. Rowland, 600 
 
 Crabtree v. Bramble, 529 
 
 Cradoch v. Owen, 515 
 
 Cradock v. Piper, 169, 611 
 
 Cragg V. Holme, 686 
 
 Cragoe v. Jones, 402 
 
 Craig r. Wheeler, 121 
 
 Crampton v. The Varna R. Co., 699 
 
 Crane v. Price, 779 
 
 Cranmer's Case, 548 
 
 Craven v. Brady, 204 
 
 Crawford v. May, 463, 588 
 
 V. Toogood, 721 
 
 Crawshay v. C, 216 
 
 V. Maule, 652, 653 
 
 Crawter v. Marvin, 587 
 
 Craythome v. Swinburne, 393, 406, 
 
 407 
 Credland v. Potter, 319 
 Creuze v. Hunter, 468 
 Crew V. Cummings, 287 
 Crichton v. C, 547 
 Crickett r. Dolby, 482 
 Croft V. Day, 793 
 
 V. Goldsmid, 259 
 
 V. Lumley, 258 
 
 V. Lyndsey, 744 
 
 Croker v. Martin, 72 
 Crompton r. Sale, 547 
 Cronmire, Re, 463 
 Crook V. Corp. of Seaford, 706, 708 
 Croome v. Lediard, 714 
 Crosbie-Hill v. Sayer, 274 
 Crosby v. Church, 421 
 Cross V. Berridge, 714 
 
 V. London, &c. Soc, 29 
 
 Crosse v. Smith, 744 
 Crossley v. Lightowler, 774 
 Croughton's Trusts, Re, 427 
 Crowder v. Stewart, 590 
 Crowe v. Ballard, 107 
 
 V. Price, 389 
 
 Crowle V. Russell, 745 
 
 Croxton v. May, 446 
 
 Croydon Gas Co. v. Dickinson, 399 
 
 Crutchley v. Wells, 623 
 
 Cruttwell V. Lye, 695
 
 XXXIV 
 
 TABLE OF CASKS. 
 
 Cuddee v. Rutter, 691 
 Culpepper r. Aston, 37;') 
 Cumming, He, 438 
 Cummins v. Fletcher, 323 
 Cunliffe- Smith r. Hankey, /)85 
 Cunnack v. Edwards, 30, 78 
 Cunninghame r. Moody, 514 
 Cunynghame r. Anstruther, 214, 242 
 
 — V. Thurlow, 213, 215 
 
 Curl V. Webster, 795 
 Curling v. May, 509 
 
 V. Townseud, 188 
 
 Currant r. Jago, 84 
 Curteis r. Wonnald, 525 
 Curtis V. C, 467 
 
 V. Piatt, 781 
 
 r. Rippon, 41 
 
 Curwyn v. Miller, 186 
 Custance i\ Bradshaw, 655 
 Cuthbert i'. Baker, 729 
 
 r. Robarts & Co., 338 
 
 Cixttsr. Thodey, 721 
 
 D'Abbadie «'. Bizoin, 21(i 
 Da Costa, Se, 34 
 Dacre r. Patricksou, 605 
 Dagnall, Re, 460 
 Dakiug V. Whimper, 71 
 Dalby v. PuUen, 725 
 Dale, £zp., 565 
 
 V. SoUet, 568 
 
 Dallas, Re, 385 
 Dames & Wood, lie, 733 
 Dance ;■. Goldingham, 750 
 Dane's Estate, In re, 99 
 Dane r. Mortgage Corp., 403 
 Dangerfield /•. Jones, 779 
 Daniel r. Ferguson, 735 
 Daniell r. Sinclair, 269, 576 
 Daniels r. Davison, 356 
 Darbey v. Whitaker, 730 
 Darbj' «'. D., 655 
 Darker. Martyn, 127, 129 
 
 V. Williamson. 343 
 
 Darley v. D., 486 
 
 r. Hodgson, 423 
 
 Darling, lie, 489 
 Darlington Bk., E.rp., 643 
 Darlow r. Bland. 287 
 Darnley r. L. C. & D.R., 714 
 Darowski v. Goldstein, 207 
 Dashwood r. Bulkeley, 203 
 
 r. Magniac, 756 
 
 Daubeny v. Cockburn, 217 
 Davenport v. Coltman, 524 
 r. Stafford, 124 
 
 Davey v. Barber, 726 
 
 V. Prendergrass, 393 
 
 David r. Rees, 570 
 Davidson, Re, 30 
 Davidson v. Macgregor, 402 
 Davies' Policy, Re, 463 
 Davies v. Ashford, 529 
 
 r. Austin, 482 
 
 V. Bowsher, 338 
 
 r. Bush, 598, 601 
 
 V. D., 234, 238 
 
 V. Fitton, 234 
 
 V. Goodhew, 510 
 
 V. Hodgson, 146 
 
 V. Humphreys, 407 
 
 V. London, &c. Co., 395 
 
 V. Morgan, 621 
 
 r. Parry, 587 
 
 r. Rees, 301 
 
 V. Sear, 358 
 
 V. Thomas, 344, 358 
 
 V. Topp, 596 
 
 V. Wattier, 251 
 
 Davis and Cavey, Re, 685 
 
 V. D. (1894, 1 Ch.), 641, 653 
 
 V. D. (1902, 2 Ch.). 163 
 
 V. Dowding, 302 
 
 V. Foreman, 700, 735 
 
 r. Freethy, 112, 318, 390 
 
 V. Hutchings, 350, 359 
 
 r. Ingram, 670 
 
 V. Marlborough (D. of), 389, 798, 
 
 806 
 
 V. Marrable, 771 
 
 V. May, 296 
 
 V. Morier, 227 
 
 V. Page, 505 
 
 V. Spurling, 137 
 
 V. Symonds, 235, 711 
 
 V. Turvev, 670 
 
 V. Uphill, 218 
 
 w. Whitehead, 281 
 
 V. Wiotlisbach, 672 
 
 Davison, Re, 645, 646 
 Daw V. Herring, 657 
 
 V. Terrel, 330 
 
 Dawes v. Bagnall, 766 
 Dawson v. Clarke, 77, 140 
 
 V. D. (1 Atk.), 575 
 
 V. D. (8 Sim.), 270 
 
 r. D. (7 Ves), 810 
 
 V. Kearton, 59 
 
 V. Paver, 768 
 
 V. Prince, 369, 420 
 
 Day V. Brownrigg, 753 
 r. Croft, 540 
 
 V. Kelland, 170 
 
 V. Luhke, 720 
 
 Dayrell r. Cliampnoys. 761
 
 TABLE OF CASES. 
 
 XXXV 
 
 Deakin r. Lakin, 459 
 Dean v. McDowell, 6")n 
 
 r. Thwaite, 766 
 
 Deane v. Teste, 621 
 
 Dear, Exp., 646 
 
 Dearie v. Hall, 384 
 
 De Bay r. Griffin, 342 
 
 De Beers v. B. S. A. Co., 2G.S, 269 
 
 De Beil r. Thomson, 206 
 
 Debenham v. Ox, 20G 
 
 Debeze v. Mann, 534, 535, 542 
 
 De Brimont v. Harvey. 127 
 
 Debtor, A., Ee (1903, 1 K. B. 705), 189 
 
 Ee (1898, 2 Q.'B. 576), 460 
 
 Me (1913, 3 K." B.), 398 
 
 De Burgh-Lawson, He, 503, 597 
 De Caux v. Skipper, 324 
 Deeley v. Lloyds Bk., 319, 564, 565 
 Deere v. Cust, 765 
 
 V. Guest, 736 
 
 Death v. Hale, 528 
 
 Deeze, Exp., 339 
 
 Defries v. Smith, 400 
 
 Deg V. D., 498 
 
 De Gendre r. Kent, 622 
 
 De Hoghton v. De H., 217 
 
 Deighton & Harris's Contr., He, 728 
 
 De la Garde v. Lempriere, 437 
 
 De Lancy, He, 514 
 
 Delane v. D., 82 
 
 Delhasse, Exp., 639, 640, 641 
 
 Delves r. Gray, 111 
 
 De Mandeville r. Crompton, 452 
 
 De Manneville v. De M., 468, 475, 750 
 
 De Mestre v. West, 71 
 
 Dendy v. Evans, 262 
 
 Denham & Co., Be, 180 
 
 Denny, &c. v. Conklin, 389 
 
 Dent V. Bennett, 198, 199, 200 
 
 V. D., 100 
 
 V. De Pothonier, 127 
 
 Denton, Ee, 407, 409 
 
 De Pereda v. Mancha, 473 
 
 De Pothonier v. De Mattos, 379 
 
 Derbishire v. Home, 432 
 
 ■ V. Montague, 100, 101 
 
 Derbyshire, He, 621 
 
 Dering v. Winchelsea (E. of), 401, 405 
 
 Derry v. Peek, 179 
 
 Descrampes v. Tompkins, 482 
 
 De Soysa v. De Pless Pol., 261 
 
 Devaynes v. Noble, 145 
 
 V. Robinson, 376 
 
 Dever, E.rp., 567 
 Devereux, Ee, 155 
 Deverges v. Sandeman, 284 
 Devese v. Pontet, 547, 553 
 De Visme, Ee, 84 
 r. De v., 725 
 
 Devonport Corp. v. Tozer, 775 
 Dovonsher r. Newenham, 800 
 Devoy v. D., 91 
 Dewar r. Maitlaud, 505 
 
 V. Mintoft, 708 
 
 Dibb V. Walker, 310 
 Dibbins v. D., 720 
 Dick V. Audsley, 30 
 Dickens v. Lee, 789 
 Dickenson v. Barrow, 705 
 
 V. D., 373 
 
 Dicker v. Angerstein, 305 
 Dicks V. Yates, 789 
 Dickson, Ee,48l 
 Dillon V. Coppin, 5S 
 
 1'. Parker, 495, 505 
 
 Dimech r. Corlett, 261 
 Dimond r. Newbum, 759 
 Dingwall v. Burnet, 256 
 Dingwell v. Askew, 625 
 Diuham t'. Bradford, 696 
 Dinn v. Grant, 352 
 Diplock T. Hammond, 383 
 Dipple V. Corles, 57, 61 
 Disher r. D., 515 
 Ditcham v. Worrell, 193 
 Dive V. Roebuck, 132 
 Dixon v. Brown, 227 
 
 V. D. 421 
 
 V. Gayfere, 529 
 
 v. Muckleston, 329 
 
 v. Steel, 409 
 
 Docker v. Somes, 162, 558 
 Docwra v. Faith, 26 
 Dodds V. Gronow, 676 
 Dodson, Ee, 513, 523 
 Doe I'. Manning, 68 
 
 d. Jones t'. Hughes, 376 
 
 Leach r. Micklen, 235 
 
 Robey v. Maisey, 291 
 
 D'Oechsner r. Scott, 430 
 Doeringt'. D., 387 
 Doherty v. Allman, 760 
 
 V. W. & L. Ry., 690 
 
 Dolcinii'. D., 288 
 
 Doloret v. Rothschild, 719 
 
 Dolphin r. Aylward, 68 
 
 Donald, Ee, Moore v. Somerset, 29 
 
 Donaldson v. D. , 63 
 
 Donne v. Lewis, 597 
 
 Donnell v. Bennett, 700 
 
 Doody V. Watson, 577 
 
 Doran r. Wiltshire, 374 
 
 Dormer r. D., 482 
 
 V. Fortescue, 250 
 
 Doughty V. Townson, 589 
 Douglas, Ee, 342 
 
 ■ V. Andrews, 483 
 
 r. Archbutt, 165
 
 XXXVl 
 
 TABLE OF CASES. 
 
 Douglas V. Cooksey, 612 
 
 V. D., 504 
 
 Douglas-Menzies v. Umphleby, 494 
 Dover r. Buck, lOo 
 Dowell V. Dew. 240 
 Dowliiig v. Bctjemann, 694 
 Downe r. Fletclier, 4 61 
 
 V. Morris, 27o 
 
 Downes r. Grazebrook, 106, lOS 
 
 V. Jennings, 451, 452 
 
 Downs V. Collins, 697 
 Downshire (M. of) )'. Sandys, 759 
 Dowsett, Sf, Dowsett r. Meakin, 623, 
 
 624 
 Doyley v. Att.-Geu., 45 
 Drake v. Kershaw, 607 
 Drant v. Vause, 345, 518 
 Draycote v. Harrison, 461 
 Dresser v. Gray, 619, 622 
 Drew I'. Corp, 728 
 
 V. Guy, 207 
 
 r. Lockett, 409 
 
 V. Martin, 86, 87 
 
 Driffield, &c. Co. v. Waterloo, &c. Co., 
 
 783 
 Drinkwater v. Falconer, 621 
 
 r. Ratcliffe, 672, 673 
 
 Driver r. Broad, 131 
 
 r. Ferrand, 595 
 
 Drosier v. Brereton, 132 
 Drover v. Beyer, 811 
 Drummond's Contr., Jte, 457 
 Drunamond v. Tracy, 26 
 Drury v. Smith, 632 
 Dryden v. Frost, 345 
 Drysdale v. Mace, 685 
 Dubost, Uj-p., 63, 532 
 Du Boulay r. Du B., 754 
 Duckworth, Jie, 571 
 Duddell r. Simpson, 733 
 Duffield r. Elwes. 629, 630 
 Duffin V. D., 631 
 Duffy r. Orr, 397 
 Dugdale v. D., 599 
 Duggan V. Kelly, 203 
 Du Hourmielin v. Sheldon, 514 
 Dummer v. Pitcher, 86, 504 
 Dunbar v. D., 84 
 
 V. Tredinnick, 361 
 
 Duncan v. N. & S. W. Bk., 408 
 Duncombe r. Greenaere, 440 
 Duncuft V. Albrecht, 694 
 Dundas v. Dutens, 70 
 Dunkley v. D., 445. 446 
 Dunlop V. D., 607 
 Dunn V. Flood, 684 
 Dunnage v. Wliite, 226 
 Dunne v. Byrne. 30 
 V. English, 110 
 
 Durell V. Pritchard, 688 
 Durham v. Friend, 624 
 r. Robertson, 388 
 
 V. Wharton, 536 
 
 (E. of) «'. Legard, 732 
 
 (M. of) V. Fowler, 405 
 
 D arrant r. Ricketts, 460 
 Dursley r. Fitzhardinge, 814 
 Dye r. D., 418 
 
 Dyer v. Dyer (2 Cox), 78, 83 
 
 r. (34 Beav.), 612 
 
 V. Hargrave, 180 
 
 V. Paynter, 671 
 
 Dykes' Estate, Jie, 517 
 Dymond v. Croft, 301 
 Dyson, Jie, 518 
 and Fowke, Jie, 375 
 
 E. W. A., i2f (A Debtor), 403 
 Eade r. E., 41 
 
 p. Nicholson, 120 
 
 Ead.s r. Williams, 686 
 
 Earlom r. Saunders, 509 
 
 East r. Cook, 503 
 
 East I. Co. V. Boddara, 249 
 
 Eastern Telegraph Co. v. Dent, 262 
 
 Eastwood ('. Vinke, 547 
 
 Eaton V. Buchanan, 118 
 
 V. Lyon, 258 
 
 Ebrand v. Dancer, 84 
 
 Eccl. Com. V. N. E. R. Co., 760 
 
 Echliff V. Baldwin, 750 
 
 Edelsten v. E., 792 
 
 Edge V. Nicholls, 792 
 
 V. Worthington, 330 
 
 EdgebeiTy v. Stephens, 780 
 Edgington v. Fitzmaurice, 180 
 Edmonds v. Peake, 126 
 
 ♦'. Robinson, 660 
 
 Edmunds i\ Low, 548 
 
 V. Townshend, 441 
 
 Edward v. Cheyne, 420 
 Edwards v. Barnard, 646 
 
 V. Broadwood, 704, 707 
 
 V. Carter, 478, 497 
 
 V. Freeman, 251 
 
 v. Hope, 342 
 
 V. Jones, 58, 61, 416, 629. 
 
 683 
 V. Lewis, 98 
 
 V. Marcus, 288 
 
 '('. Marston, 287 
 
 V. Meyriek, 112 
 
 V. M'Leay, 182 
 
 r. Pike, 41 
 
 r. Standard Rolling Stock, 
 
 290
 
 J'ABLE OF CASK.S. 
 
 XXX Vll 
 
 Edwardn v. Warwick (C. ofj, 514, 529 
 Edwards- Wood r. Marjoribanks, 7;^2 
 Egerton r. Brownlow, in, 208 
 Ehrmann < . Bartholomew, 207, 735 
 Eland r. Baker, 217 
 
 V. E., 374, ;>7(3 
 
 r. Medland, 132 
 
 Elder r. Pearson, 458 
 
 Elderton, Jie, 468 
 
 Elgood V. Harris, 570 
 
 Elias r. Continental, &c. Co., 290 
 
 V. Griffith, 756 
 
 Elibank v. Montolieu, 437 
 
 EUard r. Llandaff, 182 
 
 EUesmere Brewery v. Cooper, 400, 406 
 
 Ellice r. Roupell, 813 
 
 Elliman v. Carrington, 208 
 
 Elliott r. Merryman, 371, 372, 373, 
 
 375 
 Elliot r. Brown, 652 
 
 V. Cordell, 440 
 
 — — r. Dearsley, 607 
 
 V. E., 88 
 
 r. Fisher, 514 
 
 V. Lambert, 476 
 
 V. N. E. R. Co., 768 
 
 ElUs'sTr.jiJe, 427 
 
 Ellis, Kxp., 66 
 
 V. Barker, 226 
 
 r. Glover, 293 
 
 '■■ Johnson, 148, 430 
 
 r. Roberts, 150 
 
 ( . Selby, 30 
 
 V. Walker, 62 1 
 
 Ellison r. Airey, 165 
 
 r. E., 60, 62, 244 
 
 — '■ V. Elwin, 450 
 
 Elliston V. Reacher, 212 
 Elmsley v. Mitchel, 131 
 Elphiustone i'. Monkland, &c. Co., 
 
 256, 257, 261 
 Elsey r. Lutyens, 362 
 Elton r. Curteis, 276 
 Elvy V. Norwood, 315 
 Emery, Exp., 339 
 Emmerson's Case, 231, 695 
 Emmet v. E., 148, 163 
 Emuss V. Smith, 518, 609 
 England, Re, 310, 468 
 
 V. Codrington, 270 
 
 r. Curling, 642, 697 
 
 v. Downs, 451 
 
 English, &c. Chartered Bk., Re, 403 
 English & Scottish Merc. Co. v. Brun- 
 
 ton, 355, 360 
 Eno V. Dunn, 794 
 
 V. Tatham, 605 
 
 Erlanger t'. New Sombrero Co., 15, 
 
 100, 110 
 
 Erringtun v. Aynesley, G96 
 Erskinc's Tr., Re, 442, 446 
 Er.skiiie & Co. v. Sachs, 110 
 Esdaile r. Stephenson, 729 
 Esposito r. Bowden, 658 
 E.ssel i\ Hayward, 659 
 Essex V. Baugh, 362 
 
 ('. E., 655 
 
 Etches r. Lance, 811 
 Etheridge r. Womersley, 745 
 European Bk., Re, 338 
 Evans v. Bagshawe, 665 
 
 V. Bremridge, 400 
 
 V. Cockeram, 602 
 
 V. Llewellyn, 192, 200, 225 
 
 r. Massey, 485, 486 
 
 V. Moore, 99 
 
 V. Powell, 624 
 
 V. Ware, 207 
 
 Everedr. Leigh, 501 
 Everitt «■. E., 196 
 Ewart V. Fryer, 262 
 Ewer V. Corbet, 372 
 Exchange Bk., Re, oil 
 Exhall Coal Co.. Re, 164 
 Eykyn's Trust, Re, 84 
 Eyre v. Everett, 397 
 
 V. Hughes, 268, 297 
 
 V. McDowell, 326 
 
 V. C. of Shaftesbury, 466. 470, 
 
 471 
 
 v. Wynn-Mackenzie, 169, 170, 
 
 269, 576 
 Eyton V. Denbigh, &c. Co., 345 
 
 F. V. ¥., 475 
 
 Fairclough v. Marshall, 294 
 
 — V. Swan Brewery, 268 
 
 Fairer v. Park, 547, 620 
 Fairfax v. Montague, 277 
 Fairthorne v. Weston, 650 
 Falcke v. Gray, 685, 694 
 
 r. Scottish Imp. lusce. Co., 343 
 
 Fall V. Elkins, 665 
 Faraker c. Durell. 32 
 Fane v. F., 183 
 Farebrother v. Welchman, 743 
 
 V. Wodehouse, 41 1 
 
 Farina v. Fickus, 706 
 Farley, Hxp., 332 
 Farmer v. Curtis, 275 
 
 f. Dean, 106 
 
 V. Martin, 213, 217 
 
 r. Pitt, 330 
 
 Farnham, Re, 488
 
 XXXVlll 
 
 TABLE OF CASES. 
 
 Farquhar v. Darling, 29 
 Farquharson v. Cave, 630 
 
 V. Floyer, 599 
 
 Farrand v. Yorkstiire Bk., 333, 3o5 
 Farrant v. Lovel, 293, 760, 702 
 Farrar v. Cooper, 745 
 
 V. E. of WintertoD, 345 
 
 r. Farrar.s, Lim., 108 
 
 Farrer v. Lacy, Hartlaiid, 302 
 
 Farrington v. Forrester, 478, 575, 613 
 
 i'arrow v. Vansittart, 765 
 
 — — — ■ V. Wilson, 247 
 
 Faulders' Trade Mark, lie, 794 
 
 Fa(intleroy v. Beete, 523 
 
 Faure Accumulator Co., Ec, 110 
 
 Fawcett & Holmes' Contract, He, 730 
 
 Fawcett r. Lowther, 272 
 
 Fawkner v. Watts, 483 
 
 Fearnside v. FHnt, 311 
 
 Fearon v. Desbrisay, 215 
 
 Feathers tonehaugh v. Fenwick, 98, 
 
 171, 656 
 Fell V. Brown, 275 
 Fellows r. Mitchell, 138, 144 
 Fells r. Read, 694 
 Feltham v. Clarke, 384 
 Fenner v. Taylor, 438 
 Fentou v. Blythe, 286 
 
 ■ 1'. Browne, 178, 685 
 
 Fenwicke v. Clarke, 126 
 Fereday r. Wightwick, 654 
 Ferguson v. Gibson, 590 
 Ferns v. Carr, 572 
 Ferrand v. Corp. of Bradford, 773 
 Ferris v. Mullins, 327, 328 
 Fetherstonc v. West, 145 
 Fettiplace r. Gorges, 415, 419 
 Field V. Dououghmore, 74 
 V. Dracup, 674 
 
 V. Evans, 426 
 
 V. F., 127 
 
 V. Hopkins, 269 
 
 V. Lonsdale, 83 
 
 V. Megaw, 383 
 
 V. Moore, 477 
 
 V. Sowle, 422 
 
 - V. White, 587 
 Fielding v. Preston, 598, 620 
 Filby V. Hounsell, 702 
 Finch V. F., 84, 86 
 
 V. Hattersley, 597 
 
 V. Shaw, 370 
 
 Finck V. Tranter, 335 
 
 Finden v. Stephens, 41 
 
 Fine Cotton Spinners r. Harwood, 793 
 
 Firth V. Loveridgc, 158 
 
 Fisher v. Doody, 170, 209 
 
 V. Jackson, 777 
 
 Fisher & Sons, Ec, 639, 640 
 
 Fishmongers' Co. v. East India Co.. 
 
 768 
 Fisk r. Att.-Gen., 33 
 Fitch V. Weber, 519, 520 
 Fitzgerald v. Stewart, 383 
 
 r. White, 73 
 
 Fitzgerald's Trustee v. Mellersh, 335 
 Fitzgibbun r. Blake, 430 
 
 Fitzroy r. Cave, 388 
 Flamang's Cixse, 764 
 Flamank, Uxp., 512 
 Fleetwood, Ec, 41 
 Fleming r. Armstrong, 670 
 
 V. Buchanan, 600 
 
 V. Loe, 352 
 
 Fletcher, Exp., 290 
 V. Ashburner, 507 
 
 V. Bealey, 807 
 
 r. F., 585 
 
 r. Nokes, 262 
 
 Flint V. Howard, 613 
 Flory V. Denny, 56 
 Flower, Ee, 139 
 
 V. Buller, 326 
 
 Foley V. Burnell, 55 
 Foligno's Mortgage, Ec, 283 
 Forbes v. Adams, 527 
 
 — V. Jackson, 411 
 
 V. Peacock, 374, 375 
 
 v. Ross, 129, 163 
 
 Ford t: Beech, 235 
 
 ;;. Fleming, 62 1 
 
 V. Hopkins, 144 
 
 V. Holden, 108, 271 
 
 r. Peering, 802 
 
 r. White, 363 
 
 Fordyce r. Ford, 729 
 Forrester r. Cotton, 495 
 Forster v. Baker, 388 
 V. Hale, 38 
 
 V. Patterson, 279, 311 
 
 Fort, Ee, 641 
 
 Fortescue v. Barnett, 61, 64 
 
 Foster v. Deacon, 726 
 
 V. F., 513, 523 
 
 & Lister, In re, 64, 70 
 
 v. Mackinnon, 229 
 
 Fothergill r. F., 241, 242, 243 
 Fountain r. Amherst, 150 
 Fowke V. Draycott, 445 
 Fowkes V. Pascoe, 79, 82, 534 
 Fowler's Trust, Ee, 497 
 Fowler v. Att.-Gen.. 33 
 
 V. F. (4 De G. & J.), 235, 237 
 
 v. F. (3 P. Wms.), 549 
 
 V. Garlike, 77 
 
 Fox, Ee, 309 
 
 V. Hawks, 61 
 
 I'. Mackreth, 103, 182, 195
 
 TABLE OF CASES. 
 
 XXXIX 
 
 Fox V. Scard, 260 
 
 p. Wright, ISS 
 
 Foxwell V. Lewis, 529 
 
 V. Van Grutteii, 7bi, 80fi 
 
 Frail v. Ellis, 334, 349 
 Frame v. Dawson, 706 
 France r. Clark, 282, 327 
 
 V. F., 672 
 
 Francis, He, 289 
 
 V. Brooking, 446 
 
 V. F., 129 
 
 V. Wigzell, 424 
 
 Franco r. Bolton, 801 
 Franklin r. Green, 485, 486 
 Franklyn r. Fern, 274 
 Franks v. BoUans, 106, i)27 
 Frape, Jir, 113, 198 
 Frailer, lie-, 607 
 
 V. Wood, 725 
 
 Freeman's Trusts, Me, 166 
 
 Will, Re, 31, 33 
 
 , 76 
 
 ; . Bishop, 186 
 
 r. Fairlie, 801 
 
 f. Laing, 319 
 
 v. Lomas, 571 
 
 r. Pope, 65 
 
 Freemantlt^ v. fiankes, 537 
 Freer i\ F. , 625 
 
 Freke i\ Calmady, 759 
 French r. Baron, 307 
 
 ' . Davison, 485 
 
 ■ — — ' . F., 72 
 
 r. Macale, 260, 261, 682 
 
 /■. Sydney, 639 
 
 Frere v. Moore, "346 
 
 Frewin r. Law Life Soc, 498 
 
 IMend v. Young, 563, 564, 565, 577 
 
 Friswell v. King, 340 
 
 Frost V. Brewer, 732 
 
 Frowde r. Hengler, 122 
 
 Fry V. Capper, 427 
 
 V. Lane, 187, 191 
 
 V. Porter, 203 
 
 V. Smellie, 329, 333 
 
 V. Tapson, 127 
 
 Fuller, i:xp., 340 
 
 V. Bennett, 359 
 
 V. Knight, 130 
 
 Fullerton v. Prov. Bk. of Ireland, 362 
 Fnrber, JE.vp., 286, 287 
 Funiess v. Stalkartt, 537 
 Fynn, Jte, 467, 473 
 Fytche v. F., 506 
 
 G. (an infant), lie, 469 
 G. r. L., 171 
 
 Gabelliui r. Woods, 122, 574 
 Gatfee's Settlement, 429 
 Gale V. Lindo, 206 
 Galland, He, 340 
 Gallard r. Ha\vkin>', 1 66 
 Gallop, Exp., 83 
 Gal ton ;■. Hancock, 610 
 Game, He, 428 
 
 V. Young, 121 
 
 Gandy v. Macaiilay, 236 
 Gardiner v. Fell, 503 
 Gardner r. Hatton, 624 
 
 V. Marshall, 446 
 
 V. Parker, 629 
 
 Garforth v. Bradley, 442 
 Garland «'. Shaw, 536 
 Garrard, 2te, 30, 42 
 
 V. Dinorben, 585 
 
 • V. Lauderdale, 73 
 
 GaiTet V. Wilkinson, 87 
 Garth v. Cotton, 761 
 
 ('. Meyrick, 543 
 
 r. Townsend, 241 
 
 Garthshore r. Chalie, 552 
 Gascoigne v. Thwing, 81 
 Gaskell's Trusts, 430 
 Gaskell y. G., 664 
 Gaskin v. Balls, 764 
 
 Gas Light Co. v. St. Maiy Abbott's 
 
 Vestry, 752 
 Gasquoine v. G., 137 
 Gaunt V. Finney, 772 
 Gedge v. Montrose, 727 
 Gee I'. Pearse, 724 
 General Accident Co. v. Noel, 795 
 General Credit, &c. Co. v. Glegg, 254, 
 
 269, 282 
 General Share Co. v. Chapman, 340 
 General S. Amer. Co., Exp., 567 
 Genese, Re, 462 
 Gent V. Harris, 446 
 Gentle v. Faulkner, 262 
 George, Re, 481, 627 
 
 V. Grose, 78 
 
 V. Milbanke, 65 
 
 George Ap-Rice's Case, 755 
 Gestetner's Trade Mark, Re, 793 
 Gething v. Keighley, 576 
 Giacometti v. Prodgers, 442, 446 
 Gibbins v. Eyden, 699 
 Gibbons e. Hills, 621 
 Gibbes v. Hale-Hintou, 125 
 Gibbs V. Guild, 184 
 
 v. Harding, 698 
 
 Gibson, Re, 6\9, 625 
 
 V. Goldsmid, 649 
 
 V. Ingo, 694 
 
 V. Smith, 752 
 
 Giddings v. G., 100, 101
 
 xl 
 
 TABLE OF CASES. 
 
 Giffard v. Hart, 806 
 
 V. Williams, 665 
 
 Giflford, Exp.,i03 
 Gilbert, £e, 587 
 
 V. Lewis, 418 
 
 V. Overton, 62 
 
 Smith, G74 
 
 Gilbertson r. G., 59.5 
 Gilchrist, Exp., 462 
 
 V. Cator, 445 
 
 Giles V. G., 239 
 Gillam v. Taylor, 34 
 Gillett r. Peppercorne, 110 
 Gillies V. Longlands, 530 
 Gillins, i?e, 619 
 Gimblett, £xp., 65 
 Glasier v. Rolls, 179 
 Glassington v. Thwaites, 650 
 Gleaves v. Paine, 439 
 Gleeson, Jie, 536 
 
 Glegg r. Bromley, 66, 390 
 
 r. Rees, 74 
 
 Glenorchy v. Bosville, 46 
 
 Gloag and Miller's Contr., Re, 726 
 
 Gloucester Bk. f. Rudry, &c. Coll., 
 
 307 
 Gluckstein v. Baraes, 110 
 Glukmau, Be, 43, 167 
 Glyn, Exp., 330 
 Glynn r. Bk. of England, 250 
 Goatley v. Jones, 462 
 Goddard v. Jeffrej's, 236 
 
 V. Snow, 451 
 
 Godfrey v. G., 39 
 
 V. Harben, 423 
 
 1:. Littel, 679 
 
 V. Watson, 314 
 
 Godin V. Lond. Ass. Co., 339 
 (lolden V. Gillam, 67 
 Goldicutt f. Townsend, 707 
 Goldsmid r. G., 552 
 Goldsmith v. Russell, 447 
 Golebom v. Alcock, 366 
 Gompertz v. Pooley, 740, 743 
 Good, Exp., 339 
 Goodall's Trade Mark, Re, 794 
 Goodenough f. Tremamondo, 121 
 Goodfellow V. Gray, 342 
 Goodier r. Edmunds, 511 
 (^oodlad V. Burnet, 618, 625 
 Goodman r. Whitcomb, 659 
 Goodright v. Hodges, 82 
 Goodson V. Richardson, 765 
 Goodwin v. Waghom, 328 
 Goodwyn f. G., 244 
 Goold V. Teague, 519 
 Gordon, Re, 529 
 
 V. Calvert, 401, 404 
 
 f. Cheltenham R. Co., 7C6 
 
 Gordon v. Craigie, 30, 42 
 
 V. G. (3 Swanst.), 183, 226 
 
 -v. (1907, 1 Ch.), 574 
 
 Gore, Exp., 109 
 
 i-. Knight, 418 
 
 Goring r. Nash, 798 
 Gosling V. Carter, 376 
 
 V. Warburton, 501 
 
 Gould f. Robertson, 74 
 
 Gower v. Mainwaring, 45 
 
 Gowlaud V. De Faria, 107, 186, 187, 
 
 189, 190 
 Grace, Exp., 97 
 Graham, Re, 73 
 
 r. Londonderry, 418, 433, 434 
 
 V. Massey, 17 
 
 Grand Hotel of Caledonia v. Wilson, 
 
 794 
 Grand Junction, &c. Co. v. Hampton 
 
 Council, 749, 775 
 Grange, Re, 511 
 
 V. White, 675 
 
 Grant v. G. (34 Beav.), 57, 418, 419, 
 434 
 
 V. G. (3Russ.), 811 
 
 Graves v. Dolphin, 43 
 Graves Minor, Re, 518 
 Gray v. Lewis, 143 
 
 «'. Siggers, 120 
 
 Graybum '•. Clarkson, 124 
 
 Gray don, Re, 340 
 
 Great Luxembourg R. Co. v. Magnay, 
 
 170 
 Great Nor. R. v. Coal Co-oper. Soc, 
 286 
 
 V. Palmer, 258 
 
 V. Winder, 258 
 
 Great W. R. Co. v. Crippa, 713 
 
 V. Rushout, 748 
 
 V. W. & L. R. Co., 745 
 
 Greedy r. Lavender, 444 
 Green, Exp., 68 
 V. Bridges, 255 
 
 V. Britten, 417 
 
 V. Farmer, 338 
 
 V. G. (26 Ch. D.), 311 
 
 V. G. (2 Mer.), 493 
 
 V. Marsh, 300 
 
 V. Otte, 446 
 
 V. Patterson, 57 
 
 V. Sevin, 721 
 
 V. Smith, 685 
 
 V. Symonds, 624 
 
 . V. Wynn, 402 
 
 Greene v. G., 595 
 Greenhill V. G., 513 
 
 V. N. B. Insurance Co., 506 
 
 Greenhouse, Exp., 152 
 
 I
 
 TABLE OF CASES. 
 
 Xli 
 
 Greening v. Beckford, 1386 
 Greenhough v. Littler, 33'2 
 Greenslade v. Dane, 356 
 Greenway, Exp., 248, "249 
 Greenwell v. G., 483 
 Greenwood v. Francis, 397 
 
 V. G., 617 
 
 V. Horsey, 770 
 
 V. Turner, 727 
 
 Greer v. Young, 341 
 Gregg V. Holland, 65, 70 
 Gregory v. Edmondson, 39 
 V. G., 105, 115 
 
 V. Mighell, 684 
 
 V. Wilson, 258 
 
 Gretton v. Haward, 494, 495 
 Grey v. G., 86, 87 
 Gribble v. Webber, 634 
 Grierson v. Nat. Prov. Bk., 355 
 Griessman v. Can-, 133 
 Grieveson v. Kirsopp, 511 
 Griffies v. G., 670 
 
 Griffin v. De Veulle, 197 
 
 V. G. (1 S. & L.), 94, 98 
 
 V. G. (1899, 1 Ch.), 59 
 
 Griffith V. Clay & Sons, 770 
 
 V. Hughes, 146 
 
 V. Owen, 108 
 
 V. Pound, 321 
 
 V. Ricketts, 73, 517, 525 
 
 Griffith-Boscawen v. Scott, 493 
 Griffiths, &c. Corp. v. Humber & Co., 
 
 702 
 Grigby f. Cox, 420 
 Grimond r. G., 30, 42 
 Grimstone v. Cuningham, 700, 734 
 Grimstone, Exp., 512 
 Grirathorpe, Re, 517, 525, 529 
 Grissell's Case, 571 
 Grissell v. Money, 335 
 
 v. Swinhoe, 503 
 
 Griswold v. Waddington. 658 
 Groom v. Cheesewright, 340 
 Grosvenor i!. Sherratt, 113 
 Grove v. Comyn, 672 
 Groves «;. G., 82, 83 
 
 V. Perkins, 437 
 
 Grugeon v. Gerrard, 277 
 Guest V. Homfray, 723 
 
 V. Smythe, 112 
 
 Gunn, Re Goods of, 514 
 Gurnell v. Gardner, 383 
 Guthrie v. Walrond, 498 
 Guy V. Churchill, 390 
 
 V. Sharp, 545 
 
 Gwynne v. Heaton, 185 
 Gyngall, Re, 469 
 
 H. f. H., 476 
 
 Hack V. Leonai-d, 258 
 
 I'. Lond. Provident, &c. Soc, 699 
 
 Haddington, itc. v. Hudson, 304 
 Haddon v. Fladgate, 419 
 Hadley v. H., 383 
 Hadow V. H., 479 
 Haigh V. Kaye, 44 
 Haines v. Taylor, 752, 768 
 Hale V. Webb, 250, 572 
 Hales V. Cox, 614 
 Halfhide v. Fenning, 698 
 HaUfax Bank v. Gledhill, 66, 67 
 Halkett v. Dudley, 725, 726, 733 
 Hall, Exp., 383 
 
 V. Barrows, 792 
 
 V. Burnell, 260 
 
 V. H. (3 Atk.), 471 
 
 V. H. (12 Beav.), 650, 656 
 
 V. H. (8 Ch.), 63, 200, 802 
 
 r. H. (3 Mac. & G.), 661 
 
 V. H. (1 P. & M.), 201 
 
 V. H. (1911, 1 Ch.), 280, 281, 463 
 
 V. Hallett, 109, 115 
 
 V. Heward, 273, 324 
 
 V. Hill, 501, 541, 549 
 
 V. Hutchons, 402 
 
 V. Palmer, 59 
 
 V. Thynne, 205 
 
 V. Warren, 689 
 
 V. Waterhouse, 419 
 
 V. Whiteman, 288 
 
 Hallas V. Robinson, 381 
 Hall-Dare v. Hall-D., 238 
 Hallett's Estate, Re, 144, 565 
 Hallett & Co., Re, 144 
 
 t'. H.,570 
 
 Hallows V. Lloyd, 360 
 Halsey v. Grant, 729 
 Haly V. Barry, 745 
 Hamer v. Giles, 341 
 Hamilton, Re, 285 
 r. H.. 478, 494 
 
 V. Mohun, 205 
 
 V. Vaughan, 194 
 
 r. Wat,son, 396 
 
 Hammersley v. De Biel, 707 
 Hampshire Land Co., Re, 359 
 Hampton v. Hodges, 756 
 
 V. Holman, 55 
 
 r. Nourse, 203 
 
 Hanbury v. Fisher, 40 
 
 v. Kirkland. 139 
 
 '•. Spooner, 165 
 
 Hanby v. Roberts, 610 
 Hance v. Harding, 67 
 Hancock v. Berrey, 346 
 
 V. Pawsou, 495 
 
 V. Smith, 144, 565
 
 xlii 
 
 TABLE OF CASES. 
 
 Haucox V. Abbej', 601 
 Handford, Be, 460 
 Hands f. Andrews, 812 
 Hankey r. Vernon, 326 
 Hankinson v. Haytor, 460, 587, 6'2I 
 Hanley r. Pearson, 237 
 Hannen v. Hillyer, 33 
 Hanningtoii r. True, 607 
 Hansard v. Hardy, 277 
 
 v. Robinson, 247, 250 
 
 Hansen v. Miller, 448 
 Hansom v. Allen, 133 
 Hanson, E.vp., 349 
 
 f. Gardiner, 752, 764, 808 
 
 V. Keating, 440 
 
 V. Reece, 340 
 
 V. Stubbs, 590 
 
 Harbidge r. Wogan, 237 
 Harbin r. Darby, 164, 169 
 Harding, in the Goods of, 413, 449 
 
 r. Glyn, 45 
 
 V. H., 607 
 
 V. Met. R. Co., 517 
 
 Hardinge v. Cobden, 63 
 Hardingham v. Thomas, 531 
 Hardman v. Child, 733 
 Hardwicke r. Wright, 409 
 Hardy, £xp., 355, 518 
 
 r. Att. -Gen., 32 
 
 V. Martin, 255, 261 
 
 Hare & O'More's Contr., Re, 712, 732 
 Harewood >:. Child, 595 
 Harford v. Carpenter, 329 
 
 V. Furrier, 727 
 
 Hargreaves & Thompson's Contr., He, 
 
 718 
 Hargreaves v. Taylor, 30 
 Harkness & AUsopp, Ee, 26, 457 
 Harland v. Trigg, 42 
 Harle v. Jarman, 506 
 Harlock v. Ashberry, 310, 311 
 Harman v. Richards, 66 
 Harmer v. Priestley, 277 
 Harmood v. Oglander, 610 
 Harms v. Parsons, 207 
 Harnett v. Yeildiug, 683, 731 
 Harper v. Alpin, 293 
 Harpham r. Shacklock, 112, 363, 367 
 Harrington r. Du Chastel, 208 
 
 r. H., 55 
 
 V. "Watts, 29 
 
 V. Wheeler, 724 
 
 Harris, Exp., 647 
 
 Me, 503 
 
 V. Brisco, 391 
 
 V. Fawcett, 404 
 
 V. Rothwell, 780 
 
 V. Truman, 144 
 
 1-. Tubb, 69 
 
 Harris' Settled Estate, Ee, 457 
 Harrison, Exp. (18 Ch. D.), 300 
 
 V. Barton, 90, 91 
 
 r. Davis, 454 
 
 V. Forth, 362 
 
 V. Guest, 114, 185 
 
 /'. Guniey, 746 
 
 V. H. (40 Ch. D.), 213, 431 
 
 r. H. (2 H. & M.), 167 
 
 V. H. (1 Keen), 501 
 
 6. H. (1 R. & M.), 345 
 
 r. Nettleship, 743 
 
 V. Southwark, &c. Water Co., 
 
 775 
 
 V. Tennant, 659 
 
 Harrold r. Plenty, 335 
 Harrop v. Howard, 426 
 Hart, Ee, 68 
 
 V. Collev, 792 
 
 V. H., 698 
 
 r. Herwig, 695 
 
 V. Stone, 120 
 
 Harter v. Colman, 322 
 Hartford V. Power, 417, 418 
 Hartland r. Murrell, 597 
 Hartley i'. Ostler, 543 
 
 ■ v. Pendarves, 523 
 
 Hartopp c. H., 535 
 
 r. Huskisson. 367 
 
 Hartridffe, £xp., 700 
 HartweU r. H., 208 
 Harvey's Estate, Ee, 423 
 Harvey v. Aston, 203, 20 1 
 V. Hobday, 89 
 
 f. Jebbutt, 314 
 
 V. Met. R. Co., 690 
 
 V. Mount, 200 
 
 Haselfoot's Estate, In re, 315 
 Haslewood v. Pope, 595, 609 
 Hasluck, Exp., 287 
 
 V. Clark, 589 
 
 Hassell r. Stanley, 342 
 Hatch V. H., 197 
 Hatchell r. Eggleso, 440 
 Hatchett v. Pattle. 251 
 Hatten v. Russell, 721 
 Havelock v. H., 482, 483 
 Hawes v. Wvatt, 192, 200 
 Hawkes, Er,''GOb 
 
 r. Hubback, 428, 42'.) 
 
 Hawkins, Exp., 517 
 
 r. Blewitt, 630 
 
 r. Day, 251 
 
 L\ H., 811 
 
 v. Holmes, 705 
 
 r. Malty, 695 
 
 Hawksworth r. H., 475 
 Hawthorn r. Shedden, 600 
 Hay V. Palmer, 574
 
 TABLE OF CASES. 
 
 xliii 
 
 Hay V. Woolmer, 122 
 Hay craft v. Creasy, 178 
 Hayes r. Caryll, 724 
 Hayue.s r. Doman, 207 
 —^ — V. Foster, 491, .306 
 
 V. H., 517 
 
 — ■ V. Mico, 55;; 
 
 Hays, Hzp., 486 
 Hayward r. Att.-Geu., 29 
 
 V. H., 776 
 
 Haywood v. Cope, 684, 686 
 
 Hazeldine'sTr., lie, 309 
 
 Head's Trustees and Macduuakl, lie, 
 
 597 
 Head v. Gould, 128, 146 
 
 V. H., 403 
 
 Heams v. Bance, 315 
 Heapr. Tonge, 71 
 Heard v. Pilley, 81 
 Hearle v. Greenbank, 502 
 Heath v. Crealock, 370 
 
 V. Lewis, 204 
 
 V. Unwin, 781 
 
 Heathcote v. N. S. R. Co., 747 
 
 Heather, JRe, 537 
 
 Heaton v. Marriott, 138 
 
 Hedley r. Bates, 742 
 
 Hele V. Bexley, 291 
 
 Henderson v. Astwood, 108, 298, 304 
 
 V. Molver, 164 
 
 Henderson-Roe v. Hitchens, 481 
 Hendriks v. Montague, 806 
 Hendry v. Turner, 656 
 
 Henley f. , 113 
 
 Henley & Co., ^p, 584 
 
 Henry r. Amistrong, 63, 200, 802 
 
 Hensman r. Fryer, 599 
 
 Henson, Jie, 378 
 
 Henty v. Wrey, 215, 611 
 
 Hep worth r. H., 86 
 
 V. Hill, 604 
 
 Herbert v. H., 513 
 
 r. Salisbury, &c. R. Co., 254 
 
 Herbert's Case, 476 
 
 Hercy v. Birch, 642 
 Hei'mann r. Charlesworth, 205 
 
 V. Hodges, 690, 699 
 
 Loog r. Bean, 777 
 
 Loog:, He, 742 
 
 Herron v. Rathmines, &c. Comui., 
 Hertslet v. Oatway, 144 
 Hervey r. H., 244 
 
 V. Smith, 358 
 
 Hetherington r. Groome, 287 
 Hetley r. H., 41, 43 
 Hetling and Merton, Me, 127 
 Hewison t\ Guthrie, 338 
 
 'V. Negus, 64, 70 
 
 Hewitt f. Kaye, 631 
 
 ■52 
 
 Hewitt V. Loosemore, 348, 355 
 
 V. Wright, 517, 624 
 
 Heysham v. H.. 472 
 Hibbert r. Jenkins, 162 
 Hickley r. Greenwood, 287 
 
 V. H., 106 
 
 Hickman r. Berens, 227 
 Hicks V. Hastings, 680 
 Hide V. Haywood, 163 
 Higginbotham v. Holme, 43 
 Higgins V. Betts, 770 
 
 V. Frankis, 323 
 
 Hildesheim, He, 641 
 Hill V. Barclay, 258 
 
 V. Boyle, 390 
 
 V. Buckley, 731 
 
 V. Caillovel, 387 
 
 : V. Cock, 519 
 
 V. Cooper, 426 
 
 V. Edmonds, 440 
 
 V. Gomme, 473 
 
 V. Gray, 181 
 
 V. Hart-Davis, 776 
 
 V. Hickin. 572 
 
 V. H. (8 I. R. Eq.), 97 
 
 V. H. (1897, 1 Q. B.), 40, 55 
 
 V. Rowlands, 277 
 
 r. Simpson, 372 
 
 V. Thompson, 781 
 
 V. Turner, 749 
 
 V. Wilson, 56 
 
 V. Wormslev, 604 
 
 Hilliard v. Fulford, 251 
 Hillman, Exp., 67, 69 
 Hills r. H., 632 
 
 V. Rowland, 259 
 
 Hilton, lie, 125 
 
 r. Barrow, 798 
 
 r. Granville, 751, 753 
 
 V. Scarborough, 809 
 
 V. Woods, 391 
 
 Hinchcliffe ;■. H., 538 
 Hinchinbroke r. Seymour, 214 
 Hind V. Nineteenth Century B. Soc. 
 
 263 
 Hinde v. Blake, 381 
 Hindson r. Weatherill, 201 
 Hiugeston r. Sidney, 30 
 Hin.sley r. Inckeringill, 600 
 Hinton r. Priske, 620 
 Hinves r. H., 119 
 Hipgrave v. Case, 685 
 Hippesley v. Knee, 111 
 Hiram Maxim Lamp Co., Ee, 571 
 Hirst r. Tolson, 572 
 Hiscock V. Lodder, 479 
 Hitchman v. Stewart, 394 
 Hoare v. Kingsbury XJ. Co., 708 
 Hobbs i\ Hull, 698
 
 xliv 
 
 TABLE OF CASES. 
 
 Hobbs f. Norton, 210 
 Hobday v. Peters, 112 
 Hoblyn V. H., 183 
 Hobson's Trusts, Ee, 5 13 
 Hobson V. Ferraby, 478 
 
 V. Gorringe, 331 
 
 ■ r. Sherwood, 664 
 
 V. Trevor, 381 
 
 Hockley r. Bantock, 330 
 Hoddinott. r. Biggs, 26S 
 Hodgeiis /■. H., 437 
 Hodge's Sett., He, 473 
 Hodges V. H., 431, 506 
 
 V. Peacock, 544 
 
 Hodgson, E(\ 570, 645 
 
 V. Bates, 121 
 
 r. Braisley, 538 
 
 V. Dean, 364 
 
 r. Shaw, 410 
 
 V. Williamson, 424 
 
 Hodgkinson v. Quinn, 376 
 
 Hodson and Howe's Contr., Ec, 335 
 
 I-. Deans, 108 
 
 V. Heuland, 705 
 
 Hogg V. Kii-by, 778 
 Hoggart V. Scott, 721 
 Hoghton r. H., 200 
 Holden, Er, 164 
 
 V. Thompson, 390 
 
 Holder v. Williams, 589, 590 
 
 Holderness v. Lamport, 83 
 
 Holdich r. H.. 501 
 
 Hole f. Thomas, 762 
 
 Holford V. Acton, &c. Council, 735 
 
 r. H., 481 
 
 V. Wood, 543 
 
 Holgate r. Shutt, 576 
 Holland r. Worley, 688 
 Hollingsworth v. Davy, 122 
 Holloway v. Radcliffe, 528 
 Holme V. Hammond, 640 
 Holmes, E«, 357, 361, 386 
 V. Dring, 129 
 
 V. H. (1 Bro. C. C), 538 
 
 • V. H. J1907, 2 Ch.), 579 
 
 r. Kidd, 387 
 
 V. Penny, 65 
 
 Holms V. Coghill, 600 
 Holroyd v. Marshall, 381 
 Holt's Trade Mark, Ee, 793 
 Holt, Krp., 147 
 
 V. Dewell, 364 
 
 V. H., 100 
 
 Home and Colonial Stores ;. Culls 
 
 770 
 Homer v. Ashford, 796 
 Homfray v. Fothergill, 649 
 Honywood v. Forster, 496 
 V. H. (18 Eq.), 756 
 
 Honywood v. H. (1902, 1 Ch.), 498 
 Hood V. Clapham. 123 
 
 r. Easton, 299 
 
 V. H., 346, 604 
 
 V. Mackinnon, 237 
 
 Hood-Barrs, Exp., 426 
 
 V. Cathcart, 318, 424, 460 
 
 r. Heriot, 430 
 
 Hoole r. G-. W. R. Co.. 752 
 
 1-. Smith, 303 
 
 Hooley r. Hatton, 542 
 
 Hooman, Exp., 289 
 
 Hooper v. Corp. of Exeter, 227 
 
 V. Smart, 387. 731 
 
 Hope r. Carnegie, 742 
 
 V. H. (8 De G. M. & G.), 466 
 
 V. H. (1892, 2 Ch.), 458 
 
 V. H. (1 Jur. N. S.), 123 
 
 Hopkins, Exp., 466 
 
 ■ V. Hemsworth, 368 
 
 Hopkinson v. Forster, 383 
 
 r. Richardson, 513, 523 
 
 V. Roe, 164 
 
 V. Rolt, 319 
 
 Hopper V. Conyers, 144 
 
 Hopton V. Dry den, 588 
 
 Hora <•. H., 479 
 
 Hordern v. K., 171, 696 
 
 Horlock V. Wigging. 548 
 
 Horn V. H., 373 
 
 Homcastle v. Charleswortb, 666 
 
 Horniblow r. Shii'ley, 729 
 
 Honisby v. Lee, 449 
 
 Horsey v. Steiger, 262 
 
 Horwood V. Griffith, 623 
 
 V. West, 41 
 
 Hotchkin, Exp., 323 
 
 Hotehkys. Ee, 498, 759 
 
 Hotten r. Arthur-, 788 
 
 Hovey /•. Blakeman, 137, 110 
 
 How r. Wheldon, 194 
 
 ('. Wint^rton, 150 
 
 Howai'd V. Digby, 432, 433 
 
 v. Fanshawe, 263 
 
 V. Harris, 267, 275 
 
 V. Lightfoot, 310 
 
 v. Rowatt's Wharf, 571 
 
 Howarth, Er, 482 
 
 V. Dewell, 39 
 
 Howatson >:. Webb, 229 
 Howe, Exp., 146 
 
 r. Ld. Dartmouth, 118. 119, 
 
 123, 620 
 
 V. Smith. 260 
 
 Howell'. H., 50 
 Howell *'. Couplaud, 246 
 
 v. Price, 265 
 
 Howes V. Bishop, 190 
 
 Howgate and Osborn's Contr., Ef, 457
 
 TABLE OF CASES. 
 
 xlv 
 
 Howman r. Corie, 448 
 Hoyle, Bf, 146 
 Hubbard r. Alexander, 545 
 Huddersfield Bk. v. Lifter, "2 3 "2 
 Hudson, He, 633, 634 
 
 r. Bai-tram, 720 
 
 t'. Carmichael, 280 
 
 ■ r. Spencer, 544, 629 
 
 V. Temple, 719, 720 
 
 Hue V. Richards, 660 
 Hugbes & Co., Ee, 658, 660 
 
 r. Britannia, &c. Soc, 319, 323 
 
 r. Empsom, 124 
 
 r. Howard, 99, 101 
 
 r. Jones, 731 
 
 f. Little, 287 
 
 v. Met. R. Co., 258 
 
 i\ Morris, 695, 705 
 
 r. Pump, &c. Co., 388 
 
 1: Williams (3 Mac. & G.), 014 
 
 V. Williams (12 Ves.), 297, 298 
 
 Hughes- Hallett r. Indian, &c. Co., 
 
 399, 807 
 Hugill e. Wilkinson, 279, 311 
 Huguenin v. Baseley, 195, 198 
 Huish's Charity, Ee, 215 
 Hull v. Christian, 165 
 Hulme V. Coles, 398 
 
 . v. Tenant, 416, 422, 423 
 
 Hulse, i:xp., 254 
 Humber v. Richards, 368 
 Humberston v. H., 55 
 Hume V. Edwards, 621 
 
 v. Lopes, 134 
 
 Hummel v. H., 242 
 Humphrey v. Olver, 215 
 Humphreys, Ee, 341 
 
 i". Green, 705 
 
 V. Harrison, 761 
 
 V. Jones, 677 
 
 Huraphrvs v. Polak, 469 
 Hungerford v. Clay, 293, 294 
 Hunt V. Luck, 356, 358 
 
 V. Parry, 482 
 
 V. Peake, 766, 772 
 
 V. Rousmaniere, 225 
 
 c. Thorn, 606 
 
 Hunter v. Atkins, 200 
 
 V. Att.-Gen., 30 
 
 V. Daniel, 390 
 
 V. Nockolds, 315 
 
 ('. Walters, 229, 230 
 
 Huntingdon v. H., 281 
 Hurry v. H., 676 
 
 Hurst V. Beach, 544, 545 
 
 V. H., 305 
 
 Hussey v. Home-Payne, 703 
 Hutchins to Burt, Ee, 426 
 Hutchinson v. Norwood, 339 
 
 Hutchinson v. Tenant, 39 
 Huttley V. Simmons, 777 
 Huxtable v. Crawford. 41 
 Hyatt, Ee, 579 
 Hyde v. Dallaway, 279 
 
 V. Warden, 359 
 
 Hyett V. Meakin, 523 
 
 Hyman v. Van den Burgh, 770 
 
 Hylton r. H., 113, 197 
 
 Ibbotson r. Rhodes, 210 
 Ideal Bedding Co. v. Holland, 65 
 Ilch ester, Exp., 471 
 Illidge, Ee, 590 
 Imbert, Exp., 562 
 Imray v. Oakshette, 263 
 Inchiquin r. French, 594- 
 Incledon r. Northcote. 482 
 Ind Coope & Co., Ee, 294 
 
 r. Emmerson, 371 
 
 Ingle v. Partridge, 139 
 
 V. Richards, 106 
 
 Inglefield r. Coghlan, 416, 417 
 Inglisf. Gillins, 619 
 Ingram v. Papillon, 536 
 Innes v. I., 60 
 
 V. Sayer, 34, 243 
 
 International, &c. Soc, Ee, 612 
 
 lonides r. Pender, 183 
 
 Ireland (Bk. of) v. Beresford, 397 
 
 Irnham v. Child, 224, 714 
 
 Irons V. Smallpiece, 56 
 
 Irvine v. Sullivan, 77 
 
 Irving v. Young, 575 
 
 Isaac V. Defriez, 34 
 
 Isaacs V. Reginall, 518 
 
 Isaacson, Ee, 289 
 
 V. Harwood, 145 
 
 Isherwood, Exp., 300 
 Iven ;' Elwes, 585 
 Ives V. Willans. 698 
 Ivie »•.!., 802 
 
 Jackman v. Mitchell, 184 
 Jackson, Exp., 300 
 
 ■ V. Butler, 694 
 
 V. Cator, 752 
 
 V. Dickinson, 145 
 
 V. J., 653 
 
 V. James, 281 
 
 V. Newcastle (D. of), 769 
 
 1'. Normanby Brick Co., 736 
 
 V. Parrott, 480 
 
 and Woodbum, Ee, 718 
 
 Jacob r. Lucas, 124
 
 xl 
 
 VI 
 
 TABLE OF CASES. 
 
 Jacobs V. Revell, 730 
 Jacomb v. Harwood, 140 
 
 V. Knight, 736 
 
 Jacques v. Chambers, 626 
 Jacques-Cartierr. LaBanque, &c., 184 
 James, E.rp. (9 Ch.), 227 
 
 (8 Ves.), 105, 109 
 
 V. Couchman, 63 
 
 v. Dean, 95 
 
 V. J. (1892, 2 Ch.), 4r>7 
 
 V. J. (13 Eq.), 792 
 
 V. J. (16 Eq.), 334 
 
 V. KeiT, 192, 197, 268, 390 
 
 V. Lichfield, 732 
 
 V. May, 164 
 
 V. Smith, 81 
 
 Jameson, Jic, 625 
 
 Jared v. Clements, 359, 361 
 
 Jarman's Est., Me, 31 
 
 Jarvis v. Birmingham Corp., 30 
 
 Jay, Uxp., 289 
 
 t'. Robinson, 463 
 
 Jeans r. Cooke, 88 
 Jee V. Audley, 486 
 JefEereys v. Small, 652 
 JefPery v. Sayles, 283 
 Jefferys v. Boosey, 783 
 
 — •- V. J., 57, 59, 684 
 
 Jeffreys t;. Connor, 121 
 Jeffrysf. Vante.swarstwai'th, 475 
 Jeffs V. Day, 740 
 Jegon V. Vivian, 766 
 Jenkin ;•. Row, 325 
 Jenkins v. Hiles, 375 
 
 V. Robertson, 398 
 
 Jenkinson v. Pepys, 711 
 Jenks V. Clifden, 768 
 Jenner v. Morris, 801 
 
 V. Tracy, 277 
 
 V. Turner, 204 
 
 Jenner-Fust v. Needham, 302 
 Jennings v. Baddeley, 659 
 
 V. Broughton, 178, 180 
 
 V. Jordan, 322 
 
 Jerrard v. Saunders, 369 
 Jersey v. Briton, &c. Co., 345 
 Jervis v. Berridge, 703 
 
 V. Wolferstan, 141, 5 S9 
 
 Jervois v. Duke, 203 
 Jervoise v. J., 433 
 Jessop V. Watson, 520 
 Jesus Coll. V. Bloom, 763 
 Jewson ?;. Moulson, 43fi, 445 
 Jobt-. J., 125, 251 
 John V. J., 806 
 Johns V. James, 73 
 
 V. Ware, 289 
 
 Johnson v. Ball, 59 
 V. Bragge, 238 
 
 Johnson v. Crook, 42 
 
 V. Edge, 783 
 
 V. Gallagher, 423 
 
 — V. J. (2 Coll.), 120 
 
 4. J. (1 J. & W.), 437 
 
 V. Kennett, 373, 374 
 
 V. Kershaw, 74 
 
 V. Legard, 71 
 
 r. Medlicott, 192 
 
 V. Newton, 126 
 
 V. S. & B. R. Co., 698 
 
 Johnston r. Orr-Ewing, 794 
 
 V. Renton, 799 
 
 Johnstone's Sett., Me, 625 
 Johnstone i\ Baber, 667 
 
 r. Beattie, 47t! 
 
 r. Cox, 385 
 
 Jolland V. Stainbridge, 354 
 Jolly V. Kine, 770 
 
 Jones, E.rp., 194 
 
 V. Alephsin, 810 
 
 V. Badley, 709 
 
 V. Barker, 321, 362 
 
 V. Chennell, 130 
 
 V. Clifford, 231 
 
 v. Daniel, 703 
 
 V. Davies, 281 
 
 V. Foxhall, 148, 163 
 
 V. Geddes, 747 
 
 V. Gibbons, 383 
 
 V. Green (5 Eq.), 625 
 
 V. (3 Y. & J.), 261 
 
 V. Higgins, 421 
 
 V. Hughes, 376 
 
 V. Humphreys, 388 
 
 V. J. (1 Q. B. D.), 204 
 
 V. J. (8 Sim.), 386 
 
 V. J. (12 Ves.\ 690 
 
 V. Lewis, 125j 251 
 
 V. Llanrwst, &c., 774 
 
 V. Marshall, 282 
 
 V. Meredith, 275 
 
 V. Merioneth P. B. Building Soc, 
 
 798 
 
 V. Mitchell, 522 
 
 V. Morgan, 150 
 
 V. Palmer, 30 
 
 V. Pennefather, 587 
 
 - — • V. Price, 723 
 
 V. Samson, 810 
 
 V. Selby, 630 
 
 V. Smith (1 Ha.), 359 
 
 V. (2 Ves. jr.), 282, 315, 323 
 
 V. Starkey, 383 
 
 V. Tankerville, 700, 734 
 
 V. Tapling, 771 
 
 V. Williams (Amb.), 29 
 
 V. (24 Beav.), 328 
 
 Jope V. Moreshead, 665
 
 TABLE OF OASES. 
 
 XlVU 
 
 Joplin Brewery Co., Re, 287 
 
 Jordan v. Money, 707 
 
 Jordeson v. Sutton, &c. Co., 770, 772 
 
 Joseph r. Lyons, 4, 381 
 
 Joy r. Caniphell, 137, 140 
 
 Joyce V. De Moleyns, 3Gi) 
 
 Joynes v. Statliam, 709, 712 
 
 Judkin's Trust, 481 
 
 Jupe V. Pratt, 779 
 
 Jupp r. Buckwell, 45G 
 
 Kaye, Re, 474 
 
 V. Moore, 801 
 
 Keane, Re, 430 
 Keat t\ Allen, 20o 
 Keate r. Phillips, 333 
 Keating v. Sparrow, 2G0 
 Keble v. Thompson, 147 
 Keech v. Hall, 291, 293 
 
 r. Sandford, 93 
 
 Keith V. Burrows, 283 
 
 V. Day, 302 
 
 Kekewich v. Manning, 62 
 Kelcey v. Harrison, 600 
 Kelk V. Pearson, 769 
 Kelland v. Fulford, 513, 523 
 Kelly V. Boyd, 600 
 
 r. Byles, 789 
 
 V. Hooper, 788 
 
 V. Kellond, 287 
 
 V. K., 95 
 
 ■ V. Morris, 791 
 
 v. Wyman, 791 
 
 Kerable r. FaiTen, 256, 257 
 Kemp v. L. & B. R. Co., 765 
 
 i\ Lester, 301 
 
 r. Prior, 799 
 
 V. Westbrook, 282, 283 
 
 Kempson v. Ashbee, 196 
 Kempster v. K., 610 
 Kendall, Exp., 612 
 
 V. Granger, 29 
 
 T. Hamilton, 644 
 
 Kennedy, Exp., 646 
 
 V. De Trafford, 114, 304 
 
 V. Green, 229, 356, 361 
 
 V. Lyell. 371 
 
 V. Panama, &c. Mail Co., 230 
 
 Kennell v. Abbott, 239 
 
 Kenney v. Browne, 115 
 
 V. Wexham, 692 
 
 Kensington, Exp., 332, 333 
 
 V. Dollond, 417 
 
 Kenyon v. Walford, 614 
 Kerr v. Corp. of Preston, 749 
 Kerr's Policy, Re, 332 
 
 Kestril, The, 313 
 Kettleby v. At wood, 516 
 Kettlewell v. Watson, 348 
 Key V. Bradshaw, 205 
 
 V. Flint, 569 
 
 Keys V. Williams, 330 
 Kibhle v. Fairthorne, 309 
 Kidney v. Coussmaker, 498, 521 
 Kilford r. Blaney, 595 
 Killick, Exp., 417 
 
 r. Flexney, 107 
 
 Kilner v. B. C. Orchard Lands, 260 
 Kilpatrick v. K., 467 
 Kilpin V. Ratley, 56 
 Kimber v. Barber, 1 1 1 
 Kincaid's Trusts, Re, 446 
 King v. Bird, 292 
 
 r. Bromley, 271 
 
 King V. Burr, 205 
 ■ — — V. Cotton, 451 
 
 V. Denison, 79 
 
 V. Hamlet, 188 
 
 V. K., 500 
 
 V. Lucas, 424 
 
 V. Smith, 293, 761 
 
 v. Wilson, 721, 731 
 
 V. Wimi, 625 
 
 Kingdon v. Bridges, 84 
 
 r. Castlenian, 124 
 
 Kingston, Exp., 571 
 
 Cotton Mills Co., Re, 110 
 
 (M. of) V. Harding, 401 
 
 Millar v. Kingston, 793 
 
 Kinnaird v. Trollope, 308 
 Kinnoul v. Money, 281 
 Kinsman r. Eoiise, 279, 311 
 Kirby v. Potter, 617, 621, 626 
 Kirk V. Clark, 70 
 
 V. Eddowes, 537, 542, 549 
 
 Kirkland v. Peatfield, 311 
 Kirkman v. Booth, 118, 168 
 
 r. Miles, 529 
 
 Kirwan's Tnist, Re, 213 
 Kitts V. Moore, 745, 753 
 Knight V. Bowyer, 358 
 
 V. Gardner, 342 
 
 V. K., 39, 442 
 
 V. Marjoribanks, 106, 108 
 
 Knill I'. Dumergiie, 389 
 Knott, E.x:p., 318 
 
 V. Cottee, 471 
 
 Knowles, Re, 167 
 Knox I'. Gye, 99, 171 
 
 V. Mackinnon, 130, 132, 135 
 
 Kronheim v. Johnson, 38
 
 xlviii 
 
 TABLE OF CASES. 
 
 Laboxjcheee v. Dawson, 795 
 Lacey, H.rp., 103, 105, 109 
 
 , Be, 310 
 
 V. Hill, 502, 647 
 
 Lacon v. L., 538 
 
 V. Liffen, 327 
 
 Lacy V. Ingle, 314 
 
 Lagunas Co. v. Lagunas Synd., 100 
 
 Lake, Jie, 143, 146, 384 
 
 V. Bell, 577 
 
 V. Brutton, 408 
 
 V. Craddock, 89 
 
 V. Gibson, 89 
 
 Lamb v. Evans, 207, 796 
 
 V. L., 505 
 
 Lambarde t'. Older, 571 
 Lambe v. Eames, 39 
 Lambert v. Still, 576 
 
 V. Thwaites, 45 
 
 Lambton v. Mellisb, 772 
 
 Lampet's Case, 379 
 
 Lamplugh v. L., 80, 88 
 
 Lance v. Norman, 451 
 
 Lancefield v. Iggulden, 599 
 
 Lander and Bagley's Contr., Ee, 718 
 
 r. "Weston, 130 
 
 Lands Allotment Co., He, 150 
 Lane, He, 486 
 
 V. Dighton, 82, 144 
 
 V. Jackson, 364 
 
 V. Page, 217 
 
 Lane-Fox, lie, 65 
 Lanesborough r. Jones, 569 
 Langdale's Est., Be, 673 
 Langdale v. Briggs, 618 
 Langford v. Barnard, 266 
 
 r. Gascovne, 137 
 
 V. Pitt, 725 
 
 Langham v. Sanford, 77 
 Langrish v. Vase, 677 
 LangstafPe v. Fenwick, 268 
 Langston, £xp., 332 
 
 r. Ollivant, 129 
 
 V. Scott, 485, 538 
 
 Lanoy v. D. of Athol, 483, 613 
 
 Lansdown v. L., 222 
 
 Lascelles v. Butt, 678 
 
 Latham v. Chartered Bk. of India, 397 
 
 Latimer v. Harrison, 587 
 
 Laurie v. Att.-Gen., 30 
 
 Laver r. Botham, 586 
 
 Lavery v. Purssell, 687, 688 
 
 Law V. E. I. Co., 408 
 
 V. L., Ill 
 
 V. L. B. of Redditch, 257 
 
 Lawder v. L. 405 
 Lawes v. Bennett, 518 
 
 V. L., 538, 549 
 
 Lawledge v. Tyndall, 100, 575 
 
 Lawrence v. L. (2 Vern.), 501 
 
 V. L. (26 Ch. D.), 573 
 
 Lawrenson v. Butler, 241, 731 
 Lawrie r. Lees, 685 
 Lawson r. Laude, 711 
 
 V. L., 603, 629 
 
 V. Stitch, 620 
 
 Lawton v. Elwes, 169 
 Layborn r. Grover-Wright, 444 
 Lazarus v. A. P. Co., 770 
 Leacroft r. Harris, 503 
 Leake v. L., 811 
 Leary v. Shout, 659 
 Leather Cloth Co. v. American, &c. 
 Co., 794 
 
 V. Lorsont, 207 
 
 Leavers v. Clayton, 30, 31, 77 
 Le Bas r. Herbert, 609 
 Lechmere v. Bi-asier, 725 
 
 V. E. of Carlisle, 530, 550 
 
 Lee V. Brown, 485, 486 
 
 r. D'Aranda, 553 
 
 V. Femie, 216 
 
 r. Haley, 795 
 
 V. L., 624 
 
 V. Nuttall, 588, 592 
 
 V. Prieaux, 416 
 
 V. Young, 151 
 
 Leech v. Schweder, 770 
 Leeds r. Barnardiston, 477 
 
 ■ (D. of) V. Powell, 679 
 
 Leek v. Driffield, 459 
 Leeming, He, 625 
 Lees r. Fisher, 334 
 
 V. Nuttall, 111 
 
 V. Patterson, 812 
 
 Leetham v. Johnstone- White, 207 
 Legal V. MUler, 712 
 Legg r. Gold wire, 236, 237 
 
 r. Mordan, 130 
 
 Leggatt V. Met. Ry. Co., 726 
 Legge V. Croker, 234 
 Le Hant v. Webster, 128 
 Lehmann v. McArthur, 724 
 Leigh's Estate, Ee, 100 
 Leigh V. Barry, 139 
 
 V. Burnett, 99 
 
 r. Dickeson, 575 
 
 v. L., 478 
 
 r. Macaulay, 807 
 
 Leighton r. L., 535, 809 
 Leith V. Portsmouth Corp., 679 
 Le Lievre r. Gould, 209 
 Lemaitre v. Davis, 773 
 Lempriere v. Lange, 193 
 Lench r. L., 81, 5"52 
 
 Le Neve v. Le N., 362 
 
 Leng, Me, 593 
 
 V. Ajidrews, 207
 
 TABLE OF CASES. 
 
 xlix 
 
 Leonard v, Sussex, 53 
 
 Leslie's Hassop Este., ZV, l;'),"}, 157 
 
 Leslie's Sett. Trust, 100 
 
 Leslie v. Baillie, 223 
 
 V. Crommelin, 731 
 
 v. French, 343 
 
 V. Young, 788 
 
 Lester v. Foxeroft, 704, 711 
 Lethbridge v. Thurlow, 541 
 Lethem v. Hall, 475 
 Lett V. Morris, 383 
 Letter stedt v. Broers, 151 
 Letts V. Hutchins, 277 
 Levene, Exp., 460 
 Lever v. Koffler, 690, 703 
 Leveson r. Beales, 542, 549 
 Levy V. Stogdon, 686, 719, 724 
 Lewers v. Shaftesbury, 687 
 Lewis, Hxp., 289 
 
 V. FuUarton, 790, 791 
 
 V. Hillman, 110 
 
 V. Hopkins, 68 
 
 V. Jones, 392 
 
 V. L. (I Cox), 485 
 
 V. L. (13 Eq.), 607 
 
 r. Matthews, 418 
 
 V. Nangle, 274, 280 
 
 V. Eees, 69 
 
 V. Reilly, 661 
 
 V. Sutton, 35 
 
 Licenses Insce. Corp. r. Denton, 407, 
 
 409 
 Life Ass. of Scotland v. Siddal, 107, 
 
 438 
 Life, &c. Corp. r. Hand-in-HandSoc, 
 
 305 
 Lightbown v. McMyn, 410 
 Lightfoot V. Heron, 086, 713 
 Liles V. Terry, 198 
 Lilley v. Foad, 307 
 Lincoln r, Windsor, 168 
 
 ■ —V. Wright, 136, 709 
 
 Linden, Hxp., 344 
 Lindsay v. Gibbs, 381 
 Lindsell r. Phillips, 311 
 Linfoot V. Pcckett, 288 
 Lingen v. Simpson, 649 
 
 V. Sowray, 527, 530 
 
 Linotype Trade Mark, Re, 794 
 Liquidation, &c. Co. '•. Willoughby, 
 
 274 
 Lisle V. Reeve, 271 
 Lister v. Hodgson, 57 
 Little's Will, He, 481 
 Littlehales v. Gascoyne, 136 
 Liverpool, &c. Co. r. Hunter, 747 
 Livesey r. Harding, 386, 485 
 Llandudno Urban Council r. Woods, 
 
 736 
 
 S. 
 
 Llano ver r. Homfray, 815 
 Llewellin, He, 341 
 Llewellyn v. Cobbold, 451 
 
 r. Mack worth, 493 
 
 Lloyd V. Atwood, 318, 328 
 
 V. Banks, 354 
 
 V. Branton, 203 
 
 V. Carr, 574 
 
 V. Clark, 746 
 
 V. Cocker, 485 
 
 V. Collett, 723 
 
 r. Dimmack, 399 
 
 V. L. (2 My. & Cr.), 714 
 
 V. L. (1903, 1 Ch.), 309, 315 
 
 V. Mason, 339, 437 
 
 V. Pughe, 89 
 
 r. Spillet, 38, 78 
 
 /'. Wait, 274 
 
 V. Williams, 437, 438 
 
 Lloyd Phillips v. Davis, 34 
 Lloyds V. Harper, 396, 404 
 Lloyds' Bank i-. Bullock, 328, 329 
 
 V. Jones, 348 
 
 Llynvi Co. v. Brogden, 766 
 Lock V. Pearce, 262 
 
 r. Venables, 622 
 
 Lockhart v. Hardy, 308, 602 
 
 r. Reilly, 146 
 
 Lodge r. Pritchard, 64G 
 Loflfus V. Maw, 206 
 Lofthouse, He, 483 
 
 Loftus r. Heriot, 430 
 Logan V. FairUe, 475 
 Londesborough v. Somerville, 627 
 London (M. of) and Tubb's Contr., Jie, 
 726 
 
 & Blackwall R. Co. r. Cross, 
 
 745 
 
 — ■ & B. R. Co. V. Truman, 775 
 
 V. Winter, 715 
 
 & Coy. Bank r. Goddard, 316. 
 
 367 
 
 V. Lewis, 750 
 
 ■ & Midland Bk. r. Mitchell, 
 
 284 
 
 & N. W. R. V. L. & Y. R., 764 
 
 & Prov. Bk. V. Bogle, 430, 463 
 
 & S. W. R. V. Blackmore, 236 
 
 & W. Loan Co. v. Bilton, 196 
 
 Chartered Bank v. Lempriere, 
 
 242, 420, 423 
 V. Wliite, 338 
 
 Finan. Assoc, v. Kelk, 639 
 G. O. Co. r. Holloway, 395 
 V. Radcliffe, 319 
 
 University r. Yarrow, 29 
 
 Long, He, 85 
 
 V. Fletcher, 729 
 
 r. L., 477
 
 TABLE OF CASES. 
 
 Long V. Short, 622 
 Longbottom v. Berry, 331 
 Longman v. Bath Electric Tramwavs, 
 179 
 
 V. Winchester, 788 
 
 Longmate r. Ledger, 114, 191 
 Longton v. Wilsby, 94 
 Lord /•. Godfrey, 120 
 
 V. JefJ'kiris, 186 
 
 V. L., 627 
 
 Lorimer r. L., 669 
 Loscombe /'. Russell, 650 
 Louis V. Smellie, 796 
 Lovegrove, Exp., 163 
 LoTeridge r. Cooper, 384 
 Lovett'i'. L., 805 
 Low V. BoTiverie, 179, 209 
 Lowe r. Dixon, 394 
 Lowman, Re, 486 
 Lowndes r. Bettle, 762 
 
 r. Norton, 756 
 
 Lows r. Telford, 295 
 Lowson V. Copeland, 117 
 Lowther v. C. of Andover, 726 
 
 r. Eraser, 607 
 
 V. Gordon, 362 
 
 V. L., 110 
 
 Lowthian r. Hasel, 320 
 Loyd, Exp., 331 
 
 r. Mansel, 303 
 
 V. Reid, 86 
 
 Luard r. Lane, 625 
 Lucas V. Dorrien, 329, 338 
 
 V. L., 434 
 
 Ludbrooke r. L., 309 
 Lumb V. Milnes, 410, 440 
 Lumley, Re, 426 
 
 V. Simmons, 287 
 
 r. Wagner, 685, 700, 734 
 
 Lush's Trust, Re, 444 
 
 Lybbe r. Hart, 700 
 
 Lyell r. Kennedy, 801 
 
 Lynde v. Anglo- Italian Hemp Co., 180 
 
 • r. Waithman, 302 
 
 Lynes, Re, 460 
 Lyon r. Home, 199 
 
 V. Johnson, 699 
 
 V. Knowles, 639 
 
 V. Tweddle, 660 
 
 Lyons, Re, 473 
 
 (M. of) V. A.-G. of Bengal, 32 
 
 r. Blenkin, 473 
 
 r. Wilkins, 777 
 
 Lysaght v. L., 573 
 Lyster r. DoUond, 652 
 Lyttleton v. Cross, 586 
 
 Maas v. Pepper, 280 
 Maber v. Hobbs, 452 
 Macartney v. Londonderrj', &c. Ry. 
 
 Co., 773 
 Macaulay r. Philips, 436 
 Macbryde v. Weeks, 719 
 Macclesfield r. Eitton, 273 
 Macdonald ^•. Irvine, 120 
 
 V. Whitfield, 408 
 
 MacduflEi'. M., 29, 30 
 Macfarlane r. Lord Advocate, 514 
 Macintosh v. Pogose, 67, 162 
 Mack r. Postle, 386 
 Mackay, Re, 133 
 Mackay v. Douglas, 65 
 Mackenzie, Exp., 386 
 V. Childers, 211 
 
 r. Edwards-Moss, 41S 
 
 /■. Johnston, 558 
 
 r. Robinson, 293 
 
 Mackie v. Herbertson, 71 
 Mackinnon r. Stewart, 74 
 Macintosh -Walker v. Walker, 509 
 Mackrell v. Hunt, 726 
 Mackreth v. Marlar, 722 
 
 V. Synimons, 343, 344, 350, 
 
 361 
 
 Maclaren v. Stainton, 622 
 Macleod v. Annesley, 132 
 Macnamara v. Carey, 124 
 
 v. Jones, 164 
 
 Macrae v. Holdsworth, 791 
 Maddison v. Alderson, 206, 704 
 
 V. Chapman, 496 
 
 Maddock, Re, 599 
 Maddy r. Hale, 102 
 Madeley v. Booth, 728 
 Magee v. La veil, 257 
 Magennis r. Fallon, 721 
 Maggi, Re, 593 
 
 Magnolia Trade Mark, Re, 794 
 Magnus r. Queensland Bk., 273 
 Mahony's Estate, Re, 677 
 Maidstone Palace, Re, 749 
 Mainland v. Upjohn, 268 
 Mainwaring v. Newman, C43 
 Maitland r. Irving, 200, 396 
 Major V. Franklin, 792 
 
 V. Lansley, 419 
 
 Makins v. Ibotson, 290, 307 
 Malam r. Hitchens, 623 
 Malcolm r. O'Callaghan, 163, 203 
 Maiden v. Merrill, 248 
 Mallam v. McKie, 625 
 Mallock V. Galton, 302, 303 
 Mallott v. Wilson, 59, 62, 614 
 Manby v. Bewicke, 191 
 Manchester & L, R. Co. v. G. N. R. 
 Co., 765
 
 TABLE OF CASES. 
 
 li 
 
 Manchester & S. R. Co., Re, 517 
 Ship Canal r. M. Race- 
 course Co., 734 
 Mander v. Harris, 456 
 Mank.s r. Whiteley, 274 
 Mann, Re, 32 
 
 r. Fuller, 546 
 
 Manners v. Mew, 355, SOI 
 Manning, Exp., 726 
 
 V. Gill, 63 
 
 V. Purc^ell, 620 
 
 Manningford r. Toleman, :131 
 Manor, The, 295 
 Mansell r. M., 142 
 Manser r. Back, 712 
 Mansfield v. M., 454, 457 
 Manton v. Parker, 780 
 Mara v. Browne, 146 
 March v. Russell, 145 
 Marchant v. Morton, 385 
 Mare v. Saudford, 184 
 Margetson v. Jones, 341 
 Margetts v. Barringer, 416 
 Marker v. M., 766 
 Markwick v. Hardingham, 278 
 Marland v. Williams, 122 
 Marryat v. Townly, 54 
 Marsden, Re, 216 
 
 V. Kent, 117 
 
 Marsh v. Hunter, 147 
 
 V. Lee, 308, 312 
 
 Marsh v. Wells, 759 
 Marshal v. Crutwell, 89 
 Marshall v. Berridge, 713 
 
 V. Colman, 649 
 
 V. HoUoway, 166 
 
 ■ V. Shrewsbury, 308 
 
 V. S. Staflf. Tramways, 290 
 
 V. Watson, 650 
 
 Marshfield v. Hutchens, 310 
 MartiQ, Exp., 332 
 
 — V. Drink water, 545 
 
 V. Lacon, 131 
 
 '('. Nutkin, 700 
 
 V. Price, 688, 807 
 
 • V. Pycroft, 715 
 
 V. Reid, 282 
 
 Martinson v. Clowes, 108 
 Mary Smith, Re, 5\2 
 Maryon-Wilson, Re, 135 
 Maskell & Goldfinch's Contr., 56 
 Maskelyne, Re, 290 
 Mason, Re, 641 
 
 V. Bogg, 591, 592 
 
 V. Mercer, 150 
 
 V. Morley, 144 
 
 V. Provident Co., 207 
 
 V. Westoby, 307 
 
 Massam v. Thorley's, &c. Co., 793 
 
 Massey v. Parker, 417 
 
 r. Spark, 445 
 
 Masson v. De Fries, 418, 434, 599 
 Massy v. Rowen, 416, 417, 418 
 Master of Clare Hall v. Harding, 211 
 Master r. Fuller, 422 
 Masters v. M., 544 
 Mathew v. Brise, 471 
 Mathews v. M., 548 
 Mathias v. M., 552 
 Matson v. Swift, 514 
 Matthew v. Bowler, 344 
 Matthewman's Case, 423 
 Matthews t'. Baxter, 192 
 
 r. Cart-wright, 314 
 
 r. Ruggles- Brise, 141, 589 
 
 r. Smallwood, 263 
 
 ?■. Wallwyn, 273, 576 
 
 Matthison v. Clarke, 170 
 Maugham v. Mason, 521 
 M'AulifEe, Re, 31 
 Maunsell v. White, 707 
 Mawman r. Tegg, 782, 790, 791 
 Mawson v. Fletcher, 733 
 Maxfield t\ Burton, 317, 355 
 Maxim -Nordenfeldt v. Nordenfeldt, 
 
 207 
 Maxwell v. Montacute, 270 
 
 V. Wettenhall, 627 
 
 May V. Hook, 748 
 
 V. M., 88 
 
 V. Piatt, 232, 234 
 
 V. Thompson, 703 
 
 Maycock ♦. Beaton, 660 
 Mayd v. Field, 541 
 
 May fair Property Co. i'. Johnston, 664 
 Mayhew v. Crickett, 397, 408, 410 
 McAlpine v. Moore, 31 
 M'Carogher v. Whieldon, 540 
 M'Clellan, Exp., 466 
 McCoU V. Bruce, 242, 244 
 McCormick v. Garnett, 223 
 
 V. Grogan, 40, 710 
 
 M'Culloch V. Bland, 56 
 McDermott v. Boyd, 184 
 McDonald v. McD,, 499 
 McDonnell v. Hesilrige, 62 
 McEwan v. Crombie, 570 
 McFadden v. Jenkyns, 61 
 McGrath (infant). Re, 474, 475 
 McGregor v. McG., 461 
 McHeury r. Davies, 422 
 McKenzie v. Hesketh, 731 
 McKerraU r. Gowaus, 100 
 McLaren v. Public Trustee, 149 
 McMahon, Re, 327 
 
 V. N. Kent Ironworks, 290 
 
 McManus v. Cooke, 704 
 McMyn, Re, 588 
 
 d2
 
 lii 
 
 TABLR OF CASES. 
 
 McPherson v. Watt, 112 
 
 M'Queen v. Farquhar, 217, 720 
 
 Meaden r. Sealey, 33ii 
 
 Med worth /■. Pope, 43 
 
 Meech, He, 30 
 
 Meek r. De vanish, .'528 
 
 r. Kettlewell, 62 
 
 Meeley r. Webber, 573 
 Meinertzhaoren r. Walters, .537 
 Melbourne Bk. r. Brougham, IflS 
 Mellersh r. Browu, 310, 346 
 Mellin v. White, 776 
 
 Mellish V. Be Costa. 471. 
 
 V. Vallin.s, 606 
 
 Mellor's Trustee r. Maas, 286 
 Mellor V. Daintree, 238 
 
 r. Porter, 302 
 
 Meluish r. Milton, 239, 804 
 Mercantile Bk. v. Evans, 388 
 
 of Sydney r. Taylor, 403 
 
 Mercer, £xp , 6.5, 66 
 Merchant Bk. Co. r. Lend, and Han- 
 seatic Bk., 306 
 
 Taylors' Co. v. Att.-Gen., 77 
 
 Merchants' Co. r. Banner, 700 
 Mercier r. M., 81, 85 
 Meredith r. Facey, 74 
 
 r. Heneage, 39 
 
 I'. Vick, .529 
 
 Merritt r. Boswell, 563 
 Merry v. Pownall, 163, 164 
 Merryweather /•. Moore, 207, 796 
 Metrop. Asylum v. Hill, 775 
 Bk. V. Heiron, 99 
 
 Counties Soc. r. Brown, 234 
 
 Electric Supply Co. v. Cinder, 
 
 734 
 Meure r. M., 54 
 Meux V. Cobley, 760 
 
 V. Jacobs, 331 
 
 r. Smith, 345 
 
 Mews r. M., 418 
 
 Meyerstein's Trade Mark, lie, 793 
 
 Middle ton /•. Greenwood, 696 
 
 r. M., 243 
 
 r. Spicer, 167 
 
 Midgley r. Crowther, 118 
 Mid-Kent Fruit Co., 2ie, 572 
 Midland C. R. Co. r. Oswin, 512 
 
 Ry. Co. /•. Silvester, 404 
 
 Milan Tramways, Jir, 571 
 Mildmay r. Hungerford, 713 
 
 /•. Quicke, 523 
 
 Mildred /•. Neate, 742 
 Miles r. Durnford, 372 
 
 • r, Harford, 55 
 
 V. Harrison, 613 
 
 V. N. Z., &c. Co., 226 
 
 r, Thomas, 050 
 
 MU1«\ Hill, 100, 101, 115 
 Millard v. Eyre, 151 
 Miller, He, 584 
 r. Collins, 443, 527 
 
 v. Cook, 186, 189 
 
 r. Craig, 236 
 
 V. Harris, 470 
 
 V. Huddlestone, 598 
 
 r. Mackay, 170 
 
 V. M., 629 
 
 V. Sharp, 706 
 
 r. Thurgood, 504 
 
 r. Warmington, 669, 079 
 
 Millelt V. Davy, 298 
 Millington v. Fox, 791 
 
 Mills' Trusts, Be, 385 
 Mills, IJxp., 641 
 
 t\ Dunham, 207 
 
 V. Farmer, 30 
 
 ■ r. Fowkes, 562, 563 
 
 V. Osborne, 129 
 
 Milltown r. Stewart, 800 
 Milner's Settlement, Jie, 431 
 Milner, m-p., 183 
 
 — r. Colmer, 442 
 
 /■. M., 238 
 
 Milnes r. Cery, 696 
 Milroy r. Lord, 59, 633 
 Milward v. Thanet (E. of), 724 
 Minter r. Carr, 322 
 Minty v. Boui-ne, 30 
 Mirehouse v. Scaife, 598 
 Mitchel V. Reynolds, 207, 790 
 Mitchell, Uxp., 476 
 V. Dors, 764 
 
 r. Homfray, 190 
 
 V. Loe, 486 
 
 r. Smith, 633 
 
 Mitford r. Reynolds, 44 
 Moet r. Causton, 795 
 Mogg V. Hodges, 612 
 r. M., 764 
 
 Moggridge v. Thackwell, 31, 32 
 Mogul Steamship Co. r. McGregor & 
 
 Co., 777 
 Mole V. Mansfield, 669 
 Molineux r. Hawtrey, 359 
 MoUwo, March & Co. r. C. of Wards, 
 
 638, 641 
 Molony v. Brooke, 587 
 Molyneux v. Fletcher, 485 
 
 ■ V. Richards, 697 
 
 Mompesson's Case, 778 
 
 Monck r. M., 534 
 
 Monckton v. Hands, 34 
 
 Mondey r. M., 302 
 
 Monetary Advance Co. r. Cater. 289 
 
 Money's Trusts, In re, 102 
 
 Monkton and Gilzcan, Jie, 733
 
 TA13LE OF CASKS. 
 
 lili 
 
 Monson r. Tussaud, 77(5 
 Moutague r. Dodman, 749 
 r. Festiug, 476 
 
 r. Flockton, 7 3 5 
 
 • v. Sandwich (E. of.), .53G 
 
 Montefiore v. Browu, 74 
 
 V. Guedalla, 536, 537 
 
 Montfort v. Cadog-an, 148 
 Montgomery v. Thompsou, 794 
 iVIonypeuny r. Dering, 55 
 Moodie c. Reid, 244 
 
 Moody V. Penfold, 167 
 Moon, Jir, 579 
 Moorcroft v. Dowding, 38 
 Moore v. Blake, 686 
 
 r. Darton, 630, 031, 632 
 
 V. Fisher, 390 
 
 V. Frowd, 165 
 
 ■ ■ r. Greg, 334 
 
 r. Johnson, 478 
 
 r. Knight, 150 
 
 r. M., 606, 631 
 
 ■ — ('. Morris, 429 
 
 v. N. W. Bank, 367 
 
 V. Painter, 314 
 
 — r. Shelley, 295, 301 
 
 Moores r. Ghoat, 334 
 Mordaimt v. Benwell, 513 
 More I'. M., 476 
 Morecock v. Dickens, 362 
 Morell /•. M., 239 
 
 V. Wooten, 383 
 
 Morgan v. Dillon, 472 
 
 r. Hill, 410 
 
 V. Jefferies, 268 
 
 r. Malleson, 58, 632 
 
 1: M., 120 
 
 Morice /■. Bishop of Durham, 29 
 Morison /•. Moat, 649 
 
 ' . M., 164 
 
 Moiland '■. Cook, 358 
 Morley v. Bird, 90 
 
 V. Loughnan, 19'S 
 
 V. Rennoldsou, 201 
 
 Morony r. O'Dea, 325 
 Morres v. Hodges, 102 
 Morret r. Paske, 274, 316, 319 
 Morrice v. Bk. of England, 745 
 Morris, lie, 342 
 
 V. Barrett, 653 
 
 ■ • V. Griffiths, 509, 517 
 
 V. Kearsley, 649 
 
 r. M., 758 
 
 V. Wright, 790 
 
 Morrison r.M., 166 
 
 V. Universal, &c. Co., 183 
 
 Morse v. Martin, 242, 244 
 V. Palmer, 107 
 
 V. Royal, 106 
 
 Mortimer r. Capper. 2^! I 
 
 c. Orchard, 681 
 
 Mortlock V. BuUer, 171, 241, 21.', 731 
 
 Moses, lie, 624 
 
 Mosley '■. Kc3'W()rtli, 133 
 
 Moss's Trusts, Jic, 153 
 
 Moss, Exp., 327 
 
 ■ v. Cooper. 40 
 
 V. Elphick, 657 
 
 Motley V. Downinan, 795 
 Mott V. Issott, 204 
 Mountfort, £xp., 282, 468 
 Mourmand v. Le Clair, 287 
 Mower 1-. Orr, 509 
 Mower's Trust, E( , Gil 
 Muokleston v. Brown, 710 
 Mucklow r. Fuller, 136 
 Muddock V. Blickwood, 791 
 Mulkern i: Ward, 776 
 Mullins V. Miller, ISO 
 
 ('. Smith, 628 
 
 Mulvany v. Dillon, 101 
 Mumford r. CoUier, 301 
 
 V. Gething, 206 
 
 V. Stohwasser, 316 
 
 Mundy v. Howe, 483 
 
 V. JoUilfe, 705, 706 
 
 V. M., 666 
 
 Mvmicipal, &c. Soc. f. Kent, 699 
 
 r. Smith, 293 
 
 Munns r. I. of W. R. Co., 345 
 Murless v. Franklin, 88 
 Murray c. Barlee, 413, 422, 423 
 
 V. Elibank, 437 
 
 i\ Herring, 625 
 
 • V. Palmer, 107, 189 
 
 v. Parkei, 235 
 
 Murrell r. Goodyear, 725 
 
 Musprat V. Gordon, 381 
 
 Mussoorie Bank r. Raynor, 40 
 
 Mutlow /•• Bigg, 529 
 
 Mutton i\ Peat, 565 
 
 Mutual Life, &c. Co. i . Langley, 386 
 
 Myers f. Catterson. 770 
 
 r. Elliott, 287 
 
 V. Washbrook, 620 
 
 Mytton !'. M., 621 
 
 Nairne c. Prowse, 350, 351 
 Naudick r. Wilkes, 50 
 Nanney v. Morgan, 62 
 Napier v. N., 446 
 Nash, Re, 55, 501 
 
 V. Hodgson, 563, 564, Mo 
 
 ■ r. N., 448 
 
 National, &c. Building Soc, 135 
 &c. Co., Ee, 259
 
 liv 
 
 Table of cases. 
 
 National Bk. of Australia v. Haiid-in- 
 Hand Co., 273 
 
 Prov. Bk. V. Games, 298 
 
 r. Glanask, o96 
 
 • r. Harle, 388 
 
 V. Jackson, 348, 
 
 355 
 — V. Marshall, 260 
 
 Starch Co. v. Miinns, 792 
 
 Telephone Co. v. Baker, 775 
 
 Nay lor v. Mangles, 339 
 
 V. Winch, 226 
 
 Neap V. Abbott, 713 
 
 Nedby v. N., 199 
 
 Neesom v. Clarkson, 211, 343 
 
 Neilson v. Mossend Iron Co., 657 
 
 Nelson v. Buncombe, 191 
 
 V. Page, 607 
 
 r. Stocker, 179, 194 
 
 Nelthorpe v. Holgate, 733 
 Nevill's Case, 402 
 
 Nevill V. Snelling, 187 
 
 Neville r. Wilkinson, 707 
 
 Nevin i\ Drysdale, 535 
 
 New t: Hunting, 73, 143 
 
 Newbery's Case, 789 
 
 Newbery, Itc, 475 
 
 Newbould ik Smith, 311 
 
 New Brunswick, &c. Co. v. Mug- 
 geridge, 695 
 
 NeAvcomb r. Bouham, 271 
 
 Newfoundland Government v. New- 
 foundland E. C, 560 
 
 Newill r. N., 54 
 
 Newlands v. Paynter, 416, 429, 746, 
 749 
 
 Newman, lie (30 Beav.), 113 
 
 Ec (4 Ch. D.), 254, 257 
 
 V. N., 366 
 
 ;•. Rogers, 719 
 
 V. Selfe, 305 
 
 r. Wilson, 441 
 
 Newmarch r. Storr, 606 
 Newstead t". Searles, 71, 359 
 Newton (Infants), lie, 467, 472, 475 
 V. Chapman, 169 
 
 r. Chorlton, 411 
 
 V. Marsden, 204 
 
 V. N., 368 
 
 ■ r. Vaucher, 781 
 
 Nichol r. Stockdale, 790 
 
 Nicholas r. Ridley, 408, 411 
 
 Nicholls r. Maynard, 254, 269 
 
 Nichols, Exp., 381 
 
 Nicholson, Be, Eade r. Nicholson, 120 
 
 V. Revill, 402, 403 
 
 c. Smith, 690 
 
 V. Tutin, 162 
 
 Nisbet V. Philp, 574 
 
 Nisbet r. Smith, 396 
 
 and Potts' Contr., Be, 356 
 
 Nitedals Taendstik Fabrik v. Bruster, 
 
 111 
 Nives V. N., 350 
 Nixon V. Sheldon, 120 
 
 V. Smith, 150 
 
 Noakes v. Rice, 268 
 
 Nobel's Explosives Co. v. Jones, 781 
 
 Nor bury, Ee, 470 
 
 Nore V. Meyer, 131 
 
 Norfolk's (D. of) Case, 43 
 
 Norfolk (D. of) v. Myers, 808 
 
 Norris v. Chambres, 24 
 
 V. Frazer, 40 
 
 V. N., 624 
 
 r. Wilkinson, 329 
 
 Norrish v. Marshall, 384 
 North f. Guinan, 667 
 
 V. Percival, 231, 703, 731 
 
 North American Land Co. v. Watkins, 
 
 150 
 
 North B. Insce. Co. v. Lloyd, 395 
 
 North Cheshire, &c. Brewery *. Man- 
 chester Brewery, 793 
 
 North Lond. R. Co. r. G. N. R. Co., 
 745, 754 
 
 North Western Bk. v. Poynter, 282 
 
 Northcote v. Doughty, 193 
 
 Northern Assam Tea Co., Ee, 387 
 
 Northern Cos. Insce. Co. v. Whipp, 
 355 
 
 Northumberland (E. ui) v. Aylesford 
 (E. of), 506 
 
 Norton V. Compton, 588 
 
 V. Mascall, 699 
 
 t: N., 513, 523 
 
 Norvell, Kij)., 569 
 Nott r. Hill, 187 
 Nottidge r. Prince, 198 
 Nottingham Brick Co. v. Butler, 685 
 P. B. Building Soc. v. 
 
 Thui-ston, 193 
 Nottley V. Palmer, 501 
 Noyes v. Pollock, 295, 577 
 Noys r. Mordaunt, 491, 502 
 Nugent r. N., 109 
 
 r. Vetzera, 470 
 
 Nunn V. Fabian, 706 
 Nutt V. Easton, 112 
 
 Oakdex l\ Pike, 721 
 Oakes, Kvp., 333 
 Obert V. Barrow, 29 
 O'Brien v. O'B., 759 
 i\ Tyssen, 40
 
 TAHLE OF ('ASE.S. 
 
 Oceau, Ace. Corp. r. llfurd Lias Co., 
 
 295 
 O'Connor v. Spaight,, .)58 
 Odessa, iS:c. Co. v. Mendel, 683 
 Official Receiver, Exp., 'I'll 
 Otford V. Davies, 404 
 Ogdeu V. Mason, 599 
 Oglander v. Baston, 448 
 Ogston V, Aberdeen Tramways Co., 
 
 775 
 O'Halloran v. King, 427 
 O'Hara c. Chaine, 501 
 O'Keefe v. Calthorpe, 151 
 O'Keeffe v. Casey, 471 
 Oldfield V. O., 39 
 Oldham o. Hughes, 527 
 
 V. Stringer, 335 
 
 Olive V. Smith, 569 
 Oliver r. Brickland, 553 
 
 V. Court, 110 
 
 r. Hinton, 348 
 
 r. Hunting, 703 
 
 Oliver's Sett., Re., 501 
 
 Olley V. Fisher, 715 
 
 Olliver v. King, 65 
 
 Opera, Lim., Re, 227 
 
 Oppenheimer v. Boatman, 573 
 
 Orby V. Trigg, 270 
 
 Ord r. White, 387 
 
 O'Reilly o. Alderson, 151 
 
 Oriental, &c. Co. v. Briggs, 695 
 
 Corp. I'. Overend & Co., 
 
 399 
 Ormerod v. Hardmau, 715 
 Ormrod v. Wilkinson, 29 
 O'Rorke v. Bolingbroke, 187, 189 
 Orr V. Newton, 123 
 Orrett, Exp., 330 
 
 V. Corser, 147 
 
 Osborn v. Lea, 210 
 
 V. Morgan, 439 
 
 Osborne v. Bradley, 211 
 -^— r. Williams, 800 
 Oswald '•. Berwick (M. of), 401 
 Oswell V. Probert, 436, 439 
 Otto V. Steel, 786 
 Ouseley v. Anstriither, 595 
 Overton v. Banister, 14, 193 
 Owen, Re, 335 
 
 ' V. Homan, 179, 396, 422 
 
 V. Williams, 101 
 
 Owens, Re, 811 
 
 V. Dickenson, 423, 424, 581 
 
 Oxenden v. Compton, 488, 512 
 Oxford's (E. of) Case, 9, 15, 739 
 Oxford (M. of) V. Crow, 690 
 
 V. Rodney, 603 
 
 Oxiey V. Holden, 781 
 
 TADBUEy r. Clark, 494, 496, 505 
 Paddon '•. Richardson, 124 
 Padwick v. Stanley, 558 
 Page V. Adara, 374, 375, 733 
 
 ('. Home, 199 
 
 V. Leapiugwell, 622 
 
 Paget V. Marshall, 232, 2;;i 
 
 V. P.. 431, 463 
 
 Pain v. Coombs, 705 
 Palev. P., 86 
 Palliser v. Gumey, 459 
 Pahner, Rr, 113, 198 
 
 V. Bate, 389 
 
 V. Danby, 275 
 
 V. Day & Son, 572 
 
 v. Emerson, 131 
 
 V. Hendrie, 307, 308 
 
 r. Johnson, 730 
 
 V. Newell, 542 
 
 V. Temple, 260 
 
 V. Wakefield, 484 
 
 V, Wheeler, 216 
 
 V. Young, 97 
 
 Panes i;. Att.-Gen., 515 
 
 Panhard and Levassor v. Panhart, 793 
 
 Pankhurst v. Howell, 535 
 
 Pannell v. City Brewery Co., 263 
 
 Papillon V. Voice, 51 
 
 Pardo r. Bingham, 581, 600 
 
 Parfitt i\ Lawless, 201 
 
 Paris, The, Re, 341 
 
 Paris Skating Rink Co., Re, 390 
 
 Parish v. Poole, 383 
 
 Parker r. Brooke, 416, 421 
 
 V. Butcher, 260 
 
 V. Clarke, 333 
 
 V. First Avenue Hotel Co., 770 
 
 V. Frith, 719 
 
 V. Lewis, 180 
 
 i\ McKenna, 111 
 
 V. PuUen, 610 
 
 V. Taswell, 714 
 
 V. Watkins, 297 
 
 Parkes, Exp., 350 
 
 V. Wliite, 107, 108, 427 
 
 Parkin v. Thorold, 685 
 Parkington v. Haywood, 592 
 Parkinson v. Hanbuiy, 297 
 Pamall v. P., 39 
 Parnell, In the Goods of, 4 7 1 
 
 V. Hingston, 78 
 
 Parrot v. Palmer, 763 
 Parr's Bank v. Yates, 565 
 Parsons v. Briddock, 410 
 V. Gillespie, 792 
 
 c. Sovereign Bk., 569 
 
 Parteriche v. Powlett, 280 
 Partridge v. P., 622, 625 
 
 Dundas, 141
 
 I VI 
 
 TABLE OF CASES. 
 
 rassingham v. Sherborne, 105 
 Tatch V. Wilde, 296 
 Patman v. Harland, 35',) 
 Patrick r. Simpson, 78 
 Pattle V. Hornibrook, 684, 714 
 Paul V. P., 63 
 Payne v. Mortimer, 585 
 
 V. Stamford, 153 
 
 Payton v. Snelling- & Co., 795 
 Peace v. Brookes, 288 
 Peauhey's Case, 80 
 Peachy v. Somerset (D. of), 252 
 Peacock, lie, 537 
 
 V. Burt, 317 
 
 V. Evans, 186 
 
 V. Penson, 684 
 
 Peake v. Highfield, 799 
 Peake's Settled Est., Er, 26 
 Pearce, He, 623 
 r. Crutchfield, 477 
 
 — V. Gardner, 703 
 
 — V. Loman, 611 
 V. Marsh, 511 
 
 61 
 
 — V. Morris, 276 
 
 Pearl l\ Deacon, 408 
 Pearse r. Green, 162 
 Pearson v. Amicable Ass. Co. 
 
 v. Benson, 114 
 
 V. P., 795 
 
 Pease v. Pattinson, 32 
 Peckham v. P., 474 
 
 V. Taylor, 38 
 
 Pedder's Sett., Fie, 530 
 Peek r. Gurnoy, 180, 209 
 Peel's Sett., Re, 5S6 
 Peers v. Ceeley, 163 
 
 r. Lambert, 730 
 
 Pegg V. Wisden, 721 
 
 Pegler v. Wliite, 685 
 
 Peirce v. Corf, 708 
 
 Pell V. Northampton R. Co., 345 
 
 Pellew, Ec, 430 
 
 Pelton V. Harrison, 461 
 
 Pemberton v. Barnes, 672 
 
 r. M'Gill, 422 
 
 V. Oakes, 564 
 
 Pembroke r. Friend, 605 
 
 • V. Thori)e, 705 
 
 Tenfold r. Mould, 441 
 
 Penu V. Baltimore (Ld.), 16, 
 
 689 
 Pennell v. Deffell, 144, 565 
 
 V. Franklin, 169 
 
 Pennington, He, 66 
 
 V. Brinsop, &c. Co., 7( 
 
 774 
 
 V. Dalbiac, 674 
 
 Percival v. Dunn, 382 
 ■ f. Wright, 109 
 
 18, 6o; 
 
 Perham r. KcmiDster, 317 
 Perkins v. Bagot, 214, 217 
 
 V. Ede, 730 
 
 Perls V. Saalfield, 207 
 Perrin v. Lyon, 203 
 Perrins v. Bellamy, 133 
 Perry v. Marston, 278 
 
 r. N. P. Bk. of Eng., 402 
 
 V. P., 118 
 
 V. Truefitt, 792 
 
 Peter v. NichoUs, 72 
 Peters v. Bacon, 676 
 Peto V. Hammond, 348 
 Pettit V. Lodge, 288 
 Petty r. Cooke, 398 
 Phelps, Kcp., 151 
 
 Stokes & Co. r. Comber, 567 
 
 Phillipart's Trade Mark, He, 793 
 Philipps V. Homfray, 766 
 Phillips, £xp., 488, 512 
 
 , Jic, 478 
 
 Trusts, He, 319, 360 
 
 r. Beal, 620 
 
 V. Edwards, 705, 708 
 
 V. Foxhall, 405 
 
 I'. Gutteridge, 321 
 
 V. Hudson, 809 
 
 V. Miller, 732 
 
 V. Parry, 596 
 
 V. P. (29 Ch. D.), 94 
 
 — — V. P. (4 De G. F. & J.), 368, 
 370 
 
 'V. P. (1 My. & K.), 653, 654 
 
 V. Probyu, 799, 801 
 
 ('. Smith, 756 
 
 V. Vaughan, 273 
 
 Phillipson v. Gatty, 149 
 
 V. Kerry, 238 
 
 Philpot V. Briant, 398 
 
 ''. Jones, 563 
 
 Picard r. Hine, 424 
 Pickard r. Anderson, V2\> 
 
 V. Prescott, 780 
 
 Pickering v. I. R. Co., 38 i 
 
 V. P., 119, 226 
 
 V. Voules, 96 
 
 Pickup r. Atkinson, 121 
 Pidcock V. Bishop, 396 
 Pierce v. Webb, 799 
 Pierrepont r. Cheney, 484 
 Pierse v. Waring, 197 
 Piggott V. Stratton, 212 
 Pike V. Fitzgibbon, 424, 430 
 Pilcher v. Rawlins, 143, 317, 366 
 Pillgrem v. P., 95, 99, 368, 372 
 Pinchin v. Simms, 549 
 
 Pincke v. Curteis, 721 
 Pinct V. P., 793 
 Piniiey v. Hunt, 3, 804
 
 TABLE OF CASES. 
 
 Ivii 
 
 Piper V. P., G04 
 
 Pisani v. Att.-G. of Gibraltar, 112 
 Pitcairn v. Osbournc, 712 
 ritnuiii f. Cnim-Kwiiiir, 493 
 
 r. P., 511 
 
 Pitt r. Cholmondeley, .J77 
 
 r. Jones, 674 
 
 V. Mackreth, 103 
 
 1: White, 674 
 
 Plant V. Bourne, "Oo 
 Playfordr. P., 685 
 Pledge f. Buss, 408 
 
 V. White, 3'20 
 
 Plenderleith, Ee, 488 
 Plimpton V. Malcolmsou, 782 
 
 V. Spiller. 782 
 
 Plomley y. Felton, 281 
 
 ■ — ■ V. Stileman, 805 
 
 Plumb V. Fluitt, 354 
 
 Plunket f. Penson, 582 
 
 Plunkett V. Lewis, 549 
 
 Plymouth (Coi-p. ofi r. Throgniurtou, 
 
 572 
 Pocock V. Att.-G., 30 
 
 r. Redington, 129 
 
 Pole V. P., 96 
 
 Policy No. 6,402, He, 84 
 
 Pollard's Sett., Ec, 431 
 
 Pollard V. Clayton, 686 
 
 V. Gare, 770 
 
 V. Photographic Co., 776 
 
 Pollock V. Worrall, 634 
 
 Polsue V. Rushmer, 772 
 
 Pomeroy v. Willway, 28, 29 
 
 Pomfret (E. of) i'. Windsor (Ld.), 223, 
 320 
 
 Poole V. Middleton, 695 
 
 V. Pass, 163 
 
 V. Shergold, 730 
 
 Pooley, He, 169 
 
 t\ Budd, 693 
 
 V. Driver, 639, 640, 641 
 
 V. Harradine, 393 
 
 ■ V. Quilter, 109 
 
 V. Ray, 251 
 
 Pope V. P., 41 
 
 Popham r. Eyre, 719 
 
 Portal and Lamb, AV, 619 
 
 Portarlington v. Soulby, 742, 747 
 
 Porter v. Bowerman, 607 
 
 V. Lopes, 672 
 
 r. P., 675 
 
 Portland v. Topham, 213 
 
 Portmore v. Taylor, 186 
 
 Portsmouth Tramways, He, 290 
 
 Post V. Marsh, 683 
 
 Pott V. Todhunter, 68 
 
 Potter, He, 478 
 
 f. Duffield, 703 
 
 Polter r. Sanders, 357, 361 
 Potts V. Curtis, 187 
 
 r. P., 55 
 
 f. Smith, 771 
 
 Poulter v. Shackel, 412 
 Powel V. Cleaver, 472 
 Powell, Sjcp., 330 
 
 r. Aikin, 765 
 
 V. Brodhurst, 279 
 
 ('. Evans, 117 
 
 ■ V. Glover, 1 1 3 
 
 V. Hulkes, 147, 227 
 
 V. Knowles, 390 
 
 V. L. & P. Bk., 368 
 
 V. Merrett, 167 
 
 V. P., 196, 200 
 
 V. Price, 234 
 
 V. Riley, 595 
 
 V. Smith, 713 
 
 &c. Co. i: Talf R. Co., 700 
 
 Powles V. Hargreaves, 567 
 Powys V. Blagrave, 759 
 
 ■ V. Mansfield, 534, 538 
 
 PragneU v. Batten, 676 
 Pratt V. Inman, 592 
 
 V. P., 621 
 
 Prees r. Coke, 108 
 Prendergast v. Eyi'e, 728 
 Prescott, Krp., 569 
 
 V. Phipps, 277 
 
 Preston r. Luck, 236, 713, 715 
 Price's Pat. Candle Co., lie, 793 
 Price, Exp., 331 
 , He, 621 
 
 ('. Barker, 403 
 
 v. Dyer, 714 
 
 V. Jenkins, 69 
 
 c. Macaulay, 728, 733 
 
 t: Neault, 211 
 
 V. Newton, 621 
 
 V. North, 731 
 
 ('. Penzance (Corp. of), 697 
 
 v. Perrie, 270 
 
 Price-Fothorgill c. Price, 55 
 Priest r. Uppleby, 131, 146 
 Priestley v. Ellis, 73 
 Priostman r. Thomas, 804 
 
 V. Tindall, 145 
 
 Prince v. Haworth, 208 
 Printers', &c. Protection Soc, He, 78 
 Printing, &c. Co. v. Sampson, 381 
 Procter v. Bay ley, 791 
 
 Prosser v. Edmonds, 390 
 
 r. Rice, 317 
 
 Proudfoot V. Montefiore, 183 
 
 Prout V. Cock, 275 
 
 Provident P. B. Soc. v. Greeuhill, 260, 
 
 269 
 Prowse V. Abingdon, 611
 
 IVlll 
 
 TABLE OF CASES. 
 
 rrudential Asa. Co. v. Kuott, 77G 
 
 Pryce v. Bury, 331, 334 
 
 Prytherch v. Williams, 276, 299 
 
 Public Works Com. v. Hills, 261 
 
 Pugh V. Heath, 310 
 
 Pulbrook V. Richmond, &c. Co., 21)3 
 
 Pullen, Jie, 610 
 
 Pullen r. Ready. 223 
 
 Pulmaii /'. Meadows, 587 
 
 Pulsford r. Richards, 179 
 
 Pulteuey /•. Darlington. 516, TviQ, 530 
 
 Pulvertoft r. P., 68 
 
 Piimfi'ey v. Fryer, 537 
 
 Punt V. Symons, 752 
 
 Purdew v. Jackson, 449 
 
 Purse f. Snaplin, 622 
 
 Pusey V. Desbouverie, 225, 226, 504 
 
 V. P., 694 
 
 Pybus V. Smith, 425, 427 
 
 Pye, Uxp., 63, 582, 533, 534, 623 
 
 V. British, &c. Syndicate, 257, 
 
 261 
 
 Pyle y. P., 518 
 
 Pym V. Blackburn, 249 
 
 «'. Bowremau, 274 
 
 t: Campbell, 235 
 
 V. Lockyer, 534, 536 
 
 QuAEEEL r. Beckford, 163 
 Quartz Hill. &c. Co. v. Beall, 776 
 Quennell v. Turner, 594 
 
 Radcliffe, lie, 586 
 
 V. Bewes, 215 
 
 r. Portland IT), of), 771 
 
 Rae V. Joyce, 189 
 
 r. Meek, 131, 132 
 
 Raggett V. Findlater, 792 
 Raikes v. R., 622 
 
 r. Ward, 479 
 
 Rainbow r. Juggins, 409 
 Rakestraw v. Brewer, 98 
 Ralston /■. Smith, 779 
 Ramstiy v. Gilchrist, 68 
 Ramsbottom v. Gosden, 713, 715 
 Ramsden v. Dyson, 211 
 Ramsey v. Margrett, 290 
 Ramuz v. Crowe, 247 
 Rancliffe v. Parkyns, 614 
 Rand t'. Cartwright, 275 
 Randall v. Errington, 107, 15C 
 
 v. Morgan, 707 
 
 i\ R., 655 
 
 Randall v. Russell, 94, 620 
 Randell r. Dixon, 33 
 Ranelaugh v. Hayes, 399 
 Rankin r. Huskisson, 700 
 Ransome r. Burgess, 483 
 Raphael r. Boehm, 628 
 
 r. T. V. R. Co., 697 
 
 Rapid Road Transit Co., Me, 339 
 Rapier v. Lond. Tramways Co., 775 
 Riitcliff, lie, 27, 154 
 Ratcliffe r. Winch, 117 
 Ravald r. Russell, 275 
 Raven v. Waite, 627 
 Ravenscroft v. Jones, 537 
 
 V. Workman, 613 
 
 Rawe V. Chichester, 95, 100 
 Rawlins v. Powell, 648 
 
 V. Wickham, 179, 659 
 
 Rawlinson v. R., 624 
 Ra worth v. Parker, 74 
 Rawstone v. Parr, 396 
 Ray, Uxp., 417 
 
 , He, 489 
 
 V. Grant, 547 
 
 v. Hazel dine, 773 
 
 Read v. Bailey, 647 
 
 V. Price, 310 
 
 r. R., 810 
 
 Reade v. Bentley, 640 
 
 V. Lowndes, 398, 402 
 
 Reddaway v. Banham, 792 
 
 r. Bentham, 794 
 
 Redfern c. Bryning, 235 
 Redgrave V. Hurd, 180 
 Redington r. R., 82, 85, 86, 88 
 Reece v. Tr3'e, 694 
 
 Reed v. Norris, 409 
 Rees r. Berrington, 396 
 
 r. De Bernardy, 185, 191, 390 
 
 r. Keith, 448 
 
 Reese River, &c. Co. r. Smith, 179 
 Reeve v. Berridge, 359 
 
 V. Hawkes, 605 
 
 — - V. Hicks, 281 
 
 V. Lisle, 270, 271 
 
 Reeves v. Pope. 569 
 
 r. R., 801 
 
 Reg. r. Northallerton Coy. Ct., 812 
 Rehden v. Wesley, 140 
 Reid's Case, 87 
 Reid v. R., 436, 445 
 
 V. Shergold, 242 
 
 Reinhardt v. Mentasti, 772 
 Reis, lie, 70. 285, 381 
 Renals v. Cowlishaw, 211 
 Renard r. Levinstein, 782 
 Reuter v. Sala, 719 
 Rex t'. Pease, 775 
 Reynell v. Sprye, 180
 
 TABLE OF CASES. 
 
 Hx 
 
 Reynolds, Exp., 115, 161 
 
 r. Ash by, 331 
 
 V. Godlee, .525 
 
 Rhoades, Rv, 588 
 Rhodes v. Bate, 200 
 
 V. Moulc, 64.) 
 
 V. Sugdon, 34 J 
 
 Rice V. Gaultier, 810 
 
 V. Noakes, 268 
 
 V. R., 347 
 
 Rich V. Cockell, 416, 419, 420, 503 
 
 '('. Whitfield, 511 
 
 Richardes v. Yates, 587 
 Richards v. Cooper, 33-1 
 
 V. Delbridge, 58, 61, 633 
 
 V. Kidderminster, 286 
 
 V. Lewis, 69 
 
 r. R., 621, 626 
 
 Richardson v. Feary, 674 
 
 V. Greese, 548 
 
 V. Jenkins, 145 
 
 r. Merrifield, 477 
 
 V. Methley School Board, 
 
 764 
 
 V. R., 58 
 
 V. Smith, 696, 730 
 
 Richie V. Couper. Ill 
 Richmond v. N. L. R. Co., 517 
 
 V. White, 588, 592 
 
 Rickard t'. Barrett, 610 
 Ricketts v. Lewis, 378 
 Riddr. Thome, 341 
 Riddell v. Errington, 457 
 Rideout v. Lewis, 433 
 Rider v. Kidder, 84 
 
 V. Wager, 624 
 
 Ridges V. Morrison, 544, 612 
 Ridgway v. Clare, 646 
 
 V. Gray, 728 
 
 Ridler t;. R., 66, 69 
 
 Ridley's Trusts, Re, 588 
 
 Ridley, Re, 427 
 
 Rigby V. Bennett, 772 
 
 Rigden r. Vallier, 89, 90, 632 
 
 Rimington r. Hartley, 675 
 
 Rimmer r. Webster, 333 
 
 Ripon City, Re, 338 
 
 Ripon V. Hobart, 752 
 
 Rishton v. Whatmore, 708 
 
 Rising ( . R., 55 
 
 Ritson V. R., 605 
 
 River Dun, &c. Co. v. N. M. R. Co., 
 
 765 
 Roach V. Garvan, 471, 484 
 
 V. Trood, 215, 216 
 
 Robb V. Green, 207, 796 
 Robbins r. Alexander, 686, 590 
 
 V. Whyte, 292 
 
 Roberts, Re, 170 
 
 Roberts v. Berry, 720 
 
 V. Cooper, 446 
 
 V. Croft, 327, 328 
 
 V. J3ixwcll, 53 
 
 c. Ebcrhardt, 652 
 
 r. Kuffiu. 577 
 
 r. R. (1902, 2 Oh.), 610 
 
 r. R. (3 P. Wms.), 205 
 
 V. R. (13 Q. B. D.), 287 
 
 V. R. (1905, 1 Ch.), 223 
 
 r. Williams, 314 
 
 Robertson r. Broadbent, 620 
 Robins v. Gray, 339 
 Robinson, £j:p., 661 
 
 , Re (27 Ch. D.), 389 
 
 , Re (1911, 1 Ch.), 149 
 
 V. Briggs, 289 
 
 v. Gee, 280 
 
 V. Geldard, 613 
 
 r. Harkin, 137, 145 
 
 r. Heuer, 207, 735 
 
 V. Kilvert, 768, 769 
 
 V. Litton, 761 
 
 r. Lowater, 374, 376 
 
 v. Lynes, 424, 461, 464 
 
 V. Page, 714 
 
 V. Pett, 160, 168 
 
 ■ I'. Preston, 90 
 
 r. R. (11 Beav.), 148 
 
 V. R. (19 Beav.), .526 
 
 i: R. (12 Ch. D.), 437 
 
 i. R. (1 De G. M. & G.), 
 
 122, 123, 147 
 
 r. Smith, 39 
 
 f. Wheelwright, 430, 506 
 
 Robson I'. Hamilton, 630 
 
 v. Kemp, 339 
 
 Roby v. Maisey, 291 
 Roch V. Callen, 544 
 Roche V. O'Brien, 107 
 Rochefoucauld v. Boustead, 15, 38, SI, 
 
 576, 702, 709 
 Rochestf r (Bp. of) r. Le Fauu, 574 
 Rochford v. Fitzmaurice, 49, 50 
 
 r. Hockman, 475, 476 
 
 Roddam v. Morley, 310 
 Rodick r. Gaudall, 382, 383 
 Roger v. South, 534 
 
 Rogers v. Acaster, 450 
 
 V. Challis, 687, 699 
 
 V. Ingham, 227 
 
 /'. Jones, 494 
 
 V. Maddocks, 207 
 
 v. Waterhouse, 685 
 
 Rolfe V. Chester, 315 
 
 V. Peterson, 261 
 
 Rolls V. Isaacs, 780 
 
 V. Pearce, 631 
 
 Rolt r. Somerville, 759
 
 TABLE OF CASES. 
 
 Rolt V. White, 387 
 Rook V. Worth, 530 
 Rooke r. Kensingtou, 237 
 Roose V. Chalk, 167 
 Roots V. Williamson, 368 
 Roper V. Doncaster, 462 
 
 r. R., 617 
 
 Roper -Ciirzou /■. R., 485 
 Rose r. R., 660 
 
 r. Watson, 346, oo'I 
 
 Rosefield r. Prov. Union Bk., "JS" 
 Rosenberg v. Northumbci'land Build- 
 ing Soc, 269 
 
 Ross r. Buxton, 341 
 
 r. Parkyns, 640 
 
 Ross's Tr., Jic, 427 
 Rossiter v. Miller, 702, 703 
 
 V. R., 607 
 
 Roswell's Ca., 241 
 Roughton v. Gibson, 674 
 Rourke r. Robinson, 276, 277 
 Rous V. Noble, SO 7 
 Rouse V. Bradford Bk., 31)7, 564 
 Rouse's Estate, Mr, 627 
 Routledge v. Dorril, 216 
 Row V. Dawson, 382 
 
 V. Gagg, 146 
 
 Rowbotham r. Dunuett, 710 
 Rowe V. Gray, 672 
 V. Jackson, 437 
 
 r. R., 57, 549 
 
 V. Wood, 298 
 
 Rowellr. Satcholl, 211 
 Rowland v. Cuthbertson, 502 
 
 V. Mitchell, 794 
 
 Rowley f. Adams, 656 
 V. Ginnever, 96, 100 
 
 V. R., 217 
 
 r. Unwin, 421 
 
 Rowlls V. Bebb, 122 
 Roxburgh v. Cox, 569 
 Roy '•. Beaufort, 192 
 Rudd r. Lascelles, 731 
 Ruffles V. Alston, 439 
 RumboU '■. R., 86 
 Rumford Market Case, 93 
 Rundell v. Murray, 790 
 Ruscombe r. Hare, 281 
 Rush /'. Higgs, 745 
 Rushiorth, Kep., 400 
 Rushworth's Case, 98 
 Russel V. Dickson, 544 
 
 — V. R. (1 Bro. C. C), 327 
 
 V. R. (14 Ch. D.), 698 
 
 r. Watts, 770 
 
 Russell, JSxp., 65 
 
 , lie, 113, 198 
 
 V. Jackson, 710 
 
 V. R., 342 
 
 Rutter v. Bartley, 371 
 
 V. Everett, 385 
 
 Ryal f. R., 81 
 Ryall V. Rowlos, 385 
 Ryan v. Mackmath, 798 
 
 r. Mutual Tontine, 698, 700 
 
 Rycroft r. Christy. 63 
 Ryder v. Bond, 523, 526 
 Ryland r. Smith, 447, 448 
 R\'mer v. Stanfield, 33 
 
 Sacchaein Coep. v. Quincey, 781 
 
 V. Reitmeyer, 781 
 
 Sackvillc r. Smyth, 607 
 Sackville-West r. Holmesdale, 53 
 Saddler v. Hobbs, 137 
 Sadler r. Worley, 290 
 Sagitary r. Hyde, 611 
 Sale, lie, 574 
 
 V. Moore, 41, 42 
 
 Salford (M. of) v. Lever, 170 
 Salmon, Jtc (42 Ch. D.), 146 
 
 , Jie (1903, 1 K. B.), 321 
 
 Salomans r. Knight, 776 
 Salt, Jie, 489 
 
 r. Northampton, 268 
 
 r. Pym, 235. 238 
 
 Salter v. Bradshuw, 189 
 Salting, Rrp., 614 
 Salusbury v. Denton, 45 
 Salway v. S., 128, 442 
 Sampson and Wall, 2ic, 477, 478 
 
 '■. Pattison, 325 
 
 Samuel i'. Howarth, 397 
 
 r. Jarrah, &c. Corp., 270 
 
 Samwell t\ Wake, 594 
 Sanderson /■. Aston, 401 
 
 f. Walker, 115 
 
 Saudon r. Hooper, 163, 297, 298 
 Sands to Thompson, 279 
 Sanger r. S., 130, 463, 464 
 Sanson r. S., 389 
 
 Santley r. Wilde, 268 , 
 
 Sass. lie, 396 
 
 Saull V. Browne, 74 li 
 
 Saunders v. Boyd, 533 
 
 r. Dehew, 367 
 
 V. Leslie, 350 
 
 V. Newbold, 189 
 
 r. Shafto, 214 
 
 r. Smith, 752 
 
 f. Sun Life Asscc., 751, 793 
 
 v. White, 288 
 
 Savage v. Foster, 148, 210, 212, 421 
 Savery v. King, 190 
 Savile v. Blacket, 622, 626
 
 TABLE OF CASES. 
 
 Ixi 
 
 Savile t'. Cooper, 153 
 
 V. Drax, 332 
 
 Savill V. S., 478 
 
 Sawrey v. Rumnev, •')44 
 
 Sawyer v. S., 421' 
 
 Saxlehner r. Apollinaris Co., 79'2 
 
 Sayer v. S., 34 
 
 Sayre ;•. Hughes, 8o 
 
 Scales V. Heyhoe, 524 
 
 Seanlan, He, 47') 
 
 Scarf V. Jardine, ()44 
 
 Scarf e v. Morgan, 337 
 
 Scattergood r. Harrison, IGS 
 
 Schofield r. Solomon, 363 
 
 Scholefield r. Heap, 537 
 
 r. Lockwood, 20G 
 
 Scholey v. Peck, 341 
 Schroder v. S., 502 
 Schweder, He, 598 
 Scobie r. Collins, 301 
 Scotland (B. of) /•. Christie, 5G4 
 Scott r. Beecher, G02 
 
 r. Hastings, 384 
 
 r. Matthew & Co., 262 
 
 V. Morley, 424, 461 
 
 V. Pitt Rivers, 41 
 
 V. Porcher, 383 
 
 V. Rayment, 642, 697 
 
 V. Spashet, 436 
 
 V. Stanford, 789 
 
 V. Tyler, 202, 203 
 
 and Alvarez's Contract, He, 718 
 
 Scriven v. Tapley, 437 
 
 Scriven & Co. v. Hindley & Co., 230. 
 
 231 
 Scroggs V. S., 217 
 Scrutton v. Patello, 449 
 Scudaraore r. S., 513, 515 
 Sculthorpe r. Tipper, 124 
 Seaborne v. Powell, 99 
 Seagram r. Knight, 107, 757 
 
 V. Tuck, 585 
 
 Scale V. S., 51 
 Seaman, He, 384 
 
 V. Vaudrey, 729 
 
 Searle, He, 523, 626 
 
 f. Cooke, 680 
 
 r. Law, 68 
 
 Seaton y. Burnand, 183, 395, 405 
 
 r. Heath, 183 
 
 V. S., 478 
 
 Seaward v. Paterson, 736 
 Seddon r. N. E. Salt Co., 230 
 Seed V. Bradley, 288 
 
 V. Higgins, 781 
 
 Seeley v. Jago, 525, 528 
 Sefton, E. of. He, 489 
 Seixo r. Provizende, 794 
 Selby r. Pomfret, 321, 323 
 
 Seligmann v. De Boutillier, 698 
 Sellers /•. Matlock Bath, 771 
 Sells r. S., 237 
 Selwyn r. Garfitt, 305 
 Semple t'. L. & B. R. Co., 706 
 Serle, He, 263 
 
 r. St. Eloy, 596, 601 
 
 Seton V. Slade, 716, 721 
 Sewell's Estates, He, 120 
 Sewell V. King, 61 
 Seymore v. Tresilian, 434 
 Shaftesbury ?'. S., 625 
 Shafto V. Adams, 190 
 
 V. S., 603 
 
 Shaftoe r. S., 810 
 Shakeshaft, Kvp., 145, H7 
 Shallcross r. Finden, 598 
 
 V. Oldham, 170 
 
 Shand r. Du Buisson, 383 
 Shannon v. Bradstreet, 240, 241 
 Shardlow r. Cotterill, 703 
 Sharp r. Jackson, 73, 143 
 
 ('. Leach; 200 
 
 V. McHenry, 287 
 
 r. Richards, 323 
 
 V. St. Sauveur, 526, 520 
 
 Sharper. Foy, 361 
 Sharpies r. Adams, 317 
 Sharr v. Pilch. 56 
 Shaw r. Borrer, 375, 376 
 
 • r. Bunny, 108 
 
 r. Crompton, 311 
 
 • V. Fisher, 695 
 
 V. Foster. 329 
 
 V. Gates, 131 
 
 V. Holland, 110 
 
 • V. Jeffry, 271 
 
 V. Lawless, 41 
 
 ■ v. Marten, 600, 622 
 
 — - I'. Neale, 316, 319 
 
 Sheddon i'. Goodrich, 502 
 
 Sheffield, «&c. Building Soc. r. Aizle- 
 
 wood, 118 
 Sheffield r. Buckinghamshire (D. of), 
 
 804 
 Sheffield Bk. r. Clavton, 408 
 Shell, i:xp., 642 
 Sheldon r. Cox, 359 
 Shelley v. Westbrooke, 468 
 Shelly r. Nash, 188 
 Shenstone v. Brock, 61 
 Shepard r. Jones, 297, 298 
 Shepheard v. AValker, 724 
 Shepherd r. Churchill, 669 
 
 V. Croft, 182, 733 
 
 V. Elliott, 296 
 
 r. Harris, 128 
 
 V. Mouls, 147 
 
 V. Titley, 318, 332
 
 Ixii 
 
 TABLE OF CASES. 
 
 Sheppard, Re, 127 
 
 Sherriff v. Axe, 168 
 
 Sherrington v. Yates, 448 
 
 Sherry, Re, 564 
 
 Sherwin v. Selkirk, 583 
 
 Shields, Re, 541 
 
 Shilton V. Freeman, 31, 33 
 
 Shipbrook v. Hiuchinbrook. 139 
 
 Ship way v. Ball, 441 
 
 Shirley v. Stratton, 685 
 
 Shirreff v. Hastings, 590 
 
 ShoveltoD r. S., 39 
 
 Short c. Turffontein Estates, 263 
 
 Shrewsbury, &c. R. Co. r. S. & B. R. 
 
 Co., 752 
 Shurmur v. Sedgwick, 70 
 Shuttleworth v. Lay cock, 315 
 Sibbering v. Balcarras, 189 
 Sibley v. Higgs, 287 
 Sichel V. Mosenthal, 699 
 Sidgreaves r. Brewer, 41 
 Sidmoutht). S., 80, 84, 88 
 Sidney, Re, 30 
 Sidny v. Ranger, 112 
 Signers v. Evans, 56, 73 
 Silk r. Prime, 597 
 Sillem V. Thornton, 183 
 Simmins v. Shirley, 297 
 Simmonds, Exp., 227 
 Simmons v. Blandy, 302 
 
 r. Heseltine, 288 
 
 V. Pitt, 520 
 
 Simon, Re, 460 
 Simpson, Re, 25 
 
 V. Denison, 748 
 
 V. Fogo, 747 
 
 ?'. Howden, 743, 799 
 
 V. Lamb, 112, 390 
 
 V. Molson's Bk., 354 
 
 — V. Ritchie, 677 
 V. Vaughan, 394 
 
 Sims V. Landrey, 702, 708 
 Simson v. Ingham, 563 
 
 V. Jones, 447 
 
 Sinclair v. James, 669 
 Singer, &c. Co. v. Wilson, 793 
 Sisson V. Giles, 526, 527 
 Skene r. Cook, 309 
 Skidmore v. Bradford, 87 
 Skillett V. Fletcher, 401 
 Skinner v. Shew, 783 
 Skip V. Harwood, 338, 806 
 Skipper v. Holloway, 388 
 Slade V. Barlow, 645 
 
 V. Chaine, 148 
 
 V. Rigg, 303 
 
 Slaney v. Watney, 165 
 Slanning v. Style, 807 
 Slater, Re, Slater v. S., 625 
 
 Slazenger v. Spalding, 795 
 Sleech r. Thorington, 445 
 Sleeman v. Wilson, 471 
 Slevin v. Hepburn, 32 
 Slim V. Croucher, 179, 209 
 Slocombe r. Glubb, 452 
 Sloman v. Walter, 253, 255 
 Sloper, Re, 512 
 Small t'. N. P. Bk., 289 
 Smallman v. Onions, 762 
 Smart v. Hunt, 277, 296 
 
 V. S., 467 
 
 Smee v. Martin, 486 
 Smethurst v. Hastings, 132 
 Smith, Exp. (3 Bro. C. C), 402 
 
 , Exp. (2 M. D. & De C), 331 
 
 V. Abbott, 78 
 
 r. Ay k well, 750 
 
 V. Bate, 472 
 
 V. Betty, 340, 563 
 
 V. Bruning, 205 
 
 V. Burnam, 723 
 
 i;. Casen, 633 
 
 V. Chadwick, 180 
 
 V. Chichester, 99 
 
 V. Claxton, 524 
 
 V. Clay, 686 
 
 V. Cooke (3 Atk.), 801 
 
 V. Cooke (1891, A. C), 75, 78 
 
 r. Evans, 350 
 
 V. Garland, 71 
 
 V. Gronow, 262 
 
 V. Hibbard, 344 
 
 V. Hughes, 231 
 
 V. Hurst, 73 
 
 V. IlifEe, 237 
 
 V. Jeyes, 659 
 
 V. liing, 193 
 
 V. Land and House, &c. Corp., 
 
 178 
 
 r. Matthews, 38, 439 
 
 V. May, 513, 523 
 
 V. Morgan, 593 
 
 ■ V. Patrick, 129 
 
 v. Peters, 696 
 
 V. S. (3 Atk.), 476, 477 
 
 V. S. (5 Ves.), 652, 655 
 
 V. S. (1891, 3Ch.), 277 
 
 ■ V. S. (1913, 2 Ch.), 595 
 
 V. Spence, 506 
 
 i\ Stuart, 133 
 
 V. Thompson, 130 
 
 v. Wallace, 733 
 
 ,,. Watts, 298, 314 
 
 V. Webster, 702 
 
 ■ V. Wheatcroft, 230, 715 
 
 V. Whiteman, 288 
 
 Smithett v. Heskett, 270 
 Smyth V. Gleeson, 536
 
 TABLE OF CASES. 
 
 Ixiii 
 
 Smyth r. Griffin, 799 
 
 Sneath r. Valley (xold, Lim., US 
 
 Sneed v. S., 24*2, 243 
 
 Snelgrove r. Bailey, 630 
 
 Snowdon, He, 399, 407 
 
 Soames r. Edge, 688 
 
 Soar V. Ashwell, 150 
 
 V. Foster, 84 
 
 Sobey V. S., 812 
 
 Societe Gcnerale v. Walkei-, 385 
 
 Solicitor to Treasury r. Lewis, 632 
 
 Solomon, Ee, 131 
 
 Solomon and Meagher's Contr. , He, 33a 
 
 V. S., 604 
 
 Sol tail r. De Held, 767 
 Somerset /•. Cookson, 694 
 
 r. Poulett, 131, 146 
 
 Somerville v. Mackay, 650 
 
 Somes V. S., 215 
 
 Soper r. Arnold, 260 
 
 Sopwith r. Maugham, 505 
 
 South V. Bloxam, 409 
 
 South Africa Territories r. Wallington, 
 
 699 
 South W. R. Co. V. Wythes, 696, 697 
 Southall, £xp., 338 
 Sowden v. S., 552 
 Spalding v. Shalmer, 375 
 Sparke r. Foy, 363 
 Sparkes r. Cator, 541 
 Sparks v. Liverpool Waterworks, 259 
 Sparrow, He, 489 
 
 V. Friend, 667 
 
 V. 0. W. & W. R. Co., 752 
 
 Spencer v. Turner, 633, 634 
 Speight ('. Gaunt, 125 
 Spence, Ee, 467, 474 
 Spencer v. Chesterfield, 471 
 
 V. Peek, 813 
 
 Spicer v. Martin, 211 
 
 Spike V. Harding, 679 
 
 Spinks V. Robins, 535, 538 
 
 Spiral Globe Co., Ee, 287 
 
 Spire V. Smith, 544 
 
 Spirett (.'. Willows, 64, 445, 447 
 
 Spoile r. Whayman, 329 
 
 Spring I'. Pride, 105 
 
 Sproule V. Prior, 351, 610 
 
 Spurgeon v. Collier, 70 
 
 Spurway v. Glynn, 622 
 
 Squib V. Wyn, 380 
 
 St. Albans (D. of) r. Beauclerk, 543 
 
 St. George r. Wake, 452 
 
 St. Helens Smelting Co. r. Tipping, 
 
 771 
 St. John V. Boughton, 279 
 
 v. St. J., 801 
 
 V. Wareham, 272 
 
 St. Luke's r. St. Leonard's, 678 
 
 Stacey v. Elph, 108 
 Stackhouse v. Jersey (G. of), 368 
 Stackpolo V. Beaumont, 203, 441 
 Stafford r. S., 457 
 Stahlschmidt v. Lett, 587, 617 
 Stamford, &c. Bk. r. Ball, 419 
 
 r. Keeble, 306 
 
 Standard Manufacturing Co., Ee, 28(; 
 Standing v. Bo wring, 82 
 Stanford, Uxp., 287 
 
 V. Roberts, 801 
 
 Stanhope r. Manners, 254, 269 
 Stunier v. Hodgkinson, 620 
 Stanley r. Grundy, 295 
 
 i'. Potter, 623, 624 
 
 Stannard i'. St. Giles' Vestry, 712, 764 
 Stansfield v. Habergham, 761 
 r. Hobson, 279 
 
 Stanton r. Hall, 416 
 
 i\ Lambert, 45S 
 
 r. Percival, 693 
 
 Stapilton v. S., 226 
 Starkey v. Barton, 699 
 Stead v. Hardaker, 597 
 
 r. Mellor, 43 
 
 V. Nelson, 419 
 
 V. Newdigate, 514 
 
 Stebbing v. Walker, 238 
 Stedman, Ee, 674 
 Steed r. Preece, 523 
 Steedman r. Poole, 426 
 Steel V. Dixon, 398, 40S 
 Stephens, Kvp., 670 
 
 v. Green, 384 
 
 Stephenson v. Chiswell, 64G 
 
 V. Heathcote, 595 
 
 Stevens r. Bagwell, 390 
 
 r. Theatres, Ld., 306 
 
 Stevenson v. Blakelock, 339 
 Steward v. England, 310 
 Stewart v. G. W. R. Co., 173 
 r. Hoare, 164 
 
 r. Kennedy, 685, 713 
 
 V. McLaughlin, 59 
 
 V. S., 222 
 
 Stickland v. Aldridge, 43, 683, 710 
 Stickney v. Sewell, 132 
 Stikeman v. Dawson, 212 
 Stiles r. Guy, 136, 140 
 Stirling r. Bm-dett, 407 
 
 /•. Forrester, 403, 406 
 
 Stock V. M'Avoy, 88 
 Stockdale v. Onwhyn, 788 
 Stockley v. Parsons, 455 
 Stocks V. Wilson, 193 
 Stockton, &c. Co., Ee, 300 
 Stoddart v. Union Trust, 387, 569 
 Stoer, Ee, 8U 
 
 Stogden v. Lee, 426, 459
 
 Ixiv 
 
 TABLE OF CASES. 
 
 Stokes, ^«, 610 
 
 V. Prance, 132 
 
 Stokoe V. Cowan, 66 
 Stone, He, 219 
 
 V. Lickorish, 170, 269 
 
 V. Lidderdale, 389 
 
 V. Meredith, 573 
 
 Stonehewer v. Thompson, 274 
 Storerv. G. W. R. Co., 697 
 Story V. Johnson, 669 
 Stourton v. S., 475 
 Strang, Exp., 571 
 Strange r. Eooks, 409 
 Stratford v. Powell, 505 
 
 V. Twynam, 109 
 
 Strathmore v, Bowes, 450 
 Stratton v. Best, 496 
 Streatfield v. S., 49, 494, 504, 505 
 Street v. Digby, 698 
 
 V. Union Bk. of Spain, 754 
 
 Strickland II. Turner, 231 
 Sti'ong V. Bird, 59 
 Stroughill r. Anstey, 374, 370 
 Stuart V. Bute (M. of), 476 
 
 V. Kirkwall, 422 
 
 Stubbsv. Sargon, 33, 441 
 Stucley v. Kekewich, 344, 346 
 Studds V. Watson, 703 
 Sturge T. Starr, 14, 368 
 Sturgis V. Champneys, 439, 440 
 
 V. Corp, 419 
 
 Styan, Re, 386 
 Suart V. Toulmine, 320 
 Suffolk r. Green, 813 
 Sugden v. Crossland, 162 
 Suggitt's Trusts, Re, 444 
 Suisse V. Lowther, 533, 543 
 Sullivan v. Jacob, 684 
 Summers v. Barrow, 153 
 Supple f. Lawson, 218 
 Surcombe r. Pinniger, 707 
 Surman v. Wharton, 424, 464 
 Sutherland v. Briggs, 706 
 Sutton w. S., 311 
 Swain, Re, 34 
 
 V. Bringeman, 150, 312 
 
 V. Wall, 407, 408 
 
 Swainson v. S., 603 
 
 Swaisland r. Dearsley, 684 
 
 Swan V. S., 669 
 
 Swanley & Co. v. Denton, 288 
 
 Swayne v. S., 380 
 
 Sweetapple v. Bindon, 51, 52, 514 
 
 Swift V. Pannell, 286 
 
 V. S.,466 
 
 Swinburne v. Pitt, 500 
 Swire v. Redman, 401 
 Syers v. S., 641 
 Sykes' Trusts, 62, 423, 425 
 
 Sykes v. Hastings, 162 
 
 V. S., 165 
 
 Symonds v. Hallett, 450 
 Synge r. Hales, 54 
 
 V. S., 206, 700 
 
 Synnot r. Simpson, 73 
 
 Tadcastee Beeweey v. Wilson, 720 
 Taff Vale Co. v. Nixon, 558 
 Taggart v. T., 50 
 Tailby r. Official Receiver, 63, 381 
 Tait V. Leithead, 63 
 
 V. North wick, 595 
 
 Talbot V. Frere, 315 
 
 V. Hope-Scott, 759 
 
 V. Marshman, 480 
 
 V. Shrewsbury (D. of), 475, 546, 
 
 547 
 
 r. Stainforth, 189 
 
 Tancred v. Delagoa Bay, 388 
 Tankard, Re, 67 
 TankerviUe v. Fawcett, 603 
 Tanner v. Smith, 733 
 
 ■ V. Wise, 801 
 
 Tanqueray-Willaume, Re, 378, 597 
 Tardiffe v. Scrughan, 344 
 Tarn v. Emmerson, 462, 593 
 
 V. Turner, 275 
 
 Tarsey's Trust, Re, 417 
 Tasker f. T., 418, 434 
 Tasmania Bk. v. Jones, 402, 403 
 Tassel r. Smith, 323 
 Tate V. Austin, 280 
 
 V. Hilbert, 629, 631, 632 
 
 v. Williamson, 114 
 
 Tatham v. Piatt, 684 
 Taunton v. Morris, 440, H5 
 Taylor, Exp. (12 Ch. D.), 041 
 
 , Re (4 Ch. D.), 468 
 
 , Re (1910, 1 K. B. 562), 509 
 
 r. Allen, 806 
 
 V. Bank of N. S. W., 401, 409 
 
 V. Blacklock, 142 
 
 r. Caldwell, 246 
 
 V. Cartwright, 538 
 
 r. Coenen, 65 
 
 V. Eckersle:^';, 699 
 
 V. Grange, 066 
 
 r. Haygarth, 515 
 
 V. Johnson, 482 
 
 ■ V. Johnston, 197 
 
 V. L. & Coy. Bk., 142, 316, 355, 
 
 363, 367, 386 
 
 r. Meads, 419, 424 
 
 r. Neate, 650, 661
 
 TABLE OP^ CASKS. 
 
 Ixv 
 
 Taylor r. Neville, G92 
 
 V. Plumer, 552 
 
 V. Portington, 684 
 
 V. Pugh. 451, 452 
 
 r. Russell, 362, 366 
 
 r. Stibbert, 356, 358 
 
 V. T. (10 Eq.), 145 
 
 V. T. (20 Eq.), 485, 569 
 
 v. T. (10 Ha.), 625 
 
 V. Wade, 589 
 
 r. Wheeler, 243 
 
 , Stileman & Co., Re, 340, 342, 
 
 349 
 Teague v. Fox, 122 
 Teague's Settlement, Re, i'lT 
 Teall v. Watts, 675, 676 
 Teasdale v. Braithwaite, 70 
 
 V. T., 211 
 
 Tebbs V. Carpenter, 163 
 Teevan v. Smith, 276 
 Tempest, Ee, 152 
 Tendril v. Smith, 196 
 Tenham v. Herbert, 808 
 Tennant's Case, 779 
 Tennant, Exp., 639, 640 
 
 V. Brail, 206 
 
 V. Trenchard, 115, 335 
 
 Tennent v. T., 185 
 Terry and White's Contr., He, 732 
 Terry v. T., 129 
 Thatcher's Trust, Ee, 480 
 Thelluson v. Woodford, 495, 503 
 Theobald v. White, 574 
 Therry v. Henderson, 484 
 Thomas v. Bennett, 433 
 
 V. Dering, 684 
 
 V. Foster, 634 
 
 IK Griffiths, 589 
 
 V. Howell, 30, 502 
 
 V. Kelly, 288 
 
 V. Roberts, 468 
 
 V. Searles, 287 
 
 V. T., 280 
 
 Thompson v. Alexander, 25 
 
 ■ V. Ashbee, 107 
 
 ■ V. Bennett, 581 
 
 ('. Bowyer, 279 
 
 V. Fisher, 53 
 
 V. Griffin, 483 
 
 v. Hickman, 234 
 
 V. Hudson, 297 
 
 V. Lack, i( ' 
 
 ■ V. Tomkins, 386 
 
 and Curzon, Ee, 436 
 
 and Holt's Contr., Ee, 718 
 
 Thomson v. Clydesdale Bk., 144 
 
 • V. Weems, 183 
 
 Thorley's Cattle Food Co. v. Massam, 
 776 
 
 Thornborough ;•. Baker, 272 
 Thorndyke v. Hunt, 14, 142, 369 
 Thome v. Cann, 274 
 
 V. Heard, 150, 304 
 
 Thorneloe v. Hill, 795 
 Thornhill v. Manning, 303 
 Thomley v. T., 456 
 Thornton, Exp., 364 
 
 V. Dixon, 654 
 
 V. Hawley, 510 
 
 V. Howe, 43 
 
 Threfall v. Borwick, 338 
 
 Threlfall v. Lunt, 799 
 
 Thursby v. Eccles, 705 
 
 Thurston v. Evans, 600 
 
 Thynn ». T., 40 
 
 Thynne v. Glengall (E. of), 539, 547 
 
 V. Shove, 795 
 
 Tibbitsu. T., 505 
 
 Tidd ('. Lister, 440, 448, 614 
 
 Tillett V. Nixon, 290, 306 
 
 Tilley v. Thomas, 719, 720, 721 
 
 Tilt, Ee, 63 
 
 Tinkler's Estate, Ee, 627 
 
 Tinslej v. Lacy, 789 
 
 Tippett's and Newbould's Contr., Ee, 
 
 427 
 Tipping V. T., 434, 599, 609 
 Titley v. Davies, 322 
 Todd V. Wilson, 576 
 Tod-Heatley v. Benham, 769 
 Toft V. Stephenson, 346 
 Toker t>. T., 200 
 Toilet V. T., 242, 243 
 Tolson V. Collins, 549 
 Tombes r. Elers, 477 
 Tomkins v. Colthurst, 599 
 Tomlin v. Latter, 242 
 Tomlinson v. Andrew, 759 
 Tompson v. Judge, 197 
 Tone V. Preston, 772 
 Tooth V. Hallett, 387 
 Toovey v. Public Trustee, 155 
 Topham r. Portland, 215, 216, 217 
 Torkington v. Magee, 87 
 Torrance v. Bolton, 352 
 Tottenham District Council v. 
 
 Williamson, 768 
 Tourville v. Naish, 363 
 Toward, Ee, 382 
 Tower v. Rous, 594 
 Towerson v. Jackson, 293, 294 
 Townend v. T., 162 
 
 V. Toker, 68 
 
 Townley v. Bedwell, 518 
 
 V. Sherborne, 135 
 
 Townsend v. Barber, 137 
 
 V. Devaynes, 654 
 
 V. Mostyn, 603
 
 ixvi 
 
 TAKLK OF CASKS. 
 
 Townsend v. Westacott, 65 
 Townshend Peerage Case, 8 1 4 
 
 V. StangToom, 710 
 
 V. Windham, 433 
 
 Towry Law v. Burne, 63 
 
 Tracey V. T., 761 
 
 Traflord v. Boehm, 146, 528 
 
 V. Maconochie, 206 
 
 Trego V. Hunt, 795 
 Tremain's Case, 471 
 Trench v. Hamilton, 39, 40 
 Trevelyan v. Charter, 110 
 Trevor v. Hutchins, 587 
 
 V. T., 49, 54 
 
 Trevor-Battye, Re, 756 
 Trident, The, 614 
 Trimbleston v. Hamill, 298 
 Trimmer v. Bayne, 351, 536 
 
 V. Danby, 630 
 
 Trinidad Asphalte Co. v. Ambard, 772 
 
 V. Corvat, :i5G, 
 
 361 
 Trott V. Buchanan, 594 
 Troutbeck v. Boughey, 420 
 Trowell «). Shenton, 70, 71 
 Trulock V. Roby, 279 
 Trumper v. T., 102 
 Trutch V. Lamprell, 128 
 Trye v. Sullivan, 457 
 Tubbs v. Broadwood, 552 
 
 V. Wynne, 727 
 
 Tuck V. S. C. Bk., 287 
 Tucker v. Barrow, 84 
 
 V. Bennett, 71, 237 
 
 V. Laing, 398 
 
 V. Linger, 759 
 
 V. T., 129 
 
 V. Wilson, 283 
 
 Tudor V. Anson, 244 
 
 Tuer V. Turner, 527 
 
 Tuer's Will. Re, 482 
 
 Tuffnell V. Page, 34 
 
 Tugwell, i?e, 512 
 
 Tuilet i'. Armstrong, 425, 4 28 
 
 V. Colville, 511 
 
 TuUoch V. Hartley, 678 
 Turnbull v. Davis, 199 
 
 V. Duval, 229 
 
 V. Forman, 424 
 
 — V. T., 463 
 
 Turner's Set. Est., Re, 214 
 Turner, Exp., 147 
 
 , Re, 341 
 
 V. Blamire, 765 
 
 V. Buck, 628 
 
 V. Collins, 196 
 
 V. Green, 181, 182 
 
 ■ — V. Harvey, 182 
 
 V. King, 423 
 
 Turner v. Leeming, 625 
 
 V. Letts, 331, 694 
 
 V. Major, 649 
 
 V. Morgan, 668, 672 
 
 V. Read, 60 
 
 — V. Smith, 273 
 
 V. T., 96, 236 
 
 w. Walsh, 294 
 
 V. Wright, 761 
 
 and Skelton, Re, 731 
 
 Turton v. Benson, 205, 386 
 V. T., 793 
 
 Tussaud V. T. (9 Ch. D.), 536 
 
 V. T. (44 Ch. D.), 807 
 
 Tweddell v. T., 190 
 Tweed, Exp., 340 
 Tweedale v. T., ?22, 359 
 Twenty man r. Simpson, 3:5 
 Twining v. Powell, 537 
 Tyler, Re, 221 
 
 V. Lake, 417 
 
 V. T., 34 
 
 V. Yates, 186, 746 
 
 Tynt V. T., 599, 609 
 Tyrrell's Case, 23 
 Tyrrell v. Hope, 416 
 Tyson v. Cox, 397 
 V. Jackson. 391 
 
 Underwood r. Barkei', 207 
 Uneeda Trade Mark, Rr, 794 
 Ungley v. U., 7t»7 
 
 Union Bank, &c. v. Ingram (16) Ch. D.), 
 269 
 
 V. (20 Ch. D.), 
 
 306 
 
 V. Kent, 317. 319 
 
 Union Lighterage Co. r. Londoti 
 
 Graving Dock Co., 773 
 United Telephone Co. v. Harrison, 780 
 r. London, &c. Tele- 
 phone Co., 7X1 
 
 r. Sharpies, 781 
 
 Unity, &c. Co. v. King, 327 
 
 Univ. of 0. & C. r. Richardson, 784. 
 
 790 
 Upmann v. Forrester, 795 
 Upperton r. Nickolsou, 723, 729 
 
 Vachell v. Roberts, 121 
 Valentini v. Canali. 191 
 Valpy V. v., 607 
 Vance v. V., 8(i
 
 TAr.l.K OK ('ASKS. 
 
 Ix 
 
 VI 1 
 
 Vandeleur v. V., fiO'i 
 Vane v. Barnard, 758 
 
 V. Duugannon, 218 
 
 V. v., 200 
 
 Van Gheluive v. Nerinckx, 585 
 
 Van Praagh v. Everidge, 230, 233, 712 
 
 Vansittait, i?f, 67 
 
 Vardon's Trusts, Ee, 424, 497, 50« 
 
 Vaughan v. Buck, 441 
 
 v. Halliday, 567 
 
 V. Noble, 105 
 
 V. Thomas, 44 
 
 V. Vanderstegen, 421, 423 
 
 Vawdrey v. Simpson, 698 
 
 Veal V. v., 631 
 Venables v. Baring, 387 
 Venn & Furze, Ee, 372, 378 
 Vernon r. Hallam, 795 
 
 V. Vawdry, 576 
 
 Vernon Ewene, Ee, 333 
 
 Verrall's Contract, Ee, 379 
 
 Vibart i'. Coles, 586, 587 
 
 Vickers v. Pound, 626 
 
 Vickersii. V., 537, 538 
 
 Victorian Daylesford Syiid. r. Dott, 
 
 189 
 Viditz V. O'Hagan, 237 
 Vigers v. Pike, 184 
 Villareal v. Mellish, 469 
 Villiers v. Beaumont, 802 
 Vine V. Mitchell, 183 
 Viner v. Vaughan, 756 
 Vint V. Padget, 322 
 Violet Nevin, Ee, 467, 475 
 Voisey, JExp., 300 
 Von-Hatzfeld r. Alexander. 70o 
 Von Joel V. Hornsey, 735 
 Vorley v. Cooke, 229 
 Vulliamy v. Noble, 570 
 Vyse V. Foster, 171 
 
 W.. Ec, W. r. M.. 475 
 
 W. V. B., 800 
 
 Wade V. Hopkinson, 477 
 
 V. Paget, 242 
 
 V. Wilson, 306, 334 
 
 Wagstaffe v. Smith, 416 
 Wain V. Bailey, 247 
 Wainwright r. Miller, 216 
 Waite V. Bingley, 665 
 Wake V. Conyers, 663, 678 
 
 V. Harrop, 235 
 
 V. W., 504, 505 
 
 Waldron v. Sloper, 333 
 Waldy V. Gray, 361, 370 
 Wales r. Carr. 298 
 
 Walford v. Gray, 707 
 
 v. W., 627, 628 
 
 Walhampton Estate, Ee, 324 
 Walker, Er (59 L. J. Ch.), 131 
 Jie (190H, 1 Ch.), 242, 244 
 
 Ee (1908, 2 Oh.), 509 
 
 V. Deune, 528 
 
 r. Flamstead, 364 
 
 V. Hirsch, 639 
 
 «;. Jeifreys, 719 
 
 V. Laxton, 622 
 
 V. Linom, 348, 355, 362 
 
 V. Micklethwait, 748 
 
 V. Mottram, 650 
 
 V. Preswick, 346 
 
 V. Symonds, 139. 148 
 
 V. Ware, &c. Co., 345 
 
 V. Wetherell, 482 
 
 Wall r. Tomlinsou, 448 
 Wallace v. Auldjo, 438 
 
 V. Greenwood, 513, 523 
 
 V. Pomfret, 549 
 
 Waller v. Dalt, 188 
 Walleyi;. W., 99, 100 
 Wallinger r. W., 498 
 Wallis. Ec, 170 
 
 v. D. of Portland, 390 
 
 v. Smith, 257, 261 
 
 • r. S. G. for New Zealand. 33 
 
 Wallwj^n r. Lee, 369 
 Walrond r. Rosslyn, 527 
 Walsh «'. Lonsdale, 326 
 
 r. Wallinger, 45 
 
 r. W., 485 
 
 — r. Wason, 447 
 
 Walter v. Howe, 788 
 
 V. Maunde. 5 1 1 
 
 r. Selfe, 769 
 
 — V. Sr.einkopft, 788, TSd 
 
 Walters v. Green, 777 
 Walwyn v. Coutts, 72 
 Ward's Trusts. Ee, 485 
 Ward, Ee, 389 
 
 t\ Audland, 56 
 
 V. Baugh, 506 
 
 r. Benett, 588 
 
 ■?'. Duncombe, 3(.(l, 385 
 
 V. Grav, 598 
 
 V. Nat' Bk. of N. Z., 403 
 
 — v. Turner. 631 
 
 V. Valletort, &c. Co.. 360 
 
 r. Wood, 238 
 
 Warden r. Jones, 70, 706 
 Wardler. Carter, 187 
 Ware v. Gardner, 65 
 
 V. Grand Junction Co.. 700 
 
 V. Regent's Canal Co., 767 
 
 Warehani, Ee. Waroham /•. Brewin, 
 121
 
 Ixviii 
 
 TABLE OF CASES. 
 
 Waring, Exp., 566, 567 
 
 , Re, '29 
 
 V. M. S. & L. R. Co., 685 
 
 V. Scotland, 728 
 
 — V. Ward, 596 
 
 Warmstrey v. Tanfield, 380 
 Warne v. Seebohm, 789 
 Warner, Exp. (4 Bro. C. C), 750 
 , Exp. (1 Rose), 327 
 
 V. Baynes, 668 
 
 V. Jacob, 304 
 
 V. Mosses, 815 
 
 Warrv, W., 485 
 
 Warren v. Browne, 736, 770" 
 
 V. Davies, 597 
 
 v. Rudall, 498 
 
 Wan-en's Settlement, 431 
 Warriuer ». Rogers, 59 
 
 V. W., 632 
 
 Washington Diamond Co., Re, oil 
 Wassell V. Leggatt, 416 
 Waterer v. W'., 653, 654 
 Waters v. Boxer, 627 
 
 Wathen v. Smith, 547 
 Watkins v. Steevens, 68 
 
 V. W., 389 
 
 Watson V. AUcock, 410 
 
 V. Brickwood, 595 
 
 V. Knight. 74 
 
 ('. Marshall, 441 
 
 V. Marston, 684 
 
 V. Reid, 722 
 
 V. W., 537, 538 
 
 Watt V. Grove, 1 1 1 
 Watts V. BuUas, 244 
 
 V. Creswell, 212 
 
 V. Girdlestone, 129 
 
 V. W., 517 
 
 Wauton r. Coppard, 769 
 Waverley Typewriter, Re, 592 
 Way V. East, 43 
 
 Weatherby v. International, &c., 788 
 Webb V. Derbyshire, 621 
 
 V. Grace, 204 
 
 V. Hewitt, 398, 402 
 
 V. Hughes, 720 
 
 — — V. Jonas, 132 
 
 V. Jones, 596 
 
 v. L. & P. R. Co., G84 
 
 V. Shaftesbury {E. of), 162 
 
 V. Smith, 339, 612 
 
 Webster v. Bosanquet, 257 
 Wedderbum v. W., 109 
 Wedgwood v. Adams, 684 
 Wed'more v. W., 598, 617 
 Weeding v. W., 519 
 Weekes' Settlement, 14 
 Weeks r. Gore. 588 
 Wegg-Prosser r. ?jv;tnH, 403, 645 
 
 Wegg-Prosser v. W.-P., 613 
 
 Weir r. Crun-Brown, 30 
 
 Weir Hospital, Re, 32 
 
 Weiss V. Dill, 164 
 
 Weld, Re, 489 
 
 V. Hornby, 772 
 
 Weld-Blundell v. Wolseley, 759 
 
 Weldon v. Neal, 527 
 
 Weller v. Stone, 231 
 
 Wellesley v. Beaufort, 467, 468, 473 
 
 V. Mornington, 214, 736 
 
 V. W., 479 
 
 Wells v. Borwick, 617 
 
 r. Maxwell, 720, 721 
 
 Welsbach, &c. Co. v. New Incandes- 
 cent Co., 780 
 
 Weniger's Policy, Re, dbo 
 
 Wenman v. Lyon, 285 
 
 West, Re, 627 
 
 West Derby Union *'. Metrop., &c. 
 Soc, 276 
 
 West London Commercial Bk., Re, 
 584 
 
 West and Hardy's Contr., Re, 26, 
 457 
 
 ■ ('. Errissey, 236 
 
 v. Roberts, 623 
 
 V. Sackville, 813 
 
 V. Shuttleworth , 29 
 
 V. Williams, 319 
 
 Westacott v. Bevan, 341 
 
 Westby r. W., 226 
 
 Western Bk. of Scotland v. Addie, 180 
 
 Westhead v. Aspland, 627 
 
 V. Riley, 275 
 
 Westley v. Clarke, 139 
 
 Weston, Re, 630, 631 
 
 Weston's Case, 87 
 
 Wetherall, Exp., 327 
 
 Weyman v. Smithies, 535 
 
 Wheateley v. Slade, 731 
 
 Wheeler, Re, 621 
 
 V. Caryl, 447 
 
 and De Rochow, Re, 153 
 
 Wheelton v. Hardisty, 183 
 
 Whelan r. Palmer, 214, 217 
 
 Wheldale v. Partridge, 508, 516, 525, 
 529 
 
 Whichcote v. Lawrence, 105 
 
 Whieldon v. Spode, 594 
 
 Whincup V. Hughes, 572 
 
 Whistler, Re, 372 
 
 V. Newman, 148 
 
 V. Webster, 493, 499, 500 
 
 Whitaker v. Barrett, 587 
 
 V. Palmer, 593 
 
 Whitbread, Exp., 332 
 
 Whitby r. Mitchell, 427 
 Whitchurch v. Bevis, 705
 
 TABLE OF CASES. 
 
 Ixix 
 
 White, Re, b7i 
 
 V. Baugh, 128 
 
 V. Briggs, 39 
 
 V. Carter, 53 
 
 V. City Brewery, 297 
 
 V. Ellis, 359 
 
 V. Hillacre, 322 
 
 V. Wakefield, 350 
 
 V. W. (22 Ch. D.), 500 
 
 V. W. (2 Vem.), 594 
 
 V. W. (1893, 2 Ch.), 32 
 
 White and Smith's Contr., He, 359 
 Whitehead, Ee, 704 
 
 V. Street, 598 
 
 Whitehouse, Exp., 318 
 
 & Co., Jie, 571 
 
 V. Edwards, 86 
 
 Whiteley v. Edwards, 430 
 
 t\ Learoyd, 132 
 
 Whitfield V. Fausset, 247, 250 
 Whiting V. Burke, 406 
 
 r. De Rutzen, 203 
 
 P. White, 278 
 
 Whitley v. Challis, 307, 330 
 Whitmore v. Stamford, 774 
 Whitney v. Smith, 169 
 Whittaker v. Howe, 649, 796 
 
 V. Kershaw, 454, 589 
 
 t. W., 57, 628 
 
 Whittemore v. W., 732 
 
 Whitton V. Russell, 248 
 
 Whitwam v. Westminster, &c. Co., 766 
 
 Whitwell V. Arthur, 658 
 
 Whit wham v. Piercy, 18, 24 
 
 Whitwood Chemical Co. v. Hardman, 
 
 698, 734 
 Whitworth v. Gaugain, 318, 332 
 
 V. Wright, 501 
 
 Whorwood v. Simpson, 724 
 Whyte V. W., 545 
 Wicks V. Hunt, 687 
 Widgery v. Tepper, 448 
 Wigg y. W., 363 
 Wigram v. Buckley, 363 
 Wilcocks V. W., 550 
 Wild V. Stanham, 634 
 Wilday v. Sandys, 121 
 Wilder v. Pigott, 505, 506 
 Wilding V. Richards, 73 
 
 V. Sanderson, 224, 713 
 
 Wilkes V. Holmes, 243 
 
 V. Spooner, 362 
 
 Wilkins v. Hogg, 141 
 Wilkinson v. Clements, 683, 688 
 
 V. Dent, 496, 504 
 
 V. Duncan, 123 
 
 V. Joberns, 672, 677 
 
 V. Parry, 148 
 
 V. Sterne, 563 
 
 Wnkinson v. W., 163, 164 
 Willan V. W., 225 
 Willand v. Fenn, 140 
 Willcock V. Terrell, 389 
 Willesford v. Watson, 698 
 Williams, IJxp., 300 
 
 V. Briscoe, 703 
 
 V. Davies, 570 
 
 V. Games, 674 
 
 V. Higden, 731 
 
 V. Knight, 506 
 
 V. Lambe, 370 
 
 V. Mercier, 434 
 
 V. MitcheU, 281 
 
 V. Morgan, 301 
 
 V. Owen, 271, 411 
 
 V. Scott, 106, 107, 111 
 
 V. Sorrell, 273 
 
 V. W. (32 Beav.), 86 
 
 V. W. (17 Ch. D.), 359 
 
 V. W. (1897, 2 Ch.), 40 
 
 V. W. (15 Eq.), 584 
 
 V. W. (2 Dr. & Sm.), 226, 
 
 708 
 
 V. W. (68 L. J. Ch.), 668 
 
 V. W. (15 Ves.), 755 
 
 Willie V. Lugg, 322 
 Willis, He, 300 
 
 V. Barron, 197, 199, 229 
 
 V. E. Howe, 184 
 
 V. Jemegan, 575 
 
 V. Kibble, 165 
 
 V. W., 81 
 
 Willmottt;. Barber, 211, 233, 683 
 Willock V. Noble, 419 
 Willoughby, Re, 476 
 V. W., 367 
 
 WiUs V. Slade, 664 
 
 V. Stradling, 706 
 
 Willson V. Love, 261 
 Wilmot I'. Alton, 381 
 
 V. Pike, 320, 367 
 
 Wilson, Be, 33 
 
 v. Ann, 462 
 
 V. Cluer, 296 
 
 V. Coxwell, 587 
 
 V. Dunsany, 584 
 
 V. Furness R. Co., 697 
 
 V. HoUoway, 654 
 
 V. Johnstone, 660 
 
 V. Maddison, 627 
 
 V. Metcalfe, 296 
 
 V. O'Leary, 544 
 
 V. Piggott, 242 
 
 V. Queen's Club, 291, 770 
 
 V. Townsend, 505 
 
 V. Turner, 483 
 
 V. W. H. R. Co., 707 
 
 V. W., 606, 698 
 
 /
 
 Ixx 
 
 TABLE OF CASES. 
 
 Wilson and Stevens, Re, 718 
 Wilton V. Hill, 432 
 
 V. Osborne, 189 
 
 Wiltshire v. Rabbits, 386 
 Winch V. Winchester, 713, 731 
 Winchelsea's Policy Moneys, Re, 160, 
 
 343 
 Winchester (B. of) v. Payne, 363 
 Windham v. Jennings, 320 
 
 V. W., 543 
 
 Wing V. Harvey, 258 
 Wingfield v. Erskine, 587 
 Wingrove v. W., 201 
 Winkle, Re, 488 
 Winter v. Anson, 344, 346 
 
 r. W., 630 
 
 Withemsea Brickworks, Re, 592 
 Witt, Re, 339 
 
 V. Banner, 287 
 
 Witten, Re, 470 
 Witty V. Marshall, 475 
 Wollaston v. King, 498, 501 
 
 V. Tribe, 71 
 
 Wolmershausen v. Gullick, 399, 406 
 Wolverhampton, &c. Bk. v. George, 
 
 302 
 Wolverhampton Corp. v. Emmons, 697 
 Wood V. Briant, 549, 628 
 
 V. Cock, 421 
 
 V. Gregory, 672 
 
 V. Griffith, 731 
 
 V. Lambert, 793 
 
 V. Ordish, 597 
 
 V. Penoyre, 627 
 
 V. RowcliflEe, 693 
 
 V. Stenning, 144, 565 
 
 V. SutclifPe"; 753 
 
 V. Thomas, 120 
 
 t;. Turner, 341 
 
 V. W., 456 
 
 V. Zimmer, 780 
 
 Wood's Estate. Re, 102 
 Woodhead v. Ambler, 588 
 Woodhouse v. Shepley, 205 
 
 V. Walker, 768 
 
 Woodin V. Glass, 481 
 Woodmeston v. Walker, 428 
 Woodroffe r. Moody, 627 
 Woods V. Huntingford, 603 
 Wooldridge v. Norris, 399, 807 
 Woollam V. Hearu, 710 
 Woolley V. Coleman, 306 
 Woolridgev. W., 500 
 Woolscombe. Re, 474 
 Woolstencroft v. W., 605, 606 
 Worcester Bk. v. Blick, 144 
 WorraU r. Harford, 140, 163 
 Worsley, Re, 460 
 Wortham v. Pemberton, 476 
 
 Worthing Corp. v. Heather, 34, 683 
 Worthington v. Curtis, 80, 87 
 
 . V. Morgan, 348, 355 
 
 Wray v. Hutchinson, 659 
 Wray's Trust, Re, 447 
 Wren v. Bradley, 206 
 Wright, Exp., 327, 643 
 
 , Re, 204 
 
 V. Atkyns, 762 
 
 V. Carter, 111, 198 
 
 V. Dee Est., 339 
 
 V. Goff. 234 
 
 V. Hitchcock, 781 
 
 V. Hunter, 643 
 
 V. Laing, 563 
 
 V. Lambert, 123 
 
 V. Morley, 440 
 
 V. Pearson, 48 
 
 V. Rose, 511 
 
 V. Rutter, 441 
 
 V. Sanderson, 341 
 
 V. Simpson, 399, 807 
 
 V. Tuckett, 622 
 
 V. Vanderplauk, 107, 196 
 
 V. W. (2 J. & H.), 429 
 
 V. W. (16 Ves.), 524 
 
 Wrigley v. Gill, 269, 297, 565 
 
 V. Sykes, 376 
 
 Wyatt V. Sharratt, 130 
 Wyke V. Rogers, 403 
 Wylie V. Moffat, 457 
 Wyllie V. Pollen, 360 
 Wyndham v. Richardson, 320 
 
 V. W., 475 
 
 Wynne v. Hawkins, 41 
 Wynstanley v. Lee, 768 
 Wythe V. Henniker, 351 
 Wythes v. Labouchere, 396 
 V. Lee, 352 
 
 X., Re, 489 
 X. V. Y., 474 
 
 Yates v. Morton, 513, 523 
 
 V. University Coll., 29 
 
 Yem V. Edwards, 97 
 
 York, &c. Co. V. Artley, 334 
 
 Buildings Co. v. Mackenzie, 114 
 
 V. N. Mid. R. Co., 110 
 
 (M. of) V. Pilkington, 749, 808 
 
 Yorkshire Banking Co. v. MuUan, 291 
 Young V. English, 562 
 
 V. Macintosh, 50 
 
 V. Y., 667, 672 
 
 Younge v. Furze, 203
 
 THE PRINCIPLES OF EQUITY. 
 
 INTRODUCTION. 
 
 I. Design of the Work. 
 II. Division of the Subject. 
 
 I. The design of this work is to present within mode- Design of the 
 rate dimensions as complete a view of English equitable 
 jurisprudence as is necessary for meeting the requirements 
 of the examinations in this subject, and for a clear under- 
 standing of the cases which most frequently present them- 
 selves in the practice of the profession. 
 
 For this purpose it has not been deemed necessary to Not 
 
 nil- p T-i • historical, 
 
 enter into the attractive subject oi the history oi Equity. 
 
 To do this effectively would require more space than could 
 
 well be spared in a work of moderate dimensions, the 
 
 contents of which must necessarily extend over a wide 
 
 field of inquiry; and to attempt to compress so extensive 
 
 a subject within very narrow limits would perhaps be 
 
 worse than useless. Occasionally, indeed, something in 
 
 the nature of an historical retrospect is necessary for the 
 
 explanation of certain features of the jurisprudence; and 
 
 in these cases — for instance, in introducing the subject of 
 
 trusts — I have, as concisely as has seemed consistent with 
 
 clearness, narrated the steps by which the jurisdiction 
 
 has become established. Such glances at history, however, 
 
 are only introduced as ancillary to the comprehension 
 
 s. 1
 
 INTRODUCTION. 
 
 of the principles concerned, and are not designed to serve 
 the purposes of those who desire to be well informed 
 respecting the origin and growth of the jurisdiction of 
 the Court of Chancery. 
 
 Story's 
 diTision 
 obsolete. 
 
 Classification u. It ig obvious that a treatise designed as an ex- 
 
 and division . . „ , . . , . • i i 
 
 of the subject, position of SO complex and intricate a subject as equitable 
 jurisprudence requires to be systematic in form. Its 
 multitude of details can only be brought within the grasp 
 of the memory by means of a careful classification. Yet 
 to devise a system of classification which shall be at 
 once logical, adequately comprehensive, and simple, is a 
 problem of no slight difficulty; and scarcely two writers 
 have agreed in its solution. 
 
 The division most familiar to modern students is that of 
 Story, which distinguishes between the concurrent, the 
 exclusive, and the auxiliary jurisdiction of the Courts of 
 equity. It would be a presumption to praise or criticise 
 the conclusion of so great a writer, and it argues no dis- 
 respect for it that it is not here followed. Owing to 
 legislation which has remodelled our whole judicial 
 system, such a division of the subject, however excellent at 
 the time at which it was devised, is no longer sufficiently 
 exact to be satisfactory. 
 
 It is true that by the provisions of the Judicature Act 
 certain matters are specifically assigned to the various 
 Divisions of the High Court of Justice, and it is equally 
 true that in fact certain business and certain classes of 
 actions are, in practice, for reasons of obvious convenience, 
 confined respectively to the Chancery, the Probate, and 
 the King's Bench Divisions. Yet to adopt terms employed 
 to indicate the relations which existed between the old 
 Court of Chancery and the old common law Courts as 
 headings of the subject of the modern administration 
 
 Jud. Act, 
 1873, ss. 24, 
 25, 34.
 
 DIVISION OF THE SUBJECT. 
 
 of equity, is to assign too great an importance to dis- 
 tinctions, which, though in fact still existing in prac- 
 tice, are in point of principle and in theory altogether 
 obsolete. 
 
 The most important enactment of the statute above 
 mentioned is that {a), " in every civil cause or matter oom- 
 " menced in the High Court of Justice law and equity 
 '' shall be administered concurrently, and that whenever 
 " there is a conflict between the rules of common law and 
 " those of equity, the rules of equity shall prevail." 
 
 A terminology, therefore, which suggests that equity 
 cannot, under existing arrangements of procedure, be ad- 
 ministered except in the Chancery Division, is clearly an 
 anachronism, and is to some extent misleading. Indeed, 
 that the special assignment above alluded to does not 
 establish anything that can be called in accurate language 
 an exclusive jurisdiction, is shown by the emphatic dictum 
 of so high an authority as the late Sir G. Jessel, M. B,., 
 that " all the judges of the High Court have the sa,me 
 "jurisdiction; and it is clear that any judge may, if he 
 " chooses, when an action has been brought in the 
 ■" wrong Division, retain the action and exercise the juris- 
 "diction " (6). This admission that the Division may be 
 the wrong one in which to bring the action, coupled with 
 the assertion of the right to exercise the jurisdiction, aptly 
 illustrates the practical effect of the statute. 
 
 Similarly, it may be said that the consideration of what Auxiliary 
 was called the auxiliary jurisdiction of Courts of equity as J^""isdiction. 
 such is chiefly of historical interest. Formerly there were 
 many cases in which, though the common law remedies 
 were sufiicient, and the jurisdiction of Courts of common 
 
 {a) 36 & 37 Vict. c. 66, ss. 24, 25. 
 
 {b) Pinney v. Hunt, 6 Ch. D. 98, 100, 101; and see Bradford v. 
 Young, 26 ib. 656. 
 
 1 (2)
 
 4 INTRODUCTION. 
 
 law was accordingly exclusive, yet it was necessary for 
 one of the parties to have recourse to equity in order to 
 jjrocure evidence requisite for the successful assertion of 
 the legal right. The jurisdiction of equity in these cases 
 rested on the peculiarities of its procedure, and extended 
 no further than was necessary to enable the party to main- 
 tain his position at law. The most important illustration 
 of this branch of the jurisdiction was afforded by the 
 stringent powers of equity to enforce discovery. But the 
 Judicature Acts having established a system of procedure 
 common to Courts of law and to those of equity, giving to 
 the former identically the same powers as are enjoyed by 
 the latter, it can no longer be necessary for any one whose 
 action lies at law to seek for any preliminary or auxiliary 
 aid in equity. 
 
 Law and Yet, notwitlistanding the fusion of law and equity 
 
 equity 
 
 4still distinct, which has by the Judicature Acts been m a great measure 
 
 effected, the distinction between the two systems must 
 still, for many purposes, be regarded. So long, at least, as 
 the terms "law" and "equity" are contrasted by exa- 
 miners, the student must continue to contemplate them as 
 distinct. And further than that, notwithstanding their 
 present concurrent ad?ninistration, the distinction remains 
 substantial and real. The differences between legal and 
 equitable estates and interests and principles continue to 
 exist, and to produce most important results ; so that if we 
 were to cease to indicate the contrast by the terms " legal " 
 and " equitable," we should have to invent others for the- 
 purpose (c). 
 
 Accordingly it has repeatedly been found necessary for 
 the purposes of classification to refer separately to the 
 treatment of questions by law and by equity, and in 
 other respects to contrast the two systems. It would 
 
 (c) See Jo^sepJi v. iycms, 15 Q. B. D. 280; 54 L. J. Q. B. 1.
 
 DIVISION OF THE SUBJECT. 6 
 
 have been tedious in every such case to remind the student 
 of the provisions of the Judicature Acts: it suffices 
 once for all to call attention most emphatically to the 
 change. 
 
 It is perhaps impossible in dealing with such a subject Cross- 
 
 •i 1 ■ 1 T • • mi • • 1 r> divisions 
 
 as equity to avoid cross-di visions. The principle oi trusts, unavoidable, 
 for instance, reaches to almost all parts of the jurisdiction. 
 The whole subject of mortgages might be treated as one 
 sub-division of it; the remedies for fraud largely operate 
 through its application; the law respecting married women 
 and infants continually makes reference to it; and yet it 
 would be obviously absurd in writing of equity not to 
 treat such matters as mortgages and the separate estate of 
 married women under distinct titles. A mutually exclu- 
 sive classification of the subject-matter of equity must not, 
 then, be expected. The best that can be done is to lay hold 
 of the leading distinctions between the various branches of 
 the jurisprudence, and in the separate investigation of 
 each clearly to indicate their relation one to another. 
 
 Story has sub-divided his heading of concurrent juris- Distinction 
 diction into two branches, the one where the subject-matter jurisdiction 
 constitutes the principal ground of the jurisdiction; the jifference^f 
 other where the peculiar remedies administered in equity suhstantive 
 
 principle, and 
 
 constitute the principal ground of jurisdiction (d). Under jurisdiction 
 the changed circumstances above referred to, which have pecvdiar 
 made all equitable jurisdiction concurrent, this now com- remedies, 
 mends itself as an apt and expressive division of the whole 
 subject. It will be obseiwed that it coincides with Ben- 
 tham's famous distinction between substantive and adjec- 
 tive law. Though it will often, and indeed generally, be 
 seen that the distinctive principles and the distinctive 
 remedies of equity have acted in combination in establish- 
 ing the various branches of its jurisdiction, yet the con- 
 
 (d) See Story's Eq. Jur. preface, and s. 77.
 
 6 INTRODUCTION. 
 
 trast between those matters in which the substantive 
 doctrines of equity form the most conspicuous feature, 
 and those in which the peculiarities of its procedure are 
 most prominent, is sufficiently marked to form the ground- 
 work of a scientific classification of the whole jurispru- 
 dence. 
 Adopted. Adopting this as our main division, the work naturally 
 
 divides itself into two parts. Part I. will comprise those 
 subjects respecting which the jurisdiction of equity origi- 
 nated in, or chiefly rests on, a substantive difference 
 between its principles and those of the ancient common 
 law. Part II. will comprise those branches of the juris- 
 diction which have arisen chiefly from the peculiarities of 
 its procedure or remedies.
 
 PART I. 
 
 WHERE THE JURISDICTION RESTS ON THE DISTINCT 
 SUBSTANTIVE PRINCIPLES OF EQUITY. 
 
 INTRODUCTION. 
 
 I. Meaning of the word " Equity.'' 
 II. Distinction between Equity and Law. 
 III. Analysis of the Maxims of Equity. 
 
 I. Meaning of the word " Equity." 
 
 To glance for a moment at the first principles of juris- Justice, 
 prudence, justice, as we learn from the Institutes of 
 Justinian, consists in the rendering to every man of his 
 rights (a). 
 
 In this large sense we find the word "equity" em- Equity: 
 ployed, for example, in the Bible, as equivalent to justice, its popular 
 and opposed to " i?ziquity." It is, 6£ course, only in a 
 much narrower sense that the term, juristically applied in 
 modern times to designate the principles which guide the 
 Court of Chancery, must be understood. The layman, 
 when he speaks o| a decision or a transaction as inequit- 
 able, probably means in most cases that though there may 
 be no legal remedy open to him, he feels that before some 
 
 («) " Justitia est canstans et however, this is a definition of 
 perpetua voluntas jus suum cidqiie the moral feeling or quality of 
 tribiiendi" (Inst. I. 1). In form, the just man.
 
 DISTINCTION BETWEEN EQUITY AND LAW. 
 
 higher and more perfect tribunal he would be held 
 entitled to relief. 
 
 Popular language, therefore, generally a safe guide, 
 exhibits the conception of equity as the helpmeet or com- 
 plement of law ; and also as the expression of higher and 
 Trior c perfect principles of justice. And this is, un- 
 doubtedly, the first aspect of the features of equity to 
 which the student's attention should be directed. 
 
 II. Distinction hetiveen Equity and Law. 
 
 This familiar aspect of what may be called the more 
 sympathetic administration of justice, of the principles, 
 that is to say, which are invoked to mollify or to modify, 
 in view of exceptional circumstances, the hard and fast 
 rules of law, may be illustrated from the occasional infrac- 
 tions and relaxations to which all human ordinances must 
 be liable. Law commands that the schoolboy shall learn 
 so many verses for his evening task; equity, satisfied that 
 he has a head-ache, excuses him half of them. The two 
 principles, it is true, might be, and indeed often are, 
 explicitly provided for in one code, but none the less is 
 there an essential difference between them; the latter 
 dealing rather with the exceptional and the abnormal, and 
 being less capable of exact definition, because it is ever 
 adapting itself to the various devices and the various needs 
 of human nature; the former, absolute, sweeping, not con- 
 templating exceptions or relaxations which are not " in 
 the bond," and from its nature, even where it is not 
 already set down in the enactments of the legislature, 
 more susceptible of definition in black and white. 
 The growth History seems to indicate that the natural course in the 
 
 eqm y. establishment of a juridical system is to begin with rigid 
 and comprehensive rules, and to leave the correction of the 
 occasional anomalies or hardships to be separately dealt
 
 DISTINCTION BETWEEN EQUITY AND LAW. 9 
 
 •with afterwards; and although the two administrative 
 systems employed will in their maturer development tend, 
 the one to overtake, and ultimately to coincide with the 
 other, yet the difference between the principles we are 
 •considering is quite unaffected by the fact that the more 
 settled doctrines of equity are continually crystallizing 
 into the form of written or unwritten law. 
 
 A distinction precisely analogous to that which we Jus naiuraie. 
 ■observe in our own legal system presents itself in the 
 Roman jurisprudence, upon which so much of our own is 
 founded; between law, that is, as embodied in the Twelve 
 Tables, the Pleblscita, and the Senatus-consuUa, and the 
 principles which guided the more elastic administration of 
 the proetorian tribunal. These latter were elaborated and 
 •applied according to Papinian " adjuvandi vel siipplendi, 
 vel corrigcndi juris civilis gratia" (b); and the '^ jus 
 gentium " which the Pros tor claimed to administer, and in 
 •accordance with which his edicts were framed, was, as Sir 
 Henry Maine has explained, but a peculiar aspect of the 
 jus naiuraie, — the law of nature and reason, to which all 
 men appeal from the technicalities and imperfections of 
 -conventional systems. And as a matter of history there 
 is no doubt that a similar spirit actuated our earlier chan- 
 •cellors in the establishment of the principal branches of 
 English equitable jurisprudence. We find them referring 
 to the writings of Moses and the prophets in just the same 
 spirit, and for just the same purpose, as the praetors re- 
 ferred to the Stoic philosophers of Greece (c). 
 
 The next question will naturally be, how far and to 
 ■what extent equity is to be regarded as supplementing 
 the defects and correcting the imperfections of law; and 
 this requires a more detailed answer. 
 
 In the first place, it is obvious that neither equity by The limits of 
 itself, nor law (distinctively so called) by itself, nor even ®l^*y- 
 
 (b) Dig. I. 1, 7. ment in The Earl of Oxford's 
 
 Case, 1 Ch. Rep. 1; 1 W. & T. 
 
 (c) See Lord Ellesmere's judg- L. C. 730, ed. 7.
 
 10 
 
 PISTINCTION BETWEEN EQUITY AND LAW. • 
 
 both together, can make any pretence of covering the 
 whole sphere of that ideal justice which could only be 
 treated as a branch of morals. They are necessarily con- 
 fined in their working to certain very intelligible limits. 
 
 On the one hand, there will always exist injuries and 
 details of right and wrong, which are too insignificant to 
 be noticeable: " De mmimis non curat lex." In other 
 cases, for reasons of public policy, the most conscientious 
 administrator of justice must decline, for example, to 
 afford to an injured party a remedy which he has been 
 slow to demand, for a wrong which he has for a long time 
 regarded with apparent indifference: " Vigilantibus non 
 dormientibiis cequitas subvenit." And other limitations 
 of a similar kind will occur, in the course of his reading, 
 to the reflective student. 
 
 But within the sphere of practical jurisprudence, the 
 administration of justice outside which is left to the 
 influences of religion, morality, and self-interest, the 
 whole ground is covered by, though by no means exactly 
 apportioned between, the comparatively rigid principles of 
 law and the more elastic principles of equity. 
 
 What is meant by the application to the latter prin- 
 ciples of such epithets as " elastic " and " conscientious," 
 and what is the practical effect of the distinctions between 
 law and equity, will best be shown by a review of what 
 are called " The Maxims of Equity." 
 
 III. Analysis df " The Maxims of Equity." 
 
 The scope of It is necessary to premise that these do not, any more 
 the maxims. , , i i • • i i 
 
 than more popular aphorisms, express in each and every 
 
 case an exhaustive statement of some independent truth. 
 
 On the contrary, like proverbs, the bearing of them lies to 
 
 a great extent in their application, and to apply them
 
 THE MAXIMS OF EQUITY. 11 
 
 unskilfully would be to deduce absurd and incongruous 
 results. 
 
 Their relative importance, again, is by no means equal, 
 and the ground which they respectively cover differs both 
 in nature and extent. Without some premonitory warn- 
 ing of this kind, the student might be startled to find the 
 plain meaning of certain maxims absolutely contradicted 
 in practice; an anomaly which he may think has been 
 slurred over or ignored in a text-book which presents them 
 as an irregular codification of equitable jurisprudence, and 
 not as a collection of rough definitions of interdependent 
 doctrines. An obvious illustration of this is furnished by 
 an aphorism which will in its place be more fully discussed 
 — '' cEquitas sequifur legem,'' "equity follows the law." 
 Now if equity always followed the law, no separate con- 
 sideration of the two subjects would be necessary; whereas, 
 in fact, the conflicting nature of the two principles is 
 expressly recognized in the section of the Judicature Act 
 already quoted. Accordingly wo frequently find ex- 
 amples given under this heading of cases in which equity 
 distinctly overrides the law. But it is clear that the chief 
 use of the maxim is to anticipate a hasty generalisation 
 on the part of the student to the effect that equity 
 wantonly disregards the provisions of the common and 
 statute law. While presenting, therefore, to his view a 
 collection of the most celebrated dogmas in which the 
 judicial wisdom of past generations has sought to 
 emphasize the distinctive characteristics of a peculiar 
 jurisprudence, it has been thought advisable briefly to 
 estimate in a separate paragraph their relative weight and 
 practical limitations. The student will observe that in 
 the following analysis each maxim is referred to by the 
 number assigned to it in the following list: — 
 
 The Maxims of Equity. 
 
 (1.) Equity will not suffer wrong to go without 
 remedy.
 
 12 
 
 THE MAXIMS OF EQUITY. 
 
 The 
 
 application of 
 
 maxims 
 
 illustrated. 
 
 (2. 
 (3. 
 
 (4. 
 
 (5. 
 (6. 
 
 (7. 
 
 (8. 
 
 (9. 
 
 (10, 
 
 (11, 
 (12 
 
 Equity follows the law. 
 
 When equities are equal, the first in time prevails. 
 
 Where equities are equal, law prevails. 
 
 He who seeks equity must do equity. 
 
 He who comes to equity must come with clean 
 
 hands. 
 Delay defeats equities. 
 Equality is equity. 
 
 Equity regards the intent, not the form. • 
 Equity looks on that as done which ought to have 
 
 been done. 
 Equity imputes the intention to fulfil obligations. 
 Equity acts in personam. 
 
 These maxims may be considered in relation to the 
 division which has been adopted of the whole subject, that 
 is to say, as indicating — 
 
 1. The principles, or the theory, of equitable juris- 
 
 prudence. 
 
 2. The peculiarities of equitable remedies and proce- 
 
 dure. 
 
 1. Equity, as we have seen, administers justice from a 
 higher point of view than law (distinctly so called) and 
 declines to be fettered or misled by technicalities. Thus 
 where a legal transaction which in form amounts to an 
 absolute transfer of property, is in spirit and intention a 
 mere pledge to secure a loan, equity will say so, and give 
 effect to the intention (9), simply because a legal right is 
 here, from the higher point of view, a wrong which equity 
 cannot tolerate (1) {d). 
 
 Or again, if a bond made between two parties specifies a 
 certain sum of money to be paid by either upon breach of 
 the contract, a Court of equity, if satisfied that the sum 
 named ought to he regarded as penal, that is, as a deterrent 
 
 (d) See p. 266, Equity of Redemption.
 
 THE MAXIMS OF EQUITY. 
 
 from the breach of the contract, rather than as a reason- 
 able measure of the loss which such breach would entail, 
 will (9) grant relief against the exaction of what is in 
 truth a penalty, although in the bond it may have been 
 described as liquidated damages (e). On a precisely con- 
 verse principle, where there is evidence of an intention to 
 do something, which has, however, not been legally done, 
 equity (10) will ignore the latter fact, or, rather, will 
 assume the contrary. Thus landed property which is by 
 a testator's will directed to be sold, appears to the eyes 
 of equity in the form of personalty, and is treated as 
 such (/). 
 
 Of this kind of hypothetical jurisdiction we have other 
 examples, A recognized procedure exists for the appoint- 
 ment of the official known as a trustee. But a Court of 
 equity, on having its attention drawn to an individual, 
 who, as having perhaps in a questionable manner become 
 possessed in law of certain property, or as standing in a 
 certain relation to other individuals, ought morally to 
 incur the responsibilities of a trustee, will proceed at once 
 to act on the supposition (10 and 11), and to compel him, 
 in spite of his legally unimpeachable title, to perform the 
 duties which he should have voluntarily undertaken (g). 
 
 Again, in the case of a person who is under an obligation 
 to confer certain property on others — who has, for 
 instance, covenanted to settle lands — and who has acquired 
 but has not transferred property of the specified kind, 
 equity will, by a pleasing fiction (11), regard the property 
 as acquired with a view to the fulfilment of the obliga- 
 tion (h). 
 
 In all these cases it is idle to deny that the principles of 
 equity confiict with and override the plain meaning of the 
 law. But the reason is in each case apparent, and experi- 
 
 (e) See p. 252, Relief against (g) See p. 507, Constructive 
 
 Penalties. Trusts. 
 
 (A) See pp. 76 and 549, Re- 
 (/) See p. 507, Conversion. suiting Trusts, Performance. 
 
 u
 
 14 . THE MAXIMS OF EQUITY. 
 
 ence alone can guide the student in deciding what legal or 
 quasi-legal wrongs can be redressed by a Court of equity. 
 He must not infer that the two systems are eternally at 
 variance (2). If equity, for instance, is said to delight in 
 equality (8), equal distribution of property is also the aim 
 of many of the provisions of law; e.g., those which govern 
 the distribution of the residuary personal estate of an 
 intestate ; and on the other hand equity has never ventured 
 to interfere with the custom of primogeniture. But there 
 are cases where at law the survivor of several joint pur- 
 chasers of certain property is held, on a somewhat 
 arbitrary principle, entitled to the whole. Here equity, 
 laying hold of the slightest evidence of a contrary inten- 
 tion, will say — No, let him be a trustee for the represen- 
 tatives of his co-purchasers, of their shares (i) . Thus 
 equity is said not to favour what is called the doctrine of 
 joint-tenancy (fc); but it can only interfere here, as else- 
 where, upon special grounds (2). 
 
 Again, cases arise when apparently both parties can 
 make out an adequate case for the interposition of equity ; 
 and since in such cases the interposition would often be 
 nugatory, the conflicting equities are allowed to cancel out, 
 and the operation of law is undisturbed (4) {I). It is on 
 much the same principle that the assistance of a Court of 
 equity is refused to a plaintiff whose own conduct in the 
 particular transaction has not been equitable (6). If, for 
 example, an infant by fraudulently concealing his age has 
 induced his trustee to commit a breach of trust, the infant 
 is clearly not the person to complain. If one party has 
 been injured, the other has been deceived (m). 
 
 And not only must the plaintiff have abstained from 
 fraud or dishonesty, he must also be prepared to do what 
 is equitable (5) , Thus, when a husband found it necessary 
 
 (0 See p. 89, Joint Purchasers. Hunt, 3 De G. & J. 563; Sturge 
 
 /■T\ Gt. ' T7 T Tnrc V. Starr, 2 My. & K. 195. 
 
 W Story s Eq. Jur. 1066. ^^^^^ g^^ pf ^93^ 0^,^^.^^,^ ^_ 
 
 (0 See p. 142, ThormUke v. Banmster, 3 Ha. 503.
 
 • THE MAXIMS OF EQUITY. 15 
 
 to apply to a Court o'f equity in order to obtain possession 
 of the equitable estate of his wife, he was only aided upon 
 the condition that he made a fair settlement of the pro- 
 perty upon his wife and children (n). 
 
 It has already been said, that when the conflicting inte- 
 rests of two or more parties are supported by equitable 
 pleas of equal value, and (it may be added) when these are 
 asserted with equal promptitude, equity, being unable to 
 prefer one to the other, will leave law to take its course (4). 
 But should this not be the case, then cceteris paribus, 
 i.e., there being no other distinction between the rival 
 claimants for equity to lay hold of, the first in time will 
 be favoured (3). And even where there are no rival 
 ^' equities," the party who has, as it is called, " slept upon 
 his rights," applies to the Court under great disadvan- 
 tage (7); for from such indifference and delay an infer- 
 ence will naturally be drawn most damaging to the 
 ■equitable case of the complainant. Particularly is this 
 the case where the subject-matter in dispute is of a 
 fluctuating value (o) . 
 
 A general example of the conflict of equity with law on 
 the above general principles, as exhibited in a branch of 
 the jurisdiction now abolished, may be found in The Earl Earl of 
 
 X r\ -c T n / \ Oxford'' s case. 
 
 ■of Oxfords Case{p). ■' 
 
 In this case a bill was filed in equity in respect of a Restraint of 
 matter which had been already tried at law; and after the at°iaw ^°^^ 
 filing of the bill judgment was entered at law. The 
 -defendants demurred, relying mainly on the judgment as 
 fcarring the relief in Chancery; but it was overruled by 
 Lord Chancellor EUesmere, who said that there was no 
 ■Opposition to the judgment, nor ivould the truth or justice 
 
 (w) See p. 435, Equity to a by Lord Lindley, M. R., in J?ocAe- 
 
 . Settlement. foucauld v. Boustead, (1897) 1 
 
 (o) See pp. 97, 98; and Lord Ch. 196, 210; 66 L. J. Ch. 74; 
 
 Blackburn's exposition of this Brooks v. Muckleston, (1909) 2 
 
 maxim in Erlanger \.Neiv Sorn- Ch. 519; 79 L. J. Ch. 12. 
 
 ■ brero PhospMte Co., 3 App. Cas. (?;) 1 Ch. Rep. 1; 1 W. & T. 
 
 1218, 1279, quoted and expanded L. C. 730, ed. 7.
 
 16 
 
 THE MAXIMS OF EQUITY. 
 
 of the judgment he examined, hut yet the chancellor 
 might, ivhere a judgment was ohtained hy oppression, 
 wrong, or a hard conscience, restrain the person in ivhose 
 favour it was issued from- proceeding upon it. 
 
 We have here an illustration also of the sense in which 
 equity is said to act more particularly upon the conscience 
 of the individual, to deal with him as a reasoning moral 
 agent, and not as a passive subject whose position and 
 whose rights are arbitrarily determined by categorical 
 rules of law (12). And this aspect of the administration 
 brings us naturally to the consideration of 
 
 Decrees 
 of equity in 
 
 personam. 
 
 Penn v. Lord 
 Baltimore. 
 
 2. The peculiarities of the procedure and remedies of 
 equity. 
 
 The decrees of a Court of equity are to be regarded, not 
 so much as decisions affecting the property or rights in 
 dispute, as in the light of directions or commands posi- 
 tive (q) or negative (r), addressed to the individual party 
 or parties. It is seldom in the power of a Court literally 
 to compel the performance by a recalcitrant party of a 
 specified physical act. Its decrees are consequently said 
 to be and in fact are only enforceable hy means of attach- 
 Tnent and arrest, the power of committal being often 
 termed the keystone of equitable jurisdiction. 
 
 A leading authority upon this point is the case of Penn 
 V. Lord Baltimore (s). 
 
 The bill {t) in this case sought specific performance of 
 an agreement entered into between the plaintiffs and the 
 defendant for settling the boundaries of land in America 
 (then a British colony), by drawing lines in a particular 
 manner specified. 
 
 Lord Hardwicke, after an elaborate judgment, decreed 
 that the relief sought might be granted, on the ground that 
 
 (_q) See p. 681, Specific Per- 
 formance. 
 
 (r) See p. 734, Injunctions. 
 
 (s) 1 Ves. sen. 444; 1 W. & 
 T. L. C. 755, ed. 7. 
 
 (0 The "Bill of Complaint" 
 was, under the practice of the old 
 Court of Chancery, the first step 
 in an Equity suit.
 
 THE MAXIMS OF EQUITY. 17 
 
 thoug-h the agreement could not be enforced in rem, the 
 strict primary decree in that Court was in personam ; and 
 the defendant being in England it could be enforced by 
 process of contempt in personam and sequestration, which 
 was the proper jurisdiction of the Court. But the Court 
 refused to decree quiet enjoyment of the lands, application 
 for that purpose being proper only to Courts having juris- 
 diction over the land itself. 
 
 The great number of cases in which the principle here 
 explained and established has been applied show that it 
 is immaterial where the land or property concerned 
 is situated, whether in England, or the colonies, or 
 some foreign country. The only essential requirement 
 is that the party to whom the decree will be addressed 
 should be within the jurisdiction, and so subject to the 
 process of the Court. 
 
 On the other hand, it must be remembered that though The limits of 
 the power of the Court is not restrained by the absence in 
 the lex situs of such an equity as is sought, the jurisdiction 
 cannot be exercised where it is absolutely excluded thereby. 
 " If the lex situs excludes such equity, then the right to 
 " hold the land free from it becomes one of the incidents 
 " of property " (u) . Nor will the Court entertain an action 
 where the title to foreign land is in dispute, and its decision 
 would involve adjudication on points of foreign law (a?). 
 Moreover, when the land in question is out of the juris- 
 diction no decree will be pronounced which purports 
 directly to affect them. Thus, a partition of land in 
 Ireland will not be decreed in England, simply because no 
 power could be given to commissioners to go there and 
 take the steps necessary for carrying out the decree (y) . 
 This, however, is totally distinct from such a case as PeTixn 
 
 (m) Westlake's Private Inter. South Africa Co., (1893) A. C. 
 
 Law, 64, 65. 602; 63 L. J. Q. B. 70. 
 
 (x) Graham v. Massey, 23 Ch. 
 
 D. 743; 52 L. J. Ch. 750; Com- (ij) Carteret v. Pettus, 2 Ch. 
 
 panhia de Mocambique v. British Ca. 214; 2 Swanst. 323, n. 
 
 s. 2
 
 Parti. 
 
 18 CONTENTS OF PART I. 
 
 V. Lord Balthnore, in which the decree dealt expressly 
 with the agreement of the parties, and was directed 
 immediately in personam {z) . 
 
 For our present j^urpose we think this analysis of the 
 maxims affords a sufficient illustration of the substantive 
 and administrative distinctions between equity and law to 
 enable the student to appreciate the classification of those 
 matters especially allocated to Courts of equity by the 
 Contents of Judicature Acts, as above mentioned. It directs us to the 
 following subjects as falling under the first division of our 
 work; that is to say, as falling within the jurisdiction of 
 equity chiefly on the ground of its distinctive substantive 
 principles. 
 
 1. Trusts. 
 
 2. Fraud. 
 
 3 . Equitable relief against the consequences of Accident 
 and Mistake. 
 
 4. Relief against Penalties and Forfeitures. 
 
 5. Mortgages and Liens. 
 
 6. Suretyship. 
 
 7. Modifications of the Law as regards Married 
 Women's Property. 
 
 8. The Guardianship of Lifants. 
 
 9. The peculiar doctrines of Election, Conversion, 
 Satisfaction, and Performance. 
 
 (c) Whitwham v. Piercy, (1895) 1 Ch. 83; 64 L. J. Ch. 249.
 
 19 
 
 CHAPTEE I. 
 
 TRUSTS. 
 
 Section I. — General View. 
 
 I. Historical Outline. 
 II. What may he the Subject of a Trust. 
 
 III. Who muy he a Trustee. 
 
 IV. Who may he a Cestui que Trust. 
 
 Charities. 
 V. Classification of Trusts. 
 
 I. Historical Outline. 
 
 1 . Students of Roman law are familiar with the device Fidei-commissa 
 which was resorted to in the later days of the Republic for j^^^ 
 enabling testators to dispose of their property in favour of 
 persons who were unable to take it directly by way of 
 inheritance or legacy. Where the civil law threw any 
 impediment in the way of such a disposition as was 
 desired, the practice arose of bequeathing the property 
 to someone who could legally take it, in reliance on, or 
 trusting to, his good faith, to carry out the donor's inten- 
 tion with respect to it. Such gifts were known as fidei- 
 commissa. At first, the only security for their proper 
 execution was the honour of the person so entrusted; but 
 in the reign of Augustus, though no legal action could be 
 brought for their enforcement, jurisdiction was conferred 
 upon a special prsetor to take cognizance thereof, and to 
 carry them into execution. From that time the operation 
 of fidei-commissa revolutionised the testamentary law 
 
 2(2)
 
 20 
 
 TRUSTS : GENERAL VIEW. 
 
 Common law 
 restrictions on 
 the alienation 
 of land. 
 
 Mortmain. 
 
 Intioduction 
 and nature of 
 uses, 
 
 at first 
 dependent on 
 good faith. 
 
 of the State, and prepared the way for its later develop- 
 ment in directions little thought of at the time of their 
 introduction. 
 
 2. The history of English law presents to us a very 
 similar chapter. The common law imposed upon the con- 
 veyance and devising of landed property many restrictions, 
 which the possessors thereof continually exercised their 
 ingenuity to escape . Absolute ownership in land the law 
 has never recognised. Whoever was in immediate enjoy- 
 ment of it could claim only an interest of greater or less 
 extent and duration, subject to the rights of a superior 
 lord, or at any rate of the Crown, as chief and paramount 
 lord of all the soil of the country. It is plain that in many 
 circumstances the power of free disposal of these interests 
 might greatly interfere with such rights, especially with 
 the ultimate right of receiving back the land itself. 
 Particularly was this the case where land was transferred 
 or assigned to a corporate body, such as an ecclesiastical 
 order, or a bishopric, which subsisted perpetually, so 
 that such land could never again revert as vacant or 
 undisposed of to the superior lord. Accordingly, by the 
 Statutes of Mortmain, lands were prohibited from being 
 given for religious purposes (a) . 
 
 3. It was with a view to elude such restrictions that 
 trusts, or as they were anciently called, uses, were intro- 
 duced in England. The device was that the transferor, 
 while retaining the legal estate, or conveying it as the law 
 allowed, should declare the use of the estate to some third 
 person, affixing on the conscience of the legal owner the 
 duty of carrying into effect such declared intention. By 
 this means it was sought to transfer the beneficial interest 
 in a manner which the law would not sanction, or to per- 
 sons or corporations whom the law would have forbidden 
 to receive it. 
 
 4. As in the case of the fidei-cffmmissa of Roman law. 
 these uses or trusts were originally dependent for their 
 
 (rt) But see now 51 & 52 Vict. c. 42.
 
 HISTORICAL OUTLINE. 21 
 
 execution entirely upon the good faith or honour of the 
 legal owner or trustee. But in the reign of Richard II., 
 John Waltham, Bishop of Salisbury, who was then Lord 
 Keeper, devised the writ of subpoena, by which a refractory Writ of 
 trustee might be summoned before the Court of Chancery, ■'"^P"'"<^- 
 there to answer on oath the charges of the beneficiary or 
 cestui que use. This Court, claiming a special jurisdiction 
 in matters of conscience, enforced the execution of the use 
 or trust, though without affecting to interfere with the 
 ownership at common law. 
 
 The addition of this security for the enforcement of uses Extension of 
 soon led to their extensive employment. Though arising trusts. 
 from the restrictions on the assignment of freehold land, 
 their principle was evidently applicable to other kinds of 
 property, and trusts of real and personal chattels came into 
 common use. Trusts came also to be employed for other 
 purposes than the beneficial transfer of property. It was 
 often convenient to give an interest to a trustee for the 
 performance of some specific duty, such as to convey in a 
 given manner, or to sell for payment of debts, &c. More 
 important still was the application of the doctrine by 
 which landowners obtained the power of devising their 
 estates by will. 
 
 5. So extensive were the inroads thus made on the Statutory 
 
 intGriGrGiicGS 
 
 policy of the law, especially as to the legal incidents of therewith, 
 tenure and the rights of creditors and purchasers, that 
 uses and trusts soon became the subjects of statutory inter- 
 ference (b) . It is not, however, now necessary to do more 
 than refer to matters so completely obsolete. 
 
 At length it was determined to abolish the application 
 of uses to freehold land entirely, and with that intent the 
 Statute of Uses (c) enacted that where any person stood Statute of 
 
 Uses 27 
 
 seised of am/ hereditmnents to the use, confidence, or trust Hen.'vill. 
 of any other person, or of any body politic, such person ^* ^^' 
 
 (6) 1 Rich. III. c. 1; 19 Hen. (c) 27 Hen. VIII. c. 10. 
 VII, c. 15; 26 Hen. VIII. c. 13.
 
 22 
 
 TRUSTS : GENERAL VIEW. 
 
 To what uses 
 it referred. 
 
 Not to 
 
 personalty, 
 
 copyholfis, 
 
 or special 
 uses. 
 
 Effect of the 
 
 statute 
 
 destroyed. 
 
 or body politic as had any such use, confidence, or trust, 
 should be deemed in lawful seism of the hereditaments 
 in such like estates as they had in use, trust, or confidence. 
 The effect of this was at once to convert all uses, whether 
 expressed in words, or merely implied in equity, into legal 
 estates, and thus to bring them within the rules of law. 
 
 The technical meaning of the words employed, however, 
 prevented the statute from entirely subverting the doctrine 
 of trusts. The words "seised,'' ''seisin,'" and "heredita- 
 ments" being only applicable to freehold estates, the 
 statute was adjudged not to affect any trusts of personal 
 property or chattels, or even leasehold interests in land, or 
 copyholds. Seeing also that the statute referred only to 
 cases in which one person was "seised, &c., to the use of 
 any other person,"' it obviously could not affect special 
 uses, i.e., uses in Avhich the conveyance was to the trustee 
 for some limited or specific purposes, such as have been 
 mentioned. All trusts, therefore, in property other than 
 freehold, and all trusts in which the trustee was not a 
 mere passive owner of a legal estate the benefit of which 
 was secured to someone else, but had active duties to per- 
 form, remained as valid as before the statute. 
 
 6. This sweeping Act was, however, no sooner passed 
 than its effect Avas destroyed by the construction put 
 upon it by the judges of common law; and the old uses 
 in real property at once re-appeared under the modern 
 name of trusts. This came about as follows. If there was 
 a feoffment to A. and his heirs to the use of B. and his 
 heirs, then before the statute A. took a legal fee simple, 
 and B. was a cestui que use, who could only seek his reme- 
 dies in Chancery. After the statute the same limitation 
 would secure not only the use but also the legal estate to 
 B. The use would, in short, at once draw to itself the 
 legal estate. But the judges held that Avhere there was a 
 limitation to A. and his heirs to the use of B. and his heirs 
 to the use of (or in trust for) C. and his heirs, then the 
 statute had no effect bevond the use limited to B. It
 
 HISTORICAL OUTLINK. 23 
 
 converted the use first declared into a legal estate, but in 
 
 so doing its power was exhausted, and a second use or 
 
 trust, declared upon or after the first, remained unaffected 
 
 thereby («^). Such being the decision of the judges, the andconse- 
 
 Court of Chancery asserted the same authority over the appearance of 
 
 first cestui que use as it had previously exerted over the trusts. 
 
 primary feoffee, and enforced upon him the execution 
 
 of the second use or trust. Thus it has been said that the 
 
 whole effect of the Statute of Uses was to add four words, 
 
 "to the use of," to every conveyance of lands. 
 
 Trusts having been thus curiously revived, have con- 
 tinued down to the present day; and under the develop- 
 ment of the doctrines respecting them which took place 
 under the later chancellors — ^especially Lord Nottingham 
 — now constitute one of the most advantageous branches 
 of equitable jurisdiction. 
 
 7. It is not necessary to add to this brief sketch a history 
 of the various steps by which trusts have attained their 
 present jDOsition in our jurisprudence. Sufficient has been Definition of 
 said to indicate the nature of a trust, and to render a more 
 formal definition intelligible. A trust has been defined as 
 a beneficial interest in, or ownership of, real or personal 
 property, unattended with the possessory or legal owner- 
 ship thereof (e) . But this is rather a definition of an equit- 
 able estate than of a trust, and it omits to take account 
 of special trusts, such as have been already referred to, in 
 which the object of the trust is the performance of some 
 particular duty rather than the vesting of the beneficial 
 ownership in some person other than the legal owner. A 
 trust is a duty deemed in equity to rest on the cojiscience 
 of a legal owner. This duty may be either passive, such 
 as to alloiv the beneficial oumership to be enjoyed by some 
 other person, 7iamed the cestui que trust, in which case the 
 legal oicner is styled a bare trustee ; or it may be some 
 
 (d) Tyrrell's Case, Tudor^s (e) 2 Spence, 875. 
 
 L. C. 33J.
 
 24 
 
 TRUSTS : GENERAL VIEW. 
 
 active duty, such as to sell, to manage or to administer 
 for the benefit of some other person or persons; such, 
 for example, are the duties of a trustee in bankruptcy. 
 
 Generally any 
 property may 
 be subject of 
 a trust. 
 
 Land of any 
 tenure. 
 
 Colonial and 
 foreign laud 
 only si(b modo. 
 
 Personal 
 property. 
 
 II, What Property may be the Subject of a Trust. 
 
 As a general rule property of any kind, real or 
 personal, may be made the subject of a trust. 
 
 We have seen that trusts arose chiefly in connexion with 
 freehold estates. They are equally applicable to copy- 
 holds, or to lands subject to any special customs, such as 
 gavelkind or borough-English. In such cases equity as 
 usual follows the law in its treatment thereof; thus equit- 
 able estates will be guided by the same rules, as to descent 
 for instance, as legal estates in the same land. 
 
 Courts of equity will also, as seen in Pen7i v. Lord 
 Baltimore {sup. p. 16), enforce natural equities in and 
 contracts respecting colonial or foreign land, provided the 
 parties be within the jurisdiction and the case admits of a 
 remedy by action in personam (/) . But trusts, strictly so 
 called — that is, trusts of the nature of the ancient uses — 
 cannot, it would seem, be engrafted upon foreign real 
 estate, the tenure of which may have no harmony with 
 the principles of English law {g). 
 
 Trusts are applicable to leaseholds, personal chattels, 
 choses in action, and every description of personal property ; 
 and on the principle that mobilia sequuntur personam, as 
 long as the party is domiciled within the jurisdiction of 
 the Court it matters not where the property in question 
 is situate. The only limit is that in the case of property 
 lying beyond the reach of the Court the practical obstruc- 
 tions in the way of executing the trust may be sometimes 
 a bar to relief. 
 
 (/) Non-is V. CJmmbres, 3 De 
 G. F. & J. 584; WhiUcJmm v. 
 Piercy, (1895) 1 Ch. 83; 64 L. J. 
 
 Ch. 249. 
 
 {g) Lewin, 10th ed., p. 49.
 
 WHO MAY RE A TRUSTEE. 25 
 
 III. Who may be a Trustee. 
 
 Any person capable of taking and holding the property Proper quali- 
 of 'which the trust is declared, and competent to deal there- trustee. 
 Avith, may be a trustee. For reasons of obvious con- 
 venience persons selected as trustees should be within the 
 reach of the arm of the Court, or, in other words, domiciled 
 within its jurisdiction. This condition, however, does 
 not prevent the appointment, in special circumstances, of 
 persons outside the jurisdiction, as trustees (/i) . 
 
 (1.) The sovereign may sustain the character of a Sovereign, 
 trustee, so far as regards the capacity to take the estate 
 and to execute the trust. It is not clear, however, by 
 what machinery a trust so vested could be enforced. 
 Probably the only procedure for such a purpose would 
 be a petition of right (i) . 
 
 (12.) A corporation may now be a trustee, since the Corporation, 
 ancient doctrine that trusts rested on the foundation of 
 personal confidence has evaporated. There is ample juris- 
 diction in the Courts to enforce the performance of its 
 ■duty by such a trustee (k) . By the Municipal Corpora- 
 tions Act, 1882 (l), it is expressly provided that bodies 
 corporate of boroughs may, in certain cases, be treated for 
 all intents and purposes as trustees. A corporate body 
 may hold property in joint tenancy, subject to the usual 
 conditions, and on its dissolution the property devolves on 
 the other joint tenant (m). A limited company may be 
 a trustee and hold the trust property jointly Avith an 
 individual as co-trustee (n) . 
 
 (3.) A married woman is legally capable of being a A mamed 
 trustee; but notwithstanding that by the Married 
 
 (h) He Simpson, (1897) 1 Cli. (k) Att.-Gen. v. St. John's 
 
 256; 66 L. J. Ch. 166, where the Hasp., 2 De G. J. & S. 621. 
 
 trustees were appointed for the (I) 45 & 46 Vict. c. 50. 
 
 purposes of the Settled Land Act, {m) 62 & 63 Vict. c. 20. 
 
 1882. («) Re Thompson's Sett. Trusts, 
 
 Thompson v. Alexander, (1905) 
 
 (0 Lewin, 10th ed., p. 30. 2 Ch. 229; 74 L. J. Ch. 133.
 
 26 
 
 TRUSTS : GENERAL VIEW. 
 
 An infant. 
 
 An alien. 
 
 Bankrupts. 
 
 Women's Property Act of 1882, ss. 18, 24, a husband is 
 no longer liable, in cases falling within the Act, for a 
 breach of trust committed by his wife, and that the im- 
 pediments in the way of her execution of legal assurances 
 have been to a great extent removed (o), nevertheless, con- 
 sidering the general amenability of a married woman to 
 the influence of her husband, there remains sufficient 
 ground for considering such an apjoointment as a rule 
 undesirable (p). And this being so, it is not generally 
 advisable to make an unmarried woman a trustee, since, if 
 she should marry, the above disadvantages would at once 
 arise {q), and the Court f)nly makes such appointments 
 when there are special reasons (r) . 
 
 (4.) An infant is under still greater disabilities, having 
 no legal capacity or discretion. Any of his acts, beyond 
 such as were merely ministerial, would be void. He could 
 not be held guilty of a breach of trust. A case, there- 
 fore, is scarcely conceivable in which circumstances could 
 warrant such an appointment. 
 
 (5.) Formerly an alien, being disabled from holding 
 English freeholds or chattels real, could not be a trustee 
 of such. There was never, however, any legal objection to 
 his appointment as trustee of chattels personal; and since 
 the Naturalization Act, 1870 (s), an alien may hold pro- 
 perty of any description, and may accordingly be trustee 
 thereof. 
 
 (6.) Bankrupts are not absolutely disqualified from 
 being trustees, and a person's bankruptcj- has no operation 
 upon the trust estate vested in him. Bankruptcy is, how- 
 ever, a good ground for the removal of a trustee {t). 
 
 (o) But see Re Harkness and 
 Allsopp, (1896) 2 Ch. 358; 65 
 L. J. Ch. 726; Re Brooke and 
 FremUn's Contract, (1898) 1 Ch. 
 647; 67 L. J. Ch. 272; Re West 
 and Hnrdii's Contrnct, (1904) 1 
 Ch. 145; 73 L. J. Ch. 91; and 
 now 7 Edw. VII. c. 18; inf. 
 p. 457. 
 
 (j>) Driimmond v. Tracy, Johns. 
 
 608, 611; Re Berkley, 9 Ch. 720; 
 and see Bocwra v. Faith, 29 Ch. 
 D. 693; 54 L. J. Ch. 1121. 
 
 (^) See Re CamiybelVs Trusts, 
 31 Beav. 176. 
 
 (r) Re Peake's Settled Estates, 
 (1894) 3 Ch. 520; 63 L. J. Ch. 
 109. 
 
 (s) 33 Vict. c. 14. 
 
 (0 56 & 57 Vict. c. 53, s. 25;
 
 WHO MAY BE A CESTUI (^UE TRUST. 27 
 
 (7.) Lastly, it is a maxim that equity never ivants a Equity never 
 trustee ; and wherever by the declaration of a party or by trustee, 
 operation of law a trust exists, equity will follow the legal 
 estate, in whatever hands it may be (except those of a 
 purchaser for value without notice), and enforce the execu- 
 tion of the trust. The lapse of the legal estate has no 
 influence upon the trusts to which it is subject. If the 
 persons named as trustees fail, cither by death, or refusal 
 to act, or otherwise, the Court Avill provide a trustee; and 
 if no trustees are appointed at all, the Court itself assumes 
 the office, and will execute the trust. Moreover, by the 
 Judicial Trustees Act, 1896 {u), the Court is empowered, 
 at its discretion, to appoint its solicitor or other person to 
 be a judicial trustee either jointly with any other person 
 or as sole trustee, and, if sufficient cause is shown, in place 
 of all or any existing trustees; a power which it seems 
 applies to executors as well as trustees {x) . 
 
 IV. Who may be a Cestui que Trust. 
 
 As a general rule anyone who is capable of taking a Generally 
 legal interest in property may, through the medium of a can hold 
 trust, enjoy an equitable interest therein. But this is not legally. 
 all; for in certain cases persons may take an equitable 
 interest to whom a legal estate could not be similarly 
 limited . 
 
 1. Thus an equitable interest could always have been Married 
 conferred upon a married woman to her separate use, free separate 
 from the control or participation of her husband; whije estate. 
 until comparatively recently no property could be so 
 limited at law as to exclude the rights of her husband 
 during the coverture. 
 
 He Barker's Trust, 1 Cli. D. 43; («) 59 & 60 Vict. c. 35. 
 
 Be Adam's Trust, 12 ib. 634; B. (x) Re Ratcliff, (1898) 2 Ch. 
 
 A. 1883, s. 147. 352; 67 L. J. Ch. 562.
 
 28 
 
 TRUSTS : GENERAL VIEW. 
 
 The 
 sovereign. 
 
 Alien. 
 
 Corporation. 
 
 Charities. 
 
 2. A trust may be declared in favour of the sovereign, 
 without the restriction which formerly existed, that the 
 title of the property so limited should be matter of record. 
 
 3. An alien might always have been a cestui que trust 
 of personalty, and therefore, as it was held, of the proceeds 
 of land directed to be sold, which was in equity considered 
 as if it already were in the form of money. Before the 
 Naturalization Act, 1870 {y), a trust of realty might have 
 been declared in favour of an alien, and might have been 
 enforced by him against all save the Crown. The Crown, 
 however, might have secured the beneficial interest by 
 suit against the trustee. By that Act real property was, 
 as we have seen, placed in this respect on the same footing 
 as personalty. 
 
 4. A trust of lands cannot be limited to a corporation 
 save by licence from the Crown . There is no such restric- 
 tion on the enjoyment by a corporation of an equitable 
 interest in personalty. 
 
 5. A legal estate cannot be limited to the objects of a 
 charity, as to the poor of a parish in perpetual succession; 
 but in a Court of equity, where feudal rules do not apply, 
 the intention of the donor wall be carried into effect. 
 
 Charitable 
 trusts. 
 
 43 Eliz. c. 4. 
 
 What are 
 charitable 
 objects. 
 
 Charities. 
 
 Trusts in favour of Charities, called by some Express 
 Public Trusts, being in some respects peculiar, require a 
 separate consideration, for which this is a convenient place . 
 
 (1 . ) Whatever may have been the origin of the equitable 
 jurisdiction as to charities, it was by the statute 43 Eliz. 
 c. 4, that its limits and modus operandi were first clearly 
 established ; and it is to that statute that we must look for 
 a definition of what objects are included under the term 
 "charity" (z). In the preamble of this Act the follow- 
 ing objects are mentioned: "The relief of the aged (a), 
 
 (y) 33 Vict. c. 14. 
 (z) story, 1145, 1155. 
 
 («) Pomcroi/ V. Willway, 42 
 Ch. D. 510; 59 L. J. Ch. 172.
 
 CHARITABLE TRUSTS. 29 
 
 "impotent, and poor jjeople; the maintenance of sick and 
 
 "maimed soldiers and mariners; schools of learning, and 
 
 "scholars in universities; the repair of bridges, ports, 
 
 "havens, causeways, churches, sea banks, and highways; 
 
 " the education and preferment of orphans; the relief, 
 
 "stock, or maintenance of houses of correction; the mar- 
 
 " riages of poor maids; the supportation, aid, and help of 
 
 " young tradesmen, handicraftsmen, and persons decayed; 
 
 "the relief or redemption of prisoners or captives; the 
 
 " aid or ease of any poor inhabitants concerning payments 
 
 " of fifteens, setting out of soldiers, or other taxes." The 
 
 term " charity " in the sense in which it is used in Courts 
 
 of equity includes only such bequests as are within the 
 
 letter and spirit of this enumeration (6). The tendency 
 
 has been to give to these words a liberal interpretation, 
 
 and that being so, they will be seen to cover a very wide 
 
 range of objects. Thus, not only gifts in aid of poverty, 
 
 education and religion, but provisions for public beneficial 
 
 works, such as the improvement of towns, paying off the 
 
 national debt, the Hoyal Humane Society, a society for 
 
 the suppression of vivisection, &c., have been deemed 
 
 within the equity of the statute (c) . There are, however. What not so. 
 
 many cases in which relief has been refused on the 
 
 ground that the objects were not such as could be brought 
 
 under any of the terms employed. Thus no superstitious 
 
 uses, such as to pay for prayers for the dead (d), or the 
 
 maintenance of a lamp in a church or chapel (e), are within 
 
 (S) Morice v. Bp. of Durham, L. J. Ch. 761; Att.-Gen. v. 
 
 9 Ves. 399, 405; 10 ih. 522, 541; Lucas, (1905) 1 Ch. 68; 74 L. J. 
 
 Koidall V. Granger, 5 Beav. 300, Ch. 95; Obert v. Barrow, 35 
 
 302; Pomeroy \. Willway, supra; Ch. D. 472; 56 L. J. Ch. 913; 
 
 Jlfac^M^^'v. J/., (1896) 2Ch. 451; Farquhar v. Barling, (1896) 1 
 
 65 L. J. Ch. 700; Story, 1155, Ch. 50; 65 L. J. Ch. 62; Ormrod 
 
 1158. V. Wilkinson, (1898) 2 Ch. 638; 
 
 (o) See Yates v. University 67 L. J. Ch. 697; Cross v. Lon- 
 
 College, 8 Ch. 454; L. K. 7 H. don Anti- Vivisection Society, 
 
 L. 438; Jo7ies v. Williams, Amb. (1895) 2 Ch. 501; 64 L. J. Ch. 
 
 651; London University v. Yar- 856; Re Waring, Hayward v. 
 
 row, 23 Beav. 159; Rarrinqtonv. Att.-Gen., (1907) 1 Ch. 166. 
 
 Watts. (1905) 2 Ch. 60; 74 L. J. {d) West v. Shuttleivorth, 2 
 
 Ch. 512; Re Donald. Moore v. My. & K. 684. 
 
 Somerset, (1909) 2 Ch. 410; 78 (c) Story, 1164.
 
 30 
 
 TRUSTS : GENERAL VIEW. 
 
 Charitable 
 trusts 
 regarded 
 with favour. 
 
 Thus Court 
 will prevent 
 
 its purview, notwithstanding 23 & 24 Vict. c. 134; nor 
 will general exjDressions of intended benevolence be carried 
 into execution (/) ; nor gifts for the furtherance of 
 sport (g); nor gifts restricted to the benefit of individual 
 persons (h) . A city company has been held not to be 
 a charity (i) . It is essential, moreover, that words be 
 used sufficient to create an effective trust (k). But a gift 
 is not invalid merely because the selection between certain 
 named objects is left to trustees (l). 
 
 (2.) Wherever a valid charitable trust appears, a Court 
 of equity is always disposed to treat it with favour, and in 
 many circumstances it applies to such trusts a more liberal 
 construction than it would in the case of a gift to an indi- 
 vidual. The following cases afford illustrations of this: — 
 
 (i.) If a testator gives his property to such person as he 
 shall hereafter name to be his executor, and afterwards 
 appoints no executor, or having appointed an executor, 
 the latter dies in the testator's lifetime, in either of these 
 cases, if the bequest be given in favour of a charity, the 
 Court itself Avill supply the place of an executor and carry 
 it into effect (m) . 
 
 (/) Ellis V. Selbfj, 7 Sim. 352; 
 1 My. & Cr. 286; Le^ivers v. 
 Clayton, 8 Ch. D. 584; Macduf 
 V. .¥., (1896) 2 Ch. 451; 65 L. J. 
 Ch. 700. As to whether or not a 
 friendly society is a charity, see 
 Cunnack v. Edivards, (1895) 1 
 Ch. 489; 64 L. J. Ch. 344; 
 (1896) 2 Ch. 679; 65 L. J. Ch. 
 801; Briity v. Mackay, (1896) 2 
 Ch. 727; 65 L. J. Ch. 881; Blair 
 v. Duncan, (1902) A. C. 37; 71 
 L. J. P. C. 22; Grimond v. G., 
 (1905) A. C. 124; 74 L. J. P. C. 
 35; Re Sidney, Hingeston v. 
 Sidney, (1908) 1 Ch. 458; 77 
 L. J. Ch. 296; Dick v. Aiidsley, 
 (1908) A. C. 347; 77 L. J. P. C. 
 126. 
 
 {rj) Jones v. Fahner, (1895) 2 
 Ch. 649; 64 L. J. Ch. 695. 
 
 (K) Thomas v. Howell, 18 Eq. 
 198; Att.-Gen. v. Hughes, 2 
 Vein. 105. 
 
 (i) Re Meech, Butchers' Co. v. 
 Rutland, (1910) 1 Ch. 426; 79 
 L. J. Ch. 209. 
 
 (7,0 Hunter v. Att.-Gen. (1899) 
 A. C. 309; 68 L. J. Ch. 449; 
 Laurie \. Att.-Gen., (1904) 2 Ch. 
 643; 73 L. J. Ch. 712; Dunne v. 
 Byrne, (1912) A. C. 407; 81 L. 
 J. P. C. 202. 
 
 Q) Re Allen, Hargreaves v. 
 Taylor, (1905) 2 Ch. 400; 74 L. 
 J. Ch. 593; Jarvis v. Birming- 
 ham Corp., (1904) 2 Ch. 354; 73 
 L. J. Ch. 808; Re Garrard, 
 Gordon v. Craigie, (1907) 1 Ch. 
 382; Re Davidson, Minty v. 
 Bourne, (1909) 1 Ch. 567; 78 
 L. J. Ch. 437; Weir v. Crun- 
 Brown, (1908) A. C. 162; 77 L. 
 J. P. C. 41. 
 
 (;») Mills V. Farmer, 1 Mer. 
 55; Focock v. Att.-Gen., 3 Ch. 
 D. 342.
 
 CHAKITABLE TRUSTS. 31 
 
 (ii.) If an estate is devised to such a person as the 
 executor shall name, and no executor is appointed, or one 
 being appointed dies in the testator's lifetime, the gift, if 
 in favour of a charity, would be executed (n). 
 
 It was formerly deemed that in such cases as are dealt 
 with in the two preceding paragraphs, if the bequests were 
 to private persons they would fail (o); but the Court seems 
 now to be empowered to carry such gifts into effect (p) . 
 
 (iii.) If a testator has expressed an absolute intention and supply 
 
 Q-GlGCtlVG 
 
 to give a legacy to charitable purposes, but has left un- directions, 
 certain, or to some future act, the mode by which it is to 
 be carried into effect, then a Court of Equity Avill of itself 
 supply the defect and enforce the charity. For instance, 
 if a man bequeaths a sum of money to such charitable uses 
 as he shall direct by a codicil annexed to his will, and dies 
 without making such codicil, the Court will devote the gift 
 to such charitable purposes as it thinks fit (g) . But such 
 assistance Avill only be given where the charitable intention 
 is definite and general (r) . 
 
 (iv.) Where the literal execution of the trusts of a Doctrine of 
 charitable gift becomes inexpedient or impracticable, the ^!^'P^^^- 
 Court will execute them cy-pres, i.e., following as nearly 
 as it can the original purpose (s). This important prin- 
 ciple of cy-pres is thus expressed by Lord Eldon: "If MoggHdge^. 
 " a testator has manifested a general intention to give to 
 " a charity, the failure of the particular mode in which 
 " the charity is to be executed shall not destroy the charity; 
 " but if the substantial intention is charity, the law will 
 " substitute another mode of devoting the property to 
 " charitable purposes, though the formal intention as to 
 
 (m) Story, 1166; Moggridge y. (r) Leavers v. Clayton, sup.; 
 
 Thackivell, 7 Ves. 36. Aston v. Wood, 6 Eq. 419; Re 
 
 (o) Story 1165. Jartyian's Estate, 8 Cli. D. 584; 
 
 ^ . ,, >,' . -.r oi r^u ^^ Freeman's Will, SMlton v. 
 
 {p^ McAlpiney. Moore, 2\Qh.. p^eeman a908^ 1 Ch 720- 77 
 
 D. 778; Re M'Aidife, (1896) P. £ j qJ' 401 
 
 290; 64 L. J. P. 126. 
 (§') Att.-Gen. v. / 
 Vem. 224; 2 Freem. 261. 82 L. J. Ch.''398 
 
 (s) Re Avcnon's Charitii, Att.- 
 (g) Att.-Gen. v. Sijderfin, 1 Qen. v. Pelly, (1913) 2 Ch. 261;
 
 32 TRUSTS : GENERAL VIEW. 
 
 "the mode cannot be accomplished" (t). To justify the 
 application of the cy-'pres principle, it must, however, 
 be clearly proved that the directions given are incapable 
 of being carried into effect {u) . 
 
 Where a charitable bequest is so given that there 
 can be no objects, the Court will order a new scheme to 
 execute it; or when the specified objects cease to exist, 
 the Court will re-model the charity {x) . A commonly 
 quoted and striking illustration of this is seen in the 
 case of Att.-Gen. v. The Ironmongers' Co. (y), where 
 there "was a bequest of the residue of a testator's estate to 
 a company to apply the interest of a moiety " unto the 
 redemption of British slaves in Turkey or Barbary," one- 
 fourth to charity schools in London and its suburbs, and 
 one-fourth toAvards necessitated freemen of the company. 
 There being no British slaves in Turkey or Barbary to 
 redeem, the Court directed a master to approve of a new 
 scheme cy^pres, and sanctioned a scheme which gave the 
 moiety thus undisposed of to the donees of the other fourth 
 parts (z) . It does not, however, necessarily follow that 
 where, as in this case, subsisting cliarities are benefited as 
 well as the one which has ceased to exist, the lapsed fund 
 will be distributed amongst them. In executing the cy- 
 pres doctrine the Court has a free hand (a) . Similarly, 
 where the original scheme has become practically un- 
 feasible owing to a large increase of the fund (6), or from 
 the fact that the object originally intended has been full}" 
 satisfied without exhausting the fund (c), the Court will 
 sanction a new scheme for the disposal of the gift. And if 
 the charitable intention is clear, the fact that the particular 
 
 (i) Moqgridge v. Thackwell, 7 (a) Mayor of Lyons v. Adv.- 
 
 Ves. 36, 69. Gen. of Bengal, 1 App. Cas. 91: 
 
 (m) tie Weir Hosqyital, (1910) Re Mann, Hardy v. Att.-Gen. ^ 
 
 2 Ch. 124; 79 L. J. Ch. 723. (1903) 1 Ch. 232; 72 L. J. Ch. 
 
 (a;) Slevin v. Hepburn, (1891) 150. 
 
 Ch. 236; 60 L. J. Ch. 439; and n^ t> n ^ m. ■^■ 
 
 Rp« Farnher v Burell (\^\2^ 2 ^^> ^^ Campden Chanties, 18 
 
 Ch. 488; i; L. J. Ch.' 635 ^ ^h. D. 310; 49 L. J. Ch. 676. 
 
 (y) 2 Beav. 313. (c) Pease v. Pattinson, 32 Ch. 
 
 (z) Story, 1170 a. D. 154; 55 L. J. Ch. 617.
 
 CHARITABLE TRUSTS. 33 
 
 object is left in uncertainty docs not prevent the applica- 
 tion of the doctrine (d) . 
 
 All these doctrines proceed upon the same ground, 
 namely, that it is the duty of the Court to effectuate the 
 general intention of the testator; and accordingly the 
 application of them ceases whenever such general inten- 
 tion is not found. If, therefore, it is clearly seen that the Particular 
 
 testator had one particular obicct in his mind, as, for charitable 
 ■•• «' ' ' design dis- 
 
 example, to build a church at W., and that purpose can- tinguished 
 not be answered, the next of kin will take, there being ^°^ genera . 
 no general charitable intention (e). Also, if the charity 
 be of a general, indefinite, or merely private nature, the 
 disposition will be treated as utterly void. In such a case, 
 as the trust is not ascertained, the fund would have to go 
 either as an absolute gift to the individual selected to dis- 
 tribute it, or to the next of kin: but it being a general 
 principle that if a testator means to create a trust, and does 
 not effectually do so, the trustee may not benefit thereby, 
 the next of kin Avill in such cases be entitled (/) . 
 
 (v.) In further aid of charities, the Court will supply all Defective 
 defects of conveyances where the donor has a capacity and reme^ed" 
 a disposable estate, and his mode of donation does not 
 contravene the provisions of any statute. Thus it used 
 formerl}^ to supply the want of a surrender of copjdiolds, 
 and it has dispensed with a strict compliance with the 
 terms of a power, in neither of which cases would it in- 
 terfere on behalf of a private object of a voluntary gift. 
 
 (d) White y. 7F., (1893) 2 Ch. 1 Ch. 720; 77 L. J. Ch. 401; 
 41; 62 L. J. Ch. 342; JFallis v. Foicler v. Att.-Gen., (1909) 2 
 S.-G. for New Zealand, (1903) Ch. 1; 78 L. J. Ch. 562; Re 
 A. C. 173; 72 L. J. P. C. 37. Wilson, Twentynum v. Simpson, 
 
 (e) Story, 1182; Clark v. (1913) 1 Ch. 314; 82 L. J. Ch. 
 Taylor, 1 Drew. 642; Fisk v. 161. 
 
 Att.-Gen., 4 Eq. 521; Biscoe v. (/) Story, 1183; Stuhbs v. 
 
 Jackson, 35 Ch. D. 460; 56 L. J. Sarrjon, 2 Keen, 255; Blair v. 
 
 Ch. 540; Randell v. Dixon, 38 Duncan, (1902) A. C. 37; 71 L. 
 
 Ch. D. 213; 57 L. J. Ch. 899; J. P. C. 22; Rannen v. HilUjer, 
 
 Rymer v. Stnnfield. (1895) 1 Ch. (1902) 1 Ch. 876; 71 L. J. Ch. 
 
 19; 64 L. J. Ch. 86; Re Free- 459. 
 man, Shilton v. Freeman, (1908)
 
 34 
 
 TRUSTS : GENERAL VIEW. 
 
 Assets not 
 marshalled in 
 favour of 
 charities. 
 
 But it would not carry into execution a will not made 
 with the formalities required by the Wills Act {g) . 
 
 (vi.) Charities are not deemed to be within the rule 
 against perpetuities. Thus, a bec^uest by a testator " for 
 the use and benefit of the poorest of his kindred," was 
 sustained as being a good charity (h) . But this only 
 applies "where there is an immediate gift to the charity. 
 If the gift is contingent upon a future and uncertain event 
 it is subject to the ordinary rule(i). If, therefore, an 
 immediate gift to a private individual is followed by an 
 executory gift in favour of a charity, or vice versa, the 
 rule applies, and the contingent gift can only take effect 
 if it certainly falls within the prescribed period (k) . 
 
 As to the treatment by equity of resulting trusts in 
 charitable gifts, see infra, p. 78. 
 
 The general favour shown by equity for charities did 
 not, however, go so far as to permit of the marshalling of 
 assets in their favour, since to do so would have infringed 
 the Mortmain Acts. Thus, if a testator dying before 
 August 5th, 1891, gave his real and personal estate to 
 trustees upon trust to sell and pay his debts and legacies 
 and apply the residue to a charity, equity would not mar- 
 shal the assets by throwing the debts and legacies upon 
 the proceeds of the real estate and chattels real in order to 
 leave the pure personalty for the charity. 
 
 By the Mortmain Act, 1891 (l), the former restriction 
 on the devise of lands for charitable uses is removed as to 
 
 (ff) 1 Vict. c. 26; Story, 1171; 
 Tuffnell V. Page, 2 Atk. 37; 
 Bayer v. *S., 7 Ha. 377; Innes v. 
 Sayer, 3 Mac. & G. 606. 
 
 (h) Att.-Gen. v. B. of North- 
 ■amberlMiid, 7 Ch. D. 745; Gillam 
 V. Taylor, 16 Eq. 581; Isaac v. 
 Defriez, Amb. 595; Christ's IIosp. 
 T. Grainger, 1 Mac. & G. 460; 
 Tyler v. T., (1891) 3 Ch. 252; 
 60 L. J. Ch. 686. 
 
 (J.) Chamberlayne v. Brocketf, 
 8 Ch. 211 ; Alt v. 'Lord Stratheden, 
 
 (1894) 3 Ch. 265; 63 L. J. Ch. 
 872; Re Da Costa, Clarke v. St. 
 Peter's School, (1912; 1 Ch. 337; 
 81 L. J. Ch. 293. 
 
 (Jc) Lloyd-Phillips v. Davis, 
 (1893) 2 Ch. 491; 62 L. J. Ch. 
 681 ; Re Swain, Monckton v. 
 Hands, (1905) 1 Ch. 669; 74 L. 
 J. Ch. 354; JForthing Corp. v. 
 Heather, (1906) 2 Ch. 532; 75 
 L. J. Ch. 761. 
 
 (0 54 & 55 Vict. c. 73.
 
 CHARITABLE TRUSTS. 36 
 
 the wills of testators dying after August 5th in that year; 
 but it is provided that lands so devised must be sold 
 within a year from the testator's death, unless the time 
 is extended by the Charity Commissioners or the Court. 
 And where money is given by will, and directed to be laid 
 •out in the purchase of land for the benefit of a charity, 
 the gift is good, the direction void. The statute is applic- 
 able notwithstanding that the will was dated before the 
 Act (m) . 
 
 V. Classification of Trusts. 
 
 Theleadingdivisionof trusts adopted by Mr. Lewin (tz) Lewin's 
 !•,• •! i, ,1 i.- 1*1 ill. classification, 
 
 ■distinguishes between those trusts which are created by 
 
 the act of a party, and those which arise from the operation 
 ■of law. This classification recommends itself in that it 
 not only calls attention to the very prominent distinction 
 between the different kinds of trusts as regards their 
 creation, but also in that it coincides with an equally 
 prominent distinction in the nature of the trusts them- 
 selves. It therefore has all the merit than can be looked 
 for in a classification. 
 
 Trusts which are created by the act of a party are Express 
 denominated express trusts. Trusts which arise from the ™^ ^' 
 operation of law are of two kinds, Hesulting Trusts and 
 Constructive Trusts. In certain cases, from the manner 
 of a party's dealing with his property, equity presumes 
 an intention on his part to sever the legal and equitable 
 interests by creating a trust. Such trusts are Resulting Resulting 
 Trusts. In other cases, without any reference to the '^"■'^^^s- 
 expressed or presumed intention of the parties, equity 
 will, in order to satisfy the demands of justice and good 
 conscience, assume the severance of the legal and equit- 
 
 (m) Brompton Hasp. v. Leivis, 2 Ch. 640; 70 L. J. Cli. 747. 
 (1894) 1 Ch. 297; 63 L. J. Ch. 
 186. See Lewis v. Sutton, (1901) («) 10th ed., p. 19. 
 
 3 (2)
 
 3,6 trusts: general view. 
 
 Constructive able interests, and create a trust. Such trusts are 
 Constructive Trusts. 
 
 These three several species of trusts 'will naturally yield 
 to further analysis as they are separately considered . 
 Ambiguity of ' It ttiay be well here to state that the trusts above 
 truTt^ M described as Resulting Trusts are by some writers desig- 
 
 nated Implied Trusts (o) . The nomenclature here em- 
 ployed is that of Mr. Lewin, by whom the term " implied 
 trusts " is used to describe a sub -division of express trusts, 
 namely those trusts which are created by the use of 
 informal precatory expressions. 
 
 .' (o) Snell's Principles ot Equity.
 
 THE CREATION OF THE TRUST. 
 
 37 
 
 Section II. — Express Trusts. 
 
 I. The Creation of the Trust. 
 II. Distinction between Executed and Executory 
 
 Trusts. 
 III. Voluntary Conveyances and Trusts. 
 
 1. Gifts. 
 
 2. Unexecuted intentions to give. 
 
 3. Voluntary Trusts. 
 
 4. Statutory Modifications. 
 
 5. Trusts for Payment of Debts. 
 
 1. The Creation of the Trust. 
 
 As a general rule, any person who is competent to deal 
 with the legal estate may vest it in a trustee to be held 
 by him subject to the directions of the settlor. 
 
 1 . Before the Statute of Frauds, trusts of every species statute of 
 of property might have been created or transferred by 29 Oir. II. 
 parol; but by that statute {a) it was enacted, c. 3. 
 
 " That all declarations or creations of trusts or confi- s. 7. 
 "denoes of any lands, tenements or hereditaments, shall 
 *' be manifested, or proved by some writing signed by 
 "the party who is by law enabled to declare such trusts, 
 " or by his last will in writing " (&). 
 
 " That all grants and asslgyiments of any trust or con- s. 9. 
 "fidence shall likewise be in writing, signed by the party 
 " granting or assigning the same, or by his last will " (c). 
 
 (a) 29 Car. II. c. 3. (b) s. 7. (0) s. 9.
 
 38 
 
 EXPRESS TRUSTS. 
 
 8. 8. 
 
 Scope of the 
 statute. 
 
 Requires only 
 evidence in 
 writing. 
 
 " Provided ahvays, that where any conveyance shall be 
 " made of anj^ lands or tenements by which a trust or 
 " confidence shall or may arise or result by the implication 
 " or construction of law, or be transferred or extinguished 
 " by an act or operation of laAv .... such trust or con- 
 " fidence shall have the like force and effect as .... if 
 " this statute had not been made " (d). 
 
 Thus a trust of freeholds, or of copyholds or of lease- 
 holds, can no longer be created or transferred without a 
 Avritten instrument. A trust of money, even though 
 secured on land (e), or of personal chattels, may still be 
 generally created by parol, but cannot be assigned save 
 by a written instrument; and resulting and constructive 
 trusts are unaffected by the Act. 
 
 These rules are applicable whatever be the object of the 
 trust, whether it be of a private or public or charitable 
 nature (/) . 
 
 It is to be observed that the statute does not require 
 more than that the trusts within its purview shall be 
 manifested and proved by writing. It is satisfied by 
 iiritten evidence of a trust which may not necessarily have 
 been originally declared in writing (g) . It is necessary, 
 however, that in such cases the evidence should clearly be 
 shown to relate to the subject of the alleged trust (h); and 
 not only the fact of the trust, but also the terms of it, 
 must be supported by evidence under signature (i) . 
 
 Formal ex- 
 pressions not 
 required. 
 
 2. No particular form of expression is necessary to the 
 creation of a trust, if, on the whole, it can be gathered that 
 a trust was intended. " As a general rule, when property 
 " is given absolutely to any person, and the same person is 
 
 (d) a. 8. 
 
 (e) Peckluim v. Taylor, 31 
 Beav. 250. 
 
 (/) Lloyd V. Spillet, 3 P. Wms. 
 344; 2 Atk. 148. 
 
 (gr) Forster v. Hale, 3 Ves. 
 696; Moorcroft v. Boioding, 2 
 
 P. Wms. 314; Rochefoucauld v. 
 Boustead, (1897) 1 Ch. 196; 6& 
 L. J. Ch. 74. 
 
 (Ji) Forster v. Kale, sup. 
 
 (i) Ibid.; Smith v. Matthews, 
 3 De G. F. & J. 139; Kronheim 
 V. Johnson, 7 Ch. D. 60.
 
 THE CREATION OF THE TRUST. 39 
 
 " by the giver, who has power to oommand, recommended 
 
 *' or eri,treated, or wished to dispose of that property in 
 
 " favour of another, the recommendation, entreaty, or wish 
 
 "shall be held to create a trust, first, if the words are so The three 
 
 " used that on the whole they ought to be construed as certemties. 
 
 "imperative; secondly, if the subject of the recommenda- 
 
 " tion or wish be certain; thirdly, if the objects or persons 
 
 " intended to have the benefit of the recommendation or 
 
 "wish be also certain" (fc). 
 
 (1.) The words must he imperative. 
 
 As illustrating what expressions are deemed to be suffi- Words must 
 ciently imperative, we find that the words " wish and mugtrations ' 
 request "(Z), "have fullest confidence " (m), "heartily 
 beseech " (^), "well know"(o), "of course he will 
 give" (p), have been so considered. But the leaning of Tendency of 
 the Court is against construing merely precatory or re- * ^ * 
 commendatory words as creating trusts. Thus, if such 
 expressions as the above are accompanied by other words 
 which indicate an intention that the first taker should 
 have a discretionary power over the subject, or that the 
 donor did not intend the wish to be imperative, no trust 
 will be created {q) . The tendency of modern decisions is 
 still more pronounced in this direction, and such cases as 
 Bardstcell y. B. and Robinson v. Smith would very pro- 
 bably not now be followed (r) . The Court looks at the 
 whole will, and not merely at particular expressions in it, 
 to ascertain the testator's intention (s) . Thus, in Re 
 
 (/t) Per Lord Langdale, Knight 194. 
 
 V. K., 3 Beav. 148, 172; 11 CI. (q) Howarth v. Deivell, 29 
 
 & F. 513. Beav. 18; Benson v. Whittam, 5 
 
 (I) Godfrey v. G., 11 W. E. Sim. 22; Oldfield v. 0., (1904) 1 
 
 554. Ch. 549; 73 L. J. Ch. 433. 
 
 (m) Shovelton v. *S^., 32 Beav. (>•) Lambe v. Eames, 10 Eq. 
 
 143. 267; 6 Ch. 597; Hutchinson v. 
 
 (w) Meredith v. Keneaqe, 1 Tenant, 8 Ch. D. 540; Parnall v. 
 
 Sim. 542, 553; White v. Briggs, P., 9 Ch. D. 96. 
 
 15 Sim. 33. (s) Gregory v. Edmondson, 39 
 
 (o) Bardswell v. B., 9 Sim. Ch. D. 253; Trench v. Hamilton, 
 
 319. (1895) 2 Ch. 370; 64 L. J. Ch. 
 
 (p) Pobinson v. Smith, 6 Mad. 799.
 
 40 
 
 EXPRESS TRUSTS. 
 
 Secret trust 
 
 enforced 
 
 on ground of 
 
 fraud. 
 
 Adams and the Kensington Vestry {t), a gift of real estate 
 " to the absolute use of " the testator's wife, " in full con- 
 " fidence that she would do what was right as to the 
 " disposal thereof between his children, either in her life- 
 " time, or by will after her decease," was held not to 
 create a trust. The same was held by the House of Lords 
 in a similar case, where the expression used was " feeling 
 "confident that she will act justly to our children in 
 " dividing the same when no longer required by her " (u). 
 On the other hand, where a testator devised his property 
 to his wife " absolutely in full confidence " that she would 
 make such use of it as he would have made himself, and 
 that at her decease she would devise it as in the will was 
 indicated, it was held, after considerable difference of 
 judicial opinion, that a trust was created (a;). 
 
 A person apparently taking property by devise or 
 bequest from a testator, with the knowledge of the existence 
 of another instrument, which he actually or impliedly 
 undertakes to carry into effect, will be fixed as a trustee 
 with the performance of the directions given in such instru- 
 ment, when the Court is satisfied that he has fraudulently 
 induced the testator to confide to him the duty which he 
 undertook to perform {y) . In such cases the existence of 
 fraud induces a departure from the usual rule against 
 allowing any force to a document of a testamentary nature 
 not properly executed. In other words, fraud creates a 
 right to the discovery of secret trusts, notwithstanding the 
 Wills Act (z), and such trusts may be proved by parol 
 
 (0 27 Ch. D. 394; 54 L. J. 
 Ch. 87. 
 
 (m) Mussoorie Bank v. JRaynor, 
 7 App. Cas. 321 ; 51 L. J. P. C. 
 72; and see Williams v. JV., 
 (1897) 2 Ch. 12; 66 L. J. Ch. 
 485; Trench v. Hamilton, supra; 
 mil V. H., (1897) 1 Q. B. 483; 
 66 L. J. Q. B. 329; Con-oily v. 
 C, (1910) 1 Ch. 219; 79 L. J. 
 Ch. 148. 
 
 (a;) Comishey v. Boivring-Ha)i- 
 
 hury, (1905) A. C. 84; 74 L. J. 
 Ch. 263; reversing Ilanhury v. 
 Fisher, (1904) 1 Ch. 415. 
 
 (y) Godefroi on Trusts, p. 79; 
 McCormick v. Grogan, L. R. 4 
 H. L. 82; O'Brien v. Tyssen, 28 
 Ch. D. 372; 54 L. J. Ch. 284; 
 Moss V. Cooper, 1 J. & H. 352. 
 
 (s) Thynn v. T., 1 Vern. 295; 
 Norris v. Frazer, 15 Eq. 318, 
 330.
 
 THE CREATION OF THE TRUST. 41 
 
 €vidence, notwithstanding the Statute of Frauds {a). But 
 if no trust is declared by the will, it is essential in order to 
 make the secret trust binding that it should have been 
 communicated to the devisee or legatee in the testator's 
 lifetime, and that he should have accepted that particular 
 trust (6). 
 
 (2.) The subject-matter 'must he certain. Subject must 
 
 be certain. 
 Thus where a testator devised real property to his wife 
 to be sold for the payment of his debts and legacies in aid 
 •of his personal estate, and added that he " did not doubt 
 but his wife would be kind to his children," no trust was Illustrations, 
 created, because no right to any particular part of the 
 estate was conferred (c). So in a similar case where the 
 words used were " not doubting, as she has no relations of 
 *' her own, but that she will consider my near relations 
 " should she survive me, as I should consider them myself 
 " should I survive her," the result was the same (d). Simi- 
 larly the expressions "well knowing he will remember" 
 certain objects (e), "do justice to," or "deal justly and 
 properly wdth " (/), or a recommendation to give "what 
 shall be left at his death" (g), or "what he may have 
 saved " (h), are considered too indefinite to create a 
 trust (i) . But such cases must be distinguished from those 
 in which there is a gift over of a legacy, or so mticli' 
 
 («) Edivards v. Pilie, 1 Ed. and see Curtis v. Ri'ppon, 5 Mad. 
 
 267; Be Fleetwood, Sidgreaves v. 534. 
 
 Brewer, 15 Cli. D. 594; 49 L. J. (e) Bardswell v. B., 9 Sim. 
 
 Ch. 514; but see and distin^'uish 319. 
 
 Huxtahle v. Crawfurd, (1902) 2 (/) Tope v. P., 10 Sim. 1. 
 
 Ch. 793; 71 L. J. Ch. 876; and ff,\ Wynne v. HawMns, 1 Bro. 
 
 Hetley v. H., ibid., 856, 769. c. C. 179. 
 
 (b) Boyesv. Carritt,26 Ch.T). (j^\ Coivman v. Harrison, 10 
 D. 531; 53 L. J. Ch. 654; see fja 234 
 
 Scott V. Pitt Rivers, (1901) 1 Ch. /.. r, ' , i, , t? - 
 
 352; 70 L. J. Ch. 257; (1902) 1 .,^%^T,o^^^^. f'^' \ ^j' ^ 
 
 Ch. 403; 71 L. J. Ch. 225. f pI^'iVo^' F/''^^''7- ^^^^l^^' 
 
 ' 2 rh. 142; Ronoood v. West, 1 
 
 (c) Buggins v. Yates, 9 Mod. s. & S. 387; Sliaiv v. Lawless, 5 
 122. CI. & F. 129. 
 
 (d) Sale V. Jloore, 1 Sim. 534;
 
 42 
 
 EXPRESS TRUSTS. 
 
 thereof as shall not have been 'paid to or received by the 
 legatee. Such a gift is not void for uncertainty (k). 
 
 Objects must 
 be certain. 
 
 Distinction 
 where tniet 
 is manifestly 
 intended. 
 
 Then trustee 
 cannot take 
 beneficially. 
 
 (3.) The objects or cestuis que trust must be certain. 
 
 In Harland v. Trigg (I), where a testator gave lease- 
 holds to his " brother for ever, hoping he will continue 
 them in the family," Lord Thurlow held that no trust 
 was created, and said: " I take the rule of law to be this^ 
 " that two things must concur to constitute these devises, 
 " — the terms and the object. Hop/^z^isincontradistinc- 
 " tion to a direct devise; but whenever there are annexed 
 " to such words precise and direct objects the law has con- 
 " nected the whole together, and held the words sufficient 
 " to raise a trust; — but then the objects must be distinct." 
 Similarly the expression "near relations " (w) has been 
 considered too indefinite to create a trust; and so also 
 where trustees were directed to divide their testator's 
 residue among " such charitable or religious institutions 
 and societies as they might select" {n). It is obvious, 
 having regard to the infinite varieties of expression which 
 are met with in legal instruments, that decisions must 
 often turn on very fine distinctions. 
 
 The distinction must, again, be carefully observed 
 between those cases in which, as above, it was held that no 
 trust w^as created, and therefore the legatee might hold the 
 estate or bequest beneficially, and other cases in which, 
 though the terms are not sufficiently certain and definite 
 to create an effectual trust, it is, nevertheless, the ntanifesf 
 intention of the testator that there shall be a trust of some 
 kind, and that the donee shall not take beneficially. It is 
 an unfailing principle that if a trust is clearly intended, 
 the intended trustee cannot take beneficially. In Briggs 
 
 (A;) Chaston v. Searjo, 18 Ch. 
 D. 218; 50 L. J. Ch. 716; John- 
 son V. CrooTc, 12 Ch. D. 639, 
 
 (0 1 Bro. C. C. 141. 
 
 \m) Sale v. Moore, 1 Sim. 534; 
 
 and see Blair v. Duncan, (1902) 
 A. C. 37. 
 
 (m) Grimond v. G., (1905) A. 
 C. 124; 74 L. J. P. C. 35. Com- 
 pare Re Garrard, Gordon v. 
 Craigie, (1907) 1 Ch. 382.
 
 THE CREATION OF THE TRUST, 43 
 
 V. Penny (o), Lord Truro said: " If a testator gives upon 
 "trust, though he never adds a syllable to denote the 
 " objects of that trust, or though ho declares the trust in 
 " such a way as not to exhaust the property, or though he 
 " declares it imperfectly, or though the trusts are illegal, 
 " still, in all these cases, as is well known, the legatee is 
 " excluded, and the next of kin " or the heir " takes." In 
 Steady. Mellor (p) it was intimated that the precise words 
 used in Briggs v. Penny were barely sufficient to indicate 
 a clear intention to create a trust, but the principle above 
 quoted was not questioned. 
 
 (4.) The object of the trust must be laicful. 
 
 The Court Avill not permit the system of trusts to be Object must 
 directed to any object that contravenes the policy of the 
 law. Thus a trust of personalty cannot be limited to A. 
 and bis heirs, nor can it be entailed. If words implying 
 such limitations are used, they will vest an absolute 
 interest in A . (q) . 
 
 Similarly, trusts which contravened the Mortmain Acts, Mortmain 
 whether openly or secretly (r), or the law of perpetuities (s), ' ' 
 or the policy of the law of bankruptcy (t), were held void. 
 Nor can property be settled on trust for illegitimate chil- 
 dren to be thereafter born {u), nor on any trust adverse 
 to religion or morality (x), or savouring of simony (?/). 
 
 Where a trust is created for an unlawful or fraudulent Com-t will 
 
 , ^ -ii • 1 p • p neither assist 
 
 purpose, the Court Avill neither enforce the trust m favour cestui que trust 
 
 of the parties intended to be benefited, nor assist the ^hetmS"'^''^ 
 
 (o) 3 De O. & Sm. 525; 3 (s) D. of Norfolk's Case, sup. 
 
 Mac. & G. 546. {t) Graves v. Dolphin, 1 Sim. 
 
 {p) 5 Ch. D. 225; and see 66; Higinbotham v. Holme, 19 
 
 Eetley v. H., (1902) 2 Ch. 866; Ves. 88. 
 
 71 L. J. Ch. 769; Re Glukman, Qu) Medivorth v. Pope, 27 
 
 Att.-Gen. v. Jeferys, (1907) 1 Beav. 71. 
 Ch. 171; 76 L. J. Ch. 82. (a;) Thornton v. Kowe, 31 
 
 (g-) Duke of NorfoWs Case, 3 Beav. 14. 
 Ch. Ca. 9; 1 Vera. 164. (y) Coicper v. Mantell, 22 
 
 (r) Wa^J v. East, 2 Drew. 44; Beav. 231. 
 
 SticMandv. Aldridge, 9 Ves. 510. '
 
 44 
 
 EXPRESS TRUSTS. 
 
 settlor to recover the estate {z). But if the object be 
 partly lawful and partly unlawful, and the Court can 
 sever the two, it will hold good and execute the lawful 
 part (u) . 
 
 Power in 
 nature of 
 a trust. 
 
 Executed by 
 the Court. 
 
 When. 
 
 3 . Power in the nature of a trust. 
 
 In addition to the cases in which upon words of recom- 
 mendation a trust simply bas been held to be created, 
 there is another class of cases in which poivers are given 
 to persons, accompanied with such words of recommenda- 
 tion in favour of certain objects, as to invest them with 
 the nature of trusts; so that if the donees fail to exercise 
 such powers in favour of the specified objects, the Court 
 will take upon itself to a certain extent the duties of the 
 donees. 
 
 In order to induce the Court so to do there must be 
 something more than a mere power of disposing (&); but 
 if there appears, in connexion with the words creating the 
 power, " a general intention in favour of a class, and a 
 "particular intention in favour of individuals of that 
 " class to be selected by another person, and the particular 
 " intention fails from that selection not being made, the 
 " Court will carry into effect the general intention in 
 " favour of the class " (c). In such a case the power is so 
 given as to make it the duty of the donee to execute it, 
 and the Court will not allow the objects to suffer from his 
 negligence (d). 
 
 Further, if in such a case a rule is laid down for the 
 guidance of the donees of the power, which they do not 
 act upon, the Court will act upon it, exercising the same 
 
 (z) Cottington v. Fletcher, 2 
 Atk. 155; Eaigh v. Kaye, 7 Ch. 
 473. 
 
 (a) Mitford v. Reynolds, 1 Ph. 
 185; Re Birkett, 9 Ch. D. 576; 
 Vaughan v. Thomas, 33 Ch. D. 
 187; Bird v. Lee, (1901) 1 Ch. 
 715; 70 L. J. Ch. 444. 
 
 (J) Broivn v. Higgs, 8 Ves. 
 
 5ol, 570; Re Weehes' Settlement, 
 (1897) 1 Ch. 289; 66 L. J. Ch. 
 179. 
 
 (c) Per Lord Cottenham, in 
 Burrough v. Philcox, 5 My. & 
 Cr. 72. 
 
 (d) Brown v. Higgs, 8 Ves. 
 576; 5 My. & Cr. 92.
 
 THE CREATION OF THE TRUST. 45 
 
 judgment as the trustees should have done. In Goicer 
 V. Maimoaring (e), the trustees were to give the residue of 
 the property to the testator's friends and relations where 
 they should see most necessity, and as they should see most 
 equitable and just. On the surviving trustees refusing to 
 act, the Court considered that it oould follow the rule 
 indicated and judge of the necessity. In the absence of 
 such guidance, the Court would distribute the fund equally 
 among the objects of the trust (/) on the principle that 
 equality is equity. iThe same principle was followed in 
 Salushury v. Denton (g), where a widow was directed to 
 apply on her death part of a fund for a charity, the 
 remainder to be at her disposal among the testator's 
 relations in such proportions as she might be pleased to 
 direct. The fund was equally divided, one-half being 
 devoted to the charity, the other divided amongst the 
 testator's next of kin capable of taking within the Statutes 
 of Distribution. 
 
 There is a distinction which should be noticed between Distinction 
 those cases in which there is a gift to a class with a subse- '""^^re there is 
 
 " no express 
 
 quent power of appointment amongst the class, and those gift to a class. 
 in which there is no gift to the class except in or by means 
 of the power; as, for instance, where there is a bequest to 
 a wife for her own benefit, trusting that she will at her 
 decease give and bequeath the same to the children. In 
 the first case, the property vests, until the power is exer- 
 cised, in all the members of the class, and in default of 
 appointment they will all take (h) . The property is, in 
 other words, vested in the whole class, subject to be divested 
 or re-vested by the exercise of the power. But in the 
 second case, there being no primary gift to the class, that 
 is, no gift to the children in express terms, those only can 
 take in default of appointment who might have taken 
 under an exercise of the power. Thus the issue of a 
 
 (e) 2 Ves. sr. 87. (g) 3 K. & J. 529. 
 
 (/) Boyley v. Att.-Gen., 2 Eq. (A) Lambert v. Thwaites, 2 
 
 Ca. Ab. 194. Eq. 151.
 
 46 
 
 EXPRESS TRUSTS. 
 
 deceased child, in the case given, would not take in 
 default of appointment (i) . 
 
 It is to be observed that where the donee of the power 
 has a life interest in the fund, the class to take in default 
 of appointment is determined by the state of facts at the 
 life interest or death of the donec of the power (Tc). If he has not, it 
 will be determined by the state of facts at the death of 
 the donor of the power (1). 
 
 Time of 
 aacertaining 
 class depends 
 on whether 
 donee has a 
 
 Distinction 
 between 
 executed and 
 executory- 
 trusts. 
 
 II. Executed and Executory Trusts. 
 
 One of the most important of the sub-classifications of 
 express trusts is that which distinguishes between executed 
 and executory trusts. On this subject the leading 
 authority is the case of Glenorchy v. Bosville (m). 
 
 In this case A. devised real estate to his sisters B. 
 and C, their heirs and assigns, upon trust until his grand- 
 daughter D . should marry or die to receive the profits, and 
 thereout to pay her £100 a year for her maintenance; the 
 residue to pay debts and legacies, and after payment 
 thereof in trust for the said D.; and upon further trust, 
 that if she lived to marry a Protestant of the Church of 
 England, and at the time of such marriage were of the 
 age of 21 or upwards, or, if under that age, such marriage 
 were with the consent of the said B., then to convey the 
 said estate with all convenient speed after such marriage 
 to the use of the said D. for life, without impeachment 
 of waste, remainder to her husband for life, remainder to 
 the issue of her body, remainders over. It Avas held that 
 though D. would have taken an estate tail had it been 
 the case of an immediate devise, yet that the trust being 
 executory was to be executed in a more careful and accurate 
 
 (i) Walsh V. Wallinger, 2 
 Euss. & My. 78. 
 
 (Jc) Harding v. Gly7}, 1 Atk. 
 469. 
 
 (0 Cole V. Wade, 16 Ves. 27. 
 Im) Ca. t. Talb. 3; 2 W. & T. 
 L. C. 763, ed. 7.
 
 EXECUTED AND EXECUTOEY TRUSTS. 47 
 
 manner; and that a conveyance to D. for life, remainder 
 
 to her husband for life, remainder to their first and every 
 
 other son, with remainder to the daughters, would best 
 
 serve the testator's intent. 
 
 This case is the foundation of a long series of decisions 
 
 in which the distinction between executed and executory 
 
 trusts is recognised. 
 
 A trust is said to be executed when no further act is Definition of 
 , . ™ . , p , ■. . executed 
 
 required to give enect to it, the terms oi the trust being tmst. 
 
 completely declared by the instrument creating it, as 
 
 where an estate is conveyed or devised unto and to the 
 
 use of A. and his heirs in trust for B. and the heirs of 
 
 his body. 
 
 A trust is said to be executory when some further act Executory 
 
 .must be done by the author of the trust or by the trustees *'^^^*- 
 
 to give effect to it, as in the case of marriage articles, 
 
 which require a settlement to follow to declare fully the 
 
 limitations of the trust, or as in the case of a will by 
 
 which property is devised to trustees up'on trust to settle or 
 
 convey in a more perfect and accurate manner. 
 
 The distinction between an executed and an executory 
 
 trust does not rest merely on the fact that the trustee may 
 
 be required to execute some further instrument to give 
 
 full effect to his trust. For instance, a mere direction to 
 
 convey upon certain specified trusts will not render those 
 
 trusts executory, so as to give to a Court of equity the 
 
 latitude of construction which we shall see to be applicable 
 
 in the case of executory trusts. The true distinction 
 
 depends on the question whether the creator of the trust 
 
 has been what is called his own conveyancer; whether, 
 
 that is to say, "he has so defined his intention that you 
 
 "have nothing to do but to take the limitations he has 
 
 " given you, and convert them into legal estates," or has 
 
 left it to the Court to make out from general expressions 
 
 what his intention is (n) . 
 
 (n) Per Lord St. Leonards, Egerton v. Brownlow, 4 H. L. 1, 210.
 
 48 . ' EXPRESS TRUSTS. 
 
 Construction It is clearly established that in the case of executed 
 trusts: equity ti'usts a Court of equity will construe technical words in 
 
 follows ^\-^Q same manner as a Court of law would construe them 
 
 the law. 
 
 when applied to legal estates. If, for instance, an estate 
 
 is Vested in trustees and their heirs in trust for A . for life 
 without impeachment of waste, with remainder to trustees 
 to preserve contingent remainders, with remainder in trust 
 for the heirs of A.'s body, the trust being executed, A. 
 will, according to the rule in Shell&f/'s case, take an equit- 
 able estate tail, just as he would have taken a legal estate 
 tail in case similar words of limitation had been used in 
 a conveyance direct to himself without the intervention of 
 trustees (o) . 
 Construction In cascs, however, of executory trusts where something 
 of executory |g YqH to be donc — viz . , the trusts are left to be executed 
 
 trusts depends _ ' 
 
 on the in a more careful and more accurate manner — a Court of 
 
 creating equity docs not consider itself bound to construe technical 
 
 them. expressions with the same legal strictness. If, from the 
 
 nature of the instrument or from the circumstances of the 
 
 case, a contrary intention of the creator of the trust can 
 
 be ascertained or inferred, the Court will, in supplying or 
 
 directing the further act necessary for the execution of the 
 
 trusts, mould the trusts according to such intention. 
 
 The principle The effects of the distinction between executed and 
 
 IS the same in executory trusts are most conspicuous in two classes of 
 
 wills as in "^ ^ 
 
 articles: cases: 1. TJiose arising under marriage articles. 2. Those 
 
 arising under wills. It is sometimes represented that 
 these two classes of cases are treated on different prin- 
 
 viz., to follow ciples. This is not strictly true. The principle in both 
 
 the testator's -xiiii i. i_i t. \ ■ i • l 
 
 intention- cases IS that the executory trusts are to be carried into 
 
 execution in accordance with the intention of the creator 
 
 but in articles ^f <\^^^q trust. The difference between the two cases is that 
 
 the intention . • -, p i • pp i • i ■ 
 
 maybe marriage articles from their very nature afford an iiidica- 
 
 inferred. ^^^^^ ^£ ^^^^^ intention, Avhich is wanting in the case of a 
 
 will. In the former the presumed object of the instrument 
 
 (o) Wright v. Pearson,! Eden, 119; Austen v. Taylor, ibid. 361.
 
 EXECUTED AND EXECUTORY TRUSTS. 49 
 
 is to make provision for the issue of the marriage; in the S^cus iu will«. 
 latter there is no reason to suppose that a testator intends 
 his beneficiary to take one quantum of interest rather than 
 another, an estate for life rather than an estate in tail or 
 in fee (p). If, however, even in the case of a will, it can 
 be ascertained from the language employed that the tes- 
 tator did not mean to use the expressions he has employed 
 in their strictly technical sense, the Court in decreeing 
 such settlement as he has directed, that is, in executing the 
 executory trust, will so construe his words as to execute 
 his intention (q). The precise nature of the contrast 
 between the two cases will fully appear in the detailed 
 separate consideration of executory trusts under marriage 
 articles and those arising under wills. 
 
 I. Executory trusts under marriage articles. 
 
 If, in articles before marriage, for making a settlement Construction 
 of the real estate of either the intended husband or wife, ° ^^. ^^ ^^' 
 
 Keal estate. 
 
 it is agreed that the same shall be settled upon the heirs 
 of the body of them or either of them, in such terms as 
 would, if construed with legal strictness according to the 
 rule in Shelley's case, give either of them an estate tail, 
 and so enable him or her to defeat the provision for the 
 issue by barring the entail. Courts of equity, considering 
 that the special object of the articles is to make provision 
 for the issue of the marriage, will in conformity with the 
 presumed intention of the parties, decree a settlement to issue treated 
 be made upon the husbaiid or icife for life only, ivith ^^ ^^*^ ***'"" 
 remainder to the issue of the marriage in tail as pur- 
 chasers {r). When the words "heirs of the body," or 
 " issue," are held to indicate an intention that the issue of 
 the marriage should take as purchasers, a settlement will 
 be decreed in favour of daughters as well as sons; thus 
 
 (p) Rochfordv. Fitzmaurice, 2 (r) Trevor v. T., 1 P. Wms. 
 
 Dr. & W. 1. 622; Streatfield v. S., ca. t. Talb. 
 
 (^) Blackburn v. Stables, 2 V. 176. 
 & B. 369.
 
 50 
 
 EXPRESS TRUSTS. 
 
 Form 
 
 of limitation. 
 
 Modifying 
 circum- 
 stances. 
 
 Tenancy 
 in common 
 preferred to 
 joint tenancy. 
 
 Same rules 
 apply to 
 post-nuptial 
 settlements. 
 
 the form of the limitation will be to the first and other 
 sons successively in tail, with remainder to the daughters 
 as tenants in common, with cross remainders between 
 them (s) , 
 
 Though the principle on which the Courts act in these 
 cases is to make such provision for the issue of the mar- 
 riage as it shall not be in the power of either parent to 
 defeat, Avhere articles are so framed that the concurrence of 
 hoth parents is requisite in order to defeat the provision 
 for the issue, the Court has refused to interfere, consider- 
 ing that it may have been the intention of the parties to 
 the articles that the husband and wife should jointly have 
 such power. And so, where it appears on the face of 
 the articles that the parties themselves knew and made a 
 distinction between limitations in strict settlement and 
 limitations leaving it in the power of one of the parents 
 to bar the issue, a strict settlement of the whole will not 
 be decreed (i^). 
 
 Where Avords are used in articles which would, if inter- 
 preted strictly, create a joint tenancy among the children 
 of the marriage, equity will decree a settlement upon them 
 as tenants in common, either with provisions for limiting- 
 over the shares of any who die under age and without 
 issue (m), or for making the interests of the children con- 
 tingent on their attaining twenty-one, being sons, or 
 being daughters, attaining that age or marrying {x) . 
 But surrounding circumstances may modify the operation 
 of this rule {y). 
 
 It has been laid down that executory trusts in post- 
 nuptial settlements will receive the same construction as 
 executory trusts in wills (0). 
 
 (s) Nandich v. Willces, Gilb. 
 Eq. Rep. 114. 
 
 (0 TIojvpI v. //., 2 Ves. sr. 
 358, 359. 
 
 (?0 Tagfjart v. T., 1 S. & L. 
 84, 89. 
 
 (.-r) YoiDiff V. MacinloKh, 13 
 
 Sim. 445; Cor/nn v. Buffirld, 2 
 Ch. D. 44, 50.' 
 
 (y) In re Bellasis' Trust, 12 
 Eq. 218. 
 
 (c-) Rochford V. Fitzmaurice, 1 
 C. & L. I685 2 Dr. & W. 1, 19.
 
 EXECUTED AND EXECUTORY TRUSTS. 51 
 
 II. Executory trusts in wills. 
 
 (1.) As to real property. In wills realty 
 
 If it appears from the language of the will itself that atTaw^^unless 
 the testator meant the words "heirs of the body," or contrary 
 words of similar import, to be words of purchase, Courts apparent, 
 of equity will direct a settlement to be made according to 
 the strict legal construction of those words; but if a con- 
 trary intention is apparent on the face of the will, the 
 Court will give effect to it. The principles involved cannot 
 be better illustrated than by comparing the cases of Sweet- 
 apple V. Bindon{a) and Papillon v. Voice (b). In the What 
 former, B. gave by will £300 to her daughter Mary to be indication of 
 laid out by her executrix in lands, and settled to the only pop^rary 
 
 „. , T. . . . intention. 
 
 use of ner daughter Mary and her children, and if she died 
 without issue, the land to be equally divided between her 
 brothers and sisters then living. Lord Cowper said that 
 had it been an immediate devise of land, Mary, the 
 daughter, would have been by the words of the will tenant 
 in tail: and in the case of a voluntary devise, the Court 
 must take it as they found it, and not lessen the estate or 
 benefit of the legatee; although upon the like words in 
 marriage articles it might be otherwise. Here there was 
 an executory trust indeed, inasmuch as the executrix was 
 required to execute a settlement to give effect to the 
 testatrix's intention; but, the instrument being a will 
 which conferred a benefit voluntarily on Mary, there was 
 nothing to lead one to suppose that a lesser quantum of 
 interest rather than a greater was intended to be conferred : 
 therefore the Court had no ground for attributing to the 
 words used any other than their strict legal meaning (c) . 
 In Vapillon v. Voice, on the contrary, A. bequeathed a 
 sum of money to trustees in trust to be laid out in a pur- 
 chase of lands and to he settled on B. for life, Avithout 
 impeachment of waste, remainder to trustees and their heirs 
 
 (rt) 2 Vern. 536. (6) 2 P. Wms. 471. 
 
 (o) Scale V. S., 1 P. Wms. 290. 
 
 4(2)
 
 •52 EXPRESS TRUSTS. 
 
 during the life of B. to preserve contingent remainders, 
 remainder to the heirs of the body of B., remainder over, 
 with power to B. to make a jointure; and by the same 
 will A. devised lands to B. for his life, without impeach- 
 ment of waste, remainder to trustees and tlieir heirs 
 during the life of B. to support contingent remainders, 
 remainder to the heirs of the body of B., remainder over. 
 Lord Chancellor King declared as to that part of the case 
 where lands were devised to B. for life, though said to be 
 without impeachment of waste, with remainder to trustees 
 to support contingent remainders, remainder to the heirs 
 of the body of B., this last remainder was within the 
 general rule, and must operate as words of limitation, and 
 consequently create a vested estate tail in B.; but as to 
 the other point, he declared the Court had a power over the 
 'money directed by the will to be invested in land, and 
 that the diversity was where the will passed a legal estate, 
 and where it was only executory, and the party must come 
 to the Court in order to have the benefit of the will; that 
 in the latter case the intention and not the rules of law 
 must be followed ; so that as to the lands to be purchased, 
 they should be limited to B. for life, with power to B. to 
 make a jointure, remainder to trustees during his life to 
 preserve contingent remainders, remainder to his first and 
 every other son in tail male successively, remainder over. 
 It will be observed that the great distinction between this 
 case and Sweetapple v. Bindon lay in the fact that here 
 the testator had divided the lands with which ho intended 
 to benefit B. into two parcels, one of which he devised to B. 
 on certain limitations which were construed legally to carry 
 an estate tail, and the pther of which he directed to be 
 settled on B. on the same limitations. This division 
 afforded an index to the testator's intention, for there 
 could have been no object in it if the limitations of both 
 parcels were to be interpreted in the same way. There 
 was here, therefore, an indication of intention which was 
 lacking in Sweetapple v. Bmdon ; and for this reason the
 
 EXECUTED AND EXECUTORY TRUSTS. 5{5 
 
 executory trust was interpreted, not strictly, as in that 
 case, but in a manner similar to that in which it would 
 have been treated had it occurred in marriage articles. 
 
 There are many ways in which a testator may so Particular 
 indicate his intention as to lead the Court in construing an ^^P''^^^^°"^- 
 executory trust to depart from the strict legal signification 
 of the words he employs; for instance, by instructing 
 trustees to take " special care in such settlement that it 
 " shall not be in the power of A. to dock the entail of the 
 " estate given to him during his life " {d), or by directing 
 that the heirs of the body or issue shall take " in succession 
 or priority of birth," or that the settlement shall be made 
 "as counsel shall advise," or "as executors shall think 
 fit" (e); or again, "in such manner and form as that if 
 "A. should happen to die without leaving lawful issue, 
 " then that the property might descend after his death unin- 
 " cumbered ' (/); so where a testator directed a conveyance 
 to his daughter for her life, and so as she alone, or such 
 person as she should appoint, should take the rents and 
 profits, and so that her husband should not intermeddle 
 therewith, and from and after her decease in trust for the 
 heirs of her body for ever, Lord Hardwicke considered 
 that as there was a plain intention to exclude the husband 
 from all benefit, present or future interest, the words 
 "heirs of her body" should be construed as words of. 
 purchase, and that the Avife was entitled to a life estate 
 only; because otherwise, if the wife predeceased her 
 husband, he would get a considerable benefit contrary to 
 the testator's intention, as tenant by the curtesy (g). It -'Heirs" is a 
 requires, however, a stronger case to lead the Court to this l-Ji^four^ 
 interpretation when the word " heirs " is used than it does oi a legal 
 
 ,, . ,, . , 1 , , 1 ij 1 • >) construction 
 
 when issue is the term employed, the word heirs than "issue." 
 
 (d) Leonard v. E. of Sussex, 2 L. R. 4 H. L. 543. 
 
 Vern. 526. (/) Thompson v. Fisher, 10 
 
 (e) White V. Garter, 2 Eden, ^q. 207. 
 
 366; Bastard v. Proby, 2 Cox, 6; (gr) Roberts v. Bixwell, 1 Atk. 
 
 Sackville - West v. Hohnesdale, 607.
 
 54 
 
 p:xpress trusts. 
 
 Daughters 
 favoured 
 equally with 
 sons. 
 
 Children 
 
 succeed to 
 parents, 
 rather than 
 take as joint 
 tenants. 
 
 Per>sonalty 
 usually vests 
 absolutely at 
 birth. 
 
 being naturally a word of limitation (h) . And where the 
 trusts and limitations of land to be settled are expressly 
 declared by the testator, the Court has no authority to 
 make them different from what they would be at law {i) . 
 
 In Avills, as in marriage articles, when the words "heirs 
 of the body" or "issue" are construed as words of 
 purchase, they will be held to include daughters as well as 
 sons, and the settlement will be decreed to be made in 
 default of sons and their issue upon daughters as tenants 
 in common in tail general, with cross remainders between 
 them (k) ; and although, in the ordinary construction of a 
 gift by will to a wife and children, they would take as 
 joint tenants (l), where there has been a direction to secure 
 the fund for the benefit of the wife and children, the 
 Court has inferred an intention that the fund should be 
 settled in the usual manner upon the wife for life, 
 remainder to her children (w). 
 
 Where in a will there are directions for a settlement in 
 terms Avhich are ordinarily construed to create a joint 
 tenancy, the Court has no authority, as in the case of 
 marriage articles, to vary them in execution by giving a 
 tenancy in common in the settlement, unless there is 
 something to indicate that such was the intention {n). 
 
 (2.) As to personalty. 
 
 Where chattels are given by will, and directed to go by 
 reference to limitations of real estate in strict settlement 
 or as heirlooms, either simj)ly or " as far as the rules of 
 law and equity will permit," Courts of equity will not, 
 even though the legal estate be in executors, construe the 
 trusts of the will as executory, so as to prevent the chattels 
 vesting absolutely in the first tenant in tail upon his 
 
 (h) Meure v. M., 2 Atk. 265. 
 
 («) Austen v. Taylor, 1 Eden, 
 361. 
 
 (Jc') Bastard v. Prohy, sup. ; 
 Trevor v. T., 13 Sim. 108; 1 H. 
 L. 239. 
 
 (0 Neivill V. N., 7 Ch. 253, 
 256. 
 
 (>«) Combe v. Hughes, 14 Eq. 
 415. 
 
 (m) Marryat v. Toivnly, 1 Ves. 
 sr. 102; Synge v. Hales, 2 Ba. & 
 Be. 499.
 
 EXECUTED AND EXECUTORY TRUSTS, 
 birth (o) . But if a plain intention be expressed that no poriwa-ry 
 
 intention 
 
 person shall take the chattels absolutely who does not live followed if 
 to become entitled to the possession of the real estate, the e'^P^'es^^''- 
 Court will execute that intention (p) . A distinction has 
 been drawn between a bequest of specific chattels to E., 
 "to be enjoyed and go with the estate,"' and a bequest of 
 other chattels to trustees on trust to select and set aside 
 certain of them "for the said E. and his successors to be 
 held and settled as heirlooms and to go with the title." 
 There was held to be an executory trust of the latter, but 
 not of the former chattels (q). 
 
 III. The doctrine of cy-pres. 
 
 Where an executory trust in articles or in a will if Execution 
 carried literally into effect would be void for illegalit}^, as 
 by infringing the rule against perpetuities, the Court will, 
 in order to carry the testator's intention into effect as far as 
 possible, apply the principle of cy-fres, and direct a settle- 
 ment to bo made as strictly as the law will permit (r). 
 But a cy-pres estate cannot be implied in lieu of excessive 
 limitations of real estate under a testamentary power, 
 unless it will include all persons intended to take under 
 those limitations, and no others (s) . 
 
 55 
 
 III. Voluntary Conveyances and Trusts. 
 
 The questions which arise in connexion with gifts, con- 
 veyances, and declarations of trust which are unsupported 
 by consideration, are so numerous and so important as to 
 require separate and careful investigation. 
 
 (o) Foley v. Bitniell, 1 Bro. (r) Ilumherston v. II., 1 P. 
 
 C. C. 274; Harrington v. II., Wms. 332; and see Hampton v. 
 
 L. R. 5 H. L. 87. Holmnn, 5 Ch. D. 183; Miles v. 
 
 {f) Potts V. P., 1 H. L. 671; Harford, 12 ibid. 691. 
 
 Price- Fothercf ill v. Price, (1903) (.9) Monypenny v. Berinq, 2 
 
 1 Ch. 149; 72 L. J. Ch. 164. De G. M. & G. 145; Rising v. 
 
 (q) Cockerell v. E. of Essex, R., (1904) 1 Ch. 533; 73 L. J. 
 
 26Ch. D. 538; 53 L. J. Ch. 645; Ch. 455; Re Nash, Cook v. 
 
 and see Hill v. //., (1897) 1 Q. FredericJc, (1909) 2 Ch. 451; 78 
 
 B. 483; 66 L. J. Q. B. 329. L. J. Ch. 657.
 
 56 
 
 EXPRESS TRUSTS. 
 
 Distinctiun 
 between gifts 
 unexecuted 
 intentions to 
 give, and 
 voluntary 
 trusts. 
 
 Gifts- 
 
 of land, 
 
 of chattels, 
 
 of securities. 
 
 Between bus 
 band and 
 wife. 
 
 One of the most important questions which require 
 attention in this connexion is the distinction between a 
 gift, an intention to give which is not completely carried 
 into effect, and the creation of a voluntary trust. 
 
 1 . First, what is necessary to constitute a complete gift, 
 or donatio inter vivos ? 
 
 (1 .) In order to effect a gift of lands, it is necessary that 
 the transfer should be effected by deed. A feoffment 
 (unless made under a custom by an infant) is void 
 without this evidence (t). 
 
 (2.) As to a gift of chattels, it now seems clear that 
 it must either be perfected by delivery of possession or 
 evidenced by deed (^«) . A mere verbal gift of a chattel to 
 a person in whose possession it already is, has been held 
 not to pass any property therein (x) . On the other hand, 
 where the donor has, without manual delivery, in effect 
 transferred the possession, this has been considered suffi- 
 cient to complete the gift, the conduct of the parties 
 evidencing a change of ownership (?/) . When such a gift is 
 evidenced by deed without delivery, it is complete unless 
 and until disclaimer by the donee {z), which may be by 
 parol . 
 
 (3 .) The delivery by the donor to the donee of securities 
 transferable by delivery, with words of gift, and an inten- 
 tion on both sides to pass the property, constitutes a valid 
 donation {a) . 
 
 (4.) A gift of chattels may be made by a husband to his 
 wife without the intervention of a trustee, but in order to 
 establish an allegation of such a gift there must be clear 
 
 (0 8 & 9 Vict. c. 106, s. 3. 
 See Maskell and Gold/inch's Con- 
 tract, (1895) 2 Ch. 525. 
 
 (?<) Irons V. Smallpiece, 2 B. 
 & Aid. 551, 552; followed in 
 Cochrane v. Moore, 25 Q. B. 13. 
 57. 
 
 (a;) Sharr v. Pilch, 4 Excli. 
 478. 
 
 (y) Flory v. Benny, 7 Exch. 
 583'; Ward v. Audland, 16 M. & 
 W. 862; Alderson v. Peel, 64 
 L. T. 645; Kilpin v. Ratley, 
 (1892) 1 Q. B. 582. 
 
 (;:;) Siggers v. Evans, 5 E. & 
 B. 367. 
 
 (a) M'Culloch V. Bland, 2 Giff. 
 428; Bromley v. Brimton, 6 Eq. 
 275; mil V. Wilson, 8 Ch. 888.
 
 VOLUNTARY CONVEYANCES AND TRUSTS. 57 
 
 and distinct evidence corroborative of the wife's testi- 
 mony (6). The tendency of the Court is to regard slight 
 circumstances as sufficient corroboration of the wife's claim 
 where money which was originally her separate estate has 
 come into her husband's power (c). 
 
 2. Unexecuted intentions to give. Unexecuted 
 
 There is a marked and important distinction between „i^g_ 
 that class of cases in which a settlor without consideration 
 creates a trust in favour of others, and those in which he 
 has ineffectually attempted by an imperfect gift to confer 
 his whole interest upon volunteers. 
 
 (1.) It is clear that a mere expression of intention to Mere promise 
 divide property with, or to leave it to others, or a mere 
 promise to give, will not be enforced (d). The maxim ex 
 nudo pacto 7ion oritur actio is as applicable in equity as at 
 law. No action will lie for the execution of an agreement 
 which is not supported by consideration. And further, a 
 consideration merely meritorious will not suffice, so that a 
 voluntary covenant by a father to surrender copyholds to 
 trustees for the benefit of his children was held to be 
 wholly nugatory (e) . 
 
 (2.) But where the donor has gone farther than that, clear evidence 
 and has actually taken some steps with a design of trans- of intention to 
 
 -^ ^ ^ " _ g-ive will not 
 
 ferring his property, which steps are, however, ineffectual create a trust. 
 
 at law for that purpose, the question has arisen whether 
 
 equity ought not in such circumstances to come to the 
 
 assistance of the intended beneficiaries, and to give effect 
 
 to the imperfect legal astsignment by treating it as creating 
 
 a trust of the property in their favour. This question has 
 
 given rise to a great number of oases which it is not always 
 
 easy to reconcile, but the general result of which is that 
 
 the most clear inteiHion to confer a direct interest icill 
 
 (6) Grant v. G., 34 Beav. 623. (d) Dipple v. Corles, 11 Ha. 
 
 (c) Hoive V. a., 2 De G. & S. 183; Lister v. Hodgson, 4 Eq. 30. 
 294; Whittal-er v. W., 21 Ch. («) Jeferys v. /., Cr. & Ph. 
 
 D. 657; 51 L. J. Ch. 737. 138; Green v. Patterson, 32 Ch. 
 
 D. 95; 56 L. J. Ch. 181.
 
 58 
 
 EXPRESS TRUSTS. 
 
 lUustratious. 
 Antrobns v. 
 Smith. 
 
 There must be 
 an intention 
 to create 
 a trust. 
 
 Richardu v, 
 JJelbridge. 
 
 ?iot be sufficient of itself to create a trust in favour of a 
 volunteer. 
 
 Thus where a person indorsod upon llie receipt for one- 
 of the subscriptions in the F. & C. Navigation Company^ 
 the words: "I hereby assign to my daughter B. all my 
 "right, title and interest of and in the enclosed call, and 
 "all other calls in the F. & C. Navigation Company," 
 but never parted with the paper, the Court refused to hold 
 that a trust was created. He might have assigned the 
 property if he chose, but he did not, and there was no 
 power to compel him to do so. His act amounted to 
 some evidence of intention to transfer the property, but 
 there was a locus pos7iit entice, as long as the act was 
 incomplete (/). 
 
 So where the obligee of a bond signed a memorandum 
 not under seal, which was indorsed upon the bond, and 
 purported to be an assignment thereof without considera- 
 tion to a person to whom at the same time the bond was 
 delivered, it was held that the gift being not complete, 
 the Court could not give effect to it as a trust (g). 
 
 There are indeed some cases which seem to be incon- 
 sistent with the above rule, and which indicate an inclina- 
 tion to hold that to amount to a declaration of trust which 
 according to ordinary rules of construction would amount 
 only to an imperfect assignment (h). But the more recent 
 and emphatic decision in Richards v. Delbridge (i), follows 
 the more powerful current of authorities, and thus expresses 
 their principle, — " The true distinction seems to be plain 
 " and heycmd dispute ; for a rnan to make himself a trustee, 
 " there must he an expression of intention to become a 
 " trustee, lohereas words of present gift shoio an intention 
 " to give over property to another, and not to retain it in 
 
 (/) Antrobus v. Smith, 12 Vos. 
 39; Searle v. Law, 15 Sim. 95. 
 
 (17) Edwards v. Jones, 1 My. 
 & Cr. 226; Dillon v. Copuin, 4 
 ibid. 647. 
 
 (/i) Richardson v. R., 3 Eq. 
 686; Morgan v. ilalleson, 10 Eq. 
 475. 
 
 (0 18 Eq. 11.
 
 VOLUNTARY CONVEYANCES AND TRUSTS. 
 
 " the dmior's own hamU for unij purpose, fiduciary or 
 " othericise " (/<;). 
 
 (3.) Where a voluntary instrument, although effecting Where a 
 no legal transfer of property, creates a valid legal obliga- o^ilratwn 
 tion, equity will give effect to it {I) . Thus where a person created, 
 covenants, without consideration, to pay a sum of money, giy^. effect 
 if the covenant is complete, and the Court is not called *o ^^• 
 upon to do any act to make it perfect, it will give effect 
 to a trust declared upon it (w). This case is distinguish- 
 able from such as Jejferi/s v. J . (ii), in that the Court was 
 there asked to enforce a further act necessary at law to 
 complete the obligation; namely, to surrender the copy- 
 holds according to the voluntary covenant. 
 
 Where a paper is of a testamentary character, but Imperfect 
 
 T T n ,f> ,• -J 1 1 testaments 
 
 invalid from want of proper execution, it cannot be not aided. 
 
 enlarged or converted into a declaration of trust (o); and 
 
 if a testator by will gives property upon trusts afterwards 
 
 to be declared, he cannot make any valid declaration of 
 
 such trusts, except by an instrument duly executed as a 
 
 will or codicil. In the absence of such an instrument 
 
 and of conduct amounting to fraud on the part of the 
 
 trustee (p), the property would fall into residue (q). 
 
 It has been recently held that an imperfect gift of 
 
 personalty by a donor, who dies shortly afterwards, will 
 
 be made effectual by the appointment of the donee to be 
 
 the donor's executor or one of his executors (r). But this 
 
 rule will not be extended to a case where there was 
 
 merely a promise to give in future a sum of money not 
 
 (k) See also Milroi/ v. Lord, 4 (h) Cr. & Ph. 138. 
 
 De G. F. & J. 274; Breton v. z-^) Warriner v. lloqers, 16 
 
 Woollven, 17 Ch. D. 41G; .50 L. Eq. 340, 353. 
 
 J. Ch. 369; Gri-ffln v. G., (1899) \ 
 
 1 Ch. 408; 68 L. J. Ch. 220. ^P> :^up>a, p. 4U. 
 
 (0 Hallv. Pahner, 3 Ila. 532; C*?) Johnson v. Ball, 5 De G. 
 
 Dawson v. Kearton, 3 Sm. & Gift". ^ S™- ^5. 
 
 186. (r) Stewart v. McLaughlin, 
 
 (?/*) Clough V. Lambert, 10 (1908) 2 Ch. 251; 77 L. J. Ch. 
 
 Sim. 174; Mallott v. Wilson, 525; ioWowins; Strong v. Bird, 18 
 
 (1903) 2 Ch. 494; 72 L. J. Ch. Eq. 315; 43 L. J. Ch. 814. 
 664. 
 
 59
 
 60 
 
 EXPRESS TRUSTS. 
 
 identified or separated from the rest of the testator's 
 estate (s) . 
 
 A nomination made by a member of a Friendly Society 
 under the Friendly Societies Act, 1896 (t), or under the 
 Savings Bank Act, 1887 (u), is effective as a gift to the 
 nominee, and cannot be revoked by a subsequent will, or in 
 any other manner than that prescribed by the statutes (iv). 
 But it seems that the presumption of a gift being intended 
 may be rebutted by evidence of contrary intention {x) . 
 
 Voluntary 
 trusts. 
 
 Ellison ^ 
 Ellison. 
 
 Voluntary 
 trusts within 
 Statute 
 of Frauds. 
 
 3. Voluntary trusts. 
 
 (1.) Where the plaintiff's claim rests not on the allega- 
 tion of a gift, complete or incomplete, but of a 'trust 
 created in his favour, it is clearly settled that when a trust 
 is actually created, and the relation of cestui que trust 
 established, a Court of equity will in favour of a volunteer 
 enforce the execution of the trust against the person 
 creating it and all subsequent volunteers; but it will not 
 on behalf of volunteers interfere for the purpose of estab- 
 lishing the relationship of trustee and cestui que trust by 
 creating a trust. The leading authority which expressly 
 decided this point is Ellison v. Ellison (y). 
 
 The rule is sufficiently simple, but its application is 
 often by no means free from difficulty, as it is frequently 
 a question of much nicety to determine whether or not the 
 relation of trustee and cestui que trust has been estab- 
 lished . 
 
 It may be well, before considering in detail the cases 
 which illustrate the principle, to remind the reader that 
 voluntary trusts are, equally with others, within the pur- 
 view of the Statute of Frauds. If lands are concerned, 
 therefore, such trusts must be evidenced by some writing; 
 
 (s) Innes v. /., (1910) 1 Ch. 
 188; 79 L. J. Ch. 174. 
 (0 59 & 60 Vict. c. 25. 
 (m) 50 & 51 Vict. c. 40. 
 (lo) Bennett v. Slater, (1899) 
 
 1 K. B. 45; 68 L. J. Q. B. 45; 
 Ashbrj V. Coston, 21 Q. B. D. 401. 
 
 (a;) Turner v. Read, 75 L. T. 
 295. 
 
 (y) 6 Ves. 656; 2 W. & T. 
 L. C. 835, ed. 7.
 
 VOLUNTARY CONVEYANCES AND TRUSTS. 61 
 
 but a trust of pure personalty may be validly created by 
 a parol declaration (z) . In these cases, however, if doubt 
 or difficulty arises respecting the words alleged to have 
 been used, the Court may give weight to the suggestion 
 that the words, not being committed to writing, may not 
 express the deliberate sentiments of the party (a) . 
 
 (2.) There seems at first sight to be but a narrow dis- Narrow 
 tinction between some cases in which equity has given betw^en^th « 
 effect to such voluntary trusts, and others which have been trusts, and 
 described as imperfect gifts, and in which the Court refused g^f^a, 
 to interfere on behalf of the would-be beneficiaries. 
 
 In Fortescue v. Barneft{b), J. B. made a voluntary 
 assignment by deed of a policy of assurance effected upon 
 his own life to trustees upon certain trusts, and delivered 
 the deed to one of the trustees. The grantor kept the 
 policy in his own possession, and no notice of the assign- 
 ment was given to the assurance office. It was held that 
 an enforceable trust was created, since no act remained to 
 be done by the grantor which, to assist a volunteer, the 
 Court would not compel him to do. The facts and the 
 result were similar in Pearson v. Amicable Assurance 
 Co.(c). A comparison of these cases with Edwards v. The true 
 Janes and Richards v. Delbridge (d) will show that while ^'''^i^ction. 
 they agree in the fact that the act of the grantor was 
 incomplete, they differ in the crucial fact that in the 
 former the steps which were taken tended, though not 
 complete, to the creation of a trust, while in the latter 
 the intention evidenced did not point to a trust at all. 
 The distinction is, in short, that already quoted from the 
 judgment in Richards v. Delbridge. 
 
 (3.) There are two ways in which a settlor may deal Two ways of 
 with his property so as to create an irrevocable trust in ^^voiun^arv 
 
 trust. 
 
 (z) McFadden v. Jenkyns, 1 (c) 27 Beav. 229; see also Fox 
 
 Ph. 153; Shenstone v. Brock, 36 v. Eawks, 13 Ch. D. 822; Bad- 
 
 Ch. D. 541; 56 L. J. Ch. 923. deley v. B., 9 Ch. D. 113; Sewell 
 
 (a) Bip^le v. Gorles, 11 Ha. v. King, 14 Ch. D. 179. 
 
 183. (tf) 'Supra, p. 58. 
 
 (ft) 3 My. & K. 36.
 
 62 
 
 EXPRESS TRUSTS. 
 
 i. Transfer of 
 legal interest 
 with trusts 
 declared. 
 
 Locus paint - 
 tentice as 
 long as trusts 
 are not 
 declared. 
 
 ii. Complete 
 assignment of 
 
 equitalile 
 interest. 
 
 favour of volunteers; and they are equally applicable, 
 mutatis mutandis, whether his interest in the property is 
 legal or merely equitable. 
 
 (i.) Ellison V. Ellison establishes that where there has 
 been an actual bond fide transfer of a legal interest upon 
 trusts declared in favour of volunteers, these trusts will be 
 enforced in equity. It goes further, and is a clear autho- 
 rity for the proposition that the enforcement of the trusts 
 will not be prevented by the fact that the legal estate by 
 accident gets back into the hands of the donor, to whom 
 if it were transferred by the trustees, they would be guilty 
 of a breach of trust (e). 
 
 As long, however, as the trusts have not been deter- 
 mined by the settlor, notwithstanding a transfer to 
 trustees, he has a locus poeniie^iticB, and may call for a 
 re-transfer of the legal estate, there being no remedy for 
 or equity in the would-be cestui que trusts until the 
 declaration of the terms of the intended trust (/) . 
 
 (ii.) Similarly, if his estate be equitable, and he assigns 
 his equitable interest without consideration, doing all that 
 it is in his power to do to pass the property, the trans- 
 action is irrevocable. As to realty a contrary doctrine Avas 
 indeed expressed in Bridge v. B. (g); but the subsequent 
 ease of Gilbert v. Overton (h), supported as it is by 
 other authorities, among them the opinion of Lord St. 
 Leonards (i), is to be regarded as of greater weight. As 
 to personalty also, it was formerly held that an assignment 
 under seal of that which did not pass at law by the opera- 
 tion of the assignment itself, unaccompanied by other acts, 
 was no better than a covenant or agreement to assign, and 
 was therefore not enforceable (k). The principle has been 
 recently stated to be that the assignment of a mere expec- 
 
 (e) M'Bonnell v. Hesilrif/e, 16 
 Beav. 346; Mallott v. Wilson, 
 (1903) 2 Ch. 494; 72 L. J. Ch. 
 664. 
 
 (/) Re Syhes' Trusts, 2 J. & 
 H. 415. 
 
 {g) 16 Beav. 315, 327. 
 
 (A) 2 H. & M. 110, 117; and 
 see Nnnney v. Morgan, 37 Ch. D. 
 346; 57 L. J. Ch. 311. 
 
 (0 Sugd. V. & P. 719, 14th ed. 
 
 {Ic) Meek v. Ketflewefl, 1 Ha. 
 464, 474; Keheivich v. Manning, 
 1 De G. M. & G. 176.
 
 VOLUNTARY CONVEYANCES AND TRUSTS. 
 
 63 
 
 tancy, though it would be enforceable in equity as a cove- 
 nant to assign, if made for value (I), is not so enforceable 
 hy a volunteer, that is, where such an assignment is not 
 supported by valuable consideration (m) . 
 
 (iii.) On the other hand, it is not necessary, in order to iii. Settlor 
 render a trust in favour of volunteers enforceable, that himself' ^^ 
 there should have been an actual transfer of the legal trustee, and 
 interest to trustees. It suffices if the settlor has consti- trusts. 
 tuted himself a trustee and declared the trusts (n) . 
 
 (iv.) And similarly, if the interest be equitable a valid iv. Directing 
 
 . . trustees 
 
 trust may be created by the o-\\Tier's direction to the ^ hold on 
 
 trustees to hold the property in trust for the donee (o). certain trusts. 
 
 Notice to the trustees in whom the legal estate is vested is Notice only 
 
 necessary to protect the donee against third parties (p) ; againstThkd 
 
 but the trust is good as against the donor without it (p) ; parties. 
 
 nor is notice to the cestui que trust of the declaration of 
 
 trust necessary (q). 
 
 (4.) When in any of these ways a trust is executed Mistake 
 in favour of volunteers, it cannot afterwards, without good vitiates the 
 cause shown, be disturbed by the settlor (r). He is bound transaction. 
 by his own act, and his deed will only be set aside on his 
 establishing some good reason for the interference (s). 
 The mere absence of a power of revocation in the deed, 
 though the settlor's attention was not called to the fact, 
 is no sufficient reason (^). But in case mistake (m) or 
 fraud (x) can be shown, equity will interfere and rescind 
 the transaction. 
 
 The main question to be decided in all the cases is that 
 
 (I) Tailby v. Official Receiver, ((?) Tait v. Leithead, Kay, 658. 
 
 13 App. C. 523, 543; 58 L. J. (r) Paul v. P., 20 Ch. D, 743; 
 
 Q. B. 75. 51 L. J. Ch. 839. 
 
 (m) Toivry Law v. Burne, (s) Eenry v. Armstronff, 18 
 
 (1903) 1 Ch. 697; 72 L. J. Ch. Ch. D. 668. 
 
 218; Re Tilt, 74 L. T. 163. (0 Hall v. H., 8 Ch. 430; see 
 
 («,) Exp. Pye; Exf. Dubost, also James v. Couchman, 29 Ch. 
 
 18 Ves. 140, 150. D. 212; 54 L. J. Ch. 838. 
 
 (o) Rycroft v. Christy, 3 Beav. («<) Manning v. Gill, 13 Eq. 
 
 238. 485. 
 
 (/>) Donaldson V. D.,J^ay, 111. (a;) Chesterfield v. Janssen, 2 
 
 'See Hardinge v. Cobden, 45 Ch. Ves. sr. 125. 
 'D. 470; 60 L. J. Ch. 40.
 
 64 
 
 EXPRESS TRUSTS. 
 
 Doctriue 
 affected 
 by statutes. 
 
 above quoted from the judgment in Fortescue \ . Barnett^ 
 "whether any act remained to be done by the grantor 
 "which, to assist a volunteer, the Court would not compel 
 " him to do." And it should be remarked that this ques- 
 tion is considerably affected by several statutes by which 
 many kinds of property have been made assignable at 
 law which formerly were not so : e.g., policies of life assur- 
 ance by 30 & 31 Vict. c. 144, policies of marine assurance 
 by 31 & 32 Vict. c. 86, debts and other legal choses in 
 action by the Judicature Act, 1873 (y), s. 25, sub-s. 6. It 
 may well happen under these statutes that an incomplete 
 assignment will be refused support, which previously 
 thereto might have obtained it on the ground that the 
 grantor had done all that he could do at law to pass the 
 property. And it should further be observed that very 
 slight circumstances will be regarded as amounting to a 
 sufficient consideration to induce the Court to treat a 
 settlement as not voluntary (z) . 
 
 Fraud on 
 creditors, 
 13 Eliz. c. 5. 
 
 Fraudulent 
 intent, 
 express or 
 implied. 
 
 4. Statutory modifications. 
 
 (1.) By 13 Eliz. c. 5, "all covinous conveyances, gifts, 
 " alienations of lands or goods, whereby creditors might be 
 " in any way disturbed, hindered, delayed, or defrauded of 
 "their just right," are declared utterly void; but the Act 
 is not to extend to any estate or interest in lands, &c., on 
 good consideration, and bond fide conveyed to any person 
 not having notice of such covin. 
 
 Hence a voluntary settlement of real or personal pro- 
 perty may be set aside by a creditor of the settlor upon 
 his showing an intent on the part of the settlor to delay, 
 hinder, or defraud his creditors. This intent may be 
 express (a), or it may be inferred in different ways, as,, 
 for instance, by showing that the settlor was insolvent at 
 the time of the settlement, or even that he was largely 
 
 (y) 36 & 37 Vict. c. 66. 
 (z) See Hewison v. Negus, 16 
 Beav. 594; Re Foster and Lister, 
 
 6 Ch. D. 87. 
 
 (a) Spirett v. Willows, 3 De 
 G. .T. & S. 293.
 
 VOLUNTARY CONVEYANCES AND TRUSTS. 65 
 
 indebted (6), or that after deducting the settled property, 
 sufficient available assets were not left for payment of the 
 debts (c). To quote the words of Lord Hatherley in \vi,en 
 Holmes v. Pen7iy {d), " the settlor must have been at the ""P^"^^- 
 " time, not necessarily insolvent, but so largely indebted 
 "as to induce the Court to believe that the intention of 
 " the settlement, taking the whole transaction together, 
 " was to defraud the persons who, at the time of the 
 "settlement, were creditors of the settlor" (e). 
 
 It has been decided, however, that the protection of the Extends to 
 Act is not limited to those who were creditors at the time creators, 
 of the settlement. The mere fact of a subsequent insol- 
 vency is not indeed sufficient to set aside the settlement (/) . 
 But a deed designed to defraud future creditors, such as 
 a settlement of all or nearly all his present and future 
 property, especially by a person about to engage in trade, 
 is void as against such creditors (g) ; and a prospective 
 liability under a guarantee has been deemed sufficient 
 to avoid a settlement which in the event left insufficient 
 assets to meet the guaranteed debt (Ji) . 
 
 A creditor may, by his concurrence with or acquiescence Oreditor'n 
 in a deed voidable under 13 Eliz. c. 5, preclude himself byTccniies- 
 and his representatives from impeaching such deed (i), cence. 
 and an inquiry may be directed to ascertain whether any 
 creditors of a settlor had so acquiesced (fc) . 
 
 A bond fide purchaser from a volunteer under a deed Purchaser 
 void under the statute will be preferred to the general teer preferred 
 creditors who have no specific charge (Z). to creditor. 
 
 (b) Townsend v. Westucott, 2 {g) Ware v. Gardner, 7 Eq. 
 
 Beav. 340; Taylor v. Coenen, 1 317; Mackay v. Douglas, 14 Eq. 
 
 Ch. D. 636; Ideal Bedding Co. 106; Ex-p. Russell, 19 Ch. D. 
 
 V. Holland, (1907) 2 Ch. 157. 588; 51 L. J. Ch. 621. 
 
 (e) Freeman v. Pope, 5 Ch. (h) Ridler v. R., 22 Ch. D. 
 
 538. 74; Exp. Mercer, 17 Q. B. D. 
 
 {d) 3 K. & J. 90. 290; 55 L. J. Q. B. 558. 
 
 (e) Gregg v. Holland, (1902) (*) OUiver v. King, 8 De G. 
 
 2 Ch. 360; 71 L. J. Ch. 518. M. & G. 110. 
 
 (/) Re Lane-Fox, Exp. Gim- {k) Freeman v. Pope, 9 Eq. 
 
 blett, (1900) 2 Q. B. 508; 69 206, 212; 5 Ch. 538. 
 
 L. J. Q. B. 722. (0 George v. Milbanke, 9 Ves.
 
 66 
 
 EXPRESS TRUSTS. 
 
 Choses in 
 action within 
 the statute. 
 
 Voluntary 
 assurances 
 pendente lite 
 set aside. 
 
 Deeds for 
 good 
 
 consideration, 
 but mala fide. 
 
 Choses in action, having since 1 & 2 Vict. c. 110, 
 become available for the payment of debts under an 
 execution, are within the statute (-m). 
 
 A voluntary deed executed pendente lite for the purpose 
 of defeating any process in the nature of execution will be 
 set aside in equity (?z); and also a deed executed by one 
 who knows that a decision is about to be pronounced 
 against him (o). But an assignment made in good faith 
 by a debtor in favour of his creditor has been held not 
 invalid by reason of its being made with the express in- 
 tention of defeating some other particular creditor of the 
 assignor; and, further, that though the existence of an 
 antecedent debt is not of itself valuable consideration for 
 an assignment, yet it may be such if coupled with a 
 promise, express or imj)lied, of some benefit to the 
 assignor, such as forbearance to sue or the making of a 
 fresh advance. In this case the debt assigned was a sum 
 of money to which the assignor expected to become entitled 
 by virtue of an impending action for slander. It was 
 deemed not to be invalid as savouring of champerty or 
 maintenance {p) . 
 
 It is to be observed that a deed founded on good con- 
 sideration may be declared void under the statute if not 
 made hmid fide. But in such circumstances a stronger 
 case must be made out than in that of a voluntary settle- 
 ment. An express intent to defraud must in fact be 
 proved ('q'). Where there was evidence of an intent to 
 defeat and delay creditors, a settlement made in considera- 
 tion of marriage was held to be not sustainable, the 
 marriage itself being part of the fraudulent scheme (r). 
 
 190; Halifax Bank v. Glcdhill, 
 (1891) 1 Ch. 31; 60 L. J. Ch. 
 181; Re Brail, (1893) 2 Q. B. 
 381; 62 L. J. Q. B. 457. 
 
 (;«) Stol-oe V. Cowan, 29 Beav. 
 637. 
 
 (w) Blenkinsopp v. B., 12 Beav. 
 568; 1 De G. M. & G. 495. 
 
 (o) Barlinff v. Bishop, 29 Beav. 
 417; and see Exp. Mercer, supra. 
 
 (p') Glegg v. Bromley, (1912; 
 3 K. B. 474; 81 L. J. K. B. 1081. 
 
 ((?) Harman v. Richards, 10 
 Ha. 89; Exp. Ellis, 2 (^h. D. 
 798; Exp. Chrtplin, 26 ih. 319; 
 53 L. J. Ch. 732. 
 
 (;■) Cohimbine v. Prnhall, 1 
 Sm. & G. 228; Buhner x. Tliinter, 
 8 Eq. 46; Re Penninr/fnn, 5 
 Morr. B. 216.
 
 VOLUNTARY CONVEYANCES AND TRUSTS. 67 
 
 But a deed honestly meant as a family arrangement will 
 be sustained (s) . 
 
 (2.) The Bankruptcy Act, 1883 {t), contains provisions Bankruptcy- 
 still more stringent against voluntary settlements than y^^^ (, 52. ' 
 13 Eliz. c. 5. By s. 47, which includes non-traders as 
 well as traders, any settlement not being (,1) a settlement 
 made before and in consideration of marriage; or (2) a 
 settlement made in favour of a purchaser (;u) or incum- 
 brancer bond fide and for valuable consideration; or (3) a 
 settlement 'made after marriage on the wife or children of 
 the settlor of property accrued to him in right of his wife, 
 is void against the trustee in bankruptcy if made within 
 two years previous to the settlor's bankruptcy. And if Exceptions in. 
 the settlor becomes bankrupt within ten years after 
 making a voluntary settlement except as above excepted, 
 it will be void unless those claiming under it can prove 
 (1) that the settlor was at the time of making the settle- 
 ment able to pay all his debts without the aid of the 
 settled property; and (2) that the settlor's interest in 
 the property settled passed to the trustee of the settlement 
 on the execution thereof. Under this statute it has been 
 held that to constitute a bond fide purchaser, it is sufficient 
 if there be good faith on his part, even if the good faith 
 of the settlor be doubtful (x) ; and a voluntary settlement 
 is only void as against the trustee in bankruptcy from the 
 time when his title accrues, so that the title of a bmid fide 
 purchaser from a beneficiary, not only if accruing before 
 the bankruptcy is good against the trustee (y), but even if 
 
 (s) Golden v. Gillam, 20 Ch. {x/') ReCarter and Kenderdine'a 
 
 D. 389; 51 L. J. Ch. 503. Contract, (1897) 1 Ch. 776; 66 
 
 (0 46 & 47 Vict. c. 52. --J- Ch 408 ; Re Vansitfart, 
 
 (m) Exp. Millnuin, 10 Ch. D. Q. B.277; Re Brail, supra; over- 
 li]22; Hance y. Harding, 20 Q.B. ^.^^^^^ j^^ ^,.;^^^g „„^ Sp!cer, 
 D. 732; 57 L. J. Q. B. 403. (1891) 2 Ch. 127; 60 L. J. Ch. 
 
 (a;) Macintosh V. Pogose, (1895) 514; and see Re Tankard, (1899) 
 1 Ch. 505; 64 L. J. Ch. 274. 2 Q. B. 57; 68 L. J. Q. B. 670; 
 
 Halifax Bank v. Gledhill, sup. 
 
 5 (2)
 
 68 
 
 EXPRESS TRUSTS. 
 
 Fraud on 
 
 purchaser!. 
 27 Eliz. c. 
 
 Applied 
 
 to lands only. 
 
 Who were 
 purchasers. 
 
 the purchase is subsequent to the act of bankruptcy to 
 which the title of the trustee relates back {z) . 
 
 Moreover by the same section an ante-nuptial covenant 
 or contract to sell future property not being property in 
 right of the settlor's wife is void against his trustee in 
 bankruptcy unless the property has been actually trans- 
 ferred pursuant to the contract. 
 
 (3.) By 27 Eliz. c. 4, it was enacted that every convey- 
 ance, grant, charge, lease, limitation of use of, in, or out of 
 any lands, tenements, or other hereditaments whatsoever, 
 for the intent and purpose to defraud and deceive such 
 persons, &c., as should purchase the said lands, or any 
 rent or profit out of the same, should be deemed only 
 against such persons, their heirs, &c., who should so pur- 
 chase for money or any good consideration the said lands, 
 &c., to be wholly void, frustrate, and of none effect. 
 
 Thus a voluntary settlement of lands, including lease- 
 holds, was held void against subsequent purchasers for value 
 from the settlor, including mortgagees (a), lessees (6), and 
 trustees taking under settlements for valuable considera- 
 tion (c), even ivith notice of the settlement {d)\ and it was 
 no support to a settlement that it was a fair provision 
 for a wife and children {d) . Volunteers, moreover, could 
 not restrain their settlor from selling the settled estates (e) . 
 A voluntary conveyance for charitable purposes was held 
 not to be within the Act (/) . It will be observed that 
 this statute, differing from 13 Eliz. c. 5, did not apply to 
 chattels personal or money. 
 
 A conveyance apparently voluntary might be supported 
 by collateral evidence showing a contract for value (g) . 
 
 (z) He Hart, Exp. Green, 
 (1912) 3 K. B. 6; 81 L. J. K. B. 
 1213. 
 
 («) Dolphin V. Ayltvard, 4 L. 
 R. H. L. 486. 
 
 (6) Lewis V. Hopkins, 9 East, 
 70, cited. 
 
 (c) Wathins v. Sieevens, Nels. 
 160. 
 
 {d) Hoe V. Manning, 9 East, 
 59. 
 
 (e) Pulvertoft v. P., 18 Ves. 
 84; Biicl'le v. Mitchell, ibid. 100. 
 
 (/) Ramsay v. Gilchrist, (1892) 
 A. C. 412; 61 L. J. P. C. 72. 
 
 (/;) Pott V. Todhunter, 2 Coll. 
 76; Townend v. Taker, 1 Ch. 446.
 
 VOLUNTARY CONVEYANCES AND TRUSTS. 69 
 
 A purchaser could only claim the protection of the 
 statute when he purchased from the settlor himself. A 
 conveyance for value by the heir or devisee of the settlor 
 did not avail against a bond fide settlement (h) ; nor did a 
 conveyance for value from one who claimed under a second 
 voluntary settlement (i) . 
 
 It should also here be mentioned that a small and inade- Small 
 quate consideration Avas sufficient to support a settlement gufficientto" 
 against a purchaser (fc). Thus, though leaseholds were support settle- 
 within the Act, if a person took them subject to onerous purchaser, 
 covenants, the liability so incurred was deemed a sufficient 
 consideration to support his title against a subsequent pur- 
 chaser (Z) . It has, however, been held that the principle 
 of this case does not apply as against creditors (wi) . 
 
 But these decisions under 27 Eliz. c. 4, have now to a Voluntary 
 large extent become irrelevant and inapplicable, since by Act^i893?*^" 
 the Voluntary Conveyances Act, 1893 (n), it has been 
 enacted that no voluntary conveyance of lands, tenements, 
 or hereditaments, whether made before or after the passing 
 of the Act, if in fact made bond fide and without fraudulent 
 intent, shall hereafter be deemed fraudulent or covinouis 
 within the statute of Elizabeth by reason of any subse- 
 quent purchase for value, or be defeated under any of the 
 provisions of the said statute by a conveyance made upon 
 any such purchase. But the Act does not apply in any 
 case in which the author of a voluntary conveyance of any 
 lands has subsequently, but before the 29th day of June, 
 1893, disposed of or dealt with the same to or in favour 
 of a purchaser for value. A purchase within the meaning 
 of the Act includes a mortgage, a lease, and a settlement 
 for value, as under the previous Act. The effect, there- 
 fore, is that a voluntary conveyance of land is now good 
 
 (A) Lewis V. Sees, 3 K. & J. (I) trice v. Jenkins, 5 Ch. D. 
 
 132. 619; Harris v. Tubb, 42 Ch. D. 
 
 (0 RicMrds V. Lewis, 11 C. B. 79; 58 L. J. Ch. 434. 
 
 1035. (m) Ridler v. R., 22 Ch. D. 
 
 (Ic) Bayspooley. Collins, 6 Ch. 74; 52 L. J. Ch. 343; see also 
 
 228, 232. Exp. Hillman, 10 Ch. D. 622. 
 
 (n) 56 & 57 Vict. c. 21.
 
 70 
 
 EXPRESS TRUSTS. 
 
 Consideration 
 of marriage. 
 
 Valuable. 
 
 When 
 supporting 
 post-nuptial 
 settlement. 
 
 against a subsequent purchaser for value, even without 
 notice, unless it can be shown that it was really made with 
 fraudulent intent. If such intent is proved, the convey- 
 ance will still be void against purchasers, as under 
 13 Eliz. c. 5, it would be void against creditors (o). 
 
 There has been much discussion as to the sufficiency 
 and scope of the consideration of marriage; and though 
 by reason of the above statute the question has less 
 importance than formerly, there may still be cases in 
 which it will arise . 
 
 Marriage has always been recognized in both law and 
 equity as a valuable consideration; and it is quite clear 
 that an ante-nuptial wi'itten agreement, followed by mar- 
 riage, puts the wife and children of the settlor in the posi- 
 tion of purchasers for value {p) . A post-nuptial settlement 
 made in consideration and pursuance of an ante-nuptial 
 parol agreement has been held good as against the trustee 
 in bankruptcy of the settlor (g) . In the case of such a 
 settlement made without referring to any previous agree- 
 ment, though a previous agreement had been made by the 
 husband while an infant, it was held that the settlement 
 could not prevail against a subsequent purchaser (r), and 
 it is clear that a mere post-nuptial settlement, without any 
 ante-nuptial agreement, was void against a subsequent 
 purchaser even with notice (s) ; but such a settlement 
 might be supported on very slight consideration {t). We 
 have seen (sup., p. 66) that if the marriage is part of 
 a fraudulent scheme, it will not be treated as valuable 
 
 (o) Prideaux's Conveyancing, 
 ii. 280, ed. 17. 
 
 (p) Kirk V. Clark, Free, in Cli. 
 275; Tensdale v. Braithwaite, 4 
 Ch. D. 85; 5 ibid. 630; Re Reis, 
 Exp. Clough, (1904) 2 K. B.769; 
 73 L. J. K. B. 929. 
 
 ((7) Gregg v. Holland, (1902) 
 2 Ch. 360; 71 L. J. Ch. 518; 
 Dundas v. Butens, 2 Cox, 235; 
 Spurgeon v. Collier, 1 Eden, 55; 
 
 IVarden v. Jones, 2 De G. dc J. 
 76. 
 
 (r) Trovoell v. ^henton, 8 Ch. 
 D. 318. 
 
 (s) Butterfield v. Heath, 15 
 Beav. 408. 
 
 (<) Hewison v. Negus, 16 Beav. 
 594; Bayspoole v. Collins, 6 Ch. 
 228; In re Foster and Lister, 6 
 Ch. D. 87. But see Shurmur v. 
 Sedgwich, 24 Ch. D. 597; 53 L. 
 J. Ch. 87.
 
 VOLUNTARY CONVEYANCES AND TRUSTS. 7l 
 
 consideration. And the Voluntary Conveyances Act, 
 1893, ^vould not protect such a transaction, bona fides 
 being absent. 
 
 As to the scope of the marriage consideration, it has Scope of the 
 been held not to extend to collaterals, or the children of a ^°°^^ '^^^ ^°"' 
 future marriage (u) . But children of a former marriage 
 were held to be entitled as against a subsequent pur- 
 chaser (x) ; and a limitation in favour of the settlor's 
 illegitimate child, though not itself within the marriage 
 consideration, was sustained in a case where its avoidance 
 would have defeated other limitations which were within 
 the consideration (y) . But the same principle does not 
 apply in the case of the second marriage of a widower, in 
 favour of his children by the first marriage (z) . A limita- 
 tion in favour of collaterals, indeed, has been supported 
 where there has been a party to the settlement who has 
 purchased on their behalf (a) . 
 
 A voluntary settlement under these statutes is only Voluntary 
 interfered with as far as the purposes of the statute in only affected 
 
 question require. It may be void against creditors in one as far as 
 
 ... necessary for 
 
 case, or purchasers m the other, but it is, nevertheless, valid purposes of 
 against and irrevocable by the settlor or grantor himself, ^"e statutes. 
 He <can not only not set aside the settlement, but he cannot 
 come into a Court of equity to enforce on an unwilling pur- 
 chaser the specific performance of a contract for sale of an 
 estate which he has previously settled (&■), though the pur- 
 chaser might so enforce the very same contract against 
 liim(c). It has, however, been decided that if the pur- 
 
 (w) Wollaston v. Tribe, 9 Eq. disapproving Clarke v. Wright, 
 
 44; Johnson v. Legard, 3 Madd. sup. 
 
 283. See Tucker v. Bennett, 38 r~^ jig Cameron and Wells, 37 
 
 Ch. D. 1; 57 L. J. Ch. 507. ch. D. 32; 57 L. J. Ch. 69. 
 
 (a;) 'Newstead v. Searles, 1 («) Heap v. Tonge, 9 Ha. 104. 
 
 Atk. 265; Clarke v. Wright, 6 (h\ Stnith v. Garland, 2 Mer. 
 
 H. & JSf . 849; Mackie v. Herbert- X23. 
 
 son, 9 App. C. 303. /• \ r> r ■ ttzi • oc 
 
 ■^^ (c) Baking v. Whimper, 26 
 
 (y) He Mestre v. West, (1891) Beav. 568; Trowell v. Shenton, 
 
 A. C. 264; 60 L. J. P. C. 66; sup.
 
 72 
 
 EXPRESS TRUSTS. 
 
 chaser is willing to complete on a good title being shown, 
 the vendor may get a decree (d) . 
 
 Similarly, also, if only a part of the settled estate has 
 been sold, and the settlement is set aside as to that part, 
 it nevertheless remains good as to the remainder (e) ; and 
 where a man by a voluntary deed, void against creditors, 
 conveyed real estate for the benefit of his wife and children 
 and afterwards became bankrupt, the surplus of the estate 
 so settled was held bound by the trusts of the settle- 
 ment (/) . 
 
 Trusts 
 debts. 
 
 to pay 
 
 Revocable till 
 communicated 
 to creditors, 
 
 5. Trusts for the payment of debts. 
 
 Voluntary trusts for the payment of debts are of a 
 peculiar character, and being regulated by principles 
 quite distinct from those which have been above discussed, 
 must be considered separately. 
 
 A legal transfer of property for payment of the debts of 
 the owner, as long as it is not known to or concurred in by 
 the creditors, does not invest creditors with the character 
 of cestui que trusts. It is considered merely as a direction 
 to the trustees as to the method in which they are to 
 apply the property vested in them for the benefit of the 
 owner of the property, who alone stands in the relation of 
 cestui que trust, and has the exceptional power of being 
 able to vary or revoke the trusts at his pleasure (g) . Until 
 some further step has been taken, the transaction is 
 regarded as amounting to no more than a mandate, as 
 where a man gives money to his servant or agent for the 
 purpose of paying a debt, a proceeding which creates no 
 right whatever in the creditor. The mere fact, therefore, 
 of the existence of such a deed will not suffice to induce 
 the Court to decree execution of the trust for the payment 
 of debts (h) . But a provision for the benefit of creditors, 
 
 (d) Peter v. Nicolls, 11 Eq. 391. 
 
 (e) Croker v. Martin, 1 Bligh, 
 N. S. 573; 1 D. & C. 15. 
 
 (/) French v. F., 6 De G. M. 
 
 & G. 95. 
 
 {g) ifalwyn v. Coutts, 3 Mer. 
 707; 3 Sim. 14. 
 
 (A) Wahcyn v. Coutts, sup.;
 
 VOLUNTARY CONVEYANCES AND TRUSTS. 73 
 
 which does not come into operation until after the settlor's 
 death, is not revocable by one claiming through the 
 settlor (i) . And it must be observed that there is a 
 broad distinction between a trust for creditors generally, 
 and a trust for particular persons, who happen to be 
 creditors. If in the latter case the relation of trustee and 
 cestui que trust is created the case falls within the principle 
 already expounded and the trust is irrevocable {k) . 
 
 If, however, a settlement in favour of creditors has or acted 
 
 ' ' _ _ upon ; not so 
 
 been acted upon (J), or even if it has been communicated afterwards, 
 to the creditors, the trust is complete, and can no longer 
 be revoked by the settlor, since the creditors, being aware 
 of such a trust, might be thereby induced to a forbearance 
 in respect of their claims Avhich they would not otherwise 
 have exercised, after which it would be unjust to dis- 
 appoint them (m) . And if one of the creditors is made What is 
 trustee for himself and the other creditors, and the assign- mun^cation™' 
 ment has been communicated to him and received his 
 assent, it cannot afterwards be revoked by the assignor {n) . 
 Again, Avhere property had been conveyed upon trust for 
 payment of debts, to a person who was surety for some 
 of the debts, though the creditors were neither parties nor 
 privy thereto, the trustee was held entitled to retain it 
 until discharged from his liability as surety (o) . If also 
 the trust has been communicated to some creditors, it 
 would seem that it cannot, after their debts are satisfied, 
 be revoked as to the remaining creditors (p) . 
 
 Garrard V. Lauderdale, 3 Sim. 1; S/utrp v. Jackson, (1899) A. C. 
 
 2 Russ. & M. 451; Acton v. 419; 68 L. J. Q. B. 866. 
 
 Woodgate, 2 My. & K. 492; (l) Cosser v. Radford, 1 Tie Gc. 
 
 Johns V. James, 8 Ch. D. 744. J. & S. 585. 
 
 (i) Fitzqerald v. White, 37 Ch. {ni) Acton v. Woodgate, 2 My. 
 
 D. 1, 18; 57 L. J. Ch. 594; & K. 492, 495; ^/owwe v. Cavew- 
 
 Synnot v. Simpson, 5 li. L. C. dish, 1 Jo. & La. 606. 
 
 121; Priestley v. Ellis, (1897) 1 («) Siggers v. Evans, 5 E. & 
 
 Ch. 489; 66 L. J. Ch. 240. B. 367. 
 
 (Jc) Smith V. Hurst, 10 Hare, (o) Wilding v. Richards, 1 
 
 30; Neiv v. Hunting, (1897) 2 Coll. 655. 
 
 Q. B. 19; 66 L. J. Q. B. 54; (??) Griffith v. Ricketts, 7 Ha. 
 
 307.
 
 74 
 
 EXPRESS TRUSTS. 
 
 Creditor party 
 to the deed. 
 
 Long delay to 
 execute deed 
 or conduct 
 opposed to the 
 deed bars 
 creditor's 
 claim. 
 
 Resulting 
 trust of 
 surplus. 
 
 Where a creditor is party to a deed whereby his debtor 
 convoys property to a trustee to be applied in liquidation 
 of the debt due to that creditor, the deed is as to him 
 irrevocable; a valid trust in his favour is created (g); 
 and Avhat is true where a single creditor is cestui que (rust, 
 is of course equally so where there are many such. It 
 suffices also if a creditor is party to a deed, though in 
 another right than as cestui que trust for the amount of 
 his debt (r). In a case where an assignment was made to 
 a trustee for the benefit of creditors, but no creditor was 
 aware of such assignment, it was held that the trustee 
 might sue in equity against a third party to recover 
 property of the settlor outstanding in such third party (s) . 
 
 Though there is a time limited in the deed within which 
 creditors are directed to execute it, yet if by accident any 
 of them fail to do so, they will not necessarily lose the 
 benefit of the trusts, if they eventually act under or upon 
 the faith of the deed, or acquiesce in it (f). 
 
 A creditor, however, who for a long time delays {u), or 
 who refuses to execute the deed, and does not retract his 
 refusal within the time limited ('a;), and a fortiori if he 
 sets up a title adverse to the deed (ry), will not be allowed 
 to claim the benefit of its provisions. And generally the 
 Court, before it permits a creditor to claim the benefit of 
 a deed, will see that he has performed all the fair condi- 
 tions of the deed; and if he has taken any step incon- 
 sistent therewith, he will be deprived of all advantage 
 therefrom {z). 
 
 As a rule, in the case of a settlement in favour of 
 creditors, if there is a surplus after payment of the debts. 
 
 ((?) Mackinnon v. Steivart, 1 
 Sim. N. S. 88. 
 
 (r) Montefiore v. Brown, 7 H. 
 L. 241, 266. 
 
 (s) Glec/cj V. Rees, 7 Ch. 71. 
 
 {t) Raworth v. Parker, 2 K. & 
 J. 163; In re Baber's TruHa, 10 
 Eq. 554. 
 
 (m) Gould V. Robertson, 4 De 
 G. & Sm. 509. 
 
 (a;) Johnson v. Kershaw, 1 De 
 G. & Sm. 260. 
 
 (y) Watson v. Knight, 19 Beav. 
 369; Meredith v. Facey, 29 Ch. 
 D. 745; 54 L. J. Ch. 1106. 
 
 (z) Field V. Donoughmore, I 
 Dru. & W. 227.
 
 VOLUNTARY CONVEYANCES AND TRUSTS. 75 
 
 it results for the benefit of tlie settlor or his representa- 
 tives. But if the deed amounts to an absolute assignment 
 of the property, and makes no provision for the disposal 
 of a surplus, there will be no resulting trust (a) . 
 
 By s. 4 of the Bankruptcy Act, 1883 (6), it constitutes 
 an act of bankruptcy to make a conveyance or assignment 
 of property to a trustee for the benefit of creditors gene- 
 rally; and by the Deeds of Arrangement Act, 1887 (c), 
 s. 4, any such deed is void, unless registered as prescribed 
 by the Act, within seven days from its execution. If they 
 comprise lands of any tenure they must also be registered 
 under the Lands Charges Registration Act, 1888 (d), and 
 are otherwise void against any purchaser, mortgagee, or 
 lessee. 
 
 (a) Smith v. Cooke, (1891) A. (c) 50 & 51 Vict. c. 57. 
 
 C. 297; 60 L. J. Ch. 607. (d) 51 & 52 Vict. c. 51. 
 
 (6) 46 & 47 Vict. c. 52.
 
 76 
 
 RESULTING (OR IMPLIED) TRUSTS. 
 
 Section III. — Resulting (or Implied) Trusts. 
 
 Definition ancL Classification . 
 I. Parting i.cith Legal and retaining Equitable 
 Interest. 
 II. Fur chase in Tumies of Third Persons. 
 
 III. Exceptions. 
 Presumptio7i of Admincement. 
 
 IV . Joint Purchases . 
 
 Definition. Where the owner of property so deals with it that equity 
 
 presumes an intention on his part to sever the legal from 
 » the equitable or beneficicd interest, it gives effect to such 
 
 presumed intention by apply i7ig the principle of trusts. 
 
 These trusts are termed Residting (or, by some authors, 
 
 Implied) trusts. 
 
 Classification 
 
 There are two leading classes of resulting trusts . First, 
 where an owner parts with the legal estate by conveyance, 
 devise, or bequest, and equity presumes that he had no 
 intention to part with the equitable interest. Secondly, 
 where a purchaser directs a conveyance of the legal estate 
 to be made to a third person, but equity presumes an 
 intention to acquire the equitable interest for himself. 
 
 On what 
 grounds 
 intention to 
 retain equit- 
 able interest 
 is presumed. 
 
 I. Residting trusts where an owner parts tvith the legal 
 interest intending to retain the equitable. 
 
 The inquiry suggested by this class of cases is, on what 
 grounds the Court will hold that a settlor or testator did 
 not intend to part with the equitable interest.
 
 PARTING WITH BARE LEGAL ESTATE. 77 
 
 (1.) Where such intention is expressed. Express 
 
 intention. 
 
 The clearest case is where an intention not to benefit the 
 grantee, devisee, or legatee is actually expressed upon the 
 instrument which transfers the legal estate. 
 
 We have already seen that where a trust is evidently If no trust 
 intended to be created, the person into whose hands the it results' to 
 legal estate is transferred cannot hold it beneficially settlor 
 (p. 42). Thus, where a bequest is made to a person 
 "upon trust," and no trust is declared (a), or the trusts 
 declared are too vague to be executed (6), or are void for 
 unlawfulness (c), or fail by lapse {d), the trustee can have 
 no pretence for claiming the beneficial ownership, the 
 whole property being clearly impressed with a trust. In 
 such cases, therefore, the trust will result to the settlor or his repre- 
 or his representatives, the heir as to realty, the next of 
 kin as to personalty; and the trustee cannot defeat the 
 resulting trust by parol evidence in his favour (e) . 
 
 (2.) Where the intention is presumed. 
 
 (i.) It was an ancient and well-known principle of Presumed 
 equity before the Statute of Uses, that when a feoffment 
 of real estate was made to a person without consideration, 
 the use at once resulted to the feoffor, and in equity he 
 continued to enjoy the beneficial interest. The same prin- Resulting- 
 ciple is still applicable, but, as we shall see, upon terms "^®^ 
 somewhat different from those which were anciently 
 regarded with respect to uses. Formerly, a consideration, 
 however trifling, was sufficient to entitle the feoffee to the 
 use of the lands of which he was enfeoffed . Modern equity, contrasted 
 however, makes a wider inquiry than as to the mere pay- ^ugts"^" '^"^ 
 ment or non-payment of a nominal consideration, before it 
 
 (a) Dawson v. Clarke, 18 Ves. (c) Carrick v. Errington, 2 P. 
 
 247, 254; Barrs v. Fewke, 2 H. & Wms. 361. 
 
 M. 60; Merchant Taylors' Co. v. {ci) Ackroijd y.Smithson,\ Bro. 
 
 Att.-Gen., 6 Ch. 512. C. C. 503, et infra, p. 519 et seq. 
 
 (6) Foioler v. Garlike, 1 R. & (e) Langham v. Sanford, 17 
 
 M. 232; Leavers v. Clayton, 8 Ves. 442; 19 ib. 643; Irvine v. 
 
 Ch. D. 584. Sullivan, 8 Eq. 673.
 
 78 
 
 RESULTING (OR IMPLIED) TRUSTS. 
 
 Where 
 declared 
 trusts do not 
 exhaust the 
 property. 
 
 Special rules 
 as to charities. 
 
 No resulting 
 trust where a 
 general 
 intention of 
 charity- 
 expressed ; 
 
 nor where 
 trusts 
 
 decides as to the title to the beneficial enjoyment; and it 
 is especially vigilant to observe any indications of fraud 
 or mistake having affected the transaction (/) . 
 
 (ii.) Perhaps the most important class of cases under 
 this head are those in which a settlor conveys property on 
 trusts which do not exhaust the whole property. In such 
 cases gtsnerally there will be a resulting trust in favour of 
 the settlor of so much of the property as is unaffected 
 by the trust declared {g) . The same principle has been 
 applied where a fund raised by subscription is not ex- 
 hausted by the objects declared Qi). Cases in which, upon 
 the construction of the deed or from attendant circum- 
 stances, no intention to retain any benefit is manifest are 
 distinguishable. In such oases the surplus may, according 
 to circumstances, pass to the Crown as bona vacantia (i), 
 or may be retained by the first beneficiary (fc) . 
 
 With respect, however, to gifts to charities, there are 
 certain special rules which must be observed {I). 
 
 Where a person makes a valid gift, whether by deed or 
 will, and expresses a general intention of charity, but either 
 particularises no objects (m), or such as do not exhaust the 
 proceeds {n), the Court will not suffer the property in the 
 first case, or the surplus in the second, to result to the 
 settlor or his representatives, but will take upon itself 
 the execution of the general intention, by declaring the 
 particular purposes to which the fund shall be applied. 
 
 Where a person settles lands, or the rents and profits of 
 
 (/) Birch V. Blagrave, Amb. 
 264; Lloijd v. S fillet, 2 Atk. 150. 
 As to the doctrine ot advance- 
 ment, see Dyer v. J>., infra, p. 83. 
 
 (9) P am ell v. Hingston, 3 Sm. 
 k, G. 337, 344; George v. Grose, 
 (1900) 1 Ch. 84; 69 L. J. Ch. 71; 
 Patrick v. Simpson, 24 Q. B. D. 
 128; 59 L. J. Q. B. 7. 
 
 (Ji) Smith V. Abbott, (1900) 2 
 Ch. 326; 69 L. J. Ch. 539; Re 
 Printers', ^-c. Protection Soc, 
 (1899) 2 Ch. 184; 68 L. J. Ch. 
 537 ; but see and distinguish 
 
 Carter v. A^idrew, (1905) 2 Ch. 
 48; 74 L. J. Ch. 462. 
 
 (i) Cunnach v. Edivards, (189i6') 
 2 Ch. 679; 65 L. J. Ch. 801; 
 Braith)vaite v. Att.-Gen., (1909) 
 1 Ch. 510; 78 L. J. Ch. 314. 
 
 (k) Smith V. Cooke, (1891) A. 
 C. 297; 60 L. J. Ch. 607. 
 
 (I) Lewin, 10th ed., p. 172. 
 
 (m} Att.-Gen. v. Her rick, 
 Amb. 712. 
 
 (») Att.-Gen. v. Tanner, 2 Ves. 
 jr. 1; Bruty v. Machey, (1896) 2 
 Ch. 727; 65 L. J. Ch.881.
 
 PARTING WITH BARE LEGAL ESTATE. 79 
 
 lands, to purposes which at the time exhaust the proceeds, declared at the 
 
 -I,- J. • •., 1 f.,1 time exhaust 
 
 but in consequence oi an increase in the value ot the the proceeds. 
 
 estate an excess of income subsequently arises, the Court 
 
 will order the surplus, instead of resulting, to bo applied 
 
 in the same or a similar manner with the orig-inal 
 
 amount (o). 
 
 But even in the case of a charity, if the settlor do not But trust 
 give the land or the whole rents of the land, but, noticing aii^*not'a7^ 
 the property to be of a certain value, appropriates part first disposed 
 •only to the charity, the residue will then, according to the 
 ■circumstances of the case, either result to the heir-at- 
 law (p), or if the donee be itself an object of charity (as 
 in the case of a charitable corporation) will belong to the 
 •donee subject to the charge {q). 
 
 (iii.) The distinction must be observed between a devise Contrast 
 to a person for a particular purpose with no intention of ^^*^J^^ 
 •conferring a beneficial interest, and a devise with a view of trust for 
 conferring a beneficial interest, but subject to a particular panoses, 
 direction. If a testator gives to A. and his heirs all his 
 reul estate charged with his debts, that is a devise which 
 includes a particular purpose, but is not restricted to it. 
 The devisee, therefore, takes the beneficial interest, subject 
 to the debts; but if the testator devises all his real estate 
 to A. and his heirs upon trust to pay his debts, that is a 
 devise solely for a particular purpose, with no intention to 
 confer a beneficial interest. If there be, therefore, in this 
 case any surplus after payment of the debts, it results to 
 the heir of the testator (r) . 
 
 This species of resulting trust being dependent upon Parol evidence 
 presumption of law, may bo rebutted as to instruments ^^*° ^qq^» 
 
 , . " . . inter vivos 
 
 inter vwoshj parol evidence of the settlor's intention (s). admissible to 
 For the extensive class of resulting trusts which depend presumptl 
 
 tion. 
 
 (o) Beverley v. Att.-Gen., 6 H. L. 1. 
 
 li. L. 310. (/•) King v. Denison, 1 V. & B. 
 
 (p) Att.-Gen. v. M. of Bristol, 272. 
 
 2 J. & W. 308. (s) Cooky. Hutchinson, I Keen, 
 
 ((7) Beverley Y. Att.-Gen. sup. ; 42, 50; Fowhes v. Pascoe, 10 Ch. 
 
 Att.-Gen. v. South Moulton, 5 343.
 
 80 
 
 RESULTING (oR IMPLIED) TRUSTS. 
 
 upon the doctrine of conversion, and which might in a 
 strict classification bo hm-c treated of, see infra, p. 519 
 et seq. 
 
 Where pur- 
 chaser takes a 
 conveyance in 
 name of a 
 third person. 
 Illustrated. 
 
 II. Fur chases in the Names of Third Persons. 
 
 (1 .) The second order of resulting trusts comprises those 
 which arise when a person purchases an estate but takes 
 a conveyance in the name of another person. 
 
 The general principle on wiiich they rest may be thus 
 illustrated. Suppose A. advances the purchase-money of 
 a freehold, copyhold, or leasehold estate, and a conveyance, 
 surrender, or assignment of the legal interest in it is made 
 either to B., or to B. and C, or to A., B. and C, 
 jointly or successively; in all these cases if B. and C. 
 are strangers, a trust ivill residt in favour of A. The 
 doctrine applies equally to real and personal property (t). 
 
 In connexion therewith it will be convenient first to 
 consider some important rules of evidence respecting these 
 trusts. 
 
 When parol 
 evidence 
 admissible to 
 prove by 
 whom 
 purchase- 
 money is 
 paid. 
 
 (2.) General rules of evidence. 
 
 (i.) If the advance of the purchase-money by the real 
 purchaser does not appear on the face of the deed, and 
 even if it is stated to have been made by the nominal 
 purchaser, parol evidence is admissible to prove by ^vhom 
 it was actually made (u), resulting trusts being, by s. 8, 
 expressly excepted from the operation of the Statute of 
 Frauds. 
 
 In a recent case in which property was purchased in the 
 name of and conveyed to a husband, but the evidence 
 showed that the purchase-money belonged to his wife, and 
 that there was no intention on her part to make a gift of 
 
 (<) Sidmouth v. S., 2 Beav. 
 447, 454; Worthingion v. Curtis, 
 1 Ch. D. 419. 
 
 (m) I'eachey's case, Sugd. V. & 
 F. 910, 11th ed.
 
 PURCHASES IN THE NAMES OF THIRD PERSONS. 
 
 81 
 
 it to the husband, the wife was held to bo beneficially; 
 entitled. It was deemed to be immaterial whether the 
 purchase-money was derived from capital or income {x) . 
 
 But where the trust does not arise on the face of the 
 deed itself, the parol evidence must prove the fact of the 
 advance of the purchase-money very clearly (y) ; and doubt 
 has been expressed whether such evidence is admissible 
 after the death of the nominal purchaser (z) . It is not, 
 however, easy to see how his death affects the principle (a). 
 If the nominal purchaser admits the payment of the money 
 by the real purchaser, a trust will doubtless result (6); and 
 where he, by answer to a bill, denied such payment, parol 
 evidence was admitted to contradict him (c) . 
 
 In a case in which a defendant purchased an estate 
 in his own name with his own money, and the plaintiff 
 alleged that he did so as agent for him, which the defendant 
 denied, parol evidence tendered by the plaintiff to prove a 
 verbal agreement constituting the agency was rejected, on 
 the ground that such a case was not within the exception 
 of the statute, since no trust there arose by operation of 
 law, but it was sought to raise one by parol evidence of 
 an agreement (d) . But these decisions have since been 
 overruled as being inconsistent with the principle that 
 the Statute of Frauds is not to bo made an instrument 
 of fraud (e). 
 
 (ii.) Parol evidence is admissible to prove that a pur- To prove 
 chase has been made with trust money, and upon that tms°tmoury. 
 being proved a trust will result in favour of the cestui que 
 trust, the real owner of the money (/) . 
 
 (iii.) Since resulting trusts arise from equitable pre- To show 
 
 (x) Mercier v. M., (1903) 2 (b) Ryal v. R., 1 Atk. 58. 
 
 Ch. 98; 72 L. J. Ch. 511. (c) Gascoigne v. Thwing, sup. 
 
 (y) Gascoigne v. Thiving, 1 {d) Bartlett v. Pickersgill, 1 
 
 Vern. 366; Willis \. 7F., 2 Atk. Eden, 515; James v. Smith, 
 
 71. (1891) 1 Ch. 384. 
 
 (2) Sandars on Uses, 1, 354, (e) Rochefoucauld v. Boustead, 
 
 5th ed.; Chalk v. Danvers, 1 Ch. (1897) 1 Ch. 196; 66 L. J. Ch. 
 
 Ca. 310. 74; Heard v. Pilley, 4 Ch. 548. 
 
 (a) Lench v. L., 10 Ves. 511, (/) Lench v. L., sup. 
 517. 
 
 S.: 6
 
 82 
 
 RESULTING (Oli IMPLIED) TRUSTS. 
 
 intention of 
 advancement. 
 
 Presumption 
 rebutted 
 in pait. 
 
 Evidence 
 of interested 
 parties. 
 
 Acquiescence. 
 
 Express trust 
 evidenced. 
 
 sumption, they may be rebutted by parol evidence which 
 shows an intention in the person advancing the purchase- 
 money that the person to whom the property was trans- 
 ferred should take for his own benefit (g) ; and such an 
 intention existing at the time of the purchase cannot te 
 subsequently altered (h) . Resulting trusts may also be 
 rebutted as to part and prevail as to the other part, as 
 where an intention is proved to confer a life interest on 
 the nominee {i). 
 
 (iv.) Parol evidence of interested parties is admissible 
 to rebut a resulting trust, but in order to be sufficient 
 for that purpose it must be at least corroborated by 
 surrounding circumstances (fe) . 
 
 (v.) The presumption of a resulting trust will be 
 rebutted by acquiescence for a considerable time in the 
 enjoyment of the property by the person in whose name 
 it was purchased {I). 
 
 (vi . ) And where there is an express trust declared upon 
 a purchase made in names of strangers, though but by 
 parol, there can be no resulting trust; for resulting trusts, 
 though excepted from the Statute of Frauds, were only 
 left as they were before the Act, and a bare parol 
 declaration before the Act would have prevented any 
 resulting trust (m) . 
 
 "Where it 
 would 
 contravene 
 an Act of 
 Parliament. 
 
 III. Exceptions frojn the Ge^ieral Rule in such Purchases. 
 
 1 . There will be no resulting trust where the policy of 
 an Act of Parliament would be thereby defeated. Thus 
 it was held that no trust resulted in favour of a person 
 
 (y) Goodright v. Hodges, 1 
 Watk. Cop. 227; LofEt, 230; 
 Redington v. R., 3 Ridg. P. C. 
 178. 
 
 {h) Groves \. G., Z Y. k. 3. 
 163, 172; Standing v. Bowring, 
 27 Ch. D. 341; 31 ib. 282; 55 
 L. J. Ch. 218. 
 
 («■) Lane v. Bighton, Amb. 409; 
 Fowkes v. Pascoe, 10 Ch. 343. 
 
 (^;) Fowkes v. Pascoe, sup. 
 
 (l) Delane v. B., 7 Bro. P. C. 
 279; Clegg v. Edtnondson, 8 De 
 G. M. & G. 787. 
 
 (;») Bellasis v. Compton, 2 
 Vern. 294; Ay erst v. Jenkins, 16 
 Eq. 275.
 
 EXCEPTIONS FROM GENERAL RULE IN SUCH PURCHASES. 83 
 
 advancing the purchase-money of a ship registered in the 
 name of another, for the register, according to the policy 
 of the old licgistry Acts, was conclusive evidence of 
 ownership both at law and in equity (n) . 
 
 On a simple principle, a trust will not, it seems, result 
 in favour of a person who has purchased an estate in the 
 name of another in order to give him a vote in electing 
 a member of Parliament (o) . Where, again, a person 
 having deposited moneys in a savings bank up to the full 
 amount allowed by statute, made further deposits to an 
 account in his own name in trust for his sister, giving her 
 no notice of the investment, it was held that the only 
 intention being to evade the Act of Parliament, no trust, 
 was created, and the claim of the sister was refused (p). 
 
 2. Presumption of Advancement. 
 
 A more important class of cases is that which springs Presumption 
 from the doctrine of advancement. On this a leading o* '^^"*'8'^<^6- 
 
 o ment. 
 
 authority is Dyer v. Dyer (q). 
 
 In this case copyholds were granted to A. and B. his 
 wife and C . his younger son to take in succession for their 
 lives and the life of the survivor. The purchase-money 
 was all paid by A. Nevertheless C. being a son of A. 
 was held not to be a trustee of his life interest for A., 
 but to take beneficially, the presumption being that the 
 purchase teas intended by the father to effect an advance- 
 ment of the son. 
 
 (1.) The general rule applying equally to real and per- General rule 
 eonal property is that where a j^urchase is made in the children 
 name of a child there will prima facie be no resulting trust 
 for the parent, but, on the contrary, a presumption arises 
 that an advancement was intended. For this Dyer v. 
 
 ()?) Exp. Gallop, 15 Ves. 60, (79) Tield v. Lonsdale, 13 Beav. 
 
 68; but see HoJderness v. Lam- 78. 
 
 ■port, 29 Beav. 129. (9) 2 Cox, 92; 2 W. & T. 
 
 (o) Groves v. Groves, 3 Y. & J. L. C. 803, ed. 7. 
 163, 175. 
 
 6 (2)
 
 84 
 
 RESULTING (OR IMPLIED) TRUSTS. 
 
 or where 
 donor .stands 
 in loco 
 parentis, 
 
 or of a wife. 
 
 Not where a 
 mother pur- 
 chases in the 
 name of 
 a child. 
 
 Dyer is a very strong authority, since there the purchaser 
 had given some indication of an intention contrary to 
 advancement by having actually devised the purchased 
 property (r) . 
 
 (2.) The presumption of advancement arises not only 
 in favour of children, but also in that of persons towards 
 whom the purchaser has put himself in loco fMrentis. Thus 
 an illegitimate child (s), a grandchild (^), and the nephew 
 of a wife (m), and many others in similar circumstances, 
 have been held entitled to the benefit of property purchased 
 in their name. In the case of a grandchild, however, it is 
 important to inquire whether his father is living, as it has 
 been held that if so the locus parentis of the grandfather 
 will not avail to raise the presumption {x) . 
 
 (3 .) The presumption also arises in favour of a wife {y) ; 
 and also where there has been a purchase in the joint 
 names of the purchaser, his wife, and a stranger {z) . A 
 decree of nullity made subsequently to the purchase has 
 been held not to defeat the wife's claim {a). 
 
 But there is no similar presumption if the purchaser 
 stands merely in loco mariti, and has purchased in the 
 name of a woman with whom he has been cohabiting (6), or 
 has illegally gone through the form of marrying, as in the 
 case of a deceased wife's sister under the former law (c) . 
 
 Where a purchase is made by a married woman out of 
 her separate estate in the names of her children, it may, 
 be open to question whether, under the present law, there 
 would be deemed to be a presumption of advancement. 
 Previously to the recent Acts relating to married women, 
 
 (r) Finch v. F., 15 Ves. 43; 
 Sidmouth v. S.,2 Beav. 454. 
 
 (s) Beckford v. B., LofiEt, 490. 
 
 (f) Ebrand v. Dancer, 2 Ch. 
 Ca. 26, 
 
 (w) Currant v. J ago, 1 Coll. 
 261. 
 
 (x) Tucker v. Barroio, 2 H. & 
 M. 515. 
 
 (y) Kingdon v. Bridges, 2 
 
 Vern. 67. 
 
 (s) Re Eykyn's Tr., 6 Ch. D. 
 115. 
 
 (a) Dunbar v. D., (1909) 2 Ch. 
 639. 
 
 (6) Bider v. Kidder, 10 Ves. 
 360. 
 
 (c) Soar V. Foster, 4 K. & J. 
 152; and see Re A Policy, No. 
 6,402, #0., (1902) 1 Ch. 282.
 
 DOCTRINE OF ADVANCEMENT. ^ 
 
 it is clear that there was no such presumption (d), a mother 
 heing then under no legal obligation to provide for her 
 children. And though by the Married Women's Property 
 Act of 1870 (e) a married woman having separate pro- 
 perty was rendered liable for the maintenance of her 
 children as a ividow ivas liable, it was still held that no 
 presumption of advancement arose in the absence of other 
 evidence of such intention (/), the liability of the mother 
 being still of a lower nature than that of a father. 
 Now by s. 21 of the Married Women's Property Act, 
 1882 (g), a married woman having separate property is 
 rendered subject to all such liability for the maintenance 
 of her children as the husband is by law subject. But 
 the principle of Bennet v. B. Qi) would seem to be still 
 applicable, and it is submitted that even now there would 
 l)e no presumption of advancement . It is doubtful on the 
 authorities whether the doctrine is applicable to the case of 
 a widow (i) ; and certainly if it would not be applied as or of a 
 between a mother and her children, a fortiori it would not 
 in the case of a purchase by a wife in the name of her 
 liusband (k) . It is, however, most important to observe 
 that in all such cases, if apart from the relationship a7i 
 intention to advance is proved, there is no resulting 
 trust (I). 
 
 Where a contract is entered into to purchase real pro- Vendor must 
 perty in the name of the child, although the child, being a JiSd^if^^ ^ 
 volunteer, could not sue for specific performance of the purchase is 
 contract, nevertheless, if the vendor enforces the contract, 
 the conveyance must be made to the child (m) . And of 
 -course the same principle applies to a wife, and in the case 
 
 (d) Re Be Visme, 2 De G. J. 431; but of. Bennet v. B., sup. 
 
 & S. 17. W Mercierv.M.,(l9m)lC\i. 
 
 (e) 33 & 34 Vict. c. 93. 98; 72 L. J. Ch. 511, sup: p. . 
 (/) 5emfe^v. 5.,10Ch. D. 471. (0 Beecher v. Major, 2 D. & 
 Ig) 45 & 46 Vict. c. 75. Sm. 431. 
 
 (A) Sup. (m) Redington v. R., 3 Ridg. 
 
 (0 Sa7jre v. Hughes, 5 Eq. P. C. 196. 
 376; Batstone v. Salter, 10 Ch.
 
 86 RESULTING (OR IMPLIED) TEUSTS. 
 
 of a joint contract (71). But if tlie father or husband is- 
 liable only as a sui'ety for the debt there is no resulting 
 trust (0) . 
 Circiimstances 3 _ JVlanv circumstances have been taken into considera- 
 
 fonnerly _ -^ _ 
 
 rebutting the tion as rebutting the presumption of advancement; but 
 
 do^nors^now ™ost of those formerly of weight are not now regarded. 
 Thus at one time the infancy of the child was a circum- 
 stance against the purchase being considered an advance- 
 ment; at present it tells in the opposite direction (p). 
 Again, it was once an argument against advancement that 
 the property purchased was reversionary, and therefore 
 not a proper provision for a child; but this would not now 
 be of any avail (q). Lord Hardwicke regarded a purchase 
 in the joint names of the parent and child as a weaker case 
 for advancement than a purchase in the name of a son 
 alone (r) . Such a circumstance would now have little if 
 any weight. The stranger, in such a purchase, would 
 hold his share in trust for the father; the child would be 
 considered advanced to the extent of his interest (s) . 
 Presumption If a child has been already fully advanced, this affords 
 child fully ^^^ objection to the presumption, and the child may be held 
 advanced. g, trustee for its father; but such a circumstance is by no 
 means conclusive (t) . Partial advancement is of no weight 
 against a child (u) . It has been sometimes regarded as 
 evidence of the absence of intention to advance, if the 
 father remains in receipt of the rents or profits of the 
 estate or fund purchased. The objection is, however, now 
 without weight, certainly if the child is an infant (x), and 
 apparently also if he is adult, unless strengthened by 
 
 (w) Drew V. Martin, 2 il. k. M. ,599; Bummer v. Pitcher, 2 My. 
 
 130; Vance v. V., 1 Beav. 605. & K. 262,272. xYnd see Cowmw- 
 
 (o) TV hitehouse v. Edwards, 3 sioner of Stamp Duties v. Byrnes, 
 
 Ch. D. 683; 57 L. J. Ch. 161. (1911) A. C. 386; 80 L. J. P. C. 
 
 (^) Lamplugh v. X., 1 P. Wins. 114. 
 
 ill; Finch V. F., 15 Ves. 43. (0 Hepworth v. H., 11 Eq. 10. 
 
 {q) Rumboll v. R.,1 Eden, 15, (m) Bedinqton v. i?., 3 Eidg. 
 
 17; ?Fi7Zi«wsv. ?F.,32Beav. 370. P. C. 196. 
 
 (r) Pale v. P., 1 Ves. sr. 76. {x) Loyd v. Beid, 1 P. Wms. 
 
 (s) Grey v. G., 2 Swanst. 594, 088.
 
 DOCTRINE OF ADVANCEMENT. 87 
 
 the additional circumstance of his being already fully 
 advanced {y) . 
 
 Where an advancement is made by a person largely Advancement 
 indebted at the time, it will be void as against creditors creditOTs. 
 under 13 Eliz. c. 5 {z); but 27 Eliz. c. 4, had no similar 
 application in favour of purchasers (a) . 
 
 And ^vhere the relation of client and solicitor subsists C^^^*^ solicitor 
 between the parent and child, the ordinary presumption in parent. 
 favour of advancement will be excluded, and the burden 
 of proving its validity will be thrown on the son acting as 
 solicitor (6). 
 
 Where a father makes, in the name of a son, a purchase Son may 
 of "property which is attended with risk of loss, the Court onerous ^ 
 may on the part of the son repudiate his interest; in which property, 
 case the father remains liable (c) . 
 
 In a case of advancement, where part of the purchase- Unpaid pur- 
 money remains unpaid, it is a debt payable out of the payable out of 
 assets of the father (d) . father's 
 
 ^ ^ assets. 
 
 4. Rules of evidence as to presumption of advance- 
 ment. 
 
 (1.) The presumption of advancement may be rebutted Evidence to 
 by evidence of facts showing the father's intention that the presumption 
 son should take the property as a trustee, and not for his 
 own benefit. Such facts must, however, have taken place Contempora- 
 antecedently to, or contemporaneously and in immediate ^eousactsof 
 connexion with, the same transaction (^e) . For instance, 
 if there is, on the purchase, an immediate and formal 
 taking possession by the father, as by entering into a shop 
 and putting his name over the door, that would be 
 
 (y) Grej/ v. G., sup.; Worth- G. & Sm. 244. 
 ington v. Curtis, 1 Ch. D. 419. (c) Reid's Case, 24 Beav. 318; 
 
 (z) Christy v. Courtenay, 13 JFest07z's Case, 5 Ch. 614. 
 Beav. 96. {d) Skidmore v. Bradford, 8 
 
 («) Breto v. Martin, 2 H. & Eq. 134. 
 M. 130, 133. (e) Grey v. G., sup.; Collinson 
 
 (6) Garrett v. WilJcinson, 2 De ^. C, 3 De G. M. & G. 409.
 
 88 
 
 RESULTING (OR IMPLIED) TRUSTS. 
 
 Subsequent 
 acts not 
 admissible. 
 
 Parol deelaia- 
 tions contem- 
 poraneous ; 
 not 
 subsequent. 
 
 Evidence to 
 support the 
 presumption. 
 
 Acts and 
 declarations 
 of father 
 subsequent. 
 
 Evidence 
 showing' 
 fraud on the 
 law not 
 admissible for 
 the father. 
 
 Surrounding 
 
 circumstances 
 
 considered. 
 
 sufficient to establish ownership in the father and trustee- 
 ship in the son (/) . 
 
 Subsequent acts, however, are not admissible in evidence 
 against the son's interest. Thus a devise as in Dyer v. 
 Dyer, or a mortgage {g), or other such disposition of the 
 property is of no avail {h). 
 
 (2.) The presumption of a/dvancement may also be 
 rebutted by evidence of parol declarations of the father 
 contemporaneous with the purchase; but not of any 
 declarations made subsequently (^) . 
 
 (3.) A fortiori -psLTol evidence may be given by the son 
 to show the intention of the father to advance him, such 
 evidence being in support of both the legal interest of the 
 son, and the equitable presumption (fc). 
 
 (4.) The acts and declarations of the father subsequent 
 to the purchase, though not admissible in his favour, are 
 admissible against him in favour of the son (Z), and it 
 seems that subsequent acts and declarations of the son can 
 be used against him by the father; though they would not 
 be sufficient to counteract clear evidence of the father's 
 original intention to advance the son (w) . 
 
 (5.) The father may not tender evidence in support of 
 the trust, the effect of which would be to show that the 
 transfer was intended to effect a fraud on the law, such 
 as a conveyance of lands to the son for the purpose of 
 qualifying him for an office or a vote (n) . 
 
 (6.) Any surrounding circumstances may be taken into 
 consideration to rebut the presumption of advancement. 
 Thus, where a husband pays money into a bank to an 
 account opened in his wife's name, and it appears that the 
 account was opened for convenience sake, the intention 
 
 (/) Stock V. M'Avoy, 15 Eq. 
 55, 59. 
 
 (^) Bach V. Andrew, 2 Vem. 
 120. 
 
 (7i) Murless v. FranJclin, 1 
 Swanst. 13. 
 
 (i) Elliott V. E., 2 Ch. Ca. 231 ; 
 Sidmouth v. S., 2 Beav. 447, 456. 
 
 {k') Lampluf/h v. L., 1 P. Wms. 
 113. 
 
 (?) Redington v. R., 3 Ridg. 
 P. C. 195, 197. 
 
 (;w) Sidmouth v. S., sup.; 
 Jeans v. CooJce, 24 Beav. 513, 521. 
 
 (w) Childers v. C, 3 K. & J. 
 SIO; May v. M., 33 Beav. 81.
 
 ARISING FROM JOINT PURCHASES. 89 
 
 'being not to give the wife any interest in the money, but 
 to enable her to act as agent, the money will remain the 
 property of the husband (o) . In another case, where it 
 was considered that the transfer of the husband's account 
 into the joint names of himself and his wife was made 
 in order to enable the wife to draw cheques, the same 
 •conclusion was reached (p). 
 
 IV. Resulting Trusts arising from Joint Purchases. 
 
 The principal authority on this species of resulting 
 trusts is Lake v. Gibson, Lake v. Craddock{q). 
 
 In this case five persons purchased an estate as joint 
 tenants in fee, but contributed unequally towards the pur- 
 chase, after which some of them died. They were held 
 to be tenants in common in equity; and though one of 
 the five had deserted the partnership for thirty years, 
 yet he was let in afterwards on terms. 
 
 1 . It is an invariable rule at law that when purchasers General rule 
 take a conveyance to themselves and their heirs, they will ^* 
 be joint tenants, and upon the death of one of them the 
 estate will go to the survivor. The judgment of Sir J. 
 Jekyll, in the above case, expresses as clearly as possible 
 liow equity regards and treats this rule. " Equity folloivs How viewed 
 the law,'' except where circumstances exist which give rise ^^ ^^^ ^' 
 to the presumption that the parties did not intend the rule 
 ■of law to apply (r). This case shows that an unequal 
 ladvance of the purchase-money is regarded in equity as 
 «uch a circumstance. In applying the rule thus stated, Leaning 
 it must be remembered that in equity there is a strong t^^f ^°™* 
 leaning against joint tenancy; and it readily seizes on any 
 circumstance from which it can be reasonably implied that 
 
 (o) Lloyd V. Pier/he, 8 Ch. 88; (q) 3 P. Wins. 158; 2 VV. & T. 
 
 a,Tidse&IIarvei/v. Hobday, (1896) L. C. 952, ed. 7. 
 
 1 Ch. 137; 65 L. J. Ch. 370. (r) Rigden v. Vallier, 3 Atk. 
 
 (^') Marshal v. Crutwell, 20 735; 2 Ves. sr. 258; Aveling v. 
 
 Eq. 328. Knife, 19 Ves. 441.
 
 90 
 
 RESULTING (OK IMPLIED) TRUSTS. 
 
 Unequal 
 
 advauce 
 
 of purchase - 
 
 money. 
 
 Joint 
 mortgages. 
 
 a tenancy in common was intended, so that it may hold 
 the survivors of joint purchasers trustees of the legal estate 
 for the representatives of the deceased purchaser. 
 
 Sir J. Jekyll qualified the general rule which he laid 
 down by requiring, in order to justify the interference of 
 equity with the rule of law, not only an unequal advance 
 of purchase-money, but also that this should appear from 
 the deed itself. Lord Hardwicke, however, lays down 
 the same rule without this qualification (<s) . 
 
 2. Other circumstances than unequal advances may 
 suffice to raise the presumption that tenancy in common 
 was intended. Perhaps the most important class of such 
 cases are those which arise in what are at law joint mort- 
 gages. At law the debt and security belong to the sur- 
 vivor. In equity, ivhether the 'money is advanced equally 
 or unequally, mortgagees are deemed to he tenants in 
 common, and the survivor is held to be a trustee for the 
 personal representatives of the deceased mortgagee {t). 
 And if joint mortgagees purchase or foreclose the equity 
 of redemption, they will still be held in equity tenants in 
 common, on the ground of presumed intention (m) . 
 
 In Robinsonv. Preston (x), a similar intention was pre- 
 sumed in the case of a purchase of stock and the opening 
 of a bank account in their joint names by two sisters who 
 resided together. The moneys so dealt with arose from 
 rents of land of which they were tenants in common . On 
 this ground, strengthened by the facts that other moneys 
 similarly arising were invested on mortgage, the deed of 
 which contained a declaration against joint tenancy, and 
 further that the survivor (lagainst whom, of course, her 
 own declaration might be read), by her will, executed in 
 the lifetime of the deceased, spoke of "her share" of the 
 property in question, and affected to dispose of it in favour 
 of her sister, Lord Hatherley declared that the sisters were 
 
 (s) Hif/den v. Vnllier, 3 Atk. 
 735; 2 Ves. sr. 258; Harrison v. 
 Barton, 1 J. & H. 287, 293. 
 
 (0 Morley v. Bird, 3 Ves. 631. 
 (m) Rigden v. Vallier, sup. 
 (x) 4 K. & J. 505.
 
 ARISING FKOM JOINT PURCHASES. 91 
 
 tenants in common in equity of the stock and bank balance. 
 It should be mentioned, however, that in a somewhat 
 similar, though distinguishable case, Lord Romilly came 
 to a different conclusion {y) . 
 
 It seems that parol evidence of subsequent dealings, as Parol evidence 
 well as of surrounding circumstances, is, on a purchase by adnusBibie to 
 two persons contributing equally, admissible to prove an intention 
 intention to hold in severalty; but that such evidence as severally 
 to statements of intention, is not admissible (2) . 
 
 3 . The principle of resulting trusts is similarly applied 
 to joint purchases made in the way of trade, or in part- 
 nership or other commercial transactions. Its operation 
 in such cases will be considered in detail under the head of 
 Partnership {infra, p. 652). 
 
 (y) Bone v. Pollard, 24 Beav. (s) Compare Harrison v. Bar- 
 
 283. ton, sup., and Bevoy v. B., 3 
 
 Sm. & G. 403.
 
 92 
 
 CONSTRUCTIVE TRUSTS. 
 
 Section IV. — Constructive Trusts. 
 
 I. Definition. 
 
 II. Reneiml of Leases by Trustees. 
 III. Purchase of Trust Property by Trustees. 
 
 I. Definition and Description. 
 
 Definition. When on the grounds of justice and good conscience, 
 
 without reference to the intention of the parties, equity 
 considers the holder of the legal estate not to be entitled to 
 enjoy the equitable or beneficial interest, it treats him as 
 a trustee. Trusts thus created are called Constructive 
 Trusts. 
 
 Trustees, &c. 
 gaining 
 advantage 
 from their 
 trust. 
 
 The usual circumstanoes from which these trusts proceed 
 are where a trustee or any person clothed with a fiduciary 
 character seeks to gain some personal advantage by 
 availing himself of his position as a trustee. As soon as 
 such an advantage is acquired through the medium of a 
 trust, the trustee, however good a legal title he may have, 
 will be decreed in equity to hold for the benefit of the 
 cestui que trust. 
 
 The principle of constructive trusts enters into so many 
 departments of equity, that it is desirable under this 
 especial heading to deal only with some of the leading and 
 most characteristic illustrations of it. In other parts of 
 the work, for instance in considering the remuneration of 
 trustees, and in the chapter on fraud, it will be necessary 
 again to refer to the principle, and further illustrations 
 will be afforded.
 
 RENEWAL OP LEASES BY TRUSTEES. 93 
 
 The trusts by which effect is given to the liens of vendors 
 and purchasers, though frequently classed as constructive 
 trusts, are of a distinct nature. From their intimate 
 relation to mortgages, it has been deemed preferable to 
 deal with them in connexion with that branch of the 
 subject. (See infra, p. 343.) 
 
 , II. Renewal of Leases hy Trustees. 
 
 Of constructive trusts, one extensive class arises from Renewal 
 renewals of leases, in their own names, by trustees and trustees, &c. 
 other persons clothed with a fiduciary character. The 
 leading authority among cases of this description is Keech 
 V. Sandford (a), also commonly known as the Romford 
 Market Case. 
 
 In this case a person being possessed of a lease of the 
 profits of a market devised his estate to a trustee in trust 
 for an infant. Before the expiration of the term the 
 trustee applied to the lessor for a renewal for the benefit 
 of the infant. This was refused on the ground that, it 
 being only the profits of a market, there could be no 
 distress, and the remedy must rest simply in covenant, 
 which the infant could not make. There was clear proof 
 of the refusal to renew the lease for the benefit of the 
 infant. On this refusal the trustee got a lease made to 
 himself. A bill was brought by the infant to have the 
 lease assigned to him, and for an account of the profits. 
 The plaintiff relied on the principle that wherever a lease 
 is renewed by a trustee or executor it shall be for the 
 benefit of the cestui que use. The defendant admitted 
 the principle, but denied that it was applicable to this 
 case, because of the proof of an express refusal to renew 
 to the infant. Lord Chancellor King said: " I must con- 
 Co) Sel. Ca. in Ch. 61; 2 W. & T. L. C. 693, ed. 7.
 
 94 CONSTRUCTIVE TRUSTS. 
 
 " sider this as a trust for the infant; for I very well see, if 
 " a trustee, on the refusal to renew, might have a lease to 
 "himself, few trust estates would be renewed to a cestui 
 " que use. Though I do not say there is fraud in this case, 
 "yet the trustee should rather have let it run out than 
 " have had the lease to himself. This may seem hard, 
 " that the trustee is the only person of all mankind who 
 "might not have the lease; but it is very proper that the 
 "rule should be strictly pursued, and not in the least 
 "relaxed; for it is very obvious what would be the 
 " consequences of letting the trustees have the lease on a 
 "refusal to renew to the cestui que use.'' 
 
 So it was decreed that the lease should be assigned to 
 the infant, and that the trustee should be indemnified 
 from any covenants comprised in the lease, and on account 
 of the profits made since the renewal. 
 
 The rule laid down by Lord King has been invariably 
 followed; the ground of the decisions being the public 
 policy of preventing persons in such situations from 
 acting so as to take a benefit to themselves (&). 
 
 A distinction must, however, be drawn between the 
 renewal of a lease by a person in a fiduciary position, 
 and the purchase of the fee simple reversion. If the 
 lease in question is renewable by contract or custom, 
 the purchaser of the reversion will be held fixed with 
 the trust (c). But if not so renewable, the fee simple 
 reversion being a quite different interest may, in the 
 absence of fraud, be held for the purchaser's own 
 benefit (d) . 
 
 1. As to the persons to whom the doctrine extends. 
 
 To whom this This doctrine of constructive trusts extends to the 
 
 doctrine i-i- pn j.t • r> i • 
 
 extends. general inclusion oi all persons standing m a fiduciary 
 
 relation with respect to the property affected. 
 
 (6) Grifin v. G., 1 S. & L. (d) Sevan v. Webb. (1905) 1 
 
 354. Ch. 620; 74 L. J. Ch. 500; 
 
 (c) Phillips V. P., 29 Ch. D. Longton\. Wilsbi/, 76 'L.T. 770; 
 673; 54 L. J. Ch. 943. - Sandall v. Russell, 3 Mer. 190.
 
 RENEWAL OF LEASES BY TRUSTEES. 95 
 
 (1.) The leading case is sufficient authority for its Trustees, 
 application to express trustees. An executor stands in and adminis- 
 precisely the same position (e). Similarly, an adminis- trators. 
 tratrix of a deceased yearly tenant, who obtained a new 
 tenancy from year to year, was held to be trustee thereof 
 for the next of kin of the intestate, though there was no 
 suspicion of fraud (/) . 
 
 (2.) Another class, which is the subject of a great Tenants for 
 
 number and variety of decisions, is that of tenants for life, ^ ®" 
 
 or others having a limited interest in renewable leaseholds, 
 
 who renew the leases in their own names. In these cases 
 
 they will be held trustees for those entitled in remainder 
 
 to the old lease {g) . Thus, in James v. Dean (h), a testator 
 
 bequeathed leaseholds for years determinable upon lives to 
 
 his widow (who was his executrix and residuary legatee) 
 
 for life, with remainder over; the term expired during the 
 
 testator's life, but he continued to hold as tenant from 
 
 year to year: the widow obtained a new lease to herself, 
 
 but it was held to be subject to the trusts of the will, as 
 
 the residue of the term at the testator's death, however 
 
 short, would have been. But if the testator had been 
 
 only a tenant at will, or on sufferance, the case would 
 
 have been different. Then the tenancy would have been Not to 
 
 determined by the death of the testator, and thus no ^ tenant 
 -, , . at will, 
 
 interest would have passed by the will to the persons 
 
 ■designated to take in remainder, and therefore they could 
 
 not set themselves up as cestui que trusts against the 
 
 tenant who availed herself of her position to get a renewal 
 
 in her own name. But Lord Eldon (^) was inclined to 
 
 think that had not the tenant for life in that case been 
 
 residuary legatee, she would have been held a trustee for 
 
 the residuary legatee, considering it impossible that the 
 
 executrix (the life tenant) could hold for herself after 
 
 availing herself of the position which she held for the 
 
 (e) PiUgrem v. P., 18 Ch. D. (<7) Ratve v. Chichester, Amb. 
 
 93; 50 L. J. Ch. 834. TId'. 
 
 (/) Kelly V. 7f., 8 I. R. Eq. (Ji) 11 Ves. 383; 15 Ves. 236, 
 
 ■toe. (0 11 Ves. 393.
 
 96 
 
 CONSTRUCTIVE TRUSTS. 
 
 Tenant for 
 life receiving' 
 payment for 
 not opposing 
 biUin 
 Parliament, 
 
 obtaining a 
 parliamen- 
 tary title. 
 
 benefit of the whole estate for the purpose of procuring- 
 the renewal. A renewal, then, under such circumstances^ 
 would have the effect of creating an accretion to the 
 general estate (k) . 
 
 Although the tenant for life under a settlement be the 
 settlor himself, if he renew in his own name he will be a 
 trustee for the parties interested under the settlement (l). 
 The rule is the same if the tenant for life exercises, by 
 virtue of his ownership, a right of pre-emption over 
 adjoining land (m). 
 
 Similar in principle to these cases is that in which a 
 tenant for life receives a sum of money for withdrawing 
 his opposition to a bill in Parliament, and the Act then 
 passes authorising the taking of the land in settlement. 
 Whether, in such case, the land is taken or not, and 
 whether the Act is proceeded upon or not, the money 
 so received must be held for the benefit of all parties 
 interested (n) . 
 
 In Cooper r. Phibbs(o), Cooper, being in possession of 
 certain estates and a fishery, which he had covenanted to 
 settle, after previous limitations to himself and his issue 
 male, on his brother for life, with remainder to his issue 
 male, procured an Act of Parliament, which, after reciting 
 that the estates and fishery had descended to and were 
 vested in Cooper, and that the said Cooper was desirous of 
 constructing canals, &c. at his own expense, in considera- 
 tion of the exclusive right of fishery being vested in him, 
 his heirs and assigns, enacted that the said powers to make 
 canals and cuts should be granted to him, provided that 
 the cuts should be altogether situated on the estates and 
 property of the said Cooper. In all the provisions of the 
 
 (^) Lewin on Trusts, 10th ed., 
 p. 193; Turner v. T., 14 Ch. D. 
 329. But see and distinguish Biss 
 V. B., (1903) 2 Ch. 40; 72 L. J. 
 Ch. 473. 
 
 (?) Pickering v. Voides, 1 Bro. 
 
 C. C. 197. 
 
 (w) Rowley \. Ginnever, (1897)- 
 2 Ch. 503; 66 L. J. Ch, 669. 
 
 (w) Pole V. P., 2 D. & Sm. 420 ;. 
 and see 8 & 9 Vict. c. 18, s. 73. 
 
 (o) L. R. 2 H. L. 149.
 
 RENEWAL OF LEASES BY TRUSTEES. 97 
 
 Act, Cooper was spoken of as the owner of the estate. 
 Cooper having died without issue male, the House of Lords 
 held that under the Act of Parliament Cooper took the 
 fishery, bound by the trusts of the settlement, Lord West- 
 bury remarking, with characteristic irony: "I must of 
 " necessity assume that Cooper had the intention of stating 
 " the truth and the fact to the Legislature .... there- 
 "fore you cannot impute to him that he intended to 
 "conceal the trusts of the settlement. Then if he stood 
 " before Parliament as a trustee, the powers conferred are 
 " conferred upon him in his character as trustee, and 
 "would be subject to the trusts which affected the donee 
 " of those powers " (p). 
 
 In accordance with the principle in view the Settled 
 Land Act, 1882, provides that a tenant for life shall, in 
 exercising any power under the Act, have regard to the 
 interests of all parties, and be deemed to be in the position 
 and to have the duties and liabilities of a trustee for those 
 parties (q) . 
 
 (3.) Joint tenants arc subject to a similar equity. If Joint tenants, 
 one of several persons jointly interested in a lease renews 
 it in his own name, he will hold it in trust for the others 
 according to their respective shares (r) . Where a tenant 
 for life, and a remainderman of a lease for lives, took a 
 renewal thereof to themselves as joint tenants, in the 
 absence of anything showing a contrary intention, equity 
 regarded their prior interests as remaining unaltered (s) . 
 If a person jointly interested with an infant renew, and 
 the renewed lease turn out to be not beneficial, the person 
 renewing must sustain the loss; while if it prove bene- 
 ficial the infant can claim his share of the benefit, pro- 
 vided that he contribute his due proportion to any sums 
 which may have been paid for the renewal (i^). 
 
 (p) See also Yem v. Echvnrds, 276. See Biss v. B., sup. 
 
 3 K. & J. 564; 1 De G. & J. 598. (s) Hill v. //., 8 1. R. Eq. 
 
 («7) 45 & 46 Vicfc. c. 38, s. 53. 140. 
 
 (r) Palmer v. Young, 1 Vern. (0 Exp. Grace, 1 B. & P. 376. 
 
 S. 7
 
 98 
 
 CONSTRUCTIVE TRUSTS. 
 
 Partners. (4.) So, likewise, if a partner renew a lease of the part- 
 
 nership premises in his own name, he will, as a general 
 rule, be held a trustee of it for the firm (u). But this rule 
 has been departed from in certain cases where the business 
 of the partnership in question has been of a speculative 
 nature, such as a mining concern. In such circumstances, 
 when a surviving partner has renewed a lease in his own 
 sole name, and carried on the business with his own capital, 
 the Court has refused to assist the representative of 
 the deceased partner unless he has come forward promptly, 
 and is ready to contribute a due proportion of money for 
 the purpose of the business; since it would be clearly 
 unjust to let the executor of the deceased partner remain 
 passive while the survivor is incurring all the risk of loss, 
 and only claim to participate after the affairs have proved 
 to be prosperous (x) . Such a case conspicuously requires 
 the application of the maxims " Tigila^itihus non dormien- 
 tibiis cequitas suhvenit," and "he Avho seeks equity must 
 do equity." In order, however, to gain the benefit of this 
 exception, the surviving partner must make such full dis- 
 closure as to the state of the concern, as will enable the 
 representative to exercise a sound discretion as to the 
 course he ought to pursue (y) . 
 
 Agents. Similarly, a person acting as agent, or in any similar 
 
 capacity for a person having an interest in a lease, cannot 
 renew for his own benefit (z) . 
 
 Mortgagee. (5.) If a mortgagee renew a lease of the mortgaged 
 
 premises, the renewal, whether before or after the expira- 
 tion of the lease, shall be for the benefit of the mortgagor, 
 on condition of his paying the mortgagee his charges (a). 
 
 Mortgagor. Conversely, if the mortgagor obtains a new lease or the 
 
 (m) Featherstonehauf/h v. Fen- 
 wick, 17 Ves. 298, 311; Cler/r/ v. 
 Fishwich, 1 Mac. & G. 294; and 
 see now Partnership Act, 1890 
 (53 & 54 Vict. c. 39), s. 29; 
 Sevan v. Webb, (1905) 1 Ch. 
 620; 74 L. J. Ch. 500. 
 
 (x) Clements v. Hall, 2 De G. 
 « J. 173. 
 
 (;/) Ibtd., 188. 
 
 Iz) Griffin V. G., 1 S. & L.'353; 
 Fdwards v. Ijewis, 3 Atk. 538. 
 
 (/?) Bwthwortli's Case, Freem. 
 12; RriTcnstraio v. Breiver, 2 P. 
 Wms. 511.
 
 RENEWAL OF LEASES BY TRUSTEES. 99 
 
 reversion of the mortgaged property, the new lease or 
 reversion will be held a graft on the old one, for the 
 benefit of the mortgagee (6). On the same principle, if 
 a person entitled to a lease which is subject to debts, 
 legacies, or annuities, renews either in his own name, or in 
 that of a trustee, the incumbrances will remain a charge 
 ■on the renewed lease (c) . 
 
 (6.) The same remedies which may be had against Volunteers 
 trustees, executors, and persons with limited interests, throu^^h 
 renewing leases in their own names, may also be had trustees, &c. 
 against volunteers claiming through them, and against 
 purchasers from them with notice, express or implied (d) . 
 
 2. The extent and incidents of the doctrine. 
 
 These have to some extent been inevitably indicated in 
 reciting the cases which show to whom the doctrine applies. 
 But some further comments are necessary to a full 
 exposition of the matter. 
 
 (1 . ) Though a person in the fiduciary positions described Constructive 
 is termed a trustee, he is not in all respects treated like a trustee not 
 
 . . treated as an 
 
 trustee who is such by virtue oi an express trust. The express 
 Statute of Limitations will, for instance, run in his favour, trustee. 
 
 ,.. ,11 c, i> l^ ■ Time runs in 
 
 against persons claiming the benefit oi the constructive his favour, 
 trust (e) . And the cestui que trust may, apart from the 
 statute, be bound by acquiescence and lapse of time; 
 especially, as we have seen in partnership cases, where 
 the property sought to be affected with the trust is 
 subject to extraordinary contingencies, or is capable of 
 Tseing rendered productive only by a large and hazardous 
 
 (6) Smith V. Chichester, 2 Dr. 484; Pillgrem v. P., 18 Ch. D. 
 
 & W. 393; Jluqhes v. Howard, 93; dO L. J. Ch. 834. 
 
 25 Beav. 575; Leigh v. Burnett, (e) In re Dane's Estate, 5 1. 
 
 29 Ch. D. 231; 54 L. J. Ch. 757. R. Eq. 498; Knox v. Gye, L. R. 
 
 (c) Seaborne V. Potvel, 2 yern. 5 H. L. 656,675; Met. Bank v. 
 
 11. Heiron, 5 Ex. D. 319; Banner v. 
 
 {d) Bowles V. Stewart, 1 S. & Berridge, 18 Ch. D. 254; 50 L. J. 
 
 li. 209; Walley v. W., 1 Vern. Ch. 630; Evans v. 3Ioore, (1891) 
 
 3 Ch. 119; 61 L. J. Ch. 85. 
 
 7 (2)
 
 100 CONSTRUCTIVE TRUSTS. 
 
 outlay (/). But the defence of the statute is not avail- 
 able in a case of concealed fraud {g) . 
 Entitled /'2.) The remaindermen and others who seek the benefit 
 
 to indemnity, ^ ^ _ 
 
 of a constructive trust, are required to indemnify the 
 trustee against any covenants he may have entered into 
 and lien for with the lessor (h) . Moreover, the trustee will have a lien 
 improvements upon the estate for the costs and expenses of renewing the 
 and costs. lease, with interest (i), and for the costs of lasting im- 
 provements (k), though not for alterations adopted as a 
 matter of taste or personal convenience (?); and of course 
 the lien affects no property outside the trust estate (m) . 
 What are im- j^ the case of De7it V. D. (n), the erecting of a con- 
 
 proTements. . \ y ' ^ 
 
 Bent V. B. servatory, the rebuilding of farm-houses, the erecting of 
 
 cottages and permanent furnaces, works and buildings, 
 and the draining of marshy ground, were held to be not 
 such permanent improvements as to entitle the tenant to 
 a lien on the estate for money so laid out; but an inquiry 
 was directed in the same case as to whether the laying out 
 of money in completing the mansion-house, and in work- 
 ing a foreign mine so as to prevent forfeiture, was or was 
 not for the benefit of the inheritance . But each case must 
 be considered on its own merits in determining the ques- 
 tion thus raised; everything may depend on the hona fides 
 of the tenant for life, and the particular relation of the 
 alleged improvements to the estate concerned. Under 
 such circumstances there is nothing surprising in a great 
 appearance of conflict in the decisions (o) . 
 
 (/) Clegg v. Edmondson, 8 De ledge v. Tyndall, (1896) 1 Ch. 
 
 G. M. & G. 787; Erlanger v. 923; 65 L. J. Ch. 654; Rowley 
 
 New Sombrero, ^c. Co., 3 App. v. Ginnever, (1897) 2 Ch. 503; 
 
 Cas. 1218; Lagunas Nitrate Co. 66 L. J. Ch. 699. 
 
 V. Lagunas Syndicate, (1899) 2 {I) Hill v. Hill, 3 H. L. 828, 
 
 Ch. 392; 68 L. J. Ch. 699. 869. 
 
 ((/) Betjerruinn v. B., (1895) 2 {m) Re Winchelsea's Tolicy 
 
 Ch. 474; 64 L. J. Ch. 641. Moneys, 39 Ch. D. 168; 58 L. J. 
 
 (K) Giddings \.G.,Z Russ. 241. Ch. 20. 
 
 (i) Rawe v. Chichester, Amb. (w) 30 Beav. 363. 
 
 715; see also M'Kerrell V. Gou-an, (o) See Re Leslie's Settled 
 
 (1912) 2 Ch. 648; 82 L. J. Ch. 22. Trusts, 2 Ch. D. 185; Re Leigh's 
 
 (k) Bolt V. H., 1 Ch. Ca. 190; Estate, 6 Ch. 887; Re Aldred's 
 
 Wallet/ V. W., 1 Vem. 484; Law- Estate, 21 Ch. D. 228; Berbishire
 
 RENEWAL OF LEASES BY TRUSTEES. 101 
 
 With the view of avoiding the difiiculties and hardship 
 ■of such cases, various statutes have been passed following 
 in the train of the Improvement of Land Act, 1864 (p), 
 affording facilities for the improvement of settled land by 
 means of moneys borrowed from government, and repay- 
 able by instalments charged on the land improved. Also 
 by the Settled Land Act, 1882 (g), capital moneys under 
 the Act may be laid out in specified improvements as 
 therein provided. 
 
 On the other hand, charges in the nature of Avaste and Fer contra is 
 for deterioration must be set off against anything thus ^^^e rents 
 found for improvements (r) ; the trustee must account for a^d profits, 
 the mesne rents and profits (s), such account in the case 
 of a tenant for life of course commencing only from his 
 decease {t), and must assign the lease free from incum- 
 branoes . 
 
 (3.) The Court is vigilant to prevent any fraudulent Courtis 
 evasion of the doctrine of constructive trusts. The case to^prevent 
 of Cooper v. Phibhs above commented on is a good illus- evasion. 
 tration of this. Where, therefore, a lessee by collusion 
 W'ith his landlord incurred a forfeiture of his lease, and 
 then obtained a new lease, the trusts of the former were 
 held to attach to the latter (u) . So if a person who has a 
 right of renewal sells such right, the money produced by 
 the sale mil be subject to the same trusts as the leaseholds 
 if renewed would have been {x) . 
 
 (4.) Where renewable leaseholds are taken by a rail- Cases of 
 way or other company under compulsory powers, a tenant pu^chaeeJ.^ 
 for life will only be entitled to the interest arising from 
 the purchase-money, although the custom to renew may 
 not have ceased until after the premises were thus taken; 
 
 V. Montague, (1897) 1 Ch. 685; (r) Mill v. Hill, sup. 
 
 2 Ch. 8; 66 L. J. Ch. 541; Con- (s) Mulvany v. Billon, 1 Ball 
 
 way V. Fenton, 40 Ch. D. 512; & B. 409. 
 
 58 L. J. Ch. 282. (0 Giddings v. G., sup. 
 
 (p) 27 & 28 Vict. c. 114. (m) Hughes v. Hoivard, 25 
 
 {q) 45 & 46 Vict. c. 38, ss. 21, Beav. 575. 
 
 25; and see 52 & 53 Vict. c. 30, {x) Oiven v. Williams, Amb. 
 
 ,B. 2. 734.
 
 102 
 
 CONSTRUCTIVE TRUSTS. 
 
 Renewal 
 impossible : 
 accumulated 
 sums. 
 
 at any rate, when the primary intention of the settlor 
 appears to have been to create a perpetual estate {y) . 
 
 (5.) When it is impossible to obtain the renewal of a 
 lease, if there be no predominant trust for renewal over- 
 riding the disposition in favour of the subsequent tenant 
 for life, the latter will, it seems, be entitled to the sum 
 accumulated by the direction of the settlor, for the pur- 
 pose of renewal {z) . But where it appears to have been 
 the paramount intention of the testator that those entitled 
 in reversion expectant upon the decease of a tenant for 
 life should succeed to the enjoyment of substantially the 
 same estate, the tenant for life, upon the renewal becoming 
 impracticable, will only be entitled to the income of the 
 sum set apart for renewal and of the sum produced by the- 
 sale of the leaseholds {a) . 
 
 And where a trustee, or person in a fiduciary position, 
 who has acquired the legal possession of and dominion 
 over an estate, subject to a covenant for perpetual renewal,. 
 so deals with the property as by his own act to nxake 
 the renewal impossible, with a view to his own benefit,, 
 he is bound to give full effect to the charges on the trust 
 estate, and to satisfy those charges out of the acquired 
 ©state, so far as may be necessary (&). 
 
 By the Trustee Act, 1893 (c), a trustee of renewabl-e 
 leaseholds not only may, if he thinks fit, renew, but may 
 be required by any beneficiary to use his best endeavours 
 to do so; provided that where by the settlement or will 
 the tenant for life or for a limited interest is entitled t& 
 enjoy the same without any obligation to renew or con- 
 tribute to the expense of renewal, his consent in writing 
 is necessary. Any money required for the renewal may 
 
 (y) Ee Wood's Estate, 10 Eq. 
 572. 
 
 (z) Morres v. Ilodr/es, 27 Beav. 
 625; In re Money's Trusts, 2 De 
 G. & Sm. 94. 
 
 (a) Maddy v. Hale, 3 Ch. D. 
 
 327; Re Barber's Settled Estate, 
 13 ib. 624; 50 L. J. Ch. 769. 
 
 (6) Trumper v. T., 14 Eq. 295, 
 210; 8 Ch. 870. 
 
 (c) 56 & 57 Vict. c. 53, s. 19.
 
 PURCHASE OF TRUST PROPERTY BY A TRUSTEE. 103 
 
 be paid by the trustee out of trust moneys in his hands, 
 or may be raised by mortgage of the premises (d) . 
 
 III. Constructive Trusts arising from a Purchase of 
 Trust Property by a Trustee. 
 
 This class of trusts is usually illustrated by reference to Purchftse of 
 the leading case oiFox v. Mackreth, Pitt v. Mackreth (e), ^y ^ Se?^ 
 in which a mortgagee who purchased the mortgaged 
 property himself by taking an undue advantage of the 
 confidence reposed in him, and sold it at a higher price, 
 was decreed to be a trustee for the mortgagor of the sum 
 produced by this sale. 
 
 This case is usually referred to as having established the Statement of 
 rule, ever since recognised and acted upon by Courts of ^ P™^«^ip e. 
 Equity, that a purchase by a trustee for sale from his 
 cestui que trust, although he may have given an adequate 
 price, and gained no advantage, shall be set aside at the 
 option of the cestui que trust, unless the connexion between 
 them most satisfactorily appears to have been dissolved, 
 and unless all knowledge of the value of the property 
 acquired by the trustee has been communicated to his 
 cestui que trust. The principle of the rule is, however, 
 more clearly expressed by Lord Eldon in Ex parte 
 Lacey{f). He says: "It is founded upon this: that 
 " though you may see in a particular case that the trustee 
 " has not made advantage, it is utterly impossible to 
 " examine upon satisfactory evidence, in ninety-nine cases 
 " out of a hundred, whether he has made advantage or not. 
 " Suppose a trustee buys any estate, and by the knowledge 
 " acquired in that character discovers a valuable coal mine 
 " under it, and, locking that up in his own breast, enters 
 "into a contract with his cestui que trust; if he chooses to 
 
 . (^) Be Barinq, (1893) 1 Ch. 61. 320; 2 W. & T. L. C. 709, ed. 7. 
 (e) 2 Bro. C. C. 400; 2 Cox, (/) 6 Ves. 625, 627.
 
 •104 
 
 CONSTRUCTIVE TRUSTS. 
 
 Value given 
 immaterial. 
 
 "deny it, how can the Court try that against his denial? 
 " The probability is that a trustee who has once conceived 
 " such a purpose will never disclose it, and the cestui que 
 *' trust will be ejff actually defrauded." The decision, then, 
 in the principal case, depended not on Avhether the defen- 
 dant purchased at an under-value, but on the fact that he 
 purchased it from his cestui que trust while that relation 
 continued to subsist, and without a full disclosure. Upon 
 this principle the value was immaterial; for if the original 
 transaction was right, it was of no consequence at what 
 price Mackreth sold the estate afterwards; if it was 
 wrong, Mackreth, not having discharged himself from the 
 character of trustee, if an advantage was gained by the 
 most fortuitous circumstance, still it was gained for the 
 benefit of the cestui que trust, not of the trustee (^f) . We 
 proceed to consider the application of the principle under 
 the varying circumstances which have occurred in practice. 
 This inquiry conveniently resolves itself into two divi- 
 sions. First, What are the limits of the application of the 
 principle? Or, in other words, Is bargaining between a 
 trustee and a cestui que trust ever supportable in equity, 
 and if so, when? Secondly, What persons come so far 
 within the definition of a trustee as to be affected by the 
 principle which forbids such transactions? Subsidiary to 
 these questions, it will be desirable to consider the nature 
 of the relief afforded by equity in such cases. 
 
 Limits of the 
 principle. 
 Direct private 
 contract. 
 
 1. The limits of the application of the principle. 
 
 (1.) The cases alreadj^ referred to arc sufficient autho- 
 rity for the proposition that a trustee for sale cannot by a 
 direct and private contract with his cestui que trust become 
 a purchaser of the trust estate. The rule is the same as to 
 both real and personal estate, and, as has been seen, the 
 question is not one of price (though naturally, if an 
 
 {g) See Lord Eldon's judgment above quoted, and Exp. Bennett, 
 10 Ves. 381, 394.
 
 PURCHASE OF TRUST PROPERTY BY A TRUSTEE. 105 
 
 •adequate price was given, it would probably not be 
 
 challenged), but of the position of the parties. Similarly 
 
 a trustee can no more take a lease than he can 
 
 purchase from himself (/^) . 
 
 (2.) A purchase by trustees at a public auction will not Purchase 
 •I L • 1 p ■ p • 1 -^ . at auction. 
 
 be sustamed; lor it persons m such a capacity were present 
 
 at an auction as bidders, their mere presence would operate 
 
 ^s a discouragement to others. The knowledge that certain 
 
 persons who naturally have superior means of information 
 
 are bidding must inevitably check competition («). 
 
 (3.) Nor is it admissible for a trustee to purchase Purchase 
 through an agent, even at an auction (fc). On the other an agent 
 hand, he is equally disqualified from purchasing as an 
 agent for another person (I). A purchase from co-trustees or from oo- 
 is equally objectionable (m). 
 
 (4.) Nor can a trustee be allowed to purchase the trust Retiring 
 property, by retiring from the trust with that object in ^^^g^^ °° 
 view (n) . But where a trustee had retired from a trust for 
 several years, and there were no circumstances of doubt or 
 suspicion, a purchase was sustained (o). 
 
 (5.) Similarly, it has been held that a trustee cannot Purchase 
 purchase before the Master under a decree for sale (p). aecree*^ 
 
 (6.) And he cannot purchase from the trustee in bank- From trustee 
 ruptcy of his cestui que trust, under an agreement to ^° bank- 
 divide the profits, more especially if the purchase-money 
 consists of part of the trust funds (g). 
 
 (7.) On the contrary, where a trustee has fairly sold Fair sale and 
 an estate, a subsequent bond fide purchase of the estate 
 from the purchaser is unobjectionable (r). 
 
 (A) Aft. -Gen. v. U. of Claren- («) Spring v. Pride, 4 De G. 
 
 don, 17 Ves. 491, 500; Passing- J. & S. 395." 
 
 Joam V. Sherborne, 9 Beav. 424. (o) Tie Boles, (f-e. Contract, 
 
 (i) Exp. Lacey, 6 Ves. 629; (1902; 1 Ch. 244; Glarh v. C, 9 
 
 Exp. James, 8 Ves. 348. App. Cas. 733; 53 L. J. P. C. 99. 
 
 {k) Camphell v. Walker, 5 Ves. (??') Gary v. C, 2 S. & L. 173. 
 
 678; 13 Ves. 601; Ingle v. {q) Vaughan\. Noble, ZOBoax. 
 
 Richards, 28 Beav. 361. 34. 
 
 (J^ Exp. Bennett, sup.; Gregory (r) Baker v. Peck, 9 W. R. 
 
 v. G., Coop. 204. ' 472; ib. 186; Dover v. Buck, 5 
 
 (m) Whichcote v. Lawrence, 3 Giff. 57. 
 Ves. 740.
 
 106 
 
 CONSTRUCTIVE TRUSTS. 
 
 Trust deter- 
 mined and 
 cestui que trust 
 sui Juris. 
 
 Purchase 
 with leave of 
 Court. 
 
 Leave when 
 given. 
 
 Property 
 unconnected 
 with the 
 trust. 
 
 Acquiescence 
 of cestui que 
 trust. 
 
 (8 . ) And though a trustee cannot purchase from himself, 
 he can purchase from a cestui que trust who is sui juris 
 and has discharged him from the obligation which attached 
 upon him as trustee (s) ; but such a transaction is subjected 
 to jealous scrutiny, and must be free from all suspicion of 
 fraud, concealment, or undue advantage on the part of the 
 trustee (t) . A solicitor of a cestui que trust has, in general, 
 no authority to consent to a purchase by a trustee (m) ; but 
 a purchase has been allowed in a friendly suit by the 
 trustees of a settlement from a surviving trustee who "was 
 a solicitor, and who acted in conduct of the purchase (x) . 
 
 (9.) A trustee for infants, moreover, or persons under 
 disability, may sometimes purchase the trust estate, by 
 leave of the Court. Such cestui que trusts not being sui 
 juris could not enter into any contract by which to release 
 him from the character of trustee; but where an action 
 has been commenced, and the Court has fully examined 
 the circumstances of the case, and a trustee, saying so 
 much is bid, offers to give more, permission may be given 
 to the purchase (y) . 
 
 (10.) The existence of the relation of trustee and cestui 
 que trust does not affect any dealing between the parties 
 as to property entirely unconnected with the subject of 
 the trust (z) . 
 
 (11.) A cestui que trust who wishes to set aside a sale, 
 must apply within a reasonable time, which depends upon 
 the circumstances of each particular case (a) . He may 
 lose his right to impugn the transaction by long acquies- 
 cence (6), such acquiescence being taken as evidence that 
 as between the trustee and cestui que trust the relation 
 
 (s) Coles v. Trecothick, 9 Ves. 
 234; Exp. Lacey, swp. 
 
 (<) See Morse v. Royal, 12 Ves. 
 355; Franks v. Bollans, 3 Ch. 
 717; Williams v. Scott, (1900) 
 A. C. 499; 69 L. J. P. C. 77. 
 
 (m) Doiones v. Grazebrook, 3 
 Mer. 209. 
 
 {x) HicUcy V. 11., 2 Ch. D. 
 190. 
 
 (y) Campbell v. Walker, 5 Ves. 
 678, 682; 13 Ves. 601; Farmer 
 v. Bean, 32 Beav. 327. 
 
 (z) Knight v. Marjoribanks, '2 
 Mac. & a. 10. 
 
 (r/) Campbell v. Walker, sup. 
 
 (6) Morse v. Royal, sup.
 
 PURCHASE OF TRUST PROPERTY BY A TRUSTEE. 107 
 
 had been abandoned in the transaction (c) . An acquies- 
 cence may be evidenced by other circumstances than mere 
 lapse of time {d) . 
 
 In order, however, to fix acquiescence on a part}", it Conditions of. 
 should be unequivocally shown that he knew the fact upon 
 which the supposed acquiescence is founded, and to which 
 it refers (c). Time will in general not run against a 
 pai'ty so long as his interest is contingent or rever- 
 sionary (/), nor as long as he remains ignorant of his 
 title to relief. 
 
 (12.) A cestui que trust when sui juris may confirm an Confirmation, 
 invalid sale so that it cannot be afterwards set aside {g) . 
 But in order to constitute a valid confirmation, a person Conditions of. 
 must be aware that the act he is doing will have the 
 effect of confirming an impeachable transaction (h) . Nor 
 will the confirmation be valid if done in circumstances of 
 distress or difficulty, or under the force or pressure and 
 influence of the previous transaction («) . It must, of 
 course, be an act separate from the impeachable trans- 
 action . 
 
 2. To what persons the principle applies. 
 
 (1.) The strongest case is where the would-be purchaser Principle 
 is an express trustee. In the principal case Mackreth was express ° 
 invested with the office directly by means of a trust deed, trustee, 
 which created the relation for the express purpose of 
 giving a power of sale; and nothing is more firmly 
 established than that in such and such-like cases a trustee 
 will not be suffered to purchase from himself (Jc) . 
 
 (c) Parkes v. White, 11 Ves. {g) Morse v. Palmer, 12 Ves. 
 
 226; Seagram v. Knight, 3 Eq. 353; Roche v. O'Brien, 1 Ba. dc 
 
 398; 2 Ch. 628. Be. 353. 
 
 (^) Wright v. Vanderplank, 2 (Ji) Murray v. Palmer, 2 S. & 
 
 K. & J. 1. L. 486; Thompson v. Ashhee, 10 
 
 (e) Randall v. Errington, 10 Ch. 15. 
 
 Ves. 423, 428. (i) Croive v. Ballard, 3 Bro. 
 
 (/) Gowland v. De Faria, 17 C. C. 117. 
 
 Ves. 20; Lije Assoc, of Scotland (Jc') Killick v. Flexney, 4 Bro. 
 
 V. Siddol, 3 De G. F. & J. 58. C. C. 161; Williams v. Scott, sup.
 
 108 
 
 CONSTRUCTIVE TRUSTS. 
 
 Not nominal 
 trustee. 
 
 Mortgagee. 
 
 Purchase of 
 equity of 
 redemption. 
 
 A mere nominal trustee, however, for instance, one 
 who has disclaimed without ever acting in the trust, or a 
 trustee to preserve contingent remainders, may become a 
 purchaser (Z) . 
 
 (2.) A mortgagee or an annuitant with a power of sale, 
 being in fact a trustee for sale, cannot, either directly or 
 by his solicitor or agent, purchase the charged estate, 
 except with the express authority of a cestui que trust who 
 is sui juris (m) . But where a mortgagee has in fact 
 purchased from himself under his power of sale, and 
 subsequently sold to a bond fide purchaser, the purchaser's 
 title is sustained, inasmuch as, though the mortgagee 
 may be accountable to the mortgagor, the purchaser is 
 not bound to see to the application of the purchase- 
 money (n) . 
 
 A mortgagee, however, does not ordinarily stand in a 
 fiduciary position towards the mortgagor, so as to render 
 a purchase of the equity of redemption by him from the 
 mortgagor (o), or from a prior mortgagee selling under a 
 power of sale (p), impracticable. But all transactions 
 between a mortgagor and mortgagee are viewed with 
 jealousy, and the sale of an equity of redemption will be 
 set aside if, by the influence of his position, the mortgagee 
 has purchased for less than others would have given, or if 
 there are any circumstances of misconduct in obtaining 
 the purchase (q). The same principles apply to the case 
 of the granting of a lease from the mortgagor to the 
 mortgagee (r) . 
 
 (Z) Stacey V. Mph, 1 My. & K. 
 195; Parkes v. White, 11 Ves. 
 209, 226. 
 
 (w) Doivnes v. GrazebrooJc, 3 
 Mer. 200; In re Bloye's Trust, 1 
 Mac. & G. 488; 3 li. L. 607, 630; 
 Mnrtinsofi' v. Clowes, 21 Ch. D. 
 857; aff. 52 L. T. 706; Ilodson v. 
 Deans, (1903) 2 Ch. 647; 72 L. 
 J. Ch. 751. 
 
 (w) Henderson v. Astwood, 
 (1894) A. C. 150; Bailey v. 
 Barnes, (1894) 1 Ch. 25; 63 L. J. 
 
 Ch. 73; Gfifith v. Owen, (1907) 
 1 Ch. 195; 76 L. J. Ch. 92. 
 
 (o) Knight v. Marjoribanks, 2 
 Mac. & G. 10; Melbourne Bank- 
 ing Co. V. Brougham, 7 App. 
 Cas. 307; 51 L. J. Ch. 65. 
 
 (p) Shaw V. Bunny, 33 Beav. 
 494; 2 DeG. J. & S. 468. 
 
 {q) Ford v. Olden, 3 Eq. 461; 
 Frees v. Coke, 6 Ch. 645, 649; 
 Farrar v. Farrar's, Limited, 40 
 Ch. D. 395; 58 L. J. Ch. 185. 
 
 (r) Ford v. Olden, sup.
 
 PURCHASE OF TRUST PROPERTY BY A TRUSTEE. 109 
 
 (3.) Executors or administrators will not be permitted, Executors 
 either immediately or by means of a trustee, to purchase trators™^'"*' 
 for themselves any part of the assets under their care, but 
 will be considered as trustees for the persons interested in 
 the estate, and must account to the utmost extent of any 
 advantage made by them of the subject so purchased (s). 
 Nor can an executor purchase a legacy from a legatee, 
 even though a co-executor (t). So if they compound debts 
 or mortgages, or buy them in for less than is due 
 upon them, they may not retain any benefit out of the 
 transaction for themselves (u) . Upon the same prin- 
 ciple a receiver cannot, without leave of the Court, 
 purchase (x) . 
 
 (4.) A trustee of a bankrupt cannot purchase the bank- Trustee in 
 rupt's property (^). Such a purchase by a trustee on "P ^7- 
 
 being found beneficial has, however, been confirmed by 
 the Court (£;). He cannot, moreover, purchase the debts 
 of the estate, since to do so would put his duty and his 
 interest in conflict (a) . 
 
 A creditor who has taken out execution is not precluded Execution 
 from becoming a purchaser of the property seized under purchase 
 
 (5.) Directors and promoters of companies are within Directors and 
 the principle, as being in a fiduciary relation to the com- P''^™^ ^^^' 
 pany. A bond fide purchase by a director of shares in 
 the company under circumstances of full disclosure has, 
 however, been sustained (e) on the ground that directors 
 are not trustees for the individual shareholders. Generally 
 speaking, directors may not make a profit out of their 
 
 (s) Hall V. Hallett, 1 Cox, 134; 292; 76 L. J. Ch. 614. 
 
 Wedderburn v. W., 4 My. & Cr. (?/) Exp. Lacey, 6 "Ves. 623. 
 
 41; distinguish Clark v. C, 9 (s) Exp. Gore, 6 Jur. 11, 18; 
 
 App. Cas. 733; 53 L. J. P. C. 99. 7 ib. 136. 
 
 (t) In re Biel's Estate, 16 Eq. {a) Pooleij v. Quilter, 2 De G. 
 
 577; Beninq field v. Baxter, 12 & J. 327. 
 
 App. Cas. 167; 56 L. J. P. C. 13. {b) Stratford v. Twynam, Jac. 
 
 (m) Exp. James, 8 Ves. 337, 418. See also Chambers v. 
 
 346. Waters, 3 Sim. 42. 
 
 \x) Alven v. Bond, 1 My. & K. {c) Percival v. Wright, (1902) 
 
 196; Nugent v. N., (1907) 2 Ch. 2 Ch. 421; 71 L. J. Ch. 846.
 
 for sale. 
 
 110 CONSTRUCTIVE TRUSTS. 
 
 office beyond their authorised remuneration, for example, 
 by allotting to themselves shares which command a pre- 
 mium (d). In such an event any profit made will belong 
 to the company (e). But provision may be lawfully made 
 by the articles for a director to deal Avith the company, and 
 to retain profits thus made. In such cases there must be 
 full disclosure of the facts, either to the company, or at 
 least, if the articles so provide, to the co-directors (/). It 
 must not, however, be inferred from the fact of directors 
 holding a fiduciarj^ position that all the doctrines relating 
 to trustee and cestui que trust apply to them (g) . Special 
 statutory remedies are provided for dealing with the duties 
 of directors. 
 Agents (6 . ) An agent appointed to sell, including an auctioneer, 
 
 cannot as a rule purchase from his principal unless he 
 makes it perfectly clear that he furnished his employer 
 with all the knowledge which he himself possessed (h) . 
 If there be any suspicious dealing on the part of an agent, 
 such as his purchasing in the name of a third person, the 
 transaction will not be allowed to stand, however fair it 
 may be in other respects (i) . 
 
 So also an agent for sale who takes an interest in a 
 purchase negotiated by himself, is bound to disclose to his 
 principal the precise nature of his interest, and the burden 
 of proving such full disclosure is on the agent (fc). 
 
 When, however, the contract for sale has been completed 
 and the agency determined, there is nothing then to pre- 
 
 (d) YorTc V. 'North Midland Kingston Cotton Mill Co., (1896) 
 B.ail. Co., 16 Beav. 485. 2 Ch. 279; 65 L. J. Ch. 673. 
 
 (e) Shaiv v. Holland, (1900) 2 {h) Lowther v. Z., 13 Ves. 95; 
 Ch. 305; 69 L. J. Ch. 621. Oliver v. Court, 8 Price, 127, 160. 
 
 (/) Dunne v. English, 18 Eq. (i) Trevelyan v. Charter, 9 
 
 624; Erlanger v. New Sombrero Beav. 140; 11 CI. & F. 714; 
 
 Phosphate Co., 3 App. Cas. 1218; Lewis v. Hillman, 3 H. L. 607. 
 
 Gluckstein v. Barnes, (1900) A. (k) Dunne v. English, sup.; 
 
 C. 240; 69 L. J. Ch. 385. Brooh>nnn v. Rothschild, 3 Sim. 
 
 {g') See Re Faure Acci'tnidator 153; Gillett v. Peppereorne, 3 
 
 Co 40 Ch. D. 141; 58 L. J. Ch. Beav. 78. See also Erskine f( Co. 
 
 48; Lord Bute's Case, (1892) 2 v. Sachs. (19t)l) 2 K. B. 504; 70 
 
 Ch. 100; 61 L. J. Ch. 357; Re L. J. K. B. 978.
 
 PURCHASE OF TRUST PROPERTY BY A TRUSTEE. Ill 
 
 vent his repurchase of the property (?), provided there be 
 no suspicion of fraud; but as long as the contract remains 
 executory, the agent having power to enforce or rescind it 
 at his pleasure, there can be no such repurchase (m) . 
 
 If an agent employed to purchase, purchases for him- Agent 
 self, he will be held a trustee for his principal (n), and he ^^ ^"^^ ^^' 
 will not be permitted, except with the plain and express 
 consent of his principal, to make any profit by becoming 
 a seller to him (o) . 
 
 A secret commission paid to the agent by the purchaser 
 is recoverable by the principal (p) , and where an agent, 
 bound to sell only his principals goods, sold the goods 
 of his principal s competitors in trade, he was held liable 
 to account to his principal for the profits made on such 
 sales (q) . 
 
 (7.) Upon the same principle a partner employed to Partner, 
 purchase for the firm may not make a profit by purchasing 
 for himself and selling to the firm (r) ; and in a sale to a 
 co-partner there must be full disclosure of material facts 
 affecting the value of the share sold (s) . There is no 
 rule, however, which prevents a surviving partner from 
 purchasing the share of a deceased partner from his 
 representatives (t). 
 
 (8.) The relation of solicitor and client also gives rise Solicitors. 
 to the application of the doctrine. A solicitor employed 
 to sell cannot purchase from his client without full dis- 
 closure (z(); and on the other hand, if employed to pur- 
 
 (l) Parker v. McKenna, 10 Ch. {q^ Nitednls TaendHik Fabrik 
 
 126; Williams v. Scott, (1900) v. Brusfer, (1906) 2 Ch. 671; 75 
 
 A. C. 499; 69 L. J. P. C. 77. L. J. Ch. 798. 
 
 And see Delves v. Gray, (1902) (r) Bentley v. Craven, 18 Beav. 
 
 2 Ch. 606; 71 L. J. Ch. 808. 75; Richie v. Couper, 28 Beav. 
 
 (m) Parker v. McKenna, sup. 344. And see now Partnership 
 
 00 Lees V. Nuttall, 1 R. & Act, 1890 (53 & 54 Vict. c. 39), 
 
 My. 53. s. 29. 
 
 (o) Kimher v. Barber, 8 Ch. (s) Laiv v. L., (1905) 1 Ch. 
 
 56; Boston Beep Sea, ifc. Co. v. 140; 74 L. J. Ch. 169. 
 
 AnseU, 39 Ch. D. 339. (f) Chambers v. HoiveU, 11 
 
 (p) Atidrcw V. Ramsaii, (1903; Beav. 6. 
 
 2 K. B. 635; 72 L. J. K'. B. 865; {li) IVntt v. Grove, 2 S. & L. 
 
 Hippesley v. Knee, (1905) 1 K. 492; Wrirjht v. Carter, (1903) 1 
 
 B. 1; 74 L. J. K. B. 68. Ch. 27; 72 L. J. Ch. 138.
 
 113 
 
 CONSTRUCTIVE TRUSTS. 
 
 Not incapable 
 of contracting- 
 "with client, 
 
 but should 
 generally not 
 do so. 
 
 Even after 
 ceasing- to act 
 as adviser. 
 
 Counsel. 
 
 chase, ho is accountable to his client for any benefits which 
 he 'may have clandestinely derived from the sale {x) . The 
 remedy, however, may be barred by laches and acquies- 
 oenoe {y). 
 
 A solicitor or other person, who has the conduct of la 
 sale under a decree, is under an absolute incapacity to 
 purchase thereat; and even though he may not actually 
 have the conduct, if he is so far interested as that it is his 
 duty to assist in procuring the best price for the property 
 offered, he ought not to be allowed to purchase for him- 
 eelf {z) ; but the mere fact of his being concerned in the 
 isuit is not sufficient to incapacitate him {a), particularly 
 if he has leave to bid at the sale (6), and an assignment 
 effected before his retainer as solicitor has been sustained, 
 notwithstanding that he subsequently acted in the suit (c) ^ 
 
 A solicitor is not incapable of contracting with his client ; 
 but if such a contract is challenged the solicitor can only 
 support it by clear proof of its fairness and of the absence 
 of any concealment {cl) ; and it is always preferable for a 
 solicitor contemplating a purchase from his client to insist 
 on the intervention of another legal adviser {d) . 
 
 And although he may have ceased to act as the client's 
 adviser, he may not use to his advantage the knowledge 
 of the client's affairs which has been acquired during the 
 continuance of the relation, and has been concealed from 
 the client (e). 
 
 The same rules apply to counsel as to solicitors (/),and 
 it 'matters not that the adviser acts gratuitously {g). 
 
 (a;) Bank of London v. Tyrrell, 
 27 Beav. 273; 10 H. L. 26; Hnrp- 
 hatn V. Shacklock, 19 Ch. D. 207. 
 
 (v) Nutt V. Easton, (1900) 1 
 Ch.'29; 69 L. J. Ch. 46. 
 
 (z) Sidny v. Ranger, 12 Sim. 
 118. 
 
 (a) Guest v. S my the, 5 Ch. 551 . 
 
 lb) Boswell V. Coaks, 23 Ch. D. 
 302; 27 ib. 424; Coaks v. Boswell, 
 11 App. Cas. 232; 55 L. J. Ch. 761. 
 
 (c) Davis V. Freethy, 24 Q. B. 
 
 D. 519; 59 L. J. Q. B. 318; 
 Sitnpson v. Lamb, 7 E. & B. 84. 
 See infra, p. 390. 
 
 (d) Pisani v.Att.-Gen.for Gib- 
 raltar, 5 P. C. 516; McPherson 
 V. Watt, 3 App. Cas. 254. 
 
 (e) Cane v. Alle.n, 2 Dow, 289; 
 Edwards v. Meyrick, 2 Hare, 69. 
 
 (/) Carter v. Palmer, 8 Cl. & 
 F. 657. 
 
 {g) Hobday v. Peters, 28 Beav. 
 149.
 
 PURCHASE OF TKlJfST PROPEltl'Y BY A TKUSTEK. 113 
 
 Formerly an ag-rcement by a solicitor to receive a fixed Solicitors 
 
 'Vet 1870 
 
 sum for costs for business thereafter to be done was not 
 binding- on the client, who might in spite of it require a 
 bill of costs and taxation (h). Express provision is, how- 
 ever, now made for such contracts, as to contentious 
 business by 33 & 34 Vict. c. 28 (i), and as to non-conten- 
 tious business by 44 & 45 Viet. c. 44 (fc); but contracts 
 made under these Acts are still liable to review by a 
 taxing master, if shown to be unfair or unreasonable, and 
 they must be in writing (?). 
 
 (9.) An arbitrator is unable to purchase the unascer- Arbitrator, 
 tained claims of any of the parties to the reference (m) . 
 He has, in fact, a position similar to that of a judge, 
 who cannot, except by consent of the parties, deliver a 
 valid judgment in the subject-matter of which he has an 
 interest. 
 
 (10.) Transactions between a guardian and ward during Guardian and 
 the existence of the relationship are considered invalid (??), ^^"^ 
 and even after the ward has become of age the Court 
 regards such dealings with suspicion (o) . If, however, 
 full consideration has been paid, such transactions could 
 not be set aside (p) . Where a guardian bought up incum- 
 brances on the ward's estate at an undervalue he was held 
 trustee for the ward, and was only allowed to charge him 
 what he actually paid (g) . 
 
 (11.) Where no definite relationship such as those we Any relation 
 have considered exists between the parties, yet neverthe- 
 less, if there exists a confidence between them of such a 
 character as enables the person in whom such confidence 
 is reposed to exert exceptional influence over the person 
 
 (h) He NeivtTian, 30 Beav. 396. («>) Blennerhasset v. Bay, 2 
 
 (i) Ss. 4, 7—10. Ba. & Be. 16. 
 
 (Jc) S. 8. («) Powell V. Glover, 3 P. 
 
 (0 Re RusseU, 30 Ch. D. 114; Wms. 251, n. 
 
 ^eP«??Her,45Ch. D. 291; 59L.J. (o) Grosvenor v. Sherratt, 28 
 
 Ch. 575; Re Frape, (1893) 2 Ch. Beav. 659. 
 
 284; 62 L. J. Ch. 473; Re Baylis, (p) Hylton v.H.,2 Ves. Sr.549. 
 
 (1896) 2 Ch. 107; 65 L. J. Ch. 612. (q) Henley v. , 2 Ch. Ca. 
 
 245. 
 
 S.
 
 114 
 
 CON.STlUJCriVE riUJSTS. 
 
 Tate V. 
 Williamson . 
 
 trusting him, the Court will not allow any transaction 
 between them to stand unless there has been full explana- 
 tion and communication of every particular in the know- 
 ledge of the person who seeks to establish the contract (r) . 
 In the case referred to there was great disparity of age 
 between the parties, and the younger was known to be in 
 pecuniary distress. In the absence of any such relation- 
 ship and of fraud, mere inadequacy of consideration will 
 not be a sufficient reason for setting aside a sale (s), but 
 gross inadequacy of price coupled with want of due protec- 
 tion and advice, precipitation in carrying out the bargain, 
 especially when the vendor is poor and illiterate, has often 
 been considered sufficient evidence of fraud to enable the 
 vendor to set aside a contract (f). There is no such 
 fiduciary relation between tenants in common as will 
 throw suspicion on transactions between them (21). See 
 infra, p. 184 ei seq. 
 
 Option. 
 Reconvey 
 ance with 
 
 Nature of 3 ^fj^g nature of the relief afforded by equity. 
 
 relief. 
 
 A cestui que trust (under which term are now included 
 all persons who on the above grounds are entitled to set 
 aside a sale) has usually a choice of two courses. 
 
 (1.) He may insist on a reconveyance of the property 
 from the trustee who purchased it (if it remains in his 
 compensation, hands unsold), or from a person who has purchased it from 
 him with notice of the breach of trust (a;). Such recon- 
 veyance will be decreed on the terms of his repaying the 
 purchase-money with interest at four per cent., and all 
 sums Avhich may have been expended in repairs and im- 
 provements of a permanent nature. On the other hand, 
 there will be an allowance made for all acts tending to 
 deteriorate the value of the estate; and the trustee must 
 
 (r) Tate\. Williamsfln,2 Ch.55. 
 
 (s) Harrison v. Guest, 6 De G. 
 M. & G. 424; 8 H. L. 481. 
 
 (t) Lonqmate v. Ledger, 2 (liff. 
 157 ; Baker v. Monk, 33 Beav. 419. 
 
 (m) Kennedy v. Be Trafford, 
 
 (1896) 1 Ch. 762; (1897) A. C. 
 180; 66 L. J. Ch. 413. 
 
 (.r) York Buildings Co. v. Mac- 
 keiizie, 8 Bro. P. C. 42; Pearson 
 V. Benson, 28 Beav. 598.
 
 PURCHASE OF TRUST PROPERTY BY A TRUSTEE. 115 
 
 account for all rents and profits received by him, and pay 
 an occupation rent for such part of the estate as he has 
 retained in his actual possession {y) . In some cases, 
 however, where sales have been set aside for actual fraud, 
 allowance for money laid out in improvements has been 
 refused {z) . 
 
 (2.) But if the cestui que trust does not wish for a Resale, 
 reconveyance, an order will be made that the expense of 
 repairs and imjjrovements, after making allowance for 
 deteriorating acts, shall be added to the purchase-money, 
 and that the estate shall be put up at the accumulated 
 sum. If anyone makes an advance upon that sum the 
 trustee shall not have the estate; if not, he Avill be held 
 to his purchase (a). 
 
 (3.) Where the trustee has resold the estate to a pur- Account of 
 chaser without notice, the cestui que trust can, as in the P™^^^- 
 principal case, make him account for his receipts with 
 interest. 
 
 (4.) The costs of the suit where the sale has been set Costs, 
 aside must be paid by the trustee (&), unless there has 
 been great delay on the part of the cestui que trust (c) ; 
 and even where a suit has failed on account of such delay 
 the trustee has been refused his costs (d) . 
 
 (>/) Hall V. Hallett, 1 Cox, 134; Tennant v. Trenchard, 4 Ch. 537, 
 
 Campbell v. Walker, 5 Ves. 678, 546. 
 682; il/e'Z^v. //^•«, 3H. L. 828, 869. (b) Sanderson v. Walker, 13 
 
 (z) Kenney v. Browne, 3 Eidg. Ves. 601. 
 518. (c) Att.-Gen. v. Dudley, Coop. 
 
 (a) Ezp. Heynolds, 5 Yes. 707; 146. 
 
 (d) Gregory v. G., Coop. 201. 
 
 8(2)
 
 116 
 
 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 Section V. — Duties and Liabilities of Trustees. 
 
 I. Getting in Trust Property. Wasting Property 
 
 and Reversions. 
 II. Custody of Trust Property. 
 
 III. Investment. 
 
 IV. Liability of Co-trustees. 
 
 V. Remedies of a Cestui que Trust. 
 VI. Remuneration of Trustees. 
 
 In considering the position of trustees generally, we will 
 first discuss their duties with respect to the trust property . 
 And these may naturally be divided into three heads: 
 1st. As to the getting in of outstanding property of 
 the trust. 2ndly. As to the custody of such property. 
 3rdly. As to its proper investment. 
 
 Getting in 
 
 outstanding 
 
 property. 
 
 Debts 
 collected. 
 
 1. Getting in outstandmg Trust Property. 
 
 It is among the most important of the duties of a trustee 
 to take such steps as are necessary for the security of the 
 trust property; and the first of such steps is to get all 
 such property into his hands, or under his control. In 
 other words, all outstanding property must be reduced 
 into possession. 
 
 1. — (1.) Debts due to the trust must therefore, with all 
 reasonable diligence, be collected. Money may not be left 
 outstanding upon personal security; and this although 
 the security of the loan giving rise to the debt be ono
 
 GETTING IN OUTSTANDING TRUST PROPERTY. 117 
 
 which the creator of the trust considered sufficient {a) . 
 The only excuse for not taking action to enforce payment 
 is a well-founded belief that such action would be fruit- 
 less; and the burden of proving the grounds of such belief 
 is on the trustees {h). 
 
 Trustees are allowed the exercise of a fair discretion, and Trustee 
 are not expected to commence legal proceedings unneces- digOTeUon "^ 
 sarily, nor where such proceedings would be useless (c), 
 but they will not be justified in granting any great indul- 
 gence {d) . In case a loss to the estate is occasioned by 
 neglect of this duty, a trustee or executor will be per- 
 sonally answerable. If there be more than one executor, 
 each one is entitled to exercise his discretion without risk, 
 notwithstanding the opposition or difference of opinion of 
 another (e) . 
 
 (2 . ) In the exercise of a sound discretion trustees Releasing and 
 might, even before 23 & 24 Vict. c. 145, release or com- aebT'^'^''" 
 pound a debt (/), and by that statute this power was 23 & 24 Vict, 
 confirmed and extended. Now by the Trustee Act, ^" ^^^' ^' ^^' 
 1893 (g), s. 21, executors, administrators and trustees are 
 authorised to accept any composition, or any security real 
 or personal, for any debt, or for any property real or 
 personal, claimed, and may allow any time for payment 
 of any debt, and may compromise, compound, abandon, 
 submit to arbitration, or otherwise settle any debt, account, 
 claim, or thing whatever relating to the testator's estate or 
 to the trust, and for any of those purposes may enter into, 
 give, execute, and do such agreements, instruments of 
 composition or arrangement, releases and other things as 
 seem expedient, without being responsible for any loss 
 occasioned by anything so done in good faith (h) . 
 
 (a) Powell y:i:vans,5Ves.S39; Ves. 488. 
 
 Bullock V. Wheatley, 1 Coll. 130. (e) Buxton v. B., 1 My. & Cr. 
 
 (b) Billing v. Brogden, 38 Ch. 80; Marsden v. Kent, 5 Ch. D.598. 
 D. 546. (/) Blue \. Mar shall, 2, V.^Nms. 
 
 (c) Clarh v. Holland, 19 Beav. 381; Ratclife v. Winch, 17 Beav. 
 271. 216. 
 
 id') Loivson V. Copeland, 2 Bro. (gr) 56 & 57 Vict. c. 53. 
 
 C. C. 156; Caffrey v. Darby, 6 {h) Sheffield, #c.
 
 118 
 
 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 Money 
 employed in 
 trade. 
 
 Perishable 
 property with 
 iife interests 
 
 and 
 
 reversionary 
 
 property. 
 
 General rule 
 requires con- 
 
 2. Money employed by a testator in trade may not be 
 suffered to remain so invested by his executors, without 
 express authority (i) ; and where such authority is given 
 it must be exercised with discretion and in strict accord- 
 ance with its terms (fc). Reasonable time is of course 
 allowed for the purpose of winding up the concern; and 
 the Court has jurisdiction in an administration suit 
 to direct that a trade or business in which infants are 
 interested shall be continued, and it will so direct if it 
 be for their benefit (?). 
 
 3. Very frequently we find in a will personal property 
 of a perishable or wasting nature bequeathed to a person 
 for life with remainder over. In such a case the ques- 
 tion arises whether the intention was that tlie first legatee 
 should enjoy the property specifically, with the possible 
 consequence that by the consumption or falling in of the 
 property the remainderman will receive no benefit at all; 
 or whether, for the equal treatment of both, the property 
 should be sold, and the proceeds laid out on permanent 
 investments. Conversely, reversionary property is some- 
 times similarly bequeathed, and the question is whether it 
 is to remain in its existing state, with the possible conse- 
 quence of its not falling into possession during the lifetime 
 of the first tenant, so that thougli named as a beneficiary 
 he will receive nothing from it, or whether again for the 
 equal treatment of both it should be sold and invested so 
 as to produce an immediate income. 
 
 On these questions the case of Hoive v. Lord Dart- 
 mouth (m) is a leading authority. From it we gather 
 that whenever there is a general bequest of property of 
 a wasting nature, such as long a?inuities or leaseholds, to 
 
 Society v. Aizlewood, 44 Ch. D. 
 412; 59 L. J. Ch. 34; Sneath v. 
 Valley Gold, Lim., (1893) 1 Ch. 
 477. See Eaton v. Buchanan, 
 (1911) A. C. 253. 
 
 (i) Kirkman v. Booth, 11 Beta v. 
 273. 
 
 (Jc) Arnold v. Smith, (1896) 1 
 Ch. 171; 65 L. J. Ch. 269; 
 Mid(jley v. Crowther, (1895) 2 
 Ch. 56; 64 L. J. Ch. 537. 
 
 (0 Perry v. P., 3 Jr. Eq. 452. 
 
 (ot) 7 Ves. 137; 1 W. & T. 
 L. C. 68, ed. 7.
 
 GETTING IN OUTSTANDING TRUST PKOPKHI'V. 119 
 
 persons in succession, the general rule is thai it should 
 be forthicith converted a)id laid out in yermcine^it secu- 
 rities ; and again, that reversianary property, or property 
 the enjoyment of which is not to commence until a future 
 time, or until the happening of a contingency, ought to 
 he similarly converted. 
 
 The principle is thus expressed in Hinves v. H. {n): 
 ' The result of the rule laid down by Lord Eldon in Howe 
 'v. Lord Dartmouth {o), and by Lord Cottenham in 
 ' Pickering \ . P. (p), is that where personal estate is given 
 ' in terms amounting to a general residuary bequest to 
 'be enjoyed by persons in succession, the interpretation 
 ' which the Court puts upon the bequest is that the per- 
 'sons indicated are to enjoy the same thing in succession; 
 ' and in order to effectuate that intention, the Court as 
 ' a general rule converts into permanent investments as 
 ' much of the personalty as is of a wasting or perishable 
 ' nature at the death of the testator, and also reversionarj^ 
 'interests." 
 
 This general principle is simple enough: but like all Subject 
 general principles it is subject to the paramount rule that jnterrtion'^if' 
 in the construction of wills the testator's intention is, if ascertainable, 
 ascertainable, to prevail. He may of course direct, if he 
 chooses, that his property, however wasting, shall be specifi- 
 cally enjoyed in the first place by a life tenant, and that 
 the remainderman shall take only what chance may leave 
 for him; and difficulties often arise in ascertaining whether 
 such is, or is not, the testator's intention. 
 
 This question is one which evidently depends upon the what 
 language of each particular instrument, so that no seneral amounts to 
 
 PI 11-11 o • 1 • • TTT- indication of 
 
 formula can be laid down for its decision. We can only contrary 
 illustrate from actual cases what has and what has not been ^^ ^^^^°^- 
 considered sufficient to entitle the legatee to enjoyment of 
 perishable property in specie, observing, hoivever, that 
 
 (n) 3 Ha. 609, 611. (o) Supra, 
 
 (j}) 4 My. & Cr. 289.
 
 120 
 
 DUTIES AND LIAI5ILITIES OF TRUSTEES. 
 
 Absence 
 
 of directidn to 
 
 convert docs 
 
 not. 
 
 Court will not 
 interfere with 
 discretion if 
 given. 
 
 Use of words 
 "rents" and 
 "dividends." 
 
 General rule. 
 
 in all cases the hurden of proof is upon the person who 
 opposes immediate conversion according to the rule{q). 
 
 The mere absence of a direction to convert the proj^erty, 
 has never been considered to mean that it should be enjoyed 
 in specie (r). On the other hand, if there is a specific gift 
 of such property, then the mere fact that trustees have a 
 discretionary power to sell it is not a reason for converting 
 it. The discretion is deemed to be given only for the 
 security of the property, not with a view to vary or affect 
 the relative rights of the legatees (s) . And where there 
 Avas a direction in a will that trustees should in their sole 
 discretion sell so much and such parts of the residuary estate 
 as they might think necessary, the Court declined to inter- 
 fere with their discretion so as to prevent a tenant for life 
 enjoying leaseholds i?i specie (t) . An express direction for 
 sale at a given period indicates an intention that there 
 shall be no previous sale or conversion (m) . And where, 
 after giving power to postpone conversion of his property, 
 the testator declared that until sale the net rents, profits 
 and income should be paid to the persons to whom the 
 income would be payable if the sale had actually been 
 made, the profits of a business were held to be payable 
 to the tenant for life until sale (x) . 
 
 There has been much discussion as to whether the use 
 of such particular words as "rents" and "dividends," in 
 describing the proceeds of property bequeathed, amounts 
 to a sufficient indication of intention against conversion. 
 The result of the cases seems to be that where there is in a 
 residuary gift a trust to pay " rents " to jDersonsin sucoes- 
 
 (^q) Macdonald v. Irvine, 8 Ch. 
 D. 101. 
 
 (r) Johnson v. J., 2 Coll. 441; 
 Morgan v. M., 14 Beav. 72, 83; 
 Hart v. Stone, (1896) 1 Ch. 754; 
 65 L. J. Ch. 271. 
 
 (s) Lord v. Godfreij, 4 Madd. 
 455; Nixon v. Sheldon, 39 Ch. D. 
 50; 58 L. J. Ch. 25; Brnndrcth 
 v. Colvin, (1896) 2 Ch. 199; 65 
 L. J. Ch. 120; Be Nicholson, Bade 
 
 V. Nic/iolson, (1909) 2 Ch. Ill; 
 78 L. J. Ch. 516. 
 
 (t) Re SewelVs Esialr, 11 Eq. 
 80; Gray v. Siggers, 15 Ch. D. 74. 
 
 (m) Alcoch v. Slo-per, 2 My. & 
 K. 699. 
 
 {x) Chancellor v. Brown, 26 
 Ch. D. 42; 53 L. J. Ch. 443; 
 Wood v. Thomas, (1891) 3 Ch. 
 482; 60 L. J. Ch. 781.
 
 GETTINr. IN OUTSTANDING TKUST PKOPEltTY. 121 
 
 sion, and the residue comprises no other property except 
 leaseholds to which it is applicable, then the leaseholds are 
 to be enjoyed in specie (y). But if the residue comprised 
 freeholds as ivell as leaseholds, the word "rents" would 
 be sufficiently accounted for without supposing it to apply 
 to the leaseholds, and its presence would not sufficiently 
 indicate an intention to avoid the usual rule as to their 
 conversion {z) . 
 
 The w^ord " dividends " has been considered sufficient to 
 entitle a legatee for life to the enjoyment of long 
 annuities i7i specie {a) . But it would not suffice to qualify 
 an express direction to convert preceding it(&'). 
 
 The fact that securities are hazardous, but not essentially 
 of a wasting nature, would not seem to necessitate con- 
 version where the trustees are empow^ercd by the wall to 
 retain the testator s investments in their existing form (c) . 
 
 A direction to divide property after the death of the Direction to 
 tenant for life has been held to indicate an intention je^^h ot '^ 
 against immediate conversion {d) . So an exception from tenant 
 a general direction to convert may show an intention that 
 long annuities are to be enjoyed in specie (e). 
 
 Where a tenant for life is entitled to the enjoyment Effect 
 
 of leaseholds in specie, and they are taken by a company enjoyable 
 
 under compulsory powers, and the purchase-money paid '" ^p^'^'" pur- 
 g~. , . •11 1 1 r> 1 chased under 
 
 into bourt, he is entitled to the same beneht thereout as compulsory 
 he would have had from the lease (/) ; the mere interest P^^^^s. 
 of the money w^ould not be an adequate compensation {g). 
 And where the tenant for life in such case outlives the 
 
 (y) Goodenough v. Tremn- (^b) Bate v. Hooper, 5 De G. 
 
 moiido, 2 Beav. 512; Vachell v. M. & G. 338. 
 
 Robeits, 32 Beav. 140; Cafe v. (c) Hodgson v. Bates, (1907) 
 
 Bent, 5 Ha. 24, 36. 1 Ch. 22; 76 L. J. Ch. 29. 
 
 {z) Pickup V. Atkinson, 4 Ha. (jd) Collins v. C, 2 My. & K. 
 
 624; Craig v. Wheeler, 29 L. J. 703. 
 
 Ch. 374; Game v. Young, (1897) {e) Wildag v. Sandys, 7 Eq. 
 
 1 Ch. 881; 66 L. J. Ch. 505; Re 455. 
 
 Wareham, IFarehmn v. Breivin, (/) 8 & 9 Vict. c. 18, s. 74. 
 
 (1912) 2 Ch. 312; 81 L. J. Ch. (g) Jeffreys v. Connor, 28 
 
 578. Beav. 328. 
 
 (a) Alcock V. Sloper, sup.
 
 122 DUTIES AND LIABILITIIvS OF 'I'KUSTEES. 
 
 term to which ho was entitled as tenant for life, ho will 
 
 become absolutely entitled to the whole fund {h) . 
 
 Rule where Where property, the subject-matter of a bequest given 
 
 convejsion . • • p i i i r 
 
 would result to persons m succession, is found by the trustees oi a 
 
 in loss. testator to be so laid out as to be secure, and to produce a 
 
 large annual income, but is not capable of immediate con- 
 version without loss and damage to the estate, the rule is- 
 not to convert the property, but to set a value upon it, 
 and to give the tenant interest on such value; the residue 
 of the income must then be invested, and the income of the 
 investment paid to the tenant for life, the corpus being 
 secured to the remainderman. Formerly interest was calcu- 
 lated at four per cent. (i). In more recent cases interest 
 at three per cent, only has been allowed, as being more 
 agreeable to the facts of present experience (/{;), and the 
 rule extends to reversionary property which is not produc- 
 ing interest as well as to a wasting security (?). When, 
 according to the construction of a will, the executors have 
 full power to retain certain securities as long as they 
 think advantageous, or to invest the money of the estate 
 upon similar securities, while any such securities remain a 
 part of the testator's estate, the tenant for life is entitled 
 to the specific income arising therefrom; and when trustees 
 did not convert unauthorised securities, the tenant for life 
 was held to be entitled to an income from the testator's 
 death equal to the dividends of the Consols which would 
 have 1)0011 produced by a sale and investment in Consols at 
 a year from the testator's death, and not, as in Robinson 
 y.R. {m), to interest at four per cent, on their value. 
 
 (A) In re Beaujoy's Estate, 1 v. Woolmer, (1895) 2 Cli. 542; 65 
 
 Sm. & G. 20. L. J. Ch. 29; Gabellini v. Woods, 
 
 (0 Brown v. Gcllatlij, 2 Ch. (1904) 1 Ch. 4; 73 L. J. Ch. 204; 
 
 751 ; and see also Re Chesterfield's Chaytor v. Horn, (1905) 1 Ch. 
 
 Trusts, 24 Ch. D. 643; 52 L. J. 233; 74 L. J. Ch. 106. But cf. 
 
 Ch. 958; Froivde v. Hengler, Hollingsworth v. Davy, (1908) 1 
 
 (1893) 1 Ch. 586; 62 L. J. Ch. Ch. 61. 
 
 383; Teaques. Fox, (1893) 1 Ch. (J) Bowlls v. Behb, (1900) 2 
 
 292; 62 L. J. Ch. 469. Ch. 107; 69 L. J. Ch. 562. 
 
 {k) 3Iarla?<dv.JFUlui7ns, (1895) (m) 1 Do G. M. & G. 247. 
 
 2 Ch. 537; 65 L. J. Ch. 71; Hay
 
 GETTING IN OUTSTANDING TRUSJ' PROPERTY. 123 
 
 Where trustees were made liable to a remainderman Power of 
 
 trustees wheD 
 
 for having improperly allowed perishable property to made liable to 
 remain in specie, and to be enioyed by the tenant for life, recover back 
 
 •^ ' ... from tenant 
 
 they were allowed by means of an inquiry in the same for life, 
 suit to recover back against the estate of the tenant for 
 life the amount overpaid to him (?^) . And where trustees 
 having a discretion as to the time of conversion allow 
 reversionary property to remain unsold until it falls into 
 possession, the tenant for life will be entitled to have paid 
 to him in respect of interest out of the proiJcrty the 
 amount which he would have received had the trustees 
 sold the property at the end of one year after the testator's 
 death (o) . 
 
 It "must be observed that the principle of Hoioe v . Lord 
 Dartmouth is only applicable in the case of residuary 
 bequests in wills. It has no application to settlements (p<). 
 
 4. Money invested on good real securities is not required Money 
 to be called in, unless, of course, it is necessary for the ^'^^o^^^^securitv 
 payment of debts (g); and in an administration action to remain ao. 
 the Court would not permit a real security to be called in 
 without inquiry as to its expediency (r) . It has been held 
 that a trustee is not bound to call in a fund invested upon 
 a second mortgage (s) ; but seeing that such a security, Second 
 however apparently ample, is continually liable to damage mortgage, 
 from the operation of the doctrines of tacking and consoli- 
 dation (as to which see infra, pp. 1312, 321), such invest- 
 ments are manifestly undesirable. If, moreover, a trustee 
 has reason to suppose that any real security is not good, it 
 is his duty to call it in at once(i). To render trustees 
 
 («) Hood \.C'(a/j/i(nii,ld licax. {q) On- v. Neivton, 2 Cox, 216. 
 
 90. (r) Howe v. Earl of Bart- 
 
 (o) Wilhinsou V. Duncan, 23 mouth, 7 Ves. 137, 150. 
 
 Beav. 469; Wright v. Lambert, (s) Robinson \. R.,\'D&(j.'!si. 
 
 6 Ch. D. 649. & G. 252 
 
 Qp) Boustead v. Cooper, (190 
 2 Ch. 779; 70 L. J. Ch. 82i 
 Hope V. H., 1 Jm-. N. S. 770. 
 
 Qp) Boustead v. Cooper, (1901) (0 ^>»es v. Parkinson, 7 Beav. 
 
 2 Ch. 779; 70 L. J. Ch. 825; 384.
 
 124 
 
 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 Property 
 in power of 
 third parties. 
 
 Consequences 
 of neglect to 
 realise 
 generally. 
 
 Under order 
 of Court. 
 
 Where they 
 have special 
 discretionary 
 power. 
 
 liable in such a case, wilful default, including want of 
 ordinary prudence, must be sIiowti (w) . 
 
 5. It is the duty of trustees also to place the trust 
 property beyond the power of any third parties. Thus 
 if the trust fund is an equitable interest of which the 
 legal estate cannot be at once transferred, the trustees must 
 immediately give notice of their interest to the person in 
 Avhom the legal estate is vested, in order to avoid a sub- 
 sequent purchaser gaining priority by giving the first 
 notice (x) . Similarly a trustee of a settlement which 
 requires registration is responsible for any loss arising 
 from a neglect to procure registration {y) . 
 
 6 . Where executors have neglected to realise outstanding 
 assets, the prima facie rule is that they are liable for any 
 loss which arises after the expiration of a year from the 
 testator's death, and executors who have not completed the 
 conversion by that time must be prepared to justify their 
 delay (z) . The rule, however, is not an absolute one, and 
 if in the circumstances 6f any case a longer delay seemed 
 reasonable, no liability is incurred thereby (a). 
 
 When trustees are ordered by the Court to realise 
 securities, and they neglect to do so, they will be liable 
 for any loss sustained by their neglect; such direction 
 overrides their discretion (5). 
 
 On the other hand, if by the instrument creating the 
 trust trustees are given a special discretion as to whether 
 funds shall be called in or not, this will override the usual 
 operation of the rule; and then, in order to charge them 
 with loss, it will be necessary to establish a clear case of 
 misconduct against them (c) . If the trustees, under such 
 
 (m) Cocks V. Chapman, (1896) 
 2 Ch. 763; 65 L. J. Ch. 892. 
 
 (a;) Jacob \. Lucas, 1 Beav. 436. 
 
 (y) Macnamara v. Carey, 1 
 I. R. Eq. 9. See also Kingdon 
 V. Castleman, 46 L. J. Ch. 448. 
 
 (~) Grayburn v. Clarkson, 3 
 
 Ch. 606; Sculthorpe v. Tipper, 
 13 Eq. 232. 
 
 (rt) Hughes v. Empson, 22 
 Beav. 181. 
 
 (6) Davenport v. Stafford, 14 
 Beav. 319, 338. 
 
 (c) P addon v. Richardson, 7 
 De G. M. & G. 563, 582.
 
 AS TO THE CUSTODY OF TRUST PROPERTY. 125 
 
 circumstances, are unable to agree, the trust for sale 
 prevails and the investments must be sold {d) . 
 
 As to the relief afforded to trustees in investment cases Judicial 
 under the Judicial Trustees Act, 1896 (e), see infra, 
 p. 132. 
 
 II. As to the Custody of Trust Property. 
 
 A leading authority on the duties and liabilities of 
 trustees as to the custody of trust property is the case of 
 Speight v. Gaunt (/), in which the House of Lords held 
 that though a trustee may not " delegate at his own will 
 and pleasure, the execution of his trust, and the care and 
 custody of the trust moneys, to strangers,'" yet " that 
 when, according to the regular and usual course of busi- 
 ness, moneys receivable or p<iyable ought to pass through 
 the hands of mercantile agents, that course m.ay properly 
 be followed by trustees, though the moneys are trust 
 moneys.'' (Per the Earl of Selborne, pp. 4, 5.) 
 In the same case Lord Blackburn said that " as a 
 general rule a trustee sufficiently discharges his duty if 
 he takes, in managing trust affairs, all those precautions 
 which an ordinary prudent man of business would take 
 in managing similar affairs of his own," with the 
 exception that he " must not choose investments other than 
 those which the terms of his trust permit." 
 
 In the application of the principle thus laid doAvn, the General 
 following points may be observed. prmcip e. 
 
 1 . If a loss occurs by unavoidable accident, if, for Not liable for 
 instance, Avithout any fault of the trustees, the trust funds 
 are stolen from them or from anyone entrusted therewith, 
 they are not liable (g) . 
 
 {d) Re Hilton, Gibbe)i \. Hale- (/) 9 App. Cas. 1; 53 L. J. 
 
 Hinton, (1909) 2 Ch. 548; 79 Ch. 419. 
 
 L. J. Ch. 7. {g) Jones v. Lewis, 2 Ves. sr. 
 
 (e) 59 & 60 Vict. c. 35. 240; Job v. J., 6 Ch. D. 562.
 
 126 
 
 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 or ordinary 
 conduct 
 of buninese. 
 
 Trustee Act, 
 1893. 
 
 Liable for 
 risks unneces- 
 sarily in- 
 curred. 
 
 2. Similarly, if in a proper course of business they 
 deposit money in a bank, and the bank fails, they arc not 
 liable (/i). By Lord St. Leonards' Act (z), s. 31, it was 
 enacted that every instrument creating a trust should be 
 deemed to contain a clause exonerating the trustees from 
 liability for any banker, broker, or other person with 
 whom any trust moneys or securities might be deposited. 
 And by the Trustee Act, 1893 (k), which repeals this 
 section, the protection of the trustee is somewhat extended 
 by the provision that he is answerable only for his own 
 acts, receipts, neglects or defaults, and not for those of any 
 other trustee, nor for any banker, broker, or other person 
 with whom any trust moneys may be deposited, nor for 
 the insufficiency or deficiency of any securities, nor for 
 any other loss, unless the same happens through his own 
 wilful default. But neither the statutes nor the decisions 
 diminish the importance of the inquiry whether there was 
 good reason for allowing the money to remain in another's 
 hands. The cases show that it is considered a sufficient 
 reason if it is necessary for the ordinary purposes of the 
 trust that a certain sum should be kept in hand, as for the 
 payment of debts, or current expenses or legacies; or if the 
 money is so deposited pending negotiations for its more 
 secure investment. Such moneys must remain somewhere, 
 and in the usual course of business one would utilise a bank 
 for the purpose. It is also similarly reasonable to allow a 
 deposit on a sale to remain in the hands of an auctioneer (1) . 
 The effect of the statutes is to throw the burden of proof 
 on those who seek to charge the trustee (m) . 
 
 If, however, moneys be left unnecessarily in the hands 
 of third parties, as in the hands of a banker or solicitor, 
 more than a year after a testator's death, and after the 
 debts and legacies are paid, and a loss occurs, the trustees 
 
 (70 Exp. Belchier, Amb. 218; 
 Johnson v. Newton, 11 Ha. 160; 
 Penwicke v. Clarke, 31 L. J. 
 N. S. Ch. 728. 
 
 (J) 22 & 23 Vict. c. 35. 
 
 (A-) 56 & 57 Viet. c. 53, s. 24. 
 (l) Edmonds v. Peake, 7 Beav. 
 239 
 
 (m) Re Brier, 26 Ch. D. 238.
 
 AS TO THE CUSTODY OF 'IKUST PROPERTY. 127 
 
 or executors are liable (72). Title deeds may be left in 
 the hands of a solicitor, where, from the nature of the 
 trust, frequent reference to them is necessarj'' (0), and 
 convertible securities, such as bonds payable to bearer, if 
 authorised by the trust, though not properly deposited 
 with a solicitor, may be deposited in the joint names of 
 trustees with a banker (p) . 
 
 The Trustee Act, 1893 (q), further protects trustees by Trustee Act, 
 enabling a trustee to appoint a solicitor to be his agent 
 to receive and give a discharge for any money or valuable 
 consideration or property receivable under the trust, by 
 permitting the solicitor to have the custody of and to pro- 
 duce a deed containing a receipt clause embodied or indorsed 
 and by enabling him to appoint a banker or solicitor to be 
 his agent to receive policy moneys, and for that purpose to 
 have the custody of and produce the policy of assurance. 
 But it appears that an attorney of a trustee under a general 
 power cannot authorise a receipt under this section, though 
 Avith express power he might do so (r). An agent may 
 in proper circumstances be employed to invest, but money 
 should not be deposited with him until the investment is 
 found: to do so would be to lend on personal security. 
 Moreover, agents, such as brokers, solicitors, or valuers, 
 must not be employed out of the ordinary scope of their 
 business (s) ; and the last quoted statute enacts that nothing 
 therein shall exempt a trustee from any liability which he 
 would have incurred if the Act had not been passed, in 
 ■case he permits any money or property to remain in the 
 hands or under the control of the banker or solicitor longer 
 than is reasonably necessary to enable him to pay or 
 transfer the same to the trustee. 
 
 («) Darke v. Martij», 1 Beav. (r) Re Hetlinrj and Merton, 
 
 525; Castle v. Warland, 32 Beav. (1893) 3 Ch. 269, 280; 62 L. J. 
 
 '660. Ch. 783; Re Sheppard, Be Bri- 
 
 (o) Field V. F., (1894) 1 Ch. mont v. Ilarre)/, (1911) 1 Ch. 50; 
 
 425; 63 L. J. Ch. 233. 80 L. J. Ch. 52. 
 
 {p) Bent V. Be Pothonier, (s) Fry v. Tapson, 28 Ch. D. 
 
 (1900) 2 Ch. 529; 69 L. J. Ch. 268; Jiidrews p. Wean.,i2 Ch. D. 
 
 .773. 674; 58 L. J. Ch. 713. 
 
 (r/) 56 & 57 Vict. c. 53, s. 17.
 
 128 
 
 DUTIES AND LlABILITIlvS OF TKUSTP:KS. 
 
 ABSociating 
 with others in 
 control 
 of fund, 
 
 or leaving it 
 in entire 
 control 
 of co-trustee. 
 
 Retiring from 
 trust to 
 eniible a 
 breach of 
 trust. 
 
 3. A. trustee who, without entirely parting with control 
 over the trust fund, associates another person with him in 
 its management, and so loses the exclusive power over it,, 
 will be liable for any loss which results from such a step (t) . 
 An illustration of this occurs where a sole trustee invest*- 
 a fund in the joint names of himself and another, and 
 so deprives himself of an unfettered discretion as to its 
 removal (u) . 
 
 4. A fortiori, a trust fund should not be left under the 
 entire control of a co-trustee. Thus trust money should, 
 where there is more than one trustee, be invested or 
 deposited in the joint names of all, and payable only to 
 their joint order or cheque (x). Where a trust fund was 
 lost through the forgery of one of two trustees, but there 
 had been no negligent departure on the part of his co- 
 trustee from the ordinary practice of a prudent man of 
 business, the co-trustee was held not liable for the loss (y) . 
 
 5 . If a trustee refuse to commit a breach of trust him- 
 self, but declares his willingness to resign in favour of 
 some other person less scrupulous, the Court, considering 
 that it is equally incumbent on the trustee in this ultimate 
 act of office as at any other time to fulfil the duty imposed 
 upon him, may hold him or his representatives responsible 
 for the misbehaviour of the substituted trustee {z) . But 
 in order to fix a retiring trustee with such liability for a 
 successor's breach of trust, it must be shown that the very 
 breach of trust which was in fact committed was actually 
 contemplated by the retiring trustee at the time of his 
 retirement {d) . 
 
 (t) Salway v. *S^., 2 R. & My. 
 215. 
 
 (m) White V. Bough, 3 CI. & F. 
 44. 
 
 (x) Clough V. Bond, 3 My. & 
 Cr. 490; Trutch v. Lampretl, 20 
 Beav. 116. 
 
 (y) Shefherd v. Harris, (1905) 
 2 Ch. 310; 74 L. J. Ch. 574. 
 
 (c) Lewin, p. 790, ed. 10; Le 
 llant V. Webster, 9 W. R. 918; 
 Clark V. Hoskim, 37 L. J. Ch. 561. 
 
 («) Head v. Goidd, (1898) 2 
 Ch. 250; 67 L. J. Ch. 480; Clark 
 V. Hoskins, sup.
 
 AS TO INVESTMENT. 129 
 
 III. A.s to Investment. 
 
 1 . As Ave have seen that an executor or trustee may not Not to invent 
 suffer the trust fund to remain outstanding on personal security!" 
 security, though the credit may have been given by the 
 creator of the trust, so it is clear that he is not justified in 
 lending trust money on personal security, even to a person 
 to whom the creator of the trust had been accustomed so 
 to lend money (6). Neither a joint personal security (c) 
 nor a loan on a bond with sureties (d) is a proper invest- 
 ment. If he retains money unnecessarily in his own 
 hands uninvested, he may be charged with compound 
 interest thereon at 3 per cent. (e). 
 
 In order to warrant investment on personal security Save 
 the express authority of the creator of the trust is neces- authorfty'!^'''' 
 sary (/) ; mere general expressions giving to trustees a 
 discretion are not sufficient (g) . 
 
 Even if trustees are authorised to lend upon personal Not even then 
 security they may not lend to one of themselves (h), or to themselves. 
 a relation for the purpose of accommodating him (i). And Authority to 
 any terms specified in the authority so to lend must be ^^ strictly 
 
 •y ir J complied 
 
 strictly complied with; for instance, if the consent of any with. 
 person is required, or the security of a bond is directed (/c). 
 And where there was authority to lend to a firm, it was 
 held that a change in the membership of the firm deter- 
 mined the authority (?) . The term "personal security" 
 has a wider meaning than the security of personal pro- 
 perty. It has been held to include a loan upon mere 
 personal credit (m) . But an investment clause expressed 
 
 ih) Terrv v. T., Prec. Ch. 273; (A) Francis v. F., 5 De G. M. 
 
 Barlce v. Marty n, 1 Beav. 525. & G. 108. 
 
 (c) Holmes V. JDring, 2 Cox, 1. («) Langston v. Ollivant, G. 
 
 (d) Watts V. Girdlestone, 6 Coop. 33. 
 
 Beav. 188. (Jc) Cocker v. Quayle, 1 Russ. 
 
 (e) Barclay v, Andrew, (1899) & My. 535. 
 
 1 Ch. 674; 68 L. J. Ch. 383. (I) Tucker v. T., (1894) 1 Ch. 
 
 (/) Forbes v. Ross, 2 Bro. C. C. 724; 63 L. J. Ch. 223; Smith v. 
 
 430; Child v. C, 20 Beav. 50. Patrick. (1901) A. C. 282; 70 
 
 (gr) Pocock V. Reddincjton, 5 L. J. P. C. 19. 
 Ves. 794; Mills v. Osborne, 7 (w) Pickard v. Anderson, 13 
 
 Sim. 30. Eq. 608. 
 
 S. 9
 
 130 DUTIES AND LIABILITIES OF TRUSTERS. 
 
 in the widest terms must be interpreted prudently and 
 honestly. An investment effected with a view to the 
 trustee's own benefit is a breach of trust, though it may 
 be verbally within the terms of the instrument (n) . 
 "Real_ ^^ 2. Permission is often expressly given to invest on the 
 
 What? security of real property, and is moreover provided for by 
 
 statute (o) . But questions often arise as to what is in- 
 cluded in the expression. It clearly does not authorise the 
 purchase of land, though such purchase may, of course, be 
 authorised by appropriate language (p) . Investment, as 
 a rule, means loan on security; and special powers are 
 required for the conversion of personal into real estate. 
 The most ordinary investments on real securities are mort- 
 gages of freeholds. Copyholds are within the expres- 
 sion (q) . Leaseholds are not so in strictness (r) ; but a 
 long term of years, free from onerous covenants and at a 
 peppercorn rent, was stated to be justifiable, even before 
 44 & 45 Vict. c. 41, s. 65, gave power to enlarge such a 
 term into a fee simple (s); and now by sect. 5 of the 
 Trustee Act, 1893 (t), a power to invest in real securities, 
 unless expressly limited by the instrument creating the 
 trust, authorises a mortgage on a term of not less than 
 200 years unexpired, which is not subject to a rent 
 greater than a shilling a year or to any condition for 
 re-entry, except for non-paj^ment of rent. 
 
 Short leaseholds are, of course, not admissible (m), nor is 
 an estate for life (a:i). More difficulty arises in the case of 
 such securities as corporation debentures charged on rates, 
 or on the property of a company including land, or bonds 
 secured on harbour duties or tolls. In many cases a dis- 
 
 (n) Smith v. Thompson, (1896) (r) Be Boyd's Settled Estate, 
 
 I Ch. 71; Knox v. Maclcinnon, 14 Ch. D. 626. 
 13 App. Cas. 75-1. (s) Jones v. Chennell, 8 Ch. D. 
 
 (o) Trustee Act, 1893 (56 & 57 493. 
 Vict. c. 53), s. 1. (0 56 & 57 Vict. c. 53. 
 
 (7?) Lerjg V. Mordan, (1905) 1 {u) Fuller v. Knight, 6 Beav. 
 
 Ch. 515; 74 L. J. Ch. 319. 209. 
 
 (f?) Wyatt V. Sharratt, 3 Beav. (re) Lander v. Weston, 3 Drew. 
 
 498. 389.
 
 AS TO INVESTMENT. l'*^! 
 
 position has been shown not to regard such investments as 
 interests in land within the Mortmain Acts, the tendency 
 having been to favour charities in this respect (^). But 
 where the question is merely one of the validity of invest- 
 ment, such securities would probably now be deemed valid 
 real securities {z) . The above quoted section of the Trustee 
 Act, 1893, authorises, in default of contrary directions, 
 charges or mortgages of charges under the Improvement 
 of Land Act, 1864 (a), as real investments. 
 
 A trustee or executor lending money on mortgage is Loan on 
 not chargeable with breach of trust if the amount of the should only 
 loan does not exceed two-thirds of the value of the property ^^ *°<.u^^^^ ^^ 
 as valued by a practical surveyor or valuer employed 
 independently of any owner of the property, provided the 
 security is in other respects a proper one and the loan has 
 been advised by the surveyor (6). Much depends on the 
 nature of the property, and the two-thirds rule cannot 
 be relied on without the exercise of prudence and dis- 
 cretion (c) . But it seems that if trustees are properly 
 advised by a competent valuer, they are not bound to 
 make personal inquiries {d) . If the loan exceeds this 
 limit but would be good for a smaller sum, the trustee is 
 only liable in respect of the excess (e). Where a security 
 originally sufficient subsequently fell below the proper 
 value, trustees were held to be not bound at once to call in 
 
 (y) Martin \. Laron,Z^C\\.T>. 231; 63 L. J. Ch. 41; Rae v. 
 
 332; 55 L. J. Ch. 878; Elm^ley Meek, 14 App. Cas. 558; 59 & 60 
 
 V. Mitchel, (1894) 2 Ch. 88; 3 ib. Vict. c. 35. 
 
 704; 64 L. J. Ch. 92. (<j) Shaw v. Cates, (1909) 1 Ch. 
 
 (s) Driver v. Broad, (1893) 1 389; 78 L. ,T. Ch. 226; Palmer \. 
 
 Q. B. 539, 744; 63 L. J. Q. B. JSmerson, (1911) 1 Ch. 758; 80 
 
 12: Birrell v. Greenhouqh, (1897) L. J. Ch. 418. 
 
 1 Ch. 928; 66 L. J. "Ch. 558; id) Re Solomon,!^ orewMeyer, 
 
 Buckleif \. Royal Lifeboat A^'soc, (1912) 1 Ch. 261; 81 L. J. Ch. 
 
 43 Ch.D. 27; 59 L. J. Ch. 87. 169; compromised on appeal, 
 
 in) 27 & 28 Vict. c. 114. (1913) 1 Ch. 200; 82 L. J. Ch. 
 
 {b) 56 & 57 Vict. c. 53, s. 8; 160. 
 
 replacing 51 & 52 Vict. c. 59, s. 4; (p) Ibid.; Priest v. TJppleby, 
 
 Re Walker, 59 L. J. Ch. 386; 42 Ch. D. 351. 
 Somerset v. Poulett, (1894) 1 Ch. 
 
 9 (2)
 
 132 DUTIE8 AND LIABILITIES OF TRUSTEES. 
 
 the mortgage. It is their duty in such a case to exercise 
 the discretion of practical men (/) . 
 Second and J^or the reasons elsewhere given (g) money should not 
 
 contributory i i i i i 
 
 mortgages, DC lent On a second mortgage, unless at least the legal 
 ^^^- estate can be promptly secured (/*). Nor should money 
 
 be lent on mortgage to a co-trustee (^) . A contributory 
 mortgage (that is, a mortgage in which the trustee asso- 
 ciates himself with another as mortgagee) is not admissible, 
 inasmuch as the security is not in his sole control {k) . 
 Trustees must It is a mistake to suppose that a trustee is relieved from 
 exercLe the careful exercise of a sound discretion by the fact that 
 
 prudeDce. j^q investment clause in the instrument creating the trust 
 may in terms authorise certain doubtful securities, or that 
 where such is the case an improvident investment will be 
 excused on the ground that the trustee has risked funds 
 of his own on similar investments. " The duty of a trustee 
 " is not to take such care only as a prudent man would 
 " take if he only had himself to consider. The duty rather 
 "is to take such care as an ordinary prudent man would 
 " take if he were minded to make an investment for the 
 " benefit of other people for whom he felt morally bound 
 "to provide" (?). The same authorities show that it is 
 dangerous for a trustee carelessly to rely on exonerating 
 clauses in the trust deed. On the other hand, many of 
 the decisions having borne hardly on honest trustees, it is 
 now provided by the Judicial Trustees Act, 1896 (m), that 
 where a trustee or executor has acted honestly and reason- 
 ably the Court may excuse and relieve him from personal 
 
 (/) Eland v. Medland, 41 Ch. (Jc) Webb v. Jonas, 39 Ch. D. 
 
 D. 476; 58 L. J. Ch. 572; and 660; 57 L. J. Ch. 671; 8tol-es v. 
 
 see Cocks v. Chapman, (1896) 2 Prance, (1898) 1 Ch. 212; 67 
 
 Ch. 763; 65 L. J. Ch. 892. L. J. Ch. 69; Dive v. Roebuck, 
 
 (g) Pp. 123 and 321. (1909) 1 Ch. 328; 78 L. J. Ch. 
 
 (A) Drosier v. Brereton, 15 248. 
 
 'Beav. 221; Smef hurst V. Hastinffs, (Z) Per Lindley, L. J., in 
 
 30 Ch. D. 490; 55 L. J. Ch. 173; Whiteley v. Learoyd, 33 Ch. D. 
 
 Chapman v. Browne, (1902) 1 347, 355; affd. 12 App. Cas. 727 ; 
 
 Ch. 785. 57 L. J. Ch. 390; Knox v. 3Iar- 
 
 (i) Stickney v. Sewell, 1 My. kinnon, 13 App. Cas. 753; Rae v. 
 
 & Cr. 8; Macleod v. Annesley, 10 Meek, 14 App. Cas. 558. 
 
 Beav, 600. (w) 59 & 60 Vict. c. 35, s. 0.
 
 AS TO INVESTMENT. l''^>3 
 
 liability, wholly or in part {n) . In the exercise of its 
 discretion the Court will consider each case on its merits, 
 and it has declined to lay down general rules or principles 
 for application (o) ; but the onus is on the trustee to 
 establish his claim to exoneration (;p) . 
 
 3. Previously to certain statutes now to be referred to, Statutory 
 
 , , „ . T 1 powers of 
 
 a trustee s general power oi investment was exceedingly investment, 
 circumscribed. In fact, the tenor of some cases seems 
 such as almost to have confined him to government or 
 bank annuities ((7). But it is not now necessary to con- 
 sider restrictions which have long been obsolete. Nor is it 
 necessary to give in such detail, as in earlier editions of this 
 work, the history of the increasing latitude of trust invest- 
 ments from time to time introduced by statute. The range 
 of authorised investments has been repeatedly enlarged by 
 a series of statutes extending from Lord St. Leonards' Act 
 in 1859 (r) to the Trust Investment Act of 1889 (s), and 
 
 the law has been consolidated by the Trustee Act, 1893 (t), Trustee Act, 
 
 . . 1893 
 
 which now regulates the whole question of trust invest- 
 ments, declaring in detail what securities are authorised, 
 the principal of which are the following: — The parlia- 
 mentary stocks, or public funds or Government securities 
 of the United Kingdom; real or heritable securities in 
 Great Britain or Ireland; the stock of the Bank of Eng- 
 land and of the Bank of Ireland; India three and a half 
 per cent, stock and India three per cent, stock, and any 
 stock to be in future issued and charged on the revenues 
 of India; securities the interest of which is guaranteed by 
 Parliament; consolidated stock of the Metropolitan Board 
 of Works or London County Council; debenture or rent- 
 er) See Mosley v. Key worth, (1899) 1 Cli. 797; 68 L. J. Ch. 
 (1897) 2 Ch. 518; 66 L. J. Ch. 397. 
 
 759; Re Mackay, Griesseman v. r^\ Smith v. Stuart, (1897) 2 
 
 Carr. (1911) 1 Ch. 300; 80 L. J. Ch 583; 66 L. J. Ch. 780; Chip- 
 Ch. 237. ^an v. Browme, (1902) 1 Ch. 785. 
 
 (o) Barker v. Ivimey, (1897) 1 (g-) Ransom v. Allen, 2 Dick. 
 
 Ch. 536; 66 L. J. Ch. 282. See 498. 
 
 Clews V. Grindey, (1898) 2 Ch. (r) 22 & 23 Vict. c. 35. 
 
 593; 67 L. J. Ch. 624; Perrms (s) 52 & 53 Vict. c. 32. 
 
 V. Bellamy, (1898) 2 Ch. 521; (t) 56 & 57 Vict. c. 53.
 
 134 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 charge or guaranteed or preference stock of any railway 
 company in Great Britain or Ireland incorporated by 
 special Act of Parliament and having for the ten previous 
 years paid a dividend of not less than three per cent, on 
 its ordinary stock; the stock of any railway or canal 
 company in Great Britain or Ireland whose undertaking 
 is leased for not less than 200 years at a fixed rental to 
 any such railway company as lastly before mentioned; 
 the debenture stock of any railway company in India the 
 interest of which is paid or guaranteed by the Secretary 
 of State for India; the debenture or guaranteed or pre- 
 ference stock of any company in Great Britain or Ireland 
 established for the supply of water for profit and incor- 
 porated by special Act of Parliament or Royal Charter, 
 and having for the ten previous years paid a dividend of 
 not less than five per cent, on its ordinary stock; the 
 nominal or inscribed stock issued by the corporation of 
 any municipal borough having a jjopulation exceeding 
 50,000, or by any county council; the nominal or in- 
 scribed stock issued by any commissioners incorporated by 
 Act of Parliament for the purjjose of supplying water and 
 having a compulsory power of levying rates over an area 
 containing a population exceeding 50,000. The same 
 section empowers trustees to vary any such investments (u) . 
 Certain restrictions are imposed by sect. 2 of the Act as 
 to investments in redeemable securities (x) . 
 
 By the Trustee Act, 1894 (y), trustees are enabled to 
 continue any authorised investment although since the 
 investment it has ceased to be an authorised investment. 
 But this has no retrospective action (z) . 
 Colonial By the Colonial Stock Act, 1900 (a), trustees are 
 
 empow'ered to invest in any Colonial stock registered in 
 the United Kingdom under the Colonial Stock Acts, 1877 
 
 (m) See Hume v. Lopes, (1892) capital moneys arising under tlie 
 A. C. 112; 61 L. J. Ch. 423. Act. 
 
 Oy) 57 & 58 Vict. c. 10, s. 4. 
 
 (a;) See also the Settled Land (z) Cocks v. Chapman, (1896) 
 
 Act, 1882 (45 & 46 Vict. c. 38). 2 Ch. 763; 65 L. J. Ch. 892. 
 8. 21, as to the investment of (a) 63 & 64 Vict. c. 62, s. 2.
 
 AS TO INVESTMENT. 185 
 
 aud 1892, subject to the restrictions imposed by the 
 Trustee Act, 1893, on redeemable securities. But this 
 power docs not extend to stock issued by the individual 
 provinces of a colony {b). 
 
 The range of trustees' investments has thus been largely 
 extended; but it must be observed that in all cases the 
 statutory powers are subject to any express directions con- 
 tained in the instrument creating the trust, or in any 
 special statute particularly affecting the trust fund, as in 
 the case of building societies (c) ; and they do not at all 
 affect the principles by which the discretion of trustees 
 must be guided, nor do they diminish their respon- 
 sibility (d) . Their investments much be such as arc Investments 
 equally just to all objects of the trust. They may not ™"all the^* 
 
 show favour to a tenant for life by investing upon secu- <^"'^«* ?«* 
 
 trusts. 
 rities which command a higher rate of interest, in conse- 
 quence of their being determinable; nor will the Court, 
 in the absence of special circumstances, authorise a transfer 
 from Consols into another investment producing a larger 
 income, if it may be injurious to those in remainder. The 
 Court will, however, be influenced by facts showing it to 
 be for the interest of children that the income of their 
 parents should be increased (e) . 
 
 For the remedies of a cestui que trust against trustees Remedies 
 who in respect of investments or otherwise commit a ^^^^g^^^^g 
 breach of trust, see Sect. V., infra, p. 142. 
 
 IV. Liability of Co-trustees. 
 
 The case of Townley v. Sherborne (/) has been long 
 referred to as a leading authority on the general liability 
 of a trustee for the acts and defaults of his co-trustee . 
 
 (6) ReMan/nn-Wilson's Entale, (d) Consterdinc v. C ., 31 Beav. 
 
 (1911) 2 Ch. 663; 81 L. J. Ch. 8; 330, 333; Knox v. Maclcinnon, l.'i 
 
 (1912) 1 Ch. 55; 81 L. J. Ch. 73. App. Cas. 753. 
 
 (e) Cockhurn v. Peel, 3 De G. 
 (c) Re National, #c. Buildinr/ F. & J. 170, 174. 
 Society, 43 Ch. D. 431; 59 L. J. (/) Bridg. Rep. 35; 2 W. & T. 
 
 Ch. 403. L. C. 629, ed. 7.
 
 186 
 
 DUTIES AND LIAHILITIKS OF TRUSTEES. 
 
 General rule 
 against the 
 liability. 
 
 Exceptions. 
 Negligence. 
 Acquiescence. 
 
 Fraud. 
 
 Unduly 
 trusting co- 
 executors. 
 
 Brice v. Stokes (g) illustrates the particular case of the 
 liability which arises from the joining of trustees in giving 
 receipts. 
 
 The former case establishes the general principle that 
 a trustee is not to be held liable for the acts or defaults 
 of a co-trustee, in which he himself has not participated. 
 As between co-executors also the same rule applies (h). 
 
 There are, however, many circumstances which will 
 take a case out of this general rule. Thus a trustee or 
 executor who, though he has not participated in the act 
 which has resulted in loss to the trust estate, has been 
 guilty of negligence, or has stood by and been cognisant 
 of without interfering with a devastavit or breach of trust 
 committed by his co-trustee or co-executor, will be held 
 responsible for it (i) . In the latter of the cases referred 
 to, an executor, who took no active part in the trusts, was 
 held liable for permitting his co-executor to retain the 
 testator's moneys in a business in which the testator had 
 been partner with the co-executor. Both had proved the 
 will, and having thus undertaken the duty of properly 
 attending to the trusts were bound to diligence therein. 
 Permitting a co-executor to receive the assets and retain 
 them in his hands without proper investment, will also 
 render an executor liable for any loss thus incurred: 
 proper measures ought promptly to be taken to prevent 
 such a breach of trust (fc) . 
 
 Still more certainly if a trustee or executor is guilty of 
 any fraud in the matter of the trust, he will not be able 
 to escape liability by throwing the blame on a colleague 
 in the office (I). 
 
 Executors being jointly responsible for the management 
 of the funds of their testator, cjuestions as to liability often 
 
 (g) 11 Ves. 319; 2 W. & T. 
 L. C. 633, ed. 7. 
 
 (h) Littlehales v. Gascoyne, 3 
 Bro..C. C. 73. 
 
 («■) Mucklow V. Fuller. Jac. 
 198; Booth v. B., 1 Beav. 125. 
 
 (A) Lincoln v. Wright, 4 Beav. 
 427; Stiles v. Guy, 1 Mac. & G. 
 422. 
 
 (J) Biitler V. ^., 5 Ch. D. 554; 
 7 ib. 116; 14 ih. 329.
 
 LlAIilLITY OF CO-TRUSTEES. 137 
 
 arise "when one pays over to his co-executor, or allows 
 him to receive the whole or part of the assets, so that 
 he acquires an exclusive control over them, and they are 
 afterwards lost through his misconduct. The liability in 
 these cases depends upon circumstances. Generally, if 
 an executor thus puts the funds into the power of his 
 co-executor, and they are lost through his bankruptcy, or 
 are embezzled by him, the former is liable to make good 
 the loss(m). And it matters not whether this power is 
 given by an absolute payment to a co-executor, or other- 
 wise, as by joining him in indorsing or drawing negotiable 
 instruments {n) . 
 
 But if, in the usual course of the management of the When a cc- 
 
 . , •, • p , , p executor may 
 
 trust, it IS iiecessary lor an executor to pay over some oi ^^ rightly 
 the assets to his colleague; if, for instance, one of them trusted, 
 resides in a neighbourhood where a debt has to be paid, 
 and money is remitted to him for that purpose by 
 the other, the executor so remitting money incurs no 
 liability (o) . The question in such cases turns on the 
 meaning of the word "necessity," which was discussed at 
 length in Gasquoine v. G. (p), in which case it was held 
 that the proposition laid down in Candler v. Tilleft (q) 
 to the effect that an executor who does an act by which 
 his co-executor obtains sole possession of the trust fund 
 is liable for the co-executor's misapplication of it, must 
 be read "who unnecessarily does an act." "'Necessity' 
 " includes the regular course of business in administering 
 "property" (r). An executor is not liable for payment 
 over of a fund which he had no legal right to retain (s) . 
 
 Questions as to individual responsibility often arise in Trustees 
 
 (m) Totvnsend v. Barber, 1 Joij v. Campbell, 1 S. & L. 341. 
 
 Dick. 356; Langford v. Gascoipw, (p) (1894) 1 Ch. 470, 475; 63 
 
 11 Ves. 333; Robinson v. Ilarkin, L. J. Ch. 377. 
 
 (1896) 2 Ch. 415; 65 L. J. Ch. {q) 22 Beav. 257. 
 
 773. (r) Per Lord Cottenham, 
 
 (m) Hovef) V. Blakeman, 4 Ves. Clough v. Bond, 3 My. & Cr. 
 
 ■608; Saddler v. Ilobbs, 2 Bro. 490, 496. 
 
 C C. 114. (s) Davis v. Spicrling, 1 Russ. 
 
 (o) Bacon v. 7?., 5 Ves. 331; & My. 64.
 
 138 
 
 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 joining in 
 receipts. 
 
 Where it is 
 
 formally 
 
 necessary. 
 
 Executors. 
 
 Burden 
 
 of proof on a 
 
 person 
 
 signing. 
 
 Where the 
 transaction is 
 unnecessary. 
 
 cases where joint reeeipts are given for trust moneys; and 
 to determine sucli questions it is necessary to inquire into- 
 the circumstances of each particular case. Every case will 
 on examination be found to fall under one or other of the 
 following heads. 
 
 (1.) If the signature of all the trustees is formally 
 necessary to the receipt, the signature of a trustee to 
 whose hands the money does not come will not suffice of 
 itself to render him liable to account for it (t). It is but 
 reasonable that in a case in which he has no power to refuse 
 to sign, his signature should not, without more, fix him 
 with a liability. 
 
 And the rule as to executors is the same in similar 
 circumstances. It is true that, inasmuch as each executor 
 has full control over the assets of the testator, it is not so 
 often necessary for a co-executor to join in a receipt or 
 discharge for conformity's sake; but where, as in the ease 
 of a sale of stock standing in the names of executors, or 
 now in the case of a sale and conveyance of land by 
 virtue of the Land Transfer Act, 1897 (u), the concurrence 
 of both is necessary, the one to whose hands the funds do 
 not come will not necessarily be liable (x) . But in these 
 cases where the signing is alleged to have been for mere 
 conformit}', the burden is on a trustee seeking to clear 
 himself, to prove that his co-trustee's were the actual 
 hands which received the moncj'. The signature thus 
 creates a prima facie liability in all cases (y) . 
 
 Where, moreover, the transaction of ichich the receipt 
 forms part is, as it was in Brice v. Stokes (z), icholly 
 unnecessary, and the trustee signing then permits his co- 
 trustee to deal ivith the moneys contrary to the trust, he 
 icill be charged ivith any loss thus occasioned. The entire 
 transaction being unnecessary, the fact that the sig- 
 
 {t) Ileaton v. Marriott, cited 
 Prec. Ch.l73; Fellowa v. Mitchell, 
 1 P. Wms. 81. 
 
 (m) 60 & 61 Vict. c. 65. 
 
 (a;) Chambers v. Minchiii, 7 
 
 Ves. 186, 197. 
 
 (y) See Brice v. StoJces, 11 Ves- 
 319; Fellows v. Mitchell, 1 P. 
 Wms. 81. 
 
 (z) Sup. p. 136.
 
 LIABILITY OF CO- I'RUSTEKS. I'J^ 
 
 nature was for mere conformity is not sufficient to 
 
 discharge him (a). It is the duty of a trustee to inquiri; Trustee must 
 
 as to the necessity of a transaction respecting the trust i^qmre as to 
 •^ . . tne necessity, 
 
 money; he may not escape by alleging ignorance of tlic 
 
 state of the trust (6). 
 
 And similarly an executor will not be justified in thosu 
 cases where his formal concurrence is necessary, in joining 
 in a transaction upon the mere representation of his co- 
 executor that it is necessary for the purposes of adminis- 
 tration. He must make proper inquiries; if he does not, 
 he will be liable for any misappropriation (c) . 
 
 (2.) Where, on the contrary, a person joms voluntarily Voluntary 
 in a receipt, in which his concurrence is not formally receipt, 
 requisite, such interference being unnecessary, he is to 
 be considered as assuming a power over the fund, and 
 is therefore answerable for the application thereof, as far 
 as it is connected with the particular transaction in which 
 he joins {d). 
 
 This difference usually distinguishes the case of receipts Distinction 
 by executors from that of receipts by trustees. In the ^m^ees^and 
 case of trustees it is commonly requisite that all should executors, 
 join in order to effect a complete discharge (e). They are, 
 therefore, usually not liable for moneys not coming to their 
 hands. On the contrary, one executor being generally 
 competent to give a valid receipt, the joining of a co- 
 executor is as a rule unnecessary; and as a rule, therefore, 
 executors who so sign are bound by their signatures. 
 
 But there are exceptions to this. Where the act of Exceptions, 
 signing is merely nugatory and has not the effect of 
 putting the trust funds in the hands of a co-executor, for 
 instance, if he has already previously received the money, 
 such signature will not raise a liability (/) . This is a very 
 
 (a) See Brice v. Stokes, sup.; 11 Ves. 252; 16 Ves. 477. 
 
 Walker \, Symonds, 3 Swanst. 1; {d) See Brice v. Stokes, sup.; 
 
 Ingle v. Partridge, 32 Beav. 661. Leigh v. Barry, 3 Atk. 584. 
 
 (6) Hanbury v. Kirklaud, 3 (e) Re Flower, 11 Qh.. D. 5^'1\ 
 
 Sim. 265; Blyth v. Fladgate 53 L. J. Ch. 955. 
 
 (1891) 1 Ch. 337; 60 L. J. Ch. 66. (/) Westley v. Clarke, 1 Eden, 
 
 (c) Shipbrook \ . Ilinchinbrook . 357.
 
 140 
 
 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 General 
 conclusion. 
 
 Indemnitj 
 clauses. 
 
 22 & 23 Vict. 
 c. 35,8. 3L 
 
 extensive exception, and reduces the rule almost to this, 
 that the question really to be decided is whether the money 
 was ever under the control of both executors {g) . 
 
 The general conclusion, then, as to the receipts o£ exe- 
 cutors seems to be, that where funds belonging to executors 
 are not under the separate control of each, although one of 
 them joins with his co-executor in any act or receipt which 
 will have the effect of putting the funds into his hands, as 
 the joining is absolutely necessary, and is not therefore 
 evidence that the executor so joining thereby assumes a 
 control over the fund, the principle which governs the case 
 of trustees will be applicable, and he will not, if he has 
 used due caution, be liable for the misapplication of the 
 fund by his co-executors (/^). The rules, applicable to 
 executors, apply equally to administrators {%) . 
 
 It is scarcely necessary to say that no rule in favour of 
 the exoneration of an executor has application when a case 
 of wilful default is made out against him . A debt from a 
 co-executor to the trust estate must be recovered just as 
 any other outstanding asset (fc) . His personal security is 
 no more warrantable than that of another. Such cases fall 
 under the principles already enounced as to the custody 
 and investment of trust property. 
 
 An express clause was formerly usually inserted in trust 
 deeds, providing that one trustee should not be answer- 
 able for the receipts, acts or defaults of his co-trustees. 
 Equity infused such a proviso into every trust deed, 
 whether expressed or not (l), and no better right was 
 given by the expression of that which if not expressed was 
 implied (m). By Lord St. Leonards' Act (n), s. 31, the 
 use of such indemnity and reimbursement clauses was 
 
 Cff) Joy V. Campbell, 1 S. & L. 
 341. 
 
 (A) Hoveij V. Blakeman, 4 Ves. 
 596, 608. 
 
 («) Willand v. Fenn, cited 
 Jacomb v. Harioood, 2 Ves. 267. 
 
 (h) Stiles V. Guy, 1 Mac. & 
 
 G. 422. 
 
 (I) Dawson v. Clarke, 18 Ves. 
 254. 
 
 (w) Worrall v. Rarjord, 8 Ves. 
 4, 8; Rehden v. Wesley, 29 Beav. 
 213. 
 
 in) 22 & 23 Vict. c. 35.
 
 LIABILITY OK CO-TKUSTEES. 141 
 
 rendered unnecessary, though of course it was open to a 
 testator to give a wider right to indemnity than that 
 expressed in the statute, as, for instance, by expressly 
 authorising each trustee to delegate his duties to another; 
 and full effect would be given to such a clause by the 
 Court (o). And now by the Trustee Act, 1893 (p), it is Trustee Act. 
 further enacted that a trustee shall, without prejudice to ^^'^^• 
 the provisions of the instrument creating the trust, be 
 chargeable only for money and securities actually received 
 by him, notwithstanding his signing any receipt for the 
 s<ike of conformity, and shall be answerable and account- 
 able only for his own acts, receipts, neglects and defaults, 
 and not for those of any other trustee, nor for any 
 banker, broker or other person with whom any moneys or 
 securities may be deposited, nor for the insufficiency or 
 deficiency of any securities, nor for any other loss, unless 
 the same happens through his own wilful default. The 
 protection previously dependent on decision thus receives 
 statutory authority. It is often found difficult to establish 
 a case of wilful default (q) . The powers given under the 
 Judicial Trustees Act, 1896 (r), to relieve against innocent 
 breaches of trust have already been considered (s) . 
 
 Independently also of any express indemnity, a trustee 
 who accepts office at the request of a cestui que trust is 
 entitled to be indemnified by him personally against an^^ 
 loss which may accrue in the proper execution of the trust; 
 for instance, if he is made contributory on the failure of a 
 company in which he rightly holds shares in the character 
 of trustee (t). 
 
 (o) Wilkms V. Moffff, 3 Giff. -^V^N^^^^f^^An tt- . 
 
 116; Pass v. Duudas, 29 W. R.e32. « f & 60 Vict. c. 35. 
 
 (p) 56 & 57 Vict. c. 53, s. 24. ^ '^"^•.P- 132. 
 
 (q) Cooke V. Stevens, (1898) j,^^\i^''% 1\ ^^'«^/^'-^^«''^ }^ 
 
 1 Ch. 162; (1897) 1 Ch. 472; 67 S^/^/iqnf/ pTiqI' ^'^'f^ 
 
 L. J. Ch. 118; Re Brier, 26 Ch. ch 40^ ^ '
 
 142 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 V. Remedies of a Cestui que Trust. 
 
 i. Folloioing the Trust Property. 
 ii. Personal Remedies. 
 iii. Removal of Trustees. 
 
 Following I Following the Trust Property. — 1 . One of the most 
 
 trust . . , • • 1 • • 1 
 
 property. conspicuous and instructive authorities as to the principles 
 
 on which equity acts in assisting a cestui que trust to 
 follow and recover trust property which has been wrong- 
 fully disposed of by a trustee, is the case of Thor?idike 
 V. Hunt (u). 
 
 In this case a trustee, on being ordered to pay into 
 Court a sum of stock representing a trust fund belonging 
 to T., which he had appropriated to his own use, paid 
 into Court, in compliance with this order, a sum of stock 
 belonging to another cestui que trust, B. The question 
 was, whether B. had a right to follow this fund as against 
 T. It was held, that B. had no such right. Their 
 equities were equal; and the Court having acquired the 
 legal interest on behalf of T.'s estate, this was deemed to 
 create a sufficient preference in T.'s favour {x), the transfer 
 being for valuable consideration and without notice. 
 
 From this reasoning and the authorities bearing on 
 this case, may be deduced the following rules as to the 
 following of trust property: — 
 
 (1.) If the fund comes into the hands of a volunteer, 
 that is, without the pajonent of valuable consideration, then 
 whether or not the holder had notice of the trust, the fund 
 may be followed and reclaimed by the cestui que trust {y). 
 
 (2.) If it is in the hands of a purchaser for value, with 
 notice of the trust, then also the fund may be followed; 
 
 (m) 3 De G. & J. 563. v. L. cf- Cotj. Bank, (1901) 2 Ch. 
 
 {x) See also a similar case, 231; 70 L. J. Ch. 477. 
 Taylor v. BlacUock, 32 Ch. D. (y) Mansell v. M., 2 P. Wms. 
 
 560; 55 L. J. Ch. 97; and Taylor 68l'.
 
 KEMEDIES OF A CESTUI QUE TRUST. 143 
 
 for the payment, being made with his eyes open, is deemed 
 to be made voluntarily (z) . 
 
 (3.) But if the holder of the fund is a bond fide pur- 
 chaser for value ■without notice, then his title cannot be 
 impeached, as is seen by the principal case, above referred 
 to {a) . And where a trustee paid trust money to the 
 credit of his private bank account, and drew on it, the 
 bankers, having no notice of the breach of trust, were held 
 not liable to the cestuis que trust (6). 
 
 The replacing of trust funds out of the trustee's own 
 property, even though on the eve of bankruptcy, is not 
 impeachable as a fraudulent preference, the motive being 
 not to prefer one creditor above others, but to secure 
 protection against the penal consequences of a breach of 
 trust (c) . 
 
 The student is referred to a later page (p. 365 et seq.) 
 for a more detailed consideration than would at this stage 
 of the subject be desirable, of the protection which may be 
 secured to a purchaser by the acquisition of the legal estate. 
 Here, it may suffice to say, generally, that no party to a 
 fraudulent bargain will be suffered to derive any benefit 
 from it, and that all persons who obtain possession of 
 trust funds with knowledge that their title is derived from 
 :a breach of trust, will be compelled to restore such trust 
 funds (d) . 
 
 2 . Another class of considerations arises when the trust Conversion of 
 fund has been not only appropriated but converted by the ^^^'^^ *""^" 
 trustee into property of another form; as, for instance, 
 where trust money has been laid out in land, or trust land 
 ■converted into money. In such cases the general rule 
 is, that the cestui que trust may attach and follow the 
 
 (s) Boiirsot V. Savage, 2 Eq. (1897) 2 Q. B. 19; 66 L. J. Q. B. 
 
 134. 554; Sharp v. Jaclson, (1899) 
 
 (a) And sec Pllcherv.Jiaivlins, A. C. 419; 68 L. J. Q. B. 866; 
 
 7 Ch. 259. Se Lake, Exp. Dyer, (1901) 1 
 
 (Z>) Coleman v, Buclcs, #c. K. B. 710. 
 
 Bank. (1897) 2 Ch. 243; 66 L. J. {d) See Lewin on Trusts, 10th 
 
 (Ch. 564. ed. p. 1052; Gray v. Lewis, 8 Eq. 
 
 (o) Neiv's Trustee v. Hunting, 526.
 
 144 DUTIES AND LlAinLITIKS OF I'KUSTEKS. 
 
 property that has been substituted for the trust estate, so 
 long- as its metaniorphoses can be traced. 
 
 As long as the property is in the hands of the trustee in 
 any form no difficulty arises. A trustee that mixes trust 
 moneys with his own is clearly liable to the cestui que 
 trust for so much of the blended fund as he cannot prove 
 to be his own (e). So, if the trustee purchases land partly 
 with his own money and partly with trust money, the 
 cestui que trust has clearly a lien on the whole estate for 
 the amount of his fund (/). 
 
 Difficulties, however, often arise when the trust property 
 has found its way in another form into the hands of a 
 third person. In such cases the principle above enounced 
 applies; the fund can be followed as long as it can be 
 identified, in the hands of any one who has notice of the 
 trust. There is no distinction in principle between money 
 in the form of coin and money in the form of notes or bills; 
 but obviously, in the former case, the task of identification 
 is so difficult as to be possible only under exceptional 
 circumstances (g) . 
 
 If a trustee mixes trust funds with his own in the hands 
 of a banker, and draws on the combined account, his 
 drawings will be attributed to his private moneys, so as to 
 leave the trust moneys intact (h) . If he mixes two trust 
 funds in his bank account, then the sums drawn out will, 
 in the absence of evidence to the contrary, be attributed 
 in order to the earliest deposits, in accordance with a rule 
 which will elsewhere be more fully considered (^) . 
 
 (e) Fellows V. Mitchell, 1 P. L. J. P. C. 91; Re Hallett # Co., 
 
 Wms. 83; Mason v. 3Iorley, 34 (1894) 2 Q. B. 237; 63 L. J. 
 
 Beav. 475. Q. B. 573. 
 
 (/) Lane v. Dighton, Amb. (/;) Re Ilallett's Estate, 13 Ch. 
 
 409; Hopper v. Conyers, 2 Eq. D. 696, overruling Pennell v. 
 
 549; Worcester Bank v. BUck, 22 Beffell, 4 De G. M. & G. 772, 
 
 Ch. D. 255; 52 L. J. Ch. 288. infra, p. 563; Hancock v. Smith, 
 
 (g) Ford v. Hopkins, 1 Salk. 41 Ch. D. 456; 58 L. J. Ch. 735; 
 
 283; Harris v. Truman, 7 Q. B. Wood v. Stenning, (1895) 2 Ch. 
 
 D. 340; 9 ibid. 264; 51 L. J. 4.33; Hertslet v. Oatiray, (1903) 
 
 Q. B. 338; Thomson v. Clydes- 2 Cli. 356; 72 L. J. Ch. 575. 
 dale Bank, (1893) A. C. 282; 62 (/) Sec note (/i)- s^^P-
 
 REMEDIES OF A CESTUI QUE TRUST. 145 
 
 II. Personal Remedies. — (1.) A breach of trust by a Breach 
 
 01 trust 3> 
 
 trustee creates an obligation of the nature of a debt to the simple 
 cestui que trust. Notwithstanding the acceptance of the ^^oi^tract debt, 
 trust by deed, such a debt ranks only as a simple con- 
 tract debt, unless the deed contains a covenant, express or 
 implied, for payment of the trust fund, and has been 
 executed by the trustee (/c) . The Statutes of Limitation 
 applicable in the case of actions against trustees are 
 considered i)ifra, p. 149. 
 
 Proceedings in equity in respect of a breach of trust Generally 
 may be taken not only against trustees or executors, but P^'oceedrngs m 
 
 •^ JO ' equity against 
 
 also against their representatives, even though the loss trustees or 
 may not have occurred until after the death of such sentatives^' 
 trustees (l), and although they may have distributed the 
 assets without notice of the breach of trust, unless they 
 have done so by order of the Court (m), or pursuant to 
 22 & 23 Vict, c.35, s. 29. 
 
 Where several trustees are all guilty of a breach of Effect of 
 trust, although the cestui que trust may have obtained a *^*'"'^®- 
 decree against them jointly, its effect is several also, and 
 he may proceed to take out execution against any one of 
 them alone (?z): but as betw-een the trustees themselves, 
 any one so paying is entitled to contribution, which may Contribution. 
 in a proper case be ordered in the same suit (o). Contri- 
 bution was refused where a trustee was at the same time 
 cestui que trust, and had received exclusive benefit from 
 the breach of trust (p) . As between the trustees themselves 
 the loss may be thrown primarily upon the trustee most in 
 fault, or his estate (q), as for instance where a lay trustee 
 
 (^) Isaacson v. Harwood, 3 (o) Priestman v. Tindall, 24 
 
 Ch. 225; Richardson v. Jenkins, Beav. 244; Robinson v. Harkin, 
 
 1 Drew. 477. (1896) 2 Ch. 415; 65 L. J. Ch. 
 
 (J) Devaynes v. Noble, 24 nZ\ Jackson \. Dickinson, (l^QV) 
 
 Beav. 86. 1 Ch. 947; 72 L. J. Ch. 761. 
 
 (;») March \. Russell, Z M.y. k, (p) Chillinguwrth \. Chambers, 
 
 Cr. 31; Taylor v. T ., 10 Eq. 477. (1896) 1 Ch.'685; 65 L. J. Ch. 
 
 (n) Exp. Shakeshaft, 3 Bro. 343. 
 
 C. C. 197; Blyth v. Fladgate, {q) Fefherstone v. West,6I.U. 
 
 (1891) 1 Ch. 337; 60 L. .T. Cli. 66. Eq. 86. 
 
 s. 10
 
 146 
 
 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 Cestui que 
 trust acqui- 
 esciner in 
 breach of 
 trust. 
 
 has relied on his colleague, a solicitor, and been misled (r) . 
 But a lay trustee who has actively participated in a breach 
 of trust is not entitled to this relief against a solicitor- 
 trustee (s) . 
 
 Where a cestui que trust derives any profit from a breach 
 of trust, he will to that extent be bound to recoup the 
 trustee (^); and if a cestui que trust, who is sui juris 
 with knowledge of the fact, receives the income from an 
 improper investment, he is bound to give credit for the 
 difference between it and the income which would have 
 arisen from a proper investment of the trust fund {u) . 
 And where a trustee commits a breach of trust at the 
 instigation or request, or with the consent in writing 
 of a beneficiary, the Court may, if it thinks fit, and 
 notwithstanding that the beneficiary may be a married 
 woman restrained from anticipation, impound all or any 
 part of the beneficiary's interest in the trust property 
 by way of indemnity to the trustee or person claiming 
 through him {x) . And here it should be observed that 
 the words "in writing" apply only to the consent. An 
 instigation or request need not be in writing (?/), but the 
 beneficiary must have been aware at least of the facts 
 constituting the breach of trust {z), if not of their legal 
 effect. The power of the Court is discretionary, and it 
 will be slow to exercise it by removing the restraint on 
 anticipation in the case of a married woman, it being the 
 duty of her trustee to protect her against herself if she 
 requests a breach of trust (a) . 
 
 (r) LocMart v. Beillij, 25 L. J. 
 Ch. 697; Barker v. Ivim.ey, (1897) 
 1 Ch. 536; 66 L. J. Ch'. 282. 
 
 (s) Head V. Gould, (1898) 2 
 Ch. 250; 67 L. J. Ch. 480. 
 
 (0 Traford v. Boehm, 3 Atk. 
 440; Chilling worth v. Chambers, 
 sup. 
 
 (u) Davies v. Hodgson, 25 
 Beav. 177; He Salmon, PrieH v. 
 Upidehy, 42 Ch. D. 351 ; Be Lake, 
 Exp. Howe, (1903) 1 K. B. 439; 
 
 72 L. J. K. B. 213; Re Hoyles, 
 Boio V. Jaqg, (1912) 1 Ch. 67; 
 81 L. J. Ch. 163. 
 
 (.r) 56 & 57 Vict. c. 53, s. 45. 
 
 (7/) Griifilh V. Huqhe", (1892) 
 3 Ch. 105; 62 L. J. Ch. 135. 
 
 (z) Somerset v. Pou^etf, (1894) 
 1 Ch. 231, 274; 63 L. J. Ch. 41. 
 
 (a) Bolton v. Curre, (1895) 1 
 Ch. 544; 64 L. J. Ch. 164; Mara 
 V. Browne, (1895) 2 Ch. 69; 64 
 L. J. Ch. 594.
 
 REMEDIES OF A CESTUI QUE TRUST. 147 
 
 (2.) When a trustee becomes bankrupt, what he owes to Bankruptcy 
 the trust may be proved against his estate (b), deduct- 
 ing, however, the value of any beneficial interest which he 
 himself may have in the trust estate (c) . Although the 
 original debt is barred when a bankrupt trustee obtains 
 his order of discharge (d), nevertheless it having been the Neglect 
 trustee's duty to prove the debt for the benefit of the ^^ P^^'^®- 
 cestui que trust, he will, if he has neglected so to do, be 
 liable for the consequent loss, notwithstanding his dis- 
 charge (e). The original debt is not indeed revived, but 
 a fresh liability springs from the negligent breach of trust. 
 Where all the trustees are bankrupt, proof may be made 
 against the estates of all, provided that not more than 
 20s. in the pound is recovered (/) . 
 
 (3 . ) If trustees are expressly bound by the terms of their Reme'iy for 
 trust to invest money in the public funds, and, instead of invest. 
 doing so, retain it in their own hands, the cestui que trust 
 may elect to charge them either with the amount of money, 
 or with the amount of stock they might have purchased 
 therewith (g) . An executor, however, so retaining money 
 will only be charged with simple interest at four per cent., 
 unless there are circumstances showing that he has profited 
 by his misconduct (h). 
 
 If trustees are directed to invest on Government or real 
 securities, and they do neither, the cestui que trust has not 
 the option of charging them with the moneys which would 
 have been produced by an investment in the funds; he 
 is only entitled to his trust fund with four per cent, 
 interest (i). But a trustee will be charged with more than 
 
 (6) Exp. Shake-shaft, 3 Bro. 500, 504. 
 C. C. 197. {h) Att.-Gen. v. Alford, 4 De 
 
 (c) Exp. Turner, 2 De G. M. G. M. & G. 843; and see Po^uell 
 
 & G. 927. V. Hulkes, 33 Ch. D. 552; 55 L. J. 
 
 id) Exp. Holt, 1 Deac. 248. Ch. 846. 
 
 (e) Orrett v. Corser, 21 Beav. (0 Robimon v. R., 1 DeG. M. 
 
 52. & G. 247; Marsh v. Hunter, 6 
 
 (/) Kehle v. Thompson, 3 Bro. Mad. 295; of. Shepherd v. Bloids, 
 
 C. G. 112. mp.; Lewin, p. 377, ed. 10. And 
 
 {(f) Shepherd v. MouJs, 4 Ila. see, as to the application of penal 
 
 10 (2)
 
 148 
 
 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 Trustee may 
 
 not set off 
 profits against 
 losses. 
 
 Remedy 
 of cestui que 
 trust when 
 barred by 
 acquiescence, 
 concurrence, 
 or release. 
 
 four per cent, on money in his hands where he has actually 
 received (k) or may be presumed to have received more, 
 for instance, by employing the mone}^ in business (Z); or 
 where, but for mismanagement, more might have been 
 received . 
 
 If there are several distinct unauthorised investments 
 by trustees, in some of which a loss is incurred, and, in 
 others, a gain accrues, they may not set off the gain 
 against the loss. The cestui que trust may retain the 
 gain, and still claim to have the loss made good (m). 
 
 (4 . ) The remedy of a cestui que trust who is sui juris 
 may be barred by his acquiescence, or concurrence, or by 
 his executing a release {n) . But persons under disability 
 do not so lose their remedy unless they have by their 
 own fraud induced the breach of trust (o) . A married 
 woman, however, being treated as a feme sole as regards 
 her separate estate, may bind it by her concurrence in a 
 breach of trust (p), unless she was either herself deceived, 
 or under undue influence (q), or was restrained from 
 anticipation (r) . Reference has already been made to the 
 discretionary power of the Court to impound a married 
 woman's interest notwithstanding restraint on anticipa- 
 tion, where she has instigated or consented to a breach of 
 trust (s) . 
 
 Misrepresentation or concealment on the part of trustees 
 will prevent their defending themselves on the ground of 
 the cestui que trusts acquiescence (^). And mere conni- 
 vance of a cestui que trust at a breach of trust from which 
 
 interest as between capital and 
 income, Slade v. Chaine, (1908) 
 1 Ch. 522; 77 L. J. Ch. 377. 
 
 (^) Emmet v. E., 17 Ch. D. 142. 
 
 (J) Jones V. Foxall, 15 Beav. 
 392. 
 
 («() Robinson v. R., 11 Beav. 
 371, 375. 
 
 (w) See Briee v. Stokes, 11 
 Ves. 319; WaJJcer v. Symonds, 3 
 Swanst. 1, 64. 
 
 (o) Montfort v. Cadogan, 19 
 
 Ves. 635, 639, 640; Wilkinson v. 
 Parry, 4 Russ. 272, 276; Savaqe 
 V. Foster, 9 Mod. 35. 
 
 (?;) Clive V. Careiv, 1 J. & H. 
 199. 
 
 (^q) Whistler v. Newman, 4 
 Ves. 129. 
 
 (r) Cocker v. Quayle, 1 Russ. 
 & My. 535; Ellis \.\johnson. 31 
 Ch. D. 537; 55 L. J. Ch. 825. 
 
 (s) Sup. p. 146. 
 
 (<) Walker v. Symonds, su//.
 
 REMEDIES OF A CESTUI QUE TRUST. 1'19 
 
 he derives no benefit, will not prevent his complaining of 
 the transaction long after he first discovered it (u). 
 
 We have seen (x) that the remedy against a construe- Statutes of 
 tive trustee is, in the absence of fraud, liable to be barred 
 by the old statute of limitations (y) after six years. But 
 apart from recent legislation there was no such limitation 
 of the remedy as against an express trustee. The Judicature 
 Act, 1873 (z), provided expressly that no claim of a cestui 
 que trust against his trustee for any property held on an 
 express trust, or in respect of any breach of such trust, 
 should be barred by any statute of limitation. But the 
 position of trustees in this respect was alleviated by the 
 Trustee Act, 1888 (a), which enacted that in any action 
 (eommenced after the 1st January, 1890) against a trustee, 
 except irhere the claim is founded upon any fraud or 
 fraudulent breach of trust to ic^iich the trustee ivas party 
 or privy, or is to recover trust property or the proceeds 
 thereof still retained by the trustee or previously received 
 by the trustee and converted to his own use, all rights and 
 privileges conferred by any statute of limitations shall be 
 enjoyed in the like manner and to the like extent as they 
 would have been enjoyed in such action if the defendant 
 had not been a trustee; and further, that if the action is 
 brought to reeover money or other property, and is one 
 to which no existing statute of limitations applies, the 
 defendant shall be entitled to the benefit of and be at 
 liberty to plead the lapse of time as a bar to such action 
 in the like manner and to the like extent as if the claim 
 had been against him in an action of debt for money 
 had and received; but so, nevertheless, that the statute 
 shall run against a married woman entitled in possession 
 for her separate use, whether with or without a restraint 
 upon anticipation, but shall not begin to run against any 
 
 (ii) PhilUpson V. Gatiy, 7 Trustee, (1911) 1 Ch. 502; 80 
 
 Hare, 516. " L. J. Ch. 381. 
 
 {x) Sup. p. 99. (z) 36 & 37 Vict. c. 66, s. 25 (2). 
 
 (y) 21 Jac. I. c. 16. See Be (a) 51 & 52 Vict. c. 59, s. 8. 
 Robinson, McLaren v. Public
 
 150 
 
 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 beneficiary unless and until his interest is in possession. 
 This section aj)plies to an executor or administrator, and 
 to a trustee who is such by construction or implication of 
 law, but not to the official trustee of charitable funds. A 
 director of a company has been held to be within the 
 definition (6). A trustee in bankruptcy is not(c). To 
 exclude a trustee from the benefit of the Act on the ground 
 of fraud, moral complicity must be established against 
 him; the fraud of his agent, for example, is not sufficient; 
 and time runs from the date of the breach of trust, not of 
 its discovery {d) . The cases referred to below illustrate the 
 application of the Act in various circumstances (e). 
 
 The execution of a release or confirmation will not pre- 
 vent a cestui que trust from taking action unless he has 
 full knowledge of the facts of the case (/) and of their 
 legal effect {g) . 
 
 (5.) Fraudulent breaches of trust are not only action- 
 able but also indictable (h), after leave obtained from the 
 Attorney-General or from the judge before whom any 
 civil proceedings respecting the trust have been taken (i) . 
 
 Jurisdiction m Removal of Trustees. — Although, on the one hand, 
 
 to remove -n t • i i 
 
 trustees. a trustee who accepts a trust cannot at will relinquish the 
 
 office, unless, indeed, the instrument creating the trust 
 confers a special power so enabling him; and on the other 
 
 (b) Re Lands Allotment Co., 
 (1894) 1 Ch. 616; 63 L. J. Ch. 
 291. 
 
 (c) Re Cornish, (1895) 2 Q. B. 
 634; (1896) 1 Q. B. 99; 65 L. J. 
 Q. B. 106. 
 
 (fZ) Thome v. Heard, (1895) 
 A. C. 495; 64 L. J. Ch. 652; 
 Moore v. Knight, (1891) 1 Ch. 
 547; 60 L. J. Ch. 271. 
 
 (e) Andrew v. Cooper, 45 Ch. 
 D. 444; 59 L. J. Ch. 815; How 
 V. E. of Winterton, (1896) 2 Ch. 
 626; 65 L. J. Ch. 832; Jones v. 
 Morgan, (1893) 1 Ch. 304; 62 
 L. J. Ch. 592; Mason v. Mercer, 
 (1893) 1 Ch. 590; Soar v. Ash- 
 well, (1893) 2 Q. B. .390; Swain 
 
 V. Bringeman, (1891) 2 Ch. 333; 
 61 L. J. Ch. 20; Ellis v. Roberts, 
 (1898) 2 Ch. 142; 67 L. J. Ch. 
 507; Nixon v. Smith, (1902) 1 
 Ch. 176; North American Land, 
 ic. Co. V. Watkins, (1904) 1 Ch. 
 242; 73 L. J. Ch. 626; Fountaine 
 V. Amherst, (1909) 2 Ch. 382; 78 
 L. J. Ch. 648; Re Blow, (1913) 
 1 Ch. 358; 82 L. J. Ch. 207; 
 inf. p. 579. 
 
 (/) Randall v. Errington, 10 
 Ves. 423. 
 
 (^r) Cocl-erell v. Cholmeley, 1 
 Russ. & My. 425. 
 
 (A) 24 & 25 Vict. c. 96. 
 
 (0 S. 80. See 53 & 54 Vict. 
 0. 71, s. 27.
 
 RKMKDIKS OV A CESTUI QUIO TRUST. 
 
 hand, a cestui que triisf has no pow(>r, at his nicro will, 
 to dismiss a trustee from his office, the Court has ample 
 authority and an inherent jurisdiction to remove any 
 trustee and to deal with any difficulty which may arise in 
 the administration of the trust through the unwillingness 
 or unfitness of the trustee. In exercising this jurisdic- 
 tion, the interests of the beneficiaries are the primary and 
 paramount consideration. 
 
 A trustee will be removed and another appointed in his 
 place, whenever such a step is desirable for the welfare of 
 the trust estate (fc). This jurisdiction will not, however, 
 be exercised at the mere caprice of a cestui que trust (I) , 
 nor on the ground of an honest exercise of discretion in 
 a manner which may in the event prove to be prejudicial 
 to the cestui que trust (m), nor even for mistake in the 
 execution of his duty (n) ; a reasonable cause for such 
 interference must be shown. 
 
 Apart from the statutory powers presently to be referred When • 
 to, it was considered a sufficient cause that the trustee had ^^ercised. 
 permanently departed out of the jurisdiction of the 
 Court (o); that he had become bankrupt (/?); that he had 
 dealt with the trust property for his own advancement (q); 
 or suffered a co-trustee to commit a breach of trust (r) ; or 
 absconded on a charge of forgery (s) ; or, to speak gene- 
 rally, had been guilty of such acts or omissions as endanger 
 the trust property, or show a want of honesty or of proper 
 capacity to execute the duties (^). Under such circum- 
 stances the Court may not only remove a trustee, but fix 
 
 (k) Story's Eq. Jur. s. 1287; (p) Bainbrigge v. Blair, 1 
 
 Letterfitedt V. Brorrs.^ AY'^.Q^s. Beav. 495; Re Barker's Trwtfs, 
 
 371. 1 Ch. D. 43; and see B. A. 1883 
 
 (0 O'Keefe v. CaWwrpe, 1 (46 & 47 Vict. c. 52), s. 147. 
 
 Atk. 18. (y) Exp. Phelps, 9 Mod. 357. 
 
 Cw") Lee V. Ymtnrf, 2 Y. & C. /■ \ t? t> 1 1 k ^i „ ta? 
 
 p r^ t^-io (**) i'^P- Reynolds, b Yes. 707. 
 
 '(w) See" Att.-Gen. v. Coopers' (*) Millard v. Eyre, 2 Ves. jr. 
 
 Ii51 
 
 Co., 19 Ves. 192. 
 
 94. 
 
 Co) O'Reilly v. Alderson, 8 (0 Story's Eq. Jur. s. 1289. 
 
 Hare, 101.
 
 152 
 
 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 Principles 
 guiding 
 appoiutment 
 of new 
 trustees. 
 
 New trustees 
 
 appointed 
 
 under 
 
 statutory 
 
 porters. 
 
 Trustee Act, 
 1893. 
 
 him with the costs of such removal, and the appoiutment 
 of a successor (u) . 
 
 Where the Court so interferes it will proceed to appoint 
 new trustees to fill the office, and in so doing will be guided 
 (1) by the wishes of the creator of the trust, if ascertain- 
 able; (2) by a due regard for the interests of all parties 
 concerned, not favouring any particular class; and (3) by 
 the nature of the trust and the question by whose instru- 
 mentality it can best be carried into execution {x). 
 
 But this jurisdiction, though sufficiently wide, could 
 formerly only be exercised after the bringing of an action 
 for the purpose by or on behalf of the cestuis que trusts ; 
 and it has been found convenient to provide by statute a 
 more swift and economical method of removing and replac- 
 ing trustees. Accordingly, by the Trustee Act, 1850 {y), 
 the Court was empowered, on petition without action 
 brought, to remove a trustee and appoint others. 
 
 But the necessity for applying to the Court at all has 
 been greatly reduced by the extensive facilities for the 
 appointment of new trustees afforded by the Trustee Act, 
 1893 (z), which continues and extends the similar remedies 
 previously provided by the Conve3'ancing Acts, 1881 (a), 
 1882, and 1892 (&), and by the Trustee Act, 1850 (c), and 
 the Trustee Extension Act, 1852 {d). By the latest Act 
 it is provided, that when a trustee, either original or sub- 
 stituted, and whether appointed by a Court or otherwise, 
 is dead, or remains out of the United Kingdom for more 
 than twelve months, or desires to be discharged from all 
 or any of the trusts or powers reposed in or conferred upon 
 him, oi' refuses or is unfit to act therein, or is incapable of 
 acting therein, then the person or persons nominated for 
 this purpose by the instrument, if any, creating the trust, 
 or if there is no such person or no such persons able and 
 
 (m) Exp. Greenhouse, 1 Mad. 
 92. 
 
 \x) Re Tempest, 1 Ch. 485; 
 Lewin, Tr. 1035, ed. 10. 
 
 0/) 13 & 14 Vict. c. 60. 
 
 (z) 56 & 57 Vict. c. 53, ss. 10— 
 
 12, 25—41. 
 
 («) 44 & 45 Vict. c. 41. 
 
 {h) 45 & 46 Vict. c. 39; 55 & 
 56 Vict. c. 13. 
 
 (c) 13 & 14 Vict. c. 60. 
 
 Id) 15 & 16 Vict. c. 55.
 
 RKMEDIES OF A CKSTUI gUK TKHST. 153 
 
 willing to act, then tlio surviving or continuing trustees or 
 trustee for the time being, or the personal representatives 
 of the last surviving or, continuing trustee may, by writing, 
 appoint another person or other persons to be a trustee or 
 trustees in the place of the trustee dead, remaining out of 
 the United Kingdom, desiring to be discharged, refusing 
 or being unlit, or being incapable as aforesaid; and the 
 Act further provides for the vesting of the trust property 
 in the new trustees, or in them jointly with the continuing 
 trustees, as the case may require. In appointments under 
 this Act the number of trustees may be increased, or sepa- 
 rate sets of trustees may be appointed for distinct parts of 
 the trust property, and it is not obligatory to appoint more 
 than one new trustee where only one trustee was originally 
 appointed, or to fill up the original number of trustees 
 where more than two trustees were originally appointed; 
 but except where only one trustee was originally appointed 
 a trustee may not be discharged from his trust unless there 
 will be at least two trustees to perform the trust. This 
 enactment removes many difficulties which had arisen 
 under the previous law (c) . On points arising in its 
 administration reference may be made to the cases noted 
 below (/). The Public Trustee, however, may under s. 5 
 of the Public Trustee Act, 1906 (g), be appointed by the 
 Court as sole trustee of a settlement although the settle- 
 ment provided that the number of trustees should not be 
 less than three (h) . 
 
 Again, by the Judicial Trustees Act, 1896 (i), the Court Judicial 
 is empowered on the application of the person creating a jggg*^^^ "^°^' 
 trust, or of a trustee or beneficiary, to appoint a judicial 
 trustee of that trust, either jointly with another person or 
 
 (e) See SavUe v. Couper, 36 1 Ch. 315; 65 L. J. Ch. 219; 
 
 Ch. D. 520; 56 L. J. Ch. 980; Stonmera v. Barrow, (1901) 1 Ch. 
 
 Be Moss's Trusts, 37 Ch. D. 513; 259; 70 L. J. Ch. 229. 
 
 51 L. J. Ch. 423; Birchall v. {g) 6 Edw. VII. c. 55, inf. 
 
 Ashton, 40 Ch. D. 436. (/i) Be Leslie's Hassop Estates, 
 
 (/) Pai/ne v. Stamford, (1896) (1911) 1 Ch. 611; 80 L. J. Ch. 
 
 1 Ch. 288; 65 L. J. Ch. 134; Be 486. 
 
 Wheeler and Be Bochow, (1896) (0 59 & 60 Vict. c. 35.
 
 164 
 
 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 Public 
 
 Trustee Act, 
 1906. 
 
 Powers and 
 duties of the 
 Public 
 Trustee. 
 
 as sole trustee, and if sufficieut cause is shown, in place of 
 all or any existing trustees. An executor or administrator 
 is a trustee within the meaning of this Act, which further 
 provides for an annual audit of and report on the judicial 
 trustee's accounts, and, if necessary, for inquiry into his 
 administration of the trust. The power is excrciseable not 
 of right but in the discretion of the Court (fc) . 
 
 A further and far-reaching measure for the protection of 
 trustees and trust estates is now found in the Public 
 Trustee Act, 1906 (Z), wdiich came into operation on 
 the 1st of January, 1908. This statute establishes the 
 entirely new office of Public Trustee as a corporation solo 
 with perpetual succession and an official seal (s. 1). The 
 Public Trustee may if he thinks fit (a) act in the adminis- 
 tration of estates of small value; (b) act as custodian 
 trustee, (c) or as an ordinary trustee; (d) he may be 
 appointed a judicial trustee; (e) and may bo appointed to 
 be the administrator of the property of a convict under the 
 Forfeiture Act, 1870 (m). Subject to the provisions of 
 the Act and the rules made thereunder the Public 
 Trustee may act either alone or jointly wdtli any person or 
 body of persons, and shall have all the same powers, duties 
 and liabilities and be entitled to the same rights and 
 immunities and be subject to the control and orders of the 
 Court, as a private trustee acting in the same capacity. 
 He may decline to accept any trust, but may not do so on 
 the ground only of the small value of the trust property. 
 He may not accept any trust which involves the manage- 
 ment or carrying on of any business, except as authorised 
 by the rules to be made under the Act, nor any trust under 
 a deed of arrangement for the benefit of creditors, nor the 
 administration of any estate known or believed by him to 
 be insolvent. He may not accept any trust exclusively for 
 religious or charitable purposes (s. 2). 
 
 {k) Re RatcUff, (1892) 2 Ch. 
 352; and see Rules under the Act, 
 1897 and 1899. 
 
 (I) 6 Edw. VTI. 0. 55. 
 (w) 33 & 34 Vict. c. 23.
 
 REMEDIES OF A CESTUI QUE TRUST. 165 
 
 Section 3 of the Act regxilates the administration of AdmiDiatra- 
 emall estates by the Public Trustee, small estates being estates, 
 deemed to be those of which the gross capital value is less 
 than 1,000/. The amount of the estate for the purpose of 
 this section is to be ascertained at the date of the applica- 
 tion to the Public Trustee, and not at the date of the death 
 of the testator or intestate {n) . Any person who in the 
 opinion of the Public Trustee would be entitled to ap})ly 
 to the Court for an order for the administration by the 
 Court of such an estate may ap^^ly to the Public Trustee to 
 administer the estate, and if it appears to him that the 
 persons beneficially entitled are of small means, he shall 
 administer the estate unless he sees good reason for re- 
 fusing to do so. (By s. 10 of the Act the discretion of the 
 Public Trustee in this and in other matters is subject to 
 the orders of the Court to be made on application by any 
 person aggrieved to a judge of the Chancery Division 
 in chambers.) Upon the Public Trustee undertaking 
 the administration, the trust property other than stock 
 shall vest in him, and the right to transfer or call for the 
 transfer of any stock forming part of the estate shall also 
 vest in him, provided that he may not himself exercise 
 the right of transferring the stock without the leave of 
 the Court. As to copyhold land forming part of the 
 estate, the trustee shall have the like powers as if he 
 had been appointed by the Court under s. 33 of the Trustee 
 Act, 1893, to convey the land. Where proceedings have 
 been instituted in any Court for the administration of an 
 estate and by reason of the small value of the estate it 
 appears to the Court that the estate can be more 
 economically administered by the Public Trustee, the 
 Court may order it to be so administered, subject to any 
 directions by the Court. 
 
 Section 4 deals with the assumption by the Public Trus- Custodian 
 tee of the functions of what it describes as " custodian 
 
 (w) Re Bevereux, Toovey v. Public Trustee, (1911) 2 Ch. 545; 
 80 L. J. Oh. 705. 
 
 trustee.
 
 J56 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 trustee," an expression new in our law . The Public Trustee 
 may, subject to the rules under the Act, if he consents to act 
 as such, and whether or not the number of trustees has been 
 reduced below the original number, be appointed to be 
 "custodian trustee" of any trust, either by order of the 
 Court made on the application of any person on whose 
 application the Court may order the appointment of a new 
 trustee, or by the testator, settlor or other creator of any 
 trust, or by the person having power to appoint new 
 trustees. On such appointment being made, the trust 
 property must be transferred to the custodian trustee 
 as if he were sole trustee, and for that purpose vesting 
 orders may be made under the Trustee Act, 1893. The 
 management of the trust property and the exercise of any 
 power or discretion exercisable by the trustees under the 
 trust will remain vested in the trustees other than the 
 custodian trustee, therein referred to as the managing 
 trustees. The custodian trustee is to have the custody of 
 all securities and documents of title relating to the trust 
 property, the managing trustees having free access thereto 
 and being entitled to take copies and extracts. The cus- 
 todian trustee is required to concur in and perform all acts 
 necessary to enable the managing trustees to exercise their 
 powers of management or any other power or discretion 
 vested in them, unless the matter in which he is requested 
 to concur is a breach of trust or involves a personal liability 
 in respect of calls or otherwise; but unless he so concurs 
 he shall not be liable for any act or default on the part of 
 the managing trustees. The power of appointing new 
 trustees is exercisable by the managing trustees alone. 
 The custodian trustee is not reckoned a trustee for the 
 purpose of determining the number of the trustees for 
 the purposes of the Trustee Act, 1893; but the custo- 
 dian trustee has the same power as any other trustee 
 to apply to the Court for the appointment of a new 
 trustee. The Court may, on the application of either the 
 custodian trustee or any of the managing trustees, or of
 
 REMEDIES OF A CESTUI t^UE TKUS'l'. 157 
 
 any beneficiary, on proof to their satisfaction that it is the 
 general wish of the beneficiaries, or that on other grounds 
 it is expedient t/O terminate the custodian trusteeship, make 
 an order for that purpose, and may tliereupon make smli 
 vesting orders and give such directions as may seem to 
 be necessary or expedient. The section applies to any 
 banking or insurance coiporation or other body corporate 
 entitled by rules made under the Act to act as custodian 
 trustee. 
 
 The duties of and conditions affecting the Public Ordinarj 
 
 tmstGG 
 
 Trustee when acting as an ordinar}^ trustee are determined 
 by ss. 5 and 6, which are as follows: — 
 
 Section 5.— (1.) The Public Trustee may by that name, Appointment 
 or any other sufficient description, be appointed to be Trustee to be 
 
 trustee of any will or settlement or other instrument trustee, 
 
 •^ executor, so. 
 
 creating a trust or to perform any trust or duty belong- 
 ing to a class which he is authorised by the rules made 
 under this Act to accept, and may be so appointed whether 
 the will or settlement or instrument creating the trust or 
 duty was made or came into operation before or after the 
 passing of this Act, and either as an original or as a new 
 trustee, or as an additional trustee, in the same cases, and 
 in the same manner, and by the same persons or Court, as 
 if he were a private trustee, with this addition, that, though 
 the trustees .originally appointed were two or more, the 
 Public Trustee may be appointed sole trustee (o) . 
 
 (2.) Where the Public Trustee has been appointed a 
 trustee of any trust, a co-trustee may retire from the trust 
 under and in accordance with section eleven of the Trustee 
 Act, 1893, notwithstanding that there are not more than 
 two trustees, and without such consents as are required by 
 that section. 
 
 (3.) The Public Trustee shall not be so appointed either 
 as a new or additional trustee where the will, settlement, 
 or other instrument creating the trust or duty contains 
 
 (o) Ee Leslie's Hmsod Estates, (1911) 1 Cli. 611 ; 80 L. J. Ch. 486.
 
 168 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 a direction to the contrary, unless the Court otherwise 
 order. 
 
 (4.) Notice of any proposed appointment of the Public 
 Trustee either as a new or additional trustee shall where 
 practicable be given in the prescribed manner to all persons 
 beneficially interested who are resident in the United 
 Kingdom and who&e addresses are known to the persons 
 proposing to make the appointment, or, if such benefici- 
 aries are infants, to their guardians, and if any person to 
 whom such notice has been given within twenty-one days 
 from the receipt of the notice applies to the Court, the 
 Court may, if having regard to the interests of all the 
 beneficiaries it considers it expedient to do so, make an 
 order prohibiting the appointment being made, provided 
 that a failure to give any such notice shall not invalidate 
 any appointment made under this section. The mere in- 
 curring of the expense of remuneration contemplated by 
 the Act is not a material element in contemplating the 
 expediency of the appointment (p) . 
 Powerasto Section 6. — (1.) If in pursuance of any rule under this 
 
 probater Act, the Public Trustee is authorized to accept by that 
 
 name probates of wills or letters of administration, the 
 Court having jurisdiction to grant probate of a will or 
 letters of administration may grant such probate or letters 
 to the Public Trustee by that name, and for that purpose 
 the Court shall consider the Public Trustee as in law 
 entitled equally with any other person or class of persons 
 to obtain the grant of letters of administration, save that 
 the consent or citation of the Public Trustee shall not 
 be required for the grant of letters of administration to 
 any other person, and that, as between the Public Trustee 
 and the widower, widow or next of kin of the deceased, 
 the widower, widow or next of kin shall be preferred, 
 unless for good cause shown to the contrary. 
 
 (2.) Any executor who hais obtained probate or any 
 
 (p) Firth V. Loveridrje, (1912) 1 Ch. 806; 81 L. J. Ch. 539.
 
 REMEDIES OF A CESTUI QUE TRUST. 1-09 
 
 administrator who has obtained letters of administration, 
 and notwithstanding he has acted in the administration of 
 the deceased's estate, may, with the sanction of the Court, 
 and after such notice to the persons beneficially interested 
 ais the Court may direct, transfer such estate to the Public 
 Trustee for administration either solely or jointly with the 
 continuing executors or administrators, if any. And the 
 order of the Court sanctioning such transfer shall, subject 
 to the provisions of this Act, give to the Public Trustee 
 all the powers of such executor and administrator, and 
 such executor and administrator shall not be in any way' 
 liable in respect of any act or default in reference to such 
 estate subsequent to the date of such order, other than 
 the act or default of himself or of persons other than him- 
 self for whose conduct he is in law responsible. 
 
 By s. 7 it is provided that the consolidated fund shall Liability of 
 be liable to make good all sums required to discharge any £[|^^° 
 liability which the Public Trustee, if he were a private 
 trustee, would be liable to discharge, except where the 
 liability is one to which neither the Public Trustee nor 
 any of his officers has in any way contributed, and which 
 neither he nor any of his officers could by the exercise of 
 reasonable diligence have averted. 
 
 The Act makes provision for the appointment and Generally, 
 remuneration of the Public Trustee for the investigation, 
 production and audit of trust accounts, and generally for 
 the regulation of his duties under the direction of a judge 
 of the Chancery Division in chambers; and, as has been 
 seen, rules have been issued dealing with further details 
 of its administration. 
 
 Provisions for the relief of Trustees. — This is a con- 
 venient place in which to mention certain provisions for 
 the protection and relief of trustees who are embarrassed 
 in the execution of their trusts. 
 
 From time to time (q) provisions have been made by statutory 
 
 provisions for 
 
 (q) See 22 & 23 Vict. c. 35, s. 30; 10 & 11 Vict. c. 96; 12 & 13 
 Vict. c. 74.
 
 160 
 
 DUTIES AND LIABILITIES OF TRUSTEES. 
 
 the relief and 
 guidance of 
 trustees. 
 
 Judicature 
 
 Act, 1873, 
 Ord. LV. 
 
 Action for 
 
 adniinifctra- 
 
 tion. 
 
 statute for the assistance of trustees in the administration 
 of their trusts, empowering them to procure by jDetition 
 the advice and direction of the Court on matters of minor 
 importance, or in cases of disputed construction or other 
 questions of difficulty to pay or transfer the fund into 
 Court, whereupon the trustee is discharged from his duties 
 and responsibilities in respect of such funds. Such appli- 
 cations are now made under Ord. LV. of the llules of 
 Court; by summons if the fund does not exceed 1,000/.; 
 if otherwise, by petition. 
 
 Under the same order trustees or executors may apply 
 by originating summons for the determination of any 
 question arising in the administration of the estate or 
 trust. 
 
 And, finally, it is open to trustees in a proper case to 
 throw^ the whole onus of the administration of the estate or 
 trust on the Court by the commencement of an action for 
 that purpose, either by writ or by originating summons, 
 under Ord. LV. r. 4. 
 
 VI. Remimeratlo7i of Trustees. 
 
 i. General principle. 
 ii. Limits of the principle. 
 iii. To tchom it applies. 
 
 General principle . 
 
 The leading case of Hohinsmi v. Pett (r) is usually cited 
 as establishing the rule that a Court of Equity will not 
 allow an executor or trustee to claim payment for his time- 
 and trouble in executinj? his trust. 
 
 (r) 3 P. Wms. 249: 2 W. .^ T. L. ('. 606. ed. 7.
 
 GENERAL PRINCIPLE. I6Q^ 
 
 It is a well- established principle in equity that a trustee 
 shall not be permitted to profit by his trust, and mie of the 
 most important deductions therefrom is the ride illustrated 
 by this case . 
 
 The acceptance of the office of trustee being in theory, 
 at least, optional, no hardship is supposed to be occasioned 
 by requiring that the performance of its duties shall be 
 gratuitous; and if remuneration was allowed, it is evident 
 that it would be difficult if not impossible to keep it within 
 reasonable bounds, and to prevent the frequent and 
 excessive burdening of trust estates. 
 
 The rule thus enunciated is sufficiently simple, but in 
 order to an adequate appreciation of its scope it is neces- 
 sary carefully to observe some instances of its application 
 to the ever-varying circumstances which occur in practice. 
 The first inquiry will be, What are the limits of the 
 application of the principle? Secondly, To what persons 
 does it extend ? 
 
 ii. The limits of the application of the principle. 
 
 1. It matters not to what extent the trustee may have Extent of the 
 devoted himself to the duties of the trust, or to what extent t^e'Sni^t^ ""^ 
 the trust has been thereby benefited. As we shall pre- resulting- 
 sently see, he is entitled to be repaid pecuniary expenses 
 
 actually and properly incurred, but though he may have 
 even carried on a trade or business at a great sacrifice of 
 time and thought, he can claim no compensation for his 
 personal trouble or loss of time (s) . 
 
 2. Not only is a trustee not entitled to direct remunera- Indirect 
 tion for time and trouble devoted to the trust, but he is benefits not 
 not suffered by any indirect or collateral means to obtain allowed, 
 an advantage out of his position . Two extensive classes of 
 
 cases coming under this head have already been considered 
 in dealing with constructive trusts, where we have seen 
 
 (s) Brocksopp v. Barnes, 5 Madd. 90; Barrett v. Hartley/, 2 Eq. • 
 
 789. 
 
 S. 11
 
 162 
 
 REMUNERATION OF TRUSTEES. 
 
 "Sucli as 
 sporting over 
 trust estate. 
 
 Selling his 
 office. 
 
 Being 
 appointed 
 receiver with 
 a salary. 
 
 Me may not 
 
 use the trust 
 if uads for his 
 benefit. 
 
 that a trustee is disabled from taking advantage of his 
 ■position to benefit himself by means of any dealings with 
 •the trust estate or with his cestui que trust . But the cases 
 go farther than that. Thus, though the legal estate in 
 land is vested in a trustee, it has been held that he cannot 
 hy means thereof claim the right of sporting over the land. 
 If the sporting could be let for the benefit of the cestui 
 que trust, it should be; if not, the game would belong 
 to the heir (if). A trustee cannot sell his office. If he 
 attempts to do so, any money so paid to him will be 
 considered part of the trust fund {u) . 
 
 A trustee also will not in general be appointed receiver 
 with a salary (x), but the rule is not inflexible, and he 
 may be so employed in a proper case, or if no one else can 
 be procured who will act with the same benefit to the 
 estate (/y) . Where a trustee offered to act as receiver 
 without a salary, his appointment was expressed to be only 
 on the ground that it was for the benefit of the estate, 
 because it is a trustee's duty to see critically that the 
 receiver does his duty (2;). 
 
 3. Nor can a trustee utilise the trust funds in any way 
 for his own benefit. If he improperly retains trust money 
 in his own hands, even though it be not shown that he 
 made any profit thereby, he will be charged with interest 
 thereon (a) . If he employs the trust fund in any trade or 
 adventure of his own, the cestui que trust may either insist 
 on having the profits made by such trade or on having the 
 trust fund replaced with interest (?>). Thus, if the adven- 
 ture be successful the cestui que trust gets all the benefit; 
 if it fail the trustee tnust account for the fund with interest. 
 
 (0 TVebb V. E. of Shaftesbury, 
 7 Ves. 480, 488. 
 
 (m) Sugden v. Crossland, 3 Sm. 
 & G. 192. 
 
 (a;) Anon., 3 Ves. 515; Nichol- 
 son V. Tutin, 3 K. & J. 159. 
 
 (y) Sykes V. Hastings, 11 Ves. 
 •363, 364; Bignell v. Chapman, 
 (1892) 1 Ch. 59; 61 L. J. Ch. 
 
 334. 
 
 (z) Hibbert v. JenTcins, 11 Ves. 
 363, cited. 
 
 (a) Pearse v. Green, 1 J. & W. 
 135; Blogg v. Johnson, 2 Ch. 225, 
 229. 
 
 (6) Docker v. Somes, 2 My. & 
 K. 655; Townend v. T., 1 Giff. 
 201.
 
 LIMITS OF THE PRINCIPLE. 1(^3 
 
 ordinarily at 4 per cent., but not limited thereto (c). 
 Should a difficulty arise in any case as to the tracing and 
 apportioning of the jjroiits derived by a trustee or executor 
 from the employment of trust funds together with his ow?i 
 in any trade or speculation, it may be a reason for prefer- 
 ring a fixed rate of interest to an account of the profits; 
 and it seems that the usual rate in such cases would be 
 5 per cent, with yearly rests; i.e., compound interest (d). 
 
 Such being the general doctrine in its full extent, we 
 now inquire what allowances to trustees are not deemed to 
 be profits within the meaning of the rule, and also what 
 circumstances may suffice to raise exceptions to the rule. 
 
 4. Trustees are allowed all proper expenses out of But trustees 
 pocket, whether provided for in the instrument creating ^^^ of Ticket 
 the trusts or not (e), and none the less that remuneration expenses, 
 for their trouble has been allowed them by the author of 
 the trusts (/) . Thus they are allowed travelling ex- 
 penses (g); law expenses (h), unless they were improper, or properly 
 the litigation arose from their own fault or negligence (i) ; 
 all necessary and proper expenses incurred in protecting 
 the trust property, for instance, by a proper insurance 
 against loss by fire (/c),or by watching or opposing a bill 
 in Parliament (I) ; all proper outlay for the improvement 
 'Of the property, with interest thereon (m) ; for paying off 
 of incumbrances thereon (n), or defending the title 
 
 thereof (o) . They are also entitled to be indemnified by and are 
 
 entitled 
 
 (c) Tebbs v. Carpenter, 1 Amand v. Bradbourne, 2 Ch. Ca. 
 
 Madd. 290; Forbes v. Ross, 2 138. 
 
 Cox, 116. (Q Peers v. Ceeleij, 15 Beav. 
 
 {d) Jones v. Foxall, 15 Beav. 209; Ga-ffrey v. Darby, 6 Ves. 
 
 392; Davis v. D., (1902) 2 Ch. 488; Malcolm v. O'Callaghan, 3 
 
 314. But see Emmet v. E., 17 My. & C. 52; Merry v. Pownall, 
 
 Ch. D. 142; 50 L. J. Ch. 341. (1898) 1 Ch. 306; 67 L. J. Ch. 
 
 (e) Ride v. Hayivood, 2 Atk. 162. 
 
 126; Worrall v. Harford, 8 Ves. (k) 56 & 57 Vict. c. 53, s. 18. 
 
 4, 8; Trustee Act, 1893 (56 & 57 (0 Bright v. l^orth, 2 Ph. 216. 
 
 Vict. c. 53), s. 24. (w) Quarrel v. Beckford, 1 
 
 (/) Wilkinson v. W., 2 S. & S. Madd. 269, 282. 
 
 237. («) Balsh v. Higham, 2 P. 
 
 (gr) Exp. Lovegrove, 3 D. & C. Wms. 453. 
 
 763. , (o) Sandon v. Hooper, 6 Beav. , 
 
 (A) PooZev. P«s«, 1 Beav. 600; 246. 
 
 11 (2)
 
 164 
 
 REMUNERATION OF TRUSTEES. 
 
 Lien for 
 expenses 
 
 to indemnity their cestui que trust from any liability arising from 
 incurred. their holding shares in his name (p), and from the costs 
 
 of any action commenced against them in their fiduciary 
 character or in relation to the trust estate {q) . 
 
 Not only is a trustee entitled to such expenses, but he 
 has a lien on the trust estate to secure them, which must 
 be satisfied before the cestui que trust can compel a recon- 
 and priority, veyance from the trustees (r) . Such lien has priority over 
 the costs of a suit for the administration of the trust 
 fund (s) and prevails against the trustee in bankruptcy 
 of the cestui que trust (t). If the trust estate no longer 
 exists the trustees may proceed against the cestui que trust 
 personally (u) . 
 
 5. Though the office of trustee, being one of personal 
 confidence, cannot be delegated, trustees may in special 
 cases employ agents, whose expenses will be allowed out of 
 the estate. Thus, upon making out a proper case, a trustee 
 may employ a bailiff to manage an estate and receive the 
 rents (x),even though a recompense may have been given 
 him by the creator of the trust for his trouble (y) . So a 
 solicitor or an accountant may be employed where neces- 
 sary (z), or an agent to collect debts at a reasonable com- 
 mission (a) . But he must be careful to appoint properly 
 qualified persons, and if a solicitor or other such agent is 
 employed to do things which the trustee ought strictly 
 to have attended to himself, his charges will not be 
 allowed (b). 
 
 When agents 
 may be 
 employed. 
 
 (jK)) James v. May, L. R. 6 
 H. L. 328. 
 
 (5') Benett v. Wyndham, 4 De 
 G. F. & J. 259; Att.-Gen. v. M. 
 of Norwich, 2 My. & Cr. 406. 
 
 (r) Re Exhall Coal Co., 35 
 Beav. 449. 
 
 (s) Morison v. M., 7 De G. M. 
 & G., 214, 226. 
 
 (0 Re Holden, 20 Q. B. D. 
 43; 57 L. J. Q. B. 47; Merry v. 
 Pownall, sup. 
 
 (u) Balsh V. Higham, sup. 
 
 (a;) Bonithon v. Hickmore, 1 
 
 Vern. 316; Stewart v. Hoare, 2 
 Bro. C. C. 663. 
 
 (y) Wilkinson v. W., 2 S. & S. 
 237. 
 
 (z) Macnamara v. Jones, 2 
 Dick. 587; Henderson v. Mclver, 
 3 Madd. 275. 
 
 (a) Hopkinson v. Roe, 1 Beav. 
 180; Weiss v. Dill, 3 My. & E. 
 26. 
 
 (5) Harbin v. Darby, 28 Beav. 
 325 ; Andrews v. Weall, 42 Ch. D. 
 674; 58 L. J. Ch. 713.
 
 LIMITS OF THE PRINCIPLK. 
 
 165 
 
 6. It IS quite open for the creator of the trust to autho- Remunera- 
 rise a trustee to charge tor services rendered, and in doing authorised by 
 60 either to fix the amount of compensation or to leave it ^^®g^' ^^ *^® 
 open. The most ordinary case of such allowances being 
 6,uthorised is where a solicitor is appointed trustee, with 
 
 power to charge for professional services rendered. If 
 the amount of the sum or salary to be paid in considera- 
 tion of such services is specified, no question can arise; 
 if the compensation is not so fixed a reference will be 
 directed to settle what is a proper allowance (c) . It 
 appears that such authorisation may arise from implication 
 if clear (d) . The position of a solicitor-trustee is con- 
 sidered in greater detail below (p. 168). 
 
 An annuity given to an executor for his trouble until a 
 general settlement of the testator's affairs, was held not to 
 cease on the institution of an administration suit (e); but 
 where an annuity was given to a trustee so long as he 
 should continue to execute the office of trustee, it was held 
 that it ceased upon the termination of all active duties 
 upon the payment of the whole of the trust fund to a 
 person absolutely entitled (/) . If such an annuity or other 
 remuneration is authorised, and the trustee does not actj 
 even though he be rendered incapable of so doing by the 
 act of God, he is not entitled to receive it (g) . 
 
 7. A trustee may contract with his cestui que trust to Or trustee 
 
 . „ . , „ may contract 
 
 receive some remuneration for acting or to make proles- for remunera- 
 
 sional charges for so doing. But such a contract would be ^^g^^jf^^g *^® 
 
 jealously watched by the Court, and would be set aside, trust. 
 
 unless it were perfectly fair, and obtained without any 
 
 undue influence Qi) ; and the contract must in distinct 
 
 terms take the trustee out of the general rule (i) . 
 
 (c) Ellison V. Airey, 1 Ves. jr. 546. 
 
 115; Willis v. Kibble, 1 Beav. (^) Hanbury v. Spooner, 5 
 
 559. Beav. 630; Slaney v. Watney, 2 
 
 \d) Douglas v. Archbutt, 2 De Eq. 418. 
 
 G. & J. 148; Sykes v. S., (1909) (h) Aylife v. Murray, 2 Atk. 
 
 2 Ch. 241; 78 L. J. Ch. 609. 58. 
 
 (e) Baker \. Martin, ^'^'ua.. 25. (J) Moore v. Froivd, 3 My. & 
 
 (/) Hull V. Christian, 17 Eq. C. 45.
 
 16^ 
 
 REMUNERATION OF TRUSTEES. 
 
 Or with the 
 Court. 
 
 Lapse of real 
 estate. 
 
 ss V. 
 Wheate. 
 
 Intestates' 
 
 '8. A trustee ma.y also contract with the Court that h& 
 will not undertake the trust without proper compensation; 
 and if he undertake the trust upon the understanding that 
 application shall be made to the Court for compensation, 
 a reference will be made to chambers to ascertain and 
 settle what is a reasonable allowance for his past and 
 future services {k) . In the case of an unusually difficult 
 trust, the Court has sanctioned a commission being allowed 
 to a trustee for his trouble (I). There is special statutory 
 provision for the remuneration of judicial trustees (m); 
 and, as we have seen, of a public trustee under the Act 
 of 1906 (w). 
 
 9. Formerly, a trustee might sometimes, from accidental 
 circumstances, profit by his trust in a manner quite irre- 
 spective of any claim for remuneration or compensation. 
 Where, for instance, a cestui que trust died intestate and 
 without heirs, the trustee was entitled to the benefit of 
 any realty vested in him as such, subject to the rights of 
 creditors of the deceased cestui que trust. This accidental 
 benefit accrued to him, however, not from the strength of 
 any title of his own, but because no other person could 
 show any title at all (o). The only person who could put 
 in any claim would be the lord or the Crown, on the 
 ground of escheat; and in the case cited it was decided 
 that where the legal estate was already vested there was no 
 escheat, or right to compel a conveyance from the trustee. 
 
 The same principle was applied to copyholds in favour 
 of a trustee as against the lord of the manor (p), and to 
 a mortgage in fee where the mortgagor died intestate and 
 without heirs (q) . 
 
 But now, by the Intestates' Estates Act, 1884 (r), where 
 
 (k) Marshall v. Holloway, 2 
 Swanst. 432, 453 ; Morrison v. 
 i/., 4 My. & C. 215. 
 
 (I) Re Freeman's Trust, 37 Ch. 
 D. 148; 57 L. J.Ch. 160. 
 
 (ot) 59 & 60 Vict. c. 35, s. 1. 
 
 (w) 6 Edw. VII. c. 55, sup., 
 p. 158. 
 
 (o) Burgess v. Wheate, 1 Eden, 
 177. 
 
 Qp) Gallard v. Haiokins, 27 
 Ch. D. 298; 53 L. J. Ch. 834. 
 
 (§') Beale v. Symonds, 16 Beavi 
 406, -: 
 
 (r) 47 & 48 Vict. c. 71, s. 4.
 
 LIMITS OF THE PRINCIPLE. f^T 
 
 a person dies without an heir and intestate as to any Ewtates Act, 
 equitable estate or interest in any corporeal or incorporeal 
 hereditament, whether devised or not devised to trustees , >, , 
 
 by the will of such person, the law of escheat shall apply 
 in the same manner as if the estate or interest were a 
 legal estate in corporeal hereditaments (s) . 
 
 The trustee of freeholds has, therefore, no longer the 
 chance of profiting by a failure of heirs; and apparently 
 the statute would take effect as to copyholds in favour of / o 
 
 the lord of the manor. ' 
 
 In the case of personalty, if a cestui que trust dies ^° 
 intestate and without next of kin, the Crown by virtue of case Zi 
 its prerogative can claim the chattels as hona vacantia (t). ^'^^? 
 
 Before 1 Will. IV. c. 40, if a testator made no express i Will. IV. 
 disposition of the residue of his personalty, the executors 
 were at law entitled thereto; nor did Courts of equity 
 interfere with their enjoyment, unless it appeared to be 
 the testator's intention to exclude them from interest 
 therein. By that Act, however, as to wills made since th6 
 1st Sept., 1830, executors are declared to be trustees of 
 such undisposed-of residue for the next of kin under the 
 Statute of Distributions, unless it should appear by the 
 will that the executors were intended to take it beneficially. 
 The onus of proving an intention in their favour is thufe 
 thrown upon them (u) . An executor was, however, held 
 entitled to take an undisposed-of residue beneficially, in 
 a case in which there was parol evidence of such an 
 intention in his favour (x) . 
 
 ■ ■■■t: 
 
 (s) Att.-Gen. v. Anderson, (u) Harrison v. H., 2 H. & M. 
 
 (1896) 2 Ch. 596; 65 L. J. Ch. 237; He Glukman, Att.-Gen. v. 
 
 814; and see Moodv v. Penfold, Jeferys, (1907) 1 Ch. 171; 76 
 
 (1891) 1 Ch. 258; 60 L. J. Ch. L. J. Ch. 82. 
 143. (_x) Camp v. Coe, 31 Ch. D. 
 
 (f) Powell V. Merrett, 1 Sm. & 460; and see Re Knowles, Roos& 
 
 G. 381; Middleton v. Spicer, 1 v. Chalk, 43 L. T. 152; 49 L. J. 
 
 Bro. C. C..201. Ch. 625.
 
 168 
 
 REMUNERATION OF TRUSTEES. 
 
 Trustees and 
 executors. 
 
 Hi whatever 
 oooupation. 
 
 Solicitor - 
 itrustee. 
 
 lEiXoeptions. 
 Business in an 
 •action. 
 
 iii. To what persons the doctrine applies. 
 
 1. In Robinso?i v. Pett (y), under circumstances some- 
 what strongly in favour of allowing remuneration if 
 possible, it was refused to one who was appointed to the 
 oflBce of trustee and executor, notwithstanding that he 
 had renounced the executorship. Express trustees and 
 executors are, therefore, seen to be most fully under the 
 operation of the rule. 
 
 It matters not that the executor has been carrying 
 on the business of a deceased partner (z), nor what his 
 occupation or employment in life; for instance, neither 
 a factor (a), nor a commission agent (h), nor an auc- 
 tioneer (c), is allowed, without such authority as has been 
 above mentioned, to make business or professional charges 
 for work done in the execution of a trust which he has 
 undertaken . 
 
 2. A solicitor Avho is appointed executor or trustee is 
 within the rule (d), but this case requires special con- 
 sideration . 
 
 Not only is such a solicitor personally disqualified from 
 receiving remuneration, but it has been held that the firm 
 to which he belongs is equally unable to charge the cestui 
 que trust save for out of pocket costs and expenses (d), 
 even though the business weis actually attended to by a 
 partner who was not a trustee (e) . 
 
 There are, however, certain special limitations of the 
 principle as applied to solicitors. Thus — 
 
 (1 .) Where business is done in an action, whether hostile 
 or not, or even in friendly proceedings, such as an applica- 
 tion for maintenance of an infant, a solicitor-trustee or his 
 firm may receive the usual charges, if acting for himself 
 
 (y) 3 P. Wms. 249. 
 
 (z) Burden v. B., 1 V. & B. 
 170. 
 
 (a) Scattergood v. Harrison, 
 Mos. 128. 
 
 (fi) Sherriff v. Axe, 4 Ruse. 33. 
 
 (c) Kirkman v. Booth, 11 Beav. 
 
 273. 
 
 (d) Broughton v. B., 5 De G. 
 M. & G. 160. 
 
 (e) Christophers v. White, 10 
 Beav. 623; Lincoln v. Windsor, 
 9 Ha. 158; Burgess v. Vinicome, 
 34 Ch. D. 77.
 
 TO WHAT PERSONS THE DOCTRINE APPLIES. 
 
 169 
 
 and his co-trustee; but uo greater cost must be allowed 
 than if the solicitor acted for the co-trustee alone (/) . 
 
 (2.) An agreement between solicitors in partnership, Employment 
 that the one who is appointed trustee is not to participate ° ^^ 
 in any of the profits or to derive any benefit from the 
 business done for the trusts, has been considered sufficient 
 to admit of his partner being employed as solicitor on 
 usual terms {g) . 
 
 (3.) A solicitor-trustee, who had invested the trust Charges 
 funds on mortgage, and, in doing so, acted for the mort- pf^ng. 
 gagor, was held entitled to retain professional charges 
 paid by the mortgagor (h) . But profit costs of preparing 
 leases of the trust estate have been disallowed, although 
 paid by the lessees (i) . 
 
 (4 . ) The costs of the town agent of a solicitor-trustee Town agent's 
 are allowed (k) . 
 
 (5.) Of course, if the testator or settlor creating the trust 
 •appoints a solicitor-trustee, and expressly authorises him 
 to make the usual professional charges, he is entitled to do 
 60 (I). But his charges will be strictly limited to such as 
 are well within the authorisation of the instrument creating 
 the trust (m) ; and it will require special provisions to 
 permit of charges for any services not strictly professional; 
 services, for instance, such as an ordinary trustee ought to 
 have done without the intervention of a solicitor. And if 
 the estate is insolvent, he cannot claim his costs as against 
 creditors, the right to claim profit costs being in effect a 
 legacy (w). On the same principle he cannot claim them 
 if he or his wife is an attesting witness of the will (o). 
 
 (/) Cradock v. Piper, 1 Mac. & {¥) Bitrge v. Brutton, 2 Ha. 
 
 G. 664; Lawton v. Elwes, 34 Ch. 373. 
 
 D. 675; 56 L. J. Ch. 294. (0 Ames v. Taylor, 25 Ch. D. 
 
 72; Harbin v. Darby, 28 Beav. 
 
 (^) Clack V. Carton, 7 Jur. 
 
 325. 
 
 ?• ^•- ^V«'QA^^rpiy-9i?''ATfT ('") ^^^^<«« V. Chapman, 27 
 
 henzie, (1894) 1 Ch. 218; 63 L. J. ^^ -q gg^ '■ ' 
 
 €h. 239. 
 
 («) Pennell v. Franklin, (1898) 
 
 (K) Whitney v. Smith, 4 Ch. i ch. 297; 2 Ch. 217; 67 L. J. 
 •513. Ch. 502. 
 
 (t) Lawton v. Elwes, sup. (o) Re Pooley, 40 Ch. D. 1; 58
 
 ^70 
 
 REMUNERATION OP^ TRUSTEES. 
 
 Mortgagees. 
 
 Agents. 
 
 Chairman and 
 
 directors 
 
 of companies. 
 
 3 . A mortgagee with power of sale stands in a fiduciary: 
 relation with regard to the mortgagor, and so will not be 
 allowed, either alone or conjointly with his partner in any 
 business, e.g.., as auctioneers, to derive any profit from the 
 sale (jo). In the case of a solicitor-mortgagee, acting on 
 behalf of the mortgagees, the cases were at one time very 
 conflicting as to the solicitor's right to profit costs (g');, 
 eventually the balance of authority was against it (r) . But 
 now, by the Mortgagees' Legal Costs Act, 1895 (s), a 
 solicitor-mortgagee is entitled to the same costs as if the 
 mortgage had been made to a third person, and he had 
 employed the solicitor to transact the business usually 
 incident in such cases. The Act applies to mortgages 
 made before it came into operation, but not where an 
 order for taxation was made before the Act and such costs 
 disallowed (^). 
 
 4. An agent entrusted ^vith money or any other pro- 
 perty for the purpoise of using it for the owner's benefit, 
 cannot make any profit by the use thereof. Instances of 
 such disqualification being considered to attach to agency 
 are seen in the cases of a vendor of public stamps (m), the- 
 master of a ship (rr), and a part-owner of or partner in a 
 ship acting as ship's husband (?/). 
 
 5. A chairman or director of a company stands in a 
 fiduciary relation towards the company, and will not as a 
 rule be allowed to derive any profit beyond his salary from'' 
 his office {z)\ and see also p. 109. 
 
 L. J. Ch. 1; Re Barber, 34 Ch. 
 D. 665; 55 L. J. Ch. 373. 
 
 (jji) Matthison v. Clarke, 3 
 Drew. 3. 
 
 (^) Re Wallis, 25 Q. B. D. 176 ; 
 59 L. J. Q. B. 500; Re Roberts, 
 43 Ch. D. 52; 59 L. J. Ch. 25; 
 Stone V. Lickorish. (1891) 2 Ch. 
 363; 60 L. J. Ch. 289. 
 
 (r) Fisher v. Doody, (1893) 1 
 Ch. 129; 62 L. J. Ch. 14; Eyre 
 ,v. Wynn-Mackenzie, sup. . 
 
 (s) 58 & 59 Vict. c. 25, s. 3. 
 : (^) May V. Kelland, (1900) 2 
 
 Ch. 745; 70 L. J. Ch. 3; Eyre v. 
 Wynn-Mackenzie, (1896) 1 Ch. 
 135; 65 L. J. Ch. 194. 
 
 (ii) Att.-Gen. v. Edmunds, 6' 
 Eq. 381. 
 
 (x) Shallcross v. Oldham, 2. J. 
 & H. 609. 
 
 (y) Miller v. Machay, 31 Beav. 
 77 ; and see Mayor, ^c. of Snlford 
 V. Lerer, 25 Q. B. D. 363; 5^ 
 L. J. Q. B. 483. 
 
 (2) Great Luxembourg Ry. Co, 
 V. Maqnay, 25 Beav. 586; Boston;. 
 <^c. Co. V. Ansell, 39. Ch. D. 389;
 
 TO WHAT PERSONS. THE DOCTRINE APPLIES. ttl 
 
 6. The principle does not apply in all its strictness to Constructive 
 1 . T i. i.- 2. i. mu u 1 trustees not 80 
 
 a person who is merely a constructive trustee, i hough he strictly 
 
 must account for the profits of trust money employed, he ti'eated. 
 will have an allowance made to him for his expenditure 
 of time, skill, and trouble (a) . Thus, a surviving partner Surviving 
 is in a sense a trustee for the estate of the deceased P*"^®"^* 
 partner, but the trust is limited to the performance of the 
 obligation. Time runs in his favour (6), and if he con- 
 tinues the business, though he must account for the profits, 
 he is entitled to a proper allowance for the trouble of 
 management (c) . 
 
 Bath V. Standard Land Co., {b) Knoie^ v. Gye, L. B. 5 H. L. 
 
 (1910) 2 Ch. 408; 80 L. J. Ch. 656. 
 
 36. ■ (c) Feather stonehaugh v. Fen- 
 
 («) Brown v. Litton, 1 P. wick, 17 Ves. 2,98; Vyse v. Foster, 
 
 Wms. 140; Hordem v. H., (1910) L. R. 7 H. L. 318, 329. 
 A. C. 465; 80 L. J. P. C. 15. 
 
 m
 
 172 FRAUD. 
 
 CHAPTER II. 
 
 FRAUD . 
 
 Distinction between Law and Equity. 
 Classification of Frauds. 
 I. Actual Fravd. 
 
 1. Arising frmn wrongful acts. 
 
 2. Arising from wrongful omissions. 
 
 II. Transactions deemed on general grounds inequit- 
 able. 
 
 1. Fraud presumed from the nature of the 
 
 transaction. 
 
 2. Fraud presumed from the circumstances or 
 
 relation of the parties. 
 
 III. Frauds mi public policy. 
 
 IV. Frauds mi the private rights of third persons. 
 
 There is no part of equitable jurisprudence more bene- 
 ficial, and probably none of more ancient date, than its 
 jurisdiction to give relief in circumstances of fraud. In 
 the early days of the Court of Chancery it would seem that 
 no cause more frequently induced suitoi's to seek its assist- 
 ance than the fact that it granted relief in the case of many 
 transactions which would not have been deemed fraudulent 
 in the Courts of Common Law. 
 Fraud at law It has never been possible to draw a precise line between 
 ^ ^' those cases in which common law would give complete 
 relief and those in which it would be necessary to resort to
 
 CLASSIFICATION OF FKAUDS. 173 
 
 equity; and the provisions of the Judieatiire Act (a) 
 already referred to have rendered such a distinction com- 
 paratively unimportant. Yet the difference of the two 
 principles should be kept in mind here, as elsewhere, and it 
 may he sketched in few words. 
 
 To constitute fraud at common law, it is not enough to 
 show that fraud in the sense of misrepresentation and 
 undue advantage of the position of the parties said to be 
 imposed upon has been committed, but some act, so to 
 speak, of offensive dishonesty must be brought home to the 
 party charged with it. 
 
 In order to understand the attitude of equity in regard 
 to fraud, reference must be made to the exposition of the 
 general principles of equity at the beginning of the book. 
 In dealing with fraud, equity may be observed to appeal to 
 and act on the conscience of the parties, to demand not 
 only a formal compliance with the rules of honesty, but a 
 conscientious consideration (where such is owing) of the 
 interests of other people . It will take into account all the 
 circumstances of the case, not only the act and intention 
 of the party complained of, but the position of the party 
 said to have been imposed upon (6). It will interfere not 
 only where actual deception has been practised, but also 
 to prevent the dishonest circumvention of one person by 
 another. 
 
 It has by many writers been deemed undesirable, if not Definition of 
 impossible, to formulate any definition which shall indicate ^^^ ' 
 the various forms in which fraud, as it is understood in 
 Courts of equity, may present itself. The forms of fraud 
 are infinite, and (in the words of Lord Hardwicke) were 
 Courts of equity " once to lay down rules how far they 
 "would go, and no farther, in extending their relief 
 " against it, or to define strictly the species or evidence of 
 "it, the jurisdiction would be cramped and perpetually 
 
 («) 36 & 37 Vict. c. 66. 
 
 lb) Stewart v. G. W. By. Co., 2 Dr. & Sm. 438.
 
 1)74 FRAUD. 
 
 " eluded by new schemes which the fertility of man's in- 
 "vention would contrive " (c) . 
 
 But though it is doubtless true that the evil which Lord 
 Hardwicke feared might result from an authoritative defi- 
 nition, which purported to indicate the limits which would 
 bind the Court in its interference with inequitable (or 
 iniquitous) transactions, it is none the less useful, and it is 
 by no means impossible, to arrive at a definite idea as to 
 the meaning attached in Courts of equity to the term 
 "fraud," and to express the same in clear and simple 
 language. Of course, it will be observed in the first place 
 that Courts of justice are only concerned with fraud in so 
 far as it operates on legal rights. They have no concern 
 with transactions which, however shocking to a moral 
 sense, do not infringe such rights as are recognised by 
 municipal law. Now it is a principle of equity that men 
 should so far respect the legal rights of one another as to 
 be fair and just in their dealings. And equity esteems it 
 neither fair nor just that a man should deprive another of 
 his rights by means of falsehoods respecting the matter in 
 question. It is true that it cannot interfere in every case 
 in which a transaction has been induced by false state- 
 ments. It must assume men to be reasonably vigilant on 
 the one hand, as it requires them to be fair and just on the 
 other; and no general expression can indicate, or ought to 
 indicate precisely, how far the Court will go in its inter- 
 ference with transactions induced by falsehood. Never- 
 theless, the first and most important element in what is 
 known as "fraud" is falsehood or deception. But the 
 term "fraud" covers other transactions in which there is 
 not necessarily any falsehood, express or implied, neither 
 mggestio falsi nor suppressio veri. A man may be tricked 
 out of his rights without any deception operating on his 
 mind and motives; as, for instance, where a man attempts 
 
 (c) Parke's Hist, of Chanc.,p. 508; Story, 186; Mortlock v. Buller, 
 10 Ves. 292, 308.
 
 CLASSIFICATION OF FRAUDS. 175 
 
 to convey his property to another with intent to defeat the 
 just claims of his creditors, or takes advantage of the 
 necessity of another to make an unconscionable bargain 
 with him. Such circumstances as these are often suffi- 
 cient to move the Court to grant relief. And under one 
 or other of these heads all dealings properly styled fraudu- 
 lent may be classed. Fraud then may be taken to mean, 
 the interference with legal rights either by deception or by^ 
 circumvention {d) . 
 
 This, however, though it serves as a statement of the 
 juristic meaning of the term "fraud," goes but a very 
 little way towards instructing the student as to the extent 
 to which Courts of equity will go in granting relief against 
 fraudulent dealings. This knowledge can only be reached 
 by a consideration of the various classes of cases in which 
 relief has been afforded. 
 
 In the leading case of Chesterfield y.Janssen (e) Lord chesterfield v. 
 
 Hardwicke enumerated the different species of fraud which ;^'^"**^'^ 
 
 «?i'i !• V (, . y o ■\^ • Lord Hard- 
 
 sumced to induce the interference oi equity to the lollowing wicke's 
 effect ■ classification . 
 
 1 . Actual fraud or dolus malus ; fraud arising from 
 facts and circumstances of imposition. 
 
 2. Fraud apparent from the intrinsic nature and subject 
 of the bargain itself; a class comprising inequitable and 
 unconscientious bargains generally. 
 
 3. Fraud which may be presumed from the circum- 
 stances and condition of the parties to the transaction. 
 
 4. Fraud which is so considered from circumstances of 
 imposition on other persons not parties to the transaction. 
 
 5. Fraud which is imputed in cases of catching bar- 
 gains with heirs, reversioners, or expectants in the life of 
 the fathers, &c.; a class of cases usually compounded of 
 all or several of the other species of fraud, since in them 
 there is generally either actuaL deception, weakness on one 
 
 (<f) See the Law Quarterly {e) 2 Ves. sr. 125; 1 W. & T. 
 
 Review, Oct. 1887, " Definition L. C. 289, ed. 7. 
 of Fraud," by M. M. Bigelow.
 
 176 FRAUD. 
 
 side and extortion on the otlier, or arc unconscionable con- 
 ditions and some deceit and illusion on other persons not 
 privy to the agreement, such as the father or ancestor. 
 
 The last of these divisions is admittedly compounded of 
 the others, and it will simplify the arrangement for our 
 present purpose to treat the cases which would fall within 
 it under the several headings to which they may be 
 respectively referred. Moreover, the third class of frauds 
 here specified seems rather to be a subdivision of the 
 second than a distinct and correlative class. We shall, 
 therefore, take as the second division inequitable and 
 unconscientious transactions generally; of these, some 
 being deemed fraudulent on account of their intrinsic 
 nature or subject-matter; others on account of the peculiar 
 circumstances or condition of the parties. 
 
 Again, the fourth class comprises two species of trans- 
 actions so distinct as to warrant the consideration of each 
 as correlative with the other main divisions. Some trans- 
 actions are deemed fraudulent as being inconsistent with 
 the general policy of the law; others from their tendency 
 to compromise unfairly the private rights of persons not 
 parties thereto. These we shall consider separately. 
 Division We are accordingly left with four leading divisions, 
 
 of the subject, ^^der one or other of which all the various transactions 
 regarded in equity as fraudulent may be classed. It will 
 be observed that this classification does not expressly 
 recognise the distinction often taken between active and 
 constructive fraud. The transactions classed under the 
 latter head will, however, be found fully dealt with under 
 Constructive one or the other of the last three divisions. By cases of 
 constructive fraud are meant those in which equity, review- 
 ing the conduct of one or more parties, practically says 
 that if their conduct was not dishonest and fraudulent, (in 
 familiar langtiage) if might just as iiJell have been so ; that 
 is to say, the suspicious conduct is so like actual fraud tha(^ 
 for reasons of public policy it would be unsafe to attempt 
 to draw a judicial distinction between them.
 
 ACTUAL FRAUD. 
 
 The entire division of the subject will then be as 
 follows: — 
 
 I. Actual fraud {Dolus Mains). 
 
 1. Arising from wrongful acts. 
 
 2. Arising from wrongful omissions. 
 
 II. Inequitable and unconscientious transactions. 
 
 1. Fraud presumed from the character or subject- 
 
 matter of the transactions. 
 
 2. Fraud presumed from the circumstances or con- 
 
 dition of the parties. 
 (1.) Contracts with persons under duress, 
 lunatics, imbeciles, infants, &c. 
 Contracts between persons in fiduciary 
 relations . 
 (2.) Gifts between parties in unequal posi- 
 tions. 
 III. Frauds so considered on grounds of public policy. 
 (1.) As to marriage. 
 ;(2.) Restraint on trade. 
 (3.) Sale of offices, &c. 
 IV. Frauds on the private rights of third persons. 
 
 (1.) Fraudulent misrepresentations and conceal- 
 ments. 
 (2.) Frauds on powers. 
 
 I. Actual Fraud (Dolus Malus), exhibited in Facts 
 mid Circumstances of Imposition. 
 
 Actual fraud is fraud evidenced by some positively Actual fraud, 
 dishonest act or omission. Under this head will be dealt Imposition, 
 with those cases in which an attempt to impose upon the 
 aggrieved party by some wrongful act or omission is 
 expressly proved. We shall distinguish frauds arising Expressly 
 from wrongful acts from those arising from wrongful P^o^^'^- 
 omissions. 
 
 s. 12
 
 178 
 
 FRAUD. 
 
 Sugyestio fahi. 
 
 Rules in 
 Attwood V. 
 Small. 
 
 Representa- 
 tion must be 
 false. 
 
 Expressions 
 of opinion 
 distinguished. 
 
 1. Actual Fraud consisting in Wrongful Acts. 
 
 The largest class of transactions falling under this head 
 is that in which the fraud consists in active misrepresenta- 
 tion, or S'uggestio falsi. 
 
 In the case of Attwood v. Sfruall (/), Lord Brougham 
 gave expression to three rules respecting the degree of 
 misrepresentation which would justify the rescission of a 
 contract in equity: — 
 
 1. The representation must have been contrary to fact. 
 
 2. The party making it must have known it to be con- 
 
 trary to fact. 
 ■L It must have given rise to the contract (dans locum 
 
 contractui) . 
 The first of these rules needs but little comment, since 
 it is but a bare definition of the most essential element of 
 misrepresentation — its falsity. It is only necessary to 
 point out the distinction between a misrepresentation as 
 to a fact and a mere expression of opinion. A represen- 
 tation which amounts only to a statement of opinion, 
 judgment, probability, or expectation, or is mereh' a con- 
 jectural or exaggerated statement, will generally be 
 deemed immaterial, for a man is not justified in placing 
 reliance on it(^). This includes language of puffing or 
 commendation, commonly resorted to by vendors, on which 
 purchasers are not presumed to place reliance (h). Some- 
 times, however, what is in form an expression of opinion 
 is, under the circumstances, virtually equivalent to a state- 
 ment of fact. Thus, where a vendor represented that 
 property was let to " a most desirable tenant," well 
 knowing that the rent was not regularly paid, there was 
 held to be a misrepresentation sufficient to avoid the 
 sale (i) . 
 
 (/) 6 CI. & F. 232, 444. 
 
 (g) Kerr on Fraud, 39; //«//- 
 craft V. Creasy, 2 East, 92; 
 .Teiininqa v. Broughton, 5 De G. 
 M. & G. 126, 134; Bellairs v. 
 
 Tuclier, 13 Q. B. D. 562. 
 
 (Ji) Fenton v. Browne, 14 Ves. 
 144. 
 
 (€) Smith V. Land and House 
 Property Corporation, 28 Cli.D.7.
 
 ACTUAL FRAUD. 181 
 
 The second rule often gives rise to fine distinctions, and Reckless 
 
 ,.. 1-1 1 -1 -iiT- statements 
 
 to decisions which are not always easily reconciled, it is or negligei 
 often proved that misrepresentations are made carelessly i^orance. 
 and without due inquiry, yet at the same time without 
 a deliberate intention to deceive. In such cases the 
 tendency of recent decisions has been to relax in some 
 degree the stringency of the earlier cases. Such careless- 
 ness, though it may be evidence, is not necessarily proof, 
 of fraud {k). To entitle a plaintiff to relief he must show 
 that the statements relied on were made dishonestly (Z); 
 or in the alternative that there was under the circumstances 
 a duty cast on the defendant to ascertain and state the 
 truth (m). Such misrepresentations may indeed, in certain 
 circumstances, give a title to relief on the ground of 
 mistake, as to which see infra, p. 220 et seq. 
 
 Thirdly, the misrepresentation must have given rise to ^"st be dann 
 
 , . , , . locum Con- 
 
 nie contract; or, m somewhat more general terms, mis- tractui, i.e., of 
 
 representation in order to justify the rescission of a con- 3- material 
 tract must be as to some material fact constituting an 
 inducement or motive to the act or omission of the other 
 party (n) . This rule excludes cases in which the misrepre- 
 sentation only extends to some unimportant detail, or to 
 something merely collateral to the contract (o) . And it ^u^t have in 
 follows from it, that misrepresentation is of no effect unless the party, 
 it has in fact misled the person complaining of it. If he 
 knows it to be false it cannot have influenced his con- 
 duct (p) . It does not indeed suffice for the defendant to 
 say that the plaintiff had the means of knowledge within 
 
 (A;) Berry v. Peek, 14 App. 10 Ves. 470; 8lim v. Croucher, 1 
 
 Cas. 337; 58 L. J. Ch. 864; re- De G. F. & J. 518, 525; Low v. 
 
 versing 37 Ch. D. 541; Angus v. Boiiverie, (1891) 3 Ch. 82; 60 
 
 Gliford, (1891) 2 Ch. 449; 60 L. J. Ch. 594. 
 L. J. Ch. 443; and compare ^gftse («) Story, 195; Puhford v. 
 
 River, #c. Co. v. Smith, L. K. 4 Richards, 17 Beav. 87, 96. 
 H. L. 64; Owen v. Hornan, 4 /- \ t- n t t^t • 
 
 H. L. 997, 1035. ^ ^°^ °"^?fnn7; ?"n^ f^'f^'^'i 
 
 (I) Glasier v. RolU, 42 Ch. D. Tramimrfs,il^Q6) 1 Ch. 646; 74 
 
 436; 58 L. J. Ch. 820. ^- "^^ ^"- *'^*- 
 
 («0 Rawlins v. Wickham, 3 De (.P) kelson v. Stocker, 4 De G. 
 
 G. & J. 304; Bnrrowes v. Lock, & J- 458. 
 
 12 (2)
 
 178 
 
 FRAUD. 
 
 Su 
 
 The injury 
 must not be 
 a remote 
 consequence 
 thereof. 
 
 ■ teach, and that by inquiry he might have ascertained 
 the truth; for " no man can complain that another has too 
 "implicitly relied on the truth of what he has himself 
 "stated" (q). If, however, having such means of know- 
 ledge, the plaintiff has used them, and having made 
 inquiries he eventually acts on his own judgment, he 
 cannot complain of the misrepresentation (r) . And if a 
 misrepresentation is capable of several interpretations, it 
 is for the plaintiff to show on which he relied. The 
 Court will not assume that he has been deceived merely 
 because under the circumstances he very well might have 
 been (s) . 
 
 Notwithstanding, again, that injury arises from mis- 
 representation, there will be no case for relief if the injury 
 be but a remote consequence of the misrepresentation (t). 
 
 A misrepresentation by an agent may well suffice to 
 avoid the contract of his principal (w) . And so, if mis- 
 representations are made by the directors of a company, 
 there is a remedy, not only against the directors person- 
 ally, but also against the company, to the extent of any 
 profits which have accrued to it through the fraud (x). 
 Though, however, fraudulent directors are jointly and 
 severally liable, so that one or more of them may be sued 
 without the others (?/), an innocent director is not liable for 
 the fraud of his co-directors, if he is not chargeable with 
 negligence in his duty (z). The Companies Act, 1900 («), 
 made stringent statutory provision for the prevention of 
 such frauds and abuses of confidence as have been pre- 
 
 ((7) Redgrave v. Hurd, 20 Ch. 
 D. 1; 51 L. J. Ch. 113; Beynell 
 V. Sprye, 1 De G. M. & G. 656, 
 710; Central Railway Co., S;c. v. 
 Kisch, L. R. 2 H. L. 99, 120; 
 and see Edgington v. Fitzmaurice, 
 29 Ch. D. 459. 
 
 (r) Jennings v. Broughton, 5 
 De G. M. & G. 126, 140; Byer v. 
 Hargrave, 10 Ves. 505. 
 
 (s) Smith V. Chadwick, 9 App. 
 Cas. 187; 53 L. J. Ch. 873. 
 
 (<) Barry v. Crosshey, 2 J. & 
 
 H. 1. 
 
 (u) Mullens v. Miller, 22 Ch. 
 D. 194; 52 L. J. Ch. 380. 
 
 (a;) Western Bank of Scotland 
 V. Addie, L. R. 1 Sc. App. 145; 
 Lynde v. Anglo-Italian Ilcmp 
 Co., (1896) 1 Ch. 178; 65 L. .1. 
 Ch. 96. 
 
 (y) Parker v. Lewis, 8 Ch. 1035. 
 
 Iz) Re Benham. # Co., 25 Ch. 
 D. 752; see also Peek v. Gurney., 
 L. R. 6 H. L. 377. 
 
 (a) 63 & 64 Vict. c. 48.
 
 ACTUAL FRAUD. 181 
 
 sented in many recent and notorious cases of company 
 promoting. See for example the requirements of ss. 9 
 to 11 of this xlct as to the contents of a prospectus, as 
 there defined. This statute has been repealed by the Com- 
 panies Consolidation Act, 1908 (&), but its provisions are 
 thereby re-enacted with additions (c) . 
 
 Another class of cases very similar to those considered Active 
 under the head of misrepresentation is where the fraud ^^^^^ ®° • 
 consists in what has been called "active concealment"; 
 as where a person uses some contrivance to hide a defect 
 of something offered for sale. In every such contrivance 
 there is fraud (d), provided, as in the case of misrepresen- 
 tation, that the concealment has been of some material 
 fact, and is dans locum, contractui. 
 
 2. Actual fraud arising from wrongful omission. 
 
 Under this head fall those cases in which fraud is im- Suppreitsioveri. 
 puted from the circumstance of a wrongful though passive 
 concealment, or suppressio veri. In certain circumstances 
 silence may be as fraudulent and fatal as falsehood. 
 
 The first and third of the rules applied to misrepre- 
 sentation in Attwood v. STnall (e), apply equally, mutatis 
 mutandis, to passive concealment. It must relate to a 
 material fact, and must be instrumental in bringing about 
 the contract. 
 
 But there is this further restriction, that silence will not 
 amount to fraud unless the fact suppressed is one which 
 the party concealing it is under some legal or equitable 
 obligation to disclose (/). 
 
 If parties are dealing at arm's length, either may avail Fact sup- 
 himself of his superior knowledge without being required be one in 
 to disclose it to the other; the vendor may have ascertained ^^^^^ 
 
 ' '^ conndence is 
 
 some defect, for instance, the unproductiveness of the land reposed. 
 
 (b) 8 Edw. VII. 0. 69. (/) See CoaTcs v. Boswell, 11 
 
 (c) See S8. 81 et seq. App. Cas. 232; 55 L. J. Ch. 761; 
 Id) Hill V. Gray, 1 Stark. 434. Turner v. Gree)i, (1895) 2 Ch. 
 le) Sup. p. 178. 205; 64 L. J. Ch. 539.
 
 182 
 
 FRAUD. 
 
 E.g. defects of 
 title. 
 
 Patent and 
 
 latent defects. 
 
 Specially 
 protected 
 contracts. 
 
 Insurance. 
 
 of a farm which he is selling; or the purchaser may 
 have information of something Avhich confers on the land 
 exceptional value, such as a mineral deposit under it; but 
 neither is required to communicate such knowledge (^). 
 Such cases are very different from those already referred 
 to, in which some actual artifice or contrivance is resorted 
 to to conceal a defect. 
 
 But if a vendor conceals a material fact as to which, 
 from the nature of the case, confidence is reposed in him, 
 the transaction may be set aside on the mere ground of his 
 silence. Thus the concealment of an incumbrance on an 
 estate (/i), or of the death of a person on whom the title 
 depends {i), or of other defects of title (fc), will invalidate 
 a transaction. 
 
 The distinction has been expressed as being between 
 patent defects and latent defects. As to patent defects, 
 or such defects as may be discovered by the exercise of 
 ordinary vigilance, there is no duty to disclose them; 
 each party may be reasonably required to rely on his 
 own judgment. Latent defects, or such as one party has 
 no means of discovering save through the other, must be 
 disclosed. 
 
 These rules are generally applicable, but certain con- 
 tracts are, from their nature, more narrowly protected 
 from the consequences of concealment. 
 
 Thus in contracts of insurance (and in marine insurance 
 especially), it is considered that since the insurer neces- 
 sarily reposes confidence in the insured as to all facts and 
 circumstances which are peculiarly within his own know- 
 ledge, not only misrepresentation, but concealment of a 
 material fact which is not a matter of general knowledge, 
 though it may be without fraudulent intention, vitiates the 
 
 (p-) Fox V. Mackreth, 2 Bro. 
 O. C. 420; Turner v. Harvey, 
 Jac. 169, 178; Shepherd v. Croft, 
 (1911) 1 Ch. 521; 80 L. J. Ch. 
 170. 
 
 (h) Edwards v. M'Leay, 2 
 Swanst. 287. 
 
 (i) Ellard v. Llaiidaff, 1 Ba. & 
 Be. 241; Turner v. Green, sup. 
 
 (k) Carlish v. Salt. (1906) 1 
 Ch. 335; 75 L. J. Ch. 175.
 
 ACTUAL FRAUD. 18'i 
 
 policy; that is, makes it voidable at the underwriter's 
 election (l) ; and the obligution to make full disclosure 
 extends not only to facts actually known to the assured, 
 but to facts which he ought to and with proper diligence 
 would have known (m) . This doctrine applies to all con- 
 tracts of insurance of whatever kind, e.g., a contract 
 guaranteeing the solvency of a person (n) ; but the con- 
 cealment complained of must be such as is material to 
 the risk undertaken (o) . 
 
 In the contract of suretyship, also, the duty of making Suretyship, 
 full disclosure is strictly insisted on (p). 
 
 On the same principle, in family settlements, in which Family 
 
 settlements 
 
 parties may be expected to deal in a spirit of mutual trust 
 
 and confidence, full communication must be made; and 
 
 if it is not, though there may have been no fraudulent 
 
 motive or intent, the transaction is liable to be set 
 
 aside (q). 
 
 Where also a person makes a composition with his Composition 
 
 deeds, 
 creditors he must deal openly and equally with them all. 
 
 If by misrepresentation or concealment he creates a false 
 impression as to the amount of his property, the transac- 
 tion cannot be sustained (r) . Neither is it lawful for the 
 debtor to permit or for any creditor to obtain any secret 
 or undue advantage. Equality between all the creditors 
 is the very basis of composition deeds, and if there is 
 any secret arrangement by which the concurrence of some 
 or one of them is obtained by means of any exceptional 
 concession, or if for any reason preference is shown, such 
 
 {I) lonides v. Pender, L. R. 9 (o) Same case on appeal, sub 
 
 Q. B. 531, 537; Morrison v. Uni- \\o\n.\nc Scaton\. Bt(rnand, (1900) 
 
 v&rsal, #c. Co., L. E. 8 Ex. 197, A. C. 135; 69 L. J. Q. B. 409. 
 
 205" (;j) See infra, pp. 895 et seq. 
 
 (m) Proudfoot v. ilontefiorc, /x/^j >^ocj j. 
 
 T T> o /-» Tj eii Tr/r 7/ kQ) Gordon v. G., 3 bwanst. 
 
 L. K. 2 Q. B. 511; Wheelton v. Ann tTi iTi t? ei om? 
 
 n J- J. o T^ I Tj ooo 0-7; 400, 473, 477; Fane v. F., 20xiq. 
 
 Hardisty, 8 hi. k, B. 232; Sdiem „„„' 7, ,7 ' 77 -, Vii t^ 
 
 m. \ o T71 c T) oca i> i bVo', Jiohti/n V. 11., 41 L-h. D. 
 
 V. Thornton, 8 E. & B. 868. But orvn a • i 00^ 
 
 „ „ /77, ^Tr n \ 200. See %njra, p. 226. 
 
 see Thomson v. Weems, 9 App. ' ' ^ 
 
 Cas. 671. (r) Vine v. Mitchell, 1 Mood. 
 
 (w) Seaton v. Heath. (1899) 1 & R. 337; Exp. Milner, 15 Q. B. 
 
 Q. B. 782; 68 L. J. Q. B. 631. D. 605; 54 L. J. Q. B. 425.
 
 184 
 
 FRAUD. 
 
 arrangements are void; they cannot bo enforced even 
 against the assenting debtor (s), and any money paid 
 under them may be recovered back {t) . 
 Ratification. It must be remembered that in all cases of actual fraud, 
 the defrauded party may lose all right to relief by ratifica- 
 tion of the fraudulent act; and this may be effected by 
 continuing to deal with the person who has defrauded 
 him, as well as by formal release. But it is evident that 
 no acts, however formal, can amount to such a ratification 
 unless the party does them after acquiring full knowledge 
 of the fraud and its natural consequences (u) . And if the 
 Statute of Limitations is relied on in defence to an action 
 based on fraud, the statute is deemed not to have begun to 
 run until the fraud was discovered, or with reasonable 
 diligence might have been so (a?). 
 
 II. hiequituble mid Unconscientious Transactions. 
 
 This is necessarily a very wide and somewhat- indeter- 
 minate class, which is scarcely susceptible of systematic 
 Sub-division, analysis. We may, however, approach somewhat nearer 
 to this than we should by a mere enumeration of cases, if 
 we separate those transactions in which the chief ground 
 for suspecting the fraud consists in the character or 
 peculiar subject-matter of the bargain in question, from 
 those in which the presumption of fraud arises more 
 especially from the peculiar circumstances or relations of 
 the parties concerned. 
 
 (s) Jaclcman v. Mitchell, 13 
 Ves. 581. 
 
 (0 Mare v. Sandford, 1 Giff. 
 288; McDermott v. Boyd, (1894) 
 2 Ch. 428; lb. 3 Oh. 365; 64 L. J. 
 Ch. 13. 
 
 (m) Vigers v. Pike, 8 01. & F. 
 562, 630; J aques-C artier v. La 
 
 Banque D'Epargne, cj'C, 13 App. 
 Cas. Ill; 57 L. J. P. C. 42. 
 
 {x) Gibbs V. Guild, 9 Q. B. D. 
 59; 51 L. J. Q. B. 313; Betje- 
 mann v. B., (1895) 2 Oh. 474; 64 
 L. J. Ch. 641; Willis v. Earl 
 Hoiv^e, (1893) 2 Ch. 545; 62 L. J. 
 Ch. 690.
 
 INEQUITAHLE AND UNCONSCIENTIOUS TRANSACTIONS. 185 
 
 1. Where fraud is presumed from the nature of the 
 transaction. 
 
 Under this heading, one of the most important classes Catching 
 consists of transactions with expectant heirs and rever- hem!^^"* ^' 
 sioners respecting their future interests. These dealings Complex 
 do, indeed, involve the consideration of fraud on third tJ^ge frauds 
 persons, namely, and parents or predecessors in title of 
 the heirs or reversioners in question ; and at the same time 
 a frequent ingredient in the fraud imputed is the suspicion 
 of duress arising from the distress of the vendor, and the 
 consequent unequal position of the parties. For these 
 reasons Lord Hardwicke, as we have seen {y), included 
 these bargains in a separate class compounded of the others. 
 Nevertheless, for simplicity's sake, we have preferred to 
 treat of them here, in consideration that the leading ele- 
 ment of fraud in them is the suspicion attaching to the 
 very nature of the bargains themselves. 
 
 In these cases the question is usually raised as to the Effect of 
 effect of inadequacy of price. Now it is well established consideration, 
 that in dealings with interests in possession mere inade- 
 quacy of price is not, generally speaking, of itself a 
 suiRcient ground for setting aside a purchase {z) . The 
 inadequacy may, indeed, be so gross as to amount to 
 clear evidence .of actual fraud, but to this end it must be 
 " so strong, gross, and manifest that it must be impossible 
 " to state it to a man of common sense without producing 
 "an exclamation at the inequality of it" (a). 
 
 A striking illustration of this is supplied by the ciase of Harrison v. 
 Harrison v. Guest (b), where an illiterate bedridden old 
 man 71 years of age conveyed away without professional 
 advice propertj^ of the value of £400 for the consideration 
 of board and lodging during his life. He lived only six 
 
 (y) P. 175. (a) Gwynne v. Heafon, sup. 
 
 (z) Givynne v. Heaton, 1 Bro. {b) 6 De G. M. & G. 424; cf. 
 
 C. C. 1, 8; Tennent v. T., L. R. Rees v. Be Bernardy, (1896) 2 
 
 2 H. L. (So.) 6. Ch. 437; 65 L. J. Ch. 656.
 
 186 
 
 FRAUD. 
 
 Secus as 
 
 to reversions 
 
 before 
 
 31 Vict. c. 4. 
 
 Under 
 
 31 Vict. c. 4. 
 
 weeks afterwards; yet the iiiadec|uacy oi' consideration 
 was not deemed suflieient to warrant the disturbance of 
 the transaction. 
 
 But of dealings with reversions and expectancies equity- 
 is much more suspicious. Previously to the statute pre- 
 sently to be mentioned, fraud was in these cases commonly 
 presumed from inadequacy of consideration (c), and such 
 transactions were frequently set aside on this ground only,, 
 without proof of any other ingredients of fraud, such as 
 misrepresentation, undue influence, &c. {d). And the fact 
 that the expectant was of a mature age, or well understood 
 the nature and extent of the transaction, was deemed im- 
 material (e). From the fact of a person selling such an 
 interest, the Court presumed that he was under pecuniary 
 pressure; and it was not incumbent on him to prove that 
 it was so. The onus was on the purchaser to show that 
 the trans^action was just and reasonable (/) . 
 
 By the Sales of Reversions Act {g), however, it was 
 enacted that " no purchase made ho7id fide, and ivithout 
 " fraud or unfair dealing, of any reversionary interest in 
 " real or personal estate, shall hereafter be opened or set 
 " aside merely on ground of undervalue.' This Act came 
 into operation on the 1st of January, 1868; but a series of 
 decisions has cleiarly shown that it has not affected the 
 jurisdiction of equity in cases of unconscientious purchases 
 of reversions (^). In Tyler v .Yates (i) Lord Hatherley 
 said: "The legislature has not repealed the doctrines of 
 " this Court by 'which protection is thrown around unwary 
 "young men in the hands of unscrupulous persons ready 
 " to take advantage of their necessities. I conceive the 
 " reason why the law as to sales of reversions was altered 
 
 (c) Peacock v. Evans, 16 Ves. 
 512. 
 
 (d) Curivyn v. Miller, 3 P. 
 Wms. 293, n.; Aylesford v. 
 Morris, 8 Ch. 484; Freeman v. 
 Bishoj), Barn. Ch. R. 15; 2 Atk. 
 39. 
 
 (e) Port more v. Taylor, 4 Sim. 
 
 182; Bromley v. Smith, 26 Beav. 
 644. 
 
 (/) Gowland v. Be Faria, 17 
 Ves. 20; Lord v. Jefhlns. 35 
 Beav. 79. 
 
 (^) 31 Vict. c. 4. 
 
 \K) Miller V. Cook, 10 Eq. 641. 
 
 (0 11 Eq. 265; 6 Ch. 665.
 
 INEQUITABLE AND UNCONSCIENTIOUS TRANSACTIONS. 1^7 
 
 " to be that the doctrines of this Court had been carried to 
 "an extravagant length on that subject" (fc). 
 
 The effect of the statute seems to be tliat in future the 
 inadequacy of consideration must be so gross as to amount 
 to evidence of fraud; but it has been held that the burden 
 of proof is still on the purchaser (/), the circumstances of 
 the case still rendering the Court more suspicious respect- 
 ing such bargains than in case of a sale of an interest in 
 possession . 
 
 The Court has applied the same principle to relieve 
 against a grossly usurious loan to a young man without 
 means, where the expectation of the usurer was to obtain 
 payment by extortion from the father or some relation of 
 the defrauded persion (m) . 
 
 Neither before nor since the statute has there been or is 
 there any precise rule as to what difference between the 
 real value and the price jDaid constitutes inadequacy. In 
 Roman law it was considered that anything above half the 
 value was a sufficient price to sustain the transaction; but 
 in English equity it is a question of which the Court 
 decides on the facts of each case {n) . 
 
 In ascertaining the value of a reversion, the Court is Reversions, 
 guided by the evidence as to the market price at the time 
 of the transaction, rather than by the calculations of 
 actuaries (o). The question is not affected by facts sub- 
 sequent to the contract. Whether the reversion falls in 
 unexpectedly soon or is unexpectedly long delayed, though 
 of course greatly affecting its actual value in the result, 
 is not material to the inquiry as to what was an adequate 
 value according to everybody's knowledge at the time (p). 
 
 Where a sale of a reversionary' interest takes place by Sale of 
 public auction, the nature of the case supplies strong aultion.^ ^ 
 
 (A;) See also Aylesford v. (w) Baldwin v. Rocliford, 2 
 
 Morris, 8 Ch. 484; Fry v. Lane, Ves. sr. 517, cited; Nott v. Hill, 
 
 40 Ch. D. 312; 58 L. J. Ch. 113. 2 Ch. Ca. 121. 
 
 (J) O'Rorke v. Boling broke, 2 (o) Potts v. Curtis, You. 543; 
 
 App. Cas. 814. Wardle v. Carter, 7 Sim. 490. 
 
 (w) Neinll V. Snelling, 15 Ch. (^) Go^oland v. Be Faria, 17 
 
 D. 679. Ves. 20.
 
 188 
 
 FRAUD. 
 
 Post obits. 
 
 Fraudulent 
 preteuce of 
 trading. 
 
 King v. 
 Hamlet. 
 
 evidence that the market price has been paid (g) . But 
 care will be taken to ascertain that the auction has been 
 fairly conducted. Thus if the purchaser knows that the 
 vendor is selling under pressure, and without the usual 
 precautions against a sacrifice of the property, it will still 
 be incumbent on him to prove that the price given was &, 
 fair one (r) . 
 
 Post obit bonds, or bonds conditioned for payment of a 
 sum of money on the death of a person from whom the 
 obligor has expectations, are on similar principles regarded 
 with suspicion in equity, and if of an unconscioniable 
 character will be suffered to stand as security only for the 
 actual sum lent thereon, with proper interest (s) . And 
 the same applies toother securities of a kindxed nature. 
 
 The ingenuity of money-lenders has often led them to 
 disguise usurious loans to expectant heirs under the mask 
 of trading, goods being supplied merely for the purpose of 
 being at once re-sold. Such transactions are, however, 
 within the reach of Courts of equity, and may be set aside 
 upon payment of what the goods actually produced upon 
 a re-sale, with interest (t). 
 
 A leading case in dealings of this kind is King v. 
 Hamlet (u), where Lord Brougham stated that relief in 
 these cases should be refused if either the father or other 
 person standing iji loco parc7itis to the defrauded person 
 was aware of and did not oppose the transaction, or if the 
 person himself so acted upon the bargain as to alter the 
 situation of the other party or of his property, after the 
 pressure which induced it had ceased. But these rules 
 have been questioned by Lord St. Leonards (a?) ; and it 
 seems that the acquiescence of a father will have no more 
 effect than to lead more or less strongly, according to the 
 
 (g) Shelly v. Nanh, 3 Madd. 
 232. 
 
 (r) Focc V. Wright, 6 Madd. 
 111. 
 
 (s) Cttrling v. Townsend, 19 
 Ves. '628; Benyon v. Fitch. 35 
 Beav. 570. 
 
 (0 Waller v. Dalt, 1 Ch. Ca. 
 276; 1 Dick. 8; Barker v. Van- 
 sommer, 1 Bro. C. C. 149. 
 
 (m) 2 My. & K. 456; 3 CI. & 
 F. 218. 
 
 (a:) Sugd. V. & P. p. 316, 
 nth ed.
 
 INEQUITABLE AND UNCONSCIENTIOUS TRANSACTIONS. 189 
 
 facts of the case, to the inference that a bargain so autho- 
 rised was fair and innocent {y) . The repeal of the usury 
 laws does not affect the jurisdiction of the Court in thesei, 
 cases (0) . By the Money Lenders Act, 1900 («), statutory 
 provision is made for re-opening such transactions between 
 borrowers and money-lenders (as defined by the Act) 
 as are harsh or unconscionable, or where excessive interest 
 is charged; and special provisions are made to guard 
 against oppressive bargains. It has been held that relief 
 under this Act is not limited to cases in which equity 
 would previously have intervened. Excessive interest may, 
 in itself, be sufficient to satisfy the Court that a bargain 
 is "harsh land unconscionable" within the meaning of 
 the Act(&). 
 
 In all such cases as we have been considering equity Terms of 
 proceeds on the maxim that " Tie who seeks equity must 
 do equity,'' and only grants relief on the terms of the 
 plaintiff paying the sum actually advanced with interest 
 and any sums reasonably expended by the defendants in 
 improvements, and of proper costs (c) . Only simple 
 interest at 5 per cent, is allowed {d), and a defendant 
 will disentitle himself to costs by any improper conduct, 
 such as refusal to accept a full sum in discharge before 
 action brought (e). 
 
 Transactions originally impeachable may, moreover, be Confii-mation 
 rendered valid by subsequent confirmation or acquies- acquiescence, 
 cence (/) . But such confirmation or acquiescence is only 
 
 (y) Talbot v. Stainforth, 1 J. ford Syndicate v. Bott, (1905) 2 
 
 & H. 484, 502. See Rae v. Joyce, Ch. 624; 74 L. J. Ch. 673. 
 29 L. R. Ir. 500. (c) Murray v. Palmer, 2 S. & 
 
 (z) O'Rorke v. Bolingbrohe, 2 L. 474, 490; Salter v. Bradshaw, 
 
 App. Cas. 814; Aylesford v. 26 Beav. 161, 165. 
 
 ^T'^''J ?\\fr\ .1 (^) GowUo,d V. Be Foria, 17 
 
 (a) 63 & 64 Vicfc c. 51 ^^^_ 20; MUler v. Cooh, 10 Eq. 
 
 (6) In re A Bebtor, (1903) 1 oai 
 
 K. B. 705; 72 L. J. K. B. 382; ''*'\ „ r,- , o. t. 
 
 overruling Wilton v. Osborne, _(^) J^^nyon v. Fiich, 35 Boav. 
 
 (1901) 3 K. B. 110; 70 L. J. ^<^y ^78. 
 
 K. B. 507. And see Saunders v. (/) Cole v. Gibbons, 3 P. Wms. 
 
 Newbold, (1905) 1 Ch. 260; 74 fl^9; Sibbering v. Balcarras,Z Di> 
 
 L. J. Ch. 120; Victorian Bayles- G. & Sm. 735.
 
 190 
 
 FRAUD. 
 
 Family 
 
 arrangements 
 
 excepted. 
 
 effectual when it has taken place after a complete cessa- 
 tion of the original pressure {g), and with a full cognizance 
 of the right to relief {h). And a transaction which is not 
 merely voidable, but absolutely void, as were usurious 
 contracts before 17 & 18 Vict. c. 90, and as are marriage 
 brokage contracts still, cannot be set up by any subsequent 
 confirmation. 
 
 Family arrangements do not come within the restric- 
 tions respecting dealings with reversionary interests, 
 unless, of course, induced by undue influence of a parent 
 over a child {i) ; nor do settlements made in consideration 
 of natural affection {h) . 
 
 Fraud 
 
 presumed 
 
 from the 
 
 position 
 
 of the parties. 
 
 Contracts and 
 gifts. 
 
 2. Fraud presumed from the position of the parties. 
 
 The second and larger class of inequitable and uncon- 
 scientious transactions comprises those in which the chief, 
 or it may be the sole element of fraud, consists in the 
 peculiar circumstances or relations of the parties concerned . 
 
 Under this head we have to deal with two very distinct 
 classes of transactions, namely, contracts and donations or 
 gifts, which, though to some extent subject to the same 
 principles, are sufficiently contrasted to require separate 
 consideration. And, first, of contracts. 
 
 Contract 
 requires 
 consent and 
 freedom. 
 
 (1.) Contracts. 
 
 The very foundation of contract is consent or agree- 
 ment. There can be no true consent or agreement 
 ^\ ithout a capacity to understand the terms of the agree- 
 ment, and also freedom to accept or to refuse the terms 
 proposed. 
 
 If, then, a person induces another who lacks either this 
 capacity or this freedom, to enter into an apparent con- 
 tract, however it may be fenced by formal observances, 
 
 (^) Gowlancl v. De Faria, sup. 
 
 (A) Savery v. King, 5 H. L. 
 627; Mitchell v. Homfray, 8 Q. B. 
 D. 587; 50 L. J. Q. B. 460. 
 
 (0 Tu-eddcll V. T., T. & K. 1, 
 13; inf. p. 196. 
 
 {k) SJiafto V. Adams, 4 Giff. 
 492.
 
 INEQUITABLE AND UNCONSCIENTIOUS TRANSACTIONS. 191 
 
 equity will not recognise the transaction; but, deeming it 
 fraudulent, will generally grant relief against it at the 
 suit of the party imposed upon. 
 
 i. Thus from their want of a capacity to understand Contracts 
 proposals submitted to them, the contracts of idiots and a,nd idiots ; 
 lunatics, and other persons no7i compotes mentis, are gene- 
 rally deemed invalid in Courts of equity. In order to 
 sustain a contract entered into with a lunatic, the person 
 supporting it must be prepared to show the most perfect 
 good faith, and that it was for the benefit of the lunatic. 
 Equity will not interfere when the contract is entered 
 into without knowledge of the incapacity and it is evident 
 that no advantage has been taken of the weaker party {I); 
 and it will follow the law in sustaining contracts for pro- 
 viding the lunatic with necessaries (m) . It may be that 
 aj)plying the strict test of jurisprudence such contracts 
 would be equally void with others in which there has 
 been palpable imposition; but the practical contrast is 
 sufficiently apparent. 
 
 ii. Equity will, moreover, often interfere where the with infirm 
 person imposed upon has not suffered from such aberra- 
 tion of mind as amounts to insanity, but has nevertheless, 
 from old age or other infirmity, been so deficient in wit as 
 to be an easy subject of imposition and undue solicitation 
 •or influence. The burden of proving fairness of dealing 
 with such people is on him who ventures on it, and if he 
 fails the transaction will be set aside, and any advantage 
 made thereout must be disgorged {n) . 
 
 iii. Drunkenness will in some cases invalidate a contract ^^i*^ drunken 
 
 1- 1- • • n TP • ^ n i persons ; 
 
 entered into during its mnuence. it, in the first place, a 
 person has clesignedl}^ contrived to draw another into 
 intoxication for the purpose of imposing upon him while 
 in that state, equity will interfere to prevent the enjoy- 
 
 Q) Manhy v. Bewiel-e, 3 K. & (") Longmate v. Ledger, 2 
 
 J. 342. Giff. 157, 164; Frif v. Lane. 40 
 
 Ch. D. 312; 58 L. J. Ch. 113; 
 
 (w) Nelson v. Buncombe, 9 Bees v. Be Bermirdy, (1896) 2 
 Bcav. 211. Ch. 437; 65 L. J. Ch. 656.
 
 192 
 
 FRAUD. 
 
 with persons 
 under duress. 
 
 Infants. 
 
 ment of the advantage thus fraudulently conceived. But 
 in the absence of any such premeditated designs, equity 
 will only interfere in cases where the drunkenness of one 
 of the parties has been so excessive as practically to deprive 
 him of all reason and understanding. In cases of slighter 
 intoxication it will refuse to interfere either to enforce or 
 to rescind the contract, being equally unwilling to assist 
 the one person who has immorally incapacitated himself, 
 and the other who has immorally taken advantage of the 
 incapacity (o) . At law it has been held that a contract 
 made under excessive drunkenness is voidable but not 
 void, and is therefore capable of ratification by the person 
 when sober (p) . 
 
 iv. In the cases above referred to the absence of the 
 capacity to understand the proposal was the chief ground 
 of interference. The absence of freedom to accept or 
 reject the proposal is of like effect. The general test of 
 what amounts to such duress or undue influence as to in- 
 validate a contract is the question whether the party was 
 or was not a free agent. Though there may not be actual 
 compulsion or duress, if a person is under the influence of 
 extreme terror, or of extreme necessity, and any advantage 
 is taken of his position, equity will grant him relief (g'). 
 A fortiori, if the person is actually under imprisonment 
 at the time, any dealings with him will be narrowly 
 scrutinised in his favour (r) . 
 
 V. There is no necessity for discussing at length the 
 contracts of infants in a work especially devoted to the 
 exposition of the distinctive doctrines of equity, the law 
 respecting them being now regulated by the Infants 
 Relief Act, 1874 (s), which enacted that thenceforth all 
 
 (o) See Cooke v. Clayu-orth, 18 
 Ves. 12; Johnson v. Medlicott, 3 
 P. Wms. 130, cited note («). 
 
 (jo) Matthews v. Baxter, L. R. 
 8 Ex. 132. 
 
 {q) Evans v. Llewellyti, 1 Cox, 
 333, 340; Haives v. Wy'att, 3 Bro. 
 
 C. C. 156, 158; Boyse v. Ross- 
 borough, 6 H. L. 2, 49; James v. 
 Kerr, 40 Ch. D. 449; 58 L. J. 
 Ch. 355. 
 
 (r) Roy V. Beaufort, 2 Atk. 
 190. 
 
 (s) 37 & 38 Vict. c. 62.
 
 INEQUITABLE AND UNCONSCIENTIOUS TRANSACTIONS. 19:5 
 
 contracts " 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) (t), 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 " (^^) . 
 " 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 bo any 
 " new consideration for such promise or ratification after 
 "full age " (x). Moreover, it is now a criminal offence to 
 incite an infant to betting, wagering or the borrowing of 
 money (y) . Questions arising in respect of the marriage 
 settlements of infants are considered at a later page (z) . 
 
 Where, however, an infant induces persons to deal with 
 him lyy falsely representing himself as of full age, he is 
 bound in equity by payments made and acts done at his 
 request and on the faith of such representations, and is 
 liable to restore any advantage he has obtained by such 
 representations to the person from wdiom he has obtained 
 it (a) . The principle is that an infant shall not take 
 advantage of his own fraud (&). But in order to its 
 application, there must have been an actual false repre- 
 sentation, not mere dissimulation; and the party must 
 
 (<) The consideration of what (a;) S. 2; but see Northcote v. 
 
 contracts fall within the descrip- Bonqhty, 4 C. P. D. 385 ; Ditcham 
 
 tion of "necessaries" pertains v. Worrall, 5 ib. 410; Smith v. 
 
 rather to common law than King, (1892) 2 Q. B. 543. 
 
 equity. (y) 55 Vict. c. 4. 
 
 (m) S. 1; Exp. Beauchamp, (::) loif. p. 477. 
 
 (1894) 1 Q. B. 1; A. C. 607; («) Pollock Contr. 74, 6th ed. 
 
 63 L. J. Q. B. 802. And see (b) Overton v. Banister, 3 Ha. 
 
 Nottingham P. B. Buildinr/ Soc. 503; Clarke v. Coble!/, 2 Cox, 
 
 V. Thurston, (1903) A. C. 6; 72 173; Stocks v. Wilson, (1913) 2 
 
 L. J. Ch. 134. K. B. 235; 82 L. J. K. B. 598. 
 
 S. 13
 
 194 
 
 FRAUD. 
 
 Common 
 sailors. 
 
 Contracts 
 with persons 
 under 
 fiduciary 
 relations. 
 
 Constructive 
 trusts. 
 
 liavo been in fact deceived (c) . Money paid by an infant 
 under a void contract has been held not to bo recoverable 
 by him when he has actually enjoyed the benefit of the 
 contract, and the parties cannot be restored to their 
 original position {d) . But it is otherwise if no benefit has 
 been enjoyed (e). 
 
 vi. A unique exception from the ordinary rules applic- 
 able to contracts is made in favour of common sailors. In 
 consideration of their characteristic carelessness and im- 
 providence, equity carefully scrutinises any contracts made 
 with them respecting wages or prize money due to them, 
 and has often granted relief in cases in which it appeared 
 that undue advantage had been taken of them (/) . 
 
 Hitherto the contracts we have been considering have 
 come under review in connexion with the subject of fraud, 
 on account of some absolute incapacity total or partial in 
 one of the parties; that is to say, an incapacity not due to 
 the existence of any particular relation between the con- 
 tracting parties. The fraud imputed in these cases has 
 usually been deemed a species of actual fraud {g) . 
 
 vii. But there is another large class of contracts usually 
 esteemed to come under the head of constructive fraud, in 
 which the incapacity which raises the suspicion of fraud is 
 wholly due to a special relation between the parties, such 
 as that of trustee and cestui que trust, or solicitor and 
 client. These cases we have fully considered under the 
 head of constructive trusts. All that was there said might 
 with equal appropriateness have been inserted here. 
 
 It is a good illustration of the interdependence of the 
 various branches of equitable jurisprudence that such a 
 complete class should fall so aptly under two distinct 
 headings. Because of its jurisdiction in, and its jealous 
 
 (c) Nelson v. Stacker, 4 De G. 
 & J. 458; Lempriere v. Lange, 12 
 Ch. D. 675; Exp. Jones, 18 Ch. 
 D. 109. 
 
 (fZ) Valentini v. Canali, 24 
 Q. B. D. 166j 59 L. J. Q. B. 74. 
 
 (e) Hamilton v. Vaughnn, ^c. 
 Co., (1894) 3 Ch. 589; 63 L. J. 
 Ch. 795. 
 
 (/) How V. Wkeldon, 2 Ves. 
 sr. 516. 
 
 (g) Story, 228—243.
 
 INEQUITABLE AND UNCONSCIENTIOUS TRANSACTIONS. 195 
 
 scrutiny of all matters tainted with fraud, equity has 
 created, for the purpose of securing even justice, an exten- 
 sive class of trusts. Or, viewing the same question from 
 the other side, we may say that in devising a remedy for 
 cases of fraud equity has utilised the principle of trusts, 
 which was originally designed for very different purposes. 
 
 (2.) Gifts. 
 
 Our next consideration is that of voluntary gifts or Voluntary 
 donations which are deemed fraudulent through the pre- ^ *' 
 sumption of undue influence which is raised by the rela- 
 tions Tbetween the donor and donee. 
 
 These, again, might well have been dealt with under 
 the heading of constructive trusts, the principles illus- 
 trated by the case of Foxy. Mackreth (/) being precisely 
 analogous to those which now present themselves. Not- 
 withstanding this, we have preferred to consider these 
 cases under the head of fraud. The very separation of 
 things so similar will perhaps serve ,a good purpose in 
 emphasizing the relation of the various branches of the 
 subject to each other; while any confusion of arrangement 
 will be completely avoided by a careful attention to this 
 explanation, and to the reference made under each head to 
 the other. 
 
 The first subject .of inquiry respecting voluntary dona- What relation 
 tions induced by fraud is as to what relationship between presumption, 
 the parties will raise a presumption of undue influence. 
 
 One of the most frequently cited cases on this subject Euguenin v. 
 is Kuguenin v. Baseley{i). Here there was a volun- '^^^^V' 
 tary settlement made by a widow upon the defendant, who 
 was a clergyman, and who had been appointed by her 
 as her agent to manage her affairs. On her subsequently; 
 marrying, a bill was filed on behalf of herself and her 
 husband praying that the settlement might be set aside, 
 
 (h) Sup. p. 103. (0 14 Ves. 273; 1 W. & T. 
 
 L. C. 247, ed. 7. 
 
 13 (2)
 
 196 
 
 FRAUD. 
 
 and this relief was gtianted on the ground that the defen- 
 dant had exercised undue influence, and jabused the con- 
 fidence reposed in him. 
 
 The first question is, what relationship between a donor 
 and donee is within the principle of this case. 
 
 Parent and 
 child. 
 
 Person in loco 
 parentis. 
 
 i. Parent and child. 
 
 Donations from a child to ,a parent have always been 
 jealously regarded in equity, and of course especially s,o 
 when they take place but a short time after the attainment 
 of majority. They will be set aside if it .appears that any 
 advantage has been taken of the parental authority {h) ; 
 but the mere fact of the relationship will not be sufficient 
 ground for interference when the transaction .appears to 
 be reasonable ,and bond fide (l); and a fortiori if it is of 
 the nature of a family arrangement, as to which, see: 
 p. 226. If there has been undue influence, a volunteer, 
 or a purchaser with notice cl,aiming through the father., 
 is in no better position than the father himself (m) . 
 
 In this, as in many other cases, a person standing in- 
 loco parentis is within the same rule as a parent (n) . The 
 meaning of the expression in loco parentis is sufficiently 
 explained elsewhere (o) . 
 
 Guardian and 
 ward. 
 
 11. 
 
 Guardian and ward. 
 
 A gift from a ward to a guardian is always suspected; 
 and if made immediately on the ward's attaining his 
 majority, it is liable to be set aside upon the presumption 
 of undue influence (p) . Even when a considerable time- 
 has elapsed before the gift, if undue influence Qan be 
 
 (^) Cocking V. Pratt, 1 Ves. sr. 
 400; Wright v. Vander plank, 2 
 K. & J. 1; 8 De G. M. & G. 133; 
 Turner v. Collins, 7 Ch. 329; 
 London ^ WesUninster Loan ^ 
 Discount Co. v. Bilton, 27 T. 
 L. R. 184. 
 
 (I) Blackhorn v. Edgeley, 1 P. 
 Wms. 600. 606; Tendril v. Stnith, 
 
 2 Atk. 86; Powell v. P., (1900) 
 1 Ch. 243; 69 L. J. Ch. 164. 
 
 (ni) Bainbrigge v. Browne, 18 
 Ch. D. 188. 
 
 (n) Archer v. Hudson, 7 Beav. 
 551; Kempson v. Ashbee, 10 Ch. 
 15. 
 
 (o) P. 84. 
 
 (p) Everitt v. E., 10 Eq. 405.-
 
 INEQUITABLE AND UNCONSCIENTIOUS TRANSACTIONS. 197 
 
 proved, the same relief will be given (q). A guardian is 
 not suffered to set up his trouble in the execution of the 
 guardianship as a consideration for such a gift {q) . The 
 case against the guardian is strengthened if his accounts 
 bave not been closed, and the donation takes place while 
 be still retains the ward's property in his hands (r) . 
 
 But where the authority and influence of the gu,ardian 
 have ceased, equity will not set aside a reasonable gift 
 made to him (s) . 
 
 Following the analogy of the rule which considers 
 persons in loco parentis as under the same restrictions as 
 parents, the principle applies as well to a person who has 
 assumed the office and functions of a guardian as to a 
 guardian legally appointed (;f). But in the absence of 
 any such special relationship, the fact of infancy does not 
 invalidate a gift (u) . 
 
 iii. Trustee and cestui que trust. 
 
 The relationship of trustee and cestui que trust is Trustee and 
 within the same doctrine as fully with respect to donations 'thrust. ^"^ 
 as we have seen that it is with respect to contracts (x), 
 and a mortgagee being a trustee for his mortgagor is 
 included (x) . i 
 
 iv. Legal adviser and client. 
 
 A solicitor has always been disabled in equity from Legal adviser 
 taking any gifts from bis client, pending a suit, or at any 
 time while the relationship subsists, beyond his proper 
 remuneration (y) ; and a barrister has been held to be 
 within the same rule (z) . The presumption under such 
 
 (?) Hylton V. H., 2 Ves. sr. D. 603; 51 L. J. Cli. 879. 
 
 547,549.' (x) P. 108 ff.; Ban-eft v. 
 
 (r) Plerse v. Waving, 1 P. Hartley, 2 Eq. 789. 
 
 Wms. 121, n. ; 2 Ves. sr. 549, (y) Tompsonv. JudfjejZldT&yr. 
 
 xsited. 306; James v. Kerr, 40 Ch. D. 
 
 (s) Hatch V. H., 9 Ves. 296. 449; 58 L. J. Ch. 355; Willis v. 
 
 (0 Griffin V. He Veulle, 1 P. Barron, (1902) A. C. 271; 71 
 
 Wms. ISi, n.; 14 Ves. sr. 279, L. J. Ch. 609. 
 
 ■cited. (c) Broun v'. Kennedy, 33 
 
 (m) Taylor v. Johnston, 19 Ch. Beav. 133; 4 De G. J. & S. 217.
 
 198 
 
 FRAUD. 
 
 circumstances is in favour of undue influence; and though 
 this presumption may be rebutted, the onus is on the- 
 solicitor. The independent advice of a different solicitor- 
 is material in this behalf, but even in this case the transac- 
 tion is jealously regarded (a). In a case in which a client 
 acted without independent advice, a gift to a solicitor's 
 wife was declared void as being within the rule (6). Any 
 agreement by which a client undertakes to pay his solicitor 
 a gross sum for past services is closely scrutinised, and 
 will not be held binding unless made in writing (c). Such 
 contracts in respect of future business are now authorized 
 by 33&34 Vict. c. 28, and 44 & 45 Vict. c. 44; subject 
 nevertheless to taxation (d) . 
 
 Doctor and 
 patient. 
 
 V. Medical adviser and patient. 
 
 The relation between a doctor and his patient has been 
 considered sufficient to support a claim for relief against a 
 voluntary gift, on the ground of undue influence (e). 
 
 Priest and 
 
 penitent. 
 
 vi. Religious advisers. 
 
 The above-cited case of Kuguenin v. Baseley (/) is- 
 sufficient authority to show that a clergyman or other 
 religious adviser is within the principle under considera- 
 tion. 
 
 Fiduciary 
 
 lelations 
 
 generally. 
 
 vii. Other relations of confidence. ' ' 
 
 The jurisdiction of equity in respect of donations under 
 undue influence is by no means confined to cases in which 
 there is some certain and definite relationship such as those 
 we have been considering. Any circumstances which give 
 
 («) Wright V. Carter, (1903) 
 1 Ch. 27; 72 L. J. Ch. 138. 
 
 (b) Liles V. Terry, (1895) 2 
 Q. B. 679; 65 L. J. Q. B. 34. 
 
 (e) Re Russell, 30 Ch. D. 114. 
 
 Id) See Re Palmer, 45 Ch. D. 
 291; 59 L. J. Ch. 575; Re Frape, 
 (1893) 2 Ch. 284; 62 L. J. Ch. 
 473. 
 
 (e) Bent V. Bennett, 4 My. & 
 Cr. 269. 
 
 (/) Sup. p. 198. And see All- 
 card V. Skinner, 36 Ch. D. 145; 
 56 L, J. Ch. 1052; Nottidge v. 
 Prince, 2 Giff. 246; Morley v. 
 Loughnan, (1893) 1 Ch. 736; 62 
 L. J. Ch. 515.
 
 INEQUITABLE AND UNCONSCIENTIOUS TRANSACTIONS. 199 
 
 one person the power of exercising pressure on another 
 may suffice to substantiate a claim for equitable relief. 
 In fact, just as the Court has refused to define fraud 
 itself, so it has refused to commit itself to an enumeration 
 or description of the persons within the doctrine now under 
 consideration {g) . 
 
 Thus the principle has been applied as between husband 
 and wife (h), but this application of it would seem to be 
 doubtful (i) . A gift from an engaged lady to her suitor 
 is liable to bo carefully scrutinised, and to sustain it the 
 gentleman must be prepared to show that it was made 
 without undue solicitation or pressure {k) . A professor of 
 spiritualism has also been considered to stand in a position 
 of undue authority with respect to a believer in his art, 
 and a gift made to him was set aside (Z). The same 
 rule was applied in the case of a person claiming the 
 benefit of a settlement from his deceased wife's sister on 
 his going through the form of marriage with her('m). 
 The relation of mother and son would seem to be less 
 potent in raising the presumption (n) . 
 
 The next question is, what generally amounts to undue What is 
 influence; and this, again, is a matter in which no formal influence? 
 definition can be drawn. It is decided by the .Court in 
 its discretion on the circumstances of each particular case. 
 But there are certain circumstances frequently found in Circumstances 
 cases of this class which weigh heavily with the Court in presumpfion.^ 
 the exercise of this discretion, and serve to illustrate the 
 mode of reasonino: on which relief is granted. 
 
 (^) Dent V. Bennett, 4 My. & Stuart, (1911) A. C. 120; 80 L.J. 
 
 Cr. 269. P. C. 75. 
 
 (/i.) Turnhull v. Bavh, (1902) (^.) Page v. Home, 11 Beav. 
 
 A. C. 429; Willis v. Barron, 227; Corbett v. Broch, 20 Beav. 
 
 (1902) A. C. 271; affirming S. C, 524 
 
 (1900) 2 Ch. 101; 69 L. J. Cli. /,. j n a t^ rkk 
 
 >oo (0 -Li/on V. Home, 6 Lq. 655. 
 
 (0 l<!edbrj v. iV., 5 De G. & S. ("0 Coiilson v. Allison, 2 De 
 
 377; Howes v. BisJwp, (1909) 2 G. F. & J. 521. 
 
 K. B. 390; 78 L. J. K. B. 796. (») Coomber v. C, (1911) 1 
 
 See also Bank of Montreal v. Ch. 174, 723; 80 L. J. Ch. 399.
 
 ^00 
 
 FRAUD. 
 
 Absence of 
 independent 
 advice ; 
 
 false 
 
 statement of 
 consideration ; 
 
 absence 
 of power of 
 revocation ; 
 
 improvidence 
 
 Duress. 
 
 Fraud 
 
 prevails 
 
 against 
 
 volunteer 
 
 claiming 
 
 through the 
 
 donee. 
 
 Thus the absence of any disinterested or professional 
 advice on the side of the plaintiff, especially where there 
 is a confidential relation between the parties, or consider- 
 able disparity between their powers of judgment and 
 means of knowledge, gives rise to a strong suspicion of 
 fraud (o) . So also a fictitious statement of consideration 
 is a material indication of an undue advantage having 
 been taken (p) . The absence of a power of revocation in 
 a voluntary settlement (q), and even the mere improvidence 
 of the transaction (r), are of influence in the same direc- 
 tion. But such circumstances as these will not, in the 
 absence of some such relation of confidence as those above 
 enumerated, always dispense with the necessity of the 
 plaintiff's explicitly proving the fact of undue influence (s) . 
 It at least requires a strong case where no such relation 
 exists to throw upon the donee the burden of proving the 
 innocence of the transaction {t). 
 
 A gift as well as a contract made under circumstances 
 of duress, such as threats of prosecution or other forms of 
 intimidation, will clearly be set aside {u) . 
 
 As a rule, where a gift is tainted with fraud, the trans- 
 action cannot be sustained on behalf of a third person 
 claiming through the donee any more than by the donee 
 himself (*x) . But it is otherwise in the case of a bond fide 
 purchase from the donee without notice of the fraud. A 
 person so acquiring the property having an equal equity, 
 •with the donor, may, in accordance with the usual principle,; 
 shelter himself behind his legal title and possession (^) . 
 
 (o) lihodes V. Bate, 1 Ch. 252; 
 Dent V. Bennett, 4 My. & Cr. 
 269, 273. 
 
 {p) Hawes v. Wyatt, 3 Bro. 
 C. C. 156; Shar]) v. Leach, 31 
 Beav. 491. 
 
 {q) Coutts v. Achivorth, 8 Eq. 
 558; Poivell v. P., (1900) 1 Ch. 
 243; 69 L. J. Ch. 164; but see 
 Henry v, Armstrong, 18 Ch. D. 
 668. 
 
 (r) Harvey v. Mount, 8 Beav. 
 439. 
 
 (s) Hunter v. Atkins, 3 My. & 
 K. 113; ToJcer v. T.,Z\ Beav. 629. 
 
 (f) Beanland v. Bradley, 2 Sm. 
 & G. 339; Hoghton v. H., 15 
 Beav. 278, 299; Hall v. H., 8 Ch. 
 430. 
 
 (m) Evans v. Llewellyn, 1 Cox, 
 333, 340; Bayley v. Williams, 4 
 GifP. 638; L. R. 1 H. L. 200. 
 
 (.-c) Bridgman v. Green, 2 Ves. 
 sr. 627; Maitland v. Irving, 15 
 Sim. 437; Vane v. V ., 8 Ch. 383. 
 
 (y) Blackie v. Clark, 15 Beav.
 
 FRAUDS ON PUBLIC POLICY. 
 
 201 
 
 The consideration of undue influence employed in Undue 
 
 , . . in- • 1 • 1 • influence in 
 
 obtaining testamentary benefits is not witnm the purview obtaining 
 •of Courts of equity; but it may here be mentioned that a '^^^ 
 stronger case is required to set aside a will obtained by 
 undue influence than is needed for the avoidance of a gift 
 inter vivos. Thus a solicitor who has himself prepared a 
 will 'may take a legacy therein, unless there is evidence of 
 mistake, or of some misapprehension caused by him (2). 
 In the absence of similar evidence a legacy to a Roman 
 Catholic confessor has been sustained (a) . In the case, 
 however, of a bequest to a medical attendant under some- 
 what suspicious circumstances, it was said that the onus of 
 proof lay heavily on him to maintain the validity of the 
 will (&•); and it has been laid down generally that though 
 persuasion is not unlawful, pressure, of whatever character, 
 if so exerted as to overpower the volition without con- 
 vincing the judgment of the testator, will constitute undue 
 influence, though no force is either used or threatened (c) . 
 In short, it must be shown that the testator was coerced 
 to do what he did not deliberately intend to do. The 
 mere proof that he acted under an unusual or inofficious 
 or immoral motive will not suffice {d) . 
 
 III. Frauds so considered from their Inconsistency ivith 
 the Policy of the Law. 
 
 The third species of fraud in our enumeration comprises 
 those cases which fall under the disapprobation of equity 
 on account of their inconsistency with general public policy 
 or with some artificial policy of the law. Under this head 
 
 595; Corbett v. Brocl-, 20 Beav. (i) Ashwell v. Lomi, 2 P. & 
 
 524. M. 477. 
 
 , . „. , ,„ ^, .„ . (c) Hall V. H., 1 P. & M. 481. 
 
 (2) nmdson v. Weatherill, 5 ^/^ Wi„ffrove v. W., 11 P. D. 
 
 De G. M. & G. 301. g^^ approved in Baudains v. 
 
 {a) Parfitt v. Laioless, 2 P. & Richardson, (1906) A. C. 169; 75 
 
 M. 462. L. J. P. C. 57.
 
 202 
 
 FKAUD. 
 
 might he appropriately considered almost the whole subject, 
 of unlawful agreements; but it will here suffice to deal in 
 detail with those only in which the Courts of equity are 
 particularly concerned. 
 
 Fraud relative 
 to marriasre. 
 
 Conditions in 
 restraint 
 of marriage. 
 
 Condition 
 precedent or 
 subsequent. 
 
 1. Transactions respecting^ marriage. 
 
 (1.) One important class of cases coming under this 
 head consists of those in which the action of one or more 
 of the parties concerned is discountenanced on account of 
 its mischievous interference with the policy of the law 
 respecting marriage . 
 
 Marriage is encouraged by the law, and the marriage 
 contract should above all others be the result of full and 
 free consent. Generally speaking, then, transactions which 
 tend to restrain or prevent marriage, or which tend to the 
 deception of one or both of the parties thereto, are treated 
 as against public policy. 
 
 Transactions in restraint of marriage are either in the 
 form of conditions attached to voluntary gifts, or of the 
 nature of contracts. 
 
 Conditions in restraint of marriage were the subject 
 of elaborate argument in the case of Scott y. Tyler (e). 
 In considering their effect, it is necessary to advert to 
 certain consequences which spring from the fact that in 
 dispositions of real property the Courts are guided by 
 the principles of common law; whereas in bequests of 
 personalty the rules of ecclesiastical law, derived from the 
 law of Eome, form the basis of our jurisprudence. This 
 distinction alone accounts for the different treatment of 
 certain conditions according to whether they appear in 
 dispositions of real or of personal property. 
 
 The distinction also between conditions precedent and 
 conditions subsequent must be observed. In the former 
 case the estate does not vest in the beneficiary until the 
 condition is complied with. Thus the condition opens the- 
 
 (e) 2 Bro. C. C. 431; 2 Dick. 712; 1 W. & T. L. C. 535, cd. 7.
 
 FRAUDS ON PUBLIC POLICY. 
 
 203 
 
 Conditions 
 precedent. 
 
 In gifts of 
 
 of personalty. 
 
 door to a benefit, and is therefore entitled to a favourable 
 constructiou, and to support if at all reasonable. But a 
 condition subsequent only operates after the estate has 
 vested in the beneficiary; and its effect being thus penal, 
 it is to be strictly construed. The difference in effect 
 of these two cases will best be seen by the aid of thq 
 illustration afforded by actual decisions. 
 
 First, as to conditions precedent. 
 
 A condition precedent attached to a voluntary disposi- 
 tion of land is illustrated by cases in which a devise is land. 
 made, or a portion directed to be raised out of land, on the 
 condition of the beneficiaries marrying only with the con- 
 sent of certain persons. Such a condition is valid, and iio 
 estate vests until it is complied with (/) . In this case, -fn gifts 
 moreover, the rules applicable to gifts of personalty are 
 the same {g) . 
 
 In considering conditions subsequent, it is necessary Conditions _ 
 to distinguish betlween a condition imposing a particular particular 
 restraint and one Avhich would have the effect of re- i^estraint. 
 straining marriage generally. Whether the property 
 concerned be real or personal, it is permissible to bestow 
 it subject to a condition subsequent prohibiting marriage 
 with a particular person (h), or with a native of a parti- 
 cular country (i), or belonging to a particular religious 
 body (k) ; or marriage may be forbidden until the attain- 
 ment of a reasonable age, which is not restricted to 
 majority (l). The condition was upheld where there was 
 a clause of forfeiture in the event of the marriage of a 
 daughter without the consent of named persons, and there 
 was a gift over on the happening of this event (m) . 
 
 (/) Fry V. Porter, 1 Ch. Ca. 
 138; 1 Mod. 300; Harveij v. 
 Aston, 1 Atk. 361. 
 
 ig) Scott V. Tijler, 2 Bro. C. C. 
 431; Younqe v. Furze, 8 De G. 
 M. & G. 756; Malcolm v. O'Cal- 
 laghan, 2 Madd. 349. 
 
 (7i) Jervois v. Duke, 1 Vern. 19. 
 
 (i) Perrin v. Lyon, 9 East, 170'. 
 
 (ic) JDuggan v. Kelly, 10 Ir. 
 
 Eq. Eep. 295. 
 
 (J) Stackpole v. Beaumont, 3 
 Ves. 89; Yoiinge v. Furze, sup.; 
 Hampton v. Nourse, (1899) 1 Ch. 
 63; 68 L. J. Ch. 15. 
 
 (;«) Whiting v. De Riitzen, 
 (1905) 1 Ch. 96; 74 L. J. Ch. 
 207; following Dashwood v. 
 Bulkeley, 10 Ves. 230; Lloyd v. 
 Branton, 3 Mer. 108; and see Re
 
 204 
 
 FRAUD. 
 
 In general 
 
 restraint 
 
 of gifts 
 
 of personalty. 
 
 Limitation 
 over on 
 marriasre. 
 
 In gifts 
 
 of real estate. 
 
 Second 
 marriages 
 not within the 
 rule. 
 
 Contracts in 
 restraint 
 of marriage. 
 
 Contracts to 
 marry, 
 
 Conditions subsequent in general restraint of marriage 
 attached to a gift of personal property are prima facie 
 void, and the gift remains unaffected thereby (n) . 
 
 But, where the gift is to a woman, and the intention 
 of the donor appears to be not to restrain marriage, but 
 merely in good faith to make a provision for her as long 
 as she remains single, a limitation of personal property 
 until marriage has been sustained (o) . 
 
 A condition subsequent in general restraint of marriage, 
 attached to .^ gift of real estate, is, it seems, valid (p); 
 a fortiori if in this case the intention appears to be to 
 create a provision for a woman until marriage {q) . 
 
 It must be observed that conditions in general restraint 
 of marriage are always valid in gifts to widows, and are 
 indeed matters of every-day occurrence (r) ; and this not 
 only in the case of a bequest by a testator to his own 
 widow, but also in a gift to the widow of another person (s). 
 A gift over on the second marriage of a man has also been 
 sustained, (t) . 
 
 (2.) Contracts in restraint of marriage are, on the same 
 principles as conditions to that effect, considered fraudu- 
 lent and void. 
 
 Thus, where a woman gave a bond conditioned to be 
 paid in case she married again, it was on her marriage 
 ordered to be delivered up (u). 
 
 Similarly, a contract to marry a particular person who 
 is not bound by a corresponding obligation is invalid as 
 
 Wright, Mott v. Issott, (1907) 1 
 Ch. 231; 76 L. J. Ch. 89. 
 
 (w) See Morley v. Rennolclson, 
 2 Ha. 570; (1895) 1 Ch. 449; 64 
 Li. J. Ch. 485; Jenner v. Turner, 
 16 Ch. D. 185; Bellairs v. B., 18 
 Eq. 510. 
 
 (o) Webb V. Grace, 2 Ph. 701 ; 
 Heath v. Lewis, 3 De G. M. & 
 G. 954. 
 
 (p) Harvey v. Aston, 1 Atk. 
 380, note. 
 
 (<7) Jones v. J., 1 Q. B. D. 279. 
 
 (r) Craven v. Brady, 4 Eq. 
 209; 4 Ch. 206. 
 
 (s) Charlton v. Coombes, 11 
 W. R. 1038; Newton v. Marsden, 
 2 J. & H. 356. 
 
 (J,) Allen V. JacJcson, 1 Ch. D. 
 399. For a concise summary of 
 these rules respecting conditions, 
 see Pollock on Contracts, p. 336, 
 6th ed. 
 
 (m) Baker v. White, 2 Vern. 
 215.
 
 FRAUDS ON PUBLIC POLICY. 205 
 
 opposed to public policy (x). A contract by which per- 
 sons are mutually bound to marry is valid at law (?/), but 
 will be set aside in equity if it amounts to a fraud upon a 
 parent or person i?i looo 'parentis, as in Woodhouse v. frauds on 
 Sheple^ {z), where the father of the lady was known to P-^rents, &c. 
 be opposed to the match, and the suitors clandestinely 
 entered into mutual bonds to marry each other after his 
 death, under a penalty of £600. 
 
 Transactions known as marriage brokage contracts, in Marriage 
 which a person undertakes for a stipulated reward to contr^ts 
 bring about a marriage, are void as frauds upon public 
 policy, and as necessarily involving the deception of one 
 of the parties to the marriage or of the parents (a). Such 
 contracts being void are incapable of confirmation (6). are void; 
 A recent decision has determined that the contract is 
 equally void whether the design is to bring about a mar- 
 riage with a particular person, or to negotiate marriage 
 generally, and that money paid under such a contract may 
 be recovered back (c) . 
 
 On the same principle, every contract by which a parent so contracts 
 or guardian seeks to obtain any remuneration for pro- to deceive one 
 moting or consenting to the marriage of his child or ward °* ^^® parties, 
 is void {d) . And generally all contracts upon a treaty 
 of marriage which tend to deceive or mislead one of the 
 parties to it or their relatives are deemed fraudulent and 
 void. Thus, a security given by a son without the privity 
 of his parents to return part of the portion of his wife was 
 held to be invalid (e); and w^here a man, on the treaty 
 for the marriage of his sister, lent her money, in order to 
 increase her apparent portion, and she gave a bond for 
 
 (x) Key V. Bradshaw, 2 Vern. (c) Hermann v. Charlesworth, 
 
 102. (1905) 2 K. B. 123; 74 L. J. 
 
 (y) Cock V. Richards, 10 Ves. K. B. 620; and see Kitig v. Burr, 
 
 429, 438. 3 Mer. 693; Smith v. Bruning, 
 
 (z) 2 Atk. 535. 2 Vern. 392. 
 
 («) Roberts y R., 3 P. Wms. ^^^ j.^^^ ^_ ^^^ 2 Vern. 588; 
 
 P 'C 76 V. Thymic, 9 Show. jj^Juton v. Mohun, ib. 652. 
 
 (6) Cole V. Gibson, 1 Ves. sr. (e) Turton v. Benson, 1 P. 
 
 503. Wms. 496.
 
 206 
 
 FRAUD. 
 
 Attempts to 
 separate 
 husband and 
 wife. 
 
 Agreements 
 to influence 
 testators. 
 
 Contracts in 
 restraint of 
 trade. 
 
 its repayment, this bond was decreed to be given up (/) . 
 In such transactions as these, relief will be given, even on 
 the suit of a particeps criminis, the public interest causing 
 a departure from the usual rule that a plaintiff in equity 
 must come with clean hands. 
 
 (3 .) With equal or greater reason, any attempts to effect 
 a separation between a husband and wife through the 
 means of a conditional gift, are discountenanced. If a 
 bequest is made on condition of such a separation, the con- 
 dition is absolutely void, and the bequest remains un- 
 fettered (^f) . In a more recent case, where an annuity 
 was conditioned on a married woman continuing to live 
 apart from her husband, the Court refused to give effect 
 to the condition after a reconciliation had taken place (h) . 
 
 2. On a somewhat analogous principle, agreements to 
 use influence with a testator in favour of a particular person 
 or object are considered void (i). The doctrine of estoppel 
 by representation does not so apply as to compel a testator 
 to make good a representation of his intention to confer a 
 benefit by his will (k) . But an express contract so to do, 
 supported by valuable consideration, has been otherwise 
 treated (Z), 
 
 3. Another class of transactions void as contravening 
 the policy of the law are contracts in general restraint of 
 trade. This part of the subject does not indeed present 
 for consideration any principles distinctively equitable, 
 the Courts of law having long been as jealous as those of 
 equity of any agreement tending to promote monopolies 
 or discourage industry and just competition (m). Equity 
 
 (/) Gale V. Lindo, 1 Vern. 475. 
 
 (£?) Tennant v. Brail, Toth. 
 141; Brow)i v. Peck, 1 Ed. 140. 
 
 (/i) Wren v. Bradley, 2 De G. 
 & Sm. 49; and see Traff^ord v. 
 Maconochie, 39 Ch. D. 116; 57 
 L. J. Ch. 936. 
 
 (() Bebenham v. Ox, 1 Ves. sr. 
 276. 
 
 (k) Maddison v. Alderson, 8 
 App. Cas. 467, 473. 
 
 (/) Be Bed v. Thomson, 3 Beav. 
 469; 12 CI. & F. 45; Loffus v. 
 Maw, 3 Giff. 592; Sijnge v. 8., 
 (1894) 1 Q. B. 466; 63 L. J. 
 Q. B. 202. 
 
 (?«) See Bunn v. Grey, 4 East, 
 190; Mumford v. Gething, 7 C. B.
 
 FRAUDS ON PUBLIC POLICY. 20't 
 
 also rocognises the same exceptions as prevailed at law, 
 to the effect that special and limited restraints are lawful; 
 for instance, a restraint against carrying on business at 
 a particular place or within a defined area, or with certain 
 specified persons, or for a limited time. In all such cases 
 the Court will judge of the reasonableness or otherwise of 
 the restriction in view of the particular circumstances of 
 the case in question, and support or subvert the contract 
 accordingly (71) . A restraint unrestricted in area was held 
 not unreasonable in the case of a business in arms and 
 ammunition (0) . The question depends on whether the 
 business complained of is effectually competitive with 
 that of the plaintiff, and whether the restraint imposed is 
 greater than is reasonably required for his protection (p) . 
 In determining this the Court "will, if necessary, sever 
 the contract, enforcing it so far as reasonable but no 
 further (q) . Similarly, a person may sell the secret of a 
 particular process of business and restrain himself from 
 using it in future (r) . And even apart from a specific 
 contract an employe may be restrained from abusing the 
 confidence reposed in him by disclosing secrets learned in 
 his employment (s) . A contract to that effect is implied 
 
 (N. S.) 305; Leather Cloth Co. (0) 3Iaxim-Nordenfeldt Co. v. 
 
 V. Lorsont, 9 Eq. 345; and the Nordenfeldt, (1894) A. C. 535; 
 
 leading authority of Mitchel v. 63 L. J. Ch. 908. 
 
 Reynolds, 1 P. Wms. 181; 1 Sm. {p) Drew v. Guy, (1894) 3 Ch. 
 
 L. C. 406. 25; 63 L. J. Ch. 547; Badische 
 
 (w) Ehrmann v. Bartholomew, Anilin Co. v. Schott, (1892) 3 Ch. 
 
 <1898) 1 Ch. 671; 67 L. J. Ch. 447; 61 L. J. Ch. 698; Perls v. 
 
 319; Robinson v. Heuer, (1898) SaaJfield, (1892) 2 Ch. 149; 61 
 
 2 Ch. 451; 67 L. J. Ch. 644; L. J. Ch. 409. 
 
 Vndei-wood v. Barker, (1899) 1 (<?) Rogers v. Maddocks, (1892) 
 
 Ch. 301; 68L. J. Ch. 201; //aywes 3 Ch. 346; 62 L. J. Ch. 219; 
 
 V. Doman, (1899) 2 Ch. 13; 68 Barowski v. Goldstein, (1896) 1 
 
 L. J. Ch. 419; Mills v. Dunham, Q. B. 478. 
 
 (1891) 1 Ch. 576; 60 L. J. Ch. (r) Bryson v. Whitehead, 1 S. 
 
 362; Evans v. Ware. (1892)3 Ch. & S. 74; Harms v. Parsons, 32 
 
 502; 62 L. J. Ch. 256; Leetham Beav. 328. 
 
 ^ Sons v.Johnstone-JFhite, (1901) (s) Mern/iceather v. Moore, 
 
 1 Ch. 322; 76 L. J. Ch. 304; (1892) 2 Ch. 518; 61 L. J. Ch. 
 
 Leng v. Andrews, (1909) 1 Ch. 505; Robb v. Green, (1895) 2 
 
 763; 78 L. J. Ch. 80; Mawn v. Q. B. 1; 64 L. J. Q. B. 593; 
 
 Provident Clothing Co., (1913) Lamb v. Evans, (1892) 3 Ch. at 
 
 A. C. 724; 82 L. J. K. B. 1153. p. 468; 61 L. J. Ch. 681.
 
 208 
 
 FRAUD. 
 
 Agreements 
 prejudicial to 
 the adminis- 
 tratiou of 
 government 
 and justice, 
 to influence 
 officers of 
 State, 
 
 buying and 
 selling offices. 
 
 from the relation itself. An agreement by a trader with a 
 purchaser that the goods shall not he sold under certain 
 specified prices docs not appear to he impeachahle (t). 
 
 4. Another class of transactions which here invites 
 attention comprises those discountenanced on account of 
 their tendency to interfere with the proper administration 
 of government and of justice. Agreements to corrupt or 
 improperly to influence any officer of State, whether execu- 
 tive or judicial, are obviously void; and so suspicious is 
 the law of everything which threatens danger of this kind, 
 that any agreements which have an apparent tendency in 
 that direction are equally held void, though an intention to 
 use unlawful means be disclaimed (u) . 
 
 Similarly, apart from the provisions of statutes, which 
 are very comprehensive in their extent, agreements for the 
 buying, selling, or procuring of public offices are wholly 
 void as well at law as in equity (x). Other instances of 
 contracts deemed illegal on similar principles are referred 
 to under the head of Injunctions (|/) . 
 
 IV. Frauds on Third Fersons. 
 
 The last species of fraud which remains to be considered 
 comprises frauds so regarded from their inequitable inter- 
 ference with the private rights of third persons not parties 
 to the fraudulent transaction. 
 
 These are of two classes: first, where such third person 
 is deceived by the misrepresentation or concealment of one 
 of the parties to the transaction; secondly, the fraudulent 
 exercise of powers for purposes other than those intended 
 by the donor of the power. 
 
 (^) Elliman v. Carrington, 
 (1901) 2 Ch. 275; 70 L. J. Ch. 
 577. 
 
 (m) Pollock, Cont. 309 ff., 6tb 
 ed. ; Egerton v. Brownlow, 4 
 H. L. 1—250. See Prince v. 
 
 Eaivorth, (1905) 2 K. B. 768; 75 
 L. J. K. B. 92. 
 
 {x) Harrington v. Bii Ghastel, 
 2 Swanst. 159, n.; HarUveU v. 
 n., 4 Ves. 811. 
 
 (y) Inira, p. 795.
 
 FRAUDS ON THIRD PERSONS. ^09 
 
 1. Deception of Third Persons. 
 
 The consideration of this subject brings before us again Deception of 
 questions very similar to those dealt with under the first 
 head, or actual fraud; and generally speaking the charac- 
 teristics of misrepresentation and concealment there ex- 
 hibited arc equally applicable here. There are, however, 
 some important cases touching the particular application 
 of them in the circumstances now under view, to which it 
 behoves us to advert. 
 
 Both misrepresentation and concealment may be treated by fraudulent 
 as fraudulent, not only by a party to the transaction who ^tlon^ ^ 
 is deceived, but also in some circumstances by third parties 
 who suffer thereby. 
 
 As to misrepresentation as affecting third parties, the Rules in 
 folloAving rules were laid down by Lord Hatherley in ci-osskey. 
 Barry v. Crosskey (z): — 
 
 (1.) " Every man must be held responsible for the con- 
 " sequences of a false representation made by him to 
 " another, upon which a third person acts, and so acting is 
 " injured or damnified — provided it appear that such false 
 "representation was made with the intent that it should 
 "be acted upon by such third person in the manner that 
 "occasions the injury or loss" {a). 
 
 (2.) "The injury must be the immediate and not the 
 remote consequence of the representation thus made " (&). 
 
 But in the absence of a contractual obligation, mere 
 negligence or forgetfulness (as in Slhn v. Croucher (c)), 
 does not now suffice to give a right of action to the third 
 person (d) . 
 
 (z) 2 J. & H. 1, 22. Q. B. 372; 65 L. J. Q. B. 302, 
 
 (a) See Angus v. Clifford, distinguishing Peek v. Gurney, 
 
 (1891) 2 Ch. 449; 60 L. J. Ch. L. R. 6 II. L. 377. 
 
 443; Slim v. Croucher, 1 De G. ^ s r,,,^ 
 
 F. & J. 518. ^''^ '^"^• 
 
 (6) See also Att.-Gen. v. Ray, (d) Le Lievre v. Gould, (1893) 
 
 9 Ch. 397; Cann v. Wilson, 39 1 Q. B. 491; 62 L. J. Q. B. 353: 
 
 Ch. D. 39; 57 L. J. Ch. 1034; Low v. Bouverie, (1891) 3 Ch. 
 
 Andrews v. Mockford, (1896) 1 82; 60 L. J. Ch. 594. 
 
 s. 14
 
 210 
 
 FRAUJ). 
 
 By conceal- 
 ment. 
 
 Savage v. 
 Fotter. 
 
 Denying in- 
 cumbrances. 
 
 Purchaser 
 
 misled 
 
 iu ignorance. 
 
 As to concealment us injuriously affecting third parties, 
 a leading authority is Sdvage v. Foster (e), which decided 
 that a person knowing his own title, and not giving notice 
 of it to a purchaser, could not be allowed to set it up 
 against the purchaser; and that the coverture of the 
 person was no protection to the transaction. 
 
 In this case a married woman, knowing herself to be 
 tenant in tail of property subject to her mother's life 
 interest, upon the marriage of her half-sister, induced her 
 mother to convey the lands to her for life, with remainder 
 to the intended husband in fee. The husband under this 
 title, and with no notice of the tenancy in tail, sold to a 
 hcmd fide purchaser. It was held that the married woman 
 could not set up her title against the purchaser, and that 
 her right was extinguished. 
 
 In this case there was active interposition to induce the 
 conveyance; but the same principle has been applied 
 where a person has simply stood by and permitted others 
 to deal with the property in a manner inconsistent with 
 his rights. If, knowing of such a transaction, he does 
 not give the purchaser notice, he cannot afterwards avoid 
 the purchase (/) . 
 
 So, if upon inquiry being made, a person denies the 
 existence of an incumbrance, he cannot afterwards set it up 
 against the purchaser ((7). But in this case mere silence 
 has been held not sufficient to avoid the incumbrance, 
 unless at least inquiry is made (h). The distinction 
 between this and the case of an owner lying by is plain, 
 since there is nothing inconsistent in the sale of property 
 subject to an incumbrance, and the incumbrancer might 
 have assumed that the transaction was of that character. 
 
 Even if a person in ignorance of his rights misleads a 
 purchaser, the purchaser will be relieved against him if 
 the circumstances were such that he ought to have known 
 
 C^) 9 Mod. 35. 
 
 (/) Jlobbs V. Norton, 1 Vern. 
 1.36. 
 
 {g) Ihhoiaon v. Rhodes, 2 Vern. 
 554. 
 
 {h) Osborn v. Lea, 9 Mod. 96.
 
 FRAUDS ON THIRD PERSONS. 211 
 
 his rights; as where a father stands by and allows his son 
 to dispose of a fee simple, supposing the fee was in the 
 son, while in fact it was in the father himself, subject to 
 the son's life estate (i). 
 
 The same principle applies to a case in which a person Suffering 
 stands by and suffers another to lay out money on his oxpeiided in 
 property, supposing it to be his own. At law he could mistake, 
 still have asserted his title without making compensation 
 for the improvements; but in equity the person who had 
 so expended money would be entitled to be indemnified 
 either by a pecuniary compensation, or sometimes, as in 
 the case of a lessee under a defective lease, by a confir- 
 mation of his title (fc) . The case is strengthened if there 
 is some fiduciary relation, such as that of agency between 
 the parties (l). 
 
 But a person spending money by mistake upon the 
 property of another has no equity against the owner, if he 
 was ignorant of the expenditure; except in so far that if 
 it is necessary for the owner himself to seek the assistance 
 of equity with respect to the property, he will be required 
 to do equity by making compensation as a condition of 
 obtaining relief (w). And if after notice of an adverse 
 title, a person proceeds to lay out his money, equity will 
 not assist him merely because no active steps have been 
 taken to establish the title (n) . 
 
 On a somewhat similar principle it has been held that 
 where a man procures a contract by representing a certain 
 state of facts, equity will not suffer him by any subsequent 
 act of his own to falsify the representation (o), as, for 
 
 (0 Teasdale v. T.. Sel. Ch. Ca. Harding, 6 Ha. 273; Ramsden v. 
 
 59. Dyson, L. R. 1 H. L. 129, 141. 
 
 (AO Beaufort v. Patrick, 17 (o) Renals v. Coivlis/miv, 11 
 
 Bcav. 60, 75; Price v. Neault, 12 Ch. D. 866; 48 L. J. Ch. 830; 
 
 App. Cas. 110; 56 L. J. P. C. 29. Spicer v. Martin, 14 App. Cas. 
 
 (0 Cawdor V. Lewis, 1 Y. & C. 12; 58 L. J. Ch. 309; Mackenzie 
 
 Ex. 427. V. Childers, 43 Ch. D. 265; 59 
 
 (w) Neesom v. Glarhson^ 4 Ha. L. J. Ch. 188. And see Powell 
 
 97; Willmott v. Barber, 15 Ch. v. Satchell, (1903) 2 Ch. 212; 73 
 
 D. 96. L. J. Ch. 20; Osborne v. Bradley, 
 
 (m) Master of Clare Hall v. (1903) 2 Ch. 446; 73 L. J. Ch. 
 
 14 (2)
 
 212 
 
 FRAUD. 
 
 Coverture or 
 infancy no 
 excuse. 
 
 example, where land is leased on restrictive covenants as 
 to user, on the representation that the adjoining land will 
 be let subject to similar restriction. In order, however, 
 to raise the equity in such a case, it must be proved that 
 both parties derive title under a common vendor, and that 
 that vendor had previously to the respective sales laid 
 out property, including the lands of both, for sale in lots 
 under restrictions consistent only with some general 
 scheme of development, and that the restrictions were 
 intended by him to be, and were, for the benefit of all 
 the lots intended for sale (p) . 
 
 The case of Savage v. Foster (q) shows that coverture is 
 no excuse for such instances of fraud as those we are now 
 considering; it is equally well established that infancy 
 affords no better protection (r) . An infant cannot, it is 
 true, be made answerable in equity any more than at law 
 for a contract which he has made during his minority, on 
 the mere ground that, without any assertion on his part, 
 the other party believed him to be of full age (s) ; but he 
 is not suffered to take advantage of his own wrong (t). 
 
 Powers must 
 be exercised 
 bondjide. 
 
 2. Frauds on powers. 
 
 It is an established principle of equity that a donee of 
 a limited power must execute it bond fide for the end 
 designed. Otherwise the appointment, though good in 
 law, will be held corrupt and void in equity. 
 
 A leading case on this subject is Aleyn v. Belchier («). 
 A power of jointuring was executed in favour of a wife, 
 but with an agreement that the wife should only receive 
 a part of the jointure as an annuity for her own benefit, 
 and that the residue should be applied to the payment of 
 
 49; Piggott v. Stratton, 1 De G. 
 F. & J. 33. 
 
 (jp) ElliHon V. Reacher, (1908) 
 2 Ch. 374; 77 L. J. Ch. 617; 
 affirmed, (1908) 2 Ch. 665. 
 
 (?) 9 Mod. 35. 
 
 (r) Watts V. Cresswell, 2 Eq. 
 Ca. Ab. 515. 
 
 (.s) Stikentan v. Bawson, 1 De 
 G. & Sm. 90. 
 
 {i) Clarke v. Cobley, 2 Cox, 
 173. 
 
 (m) 1 Eden, 132; 2 W. & T. 
 L. C. 308, ed. 7.
 
 FRAUDS ON POWERS. ^1'^ 
 
 the husband's debts. It was held that this agreement was 
 a fraud upon the power, and the execution was set aside, 
 except so far as related to the annuity. 
 
 The appointor, in exercising such a power, must act 
 mith good faith and sincerity, ami icith an entire and 
 single view to the real purpose and object of the 
 power. He cannot carry into execution any indirect 
 object, or acquire any benefit for himself either directly 
 w indirectly {x) . And though the donee of a limited 
 poicer may validly release it, he may not do so fraudu- 
 lently any more than he can appoint fraudulently (y) . 
 
 Such is the general principle; and it includes cases in 
 which there is not, as well as those in which there is, an 
 antecedent agreement with the appointee to effect pur- 
 poses not within the scope of the power; and as well to cases 
 in which a benefit is sought to be attained for third parties 
 foreign to the power, as those in which the appointor 
 seeks to benefit himself. We may thus illustrate its 
 application by four classes of cases. 
 
 (1.) Where there is an antecedent agreement. Antecedent 
 
 traudulent 
 (i.) For a benefit to the appointor himself. agreement. 
 
 A frequent instance of this is where a father has a ^-^q^^^q^^^^ 
 power of appointment among children, and he bargains 
 with some of them for some benefit for himself, e.g., 
 the payment of his debts in consideration of the appoint- 
 ment in their favour. Such an appointment is deemed 
 fraudulent and void, and the persons disappointed thereby 
 are entitled to be put in the same position as if it had 
 not been exercised (z) . The same was held where the 
 appointor bargained that the appointed fund should be 
 lent to him (a), and also where the appointment was exer- 
 
 («) Portland v. Topham, 11 (2) Farmer v. Martin, 2 Sim. 
 
 H. L. 32; Re Cohen, Brookes v. 502; Re Kirwan's Tr., 25 Ch. D. 
 
 Cohen, (1911) 1 Ch. 37; 80 L.J. 373; 52 L. J. Ch. 952; Bridger 
 
 Ch. 208. V. Deane, 42 Ch. D. 9. 
 
 (y) Cunyuffhame v. Thurloiv, 
 
 1 R. & M. 436, n.; Harrison v. («) Arnold v. Hardivick, 7 
 
 H., 40 Ch. D. 418. Sim. 343.
 
 214 
 
 FRAUD. 
 
 For the 
 benefit of 
 strangers. 
 
 cised in consideration of an agreement for the purchase of 
 other expectant shares belonging to them (6); and where 
 the appointment was made subject to a condition that a 
 claim against the donee should be released (c) . The 
 doctrine, however, does not absolutely exclude the exer- 
 cise of a poAver of jointuring in pursuance of a bargain 
 between husband and wife; and so long as no part of the 
 jointure itself is under the appointment to be received by 
 any person other than the wife, the fact that the husband 
 stipulates to receive some benefit out of her property does 
 not necessarily vitiate the appointment {d) . 
 
 (ii.) For the benefit of third parties foreign to the 
 power . 
 
 Instances of this are where the donee of a power of 
 appointment among children stipulates for a benefit for 
 his or her wife or husband, as in Carve)' v. Richards (e);, 
 or conversely, where a power of jointuring is exercised 
 under a bargain for the benefit of the children. And, of 
 course, a case in which there is not such close relationship 
 between the parties stands on no better ground (/) . 
 
 Fraudulent 
 desig-n of 
 appointor to 
 benefit 
 himself. 
 
 Fraudulent 
 release. 
 
 (2.) Where there is no antecedent agreement, 
 
 (i.) and the appointor seeks his own advantage. 
 
 Perhaps the most flagrant example of this form of 
 fraudulent appointment is where a father, having a power 
 of raising portions for children, directs a portion to be 
 raised long before it is required, or in favour of a sickly 
 child, with a view to acquiring the money as next of kin 
 of the child on its decease (g) . 
 
 The case already cited of a fraudulent release may also 
 
 (&) Cunynghame v. Anstruther, 
 2 L. R. Sc. & D. 223. 
 
 (c) Perl-Ins v. Baqot, (1893) 1 
 Ch. 283; 62 L. J. Ch. 531. 
 
 {d) Saunders v. Shafto, (1905) 
 1 Ch. 126; 74 L. J. Ch. 110. 
 
 (e) 1 De G. F. & J. 548. 
 
 (/) Birlerj v. B., 25 Beav. 299; 
 
 Whelan v. Palmer, 39 Ch. D. 
 648; 57 L. J. Ch. 784. See and 
 distinguish Re Turner's Settled 
 Estate, 28 Ch. D. 205; 54 L. J. 
 Ch. 690. 
 
 (gf) Hinchinqhroke w. Seymour, 
 1 Bro. C. C. 395; Wellesle;/ v. 
 Mornington, 2 K. & J. 143.
 
 FRAUDS ON POWERS, 215 
 
 be referred to in tliis comiexiou. Where a father released 
 his power as to a part of the fund so as to vest it in him- 
 self as representative of a deceased son, the Court refused 
 to give effect to the release {h). But such a release is not 
 necessarily a fraud on the power by reason of the fact 
 that in the event the father gains a pecuniary advantage 
 thereby {i) . In order to bring it within the principle 
 the power must be coupled with a duty. 
 
 And an appointment is not necessarily invalid because 
 the appointee is an infant (fc), nor because the appointor 
 may derive some benefit from the appointment. If the 
 whole transaction, when looked at together, shows no 
 appearance of mala fides, but only an intention to 
 improve the whole subject-matter of the appointment, or 
 to act in a prudent manner for the benefit of the objects 
 of the power, there is no reason why the appointor should 
 not participate in the improvement (/). So also an 
 ultimate limitation in favour of the appointor may be 
 unobjectionable (m). 
 
 In such cases the burden of proving a corrupt purpose 
 is generally on the person who attempts to impeach the 
 transaction (??), though the circumstances may be so strong 
 against the appointor, for instance, where one appointment 
 has already been set aside for fraud, that this position will 
 be reversed, and the appointor will be required to show the 
 innocence of his act (o) . 
 
 It has been held that the donee of an ordinary power of 
 leasing may not lease to himself alone or jointly with 
 others; nor probably to a trustee for himself {p). 
 
 (h) Cunyncjhame v. Thurlow, Hentij v. Wrey, 21 Ch. D. 332; 
 
 1 R. & M. 436, n. 53 L. J. Ch. 667. 
 
 (0 RadcUffe v. Bewes, (1891) („») Cooper v. (7., 5 Ch. 203. 
 
 2 Ch. 662; 61 L. J. Ch. 186; ^^^^ Campbell v. Home, 1 Y. & 
 Somes V. S., (1896) 1 Ch. 250; p p/ nn,' ' 
 
 65 L. J. Ch. 262. ^ • ^"- ^^*- 
 
 (Jc) Beere v. Ho f mister, 23 (") Topham v. Portland, 5 Ch. 
 
 Beav. 101; Fearon v. Besbrisay, 40, 62; Humphrey v. Olver, 28 
 
 14 Beav. 635. L. J. Ch. 406. 
 
 (T) Re Ruish's Charity, 10 Eq. {p) Boyce v. Edbrooke, (1903) 
 
 5; Roach v. Trood, 3 Ch. D. 430; 1 Ch. 836; 72 L. J. Ch. 547.
 
 216 
 
 FRAUD. 
 
 Benefiting 
 strangers. 
 
 Fraud pre- 
 vails against 
 volunteers 
 nnder the 
 donee. 
 
 (ii.) Where the appointor intends benefit for strangers 
 to the power. 
 
 The intention of the donor of the power in limiting the 
 objects thereof must be strictly followed, and that inten- 
 tion extends as well to the persons entitled in default of 
 appointment as to the objects themselves. To allow the 
 appointor to depart from the terms of the power would be 
 to substitute his purpose for that of the donor in the dis- 
 position of the donor's property {q) . Thus, an appointment 
 amongst children is invalidated by a reservation of a 
 benefit for another person, for instance, a husband, though 
 it may never have been communicated to him (r) . And 
 an attempt to impose upon the appointee a condition not 
 authorised by the power falls within the same principle (s) . 
 Nor does it make any difference that the settlor himself is 
 also the donee of the power; having declared the trusts 
 he must follow them (i^). 
 
 The mere fact that the appointee, soon after the appoint- 
 ment, re-settles the property on other persons, not objects 
 of the power, will not, in the absence of some further 
 evidence of a bargain to that effect, invalidate the appoint- 
 ment. Such re-settlement is quite consistent with perfect 
 good faith in the appointor (u) . 
 
 It is further to be observed that a fraudulent execution 
 of a power will be set aside not only as against the 
 appointor, but also as against persons claiming under him 
 as volunteers, or even as purchasers for valuable considera- 
 tion, unless they acquire the legal estate without notice of 
 the fraud; and where no legal estate has passed there can 
 be no ratification or confirmation of an appointment void 
 in equity (x) . If the purchaser takes the legal estate with 
 
 (^g) Topham v. Portland, 1 De 
 G. J. & S. 517; 11 II. L. 32. 
 
 (r) Re Marsden, 4 Drew. 594. 
 
 (s) B'Ahbadie v. Bizoin, 5 I. K. 
 Eq. 205; Craw^luui v. C, 43 Ch. 
 D. 615; 59 L. J. Ch. 395; Roach 
 V. Trood, Slip. : but see also 
 Wainwright v. Miller. (1P97') 2 
 
 Ch. 255; 66 L. J. Ch. 616. 
 
 (i!) Lee V. Fernie, 1 Beav. 483. 
 
 (u) Rouiledge v. Borril, 2 Ves. 
 jr. 357. 
 
 (ar) Palmer v. JV heeler, 2 Ba. 
 &: Be. 18; Clouti.e v. Storey, 
 (1911) 1 Ch. 18; 80 L. J. Ch. 
 193.
 
 FKAUDS ON POWERS. 
 
 217 
 
 notice, or the mere equitable estate even without notice, 
 he cannot sustain his purchase against the persons entitled 
 in default of appointment (?/.j . But it seems that where 
 he secures the legal "estate, actual notice must be brought 
 home to him; a mere suspicion will not suffice (z). 
 
 An appointment is equally invalid where the consent of Fraudulent 
 certain persons is required, and such consent has been ®"°^®° • 
 obtained by fraud (a), or, on the other hand, has been 
 fraudulently given (h) . 
 
 (3.) The question often arises, whether a fraudulent Partial fraud 
 arrangement as to part 'of the property appointed vitiates vitj^U^ an^ 
 the appointment in toto, or only as to the part to which appointment, 
 the fraud extends. In the leading case of Aleyn v. 
 Belchier we find an authority for the severance of the 
 appointment, a part being sustained, and only the part 
 intended for a cornipt or illicit purpose being set aside (o) . 
 
 Where there is evidence by which the Court can distin- 
 guish what is attributable to an authorised purpose from 
 what is tainted with fraud, the appointment may be 
 severed, part being sustained, and part set aside (<^) . This 
 is the case where, though the two appointments are con- 
 temporaneously made, the proper can be clearly distin- 
 guished from the improper transaction (e). 
 
 (4.) The case of an appointor executing an appointment Contracts 
 in pursuance of a bargain inconsistent with the terms of appointees, 
 the power, and therefore corrupt and invalid, must be dis- 
 tinguished from a case in which the appointees contract 
 with each other to allow some benefit to the appointor. 
 This is frequently the case where a parent has a power to 
 
 (y) Daubeny v. Cockburn, 1 Sim. 502; Arnold v. Hardwick, 
 
 Mer. 626. 7 Sim. 343; Perkins v. Bagot, 
 
 (s) M'Queen v. Farquhar, 11 (1893) 1 Ch. 283; 62 L. J. Ch. 
 
 Ves 467 ^"^1 ; -^^ Hocjhton v. De H., 
 
 r\ c,' e A K 070 (1896) 2 Ch. 385; 65 L. J. Ch. 
 
 (a) kcroggs v. A., Amb. 272, >.-,o v. i n i i 
 
 012 52b; Daubeny v. Cockburn, sup. 
 
 (fZ) Topham v. Portland, 1 De 
 
 (b) Eland v. Baker, 29 Beav. Q. j. & g. 517. n h. L. 32. 
 137. (g) Rowley v. R., Kay, 242; 
 
 (c) S&e also Lane v. Page, Whelan v. Palmer, 39 Ch. D. 
 Amb. 223; Farmer v. Martin, 2 648; 57 L. J. Ch. 784.
 
 218 
 
 FKAUD. 
 
 Motive of 
 
 appointment 
 
 immaterial. 
 
 Illusory 
 appointments. 
 
 1 wm. IV. 
 
 c. 46. 
 
 appoint among children, and the children agree to deal 
 with the fund by way of a family arrangement under 
 which the parent is benefited. Such an arrangement wili^ 
 indeed, be carefully scrutinised (/), but if it is found to 
 be bond fide it will not be disturbed (g) . 
 
 Another distinction which it is important to indicate is- 
 that between the intention or purpose and the motive of 
 an appointor. A corrupt purpose, as we have seen, vitiates 
 the appointment; but if the appointment be within the 
 terms of the power, the Court will not advert to circum- 
 stances of anger or resentment which may have induced 
 an unequal appointment {h) . , 
 
 Formerly, indeed, where a person had a non-exclusive 
 power of appointment among a class, although with 
 unfettered discretion as to the amount of the shares, and 
 he appointed to some of the objects a merely nominal 
 share, the appointment was set aside as being illusory and 
 not bond fide following the intention of the power. The 
 difficulty, however, of determining the limit of what was 
 illusory and what was not, was very great, and much 
 litigation was occasioned. To avoid the inconveniences 
 which were thus occasioned, the legislature interfered, and 
 by 1 Will. IV. c. 46, it was enacted that after the passing 
 of the Act, no appointment made in exercise of any power 
 of appointment amongst several objects should be invalid 
 or impeached in equity on the ground that an unsub- 
 stantial, illusory, or nominal share only should be thereby 
 appointed or left to devolve as unappointed. 
 
 Still there was nothing in the statute authorising an 
 appointor under a non-exclusive power to omit entirely 
 any one of the objects of the power. It was sufficiently 
 absurd that an appointment should have been good if it 
 gave £1,000 to A., £1,000 to B.,and a shilling to C.,but 
 
 (/) Agassiz v. 8,quire, 18 Beav. 
 431. 
 
 (^) Davis- V. Uphill , 1 Swanst. 
 129. 
 
 (A) Vane v. Bungannon, 2 S. 
 & L. 118, 130; Supple v. Lawsoii. 
 Amb. 729.
 
 FRAUDS ON POWERS. 219 
 
 bad if the shilling was not given to 0.; yet such was the 
 law(i). The reasoning was that the gift of the shilling 
 to C. was at least evidence that there had been no over- 
 sight in the execution (/c) . But now this distinction has 
 disappeared, and since 37 & 38 Vict. c. 37, the difference 37 & 38 Vict, 
 between exclusive and non-exclusive powers has ceased to ' ' ' 
 exist, an appointment under a power of the latter kind 
 being no longer invalid on account of the omission of any 
 of the objects. 
 
 (i) Bulteel v. Flummer, 6 Ch. (/t) He Stone, 3 Ir. Eq. 621. 
 
 161.
 
 no 
 
 CHAPTEE III. 
 
 MISTAKE AND ACCIDENT. 
 
 Section I. — Mistake. 
 
 Description . 
 I. Mistakes of Law. 
 
 1. Ge7ierally. 
 
 2. Special circumstafices entitling to relief. 
 
 II. Mistakes of Fact. 
 
 1. Fundamental Mistakes. 
 
 2. Unilateral Mistakes as to suhject-matter. 
 
 3. Mistakes of expression. 
 
 Rectification of instruments. 
 Defective execution of powers. 
 
 Mistake In distinguishing mistake from accident Story describes 
 
 indefinabe. ^j^^ former as "some unintentional act, or omission, or 
 " error, arising from ignorance, surprise, imposition, or 
 "misplaced confidence " (a) . This definition serves, as 
 intimated, to distinguish between mistake and accident; 
 but it fails clearly to mark the distinction which must be 
 observed between mistake, pure and simple, and fraud. 
 Mistake, of course, assumes an immense variety of forms 
 and presents innumerable differences in degree; and if it 
 is dangerous to define the forms of fraud lest the definition 
 should be evaded by newly conceived devices, it is impos- 
 sible to define mistake in such a manner as to indicate 
 
 (a) Story, 110.
 
 DESCRIPTION. 221 
 
 when it will and when it will not legally affect a transac- 
 tion, because it is impossible to foresee or provide for the 
 infinite variety of forms which it will assume in the course 
 of business. And since the meaning of the word is 
 sufficiently clear, and no formula can be framed which will 
 generalise the legal effects of mistake, little advantage can 
 be gained by attempting a definition . 
 
 Most of the cases in which questions arise as to the Classification 
 effects of mistake relate to contracts, or dispositions of 
 property. For purposes of classification we may, for the 
 present, consider all such transactions as if they were 
 between two parties only. It is evident, then, that there 
 are three distinct species of mistake which may arise: — 
 
 (1.) One of the parties may be directly led into a 
 mistake by an act or omission of the other party; 
 
 (2.) One of the parties may be mistaken apart from 
 any consideration of the conduct of the other; 
 
 (3 . ) The mistake may be common to both parties . 
 
 The first of these species introduces considerations and Mlsrepresen- 
 principles quite distinct from those which relate to the distinguished 
 remaining two. Mistakes thus induced by one of the *'*o°^ . ^ . 
 
 " , •11 pure mistake. 
 
 parties amount to misrepresentations. It depends on a 
 variety of circumstances whether or not they will be 
 regarded as amounting to frauds. These circumstances 
 we have made the subject of investigation under the 
 heading of Fraud (&). 
 
 Two species of mistakes remain, the examination of 
 which is not complicated by the admixture of the elements 
 of fraud. The importance of the distinction between them 
 will appear when we enter on the consideration of mistakes 
 of fact. 
 
 The most familiar classification of mistakes is that which Mistakes of 
 distinguishes between Mistakes of Law and ]\listakes of ,jf pact. 
 Fact . The contrast between these two classes is sometimes 
 expressed by saying that relief is given against mistakes of 
 
 (i) Pp. 178 et seq.
 
 222 MISTAKE. 
 
 fact, but not against mistakes of law . But this statement 
 is very far indeed from accuracy. On the one hand, there 
 are many circumstances in which relief will be granted 
 against mistakes of law. On the other hand, a mistake 
 of fact does not of itself, even prima facie, entitle a person 
 to be relieved from the consequences of his acts. 
 
 I. Mistakes of Law. 
 
 igmrmtia 1. The familiar maxim " Ignorantia juris neminem 
 
 juris, c. excusat " expresses a principle which is necessary to the 
 
 administration of justice. It has sometimes been stated 
 that its operation is confined to the domain of criminal 
 law (c) ; but it has long since been held as well in equity 
 as at common law that parties may not, generally speak- 
 ing, demand the rescission of their bargains or the reversal 
 of their solemn acts on a ground so uncertain and difficult 
 of determination as an alleged ignorance of law {d) . 
 Limitation of The principle expressed by the maxim viewed thus 
 e max . b^-gadly must certainly be assented to. But a close obser- 
 vation at once shows that a general expression in this form 
 is far too vague to admit of being employed as a practical 
 test. It presupposes an accurate knowledge of what is 
 meant by law, and an unfailing power of discerning the 
 precise boundary which distinguishes mistakes of law from 
 mistakes of fact. Furthermore, it omits to take account 
 of many peculiar circumstances which may render its 
 application repugnant to common sense and to the elemen- 
 tary principles of equity. Before we can safely apply the 
 maxim, we must, therefore, first inquire in what sense the 
 term " law " is here used; and secondly, we must advert to 
 certain special circumstances which are deemed to render 
 a demand for relief both reasonable and equitable. 
 
 (c) La^^doivn v. L., Mos. 364; 2 J. & W. 205. 
 {d) Stewart v. *S'., 6 CI. & F. 911, 966.
 
 MISTAKES OF LAW. 223 
 
 (1.) The maxim evidently applies only to English law. Not 
 -No one is presumed to know the laws of foreign countries, foreign law. 
 They are invariably treated as matters of fact to be proved, 
 like other matters of fact, by evidence. And it is to be 
 ■observed that the laws of Scotland and of the Colonies 
 arc in this, as in other respects, deemed in our Supreme 
 Court of Judicature to bo foreign laws (e). 
 
 (2.) Although public statutes are as fully presumed to Nor to private 
 be known as the general princij^lcs of civil and criminal 
 law, this is not the case with respect to private Acts of 
 Parliament. In the absence of notice of these latter, 
 ignorance or disregard of them amounts to a mistake 
 of fact, and may in proper circumstances be relieved 
 •against (/). 
 
 (3 . ) It was said by Lord Westbury , in Cooper v . its applica- 
 Phibbs(g), that in the maxim under consideration the private rio-hts 
 word ^' jits'' was used in the sense of denoting general considered, 
 law, the ordinary law of the country; but that when the 
 word "jus'' was used in the sense of denoting a private 
 right, the maxim had no application, private right of 
 ■ownership being a matter of fact. But this qualification 
 seems to be more apparent than real. Of course, if ignor- 
 ance of the private rights of another is due to ignorance 
 of the matters of fact which have led to those rights, the 
 mistake is then merely one of fact, and falls outside the 
 present question altogether. But if the facts are knoAvn, 
 the legal consequences of those facts are most clearly 
 presumed to be known; for these consequences are matters 
 of general law, and must be included in the maxim if 
 anything is. This is well illustrated in the case of Piillen 
 V. Bead?/ (h), where a devise was made to a woman upon 
 condition that she should marry with her parent's consent: 
 she married without such consent, whereupon a forfeiture 
 accrued to other parties, who, though cognisant of the 
 
 (e) Leslie v. Baillie, 2 Y. & C. (/) Earl of Pomiret v. Lord 
 
 Ch. 91; McCormick v. Garnett, 5 Windsor, 2 Ves. sr. 472, 480. 
 -De G. M. & G. 278. ((/) L. R. 2 H. L. 149, 470. 
 
 (A) 2 Atk. 587, 591.
 
 224 
 
 MISTAKK. 
 
 Special 
 circumstances 
 grounding 
 title to relief. 
 
 Fundamental 
 mistake. 
 
 Mistake in 
 formal 
 expression . 
 
 Misrepresen- 
 tation actual 
 fraud. 
 
 maiTiage without consent, executed an agreement which 
 had the effect of waiving the forfeiture. They sought 
 relief from this agreement, alleging that they were 
 ignorant of the fact that forfeiture had been occasioned 
 by the marriage without consent; but it was refused them 
 on the ground that the forfeiture was a legal consequenoo 
 of the facts before them, that their mistake was thus one 
 of law, and was not entitled to relief {i) . 
 
 2. Secondly, there are certain special circumstances 
 under which, though the mistake alleged is undeniably 
 one of law, it is deemed both reasonable and equitable to 
 grant relief against it. 
 
 (1.) It is quite conceivable that the two parties to an 
 agreement may both be labouring under a false impression 
 as to a matter of law, the effect of which would be to make 
 the agreement something entirely different from that which 
 they intended. In such a case there is indeed no contract 
 at all, the mutual agreement being different in substance 
 from that which legally springs from their acts. It can 
 scarcely be supposed that the law would in these circum- 
 stances enforce an agreement which was in truth never 
 made by the parties at all. The question here is not 
 whether a mistake of law will avoid a contract, but 
 whether there ever was a contract. On the same principle 
 an order made in an action which does not really express 
 the intention of the parties may be set aside (k). 
 
 The case is quite analogous where, an agreement having 
 been made, it is erroneously expressed through a mistake 
 of law. Here, again, to refuse relief against the erroneous 
 expression would be to hold the parties to an agreement 
 which they never made (k) . 
 
 (2.) We have already excluded from the present con- 
 sideration cases in which erroneous impressions respecting 
 
 (t) See also Irnliam v. Child, 
 1 Bro. C. C. 92; Bingham v. B.. 
 1 Ves. er. 126. 
 
 (Jc) See Pollock, Coutr. ed. 7, 
 
 444; Wilding v. Sandersoiu 
 (1897) 2 Ch. 534; 66 L. J. Ch. 
 684; see also Ainsworth v.. 
 Wilding, (1896) 1 Ch. 673; 6.^ 
 L. J. Ch. 432.
 
 MISTAKES OF LAW. 225 
 
 the law liave been intent ionally produced in the mind of 
 one of the parties by the other. Persons so deceived are 
 entitled to relief, for in such a case there exist the most 
 conspicuous elements of actual fraud, and equity is ever 
 ready to relieve against fraud, whatever form it may 
 assume (l). 
 
 But circumstances less strong than active and wilful Implied 
 ■deception may suffice to evidence such a fraudulent disposi- 
 tion as to warrant the interference of equity for its disconi- 
 liture. For instance, if one of the parties to a transaction 
 parts with his property in manifest ignorance of a plain 
 and settled principle of law, the fact of allowing him so to 
 .act is often deemed to be sufficient evidence of an unfair 
 advantage having been taken to call for equitable inter- 
 position. This has been illustrated by the case of an eldest 
 son of an intestate agreeing, in ignorance of his rights of 
 heirship, to divide the estates with a younger brother (m) . 
 But here, as before, the true ground of relief is not the 
 fact of a mistake of law, but the fraud which is implied. 
 
 ('3.) There are cases also in which a formal and solemn Surprise, 
 act performed in ignorance of a legal right has been re- 
 versed on the ground of mere surprise ; for instance, where 
 a woman who w^as entitled to elect, decided hastily, in 
 ignorance of her right to an account (n) . Where the 
 surprise has been common to both the parties to a trans- 
 action, there is of course still stronger ground for granting 
 relief. Such cases approach more or less closely to those 
 already mentioned, in which the error goes to the very 
 foundation of the contract (o) . 
 
 (4.) The maxim has no application where the alleged Matters 
 ignorance is not that of a well-known rule of law, but that construction. 
 of a matter of law arising upon a doubtful construction of 
 
 (I) Waian V. JF., 16 Ves. 72. Llewellyn, 2 Bro. C. C. 150; 1 
 
 Im) Qiov J, \22; Hunt V. Rous- Cox, 333; Allcard v. Walker-, 
 
 maniere, 1 Peters, Sup. C. U. S. (1896) 2 Cli. 369; 65 L. J. Ch. 
 
 1, 15, 16. 660. 
 
 (n) Puseyy. Desboiiverie,Z'P. (o) See Cochrane v. Willie, 1 
 
 Wms. 315, 321; and Evans v. Ch. 58. 
 
 s. 15
 
 226 MISTAKE. 
 
 an instrument. In this case relief may be given (p). But 
 where in such circumstances a fair compromise is entered 
 into without any circumstances of fraud or surprise it will 
 not be afterwards disturbed (q) . 
 Family (5.) Especially is this the case where such compromise 
 
 upheU."^^^^^ is ^f ^-^^ nature of a family arrangement (r) . In Westby^ 
 V. W.{S'), Lord St. Leonards said: "Wherever doubts 
 "and disputes have arisen with regard to the rights of 
 " different members of the same family, and fair compro- 
 " mises 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 on grounds which would not have been 
 " considered satisfactory if the transaction had occurred 
 "between mere strangers" (t). Long course of dealing 
 and acquiescence by the parties concerned may suffice to- 
 sustain an arrangement of the nature of a family compro- 
 mise, where there has been no written contract (u) . 
 Unless tainted But an agreement cannot be sustained, even as a family 
 arrangement, if in the least degree tainted with fraud; 
 there must be full disclosure of all material circumstances 
 known to one of the parties (x), and especially so if the- 
 parties are not on equal terms, or there is any confidential 
 relation between them (?/). Nor will a family arrange- 
 ment be sustained if one of the parties has entered into it 
 under a simple misunderstanding of his interests, respect- 
 ing which there could be no reasonable doubt (0) . Of 
 course, such circumstances as threats, or undue influence of. 
 any kind, will in these, as in other cases, invalidate an 
 agreement (a) . 
 
 (p) Beauchamp v. Winn, L. E. (m) Williams v. W., 2 Dr. & 
 
 6 H. L. 223. S. 378; 2 Ch. 294; Clifton v.. 
 
 (^) Pickering v. P., 2 Beav. Coclcbiirn, 3 My. & K. 76. 
 
 56; Naylor v. Winch, 1 S. & S. W Gordon v. G., 3 Swanst- 
 
 564; liiles v. N. Z., ^c. Co., 32 400; Roberts v. R., (1905) 1 Ch. 
 
 Ch. D. 266; 56 L. J. Oh. 801. 704; 74 L. J. Ch. 483. 
 
 (r) Stapilton v.- 8., 1 Atk. 2. ^^^ ST^ ^' ^''^'"'''''''^ ^ ^- 
 
 (s) 2 Dr. & W. 503. (-)' Bmmarje v. White, 1 
 
 (0 See Cory v. C, 1 Ves. sr. Swanst. 137. 
 
 19. («) Ellis V. Barker, 7 Ch. 104.
 
 MISTAKES OF LAW. 
 
 ^^ 
 
 Mistakes of expression in tho instrument embodying Mietakeeof 
 such compromises will bo relieved against just as similar compromiBes. 
 mistakes occurring elsewhere (b), and so if litigation is 
 compromised in Court under a misapprehension (c) . 
 
 (6.) Where money has been voluntarily paid under a Payments by 
 mistake of law, a Court of equity will not, as a rule, order 
 its repayment. Thus, where both an executor and a • i^K 
 
 legatee were independently advised by counsel against the ' '^ V' 
 
 claim of the legatee, and the executor divided the estate in 
 accordance with tho opinions given, the Court refused to 
 disturb the transaction when it was subsequently discovered 
 that the construction put on the will was wrong (d) . If, 
 however, under such circumstances there exists a fiduciary 
 relation between the parties, or an equity is raised by the 
 conduct of one of them, relief may be given (e); and pay- 
 ment which is exacted, such as a toll, is distinguishable (/) . 
 
 Where money has been paid in mistake of law to one of 
 the officers of the Court, such as a trustee in bankruptcy, 
 or a receiver, the Court has ordered its repayment, con^ 
 sidering that it should set an example of an honesty 
 higher than it would be justified in all cases in enforcing 
 on the litigants before it(^). 
 
 With these explanations and limitations, the principle 
 that equity will not relieve against a mistake of law may 
 be safely accepted; and it will have been observed that 
 those cases in which relief is given do not really amount 
 to exceptions from the principle, since in all of them the 
 relief is grcmnded, not on the mere fact that there has been 
 
 (6) Ashurst v. ifi«,7 Ha. 502. 56 L. J. Q. B. 457. 
 
 (c) Hiclcman v. Berens, (1895) {g) See Exp. Jam&s, 9 Ch. 609 j 
 
 2 Ch. 638; 64 L, J. Ch. 785. Exp. Slmmonds, 16 Q. B. D. 308; 
 
 {d) Rogei-s v. Ingham, 3 Ch. 55 L. J. Q. B. 374; Re Tyler,. 
 
 B.SSl; and see Powell V. Eulkes, Exp. Official Receiver, (1907) 1 
 
 33 Gi. D. 552; 55 L. J. Ch. 846. K. B. 865; 76 L. J. K. B. 541; 
 
 (e) Rogers v. Ingham, sup. at Dixon v. Brown, 32 Ch. D. 597; 
 
 p. 357; Davis v. Morier, 2 Coll. 55 L. J. Ch. 556; Re Opera, 
 
 303. Limited, (1891) 2 Ch. 154; 3 Ch. 
 
 (/) Hooper v. Corp. of Exeter, 260; 60 L. J. Ch. 839. 
 
 15 (2)
 
 228 
 
 MISTAKE. 
 
 a mistake^ hut on some other foot mhich is, independently 
 of that, ejjioacious to call forth the remedial power of 
 equity. 
 
 Mistake 
 
 as such of no 
 
 «ffect. 
 
 II. Mistakes of Fact. 
 
 The inquiry as to the effects of mistakes in matters of 
 fact is more complex and important. It must always be 
 borne in mind that those cases, numerous though they are, 
 in which transactions are deemed void or voidable on the 
 ground of mistake, all constitute exceptions to the general 
 rule, which is, that as regards private law, " mistake does 
 not of itself a,&eet the validity of contracts at all" (h). It 
 Avill be found that in all cases in which legal effects follow, 
 some other ingredient is present besides the mere fact that 
 one of the parties has, or that both of the parties halve, 
 acted under an erroneous belief. In one large class of 
 cases the effect of the mistake is to prevent any real 
 contract from being formed at aU; in these the agree- 
 ments, though seemingly and formally valid, are in effect 
 void. In another, though a valid agreement has been 
 formed, owing to mistake in its expression an equity is 
 raised for its rectification, which though it could not be 
 formerly effected in the Courts of common law, was pro- 
 vided for in those of equity. A third and important class 
 comprises cases in which application is made to a special 
 and discretionary jurisdiction of equity, in the exercise of 
 "\\ hich Courts of equity are particularly careful that their 
 decrees shall not be productive of hardship. This class 
 applies almost exclusively to suits for specific performance; 
 and though the classification of the subject here would be 
 clearly incomplete without reference to it, its full discus- 
 sion falls more appropriately under the heading of specific 
 performance (^) . - 
 
 (h) Pollock, Contracts, p. 440, (i) Q. v. p. 681 et seq. 
 
 7th ed.
 
 MISTAKKS OF FACT. 229 
 
 1. Fundamental midakes. 
 
 By fundamental mistakes, we mean those the effect of Where 
 which is to prevent any real contract from being formed ^events a 
 
 between the parties. Contract requires consensual agree- contract from 
 ■, .f . 1.1-1 being formed^ 
 
 ment; and ii owing to some error on one or on both sides 
 
 the parties have never had a common intention, it follows 
 
 that no contract is formed. 
 
 Fundamental errors of this description being as effica- 
 cious at common law as in equity to prevent an apparent 
 agreement producing the effects of a legal contract, do 
 not require exhaustive exposition here. It suffices to illus- 
 trate them from cases which from their nature or their 
 accompaniments have usually fallen under the special 
 notice of equity. 
 
 (1.) First, there may be a fundamental mistake as to Mistake as to 
 the nature of the transaction itself. Mistakes of this JJg"^^.^"** 
 description may be peculiar to one, or common to both action, 
 parties. 
 
 An instance of the former is seen where a person exe- Execution of 
 cutes a deed or signs an instrument under a mistaken nj^take!^ 
 belief as to its contents. Naturally cases of this descrip- 
 tion usually raise questions of fraud as well as of simple 
 mistake; but it is clear that without fraud such a transac- 
 tion may even at law be invalidated on the ground of 
 mistake alone (k) . A strong illustration of this is afforded 
 by a case in which a person executed a mortgage deed 
 under the mistaken belief that it was only a covenant to 
 produce deeds. This mortgage, having been assigned to a 
 purchaser for value without notice, was nevertheless decreed 
 to have been wholly void, and ordered to be delivered up 
 to be cancelled (I) . In this case had the deed only been 
 
 (Je) Foster v. MacJcinnon, L. R. W~ebb, (1907) 1 Ch. 537; 76 L. J. 
 
 4 C. P. 704, 711; Kenned>i v. Ch. 346; affd., (1908) 1 Ch. 1;' 
 
 Green, 3 My. k K. 699, 717, 718; Baqot v. Chapman, (1907) 2 Ch. 
 
 Willis V. Barron, (1902) A. C. 222; 76 L. J. Ch. 573. 
 271; Turnbull v. Duval, (1902) 
 
 A. C. 429; 71 L. J. P. C. 84; (I) Vorler/ v. Cooke, 1 Giff. 
 
 Chaplin v. Brammall, (1908) 1 230; Hunter v. Walters, 7 Ch. 
 
 K. B. 233. And see Hoivatson v. 75, 88. /.
 
 tm 
 
 MISTAKE. 
 
 Mistake as to 
 (person. 
 
 Mistake as to 
 
 «ubjeot- 
 
 imatter. 
 
 If subject- 
 matter not in 
 'existence 
 contract 
 is void. 
 
 voidable for fraud, no relief would have been given as 
 against the bond fide purchaser for value. 
 
 A fortiori, if in such casas both parties are mistaken as 
 to the nature of the deed or writing, the fact of a mere 
 formal signature will not suffice to establish a contract. 
 
 (2 . ) Secondly, one of the parties may be mistaken as to 
 the person of the other party. Such mistakes are almost 
 necessarily unilateral. It is evident that they are not in 
 all cases fundamental, since in many transactions the per- 
 sonality of the parties is quite immaterial; for instance, 
 where a person sells goods for ready money, or a railway 
 traveller takes a ticket. But in other cases it is of the 
 very essence of the intention of one of the contracting 
 parties to deal with another particular person, and if so, 
 a mistake as to the person will invalidate the agree- 
 ment (m); but it is at least questionable whether the 
 same principle applies to deeds (?z) . 
 
 (3). Thirdly, the error ma;^- relate to the subject-matter 
 of the contract. 
 
 If a person intends by his contract to acquire one thing, 
 he cannot be required to accept another (o) . If, however, 
 the mistake is as to a specific article, the agreement in 
 English as in Roman law is not void unless there is a 
 complete difference of substance (p) . 
 
 One important class comprised under this heading con- 
 sists of those cases in which the subject-matter in the con- 
 templation of the parties does not in fact exist at the time 
 of the agreement. Where in these circumstances the mis- 
 take is common to both parties, the agreement is void (g) . 
 
 On this principle a contract for the sale of shares in a 
 
 (w) Seddon v. North-Eastern 
 Salt Co., (1905) 1 €h. 326; 74 
 Li. J. Ch. 199; Boulton v. Jones, 
 2 H. & N. 564; Smith v. Wheat- 
 aroft, 9 Ch. D. at p. 230. 
 
 (w) Hunter v. Walters, 7 Ch. 
 75. 
 
 (o) Van Praagh v. Everidge, 
 (1903) 1 Ch. 434; 72 L. J. Ch. 
 260; reversing S. C, (1902) 2 
 
 Ch. 266; 71 L. J. Ch. 598; Beale 
 V. Kyte, ,(1907) 1 Ch. 645; 76 
 L. J. Ch. 294; Scriven v. Hind- 
 ley. (1913) 3 K. B. 564; 83 L. J. 
 K. B. 40. 
 
 (/^) Kenned)/ v. Panama, ^-c. 
 Mail Co., L. R. 2 Q. B. 580. 
 
 (<7) Couturier 
 H. L. 673. 
 
 V. Hastie, 5
 
 MISTAKES OF FACT. 
 
 m 
 
 company is void if, at the time of the agreement, a wind-' 
 ing-up petition has been presented of which neither the 
 vendor nor the purchaser knew (r). Similarly, a contract 
 for the sale of a life interest after it has in fact, though 
 without the knowledge of the parties, expired, is void (s) ; 
 and likcAvise a contract for the sale of a freehold interest 
 which is afterwards discovered to be already in the 
 purchaser (t). 
 
 If in such cases the mistake is confined to one of the Not if it is 
 parties, the agreement is prima facie valid; but it will to one party, 
 usually be found that there is some ingredient of fraud 
 involved which will render it voidable at the option of the 
 mistaken party; these cases are quite distinguishable from 
 those now under view. 
 
 A person who stands by and knowingly suffers another 
 to lay out money on his land under the mistaken belief 
 that it is his own, may be decreed to repay such money; 
 but if he is unaware of the outlay, or of the mistake, there 
 is no equity against him {u) . 
 
 Again, "a material error as to the kind, quantity, or Mistake as to 
 " quality of a subjeet-matter which is contracted for by a quan^y^ 
 " generic description may make the agreement void " (x) . ""^lieii 
 
 Here again the agreement is only void in case the error 
 is common to both parties (?/), and is not capable of rectifi- 
 cation in carrying out the contract (z) . If only one is 
 mistaken, it depends on circumstances presently considered 
 whether or not it is voidable at his option. And the 
 further limitation must be understood, that the difference 
 is such as in the ordinary course of dealing and use of 
 language amounts to a difference of kind . 
 
 Where an agreement is void on the ground of funda- Repiedy 
 ^ ° as to void 
 
 (r) £mmer.ion's case, ICh. 4^. ed.; Scriven v. Bindley, (1913) 
 
 (s) StricUand v. Turner, 7 Ex. 3 K. B. 564; 83 L. J. K. B. 40. 
 208; Cochrane v. Willis, 1 Ch. 58. (y) S7nith v. Hughes, L. R. 6 
 
 (0 Jones V. Clifford, 3 Ch. D. Q. B. 597. 
 779. (z) North v. Percival, (1898) 
 
 (m) Weller v. Stone, 33 W. R. 2 Ch. 128; 67 L. J. Ch. 321 ; 
 
 421. Cowen v. Truefitt, (1899) 2 Ch. 
 
 (a;) Pollock, Confer. 480, 7th 309; 68 L. J. Ch. 563. 
 
 agreements.
 
 232 MISTAKE. 
 
 mental error, it is open to either party to bring his action 
 to have the transaction declared void, to have any deeds or 
 written instruments executed or signed therein set aside or 
 cancelled, and to be relieved from any possible claims in 
 respect thereof. But oases in which such relief is applic- 
 able must be distinguished from others in which, though 
 in the documents expressing the contract, the terms are by 
 common mistake inaccurately set out, nevertheless the real 
 contract between the parties is clearly ascertainable . Where 
 this is the case the proper remedy is a rectification of the 
 instrument; while if under such circumstances the one 
 party only was mistaken, he might, on the conditions 
 presently to be considered, successfully claim rescission of 
 the contract (a) . Where an agreement has been sanctioned 
 by the Court by an order made under mutual mistake, it 
 may be set aside so long as the interests of third parties 
 are not thereby prejudiced (fe). 
 
 2. Unilateral mistakes as to subject-matter. 
 
 Agreements Though a Strict regard for our classification would 
 
 ^iny'to ^ ^ require us here to deal only with cases in which seeming 
 mistake. agreements are made void owing to mistake, this is a con- 
 
 venient place in which to consider certain cases in many 
 respects analogous to them, where the mistake, though not 
 actually involving fraud, produces a similar effect, and the 
 agreement becomes only voidable at the option of the mis- 
 taken party; or perhaps, more strictly speaking, one of the 
 parties is estopped from asserting that it is void . 
 Unilateral This, as we have intimated, is often the case when a 
 
 mistake, mistake, which if common to both parties would make the 
 
 agreement void, is in fact confined to one of them. We 
 have not to consider cases in which there is a distinct 
 element of fraud; these being elsewhere investigated; our 
 
 (a) Paget v. Marshall, 28 Ch. p. 234. 
 
 D. 255; 54 L. J. Ch. 575; but (6) Hudders field Bank v. 
 
 see Maij v. Piatt, (1900) 1 Ch. Zw^er, (1895) 2 Ch. 273; 64 L. J. 
 
 616; 69 L. J. Ch. 357; and inf. Ch. 523.
 
 MISTAKES OF FACT. 233; 
 
 inquiry lies on the border lino between them and the 
 cases which have been up to the present occupying our 
 attention. 
 
 The circumstance that one of tlie parties has entered into to be of effect 
 an agreement under the influence of a mistake of fact has 
 no legal effect except in the following circumstances: — 
 
 (1.) The fact must be material to the transaction, or in ^.s to a 
 
 ^ ' • 1 • 1 mutenal fact ; 
 
 other words, essential to its character. 
 
 What is or what is not a material or essential fact is a 
 
 question which scarcely admits of solution in general terms. 
 
 Perhaps the closest practicable definition is that a fact is 
 
 said to be material when the formation of the contract is 
 
 conditional upon its existence; but whatever the general 
 
 expression employed, the ultimate decision must remain a 
 
 matter of opinion. It must suffice here to state by way 
 
 of illustration that defects of title, extensive difference as 
 
 to the locality of an ©state, or as to its extent, will give a 
 
 claim to a rescission of a contract in equity, when, at any 
 
 rate, the remedy sought is specific performance (c) . 
 
 (2.) The mistake must not be due to the negligence of not due to 
 ^ \ <j ij iiegligepce ; 
 
 the mistaken party. 
 
 Equity will never encourage negligence; and it accord- 
 ingly will not grant any relief against a mistake of fact, 
 however material, if it be such that the complainant might 
 have avoided it by the exercise of reasonable diligence. 
 The mere fact, however, that he might possibly have 
 acquired accurate knowledge, is not sufficient to debar 
 him from relief (d) . 
 
 (3.) The fact must be one which the party who has a8 to a fact 
 ,11 f. • • IT • J. T 1 " which there is 
 
 knowledge oi it is under an obligation to disclose. an obligation 
 
 This excludes facts the means of information as to which *° disclose. 
 
 are open to both parties, and cases in which each party 
 
 is presumed to exercise his own skill and judgment, and 
 
 there is no confidence reposed; and also facts which are 
 
 (c) Story, 141 ; infra, pp. 727 260. 
 et seq.; Van Praagh v. Everidge, (d) Willmott v. Barber, 15 Ch. 
 
 (1903) 1 Ch. 434; 72 L. J. Ch. D. 96, 106.
 
 234 
 
 MISTAKE. 
 
 No relief 
 againet 
 persons with 
 an equal 
 equity. 
 
 in their nature doubtful, and as to the probabilities of 
 which each may be supposed to calculate in his own 
 discretion (e) . 
 
 It is evident that this qualification practically amounts 
 to the statement that a unilateral mistake is only relieved 
 against when a non-disclosure by the better informed 
 party amounts to fraud (/). It has been held, indeed, 
 in an important ca^e, that such cases as Paget v. Mar- 
 shall (g) can only be supported on the ground of 
 fraud, and that in the absence of fraud vendors or 
 purchasers of land cannot be put to their election to 
 rescind or accept rectification on the ground of unilateral 
 mistake (h) . A plaintiff^ seeking to enforce a contract 
 which is not complete but executory is in a stronger 
 position (i) . It has been held that a lease cannot be 
 cancelled on the ground that its execution was brought 
 about by an innocent misrepresentation (k) . 
 
 In cases arising out of transactions voidable on account 
 of unilateral mistake, it must be remembered that equity 
 will not interfere against a person who has an equal claim 
 to its consideration. In these circumstances it will leave 
 the law to prevail . Thus, no relief will be granted against 
 a bond fide purchaser for valuable consideration (I). 
 
 3. Mistakes of Expression. 
 
 Mistakes of the kind last mentioned could from their 
 nature only occur in mutual agreements. Those to which 
 we now proceed may be found either in agreements or in 
 voluntary dispositions of property. They occur whenever 
 
 (e) Mortimer v. Capper, 1 
 Bro. C. C. 158; 6 Ves. 24. 
 
 (/) See Wright v. Goff, 22 
 Beav. 207; Met. Counties Soc. v. 
 Brown, 26 Beav. 454. 
 
 (g) Paget v. Marshall, 28 Ch. 
 D. 255; 54 L. J. Ch. 575. 
 
 (/O May V. Piatt, (1900) 1 Ch. 
 616; 69 L. J. Ch. 357. 
 
 (0 Da vies v. Fitton, 1 D. k. 
 War. 225; May v. Piatt, sup. 
 See Thompson v. Hickman, 
 (1907) 1 Ch. 550. 
 
 (A-) Angel v. Jay, (1911) 1 
 K. B. 666; 80 L. J. K. B. 458; 
 following Lec/qe v. Croker, 1 Ball 
 .t B. 506. 
 
 (0 Poivell V. Price, 2 P. Wms. 
 535; Bavies v. D., 4 Beav. 54.
 
 MISTAKES OF FACT. 
 
 235 
 
 an agreement or disposition is sought to be embodied in 
 a formal instrument, and the instrument is so framed as 
 not to express elearly or truly the intention of the parties 
 or party. 
 
 (1.) At common law as well as in equity the simplest How far law 
 cases of this description have long been provided for by mistakes 
 established rules of construction, to which it suffices here «* expression. 
 to refer in general terms. Thus, at law clerical errors 
 and omissions which could be certainly supplied from 
 the context, and all mere grammatical mistakes were 
 remedied (m); the context of a doubtful expression might 
 be referred to to ascertain its meaning (tz), and the 
 general intent was always regarded as prevailing over the 
 particular expression (o). 
 
 (2.) Both at law and in equity indeed the rule has long Oral evidence, 
 been established that oral evidence is not generally admis- 
 sible to vary a written instrument. But notwithstanding For what 
 the existence of a w^^itten instrument, such evidence might admissible at 
 even at law have been adduced to show that there was not 1^^- 
 in fact any agreement at all (p). In equity the general 
 rule has been subjected to certain modifications which 
 require particular notice. 
 
 Thus, in equity oral evidence is admitted to show that In equity. 
 • either by accident, mistake, or fraud, a written instrument 
 does not truly express the intention and meaning of the 
 parties (q) ; and if accident or mistake is clearly proved by 
 such evidence, or is admitted by the other side, or is evi- 
 dent from the nature of the case, equity will rectify it (r). 
 Where a plaintiff sought to enforce a contract, but claimed 
 for it a wider construction than that of the defendant, 
 which was adopted by the Court, he was allowed to waive 
 
 (w) Doe d. Leach v. MicMem, Qp) Pym v. Campbell, 6 E. & 
 
 •6 East, 486; Redfern v. Bryning, B. 370; Wake v. Harrop, 6 H. & 
 
 6 Ch. D. 133; Salt v. Pym, 28 ib. N. 775. 
 
 153; 54 L. J. Ch. 273. (<?) Murray v. Parker, 19 
 
 (w) Browning v. Wright, 2 B. Beav. 305, 308. 
 
 & P. 13, 26. (r) Bavis v. Symonds, 1 Cox, 
 
 (o) Ford V. Beech, 11 Q. B. 402, 404; Fowler'y. F., 4 De G. 
 
 .•866. & J. 250.
 
 286 
 
 MISTAKE. 
 
 Rectifioation 
 of settle- 
 ments. 
 
 Rules. 
 
 the dispute, and the contract was enforced to the extent to 
 which the defendant admitted it (s). 
 
 Again, equity has resorted to extrinsic evidence to 
 modify the meaning of general words where there has- 
 been reason to suppose that they were not intended to 
 bear their full and natural meaning. For instance, in 
 constructing a release, the general words are always limited 
 to the matter or matters especially within the contempla- 
 tion of the parties at the time when the release was- 
 given(^). One of the most important applications of this 
 is seen in cases where a release is executed on the footing 
 of accounts, which are subsequently found to be erro- 
 neous (z^). 
 
 (3 . ) Perhaps the most striking illustrations of the j uris- 
 diction of equity to rectify instruments which erroneously 
 express the intention of the parties thereto, are found in 
 cases respecting the rectification of marriage settlements,- 
 which cases usually arise when there is a discrepancy 
 between the preliminary articles and the settlement as- 
 finally executed. 
 
 The principal rules which regulate these cases are clearly 
 stated in the leading authority of Legg v. Goldivire (x)r 
 and are to the following effect : — 
 
 (i . ) If both the articles and the settlement were executed' 
 before the marriage, and there are discrepancies between- 
 them, then the settlement will generally be considered to- 
 express the true agreement, and equity will not interfere to- 
 make it conform to the articles. 
 
 (ii.) But if, even in this case, the settlement purports to- 
 be in pursuance of the articles, then, if there be a dis- 
 crepancy, it will be presumed to have arisen from mistake, . 
 and equity will interfere to rectify it (y) . 
 
 (s) Preston v. LttcJc, 27 Cli. D. 
 497; and see Goddard v. Jeffreys, 
 61 L. J. Ch. 57. 
 
 (0 X. # S. W. R. V. Black- 
 more, L. R. 4 H. L. 610, 623; 
 Ttirner v. T., 14 Ch. D. 829.. 
 
 (m) Miller v. Craig, 6 Beaw. 
 433; Gandy v. Macauley, 31 Ch. 
 D. 1. 
 
 {x) Ca. temp. Talb. 20; 2 W. . 
 & T. L. C. 770, ed. 7. 
 
 (?/) West V. Errissey, 1 Bro. . 
 P. C. 225.
 
 MISTAKES OF FACT. 237 
 
 (iii.) And further, evon though the settlement does not 
 upon the face of it puiporl to be in pursuance of the 
 articles, extrinsic evidence may be resorted to to show that 
 such was the intention, and that the discrepancy arose 
 from mistake (z) . 
 
 (iv.) If the articles preceded the marriage, and the 
 settlement was executed after the marriage, then equity 
 will in all cases consider that the articles express the true 
 agreement, and will rectify the settlement to make it 
 conform therewith . The principle in this case is that after 
 the marriage the parties are no longer in the same un- 
 fettered position, and that the agreement as expressed when 
 they were free should be regarded as the true one (a) . 
 
 Generally speaking, in cases coming under the third of Generally 
 , 11/^ -11 1 • . f • 1 i? mistake must 
 
 these rules, the Court will only mterlere on evidence oi a ^g common, 
 
 mistake common to all parties (&), and the extent of the *°^ '^^ 
 rectification required must be clearly ascertained and proved, 
 defined by evidence contemporaneous with or anterior to 
 the deed (c) . But there are cases in which on proof of a 
 clear mistake of one party only, the Court has taken upon 
 itself to rectify a settlement (d), and it is especially dis- 
 posed to do so by any unfair or underhand dealing on the 
 part of the husband (e). A settlement has indeed been 
 rectified even against previous articles on the settlor's 
 uncontradicted evidence of mistake (/), but the authority 
 of this case is more than doubtful (g). The jurisdiction 
 to grant relief on the ground of mistake, has be«n held to 
 extend to cases of mere forgetfulness (h). Parol evidence 
 
 (z) Bold V. Hutchinson, 5 De C^) Harbidge v. Wogan, 5 Ha. 
 
 G. M. & G. 558; Breadalhane v. 258; Hanley v. Pearson, 13 Ch. 
 
 Chandos, 2 My. & Cr. 711, 739. D. 545. 
 
 («) Legg v. Goldwire, sup.: (g) Clark v. Girdwood, 7 Ch. 
 
 Viditz V. O'Hagan, (1899) 2 Ch. D 9 
 
 569;^ (1900) 2 Ch. 87; 69 L. J. ^^^ ^^^.^^ ^_ ^^.^^20 Eq. 666. 
 
 (&) Sells V. S., 1 Dr. & Sm. iu) TucJcer v. Bennett, 38 Ch. 
 
 45; Rooke v, Kensington, 2 K. & ^. I; 57 L. J. Ch. 507; Bonhote 
 
 J. 753, 764; Fowler v. F., 4 De v. Henderson, (1895) 2 Ch. 202; 
 
 G. & J. 265. 64 L. J. Ch. 556. 
 
 (c) Bradford v. Romneij, 30 (A) Hood v. Mackinnon, (1909) 
 
 Beav. 431. 1 Ch. 476; 78 L. J. Ch. 300.
 
 238 
 
 MISTAKE. 
 
 Rectification 
 of voluntary 
 deeds. 
 
 Rectification 
 of wills. 
 
 in cases of rectification is not excluded by s. 4 of the 
 Statute of Frauds (i) . 
 
 : A disentailing deed, enrolled under the Fines and 
 Recoveries Act, has been rectified on the ground of 
 mistake, notwithstanding the exclusion by s. 4T of that 
 Act of the jurisdiction of Courts of equity in regard to the 
 specific performance of contracts and the supplying of 
 defects in the execution of powers given by the Act (Ic). 
 
 Courts of equity will not reform a voluntary deed as 
 against the grantor (l), nor will they decree a settlement 
 as against purchasers for valuable consideration (including 
 mortgagees) who have had no notice of the articles; but 
 if they have had such notice, a rectification may be decreed 
 against them (m) . 
 
 (4.) The jurisdiction of equity to rectify mistakes in 
 wills rests on widely different principles. In no case can 
 oral evidence or any evidence dehors the will be admitted 
 to vary or control the terms thereof. It is only when a 
 mistake is apparent on the face of the will itself that the 
 Court will interfere; oral evidence may be resorted to to 
 explain a latent ambiguity. 
 
 Thus where a residue was directed to be divided between 
 the testator's " two daughters equally," and in fact he 
 had three daughters when the will was made, it was held 
 that the three were entitled to share the property (n) . A 
 mistake in computing the amount of a legacy has similarly 
 been set right (o), and also mistakes in clerical expression 
 which result in manifest incongruity (p) . 
 
 (i) 29 Car. II. c. 3; Johnson 
 V. Bragge, (1901) 1 Ch. 28; 70 
 L. J. Ch. 41; Butterley Co. v. 
 New Huchnall Colliery, (1909) 1 
 Ch. 37; 78 L. J. Ch. 63. 
 
 (Jc) Z &L A Will. IV. c. 74; 
 Rail-Bare v. H.-B., 31 Ch. D. 
 251; 55 L. J. Ch. 254. 
 
 (jj) Phillipson v. Kerry, 32 
 Beav. 628. 
 
 (jn) Bavies v. B., 4 Beav. 54. 
 
 (w) Stebbing v. Walker, 2 Bro. 
 
 C. C. 857. 
 
 (o) Milner v. M., 1 Ves. sr. 
 106; but see and distinguish 
 Ward V. Wood, 32 Ch. D. 517; 
 55 L. J. Ch. 720; Re Aird's 
 Estate, 12 Ch. D. 291. 
 
 (?0 Salt V. Pym, 28 Ch. D. 
 153; 54 L. J. Ch. 273; Mellor 
 V. Baintree, 33 Ch. D. 198; 56 
 L. J. Ch. 33; Brisco v. Baillie- 
 Hamilton, (1902) P. 234; 71 L. J. 
 P. 121.
 
 xMISTAKES OF FACT. .2j3«9 
 
 A mere misdescription of a legatee will not defeat a 
 legacy; but if a legacy is given to a person for a particular 
 motive dependent on a supposed character which he has 
 falsely assumed, he will not be suffered to demand his 
 legacy. This was the case where a woman gave a legacy 
 to a man supposing him to be her husband, whereas in fact 
 the marriage was bigamous and void (q) . Vice versa, if 
 a legacy is revoked upon a mistake of facts, for instance, 
 on the supposition that the legatee is dead, equity will 
 grant relief (r) . But in cases of this description, whether 
 the suit be to set aside or to establish a legacy on the: 
 ground of mistake, the Courts proceed with great circum- 
 spection. It does not follow because one motive is 
 expressed or is apparent, that the legacy is intended to 
 depend upon it alone. The testator may be in some degree 
 moved to confer a benefit by an erroneous supposition of 
 relationship between himself and the beneficiary; but 
 nevertheless the primary motive may be a personal love 
 and affection which exist altogether apart from the fact 
 of such relationship; and if this seems to be the case, 
 equity will not, on mere proof that the supposed relation- 
 ship did not exist, interfere to take away the benefit (s) . 
 Still less will proof that a testator has formed a false 
 estimate of the character of a person form a ground for 
 interfering with his testamentary dispositions. Equity 
 never assumes to punish moral delinquencies by taking 
 away civil rights (i). The principles of equity are, as 
 we have seen, now applicable in all divisions of the High 
 Court, and it must be borne in mind that in many cases 
 arising from mistakes in wills the Probate Division is 
 the proper forum in which to seek relief (u) . 
 
 {q) Kennell v. Abbott, 4 Ves. Box v. Barrett, 3 Eq. 244. 
 
 808; Giles v. G., 1 Keen, 692. (^) QUeg y. G., sup. 
 
 (r) Campbell v. Fre7ich, 3 Ves. («<) gee e.g. Morell v. M., 7 
 
 321. P. D. 68; Meliiish v. Milton, 3 
 
 (s) Kennell v. Abbott, sup.: Ch. D. 27; inf. p. 802.
 
 240 
 
 MISTAKE. 
 
 (5.) Defective executio)/, uf powers: 
 
 One of the most useful heads of the jurisdiction of 
 equity in relieving against accident and mistake, is its 
 power to interfere in aid of the defective execution of 
 powers. The principles on which it acts in these cases 
 have been thus expressed by an eminent authority : 
 " Whenever a man having power over an estate, whether 
 " ownership or not, in discharge of moral or natural obli- 
 " gations, shows an intention to execute such power, the 
 " Court will operate upon the conscience of the heir (or 
 " other person benefiting by the default) to make him 
 "perfect this intention" (x). 
 
 The investigation of this subject resolves itself into the 
 following inquiries: — 
 
 (i.) To what powers the principle applies; (ii.) What 
 defects or mistakes will be relieved against; (iii.) In whose 
 favour equity will so interfere. 
 
 To what 
 powers the 
 principle 
 applies. 
 
 Powers of 
 leasing. 
 
 (i.) To what powers the principle applies. 
 
 Generally speaking it matters not what is the nature of 
 the power I'especting which the assistance of equity is 
 sought. The cases in which it is material are exceptional. 
 Thus powers of sale, of raising portions, of jointuring, of 
 revoking uses, and of appointment generally, are con- 
 tinually the subjects of equitable relief. 
 
 Powers of leasing were at one time thought to form 
 an exception to the general rule, but it has long been 
 established that this is not so, and that a defective execu- 
 tion may in this as in other cases be aided (y) . In certain 
 cases of deviation from the terms of a power of leasing 
 there is a special relief afforded to the intended lessee by 
 
 (a;) Chapman v. Gibson, 3 Bro. 
 C. C. 229, per Lord Alvanley. 
 
 (y) Shannon v. Bradstreet, 1 
 S. & L. 52; Bowell v. Beiv, 1 Y. 
 & C. Ch. 345.
 
 DEFECTIVK KXKCUTION OF POVVKKS. 241 
 
 statute (z), and such relief is available even if the power 
 has been derived under an Act of Parliament. 
 
 But generally speaking powers arising under an Act of Powers 
 Parliament are construed strictly, and a defect in their ^^"^'^(.f "f' ^ 
 execution will not be relieved against in equity («). Parliament. 
 
 (ii.) What defects will be relieved against. 
 
 The first and most essential condition of relief against a lutention 
 defect in the execution of a power is that there shall have '""'''* ^'^ ^^^""^ 
 been a clear intention on the part of the donee of the 
 power to execute it (6). 
 
 Secondly, the granting of relief against a defective and conform- 
 execution is always conditional upon the general rule that intention of 
 equity will not assist in defeating the intention of the creator of the 
 
 1 T -n 1 f» T power, 
 
 person creating the power, it will not therefore dispense 
 
 with any conditions imposed upon its execution w^hich are 
 
 not merely formal. Thus if the consent of any person is 
 
 required, the exercise of a power without such consent will 
 
 not be supported (c) . And if a given time is prescribed 
 
 within which the power must be exercised, this direction 
 
 must be complied with (d). Still less will equity assist in 
 
 setting up a defective execution which amounts to a 
 
 breach of trust (e). 
 
 The defects to which assistance of equity is afforded Defects 
 may be described generally as defects of form. The rule relieved 
 is that where an intention to execute the power is mani- '^S'^inst. 
 fest, a mere non-compliance with prescribed forms will 
 be remedied (/) . 
 
 Perhaps the most conspicuous illustration of the rule Substitution 
 is the case in which a power, directed to be exercised by deed. 
 
 (z) 12 & 13 Vict. c. 26; 13 A: (c) Lawrenson v. Butler, 1 S. 
 
 14 Vict. c. 17. & L. 13. 
 
 , . „ ,,, TT j.i. i<l) Cooper V. Martin, 3 Ch. 47. 
 
 («) llosivMs case per Hutton, )^^^ Mortlock v. BicUer, 10 Ves. 
 
 Kg. Abr. 379, lol. 6; Anon., 299 317 
 
 Freem. 224. ^^^^ S/iaf>no7i v. Bradstreet, 1 
 
 (6) Garth v. Townsend, 7 Eq. S. & L. 63; Fothergill v. F., 
 
 220. Freem. 256. 
 
 S. 16
 
 242 
 
 MISTAKE. 
 
 Equitable 
 appointment. 
 
 As to number 
 of witnesses. 
 
 deed only, is in fact executed by will. This is regarded els 
 a merely formal variation, and is relieved against {g) . But 
 the converse case is different; a power directed to be exer- 
 cised by will only cannot effectually be exercised by deed; 
 for a deed being an irrevocable instrument, to allow it to 
 be used instead of a will would be to depart in substance 
 from the intention of the donor of the power {h). 
 
 Another large class of cases in which relief is afforded 
 comprises those in which there has been an appointing 
 instrument competent on the general principles of equity, 
 but ineffectual at law; as where the donee of a power 
 has covenanted or agreed to execute it (i), or has given a 
 written promise to grant an estate, which he can only fulfil 
 by the exercise of a power (fc). A recital in a deed has 
 been considered a sufficient indication of intention to 
 amount to an equitable execution (Z). 
 
 Other defects more formal still are a fortiori aided; for 
 instance, the presence of less than the prescribed number of 
 witnesses, or an omission to seal an instrument which the 
 donor of the power has directed to be signed and sealed (m) . 
 But the Wills Act itself prevents any relief being given 
 in case of non-compliance with its provisions (71) . 
 
 By 22 & 23 Vict. c. 35, s. 12, it is now provided that a 
 deed executed in the presence of and attested by two or 
 more witnesses, shall, so far as respects execution and attes- 
 tation, be a valid execution of any power of appointment 
 by deed, notwithstanding that the instrument creating the 
 
 (g) Toilet V. T., 2 P. Wms. 
 489; Snecd v. S., Amb. 64. 
 
 (h) Reid v. Shergold, 10 Ves. 
 370; Adney v. Field, Amb. 654. 
 
 (j) Fothergill v. F., aup. ; 
 Mortlock V. Buller, sup. ; Charl- 
 ton V. C, (1906) 2 Ch. 523; 75 
 L. J. Ch. 715. 
 
 (A") Campbell v. Leach, Amb. 
 740; London Chartered Bank v. 
 Lempriere, L. R. 4 P. C 572. 
 
 (J) Wilson V. Piggott, 2 Ves. 
 jr. 351 ; Cunynghame v. An- 
 struther, L. R. 2 Sc. & D. 223. 
 
 (w) Wade v. Paget, 1 Bro. 
 C. C. 363; Morse v.' Martin, 34 
 Beav. 500; Re Walker, McColl 
 V. Bruce, (1908) 1 Ch. 560; 77 
 L. J. Ch. 370. 
 
 («) 1 Vict. c. 26, s. 10. But 
 as to wills executed abroad, see 
 Iliimmel v. //., (1898) 1 Ch.6-12; 
 67 L. J. Ch. 363; Tomlin v. 
 Latter, (1900) 1 Ch. 442; 69 
 L. J. Ch. 225; Barretts v. Young, 
 (1900) 2 Ch. 339; 69 L. J. Ch. 
 605.
 
 DEFECTIVE EXECUTION OF POWERS. 243 
 
 power shall have required some additional or other forms 
 of execution and attestation . This enactment covers many- 
 cases in which relief was formerly purely equitable. 
 
 It is clearly settled that the principle which supplies a Non- 
 d(^fect in the execution of a power does not extend to a relieved 
 non-execution . Thus if a person has been prevented from against, 
 effecting an execution or an attempted execution by any 
 accident such as sudden illness or death, there is no juris- 
 diction whatever to take the property from those entitled 
 in default of appointment (o) . The only possible excep- 
 tion to this would be a case in which execution was 
 prevented by fraud, the general rule being that equity con- 
 siders that as done which has been fraudulently prevented 
 from being done. But there does not seem to be any 
 express decision on the point (p) . 
 
 (iii.) In whose favour equity will interfere. 
 
 It has in many places been observed that equity will 
 not interfere in favour of pure volunteers ; and that 
 principle applies here. It requires at least a meritorious Relief priven 
 consideration to support the claim of the person seeking ° ^^^^^ asers, 
 relief. 
 
 The strongest claim is that of a purchaser, which term 
 includes a mortgagee and a lessee (g) . Creditors are also creditors, 
 entitled to relief (r), and charities, which are generally charities, 
 favoured in equity (s). In the leading case of Toilet v. 
 Toilet (t) assistance was offered in favour of a wife; a wife, child, 
 legitimate child is in the same position (u); and in these 
 cases it matters not that the claim is made upon a meri- 
 torious consideration only, as, for instance, upon a provision 
 
 (o) ToUet V. T., 2 P. Wms. 564; Campbell v. Leach, Arab. 
 
 489 ; Buckell v. Blenkhorn, 5 Ha. 740. 
 131, 141. (r) Wilkes v. Holmes, 9 Mod. 
 
 ip) See Middleton v. 31., 1 J. 485. 
 & W. 94. (s) Innes v. Sa?/er, 7 Ha. 377. 
 
 (q) Fothergill v. F., Freem. {t) Sup. 
 
 256; Taylor v. Wheeler, 2 Vern. (m) Sneed v. S., Amb. 64. 
 
 16 (2)
 
 244 
 
 MISTAKE. 
 
 No relief to 
 husband, 
 grandchild, 
 collaterals. 
 
 Volunteers. 
 
 Or against a 
 person having 
 an equal 
 equity. 
 
 made after marriage (x) ; nor is the relief barred by the 
 fact that the wife or child is otherwise provided for (y) . 
 
 But in the absence of some natural or moral obligation 
 on the part of the donee of the power to provide for the 
 person in whose favour' the defective execution has been 
 made, no aid will be given (0). Thus a husband (a), a 
 grandchild (6), and collateral relations (c) have no title 
 to relief; and a fortiori a volunteer, even though he be 
 the creator of the power himself (d), or the donee of the 
 power (e). 
 
 The interference of equity is also subject to the further 
 condition that it will not be afforded if the person entitled 
 in default of appointment has a claim on the donee equal 
 to that of the person who seeks to have the execution 
 aided (/) . In other words, as between equal claimants, 
 equity will not interfere. This limitation is chiefly illus- 
 trated by cases in which a child has been entitled in 
 default of appointment, and the effect of the appointment 
 would be to leave him totally unprovided for (g) . 
 
 (x) Rervey v. E., 1 Atk. 567. 
 
 (y) Hervey v. H., sup.; Chap- 
 man V. Gibson, 3 Bro. C. G. 229. 
 
 (z) Farwell, 341, ed. 2. 
 
 (a) Moodie v. Reid, 1 Madd. 
 516. 
 
 (J) Tudor V. Anson, 2 Ves. sr. 
 582. 
 
 (o) Goodtvyn v. G.,\ Ves. er. 
 228. 
 
 {d) Watts V. Bullas, 1 P. Wms. 
 60, note; Chetwynd v. Morgan, 
 31 Ch, D. 596. 
 
 (e) Ellison v. E., 6 Ves. 656. 
 
 (/) Farwell, 342, ed. 2. 
 
 (^) Chapman v. Gibson, sup.; 
 Morse v. Martin, 34 Beav. 500; 
 Me Walker, McColl v. Bruce, 
 (1908) 1 Ch. 560; 77 L. J. Ch. 
 370.
 
 DEFINITION. 245 
 
 Section II. — Accident. 
 
 Definition. 
 I. Extent of remedy at Law. 
 II. Characteristics of remedy in Equity. 
 
 Accident, in the sense in which the word is used in Accident 
 Courts of equity, has been defined as comprising " such 
 " unforeseen events, misfortunes, losses, acts, or omissions, 
 ''as are not the result of any negligence or misconduct 
 "in the party " (a). 
 
 The distinction between accident and mistake is manifest Distiu^ushed 
 and important. Mistake has reference to a state of things mistake. 
 at the time at which the contract or other transaction in 
 question takes place. Accident refers to some event which 
 occurs subsequently to the transaction. Mistake is essen- 
 tially subjective; it indicates a mental condition of one or 
 both of the parties concerned. Accident is objective; it 
 relates to facts wholly external to the parties. Mistake 
 affects the quality or character of the transaction itself. 
 Accident introduces some modification in the remedy 
 which would otherwise be available, or gives rise to some 
 particular claim for relief. 
 
 The jurisdiction of equity to grant relief in certain cases Jurisdiction 
 of accident is of very ancient date. In its inception it only conditional on 
 extended to cases in which no adequate relief was attain- defect of legal 
 
 • /^ PI remedy. 
 
 able in a Court of law. From time to time Courts of law 
 have acquired new powers of granting relief; but in this 
 as in other branches of equity, the jurisdiction having once 
 
 (a) Story, 78.
 
 246 
 
 ACCIDENT. 
 
 arisen was never afterwards att'eeted by the increased 
 powers of the law. The study of equity, therefore, still 
 requires an examination of the jurisdiction as formerly 
 contrasted with that of common law. 
 
 Kxtent of 
 remedy 
 at law. 
 
 major. 
 
 Destruction 
 of subject- 
 matter of 
 
 contract, 
 
 or non- 
 existence 
 thereof. 
 
 I. Renuedy at Law. 
 
 In the enquiry, then, whether in any particular case of 
 accident equity had jurisdiction to grant relief, the first 
 question was whether there was an adequate remedy at 
 law. To answer this a brief resume of the legal jurisdic- 
 tion in cases of accident is required. 
 
 1. Courts of law have always recognised the plea of 
 
 vis TMijor,'' or " the act of God." These terms are not 
 
 indeed to be understood in a wide sense; but only as 
 
 including " events which as between the parties, and for 
 
 ' the purpose of the matter in hand, cannot be definitely 
 
 'foreseen or controlled" (6). 
 
 Thus where the performance of a contract depends on 
 the existence of a specific thing, and by the accidental 
 destruction of that thing performance becomes impossible 
 the contract is no longer enforceable at law (c) . The law 
 in such a case implies a condition that the contract shall be 
 off if a thing necessary to its performance perishes without 
 default of the contractor. 
 
 Similarly a contract for a future specific product is 
 deemed at law to be conditioned on such product eventually 
 coming into existence. For instance, a contract to deliver 
 200 tons of a particular crop of potatoes was held to be 
 pro tanto discharged by a failure of the crop to reach that 
 amount (d). 
 
 {b) Pollock, Contr. 415, ed. 7. 
 (c) Taylor v. Caldwell, 3 B. & 
 S. 826. 
 
 (rf) Howell V. Coupland, L. R. 
 9 Q. B. 462; 1 Q. B. D. 258.
 
 KKMEIJY A'l' LAW. 247 
 
 Thus again, a contract for personal sirvici' is deemed to Personal 
 be conditioned upon the continuance of the life and health 
 of the contracting party (e). 
 
 It scarcely need be said that these principles have no Warranty and 
 
 1 • i • 1 xi • i L covenant 
 
 application where there is a warranty or express covenant diatinffuinhed. 
 against the loss or destruction of the thing in question. 
 In such cases the destruction being evidently contemplated 
 and expressly provided for, does not fall within the defini- 
 tion of an accident; and we shall observe that in this 
 respect there is no distinction between equity and law. 
 
 2. In many cases the loss or destruction of deeds was Loss and 
 remediable at law, evidence being admitted of the loss or ^gg^'""*'"° '^^ 
 destruction and of the contents (/). But in the case of Bonds, 
 bonds the legal remedy was long inadequate, owing to the 
 technical rule that the defendant was entitled to demand 
 
 that it should be read in open Court: in other words, ' 
 
 profert and oi/er of the bond were necessary to its enforce- 
 ment. Hence an equitable jurisdiction to grant relief in 
 such cases arose, which, as usual, has not been displaced 
 by the amendment of the law in the same direction (g) . 
 
 3. A bill or note which was not negotiable might, it Bills, notes, 
 seems, notwithstanding its loss or destruction, have been 
 
 proved and sued upon at law (h) ; but an acceptor of a 
 
 negotiable bill or note could not have been compelled to 
 
 pay it to any one who could not deliver it up, (i) . By 
 
 17 & 18 Vict. c. 125, s. 87, it is, however, enacted that 17& 1 8 Vict. 
 
 " in an}' action founded upon a bill of exchange or other 
 
 " negotiable instrument, it shall be lawful for the Court or 
 
 "a judge to order that the loss of such instrument shall 
 
 "not be set up, provided an indemnity is given to the 
 
 (e) Farrow v. Wilson, L. R. 4 Vict. c. 39, s. 7. 
 C. F. Hi; Boast \. Firth, ibid. I. (h)Charnlei/ v. Grundy, 14 
 
 (/) Whitfield V. Fausset. 1 C. B. 608, 614; Wain v. Bailey, 
 
 Ves. sr. 387, 392. 10 Ad. & E. 616. 
 
 {g) C. L. Proc. Act, 1852 (15 (/) Hansard v. Robinson, 7 B. 
 
 & 16 Vict. c. 76), s. 55; and see & C. 90; Ramuz v. Crowe, 1 Ex. 
 
 now as to lost scrip, 55 & 56 167.
 
 248 
 
 ACCIDENT. 
 
 "satisfaction of the Court or judge, or a master, against 
 '' the claims of any other person upon such negotiable 
 " instrument " (k). But this extension of the legal remedy 
 did not, of course, affect the equitable jurisdiction which 
 had before arisen. 
 
 Second 
 condition is 
 conscientious 
 title to relief. 
 
 Effect of 
 negligence or 
 misconduct. 
 
 Equitieis 
 equal. 
 
 Matters of 
 
 positive 
 
 contract. 
 
 II. Remedy in Equity. 
 
 These few illustrations will perhaps suffice to indicate, 
 as far as our present purpose requires, the extent and 
 character of the legal jurisdiction to grant relief in cases 
 of accident. From them we may ascertain whether or not 
 the first condition of equitable relief, namely, the original 
 inadequacy of the legal remedy, is complied with. 
 
 There is a second condition, equally important; namely, 
 that the party seeking relief must show a conscientious 
 title thereto. 
 
 If, therefore, the party seeking relief has been guilty of 
 gross negligence, or of other misconduct in the transaction, 
 he cannot successfully appeal to equity (?). Or if both 
 parties stand upon an equal footing in equity, in accord- 
 ance with the common maxim, equity will not interfere 
 with their legal position. Thus no relief will be given 
 against an heir-at-law where accident has prevented the 
 making of a will, or the will has been imperfect (m) . And 
 generally, against a bond fide purchaser for value without 
 notice, a Court of equity will not interfere on the ground 
 of accident {n) . 
 
 On similar grounds equity will not relieve against 
 accident in matters of positive contract, where the possi- 
 bility of the accident may fairly be considered to have 
 been within the contemplation of the contracting parties. 
 
 (A;) And see now 45 & 46 Vict. 
 61, ss. 69, 70. 
 
 (?) Exp. Greenivuy, 6 Ves. 812. 
 
 (w) Whitton V. Russell, 1 Atk. 
 448; 1 Mad. 46; Story, 106. 
 
 («) Maiden v. Merrill, 2 Atk. 
 8; Story, 108.
 
 RKMEDY IN EQUITY. 249 
 
 Thus a lessee who covenants to pay rent, or to keep the 
 demised premises in repair during a given term, will re- 
 main bound by his covenants as well in equity as at law, 
 notwithstanding an accidental destruction of the premises; 
 for such express contracts indicate an intention to secure 
 the lessor against the consequences of accident; or at least 
 it may be said that the lessee has been guilty of negligence 
 in not protecting himself, by requiring exceptions from the 
 general liability which he has deliberately undertaken (o), 
 or by insurance. 
 
 Bearing in mind these two leading principles on which 
 the equitable jurisdiction in matters of accident rests, we 
 are now prepared to notice in greater detail some parti- 
 cular instances of its application. 
 
 1. We have already briefly observed the nature and 
 limits of the jurisdiction of Courts of law in the case of 
 lost deeds and other instruments. We shall now investi- 
 gate that of equity as dealing with the same class of cases. 
 
 Equitable interposition is very common and very bene- Relief in 
 ficial in the case of lost bonds. Not only was there claim ^ondJ °° 
 to relief on the ground that originally the Courts of law 
 refused to dispense with the profert and oyer of the bond, 
 but there was the further ground that Courts of equity 
 alone had the power of imposing just conditions on the 
 party seeking relief. The maxim, " He who seeks equity 
 must do equity," is conspicuously applicable to such 
 cases; and equity gives effect to it by requiring a plaintiff Indemnity, 
 "who seeks to enforce a bond while alleging its loss, to 
 give a suitable bond of indemnity (p) . The procedure of Proof of loss 
 equity also had the advantage of enabling it to require 
 the plaintiff to maintain the fact of the alleged loss by 
 affidavit {q). 
 
 (o) Bullock V. l)ommitt,6T.'R. (p) Exp. Greenivay, 6 Ves. 
 
 650; Pym v. Blackburn, 3 Ves. 812; E. I. Company v. Boddam, 
 34, 38; Story, 101. 9 Ves. 464. 
 
 {q) Exp. Greenway, sup.
 
 250 
 
 ACCIDENT. 
 
 Lost title 
 deeds. 
 
 Lost 
 
 negotiable 
 
 instrumentK. 
 
 Non-negoti- 
 able instru- 
 ments. 
 
 Contracts of 
 
 personal 
 
 service. 
 
 2. Another illustration of the superiority of the relief 
 afforded bj equity is supplied by those cases in which a 
 title deed of laud has been destroyed or concealed, and the 
 suffering party does not know which alternative is correct . 
 In such a case equity can decree possession of the land lo> 
 the plaintiff until the defendant shall either produce the 
 deed or admit its destruction (r) . Courts of law having 
 had no power to put a defendant upon such terms, could 
 afford no adequate relief in such a case. On similar princi- 
 ples a plaintiff in possession might have had his possession 
 established under a lost deed in a suit for discovery (s) . 
 
 3. In the case of lost negotiable instruments, as in that 
 of lost bonds, a Court of equity was the proper forum in 
 which to seek relief, because of its power to provide for an 
 adequate indemnity to protect the defendant (t). 
 
 In the case ,of a non-negotiable instrument, whatever 
 doubt there may be as to the former jurisdiction at law tO' 
 entertain a suit thereon, such an instrument having been 
 assignable in equity, an indemnity might be reasonably 
 demanded, and hence there is clearly an equitable jurisdic- 
 tion to grant relief. 
 
 4. We have observed that contracts of personal seiTice- 
 were at law deemed to be conditioned on the life and 
 health of the contracting parties. In equity this principle 
 is carried further. Thus where an apprentice paid a 
 premium in consideration of receiving instruction for a 
 certain time, and before the expiration thereof the master- 
 became bankrupt, equity apportioned the premium and 
 decreed repayment of that for which, owing to the bank- 
 ruptcy, the consideration had failed (t«). This principle 
 has since been embodied in the Bankruptcy Act (x) . 
 
 (r) Whitfield v. Fausseft, 1 Ves. & C. 90; Glynn v. B. of England,. 
 sr. 392. 2 ib. 38. 
 
 (m) Hale V. Webb, 2 Br«. C. C. 
 78. 
 
 (s) Dormer v. Fortescue, 3 Atk. 
 
 132. 
 
 (a;) See 46 & 47 Vict. c. 52. 
 
 (0 Hamard v. Robinson, 7 B. a. 41; inf., p. 571.
 
 KEMEDV IN Et^lJITV. ?01 
 
 5. Other cases of accident fall still more peculiarly PaymeutM by 
 within the cognisance of Courts of equity. Thus if an ' ' 
 executor or administrator pays the debts and legacies of 
 
 his testator or intestate in full, in confidence that the assets 
 are sufficient, but it is eventually found that from some and accidental 
 accident or unforeseen occurrence they are deficient, equity testator's 
 alone can relieve; and it will do so where the deficiency property, 
 has resulted from an innocent accident or mistake {y) . 
 
 Instances of this kind are supplied by cases in which 
 the goods of the testator have been stolen without any 
 negligence on the part of his executor (z), or have been 
 destroyed, or damaged by fire, or otherwise (a) ; and also 
 by cases in which an executor has reckoned as an asset a 
 debt which he supposed to be still due, but which proves in 
 fact to have been paid to the testator (6). Equity will 
 not, however, protect executors who make payments on a 
 wrong principle of law. If they take it upon themselves 
 to construe an obscure will, for instance, they do so at 
 their peril (c) . 
 
 6. If, again, an annuity given by a will is secured Annuities 
 by public stock which is afterwards reduced by Parlia- reduced. 
 ment (d), or becomes unproductive owing to a revolu- 
 tion (e), equity will grant relief as against the residuary 
 legatees on the ground of accident. 
 
 (y) Edwards v. Freeman, 2 P. (6) Pooley v. Ray, 1 P. Wms. 
 
 Wms. 447; Hawkins v. Bay, 355. 
 
 Amb. 160. ' (c) Hilliard v. Fulford, 4 Ch. 
 
 (z) Jones V. Lewis, 2 Ves. sr. D. 389. 
 
 240. ((0 Bavies v. Wattier, 1 S. & 
 
 (a) Clough v. Bond, 3 My. & S. 463; 51 Vict. c. 2. 
 
 Or. 490, 496; Job v. J., 6 Ch. D. (e) Hatchett v. Pattle, 6 
 
 562. Madd. 4.
 
 262 
 
 CHAPTER IV. 
 
 RELIEF AGAINST PENALTIES AND FORFEITURES. 
 
 Principle of granting relief. 
 I. Relief, when given. 
 II. Limits of the principle. 
 
 Relief against penalties and forfeitures was originally 
 obtainable exclusively in equity, and tbis having been so, 
 its jurisdiction remains, notwithstanding that its prin- 
 ciples have from time to time been embodied in statutes, 
 and thus become operative in Courts of Common Law; 
 and whatever distinctions between the two jurisdictions 
 continued up to the passing of the Judicature Act, 1873, 
 have by that statute been rendered unimportant. 
 
 There are two leading authorities on the doctrine of 
 j'eachy v. I), relief against penalties and forfeitures. In Feachyv. The 
 of Sotnerset. Dhjqq qj Somerset (a), a person having incurred a for- 
 feiture of a copyhold by making leases contrary to the 
 custom of the manor, and by felling timber, digging 
 stones, and grubbing up hedges, although he offered by 
 his bill to make a recompense, was held not entitled to 
 relief in equity. It was expressed that the true ground 
 of relief against penalties was from the original intent 
 of the case; if the penalty was designed only to secure 
 money, then on pecuniary recompense being given the 
 
 C«) 1 Strange, 447; 2 W. kT. L. C. 250, ed. 7.
 
 RELIEF, WHEN GIVEN. 25;i 
 
 Court would grant relief. But in Sloman v. Walter {h), siomauy. 
 a somewhat wider view was taken; and the rule was laid 
 down that " where a penalty is inserted merely to secure 
 "the enjoyment of a collateral object, the enjoyment of 
 " the object is considered as the principal intent of the 
 "deed, and the penalty only as occasional, and therefore 
 "only to secure the damage really incurred." So that 
 whenever this is the case, even though the object of the 
 penalty may be something more than to secure a pay- 
 ment of money, equity is wont to decree compensation in i 
 lieu thereof, to the extent of the damage really sustained. 
 
 The test question therefore becomes, whether compon- Relief not 
 sation can effectually be made. Penalties to secure to penaltie.'i'to 
 payments of money are doubtless the simplest cases, since -"ecure money 
 
 :, •,• • 1 • pajTnents. 
 
 m them payment with mterest is a complete compensation. 
 But there are other cases in which damages for a non- 
 compliance with a condition to perform some collateral . 
 act may be assessed with sufficient accuracy to render 
 compensation equitable, and thus to avoid the extreme 
 consequences of forfeiture. 
 
 We shall first illustrate the operation of the principle 
 by referring to those classes of oases in which it is most 
 frequently applied; and secondly, shall indicate the limits 
 of the principle by referring to certain cases in which 
 it has not been considered applicable. 
 
 I. Relief, ivhen given. 
 
 1 . Among the most frequent cases in which in the early Bonds, 
 times of English equity this jurisdiction was exercised, 
 were the eases of common bonds, in which the payment 
 of a given sum and interest was secured by a conditional 
 penalty of double the amount, or some other excessive 
 
 (i) 1 Bro. C. C. 418; 2 W. k T. L. C. 257, ed. 7.
 
 254 
 
 RELIEF AGAINST PENALTIES AND FORFEITURES. 
 
 8 & 9 
 Will, 
 c. 11; 
 Anne, 
 
 III. 
 
 4 & 5 
 c. 16. 
 
 Covenants to 
 pay. 
 
 8uin. Relief in such cases was continually given in equity 
 on the terms of paying the principal, interest, and costs, 
 until the statutes 8 & 9 Will. III. c. 11, and 4 & 5 Anne, 
 c. 16, rendered applications to equity for this purpose no 
 longer necessary. 
 
 The same principle naturally applies where a penalty is 
 inserted in any deed to secure a payment of money, for 
 instance, purchase-mdney (c). And relief in cases of this 
 C. L. P. Act, description is now provided for hy the Common Law 
 Procedure Act, 1860 (^), which permits payment into 
 Court to be pleaded by leave of the Court or a judge in 
 any action on any bond which has a condition to make 
 void the same upon payment of a lesser sum at a day or 
 place certain (e). 
 
 Interest 2. Relief is, as we shall elsewhere observe, also given 
 
 m mortgages, ^yj^g^ ^j^g penalty takes the form of requiring a higher rate 
 of interest in case the principal or interest of a mortgage 
 debt shall not be paid at the stated time or times (/) ; but 
 if the agreement is that on condition of punctual payment 
 a lower rate of interest shall be payable, then on breach 
 of this condition the higher rate may be insisted on, and 
 there is no equity to interfere with the claim (^). The 
 cases where, in the happening of a certain event, it is 
 independently agreed that a higher rate of interest is to 
 be paid are distinguishable {h) . 
 
 In short, it may be regarded as a principle of universal 
 application that where the payment of a smaller sum is 
 secured by a larger, the larger sum will be regarded as 
 a penalty, the enforced payment of which will be relieved 
 against (i). 
 
 (c) Exp. HuUe, 8 Ch. 1022. 
 
 (d) 23 & 24 Vict. c. 126. 
 
 (e) S. 25. 
 
 (/) Stanhope v. Manners, 2 Ed. 
 199, inf. p. 269. 
 
 (gr) NichoUs V. Maynard, 3 AtJi. 
 519. 
 
 {h) General Credit, S;c. Co. v. 
 Glegg, 22 Ch. D. 549; 52 L. J. 
 Ch. 297; Herbert v. Salisbury, 
 etc. Rail. Co., 2 Eq. 221. 
 
 (0 A^tle}f V. Weldon, 2 B. & 
 P. 350—355; Re Newman, 4 Ch. 
 D. 724.
 
 RELIEF, WHEN GIVEN. 
 
 255 
 
 3. Where In a lease there was a clause of forfeiture for Forfeiture for 
 
 . . - 111 non-payment 
 
 non-payment of rent at a stated time, equity always held of rent. 
 that the right of entry was only intended as a security for 
 the rent, and continually relieved against it on the lessee's 
 paying the arrears of rent accrued due with interest 
 thereon. This principle has long been recognised by 
 statute, but its application has been thereby limited to 
 cases in which relief is sought within six months after 
 execution (k). 
 
 4. Similarly, relief is continually given against the Mortgages, 
 forfeiture of a mortgaged estate by default of payment 
 
 at the time named in the deed; the mortgagor having in 
 spite of the default an equity to redeem on payment of 
 the principal, interest and costs. 
 
 5. The case of Sloman v. Walter (I) affords another Penalties 
 illustration of relief against a pecuniary penalty to secure collateral acts, 
 a collateral act. There the condition of the penalty was 
 
 that the defendant should have the use of a particular 
 room in a house whenever ho thought proper. On his 
 seeking to recover the penalty, he was restrained by 
 injunction on the bill of the plaintiff, pending the trial 
 of an issue to ascertain the actual amount of damage 
 .sustained. In a similar case, a bond with a penalty of 
 £600 not to carry on business save as therein specified 
 within a given area, was relieved against, and actual 
 damages only awarded (m) . 
 
 6. Apart from legislation. Courts of equity had no Covenants 
 power to relieve against forfeiture for breach of a covenant 
 
 to insure, on the ground that the risk occasioned was 
 of such a nature as to be incapable of estimation in 
 damages (n). But owing to the hardship often occasioned 
 by the strict interpretation of such covenants, statutory 
 
 {k) 4 Geo. II. c. 28; 15 & 16 (w) Hardi/ v. Martin, 1 Bro. 
 
 Vict. c. 76, ss. 210, 211; 30 & 31 0. C. 419, n. 
 
 Vict. c. 59. («) Green v. Bridget, 4 Sim. 
 
 (0 Sup. p. 253. 96.
 
 256 
 
 RHLIEF AGAINST PENALTIES AND FORFEITURES. 
 
 22 & 23 Vict, powers of relief were given, lirst by 22 & 23 Vict. c. 35, 
 oo i W T7- and 23 & 24 Vict. c. 126: wliich enactments have been since 
 
 23 & 24 Vict. ' 
 
 c. 126. replaced by the more comprehensive measure presently 
 
 referred to (o) . 
 
 One sum 
 securing 
 several acts, 
 when 
 
 regarded as 
 penalty. 
 
 Kemble i 
 Far r en. 
 
 7. Where a sum of money is stated to be payable upon 
 breach of all or any or one of a number of stipulations, 
 and it is evident that some of them involve serious damage, 
 while others are of trifling importance, then it will be pre- 
 sumed that the parties intended the sum to be subject to 
 modification, and the contract will be treated as giving rise 
 to a claim for damages only (p) . This is most obviously 
 the case when one of the stipulations is for the payment of 
 a sum of money of less amount than the penal sum named. 
 Such a case is well illustrated by Kemble v. Farren{q), 
 where the contract was that the defendant should act at 
 Covent Garden Theatre for four seasons, receiving 
 £3 6s. Scl. for every night the theatre was open. There 
 was a proviso that if either party should neglect or refuse 
 to fulfil the said agreement or any part thereof, such partj* 
 should pay to the other the sum of £1,000, and it was 
 agreed that this sum should be considered as liquidated 
 damages, and not as in the nature of a penalty. Never- 
 theless, on a breach of the agreement in the second season, 
 the Court held that this sum was a penalty, since there was 
 no attempt at proportioning it to the extent of the breach. 
 
 It will be seen from the cases that though the Court will 
 by no means disregard the expressed intention of the 
 parties, it is not bound by the mere fact that they have 
 formally agreed that the sum named shall be considered 
 as liquidated damages at all events, and not as a penalty. 
 
 The case of Kemble v. Farren has indeed often been 
 cited as establishing the wider proposition, that where a 
 contract contains a variety of stipulations of different 
 
 (o) Inf. p. 262. See Dingwall v. Burnet, (1912) 
 
 S. C. 1097. 
 (p) Elphinstone v. Monkland (^q) 6 Bing. 141; Astlei/ v. 
 
 Iron, ^-c. Co., 11 App. Cas. 332. Weldon, 2 B. & P. 346.
 
 RELIEF, WHEN GIVEN. 257 
 
 degrees of importance, and one large sum is stated at the 
 end to be paid on breach of performance of any of them, 
 this must be considered as a penalty, and this without 
 qualification as to the nature of the stipulations them- 
 selves (r) . It has indeed been held that such is the pre- Wailis v. 
 sumption (s), but each case is to be determined according 
 to the particular facts involved and terms used, and as is 
 seen by the judgments of all the judges of the Court of 
 Appeal in Wallis v. Smith (t), the tendency of the Court 
 is now not to interfere with any clearly expressed intention 
 of the parties; and if the words " as liquidated damages " 
 are used they Avill only be disregarded in plain cases where 
 the sum is obviously intended to be a penalty (?<) . The 
 question really is whether the construction contended for 
 renders the agreement unconscionable and extravagant (a?) . 
 
 8. Another illustration is lafforded by those cases in 
 which the Courts have refused to enforce a bye-law of a 
 railway company to the effect that a passenger who travels 
 without a ticket beyond the distance for which his ticket • 
 is issued must pay the whole fare from the place from 
 which the train started (?/) . The principle resembles that 
 of Kemble v. Farren (z), it being considered that the same 
 sum cannot be reasonably demanded as damages for 
 breaches of contract differing in degree. The cases, how- 
 ever, in which specially reduced fares are charged for 
 particular stations, on the condition that the tickets are 
 only available for those stations, are distinguishable, the 
 
 (r) See dicta oi 'Lord Coleridge, ' (u) Pye \. British Automobile 
 
 C. J., in Magee v. Lavell, L. R. Commercial Syndicate, (1906) 1 
 
 9 C.P. 107,111, and James, L. J., K. B. 425; 75 L. J. K. B. 270. 
 in Re Newman, 4:C\v. J) n^,ni. ^ , . Webster v. Bosanqiiet, 
 
 (^s) Elphimtone v. Monkland ,^^^2) A. C. 394; 81 L. J. P. C. 
 
 Iron Co., 11 App. C. 332. .)f.- ^ 
 
 (0 21 Ch. D. 243, 264, 271, 
 
 276; 52 L. J. Ch. 145; and see (y) Broion v. G. E. R. Co., 2 
 
 Law V. Local Board of Rcdditch, Q. B. D. 406. 
 
 ^}^^^\lo^- ^- ^^^' ^^ ^- ^- ' (=) 6 Bing. 141. 
 (J. D. 172. 
 
 17
 
 258 
 
 RELIEF AGAINST PENALTIES AND FORFEITURES. 
 
 Accident, 
 surprise, 
 or fraud. 
 
 remedy in such cases being dependent on contract, and not 
 in the nature of a penalty or forfeiture (a) . 
 
 9, In cases in which relief might not otherwise have 
 been given, if there have been any unavoidable accident, 
 surprise, excusable ignorance, or fraud, which has pre- 
 vented the execution of a covenant, the Court will interfere 
 upon compensation being made (b). Under such circum- 
 stances as these relief has been given against a forfeiture 
 of a breach of a covenant to repair (c); and similarly 
 where the act of forfeiture has been committed in reliance 
 on the assurances of an agent of the defendant (d), and 
 where the right to claim forfeiture has been waived (e) . 
 
 II. LimiU of the Principle. 
 
 Compensation 1. It being a condition of granting relief against a 
 Ascertainable. Penalty ,or forfeiture that proper compensation for the 
 breach of the agreement shall be made, it follows that 
 where there are no means of ascertaining what amount of 
 compensation would be equitable, no relief will be given. 
 Thus in the case of a breach of a general covenant to 
 repair, by which a forfeiture has been incurred, equity has 
 hitherto usually refused to interfere (/) . The case of a 
 covenant not in general terms, but to lay out a specific sum 
 in a given time, was sometimes distinguished {g) ; but it 
 seems that even in such cases relief was only given under 
 to build, &c. special circumstances (h) . On similar grounds relief was 
 
 Covenant to 
 repair; 
 
 (a) G. N. R. V. Winder, (1892) 
 2 Q. B. 595; 61 L. J. Q. B. 608; 
 G. N. R. V. Pahner. (1895) 1 
 Q. B. 862; 64 L. J. Q. B. 316. 
 
 (6) Eaton v. Lyon, 3 Ves. 690, 
 693; Hill v. Barclay, 18 Ves. 56, 
 62. 
 
 (c) Hughes v. Met. R. Co., 1 
 C. P. D. 120; 2 App. Gas. 439. 
 
 (<f) Winff V. Harvey, 5 De G. 
 M. & G. 265. 
 
 (e) Croft V. Lumley, 5 E. & B. 
 648. 
 
 (/) Gregory v. Wilson, 9 Ila. 
 683, 689. 
 
 (gr) Hack \. Leonard, ^'M.iyd.^. 
 
 (A) Hill V. Barclay, ."Ui).; 
 Bracehridge v. Buckley, 2 Price, 
 200, 215.
 
 LIMITS OF THE PRINCIPLE. 259 
 
 refused in case of a breach of a covenant to build 
 houses (i) ; and of a covenant to cultivate land in a 
 husbandlike manner (k) . All these cases are, however, 
 now provided for by statute (see p. 262), and relief in 
 accordance with its terms may be given notwithstanding 
 the breach of any covenant, excepting those therein 
 expressly excepted. 
 
 2. It is a common stipulation in public undertakings Forfeiture of 
 that shareholders shall forfeit their shares on non-payment non-payment 
 of calls. It might at first sight seem that this presented a ^^ <^'^^^^- 
 reasonable case for relief on payment of the arrears with 
 interest; but equity has, on grounds of public policy, re- 
 fused to interfere in these cases (I). What distinguishes 
 them from the case of a lessee who allows his rent to fall 
 into arrear, is that in the former case the undertaking is 
 usually of a more or less speculative character, and it 
 •would be inequitable to allow a shareholder to lie by and 
 withhold his calls indefinitely until the chances of success 
 ■were fully ascertained. The danger of a multiplicity of 
 actions arising in case relief was so afforded has also been 
 of weight in the decisions. Where, however, in the articles 
 of association of a public company there is no stipulation 
 or clause conferring upon directors a power to declare 
 shares forfeited, they have no implied power to do so (m) . 
 And wherever such a power of forfeiture is provided, it 
 will be strictly construed, and every condition prescribed 
 for its exercise must be complied with (n) . 
 
 It is a common term in contracts for the sale of land Forfeiture 
 
 .01 deposit 
 
 that the purchaser shall pay a oertam sum as a deposit, on sales. 
 and that if the purchaser does not complete the purchase 
 and pay the balance of the purchase money on the day 
 
 (0 Croft V. Goldsmid,2iBea,\. (m) Re National, ^c. Co., 7 
 
 312. W. R. 379; Clarke v. Hart, 6 
 
 {k) 11 ills V. Rowland, 4 De G. H. L. 633. 
 M. & G. 430. 
 
 (J) Sparks v. Liverpool Water- («) Ibid.; Bottoynley's Case, 16 
 
 works, 13 Ves. 428. Ch. D. 681; 50 L. J. Ch. 167. 
 
 17 (2)
 
 260 
 
 RELIEF AGAINST PENALTIES AND FORFEITURES. 
 
 named, the vendor shall be at liberty to re-sell and 
 recover any deficiency in price as liquidated damages. 
 
 Under such a contract the Court will not relieve the 
 purchaser from the forfeiture of the deposit if he fails to 
 complete witkin a reamnahle time (o) . But in order to 
 entitle the vendor to retain the deposit there must be acts 
 on the part of the purchaser which amount to a repudia- 
 tion of the contract (p) . 
 
 Statutory 
 penalties. 
 
 3. The Court has no jurisdiction to grant relief against 
 any penalties imposed by statute (g) . Within this prin- 
 ciple fall penalties imposed by benefit building societies in 
 accordance with their rules under 6 & 7 Will. IV. c. 92 {r). 
 
 Persons may 
 not elect 
 between 
 an agreement 
 and a penalty. 
 
 French v. 
 Macule. 
 
 Contracts 
 varying on 
 certain 
 conditions. 
 
 4. Though in many cases, as above shown, equity 
 relieves against a j^enalty or forfeiture which has been 
 incurred by a breach of contract, it will not suffer a person 
 who has entered into an agreement to escape the obligation 
 of specifically performing it by electing to pay the penalty 
 stipulated in case of non-performance. The case oi French 
 V. Mamie {s) is usually referred to on this question. There 
 it was laid down by Lord St. Leonards that "if a thing 
 " be agreed upon to be done, though there is a penalty 
 " annexed to its performance, yet the very thing must be 
 "done" ; and the rule applies whether the contract be to- 
 do or to abstain from doing anything (J,). 
 
 But care must be taken to distinguish between such 
 cases and those in which a certain sum is agreed to be paid 
 as the price of or consideration for doing or abstaining 
 
 (o) Howe V. Smith, 27 Ch. D. 
 89; So'per v. Artiold, 35 ib. 384; 
 37 ib. 96; 14 App. Cas. 429; 59 
 L. J. Ch. 214; Exp. Barrell, 10 
 Ch. 512; Kilmer v. British 
 Columbia, ^c. Lmid, (1913) A. C. 
 319; 82 L. J. P. C. 77. 
 
 (fp) Hall V. Burnell, (1911) 2 
 Ch. 551. See and distinguish 
 Palmer v. Temple, 9 Ad. & E. 
 508. 
 
 (^q) Keating v. Sparrow, 1 Ba. 
 & Be. 367; Ee Brain, 18 Eq, 389. 
 
 (r) Parker v. Butcher, 3 Eq. 
 762; Provident P. B. Sac. v. 
 Greenhill, 9 Ch. D. 122. 
 
 (s) 2 Dr. & W. 269. 
 
 (0 Ibid.; Fox v. Scard, 33 
 Beav. 327; National Provincial 
 Bank v. 3Iarshall, 40 Ch. D. 112;. 
 58 L. J. Ch. 229.
 
 LIMITS OF THE PRINCIPLE. 2W 
 
 from doing a given act — for instance, where a lessee 
 covenants to reside on the premises or not to plough land, 
 and if otherwise to pay an additional rent. Here the 
 additional rent will not, on the one hand, be regarded as a 
 penalty, so as to be relieved against, nor on the other hand 
 can the lessee be restrained from exercising the option 
 given to him (u) . Where the contract is of this nature, 
 the Court will not infer from the fact of the additional 
 sum reserved being disproportioned to the actual damage 
 resulting that it is in the nature of a penalty (x) ; but if 
 together with a covenant for additional payment there is 
 also a clause of forfeiture, the payment will then, it seems, 
 be deemed a penalty (y) . 
 
 5. The cases last discussed illustrate the distinction Liquidated 
 l)etween a penalty and liquidated damages, on which dis- ^™^8:e8- 
 tinction the whole of the present question turns. It has 
 already been seen that the mere use of the term " liquidated 
 damages," or even an express agreement that a sum shall 
 be considered as such, is not conclusive as to its character. 
 The Court will look at the whole transaction in order to 
 determine whether the payment provided for is rightly to 
 he regarded as a penalty or not (z) ; and in doing so, the 
 Court will seek to give effect to the clearly expressed inten- 
 tion of the parties, and not to overrule their agreements 
 on the ground "that judges know the business of the 
 people better than they know it themselves" (a). 
 
 (m) Solfe V. Peterson, 2 Bro. ^-c, (1905) A. C. 6; 74 L. J. 
 P. C. 436; Hard!/ v. Martin, 1 P. C. 1; Public Works Commis- 
 €ox, 27. sioner v. Hills, (1906) A. C. 368; 
 
 (x) Chilliner v. C, 2 Ves. sr. '^^ ^- J- ^- ^* ^^■ 
 
 ■528 
 
 ,\ ^ , ,T 7 r. T>w c («) P^i^ Jessel, M. E., in Wallis 
 
 ,,/?.l/''^"S^ ^- ,^(«f ^^' 2 l^r. & y. 8,„nj^^ 21 Ch. D. 243; 52 L. J. 
 
 .Y;l^s^',^^^?f "^ni*'''!.J--r f' Ch. 145; Elphinstone v. Monk- 
 
 ^^^ A^A ' ^^'^^ ^''0'' ^^•' 11 ^PP- C. 332; 
 
 ^- ^- ^'^- Pye V. British, ^-c. Si/ndicate, 
 
 (z) Dimechx. Corlett, 11 lAoo. (1906) 1 K. B. 425; 75 L. J. 
 
 P. C. 199; Jones v. Green, 3 Y. K. B. 270; Be Soysa v. Be Pless 
 
 & J. 298, 304; Clydebank Engi- Pol., (1912) A. C. 194; 81 L. J. 
 
 meeting, ^-c. Co. v. Yzquierdo, P. C. 126.
 
 262 RELIEF AGAINST PENALTIES AND FORFEITURES. 
 
 Convey- 6. By the Conveyancing Acts, 1881 and 1892 (6), the 
 
 1881 and ' powers of the Court to relieve against the forfeiture of 
 ^^^^" leases has been largely increased. By the former Act it 
 
 is enacted that a right of re-entry or forfeiture under any 
 proviso or stipulation in a lease, for a breach of any 
 covenant or condition therein, shall not be enforceable by 
 action or otherwise unless and until the lessor sei'ves on the 
 lessee a notice specifying the particular breach complained 
 of (c), and, if the breach is capable of remedy, requiring 
 the lessee to remedy the breach, and in any case requiring 
 the lessee to make compensation in money for the breach^ 
 and the lessee fails within a reasonable time thereafter to 
 remedy the breach (if capable of remedy), and to make 
 reasonable compensation in money, to the satisfaction of 
 the lessor. Where the lessor is proceeding by action or 
 otherwise to enforce such right of re-entry or forfeiture,^ 
 the lessee may apply to the Court for relief, which the 
 Court may grant or refuse on such terms as it may think 
 fit. The statute expressly excepts from its operation 
 covenants or conditions against assigning, underletting {d), 
 or parting with the possession, or disposing of the land 
 leased, a covenant for forfeiture on the bankruptcy of 
 the lessee, or on the taking in execution of the lessee's 
 interest (e), and also covenants or conditions in miningi 
 leases to allow the lessor to inspect the mine or its books, 
 &c., and it does not affect the law relating to re-entry or 
 forfeiture or relief for non-payment of rent (/) . It relates 
 to existing as well as to future leases, and repeals 22 & 23 
 
 (b) 44 & 45 Vicfc. c. 41, s. 14; See Dendy v. Ilvans, (1909) 2" 
 55 & 56 Vict. c. 13. K. B. 894; affirmed, (1910) 1 
 
 (c) Fletcher v. Nokes, (1897) K. B. 263; 79 L. J. K. B. 121. 
 1 ai. 271; 66 L. J. Ch. 177; . . „ „ , „, . 
 
 Lock V. Pearce, (1893) 2 Ch. 271 nsqq^^'o 'e 7^ 68 V T O^b' 
 
 62 L. J. Ch. 582. C1899) 2 Q B. 79, 68 L. J- Q- B. 
 
 id) Barroro v. Isaacs, (1891) 1 ^^% -^^of gA l'To B 776 
 Q. B. 417; 60 L. J. Q. B. 179; ^' -l^- /94, 60 L. J- Q- B 776, 
 
 Eastern Telegraph ^.I)ent,(\%^^) fj^vn^'-f t'^pi: ^il«^^ ^ ^ ' 
 
 1 Q. B. 835; 68 L. J. Q. B. 564; *"^^' ^" ^- '^- ^^- ^'^^• 
 Gentle v. Faulkner, (1900) 2 (/) Scott v. Matthew Brown $- 
 
 Q. B. 267; 69 L. J. Q. B. 777. Co., 51 L. T. 746.
 
 LIMITS OF THE PRINCIPLE. 268 
 
 Vict. c. 35, ss. 4—9, and 23 & 24 Vict. c. 126, s. 2. By 
 the Act of 1892 it is provided that a forfeiture on bank- 
 ruptcy or execution may be relieved against, but only 
 within one year from the date of the bankruptcy or 
 execution; and this section does not apply to leases of 
 agricultural land, mines, public-houses, furnished dwell- 
 ing-houses, or property with respect to which the personal 
 qualifications of the tenant are of importance for the pre- 
 servation of the value or character of the property. And 
 the Court is empowered to protect under-lessees, on terms, 
 on the forfeiture of superior leases. The conditions and 
 terms on which the Court grants or refuses relief under 
 these statutes are illustrated by many decisions, the most 
 important of which, in addition to those already referred 
 to, are cited below (g) . 
 
 (ff) Imray v. Oahshette, (1897) Serle, (1898) 1 Ch. 652; 67 L, J. 
 
 2 Q. B. 218; 66 L. J. Q. B. 541; Ch. 344; Pan7iel v. Citij Breivery 
 
 Hind V. Nineteenth Century Co., (1900) 1 Ch. 496; 69 L. J. 
 
 Building Soc, (1894) 2 Q. B. Ch. 244; Short v. Turffontein 
 
 Q26; 63 1j. J. Q. B. 666; Chohne- Estates, (1905) A. C. 584; 74 
 
 ley's School v. Sewell, (1894) 2 L. J. P. C. 148; Ee Castle ^ Sons, 
 
 Q. B. 906; 63 L. J. Q. B. 820; Ltd., 94 L. T. 396; Mattheios v. 
 
 Howard v. Fanshawe, (1895) 2 Smallwood, (1910) 1 Ch. 777; 79 
 
 Ch. 581; 64 L. J. Ch. 666; Re L. J. Ch. 322.
 
 264 
 
 CHAPTER V. 
 
 MORTGAGES AND LIENS. 
 
 Section I. — Mortgages at Law and in Equity. 
 
 I. Mortgages at Common Law. 
 
 II. The Equity of Redemption. 
 
 III. Assignment of Mortgages. 
 
 IV. Persons e^ititled to Redeem. 
 
 V. Time of Redemption. 
 
 VI. Mortgages of a Wife's Property. 
 
 VII. Mortgages of Personalty. — Bills of Sale. 
 
 Vivum 
 vadium. 
 
 Mortuum 
 vadium. 
 
 I. Mortgages at Common Law. 
 
 1. The common law recognised two kinds of landed 
 security, vivum vadium and mortuum vadium . The vivum 
 vadium consisted of a feoffment to the creditor and his 
 heirs until out of the rents and profits he had satisfied 
 himself his debt. The creditor took possession, received 
 the rents, and applied them in liquidation of the debt. 
 When it was satisfied the debtor might re-enter and 
 maintain ejectment. It seems to have been called vivum 
 vadium because neither debt nor estate was lost. 
 
 2. The mortuum vadium was a feoffment to the creditor 
 and his heirs to be held until the debtor paid his debt, 
 until which time the creditor received the rents without 
 account. The estate was unprofitable or dead to the mort- 
 gagor in the meantime, the original debt remaining un- 
 diminished. As in the vivum vadium, so in this security, 
 the estate was never lost to the debtor.
 
 MORTGAGES AT COMMON LAW. 265 
 
 3. Both those securities have long been obsolete, but 
 there still exists a form of security which somewhat re- 
 sembles each of them, namely, the Welsh mortgage. This Welsh 
 
 p 1 ?• J mortgage. 
 
 consists of a conveyance of an estate to the creditor and 
 his heirs to be held until the debt is discharged, the creditor 
 meanwhile receiving the rents and profits as an equivalent 
 for interest, while the principal remains undiminished. 
 No covenant for the payment of the debt is inserted in 
 the mortgage-deed, and the mortgagee has no power to 
 compel redemption or foreclosure, though the mortgagor 
 may redeem at any time (a). The Statute of Limita- 
 tions {h) would probably bar the right of redemption at 
 the expiration of twelve years from the satisfaction of 
 the debt, but would not commence to run until then, the 
 possession being up to that point not adverse (c). 
 
 4 . In the place of the ancient contracts of vimtm vaditim The modem 
 and mortuum vadium arose the modern mortgage, which 
 
 is thus described by Littleton ((^): "If a feoffment be 
 made upon such condition that if the feoffor pay to the 
 feoffee at a certain day, &c. forty pounds of money, then 
 the feoffor may re-enter ; in this case the feoffee is called 
 tenant in mortgage. ... If the feoffor doth not pay, 
 then the land, which is put in pledge upon condition for 
 the payment of the money, is taken from him for ever 
 .... and if he doth pay the money, then the pledge 
 is dead as to the tenant, &c." 
 The mortgage was thus an estate upon condition; a How regarded 
 conveyance was made to the creditor with a condition in ^ *^' 
 the deed, or in a deed of defeasance executed at the same 
 time, by which it was provided that on payment by the 
 mortgagor of a given sum at a time and place certain, it 
 should be la-udful for him to re-enter. Immediately, the 
 mortgagee became the legal owner of the land, and in him 
 the legal estate vested, subject to the condition. If the 
 
 (a) Eoivell v. Price, Prec. Ch. (e) Coote, p. 357, ed. 5. 
 
 423. 
 
 (ft) 37 & 38 Vict. c. 57. ((f) S. 332.
 
 266 
 
 MORTGAGES AT LAW AND IN EQUITY. 
 
 Cooditions 
 required to be 
 strictly 
 performed. 
 
 condition was performed the mortgagor re-entered, and 
 was in possession of his old estate. If the condition was 
 broken, the mortgagee's estate became absolute and inde- 
 feasible. 
 
 The common law generally required strict performance 
 of conditions; and with respect to conditions in mort- 
 gages, the rules on which it acted were, if not so rigid as 
 were observed in some cases, nevertheless sufficiently so to 
 work great hardship on mortgagors. There were unbend- 
 ing requirements as to the time and manner of payment, 
 any neglect of which resulted in the irremediable loss of 
 the estate, however much it might exceed in value the 
 sum advanced. 
 
 General 
 principle ; 
 
 how 
 
 established. 
 
 II . The Equity of R&demption . 
 
 1 . It is evident that the above stated principles of com- 
 mon law are repugnant to the general doctrines of Courts 
 of equity, according to which unreasonable penalties ought 
 always to be relieved against. In the jurisprudence of the 
 praetors at Rome, it had been established that where pro- 
 perty was pledged for a debt, the debtor might redeem 
 the estate on payment of the debt at any time before the 
 passing of a judicial sentence confirming the creditor in 
 his estate. The Court of Chancery could not, indeed, 
 alter the legal effect of the forfeiture at law; it could not 
 deprive the conveyance of its legal effect; but it brought 
 the Roman principle into operation by another means. 
 Acting in personam on the conscience of the mortgagee, 
 equity declared it unreasonable that he should retain for 
 his own benefit what was intended merely as a pledge, 
 and it adjudged that the mortgagor had an "equity to 
 redeem" the estate on payment within a reasonable time 
 of the principal debt with proper interest and costs, not- 
 withstanding the forfeiture at law(e). Thus was esta- 
 
 (e) Langford v. Barnard, Tothill, 134; decided in 1594.
 
 THE EQUITY OF REDEMPTION. 267 
 
 blished, with'out direct interference with legal doctrines, 
 the right known as the Equity of redemption. So bene- 
 ficial was this equitable interference found to be, and so 
 tenaciously did the Courts of law still adhere to their rigid 
 system, that mortgages soon fell almost entirely within Mortgages 
 
 ,..,.. «^7/^ P/-1I 11 f^^l within 
 
 the jurisdiction oi the (Jourt oi Chancery, and nave so jurisdiction of 
 (Continued to the present time. Now, by s. 34, sub-s. 3, equity. 
 of the Judicature Act, 1873 (/), the redemption and 
 foreclosure of mortgages are expressly assigned to the 
 Chancery Division of the High Court of Justice. 
 
 2. No sooner, however, was the equity of redemption 
 established, than another bold decision was required to 
 confirm the principle in its utility. It was found that Attempts to 
 creditors, eager to regain the unjust advantage which the equity by 
 law had afforded them, attempted to evade the fairer covenant, 
 doctrine of equity by requiring their debtors expressly to 
 preclude themselves by agreement from their right to 
 redeem. Fortified by this express stipulation, they sought 
 to rely on the maxim modus et convcntio mncunt legem, 
 and to assert this in opposition to the interference of 
 equity. But the firmness of the Courts of equity pre- 
 vented this result. Alw^ays looking ''at the intent rather 
 than at the form " of things, these Courts laid down that 
 the debtor could not by any engagement entered into at 
 the time of the loan preclude himself from his right to 
 redeem, and generally that it was inequitable that a 
 creditor should obtain, through the necessities of his 
 debtor, and under colour of a mortgage, a collateral 
 advantage beyond the payment of principal, interest, 
 and costs. 
 
 On this point the case of Romard v. Karris {g) is a Howards. 
 leading authority . It established the rule curtly expressed , 
 in the phrase "once a mortgage always a mortgage," that mortgage 
 the same deed could not at one time be a mortgage, and ^^gage." 
 at another an absolute conveyance. This principle has 
 
 (/) 36 & 37 Vict. c. 66. (^) 1 Vern. 190; 2 W. & T. 
 
 L. C. 11, ed. 7.
 
 ^68 MORTGAGES AT LAW AND IN EQUITY. 
 
 ever since been strenuously maintained (h) ; and the course 
 
 of time has produced many important developments. 
 
 Invalid Thus equity has refused to allow a stipulation that the 
 
 stipulations. in, i i i • • 
 
 mortgagor shall not pay the mortgage debt, or institute 
 
 proceedings for redemption for twenty years (^), or that 
 the mortgagee shall be a receiver of the rents of the estate 
 with a commission (j), or that the mortgagee in possession 
 ehall receive a certain sum for management (k). Though 
 the tendency of recent decisions has been to relax some- 
 thing of the stringency of the ancient rules as to stipu- 
 lations for collateral advantages to the mortgagee, beyond 
 his principal, interest, and costs, the principle that a mort- 
 gage cannot by any means be made irredeemable or re- 
 demption impeded is firmly established (Z). On a specu- 
 lative security, however, a bonus or commission deducted 
 by the mortgagee at the time of making the advances was 
 allowed, the contract being deliberate and without oppres- 
 sion (m) . But an agreement by which a mortgagor under- 
 took to use his best endeavours that the mortgagee should 
 always thereafter be employed as broker was held in- 
 valid (n) . In brewers' mortgages also, a covenant for the 
 exclusive purchase of the mortgagees' beer has been 
 admitted (o) as not being a clog on the redemption; but 
 the benefit of such a covenant cannot be asserted after 
 redemption (p) . It is doubtful whether the doctrine 
 
 (h) SaU\. Northampton, (1892) («) Bradlei/ v. Carritt, (1903) 
 
 A. C. 1; 61 L. J. Ch. 49. 2 A. C. 253; 72 L. J. K. B. 471; 
 
 (0 Cowdryy. Bay, I Gm.ZlQ; reversing S. C, (1901) 2 K. B. 
 
 Morgan v. Jeffreys, (1910) 1 Ch. 550; 70 L. J. K. B. 832. 
 
 620; 79 L. J Ch. 360. (o) Eoddinott v. Biggs, (1898) 
 
 il) Langstaffe v. Fenwick, 10 ^ \.{^^ 3^7. g^ j^ j/^(.^_^ g^^J 
 
 ves. 4U&. ^ . T -D 17 Sa7itley v. Wilde, (1899) 2 Ch. 
 
 (Jc)Comynsv C' , 5 I. R Eq. 474, reversing 1 Ch. 747; 68 L. .1. 
 
 583; Eyre v. Hughes, 2 Ch. D. ^h. 681. ^^^ ^l^o Be Beers Cons. 
 
 ^js XI ■ 7 HO T> Mines v. British South Africa 
 
 (I) Faircloughv. SwanBrewery ^^ /'iqio\ a n ko. qi t t 
 
 ^ h^^M ' ^^ ^- '^- Ch. 137; reversing -S-. C, (1910) 
 
 r \ m'- 77 TT ■ T. A^ 2 Ch. 502; 80 L. J. Ch. 65. 
 
 (m) Mainland v. Upjohn, 41 ' 
 
 Ch. D. 126; 58 L. J. Ch. 361. {p) Rice v. jS'oakes, (1900) 1 
 
 But compare and distinguish Ch. 213; 2 Ch. 445; 69 L. J. Ch. 
 
 James v. Kerr, 40 Ch. D. 449; 635; Noakes y. Rice, (1902) A. C. 
 
 68 L. J. Ch. 355. 24.
 
 THE EQUITY OE REDEMPTION. ^^^ 
 
 applies to debentures or floating securities {q) . At one 
 time a stipulation for the payment of compound interest 
 was discountenanced as savouring of usury, but the former 
 strictness has been relaxed in this respect (r) . Such 
 interest, howeVer, can only be charged by special agree- 
 ment (s) . It is admissible, while reserving a given rat© 
 of interest, to agree that on punctual payment the interest 
 shall be reduced (t) ; but if it is stipulated that the rat© 
 of interest shall be raised unless punctually paid, this 
 the Court will consider to be of the nature of a penalty, 
 and will not enforce (u) . But an agreement to pay a 
 future commission from the day of non-payment of interest 
 has been sustained (x) ; and if there is a proviso for re- 
 duction of interest on punctual payment, a mortgagee in 
 possession through the mortgagor's default is entitled to 
 the higher rate (y). 
 
 Apart from recent legislation a solicitor-mortgagee was 
 not entitled to any costs beyond costs out of pocket, 
 liemuneration for personal trouble and profit costs were 
 not allowed (z) . But by the Mortgagees' Legal Costs 
 Act, 1895 (a), he may now charge his ordinary costs for 
 negotiating the mortgage. 
 
 Reasonable fines stipulated for in building societies* 
 mortgages are recoverable, the rules for the time being 
 regulating the relations between the society and its mort- 
 gagees (b). 
 
 (§■) De Beers v. British S. A 
 Co., sup. 
 
 (r) Ck)ote, 943, 945, ed. 5 
 Clarkson v. Henderson, 14 Ch. D 
 348. 
 
 (s) Baniell v. Sinclair, 6 App 
 Cas. 181. 
 
 (t) Nicholls V. Maynard, 3 Atk 
 519. 218; 63 L. J. Ch. 239. 
 
 (u) Ibid.; Stanhojjex. Manners, (a) 58 & 59 Vict. c. 25. 
 
 2 Ed. 199. (6) Provident Building Soc. v. 
 
 (ic) General Credit, #c. Co. v. GreenhiU, 9 Ch. D. 122; Rosen- 
 Glegg, 22 Ch. D. 549. berg v. Northumberland Building 
 
 (ij) Union Bank,^-c. v. Ingram, Soc., 22 Q. B. D. 373; Bradbury 
 16 Ch. D. 53; Bright v. Camp- v. Wild, (1893) 1 Ch. 377; 62 
 bell, 41 Ch. D. 388. Compare, L. J. Ch. 503. 
 
 however, Wrigley v. Gill, (1906) 
 
 1 Ch. 165; 75 L. J. Ch. 210. 
 
 (s) Field V. Hopkins, 44 Ch. 
 D. 524; Stone v. Lickorish, (1891) 
 
 2 Ch. 363; 60 L. J. Ch. 289; 
 Fisher v. Hoody, (1893) 1 Ch. 
 129; 62 L. J. Ch. 14; Eyre v. 
 Wynn Mackenzie, (1894) 1 Ch.
 
 270 
 
 MOETGAGES AT LAW AND IN EQUITY. 
 
 Distincticni 
 between 
 mortgage and 
 sale on 
 condition 
 
 depends 
 on the 
 
 circumstances 
 of each 
 particular 
 
 Parol 
 evidence. 
 
 In accordance with the ahove principles, equity will not 
 allow a mortgagee to contract with the mortgagor at the 
 time of the loan, for the absolute purchase of the lands at 
 a specified sum in case of default in payment at a stated 
 time (c) . If the agreement is subsequent to and separate 
 from the mortgage it may be sustained (d) . He may, 
 however, agree for a preference of pre-emption in case of 
 sale, and this will be enforced if claimed within a reason- 
 able time (e). 
 
 3. The important distinction must also be observed be- 
 tween a mortgage and an absolute sale of an estate with a 
 proviso for the vendor to re-purchase upon certain terms. 
 If the Court considers that the transaction was not intended 
 as a mortgage, but as such a conditional sale, it will bind 
 the vendor strictly to his contract (/) . So also where there 
 is an (absolute conveyance with a subsequent agreement 
 that if the vendor desires it he may have his estate again 
 upon repayment of the purchase-money with interest or 
 costs (g) . 
 
 There being this important distinction between the effect 
 of a mortgage and that of a conditional sale, it is necessary 
 to consider what circumstances will furnish a criterion 
 by which to distinguish between the two transactions; 
 since it is evident that they will often prima facie much 
 resemble one another. There is no positive rule of law 
 for this purpose; it depends upon the particular circum- 
 stances of each case. Parol evidence will always be ad- 
 mitted to show that an apparent conveyance was intended 
 as a security only (h). If the money alleged to be pur- 
 chase-money is grossly inadequate as a price for the estate, 
 or if interest is paid on the money, or the grantee accounts 
 
 (c) Price v. Perrie, Freem. 
 258; Samusl v. Jarrah, ^c. Corp., 
 (1904) A. C. 323; 73 L. J. Ch. 
 526. 
 
 ((Z) Jieeve v. Lisle, (1902) A. C. 
 461; 71 L. J. Ch. 768. 
 
 (e) Orb^j V. Triffff, 2 Eq. Ca. 
 Abr. 599; Daivson v. D., 8 Sim. 
 
 346. 
 
 (/) Alderson v. White, 2 De G. 
 & J. 97. 
 
 (17) Cotterell v. Purchase, Ca. 
 t. Talb. 61. 
 
 (A) England v. Codrinf/ton, 1 
 Ed. 169; Maxwell v. Montacute, 
 Free. Ch. 626.
 
 THE ECiUlTY OF REDEMPTION. 271 
 
 for the rents, or the grantor remains in possession, these 
 are circumstances tending to show that the transaction was 
 really a mortgage, and not a sale (i) . The general 
 principle is that prima facie an absolute conveyance, con- 
 taining nothing to show the relation of debtor and creditor, 
 does not cease to be a conveyance and become a mort- 
 gage, merely because the vendor stipulates that he shall 
 have a right to re-purchase. If, however, it is shown that, 
 notwithstanding the form of an absolute conveyance, a 
 security only was intended, redemption will be allowed (fc) . 
 The question is, what upon a fair construction is the 
 meaning of the instrument (I). 
 
 There may also be a valid sale or release of the equity of Eelease or 
 redemption by the mortgagor to the mortgagee, and even of reden^-^*^ 
 if the consideration is inadequate, it will be enforced in the tion. 
 absence of fraud or duress (m) . 
 
 Where the conveyance of an estate to a person by way Mortgage by 
 of mortgage is intended to be in the nature of a family ^ttiemenU ^ 
 settlement, the equity of redemption may, contrary to the 
 general rule, be confined to the life of the settlor or mort- 
 gagor, and his heirs will not be allowed to redeem (n) . 
 
 4. The case ,of Cashorne v. Scarf e{o) is the leading Equity of 
 case establishing that an equity of redemption is not a mere esta^t™.^ ^*^° *° 
 right, as was considered in some early cases. It is, on the Casbomey. 
 contrary, an estate in the land, and may be dealt with as ^'^'^^f^' 
 such; for instance, it may be devised, granted, or entailed 
 with remainders, and such entail and remainders might be 
 barred by fine and recovery. Or it may be settled or 
 mortgaged; only so, however, that all incumbrancers sub- 
 sequent to the first, if he has the legal estate, will take 
 subject to his prior right. 
 
 (0 BrooTce v. Garrod, 3 K. & (J) Coote, 20 — 22, ed. 5; Shaw 
 
 J. 608; 2 DeG. & J. 62; Williams v. Je^ry, 13 Mo. P. C. 432. 
 
 V. Owen, 5 My. & Cr. 303. (m) Ford v. Olden, 3 Eq. 461. 
 
 («) Newcovib V. Bonham, 1 
 
 (Jc) Barton V. Bk. of N. S. W., Vern. 7; Bonham v. Newcomb, 
 
 15 App. Cas. 379; and sec Lisle ibid. 214; King v. Bromley, 1 
 
 V. Reeve, (1902) 1 Ch. 53; Eq. Ca. Abr. 595. 
 
 affirmed Reeve v. Lisle, (1902) (o) 1 Atk. 603; 2 W. & T. 
 
 A. C. 461; 71 L. J. Ch. 768. L. C. 6, ed. 7.
 
 272 
 
 MORTGAGES AT LAW AND IN EQUITY. 
 
 Legal 
 
 personal re- 
 presentative 
 of mortgag-ee 
 entitled 
 to mortgage 
 debt. 
 
 Thomhoroiigh 
 V. Baker. 
 
 Further, the ,owuer of an equity of redemption bein^ 
 considered as owner of the land, on his death intestate the 
 descent of the equity of redemption will be governed by 
 the same rules of law as the legal estate, whether the 
 general rules of law or those of a special custom, such as 
 gavelkind or borough English (p) . 
 
 5. The case of Thornborough v. Baker {q) illustrated 
 another incident of the equity of redemption; namely, 
 that while in the case of a mortgage in fee, on the decease 
 of the mortgagee, his heir must reconvey, on payment of 
 the mortgage money, interest and costs, yet his legal 
 personal representative will be entitled to the money. Now, 
 however, power is conferred on the personal representatives 
 to convey, the estate being deemed to vest in them as if 
 it were a chattel real (r) . But this section does not apply 
 to land of copyhold or customary tenure (s) . In the case 
 of an absolute conveyance with a collateral agreement for 
 re-purchase, if the purchaser dies seised, and the person 
 who conveyed to him then exercises his option of re- 
 purchase, the heir, and not the executor, of the purchaser 
 will be entitled to the money (t). 
 
 Mortgagee 
 may assign 
 alone ; 
 
 but assignee 
 should require 
 concurrence of 
 mortgagor, 
 
 III. Assignment of Mortgages. 
 
 A mortgagee has power alone at any time to assign the 
 mortgage; but the assignee should for his own protection 
 always obtain the concurrence of the mortgagor. This is 
 necessary because the assignee can only take subject to 
 all equities, and to the state of the account as between the 
 mortgagor and mortgagee. If the mortgagor does not 
 concur, he is not bound by the amount of the debt appear- 
 ing upon the face of the mortgage. If, in fact, the mort- 
 
 (p) Fawcett v. Loivther, 2 Ves. 
 sr. 301, 304. 
 
 {q) 1 Ch. Ca. 283; 3 Swanst. 
 628; 2 W. & T. L. C. 1, ed. 7. 
 
 (r) 44 & 45 Vict. c. 41, s. 30. 
 (s) 57 & 58 Vict. c. 46, s._88. 
 {t) St. John V. Wareham, cited 
 3 Swanst. 631.
 
 ASSIGNMENT OF MOKTGAGKS. 27^5 
 
 gage debt has been paid off, the security is determined; 
 if partly paid, it is determined pro tanto («). Further, if 
 a mortgage is assignell, and the assignee fails to give or at least 
 notice of the transfer to the mortgagor, his security is ^'^'^ ^lotice. 
 liable to be prejudiced by any payments made by the 
 mortgagor to the mortgagee subsequent to the assign- 
 ment (a;). A fortiori a mortgagor cannot be prejudiced 
 by any agreement between a mortgagee and his assignee 
 to increase the amount of the principal due, as by con- 
 verting interest into principal (|/); but if the assignment 
 is with the concurrence of the mortgagor, and there is an 
 arrear of interest thereon, any interest paid by the assignee 
 to the mortgagee will be taken as princijsal, and will carry 
 interest {z) . 
 
 Moreover, if a mortgagee is in possession, he is con- Mortgaf^ee in 
 sidered in equity for many purposes as a trustee; and then, possession 
 if he voluntarily assigns the mortgage, without the consent after 
 of the mortgagor, he will still remain liable to account for '^s^^eimen . 
 the profits, on the principle that it would be a breach of 
 trust to assign to an untrustworthy person (a) . This is 
 not so, however, where the assignment is directed by ordei' 
 of the Court (&). 
 
 It has been questioned whether, in cases in which an Assio-nee may- 
 assignee purchases a mortgage for less than is due upon it, "^"^^^+1^ 
 he is entitled to claim from the mortgagor the whole of whole 
 the original sum, or only the amount which he has paid. ^ebt^''°^ 
 As a general rule, it appears that he is entitled to the 
 benefit of his purchase, and may claim the whole debt (c) . 
 But if the purchaser stands in any fiduciary relation secxs if there 
 towards the owner of the estate, as trustee, executor, is a fiduciarj 
 
 relation. 
 
 (m) Matthews v. WaUwim, 4 («) 1 Eq. Ca. Abr. 328; 
 
 Ves. 118; Williams v. Sorrell, National Bank of Australia v. 
 
 ibid. 389. Hand in Hand Co., 4 App. Cas. 
 
 {x) Chambers v. Goldwin, 9 391. 
 
 Ves. 254; Turner v. S>nith, (1901) (6) Hall v. Heward, 32 Ch. D. 
 
 1 Ch. 213; 70 L. J. Ch. 144. 430; 55 L. J. Ch. 604; Magnus 
 
 (y) E. of Macclesfield v. v. Queensland, ^-c. Bank, 36 Ch. 
 
 Fitton, 1 Vern. 169. D. 25; 57 L. J. Ch. 413. 
 
 (^z) Ashenhurst \. James, Z A.ik.. (c) Phillips v. Vaughan, 1 
 
 271. Vern. 336; Anon., 1 Salk. 155. 
 
 s. 18
 
 274 
 
 MORTGAGES AT LAW AND IN EQUITY. 
 
 guardian, or agent, he will be considered as having 
 purchased for the benefit of the estate, and will only be 
 allowed repayment of wdiat he actually gave (d) . 
 
 Persons 
 entitled 
 to redeem : 
 
 Heir. 
 
 Devisee. 
 Assignee. 
 
 Trustee in 
 bankruptcy. 
 
 Judgrment 
 creditors 
 when their 
 lien is 
 complete. 
 
 IV. Persons entitled to Redeem. 
 
 Having discussed some of the principal characteristics 
 of an equity of redemption, the next inquiry is as to 
 what persons are or may be entitled to redeem. 
 
 (1.) We have seen that the equity of redemption may 
 descend to an heir. In other w'ords, an heir may redeem; 
 and it is sufficient for him to show a prima facie title (e). 
 
 (2.) An equity of redemption may be devised — i.e., a 
 devisee may bring an action to redeem (/) . 
 
 (3.) An equity of redemption may be assigned; thus, 
 an assignee may redeem (g) . If on the assignment an 
 intention appears to keep the security alive, it is not ex- 
 tinguished, but enures for the benefit of the assignee (h). 
 
 (4.) An equity of redemption, being an estate in the 
 mortgagor, devolves upon his bankruptcy upon the trustee; 
 thus a trustee in bankruptcy is entitled to redeem (i) . 
 
 (5.) Judgment creditors, who have a lien on an equity 
 of redemption, are entitled to redeem (/c); but it is neces- 
 sary that they should have issued execution under 23 & 24 
 Vict. c. 38, or 27 & 28 Vict. c. 112 (l), as otherwise their 
 lion on the land is not complete . It is to be observed that 
 
 (d) Morret v. Pn^kr, 2 Atk. 52, 
 54. 
 
 (e) Pyin V. Bowreman, 3 
 Swanst. 241, n. ; Lloyd v. Wait, 
 1 Ph. 61. 
 
 (/) Lewis V. Nanr/lr, 2 Ves. sr. 
 431. 
 
 (g) Anon., 3 Atk. 314. 
 
 (A) Thome v. Cann, (1895) 
 A. C. 11; 64 L. J. Ch. 1; Liqui- 
 dation, S;c. Co. V. Willourjhbif, 
 (1898) A. C. 321; 67 L. J. Ch. 
 251 ; Crosbie-IIill v. Sayer, (1903) 
 
 1 Ch. 866; 77 L. ,T. Ch. 466; 
 Manks v. Whiteley, (1912) 1 Ch. 
 735; 81 L. J. Ch. 457; reversing 
 8. C, (1911) 2 Ch. 448; 80 L. J. 
 Ch. 696. 
 
 (/) Fi-niikli/)i V. Fern, Barnard. 
 Ch. 30. 
 
 {k) Htonehewer v. Thompson, 
 
 2 Atk. 440. 
 
 (0 E. of Cork V. Russell, 13 
 Eq. 210, 215; see now 63 & 64 
 Vict. c. 26.
 
 PERSONS ENTITLED TO REDEEM. 
 
 27.') 
 
 the appointment of a receiver operates as an equitable 
 execution, and a judgment creditor is entitled to this 
 remedy {m) . 
 
 (6.) A plaintiff in a creditor's suit for administration 
 may, after a decree for sale of the real estate, bring an 
 action against the mortgagee to redeem, in order to carry 
 out the sale (n). 
 
 (7.) When an equity of redemption became forfeited 
 to the Cro^\^l, the Crown or its grantee might redeem (o). 
 
 (8.) So a lord claiming the reversion by escheat may 
 redeem a mortgage term (p) . 
 
 (9.) Where a voluntary conveyance was void under 
 27 Eliz. c. 4, as against purchasers, and so against the 
 mortgagee, who is pro tanto a purchaser, nevertheless a 
 volunteer under such a conveyance of an equity of 
 redemption was permitted to redeem (g) . 
 
 (10.) In short, any person interested in the equity of 
 redemption may redeem — e.g., a dowress(r); a tenant 
 for life, remainderman or reversioner (s), the tenant for 
 life having the first option, his consent being necessary to 
 redemption by a remainderman (^); a tenant by the 
 curtesy (?*); a jointress (a;); and a lessee (^). 
 
 (11.) Lastly, a subsequent mortgagee may redeem, 
 making the mortgagor or his heir a party to his action {z) . 
 
 Any person entitled to redeem the mortgage may redeem 
 any incumbrancer prior to himself on payment of his 
 
 PlaintifF in 
 administra- 
 tion suit. 
 
 Crown 
 
 on forfeiture. 
 
 Lord on 
 escheat. 
 
 Volunteers. 
 
 Any person 
 interested in 
 equity of 
 redemption. 
 
 A subsequent 
 mortgagee. 
 
 (?m) Anglo - Italian Bk. v. 
 JDavies, 9 Ch. D. 275; Westhmd 
 V. Rilof, 25 ibid. 413; 53 L. J. 
 Ch. 1153. 
 
 («) C/iristian v. Field, 2 Ha. 
 177. 
 
 (o) Aft. -Gen. v. Crofts, 4 Bro. 
 P. C. 136. 
 
 {p) Doiviie V. Morris, 3 Ha. 
 394. 
 
 {q) Rand v. Cartivright. 1 Ch. 
 Ca. 59; see now 56 ifc 57 Vict. 
 c. 21. 
 
 (r) Palmer v. Banby. Prec. Ch. 
 137. 
 
 («) Aynsly v. Reed, 1 Dick 
 249. 
 
 (0 Ravald V. Russell, Yo. 9: 
 ProHt V. Cock, (1896) 2 Ch. 808 
 66 L. J. Ch. 24. 
 
 («) Jones V. Meredith, Bunb 
 357. 
 
 (.r) Howard v. Harris, sup 
 p. 267. 
 
 (v) Tarn v. Turner, 39 Ch. D 
 456": 57 L. J. Ch. 452. 
 
 {z) Fell V. Brown, 2 Bro. C. C 
 276; Farmer v. Curtis, 2 Sim 
 446. 
 
 18 (2)
 
 276 
 
 MORTGAGES AT LAW AND IN EQUITY. 
 
 principal, interest and costs (a) ; and on tendering the 
 redemption money he is entitled to a delivery of the 
 title deeds, and to have a conveyance of the property 
 redeemed (6). The ordinary rule is that the mortgagor 
 must pay the costs of the reconveyance, and this includes 
 the costs of a vesting order when such has been necessary 
 to complete the mortgagee's title (c). 
 
 A mortgagor entitled to redeem has power to require the 
 mortgagee, instead of reconveying, to assign the mortgage 
 debt, and convey the property to any third person (d) ; and 
 this right can be enforced against any mortgagee loho has 
 not been in possession, by the mortgagor and each incum- 
 brancer, notwithstanding any intermediate incumbrance. 
 In case of conflicting claims, the requisition of a prior 
 incumbrancer prevails over that of a subsequent incum- 
 brancer or the mortgagor (e) . 
 
 No power to 
 redeem before 
 the time 
 named. 
 
 If not then, 
 six months' 
 notice. 
 
 V. Time of Redemption. 
 
 1 . A person cannot redeem before the time appointed in 
 the mortgage deed, although he tenders to the mortgagee 
 both the principal and the interest due up to that time (/) . 
 If he does not pay the debt at the appointed time, he must 
 give six months' notice of his intention to do so, and pay 
 punctually on the expiration of the notice, since it would 
 evidently be unfair to the mortgagee to compel him to 
 accept his money without giving him an opportunity of 
 providing for its reinvestment. If, ho'Avever, the mortgagee 
 
 (a) Exp. Carr, 11 Ch. D. 62; 
 Elton V. Curteis, 19 ibid. 49. 
 
 (b) Pearce v. Morris, 5 Ch. 227. 
 
 (c) Webb V. Crosse, (1912) 1 
 Ch. 323; 81 L. J. Ch. 259; dis- 
 tinguishing Rourke v. Robinson, 
 (1911) 1 Ch. 480; 80 L. J. Ch. 
 295. 
 
 (d) 44 & 45 Vict. c. 41, s. 15. 
 
 (e) 45 & 46 Vict. c. 39, s. 12; 
 
 Teevan v. Smith, 20 Ch. D. 724; 
 and see Alderson v. Elgey, 26 
 ibid. 567; Smithett v. Jlesketh, 
 44 Ch. D. 161; 59 L. J. Ch. 567; 
 Prvtherch v. Williams, 42 Ch. D. 
 599; 59 L. J. Ch. 79. 
 
 (/) Broivn v. Cole, 14 Sim. 427 ; 
 West Derby Union v. Metrop., 
 #c. Sac, (1897) A. C. 647; 66 
 L. J. Ch. 726.
 
 TIME OF REDEMPTION. 277 
 
 demands, or takes any steps to compel payment, no notice 
 is required, nor is interest payable in lieu thereof {g). But 
 when a foreclosure order has been made, the mortgagor 
 cannot claim to redeem on an earlier day than that fixed 
 by the order, on payment of the principal money with 
 interest to the day of payment only Qi) . 
 
 If due notice is given, and then the mortgagee refuses 
 to accept a full tender of the principal, interest, and costs, 
 thus compelling the mortgagor to seek a remedy in an 
 action for redemption, the mortgagee will be required to 
 pay the costs of the action (i) . 
 
 2. Independently of the Statute of Limitations (fc), a Limitation 
 mortgagee could not generally be disturbed after twenty the statute, 
 years' possession without any acknowledgment of the 
 mortgagor's title (?). The imprisonment, infancy, cover- Disability, 
 ture, or absence beyond seas of the mortgagor were 
 regarded as exceptional circumstances entitling him to 
 exceptional consideration, and, after the analogy of the 
 older statute (m), ten years were allowed after the removal 
 of the disability {n) . Moreover, even* in the absence of Acknowiedg- 
 fraud or oppression, a very slight act of acknowledgment 
 of title on the part of the mortgagee, such as keeping 
 private accounts of the profits, sufficed to preserve the 
 equity of redemption (o) . A fortiori the keeping of 
 accounts with the mortgagor or his heir, or an acknow- 
 ledgment of the equity of redemption in a conveyance or 
 devise, would suffice for that purpose (p); and even parol Parol 
 evidence of the conversation of the mortgagee has been evidence. 
 
 {g) LetU V. Hutchins, 13 Eq 
 176; Prescott v. Phipps, 23 Ch 
 
 D. 372; Bovill v. Endle, (1896) (w) 21 Jac. I. c. 16. 
 
 1 Ch. 648; 65 L. J. Ch. 542 
 Smith V. S., (1891) 3 Ch. 550 
 60 L. .T. Ch. 694; Rourhe v 
 
 (Ji) 3 & 4 Will. IV. c. 27. 
 (0 Anon., 3 Atk. 313. 
 
 (h) Jenner v. Tracy, 3 P. Wms. 
 287, n. 
 
 (o) Fairfax v. Montague, cited 
 
 Robinson, sup. 2 Ves. jr. 84; Hansard v. Hardy, 
 
 (h) Hill V. Rowlands, (1897) 18 Ves. 455. 
 
 2 Ch. 361; 66 L. J. Ch. 689. (p) Smart v. Hunt, 4 Ves. 
 
 (/) Grugeon v. Gerrard, 4 Y. 478, n. ; Conway v. Shrimpton, 5 
 
 & C. Ex. 119, 128; Harmer v. Bro. P. C. 187. 
 Priestley, 16 Beav. 569.
 
 278 MORTGAGES AT LAW AND IN EQUITY. 
 
 admitted on "behalf of a mortgagor seeking redemption {q) . 
 But the acknowledgment, to be effectual, should, it seems, 
 be made before the expiration of the statutory period (r) . 
 Statute 3 & 4 3 Many of the difficulties which thus arose on tiie 
 c. 27, 8. 28. question of acknowledgment were put an end to by 3 & 4 
 Will. IV. c. 27, which fixed the limitation of the mort- 
 gagor's equity at twenty years after the time at which the 
 mortgagee obtained possession or receipt, unless in the 
 meantime an acknowledgment of the title of the mortgagor, 
 or of his right of redemption, should have been given to 
 the mortgagor or some person claiming his estate, or to 
 an agent of such mortgagor or person, in uriting signed 
 by the mortgagee or the person claiming through him. 
 The same statute further provides that if there be more 
 than one mortgagor, or more than one person claiming 
 through the mortgagor or mortgagors, such acknowledg- 
 ment, if given to any of such mortgagors or persons, sliall 
 be as effectual as if given to all; but that if there shall 
 be more than one mortgagee, &c., the signature of one 
 shall be only effectual against himself and the persons 
 claiming through or under him (s) . 
 37 & 38 Vict. This section has now been replaced by the provisions 
 of a more recent statute (t) which came into operation on 
 the 1st January, 1879, and which enacts that when a mort- 
 gagee shall have obtained possession or receipt of the profits 
 of land, or of any rent comprised in his mortgage, the 
 mortgagor, or any person claiming through him, shall not 
 bring any action or suit to redeem the mortgage, but 
 within twelve years next after the time at which the mort- 
 gagee obtained such possession or receipt, unless in the 
 meantime an acknowledgment in writing of the title of 
 the mortgagor or of his right to redemption shall have 
 been given to the mortgagor, or to some person claiming 
 
 (q) Perry v. Marston, 2 Cox, (r) Marhwick v. Hardingham, 
 
 295; see Whiting v. White, 2 15 Ch. D. 339. 
 Cox, 290. (s) Sect. 28. 
 
 (0 37 & 38 Vict. c. 57.
 
 riMK OF KKDKMP'J'ION, 
 
 279 
 
 his estate, or to the ag-ent of such mortgagor or person, 
 signed by the mortgagee or the person ebiiming through 
 him; and in such case no action shall be brought but 
 within twelve years after such acknowledgment. The 
 provisions for the cases of an acknowledgment by one of 
 two or more mortgagors or to one of two or more mort- 
 gagees correspond to those of the earlier Act. 
 
 Time will not run under these Acts against the mort- Time only 
 gagor while the possession of the mortgagee may be po^^ein" is 
 referred to another title, and is consequently not adverse, adverse. 
 Thus, for instance, if a mortgagee having purchased the 
 estate of a tenant for life who has joined the remainderman 
 in mortgaging the estate, enters into possession, time will 
 not run against the remainderman during the life of the 
 tenant for life (u), because until the death of the latter 
 the mortgagee's possession does not conflict with the rights 
 of the remainderman. 
 
 4. There are numerous cases respecting the question as What is 
 to what is a sufficient acknowledgment within the statutes . acknowled"- 
 It will be observed that by the language of both Acts the ment. 
 acknowledgment must be given to the mortgagor himself, 
 or to those claiming his estate; an admission to a third 
 person does not suffice, except indeed to an agent or 
 solicitor of the mortgagor or claimant (x) . No particular 
 form of acknowledgment is required, nor need the amount 
 due be stated (y); an acknowledgment will not, however, 
 be inferred from equivocal expressions (z) . 
 
 It has been decided that the sections suspending the 
 running of the statute pending disability do not apply as 
 between mortgagor and mortgagee (a). 
 
 (m) JJyde V. BaJlaway, 2 ITa. (~) Thompson v. Bowyer, 9 
 
 528; Hiigill v. WUIdnson, 38 Ch. Jur. N. S. 863; Astbury v. A., 
 
 D.480; 57L. J. Ch. 1019; PoweJI (1898) 2 Ch. Ill; 67 L. J. Ch. 
 
 V. Srod/ntrsf, (1901) 2 Ch. 160. 471. 
 
 (a:) Truloch v. Itobt/, 12 Sim. (a) Kinsman v. Rouse, 17 Cli. 
 
 402; 2 Ph. 395; Stans field v. D. 104; 50 L. J. Ch. 486; Fors/rr 
 
 Hobson, 3 De G. M. & G. 620. v. Patterson, 17 Ch. D. 132; 60 
 
 (y) Ibid.; St. John v. Boufjh- L. J. Ch. 603; Sands to Thomv- 
 
 ton, 9 Sim. 219. son, 22 Ch. D. 614; 52 L. J. Ch. 
 
 406.
 
 280 
 
 MORTGAGES AT LAW AND IN EQUITY. 
 
 Wife's estate 
 considered 
 only as a 
 surety. 
 
 If wife pays 
 mortgage 
 debt she may 
 stand in place 
 of the 
 mortgagee ; 
 
 but the debt 
 must be his 
 debt. 
 
 The burden 
 of proof on 
 
 VI. Mortgage of Wifes Property by Husband and Wife. 
 
 It is a well established rule that whenever a husband 
 and wife join in mortgaging the wife's estate of inheritance 
 for the benefit of the husband, her estate will be con- 
 sidered only as surety for his debt; and on the husband's 
 death the wife or her heir will be entitled to have her 
 estate exonerated out of his property, and will be preferred 
 to the legatees, though not to the creditors of the hus- 
 band (b). To prevent an inference being drawn that the 
 wife was surety only, it must be shown by affirmative 
 evidence, either that the money was applied for her benefit, 
 or that when raised it became, by assent or agreement of 
 the husband, her separate property, and was afterwards 
 given by her to him (c) . 
 
 Upon the same principle where a wife paid her husband's 
 mortgage debt by a loan out of her separate estate, she 
 was held entitled to stand in the place of the mortgagee (d), 
 and where she joined with him in charging her estate she 
 was similarly entitled (e). A fortiori, if she alone mort- 
 gages her separate estate to raise money for her husband, 
 she is in the same position as any other of his creditors (/) . 
 
 But in order to claim exoneration from the husband's 
 estate, the debt must be distinctly his debt. A mortgage 
 of the wife's estate in order to pay debts contracted by 
 her before marriage (g), or a mortgage effected before her 
 marriage, which the husband afterwards covenants to pay, 
 will not be charged against the husband's property to 
 exonerate that of his wife (A). And the same rule applies 
 if the wife receives into her own hands or has the absolute 
 disposal of the mortgage money (i) . The burden of proof 
 
 (b) Tate v. Austin, 1 P. W^ms. 
 264; Hudson v. Carmichael, Kay, 
 613, 620. 
 
 (c) Hall V. H., (1911) 1 Ch. 
 487; 80 L. J. Ch. 340. 
 
 (ri) Parteriche v. Powlet, 2 
 Atk. 384. 
 
 (e) Ibid. ; Kobinion v. Gee, 1 
 Ves. sr. 252. 
 
 (/) Hudson V. Carmichael, sup. 
 
 (g) Lewis v. Nangle, 1 Cox, 
 240; Amb. 150. 
 
 (//) Bariot V. Ouqhtnn. 1 P. 
 Wms. 347. 
 
 («■) Clint 0)1. V. Hooper, 1 Ves. 
 jr. 173; 3 Bro. C. C. 201, 212; 
 Thomas v. T., 2 K. & J. 79; Hall 
 V. 77., sup.
 
 MOR'KiAGK OF WIFE S PKOJ'EKrV 
 
 281 
 
 is not, however, on the wife, to show that the money was thehusband'K 
 applied for her husband's benefit, but it is for his represon- tives. 
 tatives to show that it was not so(/c); and they may- 
 avail themselves of parol declarations of the wife for this 
 purpose (l). 
 
 Where the wife's estate is mortgaged, notwithstanding Resulting 
 
 ,, -PI •• 111-i! trust for the 
 
 that the equity oi redemption is reserved to the heirs oi ^ifg. 
 the husband, there will be a resulting trust for the wife 
 and her heirs {m) . The mere form of reservation is not 
 sufficient to alter the previous title, but is considered as an 
 inaccuracy or mistake to be corrected by the state of the 
 title as it was before the mortgage (n) . 
 
 Nevertheless, if it appears to have been the intention of 
 the wife to alter the limitation of the equity of redemp- 
 tion, effect will of course be given to it. The presumption 
 is the other way, but may be rebutted by satisfactory 
 evidence (o) . 
 
 VII. Mortgages of Persmialty — Bills of Sale. 
 
 For the protection of creditors against secret dispositions 
 of property to their prejudice, and at the same time for the 
 protection of debtors against the machinations of money- 
 lenders, mortgages of personal chattels have been made 
 the subject of special legislation. 
 
 Before, however, directing attention to the provisions 
 of the Acts by which such transactions are regulated, it is 
 necessary to refer to certain rules which, apart from the 
 statutes, distinguish mortgages of personalty from mort- 
 gages of real estate. 
 
 (/,•) Kinnoul v. Money, 3 F cl to n, l-\ A-^-p.Ca.^. &\\ Williams 
 
 Swanst. 202, 208, n.; Hall v. //., v. Mitchell, (1891) 3 Ch. 474; 60 
 
 sup. L. J. Ch. 807; Bavis v. IFhite- 
 
 (l) Clinton V. Hooper, sup. head, (1894) 2 Ch. 133; 63 L. J. 
 
 (m) Huntinffdon\. H., 2 Yexn. Ch. 471. 
 
 437; Broad v. B., 2 Ch. Ca. 161. (o) Jachson v. James, 1 Bli. 
 
 («) Ruficombe v. Hare, 6 Dow, 104; Reeve v. Hicks, 2 S. & S. 
 
 1; 2 Bli. N. S. 192; Jojies v. 403. 
 Davies, 8 Ch. D. 205; Plomley v.
 
 282 
 
 MORTGAGKS AT LAW AND IN EQUITY. 
 
 Mortgage 
 contrasted 
 with pledg 
 
 Pledges. 
 
 Remedies of 
 pledgee. 
 
 First, the distinction must be observed between a morl - 
 gage and a pledge, a distinction analogous to thai ol" 
 Roman Law between the contracts of hypotheca and 
 pignus. 
 
 We have seen that a mortgage is a conveyance or 
 transfer of property upon condition, becoming absolute 
 if the condition is not performed, but subject to be avoided 
 by performance of the condition. And this definition is as 
 applicable to mortgages of personalty as to those of realty. 
 
 A pledge or pawn, on the other hand, is a security 
 created by the actual or constructive delivery of the 
 possession of a personal chattel to a bailee, or pledgee, the 
 general property in the chattel remaining in the pledgor: 
 the pledgee having only a special property or right of 
 retainer until the payment of the debt secured {p) . The 
 law as to pledges does not require detailed exposition here, 
 falling rather under the head of bailments at Common 
 Law than under any doetrine of equit}'. 
 
 A pledgee can, only under special circumstances, sue in. 
 equity for foreclosure and sale of his pledge (g), though if 
 a time for redemption has been fixed by the contract, ho 
 may, on giving due notice to the pledgor, sell witliout 
 applying for the authority of a judicial decree (r). If no. 
 time has been fixed for payment there must be a previous 
 demand (s). The same rules apply when the subject- 
 matter of the security is a chose in action (s). A Court of 
 Common Law is, however, the proper forum for a pledgor 
 seeking to redeem, unless the need of some special equit- 
 able relief, such as account, or an assignment of the pledge,, 
 necessitates an appeal for equitable assistance (i^). 
 
 (p) Jones V. Smith, 2 Ves. jr. 
 372, 378; North-Western Bk. v. 
 Poynter, (1895) A. C. 56; 64 
 L. J. P. C. 27. 
 
 (^) Exp. Mountfort, 14 Ves. 
 606; Carter v. Walce, 4 Ch. D. 
 605; General Credit, ^c. Co. v. 
 Glerjrj, 22 Ch. D. 549. 
 
 (r) Martin v. Reid, 11 C. B. 
 
 N. S. 730; Kemp v. Westbrook,. 
 1 Ves. sr. 278; Jones v. Marshall, 
 24 Q. B. D. 269; 59 L. J. Q. B. 
 123. 
 
 (s) France v. Clark, 22 Ch. D. 
 830; 26 ib. 257; 52 L. J. Ch. 
 362; 53 ib. 588. 
 
 (t) Jones V. Smith, sup.
 
 MORTGAGES OF PERSONALTY — BILLS OF SALE. 283 
 
 Reversionary interests in settled funds are often Reversionary 
 •^ . 11 interests. 
 
 resorted to as a security, and money raised thereon 
 by mortgage. In such a case if the reversion falls 
 into possession before the mortgagee has exercised his 
 power of sale, the mortgagee is entitled only to the 
 amount of his mortgage debt and interest; and if 
 there is a surplus, the settlement trustees must hold it for 
 the benefit of subsequent incumbrancers, or, if there are 
 none, of the mortgagor (u) . 
 
 Mortgages of ships are subject to special statutory Ships, 
 provisions, and a legal mortgage must be expressed and 
 transferred in the forms prescribed by the Merchant 
 Shipping Act, 1894 (x), and duly registered. Interests 
 arising under contract or other equitable interests may be 
 enforced by or against owners and mortgagees of ships in 
 the same manner as in respect of any other personal pro- 
 perty. Registered mortgages rank according to their 
 dates of registration; but an unregistered mortgage is 
 valid as between mortgagor and mortgagee, and generally 
 against all persons except a subsequent registered mort- 
 gagee (?/). 
 
 Mortgages of leaseholds generally follow the analogy of Leaseholds, 
 those lof freeholds, giving rise to the same remedies of 
 foreclosure or sale on the one hand, and redemption on the 
 other. There is, however, an important distinction between Personal 
 such mortgages and mortgages of personal chattels. The chattels, 
 latter are indeed subject to redemption in the usual 
 way (2); but the mortgagee, after breach of condition, 
 has a right to sell after a reasonable time, upon giving due 
 notice without suing for foreclosure (a) . And the same 
 
 (m) Jeffery v. Saijles, (1896j 1 137; Barclatj ^ Co. v. Poole, 
 
 Ch. 1; 65 L. J. Ch. 188; cf. Re (1907) 2 Ch. 284; 76 L. J. Ch. 
 
 Foligno's Mortgage, 32 Beav. 131. 488. 
 
 (a;) 57 & 58 Vicfc. c. 60. (z) Kemp v. Westbrook, 1 Ves. 
 
 (y) Keith v. Burrows, 2 App. s^- ^'S- 
 
 Cas. 636; Black v. Williams, (a) Tucker v. Wilson, 1 P. 
 
 (1895) 1 Ch. 408; 64 L. J. Ch. Wms. 261.
 
 c. 36. 
 
 '^84 MORTGAGES AT LAW AND IN EQUITY. 
 
 applies to a mortgage of shares (b) . Moreover, there being 
 no statute of limitation applying to a mortgage of per- 
 sonal property, the right of foreclosure may be asserted, 
 notwithstanding that the personal remedy for the mort- 
 gage debt is statute-barred (c). 
 
 Bills of Sale ]3^|- ^]^q Q^ef distinctions relating to mortgages of 
 
 Acts. . . ^ ... 
 
 chattels are those which arise from the provisions of the 
 
 Bills of Sale Acts, 1854, 1878 and 1882 (d). 
 17 & 18 Vict. The causes which led to legislation on this subject are 
 well indicated in the preamble to the Act of 1854, which 
 recites that " Frauds are frequently committed upon 
 " creditors by secret bills of sale of personal chattels, 
 " whereby persons are enabled to keep up the appearance of 
 " being in good circumstances and possessed of property, 
 " and the grantees or holders of such bills of sale have the 
 " power of taking possession of the property of such 
 "persons to the exclusion of the rest of their creditors." 
 In order to check such dishonest obtaining of credit, this 
 Act provided that all bills of sale of personal chattels 
 whereby the grantee or owner should have the power, 
 with or without notice, to seize or take possession of the 
 property subject thereto, should, unless registered as 
 therein directed, be void as against the assignees in bank- 
 ruptcy, or under an assignment for the benefit of creditors 
 of the grantor, and as against all persons seizing the 
 property comprised therein in execution of any process of 
 the Courts, so far as regarded the property in or right to 
 the possession of any personal chattels comprised therein, 
 which at or after the time of such bankruptcy or the 
 execution of such assignment or of the executing such 
 process, and after the expiration of twenty-one days, 
 should be in the possession or apparent possession of the 
 person making the bill of sale. 
 
 (i) Beverges v. Snndemnn, Mitchell, (1899) 2 Ch. 161; 68 
 
 (1901) 1 Ch. 70; 70 L. J. Ch. L. J. Ch. 568. 
 
 47; (1902) 1 Ch. 579. {d) 17 & 18 Vict. c. 36; 41 & 
 
 (c) London ^ M. Bk. v. 42 Vict. c. 31 ; 45 & 46 Vict. c. 43.
 
 MORTGAGES OF PERSONALTY BILLS OF SALE. 285 
 
 The great number and difficulty of the questions arising 
 respecting the interpretation of this Act necessitated 
 further legislation for their satisfactory solution. At the 
 same time it was found necessary to provide for and 
 counteract some ingenious modes of evading the Act which 
 had been invented by keen pract;itioners, and further to 
 provide for the protection not only of the creditors of the 
 grantor, but of the grantor himself. Hence the more 
 detailed and stringent measures of 1878 (e) and 1882 (/), 
 by which statutes the law respecting mortgages of per- 
 sonal chattels is now regulated. 
 
 It must suffice briefly to summarize the results of this 
 legislation . 
 
 1. Under the Act of 1878, the expression "Bill of Meauinf? of 
 Sale " includes .assignments, transfers, declarations of trust '^^if^ 
 without transfer, inventories of goods with receipt thereto 
 attached, or receipts of purchase-moneys of goods and 
 other assurances of personal chattels, and also powers of 
 attorney, authorities or licences to take possession of jier- 
 sonal chattels as security for any debt, and also any agi'ce- 
 ment, whether intended or not to be followed by the 
 execution of any other instrument, by which a right in 
 equity to any personal chattels or to any charge or security 
 thereon shall be conferred. Marriage settlements and 
 agreements for settlements are exempt from the Act (g), 
 but not post-nuptial settlements (A) . The Act also excepts 
 documents used in the ordinary course of business as proof 
 of the possession or control of goods (i) . 
 
 The Act of 1882 only applies to bills of sale or other 
 documents included in the above category, which are 
 
 (e) 41 & 42 Vict. c. 31. K. B. 929. 
 
 (/) 45 & 46 Vict. c. 43. (A) Ashton v. Blackshaw, '.) Kt\. 
 
 (^g) S. 4; IVenman v. Lyon. 510. 
 
 (1891) 12 Q,. B. 192; 60 L. J. (0 See Re Hamilton, Exp. 
 
 Q,.B.m^; ReReis.Exp. Cloiujh, Carter, (1905) 2 K. B. 772: 74 
 
 (1904) 2 K. B. 769; 73 L. J. L. J. K. B. 905.
 
 28f) 
 
 MORTGAGES AT LAW AND IN EQUITY. 
 
 given as security for money lent (k) . It declares void all 
 bills of sale for sums under 301. (l). Neither Act applies 
 to the debentures of incorporated companies (m). But the 
 debentures of an industrial or provident society which is 
 under no statutory obligation to keep a register of securities 
 arc not within the exemption and require registration as 
 bills of sale (n) . 
 
 Registmtion. 2. A bill of Sale must now be duly attested and regis- 
 tered within seven days of its execution; and an affidavit 
 must be registered with it stating the execution and the 
 true date thereof, and the residence and occupation of the 
 grantor and of the attesting witnesses. Where the bill of 
 sale is by way of absolute gift, the execution must be 
 attested by a solicitor. Hire purchase agreements, if &0'^a 
 fide, are not within the Act and do not require registra- 
 tion; but it is otherwise if there is in effect a bill of sale 
 given as security under the colourable form of such an 
 agreement (o). 
 
 Priority. If two or more bills of sale are given comprising in 
 
 whole or in part the same chattels, they shall have priority 
 in order of the date of their registration as regards such 
 chattels (p) . Moreover, the registration of a bill of sale 
 must be renewed every five years (g) or it will be wholly 
 void (r) ; and where a subsequent bill of sale is executed 
 within or on the expiration of seven days after the execu- 
 tion of a prior unregistered bill of sale, and comprises all 
 or any part of the personal chattels comprised therein, and 
 
 (k) Swift V. Pamiell, 24 Ch. 
 D. 210. 
 
 (0 Sect. 12. 
 
 (jn) Re Standard Manufactur- 
 iwj Co., (1891) 1 Ch. 627; 60 
 L. J. Ch. 292; Richards v. 
 Kidder III inster Overseers, (1896) 
 2 Ch. 212; 65 L. J. Ch. 502. 
 
 (m) G. N. Ry. Co. V. Coal Co- 
 ojierative Soc.. (1896) 1 Ch. 187; 
 65 L. J. Ch. 214. 
 
 (o) Beckett v. Tower Assets 
 Co., (1891) 1 Q. B. 638; 60 L. J. 
 Q. B. 493; Mellor's Trustee v. 
 Maas, (1902) 1 Q. B. 137; afBrinod 
 sub nam. Maas v. Pepper, (1905) 
 A. C. 102; 74 L. J. K. B. 452. 
 
 {p) 41 & 42 Vict. c. 31, s. 10. 
 
 Iq) S. 11; Exp. Furber. (1893) 
 2 Q. B. 122; 62 L. J. Q. B. 355. 
 
 (r) FcntOH v. Blythe, 25 Q. B. 
 D. 417; 59 L. J. Q. B. 589.
 
 MORTGAGES OF PERSONALTY BILLS OF SALE. 287 
 
 is given as security for the same or any part of the same 
 debt, such subsequent bill shall be absolutely void as 
 regards such chattels and debt, unless proved to have 
 been given bo?id fide to correct some material error in 
 the prior bill of sale (s) . Time for registration may be 
 extended, but not so as to prejudice the rights of third 
 parties accrued in the meantime (f). 
 
 3. If given as security for money lent, a bill of sale Furm uf bill 
 must contain a schedule specifically enumerating the per- °* 
 sonal chattels comprised therein, and is void, except as 
 against the grantor, in respect of any personal chattels not 
 so described (u) ; and it must be made in accordance with 
 the form in the schedule annexed to the Act. This form 
 requires the consideration given to be stated, and the state- 
 ment must be clear and precise (x). The rate of interest 
 must also be stated (^), and the time or times at which 
 the payments of principal and interest are to be made (z); 
 ;and it is further provided that the chattels assigned shall 
 not be liable to seizure for any cause other than those 
 specified in sect. 7 of the Act; namely, in case of (1) de- 
 fault by the grantor of payment, or in the performance of 
 •covenants necessary for maintaining the security; or (2) in 
 I'aso of his bankruptcy, or distraint for rent, rates, or 
 
 (.s) S. 9; Tuck v. S. Cos. Bk., L. J. Q. B. 167; Thomas v. 
 
 12 Ch. D. 471; 58 L. J. Ch. 699. Searles, (1891) 2 Q. B. 408; 60 
 
 (t) Exp. Furber, sup.; Crew \. L. J. Q. B. 722. 
 Cummings, 21 Q. B. D. 420; 57 (v) See Myers v. Elliott. 16 
 
 L. J. Q. B. 641; Re Spiral Globe, Q. B. D. 526; Exp. Stanford, 17 
 
 Ltd., (1902) 1 Ch. 396; 71 L. J. lb. 259; Edwards v. Marston, 
 
 C\\.\2B; Be J opJin Brcn-erv Co., (1891) 1 Q. B. 225; 60 L. J. 
 
 <1902) 1 Ch. 79; 71 L. J. Ch. 71; Q. B. 202; Lumleij v. Simmons, 
 
 Re AbraJiams and Sons, (1902) 1 34 Ch. D. 698. 
 Ch. 695; 71 L. J. Ch. 307. (~) See Ilethcrington v. 
 
 (m) 45 & 46 Vict. c. 43, s. 4. Groome, 13 Q. B. D. 789; Siblet/ 
 
 See Roberts v. R., 13 Q. B. D. v. Higgs, 15 ib. 619; Hughes v. 
 
 794; Witt V. Banner, 19 ib. 276; Little, 18 ib. 32; Exp. liashtck, 
 
 20 ib. 114; Kelly v. Kellond, ib. (1894) 1 Q. B. 444; 63 L. J. 
 
 569; Jiicldey v. Grcewrood, 25 Q..^.2m; Moarmrrnd \. Le Cla!r, 
 
 Q. B. D. 277; 59 L. J. Q. B.413. (1903) 2 K. B. 216; 72 L. J. 
 
 (a:) Sharp v. McTIenry, 38 Ch. K. B. 496; Rose field v. Provin- 
 
 D. 427; 57 L. J. Ch. 691; Barlow cial Union Bank, (1910) 2 K. B. 
 
 •V. Bland, (1897) 1 Q. B. 125; 66 781; 79 L. J. K. B. 1150.
 
 288 
 
 MOKTCiAGES AT LAW AND IN EQUITY, 
 
 taxes; or (3) on fraudulent removal of the goods; or (4) on 
 non-production without reasonable excuse of the last 
 receipt for rent, rales, or taxes; or (5) in case of execution 
 levied against the goods of the grantor. See also cases 
 cited below as to the requirements of the statutory 
 form («) . The form does not admit of a valid bill of sale 
 of after-acquired property (b), but a covenant to replace 
 damaged articles by others of equal value has been sus- 
 tained as being for the maintenance of the security (c) . If 
 a bill of sale is given subject to a defeasance or condition 
 not contained in the body thereof, nor written on the same 
 paper therewith, and sucli condition or defeasance is not 
 in accordance with the scheduled form, the instrument is 
 void in toto, not only as a security on the goods included, 
 but also as to the covenant for payment {d) . 
 
 Definitions : 
 Personal 
 chattels ; 
 
 4. The expression " personal chattels " is in the present 
 Act more fully exj^lained than in that of 1854. The Act 
 of 1878 has expressly provided for some difficulties which 
 arose under the earlier Act, by enacting that personal 
 chattels shall mean goods, furniture, and other articles 
 capable of complete transfer by delivery, and {ivhen sepa- 
 rately assigned or charged) fixtures and growing crops; 
 but shall not include fixtures (except trade machinery as 
 elsewhere described) when assigned together with a free- 
 hold or leasehold interest in any land or building to which 
 they are affixed; nor growing crops when assigned together 
 with any interest in the land on which they grow («) . 
 
 («) Simmons v. Heseltine, 
 (1892) A. C. 100; 61 L. J. Ch. 
 1252; Dolcini v. D., (1895) 1 Q. B. 
 898; 64 L. J. Q. B. 427; Linfoot 
 V. Pockett, (1895) 2 Ch. 835; 64 
 L. J. Ch. 752; Edwards v. Marcus, 
 
 (1894) 1 Q. B. 587; 63 L. J. 
 Q. B. 363; Peace v. Brookes, 
 
 (1895) 2 Q. B. 451; 64 L. J. 
 Q. B. 747; Saunders v. White, 
 (1902) 1 K. B. 472; Swanley 
 Coal Co. V. Denton, (1906) 2 
 K. B. 873; 75 L. J. K. B. 1009. 
 
 (6) Thomas v. Kelly, 13 App. 
 Cas. 506; 58 L. J. Q. B. 66. 
 
 (c) Seed v. Bradley, (1894) 1 
 Q. B. 319; 63 L. J. Q. B. 387; 
 Coates V. Moore, (1903) 2 K. B. 
 140; 72 L. J. K. B. 539. 
 
 {d) Pettit V. Lodge, (1908) 1 
 K. B. 744; 77 L. J. K. B. 413; 
 Smith V. Whiteman, (1909) 2 
 K. B. 437; 78 L. J. K. B. 1073; 
 Hall V. Whiteman, (1912) 1 K. B. 
 683; 81 L. J. K. B. 660. 
 
 (e) S. 4.
 
 MORTGAGES OF PERSONALTY — BILLS OV SALE. 
 
 Fixtures and growing crops arc not to be decmod to be 
 separately assigned or charged by reason only that they 
 arc assigned or charged b}^ separate words, or that power 
 is given to sever them, if" by the same instrument any 
 freehold or leasehold interest in the land or building to- 
 which they are affixed or in the land on which such crops 
 grow, is also conveyed or assigned to the same persons or 
 person (/). But cases in which power is given to sever 
 and separately sell personal chattels are distinguishable, 
 and registration is necessary {g). Generally if a docu- 
 ment in the nature of a bill of sale is in part bad, lacking 
 registration, other provisions therein operating as colla- 
 teral security are not necessarily thereby avoided, if 
 distinctly severable (h) . 
 
 Trade machinery is the subject of important new pro- 
 visions. A detailed and exhaustive definition thereof is 
 given, and it is expressly declared to be within the expres- 
 sion " personal chattels." 
 
 5. The definition of the term "apparent possession" Apparent 
 remains in the Act of 1878 the same as in that of 1854. 
 The "occupation" must be a de facto occupation; mere 
 tenancy without residence will not suffice (i), but if the 
 debtor is allowed the use of the goods, notwithstanding the 
 formal putting a man into possession for the grantee, the 
 debtor is none the less deemed to be in apparent posses- 
 sion (/{■). 8 ecus, however, if the man in possession really 
 has control of the goods {I). Where the situation of the 
 goods is consistent with either the husband's or the wife's 
 
 (/) S. 7; Batcheldor v. Yates, Qi) Monetary Advance Co. v. 
 
 38 Ch. D. 112; 57 L. J. Ch. 697; Cater, 20 Q. B. D. 785; 57 L. J. 
 
 Brooke v. B., (1894) 2 Ch. 600; Q. B. 463; Re Isaacson, (1895) 
 
 64 L. J. Ch. 21. 1 Q. B. 33; 64 L. J. Q. B. 191. 
 
 {g) Clhnpson v. Coles, 23 Q. B. (/) Robinson v. Briggs, 6 L. R. 
 
 D.465: 58 L. J. Q. B. 346; Small Exch. 1. 
 
 V. T. /'. Bk., (1894) 1 Ch. 686; (k) Exp. .Jay, 9 Ch. 697; Exp. 
 
 63 L. J. Ch. 270; Johns v. Ware. Hoonian, 10 Eq. 63; Exp. Lewis, 
 
 (1899) 1 Ch. 359; 68 L. J. Ch. 6 Ch. 626. 
 
 165. (0 ^^ Francis, 10 Ch. D. 40P. 
 
 S, 
 
 414. 
 
 19
 
 290 MORTGAGES A'l' LAW AND IN EQUITY. 
 
 possession, the law attributes the possession to the one 
 having the legal title (m) . Wrongful possession takes a 
 case out of the Act (n) . 
 Debentures. It has already been seen that debentures issued by 
 
 incorporated companies are not within the Bills of Sale 
 Acts. Such debentures usually affect the personalty of 
 the company, and are, therefore, appropriately considered 
 under the present title. But, though in form and effect 
 mortgages, the remedies of debenture holders are in some 
 respects peculiar, owing to the nature of the security, and 
 deserve separate mention. The most usual resource is the 
 appointment of a receiver, or in a suitable case a receiver 
 and manager (o) . But, if other remedies prove insuffi- 
 cient, a winding-up order may be obtained (p), or an order 
 for foreclosure (g), or for sale of the property included in 
 the security, unless the company is one of a public 
 character, such as a tramway company (r) . 
 
 (m) Bamsei/ \.3IarffreU,il89i) 437; (1894) 2 Ch. 286; 63 L. J. 
 
 2 Q. B. 18; 63 L. J. Q. B. 513. Ch. 208, 519. 
 
 (w) Exp. Fletcher, 5 Ch. D. (p) Be Portsmouth Tramways, 
 
 809. (1892) 2 Ch. 362; 61 L. J. Ch. 
 
 (o) Tillett V. Nixon, 25 Ch. D. 462. 
 
 238; 53 L, J. Ch. 199; Makin.s- (q) Sadler v. Worley, (1894) 2 
 
 V. Ibotson, (1891) 1 Ch. 133; 60 Ch. 170; 63 L. J. Ch. 551; Elias 
 
 L. J. Ch. 164; McMahon v. North v. Continental, #c. Co., (1897) 1 
 
 Kent Iron Works, (1891) 2 Ch. Ch. 511; 66 L. J. Ch. 273. 
 
 148; 60L,. J. Ch. 372; ^eil!/«sA;e- {r) Marshall v, S. Staford 
 
 lyne, (1898) 1 Ch. 133; 67 L. J. Tramways, (1895) 2 Ch. 36; 64 
 
 Ch. 125; Edwards v. Standard L. J. Ch. 481; but see Bartlett 
 
 Rolling Stock, (1893) 1 Ch. 574; v. W. M. Tramways Co. (No. 2), 
 
 62 L. J. Ch. 605; Bartlett v. sup. 
 W. M. Tramways, (1893) 3 Ch.
 
 MOKTGAUOK IN POSSESSION. 291 
 
 Section II. — Rights of Mortgagor and Mortgagee. 
 
 I. Mortgagor in Possession. 
 II. Arcounting. 
 
 III. Re^nedies of Mortgagees. 
 
 IV. Tacking. 
 
 V. Consolidation. 
 
 I. Rights of a Mortgagor in Possession. 
 
 While a mortgagor remains in possession he is not Not 
 required to account for the rents and profits of the mort- for^^fHs ^ 
 gaged estate (a) ; nor is his agent, or any person claiming 
 under his voluntary revocable deed (b). He is not liable 
 to pay an occupation rent, unless and until a receiver is 
 appointed, and demand made (c) . 
 
 He has not, however, an unrestricted power of dealing 
 with the estate as its owner. As soon as default has been After default 
 made, he is in the position somewhat analogous to that of ^'^.^1? *° 
 
 ' ^ ^ eviction. 
 
 a tenant at will of the mortgagee: he is liable to eviction 
 
 without any notice (d) ; but, herein differing from a tenant 
 a.t will, he has no right to the emblements, these being- 
 part of the security (e) . 
 
 By the Conveyancing and Law of Property Act, Powers 
 1881 (/), s. 18, a mortgagor in possession is enabled to «* leasing. 
 make certain leases which will be valid against any incum- e. 41. 
 trancer (g), and a mortgagee in possession is enabled to 
 
 (a) Cohnan v. D. of St. Albans, (e) Keech v. Kail, Doug. 22. 
 
 3 Ves. 25. (/) 44 & 45 Vict. c. 41. 
 
 (6) Ilele V. Bexley, 20 Beav. {g') Wilson v. Queen's Club, 
 
 127. (1891) 3 Ch. 522; 60 L. J. Ch. 
 
 (c) Yorkshire Baulking Co. v. G98; Browne v. Peto, (1900) 1 
 
 Mullan, 35 Ch. D. 125. Q. B. 346; 2 Q. B. 653; 68 L. J. 
 
 (cf) Boe d. Roby v. 3Inis>i, 8 Q. B. 869. 
 B. & C. 767. 
 
 19 (2)
 
 37. 
 
 292 RIGHTS OF MORTGAGOR AND MORTGAGKK. 
 
 make similar leases valid against all prior iiieumbrancors 
 and the mortgagor. The leases so autliorisod are agricul- 
 tural leases for twenty-one and building leases for ninety- 
 nine years, taking effect in possession not later than twelve 
 months after date; they must reseiTe the best reasonable 
 rent, and in other respects comply with the provisions of 
 the Act. When made by a mortgagor in possession, a 
 counterpart must be delivered to the mortgagee. Such 
 a lease may contain an option for renewal, or an option 
 for the lessee to determine it at definite periods during 
 the term; but a lease including other property than that 
 comprised in the mortgage at one entire rent, is not autho- 
 rised by the Act(^). A mortgagor who granted a lease 
 under the power could not under this statute accept a 
 surrender of it without the mortgagee's concurrence («) . 
 1 &2 Geo. V. But by the Conveyancing Act, 1911 (k), s. 18 of the Act 
 of 1881 has been varied, and it is enacted that for the 
 purpose only of enabling a lease authorised and made 
 pursuant to s. 18 or by the mortgage deed to be granted, 
 a mortgagor in possession shall as against every incum- 
 brancer have power to accept from time to time a surrender 
 of any lease of the mortgaged land or any part thereof, 
 with or without in exception of all or any of the minesi 
 or minerals therein, or in respect of mines or minerals 
 or any of them, and on a partial surrender the rent may 
 be apportioned. For the same purpose a mortgagee in 
 possession has a like power. The section restricts the 
 power by various provisions which need scarcely be here 
 set out in detail. If after a lease granted by a mort- 
 gagor in possession the mortgagee takes possession, giving 
 notice to the tenant to pay rent to him, the mortgagee is 
 entitled by virtue of the Act of 1881 to enforce the 
 covenants and conditions of the lease as if he had been 
 a party to it, and this right cannot be affected by any 
 
 (h) King v. Bird, (1909) 1 (/) Bobbins v. WJnjte. (1906) 
 
 K. B. 837; 78 L. J. K. B. 499. 1 K. B. 125; 75 L. J. K. B. 38. 
 
 (^) 1 & 2 Geo. V. c. 37, s. 3.-
 
 MORTGAGOR IN POSSESSION. 293 
 
 oollateral agreement between the mortgagor and the 
 
 lessee (Z). A mortgagee so entering into possession is 
 
 liable to the tenant to the same extent as the lessor for 
 
 any eompensation under 53 & 54 Vict. c. 57. These 
 
 powers may, moreover, be excluded or increased by 
 
 express contract. In casea not within the statute, neither 
 
 mortgagor nor mortgagee could alone make a valid lease, 
 
 unless, of course, power so to do was reserved by the 
 
 deed (m), or under exceptional circumstances (^z) . The 
 
 Act of 1881 came into operation on the 1st January, 
 
 1882, and only applies to mortgages made after that date. 
 
 The Act of 1911 came into operation on the 1st January, 
 
 1912. 
 
 Since the produce of the land is considered as part of Mortgagor 
 
 the security, a mortgagor in possession may be restrained ™Xahied 
 
 by ini unction from committing waste on the estate, as, for from waste, if 
 .» • -i/NA . • L^ the security is 
 
 instance, from cuttmg timber (o). A mortgagee is not, thereby 
 
 indeed, as a matter of course, entitled to such an injunc- endangered. 
 
 tion; it is necessary for him to show that his security 
 
 is likely to be prejudiced thereby, being already, or 
 
 in consequence of the waste in danger of becoming, 
 
 insufficient (p) . 
 
 Mortgaged shares may qualify the mortgagor to act as a 
 director of a company {q) . The mortgagor of an advowson 
 has, on the living becoming vacant, a right to nominate, 
 and may compel the mortgagee to present his nominee, 
 notwithstanding an express agreement to the contrary (/•) . 
 
 Before the Jud. Act, 1873 (.S'), a mortgagor, though Can sue in his 
 
 (I) Mtiiilci'/ia/. i.fc. Soc. V. Harper v. Alp-in, 54 L. T. R. 
 
 Smith, 22 Q. B. D. 70; 58 L. J. 383; Ellis v. Glover, (1908) 1 
 
 Q. B. 61. K. B. 388; 77 L. J. K. B. 251. 
 
 {ni) Keech v. Hall, sup. {q) Pulbrooh v. Richtnond, ^-c. 
 
 {n) Hungerford v. Clay, 9 Co., 9 Ch. D. 610; Bainbridge v. 
 
 Mod 1; see Toirerson v. Jackson, Smith, 41 Ch. D. 462; Cooper v. 
 
 <1891) Q Q. B. 484; 61 L. J. Griffin, (1892) 1 Q. B. 740; 61 
 
 Q. B. 36; Corhett v. Plowden, 25 L. J. Q. B. 563. 
 
 Ch. D. 678; 54 L. J. Ch. 109. (r) Mackenzie v. Eohinaon, 3 
 
 (o) Farrant v. Lovell, 3 Atk. Atk. 558. 
 
 723. («) 36 & 37 Vict. c. 66. 
 
 {p) King V. ^^mith, 2 Ha. 239;
 
 294 
 
 RIGHTS OK MORTGAGOR AND MORTGAGEK. 
 
 own name in possession, could not sue in his own name to recover the 
 Act, 1873, land or its rent against a h'ssee to Avhom he had leased the 
 8. 25, 8ub-s. !>. lo^^^ before the mortgage, nor could he sue a trespasser or 
 other wrong-doer in his own name for damages. By this 
 statute this disability has been removed, and it is enacted 
 that " a mortgagor entitled for the time being to the pos- 
 " session or receipt of the rents and profits of any land, as 
 " to which no notice of his intention to take possession, or 
 *' to enter into the receipt of the rents and profits thereof 
 " shall have been given by the mortgagee, may sue for 
 " such possession or the recovery of such rents and profits, 
 " or' to prevent or recover damages in respect of any 
 "trespass or other wrong relative thereto (/), in his own 
 " name only, unless the cause of action arises upon a lease 
 "or other contract made by him jointly with any other 
 "person " (u). By the Conveyancing Act, 1881 (x), s. 10^ 
 a mortgagor in possession subject to a lease, granted before 
 the mortgage, can maintain an action in his own name 
 for damages in respect of a breach of covenant to 
 repair (?/). And by the Conveyancing Act, 1911 (z). s. 2, 
 6. 10 of the Act of 1881 applies to the benefit of any con- 
 dition of re-entry or forfeiture for breach of covenant,, 
 subject as therein specified. 
 
 II . Accounting 'between Mortgagor and Mortgagee . 
 
 1 . A mortgagee being, by virtue of his mortgage, legal 
 owner of the land, is, on default being made by the mort- 
 g'agor, entitled at law to immediate possession, or, if the 
 land be in lease, to receipt of the rents, and equity will 
 
 (t) Fairclough v, Marshall, 4 Fisher v. The Company, (1911> 
 
 Ex. D. 37. ■ 2 Ch. 223; 88 L. J. Ch. 661. 
 
 (ti) S. 25, sub-s. 5. (z) Hungerford v. Claji, 9 
 
 (jx) Sup. Mod. 1 : see Towerson v. Jackson^ 
 
 (v) Turner v. Walsh, (1909) 2 (1891) 2 Q. B. 484; 61 L. J. 
 
 K. B. 484; 78 L. J. K. B. 753; Q. B. 36; Corbett v. Plowden, 25 
 
 and see Ee Ind, Coope ^ Co., Ch. D. 678; 54 L. J. Ch. 109. '
 
 ACCOUNTING. 29& 
 
 not interfere to prevent him I'rom enforcing this remedy. 
 He may enter into possession at any time, and Avithout 
 notice (a) . He is, however, liable in damages if ho enter 
 before default (b). The entry of a mortgagee relates back 
 to the time when he liad the right to enter so as to 
 support an action for a trespass committed after the accrual 
 of the right but before actual entry (c) . 
 
 The mere fact that mortgagees are in receipt of the 
 rents and profits of the mortgaged est-ato does not neces-, 
 sarily make them chargeable as mortgagees in possession. 
 The question whether they are so chargeable depends upon 
 whether they have take)/ out of the mortgagor's hands 
 the power and duty of manayhiy the eMate, and dealing 
 with the tenants. Thus an agent of a mortgagor was in 
 the habit of receiving the rents and applying them in 
 payment of interest to the mortgagees; the mortgagees 
 wrote to him inclosing notices to the tenants to pay the 
 rents to them, which he was to serve on them if the mort- 
 gagor should attempt to interfere. The agent replied 
 promising to pay the rents to the mortgagees and not to 
 the mortgagor, and he did so, but the notices were not, 
 served on the tenants. The Court considered that the 
 agent had not ceased to be agent for the mortgagor, that 
 the management of the estate was not taken out of his 
 hands, and that the mortgagees were not chargeable as if 
 in possession {d) . 
 
 A mortgagee is not, merely because the mortgage deed 
 contains an attornment clause, deemed to be in possession 
 so as to be accountable for the rent reserved by the 
 clause (e) . 
 
 When in possession, the mortgagee must strictly account Mortgagee ia- 
 
 (a) 2 Mer. 359; Lows v. Tel- v. Ilford Gas Co., (1905) 2 K. B. 
 
 ford, 1 App. Gas. 41-4. As to the 493; 74 L. J. K. B. 799; Barnett 
 
 right of a mortgagee of a ship to v. E. of Guildford. 11 Ex. 19. 
 
 possession, see TAcJ/a^aor, (1907) {d') Noyes v. PollocJc, 32 Ch.: 
 
 P. 339. D. 53; 55 L. J. Ch. 513. 
 
 (6) Moore v. Shelley, 8 App. {e) Sianlei/ v. Grundy, Tl Ch. 
 
 Cas. 285; 52 L. J. P. C. 35. D. 478; 52 L. J. Ch. 248. 
 
 (c) Ocean Accident, &;c. Corp.
 
 ^96 
 
 RIGHTS OF MORIGAGOK AND MORTGAGEE. 
 
 possession 
 must account 
 strictly. 
 
 If no arrears 
 when posses- 
 sion taken, 
 annual rests. 
 
 Except in 
 mortgage 
 of leaseholds 
 ■where 
 security 
 is deficient. 
 
 If interest in 
 arrear, annual 
 rests not 
 directed. 
 
 ITntil whole 
 debt is paid 
 off. 
 
 for the rents and profits of the mortgaged estate, and if lie 
 occupies any part of it himself he will be charged an occu- 
 pation rent (/) . If there be no arrears of interest due at 
 the time he takes possession, and the rents and profits 
 exceed the amount of the interest, the account will gene- 
 rally be taken with annual rests, so that the excess of rent 
 may be annually applied in reducing the principal (^). 
 And this applies as well in the case of an occupation rent 
 as in that of other rents and profits {h) . 
 
 In the case, however, of a mortgage of leasehold pro- 
 perty, where there is no reasonable certainty that the 
 ground rent and insurance will be duly paid, or the houses 
 kept in repair, the mortgagee is entitled to enter into 
 possession even though no interest is in arrear; and in 
 such a case annual rests will not be directed against 
 him (i) . The burden of proving the reasonableness of his 
 entry into possession is, however, upon the mortgagee (*). 
 
 If the interest is in arrear when the mortgagee enters 
 into possession, annual rests will, as a rule, not be 
 directed (A:); and where the liability to account Avithout 
 annual rests has thus once commenced, it continues on the 
 same footing until changed by some further agreement (l). 
 The fact that the arrears of interest are subsequently paid 
 off does not of itself entitle the mortgagor to have rests 
 directed in his favour' (m) . If, however, the whole of the 
 debt is paid off by the receipt of the rents, from that time 
 annual rests will be decreed (n) . 
 
 Application 2. A mortgagee in possession who sells partof tliemort- 
 
 *OI DrOCGGQS of 
 
 sale. gag©d property under a power of sale in the mortgage, 
 
 must apply the proceeds of sjile first in payment of interest 
 
 (/) Smart v. Hunt, 1 Vern. 
 418, n. 
 
 (<)r) Shepherd v. Elliott, 4 Mod. 
 254. 
 
 (A) Wilson V. Metcalfe, 1 Russ. 
 ^30. 
 
 (0 Patch V. Wild, 30 Beav. 99. 
 
 (k) Wilson V. Cluer, 3 Beav. 
 
 136. 
 
 {I) Scholefield v. Locktrood, 32 
 Beav. 439. 
 
 («/) Davis V. Mai/, G. Coop. 
 238; 19 Ves. 383. 
 
 («) Wilson V. Cluer, 3 Boav. 
 136; Ashworth v. Lord, 36 Ch. 
 D. .545; 57 L. J. Ch. 230.
 
 ACCUUNTIN<;. 
 
 297 
 
 and costs, and then lilliur pay tlio balance to prior or sub- 
 secjucnt incunibniiiccris or to the niortg'agor, or apply it in 
 reduction ol' the principal duo on the mortgage (o). A 
 rest will be directed at the time of the sale if any surplus 
 of sale money beyond the interest and costs is retained by 
 the morlgagee, notwithstanding that interest may have 
 been in arrear when he entered into possession (p); but 
 the mortgagor is not entitled to have rests made in the 
 Account of rents and profits, which is treated as a separate 
 Account, distinct from that relating to the proceeds of 
 the sales (q). 
 
 3. In accounting, a mortgagee in possession is, as a Morto-agee 
 rule, only liable for fair rents and profits, or for what he ^Ith'what he 
 
 has actuallv received (r). If, however, he has been guilty actually 
 „.,„,,',. . . , , . receives. 
 
 •01 Wilful default m not receiving them, as by turning out 
 
 a good tenant, or by letting at less than is offered, or 
 
 under a restrictive covenant which produces a collateral 
 
 advantage, hi> will be charged Avith what he might have 
 
 received (s) . 
 
 4. A mortgagee in possession is liable to account for Account 
 any damage done to the property, as by pulling down expenditure', 
 buildings improperly (t), or by destroying or losing the 
 
 title deeds (m). On the other hand, it is his duty to keep 
 the property in repair, and he will be allowed for money 
 laid out for this purpose, with interest thereon (a^). So 
 also he will be allowed the costs of protecting the title 
 -of the mortgagor (//), and, generally speaking, all costs 
 
 (o) And see 44 & 45 Vict. e. 41, (.s) Hughes v. lJl//irn».s, 12 
 
 8. 21, sub-s. 3. Ves. 493; Parf,-iiisoii v. llaiihi(ry, 
 
 (p) ThoDipsvii V. Iliiihon, 13 L. K. 2 H. L. 1 ; White v. C'itif 
 
 Eq. 497. Brewerij, 42 Ch. D. 237; 58 L. J. 
 
 («7) Wriql.ey v. Gill, (1905) 1 Ch. 855. 
 
 •Ch. 241; 74 L. J. Ch. 160; Ains- (t) Sandon v. Hooper, 6 Beav. 
 
 worth V. Wilding, (1905) 1 Ch. 246. 
 
 435; 74 L. J. Ch". 256. {u) Brown v. Seidell, 11 Ha. 49. 
 
 (r) Simmins v. SInrley, 6 Ch. {x) Sandon v. Hooper, sup.; 
 
 D. 173; Shepard v. Jones, 21 ib. Eyre v. llughex. 2 Ch. D. 148. 
 
 469. (y) Sondon v. Hooper, sup.; 
 
 Parker v. Watlnns, Johns. 133.
 
 298 
 
 RIGHTS OF moki(;a(;ok and mortgagee. 
 
 and moneys 
 paid for 
 reasonable im- 
 provements. 
 
 Speculative 
 outlay not 
 required, 
 or proper. 
 
 Waste oiilj' 
 allowed wlien 
 security 
 insufficient. 
 
 44 & 45 "Vict. 
 c. 41, 8. 19. 
 
 reasonably incurred in relation to the mortgage debt (2). 
 The Agricultural Holdings Act, 1908 (a), makes special 
 provision for the compensation of a mortgagor's agricul- 
 tural tenants when a mortgagee takes possession. 
 
 5 . Further, he will be allowed for moneys laid out, with 
 the mortgagor's consent or acquiescence, in the improve- 
 ment of the property (&). And if even without such con- 
 sent he has reasonably expended money in permanent 
 works on the property, he is entitled, on taking the- 
 accounts, to an inquiry whether the outlay has increased, 
 the value of the property; if it has done so, he is entitled 
 to be repaid his expenditure so far as it has increased such 
 value (c) . He should not, without the mortgagors acquies- 
 cence, however, lay out money so as largely to increase the' 
 value of the property, and thus place it beyond the power 
 of the mortgagor to redeem {d) . 
 
 He is not bound to engage in any speculative adventure 
 for the benefit of the estate, as by opening mines or 
 quarries (e), Avhich must be at his own risk and hazard. 
 If mines are already opened, he should not make large 
 outlay in improving them(/). 
 
 6. Previously to 1882 it was only when a mortgaged 
 estate was insufficient in value to pay the mortgage, that 
 a mortgagee in possession might open mines and cut 
 timber (g) . If, having a sufficient security, he committed 
 such waste, ho was charged with the gross receipts, and 
 disallowed the expenses of working (/?,). Now he is 
 
 (z) See discussion as to costs 
 g'encrally, National Prov. Bank v. 
 Games, 31 Ch. D. 582; 55 L. J. 
 Ch. 576; and also Smith v. Watts. 
 22 Ch. D. 12; 52 L. J. Ch. 209; 
 Bird V. Wenn. 33 Ch. D. 219; 55 
 1^. J. Ch. 722; Wales v. Cart\ 
 (1902) 1 Ch. 860: 71 L. J. Ch. 
 483. 
 
 («) 8 Edw. Vn. c. 28, s. 12. 
 
 (6) Trimlesto)! v. Hnmill, 1 
 Ba. & Be. 385. 
 
 (c) Shepard v. Jones, sup. ,- 
 Henderson v. Astwood, (1894)- 
 A. C. 150. 
 
 (c?) Sandon v. Hooper, sup. 
 
 (e) Hughes v. Williams, sup. 
 
 If) Ron-e V. Wood, 2 J. & W.. 
 553. 
 
 {q) Mlllett V. Dan/, 31 Beav,. 
 470. 
 
 (h) Millett V. Davy. 31 Beav,. 
 470.
 
 REMEDIKS OF THE MORTGAGEE. ^9^ 
 
 empowered in poss^ession to cut and sell timber and otlier 
 
 trees ripe for cutting, not planted or left for shelter or 
 
 ornament. This applies only to mortgages made after 
 
 Dec. 31st, 1881. 
 
 A mortgagee in possession is responsible for the in- Property 
 (, 1 I • 1 nmst be 
 
 tegrity oi the property; thus, a mortgagee was required preserved. 
 
 to account for the proceeds of coal dug from the mortgaged 
 land by the trespass of adjacent coal-owners (i) . Formerly 
 a mortgagee of houses could not insure them against fire at 
 the 'mortgagor's expenw^ in tiie absence of an express agree- 
 ment with him, nor could ho require the mortgagor to 
 insure them. The power to insure and add the premiums 
 to the mortgaged debt was given by Tjord Cranworth's 
 Act (/r); and by 44 & 45 Viet. c. 41, ss. 19 and 23, this 
 power is confirmed and regulated, the insurance money 
 teing limited, in the absence of stipulations to the con- 
 trary, to two-thirds the value of the property. In 
 Ireland a mortgagee in possession with power of sale has 
 the powers and responsibilities of a landlord, for the pur- 
 poses of the Land Purchase Acts (l). 
 
 It is obvious that a mortgagee, if minded to enter into 
 possession, has need carefully to consider the various 
 obligations and responsibilities which he incurs, the more 
 so that having assumed them he cannot at his pleasure 
 relinquish them by yielding up the possession (m). 
 
 III. Remedies of the Mortgagee. 
 
 1. In addition to his right to possession, a mortgagee May sue for 
 has also, of course, a right at any time after payment of ' 
 
 the debt has become due to sue the mortgagor for the 
 money. Moreover, as it would be unjust that a mortgagee 
 should be subject to a perpetual account by the perpetual 
 
 (0 Eood V. Easton, 2 Giff. 692. (m) Prytherch v. Willinms, 42 
 
 (A;) 23 & 24 Vict. c. 145. s. 11. Ch. D. 590; 59 L. J. Ch. 79. 
 (0 59 & 60 Vict. c. 47, s. 42.
 
 1300 
 
 RIGHTS OF MORTGAGOR AND MORTGAGEE. 
 
 and for 
 foreclosure or 
 sale. 
 
 Attormuent 
 clause. 
 
 Distraint. 
 
 Rent must be 
 reasonable, 
 
 not 
 
 amounting to 
 fraudulent 
 preference. 
 
 continuance of the inortgagoi's equity of redemption, lie is 
 allowed, after giving a reasonable notice for the payment 
 of the debt, to come into equity and sue for the foreclosure 
 of the equity of redemption; in other words, he may seek a 
 decree which will give him the entire equitable as well as 
 the legal interest in the property; or, in the alternative,, 
 he may seek the enforcement of a sale of the estate. 
 
 2. An additional remedy is sometimes provided for a 
 mortgagee by the insertion in the mortgage deed of an 
 attornment clause, that is, a proviso that in case default 
 shall be made in payment of the mortgage debt, the 
 mortgagor shall continue to remain in possession as a 
 tenant of the hiortgagce, paying a certain specified rent, 
 usually the same in amount as the interest. This provi- 
 sion enables the mortgagee, if necessary, to utilise the 
 special remedy provided for the recovery of rent by land- 
 lords; namely, distraint. Whether the rent reserved equals 
 or exceeds the interest, the mortgagee has a prima facie 
 right to apply the proceeds of a distress in satisfaction of 
 principal as well as interest (n). The rent reserved must, 
 howe^■er, be of reasonable amount with regard to the value 
 of the premises (o). If it is exorbitant, or the attornment 
 is expressed only to come into operation on bankruptcy, it 
 will be deemed a fraudulent preference and void (p). 
 Moreover, an attornment clause needs registration under 
 the Bills of Sale Acts, when applicable, if the attornment 
 is contained in the mortgage deed (g), though apparently 
 not so when the mortgagee has taken possession and after- 
 wards demised the premises to the mortgagor. Want of 
 registration, however, does not prevent an attornment 
 clause from creating' the relation of landlord and tenant 
 
 (w) JixjJ. Ilanison, 18 Ch. D. 
 127; 50 L, J. Ch. 832. 
 
 (o) Re Stockton, ^c. Co., 10 
 Ch. D. 335; E.xi>. Vomci/, 21 Ch. 
 n. 442; 52 L. J. Ch. 121. 
 
 {p) Exp. WilliamH, 7 Ch. D. 
 138; Exp. Jackson, 14 Ch. D. 
 
 725; and see Exp. Isherwood, 22 
 (li. D. 384; 52 L. J. Ch. 370. 
 
 (<7) Be Willis, 21 Q. B. D. 384; 
 57 L. J. Q. B. 634; Green v. 
 Marsh, (1892) 2 Q. B. 330; 61 
 L. .1. Q. B. 442.
 
 Usual form. 
 
 REMEDIKS OF THK MOKTGAGEK. 301 
 
 between the parties so as to enable tlie mortgagee to 
 recover the land by sununarj process under R. S. C. 
 Order III. r. 6 and Order XIV. r. 1 (r). But to avoid 
 any risk of prejudice to the co\enant for payment through 
 non-registration, the better course is to effect the attorn- 
 ment by a separate instrument unthu- seal (s). The 
 tenancy so created determines with the death of the 
 mortgagor (t). 
 
 3. When the mortgagor is in default (t^) the legal Action for 
 remedy of the mortgagee on his covenant for payment of 
 the mortgage debt, and his equitable remedy of foreclosure, 
 may now be pursued in one action (r). If the mortgage 
 debt and interest is proved, admitted, or agreed upon at 
 the trial, the judgment is that the plaintiff do recover 
 against the defendant the total sum of principal and 
 interest, and so much of his costs (to be taxed), as would 
 have been incurred if the action had been brought for 
 payment only. 
 
 If the amount of the debt and interest is not so proved, 
 admitted, or agreed, the Court directs an account of what 
 is due to the plaintiff for principal and interest under the 
 covenant contained in the mortgage, and orders that the 
 plaintiff do recover against the defendant the amount 
 which shall be certified to be clue to him on taking such 
 account, and also so much of his taxed costs as would have 
 been incurred if the action had been brought for payment 
 only . 
 
 In either of the two cases, the Court further orders an 
 account of what is due to the plaintiff by virtue of his 
 
 (r) Mumford v. Collier, 25 (t) Scobie v. Collins, (1895) 1 
 
 Q. B. D. 279; 59 L. J. Q. E. Q. B. 375; 64 L. J. Q. B. 10. 
 
 552; Kern J) v. Lester, (1896) 2 (m) Moore v. Shelley, 8 App. 
 
 Q. B. 162; 65 L. J. Q. B. 532. Cas. 285; 52 L. J. P. C. 35; see 
 
 (s) See Davies v. Sees, 17 Williams v. Morgan, (1906) 1 
 
 Q. B. D. 408; 55 L. J. Q. B. Ch. 804; 75 L. J. Ch. 480. 
 
 363; and a valuable note in Key (v) Dymondv. Croft, Z Ch. D. 
 
 & Elpliiustone'3 Conveyancing 512. 
 Precedents, Vol. II. p. 54, ed. 7.
 
 302 
 
 RIGHTS OP MORTGAGOR AND MORTGAGEE 
 
 Where heir or 
 devisee of 
 mortgagor is 
 an infant. 
 
 Day to show 
 cause. 
 
 mortgage, and t'or his costs of the action (to be taxed), and 
 directs that in taking such account anything the plaintiff 
 shall have received from the defendant under the aforesaid 
 judgment is to be deducted, and the balance due to the 
 plaintiff to be certified {x). 
 
 One month is usually allowed for payment of what is 
 proved or admitted to be due on the covenant {x) . On 
 the amount due on the security and for costs beyond this 
 being certified, a further period is given for payment, and 
 in default of payment the order for foreclosure is made, 
 and, on being signed and enrolled, the foreclosure is com- 
 plete, and the mortgagor's equity extinguished. Posses- 
 sion of the mortgaged premises may be decreed in the 
 same action [y). 
 
 In the case of a foreclosure suit against an infant heir 
 or devisee of the mortgagor, there is, with the mortgagee's 
 consent, usually an inquiry ^^"hether foreclosure or sale 
 would be more beneficial for the infant {z). If a sale 
 appears beneficial, it may be decreed at once (a). If a 
 foreclosure is decreed, the decree is binding on the infant, 
 unless, on being served with a subpoena to show cause 
 against the same, he shall, wathin six months after attain- 
 ing his majority, show to the Court good cause to the 
 contrary. This he must do by putting in a new defence, 
 and showing error in the decree (6). An immediate fore- 
 closure may be decreed against an infant, where the Court 
 is of opinion that such a course is for his benefit (c). The 
 same rule, however, does not apply to married women, 
 
 (x) Farrer v. Lacy, Hurtland 
 ^ Co., 31 Ch. D. 42; 55 L. J. Ch. 
 149. For a form of judgment 
 when the debt is to be paid by 
 instalments, see Greenough v. 
 Littler, 15 Ch. D. 93. And where 
 the mortgagee is in possession 
 and receipt of rents, see Jrnnnr- 
 Fust V. Needham, 31 ib. 500; 
 32 ib. 582; 55 L. J. Ch. 629; 
 Simmons v. Blandy, (1897) 1 Ch. 
 19; 66 L. J. Ch.'83; Lynde v. 
 Waithman, (1895) 2 Q. JB. 180; 
 
 64 L. J. Q. B. 762. 
 
 (y) Keith v. Bay, 39 Ch. D. 
 452; 58 L. J. Ch. 118. 
 
 (z) Mondey v. M., 1 V. & B. 
 223. 
 
 (a) Davis v. Bowding, 2 Keen, 
 245, 247. 
 
 {b) Mallock V. Gallon, 3 P. 
 Wms. 352; Bavis v. Bowding, 
 sup.; Mfillor v. Porter, 25 Ch. D. 
 158; 53 L. J. Ch. 178. 
 
 (e) W olverhampton, ^c. Bank 
 V. George, 24 Ch. D. 797.
 
 KKMKDIKS OF THK MOKTGAGKK. Wd 
 
 against whom the ordinaiy piOLoduru is employed, without 
 a day being given to show cause (d). 
 
 Even after a foreclosure has been absolutely decreed, Time may be 
 signed and enrolled, the Court will show indulgence to the enlarged 
 mortgagor by enlarging the time for payment, if a proper 
 case can be shown, and the security is not deficient (e). 
 There must, however, be a strong reason shown, and an 
 immediate payment of interest and costs (/) . A decree or decree re- 
 
 r. o 1 11 1 /"i^ i 1 i. opened undei 
 
 01 loreclosm-e has been re-opened even alter the mortgagee special clr- 
 has been in possession sixteen years (g); but only under cumHtance«. 
 special circumstances, such as fraud or collusion in obtain- 
 ing the decree (h). 
 
 4. The necessity for a foreclosure suit is generally Power of sale 
 obviated by the insertion of a power of sale in the mort- nK-nroHi" ' 
 gage deed, a power, however, which in no way prejudices receiver under 
 the right to foreclosm'e {i). By Lord Cranworth's Act (y), c. 41, incident 
 a power of sale was rendered incident to every mortgage *" tl^^^ 
 
 ^ ./ o o inortg'ag'e. 
 
 or charge by deed affecting any hereditaments of any 
 tenure or any interest therein, executed after the 28th 
 August, 1860. By 44 & 45 Vict, c 41, ss. 19,20, these 
 powers have been confirmed. The power of sale, however, 
 cannot be exercised until notice requiring payment of the 
 mortgage money has been served on the mortgagor (7c), 
 and default has been made in payment thereof for three 
 months after such service (Z), or until some interest under 
 the mortgage is in arrear and unpaid for two months after 
 becoming due, or until there has been a breach of some 
 provision contained in the mortgage or in this Act other 
 than a covenant for payment of the mortgage money and 
 
 (t^) Mullock V. Galton, 3 P. (A) Loyd v. Mansel, 2 P. 
 
 Wms. 352. Wms. 73. 
 
 (e) Thornhill v. Manning, 1 (t) Blade v. Rigg, 3 Ha. 35. 
 
 Sim. N. S. 451; Cocker v. Bevis, (/) 23 & 24 Vict. c. 145, ss. 11 
 
 1 Ch. Ca. 61. —16. 
 
 (/) Goombe v. Stewart, 13 Beav. (k) See Hoole v. Smith, 17 Ch. 
 
 111. D. 434; 50 L. J. Ch. 576. 
 
 (^) Burgh v. Langton, 5 Bro. (I) Barker v. Illingworth, 
 
 P. C. 213. (1908) 2 Ch. 20; 77 L. J. Ch. 
 
 581.
 
 304 RIGHTS OF MORTGAGOR AND MORTGAGE!:. 
 
 interest. Uiitlor the previous Act, whicli still governs 
 mortgages executed previously to the 1st of January, 
 1882, six months' notice in writing was required, and the 
 power could not be .exercised until the principal debt had 
 been due a year, or the interest was in arrear six months. 
 In both cases the powers in question may be excluded by 
 express stipidation. 
 
 The only obligation on a mortgagee selling under his 
 statutory power of sale, or under an express power of sale 
 such as is commonly contained in mortgage deeds, is that 
 he shall act in good faith. A hmid fide sal,e to the mort- 
 gagor was thus sustained (m). Where a mortgagee exer- 
 cising his power of sale in effect purchased the property 
 himself and afterwards sold the property, it was held that 
 the transaction being untainted with fraud the right of 
 redemption was extinguished by the second sale, and that 
 the purchaser was under no obligation to give notice to 
 the mortgagor or to see to the application of the purchase- 
 money {yi), for which, of course, the mortgagee is account- 
 able. Any surplus money on a sale, after the discharge of 
 the principal debt, interest and costs, is held by the mort- 
 gagee as trustee for the person or persons previously 
 entitled to redeem, that is, subsequent incumbrancers or 
 the mortgagor, as the case may be. The trust, however, is 
 constructive, and in the absence of fraud is subject to the 
 Statute of Limitations (o). 
 
 In the absence of an express condition to that effect, 
 notice of sale need not be given to the mortgagor, nor is 
 his concurrence necessary to perfect the purchaser's title. 
 But where notice is required, although a purchaser may; 
 be exonerated from making inquiry as to this or otherwise 
 as to the circumstances giving rise to the power of sale, 
 
 (w) Kennedy v. De Trafford, Geo. V. c. 37, s. 5. 
 
 (1896) 1 Ch. 762; (1897) A. C. (o) Thome v. Heard, (1895) 
 
 180; 66 L. J. Ch. 483. A. C. 495; 64 L. J. Ch. 652; 
 
 (w) Henderson v. Astivood, Warner v. Jacob, 20 Ch. D. 220; 
 
 (1894) A. C. 150; a.n^ me Bailey 51 L. J. Ch. 642; Haddington 
 
 V. Barnes, (1894) 1 Ch. 25; 63 Co. v. Huson, (1911) A. C. 722. 
 
 L. J. Ch. 73. See now 1 & 2 , " t ,
 
 REMEDIES OF THE MORTGAGEE. 305 
 
 this does not precludo tho purchaser from refusing the 
 title where he has express notice that the terms of the 
 power have not in fact been complied with (p). The 
 effect of many of the above decisions has now received 
 statutory authority by tho enactment (g) that upon any 
 sale made in professed exercise of the power conferred 
 on mortgagees by the Act of 1881, a purchaser is not con- 
 cerned to sec or inquire whether a case has arisen to autho- 
 rize the sale, or .due notice has been given, or tho power 
 otherwise properly and regularly exercised. By the same 
 statute the powers incident to the estate and interest of 
 mortgagees have been increased as to the impositions of 
 restrictions on the user of the land, and as to the grant 
 or reservation of easements and of mines and mineral 
 rights, in the case of mortgages executed after the com- 
 mencement of the Act (r) . 
 
 5. By the Chancery Amendment Act (s), the Court of Sale by the 
 Chancery was empowered in any case to direct a sale of 
 the mortgaged property instead of foreclosure on such 
 terms as it might think fit. And under that Act a sale 
 was usually directed where there was such complication of 
 interests that a common foreclosure decree could not be 
 conveniently worked, or it was on other grounds mani- 
 festly for the Tbenefit of the parties (t) . This Act has now 
 been repealed in this respect, and replaced by the more 
 comprehensive provisions of the Conveyancing Act, 44 & 45 Vict. 
 1881 (u). By s. '25 of this statute, it is provided (1) that ' ' ' ' " 
 any person entitled to redeem mortgaged property may 
 have a judgment or order for sale instead of for redemp- 
 tion in an action brought by him either for redemption 
 alone, or for sale alone, or for sale or redemption in the 
 
 (p) Dicker v. Anger stein, 3 Ch. 581. 
 
 Ch. D. 600; Selwyn v. Garfitt, (q) 1 & 2 Geo. V. c. 37, s. 5. 
 
 38 ib. 273; 57 L. J. Ch. 609; (r) Ibid. s. 4. 
 
 Life, cfc. Corp. v. JIa>ul in Hand (s) 15 & 16 Vict. c. 86. 
 
 Soc., (1898) 2 Ch. 130; 67 L. J. (0 ^lurst v. //., 16 Beav. 372; 
 
 Ch. 548. See Barker v. llling- Newman v. Selfe, 33 ib. 522. 
 
 loorth, (1908) 2 Ch. 20; 77 L. J. (u) 44 & 45 Vict. c. 41. 
 
 S. 20
 
 ■>306 RIGHTS OF MORTGAGOR AND MORTGAGEE. 
 
 alternative; (2) that in any action, whether for fore- 
 closure, or for redemption, or for sale, or for the raising 
 and payment in any manner of mortgage money, the 
 Court, on the request of the mortgagee, or of any person 
 interested either in the mortgage money or in the right of 
 redemption, and notwithstanding the dissent of any other 
 person, and without allowing any time for redemption or * 
 payment of any mortgage money, may direct a sale of the 
 mortgaged property on such terms as it thinks fit; and 
 this without previously determining the priorities of in- 
 1 &2Geo. ^'. cumbrancers. The Conveyancing Act, 1911 (t), contains 
 *■ ■ provisions respecting mortgaged property vested in trus- 
 
 tees where the right of redemption is barred by virtue of 
 the Statutes of Limitation or an order for foreclosure, or 
 otherwise. Such property will be held by the trustees on 
 trust for sale, with power to postpone as they may think 
 proper, the proceeds of sale, aiter payment of costs, being 
 applicable in like manner as the mortgage debt, if 
 received, would have been. 
 
 Under the Act of 1881, the Court has jurisdiction to 
 order a sale at any time before the foreclosui'e has become 
 absolute (m), and may do so on an interlocutory applica- 
 tion (v) . The Court will take into consideration the 
 amount of the mortgage debt and the circumstances of 
 the case generally, in the exercise of its judicial discre- 
 tioji (x). In the interv^al, between a decree nisi and a 
 decree absolute for foreclosure the mortgagee's power of 
 sale, though not extinguished, can only be exercised by. 
 leave of the Court (y). 
 
 Receiver and 6. Again, mider the same Act, a mortgagee has a 
 ^ ■ further remedy in the power to require the appointment 
 
 (0 1 & 2 Geo. V. c. 37, s. 9. neatic Bank, 55 L. J. Ch. 479; 
 
 (m) Union Bank v. Ingram, 20 Brewer v. Square, (1892) 2 Ch. 
 
 Ch. D. 463; 51 L. J. Ch. 508. Ill; 61 L. J. Ch. 516. See Stam- 
 
 iv) Woolley v. Coleman, 21 Ch. ford, S;c. Bk. v. Keeble, (1913) 2 
 
 D. 169; 51 L. J. Ch. 854. Ch. 96; 82 L. J. Ch. 388. 
 
 (.-r) Wadev. Wilson, 22 Ch. D. (y) Stevens v. Theatres, Ltd., 
 
 235; 52 L. J. Ch. 399; Merchant (1903) 1 Ch. 857; 72 L. J. Ch. 
 
 Bkg. Co. V. London and Han- 764.
 
 REMEDIES OF THE MORTGAGEE. ^O*; 
 
 ■of a receiver of the rents and profits of the mortgaged 
 property, when the mortgage money has become due (z). 
 The powers and duties of the receiver are specified in s. 24 
 'of the Act. Before action brought the receiver may be 
 appointed by the mortgagee; but afterwards application 
 should be made to the Court for the purpose (a). A 
 mortgagee is not entitled to make any charge for his 
 personal trouble in respect of the mortgage, and he may 
 not appoint himself receiver, even though there be an 
 •express agreement with the mortgagor to that intent (6). 
 The powers of a receiver are limited to the property mort- 
 gaged. Thus, if land only be mortgaged, but a business 
 there carried on is not included in the security, the 
 receiver has no power to manage the business (c), and 
 will not be appointed manager unless it is necessary for 
 the protection of the security that the business should be 
 ■carried on (d). It is otherwise where the business itself 
 is part of the mortgaged property (e). 
 
 7. The general rule of equity was, formerh% that a Remedies 
 party suing at law could not sue in equity at the samo p^^^^^ 
 time. A mortgagee has, howeA'er, always been permitted concurrently, 
 to pursue all his remedies at the same time. He may at 
 once eject the mortgagor, sue on the covenant for payment 
 in his deed, or on a bond given as a collateral security, and 
 also proceed in equity for foreclosure or sale; and this, 
 we have seen, in the same action. If he obtains full pay- 
 ment on the bond or covenant, or by receipt of the rents 
 and profits, the mortgagor is entitled to redeem the estate, 
 and there can be no foreclosure or sale; but if only 
 partially paid, he may still go on and foreclose (/). 
 
 (;;) 44 & 45 Vict. c. 41, ss. 19 (^d) Campbell v. Lloyd's Bank, 
 
 (iii.), 24. (1891) 1 Ch. 136, n.; Mal-ins v. 
 
 (a) Tillett V. 2^ixon, 25 Ch. D. Ibotson, ib. 133; 60 L. J. Ch. 164. 
 
 238; 53 L. J. Ch. 199; Mason v. (^e) Gloucester Bank v. Rudry, 
 
 TT^sio^y. 32Ch. D. 206; 55L. J. c?-c. Colliery, (1895) 1 Ch. 629; 
 
 Ch. 507. 64 L. J. Ch. 451; Lille,/ v. Foad, 
 
 ib) French v. Baron, 2 Atk. (1899) 2 Ch. 107; 68 L. J. Ch. 
 
 120. 517. 
 
 (c) Whitley V. Chains, (1892) (/) Palmer v. Ilendrie, 27 Beav. 
 
 I Ch. 64; 61 L. J. Ch. 307. 349, 351. 
 
 20 (2)
 
 808 
 
 RIGHTS OF MORTGAGOR AND MORTGAGEE. 
 
 But action for 
 payment after 
 foreclosure 
 re-opens the 
 foreclosure, 
 
 and cannot be 
 
 brought 
 
 unless 
 
 mortgagee 
 
 can still 
 
 convey the 
 
 estate. 
 
 If he first sues for foreclosure, aixd afterwaxds sues for 
 payment on his covenant, the effect of such personal action 
 is to re-open the foreclosure, and give the mortgagor a 
 renewed right to redeem. If the mortgagee still has the 
 estate in his power, there is no objection to his action; 
 only on payment of the whole debt he must re-convey the 
 estate to the mortgagor. J£, on the contrary, he has so 
 dealt with the mortgaged estate as to be unable to restore 
 it on tender of full payment — for instance, if he has sold 
 it — he can no longer sue for the mortgage money (^). 
 Hence it is evident that his best course is to proceed in one 
 action to enforce all his remedies, or first to pursue his 
 legal remedies, and then to have recourse, if necessary, to 
 those of equity. A mortgagor remains liable under his 
 covenant, even after he has assigned his equity of redemp- 
 tion. K the mortgagee sues on the covenant, and the 
 mortgagor pays the mortgage debt, he is thereupon 
 entitled to a reconveyance of the mortgaged premises. If 
 in the meantime the assignee of the equity of redemption 
 has made a second mortgage, the original mortgagor thus 
 obtains a security for his payment, standing, in fact, in 
 the place of the first mortgagee {h). 
 
 Dismissal of 
 redemption 
 action 
 operates as 
 foreclosure of 
 learal. 
 
 but not of au 
 
 equitable 
 
 mortgage. 
 
 8 . If a mortgagor sues for redemption of a legal mort- 
 gage, and the action is dismissed for any reason except 
 for want of prosecution, the dismissal operates as a decree 
 of foreclosure against him. The action admits the debt 
 and admits the mortgagee's title; and being dismissed, 
 the mortgagor cannot again sue for the same object, so that 
 the result is in effect foreclosure (^). The dismissal, how- 
 ever, of the similar action respecting an equitable mort- 
 gage would not have the same effect (i) . 
 
 (g) Lockhart v. Hardy, 9 Beav. 
 349; Palmer v. Hendrie, sup. ; 28 
 Beav. 341. 
 
 (K) Kinnaird v. Trollope, 39 
 Ch. D. 636; 57 L. J. Ch. 905. 
 
 (i) Marshall v. Shrewsbury, 10 
 Ch. 250.
 
 c. 57. 
 
 REMEDIES OF THE MORTGAGEE. 809 
 
 9. The following limitations affect the remedies of the Limitation, 
 amortgagee : — 
 
 Bj 3 & 4 Will. IV. c. 27, the right of a mortgagee to 3&4WiU.lv. 
 foreclosure was limited to a period of twenty years from • ' • • 
 the time of the last payment or demand of interest, or an 
 acknowledgment of the mortgage on the part of the mort- 
 gagor or his representative or agent. This statute has now 
 Jbeen replaced by the Real Property Amendment Act, 37 & 38 Vict. 
 1874 (k), s. 8 of which enacts that "no action or suit or 
 " other proceeding shall bo brought to recover any sum of 
 " money secured by any mortgage, judgment, or lien, or 
 " otherwise charged upon or payable out of any land or 
 " rent at law or in equity, or any legacy, but within 
 " twelve years next after a present right to receive the 
 " same shall have accrued to some person capable of giving 
 "a discharge for or release of the same, unless in the 
 " meantime some part of the principal money or some 
 '" interest thereon shall have been paid, or some acknow- 
 " ledgment of the right thereto shall have been given in 
 "writing, signed by the person hj whom the same shall 
 *' be payable, or his agent, to the person entitled thereto 
 " OT his agent; and in such case no such action or suit or 
 " proceeding shall be brought but within twelve years after 
 *' such payment or acknowledgment, or the last of such 
 " payments or acknowledgments, if more than one, was 
 " given." The effect of the statutes is to bar the mort- 
 gagee's title as well as his remedy, so that a subsequent 
 m,ortgage carries the legal estate to the mortgagee (?). 
 See the cases cited below as to various points arising on the 
 construction of this Act (m) . Payment of interest by a 
 
 (k) 37 & 38 Vict. c. 57. 682; 71 L. J. K. B. 446; Ee 
 
 (0 Kibble v. Fairthorne, (1895) Lloyd, (1903) 1 Ch. 385; 72 L. J, 
 
 1 Ch. 219; 64 L. J. Ch. 184. Ch. 78; Jie Hazeldine's Trust, 
 
 (m) Bradshaiv v. Widdrington, (1907) 1 Ch. 686; 76 L. J. Ch. 
 
 (1902) 2 Ch. 430; 71 L. J. Ch. 416; reversed (1908) 1 Ch. 34; 
 
 627; Ludbrook v. L., (1901) 2 77 L. J. Ch. 97; Re Fox, Brooks 
 
 K. B. 96; 70 L. J. K. B. 552;, v. Marston, (1913) 2 Ch. 75; 82 
 
 Skene v. Cook, (1902) 1 K. B. L. J. Ch. 393.
 
 310 
 
 RIGHTS OF MORTGAGOR AND MORTGAGEE. 
 
 3&4Will.IV. 
 c. 27, 8. 42. 
 
 3&4Wm.iv 
 
 c. 42. 
 
 Effect of the 
 statutes. 
 
 tenant for life suffices to keep the debt and security alive 
 as against the remainderman, and payment by a speciHo 
 devisee of part of a testator's estate preserves the mort- 
 gagee's right of action against the specific devisees of other 
 parts lOf the testator's real estate (ji) . 
 
 Again, s. 42 of 3 & 4 Will. IV. c. 27, provides that no 
 rent or interest in respect of any sum of money charged 
 upon land or rent shall be recovered by any distress or 
 action but within six years next after the same shall liave 
 become due, or shall have been formally acknowledged by 
 the debtor or his agent. In case, however, of the sale of 
 the property by a mortgagee, he may retain more than six 
 years' arrears of interest out of the proceeds (o) . 
 
 And by 3 & 4 Will. IV. c. 42, it is enacted that all 
 actions of covenant or debt upon anj' bond or specialty 
 shall be sued and brought within twenty years after the 
 cause of such actions and suits, or within twenty years 
 after an acknowledgment b}' deed, or part payment, or 
 part satisfaction . 
 
 These limitations remain unaffected by the more recent 
 statute. The result is, that an action for the recovery of a 
 mortgage debt must be brought within twelve years from 
 the accruing of the right, or of an acknowledgment or 
 payment on account thereof (p) ; an action for foreclosure 
 must be brought within the same period (g) ; and an action 
 for arrears of rent or interest within a period of six 
 years. If, moreover, there is the additional security of a 
 bond or covenant, the period of limitation of the personal 
 remedy thereunder is, under the recent statute, twelve 
 
 (w) Moddani v. Morley, 1 De 
 G. & J. 1; Re Lacey, Howard v. 
 Liqhtjoot, (1907) 1 Ch. 330; 76 
 L. J. Ch. 316; B\hh v. Walker, 
 (1893) 2 Ch. 429; 62 L. J. Ch. 
 536; Re Enr/land, Steward v. 
 England, (1895) 2 Ch. 820; 65 
 L. J. Ch. 21; Re Allen, Bassett 
 V. Allen. (1898) 2 Ch. 499; Re 
 Lord Clifden, Annalij v. Agar- 
 Ellis, (1900) 1 Ch. 774; Read v. 
 
 Price, (1909) 2 K. B. 724; 78 
 L. J. K. B. 737. 
 
 (o) Marshfield v. Hutchens, 34 
 Ch. D. 721; 56 L. J. Ch. 599; 
 Mellersh v. Brown, 45 Ch. D. 225. 
 
 ()u) See Pugh v. Heath, 7 App. 
 Cas. 235; 51 L. J. Q. B. 367. 
 
 (</) Harloch v. Ashberry, 19 
 Ch. D. 539, reversing 18 ib'. 229;. 
 51 L. J. Ch. 394.
 
 REMEDIES OF THE MORTGAGEE. 
 
 311 
 
 years only (r), and this whether the covenant is contained 
 in the mortgage itself, or in a collateral instrument (s) ; 
 and notwithstanding that the mortgaged estate is still 
 reversionary at the date of the action (t). But the period 
 of twenty years fixed by 3 & 4 Will. IV. e. 42, has been 
 held still to apply in the case of a collateral bond given 
 by a surety to secure the mortgage debt (w), and in the case 
 of a surety, the statute begins to run not from the time 
 when the debt becomes due, but from the time of the 
 demand of payment (a;). The more fact that a simple 
 contract debt is charged on land, does not extend the 
 remedy to twelve years; the debt becomes barred in six 
 years (y) . 
 
 It must be observed that a payment of rent, in order to 
 keep alive a mortgagee's right of foreclosure, must be 
 made with the knowledge of the mortgagor, or subise- 
 quentl}- adopted by him (z). 
 
 The allowance of ten years in the period of limitation in 
 favour of persons under disability by reason of infancy, 
 coverture, idiotcy, lunacy, unsoundness of mind, or absence 
 beyond seas, from the termination of the disability, or 
 from death («), is not applicable as between mortgagor 
 and mortgagee (&). 
 
 Formerly, if a trust term was created or agreed to be Trust term 
 assigned for securing the payment of principal and interest, formeriy^^'^ 
 express trusts being excepted from the Statute of Limita- excepted from 
 tion, the amount of arrears recoverable was not limited to 
 
 (r) StUton V. S., 22 Ch. D. 511 ; (a;) Srown v. B., (1893^ 2 Ch. 
 
 52 L. J. Ch. 333; l^/>n>r v. CroDip- 300; 62 L. J. Ch. 695. 
 
 ton, (1910) 2 K. B. 370; 80 L. J. (y) Barue;^ v. Gleiifon. (1899) 
 
 K. B. 52. 1 Q. B. 885, reversing (1898) 2 
 
 (s) Fearmide v. Flint, 22 Ch. Q. B. 223; 68 L. J. Q. B. 502. 
 
 D. 579; 52 L. J. Ch. 479. (z) Harlock v. Ashbern/, sup.; 
 
 (0 Kirkland v. Peatfield, Newbould v. Smith, 29 "Ch. D. 
 
 (1903) 1 K. B. 756; 72 L. J. 882; 33 ib. 127; 55 L. J. Ch. 788. 
 
 K. B. 355; but see Hugill v. {a) 3 & 4 Will. IV. e. 27, s. 16. 
 
 Wilkinson, 38 Ch. D. 480; 57 (*) Kinsman, v. Bouse, 17 Ch. 
 
 L. J. Ch. 1019. D. 104; 50 L. J. Ch. 486; Forster 
 
 (m) Lindsellv. Phillips, 30 Ch. v. Pntterson, 17 Ch. D. 132: 50 
 
 D. 291; Allison v. Frisbi/, iZ Ch. L. J. Ch. 603. 
 D. 106; 59 L. J. Ch. 94'.
 
 ^12' RIGHTS OF MORTGAGOR AND MORTGAGEE. 
 
 six years; nor was an action for the principal limited to 
 twenty years (c). But by s. 10 of 37 & 38 Vict. c. 57, 
 this effect of the security of an express trust was removed, 
 and in such a case the limitation as against the land is now 
 the same as if there were no trust (d) ; and the trustee in 
 the absence of fraud or fraudulent breach of trust is pro- 
 tected by the Trustee Act, 1888, s. 8(e). 
 
 IV. Tacking of Mortgages. 
 
 The case usually cited as the leading authority on the 
 doctrine of tacking is Marsh v. Lee{f). 
 
 In this case one English, being seised of the manor of 
 Wicksall, and of the manor of Monfield, mortgaged, in 
 1649, part of the manor of Wicksall to Burrell for £1,000. 
 Afterwards, in 1655, he acknowledged a statute to Burrell 
 of £800 for the payment of £400. In 1662 English 
 mortgaged both the manors to Mrs. Duppa for £7,000. 
 In 1665 English mortgaged the manor of Wicksall to 
 Lee for £7,000. Lee had no notice of the former mort- 
 gages, but he subsequently purchased Burrell's incum- 
 brances. 
 
 The Lord Keeper Bridgeman, assisted by Hale, O.B., 
 and Rainsford, J., held that Lee might make use of these 
 incumbrances to protect his own mortgage, for that he had 
 both law and equity on his side. He had law, for that he 
 had a precedent mortgage in 1649, and also the statute in 
 1655; so that, while these remained in force, Marsh could 
 not oome in. He had equitij, for he having a subsequent 
 mortgage, yet it being without notice, he ought to be 
 relieved in this Court. 
 
 (c) Cox V. Dolman, 2 De G. (e) 51 & 52 Vict. c. 59; Re 
 
 M. & G. 592. Blow, (1913) 1 Ch. 358; 82 L. J. 
 
 id) See Banner v. Berridge, 18 Ch. 207. 
 
 Ch. D. 254; 50 L. J. Ch. 630; (/) 2 Ventr. 337; 2 W. & T. 
 
 Swain v. Brinffeman, (1891) 3 L. C. 107, ed. 7. 
 Ch. 233; 61 L. J. Ch. 20.
 
 TACKING OF MORTGAGES. '^^^ 
 
 The doctrine of tacking rests upon and illustrates two Priiiraple of 
 familiar maxims of equity — (1.) "He ivho seeks equitif 
 lYMst do equity" : (2.) ''Where equities are equal the 
 law shall prevail." It is equity that a debtor who has 
 received a loan on the security of an estate shall, when he 
 seeks to redeem his estate, pay all the debts which he owes 
 to his creditor. If in the meantime the debtor has bor- 
 rowed money from other persons on the same security, 
 and the first creditor having the legal estate therein has 
 subsequently without notice made further advances to the 
 debtor, he has law and equity on his side, and may tack his 
 subsequent advance to his original debt, notwithstanding 
 that it may happen to prejudice an intermediate incum- 
 brancer who has only an equitable security. Further, if 
 a person lends his money only upon an equitable security, 
 but without notice of any prior charge, he may, after re- 
 ceiving notice of such a charge, protect his security by 
 purchasing the legal estate from a first incumbrancer; his 
 loan without notice giving him an equal equity, and his 
 securing the legal estate giving him a preference at law. 
 The subject naturally resolves itself into two inquiries: 
 first, as to the principles of tacking as against the mort- 
 gagor and his representatives; secondly, as to the prin- 
 ciples of tacking as against mesne or intermediate incum- 
 brancers. 
 
 1 . Tacking as against the mortgagor and his repre- 
 sentatives. 
 
 A mortgagor must, before redemption, pay not merely Mortgagor on 
 the principal and interest of the mortgage debt, but also mustpav"^ 
 all the proper costs incurred by the mortgagee. And these principal, 
 costs include not only his costs of suits for redemption or costs. ' 
 foreclosure, taxed as between party and party (^), but all What costs 
 • costs necessarily incurred by the mortgagee in maintaining '^'^ " ^ • 
 
 ((7) The Kestril, L. E. 1 A. & E. 8.
 
 ;^14 
 
 RIGHTS OF MORTGAGOR AND MORTGAGEE. 
 
 Mortgagee 
 may even 
 have to pay 
 
 costs. 
 
 Mortgagor 
 must pay all 
 debts forming 
 .•I specific lien 
 on land. 
 
 Equitable as 
 well as lesral. 
 
 As against 
 the mortgagor 
 the question 
 is : Was the 
 further 
 advance made 
 on security of 
 the land ? 
 
 Wliat 
 
 interest can be 
 tacked. 
 
 the title to the estate {h), and generally tliose costs to- 
 which we have above seen that he is entitled in his 
 accounts {i) . 
 
 A mortgagee may, however, not only be refused hi& 
 costs, but may even have to pay the costs of the mortgagor 
 if he has necessitated a suit by refusing a tender of the full 
 amount due {k), or by setting up a groundless defence (l), 
 or has otherwise been guilty of vexatious conduct (m) . 
 Mere mistake, however, where his conduct has been in 
 good faith is not sufficient to deprive him of costs {n) . 
 
 Again, the mortgagee cannot be deprived of his pledge 
 without payment of all sums of money due to him from 
 his debtor which form a general or specific lien on the 
 land; if, therefore, the mortgagee advance money by way 
 of further charge or on a judgment, neither the mortgagor, 
 nor, as a rule, anyone claiming under him, though for 
 valuable consideration and without notice, can redeem 
 without payment of the full amount (o). And equitable 
 liens and charges "may, equally with legal ones, be thus 
 tacked to the original mortgage debt; for instance, an 
 agreement for a mortgage, or an informal mortgage {p) . 
 
 The test as to the application of the doctrine of tacking, 
 as against the mortgagor, is whether the further advance 
 was made on the security of the land. If so it may be 
 tacked; if not, as against the mortgagor it cannot (g). 
 Thus, though under a covenant in his mortgage, a mort- 
 gagor might, by virtue of 3 & 4 Will. IV. c. 42, have 
 recovered twenty years' interest, yet since by 3 & 4 
 WiU. IV. c. 27, he was only entitled to six years' arrears 
 against the land, he could not in a foreclosure action tack 
 
 (Ji) Godfrey v. Watson, 3 Atk. 
 518. 
 
 (i) Supra, p. 297. 
 
 (Jc) Roberts v. Williams, 4 Ha. 
 129. 
 
 (J) Harvey v. Jebbutt, 1 J. & 
 W. 197. 
 
 (»() Moore v. Painter, 6 Jur. 
 903. 
 
 («.) Smith v. Watts, 22 Ch. D. 
 12; 52 L. J. Ch. 209; Bird v. 
 Wenn, 33 Ch. D. 219; 55 L. J. 
 Ch. 722. 
 
 (o) Coote, 878, ed. 5. 
 
 (jo) Matthews v. Cartwright, 2 
 Atk. 347. 
 
 (_q) Lacy v. Ingle, 2 Ph. 413.
 
 TACKING OF MOKTGAGKS. '315 
 
 more than this against tho mortgagor, for the covenant 
 creates no lien upon the land (r) . A mortgagor seeking to Not bond or 
 redeem must, however, pay all arrears of interest (s) . A ^""^^ debts" 
 bond debt, and a fortiori a simple contract debt, not being 
 a charge on the land, cannot be tacked as against a mort- 
 gagor (0- 
 
 But as against the representatives of a mortgagor the Seem as 
 
 case rests on a different principle. Thus in the case of a gao-or's repre- 
 
 bond debt, whether prior or subsequent to the mortgage, sentatives. 
 
 the heir and beneficial devisee of the debtor having been AFj^T** ™ 
 
 _ t) all debts may 
 
 made, by 3 & 4 Will. & M. c. 14, jointly liable for its pay- be tacked, 
 ment, in order to avoid circuity and multiplicity of actions 
 the bond debt was allowed to be tacked to the mortgage 
 as against them (w) . And on the same principle twelve 
 years' arrears of interest may be tacked as against the heir 
 or devisee of the mortgagor, if secured by a covenant in 
 the mortgage deed binding the heirs (a;), though only six 
 years' arrears could be tacked as against the mortgagor 
 himself . 
 
 Again, since 3 &. 4 Will. IV. c. 104, whicii made real 
 estate liable to simple contract debts, such debts may be 
 tacked by any mortgagee of freehold or copyhold against 
 the heir or devisee, in any cases in which there is not a 
 devise for payment of debts {y) . And similarl}- a mort- 
 gagee of a lease may tack a simple contract debt against 
 the executor (z). But in neither case can either a bond or 
 a simple contract debt be tacked as against a creditor 
 coming to redeem (a) . 
 
 (r) Umiter v. A'ockolds, 1 Mac. (x) Elvif v. Norwood, 5 De G. 
 
 & G. 640. & S. 240. 
 
 (s) Lloyd V. L., (1903) 1 Ch. (y) Rolfe v. Chester, 20 Beav. 
 
 385; 72 L. J. Ch. 78. 610. 
 
 {i) Coleman v. Winch, 1 P. (~) Coleman v. Winch, sup. : 
 
 Wms. 777; Jones v. Smith, 2 Ves. In re Haselfoot's Estate, 13 Eq. 
 
 jr. 376. 327. 
 
 (m) Heams v. Banco, 3 Atk. («) Adams v. Claxton, 6 Ves. 
 
 630; Shuttleworth v. Laycock, 1 226; Talbot v. Frere. 9 Ch. D. 
 
 Vern. 245; Christison v. Bolam, 568. 
 36 Ch. D. 223; 57 L. J. Ch. 221.
 
 '"^16 RIGHTS OF MORTGAGOR AND MORTGAGEE. 
 
 2. Tacking as against mesne incumbrancers. 
 
 In this branch of the subject perhaps the most important 
 
 authority that can be cited is the well-known case of Brace 
 
 Y.The Duchess of Marlborough (6), in which Sir Joseph 
 
 Rules in ^race Jekvll, M. R., laid down the following series of rules in 
 
 V. Duchess of -^ . '. ', ,-,-,. 
 
 Maiborough. exposition 01 the whole doctrine: — 
 
 1. Third (1.) " If a third mortgagee buys in the first mortgage, 
 
 purchasing " though it be pendente lite, pending a bill brought by the 
 
 first mortgage "second mortgagee to redeem the first, yet the third mort- 
 
 " gagee having obtained the first mortgage, and got the 
 
 " law on his side and equal equity, he shall thereby squeeze 
 
 " out the second mortgagee; and this Lord Chief Justice 
 
 " Hale called a plank gained by the third mortgagee, or a 
 
 " iahula in naufragio, which constitution is in favour of a 
 
 "purchaser, every mortgagee being such pro tanto" {c). 
 
 A fortiori fixat This rule is that established by the earlier case of 
 
 making" MoTsh V. Lcc (d), and includes the stronger case of a first 
 
 further ^^^^^ legal mortgagee making a further advance without 
 
 without notice notice of a second mortgage. There are certain limitations 
 
 birf creditor ^f the rule which require attention. Thus, there can be no 
 
 must hold tacking unless both the securities are held by the creditor 
 
 both securi- . , i • i i 
 
 ties in the m the same right. He cannot tack a mortgage which he 
 
 same right. bolds for his own benefit to one assigned to him as trustee 
 
 for another person (e). Similarly the executor of a first 
 
 mortgagee who had the legal estate in his own right,, 
 
 was not suffered as against a mesne incumbrancer to tack 
 
 a mortgage of the equity of redemption which had vested 
 
 in his testator as executor of another. 
 
 Conveyance ^q priority Can be gained by the transfer of the legal 
 
 by express estate by a person who holds it on an express trust for the 
 
 noTg^ive"^*^ first incumbrancer. The purchaser, in such a case, himself 
 
 priority. bccomes a trustee (/) . Similarly an incumbrancer getting 
 
 (b) 2 P. Wms. 491. (e) Morret v. PasJce, 2 Atk. 
 
 (c) And see London ^- County 52; Shaw v. Neale, 6 H. L. 581. 
 Bank v. Goddard, (1897) 1 Ch. (f) Allen v. Knight, 5 Ua. 272; 
 642; 66 L. J. Ch. 261. Mumford v. Stohwasser, 18 Eq. 
 
 (O) 2 Ventr. 337. 556, 563; Taylor v. L. ^ C. Bank,
 
 TACKING OF MORTGAGKS. 317 
 
 in the legal estate from a person who is trustee for all 
 
 the incumbrauoers, with notice of their rights, gains no 
 
 priority. The trustee is not to alter the priorities by 
 
 preferring one of his cestui que trusts and conveying the 
 
 legal estate to him (g) . On the same principle it has Nor does 
 
 been held that no priority is gained by the transfer, with satrsfied " 
 
 notice of other incumbrances, of a satisfied mortgage, the mortgage. 
 
 legal mortgagee becoming on payment of his debt a mere 
 
 trustee without any pecuniary interest (/*); but in some 
 
 circumstances the Court has refused to interfere to take 
 
 away the privilege of the legal estate (z). It is clearly 
 
 settled that notice given to the first mortgagee by the Notice by 
 
 second, will not prevent the third mortgagee from tacking gagee to^first 
 
 the third mortgage to the first if he purchases it (k). <ioes not pre- 
 
 ° ^ ^ ^ -^ vent tacking 
 
 (2.) The second rule is, " If a judgment creditor, or i^rtgage'e. 
 " creditor by statute or recognizance, buys in the first 2. Judgment 
 " mortgage, he shall not tack or unite the mortgage to his cannotteck a 
 "judgment, &c., and thereby gain a preference; for such mortgage to 
 
 4£ Ti 1 11 1 1 his judgment, 
 
 a creditor cannot be called a purchaser, nor has he any the first sum 
 " right to the land; he has neither a jus in re nor a jus ad "o* j^^^^^o ^^^^ 
 ''rem. All that he has by the judgment is a lien upon security of 
 " the land, but non constat whether he will ever make use 
 "thereof, &c. Besides which the judgment creditor does 
 "not lend his money on the immediate view or con templa- 
 " tion of the land, nor is he deceived or defrauded though 
 " his debtor had before made twenty mortgages of his 
 "estate; whereas a mortgagee is defrauded or deceived if 
 " the mortgagor before that time mortgaged his land to 
 " another." 
 
 The distinction here drawn between the specific lien of 
 
 (1901) 2 Ch. 231; 70 L. J. Ch. (1907) 1 Ch. 373; 76 L. J. Cli. 
 
 477. 223. 
 
 (g) Sharpies v. Adams, 32 (h) Carter v. C, 3 K. & J. 
 
 Beav. 213; Max field v. Burton, 617; Prosser v. Bice, 28 Beav. 
 
 17 Eq. 15; Union Bank v. Kent, 68, 74. 
 
 39 Ch. D.238; 57 L. J. Ch. 1022: (?) Pilcher v. Raivlins, 7 Ch. 
 
 Carritt v. R. cj- P. Advance Co., 259, 274; and see p. 353 ff., inf. 
 
 42 Ch. D. 263; 58 L. J. Ch. 688; (k) Peacock v. Burt, 4 L. J. 
 
 and see Perham v. Kempster, N. S. Ch. 33.
 
 318 
 
 RIGHTS OF MORTGAGOR AND MORTGAGEE. 
 
 3. A mort- 
 gagee may 
 tack a 
 
 judgment to 
 his mortgage. 
 
 Unless the 
 mortgage has 
 been satisfied. 
 
 In these cases 
 tacking 
 prevented by 
 notice. 
 
 a mortgagee and the general lien of a judgment creditor, 
 as regards tacking, seems to be sound in principle, and is 
 well established (Z); it has not been affected by 1 & 2 
 Vict. c. 110 (m). Since 27 & 28 Vict. c. 112, the land is 
 not affected by a judgment, and no right to tack could be 
 supposed to arise, until the land is delivered in execution 
 by writ of elegit or otherwise; and when there has been 
 actual delivery, even a prior imortgagee, though without 
 notice of the elegit, could not tack a subsequent charge to 
 his first mortgage {n). 
 
 The rule would seem to apply equally to prevent a prior 
 judgment creditor from tacking a subsequent incumbrance, 
 and to prevent a subsequent judgment creditor from tack- 
 ing a prior incumbrance (o) . 
 
 (3.) The third rule is that if the first mortgagee lends 
 unthout Qioticc a further sum to tlie mortgagor upon a 
 statute or judgment, he shall retain against a mes?ie mort- 
 gagee until both his securities are satisfied. 
 
 This is the converse of the last rule, and is supported by 
 the converse of the reasoning there employed, for in this 
 case the mortgagee does originally lend his money espe- 
 cially upon the security of the land, and may be con- 
 sidered to rely thereupon for all his debt (p). If, however, 
 the mortgage is paid off before the judgment is recovered, 
 although no reconveyance may have been made, the judg- 
 ment cannot be tacked {q). 
 
 It will be observed that in all these cases there is no 
 right to tack if at the time of advancing his money the 
 mortgagee had notice of an existing incumbrance. It is 
 the same in the case of a third mortgagee purchasing the 
 
 {I) Exp. Knott, 11 Ves. 617. 
 
 (m) Whitirorth v. Gaugain, 3 
 Ha. 416; see Exp. Whitehouse, 
 32 Ch. D. 512; 55 L. J. Ch. 608; 
 Badeley v. Consol. Bank, 34 Ch. 
 D. 536'; 38 Ch. D. 238; 57 L. J. 
 Ch. 468; Davis v. Freefhy, 24 
 Q. B. D. 519; 57 L. J. Q. 13. 318. 
 
 (w) Champneys v. Bitrland, 19 
 
 W. R. 148; Hood-Barrs v. Cath- 
 cai-t, (1895) 2 Ch. 411; 64 L. J. 
 Ch. 461. 
 
 (o) Coote, 891, ed. 5. 
 
 (^p) Sec also She^jherd v. Titley, 
 
 2 Atk. 348, 352; Lloyd v. Atwood., 
 
 3 De G. & J. 614. 
 
 (5-) Marquis of Brecon v. Sey- 
 mour, 26 Beav. 548.
 
 TACKING OF MOKHJAOKS. '^19 
 
 first legal mortgage, and in the case of a first mortgagee 
 seeking to tack a further advance, even if the first mort- 
 gage was expressly made to secure a sum and further 
 advances (r), and contained a covenant to that effect (.9}. 
 Thus a first mortgage<^' cannot tack a subsequent debt 
 incurred pendente lite (tlie lis pendens being duly regis- 
 tered), because the suit would ail'ect him with notice of the 
 ■mesne incumbrance (^). Notice to one of a number of 
 joint mortgagees is sufficient to prevent tacking of u 
 further advance made by the others (w) . The fact is that 
 if there is notice at the time of the advance the equities 
 are 7iot equal; and then the possession of the legal estate 
 will not prevail. 
 
 (4.) The last rule in Brace v. The Duchess of Marl- 4. Where the 
 
 , T • u 1T7-1 • • 1 1 • legal estate is 
 
 ■borough is: When a pms7ie incumbrancer buys in a outstanding 
 
 "prior mortgage in order to unite the same to the puisne f i^^""^}*'^ 
 
 "incumbrance, but it is proved that there Avas a mort- order of time, 
 
 " gage prior to that, the Court clearly holds that the puisne 
 
 "incumbrancer where he had not got the legal estate, or 
 
 " where the legal estate was vested in a trustee, could 
 
 "there make no advantage of his mortgage; but in all 
 
 " cases whore the legal estate is standing out, the several 
 
 " incumbrancers must be paid according to their priority 
 
 "in point of time." In other words, where, owing to the 
 
 outstanding of the legal estate, the maxim " where there is 
 
 equal equitt/ the lato must prevail" does not apply, then 
 
 the maxim ''qui prior est tempore potior est jure" 
 
 applies (x) . 
 
 (r) Hopkinson v. Bolt, 9 H. L. 53 ; and see Credland v. Potter, 
 
 514; Shaw v. Neale, 20 Beav. 10 Ch. 8; Beeleif v. Lloyds Bank, 
 
 157; 6 H. L. 581; Carlisle Bai/k (1912) A. C. 756; 81 L. J. Cli. 
 
 V. Thompson, 28 Ch. D. 398; 697; reversing S. C, (1910) 1 
 
 London 4- Coy. Bank v. Batclife, Ch. 648; 79 L. J. Ch. 561. 
 6 App. C. 722. {li) Freeman v. Laintf, (1899) 
 
 (s) West V. Williams, (1899) 1 2 Ch. 355; 68 L. J. Ch.' 586; Be 
 
 Ch. 132; 68 L. J. Ch. 127; re- Phillips' Trusis, (l9QZ)\Q\i.\9,Z; 
 
 versing (1898) 1 Ch. 488; Hughes 72 L. J. Ch. 94. 
 V. Britannia, ^-c. Soc., (1906) 2 (.r) Union Bank v. Kent, 39 
 
 •Ch. 607; 75 L. J. Ch. 739. Ch. D. 238; 57 L. J. Ch. 1022. 
 
 (<) Morret v. Paske, 2 Atk.
 
 320 
 
 RIGHTS OF MORTGAGOR AND MORTGAGEE. 
 
 unless one 
 incumbrancer 
 lias a better 
 right to call 
 for it. 
 
 Bond and 
 simple 
 
 contract debts 
 not tacked 
 against a 
 mesne 
 incumbrancer. 
 
 37 & 38 Vict. 
 c. 78. 
 
 38 & 39 Vict. 
 c. 87. 
 
 There is, however, a modification of this rule when one- 
 of the inoumbranoers, though he has not the legal estate, 
 has from the circumstances of the case a better right than 
 another to call for it; for instance, if a declaration of trust 
 has been made in his favour, or if he has secured possession 
 of the title deeds {y) . If this is the case, equity will place 
 him in the same situation as if he had an actual assign- 
 ment {z) . And the result is the same where an incum- 
 brancer obtains the legal estate after advancing his money 
 in pursuance of a contract for a legal mortgage entered 
 into at the time of the advance (a). 
 
 We have seen that bond and simple contract debts, not 
 being specific liens on the land, cannot be tacked as 
 against the mortgagor himself. A fortiori, whether prior 
 or subsequent to the mortgage, they cannot be tacked as 
 against any intervening incumbrancer, whether a mort- 
 gagee or judgment or bond creditor (b). 
 
 The whole doctrine of tacking was displaced for a short 
 time by the Vendor and Purchaser Act, 1874 (c), which 
 enacted that from the 7th of August, 1874, no priority 
 should be given or allowed to any interest in land by 
 reason of such interest being protected by or tacked to the 
 legal estate in such land. This enactment was, however, 
 only in operation until the 31st of December, 1875, from 
 which time it Avas repealed by the Land Transfer Act, 
 1875 (^). 
 
 By the Yorkshire Registries Act, 1884, provision is 
 made for the registration of all mortgages of lands in 
 Yorkshire, and registration is declared to constitute 
 actual notice of such mortgages. The Act further pro- 
 vides that registered assurances thereunder shall have 
 priority according to their respective dates of registration, 
 
 (y) Windham v. Richardson, 
 2 Ch. Ca. 213. 
 
 (s) Pom fret \. Windsor, 2 Yes. 
 sr. 472, 486; Wilmot v. Pike, 5 
 Ha. 14, 22. 
 
 (a) Cooke v. Wilton, 29 Beav. 
 
 100. 
 
 (b~) Windham v. Jennings, 2 
 Cli. Rep. 247; Lowthian v. Ilasel. 
 3 Bro. C. C. 162. 
 
 (c) 37 & 38 Vict. c. 78. 
 
 Id) 38 & 39 Vict. c. 87.
 
 CONSOLIDA'I'lON OF MORTGAGES. ^1 
 
 and that priorit}- shall not be guinod by an application of 
 the doetrino of tacking (f'). But this is subject to the 
 exception that priority will not be gained by registration 
 if the advance is obtained by actual fraud (/) . 
 
 V. Comolidatimi of Mortgages. 
 
 1 . The doctrine of the consolidation of mortgages must Cousolidatiou 
 -be carefully distinguished from that of tacking. The Jif^j^f^ljj^"^. 
 principle of tacking applies as between successive incum- 
 brances on one estate. The term consolidation of mort- 
 gages is ap}died to the general rule that where a mortgagor 
 
 has mortgaged more tlian one estate to his mortgagee, lie 
 cannot claim to redeem one mortgage without redeeming 
 all. This rule, which appli(>« e([ually to redemption and 
 foreclosure suits, to legal and equitable mortgages, and to 
 real and personal property, may be thus concretely illus- 
 trated: A. mortgages Blackacre to B. for £1,000, Black- IHustratiou. 
 acre being worth say £1,500. Then A. further mortgages 
 Whiteacre to B. for £500, and Whiteacre is found to 
 be worth only £100. A. cannot then claim to redeem 
 Blackacre, where the security is ample, alone. If he seeks 
 to do so, he must also be prepared to redeem Whiteacre, 
 which is an insufficient security for the money originally 
 charged upon it {g) . The fact that the mortgagee has 
 given notice to the mortgagor to pay off one of the moz't- 
 gages does not prejudice his right to consolidate {h). 
 
 2. This doctrine of consolidation has been carried far Etfectof 
 beyond the simple case of a mortgage of two estates by 
 
 one person to another. Thus, if A. sells Blackacre, or 
 
 (e) 47 & 48 Vict. c. 54; 48 {g) Selby v. Pom fret, 1 J. & 
 
 Vict. c. 4; 48 & 49 Vict. c. 26; H. 336; 3 De G. F. & J. 595; 
 
 Jones V. Barker, (1909) 1 Ch. Phillips v. Gutteridge, 4 De G. & 
 
 321; 78 L. J. Ch. 167. -T. 531. 
 
 (/) BatUson v. Jlobsoi/, (1896) (h) Griffith v. Pound, 45 Ch. 
 
 2 Ch. 403; 65 L. J. Ch. 695. D. 553; 59 L. J. Ch. 522. 
 
 S. 
 
 21
 
 322 
 
 RIGHTS OF MORTGAGOR AND MORTGAGEE. 
 
 First 
 
 mortgages 
 made to 
 different 
 persons. 
 
 mortgages the equity of redemption of it to C, whether 
 with or without notice of the existence of the other mort- 
 gage, the purchaser is just as much as A. himself bound 
 by B.'s right to consolidate (^). Even where the mortgage 
 of Whiteacre was effected after the sale or second mort- 
 gage to C, B. was held entitled to consolidate (k). That 
 this may work great hardship on a second mortgagee or 
 purchaser is very evident. Thus, referring again to the 
 figures above employed in illustration, C, not having any 
 notice of the improvident mortgage of Whiteacre, may 
 imagine that he is perfectly secure in giving £400 for, or 
 lending it on a second mortgage of Blackacre. He would 
 clearly be so if that estate could be redeemed alone . But 
 he finds on seeking to do this, that B. can consolidate with 
 the mortgage of Blackacre the mortgage of Whiteacre, 
 which is worth £400 less than what was lent thereupon; 
 and the result is that C.'s purchase or security is Avorth 
 nothing at all. 
 
 Again, the principle applies although the first mortgages, 
 of the several estates were originalh^ made to different mort- 
 gagees, but have by transfer come into the hands of one 
 tnortgagee; for instance, if A. mortgages Blackacre to B., 
 and Whiteacre to C . , and C . afterwards assigns his mort- 
 gage to B. (l), or, vice versa, B. assigns his mortgage to 
 C. (m). But it has been hekl that consolidation cannot 
 be insisted on if the equity of redemption of the one estate 
 has been sold or mortgaged previous to the transfer which 
 brings the two mortgages to the same hand (??): a fortiori, 
 if such sale or mortgage takes place previous to the creation 
 of the mortgage of the other estate (o). In this case the 
 
 («) Beevor v. Luck, 4 Eq. 537 
 Titley v. Davies, 2 Y. & C. Ch 
 399, n. 
 
 (Jc) Vint V. Padget, 1 Giff. 446 : 
 2 De G. & J. 611; Pledge v 
 White. (1896) A. C. 187; 65 L. J 
 Cli. 449. 
 
 (I) Tweedale v. T., 23 Beav 
 341. 
 
 (?«) Titley v. Davies, sup. 
 
 (n) Willie V. Lugg, 2 Ed. 78; 
 Barter v. Colman, 19 Ch. D. 630; 
 51 L. J. Ch. 481; Minter v. Carr, 
 (1894) 2 Ch. 321; 3 Ch. 498; 63^ 
 L. J. Ch. 705. 
 
 (o) White V. Hillacre, 3 Y. &. 
 C. Exch. 597; Jennings v. Jordan,. 
 6 App. C. 698; 13 Ch. D. 639;
 
 CONSOLIDATION OF >r()liTGAGES. '325 
 
 knowledge of the possibility of the mortgages coalescing 
 cannot be imputed to the second mortgagee or purchaser of 
 the first estate. The case is yet stronger if at the time of 
 the assignment the assignee^ had notice of the puisne mort- 
 gage (p). These cases in effect overrule the decision in 
 Tassel V. Smith (q), and 1o a certain extent that in Beevor ' 
 V. Luck (r), cases which for a long time bore very hardly 
 upon purchasers and mortgagees of equities of redemption; 
 and apart from the statutory displacement of the doctrine 
 presently to be noticed, the tendency of recent judicial 
 decisions has been against an extension of the doctrine of 
 consolidation . 
 
 3. A mortgagee may on the bankruptcy of the mort- Consolida- 
 
 • J, J • . 1 1 , tionin 
 
 gagor, II nis trustee does not at once redeem, take a bankruptcy, 
 transfer of a mortgage on another of his estates and con- 
 solidate it with a debt due on his own mortgage, and may 
 thus hold the two estates as a security for both debts (s) . 
 He could not, however, take an original mortgage after 
 notice of insolvency, as that would amount to a fraudulent 
 preference (t). 
 
 4 . There can be no consolidation where the transactions Cases in 
 in question are not between the same parties or persons ^q^oJj^ j-j 
 claiming through them(M); so there can be no consoli- may not tak«> 
 dation where one mortgage is by a firm, and the other by 
 
 one of the partners thereof (x) . This case also decides 
 that there can be no consolidation where there has been 
 no default in respect of one of the mortgages, for until 
 default the estate is not at law forfeited. A bill of sale 
 holder is not entitled to consolidate his security with a 
 
 61 L. J. Ch. 129; Hughes v. H. 336; 3 De G. F. & J. 595. 
 
 Britannia P. B. Soc, (1906) 2 (t) Exp. Hotchkin, 20 Eq. 746. 
 
 Ch. 607; 75 L. J. Ch. 739. (w) Jones v. Smith, 2 Ves. jr. 
 
 {j>) Baker v. Gray, 1 Ch. D. 376; Higqins v. Frankis, 15 L.J. 
 
 491. Ch. 329; 10 Jur. 328. 
 
 (5-) 2 De G. & J. 713. {x) Cummins v. Fletcher, 14 
 
 (r) Sup. Ch. D. 699; Sharp v. Rickards, 
 
 (.s) Selby V. Pomfret, 1 J. & (1909) 1 Ch. 109; 78 L.J. Ch. 29. 
 
 21(2)
 
 ^24 RIGHTS OF MORrGA(;OK ANJ) MORTGAGEli. 
 
 mortgage of land, so as to I'xelude an execution 
 creditor {y) . Nor will the principle be applied to the 
 prejudice of persons claiming one of the properties under 
 a voluntary settlement {z) . 
 
 44 & 45 Vict. 5. The Conveyancing and Law of Property Act, 1881, 
 ^. 41, s, 17- . 
 
 in effect abrogates the principle of Consolidation as far ae 
 
 concerns mortgages executed after Dec. 31st, 1881, unless 
 the right is expressly reserved . It enacts that a mortgagor 
 seeking to redeem any one mortgage shall be entitled to 
 do so without paying any money due under any separate 
 mortgage made by him, or by any person through whom 
 he claims, on property other than that comprised in the 
 mortgage which he seeks to redeem, provided that no con- 
 trary intention is expressed in the mortgage deeds or one 
 of them. But the Act only applies where the mortgages 
 are or one of them is made after the above-mentioned 
 date {a), and it has no application where two properties 
 are included in one mortgage and for one advance (?>). 
 It has been held under this section that in the case of a 
 redemption action comprising two properties, there can 
 be no consolidation of costs; they must be rateably appor- 
 tioned between the properties (c) . 
 
 (i/) C/i^s worth \. Hunt, 5 C.V. (1903) 1 K. B. 147; 72 L. J. 
 
 D. 266. K. B. 125. 
 
 (z) He Walhampton Estate, 26 (c) De Caux v. Skipper, 31 Cli. 
 
 Ch. D. 391; 53 L. J. Ch. 1000. D. 635; overruling Clapham v. 
 
 (a) 44 & 45 Vict. c. 41, s. 17. Andrews, 27 ib. 679; 53 L. J. Ch. 
 
 (b) Hall V. Reward, 32 Ch. D. 792. 
 430; 55 L. J. Ch. 604; Re Salmon,
 
 AGREKMKN'I', 325' 
 
 Section [II. — E(juitahlk Mortgages. 
 
 I. By Agreement . 
 II. By Depcmt of Title Deeds. 
 III. Beniedirs. 
 
 There are two s})e('ios of oquitablo mortgages, which, Claseification. 
 though in many res])oets similar, are sufficiently distinct 
 to require consideration. 
 
 The first class comprises those transactions viewed and 
 treated in equity as mortgages, in Avhich a person by 
 agreoment or mandate creates a charge upon his property. 
 
 The second and more peculiar class comprises equitable 
 mortgages arising from the deposit of title deeds. 
 
 I. Equitable Mortgm/es by Agreement or Mandate. 
 
 1. Any agreement in writing, however informal, by Informal 
 which any property, real or personal, is to be a security ^S^^^^^^^ 
 for a sum of money, is a charge, and amounts to an mortgages, 
 equitable mortgage. Thus an agreement that a creditor 
 shall hold land at a fair rent to be retained in satisfaction 
 of the debt, is in the nature of a mortgage, and will be 
 supported as such (a). A charge may indeed be so framed 
 as not to carry with it all the remedies of a mort- 
 gagee (6). But the Court will presume an instrument 
 intended as a security to be a mortgage unless the terms 
 exclude such a construction (c). 
 
 (a) Morony v. 0'I)ea, 1 Ba. & 533; Jenkin v. Roh\ 5 De G. & 
 Be. 109; Coote, 336. Sm. 107. 
 
 (6) Sampson v. Pattison, 1 Ha. (c) Balfe v. Lord, 2 Dr. & W. 
 
 480.
 
 326 
 
 EQUITABLE M0KT(4AGES. 
 
 Mortgages of 
 an equity of 
 redemption. 
 
 On the })rinciple that lohat Is cu/reed to be done is con- 
 sidered in equity as done, an express written agreement to 
 effect a mortgage is treated as a mortgage {d). So a 
 written instrument promising to pay a sum of money with 
 interest " out of the estate of the deceased W. H.," and 
 signed by all the persons interested in his estate, was 
 held (the personalty being exhausted) to amount to an 
 equitable mortgage of the real estate (e). i\.nd an agree- 
 ment by a married woman to charge her expectancy under 
 the will, or as one of the next of kin of a living person, 
 was on similar grounds enforced after that person's 
 death (/). A covenant also that, if payment of a certain 
 debt be not made, the creditor may by entry, foreclosure, 
 sale, or mortgage, levy the amount from the lands of the 
 debtor, is an equitable mortgage (g). 
 
 2. Another species of equitable mortgage is seen in 
 mortgages of the equity of redemption of an estate which 
 has been already legally mortgaged. But it is not neces- 
 sary to enter into a separate discussion of such equitable 
 mortgages, inasmuch as any particulars in which they 
 differ from legal mortgages are fully explained under the 
 heads of Notice and Tacking (h). 
 
 Statute of 
 Frauds. 
 
 II. Equitable Mortgages by Deposit of Title Deeds. 
 
 It is a well-known provision of the Statute of Frauds (i) 
 that no action shall be brought upon any contract or sale 
 of lands, tenements, or hereditaments, or any interest in 
 or concerning them, unless the agreement upon which 
 such action shall be brought, or some memorandum or 
 note thereof, be in writing and signed by the party to be 
 charged therewith, or his duly authorised agent {k). 
 
 (^d) Hankeif v. Vernon, 2 Cox, 
 12, 14; Walsh v. Lonsdale, 21 Ch. 
 D. 9; 52 L. J. Ch. 2. 
 
 (e) Suart v. Toulmine, 2 Pow. 
 Mtg. 1049 a, ed. 6. 
 
 (/) Floiver v. Buller, 15 Ch. 
 D. 665. 
 
 {g) El/re v. McDowell, 9 H. L. 
 620. 
 
 (A) See pp. 353 et seq., 312 
 et seq. 
 
 (0 29 Car. II. o. 3. 
 
 {k) S. 4.
 
 DEPOSIT OF TITLE DEEDS. 32T 
 
 In the case of Russel v. Russel (l) this was relied on as Jiu-is«lv. 
 an answer to an action which sought to establish a charge 
 on the mere fact of the deposit of a deed. But the objec- 
 tion did not avail; and it has long been established that 
 if the title deeds of an estate are, without even verbal Deposit 
 communication, deposited by a debtor in the hands of his eyj^ence of 
 creditor, the mere fact of such deposit, if otherwise an agreement, 
 unaccounted for, is held to be prima facie evidence of an 
 agreement for a mortgage of the estate; and the creditor 
 may avail himself of it as of an agreement in writing for 
 that purpose, and may bring an action for the completion 
 of his security by a legal conveyance (m). These bold 
 decisions have given rise to transactions which now form a 
 conspicuous feature in commercial practice and equitable 
 jurisprudence, and which require attentive consideration. 
 
 (1.) What constitutes a mortgage by deposit. 
 
 (i.) It has already been stated that a deposit of title What deposits 
 
 T 1 • 1 1 11 , • • sufficient. 
 
 deeds, unaccompanied by any verbal agreement, is evi- 
 dence of an agreement for a mortgage which may be 
 enforced; and this proposition may be abundantly illus- 
 trated. Tlius a deposit of a copy of Court rolls (u), of an 
 agreement for a lease (o), of a policy of insurance (p), of 
 a registered mortgage of a ship (g), or of a certificate of 
 shares in a public company (r), may constitute an equit- 
 able mortgage. 
 
 (ii.) An equitable mortgage may be created by a Deposit 
 deposit of part of the title deeds only, and it is not neces- deeds, 
 sary that tlie deeds deposited should show a good title in 
 the depositor (s). But a deposit of deeds relating to part 
 
 (0 1 Bro. C. C. 269; 2 W. i: G. 378. 
 
 T. L. C. 76, ed. 7. (q) Lacoji v. Liffen, 4 Giff. 75. 
 
 (ni) Exp. Wright, 19 Ves. 258; (r) Exp. Moss, 3 De G. & Sm. 
 
 Jie McMahon, 55 L. T. K. 763. 599; France v. Clark, 26 Ch. D. 
 
 (n) Exp. Warner, 1 Rose, 286. 257; 53 L. J. Ch. 588. 
 
 (o) Unity, ^-c. Go. v. King, 25 (s) Exp. Wetherall, 11 Ves. 
 
 Beav. 72. 398; Roberts v. Croft, 24 Beav. 
 
 (p; Ferris v. MulUns, 2 Sm. & 223; 2 De G. & J. 1.
 
 mn 
 
 KC^UITARI.E MORTGAGES. 
 
 purchase 
 money 
 
 Registereil 
 lands. 
 
 of an estate, with a representation that they relate to the- 
 whole, wdll only effect a mortgage of the y)art actually 
 comprised in the deeds (t). If the deeds are deposited, 
 some with one creditor, some with another, each may have 
 Of receipt for a valid charge (u). Moreover, if there are no title deeds 
 or conveyances in the depositor's possession, an equitable 
 mortgage may be created b}^ the deposit of the receipt for 
 purchase-money, containing the terms of the agreement 
 for sale (v). 
 
 (iii.) Where land had to be registered under the Land 
 Registry Act {'(v), an equitable mortgage might be created 
 by a deposit of the land certihcate {x), but not by that of 
 the title deeds (y). The same provision is continued under 
 the Land Transfer Acts (z). 
 
 (iv.) A deposit of the deeds with a third person for 
 the benefit of the creditor will be sufficient to create a 
 security; and the possession of the agent of the debtor 
 may suffice, if there is a memorandum of deposit showing 
 an intention to make him a trustee (a). But a deposit 
 with the wife of the debtor, to be kept by her for the 
 creditor, was held insufficient (6); and where the deeds- 
 remain in the hands of the debtor, accompanied by a 
 memorandum of deposit, there is no valid mortgage (c) 
 unless indeed the debtor in fact holds them as the servant 
 of the creditor (d). A deposit made by an agent of the 
 debtor with due authority constitutes a mortgage and 
 creates a valid charge, even though the agent borrows 
 more or less than he was authorised to do and in the 
 former case fraudulently appropriates any excess (e). 
 
 Deposit with 
 third person. 
 
 (<) Jones V. WillioDis, 24 Beav. 
 47. 
 
 (m) Roberts v. dioft, 24 Beav. 
 223; 2 De G. & J. 1. 
 
 (<•) Goodwin V. Waghorn, 4 
 L. J. (N. S.) Ch. 172. 
 
 {w) 25 & 26 Vict. c. 53. 
 
 Ix) S. 73. 
 
 (y) S. 63. 
 
 (z) 38 & 39 Vict. c. 87. s. 81 ; 
 60 & 61 Vict. c. 65, s. 8. 
 
 («) Lloyd V. At t wood, 3 De G.. 
 & J. 614, 619. 
 
 (6) Exp. Coming, 9 Ves. 115. 
 
 (c) Adams v. Claxton, 6 Ves> 
 226, 230. 
 
 {d) Ferris v. Mulllns, 2 Sm. & 
 G. 378. 
 
 (e) Brocklesbi/ v. Temperance- 
 P. B. Soc, (1893) 3 Ch. 130; 
 (1895) A. C. 173; 64 L. J. Ch. 
 433; and see also Lloyd's Bunk
 
 DEPo^rr OF TiTiJ-; dkf.ds. 329 
 
 (v.) But though a deposit of title deeds or their equiva- r)«'po.'«it.<)r 
 lent is evidence of an agreement for a mortgage which t hat there whm 
 may suffice to establish a claim for relief in equity, it does i"> agTcement, 
 
 •^ . , . :i"tl thiit the 
 
 not itself constitute an agreement. The depositor may purpose wa* 
 
 show that the deposit was not made with the view and selunty ^ 
 
 intent to effect a security, but with some other intent or 
 
 for some other purpose. The mere possession of the title 
 
 deeds is, therefore, not enough to create an equitable 
 
 security (/) . For instance, deeds may be deposited merely 
 
 for the purpose of safe custody; or on some definite 
 
 condition {g)\ or there may be attendant circumstances 
 
 showing that there was no intention to create a mortgage, 
 
 as, for instance, where deeds have been left with a banker 
 
 after he has refused to advance money on them (Ji) ; or the 
 
 deposit may be accompanied by a memorandum showing 
 
 tliat there was not an intention to create a security (i). In 
 
 none of these cases will an equitable mortgage be created; 
 
 but where the possession of the deeds cannot be accounted 
 
 for save on the supposition that a mortgage was intended, 
 
 it amounts to a presumption of such intention so strong 
 
 thiit it may be acted upon (fc). 
 
 (vi.) Where deeds are deposited for the purpose of pre- Deposit for 
 
 paring a legal mortgago, a presumption arises of an inten- of creatino- 
 
 tion to create an equitable mortgage. At one time it was a legal 
 
 . r^ D ^ mortg'age. 
 
 sought to distinguish between the ease where the intention 
 
 was to secure an antecedent debt, and where it was with a 
 
 view to secure only a future advance, it having been held 
 
 that in the latter case no equitable mortgage arose from 
 
 the deposit {I). But it seems that this distinction cannot 
 
 V. Bullock, (1896) 2 Ch. 192; (io {h) LnraK v. Dorricn, 7 Taunt. 
 
 L. J. Ch. 680; distinguished in 278. 
 
 Capel.l V. Winter, (1907) 2 Ch. (/) 8hnir v. FoHfe>\ L. E. 5 
 
 376; 76 L. J. Ch. 496; Fni v. 11. L. 340; Spoile v. Whai/mrm, 
 
 Smellie, (1912) 3 K. B. 282; 81 20 Beav. 607. 
 
 L. J. K. B. 1003. (Jc) Harford v. Carpenter, 1 
 
 (/) Chapman v. C, 13 Beav. Bro. C. C. 270, n.; Dixon v. 
 
 308. MitcUeHon,, 8 Ch. 155. 
 
 (<7) Burton v. Graii, 8 Ch. 932. (0 Morris v. Wilkinxon. 12 Vee. 
 
 192.
 
 35JO 
 
 KQIJITAHU: MORTGA(iE.S. 
 
 Written 
 
 memorandum 
 
 sufficient 
 
 without 
 
 deposit. 
 
 be sustained, and that now in all such cases an equitable 
 mortgage will result from the deposit (m) . This will 
 clearly be the case if an agreement to give a mortgajge 
 accompanies the deposit (w). An agreement for a legal 
 mortgage does not entitle the mortgagee to require the 
 insertion of a clause excluding the operation of s. 17 of 
 the Conveyancing Act, 1881, so as to give him the right 
 of consolidation (o). 
 
 (vii.) A valid equitable mortgage may, as we have seen, 
 be created by a written agreement apart from any deposit; 
 and a written memorandum of deposit is a sufficient agree- 
 ment (p), especially if the deeds be already in the posses- 
 sion of a third party (g) . But in no case can a mere oral 
 agreement without an actual deposit create an equitable 
 security (r). The question to consider in the case of an 
 oral agreement is whether or not the deposit can be re- 
 garded as a j)art performance thereof, so as to take it out 
 of the Statute of Frauds (s). 
 
 What 
 property is 
 deemed to be 
 mortgaged. 
 
 Memorandum 
 may limit the 
 
 (2.) The effects of an equitable mortgage by deposit. 
 
 i. As to the property affected. 
 
 Prima facie, the deposit of deeds by a debtor constitutes 
 a mortgage of all the property comprised in them (t). But 
 the secm-ity may be limited by a written memorandum 
 defining its extent {u). If, on the contrary, the memo- 
 randum refers to deeds whieli are not deposited, it does not 
 effect a mortgage of the property comprised in them (y). 
 Thus the memorandum may limit but may not extend tlie 
 
 (ni) Edge v. Worthington, 1 
 Cox, 211; Exp. Bruce, 1 Rose, 
 374. 
 
 (•«) Ilockleij V. Baiitock, 1 
 B.USS. 141; Keys v. WiUinins, 3 
 Y. & C. Ex. 55. 
 
 (o) Whitley V. Challh, (1892) 
 I Ch. 64; 61 L. J. Ch. 307; 
 FarMer v. Pitt, (1902) 1 Ch. 954; 
 71 L. J. Ch. 500. 
 
 (^) E^p. Orrett, 3 Mont. A: 
 
 A. 153. 
 
 (<?) Daw V. Terr el, 33 Beav. 
 218. 
 
 (r) Exp. Coornbe, 4 Madd. 349. 
 
 (.•,-) Re Beetham, 18 Q. B. D. 
 380, 766; 56 L. J. Q. B. 635. 
 
 {t.) Afhton V. Dalton, 2 Coll. 
 566. 
 
 (?<) Exp. Glyn, 1 M. D. .t De 
 G. 29. 
 
 {v) Exp. Powell, 6 Jur. 490.
 
 DEPOSIT OF rri'LE DICEDS. 
 
 331 
 
 ►effect of the deposit, unless, of course, the inemorandum is e*t*;ct of the 
 
 I p • ■ T p • -.IT deposit. 
 
 an such a loriu as in itsoll to constitute an equitable 
 mortgage. 
 
 A deposit of title deeds will comprehend any interest After- 
 which the depositor may afterwards acquire in the pro- property, 
 perty (w), and will include not only fixtures existing on Fixtures, 
 the property at the time, but also those subsequently 
 -erected, whether the fixtures ai-e mentioned or not {x). 
 And the result is the same whether the deposit is made by 
 the owner in fee who is also owner of the fixtm-es, or by 
 a lessee who is owner of the fixtures, although as between 
 landlord and tenant they are removable (p). In the case 
 of machinery in the possession of a mortgagor under a 
 hire-purchase agreement, the owner, having a prior equity, 
 has priority over an equitable mortgagee {z). On the ^ 
 bankruptcy of the depositor of a lease, the fixtures will 
 mot be considered as being in his order and disposition, 
 but will belong to the mortgagee (a) . 
 
 A deposit of title deeds can only affect the interest of Interest of 
 the depositor. Thus, if the deposit be by a trustee, and effected!'' °°*^ 
 there is no consent or acquiescence of the cestui que trust, 
 the secm'ity extends only to any beneficial interest which 
 the trustee may have (6); and a deposit by a tenant for 
 life cannot affect the interest of remainder-men (c). 
 
 ii. What debts it may secure. 
 
 It is a matter of evidence what debts are to be deemed PritHdfacie 
 , .... ■, p -11 only debts 
 
 to be comprised in the security or an equitable mortgage, advanced at 
 
 Prima facie only the sum advanced at the time of the time of deposit 
 
 secured. 
 
 (m;) Pri/ce \. Jitiri/, 16 ISlq. 15S. (z) Re Samuel allien ^'- Sons, 
 
 Ix) Exp. Price, 2 M. D. & De (1907) 1 Ch. 575; 76 L. J. Ch. 
 
 •G. 518; Exp. dsfhuri/, 4 Ch. 630. 362. 
 
 (y) E.vp. Loyd, 3 D. & C. 765; («) E.cp. Burclaij, 5 De G. M. 
 
 Longbottoiii v. Berry, L. R. 5 & (x. 403. 
 
 »Q. B. 123; Meux \. Jacobs, J-i.^. (b) Mrnutinffford v. Toleman, 
 
 7H. L. 481; Hobxoii \. Gorringe, 1 Coll. 670; Exp. Smith, 2 M. 
 
 (1897) 1 Ch. 182; 66 L. J. Ch. D. & De G. 587. 
 
 114; Bei/nolds v. Ashby, (1904) (c) THr)ier v. Letts, 20 Beav. 
 
 _A. C. 466; 73 L. J. K.E. 946. 185.
 
 332 
 
 EQUITABLE MORlXiAGKS. 
 
 Circuniatanoes deposit IS cousiflcrcd to be secured tliereby {d); but the- 
 
 may extend circumstances of the case may suffice to show an intention: 
 
 ^^^^- to secure antecedent advances, and if so it will he carried 
 
 into effect (e); and either written or parol evidence of 
 
 intention may suffice to extend the security to subsequent 
 
 advances (/); and generallj^ a verbal agreement to make a 
 
 subsequent advance, on a deposit of deeds already made 
 
 for another purpose, is sufficient to constitute an equitable^ 
 
 mortgage as to the subsequent advance (g). 
 
 Interest. A debt secured by an equitable mortgage, although 
 
 originating in a simple contract, bears interest at the rate 
 
 of 4 per cent, from the date of the deposit, even without 
 
 an express agreement to that effect {h). 
 
 iii. Against (vhoju the security preralU. 
 
 Security valid A deposit of title deeds creates a security valid as 
 
 Crown. against the Crown, if made before the depositor became- 
 
 a Crown debtor by record or specialty (^). 
 
 Trustee in rpj^p securit\ is also good against the debtor's trustee in 
 
 bankruptcy, unless it is made so near the bankruptcy as 
 to amount to a fraudulent preference (fc). 
 
 Judgment It also prexails against the interest of a subsequent 
 
 judgment creditor, although he may have acquired legal 
 
 seisin under an elegit and without notice {l). 
 
 Subject to gy^ .^j^ equitable mortgagee is liable to all prior equities- 
 
 prior equities. ^ . . r i. 
 
 affecting the depositor; for instance, as we have seen, a 
 
 deposit of title deeds given in breach of trust, though with- 
 out notice, does not affect the claim of the beneficiaries; 
 and where a mortgage was obtained without consideration,. 
 
 (d) Exp. Martin, 4 D. & C. (A) Re Kerr's Policy, 8 Eq.- 
 457; 2 M. & A. 243. 331; Saville v. Dnix, (1903) 1 
 
 (e) Exp. Farley, 1 M. D. & Ch. 781; 72 L. J. CIi. 505. 
 
 De G. 683, 689. ' («) Casherd\. JFnrd,6 Pri. 411. 
 
 (^f) Exp. Lanff><Um,n Ves. 230: (A-) E.rp. Jliixirort/i, 3 M. & 
 
 Shepherd v. Titlry, 2 Atk. 348. A. 457. 
 
 {(/) Exp. Keus'nKiton. 2 V. <S: (/) IV hil iro.lli v. frfUK/fnii, 3. 
 
 B. '79;i E.rp. Whilhrefid. 19 V.es. Ha. 416: I I'h. 728. 
 209.
 
 DKPO.Srr OF TITLE DHKDS. -333 
 
 and then transft'ned with notit-i' to a person who deposited 
 it to secure a debt, it was held that the depositee could not 
 be in a better situation than the depositor, and his security 
 wa^ therefore useless (m) . 
 
 If an equitable mortgagee by deposit carelessly parts Negligence of 
 with the deeds so as to enable a second mortgage to be ^fP'"*'**'"- 
 made by deposit thereof, he will bo postponed to the second 
 mortgagee, since it was through his laches that the fraud 
 was rendered possible {n) . And as between equitable mort- 
 gagees, the second may acquire priority without proving 
 negligence conducing to fraud. Omission to make proper 
 enquiry for, or to obtain possession of, the title deeds may 
 suffice (o). But a parting with the deeds in the ordinary 
 course of business, as, for instance, to a solicitor or con- 
 lidential clerk, who makes a fraudulent use of them, will 
 not have the effect of postponing the security (/?). 
 
 iv. Generally. 
 
 The benefit of an equitable mortgage by deposit may be Benefit 
 subsequently extended to persons who were not originally sub^equentlv 
 depositees. If a deposit of deeds is made to a firm, the extended, 
 general supp,osition is that it is not intended to enure for 
 the benefit ,of future members of that firm; but if an 
 intention that it should so operate is expressed on the 
 memorandum of deposit, or is proved by parol evidence, 
 or is evidenced by continued dealings with the new firm, 
 the new firm may gain the benefit of the security (g). 
 The special features of the liens of bankers, &c., are stated 
 elsewhere (r) . 
 
 (m) Parker v. Clarke, 30 Beav. v. WebHer. (1902) 2 Ch. 163; 71 
 
 54. L- J- Ch. 561; and see Fry v. 
 
 (m) Waldron\.Sloijer,\ Drew. Smellie, (1912) 3 K. B. 282; 81 
 
 193; Keate v. Phillips, 18 Ch. D. L. J. K. B. 1003; Burgis v. Con- 
 
 560; 50 L. J. Ch. 664. stantine, (1908) 2 K. B. 484; 77 
 
 \o') Far rand \. Yorkshire Ba>ik, L. J. K. B. 1045. 
 
 40 Ch. D. 182; 58 L. J. Ch. 238. (7) Exp. Keminqton, 2 V. & 
 
 (i») Re Vernon, Ewens ^- Co., B. 79, 83; Exp. Oakes, 2 M. D. & 
 
 33 Ch. D. 402; Carritt v. R. c?- P. Do G. 234. 
 
 Adv. Co., 42 Ch. D. 263; 58 L. J. (r) Page 337. 
 Ch. 688; distinguished in i?*;/i/wey
 
 334 
 
 KQUITABLK MORTGAGES. 
 
 Equitable 
 mortgagee of 
 lease not 
 liable to 
 covenants. 
 
 The rules as to priority, as between equitable mortgagees- 
 and others, are fuUy discussed under the headings of 
 notice, and tacking of mortgages (s) . 
 
 It was formerly suj)poscd that a cestui que trust or 
 depository of a lease was liable for the rent and covenants 
 in a suit by the lessor; but the contrary is now clearly 
 established; and the landlord cannot compel him to take 
 or the mortgagor to execute, an assignment so as to bring- 
 him within the liability of the covenants, even if he has- 
 been in possession and paid rent {t) . 
 
 Foreclosure 
 the proper 
 remedy. 
 
 III. Remedies of an Equitable Mortgagee. 
 
 (1.) It has been much discussed whether the proper 
 remedy of an equitable mortgagee is foreclosure (after the 
 analogy of a legal mortgage) or sale (after the analogy of 
 a charge) . Prior to the Conveyancing Act, 1881 , however, 
 it was settled that in the case of a mortgage of lands th& 
 proper remedy was foreclosure (u), whether the mortgage 
 arose from an agreement for a legal mortgage (x), or from 
 a deposit of title deeds with or without a written memo- 
 randum (y), or was a mortgage of an equity of redemp- 
 tion (2;); but if there was a deposit of title deeds^ 
 accompanied by a written agreement for a mortgage, the 
 mortgagee was entitled to either sale or foreclosure (a) . 
 
 By s. 2, sub-s. 6 of that Act (6), a mortgage is so de- 
 fined as to include " any charge on any property securing 
 
 (s) See pp. 353 ft srr/., 312 
 et seq. 
 
 (t) Moores v. Choat, 8 Sun. 
 508; Moore v. Greg, 2 De G. & 
 Sm. 304; 2 Ph. 717. 
 
 (m) Pryce v. Bury, 2 Drew. 41 ; 
 18 Jur. 967; James v. J., 16 Eq. 
 153. For form of judgment, see 
 Leen V. Fisher, 22 Ch. D. 283. 
 
 (a;) Frail v. Ellis, 16 Beav. 350. 
 
 (y) Carter v. Wake, 4 Ch. D. 
 605, 606, per Jessel, M. R. ; Back- 
 house V. Charlton, 8 Ch. D. 444. 
 
 (z) Richards v. Cooper , 5 Beav. 
 304. 
 
 (a) York, ^c. Go. v. Artley, 11 
 Ch. D. 205; Wade v. Wilson, 22. 
 Ch. D. 235; 52 L. J. Ch. 399. 
 
 {b) 44 & 45 Vict. c. 41.
 
 RKMEDIKS OF AN IXJUnAl'.LK MORT(;ACiKK. -JiiS 
 
 niont\y or monov'^ worth," terms which clearly comprise 
 au equitable mortgage, and accordingly, by s. 25 of the 
 same Act, the Court is empowered to order a sale instead of 
 foreclosure at the request of the mortgagee, even in the 
 absence of an agreement for a legal mortgage (c). An 
 equitable mortgagee selling under the Act cannot by virtue 
 of s. 21 thereof convej^ the legal estate vested in the 
 mortgagor {d), but a power of sale can be conferred by 
 means of an irrevocable power of attorney under s. 8 of 
 the Conveyancing Act, 1882(e). 
 
 Where there is a mei-e charge or lien, the remedy is sale, The remedy is 
 and not foreclosure (/) ; sale is also the proper remedy in a^chargr^^^ " 
 the case of a pledge of personal chattels (a). On a mort- ^^ pledge of 
 
 P , , 1 • « , -n ^ . chattels. 
 
 gage oi shares by deposit oi the certincate, however, the 
 proper remedy is an order for transfer and foreclosure {h) . 
 Although an equitable mortgagee has no legal right to be 
 jiaid the rents of mortgaged land, yet if he has been paid 
 rent by a tenant of the equitable mortgagor after notice 
 that the rent is claimed by him as equitable mortgagee, 
 he cannot be compelled to refund the rent to the tenant («•) • 
 
 An equitable mortgagee is entitled to a receiver, and one Receiver, 
 may be appointed on motion before defence, and even be- 
 fore appearance in cases where a risk of loss is shown (fc). 
 But ho is not, like a legal mortgagee, entitled to six 
 months' notice or to six months' interest in lieu of notice 
 before being bound to accept tender of the mortgage 
 debt(?). 
 
 (c) Oldham v. Stringer, 33 {g) Carter v. Wake, sup. 
 
 W. R. 251; Grissell v. Money, (h) Harrold v. Plenty, (1901) 
 
 38 L. J. Ch. 312. 2 Ch. 314; 70 L. J. Ch. 562. 
 
 (d) Re Hodson # Howe's Con- (,) Pinclc v. Tranter, (1905) 1 
 tract, 35 Ch. D. 668; 55 L. J. Ch. K. B. 427; 74 L. J. K. B. 345. 
 755. See Solamon ^- Me^jjh.-r's ^^^ Aberdeen v. Chittu, 3 Y. & 
 Contract, 40 Ch. D. 508; .8 L. J. (..Ex. 379; Meaden v. Seale,,, 6 
 ^'^- •^•^^- Ha. 620. 
 
 (e) 45 & 46 Vict. c. 39. ^^^ Fitzgerald's Trustee v. 
 (/) Tennant v. Trenchard, 4 Mellrrsh, (1892) 1 Ch. 385; 61 
 
 Ch. 537; Re Owen, (1894) 3 Ch. L J. Ch. 231. 
 220; 63 L. J. Ch. 749.
 
 336 EQUITABLE MOKT(JAGES. 
 
 Under (2.) The remedies of mortgagees (including equitable 
 
 Act! "^^ ^^ mortgagees) in bankruptcy, and also in the administration 
 of insolvent estates, and in the winding-up of companies, 
 are now regulated by s. 6 of the Bankruptcy Act, 
 1883 (m). The general principle is that the mortgagee 
 may either give up his security and prove for his whole 
 debt or retain his security and prove for whatever de- 
 ficiency there may be. 
 
 (>«) 46 & 47 Vict. c. 52: Jud. Act, 1875 (38 & 39 Vict. c. 77), s. 10.
 
 LIENS. 337 
 
 Section TV. — Liens. 
 
 Generally . 
 
 I. Liens at Laiv. 
 II. Equitable Lien». 
 
 1. Charges. 
 
 2. Vendor's Lien. 
 
 3. Vendee's Lien. 
 
 Analogous in man}' respocts to mortgages arc those Definition, 
 charges of various kinds which are designated by the 
 general term "liens.'" A lien is not, however, like a 
 mortgage, a jus in re, or a jus ad rem, but is simply a 
 right to possess and retain the property subject thereto, 
 until »omc charge attaching to it is paid or discharged (a) . 
 
 Liens are either legal or equitable; that is to say, some Liens legal or 
 liens have always been recognised by the common law; ^l"'*^'''^- 
 others, apart from recent legislation, were enforceable 
 only in Courts of Equity. 
 
 I. Of liens recognised at law some are specific, others Specific liens, 
 general. It will not be necessary here to do more than 
 briefl}^ indicate some examples of such liens. Familiar 
 illustrations of specific liens are, the right which an artisan Artisan. 
 has to retain an article delivered to him to work on until 
 he is paid for the labour expended thereon (6); the lien of 
 an accountant upon books entrusted to him for examina- Accountant. 
 
 (a) Story, 506. W. 270; Bellamy v. Dai-ei/, (1891; 
 
 (b) Scarf e v. Morgan, 4 M. & 3 Ch. 540; 60 L. J. Ch.778. 
 
 a 99.
 
 3.^8 
 
 LIENS. 
 
 Shipowner. 
 
 Partner. 
 
 General liens, 
 
 when 
 maintainable. 
 
 Liens by 
 usage : 
 Bankers. 
 
 Brokers. 
 Innkeepers. 
 
 tion and arrangement (c); the lien of a shipowner who has 
 paid a sum for salvage, upon the goods on board for the 
 amount of contribution to which the owner of the goods 
 is liable (d), and the lien of a partner on the partnership 
 property for what may be found due to him on taking the 
 partnership account (e). 
 
 A general lien differs from one that is specific in that it 
 entitles the creditor to retain the property in question as a 
 security, not merely for a particular charge, but for the 
 general balance due to him. It has been held that a general 
 lien can only he maintained in particular trades where its 
 existence has been judicially declared (/). Lord Mansfield 
 stated that a general lien would be upheld in four cases: 
 (1) where it is an express contract; (2) where it is implied 
 from the usage of trade; (3) where it is implied from the 
 manner of dealing between the parties on the particular 
 case; (4) where the party has acted as a factor (g). 
 
 An important instance of a lien by usage is the lien of 
 a banker over all the bills, papers, and securities of a 
 customer in his hands, which right subsists unless there be 
 an express contract or circumstances showing an implied 
 contract inconsistent wdth the lien (h). An instance of a 
 circumstance showing such an implied contract is the case 
 of a lease being accidentally left with the banker after he 
 had refused to lend money upon it (^) . 
 
 A broker has a similar lien (/c), and an innkeeper has a 
 general lien on articles belonging to his guests which come 
 into his possession as innkeeper (?). 
 
 (c) Exp. Southall, 17 L. J. 
 Bk. 21. 
 
 (cV) Briggs v. Merchant, iS;c. 
 Assoc, 18 L. J. Q. B. 178; Re 
 Ripon City, (1897) P. 226; 66 
 L. J. P. 110. 
 
 (e) Skip V. Harwood, 2 Swanst. 
 586; and see Bourne v. B., (1906) 
 2 Ch. 427; 75 L. J. Ch. 779. 
 
 (/) Bock V. Gopisson, 6 Jur. 
 N. S. 547; 7 ib. 81. 
 
 (^) Green v. Farmer, 4 Burr. 
 
 2221. 
 
 (/») Davies v. Bowsher, 5 T. R. 
 488; London Chartered Bn»k v. 
 White, 4 App. Cas. 413; Re 
 European Bank, 8 Ch. 41 ; Cuth- 
 bert V. Robarts ^- Co., (1909) 2 
 Ch. 226; 78 L. J. Ch. 529. 
 
 (?■) Lucas V. Dorrien, 7 Taunt. 
 278. 
 
 (k) Heivison v. Guthrie, 2 Bing. 
 N. C. 755. 
 
 {I) Threfall v. Borwick, 7 L. R.
 
 GENERALLY. 339 
 
 A factor has a general lien on goods consigned to him Factors, 
 for sale, and on the purchase-money thereof (m), as well as 
 a specific lien on goods bought for the purchase-money 
 and freight paid in respect thereof (n) . A wharfinger has Wharfingers, 
 also the same general lien as a factor for the balance of 
 his wharfage dues and freight (o) . As to the liens of 
 auctioneers, warehousemen, packers, and others, see the 
 cases cited below^ (p) . 
 
 The lien of a solicitor is of such a nature as to require Solicitors' 
 especial consideration. A solicitor has a general lien on ^®""'* ^^°- 
 the papers of his client in his hands for his taxable costs, 
 charges, and expenses (q) ; every client is, therefore, 
 entitled to have his costs taxed, though there may be no 
 item in the account relating to an action at law or in 
 equity (r). This lien is merely a right to retain, and 
 cannot be actively enforced (s). In case of a change of 
 solicitors pending an action, the Court may order the 
 delivery up to the new solicitor of the documents required 
 for the purposes of the action, pending taxation of the 
 ex-solicitor's costs, and without prejudice to his lien(^). 
 The lien must not be asserted so as to embarrass the pro- 
 ceedings (m). The lien appears not to be waived by an 
 order for payment, or by an attachment for non-payment 
 of costs, nor by any proceeding against the person of the 
 debtor (a?). It is not confined to deeds and papers, but what it 
 
 includes. 
 
 Q. B. 711; 10 i^>. 210; Jiobins v. L. J. Ch. 132; JFrt(/M v. Dee 
 
 Gray, (1895) 2 Q. B. 501; 65 ^steies, (1911) 2 Ch. 85; 80 L. J. 
 
 L. J. Q. B. 44. Ch. 461. 
 
 {m) Godin v. London Ass. Co., (r) Ee Barker, 6 Sim. 476. 
 
 1 Bur. 490; Robson v. Kemp, 4 (s) Bozoii v. BoUond, 4 My. & 
 
 Esp. 236. Cr. 357. 
 
 («) Exj}. Emer>i, 2 Ves. sr. (<) Hutchinson v. JVorwood, 34 
 
 674; E.vp. Good, 3 M. & A. 246. W. E. 637; Bluck v. Levering, 
 
 (o) Nai/lor v. Mangles, 1 Esp. 35 ib. 232 ; Boden v. Hensby, 
 
 109; 25 & 26 Vict. c. 63, s. 76. (1892) 1 Ch. 101; 61 L. J. Ch. 
 
 ip) Webb V. Smith, 30 Ch. D. 174. 
 
 192; 55 L. J. Ch. 343; Exp. {ii) Boughton v. B., 2d Ch. B. 
 
 Deeze, 1 Atk. 228; Be Witt, 2 169; Ackermann v. Lockhart, 
 
 Ch. D. 489. (1898) 2 Ch. 1; 67 L. J. Ch. 284. 
 
 ((?) Stevenson v. Blakelock, 1 {x) ZZoyrZ v. .V«<o», 4 Ha. 132; 
 
 M. k, S. 535; Re Rapid Road Exp. Bryant, 1 Mad. 49. 
 Transit Co., (1909) 1 Ch. 96; 78 
 
 22 (2)
 
 340 
 
 LIENS. 
 
 Specific lien 
 on funds 
 recovered. 
 
 Lien against 
 real estate. 
 23 & 24 Vict. 
 c. 127. 
 
 extends to other articles delivered to the solicitor for the 
 purposes of the action; for instance, to books, shares in a 
 company, &c. («/). But it only applies to such deeds and 
 documents as come to his hands in his character as solicitor 
 of the person against whom the lien is claimed {z), and it 
 extends only to secure law charges, not including a debt 
 due on another account («) or advances of money (6). 
 The lien is available notwithstanding that the claim is 
 statute-barred (c) . 
 
 A solicitor has also, apart from the statute presently to 
 be mentioned, a specific lien on the fund recovered by him 
 in an action for the costs of the action (d), and similarly, 
 also, upon money of the client in his hands to abide the 
 result of the action (e). But the remedy of a solicitor in 
 such a case has been increased by, and is now dependent 
 on, the statute 23 & 24 Vict. c. 127. 
 
 Previously to 23 & 24 Vict. c. 127, a solicitor had no 
 lien for his costs against real estate either at law or in 
 equity. By s. 28 of that Act it is enacted that it shall 
 be lawful for the Court or judge, before whom any suit 
 or matter has been heard, to declare that the solicitor 
 employed therein is entitled to a charge upon the property 
 recovered or preserved by his instrumentality in such suit 
 or matter; and that all conveyances and acts done to 
 defeat such charge shall, unless made to a bond fide 
 purchaser Avithout notice, be absolutely void and of no 
 effect as against such charge or right (/) . This Act 
 applies to property of all kinds (g), and a liberal construc- 
 
 (y) Friswell v. King, 15 Sim. 
 191; General Share Trust Co. v. 
 Chapman, 1 C. P. D. 771. 
 
 (z) Exp. Fuller, 16 Ch. D. 617; 
 Smith V. Betty, (1903) 2 K. B. 
 317; 72 L. J. K. B. 853. 
 
 («) Re Galland, 31 Ch. D. 296. 
 
 (6) Re Taylor, Stileman S; Co., 
 (1891) 1 Ch. 590; 60 L. J. Ch. 
 525; Groom v. Cheeseivright, 
 (1895) 1 Ch. 730; 64 L. J. Ch. 
 406. 
 
 (c) Carter v. C, 34 W. 1{. 57. 
 
 Id) Bozon V. Bollond, 4 My. .t 
 Cr. 357. 
 
 (e) IlauHon v. Reece, 3 Jur. 
 N. S. 1204. 
 
 (/) See Cole v. Eley, (1894) 2 
 Q. B. 180, 350; 63 L. J. Q. B. 
 682. 
 
 {g) Birchall v. Pugin, L. E. 10 
 C. P. 399; Re Gray don, (1896) I 
 Q. B. 47; 65 L. J. Q. B. 328: 
 Exp. Tweed, (1899) 2 Q. B. 167;
 
 LIENS AT LAW. 341 
 
 tion is placed upon the words "recovered or preserved." 
 Thus, the appointment of a receiver of the real estate of 
 an infant has been held to bring the property within the 
 section {h) . And where the action is for the benefit of all 
 parties, the lien attaches, irrespective of the interests of the 
 client (^). Money paid into Court is not deemed to be 
 "property recovered" {j), but money paid to compromise 
 an action is so regarded (A:), though the suit may be on 
 behalf of infants {l). The charge is, in fact, in the nature 
 of salvage, and may be made in the interests of persons 
 who did not employ the solicitor and are not parties to the 
 suit, if they adopt the benefit obtained in it(w). The 
 Court having declared the lien, will give liberty to apply 
 to have the costs raised by sale or otherwise (w) . 
 
 The lien has priority over debentures, so long as they 
 remain a floating security (o), notwithstanding a stipula- 
 tion that the company shall not create any charges having 
 priority; and also over a mortgage the title to which is 
 maintained in the action (p), and to charging orders 
 obtained by judgment creditors over money in Court and 
 in the hands of a receiver {q) . The assignee of a solicitor 
 may assert the lien and have a charging order (r) . 
 
 By Ord. LXV. r. 14, it is provided (contrary to pre- 
 vious decisions (s)) that a set-off for damages or costs 
 betw(>en parties may be allowed, notwithstanding the soli- 
 
 68 L. J. Q. B. 794; but see also Mm-fjetson v. Jones, (1897) 2 Ch. 
 
 Re LleweUin, (1891) 3 Ch. 145; 314; 66 L. J. Ch. 619. 
 
 60 L. .J. Ch. 732; and Bowker (/) JFrighf v. Sandrrxon, (1901} 
 
 V. ./«,s/,«, (1894) 1 Ch. 556; 63 1 Ch. 317; 70 L. J. Ch. 119. 
 
 L. J. Ch. 205. (ni) Greer v. Youiiff, 24 Ch. D. 
 
 (A) Baile v. B., 13 Eq. 497; 545; Bidlei/ v. B., 8 ib. 479. 
 and see Jie Turner, Wood v. («) Green v. G., 26 Ch. D. 16. 
 
 Turner. (1907) 2 Ch. 126; 76 {o) Brunton \. Electrical Corp., 
 
 L. J. Ch. 492. (1892) 1 Ch. 434; 61 L. J. Ch. 
 
 (0 BaUof V. Birchall. 2 H. &: 256. 
 M. 371. ' ip) Scholri) V. Prrk. (1893) 1 
 
 (/) We^tacott V. Bevan, (1891) Ch. 709; 62 L. J. Ch. 658. 
 1 Q. B. 774; 60 L. J. Q. B. 536; ((?) Rkld v. Thome, (1902) 2 
 
 and see Re Humphreys, (1898) 1 Ch. 344; 71 L. J. Ch. 624. 
 Q. B. 520. (>•) Briscoe v. B., (1892) 3 Ch. 
 
 (A) Ross V. Buxton, 42 Ch. D. 543; 61 L. J. Ch. 665. 
 190; 58L. J. Ch.442; The Paris. (s) Exp. Cleland, 2 Ch. 803; 
 
 (1896) P. 77; 65 L. J. P. 42; Hamer v. Giles, 11 Ch. D. 942.
 
 342 
 
 LIENS. 
 
 Securities 
 inconsistent 
 with the lien. 
 
 Change 
 
 of solicitors. 
 
 citor's lien for costs in the particular cause or matter in 
 which the set-off is sought (^). But this power is in the 
 discretion of the Court, and will not be exercised so as to 
 operate unjustly towards the solicitor's rights (u). There 
 is no right to set off costs incurred in different actions (x) 
 or in proceedings in different Courts {y) . 
 
 A solicitor who takes a security which is in any way 
 inconsistent with his lien is considered to have abandoned 
 his lien, unless, indeed, he gives express notice to liis 
 client that he intends to retain the lien {z) ; but for this 
 purpose a charging order under the Act is not deemed a 
 security so as to interfere with the lien which he enjoys 
 apart from the Act (a) . 
 
 In the case of a change of solicitors, the lien of the 
 acting solicitor has priority over that of the discharged 
 solicitor (6). 
 
 II. Equitable Liens. 
 
 Charges. 1 The most conspicuous and important among equit- 
 
 able liens are those arising from charges of legacies and 
 portions upon real estate. Such liens create a trust "which 
 equity will enforce against the person creating the lien, 
 and persons claiming as volunteers or with notice under 
 him. The effect of such charges is more fully considered 
 elsewhere (c) . 
 
 Other instances of liens which do not call for detailed 
 
 (0 Goodjellow V. Gray, (1899) 
 2 Q. B. 498; 68 L. J. Q. B. 1032. 
 
 (m) Edwards v. Rope, 14 Q. B. 
 D. 922; 54 L. J. Q. B. 379. 
 
 {x) Blakey v. Latham, 41 Ch. 
 D. 518. 
 
 Qy) Re Bassett, (1896) 1 Q. B. 
 219; 65 L. J. Q. B. 144; Hassell 
 V. Stanley, (1896) 1 Ch. 607; 65 
 L. J. Ch. 494; Russell v. R., 
 (1898) A. C. 307; 67 L. J. P. 69. 
 
 (z) Balsh V. Symes, T. & R. 
 92; Re Taylor, Stileman ^ Co., 
 
 (1891) 1 Ch. 590; 60 L. J. Ch. 
 525; Re Douglas, (1898) 1 Ch. 
 199; 65 L. J. Ch. 85; Re Morris, 
 (1908) 1 K. B. 473; 77 L. J. 
 K. B. 265. 
 
 (a) Be Bay v. Griffin, 10 Ch. 
 294, n. 
 
 (6) Rhodes v. Sugden, 34 Ch. 
 D. 155; 56 L. J. Ch. 127; Knight 
 V. Gardner, (1892) 2 Ch. 368: 61 
 L. J. Ch. 399. 
 
 (c) Pages 875 et seq., 593.
 
 EQUITABLE LIENS. 
 
 description are the lien of trustees for money properly 
 expended on the trust property (d) ; the lion of a bond fide 
 possessor in wrongful possession for improvements made 
 under the belief that he was absolute owner (e); and a lien 
 by way of salvage, on a policy of assurance, for premiums 
 paid to keep it on foot, as to which see cases cited 
 below (/); from which it appears that a stranger cannot 
 acquire the lien except by virtue of contract, or as trustee, 
 or mortgagee, or by subrogation to the trusts of a trustee. 
 
 2. Vendor's lien for unpaid purchase-money. 
 
 The lien of a vendor for unpaid purchase-money, and I^J^n of 
 that of a vendee for prematurely paid purchase-money, 
 are among the most important instances of equitable liens, 
 and therefore require detailed investigation. 
 
 In discussing the application of the well-known equit- 
 able principle kno"HTi as the vendor's lien, it is necessary 
 to distinguish between its operation as between the vendor 
 and purchaser, and as between the vendor and third per- 
 sons claiming through or under the purchaser. As, how- 
 ever, persons claiming under the purchaser as volunteers 
 are in the same position as himself, the most convenient 
 distribution of the subject is to include volunteers in the 
 first inquiry, and then to consider the extent of the 
 vendor's lien as against those whose title is derived from 
 the purchaser for valuable consideration. 
 
 (1.) As against a purchaser, his heirs, and voluntary 
 assignees. 
 
 The general principle as to the lien of the vendor of an General 
 estate is fully expressed in the judgment of Lord Eldon P"°*^*P®- 
 in Mackreth v. Si/mmo'ns (g) , which is to the following Mackrethy. 
 
 Symmonx. 
 
 {d) Darke v. Williamson, 25 Scottish Imp. Ins. Co., 34 Ch. D. 
 
 Beav. 622. 234; 56 L. J. Ch. 707; Re Wiu- 
 
 (e) Ncesom v. Clarlcson, 4 Ha. chelsca's Polio/ Ti\. 39 Ch. 1). 
 
 97. 168; 58 L. J. Ch. 20. 
 
 (/) Leslie \. French, 2^,0^.1). (c/) 15 Ves. 329; 2 W. & T. 
 
 552; 52 L. J. Ch. 762; Falcke v. L. C. 926, ed. 7. 
 
 34Si
 
 344 
 
 LIENS. 
 
 Applies to 
 copyholds and 
 leaseholds, 
 
 when 
 
 considei'at.ion 
 is an annuity. 
 
 Lien doiibtful 
 "where there is 
 other security. 
 
 Tardiff'c v. 
 Scrughan. 
 
 Ijien extends 
 to moneys 
 advanced. 
 
 o'ffect: Where a vendor, in compliance with a contract for 
 the sale of an estate, executes a conveyance thereof, but 
 the purchase-money is wholly or partially unpaid, then, 
 notwithstanding that on the face of the conveyance it is 
 expressed to be paid, or that a receipt for it is indorsed 
 thereon, the vendor has a lien on the estate for the money 
 remaining due to him. 
 
 The same case further shows that the mere circumstance 
 of taking an additional security is not inconsistent with 
 the continuance of the lien. The circumstances which are 
 considered to amount to a waiver or abandonment of the 
 lien are hereafter separately discussed. 
 
 The lien applies to copyholds, leaseholds, and other 
 personal property as well as to freeholds {h), and attaches 
 when possession of the estate has been delivered to the pur- 
 chaser, though there has been no conveyance to him {i) . 
 
 Where the consideration for the sale of an estate is in 
 the form of an annuity, the lien attaches to secure the 
 annuity, at least if no other security for that purpose is 
 taken. Where the annuity has been secured by a bond or 
 covenant, the cases have been somewhat conflicting. In 
 Maclcreth v. Si/wmions, Lord Eldon held that there was no 
 lien for annuities; but he did so rather in consideration 
 of the special circumstances of the case than as a general 
 principle of law. In Tardiffe v. Scrughan (Jc) the lien 
 was allowed, and this case has never been overruled, 
 though in somewhat similar circumstances some judges 
 have been slow to follow it (I). See also in favour of 
 the lien, Sugden, V. & P. 676, ed. 14. 
 
 If a vendor agrees to lend money to the purchaser for 
 improving the estate, his lien extends to the advances so 
 made, as well as to the purchase (7n). 
 
 (A) Winter v. Jiisoi?, 3 Russ. 
 492; Matthew v. Bowler, 6 Ha. 
 110; Stucley v. Kekewich, (1906) 
 1 Ch. 67; 75 L. J. Ch. 58; Baviex 
 V. Thomas, (1900) 2 Ch. 462; 69 
 L. J. Ch. 643. 
 
 (?;) Smith V. Ilihhard. 2 Dick. 
 
 730. 
 
 (A) 1 Bro. C 
 
 (0 Clarke v 
 502; Buckhnul 
 Sim. 412. 
 
 (w) Exp. Linden, 1 M 
 De G. 435. 
 
 C. 423. 
 
 Boyle, 3 Sim. 
 V. Pochnell, 13 
 
 D. fc
 
 vendor's lien. ^46 
 
 SjDecial ronsidi'iatioii is required of those cases in which 
 a vendor assorts his lien with respect to a sale to a railway 
 or other company. 
 
 As a general rule, the lien attaches to lands purchased Lien as 
 by such companies, whether by agreement or in the oxer- rnilway and 
 
 cisc of compulsory powers (w); and it includes unpaid "^Her 
 
 . companies 
 
 compensation as well as purchase-money, unless such com- generally. 
 
 peusatiou is the subject of a separate agreement . Although 
 a railway may have been made over the land, the lien may 
 be enforced by sale (o); but not by an injunction restrain- 
 ing the use of the railway {p) . Where, however, the Where the 
 
 . , . „ , , . , , consideration 
 
 consideration lor the pin-chase is a rent-charge on the is a 
 lands, there is no lien for securing its payment (g), but rent-charge, 
 the owner of the rent-charge is entitled to a receiver of 
 the tolls and net earnings of the undertaking, and may 
 distrain on the lands (r) . 
 
 A vendor's lie n was so far regarded as an interest in land Lieu within 
 as to be wdthin the Mortmain Act(,s); and a bequest of ^^t, 
 money due thereupon was therefore void (t); and it seems aud Statute of 
 that a mere parol assignment of it would be ineffectual, as ''*" ^ ' 
 within the Statute of Frauds, unless accompanied by a 
 deposit of title deeds (z<). The lien, however, is not such but not 
 an interest in land as to come within s. 23 of the Wills laud within 
 Act (x) . So, if, after devising an estate, the devisor con- ^^'^^* ''^^*- 
 tracts to sell it, the purchase-money will belong to the 
 personal representatives, and not to the devisee (;?/). 
 
 A vendor's lien not being an express trust, the right to Lien when 
 enforce it in the case of land may be barred by the Statute statute of 
 
 Limitations. 
 
 (i/) V'alker v. Ware, 4'-c. Co., (.v) 9 Geo. II. c. 36; see now 
 
 1 Eq. 195. 51 & 52 Vict. c. 42. 
 
 (o) Cosens v. Bognor, ^c. Co., {t) JIarriso» v. H., 1 R. & M. 
 
 ] Ch. 594; 3Iiinns v. I. of Wight 71. 
 R. Co., 5 Ch. 414. («<) Briiden v. Frost, 3 My. & 
 
 (ji?) Pell V. Northampton, ^-c. Cr. 670; Meu.v v. Smith, 11 Sim. 
 
 It. Co., 2 Ch. 100; but see All- 421. 
 <jood V. Mern/hent, cj-c. R. Co., (.r) 1 Vict. c. 26. 
 
 55 L. J. Ch. 743. (y) Farrar v. E. of Winterton, 
 
 (q) E. of Jersdi v. Briton, S;c. 5 Eeav. 1; Re Clowes, (1893) 1 
 
 Dock Co., 7 Eq. 409. Ch. 214. But see Brant v. Vatise, 
 
 (r) Eyton v. Denbigh, c\-c. Co., 1 Y. & C. Ch. 580. 
 6 Eq. 14.
 
 346 
 
 LIENS. 
 
 Not within 
 17 & 18 Vict. 
 c. 113, 
 
 but included 
 in amending 
 
 Acts. 
 
 of Limitations at the end of twelve years (z), unless the 
 case is taken out of the operation of the statute by a suffi- 
 cient acknowledgment («) . But there is no Statute of 
 Limitations similarly applicable to personalty, and in this 
 case the lien protects not only the principal but all interest 
 from the date of the sale (6) . 
 
 A Vendor's lien was held not to be a mortgage within 
 Locke King's Act (c), so that the personal estate of a 
 deceased purchaser was primarily liable for the payment 
 of the purchase-money (d); but by 30 & 31 Vict. c. 69, 
 the word " mortgage " was declared to include any lien for 
 unpaid purchase-money upon any lands purchased by a 
 testator; and by 40 & 41 Vict. c. 34, the same construc- 
 tion was applied in case the purchaser died intestate. 
 
 (2 . ) As against purchasers for value . 
 
 The equitable lien for unpaid purchase-money binds the 
 estate, as well in the hands of persons claiming for valuable 
 consideration under the purchaser with notice, as in the 
 hands of the purchaser himself, his heirs, and voluntary 
 assignees (e) ; but the lien will not prevail against a bond 
 fide purchaser who buys without notice that the purchase- 
 money remains unpaid, and acquires the legal estate (/) . 
 If, however, the legal estate is outstanding, then, as the 
 second purchaser has only an equitable interest subsequent 
 in time to the equitable lien, the equitable lien will have 
 precedence, conformably to the maxim " Qui prior est 
 tempore potior est jure'' (g). But this again is subject 
 to modification, since priority in time will not avail unless 
 Lien may be the equities a.re equal . If, therefore, the vendor has been 
 
 Whom the 
 lien binds. 
 
 (z) 3 & 4 Will. IV. c. 27; 37 & 
 38 Vict. c. 57. 
 
 («) Toft V. Stephenson, 1 De 
 G. M. & G. 28; 5 ib. 735. 
 
 (6) Stucley v. KeJcewich, (1906) 
 1 Ch.67; 75'L. J. Ch. 58; follow- 
 ing Rose V. Watson, 10 H. L. C. 
 672; Hancock v. Berrey, 57 L. J. 
 Ch. 793; Mellersh v. Broivn, 45 
 Ch. D. 225; 60 L. J. Ch. 43. 
 
 (c) 17 & 18 Vict. c. 113. See 
 inf. p. 603. 
 
 {d) Hood V. H., 3 Jur. N. S. 
 684. 
 
 (e) Walker v. Preswick, 2 Ves. 
 622; Winter v. Anson, 3 Russ. 
 488; 1 S. & S. 434. 
 
 (/) Cator V. E. of Pembroke. 1 
 Bro. C. C. 302. 
 
 {g) Frere v. Moore, 8 Pri. 475.
 
 ventiok'm lien. 341 
 
 guilty of negligence, he may lose his lien. Thus, in Rice lost by 
 V. Rice (h), certain leaseholds were assigned to a purchaser j, „. ' 
 by a deed which recited the payment of the whole of the 
 purchase-money, and had the usual receipt indorsed on it; 
 the title deeds were delivered up to the purchaser, but the 
 whole of the purchase-money was, in fact, not paid. The 
 purchaser forthwith deposited the assignment and title 
 deeds to secure an advance. It was held that the equity 
 arising from the deposit ought to prevail against the lion, 
 on the ground that the vendor had, by his negligence, 
 placed it in the power of the purchaser to deal with the 
 estate as absolute owner at law and in equity. The prin- 
 ciple of this case is now embodied in s. 55 of the Convey- C. A. I88I. 
 ancing Act, 1881 (i), which enacts that " a receipt for ^^^^g^* 
 consideration money or other consideration in the body 
 of a deed or indorsed thereon shall, in favour of a sub- 
 sequent purchaser (or mortgagee) not having notice that 
 the money or other consideration thereby acknowledged 
 to be received was not in fact paid or given, wholly or 
 in part, be sufficient evidence of the payment or giving 
 of the whole amount thereof." 
 
 The results are: — 
 
 i. That the lien prevails against a second purchaser 
 with notice, even though he acquires the legal estate; and 
 as against a purchaser without notice, if the legal estate 
 is outstanding, and the vendor has not been guilt}' of 
 negligence. 
 
 ii. That the lien does not prevail against a bond fide 
 purchaser who acquires the legal estate without notice; 
 nor against a purchaser of an equitable interest, where the 
 first vendor has been guilty of negligence. Or perhaps it 
 may be said still more generally that the lien will not 
 prevail against a subsequent equitable mortgagee who 
 
 (A) 2 Drew. 73. (0 44 & 45 Vict. c. 41.
 
 348 
 
 LIENS. 
 
 What 
 amounts to 
 notice. 
 
 Omission 
 
 to inquire f or 
 
 title deeds. 
 
 Etiect of 
 Re^a:istry 
 Acts. 
 
 strengthens his equity by acquiring possession of the title 
 deeds (/). 
 
 The force of the lien being thus in a great measure 
 dependent upon the question of notice, we may here add 
 some illustrations, especially touching this class of cases, 
 of what does and does not constitute notice, though this 
 subject is more fully considered elsewhere (&). 
 
 Where a subsequent purchaser or mortgagee omits to 
 make inquiries for the title deeds of the property in ques- 
 tion, or accepts an insufhcient excuse for their absence, the 
 Court will impute to him the knowledge which such in- 
 quiry would have imparted, and will enforce against him 
 any prior claim, the existence of which such inquiry Avould 
 have discovered (l), although he may acquire the legal 
 estate (m). Not so, however, if he has made inquiry, and 
 a reasonable excuse has been given for the non-appearance 
 of the deeds (n). 
 
 Under the Middlesex Registry Act, and the former 
 Yorkshire Registry Act, registration of a vendor's lien 
 was not required, and gave no priority (o); but by the 
 Yorkshire Registry Acts^ of 1884 and 1885 (p), no lien 
 has any effect or priority, as to lands in Yorkshire, as 
 against any purchase or mortgage deed duly registered, 
 and, in the absence of actual fraud, which means fraud 
 importing grave moral blame (g), priority of registration 
 determines priority of title. These Acts only apply to 
 liens arising on or after the 1st of January, 1885; and 
 they do not apply to copyholds. 
 
 (/) Clarke v. Palmer, 21 Ch. 
 D. 124; 51 L. J. Ch. 634; Uoi/d\« 
 Banking Go. v. Jones, 29 Ch. D. 
 221; Walker v. Linom, (1907) 2 
 Ch. 104; 76 L. J. Ch. 500. 
 
 (A;) See p. 353 et seq. 
 
 (I) Nat. ProD. Bank v. Jack- 
 son, 33 Ch. D. 1. 
 
 {m) Worthington v. Morgan, 
 16 Sim, 547; Peto v. Hammond, 
 30 Beav. 495; Oliver v. Hinton, 
 (1899) 2 Ch. 264; 68 L. J. Ch. 
 
 583; Berwick v. Price, (1905) 1 
 Ch. 632; 74 L. J. Ch. 249. 
 
 (w) Allen V. Knight, 5 Ha. 272; 
 Hewitt V. Loosemore, 9 Ha. 449. 
 
 (o) 7 Anne, c. 20; Kettlewell 
 V. Watson, 21 Ch. D. 685; 26 ib. 
 501; 53 L. J. Ch. 717. 
 
 {p) 47 & 48 Vict. c. 54; 48 & 
 49 Vict. CO. 4, 26. 
 
 iq) Battison v. Hobson, (1896) 
 2 Ch. 403; 65 L. J. Ch. 695.
 
 vendor's lien. 349 
 
 A recital showing that tho title is deduced from the Recitals, 
 first vendor, but not showing that tlic purehasc-nionoy has 
 not been paid, is not sudicient to affect a purchaser with 
 notice (r). 
 
 Tho trustee in bankruptcy of a purchaser will be affected Trustee iu 
 by tho lien of a vendor, though he may have had no notice, bound, 
 since he takes subject to all equities attaching to the 
 bankrupt (s). 
 
 (3.) What amoimts to waiver or abandonment of the 
 li&n. 
 
 We have seen that the mere fact of the vendor taking 1-ien not 
 an additional security for his money is not per se a waiver taking a 
 of his lien. Lien depends on an implied contract, and the security ipso 
 question is, whether from the circumstances of the case the 
 Court will infer that the lien was intended to be reserved, 
 or that the intention was to give credit exclusively to the 
 person from whom the security was taken. 
 
 The general rule is that although the mere taking of a It is a 
 bond, bill, promissory note, or covenant for the purchase- ^enticKi.^ 
 money will not destroy the lien, yet where it appears that 
 the bond, note, or covenant was substituted for the con- 
 sideration money, and was in fact the thing bargained for, 
 the lien ceases to exist. In other words, if the considera- 
 tion for Avhich the estate is sold is tho bond, note, or 
 covenant, then on the giving of this security, the vendor 
 gets all that he bargained for, the transaction is complete, 
 and ho cannot thereafter assert a lien. It is evident that 
 as a rule the intention of the vendor is not by taking one 
 security to lose another. It requires, therefore, clear 
 evidence to show that a lien was not intended (t). An 
 express agreement is, however, not required, and a few 
 
 (r) Cator v. H. of Peinhioke. {t) 15 Ves. 341; Frail v. Ellis. 
 
 1 Bro. C. C. 302. 16 Beav. 350; Re Taylor, Stile- 
 
 (*■) Exp. Hanson, 12 Vc3. 349. man S; Co., (1891) 1 Ch. 590; 60 
 
 L. J. Ch. 525.
 
 360 
 
 LIENS. 
 
 What 
 amounts to 
 sufficient 
 indication of 
 intention to 
 waive 
 the lien. 
 Deferred 
 payment. 
 
 Mortgage of 
 other lands. 
 
 Suffering 
 one trustee 
 to retain 
 purchase - 
 money. 
 
 Slight 
 
 evidence suffi- 
 cient where 
 
 illustrations will serve to indicate what acts short of that 
 will be considered sufficient for the purpose. 
 
 Where there was a stipulation that payment of the pur- 
 chase-money should be deferred until a certain time after 
 a re-sale of the property, the vendor was considered to have 
 abandoned his lien (w). The lien has, however, been given 
 effect where the purchase-money was payable by instal-< 
 monts (x). 
 
 A mortgage of other lands for the whole or part of the 
 purchase-money (y), or a mortgage of the purchased estate 
 for part of the purchase-money, permitting the rest to 
 remain on personal security, has been thought sufficient to 
 discharge the lien — in the first instance wholly, in the 
 second to the extent of the money remaining on the 
 personal security (z). The former of these cases was, 
 however, not considered conclusive by Lord Eldon in 
 Mackreth v. Symmons (a), and it would seemingly be 
 necessary to look further at the whole circumstances of 
 the case (fe). 
 
 If a vendor, knowing the purchase-money to be trust 
 money, suffers one of the trustees to retain part of it 
 without the knowledge of the co-trustees or the cestui que 
 trust, he has no lien for the part so retained (c). Where, 
 again, the vendor, without receiving the purchase-money, 
 executes a conveyance for the purpose of enabling the 
 purchaser to execute a mortgage, he will lose his lien as 
 against the mortgagee (d). These cases are, however, 
 rather illustrative of the loss of the lien by negligence 
 than of its intentional waiver. 
 
 We have already seen that where the consideration for 
 the purchase is an annuity, slighter evidence will suffice to 
 show an intention to abandon the lien than in other cases; 
 
 (m) Exp. Parl-es, 1 De G. & J. 
 228 
 
 (x) Nives V. N., 15 Ch. D. 649. 
 
 (y) Nairne v. Prowse, 6 Ves. 
 752. 
 
 (2) Bond V. Kent, 2 Vern. 281 ; 
 Capper v. Spottiswoode, Taml. 21. 
 
 (a) 15 Ves. 329. 
 
 (6) Saunders v. Leslie, 2 Ba. & 
 Be. 509. 
 
 (c) White V. Wakefield, 7 Sim. 
 401. 
 
 (jl) Smith V. Evans, 28 Beav. 
 59.
 
 vendee's lien. 351 
 
 if it may not even be said that in these circumstances the consideration 
 
 ■^ ..... . is an annuity. 
 
 presumption is against the lien. 
 
 A vendor, herein differing from a mortgagee, cannot Vendor may 
 proceed to enforce his lien and his collateral securities at °"^ Uer' and 
 the same time (e); and he will be postponed to a mortgage coUateml 
 
 spfMiritif s 
 
 of the estate made to secure a part of the purchase-money together, 
 advanced by such mortgagee, if he is an assenting party 
 to the mortgage (/). 
 
 (4.) Marshallmg for lien. 
 
 The general principles of marshalling are expounded Marshalling, 
 elsewhere (p. 608 et seq.), and it is therefore only neces- 
 sary here to refer to its application in the particular case 
 of a lien. 
 
 Following the rule that if one person has two funds to Lien thrown 
 which he may resort, he shall not disappoint another chased estate, 
 person who can only resort to one of the funds, the Court 
 will, in the event of the death of the vendee, marshal the 
 assets in favom' of third persons, so as in case of necessity 
 to compel the vendor to resort to the pm^chased estate for 
 his money (g). At one time it was thought that to do 
 this would be to invade the Statute of Frauds, but it is 
 now well established that, as well in favoiu' of legatees as 
 of creditors, the principle of marshalling will be applied. 
 Legatees, however, can, of course, in this, as in other cases, 
 ■demand the benefit of marshalling only against those 
 whose claim is weaker than thoir own — e.g., against the Against heir. 
 heir taking by descent — not against devisees, who are as 
 much an object of bounty as themselves (h). 
 
 3. Vendees lien for prematurely paid purchase- 
 money. 
 
 Quite analogous to the lien of a vendor on the estate for Vendee's lien 
 unpaid purchase-money is the lien of the purchaser in case analog 
 
 >:ous. 
 
 (e) Nairne v. Prowse, sup.; {g) Trimmer v. Bayne, 9 Ves. 
 
 Barker v. Smart, 3 Beav. 64. 209; Sproule v. Prior, 8 Sim. 189. 
 
 (/) Cood V. Pollard, 9 Pri. Ui; (h) Wythe v. Henniker, 2 My. 
 
 10 ib. 109. ct K. 635.
 
 352 LIENS. 
 
 he has paid the purchase-money or any part of it pre- 
 maturely, as, for instance, by way of deposit. If the con- 
 tract is after such payment rescinded, or cannot be 
 enforced owing to want of title in the vendor, or is for any 
 proper reason disclaimed by the purchaser, he has a lien 
 on the estate in the hands of the vendor for the money 
 so paid, with interest thereon, and for his costs (i). 
 
 The principles applicable to a vendor's lien are equally 
 so here. Thus the taking of another security for the 
 money is not inconsistent with the lien (k) ; it obtains not 
 only against the vendor, but against a subsequent mort- 
 gagee who has notice of the payments having been 
 made (l); and there is no lien where the contract goes 
 off through the purchaser's own default (m). 
 
 Sale of land If the first purchaser of an estate sells the estate while 
 
 subject to the i-,, i-p -i -i i 
 
 lien, subject to a hen lor prematurely paid purcnase-money, 
 
 and the second purchaser also pays his purchase-money 
 prematurely, and afterwards the first contract goes off,, 
 the second purchaser then has a lien upon the first pur- 
 chaser's interest — that is, a lien upon the sum for which 
 the first purchaser has a lien (n) . 
 
 If the vendor is a mortgagee selling under a power oi' 
 sale, the purchaser's lien attaches only upon the interest 
 of the mortgagee, not to the prejudice of the mort- 
 gagor (o); but it may affect the interest of persons foi- 
 whom the mortgagee is a trustee (o). 
 
 (») Wythes v. Lee, 3 Drew. ^ (m) ^'>"> v. Grant, 5 De G. ^ 
 
 396; Torrance v. Bolton, 14 Eq. Sm. 451. 
 124- 8 Ch. 118. ('*) -^beraman Iron Works v. 
 
 (h Wv'thes V. Lee, 3 Drew. Wickens, 4 Ch. 101. See now 
 39^ ^ -^ Fleming v. Loe, (1901) 2 Ch, 
 
 (0 Rose V. Watson, 10 H. L. 594; 70 L. J. Ch. 805. 
 g'^2. (o) Wythes v. Lee, sup.
 
 NOTICE. 
 
 353 
 
 Section V. — Equitable Principles Particularly 
 Affecting Mortgages and Sales. 
 
 I. Notice. 
 
 1. Definition. 
 
 (1.) Actual Notice. 
 
 (2.) Constructive Notice. 
 
 2. Effects of Notice. 
 
 3. 'Matters analogous to Notice. 
 
 II. Defence of Purchase for Value without Notice. 
 
 1. Where Defendant has Legal Estate. 
 
 2. Where Legal Estate is outstanding. 
 
 3. Where Plaintiff has Legal Estate. 
 
 4. 'Active Relief to bona fid© Purchaser. 
 
 III. Liability of Purchasers for Application of Pur- 
 
 chase-money. 
 
 1. As to Personalty. 
 
 2. As to Realty. 
 
 3. Statutory Modifications. 
 
 IV. Assignment of Possibilities and Choses in Action. 
 
 1. Contrast of Law and Equity. 
 
 2. Notice. 
 
 3. Assignee subject to Equities. 
 
 4. Judicature Act, s. 25, sub-s. 6. 
 
 5. Unlawful Assignments. 
 
 I. Notice. 
 1. Definition. 
 
 By the term " Notice " is meant the transmission to the 
 party under consideration of certain information (notitia) 
 s. 23
 
 354 
 
 MORTGAGES AND SALES. 
 
 respecting facts, directly or indirectly affecting his rights 
 or liabilities, as viewed by a Court of equity, in relation 
 to certain property. 
 
 Notice 
 actual or 
 constructive. 
 Actual notice. 
 
 Constructive 
 notice. 
 
 Notice of a 
 fact, notice of 
 its causes. 
 
 Notice is either actual or constructive. 
 
 (1.) Actual notice, or, in other words, express notice, is 
 a term sufficiently clear to need no explanation. It may 
 be either written or oral (except in cases in which a written 
 notice is stipulated for). Vague reports from persons not 
 interested in the property do not, however, amount to 
 notice; nor do mere general assertions that some other 
 persons claim a title («). But knowledge of the facts 
 which is sufficient to operate on the mind of a man of 
 business, may amount to notice although it may be 
 acquired accidentally and not by means of a formal 
 communication (&). 
 
 (2.) Constructive notice is nothing other than evidence 
 of notice so strong that the Court will act upon it in the 
 absence of contradiction (c). 
 
 Constructive notice, like constructive fraud, indicates 
 that the presumption of certain facts is so strong that it 
 cannot bo safely ignored, although the actual fact (in this 
 case the transmission of the information) may be unsup- 
 ported by positive evidence. A clear conception as to this 
 can only be reached by means of illustration, and this will 
 be facilitated by the following classification: 
 
 i. Notice of a fact is notice of its causes ; or, in other 
 words, where there has been actual notice of a fact which 
 would have the effect of putting a reasonable person upon 
 further inquiry, the result will be constructive notice of 
 other facts which would be elicited by such inquiry. The 
 Conveyancing Act, 1882 (d), expresses the principle thus: 
 " a purchaser shall not be prejudicially affected by notice 
 
 («) Jolland V. Stainbridge, 3 
 Ves. 478; Simpson v. liaison's 
 Bk.. (1895) A. C. 270; 64 L. J. 
 P. C. 51. 
 
 (6) Lloyd V. Banks, 3 Ch. 488; 
 
 Arden v. A., 29 Ch. D. 702; 54 
 L. J. Ch. 655. 
 
 (c) Plumb V. Fluitt, 2 Anst. 
 438. 
 
 id) 45 & 46 Vict. c. 39, s. 3.
 
 NOTICE. 355 
 
 "'* of any interest, fact, or thing, unless it is within his 
 " own knowledge or would have come to his knowledge if 
 ■" such inquiries and inspections had been made as ought 
 ^'reasonably to have been made." 
 
 (a) The simplest illustration of this is where a pur- Notice that 
 chaser is informed that the legal estate is in a third person. o^gta^ndinV^ 
 He is then bound to inquire the reason; and if he does 
 
 not, he will, nevertheless, be presumed to know the cir- 
 cumstances which have occasioned it, or the terms of a 
 trust attached to the legal estate (e). Similarly, actual or that the 
 
 1 , . n ■, , • , , 1 P , title deeds are 
 
 notice that the title deeds are in the hands oi another man held by a 
 
 will in general bo constructive notice of any charge which person, 
 
 lie may have thereon (/) . If, however, in such a case a 
 l>ond fide inquiry is made for the deeds, and the purchaser 
 is then deceived and put off by a plausible and reasonable 
 excuse for their absence, constructive notice will not be 
 imputed to him {g) . The Court will clearly impute fraud 
 «or gross and wilful negligence in a case where after such 
 notice the purchaser omits all inquiries {h) . Where the 
 title deeds are in the possession of a solicitor, this does not 
 amount to a constructive notice of the solicitor's lien 
 thereupon, since such possession is ordinary in the course 
 of business, and as a rule the possession is the cause of 
 the lien, rather than the lien the cause of the pos- 
 session (J,) . 
 
 (b) Any marked peculiarity in a deed — for instance, the Peculiarities 
 absence or peculiar jDosition of a receipt clause — is con- ™ deeds. 
 
 (e) Anon., Freem. 137. Nat. Prov. Bk., (1913) 2 Ch. 18; 
 
 (/) Birch V. Ellames, 2 Anst. 82 L. J. Ch. 481. 
 427; Maxfield v. Burton, 17 Eq. (A) Worthington v. Morgan, 
 
 15; English and Scottish Merc. 16 Sim. 547. 
 
 Co. V. Brunton, (1892) 2 Q. B. {>) Nat. Prov. Bank \. Jackson, 
 
 700; 62 L. J. Q. B. 136; Walker 33 Ch. D. 1; and see Northern 
 
 V. Linom, (1907) 2 Ch. 104; 76 Counties Ins. Co. v. Whipp, 26 
 
 L. J. Ch. 500; Me JFeniger's Ch. D. 482; 53 L. J. Ch. 629; 
 
 PoZ/cy, (1910) 2 Ch. 291; 79 L.J. Farrand v. Yorkshire Bank, 40 
 
 Ch. 546. Ch. D. 182; 58 L. J. Ch. 238; 
 
 (^) Hewitt V. Loosemore, 9 Ha. Carritt v. R. ^- P. Advance Co., 
 
 U9; Exp. IIardi/,2'D. &.C.SQS; 42 ih. 263; 58 L. J. Ch. 688; 
 
 Matmers v. Meiv, 29 Ch. D. 725; Ta>/lor v. L. ^- Co>/. Bank, (1901) 
 
 .54 L. J. Ch. 909; Grierson v. 2 Ch. 231; 70 L. J. Ch. 477. 
 
 23 (2)
 
 396 MORTGAGES AND SALES. 
 
 sidered sufficient to put a person upon inquiry; and if it 
 proves to be connected with the circumstances for which" 
 the deed might be set aside, it will be held constructive 
 notice of such circumstances (/c) . It will not, however, be 
 constructive notice of other irregularities in the trans- 
 action (?). In connexion with this, it must be remem- 
 bered that now it is sufficient that the receipt clause be 
 either contained in the deed or indorsed thereon. In 
 either case it is sufficient evidence of the payment in 
 favour of a subsequent purchaser who has not notice that 
 the consideration was not in fact paid or given (m) . 
 b tMrd^°" (c) As a general rule, if a person purchases an estate 
 
 person. which he knows to be in the occupation of another than 
 
 the vendor, the fact of such occupation is sufficient to put 
 him upon inquiry. He will therefore be presumed to be 
 aware of and will be bound by all equities which such 
 occupier may have in the land. The purchaser has, in 
 short, actual notice of a fact affecting the property and 
 eonsitructive notice of the circumstances which give rise to 
 it (•w) . If the tenancy is under a lease, he will be held to 
 have notice of the tenant's rights (o), but not of the lessor's 
 title and rights (p) . If the tenant in possession has 
 entered into a contract for the purchase of the estate, a 
 subsequent purchaser will be held to have notice of the 
 contract (g). H the vendor is subject to restrictive 
 covenants affecting the user of the land the purchaser is 
 deemed to have notice of the same (r) . The Convey- 
 ancing Act, 1911 (s), provides that where land having a 
 
 (k) Kennedy v. Green, 3 My. (o) Taylor v. Stibbert, 2 Ves. 
 
 & K. 699. jr. 437, 440. 
 
 (I) Greenslade v. Bane, 20 (jp) Hunt v. Luch, (1901) 1 
 
 Beav, 284. Ch. 45; 70 L. J. Ch. 30; affd. 
 
 (m) 44 & 45 Vict. c. 41, ss. 54, (1902) 1 Ch. 428; 71 L. J. Ch. 
 
 55. 239. 
 
 («) Trinidad Asphalte Co. v. (^q) Daniels v. Davison, 16 Ves. 
 
 Coryat, (1896) A. C. 587; 65 L. J. 249; 17 Ves. 433. 
 
 P. C. 100; Davis v. Hutchings, (r) He Nisbct and Potts' Con- 
 
 (1907) 1 Ch. 356; 76 L. J. Ch. tract, (1906) 1 Ch. 386; 75 L. J. 
 
 272. Ch. 238. 
 
 (s) 1 & 2 Geo. V. c. 37, s. 11.
 
 NOTICE. 367 
 
 common title with other land is disposed of to a pur- 
 chaser (other than a lessee or mortgagee) who does not , 
 hold or obtain possession of the documents forming the . 
 common title, such purchaser may require that a memo- 
 randum giving notice of any provision restrictive of user, 
 or giving rights over any other land comprised in the 
 common title shall be either indorsed on or permanently 
 annexed to some document selected by the purchaser, but 
 retained in the possession or power of the person who 
 makes the disposition, and being or forming part of the 
 common title. But the title of any person omitting to 
 require such indorsement or memorandum shall not be 
 prejudiced or affected b}^ the omission. This section does 
 not apply to dispositions of land registered under the Jjand 
 Transfer Acts, 1875 and 1897 (i). If two persons ^re 
 tog'ether carrying on business on the propertj^, their posses- 
 sion is constructive notice of the title of the partner- 
 ship (it) . The same notice is not, however, implied as 
 between the vendor and purchaser while the matter is 
 still in contract; that is to say, though the subsequent 
 purchaser, if he completes his contract, is bound by the 
 equities of the previous purchaser, he cannot be compelled 
 by the vendor to complete a contract which he had entered 
 into in ignorance of those equities, on the groun^d that 
 the possession was constructive notice thereof (x). It is 
 plain that an innocent first incumbrancer does not stand 
 on the same footing as a vendor, who is under at least a 
 moral obligation to make full disclosure of any burdens 
 on the property of which he is negotiating a isale (y) . 
 
 On the same principle, actual notice that an occupier Actual notice 
 liiolds as a tenant of a particular person is constructive 
 notice of the title of the latter {z) ; and actual notice that 
 
 (<) 38 & 39 Vict. c. 87; 60 & (x) Caballero v. Henty, 9 Ch. 
 
 61 Vict. c. 65. 447; Potter v. Sanders, 6 Ha. 1. 
 
 («) Cavander v. Bulteel, 9 Ch. (y) Re Holmes, 29 Ch. D. 786. 
 
 79. {z) Baileij v. Richardson, 9 Ha. 
 
 734.
 
 858 
 
 MORTGAGES AND SALES. 
 
 Viwible 
 
 appearance of 
 property. 
 
 the tenants pay their rents to a particular person is con- 
 structive notice of the terms of their tenancy («) . 
 
 (d) The visible appearance ;of the property in question 
 may be such as to put a j^urchaser uj)on inquiry, thus 
 amounting to constructive notice of certain rights respect- 
 ing it. Thus the fact that there were fourteen chimney- 
 pots upon a house in which there were only twelve flues 
 was held to amount to constructive notice of an easement 
 for the passage of the smoke of an adjoining owner (&). 
 The existence of an archway was considered notice of a. 
 right of way under it (c) ; and the existence of a sea-wall, , 
 notice of an obligation for its maintenance and repair {d) , 
 The existence ,of windows is not, however, constructive 
 notice of an agreement giving a right to the access of 
 light to them, since windows are frequently made where 
 they are liable to be obstructed, the builder being content 
 to take his chance by acquiring a right by prescription (e). 
 
 Notice of a 
 deed is notice 
 of its 
 contents. 
 
 ii. Nptice of a d&ed is notice of its cotitents. 
 
 It is immaterial whether from the description of the 
 parties, or from the recitals or from any other part of the 
 deed, the purchaser would be enabled to discover an 
 interest prior to his own. He must be presumed to be 
 acquainted with the entire contents, and therefore with 
 other deeds to which it necessarily refers (/) . Thus a 
 conveyance by persons interested as devisees is notice of 
 the will by which they claim (g) ; notice of a lease is notice 
 ;of the covenants therein {h) ; and this, notwithstanding, 
 that by the Vendor and Purchaser Act, 1874, a lessee is 
 not entitled to look into his lessor's title without an 
 
 (a) Knight v. Bowyer, 2 De 
 G. & J. 421 ; Hunt v. Luck, sup. 
 
 (b) Herveij v. Smith, 22 Beav. 
 299. 
 
 (o) Davies v. Sear, 7 Eq. 427. 
 
 (d) Morland v. Cook, 6 Eq. 252. 
 
 (e) Allen v. Seckhani, 11 Ch. 
 D. 790. 
 
 (/) Bisco V. E. of Banbury, 1 
 
 Ch. Ca. 287; Coppin v. Ferny- 
 hough, 2 Bro. C. C. 291; Davie» 
 V. Thomas, 2 Y. & C. Ex. 234; 
 Re Coxe and Neve's Contract^ 
 (1891) 2 Ch. 109. 
 
 (gr) Burgoyne v. Hatton, Barn. 
 Ch. Rep. 237. 
 
 (h) Taylor v. Stibbert, 2 Ves. 
 jr. 437.
 
 NOTICE. 359 
 
 express stipulation for that pui'posc. If ho chooses to 
 remain in an ignorance which ho might liavo avoided he 
 must take the consequences (i) . An agreement for a 
 purchase of a lease does not, however, so affect the 
 purchaser with constructive notice of unusual and onerous 
 covenants contained therein as to render him liable to 
 complete the purchase in spite thereof, unless before the 
 agreement he had a fair opportunity of ascertaining the 
 terms of the covenant (k) . 
 
 A person is not, moreover, presumed from one deed to 
 have notice of another referred to therein which does not 
 necessarily affect the property in question, and which he 
 is told does not affect it (I). Where in particulars of sale 
 there is a bare reference to a deed which the purchaser can 
 inspect, he will be bound by its contents; but if the 
 vendor purj)orts to state what the contents are, the pur- 
 chaser may reasonably rely upon the statement, and will 
 not be affected by any inaccuracies therein (w) . 
 
 iii. Actual notice to an ag^it is co7istructive notice to 
 
 his "principal. 
 
 It is well established that notice to the agent, solicitor, Notice to 
 
 or counsel of a purchaser is constructive notice to him- agent is notice 
 
 A to pnncipaL 
 
 self (n) ; and the same rule applies though the same person 
 
 may act as agent of both vendor and purchaser (o), or both 
 
 mortgagor and mortgagee (p) ; and notice to one of two or 
 
 more trustees is binding (g) . But new trustees are not 
 
 (i) Patman v. Harland, 17 Ch. 378; Bams v. Hutchuigs, (1907) 
 
 D. 353; 50 L. J. Ch. 642; Aldritt 1 Ch. 356; 76 L. J. Ch. 272. 
 V. Machonchy, (1906) Ir. R. 416. («) Sheldon v. Cox, 2 Ed. 228; 
 
 (k) Reeve v. Berridrje, 20 Q. B. Neiustead v. Series, 1 Atk. 265; 
 
 D. 523; 57 L. J. Q. B. 265; Jared v. Clements, (1903) 1 Ch. 
 
 Hyde v. Warden, 3 Ex. D. 72; 428; 72 L. J. Ch. 291. 
 
 (1896) 1 Ch. 637; 65 L. J. Oh. IQ2- Tweedale v T 23 Beav 
 
 A^\; Molineux w. Ilaivtreu.Ci^Q'i) on' d -7 *n •"' ,innr\ 1' 
 
 2 K. B. 487 ; 72 L. J. K: B. 873 . ^f ' ^f^Tf t "^'t nf'o^o ^ 
 
 See 1 & 2 Geo. V. c. 37, s. 11, ^^^- ^^2; 74 1.. J. Ch. 249. 
 
 sup p. 356. {p) -^^ Hampshire Land Co., 
 
 (l) Jones' V. Smith, 1 Ha. 43; (1896) 2 Ch. 743; 65 L. J. Ch. 
 
 Williams v. W., 17 Ch. D. 443. 860. 
 
 (m) Cox V. Coi-enton, 31 Beav. ((?) White v. Ellis, (1892) 1
 
 360 
 
 MORTGAGES AND SALES. 
 
 Limitation of 
 this principle. 
 C. A. 1882. 
 Notice must 
 be in the 
 same 
 transaction, 
 
 and of 
 
 material 
 
 facts. 
 
 Solicitor 
 employed 
 only 
 ministerially. 
 
 Solicitor 
 
 guilty 
 
 of fraudulent 
 
 concealment. 
 
 fixed with notice, through retiring trustees, of incum- 
 brances affecting the trust estate, the existence of which is 
 not disclosed to them (r) . An assignee of a reversionary 
 interest who gives notice to the existing trustees is under 
 no obligation to give any further notice, but has priority 
 over a subsequent assignee who has given notice to the 
 subsequently appointed trustees (s) . 
 
 As to this species of constructive notice, the Convey- 
 ancing Act, 1882, provides that notice is not to prejudice 
 a purchaser unless in the same transaction with respect to 
 which the question arises, it has come to the knowledge of 
 his counsel as such, or of his solicitor or other agent as 
 such, or would have come to the knowledge of his solicitor 
 or other agent as such if such inquiries and inspections 
 had been made as ought reasonably to have been made (i). 
 
 This limitation of the doctrine to cases in which the 
 notice was given in the same transaction relieves the pur- 
 chasers from a liability which was dangerous as the law 
 previously stood. It is to be observed further that the 
 notice, in order to be imputed to the principal, must be 
 notice of facts material to the question at issue, and such 
 as it is the duty of the agent to ooimmunicate (u). The 
 employment of a solicitor to do a merely ministerial act, 
 such as to procure the execution of a deed^ does not so 
 constitute him an agent as that notice to him ,will be 
 constructive notice to his employer (x). 
 
 If a solicitor acting for both parties is guilty of a 
 concealment from one of them with the cognisance of 
 the other, the former is not affected with constructive 
 
 Ch. 188; 61 L. J. Ch. 178; Ward 
 V. Buncombe, (1893) A. C. 369; 
 62 L. J. Ch. 881. 
 
 (r) Hallows v. Lloyd, 39 Ch. 
 D. 686; 58 L. J. Ch. 105; Re 
 Phillirys' Tr., (1903) 1 Ch. 183; 
 72 L. J. Ch. 94. 
 
 (s) Britten V. Partridf/e, (1899) 
 1 Ch. 163; 68 L. J. Ch. 117. 
 
 (0 45 & 46 Vict. c. 39, s. 3; 
 BaUey v. Barnes, (1894) 1 Ch. 
 
 25; 63 L. J. Ch. 73; Ward v. 
 Valletort, ^c. Co., (1903) 2 Ch. 
 654; 72 L. J. Ch. 674. 
 
 (w) Wyllie v. Pollen, 32 L. J. 
 Ch. N. S. 782; English, #c. Mer- 
 cantile Trust V. Brimton, (1892) 
 2 Q. B. 700. 
 
 (a;) Wyllie v. Pollen, sup. ; and 
 see lie Cousins, 31 Ch. D. 671; 
 55 L. J. Ch. 662.
 
 NOTICE. 
 
 notice {y), nor if lie is himself the author of a distinct 
 fraud in the same transaction is his knowledge thereof 
 imputed to the cm23loyer {z), since it is not to he presumed 
 that the solicitor would make a disclosure of such a 
 fact {a) . The mere fact of his having been guilty of 
 fraud at some other time in respect of the same property 
 will not prevent the imputation of his knowledge in accor- 
 dance with the ordinary rule (h). 
 
 2. Effects of Notice. 
 
 (1.) A purchaser for value without notice is, as we have 
 seen, in many respects favoured in equity. It is well 
 established that a person who purchases an estate after 
 notice of a prior equitable right makes himself a mala fide 
 purchaser, and will not be able to defeat the prior right 
 by getting in the legal estate for his protection. On the 
 contrary, he will be held a trustee for the benefit of the 
 person whose right he sought to defeat; and he secures no 
 better position than that of the person who conveys to 
 him (c) . 
 
 Perhaps the most frequent illustrations of the principle 
 are afforded by cases in which a person purchases, or takes 
 a legal mortgage of an estate with notice of a prior equit- 
 able mortgage by deposit of title deeds (d), or of a prior 
 equitable lien for unpaid purchase-money (e), and those 
 €ases in which a person purchases with notice of a 
 trust (/) . 
 
 (y) S/uirpe v. Fo>/, 4 Ch. 35; Holmes, 29 Ch. D. 786; 55 L. J. 
 
 fiee Berwick \. Price, (1905) 1 Ch. SS; Trinidad Asphalte Co. v. 
 
 Ch. 632; 7i L. J. Ch. 249. Conjat, (1896) A. C. 587; 65 L. 
 
 (z) Kennedy v. Green, 3 My. & J. P. C. 100; Jared v. Clements, 
 
 K. 699; Ca-ve^. C, 15 Ch. D. 639. (1903) 1 Ch. 428; 72 L. J. Ch. 
 
 («) Waldy V. Gray, 20 Eq. 291. 
 
 238 ; and see 53 & 54 Vict. c. 39, (d) Birch v. Ellames, 2 Anst. 
 
 «. 16. 427. 
 
 {b) Atterhury v. WalUs, 8 De (e) Mackreth v. Symmons, 15 
 
 •G. M. & G. 454; Boursot v. Ves. 349. 
 
 Savage, 2 Eq. 134. (/) Bunbar v. TredinnicJc, 2 
 
 (c) Potter V. Sanders, 6 Ha. Bull. & B. 319. 
 1; 55 L,. J. Ch. 33; Re A. JD. 
 
 361
 
 362 
 
 MORTGAGES AND SALES. 
 
 Effect of 
 registration. 
 
 Registration 
 not notice. 
 
 Secus in 
 Ireland. 
 
 Purchase with 
 notice from a 
 person with- 
 out notice. 
 
 Purchase 
 without 
 notice from a 
 person who 
 has notice. 
 
 (2.) It is established that where registration is required 
 an earlier registration will not, in the absence of express 
 statutory enactment to that effect, suffice to gain priority 
 in the face of notice of the unregistered deed (g) . But if 
 the second transaction was without notice at its inception, 
 priority may then be gained by a registration made after 
 knowledge of the earlier ,uiiregistered, or defectively regis- 
 tered, deed has been acquired (h) . Registration, more- 
 over, under the English Acts (excepting the Yorkshire 
 Registries Act, 1884), is not of itself notice; so that a 
 prior equitable incumbrance will not, though registered, 
 affect a subsequent purchaser without notice who obtains 
 the legal estate (i) . The Irish Registration Act (k) is 
 differently framed, and expressly gives priority to instru- 
 ments in the order of their registration (?). 
 
 (3.) Where a person purchases for valuable considera- 
 tion, but with notice of a prior charge, from a j)erson who 
 acquired his interest without notice of it, he may protect 
 himself behind the bona fides of the first purchaser (m) . At 
 first sight this seems inconsistent with the principle that 
 personal 7nala fides disentitles to protection; but it is 
 evident that if it were otherwise the first bond fide pur- 
 chaser would be the sufferer, inasmuch as he would be 
 unable to get full value for the property which he inno- 
 cently acquired. 
 
 Conversely, if a person who has notice sells to a bond fide 
 purchaser who has no notice, and the latter secures the 
 legal title, he is protected against a prior charge (n) . But 
 no protection is secured by getting in the legal estate if at 
 
 (ff) Le Neve v. Le N., Amb. 
 436; but see now, Yorkshire 
 Registries Act, sup. p. 348. 
 
 (/i) Elseij V. Lutyeits, 8 Pla. 
 159; Essex v. Baugh, 1 Y. & C. 
 Ch. C. 620. 
 
 (i) Morecock v. Dickins, Amb. 
 679; Jones v. Barker, (1909) 1 
 Ch. 321; 78 L. J. Ch. 167. 
 
 (k) 6 Anne, c. 2. 
 
 (0 Bushell V. B., 1 S. & L. 
 
 98; Fullerton v. Provincial Bk. 
 of Ireland, (1903) A. C. 309; 72 
 L. J. P. C. 79. 
 
 (?n) Lowther v. Gordon, 2 Atk. 
 242; Wilkes v. Spooner, (1911) 2 
 K. B. 473; 80 L. J. K. B. 1107; 
 compare Walker v. Linom, (1907) 
 2Ch. 104; 76 L. J. Ch. 500. 
 
 (-») Harrison v. Forth, Prcc. 
 Ch. 51; Taylor v. Russell, (1892). 
 A. C. 261; 61 L. J. Ch. 657.
 
 NOTICE. 363 
 
 the time of doing so the mortgagee or purchaser has notice 
 that the legal estate is held on an express trust in favour 
 of persons who assert a claim to the property (o) . 
 
 If, however, a merely equitable interest is dealt with, in 
 this case the result is different, since persons purchasing 
 equitable interests take them subject to all equities affect- 
 ing them. The assignor cannot give the assignee any 
 greater interest than he himself has — namely, an interest 
 subject to the charge of which he had no notice (p). 
 
 (4.) Notice before actual payment of the purchase- Notice 
 
 money is sufficient to bind a purchaser, as efficiently as if before 
 
 notice previous to his contract, for this gives him an payment or 
 • p -Ti- • ■ / \ i ^ conveyance, 
 
 opportunity oi rescinding his contract m equity (g) . And 
 
 conversely, notice before the execution of the conveyance 
 
 is binding, although the purchase-money may have been 
 
 paid before notice, for the purchaser may secure himself 
 
 by retaining the legal estate (r) . 
 
 3 . Matters analogous to notice . 
 
 (1.) The registration of an action as a lis pendens is 
 binding on subsequent purchasers, taking effect from the 
 date of service of the writ (s) . The statement of a special 
 case amounts to a lis pendens, and is binding "when regis- 
 tered. Ee-registration every five years is necessary (i). 
 The effect of registration of lites pendentes is, however, 
 confined to land and does not apply to personalty other 
 than chattel interests in land (ti) . 
 
 The principle applies as well to dealings of the plaintiff 
 as to those of the defendant. Neither party may alien the 
 property in dispute to the prejudice of the other (x) . It is 
 
 (o) Tai/lor v. L. cj- C. Bank, Sparke v. Foij, 4 Cli. 35. 
 (1901) 2 Ch. 231; 70 L. J. Ch. (s) B. of Winchester v. Payne, 
 
 477. 11 Ves. 197 ; Scho field v. Solomon, 
 
 Qp) Ford V. White, 16 Beav. 52 K T. 679. 
 120; Harpham v. Slmcklock, 19 (0 2 & 3 Vict. c. 11, s. 7. 
 
 Ch. D. 207. («0 Wigram v. Buckley, (1894) 
 
 (_q) Tourmlle v. Naish, 3 P. 8 Ch. 483; 63 L. J. Ch. 689. 
 Wms. 307. (a;) Bellamy v. Sabine, 1 De 
 
 (r) Wigg v. W., 1 Atk. 382; G. & J. 566, 580.
 
 364 
 
 MORTGAGES AND SALES. 
 
 Efifect of. 
 
 Registration 
 of deeds. 
 
 Judgments. 
 
 23 & 24 Vict. 
 c. 38; 
 
 27 & 28 Vict. 
 c. 112. 
 
 necessary, however, that some specific claim should have 
 been made in the suit to the particular property in ques- 
 tion {y) . Thus, an action for a general account does 
 not bind all the real and personal estate to which it 
 relates (z) . A lis pendens, again, does not create a charge 
 or lien upon the property; it merely puts a purchaser! 
 upon an inquiry as to the validity of the plaintiff's 
 claim {a) . 
 
 (2.) It has been seen that the registration of deeds is 
 not constructive notice so as to affect a purchaser taking 
 the legal estate (6); but if a purchaser search the register 
 he will be presumed to have notice thereof, unless he can 
 show that the search did not extend to the time of the 
 actual registration (c) . Similarly, under the former law, 
 judgments were not notice unless a search had actually 
 been made {d). By 23 & 24 Vict. c. 38, it was enacted 
 that no judgment, statute, or recognisance should affect 
 any land as to a bond fide purchaser for value, although 
 with actual notice, unless a writ of execution was issued 
 within three months of the registration; and now, by 
 27 & 28 Vict. c. 112, no judgment, statute, or recognisance 
 affects any land until such land shall have been actually 
 delivered in execution by virtue of a writ of elegit or other 
 lawful authority, and by 51 & 52 Vict. c. 51, an execution 
 or receivership order must now, to be effective, be regis- 
 tered in the Land Registry, and the registration renewed 
 every five years (e). 
 
 Provision is made by the Conveyancing Act, 1882 (/), 
 for the making of official searches, on the request of a pur- 
 chaser or other interested person, for judgments, deeds, 
 lites fendentes, and other matters affecting title: and the 
 
 (y) Holt V. Dewell, 4 Ha. 446. 
 
 (s) Walker v. Flamstead, 2 
 Ld. Ken., pt. 2, 57, 59; Exp. 
 Thornton, 2 Ch. 176. 
 
 (a) Bull V. IluLchcns, 32 Beav. 
 615. 
 
 (&) See Bushell v. B., 1 S. & 
 
 L. 103. 
 
 (o) Hodgson v. Dean, 1 S. & 
 S. 221. 
 
 ((?) Lane v. Jackson, 26 Beav. 
 535. 
 
 (e) S. 5. 
 
 (/) 45 & 46 Vict. c. 39, s. 2.
 
 PURCHASE FOR VALUE WITHOUT NOTICE, 365: 
 
 oiRcial certificate given is conclusive in favour of a pur- 
 chaser, as against persons interested under or in respect 
 of such judg'ments, deeds, &c. {g). 
 
 II. Defence of Purchase for Value without Notice. 
 
 A general rule laid down in the leading case of Basset General nde. 
 V. Nosworthy (h) was that equity would give no assistance jYosu-orthu. 
 to the legal title against a bond fide purchaser without 
 notice of an adverse title. This was a case arising out of 
 the auxiliary jurisdiction of Courts of equity which is now 
 obsolete; but the principles involved are still in a measure 
 applicable, though under another form. 
 
 Three cases may arise in which a defendant may plead 
 that he is a purchaser for valuable consideration without 
 notice. Either the plaintiff in equity may have an equit- 
 able title, and may seek the assistance of the Court to 
 establish it against a defendant who has secured the legal 
 estate; or the legal estate may be outstanding, and the 
 parties before the Court set up conflicting equitable in- 
 terests; or the plaintiff may himself have the legal estate, 
 and may be seeking to add to it the equitable interest as 
 well. 
 
 1 . Where the defendant has the legal estate . 
 
 No maxim is better known than that " where the equities Where 
 are equal the law shall prevail." Acting in conformity War estate^* 
 with this rule. Courts of equity will uniformly acknowledge equity will 
 the defence of a defendant who has the legal estate, and 
 who pleads that he is a purchaser for value without notice. 
 It will in such a case refuse to assist the plaintiff, but will 
 leave the parties to the position in which the law places 
 
 (ff} See also for searches under (A) Rep. t. Finch, 102; 2 W. 
 
 Yorkshire Registries Act, 47 & 48 & T. L. C. 150, ed, 7. 
 Vict. c. 54, s. 20.
 
 366 . MORTGAGES AND SALES. 
 
 them(«). This may bo thus illustrated: — A., the owner 
 of an estate, contracts to sell it to B., and B. pays a part of 
 the purchase-money before the estate is legally conveyed 
 to him. A. then sells the estate to C, who has no know- 
 ledge of the transaction with B.; C. pays his purchase- 
 money, and the estate is legally conveyed to him . If, then, 
 B. comes into equity to seek to enforce against the estate 
 the lien to which as a purchaser equity would under other 
 circumstances have held him entitled, the relief will be 
 refused to him. It will be held that C. has as good a 
 right in conscience to the full enjoyment of his estate as 
 B. has to security for his prematurely paid purchase- 
 money; equity, therefore, will refuse to interfere with the 
 advantage which he derives from his legal position. 
 Legal estate jf ^]^g defendant who pleads his bond fide purchase for 
 
 subsequently _ . ^ ^ 
 
 acquired. value without notice has not secured the legal estate at 
 the time of his purchase, but has subsequently acquired it, 
 his plea is equally good; and this notwithstanding that 
 in the interval between his purchase and his acquiring the 
 legal title he may have had notice of the prior transaction 
 of the plaintiff (/c). His own equity being equal to the 
 plaintiff's, he will not be deprived of the advantage which 
 he gains through his superior activity and diligence. In- 
 deed, where his original position in equity has been secured 
 in good faith, the Courts have been little scrupulous to 
 inquire how he has come by the legal estate. Moreover, a 
 purchaser will not be deemed to have notice of a prior 
 equity merely because he gets the legal estate through an 
 instrument which discloses that equity, if he had no know- 
 ledge of such instrument at the time of his purchase {I). 
 Sir W. M. James, L. J., there said: "When once you 
 "have arrived at the conclusion that the purchaser is a 
 
 (i) Pilcher v. Rawlins, 7 Ch. (I) Pilcher v. Rawlins, 7 Ch. 
 
 259. 259; and see Newman v. N., 28 
 
 {k) Golebornw. Alcoch,2^\m. Ch. D. 674; 54 L. J. Ch. 598; 
 552; Blackwood v. London, ^c. Taylor v. Russell, (1892) A. C. 
 Bank, 5 L. R. P. C. C. 111. / 244; (1891) 1 Ch. 8; 61 L. J. 
 
 Ch. 657.
 
 PUKCHASE FOR VALUE WITHOUT NOTICE. 367 
 
 *' purchaser for valuable consideration without notice, the 
 ■"Court has no right to ask him how he is going to defend 
 "himself, or what he is going to rely on." 
 
 There is, however, this limitation upon the power of a Legal estate 
 purchaser to secure himself by subsequently acquiring the if acquired by 
 legal estate: he cannot do so by becoming a party to a » breach 
 breach of trust. Thus it will not avail him to take a 
 conveyance from a trustee when he has knowledge of the 
 trust. If he does so, he himself becomes a trustee, and 
 the legal estate will be no assistance to him (m) . Thus a 
 trustee for successive incumbrancers cannot, by conveying 
 the legal estate to one of them, confer on him priority 
 over the others {n) . 
 
 Not only where the defendant purchaser has the legal Where 
 estate, but where he has the best right to call for it, equity ^elrrSt ^^^^ 
 
 will not grant relief against him . This will be the case to call for the 
 
 1 J. , , • , J 1 • legal estate. 
 
 where one oi two or more persons who are interested m 
 
 equity has, in addition to the interest which he holds in 
 common with the others, a special equity peculiar to him- 
 self — for instance, a particular declaration of trust in his 
 favour (o), or has by superior diligence secured possession 
 of the title deeds. Where there has been no negligence 
 on the part of the prior claimant, nothing less than the 
 completion of the legal title by the subsequent claimant 
 will give him priority {p). And of course a purchaser for 
 A^alue would have a better right than a volunteer (g) . 
 
 Where, moreover, there are circumstances which give Same 
 rise to a mere equity as distinguished from an equitable [^^*^ ll^ntlff 
 estate — as, for example, to set aside a deed for fraud, or to asserts a mere 
 
 equity. 
 
 (jn) Saunders v. Deheiv, 2 Vern. Hartopp v. Huskisson, 55 L. T. 
 
 271; Allen v. Knight, 5 Ha. 272; E. 773; London ^- County Bank 
 
 11 Jur. 527; Taylor v. London ^ v. Goddard, (1897) 1 Ch. 642; 66 
 
 County Bank, (1901) 2 Ch. 234; L. J. Ch. 261. 
 
 70 L. J. Ch. 477. (io) Moore v. N. W. Bank, 
 
 (n) Colly er v. Finch, 19 Beav. (1891) 2 Ch. 599; 60 L. J. Ch. 
 
 500; 5 H. L. 905; Harpham v. 627. 
 
 Shacklock, 19 Ch. D. 207. (^q) Buckle v. Mitchell, 18 Ves. 
 
 (o) Willoughby v. W., 1 T. R. 100. 
 763; Wihnot v. Pike, 5 Ha. 14;
 
 368 
 
 MORTGAGES AND SALES. 
 
 Where legal 
 estate is 
 outstanding, 
 priority 
 determined by 
 time. 
 
 Fund in Court 
 or legal estate 
 in trustee. 
 
 correct a mistake — and the purchaser under the instru- 
 ment maintains the plea of purchase for valuable cou- 
 eideration without notice, the Court will not interfere 
 against him (r). 
 
 2. Where the legal estate is outstanding. 
 
 Where the legal estate is outstanding, another maxim is 
 applicable — Qui prim- est tempore potior est jure. Thus 
 the defence of a purchase for value without notice will not 
 avail against a prior equitable incumbrancer. It is a well- 
 known principle, already fully expounded (s), that a third 
 mortgagee who lent his money without notice of the 
 second mortgage may gain priority over that incumbrance 
 by buying in the first mortgage with the legal estate. 
 But no such priority would be gained if the first was a 
 merely equitable mortgage (t), nor would the incum- 
 brancer who is later in time gain priority by being the 
 first to give notice of his incumbrance {u) . 
 
 Where, however, a fund is in Court, or the legal estate 
 is outstanding in a trustee, and the estate is claimed by 
 several adverse but innocent purchasers for value without 
 notice, the Court will declare the right to the fund, will 
 make a decree against some one or more of the purchasers 
 for value, and will then, to give effect to its decree, order 
 the delivery up of the title deeds to the person held to 
 have the best title (x) . And where an executor mort- 
 gaged trust property by a deposit of title deeds, the 
 mortgage was postponed to the cestui que trust, whose 
 claim was prior in time (y) . 
 
 (r) Phillips V. P., 4 De G. F. 
 & J. 208; Sturr/e v. Starr, 2 
 My. & K. 195. 
 
 (s) Sup. pp. 313 et seq. 
 
 (i) Phillips V. P., sup.; Brace 
 V. D. of Marlborough} 2 P. Wms. 
 491. 
 
 (u) JIumher v. Richards, 45 
 Ch. D. 589; 59 L. J. Ch. 728; 
 Hopkins v. Hemsioorth, (1898) 2 
 Ch. 347; 67 L. J. Ch. 526; Poivell 
 
 V. L. <^ P. Bank, (1893) 2 Ch. 
 555; 1 Ch. 610; 62 L. J. Ch. 
 795 ; Roots v. Williamson, 38 Ch. 
 D. 485; 57 L. J. Ch. 995. 
 
 (a;) Stackhouse v. C. of Jersey, 
 1 J. & H. 721; Newton v. N., 4 
 Ch. 144; Cooper v. Vesey, 20 Ch. 
 D. 611; 51 L. J. Ch. 862. 
 
 (y) Pillgrem v. P., 18 Ch. D. 
 93; 52 L. J. Ch. 834.
 
 IMJKCllASE FUK VALUE WITHOUT NOTICE. 309 
 
 Wlier(! a tnisteo has committed a breach of trust, and Ti'iHtee 
 iias afterwards made that default good by applying another „ne breach of 
 trust fund for that purpose, the Court will not deprive the ^^""^^^ 
 £rst cestuis que trusts of the fund thus placed at their 
 disposal at the expense of the cestuis que trusts of the 
 second fund. Th(^ former are considered as purchasers for 
 value witlioul notice, and so entitled to protection (z). 
 
 3. Where the plaintiff has the legal estate. 
 
 Previously to the Judicature Act («;, when a plaintiff Where the 
 who had the legal estate sought tlie assistance of equity to wal estate 
 perfect his interest, and the defendant pleaded a bond fide 
 purchase for value without notice, a distinction was taken 
 -according to the nature of the relief which he asked. 
 
 It might be that, as in Basset v. Nos worthy (b), he 
 vdesired to obtain from the defendant discovery of some 
 instrument relating to the title, or some similar assistance 
 which could not be afforded to him by a Court of law. 
 In other words, his application might be to the auxiliary 
 jurisdiction of the Court. Or, on the other hand, the 
 plaintiff might sue in equity in a matter in which the 
 Court of Chancery exercised a legal jurisdiction con- 
 xjurrently with the Courts of law. 
 
 In the former case it was well established that if the and appealed 
 defendant successfully maintained a plea of purchase for j^tsdict^n, 
 value without notice, equity would not assist the plaintiff Court would 
 against him(c). It mattered not that the plaintiff was J|»t ^s^i-"* 
 actually in possession of the property under a legal title (d), 
 or whether the property in question was real or personal 
 estate (e). The reasoning was that the defendant had an 
 equal claim with the plaintiff in equity, and that equity 
 would therefore not interfere with his rights. 
 
 (z) Thon/d>/Jce v. Hunt, 3 De 4.54. 
 G. & J. 563; sup. p. 142. (d) Walhvyn v. Lee, 9 Vee. 
 
 («) 36 & 37 Vict. c. 66. 24; Joyce v. De Moleyns, 2 J. & 
 
 (6) Sup. p. 365. L. 374. 
 
 (c) Bitrlase v. Cooke, Freem. (e) Dawson v. Prince, 2 De G. 
 
 .24; Jerrard v. Saunders, 2 Ves. (S: .T. 41. 
 
 s. 24
 
 370 
 
 MORTGAGES AND SALES. 
 
 Stcus where 
 he appealed 
 to the con- 
 current 
 jurisdiction. 
 
 Legul 
 
 mortgagee 
 
 seeking 
 
 foreclosure 
 
 entitled 
 
 to relief. 
 
 Effect of Jud. 
 Act, 1873, 
 8. 24, 8ub-8. 6. 
 
 Ill the latter case, however, it was held that tlie same- 
 plea would not avail. Where a widow filed a bill claiming 
 dower against a purchaser for value without notice from 
 her husband, the plea of the purchase for value was 
 overruled (/) ; and the same was the case in a bill for 
 tithes (g) ; the true ground for the decisions being that 
 the Court was not there asked to give to the plaintiff 
 any equitable as distinguished from legal relief (h) . 
 
 The case of a legal mortgagee seeking foreclosure i& 
 in some respects exceptional. He is entitled to a decree 
 against a bond fide purchaser, notwithstanding that the- 
 latter advanced his money without notice of the prior 
 incumbrance (i) . In this case the plaintiff' seeks an 
 equitable remedy attached to his legal right, with respect 
 to which he cannot be told to seek his remedy at law; 
 so that his position differs from that of a plaintiff who' 
 through the medium of a Court of equity seeks to enforce 
 a legal claim. But though he might get his foreclosure 
 decree, it was held that he was not entitled at the same 
 time to an order for the delivery of title deeds, as to which 
 the defence would avail just as if a suit had been instituted 
 for that purpose alone (k). And for the same reason the 
 Court would not decree a sale instead of a foreclosure, 
 under 15 & 16 Vict. c. 86, since the completion of the 
 sale would involvt^ a surrender of the title deeds, which 
 the Court would not insist on {I). 
 
 But by the Judicature Act (m) every Court can now 
 enforce both legal and equitable claims (n), and recognise 
 equitable defences (o). There is, therefore, no longer any 
 distinction between the auxiliary and the concurrent juris- 
 diction of the Courts of e({uity; and the same reasoning 
 
 (/) Williams v. Lambe, 3 Bro. 
 C. C. 264. 
 
 (17) Collins V. Archer, 1 R. & 
 M.'284. 
 
 (A) Phillips V. P., 4 De G. F. 
 & J. 208, 217. 
 
 (») Finch V. Shaw, 19 Beav. 500. 
 
 22. 
 
 (k) Heath v. Crealock, 10 Ch. 
 
 (0 Waldi/ V. Gray, 20 Eq. 238. 
 (m) 36 & 37 Vict. c. 66. 
 («) Sect. 24, sub-s. 6. 
 (0) Sub-8. 2.
 
 APPLICATION OF PUKCirASK-MONEY. 371 
 
 which applied toWilliams\ . Tjanihc and Collins v. Archer 
 would now apply to such cases as Basset v. Nosivorfhy 
 and Wallwyn v. Lee. This enactment, therefore, has the 
 effect of requiring the Courts now to consider on their 
 merits all cases in which this defence is raised (p). 
 
 4. Where a bond fide purchaser is plaintiff. 
 
 In some cases equity will allow more than a merely The purchaseB- 
 negative force to the position of a bmzd fide purchaser for sometimes 
 
 value. It will suffer him to come as a plaintiff to seek ^?™®.?1 
 
 '■ plaintiffs 
 
 the delivery up and cancellation of documents which stand 
 in the way of his complete security . Thus sleeping mort- 
 gages or incumbrances, under which no claim has been 
 made for a long time, will be vacated in his favour (q) . 
 
 III. Liability of Purchasers for Application of Purchase- 
 Money. 
 
 Since the decision in Elliot v. Merryman (r), which has 
 long been quoted as a leading authority on the liability 
 of purchasers from trustees to see to the application of the 
 purchase-money, the whole law on the subject has been 
 put on a different footing by the statutes presently to be 
 referred to. These statutes, however, being of compara- 
 tively recent date, and not retrospective, cases may still 
 occur to which the old law is applicable. It is, therefore, 
 necessary to consider first the principles applied by Courts 
 of equity in cases where the statutes are not applicable; 
 secondly, the operation of the statutes. 
 
 (p) l7id,Coope ^ Co.v. Emmer- 160; Abdy v. Loveday, Rep. t. 
 
 »on, 12 App. Gas. 300; 33 Ch. D. Finch, 250. See inj. p. 797. 
 
 323: r)() L. J. Ch. 989; Kennedy (r) 2 Atk. 4; 2 W. & T. L. C. 
 
 V. Lyell, 9 App. Cas. 81. 896, ed. 7. 
 
 {q) Rittter v. Bartley, Toth. 
 
 24 (2)
 
 372 
 
 MORTGAGES AND SALKS. 
 
 Purchaser of 
 personalty 
 (not generally 
 liable. 
 
 Notice 
 immaterial. 
 
 Exceptions : 
 1. Where 
 there is a 
 particular 
 trust of 
 personalty. 
 '1. Where 
 purchaser is 
 party to 
 « fraud. 
 
 Liand devised 
 for payment 
 •of debts. 
 
 1. As fo persomd property. 
 
 (1.) However personal estate may be bequeathed, it 
 must be first resorted to by the executors or adminis- 
 trators for payment of the testator's debts, in a due 
 course of administration. The general rule is abundantly 
 established that a person who purchases or takes a mort- 
 gage of leaseholds or other personalty from an executor or 
 administrator is not bound to see to the application of the 
 purchase or mortgage money. The sale or mortgage of a 
 chattel by an executor will be good against both the resi- 
 duary and pecuniary legatees, as well as against the 
 creditors of the testator. Their remedy, in case of the 
 misapplication of the money by the executor, would be not 
 against the purchaser or mortgagee, but against the exe- 
 cutor himself; neither notice of tlie will, nor of the bequest 
 contained therein, would be prejudicial to the purchaser or 
 mortgagee (s). And the fact that a mortgage of part of 
 the assets has been made to secure a debt originally con- 
 tracted on the personal security of the executor, and 
 without reference to the assets, is immaterial (t). 
 
 (2.) The Master of the Rolls, in Elliot v. Merry- 
 man (m), recognised two exceptions from the general rule. 
 First, where the personal estate is clothed with such a par- 
 ticular trust that the Court may require a purchaser 
 thereof to see the money rightly applied. Secondly, where 
 there is fraud on the part of a purchaser or mortgagee; as, 
 for instance, where to his knowledge the executor applies 
 the testator's assets in payment of his own debt {x). 
 
 2. As tu real property. 
 
 (1.) Land devised on trust for sale for payment of 
 debts, &c. 
 
 (s) Eiver v. Corbett, 2 P. Wms. 
 148; Aiidrevj v. Wrigley, 4 Bro. 
 
 C. C. 125; Re Whistler, 35 Ch. 
 
 D. 561; 56 L. J. Ch. 827; Be 
 Venn and Furze, (1894) 2 Ch. 
 101; 63 L. J. Ch. 303. 
 
 (0 Miles V. Burnford, 2 De G. 
 M. & G. 641. 
 
 (m) 2 Atk. 4. 
 
 («) Hill V. Simpson, 7 Ves. 
 152; Pillgrem v. P., 18 Ch. D. 
 93; 52 L. J. Ch. 834.
 
 APPLICATION OF PUKCHASE-MONEV. 373^ 
 
 At law trustees in whom real property was vested could Contrast 
 of course give a valid discharge for the purchase-money, and equity 
 But the persons amongst whom the produce of the sale was 
 to be distributed being considered in equity the owners, 
 Courts of equity held tliat a purchaser must obtain a dis- 
 charge from them, unless the power of giving receipts was 
 either expressly or by implication given to the trustees. 
 And if no such discharge was given, and the trustees had 
 no power to give receipts, the estate, upon a misapplication 
 of the purchase-money, remained chargeable in the hands 
 of the purchaser. 
 
 Where a power of giving receipts was in express terms Where 
 conferred upon trustees, the purchaser was not, in the to s^ve^ ^^^^'^ 
 absence of fraud or collusion, bound to see to the applica- receipts 
 tion of the purchase-money. If no such power was given 
 in express terms, there was frequent difficulty in deter- 
 mining whether such a power could be implied. 
 
 As to this, one of the rules laid down in Elliot v. Merry- Power, when- 
 tncm (y), which was invariably followed, was that if the ^™P^^- 
 testator directed lands to b© sold for the payment of cer- 
 tain debts, mentioning in particular to whom those debts 
 were owing, the purchaser was bound to see that the money 
 was applied for the payment of those debts. And the Not in case of 
 same rule was applicable where there was a trust for pay- ^"^f^'^^ 
 ment of legacies or annuities, which from their nature legacies, 
 were placed on the same footing as specified or scheduled 
 debts (2). In cases coming within this rule, the trusts 
 being of a limited and definite nature, and such as a pur- 
 chaser might without inconvenience see properly per- 
 formed, a power to give receipts could not be implied. 
 
 Another rule was that if the testator directed the land But otherwise- 
 to be sold for the payment of debts generally, the pur- ^arfor'^"^ 
 chaser was not bound to see the money rightly applied. In payment 
 such cases it was esteemed that the trust was of too general generally ; 
 and unlimited a nature to be undertaken by a purchaser; 
 
 (y) Supra. & K. 624, 630; Horn v. M., 2 
 
 (z) Johnson v. Kennett, 3 My. S. & S. 448.
 
 ^^74 
 
 moktga(;es and sales. 
 
 though 
 followed by 
 trust to pay 
 ileuracies. 
 
 Annuities not 
 distinguish- 
 able from 
 legacies. 
 
 Immaterial 
 that debts 
 have in fact 
 been paid, 
 
 •OT that there 
 were no delits. 
 
 Trusts 
 
 ■declared 
 
 involving 
 
 personal 
 
 •discretion. 
 
 and it was therefore held that an implied power was 
 bestowed on the trustees to give receipts in full discharge 
 for the purchase-money. 
 
 If the trust included at the same time the payment of 
 legacies and annuities and the payment of debts, the latter 
 principle was clearly the on© to be applied, since it was 
 only after the execution of the general trust to pay debts 
 that the limited trust to pay legacies would arise. The 
 purchaser's position, therefore, would be just the same as 
 in a general trust for payment of debts only (a) . 
 
 In some cases it was sought to distinguish annuities 
 from legacies (6), but neither on principle nor authority 
 could such a distinction be supported. And if there was 
 a general charge of debts it was held immaterial that one 
 particular debt Avas UKnitioned (c). And, again, where 
 there was a trust for payment of debts generally and also 
 legacies, a purchaser, even after the debts had in fact been 
 paid, was hold not liable to see to the application of the 
 purchase-money in payment of the legacies (d). Lord 
 Lyndhurst in so deciding pointed out that the rule had 
 reference to the state of things at the death of the tes- 
 tator (e); and it made no difference if in fact there were 
 no debts when the testator died. 
 
 Where money to arise from a sale was not merely to be 
 paid to certain persons, but was to be applied by the trus- 
 tees upon trusts requiring care and discretion, the pre- 
 sumption was that the settlor intended to confide the 
 execution of the trust to the trustees solely, and the pur- 
 chaser was not then bound to sec to the application of the 
 purchase-money (/), and so where an estate was charged 
 
 {(') Johnson v. Kennctt, xiip.; 
 Page v. Adam, 4 Beav. 269. 
 
 (J) Johnson v. Kenni'tt, sup.; 
 Eland v. E., 1 Beav. 235. 
 
 (c) Robinson \. Lowater, 17 
 Beav. 592; 5 De G. M. & G. 272. 
 
 (d) Johnson v. Kennett, 3 Mj'. 
 & K. 624. 
 
 (e) Stroughill v. Anstey, 1 De 
 G. M. & G. 635. See also Forbes 
 V. Peacock, 1 Ph. 717. 
 
 (/) Doran v. Wiltshire, 6 
 Swanst. 699.
 
 AI'l'LICATION OF PlJliCHASK-MONEY. 375 
 
 with a sum of money payable to nn infant on his attaining 
 
 his majority (^7). 
 
 A purchas(U' was not bound to ascertain how much land Pun^liaser uot 
 
 it was necessary to sell for payment of the debts (h). And ^^^jj.^. whether 
 
 where lands were devised to trustees upon trust to raise so sale was 
 
 1 1 1 r> n 1 c • i. • necessary, 
 much money as tlic personal estate should lall dencient in 
 
 paying the testator's debts and legacies, a purchaser was 
 
 not bound to inquire whether the real estate was wanted 
 
 or not. Scciis, however, if the trustees had merely a voiver ""less power 
 
 ' 1 *o sell only 
 
 to raise money upon the deficiency of the personal estate, arose on 
 
 for then, unless there was a deficiency, the power never <ieficiency. 
 arose, and consequently the purchaser could take no estate 
 by the supposed execution of it (J). 
 
 (2.) Land devised charged with debts, &c. ^SVet^*^ 
 
 It was laid down in EUiot \. Merri/man (fc) that the *'ame rules 
 rules as to a purchaser's liability were the same where land 
 was devised charged with debts or legacies, or both, as 
 where it was devised expressly upon trust for these pur- 
 poses, the charge being considered equivalent to a trust (Z). 
 The authorities already mentioned as referring to one case 
 may, therefore, generallj^ be considered as also illustrating 
 the other. There are, however, certain matters particularly 
 relating to such charges which require separate considera- 
 tion. Prominent among these is the question whether a 
 charge of debts authorised a sale of real estate by 
 executors . 
 
 It was laid down by Sir L. Shad well, V.-C, in Forbes Wh.-therit 
 V. Peacock (m), that if a testator charged his real estate S^^J'to'^'^ 
 with payment of his debts, that, prima facie, gave the executors. 
 executor- power to sell the real estate and to give the pur- 
 chaser a good discharge for the purchase-money. This 
 
 (^) Dicketisoii V. B., 3 Bro. (I) See also Jenkins v. Hiles, 
 
 C. C. 19. 6 Ves. 654, note; Page v. Adam, 
 
 (A) Spaldhif) V. Shnlmer, 1 sup.; Shaw v. Borrer, 1 Kee. 
 
 Vern. 303. bb^; Re Bysonand Fowke, {l^'d^) 
 
 (i) Culpepper v. Aston, 2 Ch. 2 Ch. 720; 65 L. J. Ch. 791. 
 
 Co.. 115; Bird v. Fox, 11 Ha. 40. (;«) 12 Sim. 528, 541. 
 
 (k) 2 Atk. 4.
 
 376 
 
 MORTGArjES AND SALES. 
 
 Equitable 
 power not 
 leg-al. 
 
 Purchaser 
 always liable 
 if party to a 
 breach of 
 trust. 
 
 was sustained to a certain extent in Shcur v. Borrer {n} 
 and in Ball v. Harris (o), but it has been questioned 
 whether such a charge conferred a legal power to sell, and 
 whether in consequence a defendant in a suit for a specifie 
 performance ought to be compelled to complete the pur- 
 chase without a conveyance from the heir-at-law (p). The 
 decisions on this point were somewhat conflicting (q). 
 The conclusion to be drawn from them seems to be that 
 where there was a general charge of debts upon real estate 
 the executors had in equity an implied power to sell it, 
 and they alone could give a valid receipt for the purchase- 
 money; but that they did not take by implication a legal 
 power to sell, and could not, therefore, convey the legal 
 estate, it being necessary to complete the purchaser's title 
 that the persons in whom it was vested (if not already in 
 the executors by devise or otherwise) should concur in the 
 conveyance (r). 
 
 The rule that a purchaser was not bound when the debts 
 were charged generally, was subject to the obvious excep- 
 tion that if he was a party to a breach of trust he would 
 receive no protection; for instance, where a devisee, having 
 a right to sell, sold to pay his own debt, and the purchaser 
 had notice of these facts (s). Where trustees, instead of 
 selling under a power in a will, raised money by mortgage 
 in a manner not authorised by the power, manj' years after 
 the testator's death, the mortgagee being party to a breach 
 of trust, his security was invalid (t); but the mortgagee 
 in such a case was entitled to stand as a creditor in respect 
 of the produce of the estates, to the extent to which the 
 mortgage money was rightly applied (m). 
 
 (m) Sup. 
 
 (o) 4 My. & Cr. 264. 
 
 (^) Gosling v. Carter, 1 Coll. 
 644. 
 
 («7) Doe d. Jones v. Hughes, 6 
 Exch. 223; Robinson v. Lovmter. 
 8up.; Wrigley v. Sykes, 21 Beav. 
 337. 
 
 (r) Hodkinson v. Quinn, 1 J, 
 & H. 303, 309. 
 
 (s) Eland v. ^.,4 My. & Cr.. 
 427. 
 
 (f) Stroughill v. Anstey, 1 De 
 G. M. & G. 635. 
 
 (m) Devaynes v. Robinson, 24 
 Beav. 86.
 
 APPLICATION OF PlIKCHASK-MONKy, '^"" 
 
 3. Statutory rrvodifi cations of the principles. 
 
 It now i-emains to consider how these principles, which 
 rested on the decisions of the Courts, have been affected 
 by statutory enactments. 
 
 (1.) As to purchasers' liability. Antopur- 
 
 i. The law is now chiefly regulated by the provisions iia|,iiity. 
 in this respect of Tionl St. Leonards' Act (x), which was 22 & 23 Vict, 
 passed and came into operation on August 13th, 1859. ^' ' 
 By sect. 23 of this Act it is enacted " that the hand fide s. 23. 
 " payment to, and the receipt of, any person to whom any 
 '■ purchase or mortgage money shall be payable upon any 
 " express or implied trust, shall effectually discharge the 
 " person paying the same from seeing to the application, 
 " or being answerable for the misapplication thereof, 
 " unless the contrarj- shall be expressly declared b}' the 
 " instrument creating the trust or security." 
 
 ii. A more extensive power, in that it is not confined to 
 purchase or mortgage money, was given by Lord Cran- 23 & ii Vict, 
 worth's Act (y), which has, however, been since replaced ''• ^'*^' ^- 29- 
 by a still more comprehensive section in the Conveyancing 44 & 45 Vict. 
 
 c 4: 1 8 36 . 
 
 and Law of Property Act, 1881 (r), repeated in the " ' ' ' 
 Trustee Act, 1893 (a). 
 
 This statute enacts that " the receipt in writing of 
 " any trustee for any money, securities, or other personal 
 " property or effects pajable. transferable, or deliverable 
 " to him under any trust or power, shall be a sufficient 
 " discharge for the same, and shall effectually exonerate 
 " the person paying, transferring, or delivering the same 
 "from seeing to the application, or being answerable, for 
 " any loss or misapplication thereof. ' And this applies 
 to trusts created either before or after the commencement- 
 of the Act. 
 
 The Settled Land Act, 1882 (6), contains a similar 
 retrospective provision. 
 
 (.-c) 22 & 23 Vict. c. 35. (a) 56 & 57 Vict. c. 53, s. 20. 
 
 (y) 23 & 24 Vict. c. 145. s. 29. (b) 45 & 46 Vict. c. 38, s. 40. 
 
 Iz) 44 & 45 Vict. c. 41, s. 36.
 
 of the statute. 
 
 378 moi;t(;a(;ks and sales. 
 
 As to power (2.) As lo tlic powor of sale. 
 
 Lord St. Leonards' x4.ct also contains important pro- 
 visions respecting the powers of trustees and executors to 
 sell, in various circumstances. 
 
 General eflPect The general effect of the statute may thus be summed 
 up:— It has removed the difficulty created by the decisions 
 in two cases: 1st, If a testator charges his real estate with 
 debts, and devises all his estate therein to trustees, the 
 trustees for the time being, however appointed, can sell or 
 mortgage for the satisfaction of the charge (c) ; 2ndly, If 
 after a similar charge the testator does not devise all his 
 estate therein to trustees, the executor has power to sell or 
 mortgage (d). The power could not be exercised by an 
 administrator (c) nor an administrator cum testamento 
 annexo{f). By the Land Transfer Act, 1897 (^), all 
 the real property (other than copyholds) of a testator or 
 intestate dying after December 31st, 1897, vests, upon his 
 death, in his legal personal representatives, who become 
 trustees for the persons beneficially entitled, and have the 
 same powers and duties in regard to it as if it were a 
 chattel real; and this includes a power of sale. Under 
 the previous law it was held that after a lapse of twenty 
 years where executors sold real estate under a power 
 arising by reason of a charge of debts, the presumption 
 was that the debts were paid, and that therefore the pm-- 
 chaser was bound to make inquiry as to the existence of 
 debts {h). But the same rule does not apj)ly to the sale 
 of leaseholds by an executor (i). Having regard to the 
 terms of sect. 3 of the Act, it would seem that this dis- 
 tinction is still effective (fc). In a case, however, in which 
 
 (c) Sects. 14, 15. Qi) Re Taiiqueray-Willauiite, 
 
 {d) Sect. 16. See Re Barrow- 20 Ch. D. 465; 51 L. J. Ch. 434. 
 
 in-Furness Corp. and Rdivlinson's (j) Re Venn and Furze, (1894) 
 
 Contract, (1903) 1 Ch. 339; 72 '2 Ch. 101; 63 L. J. Ch. 303; 
 
 L. J. Ch. 233. lie Henson, Chester v. Henson, 
 
 (e) Ricketts V. Leims, 20 Ch. (1908) 2 Ch. 356; 77 L. J. Ch. 
 
 D. 745; 51 L. J. Ch. 837. 598. 
 
 (/) Re Clai/, 16 Ch. I). 3; 5(1 (A-) Seo Brickdale & Sheldon's 
 
 L. J. Ch. 164. Laud Transfer Act, pp. 246, 271. 
 
 (ff) 60 k. 61 Vict. c. 65. ss. 1- 3.
 
 ASSIGNMENT OF POSSIBI I.ITIKS AND CHOSIvS IN ACTION. -i^W 
 
 after a lapse of eighteen years an executrix entered into a 
 contract for sale, and the purchaser had express notice that 
 there were no debts of the testator remaining unpaid, and 
 no reason for selling was suggested, it was held that the 
 title was not one which ought to be forced on a pur- 
 •chaser (I). By the Convej-ancing Act, 1911 (m), when 
 probate is granted to one or some of several executors, the 
 «ale or disposition of real estate may effectually be made 
 by the proving executor or executors Avithout the authority 
 •of the Court. 
 
 IV. Assignment of PossibiJities and Choses in Action. 
 
 1. It was an ancient and well-established principle of Possibilities 
 common law that no possibility, right, title, nor thing in aotionnof" 
 action could be granted or assigned to strangers (w); and assignable 
 accordingly, if there was what pur^iorted to be an assign- 
 ment of such interests, the assignee could not sue at law 
 for them in his own name. 
 
 The necessities of commerce, however, long ago effected Exceptions, 
 a modification of this principle, even at law. Some choses and statutory. 
 in action, of which bills of exchange are a type, became 
 assignable by custom; others have from time to time been 
 •expressly made so by statute — for instance, promissory 
 notes, by 3 & 4 Anne, c. 9, 7 Anne, c. 25; railway bonds, 
 by 8 & 9 Vict. c. 19; endorsed bills of lading, by 18 & 19 
 Vict. c. Ill; and, as we have elsewhere observed, policies 
 of life and marine assurance, by 30 & 31 Vict. c. 144, 
 and 31 & 32 Vict. c. 86 (o). But in all cases not so pro- 
 vided for, it remained necessary until comparatively recent 
 times for an assignee suing at law to use the name of the 
 •original creditor (p). 
 
 {I) Re VerraWn Contract, (o) S/(/>. p. 64. 
 
 .(1903) 1 Ch. 65; 72 L. J. Ch. 44. {p) Be Pothonler v. Be Mattos, 
 
 (;az,) 1 & 2 Geo. V. c. 37, s. 12. Ell. Bl. .t Ell. 467. 
 (w) Lantpet's Case, 10 Co. 47.
 
 380 
 
 MOKTGA(ii:S AND 8ALKS. 
 
 Assignments 
 recognised in 
 equity. 
 
 Possibilities. 
 
 Warms trey v. 
 Tanfield. 
 
 Expectancies. 
 
 Courts of equity, on the other liand, have been wont 
 from an early period to recognise the validity of the- 
 assignment of possibilities and choses in action generally; 
 and have continually carried such assignments into effect 
 when made for valuable consideration {q) . 
 
 We are thus led to the consideration of a striking and 
 fundamental contrast of principles between law and 
 equity, which remains of importance, notwithstanding the 
 provisions of the Judicature Act presently quoted. 
 
 First, it will be desirable to cite in detail, by way of 
 illustration, some instances of rights which have been 
 deemed assignable in equity, though not so in law. 
 
 Of these there are two principal classes, the first com- 
 prising possibilities; the second, debts of various kinds. 
 
 (1.) In respect of the former, one of the leading autho- 
 rities is the case of W oi'rnstrey v. Tanfield (r). 
 
 There, one William Freeman, being possessed of the 
 third part of a parsonage for the whole term to come,, 
 granted all liis interest therein to one Alborough, in trust 
 for the use of the said Freeman and his wife during their 
 lives, and after to the use of such issue male of their 
 bodies as the said Freeman should by will appoint. Free- 
 man appointed the premises after the death of his wife to- 
 his son Richard, who, during the life of his mother, 
 assigned the premises to the plaintiff. The defendant 
 claimed under a lease made by the said Richard Freeman 
 two years after the said assignment. 
 
 It was held that though the assignment was of a mere 
 possibility (being dependent on Richard's surviving his 
 mother), and therefore not good in law, yet it was valid 
 in equity, and the plaintiff's claim was allowed, as arising 
 under a deed precedent to that through which the defen- 
 dant claimed. 
 
 (2.) On grounds analogous to this we find equity 
 enforcing assignments of mere expectancies, such as that 
 
 (g') Anon., Frecm. 145: St/uib 
 V, Wyn, 1 P. Wma. 381. 
 
 (r) 1 Ch. Rep. 29; 1 W. & T.. 
 L. C. 91, ed. 7.
 
 ASSIGNMENT OF POSSIBILITIES AND CTIOSES IN ACTION. 381 
 
 oi' an heir-at-law (.s), or the lu^xt of kin of a living 
 person (t), or the interest which a person expects under the 
 will of a living person (u), or the share to which a person 
 may become entitled under an appointment (a;). 
 
 (3.) By a further extension of the same principle, non- Non-existent 
 
 : ■' "^ -IP ^^^ future 
 
 •existent property, or property to be acquired at a future property, 
 time, has been held assignable in equity; such as the 
 future cargo of a ship (y), future patent rights (2), 
 miachinery yet to be erected (a), future stock in trade to 
 be brought on the mortgaged premises (6), and the future 
 book debts of a business (c). But such assignments of 
 future interests are liable to be postponed to a purchaser 
 who secures the legal title (5), and, unless made for valu- 
 able consideration (d), are subject to the right of the 
 assignee's trustee in bankruptcy in case of liis bankruptcy 
 occurring before the expectancy falls into possession (e). 
 
 (4.) The jurisdiction of the Courts of law was extended « & 9 Vict, 
 by 8 & 9 Vict. c. 106, by s. 6 of which it was enacted that ' ' ' ' 
 thereafter contingent, executory and future interests and 
 possibilities, coupled ivith an interest in real estate, might 
 be assigned at law by deed. But this Act left untouched 
 assignments of contingent interests in chattels, and mere 
 naked possibilities not coupled with an interest. ik.s to 
 such, therefore, equity alone continued to recognise the 
 validity of assignments. 
 
 (s) Hohson V. Trevor, 2 P. v. Rohimon, 15 Q. B. D. 288; 54 
 
 Wms. 191. L. J. Q. B. 364. 
 
 (0 Ilinde v. Blake, 3 Beav. (c) Tailby v. Official Receiver, 
 
 235. 13 App. Cas. 523; 58 L. J. Q. B. 
 
 (m) Beckley v. Newland, 2 P. 75. 
 
 Wms. 182. {(I) Re Reis, Exp. Clough. 
 
 (x) Muspratv. GorJoiiA Anst. (1904) 2 K. B. 769; 73 L. J. 
 
 34. K. B. 929. 
 
 (y) Lindsay v. Gibhs, 22 Beav. (e) Collyer v. Isaacs, 19 Ch. 
 
 522. D. 342; 51 L. J. Ch. 14; Exp. 
 
 (z) Printing, ^-c. Co. v. Samp- Nichols, 22 Ch. D. 782; 52 L. J. 
 
 son, 19 Eq. 462. Ch. 635; Wilmot v. Alton, (1897) 
 
 (a) Holroyd v. Marshall, 10 1 Q. B. 17; 66 L. J. Q. B. 42; 
 
 H. L. 191. Coombe \. Carter, 35 Ch. D. 109; 
 
 (J>) Joseph V. Lyons, 15 Q. B. 36 ib. 348; 56 L. J. Ch. 981. 
 D. 280; 54 L. J. Q. B. 1; Hallas
 
 382 
 
 MORTGAGES AND SALES. 
 
 Choses in (5.) One oi' llic principal eailv authoi-itios on the 
 
 assignment of debts is Roiv v. Dawson (/). 
 
 IhlJo)/ ^^ ^^^^^ ^^^® Tonson and Conway lent money to Gibson, 
 
 who gave them a draft in the following terms: " Out of 
 " the money due to me from Horace Walpolo out of the 
 " Exchequer, and what will bo due at Michaelmas, pay to 
 "Tonson and Conway; value received." Gibson having 
 become bankrupt, the question was whether this draft 
 created a specific lien upon the sum due to his estate. 
 Lord Hardwicke distinguished between this draft and a 
 bill of exchange, the draft being not to pay generally, but 
 out of a particular fund, and creating no personal demand; 
 and he held that there being an agreement for valuable 
 consideration beforehand to lend money on the faith ofi 
 being satisfied out of the fund, the draft was a credit on 
 the fund, and amounted to an assignment of so much of 
 the debt; and that though the law did not admit an 
 assignment of a chose in action, equity did, and that any 
 words would do, no particular form being necessary 
 thereto. 
 
 The first question which arises in cases of this nature 
 is as to what does and what does not amomit to a valid 
 equitable assignment. 
 
 No partiouliir The above case establishes the principle that any words 
 which show an intention to appropriate the chose in action 
 to the assignee, are, if supported by valuable consideration, 
 sufHcient to effect a valid assignment. In other words, an 
 agreement between a debtor and a creditor that the debt 
 owing shall be paid out of a specific fund coming to the 
 debtor {g), or an order given by a debtor to his creditor 
 upon a third person, who has funds of the debtor, to pay 
 the creditor out of such funds (h), will effect a complete 
 
 (/) 1 Ves. sr. 331; 1 W. & T. v. Gatidell, 1 De G. M. & G. 763, 
 L. C. 93, ed. 7. 776. 
 
 (ff) Percival v. Dunn, 29 Ch. (/t) Burn v. Carvalho, 4 My. & 
 
 I>. 128; 54 L. J. Ch. 570; Rodick Cr. 702; Re Toward, 14 Q. B. D. 
 
 310; 54 L. J. Q. B. 126. 
 
 form I'equired,
 
 ASSIGNMENT OF roSSIUlLiri IvS ANJ) CIIOHKS IN ACTKJN. 38-'^ 
 
 assignment in equity of so nmcli iiioiicx- (i). Writing is 
 not necessary if there is clear proof of an oral charge (k). 
 
 The intention to create a charge must, however, be clear, intention 
 A promise to pay when the debtor receives a debt due to ™"** ^ dear. 
 him from a third person is not sufficient (I), nor is a 
 statement that the arrival of a certain cargo would put him> 
 in funds (m); nor is a cheque or bill of exchange an equit- 
 able assignment of the drawer's balances at his bank (n). 
 
 Again, an equitable assignment is not complete until it Assignment 
 
 is communicated to the creditor. Thus a mere mandate complete only 
 
 on communi- 
 
 f rom a principal to his agent to pa}- a debt out of a certain cation to 
 fund gives the creditor no specific charge on that fund (o). 
 Until such mandate is communicated to the creditor, and 
 assented to by him, it may be revoked (p), and the bank- 
 ruptcy of the debtor operates as such revocation {q). But 
 after such communication the agent becomes the debtor 
 of the assignee, and the order cannot then be counter- 
 manded (r). 
 
 On the other hand, a mere power of attorney, or autho- M.\ist be 
 
 rity to a person to receive money, not addressed to the addressed to 
 111 ■ 1 1 • / ^ debtor, 
 
 debtor, does not amount to an equitable assignment {s). 
 
 2. Notice, ho IV far required. 
 
 (1.) An equitable assignment is complete as between Notice not 
 assignor and assignee, though no notice thereof is given to between * 
 the depositary or holder of the fund (f ) ; nor is notice assignor and 
 
 assignee. 
 
 («■) Diplock V. Hammond, 2 Sm. (^>) ScotL v. Porcher. 3 Mer. 
 
 & G. 141; 5 D© G. M. & G. 320; 652; Brown Shrplo/ v. Kough, 29 
 
 Lett V. Morris, 4 Sim. 607. Ch. D. 848; 54 L. J. Ch. 1024. 
 
 (Jc) Gurnell v. Gardner, 7 Jur. {q) Exp. Hall, 10 Ch. D. 15. 
 
 N. S. 1220; Parish v. Poole, 53 (r) Fitzr/erald v. Stewart,2 U. 
 
 L. T. R. 35. & M. 457; Alexander v. Steiti- 
 
 (J) Field V. Megaiv, L. R. 4 Aa^-^^, (1903) 2 K. B. 208; 72 L. J. 
 
 C. P. 660. K. B. 490; Brandt v. Bunlop 
 
 (ni) Jones v. Starkey, 16 Jur. Rubber Co., (1905) A. C. 454; 
 
 510. 74 L. J. K. B. 898. 
 
 («) Hopkinson v. Forster, 19 (.s) Rodick v. Gandell, sup. ; 
 
 Eq. 74; Shand v. Bu Buisson, 18 Bell \. L. ^ N. W. R., 15 Beav. 
 
 Eq. 283. See Hadley v. H., (1898) 548. 
 '2 Ch. 680; 67 L. J. Ch. 694. (0 Jones v. Gibbons, 9 Ves. 
 
 (o) Morell v. Wooten, 16 Beav. 410; Cook v. Black, 1 Ha. 390. 
 197.
 
 384 
 
 MOKTGAGE.S AND SALEH. 
 
 But is 
 required to 
 complete 
 security ; 
 
 otherwise 
 debtor may 
 safely pay 
 assignor, 
 
 or subsequent 
 incumbrancer 
 may gain 
 priority. 
 Dearie v. Hall. 
 
 necessary as against a person standing in the same position 
 as the assignor, such as a judgment creditor (m), oi- a 
 creditor under a garnishee order {x). Such a creditor -will 
 therefore be postponed to an equitable assignee, notwith- 
 standing that ho may have, after the assignment, but 
 before notice to the depositary, obtained an order charging 
 the fund {y). 
 
 (2.) But to complete the security of the assignee, it is 
 for many purposes necessary for him promptly to give 
 notice of the assignment to the holder of the fund. 
 
 First, in the absence of such notice the holder of the 
 fund may effectually discharge himself by paying the 
 assignor, and if he does so the charge of the assignee will, 
 of course, be lost {z). 
 
 Secondly, if the assignor make a subsequent assignment 
 of the debt, and the second assignee gives notice before the 
 first does so, the second thereby gains priority («), whether 
 the interest of the assignor be present or future, vested or 
 contingent. The principle is the same as that which 
 requires the assignee of a personal chattel to take every 
 step in his power to reduce it into possession, and in case 
 of his neglect postpones him to a subsequent assignee for 
 value, 'who takes without notice. Of the two j^arties one 
 must suffer; and equity will not assist the one prior in 
 time if by his negligence the possessor has been enabled 
 to deceive the second assignee. If, however, the former has 
 done all he could to secure possession, he will not lose his 
 priority (&), and if the debtor or person claiming through 
 him should pay the debt in spite of the notice to any other 
 than the assignee, he is liable to pay it again out of his 
 
 (ti) Beavan v. Ld. Oxford, 6 
 De G. M. & G. 492. 
 
 (ic) Pickering v. I. R. Co., 
 L. E. 3 C. P. 235. 
 
 (y) Scott V. Ld. Ilastinr/s, 4 
 K. & J. 633. 
 
 (z) Norrish v. Marshall, 5 
 Madd. 475. 
 
 (a) Dearie v. Hall; Loveridge 
 
 V. Cooper, 3 Huss. 1, 30, 48; 
 Br ice v. Bannister, 3 Q. B. D. 
 569; Stephens v. Greejt, (1895) 2 
 Ch. 148; 64 L. J. Cli. 546; Re 
 Lake, Exp. Cavendish, (1903) 1 
 K. B. 151; 72 L. J. K. B. 117. 
 
 {b) Feltham v. Clark, 1 De G. 
 & Sm. 307; Re Seaman, (1896) 
 1 Q. B. 412; 65 L. J. Q. B. 348.
 
 ASSIGNMENT OF POSSIBILITIES AND CHOSES IN ACTION. 385 
 
 own funds (c). If the notices of the assignments are 
 simultaneous they will take priority according to their 
 dates {d). The doctrine, however, does not apply to shares 
 in registered companies, equitable charges on which have 
 priority in order of date, unaffected by notice (e). 
 
 Again, notice is often requisite to protect an assignee Reputed 
 against the effect of the reputed ownership clause of the trnkruptcv" 
 Bankruptcy Act. Under the present Act (/) all goods 
 and chattels being at the commencement of the bank- 
 ruptcy in the possession, order or disposition of the bank- 
 rupt in his trade or business, by the consent and permis- 
 sion of the true owner, under such circumstances that he is 
 the reputed owner thereof, are treated as the property of 
 the bankrupt divisible among his creditors; provided that 
 things in action, other than debts due or growing due to 
 the bankrupt in the course of his business, shall not be 
 deemed goods within the meaning of the Act. 
 
 An assignee of chattels is only protected against this 
 clause by taking every step he can to secure possession. 
 Under the former Acts, choses in action were within the 
 clause as comprehended under " goods and chattels," and 
 in order to divest from the mortgagor the ownership of 
 outstanding choses in action, notice to the debtor was 
 necessary {g). The same principle still applies to out- 
 standing debts due to the bankrupt in the course of his 
 business. Shares in an incorporated company are choses 
 in action, and accordingly not within the clause (Ji). 
 
 (e) Brice V. Bannister, S Q. B. v. Walker, 11 App. Cas. 20; 55 
 
 D. 569; Ward v. Buncombe, L. J. Q. B. 169. 
 
 (1893) A. C. 369; 62 L. J. Ch. (/) 46 & 47 Vict. c. 52, s. 44. 
 
 881. {g') Ryall v. Roivles, 1 Ves. sr. 
 
 {d) Calisher v. Forbes, 7 Ch. 348; 1 W. & T. L. C. 96, ed. 7; 
 
 109; Johnstone v. Cox, 16 Ch. D. Butter v. Everett, (1895) 1 Ch. 
 
 571; 50 L. J. Ch. 216; Marchant 872; 64 L. J. Ch. 845; Re 3Iills' 
 
 V. Morton, (1901) 2 K. B. 829; Trusts, (1895) 1 Ch. 564; 64 L. J. 
 
 70 L. J. K. B. 820; Ro Dallas, Ch. 708. 
 
 (1904) 2 Ch. 385; 73 L. J. Ch. {h) C olonial BanTc v . Whinneij, 
 
 365. 11 App. Cas. 426; 56 L. J. Ch. 
 
 (e) Societe Generale de Paris 43. 
 
 s. 25
 
 386 
 
 MORTGAGES AND SALES. 
 
 Equitable 
 interests in 
 land dis- 
 tinguished. 
 
 Charging 
 order. 
 
 Transfer into 
 Court ; 
 stop order. 
 
 Assignee 
 takes subject 
 to equities ; 
 
 It has been held that it is sufficient protection for the 
 assignee if he gives notice between the act of bankruptcy 
 and the petition for adjudication, bond fide dealings with 
 the bankrupt during that time being specially pro- 
 tected (^). 
 
 The distinction must be observed between such cases as 
 these, in which priority is determined by the time of. 
 notice, and the case of equitable interests in land, priority 
 as to which is fixed by the order in time of the incum- 
 brances, and is not affected by notice (k). 
 
 For the reasons above given an assignee of a debt should 
 always promptly give written notice of the assignment to 
 the debtor, since by this means alone can he secure a right 
 in rem to the debt. The assignee can completely protect 
 his security by obtaining a charging order upon the funds, 
 or a transfer of them into Court (l) . If the fund is already 
 in Court the assignee should at once obtain a stop order, 
 or he is liable to be postponed to a subsequent assignee 
 who takes this step before him (m). This has just the 
 same effect as notice to a trustee while the fund is in his 
 hands, and if the fund is paid in after such notice, it is 
 secure, even without a stop order (n). 
 
 3. The assignee of a chose in action, whether it be a 
 debt or a trust fund, generally takes it subject to all 
 equities which affect it as against the assignor. Thus, a 
 bond void as against the assignor does not become valid in 
 the hands of an assignee (o); if the assigned debt is sub- 
 ject to a set-off by the debtor, the assignee is liable to the 
 set-off (p); if the debt is payable only on condition, the 
 
 (0 Sect. 49. Re Styan, 1 Ph. 
 105; 2 M. D. & De G.' 219. 
 
 (/c) Jones V. J., 8 Sim. 633; 
 Wiltshire v. Rabbits. 14 Sim. 76; 
 Tai/lor V. London ^- County Bank, 
 (1901) 2 Ch. 231; 70 L. J. Ch. 
 477. 
 
 (I) See O. XLVI. 
 
 (jni) Ibid. ; Greening v. Beck- 
 ford, 5 Sim. 195; Mutual Life, 
 4ic. Co. V. Langley, 32 Ch. D. 
 
 460; Swayne v. S., 11 Beav. 463; 
 Mack V. Postle, (1894) 2 Ch. 449; 
 63 L. J. Ch. 593. 
 
 (ji) Livesey v. Harding, 23 
 Beav. 141; Thompson v. Tom- 
 kins. 2 Dr. & Sm. 8; Re Holmes, 
 29 Ch. D. 786. 
 
 (o) Turton v. Benson, 1 P. 
 Wms. 496. 
 
 {;p) Exp. Mackenzie, 7 Eq. 
 240; Cavendish v. Greaves, 24
 
 ASSIGNMENT OF POSSIBILITIES AND CHOSES IN ACTION. 387 
 
 condition is binding on the assignee (q); and generally, 
 the assignee takes subject to the state of accounts between 
 the assignor and the debtor (r). Similarly, an assignee 
 of a legacy or residue, though for value and without 
 notice, takes subject to the testator's debts (s). 
 
 There are, however, two classes of exceptions to this except in case 
 rule. First, as to negotiable instruments, such as bills of instrmnentH, 
 exchange, which, on grounds of commercial convenience 
 or necessity, carry with them a title free from any equities 
 or cross-claims as between the parties thereto (t). On 
 similar grounds, indorsed bills of lading (m) and deben- 
 tures and railway bonds payable to bearer (x) have been 
 similarly treated. Bills of exchange indorsed when over- 
 due are not, however, within the exception (y). 
 
 Secondly, equities affecting the chose in action may be or of lockes. 
 lost by the release, either express or implied, of the person 
 entitled thereto (0); or by his neglect to enforce them 
 against the assignee. Enjoyment undisturbed for a con- 
 siderable lapse of time always tends to strengthen the 
 position of the assignee (a). 
 
 4. The law^astothe assignment of choscs in action has Jud. Act, 
 been placed on a different footing by the Judicature Act, ^" ^^' *'"^"^-6- 
 1873. It is therebj^ enacted (6) that "Any absolute 
 " assignment by writing 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 
 
 Beav. 163, 173; Duering v. B., (x) In re Blakely Ordnance 
 
 42 Ch. D. 128; 58 L. J. Ch. 553. Co., 3 Ch. 154; V enables v. Baring 
 
 See Stoddart v. Union Trust, Bros., (1892) 3 Ch. 527; 61 L.J, 
 
 Lim., (1912) 1 K. B. 181; 81 Ch. 609. 
 L. J. K. B. 140. (y) Holmes v. Kidd, 3 H. & 
 
 iq) Tooth V. Eallett, 4 Ch. 242. N. 891. 
 
 (r) Ord V. White, 3 Beav. 357; (s) In re Northern Assam Tea 
 
 Holt V. White, 31 ib. 520. . Co., 10 Eq. 458; In re Agra, ^c. 
 
 (s) Hooper v. Smart, 1 Ch. D. 'Bank, 2 Ch. 391. 
 ■90. («) Hill V. Caillovel, 1 Ves. sr. 
 
 it) Exp. City Bank, 3 Ch. 758; 122; Exp. Charley, 11 Eq. 157. 
 Bence v. Sherman, (1898) 2 Ch. {b) 36 & 37 Viot. c. 66, s. 25, 
 
 o82; 67 L. J. Ch. 513. sub-s. 6. See Torkington v. 
 
 (m) Chartered Bank, %c. v. Magee, (1902) 2 K. B. 427; 
 
 Henderson, L. R. 5 P. C. 501. (1903) 1 K. B. 644; 71 L. J. 
 
 K. B. 712; 72 ib. 336. 
 
 25 (2)
 
 888 MORTGAGES AND SALES. 
 
 " 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 shall 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 
 " the 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 a power to give a good discharge for the same 
 " without the concurrence of the assignor." 
 
 Effect of. It is only necessary with respect to this to observe 
 
 that — 
 
 (1.) It applies only to absolute assignments, which must 
 be of a definite and ascertained amount (c), and it doeg. 
 not authorise the assignment of a part of a debt {d) . The 
 assignee of a debt by way of charge cannot sue at law (e) . 
 But a mortgage of debts made in the ordinary form, with 
 a proviso for redemption upon repayment to the mort- 
 gagor, has been held to be an absolute assignment within 
 the Act (/) . 
 
 (2.) It applies only to legal choses in action. Equitable 
 choses in action, whether absolute or by way of charge, 
 are unaffected by this section, and if assigned can be sued 
 for in all Courts, the assignor and assignee being before 
 the Court. 
 
 (-3.) Express notice in writing of the assignment must 
 
 {c) Jones V. Humphreys, (l^Q2) Bank v. Evans, (1899) 2 Q. 15. 
 
 1 K. B. 10. 613; 68 L. J. Q. B. 921. 
 
 {d) Forster v. Baher, (1910) (/) Tancred v. Delagoa Bai; 
 
 2 K. B. 636; 79 L. J. K. B. 664; R., 23 Q. B. D. 239; 58 L. J. 
 overruling Skipper v. Holloway, Q. B. 459; Durham v. Robertson . 
 ibid. 630; 79 L. J. K. B. 91; sup.; Comfort v. Betts, (1891) 1 
 Conlan \. Carlo w County Council, Q. B. 737; 60 L. J. Q. B. 656; 
 (1912) 2 Ir. R. K. B. D. Fitzroy v. Cave, (1905) 2 K. B. 
 
 (e) National Prov. Bank v. 364; 74 L. J. K. B. 829; and 
 
 Harle, 6 Q. B. D. 626; Durham see Jluf/hes v. Pump, ^c. Co., 
 
 V. Robertson, (1898) 1 Q. B. 765; (1902) 2 K. B. 190. 
 67 L. J. Q. B. 484; Mercantile
 
 ASSIGNMENT OF POSSIBILITIES AND CHOSES IN ACTION. 389 
 
 have beoii given by the assignor. Previous, however, to 
 this Act an oral assignment of a legal chose in action was 
 valid in equity, and will now be regarded valid in all 
 Courts, the mode of transfer under the Act not being 
 compulsory {g) . 
 
 5. This is a convenient place in which to comment on Illegal 
 certain assignments similar to those just now considered, '*^^^^™®° "• 
 but which are on grounds of public policy deemed void 
 both at law and in equity. 
 
 {l.j PiMisions and salaries payable to public officers are Pensions, &c. 
 considered as given for maintaining the dignity of their 
 offices, and for securing the proper discharge of the duties 
 thereof. Effect will not, therefore, be given to an attempted 
 assignment of such pensions or salaries. Within this 
 principle fall the pay of a military officer (Ji), of a clerk of 
 the peace (^), of a judge (fc), and in fact the emoluments 
 of any public office (?).. Alimony is likewise not assign- 
 able (m), nor old age pensions arising under 8 Edw. 'VII. 
 c. 40 (w). 
 
 Where, however, no particular service is to be rendered What pen- 
 , , , . . c ■ , I • • sions are 
 
 to the public, an assignment oi an interest or pension is assignable, 
 valid. Thus prize money was held assignable (o); so also 
 the pension of a County Court Judge for past services (p), 
 and civil service pensions generally (g) . 
 
 {g) See Benny v. Conklin, Civil Service pensions, Knill v. 
 
 <1913) 3 K. B. 177; 82 L. J. Bumergue, (1911) 2 Ch. 199; 80 
 
 K. B. 953. L. J. Ch. 708. 
 
 (/;) Stone v. Lidderdale, 2 (»*) Re Robinson, 27 Ch. D. 
 
 Anstr. 533; Crowe v. Price, 22 160; 53 L. J. Ch. 986; Watkim 
 
 Q. B. D. 429; 58 L. J. Q. B. v. W., (1896) P. 222; 65 L. J. 
 
 215; Apthorpe v. A., 12 P. D. P. 75. 
 
 192. in) S. 6. 
 
 (i) Palmer \. Bate, QM-OO.^^; (o) Alexander v. B. of Wei- 
 ll Br. & B. 673. lington, 2 R. & M. 35. 
 
 {k) Arhuthnot v. Norton, 5 Qp) Willcock v. Terrell, 3 Ex. 
 
 Moo. P. C. 219. D. 323; Re Ward, (1897) 1 Q. B. 
 
 (I) See 46 Geo. III. c. 69, s. 7; 266; 66 L. J. Q. B. 310. 
 
 47 Geo. III. sess. 2, c. 25, s. 4; {q) Sanson v. S., 4 P. D. 69; 
 
 Bavis V. B. of Marlborough, 1 Knill v. Bumergue, sup. 
 Swanst. 74; and as to Indian.
 
 390 
 
 MORTGAGES AND SALES. 
 
 Champerty 
 and maiu- 
 tenance. 
 
 Purchase 
 
 pendente lite, 
 
 when 
 
 admissible. 
 
 (2.) Public policy, again, is opposed to assignments 
 which partake of the nature of champerty, or main- 
 tenance (r), or the buying of disputed or pretended titles. 
 
 Thus an assignment of a share of prize money, the sub- 
 ject of a then depending miit in the Admiralty Court, in 
 consideration of the assignee paying the costs of the suit, 
 was held void (s); the assignment of a bare right to file a 
 bill in equity was similarly treated (i). 
 
 But in certain cases a purchase or mortgage of an 
 interest pendente lite, or an advance of money for carrying 
 on a suit, is admissible. It is so if the parties have a 
 common interest (m), or if there exists between them the 
 relation of father and son (a?), ancestor and heir {y), or 
 master and servant {z) . The purchase pendente lite of the 
 subject-matter of a suit by an attorney is, however, always 
 invalid {a), unless at least it be by way of security for 
 payment of his costs (&); and the law in this respect is 
 unaffected by 33 & 34 Vict. c. 28, which enabled attorneys 
 and solicitors in certain cases to make agreements with 
 their clients as to remuneration in lieu of costs (c) . A sale 
 which was completed before the purchaser became the 
 vendor's attorney was sustained (<^) . 
 
 The strict rule as to champerty seems to have been 
 sometimes relaxed in special circumstances; for instance, 
 
 (r) Bradlaugh v. Newdegate, 11 
 Q. B. D. 1; James v. Kerr, 40 
 Ch. D. 449; 58 L. J. Ch. 355; 
 Rees V. Be Bernardy, (1896) 2 
 Ch. 437 ; 65 L. J. Ch. 656 ; but see 
 and distinguish Guy v. Churchill, 
 40 Ch. D. 481; 58 L. J. Ch. 345; 
 Holden v. Thompson, (1907) 2 
 K. B. 489; 76 L. J. K. B. 889. 
 
 (s) Stevens v. Bagwell, 15 Ves. 
 139; and see Glegg v. Bromley, 
 (1912) 3 K. B. 474; 81 L. J. 
 K. B. 1081. 
 
 {€) Prosser v. Edmonds, 1 Y. & 
 C. Ex. 481 ; Powell v. Knowles, 2 
 Atk. 226; Hill v. Boyle, 4 Eq. 
 
 260, 263; In re Paris Skating 
 Rink Co., 5 Oh. D. 959. 
 
 (m) Hunter v. Daniel, 4 Ha. 
 420; Guy v. Churchill, sup. 
 
 {x) Burke v. Greene, 2 Ba. & 
 B. 521. 
 
 (y) Moore v. Fisher, 7 Sim. 384. 
 
 (z) Wallis V. D. of Portland, 
 3 Ves. 503. 
 
 («) Simpson V. Lamb, 7 E. & 
 B. 84. 
 
 (6) Anderson v. Radcliffe, 6 
 Jur. N. S. 578. 
 
 (o) In re Att. ^ Sol. Act, 1870, 
 1 Ch. D. 573. 
 
 (d) Davis v. Freethy, 24 Q. B. 
 D. 519; 59 L,. J. Q. B. 318.
 
 ASSIGNMENT OF POSSIBILITIES AND CHOSES IN ACTION. 391 
 
 the assignment of a legacy by a person too poor to sue for 
 it, to another, who sought to enforce payment by suit, was 
 upheld (e). And it is to be observed that a person who 
 has originally a good title to sue will not lose it by 
 entering into a bargain tainted with champerty (/) . 
 
 (e) Tyson v. Jackson, 30 Beav. (/) Hilton v. Woods, 4 Eq. 
 
 384; Harris v. Brlsoo, 17 Q. B. 432. 
 D. 504; 55 L. J. Q. B. 423.
 
 •^^2 SURETYSHIP. 
 
 CHAPTEE VI. 
 
 SURETYSHIP. 
 
 I. Contrast between Legal and Equitable Doctrines. 
 II. General Prmciples of Equity as to Suretyship. 
 
 1. In the for?n<ition of the Contract. 
 
 2. As to subsequent departure from the Terms. 
 III. Releases and Compositions. 
 
 1. As to Debtor. 
 
 2. As to Sureties. 
 
 IV. Continuing Suretyship or Guarantee. 
 
 V. Contribution betiveen Co-sureties. 
 VI. Right of Surety to Securities. 
 
 I. Contrast betiveen Legal and Equitable Doctrines. 
 
 The distinctions which formerly existed between the 
 
 principles of common law and those of equity respecting 
 
 suretyship, may be concisely summarised under the 
 
 following headings : — 
 
 Proof of 1 . Where it did not appear on the face of the instrument 
 
 T^erfno?* creating the suretyship that a person was surety — if, for 
 
 apparent on instance, in a bond the principal debtor and surety were 
 
 the face of the ,.., ., n,i ii ,7 
 
 instrument. Dound jointly and severally — the surety could not, at Law, 
 aver by pleading that he was bound only as a surety, nor 
 was parol evidence admissible to prove it (a) . But in 
 
 (ff) Lpwis V. Jones, 4 B. & C. 506.
 
 CONTliA.ST 15ETWEEN l.KGAL AND KQUITAHLK DOCTRINES. 393 
 
 equity, although thoy both appeurod as principals, parol 
 evidence was always admissible to show that one was only 
 a surety (b). The oonscquenoe was that upon the creditor 
 giving further time to the principal debtor, knowing him 
 to be such, the surety, upon proving that fact, might have 
 relief in equity, although at law, where he appeared only 
 as principal, he would formerly have been held bound (c). 
 When equitable pleas became available to common law 
 this distinction disappeared («?) . 
 
 2 . In general an Oibligation created by an instrument Release of 
 could at law only be dissolved by one of equal force. Thus, under deed.*, 
 time given by a mere parol agreement, although for valu- 
 able consideration, would not at law have discharged a 
 surety whose obligation arose from an instrument under 
 seal (e), or by matter of record, such as a recognisance (/). 
 In equity, however, this rule of law was disregarded; and 
 as "what is agreed to be done is looked upon as done,'' 
 relief is in such cases given {g) . Coaivcrseh', by the opera- Conversely, 
 tion of the same rule, a principal creditor might have been e^ntinuing 
 held at law to have released a suret}^, where in equity the liable after 
 surety w^ould still be considered liable — for instance, where 
 the creditor had by deed, with the parol consent only of 
 the surety, released the principal debtor {li) . 
 
 3. The general principle of contribution between sure- rrinciples of 
 ties at law originally rested on the ground only of an ^t^iaw." 
 express contract between the parties. Subsequently juris- 
 diction wats assumed to compel contribution in the absence 
 of positive contract, on the ground of implied assumpsit. 
 But though this assumption approached the equitable 
 principle of dealing with such cases, since it was held that 
 
 (6) Clarke v. Hentij, 3 Y. & C. B. & Aid. 187. 
 
 Ex. 187. (/) Bulteel v. Jarrold, 8 Price, 
 
 (c) Crayihorne v. S'winburne, 4^67. 
 
 14 Ves. 160, 170. {;/) Boivmaher v. Moore, 3 
 
 {d) Pooley v. Harradine, 7 E. Price, 214. 
 
 & B. 431. (A) Brooks v. Stuart, 1 Beav. 
 
 (e) Davey v. Prenderyrass, 5 512.
 
 394 
 
 SURETYSHIP. 
 
 separate actions might be brouglit against the sureties 
 for their respective quotas and proportions, there was great 
 inconvenience in working out the legal remedy where the 
 sureties were numerous. Henoe the equitable relief by 
 bill for contribution remained the best mode which could 
 be resorted to. 
 
 Insolvency 
 of one or more 
 sureties : 
 
 or death. 
 
 4. Where there were several sureties, and one became 
 insolvent, a surety who paid the entire debt could at law 
 have recovered only an aliquot part of the whole, calculated 
 according to the original number of the co-sureties (^) . In 
 equity he could compel the remaining sureties to contribute 
 equally with himself (h) . Thus if there were three sureties,. 
 one of whom became insolvent, and one of the remaining 
 two paid the entire debt, at law he could only recover one- 
 third from the remaining solvent surety; in equity he 
 could recover one-balf . 
 
 So, also, if one of several co-sureties died, at law an 
 action only lay against the surviving sureties for their 
 proportions; but in equity contribution could be enforced 
 also against the representatives of the deceased surety (I). 
 
 It was owing to the imperfection of the legal remedy in 
 these and other respects, which will be hereafter noticed,, 
 that the jurisdiction of equity in matters of suretyship 
 arose; and being once established, it was not affected by 
 the subsequently extended jurisdiction of the Courts of 
 law. Cases of suretyship, therefore, continue to come 
 chiefly under the cognizance of the Chancery Division of 
 the High Court. 
 
 (i) Cowell V. Edwards, 2 B. & 
 P. 268. See Lowe v. Bixon, 16 
 Q. B. D. 455. 
 
 (A;) Hitchman v. Stewart, 3 
 
 Drew. 271. 
 
 (I) Simpson v. Vaughan, 2 
 Atk. 31; Batard v. Hawes, 2 E. 
 & B. 287.
 
 GENERAL PRINCIPLES OF EQUITY. 395 
 
 II. The General Principles of Equity respecting Surety- 
 ship. 
 
 1. As to the original forrroation of the contract. 
 
 The intimate nature of the relation between the parties utmost good 
 to the contract of suretyship requires that the utmost good faith required. 
 faith should be adhered to by them; and though it has 
 been held that the obligation to disclose all material facts 
 is not in this case so strict as in contracts between solicitor 
 and client, and in contracts of partnership and of insur- 
 ance, nevertheless, very little said which ought not to have 
 been said, and very little omitted which ought to have 
 been said, w^ill suffice to avoid the contract (m). When- 
 ever there is, with the knowledge and assent of the creditor, 
 any undue advantage taken of the surety, as by conceal- 
 ment or surprise, the contract will be considered invalid, 
 and the surety discharged from liability. 
 
 It is impossible to lay down in general terms any rule what cou- 
 by which to determine what degree of concealment or mis- c^^lment 
 
 "^ . . ^ _ _ annuls the 
 
 representation is necessary to annul the obligation of the obligation. 
 contract. Equity has always been reluctant to formulate 
 definitions on such subjects, lest, having done so, its juris- 
 diction should be eluded by new schemes of man's in- 
 genuity. Some guidance is, however, afforded by the well- 
 authorised statement that " if a party taking a guarantee 
 " from a surety conceals from him facts which go to in- 
 " crease his risks, and suffers him to enter into the contract 
 " under false impressions as to the real state of facts, such 
 " concealment will amount to fraud " (w). But this broad 
 statement is, in fact, subject to certain limitations, since it 
 has been held that the true criterion as to whether any dis- 
 closure ought to be made voluntarily is to inquire whether 
 there was anything which might not naturally have been 
 
 (w) Davies v. London and Prov. 631. 
 Marine Insoe. Co., 8 Ch. D. 469; (w) Story's Eq. Jur. s. 215; 
 
 N. B. Insce. Co. v. Lloyd, 10 see London General Omnibiis Co. 
 
 Exch. 523; Seaton v. Burnand, v. Holloway, (1912) 2 K. B. 372; 
 
 (1900) A. C. 135; 68 L. J. Q. B. 81 L. J. K. B. 603.
 
 39 fi 
 
 SUKETYSHIP. 
 
 expected to have lakeu place between the parties; that is, 
 whether there was a contract between the debtor and 
 creditor to the effect that his position should be different 
 from that which the surety might naturally expect (o) . 
 Private A. surety is entitled to be informed of any private 
 
 increasiiifr the bargain between a vendor and vendee, being a part of the 
 responsibility, immediate transaction, which can in any way increase his 
 responsibility (p) ; and, moreover, if there are any circum- 
 stances which afford ground for suspecting that fraud is 
 being practised upon the surety by the debtor, the creditor 
 cannot shelter himself under tlie plea that he was not called 
 upon to ask, and did not ask, any questions on the subject. 
 In such cases wdlful ignorance is not to be distinguished 
 in its equitable consequences from knowledge (g) . 
 
 The rights of a creditor against a surety are regulated 
 by the terms of the contract. The nature, extent and 
 duration of the obligation depend upon the construction 
 of the agreement, which the Court will not reform on 
 mere presumption of mistake (r) . 
 
 General rule 
 
 as to giving 
 
 time. 
 
 Ree.y v. Ber- 
 
 rington. 
 
 2. Effects of stibsequent depurture from the terms of 
 the contract. 
 
 (1.) Giving time to the debtor. 
 
 The case of Rees v. B er ring ton (s) is a leading autho- 
 rity for the general proposition that if a creditor, without 
 the assent or knowledge of the surety, agrees to give to the 
 principal debtor a longer time than was specified in the 
 contract to which the surety was party, he thereby loses 
 his claim against the surety (t). The cases, however, show 
 
 (o) Hamilton v. Watson, 12 CI. 
 & F. 109; Wythes v. Labouchere, 
 3 De G. & J. 593; Nat. Prov. 
 Bk. V. Glanask, (1913) 3 K. B. 
 335; 82 L. J. K. B. 1033. 
 
 (jo) Pidcock V. Bishop, 3 B. & 
 C. 605. 
 
 (f7) Owen v. Tloman, 4l H. L. 
 997; Maitlund v. Irving, 15 Sim. 
 
 437. 
 
 (r) Rmvstone v. Parr, 3 Russ. 
 424, 539; Lloyds v. Harper, 16 
 Ch. D. 290; Re Sass, (1896) 2 
 Q. B. 12; 65 L. J. Q. B. 481. 
 
 (s) 2 Ves. jr. 540; 2 W. & T, 
 L. C. 568, ed. 7. 
 
 (0 See also Nisbet v. Smith, 2 
 Bro C. C. 579.
 
 GENERAL PRINCIPLES OF EQUITY. •i^^'' 
 
 that in the application of this principle many circumstances 
 must be considered. 
 
 A merely passive attitude on the part of the creditor — Mere passive- 
 for instance, his not taking proceedings against the debtor sufficient, 
 • — will not, in the absence of a binding stipulation in the 
 contract of suretyship requiring activity and promptness 
 on his part, release the surety. He himself must use 
 diligence (w) . If there be a stipulation that on default unless there 
 the creditor is to sue without delay, then failure to do so Htipulatmtrtu 
 will discharge the surety (a?). In Rees v. Berrington the that effect. 
 creditor was not merely passive, but, without the surety's 
 consent, entered into a binding contract to give further 
 time. In such a case it is immaterial that the delay is 
 given in consequence of the debtor's inability to pay, or 
 that no injury could thereby accrue to the surety. The Surety need 
 surety is not required to prove damage. If there is a ^a^age^^ 
 default he is entitled to be consulted as to what steps shall 
 be taken {y) . Where a surety for a mortgage debt charged 
 property of his own as collateral security, and the mort- 
 gagee without the surety's knowledge gave time to the 
 debtor, both the personal liability and the property of the 
 surety were held to be discharged {z) . The contract of 
 suretyship may of course be so expressed as to exclude the 
 operation of the principle {a) . 
 
 A isuretj' will not be discharged if time is given to Time given 
 the principal debtor with his consent or subsequent ^nsent. 
 approval (6); and a subsequent promise to pay the debt 
 will revive a liabilit}- which might otherwise have been 
 discharged (c) . 
 
 (m) Eyre v. Everett, 2 Russ. (1891) 2 Ch. 48; 60 L. J. Ch. 
 
 381. 239. 
 
 (a;) B. of Ireland v. Beresford, («) Greenwood v. Francis, 
 
 6 Dow, 233. (1899) 1 Q. B. 312; 68 L. J. 
 
 (y) Samuel v. Howarth,^ ]\Ier. Q. B. 228. 
 
 272; Latham v. Cluirtered Bank (b) Tyson v. C'ox,T. &R. 395; 
 
 of India, 17 Eq. 205. Duffy v. Orr, 5 BU. N. S. 620; 
 
 (s) Bolton V. Buckcnham, Jioutie v. Bradford Bank, (1894) 
 
 (1891) 1 Q. B. 278; 60 L. J. A. C. 586; 63 L. J. Ch. 890. 
 
 Q. B. 261; Bolton v. Salmon, (e) Mayhem v. Cricketf, 2 
 
 Swanst. 185, 192.
 
 398 
 
 SURETYSHIP. 
 
 The agree- 
 ment to give 
 time must 
 bind the 
 creditor. 
 
 Surety's 
 rights must 
 be aifeoted. 
 
 Surety not 
 released by 
 dealings after 
 judgment ; 
 
 nor if the 
 rights against 
 the surety are 
 reserved . 
 
 An agreement with the debtor to give him further time 
 will not discharge the surety unless it is binding upon 
 the creditor. A mere voluntary promise which is not acted 
 upon, and which cannot be enforced, will not have that 
 effect (d); nor will an agreement with a third person, 
 e.g., a co-surety (e); nor will an agreement which is con- 
 ditional upon the performance of an act which in the 
 event the debtor does not perform (/) . 
 
 A surety will not be discharged by the creditor giving 
 time, if the remedies of the surety are not diminished or 
 affected, a fortiori if they are accelerated {g). 
 
 It iseems that when a creditor has obtained a judgment 
 against the surety, no subsequent dealings giving time to 
 the debtor will have the effect of releasing the surety. His 
 liability in fact no longer rests on his suretyship, but on 
 the judgment {li), and he is in the position of a principal 
 debtor. 
 
 Nor will the surety be discharged if the creditor, on 
 giving further time to the principal debtor, reserves his 
 right to proceed against the surety; and it is immaterial 
 whether the surety is informed of the arrangement or not. 
 The reason is, that when the right is reserved, the principal 
 debtor cannot say that it is inconsistent with giving him 
 time that the creditor should be at liberty to proceed 
 against the sureties, and that they should turn round 
 upon the principal debtor, notwithstanding the time so 
 given him; for he was a party to the arrangement by 
 which that right was reserved to the creditor (^) . It is 
 evident that in such a case, notwithstanding the time 
 given to the principal debtor by the creditor, if the creditor 
 
 {d) Philpot V. Briant, 4 Bing. 
 717; Tucker v. Laing, 2 K. & J. 
 745. 
 
 (e) Clarice v. Birley, 41 Ch. D. 
 422; 58 L. J. Ch. 616. 
 
 (/) Badnal v. SamueU, 3 Price, 
 521. 
 
 (<7) Hulme v. Coles, 2 Sim. 12; 
 Petty V. Coohe, L. E. 6 Q. B. 
 
 790. 
 
 (A) Jenkins v. Robertson, 2 
 Drew. 351; followed in Re a 
 Debtor, (1913) 3 K. B. 11; 82 
 L. J. K. B. 907; Reade v. 
 Loivndes, 23 Beav. 361. 
 
 (0 Webb v. Hewitt, 3 K. & J. 
 442; Boultbee v. Stubbs, 18 Ves. 
 20.
 
 GENERAL PKINCIPLES OF EQUITY. 399 
 
 at once proooeds against the surety, the surety may forth- 
 with proceed in his turn against the debtor, and so the 
 benefit of the extended time may not in effect be realised 
 hj him; but of this he cannot complain. The right of 
 the surety against the principal debtor can only be lost 
 by the surety's contract to abandon it (fc). 
 
 Though a surety cannot compel the creditor to proceed 
 against the debtor, yet if he apprehends loss from the delay 
 of the creditor to sue the principal debtor, he may sue in 
 equity quia timet to compel the debtor to discharge the 
 debt (I). This has been questioned (m), but the principle 
 seems well established by more recent cases (n) . Of course, 
 the surety may himself discharge the debt, and forthwith 
 proceed against the debtor for recovery of the money. 
 
 Where a contract is divisible — as, for instance, where r)i visible 
 
 , , n 1 • 1 • o coutract. 
 
 successive payments are to be made at nxed periods — ii 
 the creditor contracts to give time as to one of such pay- 
 ments, he will release the surety as to that payment only, 
 not as to subsequent payments (o) . 
 
 (2.) Giving time to the surety. 
 
 Under this heading may be conveniently mentioned the Griving time 
 analogous case in which the holder of a security agrees 
 with the principal debtor to give time to the surety. It 
 has been held that to do so effects the discharge of the 
 surety (p) . It was considered that this was a stronger 
 case than an agreement to give time to the principal, 
 which only implied an agreement not to sue the surety; 
 but an express agreement not to sue the surety prevents 
 
 (k) Close V. C, 4 De G. M. & (w) Re Snoivdon, 17 Ch. D. 
 
 G. 176; Ascheron v. Tredecjar, 44; 50 L. J. Ch. 540; Wolmers- 
 
 ^■c. Co., (1909) 2 Ch. 401;' 78 hausen v. Gullich, (1893) 2 Ch. 
 
 L. J. Ch. 697. 514; 62 L. J. Ch. 773; Dc Colyar 
 
 (J) Ranelaughv. HayeSylYeTTX. on Guarantees, p. 300. 
 
 189; Wright v. Shnpson, 6 Ves. (o) Croydon Gas Co. v. Dickin- 
 
 734; Wooldridge v. Norris, 6 Eq. son, 2 C. P. D. 46. 
 
 410, inf. p. 805. {p) Oriental, ^c. Corp. v. 
 
 (m) See Lloyd v. BimmaoJc, 7 Overend, Gurney ^ Co., 7 Ch. 
 
 Ch. D. 398; Hughes-Hallett v. 142, per Lord Hatherley, p. 152; 
 
 Indian, ^c. Co., 22 ib. 561; 52 Bee S.C., L. E. 7 H. L. 349. 
 L,. J. Ch. 418.
 
 400 
 
 SURETYSHIP. 
 
 Departures 
 
 from the 
 
 contract 
 
 generally 
 
 release 
 
 sureties. 
 
 Illustrations. 
 
 the creditor from doing that whicli would throw the surety 
 upon the principal. But if the creditor by separate con- 
 tract with the surety himself gives him time, the surety is 
 not thereby discharged (q) . 
 
 (3.) Other variations in the contract. 
 
 Where there is in the contract between the principal 
 debtor and the creditor a departure from that which the 
 surety stipulated for and contemplated when he entered 
 into the obligation, the surety will, as a general rule, be 
 released (r) . 
 
 Thus where a person had agreed to become surety for 
 another in a joint and several bond to A. and B. upon 
 having a counter-bond from A. and C. to indemnify him, 
 and the first bond was executed by the surety only, A. 
 and B. having neglected to procure the signature of the 
 principal, it was held that the surety was not bound, 
 though he received the bond of indemnity from A. and C. 
 The surety had a material interest in the extent of the 
 rights and remedies of the creditor against the principal 
 debtor; and these being different from what he contem- 
 plated and contracted for, there was no claim against 
 him (.§) . But if in such circumstances the principal debtor 
 had executed some other instrument on which the surety 
 might sue him and become his specialty creditor, he would 
 have remained bound (^). 
 
 So where a surety executed a deed prepared by the 
 creditor which appeared to contain a joint and several 
 covenant by two co-sureties, but no other signature was 
 provided by the creditor as co-surety, the surety who 
 signed was discharged (u) . 
 
 Where a person gave a promissory note as surety, upon 
 an agreement that the amount should be advanced to the 
 
 (q) Defries v. Smith, 10 W. E. 
 189. 
 
 (r) Bonser v. Cox, 4 JBeav. 
 379; 6 *&. 110. 
 
 (.s) Ibid.; Calvert v. London 
 Dock Go.,1 Keen, 638; Ellesmere 
 
 Breivery v. Cooper, (189G) 1 Q. 
 B. 75; 65 L. J. Q. B. 173. 
 
 {f) Cooper V. Evans, 4 Eq. -45. 
 
 (m) Evans v. Bretnridr/e, 2 K. 
 & -T. 174: 8 DeG. M. &'G. 101.
 
 GENERAL PRINCIPLES OF EQUITY. 401 
 
 principal debtor by draft at three months, and the creditor, 
 without the concurrence of the surety, paid the amount at 
 once, the surety was discharged, on the ground of the 
 variation of the agreement (x) . Where persons agreed to 
 becomes sureties for a contractor who was undertaking 
 certain works, and the contract was that three-fourths of 
 the work, as finished, should be paid for periodically and 
 the remainder upon completion, payments having been 
 made exceeding three-fourths of the w'ork done, the 
 sureties were released (?/). The dealing with a security 
 for a debt in a due course of management, as by selling 
 mo.rtgaged property, though without the knowledge of the 
 surety, will not release him (z) . 
 
 Where, as in Bering v. E. of Winchelsea (a), there is 
 a bond of suretyship for the fidelity of an officer, and the 
 nature of the office or its duties are materially changed 
 so as to affect the peril of the sureties, the bond will be 
 avoided (b). It is necessary, however, that the alteration 
 should be such as materially to affect the surety (c) . And 
 if the change in liability is introduced by the fraud of 
 the person whose fidelity is guaranteed the surety is not 
 discharged (d) . It may also be that the wording of the 
 bond is extensive enough to continue the liability notwith- 
 standing a material change (e) . 
 
 Where a creditor takes a second security in satisfaction 
 of the first, the surety is discharged (/) . But the taking 
 of an additional security not in lieu of the former one has 
 no such effect (g) . 
 
 (x) Bonser v. Cox, sup. 8 Eq. Ex. 73; Skillett v. Fletcher, 
 
 (J) Calvert v. London Bock L. R. 1 C. P. 217. 
 
 Co., sup.; Exp. Riishforth, 10 (cl) Mayor of Kingston v. 
 
 Ves. 409. Harding, (1892) 2 Q. B. 494; 62 
 
 (z) Taylor v. Bank of N. S. W., L. J. Q. B. 55. 
 
 11 App. Cas. 596; 55 L. J. P. O. (e) Oswald v. M. of Berwick, 
 
 47. 5 H. L. 856. 
 
 (a) 1 Cox, 318. (/) Clarke v. Henty, 3 Y. & C. 
 
 (b) Bonar v. Macdonald, 3 Ex. 187. See Sivire v. Redman, 
 H. L. 226. 1 Q. B. D. 586. 
 
 (c) Sanderson v. Aston, L. R. {g) Gordon v. Calvert, 4 Russ. 
 
 681. 
 
 s. 26
 
 402 
 
 SUKE'ITSHIP. 
 
 Release or 
 composition 
 discharges 
 surety, unless 
 surety concurs 
 or the 
 contrary is 
 stipulated, or 
 surety has 
 already 
 partially paid 
 the debt. 
 
 or surety has 
 converted 
 himself into 
 the principal 
 debtor. 
 
 Right against 
 surety cannot 
 be reserved 
 after absolute 
 release. 
 Secus, in case 
 of a covenant 
 not to sue. 
 
 III. The Effects of Releases cmd Comp'Ositions. 
 1 . Release of, or composition Kith, the debtor . 
 
 Where a creditor releases, or eorapounds with the prin- 
 cipal debtor, without the concurrence of the surety, and 
 although it may be done by mistake or for the benefit of 
 the surety, he will thereby discharge the surety urdess 
 there is a stipulation to the contrary (Ji) . It would be a 
 manifest fraud on the debtor to profess to release him, and 
 then to sue the surety, who could forthwith sue the 
 debtor (i) . If, however, the surety has, previously to the 
 release given to the debtor, paid part of the debt and 
 given security for the remainder, the general rule will not 
 apply. The liability of the surety will then rest on the 
 security given, rather than on the original contract, and 
 will remain in force (fc) . 
 
 A surety may, by further contract with the creditor, 
 convert himself, in relation to the debt for which he was 
 surety, into a principal debtor; and then, upon a release 
 being given to the party who was in the first instance the 
 principal, he will lose the benefit of the doctrine that the 
 release of the principal releases the surety (Z) . 
 
 A creditor, if he has given an absolute legal or equitable 
 release for a debt, cannot reserve his right to proceed 
 against the sureties (m) . Where, however, a release can 
 be construed as a covenant not to sue, a reservation of 
 remedies against the sureties is admissible . The covenant 
 operates only so far as the rights of the surety are not 
 affected; and since the surety remains liable, he retains 
 his remedies over against the principal debtor {n) . The 
 
 (A) Exp. Smith. 3 Bro. C. C. 
 1; Davidson v. MacGregor, 8 M. 
 & W. 755; Cragoe v. Jones, L. R. 
 8 Ex. 81. 
 
 (0 Nevill's Case, 6 Ch. 47; 
 Taxmania Bank v. Jones, (1893) 
 A. C. 313; 62 L. J. P. C. 104; 
 distinguished in Perry v. N. P. 
 Bk. of England, (1910) 1 Ch. 
 
 464; 79 L. J. Ch. 509. 
 
 (k) Hall v. Eutchons, 3 My. & 
 K. 426. 
 
 (I) Read v. Loivndes, 23 Beav. 
 361. 
 
 (»2) Nicholson v. Rei'ill, 4 Ad. 
 & E. 675; Webb v. Hewitt, 3 K. 
 & J. 438. 
 
 (w) Bateson v. Gosling, L. R.
 
 THE EFFEC'J'S OF KELEASEH AND COMPOSITIONS. 40^^ 
 
 novation of the principal debt effects a release of the 
 original debtor, and therefore of his surety (o). Where by 
 operation of law a principal debtor is released, as, for 
 instance, where a joint-stock company is reconstructed 
 under a scheme of arrangement, the sureties are not 
 thereby released (p). 
 
 2. Release of, or composition ivith, one of two or more 
 co-sureties. 
 
 It is a settled principle that the release or discharge of Release of 
 •one surety by a creditor operates as a discharge of the dil^har^e"s 
 others, and this notwithstanding that it arises from a others; 
 mistake of law {q). 
 
 It has, however, been held in equity that a mere compo- not so com- 
 eition with one of the sureties would not have that effect, * 
 
 and that at the same time the remedy against the co- 
 surety might be expressly reserved (r). In such cases the 
 co-surety is not damnified; for the creditor, by giving a 
 discharge to one surety for the proportion which he was 
 liable to contribute towards payment of the debt, has no 
 right to proceed against the other sureties for more than 
 their proportion of it (s). 
 
 If in this case, also, the release can be construed as a. nor a cove- 
 
 , , , 'i. ni i. i. T 1 nan t not to 
 
 mere covenant not to sue, it will not operate as a discharge g^g 
 of the co-sureties {t). And if the sureties contract seve- 
 rally, the release of one does not discharge the other (u), 
 
 7 C. P. 9; Ballet/ v. Edwards, 4 Sydney v. Taylor, (1893) A. C. 
 
 B. & S. 774; Green v. Wynn, 4 317; Re E. W. A. (a Debtor), 
 
 Ch. 204; Wyke v. Rogers, 1 De (1901) 2 K. B. 642; 70 L. J. 
 
 G. M. & G. 408. K. B. 810. 
 
 (o) Tasmania Bank v. Jones, (r) Exp. Gifford, 6 Ves. 805. 
 
 sup.; Head v. H., (1894) 2 Ch. (s) Stirling v. Forrester, 3 
 
 236; 63 L. J. Ch. 549. Bligh, 591. 
 
 (T?) Re English, ^c. Chartered (<) Price v. Barker, 4 E. & B. 
 
 Bank, (1893) 3 Ch. 385; 62 L. J. 760; Thompson v. Lack, 3 C. B. 
 
 Ch. 825; Bane v. Mortgage Corp., 540, 552. 
 
 (1894) 1 Q. B. 54; 63 L. J. Q. B. (m) Ward v. Nat. Bank of Neio 
 
 144. Zealand, 8 App. Cas. 755; 52 
 
 (^q) Cheetham v. Ward, 1 B. & L. J. P. C. 65; and see Wegg- 
 
 P. 633; Nicholson v. Revill, 4 Prosser v. Evans, (1895) 1 Q. B. 
 
 Ad. & E. 675; Merc. Bank of 108; 64 L. J. Q. B. 1. 
 
 26 (2)
 
 404 
 
 SURETYSHIP. 
 
 unless the sureties' right to contribution has been lost or 
 injuriously affected by the creditor's act. 
 
 Gruarantee 
 not revoked 
 by death, but 
 usually 
 revocable 
 before 
 liability 
 incurred. 
 
 Secus, 
 
 guarantee for 
 honesty of 
 servant. 
 
 Master may 
 lose benefit of 
 guarantee by 
 concealment. 
 
 IV. Ccmtmuing Suretyship or Guarantee. 
 
 Cases in which the suretyship is not for a definite debt^ 
 but for a possible but uncertain liability, such as for 
 discounting bills, or for the due performance of certain 
 duties, give rise to special questions, especially with regard 
 to revocation. 
 
 Such contracts are not necessarily revoked by the death 
 of the surety {x) ; whether it be so or not depends on the 
 terms of the instrument {y) . If there are two co-sureties, 
 the death of one does not discharge the survivor from future 
 liability (z) ; but such guarantees are usually revocable at 
 any time before a liability has been incurred in respect 
 thereof (a) ; and they have been treated in equity as 
 revoked when it was the duty of the representatives of the- 
 guarantor, with the knowledge of the creditors to whom 
 the guarantee was given, to have given notice to determine- 
 the same (&). 
 
 A person, however, who by a continuing guarantee 
 becomes surety for the honesty of a servant, cannot ordi- 
 narily, during the continuance of the service, discharge 
 himself by merely giving notice that he will be no longer 
 liable (c). But if the guarantor discovers acts of dis- 
 honesty in the person for whom ho has made himself 
 answerable, he can at once revoke his guarantee (d). 
 
 Where a master, who has in his employ a servant whose 
 conduct has been guaranteed, discovers that the servant 
 
 (a;) Bradbury v. Morgan, 1 H. 
 & C. 249; Lloyd's v. Harper, 16 
 Ch. D. 290; 50 L. J. Ch. 140; 
 Balfour v. Grace, (1902) 1 Ch. 
 733. 
 
 (y) Midland \Ry. Co. v. Sil- 
 vester, (1895) 1 Ch. 573; 64 L. J. 
 Ch. 390. 
 
 (2) Beckett v. Addyman, 9 
 Q. B. D. 783; 51 L. J. Q. B. 597. 
 
 (a) Offord v. Davies, 12 C. B. 
 N. S. 748. But see 31 L. J. 
 Exch. 462. 
 
 {b) Rarriss v. Fawcett, 8 Ch. 
 866. 
 
 (0) Calvert v. Gordon, 7 B. & 
 C. 809; Gordon v. Calvert, 4 
 Russ. 581. 
 
 (d) Burgess v. Eve, 13 Eq. 457;. 
 Lloyd's V. Harper, sup.
 
 CONTRIBUTION BETWEEN CO-SURETIES. 40.5 
 
 lias been guilty of dishonesty, but nevertheless without 
 the knowledge or consent, express or implied, of the 
 guarantor, continues such servant in his employ, he 
 cannot claim anything from the guarantor in respect of 
 subsequent acts of dishonesty (e). But it seems that if in 
 such a case the person suing the guarantor is not in a posi- 
 tion which gives him power to dismiss the employee, the 
 guarantee remains in force (/). 
 
 V. Contribution between Co-sureties. 
 
 In the important case of Bering v. The Earl of Win- Principle of 
 i'helsea (g), it was laid down that the right of contribution ^^^^^itj^^ 
 between the co-sureties depended on the general principles Bering v. E. oj 
 of equity, and not on the form or nature of the contract ^""^^^^*'^^- 
 between the parties. In that case, Thomas Dering, 
 having been appointed collector of Customs duties, entered 
 into bonds to the Crown with three sureties for the due 
 performance of his office. His brother. Sir Edward 
 Dering, together with the Earl of Winchelsea and Sir 
 John Rous, became sureties for him accordingly. Thomas 
 Dering and Sir E. Dering executed one joint and several 
 bond in a penalty of £4,000, Thomas Dering and the 
 Earl of Winchelsea executed another similar bond, and 
 Thomas Dering and Sir John Rous a third, all conditioned 
 31 like upon the due performance by Thomas Dering of his 
 duty as collector. Thomas Dering being in arrear to the 
 Crown to the amount of £3,883 14s. Od., the Crown put 
 the first bond in suit against Sir E. Dering, and obtained 
 judgment thereon for that sum. Thereupon Sir E. Dering. 
 
 (e) Phillips V. Fo.vhall, L. R. Q. B. 409. 
 
 7 Q. B. 666. See M. of Durham (/) Lawder v. L., I. R. 7 C. L. 
 
 V. Fowler, 22 Q. B. D. 394; 58 57. 
 
 L. J. Ch. 246; Seaton v. Bur- {g) 1 Cox, 318; 2 W. & T. 
 
 nartd, (1900) A. C. 135; 69 L. J. L. C. 535, ed. 7.
 
 406 SURETYSHIP. 
 
 filed this bill against the Earl of Winchelsea and Sir John 
 Rous, claiming from them contribution towards the sum 
 80 recovered against him. It was held by Lord Chief 
 Baron Eyre that there must be equal contribution by the 
 defendants. Notwithstanding that the parties were bound 
 in different instruments, they were co-sureties for the 
 same principal, and in the same engagement, and were 
 bound in conscience to contribute proportionally to the 
 penalties of the bonds. In that case the penalties wexe 
 equal, but the principle would have been the same if they 
 were bound in different sums, except that contribution in 
 that case could not be required beyond the sum for which 
 they had become bound Qi), and moreover the contribution 
 in that case would not be equal but proportionate to their 
 respective liabilities (^). 
 
 In Stirling v. Forrester (k), Lord Redesdale again held 
 that the right and duty of contribution was founded in 
 doctrines of equity; that the principle was the same as in 
 cases of average, and that it would be against equity for 
 a creditor to exact or receive payment from one, and to 
 permit, or by his conduct to cause, the other debtors to be 
 exempt from payment; he was bound, seldom by contract, 
 but always in conscience, as far as he was able, to put the 
 party paying the debt upon the same footing with those 
 who were equally bound. The principle may now, there- 
 fore, be considered as firmly established. It seems, even, 
 that the right of a surety to enforce contribution will not 
 be affected by his ignorance at the time he became surety 
 that there were co-sureties (l); and it may be asserted 
 even before actual payment of the debt (m). 
 Principle not Such transactions as that in Bering v. E. Winchelsea 
 where sureties must, however, be distinguished from those in which 
 
 (h) Whiting v. Burke, 6 Cli. (k) 3 Bligh, 590. 
 
 342; Coles v. Peyton, (1893) 3 (l) Craythorne v. Swinburne, 
 
 Ch. 238; 62 L. J. Ch. 991. 14 Ves. 160, 163. 
 
 (»■) Ellesmere Brewery v. (w) W aimer shausen v. GuUick, 
 
 Cooper, (1896) 1 Q. B. 75; 65 (1893) 2 Ch. 514; 62 L. J. Ch. 
 
 L. J. Q. B. 173. 773.
 
 CONTRIBUTION BETWEEN CO-SURETIES. 407 
 
 sureties are bound by different instruments for distinct bound for 
 portions of a debt due from a principal. If the surety- portions of 
 ship of each is a separate and distinct transaction, the *^^ '^^^*- 
 doctrine does not apply, and there will be no right of con- 
 tribution among the sureties {n). A surety is not entitled 
 to call upon his co-surety for contribution until he has 
 paid more than his proportion of the debt due by the 
 creditor, even though the co-surety has not been required 
 to pay anything, unless, indeed, the co-surety has been 
 released by the creditor (o). 
 
 Although the principle of contribution is a constructive Principle may- 
 doctrine of equity and not founded upon contract, still a orexduded 
 person may by contract qualify or take himself out of the ^7 contract, 
 reach of the principle: for instance, where three co-sureties 
 agreed among themselves that in case of the failure of the 
 principal debtor to pay they would each contribute his 
 respective part, one of them having paid the debt and 
 another become insolvent, it was held that the remaining 
 one could only be required to contribute one-third, not 
 one-half, which, in the absence of such an agreement, 
 would have been his liability (p). 
 
 Similarly a person may contract himself entirely out of 
 the principle, and become a merely collateral surety by 
 limiting his liability to payment in case of the default of 
 the principal and other sureties (q), and parol evidence is Parol evidence 
 admissible to show what the real contract was, so as to ^ ^^^^^ ®' "• 
 avoid the application of the doctrine of contribution (g). 
 
 Though by the law merchant the indorsers of a bill or 
 note are liable in succession, a subsequent indorser having] 
 a right to indemnity against all that are prior to him, all 
 the facts of the case will be considered: and if it appears 
 
 («) Coope V. Tivynam, 1 T. & Qp) Swain v. Wall, 1 Ch. Rep. 
 
 R, 426; Arcedeckne v. Howard, 80. 
 
 20 W. R. 879. {q) Craythorne v. Swinburne, 
 
 (o) Bavies v. Humphreys, 6 14 Ves. 160; and see Re Denton, 
 
 M. & W. 153; Exp. Snowdon, Licenses Insurance Corp. v. 
 
 17 Ch. D. 44; 50 L. J. Ch. 540; Benton, (1904) 2 Ch. 178; 73 
 
 Stirling v. Burdett, (1911) 2 Ch. L. J. Ch. 465. 
 418.
 
 408 
 
 SURETYSHIP. 
 
 Sureties 
 entitled to 
 securities. 
 
 that the indorsers were in fact in the position of co- 
 sureties, they will be liable to equal contribution; there 
 will be no priority (r). 
 
 Sureties who have paid the debt are not only entitled 
 to contribution from the other sureties, but also to the 
 benefit of any security which any of them may have taken 
 from the principal debtor by way of indemnity (s), unless, 
 at least, there was originally a contract for the special 
 indemnity to one of the number (t). The benefit of a 
 security given by the principal debtor to his surety cannot, 
 however, be claimed by the principal creditor (u). 
 
 Loss of 
 eecurities 
 by creditor 
 discharges 
 Burety. 
 
 VI. The Right of Surety to Securities. 
 
 A surety is entitled, on the payment of the debt, to all 
 the securities which the creditor has against the principal 
 debtor, whether given at the time of the contract or sub- 
 sequently, and whether given with or without the know- 
 ledge of the surety or of the principal (x). The same 
 right appertains to sureties who become such by indorse- 
 ment of a bill of exchange (y). 
 
 Consequently, if a creditor who has had, or ought to 
 have had, such securities, loses them, or suffers them to 
 get back into the possession of the debtor, or fails through 
 neglect to make them effectual, as by failing to give 
 proper notice, the surety will, to the extent of such 
 security, be discharged (z). If the security has become 
 
 (r) Macdonald v. Whitfield, 8 
 App. Cas. 733; 52 L. J. P. C. 70. 
 
 (s) Swain v. Wall, 1 Ch. Rep. 
 80; Berridge v. B., 44 Ch. D. 
 168; 59 L. J. Ch. 533. 
 
 (t) Cooper V. Jenkins, 32 Beav. 
 337; Steel v. Dixon, 17 Ch. D. 
 825; 50 L. J. Ch. 591. 
 
 (m) Sheffield Bank v. Clayton, 
 (1892) 1 Ch. 621; 61 L. J. Ch. 
 234. 
 
 (x) May hew v. Crickett, 2 
 
 Swanst. 185; Pearl v. Deacon, 
 24 Beav. 186; 1 De G. & J. 461; 
 Lake v. Brutton, 18 Beav. 34; 
 8 De G. M. & G. 440; Pledge v. 
 Buss, Johns. 663, 668. See 
 Nicholas v. Ridley, (1904) 1 Ch. 
 192; 73 L. J. Ch. 145. 
 
 (y) Duncan v. N. ^ S. W. Bank, 
 6 App. Cas. 1; 11 Ch. D. 88; 60 
 L. J. Ch. 355. 
 
 (z) Capel V. Butler, 2 S. & S. 
 457; Law v. :E. I. Co., i Vea.
 
 THE RIGHT OF SURETY TO SECURITIES. 409 
 
 worthless otherwise than by the act or neglect of the 
 
 creditor, its loss, of course, effects no discharge (a). 
 
 A surety who pays off a debt is entitled not only to all Surety 
 
 the equities which the creditor could have enforced against equities 
 
 the principal debtor, but also to those available against against per- 
 i^ I ' " sons claiming 
 
 persons claiming under him. Thus, where A. mortgaged under the 
 an estate to C, and B. became A.'s surety for the debt, ^ ^^'' 
 and afterwards A. mortgaged the estate again to D., who 
 had notice of the first mortgage, the first mortgage being 
 paid off partly by B., he was held to have priority over D. 
 for the amount so paid, notwithstanding that D. got a 
 transfer of the legal estate (h). 
 
 On the other hand, if a surety discharges an obligation can only claim 
 at less than its full amount, he cannot, as against the actually pays, 
 principal debtor, claim the whole amount, but only what 
 he has actually paid in discharge (c). His right, however, 
 to the benefit of a collateral security is not in abeyance 
 until he is required to pay {d). 
 
 If a surety obtains from the principal debtor a counter- 
 security for the liability which he has undertaken, he must 
 bring into hotchpot for the benefit of the co-sureties what- 
 ever he receives from that source, even though he con- 
 sented to be surety only upon the terms of having the 
 security, and the co-sureties were at the time of the con- 
 tract ignorant of the security having been given (e). 
 
 The principle has been applied to almost every kind of applies to all 
 security. Where the creditor obtained a judgment against securities. 
 the principal debtor, and the surety paid the debt, it was Judgments. 
 
 824; Strange v. Fooks, 4 GifF. (rZ) Dixon v. Steel, (1901) 2 
 
 408; Tat/lor v. Bank of N . S. W., Ch. 602; 70 L. J. Ch. 794, ex- 
 
 11 App. Gas. 596, 603; 55 L. J. plaining South v. Bloxam, 2 H. 
 
 P. C. 47. & M. 457. 
 
 («) Hardwick v. Wright, 35 (e) Steel v. Bixon, 17 Ch. D. 
 
 Beav. 133; Rainbow v. Juggins, 825; Atkins v. Arcedeckne, 24 
 
 5 Q. B. D. 138, 422. Ch. D. 709; 53 L. J. Ch. 102; 
 
 (6) Brew V. Lockett, 32 Beav. Berridge v. B., 44 Ch. D. 168. 
 
 499. And see Re Benton, Licenses In- 
 
 (c) Reed v. Norris, 2 My. & surance Corp. v. Benton, (1904) 
 
 Cr. 361, 375. 2 Ch. 178; 73 L. J. Ch. 465.
 
 c. 97. 
 
 410 SURETYSHIP. 
 
 held that he was entitled to an assignment of the judg- 
 ment (/). But it was questioned whether such assign- 
 ment was ,of any effect, since the payment had been 
 considered to discharge the judgment, and so make it 
 valueless {g) . 
 
 Bonds. Similarly, where a debt was secured by a bond, it was at 
 
 one time considered that a surety who paid it was entitled 
 to an assignment of the debt and bond. But in Copis v. 
 Middleton (h), and Hodgson v. Shaw (^), it was decided 
 that on payment of the debt the bond ceased to exist, and 
 was no longer available as a security . 
 
 19 & 20 Vict. By the Mercantile Law Amendment Act, 1856 (fc), 
 however, the law both as to judgments and bonds was 
 established in favour of sureties, it being by sect. 5 
 thereof enacted that a surety who pays off a debt so 
 secured shall be entitled to have assigned to him every 
 judgment, specialty, or security which shall be held by the 
 creditor in respect of such debt, whether such judgment, 
 &c. shall or shall not at law be deemed to have been 
 satisfied by the payment ,of the debt. This Act is applic- 
 able to a contract made before it was passed, where 
 payment has been made by a surety since that time (l) . A 
 surety who has satisfied a judgment is entitled to the 
 benefit of the Act though he may not in fact have obtained 
 an assignment of the judgment (m). 
 
 A creditor who takes out execution against the debtor 
 is a trustee of it for all parties interested. If, therefore, 
 he withdraws it without the knowledge of the sureties, he 
 thereby discharges them (71). So, also, if he loses the 
 benefit of it by neglect (0) . 
 
 (/) Parsons v. Briddock, 2 Eq. 209. 
 
 Vera. 608. (tn) Lightboivn v. McMyn, 33 
 
 ((7) Art7iit-age v. Baldwm, 5 Ch. D. 575; 55 L. J. Ch. 845; 
 
 Beav. 278; Hodqson v. Shaxv, 3 Morqan v. Ilill, (1894) 3 Ch. 
 
 My. & K. 183, 191. 400; 54 L. J. Ch. 6. 
 
 (K) 1 T. & R. 229. ill) Mayhew v. Crickett, 2 
 
 (t) Sup. Swanst. 185, 190. 
 
 Ik) 19 & 20 Vict. c. 97. (o) Watson v. Allcock, 1 S. & 
 
 (Z) In re Cochran's Estate, 5 G. 319; 4 De G. M. & G. 242.
 
 THE RIGHT OF SURETY TO SECURITIES. 411 
 
 Where a creditor advances a further sum upon a Further 
 security, a surety for the original debt is entitled to the ggJu^rit/."" 
 security on paying that debt only (p) . But where separate Distinct 
 debts are due upon distinct securities from the principal gep^ate^ °^ 
 debtor to the creditor, the latter will not lose his right to debts. 
 tack from the fact that a third party who has become ^° °^" 
 surety for one of the debts has paid off that debt (q), 
 unless, at any rate, the mortgagee has been guilty of some 
 concealment or misrepresentation (r) . 
 
 (jy) Newton v. Chorlton, 10 Ha. (q) Farebrother v. Wodehouse, 
 
 646; Forbes y.JacTcson,!^ Ch. D. 23 Beav. 18; Nicholas v. Ridley, 
 615; 51 L. J. Ch. 690, not fol- (1904) 1 Ch. 192; 73 L. J. Ch. 
 lowing Williams v. Owen, 13 145. 
 
 Sim. 697. (r) BowJcer v. Bull, 1 Sim. 
 
 N. S. 29.
 
 412 
 
 MARRIED WOMEN. 
 
 CHAPTER VII 
 
 MARRIED WOMEN. 
 
 Sect. I. Equitable Doctrines as to Married Women. 
 
 General Comparison of Law and Equity. 
 I. Separate Estate in Equity. 
 Restraint on Anticipation. 
 Pin-Money . 
 Paraphernalia. 
 II. The Equity to a Settlement. 
 
 1. The Nature of the Right. 
 
 2. Out of what Property it oan he claimed. 
 
 3. Waiver. 
 
 4. How harred. 
 
 5. Amount settled. 
 
 6. Form of Settlement. 
 
 7. Hoiv far hinding on Creditors. 
 Reduction into Possession by Husband. 
 
 III. Fraud on Marital Rights. 
 
 Husband's 
 rights in 
 his wife's 
 property. 
 Personalty. 
 
 General Comparison of Law and Equity. 
 
 1. Position of vmrried women at common law. 
 
 (1.) By the common law, a husband on his marriage 
 became entitled absolutely to all his wife's chattels per- 
 sonal in possession. If he reduced her choses in action 
 into possession during the coverture, he similarly became 
 entitled to them; if he survived his wife without having
 
 POSITION OF MARRIED WOMEN IN EQUITY. 41 y 
 
 reduced them into possession, he was entitled to recover 
 them as her administrator on taking out administration. 
 But if he died before his wife without having reduced 
 them into possession, the wife was entitled. He also 
 acquired full power over her legal chattels real, in posses- 
 sion and reversion ; but if he died before his wife without 
 having aliened them, they survived to her. He was like- Realty, 
 wise entitled to receive the rents and profits of the wife's 
 real estate during their joint lives. 
 
 Such were the extensive rights with which a husband 
 was by law invested in consideration of the obligation 
 which he incurred by the marriage of maintaining his 
 wife. Yet at the same time the wife had no legal remedy 
 in case of his refusing or neglecting to perform the duties 
 in consideration of which he acquired these rights, nor 
 could she claim any relief in the case of his insolvency or 
 bankruptcy. The property which had been hers, however 
 large, was as much at the mercy of his creditors as of 
 himself. 
 
 (2.) On the other hand, the wife could not be sued in Wife could 
 any way, even for necessaries. In certain cases her con- ^^ot be sued, 
 tracts for necessaries might bind her husband, but never 
 herself or the property which had been hers. Her separate 
 existence was not contemplated; it was merged by the 
 coverture in that of her husband, and she was no more 
 recognised in Courts of law than a cestui que trust or a 
 mortgagor (a) . 
 
 2. The position of married icomen in equity. 
 
 Such being the rigid rules of law as to the status of a 
 married woman, it is not surprising that Courts of equity 
 should have found ample grounds for interference, and 
 should have established a system of doctrines more con- 
 sonant with reason and justice. 
 
 (a) Blackstone II., 433, 435; 277; Murray v. Barlee, 2 My. & 
 CokeuponLittleiton, 300 a, 315 &; K. 220, 222; In the goods of 
 Belts r. Kimpton, 2 B. & Ad. Harding, 2 P. & D. 394.
 
 414 MARRIED WOMEN. 
 
 These doctrines are reducible to two leading principles — 
 first, the recognition by equity of the separate estate of a 
 married woman, with reference to which she is regarded 
 and treated as if she were a feme .sole ; secondly, the prin- 
 ciple which requires a husband who receives property in 
 the right of his wife to make a proper settlement thereout 
 on his wife and children. 
 
 Until comparatively recent years, the assistance thus 
 afforded to married women by Courts of equity constituted 
 one of the most extensive and beneficial branches of their 
 jurisdiction, and the subjects falling thereunder called for 
 exposition in considerable detail; and though the Legisla- 
 ture, so long ago as 1870, recognised the hardship often 
 occasioned by the antiquated doctrines of the common law 
 so far as to provide legal protection in certain cases for the 
 interests of married women, the statute then passed (b) 
 was of very limited application, and scarcely diminished 
 the importance of the equitable jurisdiction in question. 
 The Married Women's Property Act of 1882 (c), how- 
 ever, by the sweeping enactment that " a married woman 
 " shall be capable of acquiring, holding and disposing by 
 " will or otherwise, of any real or personal property as 
 " her separate property, in the same manner as if she were 
 " a feme sole," at one stroke reduced the importance of 
 this branch of equity to a very considerable degree. The 
 possession of property by a married woman free from the 
 control of her husband, whicli w^as previously exceptional 
 and dependent upon the doctrines deducible from a series 
 of decisions in the Court of Chancery, at once became a 
 general statutory right, so that thenceforth the first of the 
 principles above stated remained of importance only for 
 the limited purposes hereafter to be indicated. Still more 
 completely was the principle which recognised a wife's 
 equity to a settlement undermined, remaining, as we shall 
 presently see, applicable only to women married prior to 
 
 (b) 33 & 34 Vict. c. 93. (c) 45 & 46 Vict. c. 75.
 
 SEPARATE ESTATE IN EQUITY. 416 
 
 the cominenoemcnt of the Act, and as to them affecting 
 only a small and rapidly vanishing class of proprietary 
 interests. 
 
 Under these circumstances, it becomes necessary for the 
 writer, in dealing with the subject of married women's 
 property, to concern him&elf mainly with the statute which 
 now covers almost the whole of the questions concerned. 
 And though for the present, at least, the equitable doctrines 
 cannot be ignored, their exposition may be reduced in pro- 
 portion as has been their importance. 
 
 The most convenient method of dealing with the subject 
 under the altered conditions will be, first, to review the 
 equitable doctrines in the new light in which the statute 
 law has placed them, and then to turn to the enactment 
 itself, adding such comments and explanations as may be 
 required. 
 
 Our first inquiry will be as to the manner of creating 
 and as to the characteristics of equitable separate estate. 
 
 I. Separate Estate in Equity. 
 
 By a series of important decisions it was long ago deter- Creation of 
 mined that equity would treat a married woman as capable ^^^^l^ ^ 
 of owning property of any description to her own use, 
 independently of her husband, and would hold her en- 
 titled to enjoy it with all its privileges and incidents 
 including the jus disponendl {d) . 
 
 In order that property belonging to a woman at the Depends on 
 time of her marriage, or subsequently conferred on her, "^tention. 
 may be deemed her equitable separate estate, it is requisite 
 that equity should be able to discern either from the terms 
 of the instrument through which she receives the property, 
 
 (d) Feftiplace v. Gorges, 1 Ves. jr. 46.
 
 416 
 
 MARRIED WOMEN. 
 
 Form of words 
 immaterial. 
 
 Illustrations. 
 
 Intention 
 must be clear. 
 
 or from the nature of the transaction by which she acquires 
 it, an intention that she should have the sole use thereof. 
 If, in that case, it is in the hands of trustees, they will be 
 held trustees for her. And if no trustees have been 
 appointed equity will treat the husband as her trustee (e). 
 
 No particular form of words, whether in a settlement or 
 will, is required to vest property in a married woman ta 
 her separate use, so long' as the intention to give her such 
 an interest in opposition to the legal rights of her husband 
 is clear and unequivocal (/) . 
 
 The following expressions have been held sufficient to 
 exclude the marital rights of the husband — a gift or settle- 
 ment to the wife, or to trustees for her, for her " sole and 
 separate use" {g)] "for her separate use" (Ji); "for her 
 own use, and at her own disposal " (i); "for her own 
 use, independent of her husband" (fc); "for her own use 
 and benefit, independent of any other person" {l); "that 
 she should receive and enjoy the issue and profits " (m); or 
 where there is a direction that the " interests and profits 
 be paid to her, and the principal to her, or to her order by 
 note in writing under her hand" {n); or "her receipt to 
 be a sufficient 'discharge" (,o); or that the husband "is to 
 have no, control" (p). 
 
 On the other hand, since an unequivocal intention to 
 exclude the husband's rights must be shown, it was held 
 that no separate use was created by a direction " to pay to 
 a married woman and her assigns " {q); or to pay a fund 
 " into her own proper hands to and for her own use and 
 
 (ff) Neivlands v. Paynter, 4 My. 
 & Cr. 408; Parker v. Brooke, 9 
 Ves. 583; Rich v. Cockell, 9 Ves. 
 375; Wassell v. Leggatt, (1896) 
 1 Ch. 554; 65 L. J. Cli. 240. 
 
 (/) Stanton v. Hall, 2 R. & 
 My. 180. 
 
 (^) Parker v. Brooke, sup. 
 
 (Ji) Massy v. Rowen, L. R. 4 
 II. L. 288, 294. 
 
 (i) Inqlefield v. Coghlan, 2 
 Coll. 247. 
 
 (k) Wagstaffe v. Smith, 9 Vea. 
 520. 
 
 (Z) Margetts v. Barringer, 16 
 Sim. 568. 
 
 (wi) Tyrrell v. Hope, 2 Atk. 
 558. 
 
 (w) Hulme v. Tenant, 1 Bro. 
 C. C. 16. 
 
 (o) Lee V. Prieaux, 3 Bro. 
 C. C. 381. 
 
 (??) Edward v. Jones, 14 W. 
 R. 815. 
 
 (5') Lumb V. Milnes, 5 Ves. 517.
 
 SEPAKATE ESTATE IN EQUITY. 417 
 
 benefit" (r); or where property was given "to her own 
 use and henefit" (s); "to her absolute use" {t); or "to 
 her own proper use and benefit " (u); or " to be under her 
 sole control " {x). 
 
 A distinction must bo observed between the effect of Distinction 
 certain words used in a gift to a woman already married, to/^^tf"o^# 
 and the same words in a gift to a /erne sole or widow, awl feme 
 The expression "separate use" has a technical meaning, 
 and is sufficient, whether the gift bo to a married or to an 
 unmarried woman, with or without the intervention of 
 trustees, to impress the property given with the character 
 of separate estate (y). But the expression " sole use " has 
 no such technical meaning, and its interpretation depends 
 on circumstances. Tho result of the cases is that if the 
 words "sole use and benefit" are applied to a gift to a 
 woman already married, they will suffice to exclude the 
 husband's marital right, and to create a separate estate (z) . 
 Also if the intended beneficiary be a woman about to 
 marry, or there are other expressions in the instrument 
 from which it can be gathered that a future marriage was 
 contemplated by the settlor or donor, these words will 
 import exclusion of the husband, and will create a separate 
 estate (a) . Further, if in any case these words are used, 
 and the property is at the same time vested in trustees, it 
 seems that they will be considered sufficient to create a 
 separate estate (&). But if the gift is to a woman un- 
 married, and not in contemplation of marriage, or to a 
 widow, and without the interposition of trustees, the words^ 
 " sole use and benefit " will not of themselves import] 
 
 (r) Tyler v. Lake, 2 E. & My. Coll. 247; Green v. Britten, 1 De 
 
 183. G. J. & S. 649; Hartford v. 
 
 (s) Kensington v. Bollond, 2 Poiver.l.'R. 2'E^.2\2; Bland v. 
 
 My. & K. 184. Baxoes, 17 Ch. D. 794; 50 L. J. 
 
 (0 Exp. Abbot, 1 Dea. 338. Ch. 252. 
 
 lu) Blackloww. Laws,2^3L.A^. (a) Exp. Ray, 1 Madd. 199, 
 
 (a;) Massey v. Parker, 2 My. & 207; In re Tarsei/s Trust, 1 Eq. 
 
 K. 174. 561; Exp. KUlick, 3 M. D. & De 
 
 (y) Massy v. Eowen, L. K. 4 G. 480. 
 
 H. L. 288. (&) Adamson v. Armitage, 19 
 
 (r) Inglefield v. Coghlan, 2 Ves. 416. 
 
 s. 27
 
 418 
 
 MARRIED WOMEN. 
 
 Presents to 
 wife. 
 
 Savings out 
 of separate 
 property. 
 
 exclusion o£ a future husband, and will not suffice to 
 impress on the property the character of separate estate (c) . 
 
 Presents from a husband to his wife will be deemed 
 separate estate where they are made absolutely and not 
 merely to be worn as personal ornaments (d) ; and personal 
 apparel purchased by a wife with money supplied by her 
 husband is prima facie her property (e). The distinction 
 between such a transaction and the law as to paraphernalia 
 is discussed at a later page (/) . So a husband may make 
 himself trustee for his wife of property to be held as her 
 separate estate (g) . But as regards real estate, a mere 
 written declaration by a husband without his wife's con- 
 currence will not suffice to impress upon it the character 
 of separate estate, since the husband has not such an 
 interest in the property as enables him to create a trust 
 therein (h). It seems that a gift from a stranger to a 
 married woman, though not expressed to be for her 
 separate use, would be considered separate estate (i) . 
 
 The savings which a married woman may make out of 
 separate property are considered as separate estate (/r). 
 She has the same power with respect to them, and they 
 are subject to the same liabilities (Z). Similarly, arrears 
 of separate estate in the hands of trustees will be con- 
 sidered as retaining their original character (m). Where, 
 also, a husband living separate from his wife remits money 
 to her for her support and maintenance, such money, and 
 
 (c) Gilbert v. Leiois, 1 De G. 
 J. & S. 38; Lewis v. Matthews, 2 
 Eq. 177; Massy v. Roiven, sup.; 
 Hartford v. Power, sup. 
 
 (d) Graham v. Londonderry, 3 
 Atk. 393; Grant v. G., 34 Beav. 
 623; Tasker v. T ., (1895) P. 1; 
 64 L. J. P. D. 36. 
 
 (e) Masson, ^c. v. De Fries, 
 (1909) 2 K. B. 831; 79 L. J. 
 K. B. 24. 
 
 (/) Infra, p. 433. 
 
 (jf) Metvs V. M., 15 Beav. 529. 
 
 {h) Dye V. D., 13 Q. B. D. 
 147; 53 L. J. Q. B. 442. 
 
 (i) Graham v. Londonderry, 
 swp. 
 
 (Jc) Gore v. Knight, 2 Vern. 
 535; Aslceiv v. Booth, 17 Eq. 
 426; Mackenzie^. Edwards-Moss, 
 (1911) 1 Ch. 578; 80 L. J. Ch. 
 443. 
 
 (?) Butler V. Cumpston, 7 Eq. 
 16. 
 
 (w) Ashton V. McDougall, 5 
 Beav. 56.
 
 CHARACTERISTICS OF SEPARATE ESTATE. 411^ 
 
 any savings which the wife may make out of it, will be 
 considered separate estate (n) . 
 
 A married woman is entitled as to separate estate to any Outlay on 
 outlay made by her husband on real property settled to property 
 her separate use — for instance, to houses which he builds 
 thereon, or improvements made (o). 
 
 Having thus illustrated how under the protection of 
 equitable tribunals married women acquired property to 
 their separate use, free from marital control, the next con- 
 sideration is to inquire as to the powers they possess over 
 such property, and the liabilities to which it is subject. 
 
 Putting out of view for the present that special class of Powers of 
 cases in which by the operation of another device of equity 
 3. married woman is expressly restrained from alienation, 
 the following rules briefly indicate her powers of volun- 
 tary disposition respecting the different kinds of separate 
 estate . 
 
 As to personalty settled upon a married woman for her Personalty 
 
 . . . . . settled 
 
 separate use, it is well established that she may enjoy it absolutely 
 
 with all its incidents, and may dispose of it either by acts alienable. 
 
 inte7' vivos or by will(p'); and this whether the property 
 
 be in possession or reversion (g) . 
 
 As to real estate she has a complete power of disposition Real estate. 
 
 over the rents and profits (r) ; and she may dispose of the 
 
 equitable fee at her pleasure (though there may be no 
 
 express power of appointment given) either by will or deed, 
 
 which need not be acknowledged under 3 & 4 Will. IV. 
 
 C.74 (s); and she has this power whether or not the estate 
 
 is vested in trustees (t). 
 
 («) Brooke v. B., 25 Beav. 34; 190; Stamford, ^c. Bank v. Ball, 
 
 Haddon v. Fladgate, 1 Sw. & Tr. 4 De G. F. & J. 310, inf. p. 443. 
 48. (>•) Stmd V. Nelson, 2 Beav. 
 
 (o) Barrack v. McCulloch, 3 K. 245 ; Major v. Lansley, 2 R. & 
 
 & J. 110, 124; Grant v. (?., sup. M. 357. 
 
 (j>) FettipJacev. Gorges, iNee. (s) Taylor v. Meads, 4 De G. 
 
 jr. 46; 3 Bro. C. C. 8; Rich v. J. & S. 597. 
 
 Cockell, 9 Ves. 369; Willock v. (0 Hall v. IFaterhouse, 13 \Y. 
 
 Noble, L. R. 7 H. L. 580. R. 633. 
 
 ((7) Slurgis v. Corp, 13 Ves. 
 
 27 (2)
 
 420 
 
 MARRIED WOMEN. 
 
 AsHignment 
 by husband. 
 
 Life interest 
 with power of 
 appointment. 
 
 Fermitting 
 husband to 
 receive 
 income. 
 
 She may transfer her interest as well to her husband as 
 to anyone else (u), though a husband so receiving pro- 
 perty must be prepared to show that it was clearly intended 
 as a gift (x) . Moreover, a disposition by a wife of her 
 equitable estate in fee simple is sufficient completely to bar 
 and exclude the estate which on her deatli would otherwise 
 have passed to the husband by the curtesy (y) . For the 
 alienation of the legal fee, however, a deed acknowledged 
 under the last named statute, and the concurrence of the 
 persons in whom the legal estate was vested, remained 
 necessary . 
 
 It may be here conveniently mentioned that if a hus- 
 band, in exercise of his legal right, assigned his wife's 
 separate estate to a purchaser for value without notice, she 
 had no remedy against the purchaser (z) . 
 
 It is scarcely necessary to say that where there is a gift 
 absolutely to a married woman, but only the life interest 
 is limited to her separate use, the corpus of the estate, 
 being unaffected by the separate use, is not in her power, 
 and an attempted devise thereof would be invalid (a) ; but 
 after some conflict of decision it was ultimately established 
 that where there is a gift to a wife to her separate use for 
 life, remainder as she shall, notwithstanding her coverture, 
 by deed or will appoint, it will be treated as an absolute 
 gift to her sole and separate use, so as fully to vest in her 
 the entire corpus for all purposes (h). 
 
 A wife may, in effect, alienate the income of her separate 
 estate by expressly or impliedly authorising her husband 
 to receive it. And if she does so, she cannot afterwards 
 call upon him to account for the same (c) ; nor can she 
 
 (m) Grigby v. Cox, 1 Ves. sr. 
 518. 
 
 (x) Rioh V. Cockell, 9 Ves. 375. 
 
 (y) Appleton v. Rowley, 8 Eq. 
 139; Cooper v. Maodonald, 7 Ch. 
 D. 288. 
 
 (2) Dawson v. Prince, 4 De G. 
 & J. 41. 
 
 (a) Troutbeck y. Boughey, 2 
 Eq. 534. 
 
 (6) London Chartered Bank of 
 Australia v. Lempriere, L. R. 4 
 P. C. 572; Bishop v. Wall, 3 Ch. 
 D. 194. 
 
 (c) Caton V. Rideout, 1 Mac. 
 & G. 599; Edward t. Cheyne, 13 
 App. Cas. 385.
 
 CHARACTERISTICS OF SEPARATE ESTATE. 421 
 
 recover it from trustees who have paid the husband with 
 her acquiescence (d). But in order thus to deprive a wife 
 of the arrears of income on the ground of her acquiescence, 
 her intention to permit the husband to receive the income 
 must be clearly shown, and the onus of proof is on him (e) . 
 In the absence of this she will be entitled to all the income 
 in arrear, not confined to one year as in the case of arrears 
 of pin-money (/). 
 
 The law as to the liability of separate estate in equity to Liability of 
 the debts and engagements of married women has steadily gstate^to 
 and continually developed in the direction of favouring debts, 
 creditors, and treating the separate estate just as the 
 absolute property of a man would be treated. 
 
 1 . The strongest case for attaching liability to separate Fraud, 
 estate is where a married woman has been guilty of fraud. 
 Long before the capability of a married woman to bind her 
 separate estate by contracts was recognised, it was settled 
 
 that she was capable of committing fraud, and was liable 
 to the usual consequences of such an act. Thus in Savage 
 V. Foster (g), where a married woman knowing her own 
 title to property, suffered a purchaser to acquire it for 
 valuable consideration by concealing her title, she was not 
 allowed afterwards to set up her title against the purchaser. 
 In cases of fraud, moreover, property settled on her for life 
 with a general power of appointment which she exercises, 
 is, equally with property settled on her absolutely, liable 
 to supply any deficiency (h) . 
 
 2 . A married woman will render her separate estate Breach of 
 liable by actively concurring with her trustees in a breach 
 
 of trust (^), and she cannot call upon the trustees to re- 
 place it (fc) . So by herself committing a breach of trust 
 
 (^d) Roxoley v. Univin, 2 K. & (A) Vaughan v. Vanderstegen, 
 
 J. 138. 2 Drew. 165. 
 
 (e) Wood V. Cock, 40 Ch. D. (0 Brewer v. Stvirles, 2 Sm. & 
 
 461; 58 L. J. Ch. 518. G. 219; Jones v. Higgins, 2 Eq. 
 
 (/) i)/a;oM V. i)., 9 Ch. D. 587; 538; Sawyer v. S., 28 Ch. D. 
 
 Parlcer v. Brool-e, 9 Ves. 583. 595; 54 L. J. Ch. 444. 
 
 (g) 9 Mod. 35. (k) Crosby v. Church, 3 Beav. 
 
 485.
 
 422 
 
 MARRIED WOMEN. 
 
 Liability to 
 debts. 
 
 Specialty 
 debts. 
 
 Negotiable 
 instruments. 
 
 Written 
 
 agreements 
 
 generally. 
 
 Verbal 
 contracts. 
 
 in respect of other property under the trust {l) she renders 
 her separate estate liable, unless she is restrained from 
 anticipation (as to which generally, see itifra, p. 425 
 et seq.); and, notwithstanding such restraint, arrears of 
 income under the trust are also liable (m), but not future 
 income (n) . 
 
 3 . It Avas long after the recognition for many purposes 
 of separate estate, that a married woman was first deemed 
 capable of contracting debts in respect of such estate; and 
 it is only comparatively recently that her capacity to do so 
 has been fully accepted with all its consequences. 
 
 As might have been expected, the first step was to hold 
 that specialty debts, such as those secured by a bond under 
 her hand and seal, should be binding on her to the extent 
 of her separate property. As to this the case of Hulme 
 V. Temant (o) is a leading authority. 
 
 4 . Then the principle was extended to instruments of a 
 less formal character, such as a bill of exchange accepted {f) 
 or endorsed (g), and to a promissory note (r). 
 
 rj . The next step was its application to general written 
 agreements — for instance, an agreement to pay additional 
 rent for a house {s) ; also to the payment of the costs of 
 a solicitor whom she had instructed (J,). 
 
 6. Up to this point the principle on which the separate 
 estate was held to be liable was often represented to be that 
 the written engagements in question operated as appoint- 
 ments of the settled property, and acquired their validity 
 as such, rather than as contracts; and as long as it rested 
 on this ground it is clear that no liability could arise from 
 merely verbal contracts. But by many authoritative 
 
 (J) Clive V. Garew, 1 J. & H. 
 199. 
 
 (w) Pernberton v. M'Gill, 1 
 Dr. & Sm. 266. 
 
 (w) Ibid.; Olive v. Garew, 
 supra. 
 
 (o) 1 Bro. C. 0. 16; 1 W. & 
 T. L. C. 654, ed. 7. 
 
 (p) Stuart V. Kirkwall, 3 Madd. 
 
 387; Owen v. Roman, 4 H. L. 
 997. 
 
 (^q) M'llenry v. Bavies, 6 Eq. 
 462; 10 Eq. 88. 
 
 (r) Bullpin V. Glarke, 17 Ves. 
 365; Field v. Sowle, 4 Russ. 112. 
 
 (s) Master v. Fuller, 4 Bro. 
 C. C. 19; 1 Ves. 513. 
 
 (^) Murray v. Barlee, 3 My. & 
 K. 210.
 
 CHARACTERISTICS OF SEPARATE ESTATE. 42-3 
 
 decisions this view of the question has boon completely 
 exploded (21), and it is now well established that separate 
 estate will be bound by general verbal engagements, 
 whether in the form of express contract or of the nature 
 of an assicmpsit (x) ; though of course the fact of the party 
 being a married woman will not idispense with the necessity 
 of a written contract, where it is otherwise required (i/) . 
 
 7 . It yet remained to be decided whether a married Life estate 
 woman's general engagements would bind property settled ^^ef of''^* 
 on her for life with a general power of appointment which appointment 
 she has exercised. At length, in an important case already or will, 
 referred to (z), it was held that where such general power 
 
 of appointment was exerciseable by deed or ivill, the pro- 
 perty might bo charged by her act. It has more recently 
 been decided, where property was settled on a married 
 woman for her separate use for life, with remainder to 
 such persons as she should hij her ivill appo'int, she having By will only, 
 made a testamentary appointment, tliat the property was 
 liable to the payment of her debts, as if it had been settled 
 on her absolutely (o) . It will be observed that here the 
 power of appointment could only be exercised hy ivill. A 
 fortiori, therefore, would property be liable which was 
 subject to appointment by will or deed. This decision, as 
 we shall see, has been confirmed by the Act of 1882 (6). 
 Of course it will also be noted that such liability only 
 arises in cases where the power has been lexercised; it 
 cannot affect persons entitled under a gift over in default 
 of appointment. 
 
 8. The extent of the liability was by Hulme v. Extent of the 
 Tenant (c) shown to reach to the whole of any personal 
 
 (m) Murray v. Barlee, 3 My. & v. Lempriere, L. R. 4 P. C. 572. 
 K. 2io, 223; Owens ■^. Dickenson, (a) In re Harvey's Estate; 
 
 Cr. & Ph. 53. Godfrey v. Harben, 13 Ch. D. 
 
 («) Vatighan v. Vanderstegen, 216. 
 sup.; Johnson v. Gallagher, 3 De (6) 45 & 46 Vict. c. 75, s. 4; 
 
 G. F. & J. 494; Mattheivman's Turner v. King, (1895) 1 Ch. 
 
 Case, 3 Eq. 787. 361; 64 L. J. Ch. 252; Barley v. 
 
 (y) JRe Sykes' Trust,2 J. icU. Hodgson, (1899) 1 Ch. 6r)6; 68 
 
 415. L. J. Ch. 313. 
 
 (^z) London Chartered Bank, ^c. (c) 1 Bro. C. C. 16.
 
 424 
 
 MARRIED WOMEN. 
 
 Admiuistia- 
 tion of 
 married, 
 woman's 
 estate. 
 
 property settled, and to the rents and profits of the realty. 
 But since the case of Taylor v. M&ads {d) it will be con- 
 sistent that it should be extended to the corpus of the 
 realty as well as to that of personalty. It was held in 
 equity, that the general engagements of a married woman 
 could only be enforced against so much of her separate 
 estate as she was entitled to, free from any restraint on 
 anticipation, at the time when the engagements were 
 entered into (e), and this was quite consistent with the 
 principle, since equity regarded the liability as arising 
 not strictly ex contractu, but by way of charge (/) or 
 quasi charge; in no case could a personal decree in respect 
 of debts be made against a married w^oman (g). The Act 
 of 1882, however, expressly conferred contractual power 
 on married women, and consistently with this change, it 
 enacted that as to the contracts made after the 1st of 
 January, 1883, not only the then present, but also all 
 future accruing separate property is bound {h) . The 
 effect of the restraint on anticipation is not interfered 
 with, but in the absence of this, all legal or equitable 
 separate property which she may have at the time of the 
 judgment is liable to execution (^). 
 
 After the death of a feme covert having separate estate, 
 creditors may proceed against her separate estate for the 
 payment of their debts, and such estate being equitable 
 assets, the debts will rank pari p\assu (Ja) . If she has left 
 a will, her estate will be administered according to the 
 ordinary rules in creditors' suits (I). 
 
 id) 4 De G. J. & S. 597. 
 
 (e) Pike V. Fitzrjibbon, 17 Ch. 
 D. 45 i; 50 L. J. Ch. 394. 
 
 (/) Hodgson v. Williatnson, 15 
 Ch. D. 87." 
 
 (g) Francis v. Wigzell, 1 Madd. 
 2C4; Picard v. Hine, 5 Ch. 274; 
 Scott V. Morley, 20 Q. B. D. 120; 
 57 L. J. Q. B. 43; Itobin'^on v. 
 Lynes, (1894) 2 Q. B. 577; 63 
 L. J. Q. B. 759. 
 
 (A) 45 & 46 Vict. c. 75, s. 1; 
 Turnbull v. For man, 15 Q. B. D. 
 
 234; 54 L. J. Q. B. 489; Hood- 
 Bnrrs v. Cathcart, (1894) 2 Q. B. 
 559; 63 L. J. Q. B. 602. 
 
 (0 King v. Luras, 23 Ch. D. 
 712; 53 L.' J. Ch. 64; Re Vardon's 
 Trusts, 31 Ch. D. 275; 55 L. J. 
 Ch. 259. 
 
 (Jc) Owens v. Dickenson, Cr. & 
 Ph. 48; 45 & 46 Vict. c. 75, s. 23. 
 See inf. p. 580. 
 
 Q) Surman v. Wharton, (1891) 
 1 Q. B. 491; 60 L. J. Q. B. 233.
 
 RESTRAINT ON ANTICIPATION. 426 
 
 Restraint on Anticipation. 
 
 It is not surprising tliat the fact of its being held that Ori<rin of 
 the separate property of a married woman should be anticipation, 
 enjoyed by her with as much freedom of disposition, and 
 fiubject to the same liabilities as if she were a feme sole, 
 should have exercised the ingenuity of conveyancers to 
 devise means for preventing such results, and to preserve 
 the settled property at once from voluntary alienation, 
 in which the husband's influence might be exercised pre- 
 judicially to the wife's interest, and from liability to 
 destruction through the wife's improvidence. To this end 
 a, clause was framed to the effect that the wife should not 
 have power to alienate the property, or to anticipate the 
 enjoyment of the income thereof (w). The only question 
 was whether this direction would be sustained in equity. 
 Such a clause would certainly have no effect in a limitation 
 -of property to a man or to an unmarried woman (?z), from 
 whom the jus disponendi cannot be taken away by a mere 
 prohibition; but when the matter came before the Courts, 
 the case of a married woman's separate estate was held to 
 be distinguishable, and restraint on anticipation was 
 deemed just and reasonable, inasmuch as it tended to 
 further the object for which separate estate was first 
 created (o) . The clause is accordingly valid and efficacious 
 in a settlement or a devise to a married woman, w^hether 
 the property in question be real or personal estate, whether 
 limited in fee or absolutely, or for life only (p) . Since 
 the passing of the Acts of 1882 and 1893 (q), it has been 
 held that the restraint on anticipation, though originally 
 an incident of equitable separate estate only, may 
 effectually be annexed to property which is separate estate 
 
 (m) Pi/bus V. Smith, 3 Bro. Beav. 22. 
 
 C. O. 339. (p) Bagqett v. Meux, 1 Coll. 
 
 (w) Brandon v. Robinson, 18 IZ^; I Vh.'Q21 ; Re Sykes' Trusts, 
 
 Ves. 429. 2 J. & II. 415. 
 
 (o) Tullett V. Armstrong, 1 {q) 56 & 57 Vict. c. 63.
 
 426 
 
 MARRIED WOMEN. 
 
 only by virtue of the Act (r) . But there can be no 
 restraint where there is no separate estate either equitable 
 or statutory (s). A protection order under sect. 21 of 
 the Divorce Act does not remove the restraint on 
 anticipation (t). 
 
 How effected. 
 
 No particular 
 form of words 
 needed. 
 
 Expressions 
 insufficient. 
 
 1. What words will restrain anticipation. 
 
 As in the case of separate use, no particular form of 
 words is necessary to restrain alienation if the intention bo 
 clear. In addition to the common forms of expression, 
 which are equivalent, with the addition of more or less 
 conventional verbiage, to the clear words " without power 
 of anticipation," it has been held that effectual restraint 
 is imposed b}^ a direction that a trustee shall during the 
 lady's life receive the income " when and as often as the 
 same shall become due," and pay it as she shall appoint, 
 or permit her to receive it to her separate use, and that 
 her receipts, or the receipts of any person to whoon she 
 may appoint the same after it shall become due, shall be 
 valid discharges for it (m). So, also, if the property is 
 " not to be sold or mortgaged ' (x), or if it is declared that 
 the wife shall " not sell, charge, mortgage, or encumber 
 it," though this may be followed by a declaration that she 
 should take it to her own sole and separate use and benefit 
 and disposal, and have the sole management thereof (y). 
 It is not necessary that negative words should be intro^ 
 duced in the receipt clause; this must be construed to 
 relate to the income, subject to such restraints as are im- 
 posed in the words of limitation (z). 
 
 On the other hand, the following expressions have been 
 
 (r) Jte Lumley, Exp. Hood- 
 Barrs, (1896) 2 Ch. 690; 65 L. J. 
 Ch 837 
 
 (s) Stogdon v. Lee, (1891) 1 
 Q. B. 661; 60 L. J. Q. B. 669. 
 
 (0 ll'dl V. Cooper, (1893) 2 
 Q. B. 85; 62 L. J. Q. B. 423. 
 
 (m) Field V. Evans, 15 Sim. 
 375; Baker v. Bradley, 7 De G. 
 
 M. & G. 597; Chapman v. Woodf 
 51 L. T. R. 501. 
 
 (a;) Steedman v. Poole, 6 Ha. 
 193; Re Hutchings to Burt, 58. 
 L. T. 6. 
 
 (y) Baggett v. Meux, Hup. 
 
 (z) Harrop v. Hoivard, 3 Ha. 
 624.
 
 RESTRAINT ON ANTICIPATION. 
 
 427 
 
 considered insufficient to show a clear intention to restrain 
 anticipation: Whore there has been a bequest of stock for 
 the separate use of a wife for life, with a direction that it 
 should " remain during her life and be under the orders of 
 " the trustees made a duly administered provision for her, 
 " and the interest giveai to her on her personal appearance 
 " and receipt " (a); and where the wife is to receive sepa- 
 rate property " with her own hands from time to time," or 
 " so that her receipts alone for wliat shall be actually paid 
 into her own proper hands shall be good discharges " {b). 
 In short, words which amount only to an amplilication of 
 the sense embodied in the expression " separate use " will 
 not add to the force of that expression by effecting a 
 restraint on anticipation (c). Where, again, it was pro- 
 vided in a gift to a wife for her separate use for life, and 
 after her decease to her appointees, tliat " in case any 
 " appointment should be made by deed, the same should 
 " not come into operation until after hea- death," it was 
 held that there was no restraint on anticipation, and that 
 she might appoint the fund by an irrevocable deed (d). 
 
 The question of restraint or no restraint wholly depends 
 on the intention expressed in the instrument by which the 
 property is settled. The fact that the property in question 
 bears income is of weight in determining what the inten- 
 tion is, but this is not the essential point of inquiry (e). 
 
 It must be carefully observed that a clause restraining fji^^t confoi-m 
 
 anticipation will be invalid if its effect would be to trans- to rule agaimt 
 
 , . perpetuities, 
 
 gress the rule as to perpetuities (7). it or example it was 
 
 (o) In re Ross's Trust, 1 Sim. 
 N. S. 196. 
 
 (6) Parkes v. White, 11 Ves. 
 222; Acton v. White, 1 S. & S. 
 429. 
 
 (c) Pybus V. Smith, 1 Ves. jr. 
 189; 3 Bro. C. C. 340. 
 
 ((f) Alexander v. Young, 6 Ha. 
 393. 
 
 (e) Re Bown, O'Halloran v. 
 King, 27 Ch. D. 411; 53 L. J. 
 Ch. 881; see Re Ellis' Tr., 17 Eq. 
 409; Re Croughton's Tr., 8 Ch. 
 
 D. 460; 47 L. J. Ch. 705; Acason 
 V. Greenwood, 34 Ch. D. 85, 712; 
 56 L. J. Ch. 511; Re Tippett's 
 and Newbould's Contr., 37 Ch. D. 
 444. 
 
 (/) Fry V. Capper, Kay, 163; 
 In re Teague's Settlement, 10 Eq. 
 564; which were reluctantly fol- 
 lowed in In re Ridley, 11 Ch. D. 
 645; Cooper v. Laroche, 16 Ch. D. 
 368; and see Whitby v. Mitchell, 
 44 Ch. D. 85; 59 L. J. Ch. 8,485.
 
 42H 
 
 MARRIED WOMEN. 
 
 held that in a bequest to persons in esse for life with 
 remainder to their unborn children, with a general direc- 
 tion that the females should take for their separate and 
 inalienable use, the restriction was void on the ground of 
 its remoteness (g). 
 
 The restraint, however, may be severable, and valid as 
 to objects falling within the lawful limit, though other 
 members of the class may have been beyond the limit (h). 
 
 Restraint 
 renewed on 
 second 
 marriage. 
 
 Tullett V. 
 Artnstrong . 
 
 Substitution 
 of other 
 property. 
 
 2. The ejfects of restraint upon anticipation. 
 
 It has already been observed that property in the hands 
 of a feme sole cannot be made inalienable. The question, 
 therefore, has arisen whether, when on the death of the 
 husband of a married woman so restrained the restraint 
 was discharged, it attached again on the occasion of a 
 second marriage. This was decided in the affirmative in 
 Tullett V. Armstrong (i). From that case the state of the 
 law may be deduced as follows: If the gift be made for 
 her sole and separate use, without more, she has, during 
 the coverture, an alienable estate, independent of her 
 husband. If , in addition to the limitation to her separate 
 use, there is a restraint on anticipation, she has during the 
 coverture the present enjoj^ment of an inalienable estate 
 independent of her husband. In either case, she has when 
 discovert a power of alienation, since the restraint on 
 anticipation is incident only to separate estate, and there 
 can be no such thing as separate estate apart from cover- 
 ture. But the restriction being a modification of the 
 separate estate is inseparable from it, and it accordingly 
 again comes into operation when, on a second coverture, 
 the property again becomes separate estate (k). 
 
 This being the case, the question often arises, in cases 
 where the woman has while discovert aliened the property, 
 
 (ff) Armitage v. Coates, 35 
 Beav. 1. 
 
 (A) Re Game, Game v. Ten- 
 nant, (1907) 1 Ch. 276. 
 
 (0 1 Beav. 1. 
 
 (k) See also Woodmeston j. 
 Walker, 2 R. & My. 197; Eawkes 
 V. Eubback, 11 Eq. 6.
 
 RESTRAINT ON ANTICIPATION. 429 
 
 and replaced it by other property, or otherwise dealt with 
 it so as to alter its oonditiou, whether such acts do not 
 effectually discharge the property from all conditions, so 
 that she in future holds it, whether sole or covert, dis- 
 charged from all trust or restraint. The answer to this 
 inquiry depends on circumstances. 
 
 If the property remains during the time of the discover- wheu substi- 
 ture, and until a second coverture, in the hands of trustees *"*f' P^°" 
 
 ... perty under 
 
 in statu quo, no question arises. Even if there be no restiaiut, and 
 trustees, and the property has not in the interim been ^ ^" "° ' 
 dealt with, upon her subsequent marriage the separate use 
 and the restriction attached revive {I). If, on the other 
 hand, property vested in trustees has been sold during the 
 disooverture at the woman's request, and the proceeds 
 handed to her, the identity of the settled estate or fund is 
 clearly gone, and accordingly the separate use, with all its 
 incidents, completely ceases (m). Or even if the property 
 is converted by means other than sale into property of a 
 different kind, the trust ceases, and with it all the con- 
 ditions thereof (n). The test question as to the con- 
 tinuance of the separate use and restraint on anticipation 
 is whether the property can be identified, or whether it 
 has lost its individuality in the meanwhile by the woman's 
 dealing with it. 
 
 It is, of course, quite possible to confine the trust for the Separate use, 
 separate use of a married woman to a particular cover- confiMd^to^ 
 ture (o), but this will not be presumed when the words one coverture, 
 employed indicate an intention that it should continue 
 during her life (p). 
 
 A clause restraining anticipation will effectually prevent General 
 
 • 1 n T J. • 1 • i p eif ects of 
 
 a married woman from alienating or charging any part oi restraint 
 
 the corpus of the settled estate or fund during the cover- 
 
 {l) Newlands v. Paynter, 4 (o) Moore v. Morris, 4 Drew. 
 
 My. & Cr. 408. 33. 
 
 (m) Wright v. W ., 2 J. & H. {p) Gaffee's Sett., 1 Mac. & 
 
 655. G. 541; Eawkes v. Hubback, 11 
 
 (m) Ibid. ; Buttanshaw v. Eq. 5. 
 Martin, Johns. 89.
 
 430 
 
 MARRIED WOMEN. 
 
 Restraint 
 could not 
 formerly 
 be dispensed 
 with even by 
 the Court. 
 
 ture. As to arrears of income, after some conflict of 
 authority it seems settled that a judgment can be enforced 
 against any income accrued due, but not actually received, 
 at the date of the judgment, but not against income 
 accrued after the judgment (g), and the same principle 
 applies to voluntary alienation. 
 
 The clause is equally efficacious to prevent an involun- 
 tary alienation by operation of law of the corpus or the 
 future income of a fund, during the coverture. Thus not 
 even for her fraud is such property chargeable (r). A 
 fortiori it will not be liable for her debts or general 
 engagements incurred during coverture (s). The only 
 charges which can affect a fund so restricted are debts 
 contracted before marriage (t), and the costs properly 
 incurred by the trustees in the administration of the 
 trust (m). 
 
 So strictly was the restraint on anticipation regarded, 
 that it formerly could not be dispensed with by a Court of 
 equity, even where it was manifestly for the benefit of the 
 married woman to do so, as where she was put to her elec- 
 tion between her settled property and a bequest of much 
 greater value (x), or where there was a moral obligation 
 for her to resort to such income (y). But, by 44 & 45 
 Vict. c. 41, s. 39, the Court was empowered, with her 
 
 (9) Hood - Bans v. Ileriot, 
 (1896) A. C. 174; 65 L. J. Q. B. 
 352; see Loftus v. Heriot, (1895) 
 2 Q. B. 212; (1896) A. C. 174; 
 Whiteley v. Edwards, (1896) 2 
 Q. B. 48; 65 L. J. Q. B. 457; 
 Burnett v. Hoivard, (1900) 2 
 Q. B. 784; 69 L. J. Q. B. 955; 
 Brown v. Dim bleb i/, (1904) 1 
 K. B. 28; 73 L. J. K. B. 35; 
 Bolitho V. Gidley, (1905) A. C. 
 98; 74 L. J. K. B. 430. 
 
 (r) Clive v. Carew, 1 J. & H. 
 199; Arnold v. Woodhams, 16 
 Eq. 29. 
 
 (s) Fitzrjibbon v. Blake, 3 Ir. 
 Ch. Rep. 528; Pike v. Fitzgibbon, 
 17 Ch. D. 454; 50 L, J. Ch. 394; 
 
 Ee Pelleiv, 14 Q. B. D. 973. 
 
 (t) Sanger v. S., 11 Eq. 470; 
 London and Prov. Bank v. Boqlc. 
 7 Ch. D. 773. 
 
 (m) B'Oechsner v. Scott, 24 
 Beav. 239; In re Keane, 12 Eq. 
 115. 
 
 (a;) Robinson v. Wheehoright, 
 21 Beav. 214; 6 De G. M. & G. 
 535; Gaskell's Trusts, 11 Jiir. 
 N. S. 780. 
 
 (y) Ellis V. Johnson, 31 Ch. D. 
 532; 55 L. J. Ch. 325; Cox v. 
 Bennett, (1891) 1 Ch. 617; 60 L. 
 J. Ch. 651; Bolton v. Curre, 
 (1895) 1 Ch. 544; 64 L. J. Ch. 
 164.
 
 RESTRAINT ON ANTICIPATION. 431 
 
 consent, to bind her interest, where it appears to be for 
 her benefit, notwithstanding tlie restraint. Under this 
 power the Court has released the restraint so as to pro- 
 vide for the payment of pressing creditors (2') ; but the 
 Court has no general power to dispense with the restraint 
 on the mere request of a married woman (a). The exercise 
 of the power is entirely discretionary, and it is only 
 applied where the benefit to the married woman is estab- 
 lished (?>). It may be exercised wholly or in part, and 
 subject to any conditions the Court may think fit to 
 impoise (c) . Mere increase of income is not a sufficient 
 benefit to justify the removal of the restraint (d). The 
 above quoted section has been repealed by the Convey- 
 ancing Act, 1911 (e), which enacts, in lieu thereof, that 
 where a married woman is restrained from anticipation or 
 alienation in respect of any property or any interest in 
 property belonging to her, or is by law unable to dispose 
 of or bind such property or her interest therein, including 
 a reversionary interest arising under her marriage settle- 
 ment, the Court may, if it thinks fit, where it appears 
 to be for her benefit, by judgment or order, with her 
 consent bind her interest in such property. This section 
 applies only to judgments or orders made after the com- 
 mencement of the Act. By the Settled Land Act of 
 1882, it is provided that a married woman may exercise 
 her powers under the Act notwithstanding a restraint on 
 anticipation (/). 
 
 It appears that the clause restraining anticipation does Acquiescence 
 not exempt a married woman from the consequences of promise. 
 
 (z) Eodges v. H., 20 Ch. D. (c) Re Milner's Settlement, 
 
 749; 51 L. J.Ch. 549; Re Little's (1891) 3 Ch. 547; 61 L. J. Ch. 
 
 Will, 36 Ch. D. 701; 56 L. J. 84; Prtgre;; v. P., (1898) 1 Ch. 47; 
 
 Ch. 872. 67 L. J. Ch. 266. 
 
 (a) Re Warren's Settlement, 62 (d) Re Blundell, (1901) 2 Ch. 
 
 L. J. Ch. 928. 221; 70 L. J. Ch. 522. 
 
 (6) See Re Pollard's Settle- (e) 1 & 2 Geo. V. c. 37, s. 7. 
 
 ment, (1896) 1 Ch. 901; 2 Ch. (/) 45 & 46 Vict. c. 38, s. 61, 
 
 552; 65 L. J. Ch. 796; Harrison sub-s. 6. 
 V. E., 40 Ch. D. 418.
 
 432 
 
 MARRIED WOMEN. 
 
 lapse of time and acquiescence {g), nor prevent her from 
 binding herself by a compromise with her trustees {h), but 
 any such arrangement must, in order to b© effective, be 
 made with full knowledge of the facts (^). 
 
 The effect of the Married Women's Property Act, 
 1893 (Jc), is considered on a later page {I). 
 
 Pin-money. 
 
 Definition. 
 
 Arrears, 
 how far 
 recoverable. 
 
 Pin-money. 
 
 Analogous to separate estate, but in some respects 
 requiring separate consideration, is what is termed the 
 pin-money of the wife. It has, indeed, been said to be 
 impossible precisely to express the distinction between 
 pin-money and separate estate (m). 
 
 Pin-money may, however, be sufficiently described as an 
 allowance settled upon a wife before marriage for the 
 purpose of her separate personal expenditure. It is 
 designed to defray her personal expenses, and to purchase 
 dress and ornaments suitable to her husband's rank, sa 
 that it shall not be necessary for these purposes that she 
 should be continually applying to her husband for money. 
 Gifts and payments of money made for the same purposes 
 by the husband during the coverture, are also considered 
 as pin-money. 
 
 Almost the only questions respecting pin-money which 
 come under judicial notice are those connected with claims 
 for payment of arrears after a husband's death. The rules 
 respecting such claims sufficiently distinguish pin-money 
 from ordinary separate estate. 
 
 As a rule, when a wife permits her pin-money to run 
 considerably in arrear, she cannot on the death of her 
 husband claim payment for more than one year prior to 
 
 (gr) Berbishire v. Ilome, 3 De 
 G. M. & G. 80. 
 
 (A) Wilton V. Hill, 25 L. J. 
 Ch. 156. 
 
 (t) Bateman v. Faber, (1897) 
 
 2 Ch. 223; (1898) 1 Ch. 144; 67 
 L. J. Ch. 130. 
 
 {k) 56 & 57 Vict. c. 63. 
 
 (0 P. 459. 
 
 (m) Howard v. Bigby, 8 Bli, 
 N. R. 259.
 
 PARAPHERNALIA. 433 
 
 his death (w). Tho ineomo of her separate estate she may No right to 
 save or spend as she pleases; but the purpose for which 
 pin-money is ])i-ovidetl is for expenditure as may be neces- 
 sary; and it' not required, if, for instance, the husband 
 chooses to (li^fray the expenses which would fairly come 
 within it, tlio wife has no right to accumulate it. If, 
 indeed, the hus])and has actually paid for all the wife's 
 apparel, and provided for all her private expenses, it has 
 been held that her pin-money is thereby satisfied, and 
 that she cannot claim any arrears at all at his death (o). 
 Again, pin-money being required only for the wife per- 
 sonally, her executors have no right to claim any 
 arrears (o). 
 
 The only case in which more than one year's arrears has 
 been allowed was where it appeared that the wife had 
 complained of short payments of the money, and her 
 husband had promised that she should have it at last. 
 There she was held entitled to all the arrears due at her 
 husband's death (p). 
 
 Paraphernalia. 
 
 Such apparel and ornaments of a wife as are suitable to Paraphernalia 
 her condition in life, such as jewels, &c. given to her to 
 be worn on her person, are called her paraphernalia (g). 
 The family jewels of the husband, though worn by the 
 wife, are not included, unless she acquires them as such 
 by gift or bequest (r). As to gifts of jewels by a husband 
 to his wife after marriage, it apparently depends on the 
 intention whether they shall be deemed paraphernalia or 
 -separate estate. If given only for the express purpose of 
 her wearing them, they are paraphernalia (s); if given to 
 
 (n) Aston v. A., 1 Ves. sr. (p) Hideout v. Lewis, 1 Atk. 
 
 267; Townshend v. Windham, 2 269. 
 
 Ves. sr. 7. {q) Graham v. Londonderry, 3 
 
 (o) Thomas v. Bennett, 2 P. Atk. 394. 
 
 Wms. 341; Howard v. Dighy, (r) Jervoise v. J., 17 Beav. 
 
 sup. 570. 
 
 (s) Ibid. 
 
 S. 28 .
 
 434 
 
 MARRIED WOMEN. 
 
 Husband's 
 power over 
 parapher- 
 nalia. 
 
 Liability 
 to husband's 
 debts. 
 
 her absolutely, they become separate property (t). Such 
 articles given by a person other than the husband are 
 usually deemed to constitute separate property (u). Wear^ 
 ing apparel purchased by a wife with money supplied 
 by her husband has been held to be prima facie her 
 property, and in the absence of evidence to rebut this 
 presumption, cannot be claimed by the husband as para- 
 phernalia {x). 
 
 During the life of the husband and wife, the husband 
 may dispose of the wife's paraphernalia either by sale or 
 gift inter vivos ; but he cannot dispose of them by will {y). 
 If, however, he purports to do so, and by the same will 
 confers other benefits upon his wife, she will be put 
 to her election between her paraphernalia and such 
 benehts {z). The wife has no power to dispose of her 
 paraphernalia, either by gift or will, during the husband's 
 lifetime (a). 
 
 The pai'aphernalia are liable to the debts of the hus- 
 band (6), but in the administration of the assets of a 
 deceased husband, his widow's claim to paraphernalia m 
 preferred to the general legacies (c). She is, therefore, 
 entitled to marshal the assets in her favour in all cases 
 in which a general legatee can do so {d). Where, more- 
 over, the husband in his lifetime has not alienated but 
 has merely pledged his wife's paraphernalia, on his death 
 she is entitled to have them redeemed, if the estate be 
 sufficient, even to the prejudice of his legatees; her claim, 
 being higher than that of pure volunteers (e). 
 
 (<) (Irahiim v. Londonderry , 3 
 Atk. 394; Grant v. G., 13 W. R. 
 1057; Williams v. Mercier, 10 
 App. Cas. 1; 9 Q. B. D. 337; 51 
 L. J. Q. B. 694. 
 
 (m) Lums V. Z., 1 Atk. 270. 
 
 \x) MuHHon V. Be Fries, (1909) 
 2 K. B. 831, 79 L. J. K. B. 24, 
 comraentint^ on Tasker v. T., 
 (1895) P. i; 64 L. J. P. D. & A. 
 36. 
 
 (y) Seymore v. Tresilian, 3 
 Atk. 358. 
 
 (z) Churchill v. Small, 2 
 Kenj'on, pt. 2, p. 6. 
 
 {a) 1 Bright. H. & W. 287. 
 
 (ft) Campion v. Cotton, 17 Ves. 
 273. 
 
 (r) Tippinq \. T., I P. Wms. 
 729. 
 
 (d) See inf. p. 609. 
 I (e) Graham- v. Londonderry, 
 sup.
 
 KQUITV TO A SKTILKMENT. 435 
 
 TI. The Equiti/ to a ^ettlem&nt. 
 
 Tlu' second of tho iin[)Oi-taiit ])riiif'iples by which equity 
 modified the doctrines of coninioii hiw respecting the status 
 of married women, is that known as the wife's equity to a 
 settlement. 
 
 It has already been stated that, owing to the provisions How far 
 of the Act of 1882, this doctrine has all but become obso- ° ^°® • 
 lete. That this is so is apparent from sects. 2 and 5 of the 
 said statute. By the former section it is enacted that every 
 woman who marries after the connnencement of this Act 
 (1 January, 1883), sliall be entitled to hold as her separate 
 property and to dispose of all real and personal property 
 which shall belong to her at the time of the marriage, or 
 shall be acquired by or devolve upon her after marriage. 
 It follows that as to all women married after the date 
 named the doctrine in question has no application, since as 
 to them, the husband will no longer take any interest in 
 his wife's property, whether belonging to her at the date 
 of the marriage or accruing afterwards. 
 
 Further, by sect. 5 it is enacted that every woman 
 married before the commencement of the Act shall be 
 entitled to hold and dispose of as her separate property all 
 real and personal property, her title to which, whether 
 vasted or contingent, and whether in possession, reversion, 
 or remainder, shall accrue after the commencement of the 
 Act. Thus, the Act has no retrospective effect so as to 
 interfere with the marital rights of a husband already 
 accrued; but, in this respect differing from the Act of 
 1870, it does not save the rights of husbands already mar- 
 ried respecting property henceforth accruing to the wife. 
 The result is that for the future the only application of the 
 doctrine of an equity to a settlement is to reversionary 
 interests which were vested, in women married before the 
 
 28 (2)
 
 436 
 
 MARRIKl) WOMKN. 
 
 Settlement 
 3i8 against 
 husband 
 when 
 plaintiff. 
 
 Against 
 assignees of 
 insolvent 
 husband. 
 
 Against 
 purchaser. 
 
 Settlement at 
 
 Ist of Januaiy, 1883, but, which fall into possession after 
 that date (/). 
 
 Under these circumstances a brief exposition will suffice 
 of a principle which, in the course of a few years, will 
 have ceased to have anything more than an historical 
 interest {g) . 
 
 Originating in the familiar maxim that " he who seeks 
 equity must do equity,'' the doctrine by which Courts of 
 equity decreed, as against a husband, a settlement of such 
 property as he received in his wife's right was at first 
 only applied in cases in which it was necessary for the 
 husband to seek the assistance of the Court in order to 
 obtain possession of the wife's property. 
 
 But the jurisdiction which was thus first exercised only 
 when the husband came before the Court as a plaintiff, did 
 not long remain so confined. The next step in its develop- 
 ment was its application against the assignees of a bank- 
 rupt or insolvent husband, or under a general assignment 
 for the payment of his debts, these being held entitled to 
 relief only on the same terms on which it would have been 
 granted to the husband himself (h). 
 
 Then, on the ground that it was absurd to allow a hus- 
 band by an assignment for valuable consideration to put 
 the assignee in a better position than himself, and thus 
 indirectly to defeat the equity of the wife, the Court 
 maintained the same doctrine in suits by purchasers (i) 
 and mortgagees (fc). 
 
 Lastly, we come to the full development of the prin- 
 
 (/) Seid V. H., 31 Ch. D. 401; 
 55 L. J. Ch. 756; overruling 
 Baynton v. Collins, 27 Ch. D. 
 604; 53 L. J. Ch. 112; and lie 
 Thompson and Curzon, 29 Ch. D. 
 177; 54 L. J. Ch. 610. 
 
 (p') That this is so is confirmed 
 hy the fact that not a single case. 
 has appeared for decision under 
 this head of equity since the last 
 edition of this work. Neverthe- 
 less, ita place in the history of 
 
 equity jurisprudence is such, that 
 it is not yet deemed expedient to 
 exclude the subject from these 
 pages. 
 
 (A) Oswell V. Probert, 2 Ves. 
 jr. 680; Jeivson v. Mouhon, 2 
 Atk. 417, 420. 
 
 ((■) Macnulay v. Philips, 4 Ves. 
 15, 19. 
 
 (k) Roott V. Spashet.Z Mac. & 
 0. 599.
 
 EQUITY TO A SETTLEMKNT. 4ST 
 
 ciple in the leading case of Elihank v. Montolieu (l), in theauitof the 
 which a wife was permitted to assert her right in equity as 
 a plaintiff without the necessity of waiting until her hus- 
 band might need the aid of the Court. 
 
 1. The nature of the right. 
 
 The right to assert or to waive the equity to a settle- Equity to » 
 ment rests solely with the married woman, but this not- indudes 
 withstanding, the right may not as a rule be insisted upon children. 
 by her for her exclusive benefit. When, from the nature 
 of the estate or fund in question, provision can at the same 
 time be made for her children, this is invariably done. 
 Her equity and the equity of the children are treated as 
 one equity, and if asserted, it must be asserted for their 
 common benefit (m). 
 
 The consequence of the right being personal to her is, 
 that if she dies without having taken any steps to claim it, 
 the children cannot set up a claim («). And further, the She majr 
 wife may, at any time before the settlement is completed, 
 waive her right to it, and thus defeat the interest of her 
 children (o). But if, as in the case of Murray v. Eli- 
 hmik (p), a decree of reference has been made to approve 
 a proper settlement, and then the wife dies without having 
 waived it, the children are entitled to the benefit of the 
 decree, even though they may not have been mentioned 
 therein (q). 
 
 The making of the decree marks the exact point at children''s 
 
 which the right of the children attaches. The fact that "&^* attaches- 
 
 Til 1 1 I • p ^° decree^ 
 
 proceedings have been commenced by the wife to secure 
 
 a settlement is not sufficient (r). Still less would notice 
 
 (0 5 Ves. 737; 1 W. & T. Madd. 450, 467. 
 
 L. C. 621, ed. 7; and see Jfobin- (p) 10 Ves. 84; 13 ib. 1; 1 
 
 «0M V. E., 12 Ch. D. 188. W. & T. L. C. 621, ed. 7. 
 
 (>«) Johnson v. J., 1 J. & W. (^) Howe v. Jacfrson. Dick. 
 
 472, 479. 604; Groves v. Perkins, 6 Sim. 
 
 00 Scriven v. Tapley, 2 Eden, 584; 1 Kee. 132. 
 
 337. (r) De la Garde v. Lempriere^ 
 
 (o) Hodgens v. H., 11 Bli. 6 Beav. 344; Lloyd v. Mason, 6 
 
 N. S. 104; Lloyd v. WiUi-ams, 1 Ha. 149.
 
 438 
 
 MARRIED WOMP]N. 
 
 or on contract 
 for 
 
 flettlemeut. 
 
 The equity 
 only attaches 
 ix> what 
 
 given by her to trustees iu whom the fund was vested 
 avail (s). But the right of the children will attach when 
 the wife has entered into a contract with her husband 
 or with her husband's assignees for a settlement of her 
 property (t). 
 
 Where, therefore, such a decree lias been made or con- 
 tract entered into, the children have a vested right to a 
 provision, which is, however, liable to be divested by a 
 waiver of the right by the wife (u); but her death without 
 waiver will not prejudice it. This position continues 
 until the execution of the settlement decreed or agreed 
 upon; from which time the right of the children becomes 
 indefeasible, the Avifo having no longer the power to waive 
 it (x). 
 
 Having already seen that a married woman's equity to 
 a settlement may now be generally asserted by her as 
 against her husband and his assignees, whether in bank- 
 ruptcy or for valuable consideration, the next considera- 
 tion is as to what property is affected by her right. 
 
 2. Out of ivhat properti/ a settlinnent can he claimed. 
 
 In the consideration of the different species of property 
 •affected by a wife's equity to a settlement, we shall be 
 assisted by first observing two general principles respect- 
 ing the doctrine. 
 
 (1.) Th(> equity to a settlement does not attach on what 
 a wife takes in her own right, but ujion what the husband 
 
 husband t«kes takes in right of the wife. Thus, if property descends 
 .Tight. upon a married woman as tenant in tail, whatever her right 
 
 to a provision out of the income, which her husband would 
 at law be entitled to receive, she would have and would 
 need no equity to a settlement out of the corpus, to which 
 the law gave him no claim in right of his wife {y). 
 
 (s) Wrillace V. Auldjo, 2 Dr. iV; 
 S. 216, 222. 
 
 ' (<) Lloyd V. Willinms, 5 Ha. 
 149. 
 
 (m) Fenner v. Taylor, 2 Russ. 
 
 lV M. 190. 
 
 (x) Barker v. Lr.a, 6 Madd. 330. 
 
 ((/) Life Assoc, of Scotland v. 
 Siddnl, 3 De G. F. & J. 271; 
 Re Cumming, 2 ib. 376.
 
 EQUITY I'O A SETTLEMENT. 
 
 439 
 
 (2.) The equity to a settlement attaches not on the pro- It <mly 
 
 , „ , 1 • I • • 1 1 • attaches on 
 
 perty itselt, but on the right to receive it; that is to say, the right 
 
 it only ai'ises on the husband's leffal riffht to present *° receive the 
 
 oo I property. 
 
 possession. Thus, a wife cannot claim a scttlomont out 
 of a reversionary interest in property as long as it con- 
 tinues reversionary (z). 
 
 Bearing in mind these general principles, wo shall the 
 more easily follow the classification of those species of pro- 
 perty subject to the obligation of a settlement. 
 
 From the nature of the case it is evident that we have Generally 
 as a rule only to deal with equitable estates and interests, estates^^ ^ 
 Such property as the husband could recover at law without (-onsidered, 
 the assistance of a Court of equity is unaffected by a 
 doctrine which took its rise nierel}^ in the form of a condi- 
 tion imposed by equity on the granting of its assist- 
 ance («). And though by the Judicature Act (6) equitable 
 estates and interests are now recognisable in Courts of law, 
 this makes no difference, inasmuch as, by the same autho- 
 rity, the wife's equity would likewise be enforceable there. 
 If, however, the property, though in its nature legal, though legal 
 becomes from collateral circumstances the subject of a suit subject to 
 in equity, the wife's equity attaches; Lord Cottenham suit, is liable, 
 considering that whatever cause brought the parties before 
 the Court brought them within the operation of the 
 maxim, ''He who seeks equity must do equity " (c). 
 
 The equity to a settlement clearly attaches upon cquit- Equitable 
 
 able choses in action to which the husband becomes entitled choses m 
 
 action and 
 
 in the right of his wife (cZ). Though in some circum- estates fee or 
 stances a settlement for life may be made out of an equit- 
 able estate of inheritance, equity will not interfere with 
 the possible estate by curtesy of the husband (e). The 
 
 {z) Osborii V. Morf/an, 9 Ha. P«/;/e, 1 De G. J. & S. 87 ; Osivell 
 
 434. " V. Probert, 2 Ves. jr. 680. 
 
 («) But SCO Riiflcs \. Alston, (d) Burdon v. Bean, 2 Ves. jr. 
 
 19 Eq. 539, 546. 607; Smith v. Matthews, 3 De G. 
 
 (Jj) 36 & 37 Viet. c. 66. F. & J. 139. 
 
 (c) Sturgis v. ChampnetjK, 5 (^) t^mith v. Mnttheios, sup. 
 My. & Cr. 97; and see Gleai-es v.
 
 440 
 
 MARRIED WOMEN. 
 
 Leaseholds 
 legal, 
 
 equitable. 
 
 Life intereNtw 
 when subject 
 to settlement. 
 
 fact, moreover, of a legacy being charged uj)Oii land, with 
 a power of entry and receipt of the rents and profits, doe& 
 not so deprive it of its equitable character as to interfere 
 with the wife's right (/). 
 
 Where a husband in the right of his wife becomes 
 entitled to a legal interest in leaseholds, the wife cannot 
 claim a settlement thereout, and the husband can effec- 
 tually dispose of them by sale or mortgage {g). But if 
 the legal estate of leaseholds is in a trustee for the wife, it 
 is clearly decided that any disposition the husband may 
 make is subject to his wife's equity Qi). 
 
 Where the interest of the married woman is for life 
 only, it depends on circumstances whether she can claim a 
 settlement thereout. It is clear that if the husband has 
 deserted his wife, or if he fails through insolvency to pro- 
 vide for her, equity will settle the fund on her as against 
 her husband, and also as against anyone claiming under 
 him by virtue of an assignment for value made subse- 
 quently to the bankruptcy (*); therefore, a fortiori, as 
 against his trustee in bankruptcy {k). 
 
 It is also clear that if the husband is living with and 
 maintaining his wife, she cannot claim a settlement out of 
 a life interest against a particular assignee for value of her 
 husband (T) ; and if such an assignment has been made, it 
 cannot afterwards be disturbed by any subsequent miscon- 
 duct of the husband in not maintaining her, or by his 
 subsequent bankruptcy (m). And further, the right 
 cannot under the same circumstances be asserted as against 
 the husband himself. From the nature of the case the 
 children could not participate in the settlement, and, a« 
 
 (/) Duiicomhe v. Greenacre, 28 
 BeJiv. 472; 2 De G. F. & J. 509. 
 
 (^) Hatchell v. E(fr/leso, 1 Ir. 
 Ch. 215; Hill v. Edmonds, 5 De 
 G. & S. 603. 
 
 (k) Hanson v. Keating, 4 Ha. 1. 
 
 (i) SUtrffis V. Champneys, 5 
 My. & Cr. 97; Wright v. Morley, 
 11 Ves. 12; Elliott v. Cordell, 5 
 
 IMad. 149; Boxall v. B., 27 Ch. 
 D. 220; 53 L. J. Ch. 838. 
 
 (A;) Lumb v. Milnes, 5 Ves. 
 517; Tounfon v. Morris, 8 Ch. D. 
 453; 11 ib. 779. 
 
 (/) Tidd V. Lister, 3 De G. 
 M. & G. 857, 869. 
 
 (m) Ibid. 870; Re Carr's Tr., 
 12 Eq. 609; Elliott v. Cordell.step.
 
 EQUITY TO A SKT'l'LEMLNT. 
 
 441 
 
 between husband and wife, as long- as he performs his 
 duty, he is entitled to his legal rights (n). 
 
 It is clear, moreover, that a wife is not entitled to any Arrears of 
 settlement out of arrears of income accruing due before "''"™®- 
 she has set up any claim thereto. Such income will be 
 paid to her husband or his assignees (o). 
 
 3. Waive?' of settlement. 
 
 Wc have seen that, as a general rule, it is within the 
 option of a married woman to bar her own equity and that 
 of her children by waiving her right to a settlement. But When there 
 it is not in all cases and at all times open to a married, ^vaiver. 
 woman to waive her right. Thus, she cannot do so during Infant, 
 infancy (p). A female ward of Court married without its Ward .>f 
 
 •; ^^'^ Court. 
 
 authority cannot consent (g), except, perhaps, where the 
 marriage has been with the consent of her guardian (r) . 
 
 Further, consent will not be taken until the amount of Fund luunt be 
 the fund in question is ascertained (s); nor will it be 
 binding if it has been made under the influence of 
 mistake (t). 
 
 Notwithstanding that consent has been gi^ en, it may be Consent 
 retracted at any time before the payment to the husband be retractwi ^ 
 is made, or the transfer completed {ii); and, apart from 
 that, the Court has power to postpone in its discretion 
 the payment or transfer (x). 
 
 4. What circumstances will bar the equity to a settle- 
 ment. 
 
 Not merely may a married woman deprive herself of her 
 equity to a settlement by a voluntary waiver, but there are 
 
 (w) Vaughan v. Buck, 13 Sim. (r) Bennett v. Biddies, 10 Jur. 
 
 404. 534. 
 
 (o) Newman v. Wilnon, 31 (s) Edmunds v. Townshend, 1 
 
 Beav. 34; In re Carr's Tr., sup. Anst. 93. 
 
 (jp) Stubbs V. Sargon, 2 Beav. (^t) Watson v. Marshall, 17 
 
 496; Shipway v. Ball, 16 Ch. D. Beav. 363. 
 
 376. (m) Pen fold v. Mould, 4 Eq. 
 
 (^q) Stackpoole v. Beaumont, 3 562. 
 
 Ves. 89. (a?) Wright v. Rutter, 2 Vea. 
 
 673, 677.
 
 442 
 
 MAKKIKI) WOMEN, 
 
 Reduction 
 into 
 
 possession . 
 
 Wife 
 
 ijisolvent. 
 
 Adequate 
 settlement 
 already made. 
 
 Alienation by 
 the wife. 
 
 many circumstances, apart from such consent, which will 
 effectually prevent her assertion of the right. Thus, — 
 
 (1.) Where the property, whether corpus or income, has 
 once come to the hands of the husband or his assignee, the 
 wife can no longer claim her equity. And no transfer or 
 payment so made by a trustee before action brought can 
 be afterwards disturbed (y). 
 
 (2.) When a woman, at the time of her marriage, owes 
 more than the whole amount of her property, she has no 
 equity to a settlement out of it {z). But the mere fact of 
 her having been indebted at that time would not pre\'ent 
 her claiming a settlement out of so much of the fund as 
 remained after making provision for the payment of the 
 debts (a). Her equit}' is not wholly defeated by the fact 
 that her husband is indebted to the estate to an amount 
 exceeding the wife's interest (/>). 
 
 (3.) If an adequate settlement has already been made 
 upon her, the wife's equity to a settlement is barred 
 for the future (c). It may also be barred by an express 
 stipulation to (hat effect made before marriage, even 
 though the settlement was inadequate (d). If the original 
 settlement is adequate, it is not essential that it should 
 have been made by the husband (e). 
 
 (4.) The equity to a settlement may be lost by the 
 alienation by the wife of the property concerned. It is 
 necessary, therefore, here to consider by what means such 
 alienation may be effected. But it must be carefully 
 observed that the following matter under this head applies 
 only to the very limited number of cases in which the in- 
 terest in question vested, prior to 1st January, 1883, in a 
 woman married prior to that date. In all other cases, a 
 
 (y) Milner v. Coliner, '2 1'. 
 Wms. 639, 641; AUdraf v. 
 Fletcher, 1 De G. &. J. 82. 
 
 (z) Bonner v. B., 17 Beav. 86. 
 
 («) Barnard v. Ford, 4 Ch. 247. 
 
 (b) Poulter V. Shnckel, 39 Ch. 
 D. 471; 57 L. J. Ch. 953; Knirjht 
 V. K., 18 Eq. 487. 
 
 {c) J ji re Erskine's Tr., 1 K. 
 >!c J. 302. 
 
 (fO Salway v. S., Amb. 692; 
 'lorfortk V. Bradley, 2 Ves. sr. 
 675. 
 
 (p) Giacometti v. Prodgey, 8 
 Ch. 338.
 
 JXiUlTY TO A SETTLEMENT. 443 
 
 married woman has, by virtue of the Act of 1882 (/), the 
 same power of disposition as a feme sole. 
 
 (i.) As to realty. 
 
 B}^ virtue of the Fines and Recoveries Act (^r), and Aw to realty, 
 the Real Property Amendment Act (i^), a married jy \, ~^.' 
 woman might dispose of her estates of freehold, and also 8 & 9 Vict, 
 release or assign any sum of money charged on lands, 
 •or the produce of land directed to be sold, by a deed 
 dul}- acknowledged by her, after separate examination 
 before a judge or a commissioner, and made with the 
 concurrence of her husband (i) . This applies to interests 
 in reversion as well as to those in possession (fc) ; but her 
 interest must, at the date of the disposing deed, rest on an 
 existing title, legal or e(|uitable. A mere expectation is 
 not within the statutes (?). 
 
 She might also dispose of her copj^holds by surrender, 
 jointly with her husband, on being S(*parately examined 
 by the steward or his deputy. 
 
 (ii.) As to personalty. 
 
 A married woman's jaersonal estate, as we have seen, Personalty, 
 vests in her husband on the marriage. During the 
 marriage, therefore, she has no ]>ower of disposition 
 over it, except in case of property or powers falling within 
 20 & 21 Vict. c. 57, presently mentioned. If her 
 husband reduces her choses in action into possession they 
 become his. If not, and his wife survives liim, she will 
 be entitled to them. 
 
 3y 20 & 21 Vict. c. 57 (commonly known as Malins' 20 & 21 Vict. 
 Act), it was enacted that, after the 31st of December, 1857, ^- ^^• 
 it should be lawful for a married woman (not restrained 
 from anticipation) to release or extinguish any power 
 Avhich might be vested in or limited to or reserved to her 
 
 (/) 45 & 46 Vict. c. 75, s. 1. (k) Miller v. Collins, (1896) 1 
 
 (^) 3 & 4 Will. IV. c. 74. Ch. 573; 65 L. J. Ch. 353. 
 
 (A) 8 & 9 Vict. c. 106. (I) Allcrird v. TValker. (1896) 
 
 (0 45 & 46 Vict. c. 39, s. 7. 2 Ch. 369; 65 L. J. Ch. 660.
 
 444 
 
 MAKKIED WOMEN. 
 
 in regard to any personal estate, as fully and effectually 
 as she could do if she were a feme sole, and also to release 
 or 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 instrument 
 made after the 31st of December, 1857 (m) . Her husband 
 must, however, concur in the deed effecting this purpose, 
 and the deed must be acknowledged in the manner 
 prescribed by the Fines and Recoveries Act, varied by 
 the Conveyancing Act, 1882, as above quoted. 
 
 Fraud. (5.) A married woman's equity to a settlement may 
 
 be barred by her fraud; for instance, by her concealing^ 
 the fact of her marriage from a purchaser (n) . 
 
 Adultery. ^6.) If a wife is living in adultery apart from her hus- 
 
 band, her right is generally barred (o); but if the husband 
 also is living in adultery, it is not so (p) ; nor if, being a 
 ward of Court, she marries without its consent (g) . 
 
 Moreover, it seems that, even in the absence of such 
 circumstances, the husband will not be allowed to receive 
 the whole of the property of a wife who is living in 
 adultery, if he does not maintain her (r). 
 
 5. Amouuf of the settlement. 
 
 Where a wife has established her equity to a settlement,. 
 and the amount to be settled is not agreed upon between 
 the husband and wife, the Court, in determining this, 
 is guided by a consideration of the circumstances of the 
 whole case and has a free discretion (s) . We shall 
 consider separately the settlement of income and the 
 settlement of corpus. 
 
 (tn) Sect. 1. See Lay bom v. 
 Grover-W right, (1894) iCh. 303; 
 63 L. J. Ch. 392. 
 
 («) In re Lush's Tr., 4 Cli. 
 591 ; but see and distinguish 
 Bateman v. Faber, (1897) 2 Ch. 
 223; (1898) 1 Ch. 144; 67 L. J. 
 Ch. 130. 
 
 (o) Cqrr V. Eastahrook, 4 Ves. 
 146. 
 
 (j)) Greedy v. Lavender, 13 
 Beav. 62. 
 
 (y) Ball V. Coutts, 1 V. & B.. 
 292, 302, 304. 
 
 (r) Ball V. Montgomery, 2 Ves.. 
 jr. 191. 
 
 (s) Carter v. Taggart, 1 De G. 
 M. & G. 289; Re Suggitt's TrustSy. 
 3 Ch. 215.
 
 KQUITY TO A SKTTLEMKNl'. 445 
 
 (1.) As to iTicome. 
 
 As a general rule, where the liusbaiid is solvent and has Husband 
 been guilty of no misconduct, the Court will not interfere income. 
 with his legal right, but will allow him to receive the 
 whole income of the property. It is satisfied with retaining 
 the capital, so as to give the wife a chance of taking it 
 by sui'vivorship {t). 
 
 But if the husband deserts his wife and leaves her Sn->u if he 
 unprovided for, she is entitled to the payment of the 
 income of her property to herself {u) . 
 
 We have already iseen that with respect to a life interest, 
 a wife is entitled, in the case of desertion by, or the bank- 
 ruptcy of, the husband, to a settlement on herself as against 
 the husband, or his trustee in bankruptcy, or against an 
 assignee for value, if the assignment has been made subse- 
 quently to the desertion. And it has been decided that 
 such settlement may extend to the whole of the income {x). 
 As long as the husband supports her, she cannot claim 
 a settlement as against him, or against his assignee for 
 value (^). Even in the case of a husband's insolvency, 
 a settlement of income was refused where the wife had 
 already an adequate provision for her separate use (2). 
 
 (2.) As to capital. 
 
 The general rule, in the absence of special circumstances, ^^e half 
 is that one half of the wife's property shall be settled mie, 
 upon her, and the other half go to the husband or his 
 
 assignees (a) . 
 
 This is, however, quite a matter for the discretion of the ^"it subject to 
 
 discretion. 
 
 (t) Sleech\.Thorington,2Ye^. Ch. D. 996; 54 L. J. Ch. 977; 
 
 sr. 561; Atcheson v. A., 11 Beav. Reid v. 7?., 33 Ch. D. 220; 55 
 
 485. L. J. Ch. 756. 
 
 (m) Gilchrist v. Cator, 1 De G. (y) Sup. p. 440. 
 
 & Sm. 188; Dunkley v. D., 4 De (z) Aguilar v. A., 5 Madd. 414. 
 
 G. & S. 570; 2 De G. M. & G. (a) Jewson v. Mouhon, 2 Atk. 
 
 390; and see Massey v. Spark, 417, 423; Spirett v. Willows, 1 
 
 (1904) 1 Ch. 451; 73 L. J. Ch. Ch. 520; 4 Ch. 407; Roberts v. 
 
 259. Cooper, (1891) 2 Ch. 335; 60 
 
 ix) Taunton v. Morris, 11 Ch. L. J. Ch. 377. 
 D. 779; Fowke v. Draycott, 29
 
 446 
 
 MAKUIKU WOMEN. 
 
 Circum- 
 stances 
 of inflxience. 
 
 Usual 
 limitations. 
 
 Court, which will take into consideration the amount of 
 the wife's fortune already received by the husband; any 
 previous settlement which may have been made (6); 
 whether the wife has received an}' benefit out of the 
 husband's propert}- (c); the conduct and circumstances of 
 the husband (d), and the conduct of the wife (e). 
 
 Circumstances may appear under these considerations 
 Avhich will induce the Court to go so far as to settle the 
 whole fund on the wife. Where the husband has already 
 received a considerable fortune from her (/), where he 
 has become insolvent and no settlement has been made (g), 
 and where he has deserted or behaved cruelly to his 
 wife (^), the whole fund has been settled; and the same 
 was done where, in the absence of such circumstances, 
 the fund was small and barely sufficient for a provision 
 for the wife and children (i) . 
 
 6. Form of the settlewent . 
 
 The design of the settlement being to provide for the 
 wife and children, the Court will, as far as possible, accom- 
 plish this, but will not interfere with the marital legal 
 right farther than is necessary for this purpose. The usual 
 limitations will be, therefore, as to personalty, to give the 
 income either to the husband, or his assignee, or to the 
 wife for life for her separate use without power of antici- 
 pation, according to the circumstances above discussed, 
 and the corpus to her children after her death (/f ) ; if there 
 should be no issue the ultimate remainder will, it seems, 
 be to the husband absolutely, whether he survives the 
 wife or not(?). The fact of the husband's insolvency, or 
 
 (6) Green v. Otte, 1 S. & S. 
 250; Najner v. iV., 1 D. & W. 
 407. 
 
 (c) In re Erskine's Tr.^ 1 K. & 
 J. 302. 
 
 {(1) Coster V. C, 9 Sim. 597. 
 
 (g) G'lacomrtii v. Prodgej-s, 14 
 Eq. 253; 8 Ch. 338. 
 
 (/) Gardner v. Marshall, 14 
 Sim. 575. 
 
 (gr) Francis v. Brooking, 19 
 Beav. 347. 
 
 (A) Bunkley v. B., 4 De G. & 
 S. 570; Boxdll v. B., 27 Ch. D. 
 220. 
 
 (/) In re Kincaid's Tr., 1 
 Drew. 326; 17 Jur. 106. 
 
 (k) Gent v. Harris, 10 Ha. 383. 
 
 (l) Carter v. TaggnrI, 1 De G. 
 M. & G. 286; Cro'xton v. May, 9
 
 EQUri'Y TO A SEl'TLEMENT. 447 
 
 liis having assigned his intwest, or of the wife's relations 
 being in humble cireumstanees, is not sufficient reason for 
 deviating from this rule in favour of the wife, or her next 
 of kin (m) . 
 
 7. Hoiv far the settlement hinds creditors. 
 
 Where the Court decrees a settlement upon a wife, it Settlement 
 will be supported as a good settlement for valuable con- good 
 Sideration {n). consideration. 
 
 Further, if after marriage jjroperty accrues to the hus- 
 band in right of the wife, which the husband cannot reach 
 without the aid of the Court, and by agreement he consents 
 to such a settlement as the Court would have ordered, this 
 settlement will be maintained against creditors (o). 
 
 p]ven if trustees in possession of the property of a 
 married woman should, on the mere request of her hus- 
 band, transfer it to new trustees upon trust for her separate 
 use, such trust will be good as against his creditors {p). 
 
 But if the husband has once reduced into possession the 
 equitable choses in action of his wife, any subsequent 
 settlement of them must conform to 13 Eliz. o. 5, or it 
 will be void as against creditors (g) . The Bankruptcy Act, 
 1883 (r), provides that a settlement made on or for the 
 benefit of the wife or children of the settlor of property 
 which has accrued to the settlor in right of his wife, is 
 good against his trustee in bankruptcy. 
 
 Reduction into possession of wife's property by 
 husband. 
 
 Having seen that a husband s right to his wife's choses 
 in action depends upon his reducing them into possession, 
 
 Eq. 404; Walsh v. Wason, 8 Cli. (o) Wheeler v. Cnri/l, sup.; In 
 
 482; Spirett v. Willows, 1 Cli. re Wrai/'s Tr., 16 Jiir. 1126. 
 
 520; 4 Ch. 407. Qp) Ryland v. Smith, 1 My. & 
 
 (w) Carter v. Taggart, sup. Gr. 53. 
 
 («) Wheeler v. Caryl, Amb. {q) Ibid. ; Goldstnith w. Russell^ 
 
 121; Simson v. Jones, 2 R. & M. 5 De G. M. & G. 547. 
 
 365. (»•) 46 & 47 Vict. c. 52, s. 47.
 
 448 
 
 MARRIED WOMEN. 
 
 Payment to 
 husband. 
 
 Tr;insfer into 
 his uame. 
 
 Suit by 
 husband- and 
 wife. 
 
 Receiver. 
 
 Sale by 
 husband. 
 
 we are led to incjuire what acts auiount lo a induction into 
 possession . 
 
 1. The clearest case is of course where the husband 
 actually receives payment of the sum in question — for 
 instance, a sum due to her on a mortgage (s) . If, how- 
 ever, he so receives money in the character of trustee, 
 this will not amount to a reduction into posseesion (t). 
 
 2. The transfer of a wife's stock into her husband's sole 
 name, or even a transfer by his direction into the names 
 of trustees, upon trusts inconsistent with his wife's equit}', 
 amounts to a reduction into possession (w). But if such 
 transfer, or the investment of stock belonging to the wife, 
 be effected in a manner consistent with her equities, the 
 case will be otherwise, and her right by survivorship will 
 remain (x) . 
 
 3. If a husband and Avife together sue to recover choses 
 in action which belonged to the wife before marriage, 
 judgment in the action amounts to reduction into posses- 
 sion by the husband (y); thoughif he dies after judgment, 
 but before execution, the judgment will survive to the 
 wife (z) . But if the husband sues in his own name for a 
 chose in action accruing to his wife during the marriage, 
 and dies after judgment, his representatives, and not the 
 wife, will be entitled {a) . 
 
 4. 'Where the income of a married woman's life estate 
 had been ordered to be received and applied by a receiver 
 in a suit in payment of her husband's incumbrances, it 
 was held that arrears of income in the receiver's hands 
 which had not been paid as directed were, by the effect 
 of the order, reduced into possession (&). 
 
 5. A sale by a husband of his wife's choses in action. 
 
 («) Hees V. Keith, 11 Sim. 388. 
 
 (0 Baker v. Hull, 12 Ves. 497; 
 Wall V. Tomlinson, 16 Ves. 413. 
 
 (m) Hansen v. Miller, 14 Sim. 
 22. 
 
 (x) Ryland v. Smith, 1 My. & 
 Cr- .53. ' 
 
 (y) Sherrington v. Yates, 12 
 M. & W. 855. 
 
 (z) Bond V. Simmons, 3 Atk. 
 21. 
 
 (a) Oglander v. Boston, 1 Vern. 
 396. 
 
 (b) Tidd V. Lister, 2 W. R. 
 184; 3 De G. M. & G. 857.
 
 REDUCTION INTO POSSESSION. 449 
 
 followed by the purchaser's taking possession, will amount 
 to a reduction into possession (c) . 
 
 The general result is that any act which has the effect General 
 of changing the property in the choses in action will P"""P ®- 
 amount to a reduction into possession {d). But acts which 
 do not amount to this will not suffice. Thus, there has 
 been held to be no reduction into possession where there 
 was a fund set apart for payment to the husband (e); 
 where interest only had been paid to the husband (/) ; 
 where the husband proved against the estate of a bankrupt 
 indebted to his wife, but died before the declaration of 
 a dividend {g) . On the same principle, payment of a 
 part of a fund only amounts to reduction into possession 
 pro tanto (h) . As to a reversionary interest, an assign- 
 ment, whether particular or general, could not suffice to 
 bar the wife's right by survivorship (i). 
 
 If a husband fail actually to reduce his wife's choses in 
 action into possession during her lifetime, he will, upon her 
 death before him, be entitled to them as her administrator, 
 provided that he has not already made an assignment of 
 them, which, though ineffective against her if she survived 
 him, would be valid as against himself. If he dies 
 without taking out letters of administration, his personal 
 representative may become entitled by doing so (Jc) . 
 
 The rule is now w^ell established that a husband by Assienment 
 , . • (. » 1 • J • • 1 i. by husband. 
 
 assigning his wile s choses m action can give no better 
 right to another than that which he has himself. If the 
 wife survives the husband, the assignee of a reversionary 
 interest can take nothing. If the husband survives the 
 wife, the assignee is entitled to the property (l) . 
 
 (c) Widgenj v. Tepper, 5 Cli. (A) Nash v. N., 2 Madd. 133, 
 D. 516. 139; Scrutton v. Patello, 19 Eq, 
 
 (d) Aitcheson v. Dixon, 10 Eq. 369, 373. 
 
 589. (0 Mornshy v. Lee, 2 Madd. 
 
 (e) Blunt V. Bestland, 5 Ves. 16. 
 
 515. (^•) In the goods of Harding, 
 
 (/) Ibid. ; Bowman v. Corie, 2 2 P. & D. 394. 
 Vern. 190. (0 Purdew v. Jackson, 1 
 
 (g-) Anon., 2 Vern. 706. Russ. 1. 
 
 S. 
 
 29
 
 450 MARRIED womp:n. 
 
 Reversionary As to reversionary interests in particular, whether the 
 husband after the assignment dies in the lifetime of the 
 tenant for life, so that the chose in action cannot be 
 reduced into possession, or whether he survives her without 
 having actually reduced it into possession, the result is the 
 same — the chose in action will survive to the wife (m) . 
 Moreover, a release by a husband of a reversionary chose 
 in action of his wife is as inoperative against his wife as 
 his assignment would be {n) . 
 
 III. Fraud on Marital Rights. 
 
 Another head of equitable jurisdiction relating to 
 married women has apparently been rendered obsolete by 
 the provisions of the Act of 1882. As long as it was a 
 general rule of law that on marriage a husband became 
 entitled to the property of his wife, Courts of equity were 
 wont to interfere to prevent a wife from committing a 
 fraud on this right by a secret alienation of her property 
 during the treaty of marriage. The legal right having 
 been destroyed by the Act of 1882, the foundation of the 
 equitable wrong formerly relieved against no longer exists, 
 and the principles which directed the Courts in the exer- 
 cise of this branch of their jurisdiction have ceased to be 
 of practical importance. But in a treatise on equity it 
 would not be desirable to ignore a doctrine which in 
 certain conceivable circumstances may be found still to 
 have some scope for operation, and which, at least, 
 supplies a good illustration of equitable principles. 
 
 The leading authority on the principle in question is 
 the case oiStrathmorey. Boives (o), in which the principle 
 was fully recognised that a husband may, in a proper case. 
 
 (m) Ellison v. Elwin, 13 Sim. 445. 
 309. (o) 1 Ves. sen. 22; 1 W. & T. 
 
 (w) Rogers v. Acaster, 14 Beav. L. C. 613, ed. 7.
 
 FRAUD ON MAKITAL RIGHTS. iSl 
 
 •come into equity, and claim its assistance against a settle- 
 ment of the wife's property, which is concealed from him, 
 pending the treaty for marriage. 
 
 The first corollary from that case is, that it is necessary 
 for a person impeaching a settlement to prove that at the 
 time of its execution he was the then intefided husband. 
 He must show that the settlement was made during the 
 course of the treaty for marriage with him (p). If this is 
 so, and the woman during the treaty for marriage holds 
 herself out as entitled to property, and then conveys or 
 settles i( without the knowledge or concurrence of the in- 
 tended husband, fraud will be imputed to her, and the 
 •deed will be set aside in equity (q) . 
 
 The principle was carried in some cases farther than 
 this. In Goddard v. Snow (r) there was no active deception 
 •of the intended husband, who was, it seems, not aware of 
 the existence of the property. Yet a settlement of which 
 he had not been informed was set aside after an interval 
 -of ten years, as being a fraud upon his marital right (s) . 
 
 It has been questioned whethea* a meritorious considera- 
 tion would suffice to supi^ort a settlement, notwithstanding 
 concealment from an intended husband — ^for instance, the 
 fact that the settlement was made in favour of children 
 ■of a former marriage. If such a settlement is made pre- 
 vious to a treaty for a second marriage it is doubtless 
 good (t); but it seems that, if made during the treaty for 
 marriage, the fact of there being a provision for children 
 would Jiot render valid a settlement which would on other 
 grounds be fraudulent (u) . 
 
 A transfer for valuable consideration to a purchaser Valuable 
 without notice of any intended derogation of the marital fP^^^^^era- 
 
 (p) England V. Downs, I'Be^iy. (s) Downes v. Jennings, 32 
 
 522. Beav. 290; Tat/lor v. Pugh, 1 
 
 (^g) Ibid. ; Lance y. Norman, 2 Ha. 608. 
 'Ch. Rep. 79. (0 Kin/y v. Cotton, 2 P. Wms. 
 
 (r) 1 Russ. 485. 674. 
 
 (u) Taylor v. P/f/h, sup. 
 
 29(2)
 
 452 
 
 MARRIED WOMEN. 
 
 Knowledge 
 by husband. 
 
 Seduction. 
 
 Limits of the 
 principle. 
 
 right was, however, held good (x), and probably the, 
 purchaser's right would be sustained even if he acted with 
 notice (x). 
 
 Moreover, if the husband knew of the gift or settlementi 
 during the treaty for marriage, although he may not have 
 been informed of it by the intended wife, he would not be 
 able to set it aside (y); much less if he concurred in it (z). 
 If, likewise, after marriage he acquiesces in or confirms the 
 settlement, he will not be allowed to dispute it (a). Meire 
 delay in seeking relief, however, does not necessarily 
 amount to acquiescence (6). 
 
 If the husband has before marriage seduced his intended 
 wife, and so deprived her of her liberty of action, any 
 settlement she may have made will be sustained against 
 him (c). 
 
 In the absence of any representation made as to specific 
 property, there is no implied contract of the lady that her 
 property shall be in no way diminished during the treaty 
 for marriage. It is for the Court to determine whether, 
 having regard to the position of the parties and the cir- 
 cumstances of the case, the transaction should or should 
 not be treated as fraudulent (d) . 
 
 (a;) Blanchet v. Foster, 2 Ves. 
 sr. 264; Llewellyn v. Cobbold, 1 
 Sm. & G. 376. 
 
 {y) St. George v. Wake, 1 My. 
 & K. 610; Ashton v. McDougall, 
 5 Beav. 56. 
 
 (z) Slocombe v. Glubb, 2 Bro. 
 C. C. 545. 
 
 (») Maber v. Hobbs, 2 Y. & C. 
 Ex. 317. 
 
 (6) Bournes v. Jennings, 32 
 Beav. 290. 
 
 (o) Taylor v. Pugh, 1 Ha. 608. 
 
 {d) Be Mandeville v. Cromp- 
 ton, 1 V. & B. 354; Taylor v. 
 Pugh, sup.
 
 THE MARRIED WOMEN's PROPERTY ACT, 1882. <-53 
 
 Section II. — Married Women's Property Act, 1882. 
 
 I. Statutory Separate Property. 
 II. Contractual Pomers-. 
 
 Having now reviewed in detail the methods in which, 
 bj an application of the principles of equity, the Courts 
 strove to mitigate some of the disabilities under which 
 married women laboured at common law, it remains to 
 consider the completion of this remedial process by the- 
 acts of the legislature, which have now almost placed the 
 husband and wife on a footing of juristic equality. 
 
 The briefest mention will suffice of the provisions under Divorce Acts, 
 the Divorce Acts {a) for protecting the earnings and other 
 property of married women who have, been deserted by, 
 or judically separated from, their husbands, these being 
 subjects foreign to this work. Nor is it necessary to con- jj, \y_ p 
 sider in detail the tentative Married Women's Property ■^''•J^' ^^"^ 
 
 ^ "^ and 1874. 
 
 Acts of 1870 and 1874 (&), which are now repealed. The 
 former of these Acts protected from the husband's power 
 any earnings of a wife acquired in any employment carried 
 on separately from her husband, and secured to her as 
 separate property any real property descending to her as 
 heiress of an intestate during the coverture, and also per- 
 sonal property devolving upon her as next of kin of an 
 intestate, and any sum of money not exceeding 200L to 
 which she became entitled under any deed or will, subject 
 
 (a) 20 & 21 Vict. c. 85; 21 & 22 Vict. c. 39. 
 Vict. c. 108; see also 41 Vict. (b) 33 & 34 Vict. c. 93; 37 & 38 
 
 c. 19; 49 & 50 Vict. c. 52; 58 & 59 Vict. c. 50.
 
 454 
 
 THE MARRIED WOMEN's PROPERTY ACT, 1882. 
 
 M. W. P. 
 
 Act, 1882. 
 
 The right to 
 hold property. 
 
 The right to 
 contract. 
 
 in all cases, of cou.rse, to the provisions of any settlement 
 affecting the same (c) . It provided also for the investments- 
 of the separate property, gave powers to effect policies of 
 insurance for the benefit of the wife, and further conferred 
 on a married woman a right of action respecting her 
 separate property. It also made certain provisions, subse- 
 quently modified by the Act of 1874, respecting the 
 liability of husband and wife for the ante-nuptial debts of 
 the wife. These it may be necessary to refer to more 
 particularly .hereafter, as they remain applicable to the 
 cases of women married prior to 1883. 
 
 The provisions of the Married Women's Property Act, 
 1882 {d), are so much wider than those of its predecessors 
 that they may be described as a new bodj^ of law % consoli- 
 dating and to a great extent superseding the results of the 
 cases in equity as well as of the previous Acts (e) . 
 
 Its provisions may be classified under two fundamental 
 alterations which it introduced into the law respecting 
 married women. These are — 
 
 (1.) That "a married woman shall, in accordance with 
 " the provisions of the Act, be capable of acquiring, hold- 
 " ing, or disposing by will or otherwise of any real or 
 " personal property as her separate property, in the same 
 " manner as if she were a feme sole, without the inter- 
 " vention of any trustee " (/). 
 
 (2.) "A married woman shall be capable of entering 
 " into and rendering herself liable in respect of and to the 
 " extent of ber separate property on any contract, and of 
 " suing and being sued, either in contract or in tort or 
 " otherwise, in all respects as if she were a feme sole " {(j). 
 
 The .remainder of the statute in the main consists of 
 provisions for the application of the principles thus broadly 
 expressed . 
 
 (c) See Harrison v. Davis, 
 (1897) 2 Ch. 204; 66 L. J. Ch. 
 512. 
 
 (d) 45 & 46 Vict. c. 75. 
 
 (e) Pollock, Contr. p. 83, ed. 6. 
 
 (/) See Mansfield v. M., 43 
 Ch. D. 12. 
 
 (gr) Sect. 1, sub-sects. (1), (2); 
 Whittaker v. Kerslmw, 45 Ch. I)» 
 320; 60 L. J. Ch. 9.
 
 STATUTORY SEPAKATE PROPERTY. 450 
 
 It is impossible here exhaustively to examine the 
 changes in the law thus effected; but a summary of the 
 salient features of the Act may be set out under the 
 two heads suggested: (1.) Statutory separate property. 
 (2.) Contractual powers. The powers conferred of suing 
 and being sued as a feme sole fall under the head of pro- 
 cedure, and do not here require comment. 
 
 1. Statutory separate, property. 
 
 It will be seen from ss. 2 and 5 of the Act that sepa- Separate 
 
 1 1 • • 1 /-I \ T-» -1 property 
 
 rate property thereunder is either — (l.j Jrroperty acquired under 
 
 by any married looman after 31st December, 1882, in- t^e-^-ct.. 
 eluding her earnings; or (2.) Property belonging at the 
 time of marriage to a woman marrying after that date. 
 In other words, as to women marrying since the Act, all 
 their property is separate property; the husband has no 
 control over it: as to women married before the Act, all 
 their property is their separate property, except that the 
 title to which accrued before the Act . A mere sfes succes- 
 sionis as one of a class of possible next of kin is not a 
 contingent title accrued within the meaning of the 
 section {h) . 
 
 The effect of this exception is to protect any marital 
 rights of a husband which accrued before the Act; and 
 this being so, the doctrine of a wife's equity to a settle- 
 ment remains applicable, as has been already observed, to 
 property falling within it . Apart, then, from the assertion 
 of this equity as already described, this excepted property 
 is liable to the husband's marital rights as before the Act. 
 Thus a chose in action vested before 1st January, 1883, in 
 a woman married before that date, but not reduced into 
 possession, would be lost to the married woman if reduced 
 to possession by the husband. His interest in such pro- 
 perty is not a mere possibilit}', but a property subject to 
 the condition that he must reduce it into possession {i) . 
 
 (h) Stochley v. Parsons, 45 Ch. (i) Be Biaggi, W. N. (1882), 
 
 D. 51; 59 L. J. Ch. 666. p. 65.
 
 456 
 
 THE MARRIED WOMEN's PROPERTY ACT, 1882. 
 
 As to separate property generally, it will be seen that 
 the intervention of trustees being no longer necessary, the 
 necessity of resorting to conveyancers in order to impress 
 on property the character of separate estate, no longer 
 exists. At least the legal estate need only be transferred 
 to trustees when it is desired to impose a restraint on 
 alienation. 
 
 Acquisition. The manner of the acquisition of the property is imma- 
 
 terial. In the absence of express agreement to the con- 
 trary, all property acquired by or devolving upon a married 
 woman will be held by her as if she were a feme sole. 
 After some judicial hesitation it has, however, now been 
 decided that a wife's separate capacity for acquiring pro- 
 perty does not entirely efface the common law doctrine 
 of the unity of husband and wife; and as before the Act, 
 so now, in the absence of words showing a contrary inten- 
 tion, a gift to a husband and his wife and a third person 
 confers only one moiety upon the husband and his wife 
 jointly (fc). 
 
 Holding. The enjoyment and management of separate property 
 
 now pertains to a married woman independently of her 
 husband's control. She is, it seems, even entitled to an 
 injunction against her husband for the protection of her 
 rights (l). Special provisions are contained in ss^. 6 to 9 
 of the Act as to powers of investment, which it is not here 
 necessary to particularise. 
 
 Disposition. Perhaps the most conspicuous of all the changes effected 
 
 by the Act are those by which a married woman is now 
 enabled to dispose of all her separate property under the 
 Act as freely as a feme sole. Separate property under the 
 Act (as above 'described) can be aliened where a deed is 
 required without separate examination or deed acknow- 
 
 {k) Jupp V. Buclnvell, 39 Ch. D. 
 148; 57 L. J. Ch. 774; Byram v. 
 Tull, 42 Ch. D. 306; Thomley v. 
 T., (1893) 2 Ch. 227; 62 L. J. 
 Ch. 370; Mander v. Harris, 27 
 
 Ch. D. 166; 24 ib. 222; 52 L. J. 
 Ch. 680. 
 
 (0 ^ymonds v. Hallett, 24 Ch. 
 D. 346; 53 L. J. Ch. 60; Wood 
 V. W., 19 W. R. 1049.
 
 STATUTORY SEPARATE PROPERTY. 'ioT 
 
 lodged, or the husband's concurrence (m) . But this does 
 not apply to interests vested before the Act in women 
 married before the Act, such not being separate property 
 under the Act {n) ; and though a married woman mort- 
 gagee c^n convey the mortgaged estate without hei 
 husband's concurrence or deed acknowledged (o), she 
 could not before 1908 so convey real estate vested in 
 her merely as a trustee (p). But by 7 Edw. VII. c. 18 
 this power was conferred, and the statute operates to render 
 valid and confirm all such dispositions made after the 
 31st December, 1882. 
 
 Again, testamentary power was given to married women Testamentaiy 
 by the Act of 1882 as to both real and personal separate P°'^®'"- 
 property; but it was held that the power only extended 
 to property of which she was seised or possessed during 
 coverture ; so that in case of her husband's death, her will 
 had to be re-executed in order to be effectual to pass 
 property subsequently acquired (g). But now by the 
 Married Women's Property Act, 1893 (r), s. 24 of the 
 Wills Act is made applicable to the will of a married 
 woman made during coverture whether she is or is not 
 possessed of or entitled to any separate property at the 
 time of making it, and the will need not be re-executed or 
 republished after the death of her husband. This applies 
 to all wills of married women who die after the 5th of 
 December, 1893 (s). 
 
 By s. 23 it is enacted, that for the purposes of the Act, 
 
 (ot) RiddcU V. Errington, 24 and Rardy's Contract, (1904) 1 
 
 €h. D. 220; 54 L. J. Ch. 293. Ch. 145; 73 L. J. Ch. 91. 
 
 («) Re Harris' Settled Eat., 28 (50) Re Ilarkness and AUsop's 
 
 Ch. D. 171; 54 L. J. Ch. 208. . Contract, (1896) 2 Ch. 358; 65 
 
 (0) Re Brooke and Frcmlin's L. J. Ch. 726. 
 
 Contract, (1898) 1 Ch. 647; 67 (9) Stafford v. 8., 28 Ch. D. 
 
 L. J. Ch. 272; Re Brummond^s 709; Trye v. Sullivan, ib. 705; 
 
 Contract, (1891) 1 Ch. 524; 60 Bilke v. Roper, 45 Ch. D. 632; 
 
 L. J. Ch. 258; Re Butt's Settled James v. /., (1892) 2 Ch. 29; 61 
 
 Estate, (1897) 2 Ch. 65; 66 L. J. L. J. Ch. 432; Mansfield v. M., 
 
 Ch. 635 ; Re Iloivgate and 43 Ch. D. 12. 
 
 Osborn's Contract, (1902) 1 Ch. (r) 56 & 57 Vict. c. 63, s. 3. 
 
 451; 71 L. J. Ch. 279; Re West (s) Wylie v. Moffat, (1895) 2 
 
 Ch. 116; 64 L. J. Ch. 613.
 
 458 
 
 THE MARRIED WOMEN's PROPERTY ACT, 1882. 
 
 Intestate 
 suoceBsion. 
 
 Married 
 woman 
 trofltee, &c. 
 
 the legal personal represcntativu 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 she 
 would be if she were living. The interpretation of these 
 words is by no means easy; but it is submitted that their 
 effect is no more than to assimilate the administration of 
 the separate property under the Act of a deceased married 
 woman to that of a /erne mle, but without prejudice totlie 
 rights of her husband {t). The executor or administrator 
 will at any rate succeed to a complete representation of 
 the deceased's personal estate, and by virtue of the Land 
 Transfer Act, 1897 {u), of her real estate, not merely 
 taking as an appointee under a power as formerly in the 
 case of separate estate in equity. A further consequence 
 of this change will be that separate property under the 
 Act will now bo legal assets {x) . It is to be observed the 
 section is not in terms confined to personal estate, but it 
 would have been not a little surprising if it had been held 
 that it operated so as to abolish, as far as married women 
 are coaicerned, all the rules as to the descent of real 
 property. It has in fact been held that the Act does not 
 interfere with the law as to intestate succession; and that 
 the rights of the heir, and the curtesy of the husband as 
 to realty, and the right of the husband to the adminis- 
 tration and beneficial enjoyment of the personalty 
 remain {y) . 
 
 As an incident to the possession and enjoyment of pro- 
 perty the Act renders a married woman liable to the extent 
 thereof for the maintenance of her husband, children and 
 grandchildren {z) . 
 
 By ss. 18 and 24 it is provided that a married woman 
 
 (0 Elder v. Pearson, 25 Ch. D. 
 620; 53 L. J. Cli. 174; Stanton 
 V. Lambert, 39 Ch. D. 628; 57 
 L. J. Ch. 927. 
 
 (m) 60 & 61 Viot. c. 65. 
 
 (rp) See Brandon v. Huyhes, 
 (1898) 1 Ch. 529; 67 L. J. Ch. 
 
 279. 
 
 (y) Hope V. H., (1892) 2 Ch. 
 336; 61 L. J. Ch. 441. See rules 
 as t-o deposits in post office savings 
 banks, and Scotch Act, 44 & 45 
 Vict. e. 21. 
 
 (z) Sects. 20, 21.
 
 CONTRACTUAL POWEKS UNDER THE ACT. 459 
 
 may not only hold separate property benelicialiy, but may 
 aocept the olUeos of executrix or administratrix or trustee, 
 without her husband's consent, and without rendering him 
 liable for any devastavit which she may commit (a). She 
 is expressly enabled to perform such administrative acts as 
 are necessary in such an office. 
 
 2. Contractual pomers under the Act. 
 
 We have seen that the second of the fundamental Power to 
 
 coiitrftct 
 
 changes effected hy the Act of 1882 was to confer on a conferred, 
 married woman the power of contracting in respect and 
 to the extent of her separate property as if she were a 
 jeme sole. The Act further adds that every contract 
 enteted into by a married woman shall be deemed to be a 
 contract entered into by her with respect to, and to bind 
 her sejDarate property, unless the contrary be shown; and 
 that every such contract shall bind not only property 
 possessed hy her at the date of the contract, but also all 
 the separate property which she may thereafter incur. It 
 was, however, held under this statute that a married 
 woman's contract was only valid in case she had, at the 
 time of making the contract, free separate property not 
 subject to a restraint on anticipation (&). But now by the 
 Married Women's Property Act, 1893 (c), sub-sections 
 (3) and (4) of s. 1 of the Act of 1882 are repealed, and it 
 is provided that every contract entered into by a married 
 woman after December 5th, 1893 (otherwise than as 
 agent), shall bo deemed to be a contract entered into by her 
 with respect to and to bind her separate property whether 
 she is or is not in fact possessed of or entitled to any 
 separate property at the time when she enters into such 
 contract, shall bind all separate property which she may 
 
 (a) ^&&Re Ayres.S P. D. 168; Bmkin v. Lakin, 30 Cli. D. 1(59; 
 
 but as to her husband's concur- 55 L. J. Ch. 44; Stogdon v. Lee, 
 
 rence in the conveyance of trust (1891) 1 Q. B. 661; 60 L. J. 
 
 property, see swp. p. 458. Q. B. 669; Leek v. Drirffield, 24 
 
 (ft) Pcdliser v. Gurney, 19 Q. Q. B. D. 98; 59 L. J. Q. B. 89. 
 
 B. D. 519; 50 L. J. Q. B. 546; (e) 56 & 57 Vict. c. 63.
 
 460 THE MAERIED WOMEN's PROPERTY ACT, 1882. 
 
 at that time or thereafter be possessed of or entitled to, and 
 shall be enforceable against all property which she may 
 thereafter, while discovert, be possessed of or entitled to; 
 but the effect of a restraint on anticipation is preserved, 
 except that the Court is empowered to order and enforce 
 the payment of the costs of an action brought by a married 
 woman out of property subject to restraint (d) . There 
 must be a contract entered into for the first time after the 
 Act, and supported by a fresh consideration to pay the 
 debt. An acknowledgment after the Act of a debt on 
 which the married woman oould not have been previously 
 Bued will not render her liable (e). 
 
 Bankruptcy. A^^ q, natural consequence of the power thus conferred, 
 
 a married woman who carries on a trade separately from 
 her husband (/) is, in respect of her separate property, 
 rendered liable to the bankruptcy laws as if she were a 
 feme sole ; and she is deemed to be carrying on trade so 
 long as any trade debts remain unpaid (g) . A business 
 may be carried on separately from her husband within 
 the meaning of the Act, notwithstanding that it is carried 
 on in the house in which the husband and wife live 
 together (y^); or that the husband controls and manages 
 the business for her benefit (i) . 
 
 LimitatioEB of W'e have seen that, in equity, although effect was given 
 
 the remedy. -i iiii- i 
 
 to the engagements oi a married woman, by holding them 
 as binding on her separate estate, the remedy fell short of 
 that which, in the case of a man or a feme sole, is juris- 
 tically incident to a breach of contract, inasmuch as no 
 
 (d) Hood-Barrs v. Cathcart, also as to the operation of remedy 
 (1895) 1 Q. B. 873; 64 L. J. under the section, Exp. Levene, 
 Q. B. 520. (1895) 1 Q. B. 328; 64 L. J. 
 
 (e) Hfinhinson v. Tlayter, Q. B. 185; Ex-p. Boyd, 21 Q. B. 
 (1904) 2 Ch. 66; 73 L. J. Ch. 576. D. 264; 57 L. J. Q. B. 553; Re 
 
 (/) Exp. Coulson, 20 Q. B. D. A Debtor, (1898) 2 Q. B. 576; 67 
 
 249; 57 L. J. Q. B. 149. L. J. Q. B. 820; Re Handford, 
 
 (q) Re I)agnrdl,(18m)2Q.B. (1899) 1 Q. B. 566; 68 L. J. 
 
 407; 65 L. J. Q. B. 666; Re Q. B. 386; Re Lynes, (1893) 2 
 
 Worsley, (1901) 1 Q. B. 309; 70 Q. B. 113; 62 L. J. Q. B. 372. 
 
 L. J. k. B. 93. (0 Re Simon, (1909) 1 K. B. 
 
 (A) Re Worsley, sup.; and see 201; 78 L. J. K. B. 392.
 
 CONTRACTUAL POWERS UNDER THE ACT. 461 
 
 judgment could be enforced against her personally. And 
 in conformity with this it was held, that judgment 
 could not be signed against a married woman under 
 Ord. XIV. {k). And though the remedy was enlarged by 
 ■the above section, it remained still less extensive than 
 that which is available in other cases. Not only did the 
 effect of a restraint on anticipation remain unati'octed, 
 so that property subject thereto is during coverture pro- 
 tected against debts (l), but apart from this, an uncon- 
 ditional judgment could not even be entered up against 
 a married woman . Her power of contracting being limited 
 as above to her separate property, not subject to restraint, 
 the judgment could only operate to this extent, and it 
 must be framed accordingly (m) . Moreover, the remedy 
 of a creditor affected only the property, and a judgment 
 oould not be enforced by committal (n) . The remedy, how- 
 ever, has been enlarged by the Bankruptcy Act, 1913 (o), 
 which enacts that every married woman who carries on a 
 trade or business, whether separately from her husband 
 or not, shall be subject to the bankruptcy laws as if she 
 were a feme sole, and that a final judgment or order 
 obtained against her shall be available for bankruptcy 
 proceedings against her by a bankruptcy notice as though 
 she were personally bound to pay the judgment debt or 
 sum ordered to be paid. And further, where a w^oman 
 has been adjudged bankrupt the Court has power to order 
 that notwithstanding a restraint on anticipation the whole 
 or part of the income of her separate estate shall be paid 
 
 (k) JDurrant v. Ricketts, 8 Q. («) Scott v. Morley, 20 Q. B. 
 
 B. D. 177. D. 120; 57 L. J. Q. B.'43; Dowtw 
 
 (I) See Pelton v. Harrison, v. Fletcher, 26 Q. B. D. 11. As 
 
 (1891) 2 Q. B. 422; 60 L. J. to the extent of the personal 
 
 Q. B. 742; -Br((7gf5 V. ^y«w, (1899) liability, see also Rohimon v. 
 
 2 Ch. 717; 68 L. J. Ch. 663; Lynes, (1894) 2 Q. B. 577; 63 
 
 Barnett v. Howard, (1900) 2 Q. L- J- Q- B. 759; Pelton v. Har- 
 
 B. 784; 69 L. J. Q. B. 995; risen, (1892) 1 Q. B. 118; 61 
 
 Brorvn v. Bimbleby, (1904) 1 K. L. J. Q. B. 144; Birmingham 
 
 B. 28; 73 L. J. K. B. 35. Excelsior, ^c. Soc. v. Haywood, 
 
 (m) Bursillv. Tanner, UQ.B. i}^^S ol ^' ^' ^^' ^^ ^' '^' 
 D. 691; Braycote v. Harrison, ^- B. 28. 
 17 ib. 147. (o) 3 & 4 Gleo. V. c. 34, s. 12.
 
 462 THE MARRIED WOMKN'.S PROPERTY ACT, 1882. 
 
 to the trustee for distribution among the creditors. Her 
 husband shall not be entitled to claim any dividend as 
 her creditor until all claims of other creditors for valuable 
 consideration have been satisfied. 
 
 By s. 4 of the Act of 1882 separate estate was declared 
 to include any property subject to a general power of 
 appointment which a married woman may have exercised 
 by her will, but such property was not liable in the event 
 of her bankruptcy (p) . It was held that property so 
 appointed was not liable to the payment of debts incurred 
 before the Act (g), but even apart from the x*Vct of 1893, 
 appointed property was applied to the discharge of con- 
 tracts entered into at a time when the married woman 
 had no separate estate (r) . Where a husband and wife 
 had a joint general power of appointment over real pro- 
 perty, it was held that the property could not be taken in 
 execution under a writ of elegit, the execution being 
 limited to her separate estate (s) . 
 
 A wife may enter into a binding contract with her hus- 
 band as well as with a third person (/); but special provi- 
 sion was made by s. 3 of the Act that, in the case of a 
 loan by a wife to a husband for the purpose of any trade 
 or business carried on by him or otherwise, she could 
 only prove in respect thereof in his bankruptcy or in the 
 case of his death insolvent after all his other creditors 
 for valuable consideration have been paid in full {u). But 
 notwithstanding the words "or otherwise," it w^ould seem 
 that the section did not apply to a loan to a husband who 
 was not in business (a:), and that the wife did not neces- 
 sarily labour under the onus of proving that the loan was 
 
 {p) Exp. Gilchrist, 17 Q. B. 55; McGregor v. McG., 20 Q. B. 
 
 D. 167, 521; 55 L. J. Q. B. 528. D. 529. 
 
 {q) Roper v. Boncnster, 39 Ch. («<) See He Genese, 16 Q. B. D. 
 
 D. 482; 58 L. J. Ch. 215. 700; 55 L. J. Q. B. 118; Tarn v. 
 
 (r) Wilson V. Ann, (1894) 1 Emmerson, (1895) 1 Ch. 652; 64 
 
 Ch. 549; 63 L. J. Ch. 334. L. J. Q. B. 468; and now see 
 
 (.v) Gnafleu v. Jones, (1909) 1 3 & 4 Geo. V. c. 34, s. 12, sup. 
 
 Ch. 557; 78 L. J. Ch. 420. {x) Macintosh v. Poqose,{\'&m) 
 
 (t) Butler V. B., 16 Q. B. D. 1 Ch. 505; 64 L. J. Ch. 274; Ee 
 
 374; 14 ib. 831; 55 L. .T. Q. B. Clarke, (1898) 2 Q. B. 330.
 
 CONTRACTUAL POWERS UNDER THE ACT. 463 
 
 not for the pui"poses of business {y). The section, more- 
 over, does not prevent the retainer of her debt by a widow 
 who is executrix {z) . 
 
 By s. 11, cxjjress provision is made for the effecting' of 
 life assurances by husbands and wives for their mutual 
 benefit and that of their children, and for the appoint- 
 ment of trustees of the policy moneys and their protection 
 .against the debts of the insured, so long as any of the 
 trusts declared thereof remain unperformed (a) . 
 
 The liability of husband and wife for the ante-nuptial Ante-nuptial 
 debts of the wife is under the various statutes a matter of 
 some complication; but a brief summary of the law thereon 
 must suffice. The case of women married before the Act 
 of 1870 is now of little practical importance. Generally, 
 it may be said that on marriage the husband became liable 
 to all his wife's debts, and the wife, whose property in 
 possession at once passed to her husband, was ipso facto 
 Teleased therefrom. 
 
 The Act of 1870 enacted that a wdfe shall be liable to Act of 1870. 
 be sued for, and any property belonging to her for her 
 separate use shall be liable to satisfy, her debts contracted 
 before marriage as if she had continued unmarried (6): 
 and under that Act, a restraint on anticipation was held 
 to be no protection against ante-nuptial debts (c) . But 
 if no property of the wife was reserved to her separate 
 use on the marriage, there was no remedy against her. 
 The same section relieved the husband from all liability 
 in respect of these debts. 
 
 The Act of 1874 did not affect the wife's liability, but Act of 1874. 
 rendered the husband liable for ante-nuptial debts of the 
 
 (y) Re Cronmire, (1901) 1 <o5Q; I'urnbull v. T., (l^^l) 2Ch.. 
 
 Q. B. 480; 70 L. J. K. B. 310; 415; 66 L. J. Ch. 719. 
 see Paget v. P., (1898) 1 Ch. 470, (6) 33 & 34 Vict. c. 93, s. 12 
 
 474; 67 L. J. Ch. 266; Hnll v. (c) Sanger v. S., 11 Eq. 470; 
 
 II., (1911) 1 Ch. 487; 80 L. J. London and Provincial Bank v. 
 
 Ch. 340. Bogle, 7 Ch. D. 773; Axford v. 
 
 (z) Crawford v. May, 45 Cli. Reid, 22 Q. B. D. 548; 58 L J 
 
 D. 499. Ch. 230; Jay v. Robinson, 25 
 
 («) See Re Davies' Policy, Q. B. D. 467; 59 L. J. Q. B. 367 
 (1892) 1 Ch. 90; 61 L. J. Ch.
 
 464 THE MARRIED WOMEn's PROPERTY ACT, 1882. 
 
 wife to the extent of any property passing to him jure 
 mariti at the marriage or during the marriage {d) . 
 Act of 1882. Both these Acts were repealed by that of 1882, ss. 13 
 and 14 of which now regulate the liability for ante- 
 nuptial debts of women married since the Act. Under 
 these the wife after marriage remains liable not only 
 to the full extent of her separate property but also 
 personally (e), and the husband is only liable to the 
 extent of property acquired from or through his wife. It 
 will be seen that he can now only so acquire property by 
 gift, settlement, will, or intestate succession, and the Court 
 is empowered in an action against him to direct an inquiry 
 or proceedings for the purpose of ascertaining the value 
 of property so acquired (/) . 
 
 Sect. 19 of the Act expressly preserves the effect of any 
 . marriage settlement or agreement for a settlement, and of 
 any restriction against anticipation attached to the enjoy- 
 ment of property or income by a married woman under 
 any instrument; provided, however, that no such restric- 
 tion contained in any settlementof a woman's own property 
 made or entered into by herself shall have any validity 
 against ante-nuptial debts (^), and that no settlement or 
 agreement for a settlement shall have any greater force 
 or validity against her creditors than a like settlement or 
 agreement for a settlement entered into by a man. The 
 principles of equity affecting voluntary settlements entered 
 into by men have already been considered {h) . 
 
 The provisions of the Married Women's Property Act, 
 1907 (i), as affecting settlements made by infant married 
 women, are referred to on p. 478. 
 
 (<f) 37 & 38 Vict. c. 50. {g) Sanger v. S.; Axford v. 
 
 (e) Robinson v. Lynes, (1894) Reid, sup. ; but see and distin- 
 
 2 Q. B. 577; 63 L. J. Q. B. 759. guish Birmingham Excelsior, <^-c. 
 
 (/) See Seek v. Pierce, 23 Sac. v. Haywood, (1904) 1 K. B. 
 
 Q. B. D. 316; 58 L. J. Q. B. 35; 73 L. J. K. B. 28; and see 
 
 516; Surman v. Wharton, (1891) now 3 & 4 Geo. V. c. 34, a. 13.. 
 
 1 Q. B. 491; 60 L. J. Q. B. 233. (A) Supra, p. 55 et seq. 
 
 (0 7 Edw. VII. c. 18.
 
 4(35 
 
 CHAPTER VIII. 
 
 INFANTS. 
 
 I. Guardianship. 
 
 1 . Obsolete species of Giiardicmshi/p , 
 
 2. Guardianship of Parents. 
 
 3. Testamentary Guardians. 
 
 4. Guardimis appointed hy a Stranger 
 
 5. Guardimis appointed by the Court. 
 II. Maintenance. 
 
 1. Out of ivhat Property directed. 
 
 2. hi ivhat circumstaTices. 
 III. Advancement. 
 
 1. Under a Poiver. 
 
 2. In absence of a Power. 
 
 Note. — Jurisdiction as to Lunatics. 
 
 I. Apart from statutory enactments, the Court of Guardianship. 
 Chancery from the earliest times exercised a very beneficial 
 jurisdiction over infants; and that jurisdiction has now 
 been conferred upon the Chancery Division of the High 
 Court of Justice (a). The greater part of the law respect- 
 ing this subject relates to the incidents and characteristics 
 of guardianship. The first and most important duty 
 before us, therefore, is to enumerate the different species 
 of guardians which are recognised in equity, and to 
 ascertain the powers and responsibilities of each. 
 
 (a) 36 & 37 Vict. c. 66, s. 34. 
 S. 30
 
 466 INFANTS. 
 
 The fullest discussion of the subject is found in the 
 leading case of Eyre v. The Countess of Shaftesbury (b), 
 in which the whole jurisdiction of the Court in matters 
 of guardianship was passed under elaborate review. We 
 shall presently have to advert to the precise points raised 
 and settled in that case; but before doing so there are 
 some matters requiring consideration which were only 
 incidentally referred to therein. 
 
 1. Obsolete species of guardianship'. 
 
 Obsolete At different periods of the history of equity, several 
 
 gwdianship. species of guardianship were recognised which have now 
 little more than an antiquarian interest. Some having 
 been expressly abolished by statute, and others having 
 fallen into desuetude, it is only necessary here to enumerate 
 them: we refer to guardianship in chivalry, guardianship 
 in socage, guardianship by the appointment of the Eccle- 
 siastical Courts, guardianship by election and by custom, 
 and guardianship under 4 & 5 Ph. & Mary, c. 8. 
 
 2. The guardianship of parents. 
 
 Guardianship By nature and nurture the father is indisputably the 
 guardian of his children (c), and he may exercise the rights 
 of guardianship even in opposition to their mother (d) . 
 Until quite recently the Courts so respected this natural 
 right as to refuse, save under very exceptional circum- 
 stances, to enforce a contract entered into by a father 
 to give up to his wife the custody and education of their 
 children (e), on the ground that it was opposed to public 
 
 36 Vict. c. 12 policy. But by 36 Vict. c. 12, it was enacted that no 
 agreement contained in a separation deed made between 
 the father and mother of an infant shall be held to be 
 invalid by reason only of its providing that the father 
 
 (i) 2 P. Wms. 103; 1 W. & T. (rf) Ezp. M'Clellan, 1 Dowl. 
 
 L. C. 473, ed. 7. 81. 
 
 (c) Exp. Uopkins, 3 P. Wms. (e) Hope v. H., 8 De G. M. & 
 
 152. G. 731 ; Swift v. S., 34 Eeav. 266.
 
 GUARDIANSHIP. 467 
 
 shall give up the custody or control of such infant to the 
 mother, provided that no Court shall enforce such agree- 
 ment if it shall be of opinion that it will not be for the 
 benefit of the infant to do so (/). 
 
 But an agreement by a husband before marriage that 
 his children shall be brought up in a particular religion is 
 not binding on him, and will not be enforced (g), unless, 
 indeed, he has by gross moral turpitude forfeited his 
 rights or has abandoned his right to educate his children 
 in his own religion (h). 
 
 Though no Court had inherent power actually to deprive Court super- 
 a father of his legal right as guardian, his exercise of his guardian- 
 natural guardianship was subject to the superintendence ^^^P- 
 of the Court, which would, if necessary, interfere between 
 him and his children by appointing a person to act as 
 guardian. This part of its jurisdiction was well estab- 
 lished in the case of Wellesley v. Beaufort (i); but in order 
 to justify such interference there must be strong circum- 
 stances showing that it will be for the benefit of the 
 children. 
 
 Thus, prior to 36 Vict. c. 12, the mere fact of the wten 
 father's poverty, or even insolvency, did not suffice (k) ; o"father^^'^ 
 nor did acts amounting to severity or harshness, unless interfered 
 extreme, or of such a nature as to corrupt the morals of 
 his children (Z). Even where a father was living in 
 adultery, but did not bring his children into contact with 
 his paramour, the Court refused to deprive him of their 
 custody (m). 
 
 But where, coupled with insolvency, the character of the Insolvency, 
 
 (0 Soe Cofirlon v. Vollum, 57 (/) 2 Russ. 1; 2 Bli. N. S. 124. 
 
 L. T. R. 154. See Smart v. S., (1892) A. C. 
 
 {g) Agnr-Elli^ v. Lascelles, 10 425; 61 L. J. P. C. 38; Re A. 
 
 Ch. D. 49; 24 ib. 317; 53 L. J. and IL, (1897) 1 Ch. 786; 66 
 
 Ch. 10; Re Browne, 2 Ir. Ch. R. L. J. Ch. 592. 
 
 151; Ro Violet Nevln, (1891) 2 (k) Kilpatriek v. K., Macph. 
 
 Ch. 299; 63 L. J. Ch. 542. 143; In re Fynn, 2 De G. & Sm. 
 
 {h) Andrews v. Salt. 8 Ch. 622, 457. 
 
 637; Re Clarke, 21 Ch. D. 817; (0 Curtia v. C, 5 Jur. N. S. 
 
 51 L. J. Ch. 762; Re Newton 1147; Re 8 pence, 2 Ph. 252. 
 
 {infants), (1896) 1 Ch. 740; 65 (w) Ball v. B., 2 Sim. 35. 
 L, J. Ch. 641. 
 
 30 (2)
 
 468 INFANTS. 
 
 desertion, father is bad (n), or he has deserted his children (o), pr 
 is endangering their property or neglecting their educa- 
 tion (p), there is sufficient ground for interference. 
 
 immorality. Even in the absence of any pecuniary difficulties of the 
 
 father, if his habits are notoriously immoral, and such as 
 are likely to corrupt his children, or imbue them with irre- 
 ligious notions, the Court has not hesitated to remove them 
 from his control (q) . Habits of habitual drunkenness and 
 profanity have led to the same result (r). 
 
 ^ ^i ^''°*' ^^^ power of the Court in this direction has been con- 
 
 siderably and advantageously extended by statute. First, 
 by 2 & 3 Vict. c. 54, the Court was enabled to give to a 
 mother access to her children, and even custody of them 
 up to the age of seven years, in case of ill-treatment by her 
 
 36 Vict. c. 12. husbanxi. More recently this Act was replaced by 36 Vict, 
 c. 12, which empowers the Court upon petition of a mother 
 by her next friend, to give her a right of access to SLuy 
 infant under sixteen years of age, at such times and subject 
 to such regulations as may seem proper, or to order that 
 any such infant shall be delivered to the mother and 
 remain under her custody and control until it shall attain 
 that age, subject to such regulations as may seem proper. 
 In determining what under this Act are a mother's rights, 
 the Court will have regard to three matters; tlie paternal 
 right, the marital duty, and the infant's interest (s). By 
 
 54 Vict. c. 3. the Custody of Children Act, 1891 (t), the Court is em- 
 powered to refuse to order the production or delivery up of 
 a child even to its parent, if it is of opinion that the parent 
 has deserted the child or otherwise so conducted himself as 
 to render himself an unsuitable person to have such 
 
 (w) Exp. Mounifort, 15 Ves. {q) Shelley v. Westbrooke, Jac. 
 
 445. 266; Wellesley v. Beaufort, sup. 
 
 (o) Creuze v. Hunter, 2 Ck)x, (r) Be Manneville v. Be M., 
 
 242. 10 Ves. 62. 
 
 {p) Re England, 1 K. & M. {s) Re Elderton,26 Ch.H.^lO; 
 
 499; Thomas v. Roberts, 3 De G. 53 L. J. Ch. 258; Re Taylor. 4 
 
 & Sra. 758. Ch. D. 157. 
 
 (0 54 Vict. c. 3.
 
 GUARDIANSHIP. 469 
 
 custody. Tho infant's interest is the paramount con- 
 sideration (u). 
 
 Ajsart from statute, it had been decided that in ease of 
 the death of a father without his having- appointed a testa- Kighi> of a 
 mentary guardian as hereafter mentioned, the mother, if "*° 
 surviving, became the natural guardian of, the children (x). 
 The mother's guardianship or right to the custody of her 
 illegitimate child has now been allowed (y) ; but neverthe- 
 less, the natural claims of a mother as to her children were 
 very insufficiently recognised. The statutes already cited 
 operated in some degree to favour her rights, but their 
 operation has been largely superseded by the more exten- 
 sive enactment presently to be noticed. 
 
 3. Testameyitary Guardians. 
 
 By 12 Car. II. c. 24, power was conferred upon a father, Testamentary 
 even though a minor, of appointing by deed or will guar- ^"^ ^°^' 
 dians for his legitimate children during minority. Now, c. 24. 
 by 1 Vict. c. 26, a minor can no longer make an effectual 
 will for any purpose; but the power of a minor to appoint 
 a guardian by deed still remains. The statue conferred 
 no corresponding power on a mother, and her natural 
 guardianship is superseded by the father's testamentary 
 appointment: the mother, however, may of course be 
 appointed herself to the office. 
 
 The hardship wrought on mothers by tliis Act has been Guardianship 
 relieved by the provisions of tho Guardianship of Infants ' "^^^" 
 Act, 1886(2;). By this Act it is provided that on the 
 death of the father of an infant, the mother, if surviving, 
 shall be guardian either alone (if no guardian has been 
 appointed by the father) or jointly with any guardian 
 appointed by him (a). It further enables the mother of 
 
 (m) Re Gyngall, (1893) 2 Q. B. 721 ; and see llumphrys v. Polah, 
 
 232; 62 L. J. Q. B. 559. (1901) 2 K. B. 385; 70 L. J. 
 
 {x) Villareal v. Mellish, 2 K. B. 752. 
 
 Swanst. 533. (z) 49 & 50 Vict. c. 27, ss. 2, 3. 
 
 (v) Barnardo v. McHujh, (a) See Re G {an infant), 
 
 (1891) A. C. 388; 61 L. J. Q. B. (1892) 1 Ch. 292; 61 L. J. Ch. 
 
 490.
 
 470 
 
 INFANTS. 
 
 How ap- 
 pointed. 
 
 Passes by 
 survivorship- 
 
 any infant by deed or will to appoint guardians after the 
 death of herself and the father of such infant (if such 
 infant be then unmarried); and where guardians are 
 appointed by both parents, they are to act jointly. It also 
 enables her to make a provisional nomination of some fit 
 person or persons to act jointly with the father after her 
 death, and the Court, after her death, if it be shown that 
 the father is for any reason unfitted to be the sole guardian 
 of his children, may confirm the appointment so made, or 
 make such other order in respect of the guardianship as 
 the Court shall think right. Guardians under this Act 
 are to have the powers of guardians appointed under 
 12 Car. II. c. 24. Further, the Court may, upon the 
 application of the mother of any infant, make such order 
 as it may think fit regarding the custody of such infant, 
 and the right of access thereto of either parent, having 
 regard to the welfare of the infant, the conduct of the 
 parents, and the wishes as well of the mother as of the 
 father (&). The Court now has jurisdiction entirely to 
 override the comtnon law rights of a father in relation to 
 the custody of his infant children, and to give equal 
 weight to the wishes of the mother (c). 
 
 No particular form of words is required for the appoint- 
 ment of a testamentary guardian. Such expressions as 
 " my son and daughter to be under the care and direction 
 of A. and B." (c^), and a direction to C. to "take the care 
 and management of my children " (e), have been held 
 sufficient. But where the words used refer only to the 
 property of the children — e.g., "to be guardian of the 
 estate " of the children — they will not constitute a person 
 a guardian (/). 
 
 The leading ease of Eyre v. Shaftesbiiri/ (g) decides that 
 
 (6) See Re Witten, 57 L. T. R. 
 iJ36. For rules of procedure under 
 tliis Act, see W. N. Feb. 4th, 
 1888. 
 
 (c) Re A. and B. {infanU'), 
 (1897) 1 Ch. 786; 66 L. J. Ch. 
 592. 
 
 (d') Bridges v. Hales, Mos. 108. 
 
 {e) Miller v. Harris, 14 Sim. 
 540. 
 
 (/) Re Norbury, 9 1. R. Eq. 
 134. 
 
 ig) 2 P. Wms. 103.
 
 GUARDIANSHIP. 471 
 
 whero more than one guardian is appointed by will the 
 oflico passes to the survivor. A testator may, under the 
 statute, give to the survivor the power of nominating a 
 successor to one who has died {h); but guardianship is not 
 assignable. Delegatus nmi potest delegare {i). 
 
 It is open to a testamentary guardian to disclaim the Disclaimer, 
 office before acting therein (/c) ; but after acting in the 
 office he cannot renounce it (/). 
 
 A testamentary guardian is a trustee; so that the Statute Testamentary 
 of Limitations does not run in his favour in an account truwtee. 
 between him and his ward (m) . The claim of the ward 
 may, however, be lost by a long acquiescence in the acts of 
 the guardian {n). 
 
 Testamentary guardianship is clearly not determined by Office uot 
 the marriage of a male ward (o), nor, it would seem, by niama,'"eof 
 the marriage of a female ward {p) . ward. 
 
 The powers of a testamentary guardian are extensive. Powers of 
 He is generally entitled to the custody of the persons of "" 
 hie wards {q) ; and unless some contrary wish is expressed 
 by the father (r), he may regulate and superintend their 
 education, and compel their obedience (s). 
 
 Parental guardianship being subject to the superintend- Superintend- 
 ence of the Court, a fortiori so also is a testamentary Court, 
 guardian. Under the Act of 1886 (^), the Court may, in 
 its discretion, on being satisfied that it is for the welfare of 
 the infant, remove from his office any testamentary 
 guardian or any guardian appointed or acting by virtue of 
 that Act, and, 'if it thinks fit, may appoint another 
 guardian in the place of the one so removed. 
 
 (A) In the goods of Parnell, (o) Eyre v. Shaftesbury, 1 P. 
 
 L. R. 2 P. & D. 379. Wms. 103. 
 
 (0 Mellifih V. De Costa, 2 Atk. (50) Roach v. Garvan, 1 Ves. 
 
 14. sr. 160. 
 
 (k) O'Keefe v. Casey, 1 S. & (<?) Exp. E. of Ilchester, 7 
 
 L. 106. Ves. 381. 
 
 (I) Spencer v. Chesterfield, (r) Knott v. Cottee, 2 Ph. 192. 
 
 Amb. 146. (s) Hall v. //., 3 Atk. 721; 
 
 (m) Mathew v. Brise, 14 Beav. Treniain's Ca., 1 Stra. 173; G 
 
 341. V. L , (1891) 3 Cli. 126; 60 
 
 (m) Sleeman v. Wilsou, 13 Eq. L. J. Ch. 705. 
 36. (0 49 & 50 Vict. c. 27.
 
 472 
 
 INFANTS. 
 
 Bankruptcy. It was held undor .the earlier and less stringent law that 
 the bankruptcy or insolvcncj of a testamentary guardian 
 would justify the appointment of a person to take his 
 place {u) ; but the mere fact of a guardian having a 
 pecuniary interest in the death of his ward, will not, as 
 in Roman law, disqualify him for his office, or be a ground 
 for superseding him {x) . 
 
 In the superintendence of testamentary guardians by 
 the Court there is ,an element to be considered which is 
 wanting in the case of parental guardianship, namely, 
 that the wishes of the father (and now, as we have seen, of 
 the mother also), both express and implied, are regarded 
 with respect; but since in cases in which questions as to 
 these arise the principles applied are similar to those which 
 regulate the conduct of guardians appointed by the Court 
 itself, we shall, to avoid repetition, postpone their discus- 
 sion until dealing with this last species of guardianship. 
 
 Gruardians 
 appointed by 
 strangers. 
 Waiver by 
 father. 
 
 4. GuardianS' appomtcd by a stra7iger. 
 
 The power of a stranger to aj^point guardians of an 
 infant during his father's life can only be derived through 
 the waiver of his right by the father. One of the cases 
 most frequently cited with reference to this is Poivel v. 
 deliver (y), whore a testator gave considerable legacies to 
 his sister, her husband, and their infant children, upon the 
 express condition that his executor should be guardian of 
 the children during minority. The father acquiesced in 
 the arrangement, accepted the benefits conferred upon 
 him, and received the maintenance provided for the 
 children. Afterwards he wished to resume the guardian- 
 ship himself. This was refused, as not being consistent 
 with the interests of the children (2) . 
 
 (m) Smith V. Bate, 2 Dick. 631 ; 
 Heysham v. H., 1 Cox, 179. 
 
 {x) Morgan v. Dillon, 9 Mod. 
 135. 
 
 (y) 2 Bro. C. C. 499. 
 
 (s) See also Cohton v. Morris, 
 Jac. 257, n.; Andrews v. Salt, 8 
 Ch. 622, 640; Re Newton, (1896) 
 1 Ch. 740; 65 L. J. Ch. 641.
 
 GUAKD1AN8II1P. 473 
 
 It is necessary in such cases that tliere should have been 
 a voluntary waiver of" his rig'hts by the father. The Court 
 will not interfere to compel him to do this simply because 
 a stranger offers to maintain the children {a) ; and it is 
 open to a father to rescind and abandon an agreement of 
 this nature at any time beiore it has been acted upon so as 
 to alter the status of the child (6). 
 
 Guardianship created in this manner is of course subject 
 to the supervision of the Court, on the same principles as 
 testamentary guardianship. 
 
 5. Guardians appointed by the Court. 
 
 What(^vcr may have been its origin, as to which there (Guardians 
 has been much learned dispute, it was a well-established the Court, 
 part of the jurisdiction of the Court of Chancery to appoint 
 guardians of infants .when necessary; and this jurisdiction 
 is now, as we have seen, vested in the Chancery Division of 
 the High Court of Justice. 
 
 The jurisdiction arises whenever an action is commenced when the 
 in Chancery relative to the estate or person of an infant, jurisdiction 
 
 , ^ arises. 
 
 and none the less because the father or a testamentary 
 guardian is alive (c) ; or if without suit an order for main- 
 tenance is made on summons in Chambers (d), or on a 
 petition respecting money belonging to an infant paid into 
 Court (e). In all these cases an infant is said to become a 
 ward ,of Court. But in order to the exercise of the juris- 
 diction it is generally necessary that some property of the 
 infant should be in its power (/); and thus when it is 
 desired to make an infant a ward of Court it is usual to 
 settle a sum of money or other property on him or her for 
 the purpose (^). The jurisdiction, however, is not limited 
 
 (rt) Lijons V. Blrnkin, Jac. 245, {d) Be Graham, 10 Eq. 530. 
 
 264; Re Fynn, 2 De G. & S. 457. (e) Re Hodrje's Sett., 3 K. & 
 
 (6) Hili V. Gomme, 1 Beav. J. 213. 
 
 .540; 5 My. & Cr. 680. (/) WeUeslcy v. Beaufort, 2 
 
 (c) Butler V. Freeman, Amb. Russ. 21. 
 
 303; Be Perrdn v. Be Mancha,\% (ff) Re Li/o»s, 22 L. T. N. S. 
 
 Ch. D. 451; 51 L. J. Ch. 204. 770.
 
 474 
 
 INFANTS. 
 
 Under 
 
 4 Geo. IV. 
 
 0. 76. 
 
 Married 
 ■woman not 
 appoiuted 
 alone. 
 
 Office doBH 
 not survive. 
 
 Father's 
 
 wishes 
 
 followed. 
 
 to such cases, being inherent bj virtue of the prerogative 
 which belongs to the Crown as parens patrice {h) . In 
 addition to the above general powers of the Court, the 
 Guardianship Act, 1886, enables the Court to appoint a 
 guardian or guardians to act jointly with the mother 
 whenever no guardian has been appointed by the father, or 
 whenever the guardian so appointed is dead or refuses to 
 act {i) . But the fact that the mother has married a second 
 husband ,of a different faith is not of itself sufficient to 
 justify the exercise of the power, so long as there is no 
 personal misconduct or interference with the proper 
 bringing up of the infant (fc). 
 
 Without any suit pending, and although the infant has 
 no property, the Court may upon petition appoint a 
 guardian under 4 Geo. IV. c. 76, s. 17, to give, consent to 
 a marriage {I), or make an order for the delivery of an 
 infant to a person who has a right to its custody (m); or it 
 may appoint a guardian of the person and estate of an 
 infant; but an infant does not in any of these cases become 
 a ward of Court. 
 
 The Court will not ordinarily appoint a piarried >woman 
 (other than the mother) to be a sole guardian {n). When 
 two or more guardians are appointed by the Court, the 
 office does not upon the death of one survive, as in the 
 case of testamentary guardianship; there must be a new 
 appointment (o). 
 
 In the appointment of a guardian the wishes of the 
 father of the infant, if alive, are regarded, even in the case 
 of natural children {p)\ and in their education, his wishes, 
 whether expressed or implied, are usually followed. In 
 the absence of a direction to the contrary, the Court pre- 
 
 (A) Re Spence, 2 Ph. 247, 252; 
 Barnardo v. Mcllugh, (1891) A. 
 C. 388, 395; 61 L. J. Q. B. 721. 
 
 (i) lie McGrath (^infants'), 
 (1893) 1 Ch. 143; 62 L. J. Ch. 
 208. 
 
 (/c) X. V. Y., (1899) 1 Ch. 
 626; 68 L. J. Ch. 265. 
 
 Q) Re Woolscombe, 1 Madd. 
 313. 
 
 (m) Re Spence, sup. 
 
 In) Re Kaye, 1 Ch. 387. 
 
 (o) Bradshaw v. B., 1 Euss. 
 528. 
 
 {p) Beckham v. P., 2 Cox, 46.
 
 GUARDIANSHIP. ^7^) 
 
 eumes that he desires his children to be educated in his 
 own religion (g*). And it is immaterial that his religion 
 is not that of the Established Church (r). No pecuniary 
 benefit to the child will induce the Court to depart from 
 the course of religious instruction pointed out by the 
 father (s) . 
 
 Where, however, children have been brought up in a Change of 
 particular religion until they have reached such an age as countenanced 
 to have formed definite religious opinions, even though in 
 opposition to the wishes of the father, the Court is very 
 reluctant to interfere, because of the peril of unsettling the 
 foundations of all faith by a compulsory change {t); and 
 the Court has sometimes conversed with the infant to 
 ascertain the extent of its knowledge and the character of 
 such opinions as it has formed (m). A guardian has been 
 removed from office on changing his religion {x) . 
 
 In general the Court will not allow its wards to be taken Wards not to 
 out of its jurisdiction (?/); and if from special circum- ^f ^uri^dic- 
 stances the removal is allowed, security will be required tion, save _ 
 for their return {z), and the Court must be kept informed circum- 
 as to their whereabouts and treatment {a) . The health of stances, 
 a ward (6), the desirability of children living with their 
 parents (c), and the enlistment of a ward in the army {d), 
 have been deemed sufficient grounds for permitting a 
 temporary residence beyond the jurisdiction. The ques- 
 
 {q) Re Newbcrtj, 1 Eq. 431; 1 C. Ch. 68; Stourton v. S., 8 De 
 
 Ch. 263; Haivksivorth v. H., 6 G. M. & G. 760; Re W ., W. v. 
 
 Ch. 539; Re Clarke, 21 Ch. D. M., (1907) 2 Ch. 557. 
 817; 51 L. J. Ch. 762; Montague {x) F. v. F., (1902) 1 Ch. 688. 
 
 V. Festing, 28 Ch. D. 82; Re (y) De MannevUle v. Be M., 
 
 Scanlaii, 40 Ch. D. 200; 57 L. J. 10 Ves. 52. 
 
 Gh..l\^; Re Violet Nevin, (l%^\) (~) Jefrys v. V antesivarst- 
 
 2 Ch. 299; 60 L. J. Ch. 542. ■ warth, Barn. Ch. E. 141; Biggs 
 
 (r) Talbot v. Shrewsbury, 4 v. Terry, 1 My. & Cr. 675. 
 My. & Cr. 672. Qi') Aiwn., Jac. 265, n. ; Logan 
 
 (s) Ibid. 686. V. Fairlie, Jac. 193. 
 
 \t^ Re l^evjton (infants), (\%'d^') (6) Wyndham v. W., 1 Kee. 
 
 1 Ch. 740; 65 L. J. Ch. 641; Re 467. 
 
 McGrath, (1892) 2 Ch. 496; (c) Lethem\. Hall, 1 ^im.l^l. 
 
 (1893) 1 Ch. 143; 62 L. J. Ch. {d) Rochford v. Hocknwn, 
 
 208. Kay, 308. 
 
 (m) Witty V. Marshall, 1 Y. &
 
 476 
 
 INFANT.S. 
 
 Guardians 
 of foreign 
 infant. 
 
 Marriage of 
 wards. 
 
 tion is determined hj what the Court deems to be for the 
 benefit .of the infant, always provided that it is satisfied of 
 obedience to its decrees (e). To remove a ward from the 
 jurisdiction without leave of the Court is a contempt which 
 may bo severely visited on the offender (/) ; and it appears 
 that the Court has jurisdiction to commit an unmanage- 
 able ward for contempt (g) . 
 
 The Court may appoint guardians of an alien infant 
 resident witliin its jurisdiction, and tliis notwithstanding 
 that guardians may have been already appointed in the 
 child's own country (j^) ; and thougli foreign guardians 
 are eligible to be appointed, the Court usually prefers a 
 person within its jurisdiction and control (i). The juris- 
 diction does not, however, apply to alien infants resident 
 abroad (/c). The Court will give effect to the orders of 
 foreign Courts with respect to such children, unless they 
 conflict with our own jurisprudence. 
 
 The Court reasonably acts with great circumspection and 
 strictness respecting the marriage of its wards. Whether 
 they be male or female, and whether or not they have 
 parents or guardians living, it is necessary to apply to the 
 Court for permission before their marriage can take 
 place (I) . To marry a ward without such permission is a 
 gross contempt of Court, and the husband, and all persons 
 aiding and abetting the marriage, including the ward him.- 
 self i'';;/), are liable to imprisonment (^z) ; ignorance of the 
 fact that the infant is a ward docs not excuse the con- 
 tempt, though it may mitigate the consequences (o) . If 
 there is reason to suspect an unauthorised marriage, the 
 
 (e) Elliott V. Lambert, 28 Ch. 
 D. 186; 54 L. J. Ch. 292. 
 
 (/) liochford v. Ilockman, sup. 
 
 (rj) H. V. //., (1909) 2 Ch. 
 260; 78 L. J. Ch. 745. 
 
 (A) Stuart v. M. of Bute, 9 
 II. L. 440, 464; Nugent v. 
 Vetzera, 2 Eq. 704. 
 
 (;■) Johnstone v. Beattie, 10 CI. 
 .^: F. 42. 
 
 (k) Brown v. Collins, 25 Ch. 
 
 D. 56; 53 L. J. Ch. 368; and see 
 Be WiUoughbij, 30 Ch. IX 324; 
 54 L. J. Ch. 1122; Re Bour/jcoise, 
 41 Ch. D. 310. 
 
 (0 Smith V. S., 3 Atk. 305. 
 
 {m) H. V. II., sup. 
 
 (n) Wortham v. Pemherton, 1 
 JDe G. & Sm. 644; Exp. Mitchell, 
 2 Atk. 173. 
 
 (o) More v. M., 2 Atk. 157; 
 Herbert's Case, 3 P. Wms. 116.
 
 GUARDIANSHIP. 477 
 
 Coiiit will, by injunction, restrain it, and interdict any 
 communication between the ward and her suitor (p). 
 
 A guardian appointed by the Court is commonly Guardian to 
 required to give security that th(^ ward under Iiis cai'c ^^^^ secun j. 
 shall not marry without leave of the Court; and if he is 
 suspected of any connivance at an unsanctioned intimacy, 
 the ward will be removed from his care and custody, and 
 committed to the care of others (q) . 
 
 When the Court grants leave for a marriage to take Marriage 
 place, it is careful to see that a proper settlement of the 
 ward's property is made; and to this end it will direct an 
 inquiry in Chambers as to what settlement is proper (r) . 
 The nature of the eettlement depends upon many circum- 
 stances, such as the fortune, station and conduct of the 
 husband, and the extent of the property of the ward (s). 
 
 Where a marriage takes place without the permission 
 of the Court, the husband is compelled to execute a proper 
 settlement, and can only purge his contempt by doing so. 
 Usually the settlement will entirely exclude the marital 
 right and interest {t); but this rule has been relaxed where 
 there has been no great difference in fortune between 
 the parties (m) and where the husband has acted in 
 ignorance {x) . 
 
 When a female ward of Court comes of age, she may Settlement by 
 generally settle her property as she pleases; but the on°mLij(M-ity. 
 Court will so far retain her property as to see that her 
 action is free {y). An improper settlement, though made 
 after her attaining majority, may be rectified at her 
 request {z), and tbis has been done after a considerable 
 
 (??') Pearcc v. Crutch field, 14 Beav. 613. 
 Ves. 206. (w) Ball v. Coutts, sup. 
 
 (q) Totnbes v. Elers, Dick. 88. (a;) Richardson v. Merrifield, 
 
 (r) Smith V. -S"., 3 Atk. 305; 4 De G. & S. 161; and see as to 
 
 Leeds v. Barrmrdisfon, 4 Sim. form of settlement, lie Sampson 
 
 538. and Wall, 25 Ch. D. 482; 53 
 
 (s) Ball V. Coitti^, 1 V. & B. L. J. Ch. 457. 
 303; Field v. Moore, 7 De G. M. (i/) Austen v. Ralscy, 2 S. & 
 
 &G. 691. S. i23, n. 
 
 (0 Wade V. Hopkiuson. 19 (s) io^r/ v. Z., 2 S. & S. 119.
 
 478 INFANTS. 
 
 lapse of time (a) . Where the Court has approved a settle- 
 ment, it will not allow its purpose to be defeated by the 
 parties delaying the marriage until the lady is of age (6). 
 18 & 19 Vict. Previously to 18 & 19 Vict. c. 43, infants could not make 
 
 «. 43. "^ . .' 
 
 binding settlements on their marriage, nor could the Court 
 give validity to their settlements by adding its sanction (c). 
 By that statute (explained by 23 & 24 Vict. c. 83), infants 
 not being under twenty if male, or seventeen if female, 
 can now, with the approbation of the Court, make binding 
 settlements of their real and personal estate in possession 
 or otherwise on their marriage. A covenant to settle after- 
 acquired property is within the Act {d). The Court may, 
 under this Act, direct a settlement of an infant's property 
 after marriage (e), but it has no power to compel a ward of 
 Court to make a settlement (/) . An infant's settlement 
 made without the sanction or confirmation of the Court 
 may be repudiated after attaining full age, if the applica- 
 tion to this effect is made within reasonable time (g). By 
 the Married Women's Property Act, 1907 (h), a settle- 
 ment or agreement for a settlement made after the com- 
 mencement of this Act by the husband or intended 
 husband, whether before or after marriage, respecting the 
 property of any woman he may marry or have married, is 
 not valid unless executed by her if she is of full age, or 
 confirmed by her after she attains full age . 
 
 (a) Cave v. C, 15 Beav. 227. (/) Buckmaster v. B., 35 Ch. 
 
 (6) liobson v. Ferrabij, 2 Coll. D. 21 ; affirmed by H. L. sub 
 
 412. nom. Seaton v. S., 13 App. Caa. 
 
 (r) Savlll V. <S'., 2 Coll. 72. 61; 57 L. J. Ch. 661; Leigh v. 
 
 (rf) Moore v. Johnson, (1891) L., 40 Ch. D. 290; 58 L. J. Ch. 
 
 3 Ch. 48; 60 L. J. Ch. 499; 308. 
 
 TIrtmilton v. //., (1892) 1 Ch. (-7) Edwards v. Carter, (1893) 
 
 396; 61 L. J. Ch. 220. A. *C. 360; 63 L. J. Ch. 100; 
 
 (c) Tfc l^ampson and Wall , niip. ; Fnrrinqton v. Forrester, (1893) 2 
 
 Re Phil'ips, 3i Ch. D. 467; 56 L. Ch. 461; 62 L. J. Ch. 996. 
 
 J. Ch. 337; Re Potter, 7 Eq. 484. (A) 7 Edw. VII. c. 18, s. 2.
 
 MAINTENANCE. 479 
 
 II. MainteTiance. 
 
 Another prominent feature in the jurisdiction of the 
 Chancery Division of the High Court of Justice respecting 
 infants is its power in certain cases to make provision for 
 their maintenance out of the income of their property (i). 
 The first question is out of what property maintenance Maintenance, 
 can be directed; the second, in what circumstances it will 
 be directed. 
 
 1 . Out of what prc/Lerty maintenance can he directed. ^^^ of what 
 
 •^ ^ t- i) directed. 
 
 (1.) The clearest case is where a fund is expressly given Express fund, 
 to a person for the maintenance of children. This may or 
 may not be so done as to create a trust for the children: 
 in the former case the person so receiving the fund is 
 accountable for its proper application; in the latter he is 
 not(fc). It of course depends upon the language of each 
 particular instrument whether there is a trust or not; but 
 where the gift is made to a person who is already legally 
 bound to maintain the children — for instance, to their 
 father — it requires a strong case to establish it as a trust; 
 the presumption is that it is intended to confer a beneficial 
 interest (J). 
 
 (2 . ) More commonly the income only of a fund is left Income of 
 for the maintenance of children; and in this case the ^^P'"'^^*' 
 person to whom it is so given is entitled to receive it as 
 long as he continues properly to maintain them (?}i), and 
 even though the language be such as to create a trust for 
 maintenance, no account will be directed unless a special 
 case is made out showing that some of the children have 
 not been provided for {n) . When some of the children 
 
 (0 Wellesley v. W., 2 Bli. N. (w) nadow v. //., 9 Sim. 438. 
 
 S. 133. (») iiora v. H., 33 J3eav. 88; 
 
 (Jc) Andrews v. Partington, 2 liaikes v. Ward, 1 Ha. 450. See 
 
 C^.x, 223. lliscock v. Ladder, (1909) 2 Ch. 
 
 (I) Byne v. Blackburn, 26 431; 79 L. J. Ch. 10. 
 Beav. 41.
 
 480 INFANTS. 
 
 originally comprised in such a gift have come of age, the 
 whole fund remains applicable, if necessarj', to the main- 
 tenance of those who are still infants; but if this is not 
 necessary, the shares of the adults may be paid them (o) . 
 ^^^^^' (3.) It is usual in wills and settlements which confer 
 
 powers. ^ ■' 
 
 property on infants, to insert powers for their main- 
 tenance; and under such powers trustees can safely apply 
 either income or capital for that purpose, provided, of 
 course, that they act within the terms of the power, and 
 that their exercise of the power is bond fide, and reason- 
 able (p) . If they refuse to do so the Court will not readily 
 interfere with their discretion (q) . 
 
 23 & 24 Vict. j^ having been found that hardship was often occasioned 
 
 c. 145, 
 
 by the omission of such powers, a general jDOwer of apply- 
 ing an infant's property for his maintenance and education 
 
 44 & 45 Vict, was given by Lord Cranworth's Act (r). And by 44 & 45 
 ' *'■ ■ Vict. c. 41, s. 43, it is enacted that where any property is 
 held by trustees in trust for an infant, either for life or for 
 any greater interest, and whether absolutely or contin- 
 gently on his attaining the age of twenty-one years, or on 
 the occurrence of any event previous to his attaining that 
 age, the trustees may, at their sole discretion, pay to the 
 infant's parent or guardian (if any), or otherwise apply 
 for or towards the infant's maintenance and educa,tion, the 
 income of that property, or any part thereof, whether there 
 is any other fund applicable to the same purpose, or any 
 other person bound by law to provide for the infant's 
 maintenance or education, or not. This power may be 
 excluded by the expression of a contrary intention in the 
 instrument conferring the infant's interest (s), but the 
 section applies whether the instrument comes into opera- 
 tion before or after the commencement of the Act. 
 
 (o) Berri/ v. Bryant, 2 Dr. i: (q) Bryant v. EicMey, (1894) 
 
 Sm. 1. 1 Ch. 324; 63 L. J. Ch. 197. 
 
 {p) Talbot V. Marshman, 3 Ch. (r) 23 & 24 Vict. c. 145, s. 26. 
 
 622. See Jackson v. Pcirrott. (.v) Re Tlviicher's Tru'^ts, 26 
 
 (1896) 1 Ch. 281; 65 L. J. Ch. Ch. D. 426; 53 L. J. Ch. 1050; 
 
 281. Cooper v. C, (1913) 1 Ch. 350; 
 
 82 L. J. Ch. 222.
 
 MAINTENANCK. 
 
 481 
 
 The poAver of maintenance thus ffiven does not apply to Effects of the 
 ^ . . 11 statutory- 
 
 property, the vesting of which is or may be postponed power. 
 
 fceyond the age of twenty-one years (^). Lord Cran- 
 worth's Act conferred no power to allow maintenance 
 where the infant would not in any event become entitled to 
 the income. Thus where a legacy was given to a child 
 ■contingently on liis attaining twenty-one, but the income 
 was meanwhile to be accumulated as part of the residuary 
 personal estate, maintenance could not be allowed thereout, 
 since the child was not even contingently entitled to the 
 income (u) . And the same holds good under the present 
 Act (x) . But if the legacy is directed to be set apart 
 for the benefit of the legatees, whether it be specific or 
 pecuniary, the income may be applied for maintenance (y) . 
 The effect of the Act has been thus summarised: Where 
 the income will go along with the capital if and when the 
 ■capital vests, then the income is applicable for main- 
 tenance, othenvise not (2); and the Court of Appeal has 
 held {a) that where there is a gift to several persons con- 
 tingently on attaining twenty-one the member of the class 
 who first attains twenty-one does not become entitled to 
 the income of the whole fund, but those under twenty- 
 one can still be maintained out of the income of their 
 eontingent shares (6). 
 
 (4.) In the absence of any such power, directory or Mnintenance 
 statutory, the Court has been wont to allow as main- fhrCourt.'^ 
 tenance the rents, profits, or income of real or personal Out of what 
 
 fund. 
 
 (0 JRe Judkin's Trusts, 25 Ch. 309; 64 L. J. Ch. 501; Ilender- 
 
 D. 743; 53 L. J. Ch. 496; Re son-Roe v. Hitchem, 42 Ch. D. 
 
 Breed's Will, 1 Ch. D. 228; 302; 58 L. J. Ch. 860. 
 
 Abrahams v. Bendon, (1911) 1 {z') Wolstenholme's C. A. ed. 7, 
 
 Ch. 108; 80 L. J. Ch. 83. p. 100. 
 
 (w) Re George, 5 Ch. D. 837. («) Holford v. H., (1894) 3 
 
 (rr) Re Judkin's Trusts, sup.: Ch. 30; 63 L. J. Ch. 637, over- 
 
 Re Dickson, 29 Ch. D. 331; 28 ruling Burt v. Arnold, (1891) 1 
 
 ib. 291; 54 L. J. Ch. 510; Ch. 671; 60 L. J. Ch. 470. 
 
 Bowlbv V. B., (1904) 2 Ch. 685; (b) See also Adams v. A., 
 
 73 L. J. Ch. 810. (1893) 1 Ch. 329; 62 L. J. Ch. 
 
 (v) Clefnentsv.Pearsall,(189i) 266; Arnold v. Burt, (1895) 2 
 
 1 Ch. 665; 63 L. J. Ch. 326; Ch. 577; 64 L. J. Ch. 830. 
 Woodin V. Glass, (1895) 2 Ch. 
 
 s. 31
 
 482 
 
 INFANTS. 
 
 property which is vested in possession in an infant (c) ; 
 and the same princij^le may be applied in the case of a 
 person of unsound mind not so found by inquisition {d) . 
 If it be so vested, maintenance may be allowed, notwith- 
 standing that it is liable to be divested by a condition 
 subsequent (e); but there is no power to authorise a loan 
 on the security of reversionary property for the purpose 
 of maintenance (/) . 
 
 Maintenance cannot usually be given out of a vested 
 legacy payable at a future day, since it does not carry 
 interest until that time {g) ; still less where there is a prior 
 In the case of express trust for accumulation {h) . But to these rules 
 child. there is this important exception, namely, that if a parent 
 
 or person in loco far eiitis leaves to a child or to children as 
 a class a vested legacy payable in futiiro, or a contingent 
 legacy, and the child or children is or are otherwise un- 
 provided for, the interest will be allowed as maintenance, 
 from the death of the testator (^) . But maintenance will 
 not be so allowed if the testator has made an independent 
 provision for it (j) . 
 
 The Court will only in extreme cases resort to or autho- 
 rise the employment of an infant's capital for its main- 
 tenance (k) . 
 
 2. In what circiiTnstances maintenance icill he directed. 
 When In both Lord Cranworth's Act (Z) and 44 & 45 Vict. 
 
 theTstatute ^"^ ^- "H' the granting or withholding of maintenance is 
 
 (<-) Bonner v. B., Eep. t. Badger v. B., (1913) 1 Ch. 385; 
 
 Finch, 432; Re Hotvarth, 8 Ch. 82 L. J. Ch. 264. 
 41-5; but see Cadman v. C, 33 {i) Indedon v. Northcote, 3 
 
 Ch. D. 397; 55 L. J. Ch. 833. Atk. 438; Brown v. Temperley, 
 
 (d) Carr v. C, (1904) 1 Ch. 3 Euss. 263; Havelock v. H., 17 
 792; 73 L. J. Ch. 459. Ch. D. 807; 50 L. J. Ch. 778; 
 
 (e) Tcnjlor v. Johnson, 2 P. Collins v. C, 32 Ch. D. 229; 55 
 Wms. 504. L- J- Ch. 672. 
 
 (/) Bescrnmpes v. Tompkins, 4 (/) See note (/), sup. 
 
 Bro. C. C. 149, n.; Crickett v. (^) Bavies v. Austin, 1 Ves. 
 
 Dolby, 3 Ves. 10. jr. 247; Walker v. Wetherell, 6 
 
 {(/) Butler V. Freeman, 3 Atk. Ves. 473; Barloiv v. Grant, 1 
 
 58; Ilinit v. Parry, 32 Ch. D. Yern. 255; Be Tuer's JVill Trusts, 
 
 383; 55 L. J. Ch. 659. 32 Ch. D. 39; 55 L. J. Ch. 454. 
 
 (/() Cadman v. C, sup.; (I) Supra, p. 481.
 
 MAINTKNANCK. ^^'^ 
 
 expressed to be "at the sole discretion" of the trustees; discretion of 
 
 and it was decided that they might pay it to the infant's 
 
 father, who as natural guardian was held to come within 
 
 the words of the Act ( m) . The present Act expressly 
 
 provides for such a case, but, as before, it appears that the 
 
 Court Avill not interfere with the discretion of trustees 
 
 which is honestly exercised (n) . 
 
 In cases not within the Act, the Court has acted on the Apart fron? 
 principle that the father is bound to maintain his children, maintenanet- 
 and has accordingly refused to allow maintenance out of ^^^ allowed 
 their property, except in cases where the father has been 
 unable to provide for them in a manner suited to their 
 fortune and position (o) . 
 
 But if the property in question is the subject of a Exception; 
 , , i> 1 • I f settled fnnd.. 
 
 marriage settlement, the trusts oi which are a matter oi 
 
 contract, then if the settlement contains a trust for main- 
 tenance, a father is entitled to receive a proper sum for the 
 purpose, without reference to his ability (p). A mer& 
 power so to apply the income is not, however, sufficient to 
 entitle the father to this {q). 
 
 A married woman having separate estate is now legally 
 liable for the maintenance of her children, and might 
 therefore, perhaps, be considered to fall within the same 
 rules (r); but a widow has been held entitled to main- Widow is 
 tenance for her children without reference to her ability, ^°t^"^°- 
 whether remaining unmarried (s), or marrying again (t). 
 
 In deciding as to the necessity for maintenance, and its Condition of 
 amount, the Court will consider the state and condition of ■whole family 
 
 (w) Be Cotton, 1 Ch. D. 232. 3 Eq. 773; Thompson v. Griffin, 
 
 In) Re Lofthouse, 29 Ch. D. Cr. & Ph. 317. 
 
 921; 54 L. J. Ch. 1087; Bn/cnit (<?) Wilson v. Turner, 22 Ch. 
 
 V. Hickley, (1894) 1 Ch. 324; 63 D. 521; 52 L. J. Ch. 270. 
 
 L. J. Ch. 197. (r) 45 & 46 Vict. e. 75, s. 21. 
 
 (o) Fmvkner v. Watts, 1 Atk. (s) Lanoij v. D. of Athol, 2 
 
 408; Mundy v. Howe, 4 Bro. Atk. 447; see Barnes v. Ross, 
 
 C. C. 224; Havelock v. H., sup. (1896) A. C. 625. 
 
 {p) Mundy v. Howe, 4 Bro. (0 Greenwell v. G., 5 Ves. 
 
 C. C. 224; Ransome v. Burgess, 194; Douglas v. Andrews, 12 
 
 Beav. 310. 
 
 31 (2)
 
 484 
 
 INFANTS. 
 
 Distinction 
 between past 
 and future 
 imaintenance. 
 
 the whole family (u), as well as the circumstances of the 
 parents (x), so as to enable an elder son to provide for his 
 brothers and sisters, or a child to minister to the comforts 
 and necessities of its father and mother. 
 
 In questions of future maintenance, of course the prin- 
 cipal considerations are the extent of the fund and the 
 position in life of the infant; hut whatever these may be, 
 in allowing for past maintenance, only that which has 
 been actually and propeijly expended will be repaid («/). 
 
 Advancement 
 distinguished 
 from main- 
 tenance. 
 
 III. Advancement. 
 
 For maintenance, as we have seen, the capital of an 
 infant can rarely be resorted to. But in many cases it is 
 evidently to his interest that his capital should to some 
 extent, or even entirely, be laid out for the purpose of 
 providing an occupation for him in the world. Such an 
 application of capital is termed advancement, and is 
 subject to rules quite different from those regulating pay- 
 ments for maintenance and education. 
 
 Under express 
 power. 
 
 Power to 
 be strictly 
 followed. 
 
 1. Where there i» an express power of advancement. 
 
 Very frequently the instrument conferring property on 
 an infant contains a power expressly authorising advance- 
 ment. Where this is the case the terms of the power 
 must be strictly complied with (0), and if it prescribes the 
 amount which may be so disposed of, that amount cannot 
 be exceeded, unless, at least, the person to be advanced is 
 absolutely entitled to the fund, or the persons entitled in 
 default consent to the application (a) . If the power is 
 
 (u) Pierrepont v. Cheney, 1 P. 
 Wms. 493. 
 
 (x) Roach V. Garvan, 1 Ves. 
 sr. 160. 
 
 (y) Bruin v. Knott, 1 Ph. 572. 
 
 (z) Palmer v. Wakefield, 3 
 Beav. 227. 
 
 (o) Therry v. Henderson, 15 
 L. T. 452.
 
 ADVANCEMENT. 485 
 
 discretionary, the Court will not usually interfere with its 
 exercise (6), unless, indeed, the trustees wholly refuse to 
 act or to exercise their discretion (c), or exercise it in what 
 is inot a hond fide manner (d) . 
 
 A wide construction is put upon the words " advance*- -vniat com- 
 ment or preferment." They have been held to warrant p™edm 
 
 „ .... . . . . advancement, 
 
 the purchase of a commission m the army (e), apprenticing 
 
 in the mercantile navy (/), the making of marriage settle- 
 ments (g), payment of the expenses of emigration (h), 
 and payment for plant and machinery for the purpose of 
 starting a child in business (i) . 
 
 But if a power of advancement is given for a limited Limited 
 purpose — e.g., to buy a commission in the army — and that V^^^^- 
 purpose becomes impossible of execution, the power (differ- 
 ing in this from a bequest for a special purpose) cannot be 
 exercised in any other way (fc) . 
 
 2. Where them is no express poioer. 
 
 In the absence of an express power, trustees can only Authority of 
 advance an infant at their own risk, since they will not be qXe^^^ 
 allowed the sum paid 'unless the Court approves (I). It is absence of a. 
 always, therefore, desirable in the first place to seek the 
 authority of the Court. 
 
 The purposes for which the Court will authorise 
 advancement are similar to those mentioned in the last 
 section (m), and need no further illustration. 
 
 As a rule, advancement can only be made out of a fund Out of what 
 
 funds 
 
 (6) Livesey v. Hardina, Taml. (A) Re Long, 38 L. J. Ch. 125. 
 
 460; French v. Davidson, 3 Mad. (i) Taylor v. T., 20 Eq. 155; 
 
 396. and see Re Blockley, 29 Ch. D. 
 
 (c) Lewis V. L., 1 Cox, 162. 250; 54 L. J. Ch. 722; Langton 
 
 (d) Molyneux v. Fletcher. v. (Sco^, (1903) 1 Ch. 1; 72 L. J. 
 (1898) 1 Q. B. 648; 67 L. J. Ch, 20. 
 
 Q. B. 392. (A-) Re Ward's Tr., 7 Ch. 727. 
 
 (e) Cope V. Wilmot, 1 Coll. (I) Lee v. Brown, 4 Ves. 362, 
 396, n. 368. 
 
 (/) Warr v. W., Free. Ch. 12, (?«) Evans v. Massey, 1 Y. & 
 
 13. J. 196; Franklin v. Green, 2 
 
 (J) Lloyd V. Coclier, 27 Beav. Vern. 137; Walsh v. W., 1 Drew. 
 645; Roper-Cur zon v. R., 11 Eq. 64. 
 452.
 
 ^m 
 
 INFANTS. 
 
 Advancement 
 not allowed 
 Jto father. 
 
 to which the infant is absolutely entitled, but it has bc<?n 
 sanctioned in the case 'of equal legacies to a class with an 
 equal chance of survivorship, 'after the analogy of main- 
 tenance under similar circumstances (n). Where, however, 
 there is a limitation over to third parties, trustees can 
 never safely, nor will the Court, break in upon the capital 
 for any purpose, without the consent of those parties (o). 
 It being a father's duty to advance as well as to main- 
 tain his children, he will not be allowed to repay himself 
 what he has advanced out of the property of his child (p) ; 
 and it is doubtful whether the same would not apply to 
 a mother (q) ; but an advancement will clearly be made 
 for the child if the father is unable to do it (r) . 
 
 NOTE. 
 
 -Jurisdiction 
 as to lunatics 
 not in Chan- 
 cery, but 
 delegated by 
 :the GrowTs to 
 the Lord 
 ("Chauoelloj:. 
 
 Jurisdiction as to Lunatics. 
 
 This is a convenient place in which to mention a matter 
 which does not, strictly speaking, fall within the limits of 
 this work — namely, the jurisdiction exercised by the Lord 
 Chancellor and Lords Justices over the persons and pro- 
 perty of lunatics or persons of unsound mind. 
 
 The student cannot be too strongly reminded that this 
 subject formed no part of the jurisdiction of the High 
 Court of Chancery, nor is it now exercised by the Chancery 
 Division of the High Court of Justice. The Crown, by 
 virtue of its prerogative, has the right to assume the care 
 and custody of the j^ersons and estates of those who are of 
 unsound mind. For the purposeof its exercise, the Crown 
 hy sign manual delegated its authority usually to the Lord 
 
 (m) Franklin v. Green, fiup. 
 And see Jee v. Audley, 1 Cox, 
 324; Re Lowman, (1895) 2 Ch. 
 348; 64 L. J. Ch. 567; Michell 
 V. Loe, (1898) 2 Ch. 567; 67 L. J. 
 <:h. 662. 
 
 (o) Lee V. Brown, sup.; Evans 
 V. Masse//, sup. 
 
 (p) Darley \. B., Z Atk. 397. 
 
 Iq) Smee v. Martin, Bunb. 136. 
 
 (r) Exp. Hays, 3 Da G. J. & 
 S. 485; Re Lane, 17 Jur. 219.
 
 LUNATICS. 487 
 
 'Chancellor, as its highest judicial ofTiccr, not, however, 
 ex officio as president of the High Court of Chancery. In Lords Jus- 
 1851 the Lords Justices were appointed to constitute a 
 Court of Appeal in Chancery, with all the original and 
 other jurisdiction of the Lord Chancellor in the Court of 
 Chancery (s); and sliortly afterwards they were entrusted 
 by a warrant under the Queen's sign manual with the care 
 and custody of lunatics. On the passing of the Lunacy le & 17 Vict. 
 Regulation Act {t) in 1853, this jurisdiction was confirmed ''• ^^' 
 and continued concurrently with that of the Lord Chan- 
 cellor. By the Judicature Act, 1875 (u), s. 7, it is enacted 
 that "Any jurisdiction usually vested in the Lords 
 "Justices ,of Appeal in Chancery, or either of them, in 
 " relation to the persons and estates of idiots, lunatics and 
 "persons of unsound mind, shall be exercised by such 
 " Judge or Judges of the High Court of Justice or Court 
 " of Appeal as may bo entrusted by the sign manual of 
 "Her Majesty or her successors with the care and com- 
 "mitment of the custody of such persons and estates." 
 Thus from the earliest times down to the present, the 
 jurisdiction in lunacy of certain judges appointed for that 
 purpose by the Crown has been and is something perfectly 
 distinct from the jurisdiction of the Courts of Chancery or 
 of the Chancery Division, and this distinction is illustrated 
 by the fact tliat in matters of lunacy the appeal from the 
 Lords Justices lies, not to the House of Lords, but to His 
 Majesty in Council, or, in other w^ords, to the Judicial 
 Committee of the Privy Council {x). If further illus- 
 tration is required it is well afforded by the case of Beall Beallv. Smith 
 V. Smith (?/), where after the institution of a Chancery 
 suit for the purpose of winding up the business of a person 
 of unsound mind not so found by inquisition, an inquisi- 
 tion was granted on petition in lunacy, a verdict of lunacy 
 obtained thereon, and a committee appointed. Further 
 
 (s) 14 & 15 Vict. c. 83, s. 5. (x) Jud. Act, 1873, s. 18. 
 
 (0 16 & 17 Vict. c. 70. (y) 9 Ch. 85. 
 
 (m) 38 & 39 Vict. c. 77.
 
 488 
 
 NOTK. 
 
 Unsoundness 
 of mind does 
 not affect 
 jurisdiction of 
 Chancerv. 
 
 Court of 
 Lunacy ad- 
 ministrative. 
 
 Ijrococdings having been taken in the Chancery suit after 
 this, it was held by the Lords Justices that all such pro- 
 ceedings should be set aside as a contempt upon the 
 jurisdiction in lunacy (2;). 
 
 The fact, then, that a person is of unsound mind has^ 
 until he is so found by inquisition, no effect whatever on 
 the jurisdiction of the Chancery Division. In itself it 
 neither creates nor destroys any power to deal with such a 
 person or his property. But when, on inquisition held at 
 the direction of the Court in lunacy, a verdict has been 
 found, and a committee appointed, such committee becomes- 
 an officer of the Court, and as such a delegate of the 
 jDrerogative of the Crown. From that time forward the 
 affairs of the lunatic are under the direction of the Court 
 of Lunacy; in it all proeeedings respecting the lunatic's 
 person or estate must be taken; and, as we have seen, 
 the Courts of Chancery have then no longer power to. 
 interfere therewith, except under the direction of the 
 judges in lunacy. The procedure in lunacy matters is- 
 now regulated by the Lunacy Act, 1890 (a), which repeals 
 and re-enacts with certain variations the similar provisions 
 contained in the Lunacy Regulation Act, 1853 (b). 
 
 If inquiry be made as to the principles which guide the 
 jurisdiction of the Court in cases of lunacy, the answer 
 may here be very brief. The function of the Court ia 
 purely administrative, and the sole and constant aim and 
 object of attention in the administration is the interest of 
 the lunatic himself (c) ; and to this the rights of his 
 creditors are subordinate (d), save that the Court will not 
 interfere with property wdiich has actually come into the 
 possession of the lunatic's trustee in bankruptcy or judg- 
 
 (z) See lie Georqe Armstrong 
 and Som, (1896) 1 Ch. 536; 65 
 L. J. Ch. 258. 
 
 (o) 53 Vict. c. 5, ss. 116 et seq. 
 
 {h) Supra, p. 487. 
 
 (c) Oxenden v. Compton, 2 
 Ves. jr. 72; Exp. Phillips, 19 
 
 Ves. 118. 
 
 {d) See Re Fnrnham, (1895) 2 
 Ch. 799; (1896) 1 Ch. 836; 65 
 L. J. Ch. 456; Re Plcnderleith, 
 (1893) 3 Ch. 332; 62 L. J. Ch. 
 993; Re Winkle, (1894) 2 Ch. 
 519; 63 L. J. Oh. 541.
 
 LUNATICS. 489 
 
 merit creditor (e) . The Court sometimes makes allowances 
 out of the lunatic's property to his near relations, where 
 this will tend indirectly to the lunatic's benefit (/), but it 
 does not readily do so {g) . In dealing with the lunatic's 
 property, though the Court will not unnecessarily alter the 
 state of the property, it will not suffer itself to be hampered 
 by considering the interests of the real or personal repre- 
 sentatives claiming through him; and if, as is elsewhere 
 seen, a conversion is necessary for his interest, there is no 
 equit}' as between the representatives giving a right on 
 either side to claim a reconversion {h) . Under the existing" 
 statute the Court has a verj- free jurisdiction as to exercis- 
 ing or directing the exercise on his behalf of the powers 
 of a lunatic, statutory or otherwise, as to which reference 
 may be made to the cases below cited. Of course in all 
 such cases, as in the others referred to, the ruling principle 
 is the interest of the lunatic himself (^) . 
 
 It would be inappropriate here to enter into any 
 examination of the practice of the administration in 
 lunacy, such a subject being foreign to the scope and 
 purpose of this work. Reference, however, may be made 
 to the Act already mentioned {k), as being the foundation 
 of the procedure as at present followed. 
 
 (e) Re Clarke, (1898) 1 Ch. (/) Re Earl of Sefton, (1898) 
 
 336; 67 L. J. Ch. 234. 2 Ch. 378; 67 L. J. Ch. 518; Re 
 
 Cf) Re Sparrow, 20 Ch. D. 320; Salt, (1896) 1 Ch. 117; 65 L. J. 
 
 51 L. J. Ch. 497; Re Weld, 20 Ch. 152; Re Ray, (1896) 1 Ch. 
 
 Ch. D. 451. 468; 65 L. J. Ch. 316; Re X., 
 
 (g) Re Barling, 39 Ch. D. 208; (1894) 2 Ch. 415; 63 L. J. Ch. 
 
 67 L. J. Ch. 891. 613. 
 
 (/O Pages 523, 526. (k) 53 Vict. c. 5.
 
 490 
 
 CHAPTER IX. 
 
 ELECTION, CONVERSION, SATISFACTION, AND 
 PERFORMANCE . 
 
 It is a matter of some difficultj to determine the proper 
 place to assign to the subject-matter of this chapter in our 
 classification. In some respects the doctrines of election, 
 conversion, satisfaction, and performance might bo con- 
 veniently treated under the heading of Administration, 
 since it is almost exclusively in the working out of the 
 administration of estates that the questions which they 
 involve arise. With almost equal propriety they might 
 have found a place under the heading of Trusts, since 
 effect is generally given to them by the application of the 
 theory of Trusts. But it would have greatly encumbered 
 those subjects, already sufficiently comprehensive, to have 
 added to either so much matter as is necessary for the 
 proper elucidation of the doctrines now in view. On the 
 whole, therefore, it has been thought best, though it may, 
 perhaps, involve some sacrifice of logical precision, to 
 assign a separate chapter to these peculiarly (jquitable 
 principles. Their relation to the other branches of the 
 subject which we have mentioned will be sufficiently mani- 
 fest to prevent any confusion resulting from their isolated 
 treatment; while the near relation of these matters inter se 
 affords an additional warrant for presenting them to the 
 reader in as close a connexion as possible.
 
 ELECTION. 491 
 
 Section I. — Election. 
 
 I. General Principle. 
 II. Conditions of Election. 
 
 III. Election under exercise of Powers. 
 
 IV. Miscellaneous Cases. 
 
 V. Mode of effecting Election. 
 VI. Effects of Election. 
 
 Election may be defined as tlie equitable accommoda- Definition, 
 tion of two inconsistent or contradictory bequests or 
 benefits, one of which the donor has, strictly speaking, no 
 power to bestow without the consent or co-operation of the 
 donee of the other. The practical application of the 
 doctrine affords a remarkable example of that disregard 
 • of the forms of legality to which we have before alluded. 
 That a devise by A. to B. of property belono^ing to C. 
 should be carried out by any device, legal or equitable, 
 may at first strike the student as almost unintelligible. 
 Exam^oles will show how this result is effected. 
 
 One of the most important cases by which the doctrine of 
 election was established is that of Noys v. Mordaimt (a), 
 in which the facts were as follows: — John Everard, having 
 two daughters, made his will, devising and bequeathing 
 to Margaret, his eldest daughter, £800 in money and his 
 lands in Beeston, which, under the settlement made on 
 the testator's marriage, would have descended to the two 
 
 (a) 2 Vern. 581; 1 W. & T. L. C. 414, ed. 7.
 
 492 ELECTION. 
 
 daughters in equal shares as coparceners. He also gave- 
 to Mary, his second daughter, his lands in Stanborn and 
 £1,300 in money, provided, and on condition, that she 
 released, conveyed, and assured Beeston lands to her 
 sister Margaret. Provided, if he should have another 
 daughter, then he gave the £800 devised to Margaret 
 to such after-born daughter; and the lands at Stanborn 
 and the £1,300 devised to Mary to the said Mary and 
 such after-born daughter equally between them. 
 
 Another daughter, Elizabeth, was born shortly after his 
 death. Mary married Higgs, and died without issue, 
 without having given any release to Margaret, as required 
 by the will. 
 
 Elizabeth claimed not only the lands devised to her by 
 the will, and a moiety of what was devised to Mary, but 
 also a moiety of the Beeston lands devised to Margaret. 
 The question was whether she should be at liberty so to 
 do, or ought not either to acquiesce in the will or renounce 
 any benefit thereby. 
 
 Lard Keeper Cowper said that in all cases of this kind, 
 where a man is disposing of his estate amongst his- 
 children, and gives to one fee simple lands, and to another 
 lands entailed or under settlement, it is upon an implied, 
 condition that each party quit and release the other. 
 
 I. Gene^'ol Principle. 
 
 Illustration. 1 . The simplest illustration of the well-known equitable 
 principle of election may be givenin the following form: — 
 If A. gives to B. by will or deed property belonging to C.,, 
 and by the same instrument gives property belonging to- 
 himself to C, then a Court of equity will allow C. to take 
 the gift made to him by A. only upon the condition of his 
 conforming to the instrument by giving up his own.
 
 GENERAL PKINCIPJ.E. 
 
 493 
 
 property to B. He must choose or elect whether he will 
 keep his own property and forego the gift, or will accept 
 the gift and give effect to the benefit intended for B. by 
 giving up his property. 
 
 2. This doctrine rests on the ground that it is inequit- Contrast of 
 able for a beneficiary at the same time to receive a benefit and Roman 
 from a donor and refuse to give effect as far as possible to <i""t"°®- 
 the donor's manifest intention. The limitations to which 
 it is subject in application will presently be seen. In two 
 important particulars the English doctrine of election 
 differs from the corresponding principle in: Roman law 
 from which it is probably derived. First, whereas the 
 Roman praetors only applied it in the case of testamentary 
 dispositions, in English Courts of equity it affects equally 
 dispositions by will and dispositions by deed inter 
 vivos (h). Secondly, no case of election arose in Roman 
 law where a testator made a bequest of the property of a 
 person under the erroneous supposition that it belonged* 
 to himself. Such a bequest was considered void, and the 
 property so referred to might be retained by the person 
 whose it was, while at the same time he received a benefit 
 under the same will. In English equity, however, it is 
 immaterial whether a donor intentionally or under a mis- 
 apprehension affects to give property belonging to another 
 person. In either case the person whose property is thus 
 dealt with must conform to the instrument if he would 
 receive a benefit under it (c). This may perhaps be less 
 logically consistent than the Roman rule, but it has the 
 manifest advantage of avoiding the necessity of an in- 
 quiry, which is often likely to be exceedingly difficult, as 
 to the degree of knowledge existing in the mind of the 
 donor. The Scottish doctrine of " approbate and repro- 
 bate " is identical in principle (d). 
 
 (6) Llewellt/n v. Mackworth, 370; Griffith-Boscawen v. Scott, 
 
 Barn. Ch. 445; Green v. G., 2 26 Ch. D. 358. 
 Mer. 86. (d) Pitman v. Cruni-Ewing, 
 
 (c) Whistler v. Webster, 2 Ves. (1911) A. C. 217; 80 L. J. P. C.
 
 494 
 
 ELECTION. 
 
 Compensa- 
 tion, not 
 forfeiture, 
 the rule. 
 
 Streatfield 
 y.S. 
 
 3. If, in circumstances which give rise to the doctrine of 
 election, the beneficiary elects to conform to the instrument 
 and part with his own property, no question arises. But 
 it is, of course, quite open to him to elect against an instru- 
 ment which can have no intrinsic power to deprive him of 
 what is his own. It was for some time a question what 
 was the consequence of such an election. In some early 
 cases it was held that by refusing to comply with the 
 donor's expressed intention, a person entirely forfeited the 
 benefit which the donor conditionally bestowed upon 
 him (e). On the contrary, by the well-known case of 
 Streatfield v. Streatfield (/), followed by a long line of 
 authorities, it has now been established that forfeiture 
 does not result from such non-compliance, and that all 
 that is required from the beneficiary is to make or allow 
 compensation to the person who is disappointed by his 
 election (g). Illustration will, perhaps, make this clearer. 
 If, then, A. gives to B. an estate which belongs to C, and 
 is worth £10,000, and at the same time gives to C. a 
 legacy of £20,000, C, by refusing to part with his estate, 
 will not forfeit the whole of his legacy, but may receive 
 £10,000 thereof, the remaining £10,000 being paid to B. 
 as a compensation for his disappointment in not receiving 
 the estate which was intended for him. The result of 
 the cases has been thus summed up: — 
 
 " First: 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 for those whom his election 
 disappoints. 
 
 178; Douglas- Menzies v. XJm- 
 phelby, (1908) A. C. 224; 77 
 L. J. P. C. 61. 
 
 (g) Cowper V. Scott, 3 P. 
 Wms. 124; Cookes v. HelUer, 1 
 Ves. sr. 235. 
 
 (/) Ca. t. Talb. 176; 1 W. & 
 T. L. C. 416, ed. 7. 
 
 (jr) Gretton v. Haward, 1 
 
 Swanst. 433; Padhury v. Clark, 2 
 Mac. & G. 298; Rogers v. Jones, 
 3 Ch. D. 688; Hamilton v. H., 
 (1892) 1 Ch. 396; 61 L. J. Ch. 
 220; Haynes v. Foster, (1901) 1 
 Ch. 361; 70 L. J. Ch. 302; liooth 
 V. Robinson, (1906) 2 Ch. 321; 
 75 L. J. Ch. 610.
 
 CONDITIONS OF ELECTION. 495 
 
 " Secondly: 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 con- 
 trolled his legal right " (h). 
 
 The amount of the compensation must be ascertained, in 
 a case arising under a will, as at the date of the testator's 
 death, not as at the date of election (^). 
 
 II. Conditions of Election. 
 
 Such being the general character of the doctrine, it is 
 now necessary to examine more minutely what circum- 
 stances are necessary in order to call it into operation, or to 
 justify its application. 
 
 1 . There must appear in the instrument itself a clear Intention of 
 intention on the part of the donor to dispose of what is be^lear^^^ 
 not his own (fc); and, as has been mentioned, if there is 
 such a clear intention, it is immaterial whether he knew 
 the property not to be his own, or erroneously conceived it 
 to be so {I). 
 
 There is often, however, considerable difficulty in ascer- "Where 
 taining precisely what the intention of the instrument is. a^lartial ^^ 
 Thus, if a testator has a partial interest in the property interest. 
 dealt with, it will often be doubtful whether his language 
 is designed to refer to the whole property, and so to affect 
 the interest of another person, or whether it is to be con- 
 fined to his own partial interest only. In these circum- 
 stances the general tendency of the Court is to consider the 
 words as applying only to his own actual interest, and, 
 therefore, against the supposition of an intended elec- 
 
 (/i) Mr. Swanston's note in 531; Dillon v. Parker, 1 Swanst. 
 
 Gretton v. Haward, 1 Swanst. 359; Jac. 505. 
 
 433. (l) Thelluson v. Woodford, 13 
 
 («") HancocJc v. Pawson, (1905) Ves. 221; Coutts v. Ackworth, 9 
 
 1 Ch. 16; 74 L. J. Ch. 69. Eq. 519. 
 
 (Jc) Forrester v. Cotton, 1 Eden,
 
 496 
 
 ELECTION. 
 
 General 
 devise not 
 extended by- 
 extrinsic 
 evidence : 
 
 but may by 
 
 intrinsic 
 
 evidence. 
 
 There must 
 be a fund 
 available for 
 compensation. 
 
 Appointments 
 under powers. 
 
 tioii (m); but if there is shown a clear intention to pass 
 the entirety, effect will be given to it; and if the owner 
 of the other part takes other benefits by the will, he will 
 be put to his election {n). 
 
 Again, a mere general devise or bequest will only com- 
 prehend property of which the devisor is owner, and 
 extrinsic evidence is not admissible to show that a testator 
 considered property to be his own which was not so, and 
 thus intended to comprise it in his general devise or 
 bequest (o). But the will itself may show such an inten- 
 tion to include in a general expression property not his 
 own as to give rise to a case of election. Thus, an heir in 
 tail has been put to his election by a devise which included 
 an estate tail (p), the words used being, " all my real 
 estates " and " all the lands occupied by me." " If," said 
 Sir John Romilly, in that case, " a testator says, ' I give 
 all the property I have in the world to A. B.,' and he 
 leaves a latrge legacy to his heir in tail, that will not raise 
 a case of election against such heir, because that testator 
 only gives what he has; " but it is otherwise when " there 
 is an intention shown on the face of the will to dispose of 
 the entailed estate away from the heir in tail." 
 
 2. As the doctrine of election depends upon compensa- 
 tion, it will not be applicable unless there be an available 
 fund from which compensation can be made. In other 
 words, there will be no ground for election unless the 
 testator or settlor bestows some property actually and 
 absolutely his own on the person who is required to elect. 
 
 This limitation of the principle is most frequently illus- 
 trated by cases in which benefits are conferred by the 
 exercise of powers of appointment. A fund over which a 
 
 (m) Maddison v. Chapman, 1 
 J. & H. 470; Re BidweU's Settmt., 
 11 W. E. 161. 
 
 (w) Padbiiry v. Clark, 2 Mac. 
 & G. 298; W'ilkinson v. Bent, 6 
 Ch. 339. 
 
 (o) Blake v. Bunbury, 1 Ves. 
 523; Stratton v. Best, 1 Ves. jr. 
 285 ; Clementson v. Gandy, 1 Kee. 
 309. 
 
 {p~) Ilonywood v. Forster, 30 
 Beav. 14; Beauclerk v. James, 34 
 Ch. D. 100; 56 L. J. Ch. 82.
 
 CONDITIONS OF ELECTION. 497 
 
 person has a mere power of appointment, there being a 
 gift over on default of the exercise of the power, is not the 
 absolute property of the donee of the power. Therefore, 
 where a person having a power to appoint among children 
 made an appointment contrary to the terms of the power, 
 a child entitled in default of appointment was allowed to 
 set it aside, notwithstanding that a share had, by the same 
 instrument, been appointed to him(g). He was not re- 
 quired to elect, because there was no free disposable pro- 
 perty of the appointor given to him which could be laid 
 hold of to compensate the person disappointed. So where 
 a testator had an exclusive power of appointment over an 
 estate to his children and grandchildren, and an exclusive 
 power to appoint a fund to his children only, and he 
 appointed the estate to some of his children, and the fund 
 to his children and a grandchild, the children were not 
 called upon to elect in favour of the grandchild, the 
 appointment to whom was ultra vires ; no property of the 
 testator's own having been given to them by the will (j). 
 
 Nor can the doctrine of election be applied where the 
 property belonging to the donee is property which he has 
 no power to assign, such as an equitable life estate in 
 heirlooms before the Settled Land Act, 1882 (s). 
 
 3. There is no case for election between two or more No election 
 separate dispositions contained in one instrument. In t)eu-een two 
 
 ^ ^ _ _ _ _ claims arising' 
 
 other words, election only applies between a gift given by under the 
 some instrument, and a claim dehors that instrument {t). ^ent^^^ ^' 
 Thus, a testatrix who had a power to appoint a fund in 
 favour of her children, who were not in esse at the time of 
 the creation of the power, appointed by her will a portion 
 thereof to her son for life, with remainder as he should by 
 
 iq) Bristoive v. Ward, 2 Ves, D. 275; 55 L. J. Ch. 259; Carter 
 
 336. V. Silber, (1892) 2 Ch. 278; 61 
 
 (r) In re Fowler's Trust, 27 Li. J. Ch.iOl; Edwards v. Carter, 
 
 Beav. 362. (1893) A. C. 360; 63 L. J. Ch. 
 
 (s) Cavendish v. Bacre, 31 Ch. 100. 
 B. 466; 55 L. J. Ch. 401; and if) Cavendish v. Bacre, sup. 
 
 see Re Vardon'a Trusts, 31 Ch. 
 
 s. 32
 
 498 
 
 ELECTION. 
 
 Beneficial 
 and onerous 
 bequests. 
 
 Election not 
 applicable 
 to debts. 
 
 will appoint; and there followed a general residuary 
 appointment of the settled fund, subject to all other 
 appointments, to her daughters, to whom benefits out of 
 the testatrix's own property were at the same time given. 
 It was held that the appointment in favour of the 
 appointees of the son was void for remoteness. That 
 portion, therefore, passed under the residuary appoint- 
 ment to the daughters. It was then argued that as the 
 daughters received independent gifts from the testatrix, 
 the appointees of the son could put them to their election 
 between such gifts and the fund accruing to them in con- 
 sequence of the previous decision; but it was decided that 
 there was no case for election, both claims arising from 
 the same instrument {u). 
 
 On a similar principle, when by a will two distinct gifts 
 are made to the same person, one of which is onerous and 
 the other beneficial, the donee is not required to elect 
 whether he will accept both or neither. He may, if he 
 pleases, accept the benefit and reject the burden (x). But 
 if the onerous and the beneficial property are included in 
 the same gift, the acceptance of the burden is prima facie 
 deemed to be a condition of the benefit, and the donee 
 must elect, to take the whole gift or none of it (y). 
 
 4. Election only applies in cases of bounty, not to cases 
 of debt. If, therefore, there is a devise to creditors for the 
 payment of their debts, they can accept the benefit of it 
 without any prejudice to their legal rights against other 
 funds purporting to be disposed of by the will (z). Such 
 was the law before real property was liable to all debts. 
 Since 3 & 4 Will. IV. c. 104, general creditors having a 
 
 (m) IVollaston v. King, 8 Eq. 
 165; Walllnger v. 7F., 9 Eq. 301. 
 See further as to the effect of 
 remoteness in cases of election, 
 infra, p. 501. 
 
 {x) Andrew v. Trinity Rail, 9 
 Ves. 525. 
 
 (y) Guthrie v. Walrond, 22 Ch. 
 D. 573; 52 L. J. Ch. 165; Jie 
 
 llotchliys, 32 Ch. D. 408; 55 L. J. 
 Ch. 546; Warren v. Rudall, 1 
 J. & H. 13; Freiven v. La^v Life 
 Soc., (1896) 2 Ch. 511; 65 L. J. 
 Ch. 787; Honyivood v. H., (1902) 
 1 Ch. 347. 
 
 (2) Kidney v. Coussmaker, 12 
 Ves. 136; Beg v. D., 2 P. Wms. 
 412.
 
 ARISING FROM THE EXERCISE OF POWERS. 409 
 
 right to proceed against all the property of the deceased, 
 euch questions can rarely if ever arise. 
 
 The principle of election is in itself sufficiently simple 
 and clear, but its application in the ever varying circum- 
 etnnces of practice often involves questions of considerable 
 difficulty. It is only possible here to add as a further 
 illustration some notice of the leading classes of cases on 
 which discussion has taken place. 
 
 III. Election arising from the exercise of Powers. 
 
 1 . We have already seen that no election is necessitated Appointment 
 
 ■, . ■ , J ^ in ultra vires and 
 
 by an improper appointment under a power, where no tree gift ^ person 
 
 disposable property of the donor of the power is at the ^"^^^^^^ "^ 
 same time bestowed. If, however, an appointment is made 
 to a person who is not an object of the power, and at the 
 «ame time a gift of the donor's property is made to a 
 person entitled in default of appointment, the principle of 
 election applies. Here, the appointment itself being in- 
 valid, the property would naturally pass as if there had 
 been no appointment, to the person entitled in default. 
 But since an independent benefit has been conferred upon 
 him by the same instrument, the conditions upon which 
 the principle of election rests are precisely complied with; 
 and he must either conform to the instrument by giving 
 up his title to the appointed property; or if he insists on 
 retaining that, he will not be suffered to receive the gift 
 conferred upon him {a). 
 
 2. But it will not suffice to raise a case of election, if Appointment 
 
 p, • i • i 1 1 • J p J T with direction 
 
 alter appointing to persons who are objects oi the power, ^o transfer or 
 and at the same time giving them property of his own, attempts to 
 the appointor directs them to settle the property on 
 persons who are not objects of the power (6). In short, 
 
 (a) Whistler v. Webster, 2 Ves. {b) Carver v. Boivles, 2 R. & 
 
 jr. 367; Beauclerh v. James, 34 M. 304; Churchill v. C, 5 Eq. 
 Ch. D. 160; 56 L. J. Ch. 82. 44; McDonald v. McJD., L. R. 2 
 
 H. L. (Sc.) 482. 
 
 32 (2)
 
 500 ELECTION. 
 
 where there is an absolute appointmeut to an object of the 
 power, followed by attempts to modify the interest so 
 appointed in a manner which the law will not allow, the 
 Court reads the instrument just as if such attempts had 
 not been made (c) . A fortiori merely precatory words, 
 requesting appointees, objects of the power, to leave the 
 fund appointed to others not objects of the power, will 
 not put them to their election. A clause of forfeiture 
 on non-compliance may, however, suffice to necessitate 
 election (d) . 
 
 Appointment 3. If the donee of a power by the same instrument 
 Rifrtrob^ect ^-ppoints to a stranger, and confers benefits out of his own 
 of power. property upon an object of the power, the position is 
 different from that in which the gift is made to the person 
 entitled in default of appointment. The appointment 
 being invalid, the property passes to the person entitled in 
 default of appointment. He cannot be required to elect, 
 because no gift of the appointor's property is made to 
 him(e). Nor, it seems, can the object of the power be 
 required to elect, because no part of the property subject 
 to the appointment comes to him. It is, indeed, laid down 
 in Blacket v. Lamh{f) that such an appointment would 
 give rise to election; but it is submitted that this cannot 
 be so, since the two funds in question never come to the 
 same hand at all (g) . Of course, if the same person is 
 both object of the power and entitled in default of appoint- 
 ment, the case falls within the principle of Whistler v. 
 Webster (h), already discussed, and he must elect between 
 the gift and the fund which comes to him in consequence 
 of the invalidity of the appointment. 
 
 4 . Where there is an attempt by the instrumentality of 
 
 (c) Woolridge v. W., John. 63; (e) Swinburne v. Pitt, 27 Ch. 
 but see this case distinguished in D. 696; 54 L. J. Ch. 229. 
 White V. W., 22 Ch. D. 555; 52 (/) 14 Beav. 482. 
 
 L. J. Ch. 232. (gr) See FarwoU on Powers,. 
 
 (d) King v. K., 15 Ir. Ch. R. p. 382 (ed. 2). 
 479; Boughton v. B., 2 Ves. sr. (A) Sup. 
 
 12.
 
 MISCELLANEOUS CASES. 
 
 501 
 
 a power to transgress the policy of the law — for instance, 
 to evade the rule against perpetuities — the Court will 
 not aid such an attempt by applying the doctrine of 
 election (i) . 
 
 IV . Miscellaneous Cases . 
 
 1. At law a widow might by express words be put to i. Dower. 
 her election between her dower and a gift conferred upon Express 
 
 ■ . words re- 
 
 her by will (k) . In equity she may be put to her election quiring 
 by manifest implication, showing an intention of the donor ^l^^^^^^o"- 
 to exclude her from dower (l) . The principal questions 
 which have arisen on this subject have been as to what 
 amounts to a sufficient indication of intention to bar the 
 legal right to dower. 
 
 It was held that a devise to a widow of part of the Evidence of 
 lands of which she was dowable was not inconsistent with 
 her claim to dower in the remainder (w), nor was the gift 
 of an annuity or rent-charge charged upon the dower 
 lands (w) . But a direction which prescribed a mode of 
 enjoyment inconsistent with the exercise of dower rights 
 was deemed sufficient evidence of intention to put her to 
 her election. This was the case, for instance, where a 
 power of leasing the dower lands was given to persona 
 other than the widow (o), and when the widow was 
 directed to pay rent(^). 
 
 Wollaston v. King, 8 Eq. Eliz. 128; NottUy v. Pahner, 2 
 
 1()5; Re Oliver's Sett., (1905) 1 Drew. 93. 
 
 Ch, 191; 74 L. J. Ch. 62; Evered (l) Birmingham v. Kirwan, 2 
 
 V. Leigh, (1905) 1 Ch. 191; 74 S. & L. 452; Hall v. Hill, 1 Dr. 
 
 L. J. Ch. 62; Re Beale's Mar- & W. 94, 103. 
 
 riage Settmt., (1905) 1 Ch. 256; (jn) Lawrence v. L., 2 Vern. 
 
 74 L. J. Ch. 67; WhiUoorth v. 365. 
 
 Wright, (1906) 2 Ch. 288; 75 (w) Holdich v. H., 2 Y. & C. 
 
 L. J. Ch. 500; Re Nash, Cook v. C. C. 19; Harrison v. H., 1 Ke«n, 
 
 Frederick, (1910) 1 Ch. 1; 71 765. 
 
 L. J. Ch. 230. Re Bradshaw, (o) O'Hara v. Chaine, 1 J. & 
 
 (1902) 1 Ch. 436; 71 L. J. Ch. H. 662. 
 
 230, is not law. (p) Birmingham v. Kirwan, 
 
 (A) Gosling v. Warburton, Cro. sup.
 
 50'^ 
 
 ELECTION. 
 
 Dower Act, 
 1833. 
 
 2. Devifie to 
 heir. 
 
 3. Imperfect 
 wills. 
 
 Since the Dower Act, 1833 (g), came into operation^ 
 cases as to election respecting dower have become of rare 
 occurrence, dower being now so fully within the power of 
 the husband. Thus by s. 9 thereof a devise of the land 
 is, in the absence of indication of contrary intention, 
 sufficient to bar dower (r) . A gift of personalty, however, 
 made to the widow, or of any land not subject to dower, 
 will not prejudice her right unless a contrary intention is 
 declared (s) . 
 
 2. Although under the old laAv a devise to the heir was 
 in a sense inoperative, inasmuch as he was held still to 
 take by descent, and not by purchase as devisee, the 
 leading case of Noys v. Mordaunt (t) decided that such a 
 devise was a sufficient gift to raise a case of election 
 between such property and other gifts conferred by the 
 will, and this decision was consistently followed until by 
 3 & 4 Will. IV. c. 106, it was enacted that such devisee 
 should cause the land to pass to the heir as a purchaser. 
 Since this statute there is, a fortiori, a case for election 
 under such devises (u) . 
 
 3. Where there is a. want of capacity to make an 
 effectual will, or where the necessary formalities for the 
 purpose are not complied with, effect will not be given to 
 an invalid disposition by applying the doctrine of election; 
 unless, indeed, the alternative gift is made by way of 
 express condition. 
 
 Thus, prior to the Wills Act (a?), when an infant whose 
 will was valid as to personalty, but invalid as to real 
 estate, gave a legacy to his heir-at-law, and devised his 
 real estate to another person, the heir was not required to 
 elect (y) . And so where there was incapacity to make a 
 
 (^) 3 & 4 Will. IV. c. 105. 
 
 (r) Thomas v. Hoivell, 34 Ch. 
 D. 166; 56 L. J. Ch. 9. Seei 
 Rowland v. Cuthberfson, 8 Eq. 
 466; Lacey v. Hill, 19 Eq. 346. 
 
 (s) Sect. 10. 
 
 (0 Supra, p. 491. 
 
 (m) Schroder v. S., Kay, 578. 
 
 {x) 1 Vict. c. 26. 
 
 (y) Henrle v. Greenbank, 1 
 Atk. 715; and see Sheddon y. 
 Goodrich, 8 Ves. 481; Gardiner
 
 MISCELLANEOUS CASES. -503 
 
 will owing- to coverture, as where a married woman, prior 
 to the Married Women's Property Act, 1882 (0), made a 
 valid appointment by will to her husband, affecting at the 
 same time to bequeath to another a fund not included in 
 the power, there was no case for election, and the husband 
 was entitled to take the bequeathed fund jure mariti, 
 without foregoing the benefit of the appointment (a) . But 
 since the Act a husband may be put to his election where 
 his wife's will affects to dispose away from him of clearly 
 identified property which is in fact his, and at the same 
 time confers benefits on him {h) . 
 
 4. A person is not obliged to elect between benefits 4. Derivative 
 conferred upon him by an instrument, and an interest 
 
 which he takes derivatively from another who has elected 
 to take in opposition to the instrument. Thus, where a 
 wife had elected to retain an estate tail against a will, 
 which conferred benefits upon her husband, the husband 
 was held entitled to curtesy in the estate (c) . Nor is 
 election required where a benefit is conferred by an instru- 
 ment, and the recipient at the same time claims against 
 the instrument, but derivatively from the real owner, who 
 received no benefit therefrom; for instance, where a gift 
 is made to a husband in his own right, and his adverse 
 claim is made as representative of his wife {d) . 
 
 5. Where special directions are given as to election, it ^- Qualified 
 may be confined to particular gifts, so as to prevent 
 election as to other parts of the instrument. Thus, in 
 
 East V. Cook (e) a testator devised property belonging to 
 his eldest son to his second son, and amongst other gifts 
 to the eldest son he gave him a piece of property which 
 
 V. Fell, 1 J. & W. 22; Boughton Hayris, (1909) 2 Ch. 206; 78 
 
 V. B., 2 Ves. sr. 12; Thelliison v. L. J. Ch. 448. 
 
 Woodford, 13 Ves. 209. (c) Cavan v. Pvlteney, 2 Ves. 
 
 (2)45 & 46 Vict. c. 75. 544; 3 ih. 384. 
 
 («) 72fc^ v. CocA-e/^, 9 Ves. 369; {d) Grissell v. Swinhoe, 7 Eq. 
 
 Be Be Burgh-Laivson, 34 W. E. 291; but see Cooper v. C, 6 Ch. 
 
 39. 21; L. E. 7 H. L. 53. 
 
 (6) lie Harris, Leacroft v. (e) 2 Ves. sr. 30.
 
 504 
 
 ELECTION. 
 
 6. Devise to 
 co-owner. 
 
 he stated to be in lieu of the piece of property which he 
 purported to take away from him. The eldest son was 
 held to be put to his election only as to those two pieces of 
 property, so that he might retain his own without fore- 
 going the other benefits conferred by the will (/) . 
 
 6. If a testator who has an undivided interest in a 
 particular property devises that property specifically to his 
 co-owner, the devisee must elect between his interest in 
 the property and the interest he takes under the will. 
 General words, however, would, as we have seen, be taken 
 to apply only to the testator's own interest, and would 
 not necessitate an election {g) . 
 
 Account may 
 be required. 
 
 Election by 
 infants. 
 
 V. Mode of effecting Election. 
 
 1 . Persons who are put to their election are entitled to 
 ascertain the respective values of their own. property and 
 of that conferred upon them, and may commence an action 
 to have all requisite accounts taken (h) . If, however, a 
 cause relating to the same matter is already in existence, 
 the necessary inquiries may be directed therein without 
 the initiation of fresh proceedings (^) . An election made 
 under a mistake or in ignorance will not be binding (k) . 
 
 2. Special rules apply to cases of election by persons 
 under disability. 
 
 Where an infant is required to elect, one of two courses 
 is open. The election may, as in Sir cat field v. Streat- 
 field (I), be deferred until the attainment of full age. 
 Or there may be an immediate reference to Chambers to 
 inquire what course would be most beneficial to the 
 
 (/) See Wilkmson v. Dent, 6 
 Ch. 339, 341 ; Bummer v. Pitcher, 
 2 My. & K. 262. 
 
 {g) Miller v. Thurrjood, 33 
 Beav. 496. 
 
 (K) Buftricke v. Brocidhurst, 3 
 
 Bro. C. C. 88. 
 
 (0 Douglas v. D., 12 Eq. 617. 
 
 (k) Pusey v. Desbouvrie, 3 P. 
 Wms. 315; Wake v. W., 3 Bro. 
 C. C. 255. 
 
 (I) Ca. t. Talb. 176.
 
 MODE OF EFFECTING ELECTION. '^05 
 
 infant (m) . Sometimes an order has been made without 
 euch reference (n) . 
 
 The practice, also, as to election by married women has Married 
 not been uniform. In some cases an inquiry has been "^o°^®°- 
 directed as to what course is most beneficial, and they are 
 required to elect within a limited time after the report (o) . 
 But with respect to separate estate free from a restraint 
 on anticipation, marriage in no way restricts the power 
 of election. 
 
 3. Election may be implied from circumstances, and Implied 
 there is often much difficulty in deciding as to what acts 
 will amount to implied election. As we have seen, any 
 such acts, to be binding on a person who is required to 
 elect, must be done with a knowledge of his rights. 
 They must also be done with the knowledge of the right 
 to elect (p), and with an intention of electing (q). Mere 
 continuance in receipt of the rents and profits of, or the 
 exercise of acts of ownership over both properties, by a 
 person who has not been called upon to elect, evidently 
 cannot be construed into an election to take one and 
 reject the other (r). 
 
 Acquiescence in the enjoyment of one of the properties Acquiescence. 
 by other persons may be so long continued as to render 
 it inequitable to disturb them on a plea of ignorance of 
 rights (s) ; but no precise rule can be laid down to limit 
 such time (t). 
 
 Where a specific time has, as in Streat field v. Sir eat- Time. 
 field (ti), been limited for election, a person who does not 
 
 (m) Birjlandv. Iluddlestone, 3 Pigott, 22 Ch. D. 263; 52 L. J. 
 
 Bro. C. C. 285, ii.; Ashhurnliam Ch. 141. 
 
 V. A., 13 Jur. 1111. (r) Padbury v. Clark, 2 Mac. 
 
 (m) Lamb v. L., 5 W. E. 772. & G. 298. 
 
 (o) Davis V. Page, 9 Ves. 350; (s) Tibbits v. T., 19 Ves. 663; 
 
 Wilson V. Toxvnsend, 2 Ves. 693. Deivar v. Maitland, 2 Eq. 834. 
 
 {p) Briscoe v. B., 7 Ir. Eq. E. {i) See Wake v. W., 3 Bro. 
 
 123; 1 J. & L. 334. C. C. 255; Sopwith v. Maugham, 
 
 (q) Stratford v. Powell, 1 Ball 30 Beav. 235. 
 
 & B. 1; Billon v. Parker, 1 (m) Ca. t. Talb. 176. 
 Swanst. 380, 387; Wilder v.
 
 506 
 
 ELECTION. 
 
 elect within such time will be deemed to have elected 
 agrainst the instrument. 
 
 Whom 
 election bindf! 
 generally. 
 
 Election by 
 
 married 
 
 woman. 
 
 20 & 21 Vict. 
 c. 57. 
 
 VI. The Effects of Election. 
 
 1 . Election, whether expressed or implied, by a person 
 sui juris and absolutely entitled, of course binds all who 
 claim under him, as well as himself. The election, how- 
 ever, of a person having a limited interest will not bind 
 others who are entitled in remainder (x), and each of the 
 successive remaindermen has a separate right of elec- 
 tion (y) . Similarly each member of a class — for instance, 
 next of kin — has a distinct right to elect; the majority 
 cannot bind the minority or any one of them (z) . 
 
 2. Election by a married woman binds both her real 
 and personal estate in the hands of her heirs and represen- 
 tatives (a), and may be effected without deed acknow- 
 ledged (6). Where she has so elected the Court can order 
 a conveyance to be made accordingly (b). Prior to 20 & 
 21 Vict. c. 57, a married woman could not elect to relin- 
 quish a reversionary interest in personalty (c) ; but there 
 is now no reason why such a restriction should continue to 
 exist (d) . She cannot elect to part with property which is 
 subject to a restraint on anticipation (e) ; but the Court 
 has power to dispense with the restraint with her consent^ 
 when it appears to be for her benefit to do so (/) . 
 
 (a;) Ward v. Baugh, 4 Ves. 
 623; E. of Northumberland v. 
 E. of Aylesford, Amb. 540, 657. 
 
 (y) 1 Swanst. 408, n. 
 
 (z) Fytche v. F., 7 Eq. 494. 
 
 («) Ardesoife v. Bennet, 2 
 Dick. 463. 
 
 (6) Barrow v. B., 4 K. & J. 409. 
 
 (c) Robinson v. Wheelwright, 
 6 De G. M. & G. 535, 546. 
 
 ((f) Wilder V. Pigott, sup. Anct 
 now see Greenhill v. N . B. Insce. 
 Co., (1893) 3 Ch. 474; 62 L. J. 
 
 Ch. 918; Williams v. Knight, 
 (1894) 2 Ch. 421; 63 L. J. Ch. 
 609; Ilarle v. Jarman, (1895) 2 
 Ch. 419; 64 L. J. Ch. 779. 
 
 (e) Smith V. Spence, 27 Ch. 
 D. 606; 54 L. J. Ch. 201; Re 
 Vardon's Trusts, 31 Ch. D. 275, 
 reversing 28 ib. 124; 55 L. J. 
 Ch. 259; Haynesv. Foster, (1901) 
 1 Ch. 361; 70 L. J. Ch. 302. 
 
 (/) 1 & 2 Geo. V. c. 37, s. 7; 
 Hodges v. H., 20 Ch. D. 749,- 
 51 L. J. Ch. 549.
 
 CONVERSION. 507 
 
 Section II. — Conversion and Reconversion. 
 
 Conversion . 
 
 General Principle. 
 I. How effected. 
 II. Effects of Conversion. 
 
 III. Time from which Conversion takes place. 
 
 IV. Effects of failure of purposes of Conversio7i. 
 V. Character of resulting property. 
 
 Reconversion . 
 
 Geiieral Principles. 
 
 1. Persons electing Tnust he sui juris. 
 
 2. Election does not affect i7ite(rests of others. 
 
 3. What (tmounts to eleetion. 
 
 Conversion. 
 
 It is a familiar maxim that equity looks upon that as 
 done which ought to have h&en done . There is no better statement of 
 illustration of the meaning of this than that supplied *^^ principle. 
 by the equitable doctrine of conversion, which is thus 
 expressed by Sir Thomas Sewell in the leading case of 
 Fletcher v. Ashburner (a) : — 
 
 " Money directed to be employed in the purchase 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 converted; and this in whatever 
 
 (a) 1 Bro. C. C. 497; 1 W. & T. L. C. 327, ed. 7.
 
 508 CONVERSION. 
 
 "manner the direction may be given — whether by will, 
 " by wa}^ of contract, marriage articles, settlement, or 
 "otherwise — and whether the money is actually deposited, 
 "or only covenanted to be paid; whether the landisactu- 
 "ally conveyed, or only agreed to be conveyed. The 
 " owner of the fund or the contracting parties may make 
 "land money or money land." These words are quoted 
 and supported by Lord Alvanley in Wheldale v. Part- 
 ridge (&). 
 
 The consequences of this doctrine are of very great in- 
 tei-est and importance, and being often not a little intri- 
 cate, they require full and careful consideration. The first 
 inquiry naturallj^ is, how conversion may be effected. 
 
 I. Conversion, how effected. 
 
 Conversion may arise either — (1) from the intention of 
 the owner of the property in question; or (2) by the act 
 of the Court; or (3) by that of third persons. 
 
 1. Conversion arising hy intention of the owner. 
 
 Conversion by The intention to effect a conversion may be either jex- 
 t^ion.^°" press or implied. An express direction needs no special 
 consideration; and the leading case already quoted suffi- 
 ciently illustrates the rule that a direction in a deed o|r 
 will for the conversion of land into money or money into 
 land will have the effect of impressing upon the property 
 in .equity the changed form intended. 
 Implied in- But even without express direction conversion may be 
 
 effected by a clear indication of intention — as, for instance, 
 where a testator gives real estate together with personal 
 estate to be divided into equal shares, and directs some of 
 
 {b) 5 Ves. 388, 396. 
 
 tention :
 
 HOW EFFECTED. 500 
 
 such shares to be invested in Government funds (c) . The must be clear, 
 intention must, however, be clearly apparent; merely 
 ambiguous language will not suffice (d) ; and personalty 
 can be made to devolve and pass for the same interests 
 as if it had been realty only by the creation of an. 
 imperative trust for its conversion. A mere declaration 
 is inoperative (e). 
 
 Difficulty is often oecasioned by the use of expressions Optional 
 which give to trustees an optional power of sale or invest- gaie^^^ " 
 ment. Generally speaking, no conversion is effected unless 
 the language is imperative. Thus a gift of money upon 
 trust to lay out the same upon a purchase of lands or to 
 put the same on good securities (/), or a devise of realty 
 with a discretion to sell (g), will not effect conversion. 
 The property will remain in the same state in which it is 
 found. But where the direction is imperative, the bestowal 
 of a discretion as to the time of the sale does not affect it; 
 the conversion operates at once {h). 
 
 In accordance with the rule that the intention of the sometimes 
 party if discoverable is to prevail, there are cases in which ^^^^ conver- 
 language giving an apparent option has by the context 
 been considered sufficiently imperative to effect conversion . 
 This has been the case where, after a direction to lay out 
 money in the purchase of land or other securities, words of 
 limitation have been used which are applicable only to real 
 estate (i). The same was held in Earlomy. Saunders (A:), Eariom v, 
 where Lord Hardwicke said:— "This Court 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 lands or securities for such uses as the land is 
 "before settled. If it is laid out in securities (which are 
 
 (o) Mower v. Orr, 7 Ha. 475. {g) Bourne v. B., 2 Ha. 35. 
 
 (d) Corniok v. Pearce, 7 Ha. (A) Morris v. Griffiths, 26 Ch. 
 477. D. 601; 53 L. J. Ch. 1051. 
 
 (e) Re Walker, Macintosh- (i) Cov)ley v. Harstonge, 1 
 Walker v. Walker, CigOS) 2 Ch. Dow, 361. 
 
 705; 77 L. J. Ch. 755. (k) Amb. 241. And see R» 
 
 (/) Curling v. May, cited 3 Walker, sup. 
 Atk. 255.
 
 510 CONVERSION. 
 
 "personal), all the limitations might not take place. . . 
 " 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." Where 
 trustees had an express option given to them to sell real 
 propertj^ and to reinvest on realty or personalty, the new 
 purchase to follow the same trusts, estates and limitations 
 as the original estate, and they sold and invested on mort- 
 gage, it was held that there was a conversion (Z). The 
 distinction apparently was that in the latter case the 
 trustees had an express power of sale in the first instance, 
 whereas in the former the money was given to them to 
 invest on express limitations, so that their discretion was 
 only as to temporary investment, not as to the general 
 treatment of the fund. 
 Direction to ^ somcwhat similar 'distinction is taken when there is a 
 
 convert on the . p ■ tj» 
 
 request of direction to convcrt at the request oi certain persons . li 
 third persons, ^^g words of request are merely inserted for the purpose 
 of enforcing the 'obligation to convert, then, although con- 
 version takes place ^without a request having been made, 
 it will be ^considered to have been properly effected (m) . 
 It was there said: "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" (n). 
 But if the words requiring the request or consent are in- 
 serted for the purpose of giving a discretion to the persons 
 concerned, and then a sale takes place without such re- 
 quest, it will be considered improper, and there will be no 
 conversion (o) . 
 Partial con- Where, again, a mere discretionary power to convert 
 
 version under , . . , , , --i ^ , • -i 
 
 discretionary property IS givcn to trustees, and only a partial conversion 
 power. ^g made before the power is extinguished by the death of 
 
 (0 Atwell V. A., 13 Eq. 23. (n) Per Sir W. Grant, M. R. 
 
 (m) Thornton v. Hawley, 10 (o) Dapies v. Goodhe^v, 6 Sim. 
 
 Ves. 129. 585.
 
 HOW EFFECTED. oU 
 
 the trustees, the property must be taken as it is found by 
 those entitled, according to its character (p) . It is other- 
 Vise in the case of an imperative power in the nature of a 
 trust (g) . 
 
 Where from the nature of the transaction there is evi- Express 
 dently no intention to convert, an express power of sale P^^^^ of sale 
 
 ■^ ' ir r does not ipso 
 
 -wiW not effect conversion . facto convert. 
 
 This is the case in mortgages. The general intention .of -E.y., mort- 
 3, mortgagor is to raise money, not to alter the condition ^*^=®'* 
 or the mode of devolution of the property. On the death 
 •of a mortgagor, therefore, the equity of redemption de- 
 voJves upon his heir or devisee, notwithstanding a powqr of 
 sale in the mortgage, and a provision that the surplus 
 moneys arising from a sale shall be paid to the mortgagor, 
 his executors or administirators. Thus if the sale does 
 not take place till after the death of the mortgagor, his 
 heir or devisee will be entitled t,o the money; though if the 
 sale takes place in the mortg'agor's lifetime, the conver- 
 sion will be 'complete, and the money will become the 
 personal estate ,of the mortgagor (r) . Again, if the trust 
 for sale is for any ;reason void, for example, on the ground 
 'Of remoteness, there is no conversion (s) . 
 
 2. Bp act of Court, or third parties. 
 
 There 'are also cases in which conversion takes place Conversion 
 apart from any intention of the owner of the property. the owner's 
 
 Thus if the real estate of a bankrupt is in his lifetime intention, 
 contracted to be sold, it is considered to be converted; and 
 upon his death intestate his heir-at-law will not be entitled 
 
 In bank- 
 ruptcy. 
 
 (jr) Walter V. Maunde, 19 Yes. 15; Se Grange, Chadtvick v. 
 
 424; Rich v. Whitfield, 2 Eq. Grange, (1907) 1 Ch. 313; 2 ib. 
 
 583; Pitman v. P., (1892) 1 Ch. 20; 76 L. J. Ch. 456. 
 279; 61 L. J. Ch. 288. (s) Goodier v. Edmunds, (189S}) 
 
 (q) Grieveson v. Kirso-pp, 2 3 Ch. 455; 62 L. J. Ch. 649; 
 
 Keen, 653. Tullett v. Colville, (1894) 3 Ch. 
 
 (r) Wright v. Rose, 2 S. & S. 381; 63 L. J. Ch. 544; affirming 
 
 323; and see Pearce v. Marsh, (1894) 2 Ch. 310. 
 (1904) 1 Ch. 518; 73 L. J. Ch.
 
 512 
 
 CONVERSION. 
 
 For benefit 
 of luuatic 
 
 or infant. 
 
 Purchase 
 under a Rail- 
 way Act. 
 
 Purchase 
 under com- 
 pulsory 
 powers ; 
 8 & 9 Vict. 
 c. 18. 
 Jjunatic. 
 Infant. 
 
 to it, or to any part of it not ,requ,ired for the satisfaction 
 of his debts (t). 
 
 In the case of a lunatic, the Court will not generally 
 alter the state of the property so as to affect his successors,. 
 but it may do so when it is for the benefit of the Junatic 
 himself (u), and when it does so the conversion produces all 
 its natural cojisequences {x) . 
 
 The law with 'regard to infants seems now to be on t.he 
 same footing. Previously to the Wills Act (y), when an 
 infant might bequeath his personalty at an earlier age 
 than he could devise his realty, there was great indisposi- 
 tion in the Court to,interf ere with tjhis right by converting 
 his property, and it "was only done in cases of urgent 
 necessity (z) . But this reason now no longer exists, and 
 there is, therefore, 'nothing to distinguish the case from' 
 that of a lunatic (a) . 
 
 In the absence of special clauses for that purpose, the 
 effect of a Railway Act is not to alter the devolution of, 
 property without the consent of the owner; and, therefore,, 
 if a company acquires the land of an incapacitated 
 person, such as a lunatic, the purchase-money will not be 
 deemed to have been converted (6). 
 
 When land is taken by virtue of compulsory powers 
 under the Lands Clauses Consolidation Act, 1845 (c), from 
 a person of unsound mind not so found by inquisition, the 
 better opinion is, that there is no conversion, and on the 
 owner's death intestate his heir will be entitled (d). The 
 same rule applies where the land of an infant is taken by 
 a railway company under s. 69 of this Act; the purchase- 
 
 (0 Banks v. Scott, 5 Mad. 493. 
 
 (m) Oxenden v, Compton, 2 
 Vea. jr. 72; Exp. Phillips, 19 
 Ves. 124. 
 
 {x) Exp. Grimstone, Amb. 706; 
 4 Bro. C. C. 235; In re Mary 
 Smith, 10 Ch. 79; Baldwin v. 
 Smith, (1900) 1 Ch. 588; 69 L. J. 
 Ch. 336. 
 
 (y) 1 Vict. c. 26. 
 
 (z) Exp. Grimstone, sup. 
 
 (a) Dyer v. J)., 34 Bcav. 504; 
 and see Exp. Brornfield, 1 Ves. 
 jr. 461; 3 Bro. C. C. 515. 
 
 {h) Mid. C. R. Co. V. Oswln, I 
 Coll. 74, 80; Re Sloper, 22 Beav. 
 198, cited. 
 
 (c) 8 & 9 Vict. c. 18. 
 
 Id) Re Tugwell, Tl Ch. D. 309; 
 53 L. J. Ch. 1006, dissenting from 
 Exp. Flamank, 1 Sim. N. S. 260..
 
 THE EFFECTS OF. 513 
 
 monej retains its character of real estate, and descends to 
 the infant's heir-at-law (e). 
 
 In the case of a sale of an infant's or a lunatic's property Sale under 
 under a decree in a partition action, there is no conversion, ^'^^tition 
 and the proceeds of sale retain their character of realty, 
 by virtue of s. 8 of the Partition Act, 1868 (/). But it 
 is otherwise in case of the sale of the property of a person 
 who is sui juris {g) . 
 
 Where, however, there was a sale by the consent of a Married 
 married woman under s. 6 of the Act, the property was '^°™*°- 
 held to be converted {h) . And the same is the case when 
 a sale has been ordered, whether under the Lands Clauses 
 Act or in a partition action, and the proceeds paid to 
 trustees who have a power of sale {i) . 
 
 II. The effects of Converswn. 
 
 These may be most conveniently discussed by distin- 
 guishing the case of the conversion of money into land 
 from that of land into money. 
 
 1 . Of ni,(me:y into land. 
 
 Generally speaking, money directed to be laid out in Money con- 
 land, wliether by contract or will, acquires all the properties [Jncf aemiires 
 of land. Thus it will descend as land to the legal heir (/{•) . propertiea of 
 In what character it will be taken by an heir will be pre- 
 sently considered (l). It will pass by a general -devise (m), 
 
 (e) Kellaml v. Fulfonl, 6 Ch. Sodson, Yates v. Morton, (1908) 
 
 D. 491. 2 Ch. 638; 77 L. J. Ch. 830. 
 
 (/) 31 & 32 Vict. c. 40. Foster (h) Wallace v. Greenwood, 1(5 
 
 V. F., 1 Ch. D. 588; Re Barker, Ch. D. 362. 
 
 17 Ch. D. 241 ; 50 L. J. Ch. 334 ; (Q Re Ilobson's Trusts, 7 Ch. 
 
 Mordaunt v. Benwell, 19 Ch. D. D. 708; Smith v. May, (1900) 2 
 
 302; 54 L. J. Ch. 247; Norton v. Ch. 474; 69 L. J. Ch. 735. 
 
 N., (1900) 1 Ch. 101; 69 L. J. {k) Scudainore v. 8., Free. Ch. 
 
 Ch. 31; Ilopkinson v. Richard- 543. 
 
 son, (1913) 1 Ch. 284. (/) P. 525. 
 
 {g) Herbert v. //., (1912) 2 (w) Greenhill v. G., 2 Vern. 
 
 Ch. 268; 81 L. J. Ch. 733; Re 679. 
 
 S. 38
 
 514 
 
 CONVERSION. 
 
 and not by a general bequest (w). It will be subject to 
 tenancy by the curtesy (o); but was not subject to dower, 
 while dower did not attach on equitable estates (p). Now, 
 by virtue of 3&4 Will. IV. c. 105, it presumably would 
 be so. 
 Exceptions. But in some respects money directed to be laid out in 
 
 land is not impressed with the quality of land. It is not 
 deemed land for fiscal purposes, but is liable to legacy, not 
 to succession duty (q), and now, of course, to estate duty. 
 Where, by order of the Court in lunacy, money of a. 
 lunatic was laid ou,t in land, on the death of the lunatic 
 the land was held to be part of the lunatic's personal 
 estate, liable to probate duty (r). 
 
 Land into 
 money. 
 
 How far 
 retaining- 
 quality of 
 land. 
 
 2. Of land into 7noney. 
 
 Following the analogy of the converse case, land notion- 
 ally converted into money will pass to the personal repre- 
 sentatives of a deceased person (s), or will be included 
 under a general residuary bequest (t), and will not b© 
 affected by a devise of land (u). An alien, even previously 
 to 33 Vict. c. 14, was entitled to the proceeds of sale of 
 land devised to be sold for his benefit (x). The proceeds 
 of sale of a real estate directed to be sold are liable to 
 legacy duty (y); and it seems, to probate duty (z). 
 
 There are exceptions also in this case: thus money to 
 arise from sales of land was within the provisions of the 
 
 (w) Edwards v. C. of Warwlclc, 
 2 P. Wms. 171. 
 
 (o) Sweetapple v. Bindon, 2 
 Vern. 536. 
 
 (2?) Cunningham v. Moody, 1 
 Ves. sr. 174, 176. 
 
 (5') Re Be Lancy, L. R. 6 Ex. 
 102; and see Macfarlane v. Lord 
 Advocate, (1894) A. C. 291. 
 
 (j) Att.-Gen. v. M. of Ailes- 
 bury, 12 App. Cas. 672; 16 Q. B. 
 D. 408; 14 ib. 895; 57 L. J. Q. B. 
 83. 
 
 (s) Ashby v. Palmer, 1 Mer. 
 296. 
 
 (t) Stead V. Newdigafe, 2 Mer. 
 521. 
 
 (u) Elliott V. Fisher, 12 Sim. 
 505. 
 
 (a;) Du Ilourmielin v. Sheldon, 
 1 Beav. 79; 4 My. & Cr. 525. 
 
 Cy) 55 Geo. III. c. 184; Att.- 
 Gen. v.Holford, 1 Pri. 426; Att.- 
 Gen. V. Dodd, (1894) 2 Q. B. 
 150; 63 L. J. Q. B. 319. 
 
 (s) Re Goods of Gunn, 9 P. D. 
 242; 53 L. J. P. D. & A. 107; 
 Att.-Gen. v. Lomas, L. R. 9 Ex. 
 29; but see Matson v. Swift, 8 
 Beav. 368.
 
 THE EFFECTS OF. -^lo 
 
 Mortmain Act (a). It, however, did not escheat to the 
 Crown upon a failure of heirs, nor had the Crown any 
 right to come into equity to ask that the land should be 
 converted in order that it might take as bona vacantia. 
 Even if it has been actually but unnecessarily converted, 
 the Crown could not make good its claim (b). But by the 
 Intestates' Estates Act, 1884 (c), the rights of the Crown 
 have been extended to include such cases. 
 
 3. Character of converted property. 
 
 We have seen that money directed to be laid out in Nature of 
 land acquires the descendible property of land, so as to property, 
 pass in case of intestacy to the heir. The question then 
 often arises as to the character in which the heir receives 
 it — that is, whether it becomes his real or his personal 
 property. This is evidently an all-important inquiry as 
 between his representatives, when the heir thus receiving 
 the converted money dies without having made any dispo- 
 sition thereof. The nature of the property in the hands Depends on 
 of the heir has been held to depend upon the manner in manner of 
 
 , . , , . , conversion, 
 
 which the conversion has taken place. 
 
 First, if the converted money was bequeathed to be Bequest, 
 invested in land for the use of A. and his heirs, or on his 
 marriage money has been paid by him, or paid or 
 covenanted to be paid by a stranger to trustees, to be 
 laid out in land and settled in strict settlement, with re- 
 mainder to the heirs of A., then A. will hold the converted 
 money as land, and on his decease his heir will be entitled 
 as against his personal representative (d) . 
 
 Secondly, if A. has covenanted to lay out a sum of Covenant, 
 money in land to be settled on himself for life, remainder 
 
 («) 9 Geo. II. c. 36; Att.-Gen. (c) 47 & 48 Vict. c. 71; and see 
 
 V. Weymouth, Amb. 20; Brook v. Panes v. Att.-Gen., (1901) 1 Ch. 
 
 Badlei/, 4 Eq. 106; 3 Ch. 672; 15; 70 L. J. Ch. 12. 
 
 but now see 54 & 55 Vict. c. 73. (d) Scudamore v. S., Prec. Ch. 
 
 (6) Taylor v. Hay garth, 14 543; Disher v. B., 1 P. Wms. 
 
 Sim. 8; Gradoch v. Owen, 2 Sm. 204. 
 & G. 241. 
 
 33 (2)
 
 516 
 
 CONVERSION. 
 
 Principle of 
 
 the distinc- 
 tions. 
 
 to his wife for life, remainder to the issue of the marriage, 
 and he dies leaving his wife or any issue of the marriage 
 surviving him, then also the conversion continues to 
 operate; and on the death of the wife and issue, the heir 
 of A. will be entitled to it (e). 
 
 But if, in such a case as the last, A. does not leave any 
 wife or issue him surviving, then on his decease his 
 personal representative will be entitled; the distinction 
 being, that in this case the obligation to lay out tliei 
 money and the right to call for it have become centered in 
 the same person, so that the covenant may be considered 
 discharged. There is then no equity left in his heir to 
 call for the money from his 'personal representative (/) . 
 
 The principle may perhaps be thus expressed: if at the 
 death of the person first entitled to the converted fund 
 there still exists an enforceable obligation to convert it, 
 the effect of the conversion continues, and the heir takes; 
 but if before his death this obligation ceases, the right 
 to demand and the duty to effect the conversion centerings 
 in the same person, then the effect of the conversion 
 ceases, and on his death his personal representative 
 takes {g). 
 
 General rule 
 as to time of 
 conversion, 
 when 
 directed. 
 
 III. Time from which Conversion takes place. 
 
 Many important questions depend upon the question as 
 to the precise time from which the doctrine of conversion 
 begins to operate upon the property concerned. The 
 general principle is that where an absolute conversion is 
 directed to be made, it takes effect at the time at which 
 the instrument directing it comes into oj^eration. Thus in 
 the case of a will the conversion takes j^lace at the death 
 
 (e) Kettlebi/ v. Atirood, 1 Vcrn. 
 298, 471. 
 
 (/) Chichester v. Bickersta-ffe, 
 
 2 Vern. 295; Pultenei/ v. Dor- 
 lington, 1 Bro. C. C. 223. 
 
 (^) Wheldale v. Partridge, 8 
 Ves. 235.
 
 TIME ^^ROM WHICH CONVERSION TAKES PLACE. -^17 
 
 of the testator (h). In the case of a deed it takes place at 
 the date of the execution and delivery (^); and this not- 
 withstanding that the actual transmutation is directed not 
 to take place until a future time (k). 
 
 When conversion takes place not under the intention of In bank- 
 the owner, the time of its operation depends upon circum- 
 stances. Thus in the case of the sale of a bankrupt's real 
 estate, if such sale takes place after the death of the 
 bankrupt, no actual conversion having taken place in his 
 lifetime, whatever remains after satisfying the creditors 
 will belong to his heir-at-law (Z), though, as we have seen, 
 if the sale took place in his lifetime the surplus ^vould' 
 pass to his next of kin. Thus conversion only takes place 
 at the time of the contract for sale. 
 
 A mere notice to treat by a company having compulsory In compul- 
 powers of purchasing land will not operate as a conversion cha^e^!^^' 
 thereof into personalty (m). As soon, however, as the 
 quantity and price are fixed between the landowner and 
 the company, conversion takes place (n) . The same is the 
 case when the price is fixed by arbitration (o), by valua- 
 tion (p), or by verdict of a jury (q). The actual time of 
 conversion is the completion of a binding agreement if 
 voluntary, or the ascertaining of the definite terms of the 
 transaction if compulsory (r). 
 
 In a case in which the conversion is not absolutely Where con- 
 directed, but is made to depend upon the option of another pgn^g'^n the 
 person, the same general rule applies. Thus where a farm option of a 
 was leased to A. for seven years, and on the leas<e was 
 
 (A) Beauclerk v. Mead, 2 Atk. (w) Haynes v. H., 1 Dr. & 
 
 167; Morris v. Griffiths, 26 Ch. Sm. 426; Exp. Arnold, 32 Beav. 
 
 D. 601; 53 L. J. Ch. 1051. 591; Richmond v. N. L. R. Co., 
 
 (0 Griffith V. Ricketts, 7 Ha. 5 Eq. 352. 
 
 299; Re Grimthorpe, Beckett v. {n) Exp. Hawkins, \Z^im.5&9. 
 
 Grimfhorpe, (1908) 1 Ch. 666; 2 (o) Harding v. Met. Ry. Co., 
 
 Ch. 675; 77 L. J. Ch. 371; 78 7 Ch. 154. 
 
 L. J. Ch. 20. {p) Watts v. W ., 17 Eq. 217. 
 
 {k) Hewitt V. Wright, 1 Bro. (g) Haynes v. H., sup. 
 
 C. C. 86; Clarke v. Franklin, 4 (r) See also Re Dykes' Estate, 
 
 K. & J. 257. 7 Eq. 337; Re Manchester # 8. 
 
 (J) Banks v. Scott, 3 Madd. R. Co., 19 Beav. 365. 
 493.
 
 '518 CONVERSION. 
 
 endorsed an agreement that A. should have an option 
 within a given time of purchasing the inheritance for 
 £3,000, it was held that the conversion took place as from 
 the execution of the lease; and the lessor having died 
 before the option of purchase was exercised, the money 
 was treated as part of his personal estate (s). Neverthe- 
 less, until the option in such a case is exercised, the rents 
 and profits go to the person entitled to the real estate {t). 
 The result, therefore, is that the ultimate destination of 
 the property depends entirely upon the choice of the 
 person who has the option of purchase. If he elects not to 
 purchase, it remains real estate; if he elects to purchase, it 
 is deemed converted into personal estate, and the conver- 
 sion relates back to the time when the option was given. 
 
 Intention pre- Such is the casB where there is nothing to indicate ai 
 
 vans it ascer- . . p i • • i 
 
 tainable. contrary intention on the part of the original owner; but 
 
 like all secondary rules respecting the construction of 
 instruments, it is subject to the primary rule that the 
 intention of tho owner, where it can be ascertained, is to 
 prevail. If, therefore, in the instrument by which the 
 option is given, there is an express direction that the 
 purchase-money shall be paid to the person who is then 
 the owner of the estate, he alone will be entitled to it {u). 
 And if, after having given an option of purchasing certain 
 real estate, a testator specifically devises the same estate, 
 this amounts to a sufficiently clear indication of intention 
 respecting it to entitle the devisee to the purchase-money 
 when the option has been exercised (ic) ; and similarly, 
 also, where the option and the specific devise are practi- 
 cally simultaneous {y). No such intention would be in- 
 
 (s) Lawes v. Bennett, 1 Cox, (m) Re Graves Minor, 15 Ir. 
 
 167; Isaacs v. Reginall, (1894) 3 Ch. Eep. 357. 
 
 Ch. 506; 63 L. J. Ch. 845. {x) Brant v. Vause, 1 Y. & C. 
 
 (0 Townley v. Bedwell, 14 Ch. 580; Emuss v. Smith, 2 De 
 
 Ves. 591; Exp. Hardy, 30 Beav. Cr. & S. 722. 
 
 206; Re By son, Challinor v. (y) Pyle v. P., (1895) 1 Ch. 
 
 Sykes, (1910) 1 Ch. 750; 79 L. J. 724; 64 L. J. Ch. 477. 
 Ch. 433.
 
 EFFECTS OF FAILUKK OF PURPOSES OF CONVERSION. 519 
 
 f erred from a mere general devise after the agreement (z) ; 
 nor if the agreement for the optional purchase is made 
 suhsequently to the will containing a specific devise of the 
 property (a). 
 
 IV. Effects of failure of the purposes for tvhich 
 Conversion is directed. 
 
 1 . Where conversion is volimtary. 
 
 The general rule is, that when a conversion is directed 
 by will, and the purpose for which the conversion was 
 intended totally fails before the will comes into operation. Total failure 
 that is, in the testator's lifetime, no conversion will take noconverBior. 
 place, and the property so directed to be converted will 
 result to the testator in its original form unchanged (&). 
 " Every conversion, however absolute in its terms, will be 
 " deemed to be a conversion for the purposes of the will 
 " only, unless the testator distinctly indicates an intention 
 " that it is, on the failure of those purposes, to prevail as 
 " between the persons on whom the law casts the real and 
 " personal property of an intestate, namely, the heir and 
 " next of kin " (c). 
 
 If the failure is but partial, conversion will take place Partial 
 only to such extent as is necessary to effect the purpose of failure; con- 
 the will.' And, in as far as it is not required for that pur- place only 
 pose, the property will result unchanged. Thus in AcJc- necessary. 
 royd V. Smithson (d) a testator gave several legacies, and 
 ordered his real and personal estate to be sold, and his 
 debts and legacies to be paid out of the proceeds of the 
 sale: he gave the residue thereof to certain legatees in the 
 proportion of their legacies. Two of these residuary 
 legatees died in the lifetime of the testator., It was held 
 
 (z) Colling wood v. Row, 5 (i) Hill v. Cock, 1 V. & B. 
 
 W. K. 484. 175; Fitch v. Weber, 6 Ha. 145. 
 
 (a) Weedinff v. W., 1 J. & H. (c) 1 Jarm. Wills, 623, 4th ed. 
 
 424; Goold v. Teague, 7 W. R. {d) 1 Bro. C. C. 503; 1 W. & 
 
 84. T. L. C. 372, ed. 7.
 
 620 
 
 CONVERSION. 
 
 that these lapsed shares, so far as they were constituted 
 of personal estate, should go to the testator's next of kin, 
 and so far as they were constituted of real estate to his 
 heir, notwithstanding the directed sale. Even where there 
 was a direction that the proceeds of real estate should be 
 deemed personalty, and it was expressly declared that it 
 should not lapse for the benefit of the heir-at-law, the 
 heir-at-law was hold not to be excluded. It was con- 
 sidered that the declaration was only intended to apply 
 as far as conversion was required for the pu^'poses of the 
 will, and that it did not prevent the law from dealing 
 with a surplus in accordance with its usual rules (e). The 
 heir will only be excluded by a gift over, in case of a 
 lapse (e). 
 
 The same result follows where money arising from land 
 
 directed to be sold is given over on an event which never 
 
 happens (/), and where the whole or apart of the purpose 
 
 for which it is given fails for illegality, as, for instance, 
 
 being void under the Mortmain Act (^), or being so 
 
 limited as to transgress the rule as to perpetuities (h). 
 
 Rule applies The rule that conversion takes place only so far as the 
 
 be convert^ purposes of the wiU require, applies equally whether it be 
 
 into money or land converted into money or money into land (*"). And 
 
 Blendino- uf ^^ ^^"^^^ have been seen from the cases of Ackroyd v. Smith- 
 
 proceeds of $071 and Jessop V. Watson, above referred to, that it is 
 
 sonalty im- immaterial that there is a blending of the proceeds of sale 
 
 material. pf i^ealty with the personalty. 
 
 Effect of So far we have considered only those oases in which, 
 
 gift over. there being a failure of the purposes for which conversion 
 
 is directed, the conflict as to wlio shall take the lapsed 
 
 property is only between the heir and next of kin. The 
 
 testator, however, may provide for a lapse by making a 
 
 (e) Fitch V. Weber, sup.; wom^A, Amb. 20. 
 
 Collins V. Wakeman, 2 Ves. jr. (/t) Burleij v. Evelyn, 16 Sim. 
 
 683. 290. 
 
 (/) Jessop V. Watso)i, 1 My. & (0 Cogan v. Stephens, 1 Beav. 
 
 K. 665. 482. n.; Simmons v. Pitt, 8 Ch. 
 
 {g) Att.-Gen. v. Lord Wcy- 978.
 
 EFFECTS OF FAIIAIKE OF PURPOSES OF COXVEKSION. 521 
 
 gift over of tlie property which may be thus released. If Specific gift, 
 such a gift over is specific and clear, no difficulty arises; 
 but conflict is often occasioned where the only gift over is 
 in the form of a residuary devise or bequest; it being 
 frequently open to question whether such residuary gift 
 was intended to comprise the undisposed-of shares. 
 
 One class of cases is that in which the dispute is between Residuary 
 tbe heir and a residuary legatee. In Maugham v. legacy. 
 Mason (k) a testator devised freeholds to trustees and j\rason. 
 their heirs upon trust to sell and to apply the jiroceeds of 
 sale towards the payment of debts and legacies, the rents 
 until the sale 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 pay- 
 ment of his debts, legacies, and funeral expenses, he 
 bequeathed the same to his trustees, their executors, 
 administrators, and assigns, upon trust to convert all the 
 said residue into ready-money, and to lay out the same 
 in the purchase of freehold property to be settled as 
 therein mentioned. The executors in fact paid all the 
 debts, legacies, and funeral expenses out of the personal 
 estate, and did n6t sell the freeholds. It was held that 
 the freeholds resulted to the heir-at-law, and were not 
 comprised in the residuary bequest. The principle was 
 that the conversion was only directed for a particular pur- 
 pose, and as that purpose never required it, there was no 
 conversion, and consequently none of the results of con- 
 version followed. If, however, the testator had declared 
 expressly that the proceeds of the real estate should be 
 considered a part of the personalty, the case would have 
 been otherwise; that would have shown that the conversion 
 was not merely intended to be for a particular purpose, 
 but to be absolute, carrying with it all its consequences; 
 and the proceeds of sale would accordingly be included in 
 the residuary bequest (l). Apart even from such an 
 
 (/fc) V. & B. 410. Ves. jr. 436; Bright v. Larcher, 
 
 (I) Kidney v. CoussmaJcer, 1 3 De G. & J. 156.
 
 522 
 
 CONVKRSION. 
 
 Intention to 
 exclude the 
 heir must be 
 clear. 
 
 Residuary 
 dcAase. 
 
 Failure of 
 purposes of 
 conversion 
 in settlement 
 inter vivos 
 resulting to 
 settlor. 
 
 express declaration, there may be ia the circumstances 
 of the case such an indication of intention as will lead to 
 the same result; the blending of the proceeds of sale witli 
 the personalty supplies an argument in favour of such an 
 intention (m). The intention to esclude the heir must, 
 however, be clear. The true test is, whether the co7iversi(m 
 is directed only for particular purposes or is intended to 
 be absolute (n). 
 
 The cases are now rare in which there is a conflict 
 between the heir and the residuary devisee, since, by the 
 Wills Act (o), s. 25, it is enacted that unless a contrary 
 intention appears in 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. As to the law in cases not within this Act, refer- 
 ence may be made to Collins v. Wakeman {p) ; Jones v. 
 Mitchell (g) . 
 
 In the case of a failure of the purposes of conversion 
 under an instrument inter vivos, the property results to the 
 settlor or grantor. In what character he takes it, as 
 between his real and personal representatives, we shall 
 presently inquire. 
 
 Sale under 
 order of the 
 Court. 
 
 2. Conversion by order of the Court. 
 
 It has been decided that the doctrine of Ackroyd v. 
 Smithson docs not apply to the case of a sale under an 
 order of the Court. Where lands were sold in order to 
 raise the costs of an infant's partition suit, it was held that 
 
 (jn) Byam v. Munton, 1 R. & 
 M. 503; Court v. BucJcland, 1 
 Ch. D. 605. 
 
 (w) Amphlett v. Parke, 2 R. & 
 
 M. 221. 
 
 (o) 1 Vict. c. 26. 
 Ip) 2 Ves. jr. 683. 
 Iq) 1 S. & S. 290.
 
 IN WHAT CHARACTER UNCONVERTED PROPERTY RESULTS. 523 
 
 the porsoual representative was entitled to the surplus (r) . ^ 
 The sale being properly made there was an immediate Complete 
 
 1 , , ■• , n i. conversion 
 
 conversion, and there was no equity to etrect a reconver- „otvvith. 
 
 sion. The same principle has been applied in the case of standing 
 the conversion of a lunatic's estate under an order of a failure, 
 master in lunacy (s). The case rather resembles in 
 principle an instance of conversion under a deed, than the 
 case of a partial failure of the purposes of conversion 
 under a will. The conversion in such cases takes effect 
 from the date of the order for sale (t). 
 
 The rule, however, is of course subject to any statutory unless 
 provisions which apply in particular cases. Thus, where direccthe 
 real estate to which infants were entitled were sold under <-ontraiy. 
 a decree in a partition suit, the proceeds of sale were, by 
 s. 8 of the Partition Act, 1868 (it), treated as realty (x). Partition 
 In the case of a sale under the same circumstances of the 
 separate estate of a married woman, the question of con- 
 version depends upon her consent. If she consent, there 
 is a conversion; if not, there is no conversion {y). ♦ 
 
 Act. 
 
 V. hi ivhat Character Unconverted Property results. 
 
 The next inquiry is, whether an heir who takes land 
 directed to be sold, on failure of the purposes of conversion, 
 takes it as real or as personal property; and a similar 
 
 (r) Steed v. Preece, 18 Eq. (w) 31 & 32 Vict. c. 40. 
 
 192; Burgess v. Booth, (1908) 2 Ix) Foster v. F., 1 Ch. D. 
 
 Ch. 648; 78 L. J. Ch. 32. 588; EopMnson v. Richardson, 
 
 (s) Re Searle, Ryder v. Bond, (1913) 1 Ch. 284; 82 L. J. Ch. 
 
 (1912) 2 Ch. 365; 81 L. J. Ch. 211. 
 
 751. (y) Wallace v. Greenwood, 16 
 
 (0 Tlyett V. MeaMn, 25 Ch. Ch. D. 62; 50 L. J. Ch. 289; 
 
 D. 735; 53 L. J. Ch. 241; Mildnuiy v. Quicke, 6 Ch. D. 
 
 Hartley v. Pendarves, (1901) 2 553; Kelland v. Fulford, 6 Ch. 
 
 Ch. 498; 70 L. J. Ch. 745; Re D. 491; and see Smith v. May, 
 
 Dodson, Yates v. Morton, (1908) (1900) 2 Ch. 474; 69 L. J. Ch. 
 
 2 Ch. 638; 77 L. J. Ch. 830; 735; Norton v. N., (1900) 1 Ch. 
 
 Fauntleroy v. Beebe, (1911) 2 101; 69 L. J. Ch. 31, supra, 
 
 Ch. 257; 80 L. J. Ch. 654. p. 513.
 
 624 
 
 CONVERSION. 
 
 inquiry follows respecting the next of kin taking under 
 analogous circumstances. The questions often arise be- 
 tween the real and personal representatives of the persons 
 thus benefiting by the resulting trust. 
 
 Heir takes • 
 lapsed 
 laiid where 
 conversion 
 directed by 
 will ; if sale 
 is necessary, 
 as personalty. 
 
 If sale not 
 necessary, 
 as land. 
 
 Under in- 
 struments, 
 inter vivos, 
 
 if purpose 
 fails ab initio, 
 no conversion 
 takes place. 
 
 If failure is 
 
 1 . First as to an heir taking land directed to be sold^ on 
 a lapse. 
 
 Where conversion is directed b}' will, and there is a 
 failure of the purposes for which it is directed, the quality 
 in which it results to the heir depends upon the question, 
 whether an actual sale is required for the purposes of the 
 will. If such a sale is necessary, then, whether it has 
 actually taken place or not before the death of the heir, 
 the property results in a converted form as personalty; 
 and will, on the death of the heir intestate, pass to his 
 next of kin {z). 
 
 On the contrary, if there is no necessity for any sale in 
 order to carry out the trusts of the will — if, for instance, 
 there is a total failure of the purposes of conversion — then 
 the property results to the heir as realty, and will on his 
 death intestate descend to his heir (a) . And if a sale has 
 unnecessarily been effected, this will not vary the rights of 
 the parties ih) . But the question as to the necessity of the 
 sale is determined by the state of facts at the testator's 
 death (c). 
 
 In the case of a conversion arising under an instrument 
 inter vivos, the question takes a somewhat different form. 
 In this case, if there be an entire failure of the purposes 
 of conversion ab initio, no conversion is deemed to have 
 taken place at all, and the property results to the settlor 
 or grantor in its original form (d) . If there is only a 
 
 (s) Smith V. Claxton, 4 Madd. 
 492; Wright v. ^F., 16 Ves. 188; 
 Scales V. Heyhoe, (1892) 1 Ch. 
 379; 61 L. J. Ch. 202. 
 
 (rt) Chitty V. Parker, 2 Ves. jr. 
 271 ; Buchanan v. Harrison, 1 J. 
 ^ H. 673. 
 
 (6) Davenport v. Coltman, 12 
 Sim. 610. 
 
 (c) Carr v. Collins, 7 Jur. 165; 
 1 Jarm. Wills. 631, cd. 4. 
 
 {(l) Hewitt v. Wright, 1 Bro. 
 C. C. 86; Clarke v. Franklin, 4 
 K. & J. 257.
 
 IN WHAT CHARACTER UNCONVERTED PROPERTY RESULTS. 525 
 
 partial failure, then the conversion operates, in accordance only partial 
 with the usual ruh\ from the execution and delivery of (he jts converted 
 deed, and having once taken place, whatever results, results ^°^"^- 
 in its converted form(e). It will bt; observed that ihc 
 underlying principle is just the same as in the case of a 
 will. In each case the qiiaUt^y of the resulting property 
 depends upon the question of the necessity for actual 
 conversion . 
 
 2 . When money is directed to be laid out in land, and Money 
 
 the purposes for which conversion was directed partially ^g i^id out 
 
 fail, the money in so far as not required results to the ^^ l^^<i- 
 
 personal representative (/) ; and in all cases, whatever Whatever 
 
 results, results as real estate (p) . failure results 
 
 as realty. 
 
 Reconversion. 
 
 Although land directed or agreed to be converted into Election to 
 money, or money directed or agreed to be converted into unconyerted 
 land, is, as we have seen, at once impressed in equity form, 
 with a new character, still it is open to a person receiving 
 the converted property, if not under disability, to elect to 
 take it in its original state. It has been said that " equitj-, 
 like nature, will do nothing in vain" (h); and it would 
 evidently be vain and useless to insist that a person should 
 take a fund in the quality of land, when he prefers it in 
 the form of money, and can at any moment reduce it to 
 that form by a sale. It is necessary to consider certain 
 rules which regulate this power of electing against an in- 
 strument which directs conversion. 
 
 The right of electing to reconvert is simple enough when Presumption 
 the person claiming to do so has an absolute interest in the 
 
 against re- 
 conversion. 
 
 (e) Griffith v. Rickefts, 7 Ha. (/) Cogan v. Stevens, 1 Bcav. 
 
 299; Wheldttle v. Partridge, 8 482, n. 
 
 Ves. 236; Be Grimthorpe, Beckett (g) Curteis v. IVortrndd, 10 Ch. 
 
 V. GrimtJwrpe, (1908) 1 Ch. 666; D. 172, overruling Reynolds v. 
 
 77 L. J. Ch. 321 ; affirmed (1908) Godlee, 1 Johns. 536. 
 
 2 Ch. 675; 78 L. J. Ch. 20. {h) Seeleij v. Jago, 1 P. Wnis. 
 
 389.
 
 526 
 
 RPXONVERSION. 
 
 property in question. It is to be observed, however, that 
 the presumption is against reconversion. In case of any 
 dispute as to the fact, the onus of proof is on those who 
 allege that the owner has elected to take in the original 
 form rather than in that directed by the instrument which 
 effected the conversion (^) . Further: 
 
 Person 
 electing 
 must be 
 
 sui juris. 
 
 Lunatic. 
 
 Married 
 woman. 
 
 1. The person claiming to elect must be sui juris. 
 
 Thus a lunatic cannot elect (k) ; neither can an 
 infant (?); but in some cases, where it has been mani- 
 festly for his advantage, the Court has elected for 
 him (m) ; and in either case the Court may direct an in- 
 quiry as to whether it is for the benefit of the infant or 
 lunatic to reconvert. In a case in which money of a 
 lunatic was laid out in the purchase of land by order of 
 the Court, it was directed that the lands should be con- 
 veyed to the committees, their heirs and assigns, upon 
 trust for the lunatic, his executors, administrators, and 
 assigns, so as to preserve its character of personalty as 
 between the heir and next of kin (n). But it is within 
 the power of the Court in lunacy to alter the nature and 
 consequent devolution of a lunatic's estate; and where 
 a receiver of a lunatic's estate purchased the freeehold 
 reversion of leasehold premises belonging to the lunatic, 
 the leasehold was held to merge in the fee simple, and 
 the freehold on the death of the lunatic intestate passed 
 to the heir-at-law (o). 
 
 A married woman with respect to her separate estate is 
 regarded as sui juris, and is competent to elect (p) . With 
 
 (*■) Sisson V. Giles, 3 De G. J. 
 & S. 614; 11 W. R. 971; Benson 
 V. B., 1 P. Wms. 130. 
 
 (k) Ashby v. Palmer, 1 Mer. 
 296. 
 
 (I) Carr v. Ellison, 2 Bro. 
 C. C. 56. 
 
 (m) Robinson v. JR., 19 Beav. 
 494. 
 
 («) Alt. -Gen. v. 31. of Ailes- 
 bury, 12 App. Cas. 472; 57 L. J. 
 Q. B. 83. 
 
 (o) Re Searle, Ryder v. Bond, 
 (1912) 2 Ch. 365; 81 L. J. Ch. 
 751. 
 
 (;;) Sharp v. St. Sauveur, 7 
 Ch. 343.
 
 WHO MAY ELECT TO RECONVERT, 527 
 
 regard to property not so limited, the law prior to the 
 Married Women's Property Act, 1882 (q), depended upon 
 the Fines and Recoveries Act (r). Previously thereto she 
 could not, where money was directed to be laid out in 
 land, alter its nature by contract or deed (s). She might, 
 however, elect to take it as money by consent after exami- 
 nation in Court {»), and the same result was sometimes 
 reached by the device of making a sham purchase. By 
 s. 77 of the last-named Act, she was enabled by deed 
 acknowledged effectually to elect to take as money (^). 
 Under the same section, she might, in the same manner, 
 elect to take in its original form real estate directed to be 
 converted into money {ii), even though it were rever- 
 sionary (x) . Under the present Act, the disability of 
 married women is removed, and there is no reason for 
 attributing any incapacity in the matter of conversion (y) . 
 
 2. No one can so elect as to bind any interests save Person can 
 
 his own and those of persons claiming through him. Thus, his own 
 
 a remainderman cannot elect to take as money a fund interest by 
 
 / election. 
 
 directed to be laid out in land, against the wish of the 
 
 tenant for life, who has a right to insist on having it laid 
 
 out as directed (z) . And in the same case it was laid down 
 
 that even if a remainderman purported so to elect, he could 
 
 not do so, so as to affect the rights of his real and personal 
 
 representatives in case of intestacy; and that, therefore, 
 
 his heir would, notwithstanding his attempt, be entitled 
 
 to the money. He may, of course, by deed or will dispose 
 
 of his own interest as he pleases (a). 
 
 A tenant-in-tail of money directed to be invested in Tenant-in- 
 
 tail. 
 
 (g) 45 & 46 Vict. c. 75. 560; Miller v. Collins, (1896) 1 
 
 (r) 3 & 4 Will. IV. c. 74. Ch. 573; 65 L. J. Ch. 353. 
 
 (s) Oldham v. Hughes, 2 Atk. (y) See Weldon v. Need, W. 
 
 453. N. (1884), p. 153. 
 
 (t) Forbes v. Adams, 9 Sim. {z) Sisson v. Giles, sup: See 
 
 462. and distinguish Wcdrond v. 
 
 (m) Briggs v. Chamberlain, 11 Rosdijn, 11 Ch. D. 640. 
 
 Ha. 69; Franks v. Bolla)is, 2 Ch. {ri) Lingen v. Soivray, 1 P. 
 
 717. Wms. 172. 
 
 {x) Tuer v. Turner, 20 Beav.
 
 528 
 
 RECONVERSION. 
 
 Persou in- 
 terested in 
 undivided 
 shares. 
 Election of 
 one may not 
 prejudice 
 others. 
 
 Persons 
 entitled con- 
 tingently. 
 
 land might as against his issue elect to take as money (6), 
 but ho could not prejudice the rights of remaindermen (c). 
 Now, by the Fines and Recoveries Act (d), s. 71, money 
 directed to be laid out in lands to be settled in tail is foi- 
 the purposes of that Act to be treated as the lands to be 
 purchased would be treated, and to be considered subject 
 to the same estates as the lands to be purchased would, if 
 purchased, have been actually subject to. 
 
 The same principle applies when the property in question 
 is bestowed on a number of persons in undivided shares. 
 If election to take it in its original form can be made with- 
 out prejudice to the others it is allowable; if not, it is not 
 so. The application of this leads to the following distinc- 
 tion. If money is directed to be laid out in land and 
 devised to a number of tenants in common, then any one 
 or more may elect to take his or their shares as money; 
 since tTiis will in no way interfere with the others having 
 the money laid out in land if they so choose (e). But if 
 land is directed to be sold and tlie money divided equally, 
 then it is not open to one of the oo-legatees to elect to take 
 his share as land; for to allow this would prejudice the 
 sale, and so interfere with the rights of the others (/) . 
 
 A person contingently entitled to the proceeds of real 
 estate directed to be sold may, pending the contingency, 
 elect to take the estate as realty, and such election will 
 become operative upon the contingency happening before 
 or upon his death (g) . 
 
 Intention 
 expressed. 
 
 3. Hon: an election to recmivert may he effected. 
 
 (1 .) When there exists an election to reconvert, this ma}' 
 of course be effected by an express declaration of intention. 
 
 (/j) Benson v. B., 1 P. Wms. 889; Walkrr v. Bcnne, 2 Ves. jr. 
 
 130. 182. 
 
 (c) Trafford v. Boehm, 3 Atk. (/) Death v. Hale, 2 Mali. 
 
 440. 317; HoUotvay v. Rndrliffe, 23 
 
 {d) 3 & 4 Will. IV. c. 74. Beav. 163. 
 
 (e) Seeley v. Jago, 1 P. Wms. (ff) Meek v. Devenish, 6 Ch. 
 
 D. 566.
 
 HOW THE ELECTION MAY BE EFFECTED. 52f) 
 
 A parol declaration has been often held sufficient (h), but 
 was refused in Bradish v. Gee (^). 
 
 (2.) Election may be implied from language which does Intention 
 not amount to an express declaration; for instance, where i^^uajro'^*''" 
 a fund had been agreed to be laid out in land, a descrip- 
 tion thereof in a will as money amounted to an election to 
 take it as personalty (A;). Similarly a devise of land as 
 such amounted to an election to take as land, notwith- 
 standing that a sale had been directed (l). 
 
 (3 . ) Election may be implied from the acts of the party from acts. 
 entitled ; and slight circumstances have been deemed suffi- 
 cient (m) . Thus keeping land unsold for a long time raises Illustrations, 
 a presumption of an election to take as \and(n). Two 
 years' retention was, however, considered insufficient (o) . 
 The granting of a lease and reseiwing a rent was held 
 sufficient evidence of an intention to reconvert (p) ; and 
 the same was the case where the cestui que trust of lands 
 settled on trust for sale obtained possession of the title 
 deeds, and retained them together with possession of the 
 land until his death (q) . Acts, however, which show an 
 intention to reconvert lands directed to be sold, in which 
 a person has an immediate interest, were held not 
 applicable to lands devised by the same will, the direction 
 to convert which was only to come into operation after a life 
 interest still in existence. The intention to reconvert 
 those in possession did not imply a similar intention as 
 to others in remainder (r) . 
 
 (A) Edwards v. Warivick, 2 P. (>«) Foxwell v. Lewis, 30 Cli. 
 
 Wms. 174; Pulteney v. Darling- D. 654; 55 L. J. Ch. 232. 
 io)i, 1 Bro. C. C. 237; Wheldale (n) Dixon y. Gayfere, 17 Beav. 
 
 V. Partridge, 8 Ves. 236. 433; Mutlow v. Bigg, 1 Ch. D. 
 
 (0 Amb. 229. 385; Re Gordon, 6 Ch. D. 531. 
 
 (Jc) Pulteney v. Darlington, (o) Kirkman v. Miles, 13 Ves. 
 
 sup.; Re Grimthorpe, Beckett v. 338. 
 
 Grimthorpe, (1908) 1 Ch. 666, {p) Crabtreey. Bramble, Z Mk. 
 
 affirmed ibid. 2 Ch. 675; 77 L. J. 680. 
 Ch. 321; 78 ibid. 20. {q) Davies v. Ashford, 15 Sim. 
 
 (I) Sharp V. St. Sauveur, 7 Ch. 44. 
 343. (r) Meredith v. Vich, 23 Beav. 
 
 559. 
 
 s. 34
 
 ^30, RECONVERSION . 
 
 When money directed to be laid out in land is received 
 by the beneficiary from tlie trustees, it is deemed to be 
 reconverted (s) ; but the receipt of the income for a long 
 time was not considered sufficient (i^). Where securities 
 for moneys were assigned to trustees, to be invested in 
 land to be settled upon a man and his wife with an 
 ultimate limitation to the man's right heirs, and the 
 husband died after some of the money had been laid out 
 on other personal securities in trust for him, his executors 
 and administrators, there was held to be an election to 
 take the money as personalty (u) . 
 
 The mere neglect of trustees to perform their duty of 
 effecting a conversion which is directed, will not affect the 
 rights of others through the medium of the principle of 
 reconversion. It falls rather within the doctrine of 
 primary conversion, which rests, as we have seen, on the 
 maxim that equity regards that done which ought to have 
 been done (x) . 
 
 (s) Pultoiey V. Darlington, 1 (w) Lingen v. Sowray, 1 P. 
 
 Bro. C. C. 237; Rook v. Worth, Wms. 172; Coohson v. C, 12 CI. 
 
 1 Ves. sr. 461. & F. 121. 
 
 (Q Gillies V. Longlands, 4 De (a;) Lechmere v. E. of Carlisle, 
 
 G. & Sm. 372 ; Be Tedder's Settle- 3 P. Wms. 215. 
 ment, 5 De G. M. & G. 890.
 
 SATISFACTION. ^31 
 
 Section III. — Satisfaction and Performance. 
 
 Satisfaction . 
 
 Definition. 
 
 I. Where the claim alleged to he satisfied arises from 
 bounty. 
 
 1. Satisfaction of legacies by portions (Ademp- 
 
 tion) . 
 
 2. Satisfaction of portions by legacies. 
 
 3. Repetition of legacies. 
 
 II. Satisfaction of Debts. 
 
 1. Bg legacies. 
 
 2. By portions. 
 
 Performance . 
 Contrasted with Satisfaction. 
 
 1. By act of the party. 
 
 2. By operation of law (Intestacy). 
 
 In the construction of instruments equity often re- Definition, 
 cognises a principle known as the doctrine of Satisfaction. 
 It arises in cases in which a donor, being already under 
 some obligation to the donee, effects a donation under 
 circumstances which indicate an intention that this shall 
 be taken in satisfaction of the prior obligation. 
 
 When this intention is expressed, no comment is re- intention 
 quired; for where the subsequent gift is expressly bestowed expressed. 
 in extinguishment of the prior demand, the donee clearly 
 cannot claim both (a) . 
 
 (a) Kardingham v. Thomas, 2 Drew. 353. 
 
 34 (2)
 
 532 
 
 SATISFACTION. 
 
 Intention 
 implied. 
 
 Division of 
 subject. 
 
 But in many cases this intention has to be implied from 
 circumstances, and then considerable difficulty is often 
 experienced. In dealing with them it Avill be convenient 
 to distinguish between those cases in which the prior 
 obligation arises from an act of bounty and those in 
 which it is of the nature of a debt. 
 
 In the former class fall the cases of the satisfaction of 
 legacies by portions (commonly called ademption), and 
 conversely the satisfaction of portions by legacies. From 
 the similarity- of the principles involved, we shall hero 
 also consider the case of the repetition of legacies in the 
 same instrument, sometimes referred to as the satisfaction 
 of legacies by legacies. 
 
 The latter head comprises the satisfaction of debts by 
 legacies and by portions. After discussing this, we shall 
 contrast it with the somewhat similar but distinctive- 
 doctrine of performance. 
 
 I. Where the claim alleged to be satisfied arises 
 from bounty. 
 
 1 . The satisfaction of legacies by portions (Adem/ption) .. 
 
 This subject was elaborately discussed and expounded in 
 the leading case ex parte Pye, ex parte Dubost (b), where 
 it was laid down as a general rule, that where a parent 
 gives a legacy to a child, not stating the purpose for 
 which he gives it, he is understood to give a portion; 
 and, since equity regards double portions with disfavour, 
 if the parent afterwards advances a portion on the 
 marriage of the child, the presumption arises that it was 
 intended to be a satisfaction of the legacy, either wholly 
 or in part. 
 Foundation of (1.) From this case it is seen that the principle of 
 
 (6) 18 Ves. 140; 2 W. & T. L. C. 366, ed. 7.
 
 ADEMPTION OF LEGACIES. 533 
 
 a-demption generally rests on the leaning of equity against the principle. 
 
 double portions. The j^resumption against double portions against 
 
 arises only as between a child and a parent, or person who doul^le 
 . , , . . 1 ' X portions. 
 
 has placed himself in loco purentis. It has been thus 
 commented on by a learned judge: "A parent makes a 
 ' certain provision for his children by will, if they attain 
 'twenty-one or marry, or require to be settled in life; he 
 ' afterwards makes an advancement to a particular child . 
 ' Looking at the ordinary dealings of mankind, the Court 
 ' concludes that the parent does not, when he makes that 
 'advancement, intend the will to remain in full force, 
 ' and that he has satisfied in his lifetime the obligation 
 ' which he would otherwise have discharged at his death ; 
 ' and having come to that conclusion as the result of 
 ' general experience, the Court acts upon it, and gives 
 ' effect to the presumption that a double provision was 
 'not intended. If, on the other hand, there is no such 
 'relation either natural or artificial, the gift proceeds 
 'from the mere bounty of the testator, and there is no 
 ' reason within the knowledge of the Court for cutting off 
 ' anything which has in terms been given . The testator 
 ' may give a certain sum by one instrument, and precisely 
 ' the same sum by another ; there is no reason why the 
 * Court (Should assign any limit to that bounty which is 
 'wholly arbitrary. The Court, as between strangers, 
 'treats several gifts as prima facie cumulative " (c). 
 
 With the exception hereafter to be noticed, then, ai Kelatiouship ; 
 legacy is deemed to be satisfied by a portion, only when child 
 they are bestowed on a child by a parent or a person in generally 
 
 ^ , ... essential. 
 
 loco parentis {a). The eases show that in this instance a 
 mere natural relationship is not regarded, an illegitimate 
 <3hild being deemed at law a stranger to its father (e). 
 The consequence is that an illegitimate child may happen 
 
 (c) Suisse V. Lowther, 2 Ha. 270; Saunders v. Boyd, (1891) 3 
 424, 435. Cli. 394; 60 L. J. Ch. 624. 
 
 (d) Booker v. Allen, 2 R. & M. (e) Exp. Pye, 18 Ves. 152.
 
 534 
 
 SATISFACTION. 
 
 Loeus parent iif 
 how deter- 
 mined. 
 
 Exception ; 
 legacy for 
 express 
 purpose. 
 
 Implied 
 purpose not 
 suificient. 
 
 to find itself better provided for than it would have been 
 if legitimate. 
 
 (2.) It is often a matter of some difficulty to decide 
 whether a person has placed himself in loco parentis to 
 another or not. This depends on the intention of the 
 person. The question is whether he meant to put liimseK 
 in the situation of the lawful father of the child, as regards 
 his office and duty to make provision for the child (/) ; and 
 this question is of course one which must be decided 
 according to the facts of each particular case. It is not 
 possible to frame any precise formula by which to test the 
 intention of the donor. It is at any rate not necessary 
 that the person should in all respects adopt the child as- 
 his own, or that there should be any actual relationship 
 between him and the child (g) ; and notwithstanding that 
 the father of the child is living, if he does not maintain 
 it (h), another person may be deemed to stand in loco 
 parentis to it. 
 
 (3.) It appears that the only case in which a legacy not 
 given by a parent or person in loco parentis will be 
 adeemed by a subsequent portion is where the legacy is 
 expressed to be given for a particular purpose, and money 
 is subsequently advanced for the same purpose (^), a& 
 where a testatrix bequeathed a sum to her niece adding 
 the words " according to the wish of my late husband," 
 and afterwards paid a similar sum to the niece, making a 
 contemporaneous entry in her diary that such payment 
 was a legacy from the niece's " uncle John " (k). But 
 mere similarity of circumstances without expression of 
 purpose does not suffice. Thus, where a person left a 
 legacy of £200 t-o his wife to be paid within ten days after 
 bis decease, and afterwards at the request of his wife, 
 
 (/) Exp. Pi/e, 18 Ves. 140; 
 Poivys V. Mansfield, 6 Sm. 528; 
 3 My. & Cr. 359. 
 
 {g) Roger v. South, 2 Kee. 598. 
 
 (A) Pym V. Lockyer, 5 My. & 
 Cr. 29; Fowkes v. Pascoe, 10 Ch. 
 350. 
 
 (i) Debeze v. Mann, 2 Bro. 
 
 C. C. 165, 519; Monck v. M., 1 
 Ball & B. 298, 303; Corbett v. 
 Visct. Cobham, (1903) 2 Ch. 326; 
 72 L. J. Ch. 775. 
 
 (Jc) Pollock V. Worrall, 28 Ch. 
 
 D. 552; 54 L. J. Ch. 89.
 
 ADEMPTION OF LEGACIES. ^-^ 
 
 within a few days of his death, gave her a cheque for 
 £200, in order that she might have a sum at her imme- 
 diate disposal on his death, there was held to be no 
 ademption, there being no expression in the will as to 
 the purpose of the legacy (I). A fortiori there will be 
 no ademption where the purpose of the legacy does not 
 correspond with that of the advaaicement (m), or the 
 legacy and advancement are given upon different contin- 
 gencies (n), or the purpose relied on is quite indefinite (o). 
 
 (4.) Dismissing, then, this exceptional case, and re- 
 membering that for our present purpose a person in loco 
 parentis is to be regarded as equivalent to a parent, we 
 have now only to consider the operation of the principle , 
 
 of ademption as applying to gifts between a parent and 
 child. 
 
 Advancements are naturally made and portions given Portion need 
 most frequently in connexion with the marriages of ^^^ ^® given 
 children; but this is by no means necessary to bring into 
 operation the leaning against double portions and the 
 principle of ademption (p). 
 
 The presumption in favour of ademption is so strong Presumption 
 that it will not be repelled by the fact that there are slight ty^sligh?^*^ 
 differences of circumstance between the legacy and the differences, 
 portion. Differences between them as to the times of pay- 
 ment will not suffice; thus where neither the legacy nor 
 the portion was payable till after the testator's death, but 
 the legacy was to vest in possession at the age of twenty- 
 one years or marriage, while the provision by the settle- 
 ment was payable within six months after the death, there 
 was an ademption (g). And where a fathei- covenanted to 
 pay his son an annuity of £1,000 a year and to charge the 
 same on his real estate, and by his will he left the son, 
 
 (I) Pankhurst v. Howell, % Ch. (1903) 2 Ch. 259; 72 L. J. Ch. 
 
 136. 216. 
 
 (w) Debeze v. Mann, sup. (^) Leighton v. L., 18 Eq. 458; 
 
 («) Spinks V. Robins, 2 Atk. Nevin v. Brtjsdale, 4 Eq. 517. 
 
 491. iq) Hartopp v. H., 17 Ves. 184. 
 
 (o) Weyman v. Smythies,
 
 5at) 
 
 SATISFACTION. 
 
 or eveu 
 
 considerable 
 
 differences. 
 
 Ademption 
 pro tanto. 
 
 personal property of greater value, there was an ademption 
 notwithstanding that the will devised the real estate 
 " subject to the charges thereon " (r). In a case in which 
 the donee of a special power exercised the power by will, 
 appointing the whole fund equally amongst children, and 
 afterwards by irrevocable deed appointed one-third of the 
 fund to one child, and it appeared on the evidence that this 
 child accepted this sum in prepayment or anticipation of 
 the share appointed by will, the rule against double 
 portions was applied, and there was held to be a satisfac- 
 tion (s). 
 
 A slight difference between the limitations of the will 
 and those of the settlement will not suffice to repel the 
 presumption {t). In the case of Durham v. Wharton {u) 
 ademption was held to have taken 23lace notwithstanding 
 very considerable differences between the gifts. There a 
 life interest in £10,000 was given to a daughter by will, 
 and after her decease to all her children as she should 
 appoint. On her subsequent marriage, £15,000 was paid 
 by the testator to her husband, he securing by settlement 
 pin money and a jointure for his wife and portions for the 
 younger children of the marriage. Still the legacy was 
 held to have been adeemed {x). But, as in most questions 
 dependent on inferences of intention drawn from expres- 
 sions and facts, the decisions are by no means easy to 
 reconcile one with another {y). 
 
 Where after a legacy of a larger amount a smaller sum 
 is given by way of advancement or portion, the presump- 
 tion is that it does not totally, but only -pro tanto, adeem 
 
 (r) Montague v. E. of Sand- 
 wich, 32 Ch. D. 525; 55 L. J. 
 Ch. 925. 
 
 (s) Ingram v. Papillon, (1898) 
 1 Ch. 142; (1897) 2 Ch. 574; 67 
 L. J. Ch. 84. 
 
 (<) Trimmer v. Bayne, 7 Ves. 
 508. 
 
 (m) 3 CI. & F. 146. 
 
 (a;) See also Montefiore v. 
 
 Guedalla, 1 De G. F. & J. 93; 
 Chichester v. Coventry, L. R. 2 
 H. L. 71, 92. 
 
 (v) See Tussaud v. T., 9 Ch. 
 D. 363; Garlaml v. Shaw, 95 
 L. T. 48; Re Peel's Sett., Bid- 
 dulph V. Peel, (1911) 2 Ch. 165; 
 80 L. J. Ch. 574; Re Gleeson, 
 Smyth V. Gleeson, (1911) 1 Ir. 
 R. 113.
 
 ADEMPTION OF LEGACIES. 
 
 537 
 
 the legacy (z). It will presently be observed that this 
 strongly distinguishes the principle of ademption from 
 that of the satisfaction of a debt by a legacy. 
 
 It was formerly considered that a residuary bequest By a resi- 
 being of an uncertain amount, was not susceptible of! bequest, 
 ademption (a) ; but it has now long been established that 
 such a bequest may be adeemed either totally or pro tanto, 
 ■as the case may be (&). 
 
 It seems that the doctrine of ademption does not rest Where there 
 solely on the ground that equity desires to secure equality c^ild. 
 between children, and for this reason discountenances 
 double portions as unduly favouring one; inasmuch as it 
 is applicable even in cases where the testator leaves only 
 one child (c). Where part of a residuary bequest to 
 children and a stranger is adeemed by an advance to one 
 of the children, the stranger will not be suffered to gain by 
 the ademption, the adeemed part being divisible amongst 
 the children only {d). 
 
 (5.) The following cases will indicate the limits of the Limits of the 
 application of the principle of ademption; and they serve 
 well to show that ademption depends upon the presumed 
 intention of the testator. 
 
 A legacy by a parent is not adeemed even pro tanto by No ademptiou 
 occasional gifts made subsequently in the testator's life- ^7^*^^"^^^^°°* 
 time; nor will the Court take an accomit of small sums so 
 given, to show that they were intended as a portion (e). 
 
 There is no presumption of law that the payment of a nor by a 
 sum of money to a child previous to the making of the ma^^before 
 will operates as an ademption of a legacy therein con- ^^^ ^ill> 
 
 (z) Pym V. Lochyer, 5 My. & (c) Twining v. Pov)ell, 2 Coll. 
 
 €r. 29; Kirk v. Eddowes, 3 Ha. 262; and see 1 De G. F. & J. 103. 
 509; Furness v. Stalkartt, (1901) (d) Meinertzhagen v. Walters, 
 
 2 Ch. 346; 70 L. J. Ch. 580. 7 Ch. 670; Re Heather, Fumjrey 
 
 {a) Freemantle v. Bankes, 5 v. Fryer, (1906) 2 Ch. 230; 75 
 
 Ves. 85. L. J. Ch. 568. 
 
 (6) Scholefield v. Heap, 27 {e) Wat.son v. IF., 33 Beav. 
 
 Beav. 93; Montefiore v. Gue- 574; Re Peacock, 14 Eq. 236; 
 
 ■dalla, sup. ; Vickers v. F., 37 Ch. Ravenscroft v. Jones, 32 Beav. 
 
 D. 526; 57 L. J. Ch. 738. 669; 4 De G. J. & S. 224.
 
 538 
 
 SATISFACTION. 
 
 nor where 
 the gifts 
 differ in 
 character or 
 purpose. 
 
 tained (/). But if a legacy has been once adeemed by a 
 subsequent advance, it will not be re-established by a 
 codicil naade after it which purports to confirm the will 
 and all the bequests therein {g). 
 
 There will be no ademption where the gifts in question 
 are of different characters, or are expressed to be given for 
 different purposes. Thus a legacy was held to be not 
 adeemed by the grant of an annuity (h), or by an advance- 
 ment which depended upon a contingency (i), and a legacy 
 of £500 was not adeemed by a subsequent gift of a part of 
 the testator's stock-in-trade (k); but an admission of a son 
 to a share of partnership capital has more recently been 
 held to effect an ademption (I). But in all such cases the 
 intention will be inquired into, and will govern the 
 result (m). 
 
 2. The satisfacticm of portions by legacies. 
 
 In the above cases, the question was whether a gift 
 having been made by will was satisfied by a subsequent 
 advancement made or portion given inter vivos. We now 
 come to the converse question, whether a portion having 
 been contracted to be given is satisfied by a subsequent 
 legacy. 
 
 One of the leading authorities on this branch of the sub- 
 ject is HiiicJicUffe v. Hinchclijfe (w), from which we learn 
 that most of the rules which we have seen to be applicable 
 in cases of ademption are of equal authority here. Thus 
 here also the foundation of the doctrine is the distaste with 
 which equity regards double portions; and consequently 
 
 (/) Taylor v. Cartwright, 14 
 Eq. 167, 176. 
 
 (^) Poivys V. Mansfield, 3 My. 
 & Cr. 359, 376. 
 
 (Ji) Watson V. W., 33 Beav. 
 574. 
 
 (i) S pinks v. Robins, 2 Atk. 
 493. 
 
 (k) Holmes v. //., 1 Bro. C. C. 
 555. 
 
 (l) Lawes v. L., 20 Ch. D. 81; 
 
 Vickers v. V., 37 Ch. D. 526; 57 
 L. J. Ch. 738; Hodgson v. 
 Braisby, (1903) 1 Ch. 267; 72. 
 L. J. Ch. 197; Bengough v. 
 Walker, 15 Ves. 507. 
 
 (?«) See Lacon v. L., (1891) 2 
 Ch. 482; 60 L. J. Ch. 403; Lang- 
 ton V. Scott, (1903) 1 Ch. 1; 72 
 L. J. Ch. 20. 
 
 (n) 3 Ves. 516.
 
 PORTIONS SATISFIED BY LEGACIES. '^'^^ 
 
 this species of satisfaction, as well as ademption, is prima 
 facie applicable only as between children and a parent or 
 person in loco parentis. From the same case, also, we 
 observe that slight circumstances of difference will not 
 suffice to prevent the operation of the usual presumption . 
 
 The similarity between the two classes of cases is further 
 seen from the important case of Thynne v. Earl of Glen- 
 gall (o), in which a residuary bequest was held to be a 
 satisfaction of a covenant to bestow a certain portion on a 
 daughter, notwithstanding some important differences in 
 the limitations. 
 
 It does, however, seem that in these cases, where the Presumption 
 settlement precedes the will, the presumption against ^biTtte^ than 
 double portions will be more easily rebutted than where in ademption, 
 the will precedes the settlement. Thus in a well-known 
 case it was said: — " The rule against double portions 
 " is but a rule of presumption, and there is much less 
 " difficulty in supposing that it was not intended to pre- 
 " vail where the person to whose dispositions it is to be 
 " applied had not the power to enforce it without the con- 
 " sent of others, than in a case where the whole was under 
 " his absolute control. When the will precedes the settle- 
 " ment, it is only necessary to read the settlement as if the 
 " person making the provision had said, ' I mean this to be 
 " in lieu of what I have given by my will.' But if the 
 " settlement precedes the will, the testator must be under- 
 " stood as saying, ' I give this in lieu of what I am already 
 " bound to give, if those to whom I am so bound will 
 " accept it.' It requires much less to rebut the latter 
 " presumption than the former " (p). 
 
 These expressions indicate the principal difference Principle 
 between these cases of the satisfaction of a portion by a adeomtion 
 legacy, and the ademption of a legacy by a portion. 
 Where the settlement comes first, the persons entitled 
 
 (o) 2 H. L. 131. Chichester v. Coventry, L. R. 2 
 
 (y) Per Lord Cranworth, in H. L. 71.
 
 o40 
 
 SATISFACTION. 
 
 rather than 
 satisfaction 
 of debts. 
 
 Pai-tial 
 satisfaction. 
 
 under it are purchasers, and no presumed intention of the 
 testator can deprive them of their rights thus acquired. 
 At least, they have a right to elect between the benefit 
 which by the settlement is already theirs, and that con- 
 ferred by the will. If the beneficiary elects to take under 
 the will, then, unless something rebuts the presumption 
 against double portions, the settlement is superseded, and 
 is not to be performed at all. If he elects to claim his 
 rights under the settlement, then, in the same circum- 
 stances, he must to that extent give up his rights under 
 the will to compensate those whom his election dis- 
 appoints (g). 
 
 It might, perhaps, be supposed that the recipient of a 
 portion under a settlement being a purchaser, this species 
 of satisfaction would be more analogous to the satisfaction 
 of a debt by a legacy than to the ademption of a legacy 
 by a portion. This, however, is not the case. For though 
 a portion is in its legal aspect a debt, equity still regards 
 it as a benefit conferred; and thus it falls within the pre- 
 sumption against double portions, which has, of course, no 
 application in the case of an ordinary debt. The con- 
 sequence is, that the leaning of equity is strongly in favour 
 of the satisfaction of a portion by a legacy; while, as we 
 shall presently observe, it is equally decided against the 
 satisfaction of a debt by a legacy. This distinction is in 
 itself abundantly sufficient to bring the cases we are now 
 considering nearer to the doctrine of ademption than to 
 that of satisfaction, as applied to ordinary debts. 
 
 A provision made by a will may satisfy one part of a 
 covenant without satisfying the whole. Thus, if the cove- 
 nant gives a life interest to a daughter, with remainder to 
 children, a legacy to the daughter may satisfy her life 
 interest, but cannot satisfy the claim of the children (r). 
 
 (§') Chichester v. Coventry, 
 inf. ; M'Carogher v. Whieldon, 3 
 Eq. 236; Blundell v. B., (1906) 
 
 2 Ch. 222; 75 L. J. Ch. 561. 
 
 (r) Bethell v. Abraham, 3 Ch. 
 D. 590; Blundell v. B., sup.
 
 PORTIONS SATISFIED BY LEGACIES. •'>41 
 
 And similarly, there maj be a satisfaction of the children's 
 portion, not touching that of the parent (s). 
 
 Where a settlement contained a declaration that an Gift by will 
 advancement by the parent in his lifetime should be con- not equivalent 
 
 ^ } . 11^^ advance- 
 
 sidered as satisfaction of a portion covenanted to be ment in 
 bestowed, a legacy given by will was considered not to be ^ ""^' 
 equivalent to an advancement in the lifetime so as to 
 come within the declaration; and there was held to be 
 no satisfaction (t). 
 
 Save as here excepted, it may be generally understood 
 that the limitations and conditions of the principle above 
 stated as applicable to ademption, are applicable also in 
 the case of satisfaction of a portion by a legacy (u). 
 
 There has been a great deal of learned argument touch- Rules as to 
 ing the admissibility of extrinsic evidence (that is, evi- evidence, 
 dence of facts not contained in the instruments themselves) 
 in order to decide for or against the application of the 
 doctrine of satisfaction; but the results of the cases are 
 reducible to a few simple principles. 
 
 (1.) Parol evidence of extrinsic circumstances is not i. Not ad - 
 admitted to alter, add to, or vary a written instrument, or ™'^^*%ritten 
 to prove with what intention it was executed. In Hall v. instruments. 
 Hill {x) the question was whether a portion had been 
 satisfied by a legacy. It was clear that in the absence of 
 extrinsic evidence of the testator's intention when he made 
 his will there would be no satisfaction. Evidence was 
 tendered which clearly showed that the testator in fact 
 intended the legacy to satisfy the portion. The evidence 
 was rejected on the ground that it had nothing to do 
 with the debt, but applied to the will only, and, in fact, 
 amounted to the insertion in the will of a declaration 
 which was not there. 
 
 (s) Chichester v. Coventry, Beav. 334; Sparkes v. Gator, 3 
 
 L. R. 2 H. L. 71, 92; Mayd v. Ves. 530. 
 
 Field, 3 Ch. D. 587. {x) 1 D. & War. 94; and see 
 
 (0 Cooper V. C, 8 Ch. 813. Re Shields, Corbould-Ellis v. 
 
 (m) Bellasis v. Vthwatt, 1 Atk. Bales, (1912) 1 Ch. 591; 81 L. J. 
 
 427; Lethbridge v. Thurlow, 15 Ch. 370.
 
 o42 
 
 SATISFACTION. 
 
 2. Admitted 
 to rebut pre- 
 sumption of 
 law. 
 
 3. When so 
 
 admitted, 
 
 couuter- 
 
 evidence 
 
 admissible. 
 
 (2.) But where the law presumes a certain intention 
 from collateral circumstances, such as a certain relation- 
 ship between the parties, then extrinsic evidence is 
 admissible to rebut this presumption. It was said in 
 Kirk V. Eddowes (y), that where " the law raises a pre- 
 ' sumption that the second instrument was an ademption 
 ' of the gift by the instrument of earlier date, evidence 
 ' may be gone into to show that such presumption is not 
 ' in accordance with the intention of the author of tlie 
 'gift"(.). 
 
 (3.) Where evidence is admissible to rebut such pre- 
 sumption, counter-evidence is admissible (a). 
 
 In Kirk v. Eddotves (b) the question was whether a 
 legacy was pro tcmto adeemed by a subsequent gift of a 
 promissory note made Avithout any writing. Evidence 
 was tendered which related to this gift, not to the written 
 instrument; and it was held that evidence of such a 
 nature being admissible to rebut the presumption of 
 law, counter-evidence was admissible in support of the 
 presumption (c). 
 
 Repetition of 
 legacies. 
 
 3. Repetition of legacies. 
 
 In many respects similar to the ademption of legacies 
 by portions, and the satisfaction of portions by legacies, 
 are the cases which arise when two legacies are given by 
 the same will, or by a will and codicil, and it is doubtful 
 whether the second legacy is intended to be additional 
 to the first, or to be merely a repetition. 
 
 The case most usually referred to on this subject is 
 Hooley v. Hatton {d). 
 
 In this case Lady Finch gave to Lydia Hooley, the 
 plaintiff, £500 by her will. She made a codicil in these 
 
 (?/) 3 Ha. 509. 
 
 (z) See also Debeze v. Mann, 2 
 Bro. C. C. 165, 519; Leveson v. 
 Bealcfi, (1891) 3 Ch. 422; 60 L. J. 
 Ch. 793. 
 
 («) See also Debeze v. Mann, 
 
 sup. 
 
 (b) 3 Ha. 509. 
 
 (c) See Pahner v. Newell, 20 
 Beav. 32, 39. 
 
 {d) 1 Bro. C. C. 390, n.; 1 
 W. & T. L. C. 865, ed. 7.
 
 KEPETITION OF LEGACIES. 54'i 
 
 words: " I add this oodicil to my will: I give Lydia 
 Hooley £1,000." The plaintiff filed a bill claiming these 
 legacies, and the question Avas whether she was entitled to 
 them both, or only to the £1,000. There being no internal 
 evidence touching the question, it was decided on the 
 general rule of law that the legacies were cumulative, and 
 the plaintiff was declared entitled to them both. 
 
 The judgment of Aston, J., in this case classified double ClassificatioH 
 legacies under four heads: (1) where the same specific ^BaUon.^^ 
 thdng is given twice; (2) where the like quantity is given 
 twice; (3) where a greater sum is given first, and a less 
 sum afterwards; (4) where a smaller sum is given first, 
 and a greater sum afterwards . 
 
 The first case presents no difficulty, since where the Specific 
 same specific thing or corpus is twice expressed to be given, ^®^^^y- 
 whether in the same or in different instruments, it must 
 clearly be regarded as a repetition (e). 
 
 The remaining three classes may be most conveniently Legacies of 
 considered together, distinguishing, however, those cases in *i^*^*^ ^' 
 which the two gifts are contained in the same instrument 
 from those in which they are given by two instruments. 
 
 (1.) W'here two pecuniary legacies are given by the In same 
 
 , , instrument, 
 
 same instrument. 
 
 The general rule is that when two legacies of the same If equal, 
 amount are given by the same instrument there will be ^^^^ ^ ^^^' 
 considered to be a repetition, and one only will be good (/) . 
 And the same rule applies to annuities (g) . 
 
 But where the two legacies are of unequal amount, n unequal, 
 whether the greater precedes the less, or the less the 1*0* so- 
 greater, they are 'prima fade cumulative {h) . 
 
 (2.) Where two pecuniary legacies are given by Indifferent 
 
 I'po . • , , instruments. 
 
 •dinerent instruments. 
 
 (e) D. of St. Albans v. Beau- {g) Holford v. Wood, 4 Ves. 
 
 clerk, 2 Atk. 636; Suisse v. 76. 
 Zowiher, 2 Ha. 432. (h) Windham v. W., Eep. t. 
 
 (/) Gnrth v. MeyricJc, 1 Bro. Finch, 267; Hartley v. Ostler, 
 
 •C. C. 30. 22 Beav. 449.
 
 544 
 
 SATISFACTION. 
 
 Ffiind facie 
 cumulative. 
 
 If equal and 
 on same 
 motive, 
 repetition. 
 
 Not other- 
 wise. 
 
 Intrinsic 
 evidence. 
 
 The rules regulating these cases cannot be so simply 
 stated. 
 
 Prima facie, if the legacies are given simpliciter, no 
 motive for the gift being expressed, they are regarded as 
 cumulative; and it is immaterial whether they are of 
 equal or unequal amount (^) . A fortiori they will be 
 cumulative when there is any difference in their nature or 
 time of payment (k), or they are given upon or for different 
 trusts or purposes (Z). 
 
 If, however, the same motive is expressed for both gifts,, 
 and tlie same sum is given, then, though the gifts are con- 
 tained in two instruments, there will be deemed to be a. 
 repetition, ^and only one will be payable (m). It seems 
 that a legacy may be deemed in certain circumstances 
 to be a satisfaction of a donatio mortis oausa(n); but 
 such a case must from the nature of things be of rare 
 occurrence. 
 
 But if the same sums are given and different motives are 
 expressed (o), or if the same motive is expressed and diffe- 
 rent sums are given (p), then the two gifts will be con- 
 sidered cumulative. 
 
 (3.) Such are the general rules, but they are subject to 
 modification according to the evidence which may be forth- 
 coming as to the testator's intention. 
 
 As to intrinsic evidence there is no difficulty; it is 
 always available to explain the intention. Thus the fact 
 that the second instrument expressly refers to the first, or 
 seems to be merely a copy of it, may, even where the sums 
 given are unequal, lead to the conclusion that the second 
 was intended to substitute, and not to be added to, the 
 
 (0 Jioch V. Callefi, 6 Ha. 531 ; 
 Itussell V. Dickson, 4 H. L. 293; 
 Wilson v. O'Leftry, 12 Eq. 525; 
 7 Ch. 448. 
 
 {k) Hodges v. Peacock, 3 Ves. 
 735; Masters v. M., 1 P. Wms.421. 
 
 (I) Sawrey v. Rumnei/, 5 De 
 G. & S. 698; Spire v. Smith, 1 
 Beav. 419. 
 
 (w) Hurst V. Beach, 5 Madd. 
 351, 358; Roch v. CaUen, 6 Ha. 
 531. 
 
 (w) Inf., p. 628; Hudson v. 
 Spencer, (1910) 2 Ch. 285; 79 
 L. J. Ch. 506. 
 
 (o) Ridqes V. Morrison, 1 Bro. 
 C. C. 388." 
 
 {p) Hurst V. Beach, sup.
 
 SATISFACTION OF DEBTS. 
 
 545 
 
 first (q) . And similarly, -wlicre two precisely similar codi- 
 cils wcro executed at the same time, it was considered that 
 the intention was to execute them in duplicate, and not to 
 give double legacies (r) . The same conclusion was reached 
 where two precisely similar instruments Avere executed, 
 though at different times (s). 
 
 The rules as to extrinsic evidence are similar to those Extrinsic 
 
 gvicIgiicg 
 .above stated as ordinarily applicable in a case of satisfac- 
 tion or ademption. Where the Court raises the presump- 
 tion against double legacies {e.g., where two equal legacies 
 .are given by one instrument, or in different instruments 
 with the same motive expressed), then such evidence is 
 admissible to show that the testator intended both to be 
 paid. 
 
 But where the Court does not raise this presumption 
 {e.g., where legacies of different amounts are given by the 
 same will, or legacies of the same amount simpUciter by 
 different instruments), then extrinsic evidence is not ad- 
 missible to show that the testator intended only the latter 
 to be paid {t). i 
 
 In short, extrinsic evidence is admissible in favour 
 of, but not against, a legatee claiming the legacies as 
 cumulative. 
 
 As a general rule, where one legacy is given merely in Substituted 
 substitution for another, it will, in the absence of any to^TOn^tion" 
 expression of a contrary intention on the part of the testa- of first, 
 tor, be liable to the same incidents as the legacy for which 
 it is substituted {u) ; but this is, of course, not so where 
 the second legacy is a distinct and substantive bequest {oc). 
 An additional legacy, though not so expressed, will in 
 general be held subject to the same incidents and con- 
 ditions as the first legacy. Thus if a legacy be given by 
 
 (5-) Martin v. DrinJcwater , 2 (i) Hurst v. Beach, sup.; Gioj 
 
 Beav. 215; Coote v. Boyd, 2 Bro. v. Sharp, 1 My. & K. 589. 
 
 C. C. 521. (m) Cooper v. Bay, 3 Mer. 154. 
 
 (r) Whyte v. W ., 17 Eq. 50. \x) Chatteris \. Young, 2^\i$s. 
 
 (s) Hubbard v. Alexander, 3 183. 
 Ch. D. 738. 
 
 s. 35
 
 546 
 
 SATISFACTION. 
 
 will to a married woman to lier separate use, an additional 
 legac}^ given by the codicil will also be held for her sepa- 
 rate use {y) . In no case, however, has it been held that 
 the latter gift is to go to the parties entitled under thei 
 subsequent limitations of the former gift {z) . 
 
 Satisfaction 
 depends on 
 presumed 
 intention. 
 Slight cir- 
 cumstances 
 rebut the 
 presumption. 
 
 II. Where the Claim alleged to he satisfied is of a 
 Legal Nature. 
 
 I. Satisfaction of debts by legacies. 
 
 The leading authority on this branch of the subject is 
 Talbot V. The Duke of Shreiushury (a), where the principle 
 is laid down that if a debtor, without taking notice of the 
 debt, bequeaths a sum as great as, or greater than th;e 
 debt, to his creditor, this is to be deemed a satisfaction o£ 
 the debt; but that a legacy of less amount than the debt 
 is not regarded as a satisfaction pro tanto, nor will a con- 
 tingent legacy ever operate as a satisfaction. 
 
 These cases rest, as do all cases of satisfaction, on the 
 presumed intention of the donor, and they illustrate the 
 maxim. Debitor non presumitur donor e. But the reason- 
 ing upon which the principle here rests has been often 
 pronounced to be artificial and unsatisfactory, and the in- 
 clination of the Court is decidedly against its application, 
 so that slight circumstances will be laid hold of to rebut 
 the presumption. 
 
 That this is so is well shown by Chamcey's Case (6), in 
 which a testator being indebted to his servant for wages, 
 had given her a bond for £100 as due on that account, 
 and afterwards by his will gave her £500 for her long and 
 faithful services, and directed that all his debts and legacies 
 should be paid. This last direction was considered suffi- 
 
 (y) Boy V. Croft, 4 Beav. 561 
 {z) Monn v. Fuller, Kay, 624. 
 (r/) Prec. Ch. 394; 2 W. & T. 
 
 L. C. 375, ed. 7. 
 
 {b) 1 P. Wms. 408; 2 W. & 
 T. L. C. 376, ed. 7.
 
 vSATlSFACriON OF JJEHTS. 547 
 
 cient to rebut the presuniption of satisfaction, and the 
 
 servant was held entitled to be paid both the bond and the 
 
 legacy in full. 
 
 (1.) An examination of the eases will show that the 
 
 principle of satisfaction as applied to debts is subject to 
 
 many limitations. In the following- cases the presumption PresumptioE 
 
 of satisfaction has been held to be rebutted by the nature Rebutted by 
 
 •^ the nature of 
 
 of the legacy: — the legacy. 
 
 (i.) Where the legacy is of less amount than the debt. Where legacy 
 -r , , r . „ . / X IS less than 
 
 in such cases there is no satisfaction, even p7'0 ianta{c). debt, 
 (ii.) Where the legacy is given upon a contingency {d). or legacy is 
 (iii.) Where the legacv is of an uncertain or fluctuating ^^^ i°gen , 
 
 •f" "p I 1 1 r» 1 or uncertain,. 
 
 amount; such as a gift of the whole or part of the testa- such as 
 tor's residue. Such a legac}- will not operate as satisfac- ^■®*^^^"^- 
 tion, even though in the event it may happen to equal or 
 exceed the amount of the debt (e). 
 
 (iv.) Where the time fixed for paj^ment of the legacy is Where the 
 different from that at which the debt is due, so as to be t™e of pay- 
 
 ' ment differs,. 
 
 not equally advantageous to the creditor, there will be no 
 satisfaction (/) : in this case the debt being due at the 
 death, the legacy was directed to be paid one month after 
 the death. Where the legacy has been payable before 
 the debt has become due, it has been held to operate as 
 satisfaction {g) . 
 
 (v.) There will be no satisfaction where the testamen- or the charae- 
 tary gift differs from the gift in character. Thus a gift !fift differs 
 of land will not satisfj^ a pecuniary debt Qi) ; a legacy 
 will not satisfy an annuity {i) ; nor will an absolute gift 
 satisfy a debt held on trust for the donee for life with 
 remainder to his children (fc) . 
 
 {o) Talbot \. Shrewsbury, 'Pvec. 516; 64 L. J. Ch. 325. 
 
 Ch. 394; Crichton v. C, (1895) (g) Wathen v. Smith, 4 Mad. 
 
 2 Ch. 853. 325. And see i?ay v. Grant, (1906) 
 
 id) Ibid.; Crompton v. Sale, 2 1 Ch. 667; 75 L. J. Ch. 304. 
 
 P. Wms. 553. (h) Eastwood v. VinJce, 2 P. 
 
 (e') Devese v. Pontet, 1 Cox, Wms. 614. 
 
 188; Thynne v. E. of Glengall, 2 (i) Cole v. Willard, 25 Beav. 
 
 H. L. 154. 568. 
 
 (/) Clark y. Sewell, 3 Atk. 96; (k) Fairer v. Park, 3 Ch. D. 
 
 Calham v. Smith, (1895) 1 Ch. 309. 
 
 35 (2)
 
 548 
 
 SATISFACTION. 
 
 I'resumption 
 rebutted by 
 the nature of 
 the debt. 
 Where debt 
 is contingent 
 or uncertain, 
 
 or 18 con- 
 tracted sub- 
 sequently 
 to the will. 
 
 Presumption 
 rebutted by 
 expressions in 
 the will. 
 Where a 
 particular 
 motive is 
 expressed, 
 or there is a 
 direction for 
 payment of 
 debts and 
 legacies. 
 
 (2.) Sometimes the presumption of satisfaction is re- 
 butted bj the nature of the debt. Thus: — 
 
 (i.) A contingent or uncertain debt, such as a debt 
 upon an open account, cannot be satisfied bj a legacy (l) . 
 But the mere fact that a debt is under certain circum- 
 stances liable to be varied in amount will not always 
 prevent the presumption of satisfaction. Thus, there was 
 held to be satisfaction where a sum of money had been 
 deposited with the testator, against which the creditor had 
 drawn on liim from time to time (w) . 
 
 (ii.) A debt contracted subsequently to the making of 
 the Avill cannot be satisfied by a legacy conferred by the 
 will, since in such a case no intention to satisfy the debt 
 can be reasonably presumed (n) . And where a separation 
 deed contained a covenant to pay a certain sum, and the 
 covenantor by his will made contemporaneously bequeathed 
 a like sum to the covenantee, there was held to be no 
 satisfaction, the fact of the documents being contem- 
 poraneous being regarded as evidence of a contrary 
 intention (o) . 
 
 (3 .) In other cases it is gathered from expressions in the 
 will that satisfaction was not intended. Thus: — 
 
 (i.) The fact that the testator has assigned a particular 
 motive for the gift has been considered to rebut the 
 presumption (p) . 
 
 (ii.) In Chancery's Case (q) an express direction for the 
 payment of debts and legacies was taken as an indication 
 that the testator intended both the debt and legacy to be 
 paid (r) . A direction to pay debts alone has more recently 
 been held to have the same effect (s) ; a fortiori would 
 
 (Z) Rmvlins v. Powell, 1 P, 
 Wms. 297. 
 
 (m) Edmimds v. Low, 3 K. & 
 J. 318. 
 
 (w) Cranmer's Case, 2 Salk. 
 508. 
 
 (o) Eorlock V. Wiggins, 39 Ch. 
 D. 142; 58 L. J. Ch. 46. 
 
 (p) Matheivs v. M., 2 Ves. sr. 
 
 035; Charlton v. West, 30 Beav. 
 124. 
 
 {q) 1 P. Wms. 408. 
 
 (>•) Richardson v. Greese, 3 
 Atk. 65. 
 
 (s) Bradshaw v. Huish, 43 Ch. 
 D. 260; 59 L. J. Ch. 135, dis- 
 approving Edmunds v. Low, 3 
 K. .t J. 318.
 
 PERFORMANCE. 
 
 54^ 
 
 this be so if there arc other circumstances tending to rebut 
 the presumption (t). 
 
 The relationship of parent and child or husband and Eelationship 
 wife does not, it seems, affect the principle regulating chM^im- * 
 these cases of satisfaction. Where there is an actual debt material, 
 due to the child, as distinguished from a portion, it will 
 only be satisfied by a legacy of equal or greater amount, 
 and, as in other oases, the presumption will be easily 
 rebutted (u) . 
 
 2. Satisfaction of debts hi/ portions. 
 
 Analogous to the above instances of satisfaction, and Satisfaction 
 subject to similar rules, is the case in which a father, being portion. " 
 indebted to a child, makes an advance to him in his life- 
 time. The portion so advanced will prima facie effeot 
 a satisfaction if it equals or exceeds the amount of the- 
 debt (x). 
 
 It is a common and well-known principle that extrinsic Quaere 
 evidence is admissible to rebut a presumption of law {y), extrinsic 
 and on this principle extrinsic evidence should be admis- evidence 
 sible when the presumption arises that a debt is satisfied 
 by a legacy to rebut this presumption (z). But such 
 evidence has nevertheless been sometimes refused (a). 
 
 Performance. 
 
 The equitable doctrine of Performance has some points 
 of resemblance to, but yet must be carefully distinguished 
 
 (0 JRoive V. JR., 2 De G. & S. 316; Lawes v. L., 20 Ch. D. 81. 
 
 297; Pinchin v. Simms, 30 Beav. (y) Kirk v. Eddowes, 3 Ha. 
 
 119. 509; Hall v. Hill, 1 D. & W. 94. 
 
 (m) Tolson V. Collins. 4 Ves. (z) Plunkett v. Lewis, su/p. ; 
 
 483; Foioler v. F., 3 P. Wms. Wallace v. Pomfret, 11 Yes. 5i2; 
 
 353; Atkinson v. Littlewood, 18 Leveson v. Beales, (1891) 3 Ch. 
 
 Eq. 595. 422; 60 L. J. Ch. 793. 
 
 (x) Wood V. Briant, 2 Atk. (a) Foivler v. F., sup. ; Hall \.. 
 
 521; Plunkett v. Leivis, 3 Ha. Hill, sup.
 
 S5e 
 
 PERFORMANCE. 
 
 Distinction 
 between 
 satisfaction 
 and per- 
 formance. 
 
 Performance 
 rests on the 
 ground of 
 natural 
 justice. 
 
 Performance 
 may be im- 
 puted from 
 the acts of the 
 oovenantfjr. 
 
 £rom, that of Satisfaction, as applied to the cases we have 
 been considering. 
 
 Satisfaction, as we have seen, wholly rests upon an 
 implied intention of the testator ; and several rules of pre- 
 sumption have been adopted which do not apply to cases 
 of performance. The presumption will not hold if thei 
 gift is less beneficial in any way than the debt. 
 
 The doctrine of performance rather arises from a con- 
 struction which equity, in its regard for natural justice, 
 puts upon certain circumstances, than from the implied 
 intention of the party. ''Equity imputes an intention 
 to fulfil an ohligutiony It is not, therefore, subject to 
 any of those rules which originate in the design of cor- 
 rectly ascertaining a testator's intention. And it con- 
 spicuously differs from satisfaction as applied to debts, 
 in. that performance is commonly deemed to have been 
 effected pro tanto. 
 
 1. The typical case of performance is where a person 
 covenants to do a certain act, and this covenant is deemed 
 to be performed by some subsequent act which wholly or 
 approximately effects the same purpose, though it does not 
 expressly refer or precisely conform to the covenant. 
 
 One of the most familiar cases on this point is Wilcocks 
 V. Wilcocks (&). 
 
 There a person covenanted on his marriage to purchase 
 lands of the value of £200 a year, and to settle them for 
 the jointure of his wife, and to the first and other sons of 
 the marriage in tail. Ho purchased lands of that value, 
 -but made no settlement, so that on his death the lands 
 descended to his eldest son. The eldest son filed a bill for 
 a specific performance of the covenant; but it was held 
 that the lands descended should be deemed a performance 
 -of the covenant. 
 
 Another similar case which further illustrates the 
 doctrine is Lechmere v . Earl of Carlisle (c) . 
 
 (6) 2 Vern. 558. 
 
 (c) 3 P. Wms. 227; Ca. 
 Talb. 88.
 
 PERFORMANCE. 
 
 551 
 
 Lord Lcchmore on his marriage covenanted to lay out 
 within one year of the marriage £6,000 (his wife's 
 portion) and £24,000, amounting in all to £30,000, in 
 the purchase of freehold lands in possession in the south 
 part of Great Britain, with the consent of the Earl of 
 Carlisle and Lord Morpeth, to be settled on Lord Lech- 
 mere for life, remainder for so much as would amount to 
 £800 a year to Lady Lechmere for her jointure, 
 remainder to first and other sons in tail male, remainder 
 to Lord Lechmere, his heirs and assigns for ever. Lord 
 Lechmere was seised of some lands in fee at the time of 
 his marriage, and after his marriage purchased some 
 estates in foe of about £500 a year, some estates for lives, 
 and some reversionary estates in fee expectant on lives;' 
 and he contracted for the purchase of some estates in 
 fee in possession. None of these purchases or contracts 
 were effected with the consent of the trustees, there was 
 no settlement made of any of the lands, and shortly after- 
 wards Lord Lechmere died intestate. Thereupon a bill 
 was filed by his heir for a specific performance of the 
 covenant, and to have the £30,000 laid out in accordance 
 therewith out of the personal estate. It was held by 
 Lord Talbot, on appeal, reversing the decision of Sir 
 J. Jekyll, M. R., that the freehold lands purchased, and 
 contracted to be purchased, in fee simple in possession, 
 after the covenant ought to be considered as purchased in 
 part performance of the covenant. The heir was therefore 
 only entitled to a decree for the laying out of so much 
 money as, together with the sum already so laid out and 
 contracted to be laid out, would amount to £30,000. 
 
 It will be observed that the lands possessed by the Conclusions 
 covenantor before the covenant, and lands purchased „^°°t ^ 
 a;fterwards, but of a different nature from what was cove- 
 nanted to be purchased, were not included in the per- 
 formance; and further, that the consent of the trustees 
 'was deemed not to be an essential. 
 
 The doctrine has also been applied to a case in which
 
 552 
 
 PEKFORMANCE. 
 
 Purchase by 
 trustees 
 stands on 
 higher 
 ground. 
 
 Performance 
 may result 
 from the 
 operation (^f 
 law. 
 
 the covoiuint was fco pay money to trustees to be laid out 
 by them in a purchase of land, and the covenantor himself 
 purchased the land, and died intestate without havings 
 effected a settlement (d). 
 
 The same principle is applicable where the obligation 
 arises from an Act of Parliament instead of from a 
 covenant (e). 
 
 Where trustees having trust money in their hands are 
 under an obligation to lay it out in lands, any purchase by 
 them will more readily than in other cases be deemed a 
 performance of their obligation (/); though such cases 
 usually fall under the still stronger rule that a cestui que 
 trust is entitled to follow trust money if traceable, how- 
 ever it may have been converted (g). 
 
 2. Another illustration of the doctrine of performance 
 is where a person covenants to do an act and the covenant 
 is in effect wholly or partially performed by the operation 
 of law. 
 
 On this the leading authority is Blcmdy v. Wid- 
 more (h), where a man covenanted, previously to his mar- 
 riage, to leave to his wife £620. He married, and died 
 intestate, his wife's share under the intestacy being more 
 than £620. The covenant was hereby deemed to be per- 
 formed, so that the widow could not claim her share under 
 the intestacy and £620 over and above as a debt under 
 the covenant. 
 
 In this case the covenant was wholly satisfied; but it is 
 equally clear that if the distributive share had been less 
 than the sum covenanted to be paid it would be considered 
 a performance pro tanto(i). The same principle has, 
 moreover, been applied where the covenant has been that 
 
 (d) Sowde» V. .S^., 1 Bro. C. C. 
 582. 
 
 (e) TuhJ)s V. Broadwood, 2 E. 
 & M. 487. 
 
 (/) Mat Mas v. M., 3 Sm. &c G. 
 652. 
 
 (g) Taylor v. Plumer, 3 M. & 
 S. 562; Lench v. L., 10 Ves. 511. 
 
 (70 1 P. Wms. 323 ; 2 W. & T. 
 L. C. 407, ed. 7. 
 
 (i) Garthshore v. Chalie, 10 
 Ves. 14, 16; Goldsmid v. G., I 
 Swanst. 211.
 
 PERFORMANCE. 
 
 553 
 
 the executors should pay a sum of money, or that the 
 money should be paid to trustees for the wife (Jc) . 
 
 There are, however, three classes of cases which must be 
 carefully distinguished from those which fall under this 
 principle. 
 
 (1.) Where the covenantor has made a will, and thereby ^ general 
 
 \ , .0.1 1 n 11 legacy or gift 
 
 conferred a gift either by way of general legacy or as a of residue is 
 residue, such a gift will not generally be deemed a per- "g*f°^7nce^ 
 formrmce of a covenant to leave a certain sum (/). It 
 depends on the circumstances above considered whether 
 it would operate as a satisfaction (m). 
 
 (2.) Where the covenant is not to pay a gross sum, but Share iu 
 to give a life annuity, or the interest of a sum of money performance 
 for life, such a covenant will not be performed bv the 'f covenant 
 devolution of a share under an intestacy {n) . 
 
 (3.) Where the covenant is to pay a sum in the cove- Performance 
 nantor's lifetime, and there is a breach of the covenant ^pp^wo a 
 before the death, then the devolution of a share in intes- debt due in 
 tacy will not amount to a performance (o). Here the lifetime. 
 covenant having been to pay the settlor's wife a sum of 
 money two years after marriage, and not having been 
 complied with, there was an actual debt due when the 
 intestate died, betw^eeii which and her claim as widow in 
 the intestacy, the covenantee could not be put to her 
 election. 
 
 (A) Lee V. D'Aranda, 3 Atk. (;«) Sup. p. 546 et seq. 
 
 419. («) Couch V. Stratton, 4 Ves. 
 
 (V) Eaynes v. Mico, 1 Bro. 391. 
 
 C. C. 129; Devese v. Pontet, 1 (o) Oliver v. Brickland, 1 Ves. 
 
 Cox, 188. sr. 1; cited 3 Atk. 420.
 
 555 
 
 PART II. 
 
 WHERE THE JURISDICTION RESTS ON THE DISTINCTIVE 
 PROCEDURE OF EQUITY. 
 
 INTRODUCTION , 
 
 It has beeu already pointed out and cannot be too 
 strongly urged, that it is impossible to draw any strictly 
 defined line between those matters in which the jurisdic- 
 tion of equity has arisen from the distinctive character of 
 its principles, and those in which it is to be ascribed to the 
 superiority or peculiarity of its procedure. 
 
 In many of the subjects which have been treated in the 
 preceding part, it has been necessary to anticipate much 
 that would appropriately present itself now for considera- 
 tion, but which could not, without serious inconvenience, 
 have been severed from the connexion in which it there 
 «tands. For instance, the subject of mortgages could not 
 be examined without investigation of the method of 
 accounting between mortgagor and mortgagee; no more 
 was it possible to take a comprehensive view of the doc- 
 trine of trusts without trespassing on many questions 
 which most usually present themselves in the course of the 
 .administration of assets. 
 
 On the other hand, in those matters in which the juris- 
 vdiction of equity is essentially administrative, or is other- 
 wise due to its peculiar procedure, it of course recognises 
 7And applies as occasion requires all the principles already 
 <^xpounded. Thus, actions arising out of partnerships
 
 556 
 
 INTRODUCTION. 
 
 Account. 
 
 Procedure at 
 common law. 
 
 Inapplicable 
 to long 
 accounts. 
 
 Action of ac- 
 count at law. 
 
 Restrictions 
 as to parties. 
 
 and in respect o£ public companies continually raise- 
 questions of trust and of fraud; and, as has bo^on observed^ 
 the jurisdiction to relievo against the consequences of 
 mistake is nowhere more frequently concerned than in 
 actions for specific performance. 
 
 As it was necessary in introducing the first part of the 
 work to inquire generally what the substantive principles 
 were which distinguished equity from law, so it behoves 
 us now to make a corresponding inquiry as to the distinc- 
 tive procedure of Courts of equity . This must necessarily 
 be here treated in a very general way, for otherwise we 
 should be involved in an exposition of Chancery practice, 
 which is beyond the province of this work. 
 
 Perhaps the most extensively useful of the features of 
 equitable procedure is the facility which it affords for the- 
 taking and adjusting of accounts. In actions at law, it 
 was, under the old practice, necessary that the plaintiff 
 should estimate his claim in a definite su.m of money. 
 Su^Dposing the claim to be good in law, it was for the jury 
 to determine on the facts whether the demand was reason- 
 able or excessive in amount, and to give their verdict 
 accordingly. Of course, it was open to the defendant tO' 
 adduce evidence generally and particularly to show that 
 the plaintiff's claim ought to be reduced; and simple cases 
 of account might well be considered and adjusted by the 
 jury. But it is evident that many cases arise in which, 
 the determination of what is justly due to a plaintiff 
 necessarily involves long and difficult inquiries— for 
 instance, it may be necessary to review a series of trans- 
 actions extending over many years. For such an investi- 
 gation a jury is clearly incompetent. 
 
 This difficulty was very long ago recognised, and a 
 remedy for it attempted apart from the assistance of 
 equity. Indeed, one of the most ancient actions at law 
 was the action of account. But the inadequacy of the 
 remedy thus afforded is sufficiently shown by mentioning: 
 only a few of the conditions attached to it. Thus, the
 
 INTRODUCTION. 557 
 
 action of account originally lay only Avhero there was 
 either privity in deed by the consent of the pai'ty, as 
 against a bailiff or receiver appointed by the party; or 
 a privity in law, as against a guardian in socage. By 
 the law merchant it was so far extended that a merchant 
 might have an account against another, charging him 
 as a receiver. Beyond these limits the action did not 
 apply, until by successive statutes it was further ex- 
 tended to the executors of merchants, to administrators, 
 and finally, so as to lie against executors and adminis- 
 trators of guardians, bailiffs, and receivers («). 
 
 Nor were these restrictions as to the parties the only Defects as to 
 disadvantages. Even when the action Avas sustainable, procedure. 
 the procedure under it was cumbrous in the extreme. The 
 auditors appointed to take the account could not until 
 3 & 4 Anno, c. 16, exajnino the parties before them on 
 oath. Whenever a disputed item was in question the 
 parties might join issue thereon or demur and bring their 
 dispute before the Court, and thus the inquiry might be 
 almost interminably protracted. Moreover, no equitable 
 claims, such as those arising from trusts, liens, frauds, &c., 
 were recognised ; so that after all the discussion at law, a 
 suit in equity might still have been requisite to determine 
 the full rights of the case (h). 
 
 It is not surprising that the legal action of account Displaced by- 
 should under these circumstances have fallen into desue- *^® equitable 
 
 remedy, 
 
 tude, and have been displaced by the remedy in equity to 
 which its imperfections gave birth. We shall presently 
 consider in greater detail some of the leading principles by 
 which Courts of equity have been guided in the taking of 
 accounts. It suffices now to illustrate the superiority of Superiority 
 the equitable over the legal remedy, by stating that the ill"«t^^*ed. 
 master who acted as auditor in equity had abundant power 
 to examine the parties on oath, to make inquiries from all 
 proper parties by testimony on oath, and to require the 
 production of all necessary documents; and that his 
 
 (a) 3 & 4 Anne, c. 16; Story, 445. (i) Story, 448—9.
 
 558 
 
 liNTliODlJCTION. 
 
 Extent of the 
 jurisdiction in 
 equity. 
 
 Fiduciary 
 relations give 
 jurisdiction. 
 
 Account 
 incident to 
 injunction. 
 
 decision was open to bo re-examined bj the Court whether 
 in point of fact or of law, bv a simple and expoditioust 
 process (c) . 
 
 The legal action of account having become obsolete, the 
 jurisdiction of equity in all matters of complication was 
 fully established, and, as usual, being once established, it 
 was in no way interfered with by the fact that new powers 
 were subsequently conferred on Courts of law; for instance, 
 the power to compel a reference to arbitration under the 
 Common Law Procedure Act, 1854: (d). The general 
 test as to whether Courts of equity had jurisdiction in 
 any particular case seems to have been the question whether 
 or not the account could be competently examined upon a 
 trial at nisi prius (e). 
 
 In some cases it was necessary for the parties to resort 
 to equity because of the existence of some fiduciary relation 
 between them which prevented the application of a legal 
 remedy . Thus a principal desiring an account against his 
 agent could only obtain adequate relief in equity, since 
 equity alone could enforce the discovery necessary to 
 ascertain the facts of the case (/) ; in short, wherever the 
 relation of trustee and cestui que trust exists the matter 
 naturally falls under the jurisdiction of equity (g). An 
 agent, however, could not sue in equity for an account 
 against his principal, since no confidence is reposed by the 
 agent, and the same ground of jurisdiction did not there- 
 fore exist (h). 
 
 In many cases, again, the remedy of account is incident 
 to and accompanies that of injunction — for instance, in 
 suits for the infringement of patents, of copyright, and in 
 respect of waste. These cases are more particularly re- 
 ferred to under the head of Injunction. 
 
 (c) See Ord. LV. rr. 15 et seq. 
 
 Id) 17 & 18 Vict. c. 125, s. 3. 
 
 (e) O'Connor v. Spaight, 1 S. 
 & L. 305; Taf Vale Co. v. Nixon, 
 1 H. L. 111. 
 
 (/) Mackenzie v. Johnston, 4 
 Mad. 373. 
 
 (gr) Docker v. Somes, 2 My. & 
 K. 664. 
 
 (A) Padwick v. Stanley, 9 Ha. 
 627.
 
 INTRODUCTION. '^•'^^ 
 
 Since the Judicature Acts, questions as to jurisdiction 
 can, of course, no longer arise, all actions being equally 
 cognizable in both the King's Bench and Chancery Divi- 
 sions. But it remains a matter of propriety and con- 
 venience to resort to equity in such cases, the machinery of 
 the equity Courts and Chambers being peculiarly adapted 
 to the examination of complicated matters of detail . 
 
 It is obvious that the jurisdiction of equity in matters Extent of the 
 of account brings a great variety of business within its jll"^^^^*^^'^ 
 purview. This is a natural consequence of the fact that «n account. 
 an almost infinite variety of transactions involve questions 
 of account; and, in addition to this, it is a well-established 
 rule that when equity acquires jurisdiction on this ground, 
 it extends its authority to other matters naturally, if not 
 necessarily, attaching to such a jurisdiction. As incident 
 to accounts, therefore, Courts of equity take " cognizance 
 " of the administration of personal assets, consequently of 
 "debts, legacies, the distribution of the residue, and the 
 " conduct of executors and administrators. As incident to 
 " accounts, they also take the concurrent jurisdiction of 
 " tithes, and all questions relating thereto; of all dealings 
 "in partnership, and many other mercantile transactions; 
 "and so of bailiffs, factors, and receivers" {i). 
 
 In dealing with the matters thus suggested, our course 
 will be first to examine the most conspicuous of the prin- 
 ciples by which equity is guided in the taking of accounts 
 generally. Then we shall inquire with more particularity 
 into the matters generally enumerated in the last para- 
 graph, whose place in equitable jurisprudence is especially 
 due to their involving matters of account. 
 
 Though we shall thus find that the heading of account 
 is answerable for the greater part of the business which 
 falls within the second division of our subject, there are 
 other peculiar remedies or features of procedure which are 
 scarcely less fertile, but which do not call for particular 
 comment in this place. 
 
 (0 Blackstone, Com. III. 437.
 
 560 
 
 INTRODUCTION. 
 
 Partition. 
 
 Boundaries. 
 
 Specific 
 performance. 
 
 Injunction. 
 
 Somewhat analogous in principle to the taking of 
 account is the partition of lands, involving as it may do 
 minute inquiries and valuations. And very similar to this 
 is the settlement of doubtful and confused boundaries. 
 
 Another remedy of high importance, the administration 
 of which exemplifies some of the most important doctrines 
 of equity, is that of Specific Performance; that is, the 
 compelling a party to do specifically that which, from an 
 equitable point of view, he ought to do. In some respects 
 analogous to this is the remedy of Injunction, by which a 
 party is restrained from doing acts which inequitably 
 affect the natural or contractual rights of others. 
 
 The discussion of these remedies and the matters con- 
 nected therewith is before us as constituting the second 
 division of our subject.
 
 661 
 
 CHAPTER I. 
 
 THE GENERAL PRINCIPLES OF ACCOUNT. 
 
 I. Appropriation of Pai/ments. 
 
 II. Appropriation of Securities. 
 
 III. Set-off. 
 
 IV. Apportio7iment . 
 V. Contribution. 
 
 VI. Defences to Action for Account. 
 
 It has already been stated, and is a matter of course, that Legal and 
 in taking an account, Courts of equity pay equal regard to claimg 
 legal and equitable claims. Wherever any fraudulent regarded, 
 dealing has given rise to a constructive trust, or to an 
 equitable claim in any way, or by the dealings of the 
 parties an equitable lien has been created, or indeed any 
 doctrine of equity intervenes to modify the legal position 
 of the parties, full effect is given thereto, and the result 
 of the inquiry is therefore, when confirmed by the Court, 
 final, needing no supplemental proceedings to complete 
 the determination of the parties' rights. 
 
 s. 36
 
 562 
 
 GENERAL PRINCIPLES OF ACCOUNT. 
 
 Appropriation 
 of payments. 
 
 Clayton's cme. 
 Rules as to 
 appropria- 
 tion. 
 
 Debtor has 
 first option. 
 
 Compared 
 With Roman 
 law. 
 
 I. Appropriatmn of Payments. 
 
 Tho accounts which come before Courts of equity are 
 frf^quently of such a nature as to call for decision as to the 
 appropriation of payments appearing- on one side thereof, 
 to the debits appearing on the other. In other words, it 
 often becomes material to ascertain to what debt a parti- 
 cular payment made by a debtor is to be applied. This 
 question most commonly arises where there have been 
 running accounts between debtor and creditor, various 
 payments having been made and various credits given at 
 different times. 
 
 The leading authority on this point is Clayton s case (a), 
 from which we learn that the following rules, which are 
 mainly derived from the Roman law, are applicable in 
 equity. 
 
 1 . A debtor making a payment has a right to appropriate 
 it to the discharge of any debt due to his creditor. 
 
 The debtor may appropriate the payment by so stipulat- 
 ing m express terms (6), or his intention so to do may be 
 inferred from the circumstances of the transaction; thus 
 where one of the debts owing was secured and another un- 
 secured, an intention first to discharge the secured debt 
 was presumed (c) . 
 
 In the Roman law this case would have come under 
 another rule — ^viz., that in the absence of an express 
 appropriation by either debtor or creditor, the law would 
 appropriate the payment to the most burdensome debt. 
 This rule does not, however, appear to be recognised in 
 English law (d), and it therefore seemingly requires some- 
 thing more than the mere fact that one of the debts is 
 secured, to lead the Court to appropriate a payment to its 
 
 (a) 1 Mer. 572, 585. 
 
 (b) Exp. Imbert, 1 De G. & J. 
 152. 
 
 (c) Young v. English, 7 Beav. 
 10. 
 
 {(l) Mills V. FoioJces, 5 Bing. 
 N. S. 455, 461; Att.-Gen. of 
 Jamaica v. Manderson, 6 Moo. 
 P. C. 239.
 
 APPROPRIATION OF PAYMENTS. -^63 
 
 extinction in priority to an unsecured debt of earlier date. 
 In the case quoted it appears that the payment was made 
 out of the proceeds of the security itself. 
 
 This right of appropriation by the debtor is, however, Debtor can 
 lost, unless exercised at the time of paj/ment. If he does h^sri^hTar 
 not then declare on what account the money is paid, he time of pay- 
 cannot afterwards do so (e). 
 
 2. If at the time of payment there is no express or The creditor 
 implied appropriation thereof by the debtor, then the t^^^nhasan 
 creditor has a right to make the appropriation. 
 
 In Roman law this right of the creditor, like the corre- 
 sponding one of the debtor, was lost unless exercised at the 
 time of payment (/). But in English law this is not so; Exercisable 
 and the creditor may, it seems, make the appropriation at f;*f °y ^^™® 
 
 ^ ' ' . before action 
 
 any time after payment and before action brought or brought. 
 
 account settled between him and his debtor (g) . 
 
 The creditor's right to make such appropriation is, how- May not 
 
 eiver, subiect to some limitations. He mav not indirectly appropriate to 
 •^ _ •" _ _ -^ an illegal 
 
 secure payment of an illegal debt by appropriating a debt, 
 
 general payment to its discharge (h) . But a debt barred 
 
 by the Statute of Limitations is not illegal, the statute 
 
 being merely a bar to the remedy, not to the right: if, but may to a 
 
 therefore, a general payment is made, without appropria- barred ^*'^*^' 
 
 tion by the debtor, it may be appropriated by the creditor 
 
 to the discharge of a statute-barred debt (i) . It must. Effect of this. 
 
 nevertheless, be observed that it will not have the effect of 
 
 reviving the debt (i) ; or, in other words, though by the 
 
 apjDropriation the creditor may secure payment of a 
 
 portion of a statute-barred debt, he does not by that 
 
 means acquire a right of action for the remainder of 
 
 (e) WilMnson V. Sterne, 'd'MoA. 737; Smith v. Betty, sup. 
 
 427; Smith v. Bettn, (1903) 2 (A) Wright v. Laing, 3 B. & 
 
 K. B. 317; 72 L. J. K. B. 853. C. 165. 
 
 (/) Dig. 46, 3. (i) 3Iills y. Fowkes, sup. ; Nash 
 
 (g) Philpot V. Jones', 2 A. & v. Hodgson. 1 Jur. N. S. 946; 4 
 
 D. 41, 44; Simfion v. Ingham, 2 De G. M. & G. 474; Merritt v. 
 
 B. & C. 65; Friend v. Yoting, Boswell, (1906) 2 Ch. 359; 75 
 
 (1897) 2 Ch. 421; 66 L. J. Ch. L. J. Ch. 234. 
 
 36 (2)
 
 564 
 
 GENERAL PRINCIPLES OF ACCOUNT. 
 
 Appropria- 
 tion by 
 presumption 
 of law 
 according to 
 priority. 
 
 Presumption 
 may be re- 
 butted. 
 
 it. But if a debt is not barred, a general payment on 
 account appropriated towards its liquidation will take it 
 out of the operation of the statute; that is to say, the 
 statutory period will again commence to run from the 
 time of such payment and appropriation (k) . 
 
 3. In the absence of any appropriation by either debtor 
 or creditor, an appropriation is made by presumption of 
 law, according to the order of the items of account, the 
 first item on the debit side being the item discharged or 
 reduced by the first item on the credit side. This is the 
 express point decided, and is commonly known as " the 
 rule " in Clay temp's case (Z), and is abundantly confirmed 
 by subsequent authority (m). 
 
 The rule, however, is only applicable where there is an 
 account current between the parties {n), and the presump- 
 tion may be rebutted by evidence of a different inten- 
 tion (o); and thus, though the English rule falls short of 
 that of Roman law already mentioned, there is a tendency 
 in the same direction arising from the disposition to 
 impute an intention to a debtor to appropriate his pay- 
 ment to the most onerous debt. The presumption may 
 also be rebutted by the circumstances of the particular 
 case. Thus, where an account was guaranteed, and after 
 the guarantee came to an end through the death of the 
 guarantor, a new account was opened with the debtor, 
 and the debtor made payments without specific appro- 
 priation, it was held that the creditor was not bound to 
 appropriate such payments to the guaranteed debt, so as 
 p)'o tanto to release the estate of the guarantor (p), the 
 
 (A-) Nash V. Hodgson, 4 De G. 
 M. & G. 474; Friend v. Young, 
 (1897) 2 Ch. 421; 66 L. J. Ch. 
 737. 
 
 (I) 1 Mer. 585. 
 
 {m) Pemberton v. Oakes, 4 
 Russ. 154, 168; Bk. of Scotland. 
 V. Christie, 8 CI. & F. 214; Beeley 
 V. Lloyds Bank, (1912) A. C. 
 756; 81 L. J. Ch. 697; reversing 
 
 (1910) 1 Ch. 648; 79 L. J. Ch. 
 561. 
 
 («) Cory Bros. v. Owners of 
 The Mecca, (1897) A. C. 286; 66 
 L. J. P. 86. 
 
 (o) City Discount Co. v. Mc- 
 Lean, 9 L. R. C. P. 692. 
 
 (p) Be Sherry, 25 Ch. D. 692, 
 702; 53 L. J. Ch. 404; Mouse v. 
 Bradford Bank, (1894) 2 Ch. 32 ;
 
 APPROPRIATION OF PAY^[ENTS. 566 
 
 rule ill Cla (/ton's case only applying where there is a 
 continuous unbroken account. Neither does the rule apply- 
 where a trustee or person holding money in a fiduciary 
 chai'aeter pays such money to his account with a banker. 
 In such a case the drawings out will be taken to be 
 drawings of the debtor's own money in preference to 
 the trust money. If the funds so paid in belonged to more 
 thaji one cestui que trust, iind there has been an unbroken 
 account, the rule applies as between the cestuis que 
 tru^tent themselves (g). 
 
 Where a debt bearing interest stands against a debtor, Payments 
 general payments made by him are first to be applied in to mterest*^*^ 
 payment of interest, any balance beyond what is necessary first, 
 for that being then credited in reduction of the prin-- 
 cipal (r). But this rule does not apply in the case of an 
 overdrawn bank account, in which, by the practice of 
 bankers, interest is from time to time converted into 
 principal (s). 
 
 We have seen that a creditor may appropriate a pay- Presumption 
 
 ment towai'ds the liquidation of a statute-barred debt. If, T^t^V^"™j 
 ^ ' debts barred. 
 
 however, there are several debts owing to him, some 
 barred and some not so, and he does not expressly appro- 
 priate a payment made to him on account towards those 
 that are barred, the presumption of law is that the pay- 
 ment is to be attributed to those not barred (t). In this 
 respect, therefore, in the absence of an express appropria- 
 tion, the law appropriates the payment to the best interest 
 of the debtor. This evidently operates as a modification 
 of the general rule that payments are appropriated by 
 law to debts in order of time. It scarcely needs to be 
 
 A. C. 586; 63 L. J. Ch. 890; 772. 
 
 Deeley v. Lloyds Bk., sup. (r) Chase v. Box, Freem. 261. 
 
 ((?) Re Ilallett's Estate, 13 Ch. See Cockburn v. Edwards, 18 Ch. 
 
 D. 696; Hancock v. Smith. 41 D. 449; 51 L. J. Ch. 46; Wrigley 
 
 Ch. D. 456; 58 L. J. Ch. 725; v. Gill, (1906) 1 Ch. 165; 75 L.J. 
 
 Wood V. Stenning, (1895) 2 Ch. Ch. 210. 
 
 433; Mutton v. Peat, (1900) 2 {s) Parr's Bank \. Yates, (im^) 
 
 Ch. 79; 69 L. J. Ch. 484. See 2 Q. B. 460; 67 L. J. Q. B. 851. 
 
 Pennell v. Be-ffell, 4 De G. M. & (i) Nash v. Hodgson, sup.; 
 
 G. 372; Exp. Bale, 11 Ch. J). Friend v. Young, sup.
 
 5()(^ 
 
 GENERAL PRINCIPLES OF ACCOUNT. 
 
 General 
 effect of ap- 
 propriation. 
 
 remarked by way of caution that in a continuous and 
 current account the early debts, however old, are not 
 statute-barred, being kept alive from time to time by any 
 payments which are made within six years of their having 
 been incurred. 
 
 Questions of appropriation, perhaps, most frequently 
 arise in cases where a firm has from time to time been 
 changed, and eventually fails. It is to such cases that the 
 rule in Clayton's case especially applies. If a creditor 
 seeks to fix a liability for the ultimate balance on a person 
 who has been a partner during the currency of the account, 
 but who is not so at the time of the failure, the accoimt 
 will be taken on the presumption that the sums first paid 
 in have been first drawn out, or that the debts first in- 
 curred have been first discharged. And no liability can 
 be fixed on a former partner if, on working out this prin- 
 ciple, it appeal's that all the debts owing when he ceased 
 to be a partner have been subsequently discharged. 
 
 The rule in 
 Exp. Waring. 
 
 II. Appropriation of Securities. 
 
 Somewhat analogous in principle to the appropriation 
 of payments is the doctrine of appropriation of securities 
 to bills of exchange, which is applied when both drawer 
 and acceptor of the bills become insolvent. The leading 
 authority in cases of this description is the case of Ex 
 parte Waring (w), in which Lord Eldon decided that, 
 where, as between the drawer and acceptor of a bill of 
 exchange, a security has, by virtue of a contract between 
 them, been specifically appropriated to meet that bill at 
 maturity, and has been lodged for that purpose by the 
 drawer with the acceptor, then, if both drawer and 
 acceptor become insolvent, and their estates are brought 
 under a forced administration, any person holding the 
 
 (m) 19 Ves. 345.
 
 APPKOPKIATION OF Sl'XLimTIES. 567 
 
 bill is entitled to have the specifically appropriated 
 security applied towards payment of the bill (x). 
 
 The following points must be observed as regulating 
 the application of this rule: — 
 
 1. There must be a distinct appropriation of the secu- 
 rity in question to the bill or to the debt against which 
 the bill is drawn (y). The mere fact, for instance, that 
 on a shipment of goods from A. to B., A. draws a bill 
 on B. as against the cargo will not amount to a sufficient 
 appropriation; and the bill holder will not be entitled 
 to the proceeds of the cargo as against a consignee who 
 applies it in reduction of a debt due to him from the con- 
 signor {z). The question of appropriation is an inference 
 of fact, not a conclusion of law. 
 
 2. The rule only applies when both drawer and acceptor 
 are insolvent and their respective estates are under forced 
 administration. If either the drawer or acceptor of the 
 bill is solvent, the bill holder of course gets paid in full, 
 and needs no security (a); and the Court will not, by 
 applying the rule, deprive any person of any rights of 
 property which he may possess, unless he is under the 
 jurisdiction of the Court. Consequently, the rule did not 
 apply when, mider the former bankruptcy laws, one party, 
 though insolvent, executed a composition deed, but made 
 no cession of his property (6). But the rule applies where 
 the two insolvent estates are being wound up in any 
 forced administration, whether in the Chancery Division 
 or in bankruptcy (6). 
 
 3. It is essential that there should be a right of double 
 proof — i.e., a right to prove against both the insolvent 
 estates for the full amount of the bill or debt (c). 
 
 (ar) See rule in Exp. Waring Shipley ^- Co. v. Rough, 29 Ch. 
 
 by A. C. Eddis, p. 5; Exp. Bevcr, D. 845; 54 L. J. Ch. 1024. 
 
 14 Q. B. D. 611; 54 L. J. Q. B. («) Powles v. Hargreaves, 3 
 
 390. De G. M. & G. 430, 450. 
 
 {y) Exp. Banner, 2 Ch.D.n^; {h) Ibid. ; Exp. General S. 
 
 City Bank v. Luckie, 5 Ch. 773. American Co., 10 Ch. 635. 
 
 (z) Phelps, Stokes ij- Co. v. (c) Vaughan v. HalUday, 9 Ch. 
 
 Comber, 29 Ch. D. 813; 26 ib. 569. 
 755; 54 L. J. Ch. 1017; Brown,
 
 568 
 
 GENERAL PRINCIPLES OF ACCOUNT. 
 
 Set- oft : 
 
 at law. 
 
 Statutory 
 improve- 
 ments. 
 
 Distinctions 
 as to set-off 
 in equity. 
 
 III. Set-oif. 
 
 There has been a marked distinction between the prin- 
 ciples of law and equity as to the set-off of debts one 
 against another. 
 
 1. Courts of law, indeed, always applied the principle 
 of set-off to connected accounts of debit and credit, and 
 allowed only the balance of the account to be recovered {d). 
 But apart from legislation the principle was confined 
 within very narrow limits. The mere existence of cross- 
 demands between the same persons did not entitle one 
 to set-off the debt owing to him against that which he 
 owed. Unless they were substantially connected one with 
 the other, the respective creditors could only sue in inde- 
 pendent actions. For instanice, if A. was indebted to 
 B. in the sum of £5,000 on a bond, and B. subsequently 
 borrowed £4,000 from A. also on a bond, payable at a 
 different time or under different conditions from that of 
 A., there was no legal set-off between them, and B. could 
 have sued A. and obtained and enforced judgment against 
 him for the whole £5,000, even though it may have been 
 certain that B. would be unable to pay his debt when it 
 became payable. 
 
 It is unnecessary now to trace the steps by which the 
 manifest imperfections of the law in this respect were from 
 time to time removed by statutory interference (e). It 
 suffices to say that the repugnance of its doctrines to 
 natural equity sufficed to establish an equitable jurisdic- 
 tion in many cases where set-off though reasonable, was 
 inadmissible at law, and the principles of the statutory 
 amendments were preserved notwithstanding the repeal 
 of the statutes (/). 
 
 2. This jurisdiction was, however, subject to well- 
 defined limitations, and generally followed the law. The 
 
 ((^) Dale V. Sollet, 4 Burr. 
 2133. 
 
 ie) See 9 Geo. II. c. 22. 
 (/) 42 & 43 Vict. c. 59.
 
 SET-OFF. 569 
 
 cases in which equity differed from the law may generally 
 be classed under one or other of three headings. 
 
 (1.) Notwithstanding that the debts in question arise Where credit 
 from independent transactions, yet equity allows a set-off ""^" "** * 
 where, from the circumstances of the case, it appears that 
 the parly incurring the second debt acted in reliance on 
 the former debt as a means of discharging it. 
 
 This is sometimes expressed by saying that though the 
 debts are independent, the credit is mutual. It is illus- 
 trated by the case above put of the bonds given between A. 
 and B. In such a case the nature of the transaction might 
 well lead to the presumption that A. lent his money rely- 
 ing on the fact that on another account he was indebted to 
 B., so that if B. should become insolvent A.'s advance 
 should be esteemed a pro tanto payment of his liability. 
 Equity gives effect to this presumption, though apart from 
 the statutes referred to, it was disregarded at law {g). 
 Similarly it was held at law under the statutes, that there 
 was a mutual credit wherever one party being indebted to 
 another entrusted him with goods, mutual credit being 
 defined as meaning mutual trust, which must be presumed 
 in such circumstances {h). A claim to unliquidated 
 damages may be set off against a liquidated debt, when 
 arising in the same transaction (i), but not otherwise (/). 
 
 (2.) Where there are cross-demands of such a nature Where one of 
 that if both had been recoverable at law they would have J.^^jtabie ^'^ 
 been subject to set-off, then if one of the demands is of 
 
 {g} Lanesborough v. Johps, 1 (1910) 1 K. B. 562; 79 L. J. 
 
 P. Wms. 326; Exp. Prescott, 1 K. B. 610; and E. S. C. 1883, 
 
 Atk. 230; and see Taijlor v. T., O. XIX. r. 3. 
 
 20 Eq. 155; Christmas v. Joii.es, (<) Parsons v. Sovereign Bk. 
 
 (1897) 2 Ch. 190; 66 L. J. Ch. of Canada, (1913) A. C. 160; 82 
 
 439. L. J. P. C. 60. 
 
 (A) Olive V. Smith, 5 Taunt. (;) Bow, MaclachJan v. Gamo- 
 
 56; Keij v. Flint, 8 ib. '21; Rox- sun, (1909) A. C. 597; 79 L. J. 
 
 burgh v. Cox, 17 Ch. D. 520; 50 P. C. 79; Stoddart v. Union 
 
 L. J. Ch. 772; Newfoundland Trust, (1912) 1 K. B. 181; 81 
 
 Govt. V. Newfoundland R. C, 13 L. J. K. B. 140; Reeves v. Pope, 
 
 App. Cas. 199; 57 L. J. P. C. (1913) 1 K. B. 637; 82 L. J. 
 
 35; Re Taylor, Exp. Norvell, K. B. 444.
 
 570 
 
 GENERAL PRINCIPLES OF ACCOUNT. 
 
 as formerly in 
 assiffnraeiitis 
 of debts. 
 
 Where there 
 are special 
 grounds. 
 
 Debts occur- 
 ring' in 
 different 
 rights. 
 
 When joint 
 and separate 
 debts set off 
 fraud. 
 
 Suretyship. 
 
 an equitable nature the principle of set-off is applicable 
 in equity. 
 
 This was the case where, prior to the Judicature Acts, 
 a legal debt was owing to a plaintiff by a defendant, and 
 the defendant was assignee of a legal debt due to a third 
 person from the plaintiff; then if the debts were of such 
 a nature that they might have been set off in law under 
 the statutes, they were subject to set-off in equity (k). 
 
 It is evident that this class of cases is rendered obsolete 
 by the Judicature Acts. 
 
 (3.) There are certain cases where on special equitable 
 grounds set-off is allowed in equity. 
 
 Thus, though in equity no more than at law is it per- 
 mitted to set off debts accrued in different rights (for 
 instance, a joint debt against a separate debt, or vic& 
 versa (I); or a debt due from a person individually against 
 a debt due to him as executor of another (w)), yet where a 
 joint creditor has been guilty of fraud in relation to the 
 separate j^roperty of one of the debtors — for instance, has 
 misapplied it, and deceived the latter — it has been held, 
 that in case of bankruptcy, the separate debt arising by 
 such misapplication may be set off against the joint 
 debt (w). So also in cases where one of the joint debtors 
 has been only surety for the other, he may set off the debt 
 due to his principal from the creditor; and, generally a 
 joint debt may in equity bo set off against a separate debt 
 where it is clear that joint credit was given on account of 
 the separate debt (o). 
 
 On similar principles, though, generally speaking, a 
 debt incurred by a person in his private capacity could 
 
 (A) Clarke v. Corf, Cr. & Ph. 
 154; Williams v. Baries, 2 Sim. 
 461; Bennett v. White, (1910) 2 
 K. B. 643; 79 L. J. K. B. 1133. 
 
 (I) McEwan v. Crombie, 25 
 Ch. D. 175; 53 L. J. Ch. 24; 
 Bowyear v. Paioson, 6 Q. B. D. 
 640; 50 L. J. Q. B. 495. See 
 Lavid V. Rees, (1904) 2 K. B. 
 435; 73 L. J. K. B. 729. 
 
 (ni) Re Hodgson, 9 Ch. D. 
 673; Hallett v. H., 13 ib. 232. 
 See Elgood v. Harris, (1896) 2 
 Q. B. 491; 66 L. J. Q. B. 53. 
 ■ (w) Exp. Stephens, 11 Ves. 24; 
 Exp. Blagden, 19 Ves. 465, 467; 
 David V. Rees, sup. 
 
 (o) Vidliamy v. Noble, 3 Mer. 
 593, 621; Exp. Stephens, sup.
 
 SE'l'-OFF. 571 
 
 not be set off against a debt due to him as executor or 
 trustee (p), nor a debt due from a testator be set off 
 against a debt due to his executor {q), yet special circum- 
 stances, such as an identity of interest in the two debts, 
 may suffice to give a right of set-off, notwithstanding the 
 formal difference as to the characters (r). The principles 
 of set-off have not been affected by the new procedure 
 rules under the Judicature Acts (s). 
 
 (4.) Vice verm, the equity of third persons will some- Set-off dis- 
 times intervene to prevent a set-off, when otherwise it ^indinif-up ; 
 might have been allowed. Thus a shareholder in a limited 
 company who is also a creditor, cannot, in the compulsory 
 winding-up of the company, set off the amount due to him 
 as creditor against the amount due from him for calls (t). 
 He must pay his calls in full, and then stand on the same 
 footing as other creditors in respect of the debt due to 
 him; and the same rule, it seems, applies in a voluntary 
 winding-up (u) . For the same reason there is no set-off 
 allowed in favour of directors who are creditors of the 
 company {x). A set-off is allowable where a shareholder allowed in 
 is bankrupt, whether the claim is made in the bankruptcy ^" ^"^ ^^' 
 or in the winding-up; that is to say, whichever way the 
 balance is («/). These cases are governed by the express 
 enactment of the Bankruptcy Act that in bankruptcy, 
 where there have been mutual dealings between the bank- 
 rupt and a person proving in the bankruptcy, the sum due 
 from one party shall be set off against any sum due from 
 
 (p) Freeman v. Lomas, 9 Ha. Arcade Co. v. Dotvlinff, L. E. 3 
 
 109; Exp. Kingston, 6 Ch. 632. C. P. 175; Re Hiram Maxim 
 
 (q) Lnmbarde v. Older, 17 Lamp Co., (1903) 1 Ch. 7; 72 
 
 Beav. 542. L. J. Ch. 18. 
 
 (r) Bailei/ v. Finch, L. R. 7 (rr) Re Exchange Bank, 21 Ch. 
 
 Q. B. 34. D. 519; Re Milan Tramivnys, 25 
 
 (s) See cases, infra: 0. XIX. ib. 587; 22 ib. 122. See Re 
 
 I. 3. Washington Diamond Co., (1893) 
 
 (0 GrisseU's case, 1 Ch. 528; 3 Ch. 95; 62 L. J. Ch. 895; 
 
 CJomps. Act, 1862 (25 & 26 Vict. Howard v. Rowatt's Wharf, 
 
 c. 89), s. 101. (1896) 2 Ch. 93. 
 
 (m) Re Whitehouse ^ Co., 9 (y) I)i re Duckworth, 2 Ch. 
 
 Ch. D. 595; but see Brighton 578; Exp. Strang, 5 Ch, 492.
 
 572 
 
 rJENERAL PRINCIPLES OF ACCOUNT. 
 
 the other party (z). And when the company is the 
 debtor, as for instance on debentures held by a share- 
 holder, it is entitled to set off the debentures against calls 
 made prior to the winding up (a); unless, indeed, there 
 is an intervening equity, as where the debentures have 
 been effectually chai'ged prior to the calls (h). 
 
 Cases dealing with the right of solicitors to sot-oFl: wdth 
 respect to costs liave been already considered (c); and an 
 executor's riglit of retainer will be discussed hereafter (d) . 
 
 Apportion- 
 ment. 
 
 Contracts. 
 
 IV. Apportionment. 
 
 The principles of equity applicable to account are 
 further distinguished from those of law by its fuller 
 application of the doctrine of apportionment. 
 
 Examples of this have already been given ; for instance, 
 in the case of an apprenticeship prematurely determined 
 by bankruptcy (e). But it should be observed that there 
 is no similar right when the contract has been put an end 
 to by death (/). Other cases of contracts which were not 
 divisible by law form cquallj^ apt illustrations: thus, if a 
 contract to serve for a year for £100 was determined by 
 death at the end of nine months, no remuneration at all 
 could have been legally recovered (g). In such cases equity 
 granted redress wherever it discovered circumstances of 
 mistake, accident or fraud (h). 
 
 (z) 46 & 47 Vict. c. 52, s. 38; 
 Palmer v. Daij ^ Son, (1895) 2 
 Q. B. 618; 64 L. J. Q. B. 807; 
 He Mid-Kent Fruit Co., (1896) 1 
 Ch. 567; 65 L. J. Ch. 250. 
 
 (a) Christie v. Taunton, (1893) 
 2 Ch. 175; 62 L. J. Ch. 385. 
 
 (6) Christie v. Taunton, (1893) 
 2 Ch. 175; and of. Hill v. Hicken, 
 (1897) 2 Ch. 579; 66 L. J. Ch. 
 717. 
 
 (f;) Supra, p. 342. 
 
 id) Inira, p. 586. 
 
 (e) Hale v. Webb, 2 Bro. C. O. 
 78; supra, p. 250; 46 & 47 Vict, 
 c. 52, s. 41. 
 
 (/) Whincup V. Hughes, L. R. 
 6 C. P. 78; Ferns v. Carr, 28 
 Ch. D. 409, overruling Hirst v. 
 Tolson, 2 Mac. & G. 134. 
 
 ig) Story, 471; Corp. of Ply- 
 mouth V. Throgmorton, 1 Salk. 
 65; 3 Mod. 153. 
 
 Qi) Story, 472.
 
 APPORTIONMENT. 57.'i 
 
 Rents, again, were at common law not apportionable, Rei>t«. 
 and the consequences of this doctrine were continually 
 productive of injustice when a tenant for life died in the 
 interval between two rent days. The full consideration of 
 the difficulties thus arising is not, however, here required, 
 equity having so far followed the law as to render neces- 
 sary a resort to the legislature (i). By the statutes 11 
 Geo. II. c. 19, and 5 Will. IV. c. 22, the greatest of the 
 inconveniences were removed; and now, by the Appor- Apportion- 
 tionment Act, 1870 (k), it is provided that in future all ^^y^*"^"*' 
 rents and other periodical payments in the nature of 
 income shall, like interest on money lent, be considered as 
 accruing from day to day, and shall be apportionable in 
 respect of time accordingly (I) . The Act applies to the 
 case of a tenant for life dying since the Act, though taking 
 under an instrument dated previously thereto (m) .■ But 
 its operation may, of course, be excluded bj^ the language 
 of an instrument dealing with the property (n), and in 
 the case of an investment of trust funds which are limited 
 to successive beneficiaries, there is in the absence of special 
 circumstances no power to apijortion, for the benefit of the 
 remaindermen, profits already accrued; the tenant for life 
 is entitled to the whole of the dividend when declared (o) . 
 
 The usual clauses in the articles of a company that 
 dividends shall be deemed to accrue and fall due upon the 
 days on which they are declared, and not before, have been 
 held not to amount to a stipulation against apportionment 
 within s . 7 of the Act, and dividends in such a case 
 were apportioned as between a testator's estate and a 
 beneficiary (p) . 
 
 («) But see Meeleij v. Webber, v. Meredith, 67 L. J. Ch. 409. 
 
 cited 2 Eq. Abr. 704; Aynsley v. (o) Barker v. Perowne, 18 Ch. 
 
 Woodsworth, 2 V. & B. 331. D. 160; 50 L. J. Ch. 733. See 
 
 (k) 33 & 34 Vict. c. 35. Bulkeley v. Stephens, (1896) 2 
 
 (I) Sect, 2. Ch. 241 ; 65 L. J. Ch. 597 ; Alston 
 
 (m) lie Cline's Estate, 18 Eq. v. Houston, (1901) 2 Ch. 584; 70 
 
 213; Lawrence v. L., 26 Ch. D. L. J. Ch. 869. 
 
 795; 53 L. J. Ch. 982. (p) Oppenheimer v. Boatinin. 
 
 (w) Lysaght v. L., (1898) 1 (1907) 1 Ch. 399; 76 L. J. Ch. 
 
 Ch. 115; 67 L. J. Ch. 65; Stone 287; but see and distinguish Re
 
 574 GENERAL PRINCIPLES OF ACCOUNT. 
 
 As to the respective rights of tenant for life and 
 romaindorman in the case of the retention of unauthorised 
 or wasting securities, see cases cited below (g) . 
 
 Previously to this Act, there were some cases in which 
 apportionment might have been had in equity though not 
 in law. Thus where portions were payable to daughters 
 at eighteen or marriage, and until then maintenance was 
 allowed, if a daughter came of age or married in the 
 intermediate period, maintenance was apportionable in 
 equity (r) . 
 
 In a recent case it has been held that the Crown not 
 being bound by the Apportionment Act, first fruits and 
 tenths, which, notwithstanding their transfer from the 
 Crown to the Governors of Queen Anne's Bounty, are still 
 Crown debts, are not apportionable in favour of the 
 successor of a bishop who vacates a see, as against thei 
 treasurer of the bounty, but that they are apportionable 
 as against the out-going bishop (s) . 
 
 V. Contribution. 
 
 Contribution. The principle of contribution, although in most cases re- 
 cognised at common law, was capable of much more con- 
 Lands subject venient application under the procedure of equity. At 
 arge. j^^^ where lands subject to a charge were subjected to a 
 partition, or sold in lots, one of the several owners paying 
 the charge could recover contribution from the others; but 
 his remedy lay in actions against them individually, 
 whereas equity could ascertain the proportions, and finally 
 
 White, Theobald v. White, (1913) (r) Ha^j v. Palmer, 2 P. Wms. 
 
 1 Ch. 231; 82 L. J. Ch. 149. 501. See also Lloi/d v. Carr, 45 
 (q) Sun. p. 121; Gnbdlini v. Ch. D. 629; 60 L. J. Ch 175; 
 
 Woods, (1904) 2 Ch. 4; 73 L. J. Gordon v. G., (1907) 1 Ch. 30; 
 
 Ch. 204; Chavtor v. Horn, (1905) 76 L. J. Ch. 74. 
 
 2 Ch. 133; 74 L. J. Ch. 106; He («) Bp. of Rochester v. Le 
 Sale, Nisbet v. Philp. (1913) 2 F«;«^, (1906) 2 Ch. 513; 75 L. J. 
 Ch. 697. Ch. 743.
 
 DEFENCES TO AN ACTION FOR ACCOUNT. o7o 
 
 determine the question by one judgment in one suit. It 
 has been held that one tenant in common of a house who 
 expends money on ordinary repairs, not being such as are 
 necessary to prevent the house from going to ruin, has no 
 right of action against his co-tenant for contribution (if). 
 Other instances of the equitable application of the prin- 
 ciple of contribution will be found in the Chapters on 
 Sureties (w) and on Trustees {x). 
 
 VI. Defences to an Action for Account. 
 
 1 . When an account has been once settled, and a balance Settled 
 struck, equity will not usually interfere, the remedy at law '^^^'^^^ • 
 for the recovery of the balance being complete (y) . The 
 fact of such a settlement, therefore, usually affords a con- 
 clusive defence to an action for an account; and extensive 
 lapse of time naturally adds to the weight of the defence. 
 
 In such cases it is often a matter of dispute whether a What 
 settlement has or has not in fact been concluded. A g^^ement! 
 formal examination and signature of the account by the 
 parties is the best evidence of such a settlement; but other 
 circumstances may suffice to prove a binding acceptance 
 of the account (0) . Where, for instance, an account has 
 been delivered, and no objection made within a reason- 
 able time, the extent of which will of course depend upon 
 the nature of the account, acquiescence in the settlement 
 will be implied, and the account will be deemed a stated 
 account (a) . The mere delivery of an account will not, 
 however, suffice to establish the fact of a settlement (6). 
 
 (t) Leigh v. BicJceson, 15 Q. {x) P. 145. 
 
 B. D. 60'; 12 ib. 194; 54 L. J. (?/) Baivson v. D., 1 Atk. 1. 
 
 Q. B. 18. And see Farrinr/ton v. (s) Willis v. Jernegan, 2 Atk. 
 
 Forrester, (1893) 2 Ch. 461; 62 251. 
 
 Li. J. Ch. 996; Lawledge v. (f?) Willis v. Jerneqan, sup. 
 
 Tyndnll, (1896) 1 Ch. 923; 65 (b) Irving v. Young, 1 S. & S. 
 
 T,. J. Ch. 654. 333. 
 
 (m) p. 405 ct seq.
 
 576 GENERAL PRINCIPLES OF ACCOUNT. 
 
 The question is one which depends on the intention of the 
 parties, and if the Court is satisfied as to this, a mere irre- 
 gularity or informality in the mode of taking- the account 
 will not be a sufficient reason for re-opening it (c) . 
 accounts When in an action for an account the defence alleges a 
 
 re-opened. settlement, one of two courses may be open to the plaintiff. 
 In some circumstances equity will not refuse to re-open the 
 account, notwithstanding a settlement. The most potent 
 of these is fraud. Thus if the parties to the settlement 
 were not on equal terms, and it appears that one has been 
 deceived, or has acted under duress, equity will grant 
 relief {d). Such cases fall under the general principle of 
 relief against fraud (e), which has already been considered. 
 Similarly, on grounds of mistake or accident, equity will 
 sometimes re-open an account; and this will always be 
 done the more readily where there is a confidential relation 
 between the parties, such as that of trustee and cestui que 
 trust, or solicitor and client (/) . The mere proof of a 
 single error is not sufficient. The proper remedy in such 
 a case is to give leave to surcharge and falsify {g). It is, 
 generally speaking, necessary to show that injustice would 
 be done by allowing the account to stand {h) . Where 
 compound interest was charged in a mortgage account by 
 mistake, the account though settled was re-opened. It was 
 considered, that though the giving of credit therefor in 
 account might have been treated as so far equivalent to 
 payment by mistake of law as to bar their recovery at 
 law, in equity the line between mistakes of law and mis- 
 takes of fact had not been so sharply drawn {i). When 
 
 (c) Exp. Barber, 5 Ch. 687; 2 Mac. & G. 309; Rochefoucauld 
 Hoh/atc y. Skutt, 28 Ch. D. Ill; v. Boiistead, (1897) 1 Ch. 196; 
 27 ib. Ill; 54 L. J. Ch. 436. 66 L. J. Ch. 74. 
 
 (d) Vernon v. Vaiodry, 2 Atk. {g) Gething v. Keighley, 9 Ch. 
 119; Clarke v. Tipping, 9 Beav. D. 547 ; Eyre v. Wynn- 
 284. " Mackenzie, (1894) 1 Ch. 218; 63 
 
 (e) llolqate v. Hlmtt. 28 Ch. L. J. Ch. 239. 
 
 D. 111. (/*) Lambert v. Still, (1894) 1 
 
 (/) Matthews v. Wallwyn, 4 Ch. 73; 63 L. J. Ch. 145. 
 
 Ves. 125; Todd v. Wilson, 9 (0 Datiiell v. Sinclair, 6 App. 
 
 Beav. 486; Coleman v. Mellersh, C. 181; 50 L. J. P. C. 50.
 
 DEFENCES TO AN ACTION FOR ACCOUNT. 577 
 
 ■an account is thus wholly re-opcncd^ it is, of course, taken 
 •as at first, the burden of proof resting' on each party to 
 prove that whi(>h he claims to stand to his credit. 
 
 But in other cases, though there may not be sufScient Liberty to 
 •grounds to induce the Court wholly to re-open the account, al^^fdsffv 
 it may grant leave to the plaintiff to surcharge and falsify, 
 the effect of which is to throw on him alone the burden of 
 proving any omission or error. If he can establish the 
 'Omission of some item in his favour, or the insufficiency 
 in form, of the account (/c), he will be allowed to sur- 
 charge; if an error, the falsification will be rectified; but 
 the onus probandi is wholly on him, the account, as a 
 whole, being deemed prima facie correct (Z) . Questions of 
 law, as well as of fact, may be raised upon leave to sur- 
 'charge and falsify (m) . 
 
 2. Unless excluded by the existence of an express trust, Statute of 
 the Statute of Limitations applies to an action for an i^^t^tions. 
 •account in equity as well as at law. The defence of the 
 statute is available by an agent against his principal (n). 
 'Equity sometimes refuses to interfere with accounts on the 
 ground of laches; though not extending to the statutory Laches. 
 period. The maxim, " Vigilantibus 7ion dormientibus 
 cequitas subvemt," is peculiarly applicable to such cases 
 as those in question, the proofs in which are so liable to 
 destruction by lapse of time (o) . 
 
 (k) Noi/es V. Pollock, 30 Ch. D. 462; 56 L. J. Ch. 307; Doody 
 
 D. 336; 55 L. J. Ch. 54. v. Watson, 39 Ch. D. 178; 57 L. 
 
 (I) Pitt V. Cholmondeley , 2 J. Ch. 865; Friend v. Young, 
 
 Ves. sr. 565. (1897) 2 Ch. 421; 66 L. J. Ch. 
 
 (m) Roberts v. Kuffin, 2 Atk. 737. 
 
 112. (o) Banner v. Berridge, 18 Ch. 
 
 (ri) See Lake v. Bell, 34 Ch. D. 254; 50 L. J. Ch. 630. 
 
 •37
 
 578 
 
 CHAPTER II. 
 
 THE ADMINISTRATION OF ASSETS. 
 
 Section I.— Administration Generally. 
 
 I. What is meant by Assets. 
 
 Distinction betiveen Legal and Equitable Assets. 
 II. The Priority of Debts. 
 
 III. Order of Administration. 
 
 IV. Pay?nent of Mortgage Debts. 
 V. Marshalling of Assets. 
 
 VI. Marshalling of Securities. 
 
 Assets 
 defined. 
 
 Heal assets. 
 
 I. What is meant by Assets. 
 
 1. Under the auciont common law the debts of a 
 deceased person were always payable out of his personal 
 estate. The personal estate vested in the legal personal 
 representative as soon as constituted, and to him the 
 creditor must resort for satisfaction. But the personal 
 representative, whether executor or administrator, was only 
 chargeable to the extent of the personal estate of the 
 debtor in his hands. This was termed "assets." The 
 completeness of the creditor's remedy depended upon 
 whether it was "assez," or sufficient to meet all the debts. 
 
 2. It was for a long time quite dependent upon a person's 
 option whether or not his real property should be available 
 for the payment of debts, in case the personalty should.
 
 EQUITABLK ASSETS. ^79 
 
 prove insufficient. He might bind his heirs by deed or 
 specialty to the payment of any debt or the fulfilment of 
 any contract, to the value of the lands descending. In 
 this case the position of the heir with respect to such 
 specialty debts was similar to that of the executor or 
 administrator with respect to debts generally; and the 
 lands so descended were then termed real assets, or assets 
 by descent. But the heir was not at all bound unless he 
 was named in the deed or covenant, and, since he was only 
 liable in any case to the extent of lands descending, the 
 expectation of the specialty creditor, even when the heir 
 was named, was wholly defeated if the testator devised 
 his real estate away from his heir. There was no law to 
 charge the devisee, and the heir took nothing to be 
 charged . 
 
 3. At length a statute was passed commonly known as statutory 
 the Statute of Fraudulent Devises (a), which made void real assets; 
 all devises by will as against creditors by specialty in -^ c. 14. 
 which the heirs were bound. Still, creditors who had not 
 fortified themselves by securing a bond or covenant under 
 seal were at the mercy of the debtor so far as concerned! 
 his real estate. The next step in their favour was taken in 
 1807, when, by 47 Geo. III. c. 74, the fee simple estates 47 Geo. III. 
 of deceased traders were rendered liable to simple contract ^' ^^* 
 as well as to specialty debts. In 1833 this remedy of 
 creditors ceased to be confined to the case of traders, it 
 being enacted by 3 & 4 Will IV. c. 104, that all fee simple 3&4Wm.IV. 
 estates not charged with or devised subject to the payment ^' 
 of debts should be liable to be administered in the Court 
 of Chancery for the payment of all the just debts of the 
 deceased owner, whether by simple contract or specialty. 
 By these steps fee simple estates at length became assets 
 for the payment of all debts; but there is no lien or charge 
 on the real estate until a judgment has been obtained (b). 
 
 (a) 3 & 4 Will. & M. c. 14. 535; distinguishmg Se Hyatt, 38 
 
 (6) Re Moon, Holmes v. //., Ch. D. 309; 57 L. J. Ch. 777. 
 (1907) 2 Ch. 304; 76 L. J. Ch. 
 
 37 (2)
 
 580 
 
 ADMINISTRATION GENERALLY. 
 
 Equitable 
 
 assets. 
 
 How distin- 
 guished from 
 
 And now by the Land Transfer Act, 1897 (c), and the 
 Conveyancing Act, 1911 {d), the fee simple estate of a 
 deceased person, notwithstanding any testamentary dis- 
 position, vests on his death in his personal representatives, 
 and in the administration of his assets is subject to the 
 same liabilities as personal estate. 
 
 4. But meanwhile the honesty of testators had devised a 
 means by which creditors might obtain out of the real 
 estate a satisfaction which the law did not afford them. It 
 became a common thing for testators to devise their lands 
 to trustees upon trust for sale for the payment of their 
 debts; or, what was, so far as concerned creditors, the 
 same in effect, to charge their lands in the hands of the 
 devisees with the payment of their debts. It is evident 
 that the lands thus expressly made available for creditors 
 were in a very different position from lands descending, 
 or made legally liable to debts by statute. In the case of 
 lands devised on trust for sale for or charged with payment 
 of debts, the legal personal representative, before the Land 
 Transfer Act, 1897, had nothing at all to do with them. 
 The funds in his hands were the same as before, and to 
 ' avail themselves of the testator's directions in their 
 favour the creditors could not sue the executor or adminis- 
 trator, but were required to proceed in Chancery for the 
 performance of the trust created in their favour. The 
 lands thus brought within their reach were therefore 
 termed equitable assets. 
 
 It will be observed that the distinction between legal 
 and equitable assets did not at all relate to the nature of 
 the title to the property itself. Thus an equity of redemp- 
 tion of a leasehold was of course an equitable interest; but 
 it none the less, on the death of the owner, became legal 
 assets, because it devolved upon the personal representa- 
 tive. The real test was whether or not the property came 
 to the executor virtute officii. If it did, it formed legal 
 
 (o) 60 & 61 Vict. c. 65, s. 1. 
 
 (rf) 1 & 2 Geo. V. c. 37, s. 12.
 
 EQUITABLE ASSKTS. 581- 
 
 assets; if it did not, but the creditor had to resort to the 
 Court of Chancery to secure the benefit of it, it was'equit- 
 able assets. The distinction thus referred to the remedy 
 of the creditor, not to the nature of the property (e). 
 
 Nor were lands thus devised on trust for sale or charged Species of 
 with debts the only species of equitable assets. The ^'^'^te 
 same principle which distinguishes them from legal assets 
 includes also the equitable separate estate, whether real or 
 personal, of married women, this being a creature of 
 equity, and its liability to debts being recognised only in 
 equity (/) ; and it was held that separate estate arising . 
 under the Married Women's Property Act, 1870, was sub- 
 ject to the same rules (g). But by virtue of s. 23 of the 
 Married Women's Property Act (h), the separate pro- 
 perty of a married woman under the Act now vests in 
 her legal personal representative virtute officii, and there- 
 fore must, it is submitted, be regarded as legal assets. A 
 third species of equitable assets is property over which a' 
 testator has exercised a general power of appointment, 
 which again does not come to the hands of the executor 
 virtute officii (^) . 
 
 The distinction between legal and equitable assets was Character- 
 formerly of great importance. In the administration or ^*^*^*^f^*i 
 distribution of legal assets, a certain definite order of assets, 
 priority was observed between different species of debts. 
 This order we shall presently consider in greater detail; 
 at present it suffices, by way of illustration, to state that 
 creditors by specialty were entitled to be paid in full 
 before any payments were made to those whose claims 
 arose from simple contracts. And when all debts were 
 made recoverable out of real estates by the statute of 1833, 
 this order of priority was not interfered with. The Court 
 of Chancery, however, has always observed as a maxim 
 
 (e) Cook V. Gregson, 3 Drew. {g) Thompson \. Bennett, R 
 
 549. Ch. D. 739. 
 
 (/) Owens V. Dickenson, Cr. & (A) 45 & 46 Vict. c. 75. 
 
 Ph. 48. (J) Pardo v. Bingham, 6 Eq. 
 
 485.
 
 •^^ ADMINISTRATION GENERALLY. 
 
 that " Equaliti/ is equity.'' In its distribution of equit- 
 able assets, therefore, it disregarded the legal rules as to 
 priority, and treated all creditors, whatever the nature of 
 their claims, pari passu. Moreover, it went farther than 
 this in its favour of equality. Where there was a mixed 
 fund of legal and equitable assets, and the specialty 
 creditors, availing themselves of their priority with respect 
 to the former, exhausted them, so as to leave nothing for 
 the simple contract creditors, equity would not suffer any 
 specialty creditor to receive any part of the equitable 
 assets until the simple contract creditors were paid up 
 to an equality with what the specialty creditors received 
 from the legal assets (fc). 
 
 It has been observed that the creation of equitable assets 
 was not interfered with by 3&4 Will. IV. c. 104, lands 
 devised charged with debts or on trust for their payment 
 being exempted from its operation. The same exception 
 had been made in 3 & 4 Will. & M. c. 14. One con- 
 sequence, therefore, of the equitable method of distribution 
 of equitable assets, was that a testator who had at law 
 given a creditor the security of a bond, or other specialty 
 binding his heirs, might defeat the legal priority thus 
 bestowed by devising his realty charged with debts, and 
 by this means placing its distribution in the hands of 
 •Chancery. 
 
 5. The importance of the distinction between legal and 
 equitable assets was, however, to a great extent destroyed 
 :32&33 Virt. by the following statutes. First, by 32 & 33 Vict. c. 46 
 (commonly known as Hinde Palmer's Act), it was enacted 
 that " In the administration of the estate of every person 
 ■"who shall die on or after the 1st day of January, 1870, 
 " n,o debt or liability of such person shall be entitled to 
 ^' any priority or preference by reason merely that the 
 ■*' same is secured by or arises under a bond, deed, or other 
 "" instrument under seal, or is otherwise made or consti- 
 
 (A;) Plunket v. Penson, 2 Atk.290; Bain v. Sadler, 12 Eq. 570.
 
 EQUITABLE ASSETS. 583 
 
 ■"tuted a specialty debt; but all the creditors of such 
 ^* person, as well specialty as simple contract, shall be 
 ^* treated as standing in equal degree, and be paid accord- 
 ^' ingly out of the assets of such deceased person, whether 
 ^' such assets are legal or equitable, any statute or other 
 " law to the contrary notwithstanding; provided also, that 
 " this Act shall not prejudice or affect any lien or charge, 
 " or other security which any creditor may hold or b© 
 " entitled to for the payment of his debt." 
 
 6. Further, by s. 10 of the Judicature Act, 1875 (l), it Judicature 
 was enacted that " In the administration by the Court of g \q ' 
 " the assets of any person who may die after the com- 
 "" mencement of this Act, and whose estate may prove to 
 " be insufficient for the payment in full of his debts and 
 ^' liabilities .... the same rules shall prevail and be 
 ^' observed as to the respective rights of secured and un- 
 " secured creditors, and as to debts and liabilities prove- 
 " able, and as to the valuation of annuities and future and 
 " contingent liabilities respectively, as may be in force for 
 " the time being under the law of bankruptcy with respect 
 ^' to the estates of persons adjudged bankrupt." 
 
 The former of these statutes came into operation on the 
 1st January, 1870, the latter on the 1st November, 
 1875 (m). As to persons who died before the end of 1869, 
 the old rules as to priority in administration therefore 
 remain applicable; and as to persons who died between 
 that date and the 1st of November, 1875, the old rules 
 apply, except that specialty and simple contract creditors 
 fitand on the same footing. As cases may still occur to 
 "which neither of the statutes apply, the old law cannot yet 
 he treated as entirely obsolete; and it is accordingly desir- 
 able in considering the details of administration to dis- 
 tinguish between the three periods indicated; and the 
 more so in that the history of the changes presents an 
 interesting illustration of the development of law. 
 
 : (0 38 & 39 Vjct. c. 77. (m) Shervnn v. Selkirk, 12 Ch. 
 
 D. 68.
 
 584 
 
 ADMINISTRATION GENERALLY. 
 
 Debts to 
 Crown by 
 record or 
 specialty. 
 
 Statutory 
 priority. 
 
 Registered 
 judgments, 
 
 and judg- 
 ments against 
 executor. 
 
 II. Priority of Debts. 
 
 1. Before 32 & 33 Vict. c. 46. 
 
 The following is the order in which the executor wa& 
 and is required to pay out of legal assets the debts owing 
 by testators who died before the 1st of January, 1870: 
 
 (1.) Debts due to the Crown by record or specialty. 
 Debts not of record or specialty have not absolute priority, 
 but they nevertheless have priority over debts of equal 
 degree due to subjects (n). 
 
 (2.) Debts to which particular statutes give priority — 
 for instance, poor rates, by virtue of 17 Geo. II. c. 38; 
 regimental debts, by virtue of 26 & 27 Vict. c. 57; certain 
 liabilities to building societies (o), and to friendly 
 societies {p). 
 
 (3.) Judgment debts duly registered. Final decrees, 
 and orders of Courts of equity ordering money to be paid 
 to a person, have the same effect as judgments at law {q). 
 Pari passu with such judgments and decrees rank judg- 
 ments recovered against the personal representative him- 
 seK, even though unregistered (r). An order under 
 Ord. XIV. r. 1, giving liberty to sign judgment does not 
 give priority (s). 
 
 Registration was required of judgments against the 
 deceased debtor, for the protection of the personal repre- 
 sentative, who would otherwise be subject to unavoidable 
 loss by exhausting the assets in paying debts of inferior 
 degree, and then finding himseK liable to a judgment debt 
 of which he had no knowledge. Of course, in the case of 
 a judgment against himself, no such reason applied to 
 deprive the creditor of the reward of his superior diligence.; 
 
 (w) Re Henley # Co., 9 Ch. D. 
 481 ; lie West London Commer- 
 cial Bank, 38 Ch. D. 364; 57 
 L. J. Ch. 925; Att.-Gen. v. 
 Leonard, 38 Ch. D. 622; 57 L. J. 
 Ch. 860. 
 
 (o) 4&5 Will. IV. c. 40, s. 12. 
 
 {p) 38 & 39 Vict. c. 60, s. 15; 
 Me Miller, (1893) 1 Q. B. 32; 62 
 L. J. Q. B. 324. 
 
 (^) 1 & 2 Vict. c. 110, s. 18; 
 Wilson V. Dicnsany, 18 Beav. 299. 
 
 (r) Williams v. W., 15 Eq. 270. 
 
 (s) Clifford V. Gurney, (1896) 
 2 Ch. 863; 66 L. J. Ch. 32.
 
 PRIORITY OF DEBTS. 
 
 585 
 
 (4.) Debts of record other than judgments — e.g., Statutes and 
 statutes and recognizances. Statutes have long been obso- zances. 
 lete. Recognizances are, however, continually employed 
 — for instance, they are required from persons appointed 
 by the Court of Chancery as receivers, and a debt from 
 a receiver for this reason ranks as a debt of record {t). 
 
 (5.) Debts by specialty contracts for valuable con- Specialty 
 sideration, whether the heir is or is not bound (m). A "''^''^• 
 mere recital of a debt in a deed does not constitute it a 
 specialty debt. It is necessary that it should be created, 
 or at least novated, by the deed {x). 
 
 Arrears of rent service rank equally with debts by 
 specialty, even though the rent be reserved by parol. The 
 liability of a contributory in the winding-up of a company, 
 under the Companies Acts is also of the nature of a 
 specialty debt {y). A voluntary bond signed for value 
 in the lifetime of the obligor was held to rank as a 
 specialty {z). 
 
 (6.) Unregistered judgments against the deceased Unregistered 
 debtor (a), and debts by simple contract. These com- •'^ • ™f ^*''. 
 prise debts due on negotiable instruments, and also ceased, and 
 liabilities in respect of breaches of trust not being breaches ^^^ debts. 
 of covenant under seal {h). 
 
 (7.) Voluntary bonds or covenants in the hands of a Voluntary 
 volunteer. These, though postponed to all contract debts, covenaji^s 
 were considered by virtue of their antecedent legal title to 
 have priority over legacies (c). The holder of a voluntary 
 bond may, moreover, sustain a creditor's suit for adminis- 
 tration, and his claim is preferred to a claim for interest 
 upon debts which do not carry interest at law (d). 
 
 (t) Seagram v. Tuck, 18 Ch. (~) Payne v. Mortimer, 4 De 
 
 D. 296; 50 L. J. Ch. 572. G. & J. 447, 452. 
 
 (u) Cunliffe-Smith v. Hankey, («) Van Gheluive v. Nerinckx, 
 
 (1899) 1 Ch. 541; 68 L. J. Ch. 21 Ch. D. 189; 51 L. J. Ch. 929. 
 
 242. (^) Adey v. Arnold, 2 De G. 
 
 («) Iven V. Elwes, 3 Drew. 25. M. & G. 432. 
 
 (y) 25 & 26 Vict. c. 89, ss. 75, (o) Fletcher v. F., 4 Ha. 74. 
 
 1^; Buckv. Robson.iaiki. Q29. {d) Garrard v. Binorhen, 5 
 
 Ha. 213.
 
 686 
 
 ADMINISTRATION GENERALLY. 
 
 Executor's 
 liability to 
 creditors. 
 
 Power of 
 preference. 
 
 Retaiaer. 
 
 Such is the order of payment so far as unaffected by 
 legislation. Before considering- the effects of the statutes 
 which have modified it, it may be well to mention certain 
 liabilities and powers of executors which have special 
 reference to the rules as to priority. 
 
 2. Rights and liabilities of executors, dc. 
 
 (1.) An executor who, having notice of a superior debt, 
 voluntarily pays one of inferior order, thereby renders 
 himself personally liable, in case of a deficiency of assets, 
 to pay the former debt. He was at one time presumed to 
 have notice of judgments and decrees in equity against the 
 deceased. But from the hardship which thus threatened 
 him ho was relieved by various statutes, which rendered 
 such judgments of no effect against him unless docketed 
 or registered (e). As regards other debts, he was not 
 liable, except in case of actual notice (/). 
 
 (2.) Among creditors of equal degree an executor may 
 at any time before decree in an administration action pay 
 one in preference to another {g) unless meanwhile a 
 receiver has been appointed or an injunction obtained (Ji). 
 And since, under Hinde Palmer's Act, specialty and 
 simple contract creditors are now on an equal footing, an 
 executor may treat them as such, and prefer a simple 
 contract creditor to one by specialty (i). 
 
 (3.) An executor or administrator, to whom a debt, 
 whether legal or equitable, was owing by the deceased 
 person, has a right to retain his debt out of the legal assets 
 in priority to other creditors of equal degree (/c); and he 
 
 (e) 4 & 5 Will. & M. c. 20; 
 1 & 2 Vict. c. 110; 2 & 3 Vict, 
 c. 11; 23 & 24 Vict. c. 38. 
 
 (/) Brookinrj v. Jennings, 1 
 Mod. 175. 
 
 (l?) Lyttleton v. Cross, 3 B. & 
 C. 317, 322; Williams' Executors, 
 p. 882, ed. 10. 
 
 (h) Re RadcUffe, 7 Ch. D. 
 733; Vibart v. Coles, 24 Q. B. D. 
 364; 59 L. J. Q. B. 152. 
 
 (*) Robbins v. Alexander, 
 (1906) 2 Ch. 584; 76 L. J. Ch. 
 21. 
 
 {k) Cockcroft v. Black, 2 P. 
 Wms. 298; Laver v. Botham, 
 
 (1895) 1 Q. B. 59; 64 L. J. 
 Q. B. 110; Adcock v. Evans, 
 
 (1896) 2 Ch. 345; 65 L. J. Ch. 
 760. And see now Robbins v. 
 Alexander, supra.
 
 PRIORITY OF DEBTS. 
 
 anay, where his debt exceeds the testator's assets, retain 
 the assets in specie without conversion (Z). He cannot, 
 Jiowever, retain as against any debt of superior degree, of 
 which ho has notice, such as a specialty debt, notwith- 
 standing that specialty debts now, for general administra- 
 tion purposes, rank with simple contracts {m) . And if a 
 •creditor obtains a judgment, the executor cannot in a sub- 
 sequent action for the administration of the estate set up 
 his right of retainer as against the judgment creditor (n). 
 The retainer will not be interfered with if the executor 
 had no notice of the superior debt (o) . He can only retain 
 ■out of such assets as come to his own hands; thus, though 
 & decree in an administration action is no hindrance to the 
 right (p), if a receiver is appointed there is no retainer out 
 -of funds received by him or paid into Court (q). But a 
 receiver will not be appointed merely for the purpose of 
 defeating the retainer (r) . The present form of the 
 administration bond, though requiring the administrator 
 to distribute the estate without " unduly preferring his 
 •own debt," does not affect the right of retainer (s). A 
 statute-barred debt may be retained (t), but not a debt the 
 right to which, as well as the remedy, is barred by a non- 
 compliance with the Statute of Frauds (u) . An executor 
 •of an executor or administrator who has asserted the right 
 
 (I) Re Gilbert, (1898) 1 Q. B. 395; 55 L. J. Ch. 687; Vibart v. 
 
 282; 67 L. J. Q. B. 229. Coles, sup.; Pnlman v. 3Ieadows, 
 
 (m) Wilson V. Coxwell, 23 Ch. (1901) 1 Ch. 233; 70 L. J. Ch. 
 
 D. 764; 52 L. J. Ch. 975; Calver 97. 
 
 V. Laxton, 31 Ch. D. 440; 55 (r) Molony v. Brooke, 45 Ch. 
 
 L. J. Ch. 350. D. 569. 
 
 (w) Crawter v. Marvin, (1905) (s) Bavies v. Parry, (1899) 1 
 
 2 Ch. 490; 74 L. J. Ch. 699. Ch. 602; 68 L. J. Ch. 346; 
 
 (o) Blahe V. Gale, 32 Ch. D. Richardes v. Yates, (1901) 2 Ch. 
 
 571; 55 L. J. Ch. 559; Wing field 52; 70 L. J. Ch. 474. 
 
 •V. Erskine, (1898) 2 Ch. 562; 67 (0 Stahlschmidt v. Lett, 1 Sm. 
 
 X. J. Ch. 620. & G. 415. See Trevor v. Hutchins, 
 
 (p) Campbell v. C, 16 Ch. D. (1896) 1 Ch. 844; 65 L. J. Ch. 
 
 198; Jo>7es v. Pennefather, (1896) 738. 
 
 1 Ch. 956; 65 L. J. Ch. 419; (m) Field v. White, 29 Ch. D. 
 
 Whitaker v. Barrett, 43 Ch. D. 358; 54 L. J. Ch. 950; Jlankin- 
 
 70; 59 L. J. Ch. 218. so)i v. Ilayter, (1904) 2 Ch. 66; 
 
 (<?•) Calver v. Laxton, sup.; 73 L. J. Ch. 576. 
 Jjatimer v. Harrison, 32 Ch. D. 
 
 587
 
 •^88 ADMINISTRATION GENERALLY. 
 
 in his lifetime, may similarly retain for a debt due to the' 
 executor or administrator (x) . And a husband who is- 
 executor may retain for a debt due to his wife, or, if hia 
 wife was executrix, may retain for a debt due to himself" 
 or his wife (2/) . A widow who is executrix may retain a 
 debt due to her from her husband's estate in respect of a. 
 loan made to him for the purposes of his business (2;),. 
 notwithstanding s. 3 of the Married Women's Property^ 
 Act, 1882. The right of retainer is a personal right ;, 
 and the administrator of the insolvent estate of a sola 
 trustee who died indebted to his trust cannot be required 
 by the cestui que trustent to exercise any right of retainer 
 for their benefit as against other creditors (a) . 
 
 No such rights of retainer exist with respect to equitable 
 assets; but though the Judicature Act has, as far as 
 regards the order of distribution, in some respects put 
 equitable and legal assets upon the same footing, it has 
 been held that it does not interfere with the well-established' 
 right of retainer out of legal assets (6). The retainer 
 cannot be asserted when an estate is being administered 
 in bankruptcy (c), but an order under s. 125 of the- 
 Bankruptcy Act, 1883, for the administration of an 
 insolvent testator's estate in bankruptcy, only vests in the^ 
 official receiver so much of the estate as is properly dis- 
 tributable amongst the creditors, and it does not deprive 
 the executor of his right of retainer out of assets which he 
 has already got in, and even though by mistake he has. 
 paid over the assets to the official receiver he is entitled to* 
 be repaid (d) . Although the Land Transfer Act, 1897, in 
 
 (ic) Hopton V. Bryden, Prec. {ci) Re Ridley's Trusts, (19Q4:') 2' 
 
 Ch. 180; Weeks v. Gore, 3 P. Ch. 774; 73 L. J. Ch. 696; Ward' 
 
 Wms. ISijTi.; Nortonv. Compfon, v. Benett, (1906) 1 Ch. 216; 16- 
 
 30 Ch. D. 15; 54 L. J. Ch. 904. L. J. Ch. 122. 
 
 (y) Atkinson v. Rawson, 1 (6) Lee v. Nuttall, 12 Ch. D. 
 
 Mod. 208. See Re McMyn, 33 61; Richmond \. White, ih. 361. 
 
 Ch. D. 575; 55 L. J. Ch. 845. (c) Atkinson v. Poivell, 36 Ch.. 
 
 (z) Crawford Y. May, i5Ch.I>. D. 233; 56 L. J. Ch. 552. 
 
 4iQ9', Woodhead y. Ambler, (1905) (d) Re Rhoades, (1899) 2 Q.. 
 
 1 Ch. 697; 74L. J. Ch. 367. B. 347; 68 L. J. Q. B, 804:.
 
 exf'outor 
 m t liable. 
 
 PRIORITY OF DEBTS. :580 
 
 a sense, makes the proceeds ol" sale of real estate legal 
 -assets, it has been held that the right of retainer does not 
 apply thereto (e). 
 
 There are two ways in which a legal personal representa- When 
 tive may secure himself from his primary liability for the 
 ■debts of the deceased. Eirst, by throwing the administra- 
 tion into the hands of the Court. As long as the estate 
 is being administered, the creditor's remedy is of course to 
 prove his debt therein. When the administration is com- 
 plete, his only resource is to follow the assets into the hands 
 of the residuary legatee or next of kin (/) . Secondly, the 
 legal personal representative may obtain a statutory pro- 
 tection under 22 & 23 Vict. c. 35, s. 29, by issuing regular 
 notices, and distributing the estate in accordance there- 
 , with {g). If, however, he administers out of Court on his 
 own responsibility, he remains prima facie liable to the 
 claim of any unpaid creditor, though if required to pay a 
 debt of which at the time of distribution he had no notice, 
 he would be entitled to call upon the residuary legatee or 
 next of kin to refund {h) . Secus, if he had notice of the 
 debt (^). Moreover, in the absence of wilful default, whichi 
 is not easily established (fc), the executor's liability is 
 limited to the assets which come to his hands actually or 
 constructively (Z). 
 
 3. Priority of debts UTider 32 & 33 Vict. c. 46. 
 
 We have seen that this Act places specialty debts on the Ettect of 
 
 32 & " ' 
 
 c. 46. 
 
 eame level and footing as debts by simple contract. And ^' ^ ^^ *' 
 
 Hasluck V. Clark, (1898) 2 Q. B. Eq. 18. 
 
 28; (1899) 1 Q. B. 699; 68 L. J. (i) IVhittaker v. Kershaiv, 45 
 
 Q. B. 486. Ch. D. 320; 60 L. J. Ch. 9. 
 
 (e) Holder v. Williams, (1904) (k) Cooke v. Stevens, (1897) 1 
 
 1 Ch. 52; 73 L. J. Ch. 82. Ch. 422; (1898) 1 Ch. 162; 67 
 
 (/) Thomas v. Griffiths, 2 Giff. L. J. Ch. 118. 
 504; 2 De G. F. & J. 555; (I) Akerman v. A., (1891) 3 
 
 Doughty v. Townson, 43 Ch. D. Ch. 212; 61 L. J. Ch. 34; Taylor 
 
 1; 59 L. J. Ch. 18. v. Wade, (1894) 1 Ch. 671; 63 
 
 (fir) Clecfg v. Rowland, 3 Eq. L. J. Ch. 424. See Matthews v. 
 
 368. " Huqqles Brice, (1911) 1 Ch. 194; 
 
 (h) Jervis v. Wolferstan, 18 80 L. J. Ch. 42.
 
 590 
 
 ADMINISTRATION GENERALLY. 
 
 it includes in its operation those other debts which wo have* 
 mentioned as previously ranking with specialty debts— 
 viz., debts due from contributories in the winding-up of 
 companies and arrears of rent (tn) . 
 
 With this exception, however, the order remains as- 
 before. Debts to the Crown (n), judgments, and other 
 debts of record retain their former position. And this 
 being so, a creditor in an administration under this Act 
 who secures a judgment against an executor for a simple 
 contract debt, thereby actually gains priority over a 
 creditor by special contract (o). The executor's rights of 
 preference and retainer were not affected by this Act (p) . 
 
 An heir or devisee of real estate has no right of retainer 
 out of descended or devised lands for a debt due to him in 
 respect of simple contract debts. Specialty debts, it appears,, 
 may be retained thereout (q) . 
 
 Effect of 
 Judicature 
 Act, s. 10. 
 
 Applies to 
 insolvent 
 estates onlv. 
 
 4. Priority under the Judicature Act, 1875 (r). 
 
 The above quoted section of this Act (s) has in some 
 respects completely changed the method of administration 
 as regards the debts of persons dying since the 1st iqf 
 November, 1875; but nevertheless the effect of this enact- 
 ment does not appear to be so extensive as at iirst siight 
 one might suppose. 
 
 In the first place, its application is confined to cases of 
 the administration by the Court of insolvent estates. And 
 again, where no recourse is had to the Court for the 
 administration of insolvent estates, the priorities of credi- 
 tors are determined by the old law. 
 
 (m) Shirreff v. Hastings, 6 Ch. 
 D. 610. 
 
 (n) Bentinck v. B., (1897) 1 
 Ch. 673; 66 L. J. Ch. 359. 
 
 (o) Hanson v. Stubbs, 8 Ch. D. 
 154. 
 
 (jy) Crowder v. Stewart, 16 Ch. 
 D. 368; 50 L. J. Ch. 136; 
 
 Bobbins v. Alexander, (1906) 2 
 Ch. 584; 76 L. J. Ch. 21. 
 
 (^) Re niidge, 27 Ch. D. 478; 
 53 L. J. Ch. 991; Ferguson v. 
 Gibson, 14 Eq. 379. And see 
 Holder v. Williams, (1904) 1 Ch. 
 52; 73 L. J. Ch. 82. 
 
 (»•) 38 & 39 Vict, c 77. 
 
 (s) Sup. p. 583.
 
 PRIORITY OF DEBTS. 591 
 
 Further, the law o£ bankruptcy is bv this section, even How far rules 
 
 1 • 1,1 T 1 • i I i_ <'f bankruptcy 
 
 when it operates, only to be applied in three respects: applied. 
 (1) As to respective rights of secured and unsecured 
 creditors; (2) As to the debts and liabilities proveable; 
 (3) As to the valuation of annuities and future and con- 
 tingent liabilities. It is only the first of these heads 
 which can affect the rules as to priorities now under view. 
 The question is, to what extent it modifies the previous 
 law. 
 
 Ill one respect the change introduced is obvious. In Secured debts, 
 equit}' a mortgagee has always been allowed to pursue all 
 his remedies concurrently; his enforcement of one does 
 not prejudice him in the prosecution of another; he may 
 at the same time sue personally for his debt, and proceed 
 to enforce his specific security by foreclosure or sale. It 
 was held in an important case (t) that the death of the Mason v. 
 mortgagor made no difference to this right, and that thus °^^' 
 in the administration of his estate the mortgagee might 
 share rateably with other creditors by proving for the full 
 amount of his debt against the estate; and having received 
 his dividend, might proceed to realise his security, and 
 retain thereout the whole balance due to him. He might 
 thus receive twenty shillings in the pound, while the un- 
 secured creditors had to be satisfied with a small dividend. 
 
 Under the Bankruptcy Acts, the position of a mort- Rule iu 
 gagee or other secured creditor is, however, much less t^^^i^^P^^cy. 
 advantageous. By s. 39 and the second schedule of the 
 Act of 1883 (u), which follows in this respect the previous 
 Act, he is required to elect whether he will prove for his 
 whole debt, and at the same time give up his security for 
 the benefit of the estate; or whether he will retain his 
 security, and after valuation, or sale of it, prove only for 
 the balance of his debt. The effect of his security is 
 thus not prejudiced, but as regards the balance of his 
 
 (0 Mason v. Boffr/, 2 My. & (it) 46 & 47 Vict. c. 52. 
 
 Cr. 443.
 
 592 ADMINISTRATION GENERALLY. 
 
 debt he is in no better position than any other creditor; 
 and if not fully secured, he cannot receive twenty shillings 
 in the pound unless the unsecured creditors do so also. 
 Judicature The effect of the Judicature Act, then, is clearly to 
 
 substitute this rule for the rule established by Mason v. 
 Bogg (x) in the administration by the Court of insol- 
 vent estates. Certain priorities among debts are definitely 
 laid down in the Bankruptcy Act. By ss. 40-2 (modified 
 now by 51 & 52 Vict. c. 62, and as to the winding-up of 
 companies first by 60 & 61 Vict. c. 19 (y), and now by 
 8 Edw. VII. c. 69, s. 209) certain rates and taxes and 
 certain wages and salaries are to be paid, before general 
 debts, and with these exceptions all debts proveable under 
 the bankruptcy are to be paid pari pas>su. Now these pre- 
 ferential debts are quite different from those to which 
 priority was given in administration. The difference is 
 two-fold; on the one hand, bankruptcy gives no priority 
 to judgments registered or unregistered, or to recogni- 
 zances, over simple contract debts; on the other hand, in 
 administration no preference was shown for wages and 
 salaries; and these differences remain unaffected. In Lee 
 V. Nuttall (z), James, L.J., said: "The sole object of 
 " the 10th section, as it appears to me, was to get rid 
 " of the rule in Chancery under which a secured creditor 
 " could prove for the full amount of his debt and realise 
 " his security afterwards, and to put him on the same 
 "footing as in bankruptcy " (^). It has further been 
 decided that in the winding-up of companies to which 
 the same words in the same section apply, the preferences 
 recognized in bankruptcy do not operate (&). It has also 
 been more recently held that although s. 10 of the Judi- 
 
 (x) 2 My. & Cr. 443. (ft) Ibid.; Richmond v. White, 
 
 (y) Parkington v. Haywood, 12 Ch. D. 361. 
 
 (1897) 2 Ch.'593; 67 L. J. Ch. {b) Re Albion, ^-c. Co., 7 Ch, 
 25; Re Waverley Typewriter, D. 547; Re Withcrnsea Brick- 
 
 (1898) 1 Ch. 699; 67 L. J. Ch. works, 16 Ch. D. 337; 50 L. J. 
 360. Ch. 185; Pratt v. Inman, 43 Ch. 
 
 (z) 12 Ch. D. 61. D. 175; 59 L. J. Ch. 274.
 
 okdp:r of administration. 593 
 
 <caturo Act does not generally affeet the priorities of debts 
 in administration, it so far introduces the principles of 
 ibankruptcy as to admit of voluntary creditors being- paid 
 j?an passu with creditors for value (c) . 
 
 III. Order of Adwdnis\tration. 
 
 Such being the order of priority inter se of the creditors 
 of a deceased person, the next inquiry is as to the order 
 in which the assets will be applied in the discharge of the 
 liabilities. This inquiry in effect ascertains the respective 
 priorities of the various classes of persons who claim to take 
 the deceased's estate beneficially. 
 
 It will, of course, be remembered in considering this Rights of 
 ■question, that the points now to be raised do not in any affected by- 
 way interfere with a creditor's rights. His remedies ex- order, 
 tend to the whole of the assets, and are not prejudiced by 
 any claims which the different classes of legatees, delviHoes, 
 &c. may have inter se. Under the head of Marshalling 
 "VN'e shall see how those claims are adjusted if the creditor, 
 in pursuance of his rights, resorts to the assets in an order 
 different from that which the law prescribes as between the 
 beneficiaries. 
 
 1. It was well established in the case of Aficaster v. General 
 Mayer (d), and has ever since been the rule, that in the ^r^t°i°able 
 administration of the estates of deceased persons, the Ancaster r. 
 general personal estate is the primary fund for the ^"!^^*'- 
 payment of their debts. In order to avoid this primary 
 liability, it is necessary that the personal estate should be 
 exempted, either by express words or by the indication of 
 -a manifest intention to the contrary. 
 
 (c) Whitaker V. Palmer, (1900) Maggi, 20 Ch. D. 545; 51 L. J. 
 
 2 Ch. 676; (1901) 1 Ch. 9; 70 Ch. 560; Smith v. Morgan, 5 
 
 L. J. Ch. 6; Re Leng, Tarn v. C. P. D. 337. 
 F.mmerson, (1895) 1 Ch. 652; 64 (^) 1 Bro. C. C. 454; 1 W. & 
 
 I,. J. Ch. 468, disapproving Re T. L. C. 1, ed. 7. 
 
 S. 38
 
 594 
 
 ADMINISTRATION GENERALLY. 
 
 Exemption : 
 
 express, 
 
 implied. 
 
 Onus of proof. 
 
 What does 
 not exempt 
 personalty. 
 Charge of 
 debts, &o. 
 
 Express 
 charge of 
 
 Exemption by express words is so plain a matter as to^ 
 need no exposition or illustration. But the question as to 
 what amounts fx) a manifest indication of intention to 
 exempt the personalty is one which has caused such 
 difficulty to judges as to have elicited frequent expressions 
 of the wish that nothing but express words had been per- 
 mitted to alter the course and order of law. 
 
 It must be always remembered that the burden of proof 
 lies on those who claim to have the personalty exone- 
 rated (e). Bearing this in mind, we shall first state what 
 is not considered a sufficiently manifest indication of this 
 intention; and, secondly, shall examine some cases in 
 which the personalty was held to have been exonerated. 
 
 (1.) Neither a charge of the debts upon the land, nor a 
 direction to sell it for the payment of debts, nor the crea- 
 tion of a term for that purpose, nor even a devise upon the 
 condition of the devisee's paying the testator's debts, will 
 exempt the personalty from its primary liability (/) . And 
 the same rule was applied where the charge of the real 
 estate was contained in a deed, and the testator by will 
 recited the deed and disposed only of the residue of his 
 property not comprised therein {g). It is necessary not 
 only that the realty should be charged, but that the 
 testator should indicate a purpose that the personalty 
 should not be applied (h). Again, the mere charge of 
 funeral or testamentary expenses, or both together with 
 the debts upon the real estate, will not of itself exempt the 
 personalty (^), though it may afford a strong argument in 
 that direction (k). 
 
 An express charge on the personalty of some particular 
 
 (e) Whieldon v. Spode, 15 
 Beav. 539. 
 
 (/) Toiver v. Rous, 18 Ves. 132, 
 138; White v. W., 2 Vern. 43; 
 Inchiquin v. French, 1 Ck)X, 1; 
 Bridgman v. Dove, 3 Atk. 201. 
 
 (gr) Troti V. Buchanan, 28 Ch. 
 D. 446; 54 L. J. Ch. 678. 
 
 {h) Quennell v. Turner, 13 
 Beav. 240; Samwell v. Wake, 1 
 Bro. C. C. 145. 
 
 (/) Brydges v. Phillips, 6 Ves. 
 570; Bootle v. Blundell, 1 Mer. 
 229. 
 
 (A) Toiver v. Rous, 18 Ves. 132,. 
 139.
 
 ORDER OF ADMINISTRATION. 595- 
 
 debts, such as simple contract debts or legacies, for the some debt oa 
 payment of which it would without such charge be pri- P®"^^"* ^' 
 marily liable, will not, by the application of the maxim, 
 Expressio unius est exclusio alterius, raise a sufficient pre- 
 sumption that it was intended to be only an auxiliary fund 
 for the payment of other liabilities not expressly charged 
 upon i(, but charged upon the land (I). 
 
 A bequest of all the personal estate, with or without Bequest of 
 specific description, will not, at least where the legatee is Personalty, 
 also appointed executor, be so distinguished from a general, 
 residuary bequest as to exonerate the personalty passing 
 under such bequest, although lands are devised in trust to 
 pay all the testator's debts (m) . It has also been so decided 
 where the legatee was not executor (n). Such a case is 
 stronger, however, in favour of exoneration than the 
 former, and when coupled with a charge of debts and 
 funeral and testamentary expenses upon the realty, has 
 been often considered sufficient to constitute the real estate 
 a primary fund for their payment (o). It is still stronger 
 in favour of exoneration, if with such a bequest a par- 
 ticular real estate has been devised upon trust for payment 
 of debts and funeral and testamentary expenses (p) . 
 
 Parol evidence is not admissible to show the intention of Parol evidence- 
 a testator to give his personal estate free from debts, nor g/^ie 
 will any inference be drawn concerning the testator's 
 intention from a consideration of the relative amount of 
 his personal estate and debts; and consequently no inquiry 
 Avill be directed to ascertain such relative amount (g). 
 
 (2.) The primary liability of the general personal estate Cases of 
 
 exeinptioB. 
 
 (Z) Watson V. Bricktvood, 9 Driver v. Ferrand, 1 R. & M. 
 
 Vo8. 447. 681; Gilbertson v. G., 34 Beav. 
 
 (m) Harewood v. Child, stated 354; Kilford v. Blaney, 31 Ch. D. 
 
 Ca. t. Talb. 204; Haslcwood v. 56; 55 L. J. Ch. 185; Smith v. 
 
 Pope, 3 P. Wms. 324; Banks v. S., (1913) 2 Ch. 216; 83 L. J. 
 
 Busbridge, (1905) 1 Ch. 547; 74 Ch. 13. 
 
 L. J. Ch. 336. (io) Powell v. Riley, 12 Eq. 
 
 {n) Collis V. Robins, 1 De G. 175. 
 
 AiSm. 131; Ouseley \. Anstriither, (g) Tait v. Northwick, 4 Ves. 
 
 10 Beav. 453. 816; Stephenson v. Heathcote, 1 
 
 (o) Greene v. G., 4 Madd. 148; Ed. 38. 
 
 38 (2)
 
 596 ADMINISTRATION GENERALLY. 
 
 will be displaced by the appropriation of a specific part of 
 the personal estate to the payment of debts, coupled with a 
 bequest of the general residue. But if there is no such 
 residuary bequest the residue will still remain primarily 
 liable, notwithstanding the appropriation of the specific 
 fund (r) . On the same principle, it must be observed that 
 even, an express exemption of the personalty will not 
 extend to the benefit of the next of kin claiming by a 
 lapse (s) . 
 
 Where a testator devised his real esta,te to be sold, and 
 directed the money to arise by the sale to be applied to 
 pay mortgages and all other debts, the residue to be 
 added to the personal estate, this was held to make the real 
 estate the primary fund (t). 
 conclusion ^^' ^^'® ^®^' ^hen, to the conclusion that the first fund 
 
 to be resorted to for the payment of debts is the general 
 personal estate ; and that its primary liability will only be 
 disturbed by an express declaration of such intention, or 
 by dispositions which very clearly imply it. In the case 
 of a mortgage debt there are other considerations in- 
 volved with a series of statutory modifications, which it 
 is convenient to postpone for separate treatment. 
 
 ILands devised 2. After the general personalty, the next fund resorted 
 
 on trust for ° ^ . 
 
 debts. to for the payment of debts is land devised upon express 
 
 trust for their payment (m). As we have seen, such land 
 is equitable assets, and, therefore, in all cases distributed 
 amongst creditors pari passu. 
 
 Lands 3 Next in order stand lands descended to the heir, and 
 
 descended . 
 
 not charged with debts (x). Since 3 & 4 Will. IV. c. 106, 
 if there is a specific devise of lands to the heir, he is con- 
 
 (r) Bootle v. Blundell, 1 Mer. 56 L. J. Ch. 451. 
 
 220. (m) Serle v. St. Eloy, 2 P. 
 
 (s) Waring v. Ward, 5 Ves. Wms. 386; Phillips v. Parry, 22 
 
 675. Beav. 279. 
 
 («) Webb V. Jones, 2 Bro. C. C. {x) Bavies v. Topp, 1 Bro. 
 
 60; 1 Cox, 245. And see Ash- C. C. 524, 527. 
 worth V. Munn, 34 Ch. D. 391;
 
 ORDER OF ADMINISTRATION. 59<^ 
 
 sidered to take them in the character of devisee, and not by 
 descent. His position as regards these lands is therefore 
 the same as that of any other specific devisee (?/). 
 
 4. Lands devised charged with the payment of debts Devises and 
 are next liable {z) ; and being equitable assets, are dis- eharged. 
 tributed in payment of debts pro rata. Moreover, if aj 
 devise of lands so charged lapses, and the heir consequently; 
 takes, this does not alter their place in the order of admi- 
 nistration. They still rank as lands charged, and not as 
 lands descended {a). Personalty bequeathed subject to a 
 charge of debt stands in the same degree. 
 
 Lands charged -svith debts being equitable assets, the 
 Court, in its favour of an equal distribution amongst 
 creditors, has been inclined to give as wide a construction 
 as possible to any passage in a will which can be considered; 
 as amounting to a charge of debts (h). 
 
 A mere declaration that the debts shall be paid by the •^^liat 
 executors will not, indeed, amount to a charge of debts on amounts to 
 realty, which, previously to the Land Transfer Act, 
 1897 (c), did not come to the hands of the executors at 
 all. But if with such a direction real estate is devised to 
 executors, then it is considered as charged in their hands, 
 unless from special circumstances of the case a contrary 
 intention is apparent (<^) ; and it is immaterial whether 
 the executor takes the whole beneficial interest, or only a 
 life interest, or no beneficial interest at all (e). A mere 
 authority to pay debts is not tantamount to a direction to 
 pay (/). If, moreover, there is a direction in general terms 
 
 (y) Sect. 6, Biedermann v. (d) Warren v. Bavies, 2 My. & 
 
 Seymour, 3 Beav. 368. K. 49; Bailey v. B., 12 Ch. D. 
 
 (jz) Bonne v. Lewis, 2 Bro. 268. 
 
 C. C. 259; Barnewell v. Caivdor, (e) lie Tanqueray -Willaume 
 3 Mad. 453; Bate v. B., 43 Ch. ami Landau, 20 Ch. D. 465, 476; 
 
 D. 600; 59 L. J. Ch. 277. 51 L. J. Ch. 434; Finch v. 
 (a) Wood V. Ordish, 3 Sm. & Hattersley,ZB,nas.Z^b,n.; Hart- 
 
 G. 125; Stead v. Eardaker, 15 land v. Murrell, 27 Beav. 204; 
 Eq. 175. Re Be Burgh- Laivson, 41 Ch. D. 
 
 (S) Silk V. Prime, 1 Bro. C. C. 568; 58 L. J. Ch. 561. 
 139. (/) Re Head's Trustees and 
 
 (c) 60 & 61 Vict. c. 65. Macdonald, 45 Ch. D. 310; 6» 
 
 L. J. Ch. 604.
 
 598 
 
 ADMINISTRATION GENERALLY. 
 
 General 
 
 "Specific 
 legacies and 
 devises. 
 
 Hesiduary 
 
 devise 
 
 -specific. 
 
 that debts shall be paid, not specifying by whom, and 
 accompanied by an expressed intention to dispose of the 
 real estate, that effectually charges devised lands (g) . The 
 principle is that such a general direction indicates an in- 
 tention that the debts shall at all events be paid in pre- 
 ference to any disposition of real or personal property [h). 
 The law, statutory and otherwise, respecting the sale and 
 disposition of charged lands has already been discussed («). 
 
 5 . General pecuniary legacies next abate pro rata as far 
 as is necessary (Jc). Annuities are equivalent to legacies, 
 and after valuation (since the Judicature Act on the 
 principles of bankruptcy) abate pro rata with them(?). 
 It must be observed also that if a general legacy be given 
 for valuable consideration, such as the relinquishment of 
 dower, it is entitled to priority over all merely voluntary 
 legacies (m). But the principle has been held not to apply 
 to a legacy given in satisfaction of an ascertained debt. 
 Such a legacy, being mere bounty, seems therefore to bo 
 liable to abatement {%). 
 
 6. Then specific legacies (o) and specifically devised real 
 estate (p) not charged with debts are resorted to pro rata. 
 
 Under this head it is to be observed that a residuary 
 devise is considered to be specific. While a residuary 
 devise comprised only lands which the testator was 
 possessed of at the date of his will, this could hardly be 
 doubted. But it Avas less clear when, by the Wills Act (g), 
 a will was made, in the absence of a contrary intention 
 
 (g') Shatter OSS v. Finden, 3 Vto. 
 738. 
 
 (Ji) CU-ffonl V. Lewis, 6 Madd. 
 38. 
 
 (J) See pp. 375 et sp.q. 
 
 (k) Clifton V. Burf, 1 P. Wins. 
 -680; Re Schweder, (1891) 3 Ch. 
 44; 60 L. J. Ch. 656. 
 
 (0 Ward V. Gray, 26 Beav. 
 491; Mitter v. HudcUeston&, 3 
 Mac. & G. 513. See and distin- 
 guish Allen V. Sinclair, (1897) 1 
 Ch. 921; 66 L. J. Ch. 514. 
 
 (w) Burridge v. Bradyl, 1 P. 
 Wras. 126; Davies v. Bush, 1 Yo. 
 341. 
 
 (w) Wedmore v. W., (1907) 2 
 Ch. 277; Whitehead v. Street, 
 (1913) 2 Ch. 56; 82 L. J. Ch. 
 302. 
 
 (o) Fielding v. Preston, 1 De 
 G. & J. 438; Re Butler, (1894) 3 
 Ch. 250; 63 L. J. Ch. 662. 
 
 {p) Mirehouse v. Scaife, 2 My. 
 & Cr. 695. 
 
 {q) 1 Vicfc. c. 26, s. 24.
 
 ORDER OF ADMINISTRATION. 599 
 
 being- manii'ost, to speak as from the death, and thus to 
 include in its operation after-acquired property. After 
 ■considerable conflict of opinion, it was, however, decided 
 in Hensman v. Fryer (r) that a residuary devise was 
 still specific; and this is now well established (s). In 
 Hensman v. Fryer it was, indeed, further held that a 
 residuary devisee must contribute rateably with pecuniary 
 legatees to the payment of debts. This portion of the 
 decision could evidently only be made consistent with the 
 previous proposition by considering pecuniary and specific 
 legatees and specific devisees as on the same footing. But 
 this is opposed to a multitude of high authorities; and 
 we accordingh^ liiid that the broad principle of Kem^man 
 V. Fryer has in more recent cases been applied without 
 interference with the prior liability of pecuniary legatees, 
 residuary and other specific devises and specific bequests 
 being classed together next in order to pecuniary 
 legacies {t). 
 
 The expressions which suffice to constitute a specific 
 legacy are fully considered hereafter. 
 
 7. A widow's paraphernalia is liable (with the excep- Para- 
 tion of her wearing apparel) to her husband's debts; and ^ ^"^ 
 it would seem that this is its proper place in the order of 
 administration (u). Her claim is doubtless superior to 
 that of a pecuniary legatee {x), and upon principle she 
 should be preferred to specific legatees or devisees, who 
 are at the best but volunteers {y). At the same time there 
 would be no reason for entitling her to rank higher than 
 an appointee under a general power. 
 
 (r) 3 Ch. 420. Farquharson v. Floyer, 3 Ch. D. 
 
 (s) Gibhins V. El/den, 7 Eq. 109. 
 
 371; Lancefeld v. Irjgulden, 10 (u) Tipping v. T., 1 P. Wms. 
 
 €h. 136; Ogden v. Mason, (1901) 730; see Masson v. De Fries, 
 
 1 Ch. 619; 70 L. J. Ch. 343; Re (1909) 2 K. B. 831; 79 L. J. 
 
 Mnddocl; (1901) 2 Ch. 372; K. B. 24. 
 
 (1902) 2 Ch. 220. {x) Ibid.; Boi/iiton v. Park- 
 It) Collins V. Lewis, 8 Eq. 708; hurst, 1 Bro. C. C. 576. 
 
 Dugdalc v. D., 14 Eq. 235; Tom- (y) Tynt v. T., 2 P. Wms. 542. 
 
 kins V. Oolthurst, 1 Ch. D. 626;
 
 fiOO ADMINISTRATION GENERALLY. 
 
 Property g. Lastly, real or personal property o^er which the tes- 
 
 tator has a general power of appointment, and over which 
 he has actually exercised that power hy will in favour of 
 volunteers, is applicable {z)\ but it must be clear that the- 
 testator intended to treat the property as his own to all 
 intents {a). As the creditors can only claim under the 
 appointment, which is a voluntary act, they will have no 
 claim unless the power is actually exercised, since equity 
 will not interfere to aid the non-execution of a power in 
 favour of volunteers (6). It must be observed, however^ 
 that a residuary gift will, under s. 27 of the Wills Act (c), 
 operate as an appointment, unless a contrary intention 
 appears. Property appointed is equitable assets, and 
 accordingly distributable pro rata id). 
 
 IV. Faywoe^it of Mortgage Debts. 
 
 It has been already remarked that these rules as to the 
 order of the liability of assets for debts are in some degree 
 varied when the question is respectin'g the payment of a 
 mortgage debt; and for convenience sake this was reserved 
 for separate consideration. The law on this head having 
 been revolutionised by the statute known as Locke King's 
 Act (e), the inquiry naturally resolves itself into two divi- 
 sions — first, as to the law applicable to cases not within 
 that Act; secondly, as to the effect of that Act and of 
 others which have amended, or rather added to it. 
 
 (2) Fleming v. Buchanan, 3 De indication of intention, Coxen v. 
 
 G. M. & G. 976; Hawthorn v. Rowland, (1894) 1 Ch. 406; 63 
 
 Shedden, 3 Sm. & G. 305; Hins- L. J. Ch. 179; Kelly v. Boyd, 
 
 ley V. Inckerim/ill, 17 Ch. D. (1897) 2 Ch. 232; 66 L. J. Ch. 
 
 151; 50 L. J. Ch. 364; Bey f us v. 614; Shaw v. Marten, (1902) 1 
 
 Lawley, (1903) A. C. 411; 72 Ch. 314. 
 
 L. J. Ch. 781; Kelcei/ v. liar- (b) Holms v. Goghill, 12 Ves. 
 
 rison, (1902) 1 Ch. 552; 71 L. J. 206. 
 
 Ch. 325. (c) 1 Vict. c. 26. 
 
 (fl) Thurston v. Evans, 32 Ch. (d) Pardo v. Bingham, 6 Eq. 
 
 D. 506; 55 L. J. Ch. 564. See 485. 
 
 as to what amounts to sufficient (a) 17 & 18 Vict. c. 113.
 
 PAYMEN'J' OF MORTGAGE DEBTS. 601 
 
 1. Bef(yre 17 &A8 Vict. c. 113. 
 
 Where an estate is inemnbered with a mortgage, either 
 the incumbrance must liave been created by the deceased 
 person, or the estate must have been already incumbered 
 when it came to his hands. The question by whom the 
 mortgage debt was incurred principally determined what 
 fund was prima facie liable to its payment. It will facili- 
 tate the inquiry to consider the two cases separately. 
 
 (1.) Where the mortgage was the debt of the deceased. 
 
 In this case the general rule was the same with respect Personalty 
 to mortgage debts as to others; the general personalty was \^^l^^ ^ 
 first to be resorted to. Whether the mortgaged estate de- 
 scended to the heir or was devised, the heir in the former 
 case and the devisee in the latter might require the per- 
 sonal representative to discharge the mortgage, so that the 
 estate might be enjoyed sine onere. This was the 'prima Presumption, 
 facie presumption, and in order to avoid it, it was incum- ^°^ rebutted, 
 bent on the personal representative to show that there was 
 an intention on the part of the testator that the mortgaged 
 estate should bear its own burden (/) . 
 
 Of course, in case of an intestacy, there were no means 
 at all of rebutting this presumption. Where there was a 
 will it required strong expressions to do so. The strongest 
 case for exoneration was naturally that in which the inten- 
 tion was manifested by express words. This requires no 
 comment. It sufficed also if an intention was clearly im- 
 plied; but the decisions show that the implication had to 
 be very clear. Thus a devise of the estate for payment of 
 debts generally, or a general charge of debts thereon, did 
 not suffice to exonerate the personalty {g) . Even if the 
 devise contained the words " subject to the mortgage or 
 incumbrance thereon," these were considered as merely 
 descriptive, and not as showing an intention to throw the 
 debt primarily on the mortgaged estate (Ji). A devise of 
 
 (/) Bavies v. Bush, 4 Bli. N. S. 169, 186. 
 305. (A) Serle v. St. Eloy, 2 P. 
 
 (jf) Hancox v. Abbey, 11 Ves. Wms. 386.
 
 602 
 
 ADMINISTRATION GENERALLY. 
 
 Mortgaged 
 estate pri- 
 marily liable, 
 
 unless debt 
 adopted by 
 
 testator. 
 
 What 
 
 amounted to 
 adoption of 
 debt. 
 
 the mortgaged land, however, charged with or on trust for 
 payment of the mortgage debt, was considered sufficient 
 to rebut the prima facie rule (^). The same was the case 
 where there was a devise to a person of an estate, " he 
 paying the mortgage thereon " (fc). It will be observed 
 how nearly these cases come to an express declaration of 
 intention. 
 
 (2.) Where the mortgage was not the debt of the 
 deceased. 
 
 Where the mortgage was not in its inception the per- 
 sonal debt of the devisor or intestate, but had been incurred 
 by his predecessor in title, the general rule was that the 
 mortgaged estate should itself be primarily liable to the 
 charge; and this whf>tlier he acquired the estate already 
 charged, or the charge was effected for some other purpose 
 than for his benolit — for instance, to secure a portion or 
 jointure (/). 
 
 In order in such a case to reverse this rule, and throw 
 the mortgage debt primarily on the personalty, it was 
 incumbent on the heir or devisee to show that the devisor 
 or ancestor had adopted the debt as his own (m). If he 
 had, the ordinary rule applied. It was therefore a matter 
 of great importance, and it was often a matter of great 
 difficulty to ascertain whether there had been an adoption 
 of the debt . It must suffice briefly to illustrate successively 
 what was and what was not considered to amount to an 
 adoption of the debt. 
 
 In the following cases the debt was considered to have 
 been adopted, so that the personalty became primarily 
 liable: — Where the owner of property mortgaged by his 
 ancestor added thereto mortgages of his own, united them, 
 and made himself personally liable for the payment of the 
 
 (i) Evans v. Cockerani, 1 Coll. 
 428. 
 
 (Jc) Lockhart v. Harrlij, 9 Beav. 
 379. 
 
 (0 Vandeleztr v. V., 3 CI. & F. 
 
 82; 9 Bli. N. S. 157; Coventry v. 
 C, 2 P. Wma. 222; 1 Str. 596. 
 (>w) Scott V. Beecher, 5 Madd. 
 96.
 
 PAYMENT OF MORTGAGE DEBTS. CO^S 
 
 •aggregate sum (n); where the purchaser of an equity o£ 
 redemption entered into a covenant directly with the mort- 
 gcigce to pay him the debt, and there was a new proviso 
 for redemption on repayment (o) ; where a person bought 
 an estate, and to secure the purchase-money gave a charge 
 •on the estate and covenanted to pay it (p) . 
 
 In the following cases it was considered that there was What not. 
 no adoption of the debt: — Where the deceased obtained a 
 snoall further advance and gave an additional security for 
 the whole sum due {q) ; where he entered into a cotvenant 
 to pay a higher rate of interest (r) ; where he obtained 
 an additional advance to pay off arrears of interest on the 
 mortgage and the simple contract debts of the person from 
 whom he took the estate {s); where a man bought subject 
 to a mortgage, but had no contract or communication with 
 the mortgagee, and showed no intention to transfer the 
 • debt from the estate to himself, beyond merely giving a 
 necessary indemnity against the debt to the vendor (/). 
 Nor was a charge of debts on his estate by an heir or 
 devisee an adoption of the mortgage debt of the ancestor 
 'Or devisor {u). 
 
 2. The effect of Locke King's Act {x). 
 
 By this statute it is enacted that, " When any person 17 & is Vict 
 " shall, after the passing of the Act, die seised of or entitled- 
 " to any estate or interest in any land or other heredita- 
 " ments which shall at the time of his death be charged 
 '" with the payment of any sum or sums of money by way 
 "of mortgage, and such person shall not by his will or 
 " deed or other document have signified any other or con- 
 
 (n) Townsend v. Mosti/n, 26 (r) Shafto v. S., 1 Cox, 207. 
 
 Beav. 72. ' (s) Taiikerville v. Fawcett, 1 
 
 (o) Oxford V. Rodney, 14 Ves. Cox, 237. 
 417. (<) Woods V. Huntingford, 3 
 
 (jp) Billinghurst v. JFa/ker, 2 Ves. 132. 
 Bro. C. C. 608. (m) Lawson v. L., 3 Bro. P. C. 
 
 (^q) Ancaster v. Maiier, 1 Bro. Towl. ed. 424. 
 C C. 454; Swainson v. S., 6 De (x) 17 & 18 Vicfc. c. 113. 
 
 'G. M. & G. 648. 
 
 c. 113, 8. 1.
 
 604 ADMINISTRATION GENERALLY. 
 
 "trary intention, the heir or devisee to whom such land 
 " or hereditaments shall descend or be devised shall not be 
 " entitled to haVe the mortgage debt discharged or satis- 
 " fied out of the personal estate or any other real estate of 
 "such person; but the land or hereditaments so charged 
 " shall as between the different persons claiming through. 
 " or under the deceased person be primarily liable to the 
 " payment of all mortgage debts with which the same shall 
 " be charged, every part thereof according to its value 
 " bearing a proportionate part of the mortgage debts, 
 "charged on the whole thereof: provided always that 
 " nothing herein contained shall affect or diminish any 
 " right of the mortgagee on such lands or hereditaments- 
 " to obtain full payment or satisfaction of his mortgage 
 " debt either out of the personal estate of the person so- 
 "dying as aforesaid or otherwise: provided also that 
 " nothing herein contained shall affect the rights of any 
 " person claiming under or by virtue of any will, deed or 
 " document already made or to be made before the 1st day 
 " of January, 1855 " (y). 
 Limits of its H^ It is to be observed with respect to this statute,. 
 
 operation. ni • i t i • • ■ pi 
 
 first, that it only applies to the administration ol the 
 estates of persons dying on or after the 1st of Januar)%. 
 1855. 
 
 (2.) Secondly, that it comprehends mortgages of free- 
 holds and copyholds (z), but not mortgages of leaseholds, 
 these not being hereditaments (a) . Of course It does not 
 affect mortgages of other personalty. 
 
 (3.) It only applies to cases in which there is a definite- 
 or specific charge on a specified estate (6), and it was held 
 not to apply to a Vendor's lien (c); nor does it apply to a 
 charge created by a partner on his separate real estate to 
 
 (y) Sect. 1. Ch. D. 665. 
 
 (z) Piper V. P., 1 J. & H. 91. (b) Uepworth v. Hill, 30 
 
 (a) Solomon v. S., 10 Jur. ^eav. 476. 
 
 N. S. 331; Eill v. Wormsley, 4 (c) Rood v. H., 6 W. R. 747.
 
 PAYMENT OF MORTGAGE DEBTS. 
 
 605 
 
 eecuro a debt of the partnership linn (d) ; nor where the 
 land is entailed (e). 
 
 (4.) It applies to equitable as well as to legal mort- 
 gages (/). 
 
 (5 .) It applies not only as between the real and personal 
 representatives of the deceased, but also in favour of the 
 Crown claiming the personalty for want of next of 
 kin ((7). 
 
 It will be seen that the general effect of the statute is to What 
 
 • ^ /! . 1 I p 1 • -1 amotmtB to 
 
 reverse the prima facie rule as to the fund primarily, contrary 
 liable. Before, the personalty was first applied, unless an "^^^^t^on. 
 intention to exonerate it was manifest. Since, the mort- 
 gaged estate is first applied, unless a contrary or other 
 intention is manifest. There has been much dispute as to 
 what under the Act would suffice to manifest a contrary 
 intention. In Woolstencroft v. W . (h), it was said by 
 Lord Campbell, that " the same rule should be obsei"ved 
 " with respect to exempting the mortgaged land from 
 " payment of the mortgage money as was before observed 
 "with respect to exempting the personal estate." That 
 was to say, " that as it was before necessary to show an 
 " intention not only to charge the realty, but also to exone- 
 " rate the personalty, so under the statute it would be 
 "necessary to show the reverse intention in both respects; 
 " not only to charge the personalty, but also to exonerate 
 "the mortgaged estate." This was dissented from in 
 E)U) V. Tatham (i), where it was held that a direction to 
 pay the debt out of another fund was sufficient to dis- 
 charge the mortgaged estate. Mere general directions 
 for the payment of debts were not considered suf- 
 ficient (Jc) ; but where the personal estate was bequeathed 
 
 (d) Ritson V. R., (1898) 1 Ch. (/) Pembroke v. Friend, 1 J. & 
 677; (1899) 1 Ch. 128; 65 L. J. H. 132. 
 
 Ch. 77; see Re Mawkes, Reeve v. (^) Bacre v. Patrickson, 1 Dr. 
 
 Haivkes, (1912) 2 Ch. 251; 81 & Sm. 186. 
 
 L. J. Ch. 641. (A) 2 De G. F. & J. 347. 
 
 (e) Anthony v. A., (1893) 3 (i) 11 W. R. 475; 4 Gift'. 181. 
 Ch. 498; 62 L. J. Ch. 1004. {k) Pembroke v. Frieml, sup. ; 
 
 < C'oote V, Lowndes, 10 Eq. 376.
 
 606 ADMINISTRATION GENERALLY. 
 
 upon trust to pay (1), or subject to the pa} muut of 
 debts (m), tho mortgaged estate was held to be exone- 
 rated. Where real estate, subject to a mortgage, was 
 specifically devised, and the will contained a direction 
 that the mortgage should be paid off out of the proceeds 
 of sale of other realty, and these proved insufficient, the- 
 mortgaged property was held to be only exonerated to- 
 the extent of the substituted property, and remained 
 charged with tho balance of the debt (n) . 
 
 3. The Amendment Acts(o). 
 
 30 & 31 Vict. In order to extend the operation of Locke King's Act,, 
 and to set at rest certain disputes which had arisen as to its 
 construction, the statute 30 & 31 Vict. c. 69, was passed, 
 enacting, first, that " 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 personal 
 " estate shall not be deemed to be a declaration of an 
 " intention contrary to or other than the rule established 
 " by the said Act (p), unless such contrary or other 
 " intention shall be further declared by words expressly 
 "or by necessary implication referring to all or some of 
 " the testator's debts or debt charged by w^ay of mortgage 
 "on any part of his real estate" (q). This, it will be 
 observed, adopts, with a slight modification, the dictum in 
 Woohtencroft v. W. (r), already quoted; and it follows 
 that now a mere direction to pay debts, or just debts, or 
 any similar expression not necessarily pointing to the 
 mortgage debts, are not sufficient to exonerate the mort- 
 gaged premises (s) . 
 
 (0 Moore v. M., 1 De G. J. & (1909) 1 Cli. 787; 78 L. J. Ch. 
 
 S. 602. 385. 
 
 (w) Mellish V. 7allins, 2 J. & (o) 30 & 31 Vict. c. 69; 40 & 
 
 EL. 19-1; and see Campbell v. C, 41 Vict. c. 34. 
 
 (1893) 2 Ch. 206; 62 L. J. Ch. {p) 17 & 18 Vict. c. 113. 
 
 594; WiUon v. W., (1908) 1 Ch. {q) S. 1. 
 
 839; 77 L. J. Ch. 564. (r) 2 De G. F. & J. 347. 
 
 («) Re Birch, Hunt v. Thorn, (s) Newmarch v. Storr, 9 Ch.
 
 PAYMENT OF MORTGAGE DEBTS. 607 
 
 St'condly, it extends the operation of tli(> Aet by enact- S. 2. 
 ing that " in this and the previous Act the word mortgage 
 " shall be deemed to extend to any lien for unpaid pur- 
 " chase-money upon any lands or hereditaments purchased 
 " b}'- a testator " (t). 
 
 It was soon observed that this statute made no mention Canes of 
 of the case of intestacy, and in such a case an heir-at-law omitted?" 
 was hold entitled to have a lien for unpaid purchase-money 
 discharged out of the personalty, so that he might take the 
 purchased estate free from incumbrance (u) . Leaseholds, 
 moreover, were still under the old law. 
 
 At length, by 40 & 41 Vict. c. 34, both these defects 40 & 41 Vict. 
 were remedied. The previous statutes were made to apply 
 to cases of testacy and intestacy alike, and to land or other 
 hereditaments of whatever tenure, by whicli words lease- 
 holds have been brought within the principle (i?). Under 
 this Act mortgaged lands include lands delivered in 
 execution under a writ of elegit to a testator's creditors (x) . 
 Estate duty is an equitable charge within the Act (y) . 
 
 Under the present law a direction that the personalty 
 shall be liable before the incumbered estate must in order 
 to be effectual unmistakeably refer to or describe the mort- 
 gage debt (z) . 
 
 T>. 12; Hossiter V. S.,U ib.S55 ; (x) Anthony v. A., (1892) 1 
 
 Bunlop V. B., 21 ih. 583; and Ch. 450; 61 L. J. Cli. 434. 
 
 see Colston v. Roberts^ 37 Ch. (y) Itr Bowerman, Porter v. 
 
 D. 677; 57 L. J. Ch. 943; Valqni Bowerman, (1908) 2 Ch. 340; 77 
 
 V. v., (1906) 1 Ch. 531; 75 L. J. L. J. Ch. 594. 
 
 Ch. 301. (z) Nelson v. Page, 7 Eq. 25; 
 
 (0 S. 2. Lewis V. L., 13 Eq. 219; Sach- 
 
 (u) Hardinff V. H., IS Eq.4:9S. ville v. Smyth, 11 Eq. 153; 
 
 (v) Drake v. Kershaw, 37 Ch. Elliott v. Bearsley, 16 Ch. D. 
 
 D. 674; 57 L. J. Ch. 599; Broo- 322; Hanninrjton v. True, 33 Ch. 
 
 man v. Withall, (1894) 3 Ch. D. 195; 55 L. J. Ch. 914; CZarA-e 
 
 558; 63 L. J. Ch. 855 ; Re Fraser, v. White, (1899) 1 Ch. 316; 68 
 
 Lowther v. Fraser, (1904) 1 Ch. L. J. Ch. 104. 
 
 726; 73 L. J. Ch. 481.
 
 608 
 
 ADMINISTRATION GENERALLY. 
 
 Principle of 
 marshalling, 
 
 Aldrich v. 
 Cooper. 
 
 V. The Marshalling of Assets. 
 
 I. As between b&)ieficiaries . 
 
 II. was remarked, when speaking of the order of the 
 administration o£ assets as regards the priorities between 
 the respective classes of beneficiaries, that whatever their 
 claims int&r se, these did not in the least prejudice a 
 creditor's rights and remedies against any portion of the 
 assets of the deceased. But it is clear that the order 
 of administration would be interfered with if a creditor 
 chose to resort to the assets in an order different from that 
 which the law prescribes as between the beneficiaries. If, 
 for instance, the creditor sought to recover his debt by an 
 execution against devised lands, instead of by a personal 
 judgment against the executor, the effect, unless counter- 
 acted by some means, would be to reduce the benefit con- 
 ferred upon a specific devisee, and to increase that of the 
 residuary legatee, whereas the law of administration dis- 
 tinctly prefers the former to the latter. 
 
 This tendency is counteracted by the application of the 
 principle known as marshalling. The principle, as laid 
 down in the leading case of Aldrich v. Cooper (a), is that 
 if one person has two funds to which he may resort for 
 the satisfaction of his demands, he shall not by his election 
 disappoint another person who has only one fund. If, 
 therefore, he chooses to resort to the only fund upon which 
 the other has a claim, that other is allowed to stand in his 
 place pro tanto against the fund to which otherwise he 
 could not have resorted. 
 
 In the case we have put the creditor has an option of 
 tw.0, or it may be several different funds, out of either or 
 any of which he may recover his debt. The beneficiaries 
 have each only his own particular fund available to him, 
 the heir the descended land, a specific legatee the property 
 specifically bequeathed, and so on. To restore, then, the 
 
 (a) 8 Ves. 382; 1 W. & T. L. C. 36, ed. 7.
 
 MARSHALLING OF ASSETS. 
 
 609 
 
 order of administration which the creditor's election has 
 disturbed, the law permits any beneficiary who is disap- 
 pointed by the creditor's actions to stand in the creditor's 
 place as against any fund which is in the order of adminis- 
 tration liable before his own. 
 
 It is not necessary, nor indeed is it possible, to illustrate 
 from cases all the possible forms of marshalling between 
 beneficiaries which this broad principle would authorise. 
 A few instances will serve as well as more. 
 
 We have seen that one of the last funds resorted to for Marshalling 
 the payment of debts in the order of administration is the naUa!^*^ ^ 
 paraphernalia of the widow. If the place ascribed to it in 
 the last section be correct, it would follow that, with the 
 exception of an appointee under a general power, the widow 
 might marshal the assets as against all the other benefi- 
 ciaries; in other words, if a creditor deprived her of her 
 paraphernalia, she could claim to stand in his place to the 
 extent of its value as against all the specific devisees and 
 legatees, and a fortiori against others of earlier liability, 
 such as the heir. We find instances in which she has suc- 
 cessfully claimed to marshal against general pecuniary 
 and even specific legatees (6). 
 
 Again, specific legatees and devisees, who stand on an For specific 
 equal footing at the head of all the beneficiaries claiming ^^g^ggg ^° 
 out of the testator's property, are entitled to marshal all 
 the assets real or personal not specifically bequeathed or 
 devised. If the creditor enforces a remedy at their ex- 
 pense, they can stand in his place as against every fund 
 antecedently liable. The cases above cited to establish 
 their position in the order of administration, apply 
 equally here. As between themselves specific legatees and 
 devisees (including, as we have shown, residuary devisees) 
 have no right to marshal, their liabilities being equal (c). 
 
 {b) Tipping v. T., 1 P. Wms. (c) Hasleivood v. Pope, 3 P. 
 
 730; Boi/nton v. Parkhurst, 1 Wms. 324; Emuss v. Smith, 2 De 
 Bro. C. C. 576; Tynt v. T., 2 P. G. & Sm. 722; Le Bas v. Herbert, 
 Wms. 542, (1894) 3 Ch. 250; 63 L. J. Ch. 
 
 662. 
 
 8. 39
 
 610 
 
 ADMINISTRATION GENERALLY. 
 
 For pecuniary- 
 legatees. 
 
 For devisee of 
 landscharged, 
 &c. 
 
 Pecuniary legatees, again, may marshal against lands 
 devised subject to debts {d)\ a fortiori against lands de- 
 scended to the heir (e), and no difference in this respect has 
 been made by Part I. of the Land Transfer Act, 1897 (/). 
 
 Similarly a devisee of lands charged with debts may 
 marshal against lands descended {g), lands devised on 
 trust for sale for payment of debts, and the general per- 
 sonal estate {g) ; while the heir can only marshal as 
 against the two last named funds (Ji), and devisee of lands 
 devised on trust for sale to pay debts only against the 
 general personalty. 
 
 Marshalliiitj- 
 as between 
 beneficiaries 
 themselves. 
 
 When not 
 applied. 
 
 Not only is the doctrine of marshalling applied as 
 between beneficiaries when one or more of them has or 
 have been disappointed by the election of a creditor; it is 
 also utilised as between the beneficiaries themselves. 
 
 Thus if a testator charges some legacies on real estate, 
 but not others, and the personal estate proves insufficient 
 to pay them all, the legacies charged on the real estate 
 will be thrown thereon in order to leave the personalty 
 for the payment of the other legacies. Or if the privileged 
 legatees choose to exhaust the personalty, the others may 
 pro tanto stand in their place as against the real estate 
 charged (^). The principle is clearly the same as in the 
 previous case, the legatees whose legacies are charged on 
 land having two funds at their disposal, the other legatees 
 only one. 
 
 The doctrine of marshalling, however, will not be em- 
 ployed so as to alter the effect of the rules for the oon- 
 
 (<£) Riekard v. Barrett, 3 K. & 
 J. 289. 
 
 (e) Sproule v. Prior, 8 Sim. 
 189; Galton v. Hancock, 2 Atk. 
 424; cf. Bate v. B., 43 Ch. D. 
 600; 59 L. J. Ch. 277 ; Re Stokes, 
 67 L. T. 223; Brothwood v. 
 Keelina, (1895) 2 Ch. 203; 64 
 L. J. Ch. 494. 
 
 (/) 60 & 61 Vict. 0. 65; Roberts 
 V. 7?., (1902) 2 Ch. 834; 72 L. J. 
 
 Ch. 38; Kempster v. K., (1906) 
 1 Ch. 446; 75 L. J. Ch. 286. 
 
 (gf) Harmood v. Oglander, 8 
 Ves. 106; Re Pullen, Parker v. 
 Piillen. (1910) 1 Ch. 564; 79 L. J. 
 Ch. 303. 
 
 (A) Hanhif v. Roberts, Amb. 
 128. 
 
 (i) Eanbij v. Roberts, Amb. 
 128; Bonner v. B., 13 Ves. 379.
 
 MARSHALLING OF ASSETS. 611 
 
 struction of legacies. Thus we shall see, when classifying 
 and describing the different species of legacies, that 
 legacies charged on land are interpreted by the rules of 
 common law, and accordingly they fail altogether if the 
 legatee dies before they are actually paid, while legacies 
 not so charged are interpreted on the principles of eccle- 
 siastical law, which considers them to vest on the death of 
 the testator, and so to bo transmissible to the legatee's 
 representatives if he dies before payment. If, then, the 
 legatee of a legacy charged on land dies before payment, 
 the Court will not by means of the doctrine of marshalling 
 throw this legacy on the personal estate so as to cause it to 
 vest for the benefit of the legatee's representatives (k).. 
 
 2. Marshalling hettveen creditors. 
 
 Questions of marshalling f oi'merly arose very frequently As between 
 ])etween creditors. As long as simple contract creditors ^^^ lorsony. 
 had no claim upon real assets unless charged with debts, 
 equity compelled specialty creditors, who could resort to 
 these assets, to seek their remedy thereout, so as to leave 
 the personal assets for the creditors by simple contract; or 
 if the specialty creditors exhausted the personalty the 
 simple contract creditors were suffered to stand in their 
 place against the real assets (I) ; but only to the extent to 
 which the personalty had been applied in payment of the 
 specialty debts. They were not entitled to have a larger 
 fund than thoy had originally (m). These forms of mar- 
 shalling are, however, no longer necessary. Neither can 
 any question now arise as to marshalling between secured 
 and unsecured creditors of any class, the rules of adminis- 
 tration being now, as we have seen, regulated by those of 
 bankruptcy. 
 
 (A;) Prowse v. Abingdon, 1 Atk. (J) Sagitnry v. Hijde, 1 Vera. 
 
 482; Pearce v. Lonian, 3 Ves. 455. 
 
 135; Henty v. Wrey, 21 Ch. D. (m) C'radock v. Piper, 15 Sim. 
 
 332; 53 L. J. Ch. 667. 301. 
 
 39 (2)
 
 612 
 
 ADMINISTRATION GENERALLY. 
 
 Limits of the 
 principle. 
 
 Marshalling 
 not applied 
 for charities. 
 
 3. Marshalling generally. 
 
 It is necessary before dismissing the subject of marshal- 
 ling to guard against a too comprehensive interpretation 
 of the principle. Thus it does not apply as between 
 creditors of different persons. If a person has a demand 
 against A. and B. jointly and severally, a creditor who 
 claims against B. alone cannot compel the former creditor 
 to apply tu A. alone so as to leave the property of B. free 
 for his separate debts, unless at least there is some oquit}' 
 between A. and B. themselves which would entitle B. 
 himself to a remody against A. (/z). Moreover, the prin- 
 ciple does not apply where its operation would prejudice 
 the creditor's rights, as, for instance, where he has not an 
 equal right over the two funds to which he may resort (o). 
 
 Again, there must be not only two claimants from the 
 same person, but one of them must have two funds belong- 
 ing to the same person to which he can resort. Thus, a 
 legatee in a will of a tenant in tail of lands could not throw 
 judgment creditors exclusively on those lands in exonera- 
 tion of the general assets, since the lands belong to the 
 heir, and are subject to debts only by virtue of statute (/?). 
 
 Again, we have elsewhere seen that the Court would 
 not prior to the Mortmain and Charitable Uses Act, 
 1891 (g), marshal assets in favour of charities; thus, if 
 real and personal estate, including chattels real, were given 
 on trust to sell for the payment of debts and legacies, and 
 the residue was bequeathed to a charity, the debts and 
 ordinary legacies were not thrown on the proceeds of land 
 so as to leave the pure personalty for the charity (r). 
 The same rule applied in the case of a simple pecuniary 
 legacy (s). But this rule did not in the least prevent the 
 testator from himself producing the effect of marshalling 
 
 (w) Exp. Kendall, 17 Ves. 520. 
 
 (o) Webb V. Smith, 30 Ch. D. 
 192. 
 
 (j)) Douglas v. Coohsey, 2 I. R. 
 Eq. 311; see also In re Inter- 
 national, S[o. Soc, 3 Ch. D. 476. 
 
 (<7) 54 & 55 Vict. 0. 73. 
 
 (r) Mogg v. Ilodges, 2 Ves. sr. 
 62. 
 
 (s) Ridges v. Morrison, 1 Cox, 
 180; Cherry v. Matt, 1 My. & 
 Cr. 123.
 
 MARSHALLING SECURITIES. 
 
 by directing the payment of his charitable legacies to be 
 made out of pure personalty (t), and such a direction was 
 carried into effect by allowing, if necessary, the charities 
 to stand against realty in the place of creditors who 
 exhausted the pure personalty (u). But by reason of the 
 last-mentioned statute these rules only apply now to the 
 wills of testators who died before August 5th, 1891, that 
 statute having enacted that as regards testators dying 
 after that day land may be devised for charitable purposes 
 (subject to its being sold within a year), and the moneys 
 secured on land shall not be deemed to be land within the 
 Mortmain Acts. 
 
 613 
 
 VI. Marshalling Securities. 
 
 The doctrine of marshalling is not confined to the ad- Marshalling 
 ministration of assets, and though not strictly a propos to 
 the present subject, this is a convenient place in which to 
 refer to its application as between the creditors of living 
 persons. Upon the same principle, that where one person 
 has two funds to resort to, and another has only one, the 
 former shall not disappoint the latter by depriving him of 
 his only resource, it has been laid down that if a person 
 who has two real estates mortgages both to one mortgagee, 
 and afterwards only one estate to a second mortgagee, the 
 Court will direct the first to take his satisfaction in the first 
 place out of that estate which is not in mortgage to the 
 second mortgagee, so as to leave the second estate, or as 
 much of it as is not required to complete the satisfaction of 
 the first, for the second mortgagee (x); and it is imma- 
 
 (0 Rohimon v. Geldard, 3 P., (1895) 2 Ch. 449; 65 L. J. 
 
 Mac. & G. 735; Ravenscroft v. Ch. 49. 
 
 Workman, 37 Ch. D. 637. {x) Lanoy v. Athol, 2 Atk. 
 
 (m) Att.-Grn. V. Mountmorris, 446; Flint v. Howard, (1893) 2 
 
 I Dick. 379; Miles v. Harrison, Ch. 54; 62 L. J. Ch. 804; Far- 
 
 9 Ch. 316; and see Broadbent v. rington v. Forrester, (1893) 2 Ch. 
 
 Barrmr. 31 Ch. D. 113; 55 L. .T. 461; 62 L. J. Ch. 996. 
 Ch. 103; Weffff-Pros.ser v. JF.-
 
 614 ADMINISTRATION GEN ERA LI. Y, 
 
 terial whether the second mortgagee has or has not notice 
 of the first mortgage {y). So if one of the estates is subject 
 to a portion, the person cntilicd to the portion may require 
 the mortgagee to resort to the other estate, or, if he does 
 not, may stand in his place against it {z) ; and the 
 principle has been applied even in favour of a voluntary 
 settlement (a). 
 Not to the Securities will not, however, be marshalled to the preju- 
 
 prejudiceof (-(^gg q£ third parties. For instance, if there is first a 
 
 tnird persons. ^ 
 
 mortgage of A. and B., and then a mortgage of B. only, 
 and then another mortgage of A. and B. to a third mort- 
 gagee without notice of the second mortgage, the securi- 
 ties will not be marshalled against the last mortgagee (&). 
 Secus, if he had notice at the time of his advance (c). 
 
 The principle is applied also in Admiralty cases — for 
 instance, where one person has a bond on a ship, freight 
 and cargo, and another only on the ship and freight, the 
 former will be required to resort primarily to the cargo, or 
 else the latter will be allowed to stand in his place against 
 it (d). 
 
 (y) Hughes v. Williams, 3 L. J. Ch. 415; Mallott v. Wilson, 
 
 Mac. & a. 690; Tidd v. Lister, (1903) 2 Ch. 494; 72 L. J. Ch. 
 
 10 Ha. 157; 3 De G. M. & G. 664. 
 
 857. (6) Barnes v. Racster, 1 Y. & 
 
 (z) Rancliffe v. Parkyns, 6 C. Ch. 401. 
 
 Dow, 216. (c) Re Mower's Trust, 8 Eq. 
 
 (a) Rales v. Cox, 32 Beav. 118; HO. 
 
 and soe Exp. Alston, 4 Ch. 168; («?) The Trident, 1 W. Rob. 
 
 Exp. Rnltinrj, 25 Ch. D. 148; 53 29; The Arab, 5 Jur. N. S. 417.
 
 LEGACIES. 
 
 615 
 
 Section II. — Matters relative to Administration. 
 
 I. Legacies. 
 
 1. Specific Legacies. 
 
 (1.) Effect of Wills Act (1 Vict. c. 26). 
 (2.) What constitutes a Specific Legacy. 
 (3.) Generally. 
 (4.) Ademption. 
 
 2. Demonstrative Legacies. 
 
 3. Time of Payment and Interest. 
 II. Donationes Mortis Causa. 
 
 1. Conditions of. 
 
 2. Place i?i Administration. 
 
 I. Legacies. 
 
 Under the head of Administration of Assets, it was 
 necessary to classify the different species of beneficial 
 interests which might be bestowed by a testator. From 
 this classification we are led to a further inquiry respect- 
 ing the different modes in which legacies may be bestowed, 
 in order to ascertain the particular characteristics of the 
 several species. Questions of this nature continually arise 
 on the construction of wills for the purposes of adminis- 
 tration, and it is therefore advisable to review the con- 
 sequences of the leading distinctions between the various 
 forms of legacies, notwithstanding that it is a matter 
 which would strictly come under the head of conveyancing 
 rather than that of equitable jurisprudence. 
 
 Legacies are either general, demonstrative, or specific. Legacies- 
 A general legacy is one which does not relate to any classified, 
 individual thing, or sum of money, as distinct from other ^ " '
 
 pared. 
 
 616 MATTERS RELATIVE TO ADMINISTRATION. 
 
 things of the same kind or other moneys: for instance, 
 a bequest of " a horse," of one thousand pounds, or one 
 thousand pounds stock. Such legacies are referred to in 
 the Wills Act (a) as " bequests of personal property 
 described in a general manner." 
 
 A demonstrative legacy is one in which, together with 
 words of general description, such as would create a general 
 legacy, additional words are used, pointing out a particular 
 fund out of which it is to be satisfied: for instance, a 
 bequest of " one thousand pounds out of my East India 
 Stock." 
 
 A specific legacy is a bequest of a particular thing or 
 sum of money as distinguished from all others of its kind 
 — for instance, a bequest of " my horse Dobbin," " the five 
 hundred pounds contained in my safe," or " the debt owing 
 to me by B." ^ 
 
 and com- These distinctions are of great importance. As we have 
 
 seen, in the administration of assets the order of the appli- 
 cation of a legacy depends upon whether it is considered 
 to be general or specific; so that upon the construction 
 put upon it in this respect, the question as to whether the 
 legatee shall enjoy it or not may wholly rest. In this 
 instance the position of a specific legatee is more advan- 
 tageous than that of a person whose legacy is general. 
 But in another respect the contrary is the case. Thus, if 
 after a testator has given a specific legacy, the thing 
 specifically given ceases to exist, or ceases to belong to the 
 testator, the legacy is considered to be adeemed; the 
 legatee entirely loses the benefit of it, and cannot claim' 
 compensation out of the general estate. We shall presently 
 inquire more precisely what will suffice to effect an ademp- 
 tion. A general legacy, on the contrary, is not liable to 
 ademption. It is payable out of any and every part of 
 the assets not required for payment of debts, and not 
 specifically disposed of; and all general legacies, in the 
 
 , . («) 1 Vict. c. 26, s. 27.
 
 LEGACIES. . 617 
 
 case of an insufficiency of assets, are payable ipari passu, 
 unless the testator has given to some a priority over 
 others (6). Legacies given in satisfaction of debts, or in 
 lieu of dower, which is tantamount to a debt where the 
 husband has at his death lands out of which the wife was 
 at his death entitled to dower, generally speaking have 
 priority over the general legacies (c) ; but there is no such 
 priority if the testator by his will disposes of the lands and 
 in effect bars the dower {d) . 
 
 1. Specific legacies. 
 
 (1 .) Before proceeding to consider in detail the different Before the 
 kinds of legacies, it is necessary to point out that the ® ^ ' 
 character of specific legacies has to some extent been 
 modified by the Wills Act (e) . Previously to that enact- 
 ment, a will was deemed to speak, so far as concerned the 
 property to which it related, as from the time at which it 
 was made. When, therefore, a testator made use of such 
 an expression as " my stock," or " my horses at B.," there 
 could be little doubt as to what his words referred to, and 
 such legacies were then always considered as specific (/) . 
 But by s. 24 of the above statute every will is to be con- Effect of the 
 strued, " with reference to the real and personal estate ■'^ct. 
 "comprised in it, to speak and take effect as if it had been 
 "executed immediately before the death of the testator." 
 Now, therefore, when the same expressions are used, in 
 order to treat them as specific, we must consider the tes- 
 tator's intention to have referred to a future state of things . 
 On the ground that this was not an admissible supposi- 
 tion, it was held by some judges that some stronger 
 indication than the mere use of a personal pronoun was 
 required under the new law to impress the legacy with a 
 
 (S) Wells V. Borwick, 17 Ch. p. 598. 
 D. 798; 50 L. J. Ch. 241. {d) Roper v. R., 24 W. E. 
 
 (c) 3 & 4 Will. rV. c. 105, 1013; Greenwood v. G., (1892) 2 
 
 8. 12; Stahlschmidt v. Lett, 1 Ch. 295; 61 L. J. Ch. 558. 
 Sm. & G. 421; but see Wedmore (e) 1 Vict. c. 26. 
 
 V. W., (1907) 2 Ch. 277; supra, (/) Kirbij y. Potter, iYea. US.
 
 618 MATTERS RELATIVE TO ADMINISTRATION. 
 
 specific character (^) . On the contrary, however, it has 
 been pointed out that before the Wills Act, it was 
 open to a testator to make his legacy act specifically as 
 from his death by means of such an expression as " all 
 the furniture which I shall be possessed of at my death," 
 and that the effect of the Act has been to import such a 
 clause into all wills. It has been held by high authority 
 that there is nothing unreasonable in this, and it may be 
 considered as established that the same words will suffice 
 now as did formerly, to effect a specific legacy {h). It is 
 true that these decisions confer upon the term " specific 
 legacy" a somewhat broader meaning than it formerly had. 
 Formerly a legacy was, in the absence of express words 
 postponing its application until the time of death, only 
 specific when it necessarily operated, if at all, upon some 
 definite and certain object, and it was liable to be adeemed 
 by any alienation of that object, or any substitution of 
 another for it, subsequent to the date of the will. Now 
 the general rule is the other way. Unless there is some 
 indication of intention that the legacy shall apply only to 
 an object belonging to the testator at the time of the will, 
 the legacy becomes, in fact, rather generic than specific. 
 When it comes to be carried into effect, it may happen to 
 apply to some object which was not at all within the con- 
 templation of the testator at the time that he made his 
 will, but which was subsequently acquired by him, either 
 in addition to or in substitution for objects of the same 
 genus which he had at the time of the will. Though 
 such a legacy maj', of course, fail, owing to there being no 
 property answering to it at the time of the death, it is not 
 liable to ademption in the same manner in which specific 
 legacies formerly were, since after the time at which it is 
 determined, there can be no dealing with the property 
 which will affect it. The cases cited, however, show that 
 
 (pf) Qoodlad v. Burnet, 1 K. & (A) Langdale v. Briggs, 8 De 
 
 J. 341. G. M. & G. 391; Bothamley v. 
 
 Sherson, 20 Eq. 304.
 
 LEGACIES. 619 
 
 this alteration of the character of the legacies does not 
 prevent legacies which were formerly considered specific 
 from being still treated as such. 
 
 But there is a distinction to be observed between such 
 generic legacies and a legacy which was manifestly in- 
 tended to refer to a distinct and particular object. If a 
 testator uses such words as " my stock," or " my shares," 
 or "my horses at B.," he may well be supposed to have 
 meant such stock, shares, or horses as he should be possessed 
 of at his death. But if he bequeaths a distinct object, such 
 as his " horse Dobbin," or his " shares in the A. company," 
 his intention clearly refers not to a genus, but to a certain 
 particular thing; and if, after making such a bequest, he 
 parts with that thing, the mere fact that before his death 
 he acquires another of the same kind which happens to be 
 called by the same name will not prevent the legacy from 
 being adeemed by the alienation. In such a case there is 
 considered to be a sufficient indication of contrary inten- 
 tion to prevent s. 24 of the Wills Act from saving the 
 legacy (^■). 
 
 (2.) What constitutes a specific legacy . 
 
 In considering what expressions are considered to give 
 rise to a specific legacy, it will be convenient to distinguish 
 between the different classes of objects which may be com- 
 prised in a specific bequest. 
 
 Specific legacies of valuable articles (in which money is Articles of 
 not here included) require but little exposition. There 
 can be rarely any question about a clause which bequeaths 
 a named horse, or a piece of furniture, or jewellery 
 definitely to a given person. Such a bequest may evi- 
 dently be for life only or absolutely. It will, however, 
 be construed as absolute, unless expressly limited to a 
 
 (i) Re Gibson, 2 Eq. 669; Ch. 1012; Re Gillins, Inglis v. 
 
 Dresser v. Gray, 36 Ch. D. 206; GUlins, (1909) 1 Ch. 345; 78 L. 
 
 56 L. J. Ch. 975; Re Portal and J. Ch. 244. 
 Lamb, 30 Ch. D. 60; 54 L. J.
 
 620 MATTERS RELATIVE TO ADMINISTRATION. 
 
 life interest. In the case of things quce usu consumuntur, 
 the nature of the gift generally prevents a gift over from 
 following a life interest, and even if it be expressed to 
 be for life, or for a limited period, it will be construed as 
 absolute (k). When such articles constitute the testator's 
 stock in trade, the case is different; here there is no incon- 
 sistency in directing successive interests; and such a 
 direction will be carried into effect (?). The distinction 
 must also be observed between a specific and a residuary 
 bequest of such things. In the latter case, if there are 
 successive interests, they will be protected by a sale of the 
 articles and payment of the interest of the proceeds to the 
 persons successively entitled (m) . It has, moreover, been 
 held that where the same clause includes a bequest of par- 
 ticular articles, and a gift of the residue, the whole clause 
 will be considered as residuary, and not as specific. Thus, 
 a gift of "all my horses and other personal estate" is 
 deemed residuary (72); and so, also, where the particular 
 expression came last; e.g., a gift of "all my personal 
 property, together with all my furniture, &c." (0); and 
 a gift of " all my personal estate and effects of which I 
 shall die possessed, which shall not consist of money or 
 securities for money," is still more clearly residuary, and 
 not specific (p). 
 Money. A bequcst of a sum of money in a certain bag (q), or 
 
 in the hands of a certain person (r), is specific. A bequest 
 even of " all my moneys " has been so considered (s). But 
 a bequest of a sum of money, followed by a direction as to 
 its application, e.g.," to purchase a ring," or " an annuity," 
 
 (k) Randall v. Russell, 3 Mer. (o) Fairer v. Park. 3 Ch. D. 
 
 195. 309. 
 
 (I) Phillips V. Seal, 32 Beav. (p) Robertson v. Broadbent, 8 
 
 25; Myers v. Washbrook, (1901) App. C. 872; 20 Ch. D. 676; 51 
 
 1 K. B. 360; 70 L. J. K. B. 357. L. J. Ch. 665. 
 
 (w) Hoive V. Ld. Dartmouth, (5') Lawson v. Stitch, 1 Atk. 
 
 7 Ves. 137, sup. p. 118; Staniar 508. 
 V. Eodgkinson, 73 L. J. Ch. 179. (r) Hinton v. Priske, 1 P. 
 
 («) Fielding v. Preston, 1 De Wms. 540. 
 G. & J. 438. («) Manning v. Purcell, 2 Sm. 
 
 & G-. 284; 7 De G. M. & G. 55.
 
 LEGACIES. 621 
 
 or "government securities," is general (i); as is also a 
 bequest of money " to be paid in cash " (m). A bequest of 
 " my ready money " has been held not to include money 
 on deposit at a bank (x) . On the other hand, money on 
 deposit has been held not to be a " pecuniary investment " 
 so as to pass under a bequest so described {y) . 
 
 A debt due to the testator may be specifically be- Debts, 
 queathed; and this may be effected either by a descrip- 
 tion of the sum owing, e.g., a bequest of " the money due 
 on A.'s bond " (z), or " the money now owing to me from 
 A." (a), or by a specific gift of the security itself, as of 
 "my note of £500"(&). And the bequest may be 
 sj)''cifically made for life only, as well as absolutely (c). 
 In the case, again, of a bequest of part of a debt to one 
 person, and the "remainder" or "residue" to another, 
 both legacies are specific (d). 
 
 A bequest of stock, or government securities described Stock. 
 as " my stock," or " my securities," is specific, or (since the 
 Wills Act), perhaps, more strictly speaking, generic in 
 character but specific in effect (e). The distinctions 
 drawn are sometimes fine (/) . A legacy of so much, 
 "part of my stock," has been considered as specific (^). 
 A bequest of a sum of money out of stock is, on the con- 
 trary, demonstrative (h) . If a legacy is expressed in 
 general terms to be of so much stock, &c., instead of as so 
 
 (t) Apreece v. A., 1 V. & B. (6) Drinkwater v. Falconer, 2 
 
 364; Hume v. Edwards, 3 Atk. Ves,. sr. 623; and see Callow v. 
 
 693; Gibbons v. HUls, 1 Dick. C, 42 Ch. D. 550; 58 L. J. Ch. 
 
 324. 698,. 
 
 (w) Richards v. R., 9 Pri. 226. (o) Aihburner v. Maoguire, 2 
 
 Ix) Re Wheeler, EanTcinson v. Bro,. C. C. 108. 
 
 Jfayter, (1904) 2 Ch. 66; 73 L. (^) Ford v. Fleming, 2 P. 
 
 J. Ch. 576. Wms. 469. 
 
 (y) Re Price, Price \. Newton, (e) Barton v. CooTce, 5 Ves. 
 
 (1905) 2 Ch. 55; 74 L. J. Ch. 461; Bothnmley v. Sherson, 20 
 
 437. Eq. 304; Callow v. C, sup. 
 
 (z) Bavies v. Morgan, 1 Beav. (/) See, e.g., Mytton v. M., 19 
 
 405; and see Re Derbyshire, Eq. 30; Pra<< v. P., (1894) 1 Ch. 
 
 Webb V. Derbyshire, (1906) 1 Ch. 491; 63 L,. J. Ch. 484. 
 
 135; 75 L. J. Ch. 95. (g) Kirby v. Potter, iYes,. 570. 
 
 (a) Ellis V. Walker, Amb. 309. (A) Ibid.; Deane v. Teste, 6 
 
 Ves. 146, 152.
 
 622 
 
 MATTERS RELATIVE TO ADMINISTRATION. 
 
 much money, it will not be deemed specific merely because 
 the testator happens to have stock, &c. of a corresponding 
 description, since his intention might have been that his 
 executor should purchase such stocks out of his general 
 personalty (^) ; but where there was a bequest of named 
 stock in general terms, and coupled with it a direction for 
 a sale of it, and the testator possessed some of the stock 
 named, it was held that a specific bequest must have been 
 intended (k). 
 Chattels real. A bequest of a lease, or of a rent out of a term of years 
 is specific (Z). On the contrary, a gift not of an annual, 
 but of a gross sum, payable out of a term, or out of real 
 estate, is demonstrative (w) . And, again, this must be 
 distinguished from a mere direction to pay a legacy out 
 of a particular fund or estate; in this case the fund or land 
 alone is liable (n) . There may, also, be a specific gift of 
 the proceeds of sale of land, whether freehold or lease- 
 hold (o), or of chattels (p). 
 
 (3.) General characteristics. 
 
 Specific A gift of a specific legacy carries with it everything 
 
 everythin^'^'' incident to the subject-matter of the gift; such, for in- 
 incident to it. stance, as bonuses declared after the testator's death upon 
 beuefits shares specifically bequeathed (g). Bonuses declared in 
 
 his lifetime, but payable after his death, do not, however, 
 go to the legatee (r) . Dividends, also, declared after his 
 death, are considered as income, and go to the legatee, 
 
 (0 Partrldfje v. P., ca. t. Talb. 
 226; Purse v. ISmiplin, 1 Atk. 
 415; Dresser v. Gray, 36 Ch. D. 
 205; 56 L. J. Ch. 975. 
 
 (Ji) Ashton V. A., 3 P. Wms. 
 384; and see Shaw v. Marten, 
 (1901) 1 Ch. 370; 70 L. J. Ch. 
 354; (1902) 1 Ch,. 314. 
 
 (I) Long V. Short, 1 P. Wms. 
 403. 
 
 (»w) Savile V. BlacTcet, 1 P. 
 Wms. 778. 
 
 (w) Spurway v. Glynn, 9 Ves. 
 483,. 
 
 (o) Page v. Leapingwell, 18 
 Ves. 463; Walker v. Laxton, 1 
 Y. & J. 557. 
 
 (?j) Raikes v. R., 45 Ch. D. 
 66; 59 L. J. Ch. 573. 
 
 (^7) Maclaren v. Stainton, 3 De 
 G. F. & J. 202; Wright v. 
 Ttickett, 1 J. & H. 2GG. 
 
 (r) Lock V. V enables, 27 Beav. 
 598; Be Gendre v. Kent, 4 Eq. 
 283.
 
 LEGACIES. 
 
 623 
 
 notwithstanding that they may have heen earned in the 
 testator's lifetime (s). 
 
 Conversely, liabilities attaching to the subject-matter of and liabilities, 
 the gift, if arising after the testator's death, are payable 
 by the specific legatee (t). But payments necessary to 
 complete the testator's interest in the subject-matter of 
 the gift must be distinguished from such liabilities. Such 
 payments are, in the absence of an indication of a contrary 
 intention, payable out of the general personal estate (u). 
 
 When there is an apparently specific bequest, parol 
 evidence is admissible to show what property there is 
 answering to the description of it (x), and generally to 
 determine whether a legacy is general or specific (i/) . 
 
 (4.) Ademption of specific legacies. 
 
 In speaking of the ademption of specific legacies it Two uses of , 
 is necessary to distinguish between this matter and the. the word 
 
 •^ ® _ _ " ademp- 
 
 ademption of general legacies to children, &c. by portions tion." 
 or subsequent gifts given in satisfaction thereof during the 
 testator's lifetime. The term ademption is indeed applied 
 in both cases; but that there is a marked distinction 
 between the two is sufficiently obvious. In the latter sense 
 many general legacies are liable to ademption, and the 
 principle rests on the presumed intention of the tes- 
 tator (z). In the case of the ademption of specific 
 legacies, on the contrary, the intention or animus 
 adimendi is immaterial (a). The question depends on the 
 construction of the will (b). 
 
 (») Bates V,. MacMnlei/, 31 («) Armstrong v. Burnet, 20 
 
 Beav. 280; and see Malum v. Beav. 424. 
 
 mtchens, (1894) 3 Ch. 578; 63 (rr) Eorv^oody. Griffith, 4 De 
 
 L. J. Ch. 797; Armitage v. G. M. & G. 700. 
 
 Garnett, (1893) 3 Ch. 337; 63 (y) Att.-G. v. Grote, 2 E. & 
 
 L. J. Ch. 110; West v. Roberts, M. 690. 
 
 (1909) 2 Ch. 180 : 78 L. J. Ch. 559. (z) See Ex'p, Bye, 18 Ves. 140. 
 
 it') Addams v. Ferick, 26 Beav. (a) Stanley v. Botter, 2 Cox, 
 
 384; Be Bearce, Crutchley v. 182. 
 
 TFe^^s, (1909) 1 Ch. 819; 78L. J. (b) Re JDowsett, Bowsett v. 
 
 Ch. 484. MeaUn, (1901) 1 Ch. 398; 70 L.
 
 624 
 
 MATTERS RELATIVE TO ADMINISTRATION. 
 
 Non-existence 
 of subject- 
 matter. 
 
 Removal of 
 subject- 
 matter. 
 
 Change of 
 form. 
 
 The most conclusive form of the ademption of a specific 
 legacy is where the thing expressed to be specifically 
 bequeathed ceases to be in existence before the testator's 
 death; if, for instance, a house specifically bequeathed has 
 been destroyed by fire, or a policy of assurance has been 
 suffered to lapse (6). In the former case, notwithstanding 
 that the house may have been insured, the specific bequest 
 will not operate upon the insurance money, which will fall 
 into the residuary estate (c). Similarly, if a debt is speci- 
 fically bequeathed, and is afterwards received by tlie 
 testator in his lifetime, the bequest is adeemed {d), and 
 this notwithstanding that the money when received is 
 again laid out in a similar manner; as, for instance, when 
 a mortgage debt is paid off, and the money again invested 
 on mortgage (e). And it makes no difference whether the 
 debt is paid voluntarily or compulsorily (/). 
 
 Ademption may, moreover, be occasioned by less con- 
 clusive changes in the property than these. Thus, a 
 specific legacy of goods, described as being in a particular 
 place, will be adeemed by their removal to another 
 place {g), unless the removal is only temporary or acci- 
 dental; as, for instance, for purposes of repair, or by 
 reason of a fire {h). Removal is of no effect unless the 
 words of the bequest have evident reference to a given 
 locality (^). 
 
 Again, where stock which has been specifically be- 
 queathed has been subsequently sold out by the testator, 
 the bequest is thereby adeemed (fc) ; and this will be the 
 
 J. Ch. 149; Re Moses, Bedding- 
 ton V. B., (1902) 1 Ch. 100; 71 
 L. J. Ch. 101. 
 
 (6) Stanley v. Potter, 2 Cox, 
 182. 
 
 (c) Durham v. Friend, 5 DeG. 
 & Sm. 343; and see Re Cloicex, 
 (1893) 1 Ch. 214; Evans v. 
 PoxvcU, (1909) 1 Ch. 784; 78 L. 
 J. Ch. 441. 
 
 (d) Rider v. Wager, 2 P. Wms. 
 329; Barker v. Rnvnrr. 5 Madd. 
 208; 2 Russ. 122. 
 
 (e) Gardner v. Hatton, 6 Sim. 
 93. 
 
 (/) Ashburner v. Macguire, 2 
 Bro. C. C. 108; Stanley v. Potter, 
 sup. 
 
 (g) Green v. Symonds, 1 Bro. 
 C. C. 129, n. 
 
 (h) Brooke v. Warwick, 2 De 
 G. & Sm. 425; Chapman v. Harf, 
 1 Ves. sr. 271; Raivlinson v. R., 
 3 Ch. D. 302. 
 
 (0 Norris v. N., 2 Coll. 719. 
 
 Ik) Lee v. L., 27 L, J. Ch. 824.
 
 LEGACIES. H^'5 
 
 caso even if the money realised is again laid out in similar 
 stock (I). A mere change in the name or form of the 
 stock — ^for instance, by a parliamentary conversion — will 
 not, however, cause an ademption {m), nor will a transfer 
 thereof from trustees to the testator {n). But where a 
 testator bequeathed " money invested in the Lambeth 
 Waterworks Co.," and before his death this stock had been 
 converted into Metropolitan Water Board Stock, it was 
 held that this latter stock did not pass (o). Extrinsic 
 evidence is admissible to show what had been the dealing 
 of a testator with the subject-matter of the bequest ante- 
 cedently to the will, in a case in which there has been a 
 misdescription of shares and the shares referred to have 
 been replaced by others (p) . 
 
 Ademption, moreover, will not be affected by any deal- 
 ing with the stock unknown to the testator or without his 
 authority (g). So if he becomes insane, the dealings of 
 others with his property will not as a rule be suffered to 
 affect bequests which he may have made (r). But a sale 
 of personalty by order of the Court in Lunacy, without 
 any reservation of the rights of legatees, has been held to 
 effect an ademption of a specific bequest (s). 
 
 2. Demonstrative legacies. 
 
 A demonstrative legacy so far resembles a specific legacy Characteris- 
 that it will not abate with the general legacies until the ^^^' 
 
 (I) In re Gibson, 2 Eq. 669 ; 341 ; and compare Re Leeming, 
 
 Luard V. Lane, 14 Ch. D. 856; Turner v. Leeming, (1912) 1 Ch. 
 
 but see Re Johnstone's Settle- 828; 81 L. J. Ch. 453. 
 
 mentfib.lQ^. (p) Re Jameson, King v. Winn, 
 
 (m) Partridge V. P. ,C2i.i.Tdlh. (1908) 2 Ch. Ill; 77 L. J. Ch. 
 
 226. See also Murray V. He7-ring, 729. 
 
 (1908) 2 Ch. 493; 77 L. J. Ch. (q) Shaftesbury v. S., 2 Vem. 
 
 665; Re Clifford, Mallam v. 1^1, l^S,-a. 2; Basan y. Brandon, 
 
 McFie, (1912) 1 Ch. 29; 81 L. J. 8 Sim. 171. 
 
 Ch, 220. (r) Taylor v. T., 10 Ha. 475. 
 
 (m) Bingwell v. Ashew, 1 Cox, (s) Jones v. Green, 5 Eq. 555; 
 
 427. ' Freer v. F., 22 Ch. D. 622; 52 
 
 (o) Re Slater, Slater v. S., L. J. Ch. 301 ; but see Anderson 
 
 (1906) 2 Ch. 480; 75 L. J. Ch. v. London City Mission, (1894) 2 
 
 6G0; (1907) 1 Ch. 665; see Ch. 577; 63 L. J. Ch. 772. 
 
 Goodlad v. Burnett, 1 K. & J. , 
 
 s. , 40
 
 626 
 
 MATTERS RELATIVE TO ADMINISTRATION. 
 
 Jjegacies only 
 apparently 
 demonstra- 
 tive. 
 
 Specific 
 legacies. 
 
 General 
 leo:acies. 
 
 fund out of which it is payable is exhausted; it so far 
 resembles a general legacy that it will not be liable to 
 ademption by the alienation or non-existence of the pro- 
 perty indicated for its payment. It is considered that the 
 primary object is the gift of the legacy, the indication of 
 the particular fund being a matter subsidiary or directory, 
 and not of the essence of the gift (t). The testator may, 
 nevertheless, show such an intention that a legacy shall be 
 paid out of one fund only, as effectually to make its pay- 
 ment conditional upon the existence of that fund (u). 
 
 Attention must be called to siome cases in which a legacy 
 apparently demonstrative is in effect specific. A bequest 
 of money out of stock, as of " £1,000 out of my Three per 
 Cents.," is demonstrative; but, as we have seen, a bequest 
 of "£1,000 stock, part of my Three per Cent, stock," is 
 deemed to be specific (x); and similarly, a bequest of one 
 article or more out of a number of the same kind is 
 specific, and gives the legatee a right to select (y). 
 
 3. Tirrie of payment of legacies, and interest. 
 
 There are also important distinctions between the dif- 
 ferent kinds of legacies as regards the time at which they 
 are payable, from which time interest runs thereon. 
 
 Specific legacies are payable and interest runs thereon 
 from the death of the testator, from which time also, as 
 we have seen, dividends accrue to the legatee (z). The 
 case of a specific bequest of a reversionary interest is 
 evidently an exception, there being no claim then until 
 the reversion falls into possession. 
 
 General legacies, on the contrary, are not, unless the 
 testator expressly fixes a time for their payment, payable 
 until the expiration of twelve months after his decease, and 
 
 (t) Savile v. Blacket, 1 P. Wma. 
 777; Vickers v. Pomid, 6 H. L. 
 885. 
 
 (m) Coard v. Holderness, 22 
 Eeav. 391. 
 
 (a;) Kirhy v. Potter, 4 Vea. 748. 
 
 (y) Richards v. R., 9 Pri. 219; 
 Jacques v. Chambers, 2 Coll. 435. 
 
 (z) Barrington v. Tristram, 6 
 Ves. 345; Bristow v. B., 5 Beav. 
 289.
 
 LEGACIES. ^2^ 
 
 accordingly, as a rule, they only caiTy interest from that 
 time (a). But the testator may by expressed intention 
 ■accelerate or postpone their payment (6), and in these 
 ■cases interest is payable from the directed time of pay- 
 anent (c). 
 
 There are some exceptions to this rule. Thus, where a Exceptional 
 legacy is given in satisfaction for a debt, it is payable at *'*^®^' 
 And carries interest from the death {d) ; but not so a legacy 
 given to a widow in lieu of dower or freebench, as to which 
 Bhe is put to her election (e). And where a parent, or 
 person in loco parentis, bestows a legacy upon an infant, 
 the Court will generally give interest from the death by 
 ■way of maintenance (/), notwithstanding that the will 
 contains a provision for the maintenance of the child out 
 ■of the income of the legacy or out of the income of a share 
 of residue given to him equally with the other children. 
 •Sect. 43 of the Conveyancing Act, 1881, must be treated as 
 incorporated with every will to which it is applicable (g) . 
 But where an entirely separate fund for maintenance is 
 provided, the case is taken out of the exception, and falls 
 within the general rule (h) ; and so where the child is 
 •adult (i). A legacy charged upon real property is also 
 payable at the testator's death, and from that time interest 
 runs (k); and if given subject to a life interest, interest is 
 payable from the death of the tenant for life (I); but not 
 so where real property is devised upon trust for conversion 
 and payment of legacies out of the proceeds; in this case 
 
 (a) Child V. Elsworth, 2 De G. Y. & C. Ch. 372. 
 
 M. & G. 679; Wood v. Penoyre, {g) JFoodroff e v.'Moodt/, (1S95) 
 
 13 Ves. 333. 1 Ch. 101; 64 L. J. Ch. 174. 
 
 (6) Be Tinkler's Estate, 20 Eq. {h) Re Rouse's Estate, 9 Ha. 
 
 456; Lordv. L.,2 Ch. 782; Wal- 649; Re George, 5 Ch. D. 837; 
 
 ford V. W., (1912) A. C. 658; Re West, Westhead v. Aspland, 
 
 81 L. J. Ch. 828. (1913) 2 Ch. 345; 82 L. J. Ch. 
 
 (c) Londeshorough v. Somer- 488. 
 
 ville, 19 Beav. 295. (i) Raven v. Waite, 1 Swanst. 
 
 (ff) Clark V. Sewell, 3 Atk. 99. 553. 
 
 (e) Bignold v. B., 45 Ch. D. {k) Maxwell v. Wettcnhall, 2 
 
 496; 59 L. J. Ch. 737. P. Wms. 26. 
 
 (/) Beckford v. Tobin, 1 Ves. Q) Waters v. Boxer, 42 Ch. D. 
 
 .«r. 310; Wilson v. Maddison, 2 517; 58 L. J. Ch. 750. 
 
 40 (2)
 
 628 
 
 MATTERS RELATIVE TO ADMINISTRATION. 
 
 Demonstra- 
 tive legacies. 
 
 Rate of 
 interest. 
 
 it appears that the general rule applies (m). The distincr 
 tion seems to be based on the general principle elsewhere 
 observed (p. 202), that whereas purely personal legacies 
 follow the rules of civil law, as expounded by the ecclesias- 
 tical courts, legacies charged on land are treated according' 
 to the doctrines of the common law. 
 
 A demonstrative legacy, as regards the time of payment 
 and the accrual of interest, resembles a general and not a 
 specific legacy (n). 
 
 The rate of interest usually charged is four per cent, {o)^ 
 and compound interest will not be paid unless directed 
 by the will (p), or there is a breach of trust by the 
 executor {q). 
 
 II. Donationes Mortis Causa. 
 
 Definition. English equity has derived from the Roman law a mode 
 
 of disposition intermediate in character between a specific 
 legacy and a gift inter vivos ; namely, the donatio mortis 
 causa, and in doing so it has in the main also adopted the 
 principles by which these gifts were regulated by Roman 
 law. The purpose of a definition of the donatio mortis 
 causa is best served by stating the necessary conditions 
 of such a gift. In doing so we shall indicate its character 
 fully, by pointing out in what respects it resembles, and 
 in what it differs from a legacy on the one hand, and a 
 gift inter vivos on the other hand. 
 
 1. Conditions of donatio mortis causa. 
 
 Must be made (1.) As in Roman law, so in English, a donatio mortis 
 ^ath.^ (^(^us^ is only valid when made in near contemplation of 
 
 (m) Turner v. Btick, 18 Eq. 
 301; Whittnker v. W., 21 Ch. D. 
 657; 51 L. J. Ch. 737. 
 
 (w) Mullins V. Smith, 1 Dr. & 
 S. 210, per Kindersley, V.-C; 
 Walford v. W., sup: 
 
 (o) Wood V. Briant, 2 Atk. 523. 
 
 {p) Arnold v. A., 2 My. & K. 
 365. 
 
 (5') Raphael v. Boehm, 11 Ves, 
 92; 13 ib. 590.
 
 DONATIONES MOETIS CAUSA. 629 
 
 death (r). It is not, it seems, necessary for the donor 
 absolutely to express the gift to be made in close expecta- 
 tion of death; this may be presumed from the circum- 
 stances of the case, if the donor is evidently and to his 
 own knowledge near death (s). 
 
 This condition is evidently implied in the name itself, 
 and it distinguishes the donatio mortis causa from both a 
 legacy and a gift inter vivas. 
 
 (2.) The gift must be conditioned to take complete Mustbecom- 
 effect only after the donor's death (i); but in this case, as ^^®*j^°°^^ ** 
 before, the condition need not be expressly declared. If 
 the gift is made in evident contemplation of death, the 
 law will imply an intention that it is to be absolute only 
 ijQ the event of death {u). 
 
 There were two modes of donatio mortis causa recog- Contrast in 
 nised at Rome; in one, the subject of the gift was given -^^^^"^ ^'^• 
 on condition that it should become the property of the 
 donee in the event of the donor's death; in the other, the 
 subject of the gift became at once the property of the 
 donee, but on condition that he should return it to the 
 donor in the event of his recovery. English equity recog- 
 nises only the former of these modes, a gift under a sus- 
 pensive condition. Such a gift is in this respect analogous 
 to a legacy, being revocable during the donor's life, and 
 is accordingly contrasted with a donatio inter vivos. The 
 fact that a legacy is given to a person of the same amount 
 as a domatio mortis causa previously made to him, is not of 
 itself sufficient to constitute the legacy a satisfaction of 
 the donatio. The testator's intention must be gathered 
 from a consideration of all the circumstances {x). 
 
 (3.) The gift must be completed by a delivery of the Deliveiy 
 subject-matter thereof {y). But in the application of this necessary. 
 
 (r) Inst. II., 7, 1; Buffield v. (u) Gardner v. Parker, ZM^aAA. 
 
 Elwes, 1 Bli. N. S. 530; Edioards 184. 
 
 ■V. Jones, 1 My. & Cr. 233. {x) Hudson v. Spencer, (1910) 
 
 (s) Miller v. M., 3 P. Wms. 2 Ch. 285; 79 L. J. Ch. 506. 
 
 S56; Laivson v. L., 1 P. WmiS. (y) Tate v. Hilbert, 2 Ves. jr. 
 
 441. 120; 4 Bro. C. C. 286. 
 
 (<) Edwards v. Joyies, swp.
 
 MATTERS RELATIVE TO ADMINISTRATION. 
 
 Property 
 incapable of 
 being given 
 mortis causa. 
 
 rule, it must bo observed that a clear constructive delivery 
 is deemed tantamount to actual delivery. Thus, delivery 
 to an agent of the donee or to some one on his behalf will 
 suffice {z). And an antecedent delivery to the donee, in 
 the first instance as a bailee, was held to satisfy the condi- 
 tion, the character of the possession having changed before 
 the death (a). So also will a delivery by an agent of the 
 donor at the donor's request; but not a delivery by the^ 
 donor to his own agent (&). Again, a delivery by symbol 
 is equivalent to an actual delivery; thus, for instance, the 
 delivery of the key of a box with intent to give the 
 contents is equivalent to a delivery of its contents (c): 
 but such a delivery must be distinguished from that of the 
 delivery of a key to a person for some other purpose, as to 
 a housekeeper, for the purpose of safe custody (d). The 
 case of negotiable instruments, which are in some sense, 
 symbols of choses in action, rests on a different principle,, 
 which will be presently considered. 
 
 In this respect a donatio mortis causa is contrasted 
 both with a legacy and with a gift inter vivos, which may 
 be effected by deed without delivery. A peculiar effect 
 of this condition, acting in connexion with the equally 
 essential condition that the gift is to take effect absolutely 
 only in case of death, has been to render some kinds of 
 property seemingly incapable of being the subject of a 
 donatio mortis causa. A chose in action may, indeed, be 
 generally effectually given by the delivery of the means 
 of its enforcement; thus, a bond (e), a mortgage deed (/), 
 a promissory note or cheque payable to the donor or hia 
 
 {z) Moore v. Barton, 4 De G. 
 & Sm. 517. 
 
 («) Cain V. Moon, (1896) 2 Q. 
 B. 283; 65 L. J. Q. B. 587; 
 Winter v. W., 4 L. T. N. S. 
 639. 
 
 (6) Farquharson v. Cave, 2 
 Coll. 356, 367. 
 
 (c) Jones V. Selby, Free. Ch. 
 300; Re Weston, Bartholomew v. 
 
 3Ienzies, (1902) 1 Ch. 680; but 
 see Robson v. Hamiltoti, (1891) 2 
 Ch. 559; 60 L. J. Ch. 851. 
 
 (tZ) Trimmer v. Danby, 25 L, 
 J. Ch. 424; Hawkins v. Blewitt, 
 2 Esp. 663. 
 
 (e) Snelgrove v. Bailey, 2 Atk. 
 214. 
 
 (/) Bufield V. Elwes, 1 Bli. 
 N. S. 497.
 
 DONATION ES MORTIS CAUSA. 
 
 631 
 
 order, though not endorsee! {g), and other similar instru- 
 ments Qi), may be transferred by donatio mortis causa. 
 Money on deposit at a savings bank ma}^ be given by 
 delivery of the bank book, but not so money invested for 
 a depositor by a bank in Local Loans Stock (^). But 
 it has been considered that the donor's cheque cannot be Cheque, &c. 
 validly so given, a cheque being nothing more than an 
 order for the delivery of a certain sum of money, which 
 order is revoked by the death of the drawer. The argu- 
 ment would be that a cheque is not itself a delivery of the 
 money, and that from its nature it cannot be made con-t 
 ditional on death (1{). But where a banker's deposit note 
 was given with a form of cheque endorsed and filled in, 
 the donatio was sustained, the intention to give the deposit 
 note not being defeated by the fact of the indorsement {I). 
 On similar reasoning, it has been held that a delivery o£ 
 receipts for annuities (m), or of railway scrip (n), will 
 not effect a donatio mortis causa. 
 
 Where a cheque given is in fact actually negotiated 
 before the death, the gift has been held to be complete 
 and effectual (o), but in that case it would seem that the 
 feature of revocability which is essential to donationes 
 'mortis causa is wanting, and that, therefore, if such a gift 
 is sustainable at all it must be rather as a transaction inter 
 vivos than as one of the class we are now considering. 
 
 A donatio mortis causa may not only be given abso- Trust created, 
 lutely, but may be made subject to a trust for a third 
 
 (ff) Veal V. v., 27 Beav. 303; 
 Austin V. Mead, 15 Ch. D. 651; 
 50 L. J. Ch. 30; Clement v. 
 Cheestmin, 27 Ch. D. 631; 54 
 L. J. Ch. 158. 
 
 (A) Moore v. Barton, 4 De G. 
 & Sm. 517; Amis v. Witt, 33 
 Beav. 619; JRe Weston, Bartho- 
 lomew V. Menzies, (1902) 1 Ch. 
 680; 71 L. J. Ch. 343. 
 
 (i) Re Andrews, Andrews v. 
 A., (1902) 2 Ch. 394; 71 L. J. 
 Ch. 676. 
 
 (A) Tate V. Hubert, 2 Ves. jr. 
 
 120; Hewitt v. Kaije, 6 Eq. 198 
 He Beak's Estate, 13 Eq. 489. 
 Austin V. Mead, sup. ; He Beau- 
 mont, Beaumont v. EwbanJe^ 
 (1902) 1 Ch. 889; 71 L. J. Ch 
 478. 
 
 (I) Buffin V. B., 44 Ch. D 
 76; 59 L. J. Ch. 420. 
 
 (w) Ward V. Turner, 2 Ves, 
 sr. 431; 1 W. & T. L. C. 390. 
 
 (w) Moore v. M., 18 Eq. 474. 
 
 (o) Rolls V. Pearce, 5 Ch. D 
 730.
 
 632 
 
 MATTERS RELATIVE TO ADMINISTRATION. 
 
 Imperfect 
 
 donationes 
 mortis cansd. 
 
 person (p), or coupled with a trust for some particular 
 purpose, or charged with a condition (q). 
 
 (4.) When speaking of voluntary gifts inter vivos (r), 
 it was pointed out that it was open to a donor to confer a 
 benefit either by a direct transfer of his property, or by the 
 creation of a trust in favour of the intended beneficiary, 
 and it was seen that an imperfect attempt to effect a 
 direct gift would not be assisted by considering it as a. 
 declaration of trust. A similar principle applies to dona- 
 tiones mortis causa. The donor may if he chooses bequeath 
 his property by a testamentary instrument, or he may in 
 most cases bestow it by a donatio mortis causa. If he 
 chooses to adopt the former method the law imposes on him 
 certain conditions, compliance with which is necessaj'y to 
 the validity of the bequest. Thus, there must be a written, 
 instrument duly witnessed and in all respects conformable 
 to the Wills Act (s). If, on the contrary, he elects to 
 make a donatio mortis causa, the Wills Act indeed will 
 not affect him (/), but he must comply with the conditions 
 above laid down; particularly he must actually or con- 
 structively deliver the property to the donee or to some 
 one for him. But as in the case of a gift inter vivos, so in 
 this case, his attempts to bestow his property will be futile 
 unless they amount to one or other of these alternatives. 
 An attempt to make a donatio mortis causa which is def ec-' 
 tive from there being no delivery of the property, will not 
 be suffered to take effect as a will. However clear the 
 intention may be, and whether expressed by parol or in 
 writing, unless it complies with the Wills Act so as in 
 fact to be an actual testamentary instrument, it will not 
 be enforced {u). On the other hand, if the donor clearly 
 
 (jy) Drury v. Smith, 1 P. 
 Wms. 405. 
 
 (5^) Blount V. Barrow, 4 Bro. 
 C. 0. 71; HUls V. H., 8 M. & W. 
 401. 
 
 (r) Sup. p. 57. 
 
 Is) 1 Vict. c. 26. 
 
 (<) Moore v. Barton, sup. 
 
 (u) Rigden v. Vallier, 2 Ves. 
 sr. 258; Tate v. Hilbert, 2 Ves. 
 jr. 120; Solicitor to the Treasury 
 V. Lewis, (1900) 2 Ch. 812; 69 
 L. J. Ch. 833.
 
 DONATIONES MOETIS CAUSA. 63^ 
 
 intends to make a testamentary gift, but omits the neces- 
 sary formalities, his intention will not be carried into 
 effect by treating his attempt as a donatio mortis causa, 
 even though there may have been an actual delivery (x). 
 
 It has, indeed, been sought to aid a donee by setting up 
 as a declaration of trust an instrument which is clearly 
 void for informality as a will («/). But it is clear, both on 
 principle and on authority, that such an attempt cannot 
 succeed. W© have seen this decidedly established as 
 regards an instrument purporting to confer a benefit inter 
 vivos {z), and the principle is the same in the case of a 
 donatio mortis causa (a). 
 
 Again, the same principle prevents an ineffectual 
 attempt to make a gift inter vivos from being supported 
 as a valid donatio mortis causa. The two things are 
 quite distinct, and an intention to do the fotmer by no 
 means implies an intention in the alternative to do the' 
 latter. On the contrary, it has been laid down that the 
 former intention is quite inconsistent with the latter (b). 
 
 2. Place in administration. 
 
 For the purposes of administration a donatio mortis How far 
 
 embl' 
 acy. 
 
 ■causa is treated in some respects as a legacy. It is true; H^^^ ^* 
 
 that being given to vest absolutely in the donee at the 
 death of the donor, the donee's title does not, like that of 
 a legatee, require the assent of the executor or adminis- 
 trator (c). Nevertheless, on a deficiency of assets, the 
 subject of the gift is liable, like a legacy, to the debts of 
 the deceased (d). If this be so, it is clear that it can only 
 be reached by the authority of the Court, which would, we 
 
 (x) Mitchell V. Smith, 12 W. Eq. 11. 
 
 R. 941. (5) Edwards v. Jones, 1 My. 
 
 (y) Morgan v. Malleson, 10 & Cr. 226. 
 
 Eq. 475. (c) Re Hudson, Spencer v. 
 
 (z) Sii/p. p. 57; Milroy v. Turner, (1911) 1 Ch. 206; 80 
 
 Lord, 4 D© G. F. & J. 264. L. J. Ch. 129. 
 
 (a) Warriner v. W ., 16 Eq. {d') Smith v. Casen, 1 P. Wms. 
 
 340; Richards v. Belbridge, 18 406, cited.
 
 834 MATTERS KELATIVE TO ADMINISTRATION. 
 
 submit, be exercised only in favour of creditors, so that in 
 the order of administration the subject of a donatio 
 viortis causa would be the last of the assets resorted to. 
 It is, however, by statute, subject to legacy duty (e). 
 Under the Customs and Inland Revenue Acts, 1881 and 
 1889 (/), it was subject to account stamp duty, payable 
 by the donee and not out of the estate of the deceased (g); 
 it is now apparently subject to estate duty (h), which, 
 however, is payable out of the residuary personal 
 estate (i). 
 
 (e) 8 & 9 Viot. c. 76. Turner, sup. 
 
 If) 44 & 45 Vict. c. 12, s. 38; (i) Gribble v. Webber, (1896) 
 
 62 & 53 Vict. c. 7, s. 11. 1 Ch. 914; 65 L. J. Ch. 544; 
 
 ($r) Thomas v. Foster, (1897) 1 Cook v. Culverhouse, (1896) 2 
 
 Ch. 484; 66 L. J. Ch. 220. Ch. 251; 65 L. J. Ch. 484; Wild 
 
 Qi) 57 & 58 Vict. c. 30, s. 2; v. Stanham, (1900) 2 Ch. 648; 6» 
 
 but see Re Hudson, Spencer v. L. J. Ch. 751.
 
 635 
 
 CHAPTER III. 
 
 PARTNERSHIP. 
 
 Development of the Law of Partnership. 
 
 I. The Nature of Partnership. 
 
 II. The Relations of Partners to Third Persons. 
 
 III. The Relations of Partners inter se. 
 
 IV. The Dissolution of Partnership. 
 
 Every student of jurisprudence is familiar with the 
 second chapter of Sir Henry Maine's " Ancient Law," 
 in which that distinguished writer points out and illus- 
 trates the fact that as a matter of general history three 
 agencies may usually be discerned by means of which 
 Law is brought into harmony with society; namely, Legal 
 Fictions, Equity and Legislation, operating, generally 
 speaking, in the order in which they are here named. 
 There are few departments of law in which this proposi- 
 tion may be more effectively illustrated than in the Laws 
 of Partnership . It would be a digression from the 
 purpose of this work to treat this subject historically in 
 such a manner as fully to elucidate this statement. The 
 era of the application of Legal Fictions to juristic con- 
 ceptions of Partnership in principle and in procedure must 
 be passed by. The treatment of the subject by Equity 
 is more immediately before us, and the causes which long 
 ago brought partnership transactions under the special 
 cognizance of the Courts of Equity are sufficiently 
 obvious.
 
 636 
 
 PARTNERSHIP. 
 
 Grounds of 
 jurisdiction. 
 
 Partner.ship 
 Act, 1890. 
 
 The facilities afforded by these Courts for taking 
 accounts may first be mentioned. But their superiority 
 to Courts of law in this respect was by no means the only 
 element in establishing and confirming their jurisdiction 
 in these matters. The Chancery procedure for procuring 
 discovery, the powers of granting injunctions and of de- 
 creeing specific performance, added to the fitness of its 
 Courts for dealing with disputes arising between partners, 
 the nature of which is often such as to be beyond the 
 reach of any adequate remedy under the procedure 
 formerly known to the Courts of common law. But quite 
 apart from facilities in procedure, it will presently appear 
 that in many substantive matters the principles of equity 
 proved most apt in regulating the special relations of 
 partners inter se and towards persons dealing with them, 
 and also in impressing certain characteristics on partner- 
 ship property. It is not surprising, therefore, that, with 
 the development of commercial pursuits, the High Court 
 of Chancery acquired an almost exclusive jurisdiction in 
 partnership cases; nor that, when that Court was replaced 
 by the Chancery Division of the High Court of Justice, 
 the dissolution of partnerships and the taking of partner- 
 ship accounts should prominently appear in the business 
 especially assigned to that Division (a). 
 
 But since this work was originally prepared, the Legis- 
 lature, without purporting to abrogate the case law on 
 the subject, or the rules of Equity and common law 
 then applicable thereto (b), has to a large extent codified 
 the existing law. And so far, at any rate, as the prin- 
 ciples of Partnership law (as distinguished from Proce- 
 dure) are concerned, this statute is so comprehensive and 
 complete, that a chapter dealing with the subject can now 
 scarcely be in effect anything other than a commentary on 
 the Act so far as it deals with principles originally estab- 
 
 (fl) Jud. Act, 1873, s. 34. 
 lb) Partnership Act, 1890 (53 
 & 54 Vict. c. 39), B. 46; PoUock's 
 
 Digest of Partnership Law, Pre- 
 face, p. viii. ed. 8.
 
 THE NATURE OF PARTNERSHIP. 637 
 
 lished in Equity. It is true that the division of the 
 subject in the earlier editions differed but slightly from 
 that which appears in the Act itself; but in view of the 
 present statutory character of the law it was thought 
 desirable to follow precisely the lines of the Act, and this 
 necessitated the remodelling and, to a considerable extent, 
 the re-writing of the chapter. We shall consider, there- 
 fore, in their order — 
 
 I. The nature of partnership: 
 
 II. The relations of partners to third persons: 
 
 III. The relations of the partners inter se : 
 
 IV. The dissolution of partnership. 
 
 I. The Nature of Partnership. 
 
 1. Partnership is defined by the Partnership Act, Definition. 
 
 1890 (c), as " the relation which subsists between persons 
 
 carrying on a business in common with a view of profit." 
 
 The Act proceeds immediately to expound this defini- Partnerships 
 .. 1 1 T .1 i? • -• distineruished 
 
 tion by exciudmg therefrom any company or association from com- 
 
 registered under the Companies Act, 1862, or any similar panics. 
 Act, or formed or incorporated under any other Act of 
 Parliament, letters patent, or Royal Charter, or engaged 
 in working mines within and subject to the jurisdiction 
 of the Stannaries. But even without such express limita- 
 tion the definition was scientifically accurate, inasmuch as 
 the shareholders of a company do not, as such, carry on 
 business. The company itself is, by virtue of its con- 
 stitution, a legal persona, and carries on business with all 
 its incidents in its own name. The relation of the com- 
 pany to its members and of the members one to another 
 
 (o) 53 & 54 Vict, c. 39, s. 1, appears, this statute wUl be re- 
 sub-sect. 1. N.B. — Throughout ferred to as "The Act" without 
 this chapter, unless the contrary further particularisation.
 
 638 
 
 PARTNERSHIP. 
 
 Essentials of 
 partnership. 
 
 Cox V. 
 Hickman. 
 
 is quite other than one of partnership, which is founded 
 on personal and mutual confidence. 
 
 It must be observed that private partnerships for 
 general business purposes may not consist of more than 
 twenty persons, and for the business of banking of not 
 more than ten persons {d). 
 
 The law of companies as distinguished from partner- 
 ships is specially regulated by other statutes, and does 
 not come within our present purview. 
 
 2. Confining ourselves, then, to the consideration of 
 partnerships, as defined by the Act, some further elucida- 
 tion is needed of this definition, since many important 
 and subtle questions have arisen respecting the precise 
 character or extent of the sharing of profits which is 
 required to constitute the relation of legal partnership. 
 
 A leading authority on questions of this kind was the 
 case of Cox v. Hickman (e). 
 
 In that case the facts were briefly as follows: — Ben- 
 jamin and Josiah Smith carried on business under the 
 name of Smith & Son. Becoming embarrassed, they 
 executed a deed by which they assigned their property to 
 trustees, and empowered them to carry on the business 
 under the name of the Stanton Iron Company, and to 
 divide the net income amongst the creditors in rateable 
 proportions, with power for the majority of the creditors, 
 assembled at a meeting, to make rules for conducting the 
 business or to put an end to it altogether; and after the 
 debts had been discharged the property was to be re- 
 transferred by the trustees to Smith & Son. It was sought 
 to make the creditors liable for debts incurred in the 
 management of the business on the ground that their 
 participation in the profits constituted them partners 
 therein. But it was held that no partnership was created 
 by the deed (/). 
 
 (<f) 25 & 26 Vict. c. 89, 8. 4; 
 63 & 64 Vict. o. 48; 7 Edw. VII. 
 c. 50. 
 
 (e^ 8 H. L. 268. 
 
 (/) See also Mollioo March ^ 
 Co. V. Court of Wards, L. R. 4 
 P. C. 419.
 
 THE NATURE OF PARTNERSHIP. 639 
 
 The principle which was strongly established in this 
 case that a mere sharing of the profits or receipt of a 
 payment varying with the profits of a business is not of 
 itself sufficient to constitute the relationship of partner- 
 ship therein, was shortly afterwards further amplified and 
 defined by an Act of Parliament commonly known as 
 Bovill's Act{g). 
 
 It is not, however, now necessary to set out the pro- 
 visions of this statute, inasmuch as after having given rise 
 to considerable judicial discussion (h) it has been repealed 
 and re-enacted in amplified form in s. 2 of the Act as 
 follows: — 
 
 "In determining whether a partnership does or does 
 
 not exist, regard shall be had to the following rules: — 
 
 " (1) Joint tenancy, tenancy in common, joint pro- 
 
 " perty, common property, or part-ownership does 
 
 " not of itself create a partnership as to anything 
 
 " so held or owned, whether the tenants or owners 
 
 "do or do not share any profits made by the use 
 
 " thereof " (i). 
 
 "" (2) The sharing of gross returns does not of itself 
 
 " create a partnership, whether the persons sharing 
 
 " such returns have or have not a joint or common 
 
 " right or interest in any property from which or 
 
 " from the use of which the returns are 
 
 " derived "(/c). 
 
 '" (3) The receipt by a person of a share of the profits 
 
 " of a business is prima facie evidence that he is a 
 
 " partner in the business, but the receipt of such a 
 
 " share or of a payment contingent on or varying 
 
 " with the profits of a business does not of itself 
 
 (ff) 28 & 29 Vict. c. 86, K. B. 1246. 
 
 (h) See, for example, Pooley (t) See French v. Sydney, 2 
 
 V. Driver, 5 Ch. D. 458; 45 L. J. C. B. N. S. 357; 26 L. J. C. P. 
 
 Ch. 466; Exp. Belfiasse, 7 Ch. D. 181; London Financial Assoc, v. 
 
 511; 47 L. J. Ch. 65; Exp. Kelh, 26 Ch. D. 107; 53 L. J. 
 
 Tennant, 6 Ch. D. 303; Walker Ch, 1025. 
 
 V. Eirsch, 27 Ch. D. 460; 54 L. J. {k) See Lyon v. Knowles, 3 B. 
 
 Ch. 315; Re Fisher # Sons, & S. 556; 32 L. J, Q. B. 71. 
 <1912) 2 K. B. 491; 81 L. J.
 
 640 PARTNERSHIP. 
 
 "make him a partner in the business; and in 
 " particular — 
 
 " (a) The receipt by a person of a debt or other 
 " liquidated amount by instalments or otherwise 
 " out of the accruing profits of a business does not 
 " of itself make him a partner in the business or 
 "liable as such " (I). 
 
 " (b) A contract for the remuneration of a 
 "servant or agent of a person engaged in a 
 " business by a share of the profits of the busines& 
 " does not of itself make the servant or agent a 
 " partner in the business or liable as such " (m) . 
 
 " (c) A person being the widow or child of a 
 " deceased partner, and receiving by way of 
 " annuity a portion of the profits made in the 
 " business in which the deceased member was a 
 " partner, is not by reason only of such receipt a 
 "partner in the business or liable as such " (w). 
 
 "(d) The advance of money by way of loan to 
 " a person engaged or about to engage in any 
 " business on a contract with that person that the 
 " lender shall receive a rate of interest varying 
 " with the profits, or shall receive a share of the 
 " profits arising from carrying on the business, 
 " does not of itself make the lender a partner with 
 " the person or persons carrying on the business or 
 "liable as such. Provided that the contract is in 
 " writing and signed by or on behalf of all parties 
 "thereto" (o). 
 
 "(e) A person receiving by way of annuity or 
 " otherwise a portion of the profits of a business 
 " in consideration of the sale by him of the good- 
 
 (l) See Cox v. Hickman, 8 H. (w) Holme v. Hammond, L. R. 
 
 L. 268; Exp. Tennant, sup. 7 Ex. 218; 41 L. J, Ex. 157; 
 
 (w) Ross V. Parkyns, 20 Eq. Re Fisher ^ Sons, sup. 
 
 331; 44 L. J. Ch. 610; Reade v. (o) Roolcy v. Driver, sup.; 
 
 Bentley, 4 K. & J. 656. Exp. Belhasse, sup.
 
 THE NATURE OF PARTNERSHIP. 641 
 
 " will of the business is not by reason only of such 
 " receipt a partner in the business or liable as 
 "such." 
 This section is in effect a statutory enactment of the 
 result of several decisions at common law and in equity, 
 some of the most noteworthy of which are cited in illus- 
 tration. The trend of the earlier decisions, previous to 
 Cox V. Hickman (p), was towards the doctrine that any 
 one who shared net profits ipso facto became liable as a 
 partner. Since that leading case the law has been, as it 
 is now by the Act declared to be, that profit-sharing is 
 evidence, but not conclusive evidence, of partnership. 
 We have to look not merely at the fact that profits are 
 shared, but at the real intention and contract of the parties 
 as sho^vn by the whole facts of the case (q). But the Act 
 is not intended to protect and will not protect persons who 
 attempt to combine the powers of a partner with the 
 immunities of a creditor by means of nominal loans (r). 
 
 Sect. 3 of the Act, which corresponds to s. 5 of Bovill's 
 Act, provides (after the analogy of s. 3 of the Married 
 Women's Property Act, 1882 (s)) that a person who lends 
 money under such a contract as is mentioned in the 
 previous section, that is to say, in consideration of a share 
 of profits, cannot in the event of the debtor's bankruptcy 
 or death in insolvent circumstances recover anything in 
 respect of his loan until the claims of the other creditors 
 have been satisfied in full (t). But the section does not 
 deprive the lender of any security he may take for his 
 
 (p) 8 H. L. C. 268. Pooley v. Driver, Exp. Belhasse, 
 
 (q) Pollock's Dig. of Partner- siip. ; Syers v. S., 1 App. C. 174. 
 
 ship Law, p. 19, ed. 8; citing (s) Supra, p. 460. 
 
 Mollwo V. Court of Wards, L. R. {t) Exp. Taylor, 12 Ch. D. 366; 
 
 4 P. C. 419; Badeley v. Consol. Exp. Mills, ^ Ch. 569; Re Hildes- 
 
 Bank, 38 Ch. D. 238; 57 L. J. heim, (1893) 2 Q. B. 357; Re 
 
 Ch. 468; Davis v. D., (1894) 1 Mason, (1899) 1 Q. B. 820; 68 
 
 Ch. 393; 63 L. J. Ch. 219. L. J. Q. B. 466; Re Fort, (1897) 
 
 (r) Pollock, p. 20, ed. 8; see 2 Q. B. 495. 
 
 S. 41
 
 642 PARTNERSHIP. 
 
 money. If he has taken a mortgage, for example, hib 
 rights as mortgagee are not prejudiced (u). 
 
 Specific 3^ ^s regards the formation of a partnership, it may 
 
 performance, i . • i i i /-i p • •l^ ^ 
 
 when decreed, here be incidentally stated that Uourts oi equity will not 
 usually interfere to decree specific performance of an agree- 
 ment to that effect (x) . Only when the agreement specifies 
 a definite term, and has been partly performed, can this 
 relief be successfully sought (y) . The principles on which 
 specific performance is decreed form the subject of a later 
 chapter (2). 
 
 II. The relations- of Partners to Third Persons. 
 
 Actions 1 . Recourse to equity was sometimes needed as between 
 
 havTns''a ""^ ^^^ partnership and another by reason of certain technical 
 common rules of law which impeded procedure in the common law 
 
 Courts. Thus, a firm or partnership at common law (in 
 this respect contrasted with the law of Scotland) had no 
 judicial recognition as a persona, as distinguished from the 
 persons composing it. If, therefore, one partner had a 
 claim against the partnership, for instance, for money 
 advanced on its account, or, on the other hand, if one 
 partner was indebted to the partnership, it was formerly 
 necessary that in the first case all the partners (including 
 the plaintiff) should appear as defendants, and in the second' 
 that all the partners (including the defendant) should 
 appear as plaintiffs. But by the technical rules of law the 
 same person could not appear as both plaintiff and defen- 
 dant in an action. There was, therefore, a purely formal, 
 but none the less an insuperable, hindrance to the legal 
 remedy in such cases. Equity, however, disregarding these 
 distinctions of form, entertained such cases and decreed as 
 
 (m) Exp. Sheil, 4 Ch. D. 789; Beav. 129; Hercy v. Birch, 9 
 
 46 L. J. Bk. 62; Badeley v. Ves. 357; Scott v. Rnymcnt, 7 
 
 Consol. Bank, sup. Eq. 112; Byrne v. Reid, (1902) 
 
 (a;) See p. 697. 2 Ch. 735; 71 L. J. Ch. 830. 
 
 (y) Enr/land v. Curling, 8 (s) Infra, p. 681.
 
 THE RKLATIONS OF PARTNERS TO THIRD PERSONS. €43 
 
 justice required, demanding only that all the parties, 
 whether as plaintiffs or defendants, should be before the 
 Court (a) . For the same reason it was formerly impossible 
 for one firm to sue another at law if there was one partner 
 common to both firms (6). But equity in this case, as in 
 the other, was independent of sucli technical difficulties, 
 and, having the parties before it, adjudicated upon the 
 •dealings between the firms, determining and enforcing 
 their respective rights (c) . 
 
 2. But the jurisdiction of equity as between partner- 
 ships and third persons was most conspicuous, first, in its 
 completer recognition of the doctrine of agency as applic- 
 able between partners, and secondly, in the principles of 
 its administration of the assets of partnership and 
 partners for the benefit of creditors. In both respects the 
 Act now embodies the results of the previous cases. 
 
 In a general, as distinguished from a limited, partner- Agency of 
 ship (d), every partner is an agent of the firm and his 
 other partners for the purpose of the business of the 
 partnership; and the acts of every partner who does any 
 Act for carrying on in the usual way business of the kind 
 carried on by the firm bind the firm and his partners, 
 unless the partner so acting has in fact no authority to act 
 for the firm in the particular matter, and the person with 
 whom he is dealing either knows that he has no authority 
 or does not know or believe him to be a partner (e) . 
 
 Thus, prima facie every general partner has full 
 authority to deal with the partnership property for 
 partnership purposes (/) . But the question as to what 
 acts fall within the expression " the usual way " is one of 
 fact to be determined in accordance with the circumstances 
 
 (a) Wriyht V. Hunter, 7 Ves. p. 647. 
 
 792. " (e) Sect. 5 of the Act. 
 
 (6) Bosanquet v. Wray, 6 {f) Exp. Barl ngton,^c. Bank- 
 
 Taunt. 597. imj Co., 4 De G. J. & S. 581, 
 
 (c) Mainwaring v. Newman, 2 585; see Re Br'ujgs ^ Co., Exp. 
 
 B. & P. 120. Wright, (1906) 2 K. B. 209; 75 
 
 (^d) As to which, see infra, L. J. K. B. 59. 
 
 41 (2) 
 
 partners.
 
 644 
 
 PARTNERSHIP. 
 
 Joint liability 
 of partners. 
 
 Kendall v. 
 Hamilton. 
 
 Several 
 liability of 
 estate of 
 deceased 
 partner. 
 
 of each particular case, having regard to the nature of the 
 business and the practice of persons engaged in it (g) . 
 Into the details of this question it is impossible here to- 
 enter (h) . It is open to the partners as between them- 
 selves to restrict the power of any one or more of them to- 
 bind the firm, and if they do so no act done in contraven- 
 tion of the agreement is binding on the firm with respect to 
 persons having notice of the agreement (^) . 
 
 3 . Until comparatively recent years the rule of English 
 equity as to the liability of partners was understood to be 
 that every partner was liable severally as well as jointly 
 for all the debts and obligations of the firm incurred while 
 he was a partner. It was, however, held by the House of 
 Lords in Kendall v. Hamiltoii {k) that as between living- 
 partners and creditors the liability for partnership debts is 
 joint only and not several, and the Act now gives expres- 
 sion to the same doctrine (Z), and also to the exception that 
 after the death of a partner his estate is severally as well as 
 jointly liable in a due course of administration for such 
 debts and obligations so far as they remain unsatisfied. 
 Thus, if a creditor obtains a judgment against two partners,, 
 he cannot afterwards sue for the same debt a third person 
 whom he subsequently discovers to have been a partner 
 with the first defendants. And where a firm of twO' 
 partners dissolved, one retiring and the other carrying on 
 the business with a new partner, a customer of the old 
 firm who delivered goods to the new without notice of tlie 
 change, could not sue the old partner after proving in 
 bankruptcy against the new firm {m) . But the case of the 
 death of a partner presents an exception to the ordinary 
 rule as to joint debts. Though at law only the survivor 
 
 (^f) Lindley on Partnership, 
 147. 
 
 (Ji) For a comprehensive 
 analysis of the decisions on the 
 subject, see Pollock on Partner- 
 ship, pp. 29 ff. 
 
 (i) Sect. 8. 
 
 (Jc) 4 App. C. 504. And see 
 Bar/el V. Miller, (1903) 2 K. B. 
 212; 72 L. J. K. B. 495. 
 
 (0 Sect. 9. 
 
 {m) Scarf v. Jardine, 7 App. 
 C. 345; 51 L. J. Q. B. 612.
 
 THE RELATIONS OF PARTNERS TO THIRD PERSONS. 645 
 
 of the joint debtors could be sued, in equity recourse 
 might always be had to the estate of the deceased partner, 
 and the principle of Kendall v. Hamilton does not 
 
 apply (^). 
 
 This rule, however, does not affect such liabilities of the 
 partners as are on the special facts several as well as joint. 
 If, for example, partners have joined in a breach of trust, 
 there are separate causes of action, and a judgment against 
 the partners jointly does not of itself bar subsequent 
 proceedings against their separate estates, nor does a 
 judgment recovered against one partner discharge his 
 co-partners (o) . 
 
 4, In the distribution of the estates of deceased Administra- 
 partners in Chancery, and of bankrupt and insolvent ^ ^ ^ ^^^ ^' 
 partners in bankruptcy, the partnership property is applied 
 ■as joint estate in payment of the debts of the firm; and 
 the separate property of each partner is applied in pay- 
 ment of his separate debts. If in either case there is a 
 surplus, then the surplus of the partnership estate is 
 applicable for the payment of the separate debts, and the 
 surplus of the separate estate for the payment of the 
 partnership debts. 
 
 Thus, if A. and B. are in partnership, and on A's death Illustrated. 
 ;his estate is administered by the Court, both A.'s and 
 B.'s estates being solvent, A.'s separate creditors and the 
 'Creditors of the firm may prove their debts against A.'s 
 estate, and be paid out of his assets pari passu. The 
 payments thus made to creditors of the firm must then be 
 allow^ed by B. in account with A.'s estate as payments 
 made on behalf of the firm, so that in ascertaining the 
 
 (n) Re Hodgson, Beckett v. Wegg-Prosser v. Evans, (1895) 1 
 
 Ramsdale, 31 Ch. D. 177; 55 L. Q. B. 108; 64 L. J. Q. B. 1; 
 
 J. Ch. 241 ; Baring v. Noble, 2 overruling Cambefort v. Chap- 
 
 E. & M. 475. man, 19 Q. B. D. 229; 56 L. J. 
 
 (o) Pollock's Dig. p. 46, ed. 8; Q. B. 639. See also ss. 10, 11, 12 
 
 Re Davison, 13 Q. B. D. 50; of the Act; Rhodes v. Moule, 
 
 Blyth V. Fladgate, (1891) 1 Ch. (1895) 1 Ch. 236; 64 L. J. Ch. 
 
 :337; 60 L. J. Ch. 66; and see 122.
 
 646 
 
 PARTNERSHIP. 
 
 Exceptional 
 cases. 
 
 Debts arising 
 through 
 fraud. 
 
 value of A.'s share in the partnership these payments are 
 credited to him. If, however, A.'s estate is insolvent, and 
 the creditors of the firm proceed to recovei- the full amount 
 of their debts from the solvent partner B., B. will then 
 become a creditor of A.'s separate estate for the amount of 
 the partnership debts paid by B. beyond his proportion as 
 determined by the partnership contract. If B. is also in- 
 solvent, the creditors of the firm must first resort to the 
 partnership property, and the separate creditors of the 
 partners to the separate estates of each respectively. The 
 partnership creditors can only resort to so much of the 
 separate property of the partners as remains after paying 
 the separate debts in full, and the separate creditors can 
 only resort to so much of the partnership property as 
 remains after paying the debts of the firm in full (p) . It 
 follows from this rule of administration, that a partnership 
 creditor who is indebted to a deceased or insolvent partner 
 cannot set off his separate debt against the partnership 
 debt due to him{q). And if in an action against the 
 separate estate for a joint debt, it is shown that the sepa- 
 rate estate is insufficient to meet the separate debts, the 
 action is futile and will be dismissed (r). 
 
 Such is the general principle of the distribution of the 
 joint and separate assets. It is, however, subject to certain 
 exceptions. Thus, if a partnership debt is contracted by 
 the fraud of any of the partners, the creditor so defrauded' 
 may, at his option, treat it as a joint or separate debt (s). 
 If there is no joint estate of a bankrupt firm, the partner- 
 ship creditors may at once resort to the separate estates;, 
 but joint estate of the most trifling amount will exclude 
 this right (t). 
 
 (p) See Pollock's Law of Ch. D. 447; 55 L. J. Ch. 935. 
 
 Ptship. 151 fp.; mdcfway \. Clare, 
 19 Beav. Ill ; Lodge v. Pritchard, 
 1 De G. J. & S. 610; Exp. Bear, 
 1 Ch. D. 519. 
 
 (5') Stephenson v. Chisioell, 3 
 Ves. 566. 
 
 fr) Edxoards v. Barnard^ 32 
 
 (s) Pollock, 159, ed. 8; Exp.. 
 Adamson, 8 Ch. D. 807; Jie 
 Davison, sup. ; and see British 
 Homes, ^c. Corp. v. Paterson, 
 (1902) 2 Ch. 404; 71 L. J. Ch. 
 872. 
 
 (t) Exp. Kennedy, 2 De G.
 
 THE RELATIONS OF PARTNERS TO THIRD PERSONS. 647 
 
 5. On the other hand, the trustee in bankruptcy of a 
 bankrupt firm may prove against the separate estate of 
 any partner, where that partner has fraudulently converted 
 partnership property to his own use without the consent 
 or ratification of the other partners (u) . 
 
 6. The above principles as to the liability of part- Limited 
 ners have been modified by a statute of 1907 (x), ^^^ ^^^^ ^^' 
 which has for the first time authorised in English law 
 
 a form of partnership analogous to the French Societe en 
 Commandite, and described as a "limited partner- 
 ship" (?/). A limited partnership must consist of one 
 or more persons called general partners, who shall be 
 liable, as heretofore, for all the debts and obligations of the 
 firm, and one or more persons to be called limited partners, 
 who shall at the time of entering into such partnership, 
 contribute thereto a sum or sums as capital or property 
 valued at a stated amount, and tvJw shall not be liable 
 for the debts or ohligations of the firm beyond the amount 
 so contributed. A limited partner may not, during the 
 continuance of the partnership, directly or indirectly draw 
 out or receive back any part of his contribution, and if he 
 does so he remains liable to the debts and obligations of 
 the firm up to the amount so drawn out or received back. 
 A body corporate may be a limited partner. 
 
 A limited partner may not take part in the management 
 of the partnership business, and has not power to bind the 
 firm. If he does so he incurs the liability of a general 
 partner; but he is empowered, without incurring such 
 liability, to inspect the books of the firm, to examine into 
 the state and prospects of the business, and to advise Avith 
 the partners thereon. 
 
 M. & G. 228; Exp. Clay, ib. (y) It may be observed that 
 
 230, n.; Cooper y. Adams, (1894) whereas in the Societe en Com- 
 
 2 Ch. 555; 63 L. J. Ch. 847. mandife the name of a comman- 
 
 (m) Exp. Harris, 2 Y. kJi. 210; ditairo may not be used in the 
 
 Lacey v. Jlill, 4 Ch. D. 537; raisoyi sociale or style oi 'ik\G ^vva., 
 
 Read v. Bailey, 3 App. C. 94. there is no such restriction in tha 
 
 (a;) 7 Edw. VII. c. 24. English statute: see Code de 
 
 Commerce, sects. 23, 25.
 
 648 PARTNERSHIP. 
 
 The Act provides that every limited partnership must be 
 registered at the registry of joint stock companies, and 
 prescribes the particulars of information which must be 
 included in the registration (0). 
 
 By the Bankruptcy Act, 1913 (a) the enactments 
 relating to bankruptcy apply to limited partnerships as 
 to ordinary partnerships, and on all the general partners 
 of a limited partnership being adjudged bankrupt the 
 assets of the limited partnership vest in the trustee. 
 
 Rules have been prepared by the Board of Trade as to 
 registration and matters incidental thereto. 
 
 III. The relations of Partners inter se. 
 
 Actions 1. In the previous section it has been shown how the 
 
 parties. interposition of equity was necessitated in cases of dispute 
 
 between partners and firms having a partner in common 
 by reason of the technicalities of common law procedure, 
 arising from the non-recognition of a firm as a persona. 
 It is unnecessary to repeat what was there said, and of 
 course it will be understood that at present the rules of 
 equity in this as in other respects prevail in all divisions 
 of the High Court. 
 
 2. Many other cases, however, come within the cogni- 
 zance of equity on the ground of the particular forms of 
 relief which it is able to give. Some of these fall more 
 appropriately under the head of dissolution, and are ac- 
 cordingly postponed for the present. Others might with 
 perfect consistency be relegated to the general headings of 
 injunction and specific performance; but the balance of 
 convenience nevertheless seems in favour of their con- 
 sideration here. 
 
 (z) Sects. 5, 8, 9, 10, 14 and 15. («) 3 & 4 Geo. V. c. 34, s. 24.
 
 THE RELATIONS OF PARTNERS INTER SE. 649 
 
 Where there are articles of partnership the assistance of Specific per- 
 
 n • 1 f ormance of 
 
 •equity is oiten sought for the purpose oi compelling the articles, 
 specific performance thereof. The general principles on 
 which this peculiar form of relief is granted are elsewhere 
 fully considered. It suffices here to say that questions 
 arising on partnership articles fall entirely within those 
 principles, the most conspicuous of which is that no such 
 relief is given if there is an adequate remedy at law. 
 
 The application of remedy in cases of partnership Illustrated, 
 articles may best be illustrated by referring to cases in 
 which specific performance has been decreed of agreements 
 respecting the style or name of the partnership (6); of 
 agreements not to carry on business within a certain area 
 or limits of time (e) ; of agreements as toi the custody and 
 inspection of the partnership books (d); of agreements as 
 to the mode of valuing the share of an outgoing or a 
 deceased partner (e) ; of agreements giving a right of 
 pre-emption of the share of an outgoing partner (/) ; of 
 agreements to grant an annuity to a retiring partner (g) ; 
 and of agreements not to divulge a trade secret (h). As 
 to specific performance of agreements to refer to arbitra- 
 tion, see infra, p. 698. 
 
 It is observable that in many of these cases, the agree- 
 ments being negative, the remedy of specific performance 
 takes the form of an injunction. 
 
 3. In the absence of articles of partnership, the mutual Injunctions, 
 rights of the partners are determined by the general 
 principles of law, and are equally enforceable in equity 
 by means of the remedy of injunction. Thus acts tending 
 
 (6) Marshall v. Colman, 2 J. >& (e) Morris v. Kearsley, 2 Y. & 
 
 W. 266, 289; and see Byrne v. C. Ex. 139; Gibson v. Goldsmid, 
 
 Reid, (1902) 2 Ch. 735; 71 L. J. 5 De G. M. & G. 757. 
 
 Ch. 830. (/) Homfray v. Fothergill, 1 
 
 (c) Whittaher v. Howe, 3 Beav. Eq. 567. 
 
 383; Turner v. Major, 3 GifE. ((7) Auhin v. HoU, 2 K. & J. 
 
 442. 66. 
 
 (<f) Lingen v. Simpson, 1 S. & (A) Morison v. Moat, 9 Ha. 
 
 S. 600. 241.
 
 650 
 
 PARTNERSHIP. 
 
 to the destruction of the partnership property have been 
 so restrained (i); and the same remedy has been applied 
 Avhere a partner has been hindered in the exercise of his 
 legal right to partake in the management of the busi- 
 ness (k). And, generally, acts inconsistent Avith the 
 proper duties of partners may be restrained by injunction, 
 even though dissolution is not sought, no countenance 
 being given to any one of the partners who seeks by 
 improper conduct to drive others to a dissolution (I). If, 
 for example, in the articles the partners agree not to 
 engage in any other business, equity would enforce this 
 contract by injunction, and any profits made in such a 
 business would be treated as belonging to the partner- 
 ship (m). The Act provides that, apart from any express 
 provision in the articles, if a partner, without the consent 
 of the other partners, carries on business of the same 
 nature as and competing with that of the firm, he must 
 account for any profits so made (n). Questions involving 
 the application of injunctions for the protection of the 
 goodwill of a business are considered at p. 795. 
 Account. Similarly, and for similar reasons, an account may be 
 
 decreed in equity without seeking a dissolution ; not, how- 
 ever, a continuous account of the business operations. The 
 Court will not so undertake the carrying on of a business, 
 though it will in proper cases investigate its accounts up to 
 the time of commencing the action (o). Generally the 
 Court is reluctant to decree an account or to appoint a 
 receiver and manager except with a view to dissolution 
 or the sale of the business as a going concern (p). 
 
 («) Miles V. Thomas, 9 Sim. (n) Sect. 30; Glass'ngton v. 
 
 (i06; Marshall v. Watson, 25 Thivaites, 1 S. & S. 124; Aas v. 
 
 15eav. 501. Benham, (1891) 2 Ch. 244; and 
 
 (Jc) Anon., 2 K. & J. 441; see Dean v. McDowell, 8 Ch. D. 
 
 Walker v. Mottram, 19 Ch. D. 345; 47 L. J. Ch. 537. 
 
 355; 51 L. J. Ch. 189. (o) Loscombe v. Russell, ^^'im. 
 
 (I) Hall V. //., 12 Beav. 414; 8; Fuirthorne v. Weston, sup. 
 
 20 ib. 139; 3 Mac. & G. 79; {v) Baxter v. West, 28 L, J. 
 
 Fairihorne v. Weston, 3 Ha. 387. Ch. 169; Taylor v. Neate, 39 Ch. 
 
 (m) Somerville v. Mackay, 16 D. 538; 57 L. J. Ch. 1044. 
 Ves. 382.
 
 THE RELATIONS OF PARTNERS INTER SE. ^-^1 
 
 4. A third particular in which equity exercises beneficial Constructive 
 influence in preserving the rights of partners is by its unfair advan- 
 application of the principle of constructive trusts to cases ^^^^ mado. 
 in which a partner unconscientiously socks to take advan- 
 tage of his position to the prejudice of his co-partners. 
 
 Cases in illustration of this have already been given and 
 commented on (q); and at present, therefore, mere refer- 
 ence will sufiice to such cases as the renewal of leases and 
 purchases of partnership property by individual partners. 
 It must, however, be added that this equitable principle is 
 now embodied in the Act, which provides that every 
 partner must account to the firm for every benefit derived 
 by him without the consent of the other partners from any 
 transaction concerning the partnership, or from any use by 
 him of the partnership property, name or connexion (r). 
 
 5. It remains to consider under this head the principles Partnership 
 originally formulated in equity, though now embodied in defined.^ 
 the Act, which affect the ownership and characteristics of 
 property owned by a partnership. 
 
 The Act (s) declares that all property and rights and 
 interests in property originally brought into the partner- 
 ship stock or acquired, whether by purchase or otherwise 
 on account of the firm or for the purposes and in the 
 course of the partnership business are partnership pro- 
 perty, and must be held and applied by the partners 
 exclusively for the purposes of the partnership and in 
 accordance with the partnership agreement. 
 
 The intervention of equity which led to the establish- Doctrines 
 ment of this general principle mainly arose in respect of estate^^* 
 the ownership of land and the legal doctrine of joint 
 tenancy. It was formerly very material to inquire as to 
 land, whether it became partnership property by being 
 brought in by one or more partners at the formation of 
 the firm, or by being purchased subsequently out of the 
 
 (.7) Supra, pp. 98 and 111. (s) Sect. 20. 
 
 (r) Sect. 29.
 
 652 
 
 PARTNERSHIP. 
 
 Lands 
 
 brought in at 
 formation of 
 firm. 
 
 Lands pur- 
 chased with 
 partnership 
 funds. 
 
 assets of the firm, or by being devised to the firm. But 
 these distinctions are now to a great extent obsolete as to 
 effect. 
 
 In the first place, it must be undea'stood that it was 
 always held that modus et conventio vincunt legem. It 
 was and is quite open to the partners by the articles of 
 partnership, or any other agreement between them, to 
 determine as between themselves, the mode of disposition 
 of the partnership property. Our inquiry only relates to 
 cases in which this has not been done. 
 
 (1.) If land belonged to the partners separately before 
 the commencement of the partnership, or, if even it 
 belonged to them as tenants in common, a fortiori if it 
 belonged to one of them alone, then the fact that it was 
 used for partnership purposes did not make it partnership 
 property {t). 
 
 (2.) If lands were purchased with partnership funds, it 
 was in some early cases held that, in the absence of express 
 agreement, the partners occupied as joint tenants, with a 
 right of survivorship (u). But it was in later cases main- 
 tained by many high authorities that lands so acquired 
 were to be regarded as accessory to the business of the 
 partnership, and that the right of survivorship had no 
 application (x). And though the conveyance of real estate 
 in the circumstances was taken in the name of one of the 
 partners, yet, if purchased with partnership money, there 
 was deemed to be a resulting trust in favour of the 
 firm {y). 
 
 The question on which such cases depended resolved 
 itself into a question as to the purposes for which the 
 property was bought. If for the purpose of carrying on 
 
 (<) Burdon v. Barkus, 4 De G. 
 F. & J. 42; 8 Jur. N. S. 656; 
 Crawshay v. Maule, 1 Swanst. 
 495, 523; Roberts v. EberJmrdt, 
 Kay, 159. 
 
 (m) Je-ffereys v. Small, 1 Vem. 
 217. 
 
 {x) Elliott V. Brown, 3 Swanst. 
 489; Lyster v. Dolland, 1 Ves. jr. 
 421. 
 
 (y) Smith V. S., 5 Ves. 193; 
 Clegg v. FishwicJc, 1 Mac. & Gr. 
 294".
 
 EQUITY AS AFFECTING THE PARTNERSHIP PROPERTY. 653 
 
 the partnership business, or for the purpose of a specula- 
 tion on account of the partnership, there was an equitable 
 tenancy in common and no survivorship; if for the 
 separate use of the partners, not in connexion with the 
 business, there was a simple joint tenancy and survivor- 
 ship, with which equity did not interfere (z). 
 
 (3.) Where lands were devised to partners, the decisions Lands 
 as to whether or not it was to be regarded as partnership •^^'^^^ed. 
 property were very conflicting. In the case of Morris v. 
 Barrett (a) a distinction was drawn between devised lands 
 and purchased lands which were similarly used by a firm, 
 the latter being deemed partnership property, the former 
 not so; and a similar rule as to devised property was 
 followed in Brown v. Oakshot (b) and Phillips v. P. (c). 
 On the contrary, lands devised were deemed accessory to 
 the trade and as partnership property in Jackson \. J . (d) 
 and Crawshay v. Maule (e); and, by the more recent and 
 strong case of Waterer v. W. (/), such lands seem to have 
 been placed on the same footing as lands purchased; the 
 question depending on whether they are " substantially 
 involved in the business." 
 
 It will be observed that the above quoted words of the 
 Act, not being confined to the acquisition of land by pur- 
 chase, but including lands acquired " otherwise," in effect 
 establish the law as declared by these later cases. But the 
 same section provides that the legal estate in any such 
 lands shall devolve according to the nature and tenure 
 thereof, and the general rules of law applicable thereto, 
 but in trust, so far as necessary, for the persons beneficially 
 interested under the section. 
 
 (4.) Where partners held real estate for partnership Conversion of 
 purposes, the question arose whether the real estate was ^^^^ estate in 
 
 (z) Bank of England case, 3 {d) 9 Ves. 591. 
 
 De G. F. & J. 645. (e) 1 Swanst. 495. 
 
 (a) 3 Y. & J. 384. (/) 15 Eq. 402; and see Davis 
 
 (b) 24 Beav. 254. v. D., (1894) 1 Ch. 393; 63 L. J. 
 
 (c) 1 My. & K. 649; Lindley, Ch. 219. 
 332, ed. 5.
 
 654 
 
 PARTNERSHIP. 
 
 partnership, 
 when it takes 
 place. 
 
 Modem rule 
 in favour of 
 conversion. 
 
 not, even in the absence of any expressed intention of the 
 partners, so absolutely converted into personalty as to be 
 held by the surviving partners not in trust for the heir-at- 
 law, but for the personal representative of the deceased 
 partner. It was clearly settled in equity that where real 
 estate was purchased with partnership capital for the 
 purposes of partnership trade, it should, in the absence of 
 any express agreement, be considered as absolutely con-^ 
 verted into personalty, so as to pass to the personal repre- 
 sentatives of a deceased partner, free from dower (^). 
 On the contrary, where real estate belonged to the partners 
 at the time of their entering into partnership, or was 
 subsequently acquired by them out of their own private 
 moneys, or by gift, it was formerly held that conversion 
 would not, unless by express agreement, take place, 
 although the real estate had been used for partnership 
 pm'poses in trade {h). 
 
 More recent cases, however, proceeded upon the broader 
 principle, that where real property has been substantially 
 involved in a business or trade, it was part of the partner- 
 ship property, and therefore personal estate, and that it 
 was immaterial how it was acquired by the partners, 
 whether by descent or devise (i). 
 
 This question is also now determined by the Act, which 
 provides (fc) that where land has become partnership pro- 
 perty it shall, miless the contrary intention appears (Z), be 
 treated as between the partners, including the representa- 
 tives of a deceased partner, and also as between the heirs 
 of a deceased partner and his executors or administrators, 
 as personal and not real estate. This rule does not affect 
 the character of any property for the purpose of the Mort- 
 
 ((7) Townsend v. Devaynes, 1 
 Mont, on Partnership, App. 97; 
 Fereday v. Wightivick, 1 liuss. k. 
 M. 45. 
 
 (A) Thornton v. Dixon, 3 Bro. 
 C. C. 199; Phillips v. P., sup.; 
 
 Balmain v. Shore, 9 Ves. 500; 
 Cookson V. C, 8 Sim. 529. 
 
 (i) Waterer v. W., sup. 
 
 (k) Sect. 22. 
 
 {I) See Wilson v. Ilolloway, 
 (1893) 2 Ch. 340; 62 L. J. Ch. 
 781.
 
 EQUITY AS AFFECTING THE PARTNERSHIP PROPERTY. 6'^5 
 
 main and Charitable TriLsts Act, 1888 (m), but such land 
 is deemed to be converted For fiscal purposes, and is liable 
 to probate duty (n). 
 
 , Both principle and authority also point to the conclu- Land pur- 
 sion that conversion will take place not only where real y^iecon"'' ^' 
 property is acquired for the purposes of partnership in verted, 
 trade, but also where it is acquired with the partnership 
 funds for the purpose of a re-sale upon a speculation not 
 coming within the usual denomination of trade (o). 
 
 Of course, if the owners of real estate upon entering Conversion by 
 into partnership direct or agree that it shall be sold upon ^S^^^^^^ • 
 the death of one of them, it will be held to be absolutely 
 converted into personalty, and will go to the personal 
 representative, the conversion being held to have taken 
 place at the date of the agreement (p). 
 
 But, as already seen, the conversion of real property Dealings 
 may be negatived not only by the agreement of the parties, ^ith^conver- 
 but by other dealings whereby the contrary intention sion. 
 appears; as, for instance, if the partners procure land to 
 be conveyC'd to them in equal undivided shares (g); and 
 the result is the same, where, though purchased out of 
 partnership capital, it is not used for the purposes of the 
 partnership in trade (r) . Also where real estate was pur- 
 chased for the purpose of the partnership in trade, but by 
 agreement between the partners it was to be the separate 
 property of one of them, who took a conveyance thereof 
 in his own name, it was held that it was not partnership 
 property, and was liable to dower (s). 
 
 So, likewise, property purchased with partnership Recouversion. 
 capital, for partnership purposes in trade, and therefor© 
 converted into personalty, may be reconverted by the 
 express or implied agreement of the partners. As an 
 
 (m) Ashworth v. Munn, 15 Ch. {y) Essex v. E., 20 Beav. 442. 
 
 D. 363; 50 L. J. Ch. 107. (<?) Custance v. Bradshaw, 4 
 
 («) Ait.-Gen. v. Ilubbnck, 10 Ha. 315. 
 Q. B. D. 488; 13 ib. 275; 52i (r) Bell v. Phyn, 7 Ve3. 453; 
 
 L. J. Q. B. 464; 53 ib. 146. Randall v. R., 7 Sim. 271. 
 
 (o) Darby v. B., 3 Drew. 495. (s) Smith v. S., 5 Ves. 193.
 
 656 PARTNERSHIP. 
 
 instance of what amounts to an implied agreement, may 
 be mentioned a stipulation for payment of rent by the 
 partnership to one or some of the individual partners {t). 
 
 6. By the Limited Partnerships Act, 1907 (m), it is 
 provided that in the case of partnerships registered under 
 the Act, any difference arising as to ordinary matters' 
 connected with the business may be decided by a majority 
 of the general partners; that a limited partner may, with 
 the consent of the general partners, assign his share, upon 
 which the assignee becomes a limited partner, with all the 
 rights of the assignor. A person may be introduced as 
 partner without the consent of the existing limited 
 partners. 
 
 IV. The Dissolution of, Partnerships. 
 
 1 . The first consideration is by what means a dissolution 
 of a partnership may be effected. 
 Where term Generally the duration of a partnership is fixed on by 
 the agreement of the partners. When so fixed, the agree- 
 ment will not be interfered with by a Court of equity, 
 except under special circumstances, which will be presently 
 considered. The partnership, however, may at any time 
 be dissolved by the common consent of all the partners (x). 
 And it is quite open to the partners by their agreement 
 to provide that the partnership shall be dissolved at the 
 option of any one or more of them, without the consent 
 of all. In such a case the Court may compel a partner to 
 sign a notice of dissolution (y). In the absence of agree- 
 ment, or of the special interference of the Court, a part- 
 nership for a fixed term only expires with the efflux of the 
 time agreed upon for its duration {z). If after the 
 
 (<) Rowley v. Adams, 7 Beav. (y) Hendry v. Turner, 32 Ch. 
 
 548. D. 355; 55 L. J. Ch. 562. 
 
 (m) 7 Edw. VII. c. 24,8. 6 (5). (z) FeatherstoneJiaugh v. Fen- 
 
 Ix) Hall V. H., 12 Beav. 414. wick, 17 Vee. 298.
 
 THE DISSOLUTION OF PARTNERSHIPS. 657 
 
 expiration ol' the agreed term the firm continue to trade as 
 partners without making any new agreement, the original 
 contract is deemed to be prolonged by tacit consent, and 
 all its conditions remain in force except in so far as they 
 are inconsistent with any implied term of the renewed 
 contract. It is an implied term of the new contract that 
 each partner has the right instantly to determine the 
 partnership (a). But this right must be exercised bond 
 fide, and not for the sake of obtaining an undue 
 advantage («). 
 
 Subject to any contrary agreement between the partners, Dissolution 
 a iiartnership is dissolved — by operation 
 
 '^ ^ of law. 
 
 (a) If entered into for a fixed term by the expiration of 
 that term: 
 
 (b) If entered into for a single adventure or under- 
 taking by the determination of that adventure or 
 undertaking: 
 
 (c) If entered into for an undefined time, by any 
 
 partner giving notice to the other or others of his 
 intention to dissolve the partnership. In this case 
 the partnership is dissolved as from the date men- 
 tioned in the notice of dissolution, or if no date is 
 mentioned, as from the date of the communication 
 of the notice (b). A limited partner has not, how- 
 ever, power to dissolve a limited partnership by 
 notice (c). 
 
 Again, subject to any contrary agreement, every part- By death or 
 nership is dissolved as regards all partners by the death bankruptcy. 
 or bankruptcy of any partner (other than a limited 
 partner) (d), and at the option of the other partners it may, 
 be dissolved if any partner (other than a limited partner) 
 
 (^) Neilson v. Mossend Iron Moss v. Elphick, (1910) 1 K. B. 
 
 Co., 11 App. Cas. 298; and see 846; 79 L. J. K. B. 631. 
 
 Bnw V. Herring, (1892) 1 Ch. (c) 7 Edw. VII. e. 24, s. 6 
 
 284; 61 L, J. Ch. 5. (5), e. 
 
 (b) Sect. 32 of the Act. See (d) Sect. 6 (2). 
 
 s. 42
 
 658. 
 
 PARTNERSHIP. 
 
 Business 
 
 becoming 
 unlawful. 
 
 Dissolution 
 by the Court. 
 
 Lunacy. 
 
 Bad conduct. 
 
 suffers his share of the partnership property to l)e charged 
 under the Act for his separate debt (e). 
 
 A partnership is in every case dissolved by the happen- 
 ing of any event which makes it unlawful for the business 
 of the firm to be carried on, or for the members of the 
 firm to carry it on in partnership (/). For example, a 
 partnership between an Englishman and a domiciled 
 foreigner is dissolved if war breaks out between England 
 and the country of the foreigner's domicile {g). Refer- 
 ence may be made to " The Highwayman's Case," of 
 which, though unreported, interesting particulars are 
 given in Lindley on Partnership, ed. 7, p. 107, and in 
 the Law Quarterly, vol. ix., p. 197. 
 
 The Act, in the above cited sections, in effect declares 
 the law as it had been long established by the decisions of 
 the Courts. 
 
 On application by a partner the Court may decree a 
 dissolution of the partnership in any of the following 
 cases: — 
 
 (a) When a partner (other than a limited partner Qi)) 
 
 is found lunatic by inquisition or is shown to be of 
 permanently unsound mind; in either of which 
 cases the application may be made as well on 
 behalf of that partner by his committee or next 
 friend or person having title to intervene as by any 
 other partner. 
 
 (b) When a partner becomes in any other way per- 
 manently incapable of performing his part of the 
 partnership contract (^) . 
 
 (c) When a partner has been guilty of such conduct as 
 
 in the opinion of the Court, regard being had to. 
 
 (e) Sect. 33 of the Act. As to 
 charging shares, see s. 23; 7 Edw. 
 VII. c. 24, s. 6 (5), c; and also 
 Re Hughes <|- Co., (1911) 1 Ch. 
 342; 80 L. J. Ch. 262. 
 
 (/) Sect. 34. 
 
 (^) Griswold v. Waddington, 
 15 Johns. 57; 16 ib. 438; and see 
 also Hsposito v. Boivden, 7 E. & 
 B. 763. 
 
 (A) 7 Edw. VII. c. 24, s. 6. 
 
 (i) See Whitioell v. Arthur, 35 • 
 Eeav. 140.
 
 THE DISSOLUTION OF PARTNERSHIPS. 
 
 65^^^ 
 
 tho nature of the business, is calculated prejudi- 
 cially to affect the carrying' on of tho business (7c). 
 
 (d) When a partner wilfully or persistently commits 
 a breach of the partnership agreement or other- 
 wise so conducts himself in matters relating to the 
 partnership business that it is not reasonably 
 practicable for the other partner or partners to 
 carry on the business in partnership with him. 
 
 Conduct coming under this description may consist of 
 active improprieties or of negligence. Breaches of trust 
 or confidence (I), and the becoming liable to a criminal 
 prosecution (m), afford good grounds for seeking a decree 
 of dissolution (n). So also does persistent negligence of 
 the partnership business by a partner whose duty it is to 
 devote his attention to it (o). 
 
 The Court will not, however, regard mere disagreements 
 or quarrels, or incompatibility of temper between part- 
 ners (p), unless they be of such an aggravated nature as to 
 destroy all confidence and the possibility of advantageous 
 working (q). 
 
 (e) When the business of the partnership can only be Business loss, 
 carried on at a loss (r). 
 
 (f) Whenever in any case circumstances have arisen 
 
 which in the opinion of the Court render it just 
 
 and equitable that the partnership be dissolved (s) . 
 
 In this place it is also appropriate to observe that if a Partnership 
 
 partnership has been induced by any species of fraud or f^aud^ ^ 
 
 imposition, the contract may be dissolved ab initio at the 
 
 suit of the party deceived (t). And in this case the party 
 
 (^k) See Essel v. Rayward, 30 (^) Wray v. Hutchinson, 2 
 
 Beav. 158. My. & K. 235; Goodman v. 
 
 (V) Smith V. Jeyes, 4 Beav. 503. Whitcomb, 1 J. & W. 589. 
 
 (m) Essel V. Hayward, 30 ib. (q) Baxter v. West, 1 Dr. & S. 
 
 158; Carmic/Mel V. Ilva>?s, (190i) 173; Lean/ v. Shout, 33 Beav. 
 
 1 Ch. 486; 73 L. J. Ch. 329. 582. 
 
 («) See Atwood v. Maude, 3 (r) See Jennings v. Baddeley, 
 
 Ch. 373. 4 K. & J. 78. 
 
 (o) Harrison v. Tennant, 21 (s) Sect. 35 of the Act. 
 
 Beav. 482. (t) Rawlins v. Wickham, 1 
 
 42 (2)
 
 mo 
 
 PARTNERSHIP. 
 
 Keturn of 
 premium. 
 
 Rights of 
 TTeditors in 
 dissolution. 
 
 entitled to rescind is entitled to a lien on the surplus of 
 the partnership assets, for any sum of money paid hy him 
 for the purchase of his share and for any capital con- 
 tributed (m). Moreover the contract of partnership is one 
 requiring uberrima fides. 
 
 Unless there is a distinct breach of the partnership, 
 articles, a dissolution, if decreed, will not be made retro- 
 spective, but will operate only from the date of the 
 judgment {x). 
 
 2. On dissolution being decreed of a partnership entered 
 into for a definite term, and in consideration of the pay- 
 ment of a premium, the Court may order the repayment 
 of the premium or of a proportionate part thereof (y); but 
 it will not so direct if the dissolution is rendered necessary 
 by the misconduct of the party paying the premium (z), 
 or if the partnership has been dissolved by an agreement 
 containing no provision for a return of any part of the 
 premium (a). 
 
 3. In the event of the dissolution of a limited partner- 
 shijj, its affairs shall be wound up by the general partners, 
 unless the Court otherwise orders. Applications to the 
 Court to wind up such a partnership are to be made by 
 petition under the Companies Acts, 1862 to 1900 (&). 
 
 4. On the dissolution of a i)artnership the existing 
 creditors of the firm of course retain all their rights 
 against the partners which have already accrued. 
 
 Where a person deals with a firm, after a change in its 
 constitution, he is entitled to treat all apparent members 
 of the old firm as still being members of the firm until he 
 
 Giff. 355; Hue v. Ricluirds, 2 
 Eeav. 305; Mayooch v. Beaton, 
 J 3 Ch. D. 384; Betjemann v. B., 
 (1895) 2 Ch. 474; 64 L. J. Ch. 
 641. 
 
 (m) Sect. 41 o£ the Act. 
 
 (a;) Lyon v. Twcddle, 17 Ch. 
 D. 529;" 50 L. J. Ch. 571. 
 
 fy) Aitvood v. Maude, 3 Ch. 
 
 369; Wilson v. Johnstone, 16 Eq. 
 606. 
 
 (z) Sect. 40 of the Act; Bluok 
 V. Copstick, 12 Ch. D. 863. 
 
 («) Sect. 40, sup. ; Edmonds v. 
 Robinson, 29 Ch. D. 170. 
 
 (6) 7 Edw. VII. c. 24, s. 6. 
 See Re Huqhes cf- Co., (1911) 1 
 Ch. 342; 80 L. J. Ch. 262.
 
 THE DISSOLUTION OF PARTNERSHIPS. 
 
 has notice of the change. An advertisement in the London 
 Gazette (or for Ireland in the Dublin Gazette) is notice as 
 to persons who had not dealings with the firm he fore the 
 date of the dissolution or change so advertised (c). The 
 estate of a partner who dies or who becomes bankrupt, or 
 of a partner who, not having been known to the person 
 dealing with the firm to have been a partner, retires from 
 the iirm is not liable for partnership debts contracted after 
 the death, bankruptcy or retirement respectively {d). 
 
 After the dissolution of a partnership the authority of 
 each partner to bind the firm and the other rights and 
 obligations of the partners continue, notwithstanding the- 
 dissolution, so far as may be necessary to wind up the- 
 affairs of the partnership, and to complete the transactions 
 begun but unfinished at the time of the dissolution, but 
 not otherwise; provided that the firm is in no case bound 
 by the acts of a partner who has become bankrupt; but 
 this proviso does not affect the liability of any person wha 
 has after the banki'uptcy represented himself or know- 
 ingly suffered himself to be represented as a partner of 
 the bankrupt (e). 
 
 Where a dissolution has taken place, not only will an Account... 
 
 , 1 1 1 1 , . p • receiver^ 
 
 account be decreed, but, ii necessary, a manager or receiver 
 will be appointed to close the partnership business and sell 
 the partnership property, so that a final distribution may 
 be made of the partnership effects (/). But a manager or 
 receiver will not generally be appointed except with a 
 view to a dissolution {g). 
 
 (c) Sect. 36 of the Act; Exp. (e) Sect. 38 of the Act; Lewis 
 Robinson, 3 D. & Ch. 388. v. Reilly, 1 Q. B. 349; Butchart 
 
 (d) Ibid. See Court v. Berlin, v. Dresser, 4 De G. M. & G. 542. 
 (1897) 2 Q. B. 396; 66 L. J. (/) Story, 672. 
 
 Q. B. 714; Baffel v. Miner, (r/) Hall v. H., 3 Mac. & G. 
 
 (1903) 2 K. B. 212; 72 L. J. 79; Tai/lor v. Neate, 39 Ch. D. 
 K. B. 495. 538; 57 L. J. Ch. 1044.
 
 <662 
 
 CHAPTER IV. 
 
 PARTITION AND THE SETTLEMENT OF BOUNDARIES. 
 
 Origin of 
 jurisdiction. 
 
 In partition. 
 
 The jurisdiction of equity with respect to both partition 
 and the settling of boundaries originated in the insuffi- 
 ciency of the common law remedy. As regards partition 
 it is true that proceedings might have been taken at 
 common law by writ of partition ; but they were at a very 
 early period found to be inadequate and incomplete. 
 Various and complicated interests are often attached to the 
 ownership of real estate, and when the titles were in any 
 degree intricate, and discovery was needed to ascertain them,, 
 the processes of law were very inapt to deal with them. 
 Moreover, Courts of law were content merely to declare 
 the rights of the parties, and were incapable of enforcing 
 a partition by means of mutual conveyances; nor could 
 they regulate the appropriate and indispensable compen- 
 satory adjustments. For these and other similar reasons, 
 equity assumed a general concurrent jurisdiction with 
 Courts of law in all cases of partition. In so doing it 
 usually followed the analogies of the law, and decreed 
 partition in such cases as Courts of law recognised as lit 
 for their interference. Equity, however, did not limit its 
 jurisdiction to cases cognisable or relievable at law; there 
 were many cases in which it interfered where law would 
 not have done so — for instance, where an equitable title 
 was set up. Now, by s. 34 of the Judicature Act, 1873, 
 the jurisdiction in cases of partition, which was formerly 
 common to Courts both of law and equity, is assigned to 
 the Chancery Division of the High Court.
 
 PARTITION AND THE SETTLEMENT OF BOUNDARIES. 663 
 
 With respect to the settling of boundaries, different In settlement 
 origins have been alleged for the jurisdiction. It is un- 
 doubtedly as old as the reign of Elizabeth; but whether 
 arising from the intent to prevent multiplicity of suits at 
 law, or from the issuing of a commission at first by request 
 or consent of the parties, and then on the application of 
 one party who should succeed in establishing an equitable 
 ground for requiring it, or whether it was founded by the 
 chancellors upon the basis of the actio finium regundorum 
 of Roman law, is disputed. Whatever its origin, the case 
 of Wake v. Conyers well illustrates its present cliaracter 
 and extent. 
 
 It resembles the remedy of partition in that the relief in Compared, 
 both cases is effected by similar machinery — namely, the 
 issuing of a commission with authority to inquire as to the 
 rights of the parties, and to settle them definitely — and 
 for this reason the two subjects have been here classed 
 together. They differ, however, conspicuously in that 
 •whereas partition is to those parties within its scope a 
 matter of right, the commission to settle boundaries will 
 not be granted unless it is claimed by virtue of some 
 equity superinduced by the act of the parties. It is 
 eminently dependent upon the discretion of the Court.
 
 664 
 
 PARTITION. 
 
 Section I. — Partition. 
 
 I. Who may dawn Partition. 
 II. What is subject to Partition. 
 
 III. Mode of effecting Partition. 
 
 IV. The Partition Acts. 
 V. Costs. 
 
 tenants in 
 common. 
 
 I. Who may claim Partition. 
 Co-parcenera, 1. At common law only co-parcMiers had a right to 
 joint tenants, compel partition. By the Statute of Partition (a) joint 
 tenants and tenants in common of any estate of inheritancer 
 whether in their own right, or in that of their wives, 
 might be compelled to make partition between them; and 
 by 32 Hen. VIII. c. 32, s. 1, joint tenants and tenants in 
 common for lives or years are declared compellable to» 
 make partition in the same way; this right may be still 
 asserted, notwithstanding the abolition of the common 
 law writ of partition by 3 & 4 Will. IV. c. 27, s. 36 (6)., 
 
 2. A decree of partition is a matter of right, and it has- 
 been held to be no objection to a bill that the interests of 
 all parties would not be finally bound by it. Conse- 
 quently, a decree may be obtained either by or against a 
 person having only a limited interest, as a tenant for 
 life (c), or a tenant for life whose interest is determinable 
 on marriage ((?), or a tenant for a term (e); and where 
 there are remaindermen who may come in esse and be 
 entitled, they will be bound by a decree made against the 
 tenant for life (/). 
 
 Tenants for 
 life, 
 
 and for a 
 term. 
 
 («) 31 Hen. VIII. c. 1. 
 
 (6) Mayfair Property Co. v. 
 Johnston, (1894) 1 Ch. 508; 63 
 L. J. Ch. 399. 
 
 (o) Gaskell v. <?., 6 Sim. 643. 
 
 (d) Hobson v. Sherwood, 4i 
 Beav. 184. 
 
 (e) Baring v. Nash, 1 V. i^: B.. 
 551. 
 
 (/) Willa V. Slade, 6 Ves. 498.
 
 WHO MAY CLAIM PARTITION. 665 
 
 A tenant in tail may also obtain a decree for a par- Tenants 
 tition {g); and a partition between tenants in tail, though 
 bj parol, binds the issue {h). 
 
 3. A person can only compel partition when entitled in Claimauts 
 possession. A bill was held not maintainable by a joint- entitled 
 tenant or tenant in common in reversion or remainder (^); i" possession, 
 nor could he, after bill filed, by acquiring possession and 
 amending his bill, have put himself in a better position. 
 
 Prior to the Judicature Acts the Court of Chancery 
 would not entertain a suit for partition when the legal 
 title was in dispute, and its decision would in effect be an 
 adjudication upon the legal right (fc). But the same 
 reasoning does not now apply, and the High Court has 
 ample jurisdiction to entertain a suit for partition, though 
 a question as to the legal title may be involved {l). 
 
 4. A mortgagee of an undivided share may sue for fore- Mortgagees, 
 closure and partition, and move for a receiver of the rents 
 
 of the undivided share of the mortgagor (m). And an 
 equitable tenant in common of lands in mortgage is en- 
 titled to partition as against his co-tenant, notwithstand- 
 ing that the latter has acquired the legal estate in the 
 whole property by procuring a transfer of the mort- 
 gage (/^). 
 
 5. The title of the plaintiff to an interest in the pro- Plaintiff must 
 perty of which he seeks partition must be shown (o). ^^^^ ^ *^' 
 Where, however, there is only a small failure in the proof 
 
 of title, or the interests of the parties in the property are 
 uncertain, they may be ascertained by a reference, and 
 under the old practice this nmst have been done previously 
 to the commission issuing; for, as is laid down in Agar v. 
 
 {g) Brook v. Hertford. 2 P. (l) Waite v. BuK/ley, 21 Ch. 
 
 Wms. 518. D. 674, 681; 51 L. J. Ch. 671. 
 
 (70 Rose V. R., 2 Vern. 233, (m) Fall v. Elkms, 9 W. E. 
 
 cited. 861. 
 
 (*) Evans v. Bagshaw, 8 Eq. («) Waite v. Bingley, sup. 
 
 469; 5 Ch. 340. (o) Cartturight v. Pultney, 2 
 
 {k) Ibid.; Giffardv. Williams, Atk. 380; Jope v. Morshead, 6 
 
 5 Ch. 546; Slade v. Barloir, 7 Beav. 213. 
 Eq. 296.
 
 666 
 
 PARTITION. 
 
 Fairfax (p), it was not the duty of the commissioners to 
 ascertain the proportions or rights of the parties; their 
 duty commenced when these were ascertained. Uncer- 
 tainty as to the shares of the parties is, therefore, not an 
 objection to partition, but only a ground for postponing 
 it until such shares have been ascertained. 
 
 Dowress. 6. 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 hus- 
 band was seised in fee or in tail, which her issue mighfc 
 possibly have inherited. And since the Dower Act (q) 
 the right applies as well to equitable as to legal estates. 
 
 Trust for sale. Where the property in question is vested in trustees 
 upon trust to sell at their discretion, the Court has no 
 jurisdiction to order a partition. In such a case the 
 property is regarded in equity as converted into money, to 
 which the remedy of partition has no application (r). 
 But a similar reasoning does not apply where there is a 
 mere power of sale (s). 
 
 Freeholds. 
 
 Copyholds 
 
 II. What is subject to Partition. 
 
 1. Freeholds have been always subject to partition; 
 but previously to 4 & 5 Vict. c. 35 (amended by 21 & 22 
 Vict. c. 94), the Court of Chancery, though it could decree 
 specific performance of an agreement to divide copy- 
 holds {t), had no power to direct the partition of copyholds 
 or of customary freeholds. Such power was given, how- 
 ever, by s. 85 of that Act (?/), which, though now repealed, 
 is in this respect re-enacted by the Copyhold Act, 1894 (x). 
 
 {p) 17 Ves. 533. 
 
 (r/) 3 & 4 Will. IV. e. 105. 
 See Mundy v. M., 2 Ves. jr. 122. 
 . (r) Bir/(/s V. Peacock, 22 Ch. 
 1>. 284; 23 «/j. 200; 52 L. J. Ch. 
 1 ; Tiii/lor V. Grange, 15 ih. 105. 
 
 («) Boyd V. Allen, 24 Ch. D. 
 622; 53 L. J. Ch. 701. 
 
 (<) Bolton V. Ward, 4 Hare, 
 530. 
 
 ill) Ilanicastle v. Charleswoifh, 
 11 Sim. 315. 
 
 {x) 57 & 58 Vict. c. 46, s. 87.
 
 WHAT IS SUBJECT TO PARTITIOX. 667 
 
 2. Leaseholds, also, under 32 Hen. VIII. c. 32, s. 1, Leaseholds, 
 "were subject to partition during the term, at the instance 
 
 'of the termor of an undivided share {y) ; but partition of 
 leaseholds was refused where the landlord might imme- 
 •diately obtain an injunction to restrain the parties from' 
 executing it by any act amounting to waste, 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 {z). 
 
 3 . A partition has been decreed of a manor (a) and of an Manor, 
 advowson (6); in the latter case the right to present being ^'dvowson. 
 sometimes given alternatelj^ sometimes determined by 
 lot(&). Under the present law, however, a sale would 
 .always be directed (c). 
 
 4. The Court has no power to decree partition of lands 
 •out of its jurisdiction, for instance, in Ireland {d). The 
 principle of Fenn v. Lord Baltiwiore (e) being limited to 
 judgments in personam, evidently does not apply to such 
 a dealing with the land itself as is involved in partition. 
 
 III. Mode o/ effecting Partition. 
 
 1. It is not the ordinary practice for a commission to 
 issue for the purpose of making a partition. If inquiries 
 .are necessary, they can be made in Chambers; if not, 
 .a decree may be made in Court at the hearing. There are Commiesion 
 many cases, however, in which a commission may still be J^^^, 
 directed to issue in accordance with the old practice of the 
 Court, especially where the interest of parties under dis- 
 
 (y) Baiinr/ V. Nash, 1 V. & B. G. M. & G. 439. 
 
 • 551. (c) See infra; Young v. Y ., 13 
 
 (z) Northv. Guinun,liea,i.ZA2. Eq. 175, note. 
 
 (a) Sparroio v. Friend, 1 Dick. {d) Carteret v. Pcttus, 2 Ch. 
 
 -348. Ca. 214; 2 Swanst. 323, n. 
 
 (d) Johnstone v. Baber, 6 De (<>) Supra, p. 16.
 
 (568 
 
 PARTITION. 
 
 Difficulty no 
 objection. 
 
 Turner v 
 Mor(f<ni. 
 
 Recompense. 
 
 ability arc eoiicorncd; but somolimes tlio Court would' 
 approve of a partition without a commission even where- 
 infants were interested, upon proper evidence of value (/) - 
 
 2. The inconvenience or difficulty in making a partition, 
 has been held to be no objection to a decreei(^). ,The- 
 consequences of this, previously to the Partition Acts,, 
 were often sufficiently absurd. In Turner v. Morgan (h) 
 there was a decree for the partition of a single house. 
 The Commissioners allotted to the plaintiff the whole stack 
 of chimneys, all the fireplaces, the only staircase, and' 
 all the conveniences in the yard. Exception was takeni 
 to this by the defendant, but Lord Eldon said he did! 
 not know how to make a better partition for them; the 
 parties ought to agree to buy and sell. But it has- 
 never been deemed necessary that every house on an 
 estate should be divided, if a sufficient part of the whole 
 could bo allotted to each; and in making a partition the 
 Court would take the convenience of the parties into con- 
 sideration (i) . If the commissioners can find nothing to. 
 guide their discretion, they may cast lots; if they cannot 
 agree, they may make separate returns, and the Court 
 may deal with them as it may think advisable (i). 
 
 3. For the sake of convenience, in equity a recompense- 
 has been made, either by a sum of money or rent for 
 owelty, or equality of partition (fc) . Where one of the 
 parties had made improvements on the estate an inquiry 
 was directed as to the amount of compensation to be 
 given (?). Rights could not have been adjusted in this 
 matter under the writ at law. And the commissioners 
 themselves, unless directed bj^ a decree, have no power tO' 
 
 (/) Brasses v. Chalmers, i De 
 G. M. & G. 528. 
 
 (jf) Warner v. Bnynes, Amb. 
 589. 
 
 {K) 8 Vea. 143: 11 Ve^. 1,57. 
 
 (i) Clurendon v. Hornby, 1 P. 
 Wms. 446; Canninr/ v. C, 2'. 
 Drew. 4.36. 
 
 (k) Clnrendoii v. Hornby, sup,. 
 
 (I) WUJinmx V. W.. 68' L. J.. 
 Ch. 528.
 
 MODK OF EFF1-:CTIN(; PAKTITION. 6(5^ 
 
 ■award such sums to be paid; such power rests with the 
 Court (m) . 
 
 In making a decree for partition, the equitable rights of 
 all the parties interested in the estate have been adjusted; 
 for instance, effect has been given to an equitable lien on 
 the premises for improvements; and where one of a number 
 of joint owners has received more than his share of the 
 rents of the estate, the Court has directed an account (n) . 
 
 4. A partition never affects the rights of third parties, Rights of 
 
 1 , ^ 1 ■ third parties 
 
 such as commoners or mortgagees; and persons havmg not affected, 
 such interests are therefore not necessary parties to the 
 suit (o) ; and though it has been laid down that the legal 
 title should be before the Court (p), this does not seem to 
 have been insisted on; and now service of notice of a 
 decree under s. 9 of the Partition Act, 1868 (g), will be 
 sufficient to bind persons who formerly were made parties 
 in the first instance. 
 
 5 . After a partition in law no convejances were requi- Mutual 
 site, as the rights of all parties were concluded by the conveyances, 
 judgment. But in equitj', when the shares have been 
 allotted to the parties, the partition is perfected by recip- 
 rocal conveyances; though in a case where the shares were 
 
 minute and complicated, the Court, in order to save 
 expense, instead of directing such conveyances, declared 
 each of the parties trustee as to the shares allotted to the 
 others of them, and then vested the whole trust estate in 
 a single new trustee under the Trustee Acts, with directions 
 to convey to the several parties their allotted shares (r) . 
 Where infants were parties, the conveyances were respited 
 until they came of age, and a day then given them to 
 show cause against the decree; but now under the Trustee 
 
 (w) 3Iole V. Mansfield, 15 v. James, (1894) 3 Ch. 554; 63 
 
 Sim. 41. L. J. Ch. 873. 
 
 («) Swrm V. S., 8 Price, 518; (p) Miller v. Warmington, 1 
 
 Story V. Johnson, 2 Y. & C. Ex. J. & W. 493. 
 
 586; Larimer v. L., 5 Madd. 363. {q) 31 & 32 Vict. c. 40. 
 
 (o) Swan V. S., sup.; Sinclair (r) Shepherd v. Churchill, 25 
 
 Beav. 21.
 
 670 PARTITION. 
 
 Act, 1893 (s), s. 31, the Court may declare the infant, or 
 indeed any party to the action, a trustee of the shares 
 allotted in severalty to others (t), or that the interests of 
 unborn persons who might claim under any party to the 
 action are the interests of persons who on coming into 
 existence would be trustees within the meaning of the Act,. 
 and thereupon the Court may make a vesting order relating 
 to the rights of such persons as if they had been trustees. 
 The Lunacy Act, 1890 (w), makes similar provision in the- 
 case of lunatics . 
 
 IV. The Partition Acts. 
 
 Sale befoie Before the Partition Act, 1868, the Court had jurisdic- 
 
 tion in a suit, even where infants were interested, if it 
 appeared for their benefit, to direct a sale instead of a par- 
 tition, if it was desired by the j^arties sui juris (x) . So a 
 sale was directed in a case in which a married woman was 
 interested for her separate use without power of antici- 
 pation («/) . But if one of several tenants in common, 
 refused to sell, he oould, whatever the consequences to all 
 parties, insist upon a partition (2). 
 
 The powers of Courts of equity in dealing with actions 
 for partition have, however, been largely increased and 
 improved by the operation of the Partition Acts, 1868 and 
 1876, which are now to be read as one. 
 
 31 & 32 Vict. 1 . By s. 3 of the Act of 1868 (a) it is enacted that, " In 
 
 ' ' ' "a suit for partition, where, if this Act had not been 
 
 " passed, a decree for partition might have been made, 
 
 " then if it appears to the Court that by reason of the 
 
 (s) 56 & 57 Vict. c. 53, re- (m) 53 Vict. c. 5, s. 135. 
 
 enacting and extending 13 & 14 (x) Dams v. Turret/, 32 Beav. 
 
 Vict. c. &0, s. 30. 554. 
 
 (^) Bowra v. Wright, 4 De G. (y) Fleming v. Armstrong, 34 
 
 & Sm. 265; Davis v. Ingram, Beav. 109. 
 
 (1897) 1 Ch. 477; 66 L. J. Ch. {z) Griffies v. G., 11 W. E. 
 
 386. 943. 
 
 (rt) 31 & 32 Vict. c. 40.
 
 THE PAKTITION ACTS. 671 
 
 " nature of the property to ^vhicll the suit relates, or of the 
 "number of parties interested or presumptively iu- 
 " terested therein, or of the absence or disability of some 
 "of those parties, or of any other circumstance, a sale of 
 " the property and distribution of the proceeds would be 
 " more beneficial for the parties interested than a division 
 " of the property between or among them, the Court may, 
 " on the request of any of the parties interested, and not- 
 " withstanding the dissent or disability of any others of 
 " iJiem, direct a sale of the property accordingly, and may 
 "give all necessary or proper consequential directions." 
 
 2. By s. 4: " In a suit for jsartition, where if this Act and s. 4, 
 " had not been passed a decree for partition might have 
 
 " been made, then if the party or parties interested indi- 
 "vidually or oollectivelj' to the extent of one moiety or 
 " upwards in the property to which the suit relates request 
 " the Court to direct a sale of the j^roperty and a distribu- 
 " tion of the proceeds, instead of a division of the propertj 
 " between or among the parties interested, the Court shall, 
 " unless it sees good reason to the contrary, direct a sale of 
 " the property accordingly, and give all necessary or 
 "proper consequential directions." 
 
 3. The distinction between these two sections requires compared, 
 careful notice. The former gives power to the Court to 
 
 direct a sale on the request of any of the parties interested, 
 if, in the opinion of the Court, a sale would be more bene- 
 ficial than a division of the property. The latter provides 
 that if the parties interested to the extent of a moiety or 
 upwards request a sale, the Court shall sell, unless it sees 
 good reason to the contrary. Thus if the party or parties 
 requesting a sale are interested in less than a moiet}' of 
 the property, it is for them to prove to the Court that a 
 partition cannot reasonably be made (6); and if they suc- 
 ceed in this the Court may so decree. This avoids the 
 
 (b) Dyer v. Paynter, 33 W. E. 806.
 
 672 PARTITION. 
 
 recurrence of any such dilliculfy as that in Turner v. 
 Morgan (c) . But if the i3arty or parties praying a sale 
 have a moiety or upwards of the interest, then the advan- 
 tage of a sale is prima facie presumed, and the burden of 
 proving that it is not advantageous is on those who oppose 
 it {d) . 
 
 In a case under s. 3 the Court only regards the question 
 as to whether a sale would or would not be "more bene- 
 ficial" for the parties interested in a pecuniary view, and 
 it will not go into questions of sentiment (e). If the 
 advantage of a sale is established, the Court is not 
 restrained from granting it by the fact that only a small 
 proportion of the parties interested request a sale (/) . In 
 simple cases, where the value of the property is small, the 
 Court may order a sale at the trial, on being satisfied as 
 to the parties interested, without inquiry (p^); but the 
 general rule is for an inquiry at chambers to be directed. 
 Under this section, also, orders for sale have been made at 
 the request of infants {h) and married women {i) . 
 
 Under s. 4 it is imperative on the Court to order a sale, 
 unless it sees good reason to the contrary. The mere 
 fact that the owners of the other moiety oppose the sale is 
 not a reason to the contrary (k), nor is the fact that the 
 income of an infant defendant interested in a moiety might 
 be materially diminished by a sale (Z), nor that the owner 
 of one moiety is a yearly tenant of the whole property, 
 and occupies it for commercial purposes and resides 
 thereon (m). In a case in Ireland, it has indeed been laid 
 down that the only good reason to the contrary is to 
 
 (c) Supra, p. 668. (A) ro2««.^ v. F., 13 Eq. 175, n.; 
 
 (6?) IJrinkwater v. Ratcliffe, 20 France v. F., ibid. 173; Grove v. 
 
 Eq. 530; Pemberton v. Barnes, 6 Comyn, 18 Eq. 387. 
 
 Ch. 685; Roive v. Gray, 5 Ch. (i) Davis v. WietUsbach, cited, 
 
 D. 263. " 18 Eq. 388. 
 
 (e) Brinkwater v. RatcUffe, (k) Pemberton v. Barnes, 6 
 
 sup. Ch. 685, 694; Porter v. Lopes, 7 
 
 (/) Pemberton v. Barnes, sup.; Ch. D. 358. 
 
 Allen V. A., 21 W. R. 842. (I) Jlowe v. Gray, sup. 
 
 (,f/) Wood V. Greqory, 43 Ch. (m) Wilkinson v. Joberns, 16 
 
 D. 82; 59 L. J. Ch. 232. Eq. 14.
 
 THE PARTITION ACTS. 
 
 673 
 
 ehow affiriiiati\ely lliat there is no difficulty in making an 
 actual partition (n). 
 
 4. S. 5 enacts that " In a suit for partition, whore S. 6, 
 " if this Act had not been passed a decree for partition 
 "" might have been made, then if any party interested in 
 ^' the property to which the suit relates requests the Court 
 ■" to direct a sale of the property, and a distribution of the 
 "" proceeds, instead of a division of the propert}' between 
 ^' or among the parties interested, the Court may, if it 
 '■ thinks fit, unless the other parties interested in the pro- 
 "" perty, or some of them, undertake to purchase the share 
 ^' of the party requesting a sale, direct a sale of the pro- 
 ^' perty, and give all necessary or proper consequential 
 ^' directions; and in case of such undertaking being given, 
 "" the Court may order a valuation of the shares of the 
 " party requesting a sale in such manner as the Court 
 "" thinks fit, and may give all necessary or proper conse- 
 " quential directions." 
 
 And by s. 6: " On any sale under this Act, the Court ands. 6, 
 " 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 account- 
 " ing 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 construction to be put upon s. 5 was explained explained, 
 by Sir G. Jessel, M.E,., in Drinkwater v. BatcJiffe (o), 
 where it is pronounced to apply to a case not coming 
 under s. 4, inasmuch as a moiety do not apply for sale, 
 nor under s. 3, inasmuch as the Court is here supposed to 
 see no reason for preferring a sale to a partition; in other 
 words, to a case where parties representing less than a 
 moiety apply for a sale, but do not succeed in showing 
 that it is more beneficial than partition. In such circum- 
 stances s. 5 confers a new power on any party to apply for 
 
 (m) In re Langdale's Estate, 5 I. R. E. 572. 
 (o) 20 Eq. 530. 
 
 s. 43 ;
 
 67\4i PARTITION. 
 
 a sale, and declares that he is entitled to it unless the other 
 parties interested, or some of them, undertake to purchase 
 the share of the party requesting a sale. In short, if one 
 party, whatever his interest or reason, desires a sale, the 
 parties objecting must, if the Court thinks fit, either with- 
 draw their objections, or else be prepared to buy his share. 
 But there is nothing to compel a man to sell his share, and 
 it is open for a party requesting a sale on an offer being 
 made to purchase his interest to withdraw his request (p). 
 S. 5, in fact, gives an entirely new power to any party 
 who is prepared to sell liis own interest, to insist upon and 
 obtain a decree of sale, unless someone is willing to buy 
 his share, but does not give to the Court power to compel 
 any party interested to sell his share at a valuation; and 
 if the party rejects the offer of a valuation, he still has his 
 common law right to a partition, and all rights conferred 
 by tlie other sections of the Act, as far as he can brin,g 
 himself within them (q). If no party undertakes to pur- 
 chase the applicant's share, the Court ma^y exercise its 
 discretion, and is not bound to decree a sale (r). 
 
 Conduct j^g ^Q g g^ thougli as a general rule parties having the 
 
 conduct of a sale are not allowed to bid, this has .sometimes 
 been allowed (s). The more proper course, however, would 
 seem to be to give the conduct of the sale to some third 
 pei*son, if the parties desire liberty to bid (t). A sale out 
 of Court will only be directed under strict conditions (m); 
 but under Ord. LI. r. la, with a view to avoiding 
 expense or delay, a sale out of Court may be directed, the 
 proceeds of sale being brought into Court. 
 
 (p) Williams \. Games, \Q C\\. (r) Richardson v. Feary, 39' 
 
 204. Ch. D. 45; 57 L. J. Ch. 1049. 
 
 (</) See Pitt V. Jones, 5 App. (s) Pennington v. Balbiac, 18 
 
 CQb\,Teveming Gilbert y. Smith, W. R. 684. 
 
 8 Ch. D. 548; 11 Ch. D. 78, {t) Roughton \. Gibson, 2b VI. 
 
 wliere the whole of the vexed R. 269; Field v. Bracup; (1894) 
 
 question is fully considered and 1 Ch. 59; 63 L. J. Ch. 238. 
 authoritatively decided. (w) Pitt v. White, 57 L. T. 
 
 650; Re Stedman, 58 L. T. 709.
 
 THE PARTITION ACTS. 675 
 
 5. S. 9 was designed to avoid the difficulties which had S. ». 
 previously often arisen from the uon-joinder of all parties 
 interested in the suit. But it was found ineffectual, and 
 
 in consequence its amendment formed a conspicuous 
 feature of the Act of 1876. 
 
 6. Tlie following doubts which had arisen under the Doubts 
 administration of the Act of 1868 led to fresh legisla- tTe^Aft""^*^' 
 tion:— of 1868. 
 
 It was questioned whether a decree could be made for 
 sale of an estate if the bill did not contain a prayer for 
 partition as well as a sale (x). 
 
 To meet this, s. 7 of 39 & 40 Vict. c. 17, enacted that 39 & 40 Vict, 
 an action for partition should include an action for sale "• ^'' *• ^• 
 and distribution of the proceeds, and that it should be 
 sufficient to claim a sale, and not necessary to claim a 
 partition. 
 
 It having been held that a married woman could not 
 enter into an undertaking to purchase under s. 5 of the 
 Act of 1868 unless her husband joined therein, it was 
 enacted by s. 6 of the Act of 1876 that in an action for s. 6.. 
 partition a request for sale might be made on an under- 
 taking to purchase given on the part of a married woman 
 or other person under any disability by the next friend or 
 other person authorized to ax3t on behalf of such person; 
 but that the Court should not be bound to comply with, 
 any such request or undertaking on the part of an infant 
 unless it appeared that the sale or purchase would be for 
 his benefit (y). Under this section a partition action may 
 be brought by a person of unsound mind, not so found, 
 by his next friend (z). 
 
 Notwithstanding s. 9 of the Act of 1868, considerable 
 difficulty arose in cases where persons interested were out 
 of the jurisdiction, it being held that no sale could be 
 ordered unless every person interested in the property was 
 
 (.r) Tea/l v. Watts, 11 Eq. 213. Rimington v. Hartley, 14 Ch. D. 
 (y) See Grange v. White, 18 630. 
 Ch. D. 612; 50 L. J. Ch. 620; (r) Porter v. P. ,37 Ch. D. 430- 
 
 43 (2)
 
 ^76 PARTITION. 
 
 either a party to the cause or had been served with notice 
 of the decree (a). And where a decree for sale had been 
 made in the absence of such parties, the Court refused to 
 allow it to be acted upon until notice of the decree had 
 been given them by advertisement (&). The Court also 
 refused to decree a sale in the absence of a married woman 
 whose share in the property was vested in trustees (c). 
 ^' '• These decisions led to s. 3 of the Act of 1876, which 
 
 gave the Court discretion to dispense with service on 
 persons whom the Act of 1868 required to be served, 
 where service was impracticable, or could only be effected 
 at an expense disproportionate to the value of the pro- 
 perty, and to direct advertisements to be published instead 
 of such service; and it was provided that after the expira- 
 tion of the time limited by the advertisement, such persons 
 should be bound by the proceedings in the action, and 
 that the Court might then direct a sale. 
 
 Ss. 4 and 5 made provision for the payment into Court, 
 further disposal, and ultimate distribution of the pur- 
 chase-money, in cases in which service had been thus 
 dispensed with. 
 
 V. Costs. 
 
 The rule laid down in Agar v. Fairfax (d) was that 
 no costs would be given until the commission — that is to 
 say, until the hearing — but that the subsequent costs of 
 issuing, executing and confirming the commission should 
 be borne by the parties in proportion to the value of 
 their respective interests, without any costs of the sub- 
 sequent proceedings. It has been held that under the 
 
 (a) Eurrtj v. H., 10 Eq. 346; D. 360; 50 L. J. Ch. 272. 
 
 Teall V. Watts, sup. (c) Bodds v. Gronow, 20 L. T. 
 
 (6) Peters v. Baoon, 8 Eq. 125. 104. 
 
 See Pragnell v. Batten, 16 Cli. (rf) 17 Ves. 533.
 
 COSTS. 
 
 Partition Act, 1868, s. 10, the Court is not bound by 
 the old rule, and may now exercise its discretion (e). 
 Sometimes the old rule has been followed (/), but the 
 general rule now is that the entire costs should be borne 
 by the parties in proportion to their interests as declared 
 by the decree {g). Tliis is, however, subject to the dis- 
 cretion of the Court under the influence of special circum- 
 stances. Although there may be incumbrances, only one 
 set of costs is usually allowed out of each share {h) . 
 
 (e) Simpson v. Ritchie, It) Eq. (A) Cotton v. Banks, (1893) 2 
 
 103. Ch. 221; 62 L. J. Ch. 600; 
 
 (/) Wilkinson v. Jobervs, 16 Lanqrish v. Vase, W. N. (1901) 
 
 Eq. 14. 124; 84 L. T. 761; Re Mahony's 
 
 {g) Cannon v. Johnson, 11 Eq. Estxite, (1909) 1 Ir. K. 132; but 
 
 90; Ball v. Kemp-Welch, 14 Ch. see Belcher v. Williams, 45 Ch. 
 
 D. 512; Humphreys v. Jones, 31 D, 510. 
 ib. 30. 
 
 S7T
 
 ^78 SETTLKMENT OF BtJUNDAKIES. 
 
 Section II. — Settlement of Boundaries. 
 
 I. Otvnership of Soil must be in question. 
 II. Proof of Defendant's Possession and Plaintiff's* 
 Title, and necessity of Equitable Relief. 
 III. There must be Special Equitable Ground for Relief. 
 
 We leani from the leading case of Wake v. Conyers («) 
 some of the essential conditions which are required to 
 create a jurisdiction as to the settlement of boundaries — 
 conditions which are not rendered obsolete by the Judi- 
 cature Act (6). 
 'Soil must be I. There must be a bond fide dispute as to the owner- 
 "^'^ ■ ship of the soil itself. 
 
 Thus the Court will not issue a commission to ascertain 
 the boundaries of a parish in order to settle a dispute as to 
 tithes (c) or rates {d). There being such dispute, relief 
 has been granted where a part of the land in dispute 
 belonged to a charity, and could not be ascertained with- 
 out inquiry (e). The jurisdiction has been held to extend 
 to the colonies (/); but in principle this seems doubt- 
 ful {g). 
 
 Owner of rent An owner of a rent has been lield entitled to equitable 
 irelieved. • , u « i. " i 
 
 assistance, on usage oi payment, where in consequence 
 
 of the confusion of boundaries or otherwise, the particular 
 
 lands on which the rent Avas charged could not be fixed 
 
 («) 1 Eden, 331 ; 1 W. & T. {d) St. Luke's v. St. Leojmi-d's, 
 
 I.. C. 170, ed. 7. 1 Bro. C. C. 40. 
 
 (6) Lascellea v. Butt, 2 Ch. D. (p) Att.-Gen. v. Bowyer, 5 
 
 588. Ves, 300. 
 
 (o) Atkins v. Hntton, 2 Anst. (/) Tulloch v. Hartley, 1 Y. & 
 
 386. C. Ch. 114. 
 
 (17) See sup. p. 17.
 
 SETTLEMENr OF BOUNDARIES. '^T^i) 
 
 upon (h). But the plaintitl' must be able to fix upon some 
 part of the land, and say tliat it is part of the land sought 
 to be charged (i). 
 
 II. In order to claim relief, it is necessary for the plain- riaiutiif must 
 
 tiff to show that some portion of the land, the boundaries S'^?'^®, ^. 
 ^ ' attendant s 
 
 of which are alleged to be confused, is in the possession of ])osses8ion and 
 the defendant (k). He must also establish, by the admis- 
 sion of the defendant or by evidence, a clear title to some 
 land in the defendant's possession (l). He must also show 
 cleai'ly that without the assistance of the Court the 
 boundaries could not be found (m), or at least that, fail- 
 ing the assistance of equity, a multiplicity of legal actions 
 would be occasioned (n). 
 
 III. The jurisdiction as to the settlement of boundaries There must be 
 has been very jealously limited to cases in which some o-round for 
 equity is superinduced by the act of the parties. It is I'^lief. 
 important to inquire, therefore, what acts constitute a 
 sufficient ground for the jurisdiction. 
 
 If the confusion has been occasioned not by the negli- Fraud, 
 ■gence of both, but by the fraud of one of the parties, as 
 by his ploughing or digging too near the other, with the 
 intention of obliterating the boundaries, the Court has 
 jurisdiction (o). 
 
 Where such a relation exists between two parties as Confusion 
 that of tenant and landlord, which makes it the duty of i,y tenant. 
 the tenant to preserve the boundaries, if he permits them 
 to be destroyed, so that the landlord's land cannot be dis- 
 tinguished from his and specifically restored, he will be 
 <3om[)elled, even in the absence of fraud on his part, to 
 substitute land of equal value; and the land or its value 
 
 (A) B. of Leeds v. Powell, 1 Portsmouth Corp., 107 L. T. 260. 
 
 Ves. sr. 171. (m) Miller v. Warmiiifiton, 1 
 
 (t) Mayor, 4c. of Basingstoke J. & W. 491. 
 
 V. Bolton, 3 Drew. 50, 63. (;?) Bouverie v. Prentice, 1 
 
 (k) Att.-Gen. v. Stephens, 6 Bro. C. C. 200. 
 
 De G. M. & G. Ill, 149. (o) Bute v. Glamorgan Canal 
 
 (I) Godfrey v. Littel, 1 Russ. Co., 1 Ph. 681; Spike v. Hard- 
 
 .& My. 59; 2 ib. 630; Leith v. iiu/, 7 Ch. D. 871.
 
 680 SETTLEMENT OF BOUNDARIES. 
 
 may be ascertained by commission (p). And it seems- 
 that the same result would follow if tlic confusion waat 
 occasioned by a tenant for life (g). The remedy has been, 
 applied in the case of copyholds (r). Wiiere a confusion 
 of lands was occasioned by a devisor, and tliey came intO' 
 the hands of jjarties whose duty it was to ascertain the 
 boundaries, a person entitled to part of such lands was 
 allowed to come into equity to establish his claim (s). 
 
 Relief will be granted not only against a party guilty 
 of neglect or fraud, but also against all claiming under 
 him, either as volunteers or purchasers with notice (i^). 
 
 (^) Ah. -Gen. v. Fullerton, 2 (r) Henrle v. Cooke, 43 Ch. D.- 
 
 V. & B. 264; Brovm v. Wales, 519; 59 L. J. Ch. 259. 
 
 15 Eq. 142. (s) Hicks v. Hnstinrjs, 3 K. &. 
 
 - ' {q) Att.-Geti. v. Stephens, t> J. 701. 
 
 De G. M. k. G. 133. (0 Att.-Oen. v. Stephens, sup.-
 
 f)81 
 
 CHAPTER V. 
 
 SPECIFIC PERFORMANCE. 
 
 Section I. — Principles of the Jurisdiction. 
 
 I. Generally. 
 II. Grounds for refusing Relief. 
 
 1. From the Nature of the Contract. 
 
 2. From the Conduct of the Flaintiff. 
 III. Statutory Modifications of the Jurisdiction. 
 
 I. The remedy for a breach of contract at oommon law Geueral 
 is personal only; the sole redress which it affords to a of the 
 disappointed party is damages. Consequently, as far as jurisdiction, 
 the common law remedy is concerned, it is open to a con- 
 tracting party either to perform the contract or to pay 
 damages, and to choose between these two courses at his 
 pleasure. Equity, on the other hjiinl, has regarded such 
 a remedy as in man}^ cases inadequate; and, deeming a 
 contracting party bound in conscience to do exactly what 
 he has agreed to do, has exercised its authority to compel 
 the Specific Performance of such agreements. 
 
 But it is not in every case that equity will thus interfere. Remedy 
 The ground of its jurisdiction being the imidequac}' of the bgin^dMuate 
 remedy at law, it follows as a general principle that where 
 damages at law will give a i)artv the full compensation to 
 which he is entitled, and will put him in a position aj^ 
 beneficial to him as if the agreement had been specifically 
 performed, equity will not interfere.
 
 682 
 
 SPECIFIC I'EKFORMANCE. 
 
 Equity 
 reg'ards the 
 substance, 
 not the form 
 
 The juiis- 
 diction is 
 discretionaiy. 
 
 General 
 grounds 
 of refusing- 
 specific 
 performance. 
 
 Agreement 
 must be 
 lawful. 
 
 The jurisdiction is not, Iiowovit, dependent upon or 
 affected by the form or character of the contract. It 
 suffices that the transaction in substance amounts to and' 
 is intended to be a binding agreement for a specific 
 object. Thus, if a bond with a penalty is made upon con- 
 dition to convey certain lands upon the payment of a cer- 
 tain price, it will be deemed in equity an agreement to 
 convey the land at all events, and not to be discharged by 
 the purchaser's election to pay the penaltj', although it has 
 assumed the form of a condition only (a). It suffices that 
 the primary object of the parties is the transfer of the pro- 
 perty, and if that requires specific performance, the 
 penalty will be regarded only as a security for its attain- 
 ment (b). 
 
 Further, the exercise of the jurisdiction of equity to 
 grant specific performance is always discretionary. The 
 mere fact that the legal remedy is not adequate relief for 
 the breach of a contract is not in itself sufficient to give to 
 a plaintiff a claim as of right to the assistance of a Court 
 of equity. The Court will always look at all the facts of 
 the case, and will direct or refuse its action accordingly; 
 and it may well bo that something in tlie circumstances 
 of the case, or in the position or conduct of the i^arties, 
 will prevent the granting of the relief where the nature of 
 the agreement would seem to afford good ground for 
 seeking it. 
 
 II. Before proceeding, therefore, to examine particu- 
 larly the operation of the doctrine of specific performance, 
 it Avill be convenient to inquire what are the circumstances 
 which will, on general grounds, induce equity to refuse its 
 assistance. These circumstances relate either to the nature 
 of the contract or to the conduct of the parties. 
 
 1. From the nature of the contract. 
 
 (1.) The agreement must be a lawful one. 
 
 There is clearly no jurisdiction in equity to enforce an 
 
 (a) Fi-etich v. Mncile, 2 Dr. (!^ {!>) Story, 715. 
 
 W. 269, 274, sap. p. 260.
 
 GEMERALLY. *>^'^ 
 
 •agreement which the law will not roeognisc at all. It is, 
 •as we shall sec, often a ground for equitable relief that 
 there is no remedy at law owing to the neglect of soma 
 formal provision, such as the writing or signature of a 
 party, while nevertheless the circumstances are such as to 
 render it inequitable for the party to avail himself of such 
 a, defence, and thus to refuse performance. But it is 
 •obvious that the neglect of such a legal provision cannot 
 make a contract any bettor than it would have been if that 
 provision had been complied with. Thus, though the 
 'Court will in some cases enforce parol arrangements in the 
 nature of a trust, it cannot do so when the trust or under- 
 : standing is designed to compass what is illegal — as, for 
 instance, to hold land for the purposes of a charity in 
 evasion of the Mortmain Acts (c), or agreements in re- 
 straint of trade (d), or infringing the rule against per- 
 petuities (?). Nor will it enforce an agreement which 
 would result in the commission of a fraud, or which calls 
 upon a man to do what he is not competent to do (/), still 
 less an immoral agreement. Where a contract has been 
 divisible, part being legal and part illegal or impractic- 
 able (g), the legal part has been enforced (h). Specific 
 performance has been refused when to enforce it would be 
 to compel the defendant to commit a breach of a prior 
 agreement with another person (i), and where perform- 
 ance would give rise to a fraud on the public (k). 
 
 (2.) On the same principle, an agroomont without con- On i{ood 
 
 • -I ,• ,1 (. 1 £ ■ J. 1 consideration, 
 
 eideration cannot be eniorced — as, tor instance, where a 
 
 person by voluntary settlement covenants to convey lands, 
 
 .and afterwards refuses to do so, or disposes of the lands 
 
 (c) Stirkfoi/d V. Aldridfjc, 9 (rf) WUkinsoii v. Clements, 8 
 
 Ves. 516. C"h." 96. 
 
 {d) Sup. p. 206. (/O Odessa, «.|r. Co. v. Mendel, 
 
 (e) Worihuiq Corp. v. Heather, 8 Ch. D. 235. 
 
 (1906) 2 Ch. 532; 75 L. J. Ch. (/) Wi'hnott v. Barber, 15 Ch. 
 
 764. D. 96. 
 
 (/) Harnett v. Yptlding, 2 S. (k) Post v. Marsh, 16 Ch. D. 
 
 . &L. 549. 395; 50 L. J. Ch. 287.
 
 684 
 
 SPK( I FIC PKKFOKM A NCK. 
 
 Complete 
 and not 
 ambisiions. 
 
 Reasonable, 
 a Lid not 
 prejudicial to 
 third persons. 
 
 Not pro- 
 ductive of 
 future 
 litij^ation. 
 
 otherwise by his will (l). Here, again, none of the cir- 
 cumstances which constitute a claim upon equity for 
 assistance can make the agreement any stronger than it 
 would have been at law. 
 
 (3.) There must be a completed agreement, and the 
 terms of it must be certain and unambiguous (m). But in 
 some cases where the evidence was in some respects con- 
 tradictory, the Court has decreed performance, at the same 
 time directing inquiries to ascertain the precise terms 
 about which the parties differed (n); and it is not neces- 
 sary to prove terms which are immaterial^e.^f., an agree- 
 ment to do an act which has been already done, or which 
 would be enforceable apart from such stipulation (o). 
 
 (4.) Equity will not interfere to assist a contract which 
 is unreasonable or prejudicial to third parties interested in 
 the property {p), and though mere inadequacy of con- 
 sideration is not of itself a sufficient ground for refusing- 
 specific performance (g), equity has refused its assistance 
 where its decree would work great hardship on the defen- 
 dant (^), or would cause a forfeiture (s); and also where- 
 there were depreciatory conditions in a sale by trustees (t); 
 but in general if hardship is made a ground of defence, 
 it ought to be proved that it existed at the date of the- 
 contract (m). 
 
 (5.) A contract will not be enforced when future litiga-- 
 tion is likely to result from its performance — for instance,, 
 forcing a doubtful title, or even what is called 
 
 (I) Jefer>/s v. J., Cr. i: Ph. 
 138, 141. 
 
 (m) Swfiisl(i))d V. Beardey, 29 
 Beav. 430; Tatham v. Piatt, 9 
 Ha. 660; Taylor v. Portim/ton, 7 
 De G. M. & G. 328; Patfle v. 
 Hornibrook, (1897) 1 Ch. 25: 66 
 L. J. Ch. 144. 
 
 (w) Mortimer v. Orchard, 2 
 Ves. jr. 243; Chnftocl- \. Mailer. 
 S Ch. D. 177. 
 
 (o) Grer/ory v. Mir/Jifll, 18 Ves. 
 328. 
 
 (jo) Thomas v. Der'ni'i, 1 Keon, 
 729; Bppxton v. i^iutply, 6 W. \\. 
 
 a good 
 
 206. 
 
 (^q) Raynywdy.CopCylb Beav.. 
 140; Sullivan v. Jacob, 1 Moll.. 
 477. 
 
 (;■) JFt'dffU'ood v. Adams, 6- 
 Beav. 600; 8 Beav. 103; Watson 
 V. Marston, 4 De G. M. & G. 230.. 
 
 (.s) Peacock V. Penson, 11 Beav. 
 355. 
 
 (0 DiDui V. Flood, 28 Ch. D.. 
 586; 25 ib. 629; 54 L. J. Ch. 
 370; but now see 56 & 57 Vict.. 
 c. 53, s. 14. 
 
 (;/) U-rhl, V. L. ,\- r. P. Co.,. 
 !) Hii. 129.
 
 GEN KR ALLY. 
 
 685 
 
 Loldinof title " {x) upon a purchaser (//), or where there 
 are other conflicting claims likely to harass the pur- 
 chaser (z). 
 
 (6.) Nor will specific performance be decreed of a con- Possible of 
 tract which it is impossible to perform, or the material 
 terms of which the Court has it not in its power to 
 enforce (a); as, for example, a contract involving personal 
 skill, or inclination (b). 
 
 2. As to the conduct of the pctrties. 
 
 (1.) It is a general rule of equity th.a,t a plainf iff must The plaintiff 
 €ome loith clean hands. The Court will never counten- ^vith clean 
 ance fraud. If, therefore, a plaintiff has been guilty of ^'*"^8, 
 any wilful misrepresentation, or fraudulent suppression 
 of the truth, or has put forth misleading jDarticulars or 
 conditions (c), he will get no relief {d). And if he has 
 obtained the agreement by misrepresentation, he will not 
 be able to get specific performance on waiving the parti 
 affected by the misrepresentation, and asking for per- 
 formance pro tanto. Such conduct operates as a personal 
 bar (e). But a mere indefinite misrepresentation, such as 
 ought to put a person upon inquiry, will not so operate (/). 
 So, also, though suppression of truth may be a bar {g), the 
 mere suppression of acts having been done by the plaintiff, 
 when the defendant must have known they were done by 
 
 («) Nottingham Brick Co. v. D. 309; 54 L. J. Ch. 605; Re 
 
 Butler, 16 Q. B. D. 778. Beyfus and Masters, 39 Ch. D. 
 
 (y) Rogers v. Waterhouse, 4 110. 
 Drew. 329; RarMn v. Thorold, 16 (d) Brysdale v. Mace, 5 De G. 
 
 Beav. 59, 67; Laivrie v. Lees, 7 M. & G. 103; FalcJce v. Gray, 4 
 
 App. C. 19; 51 L. J. Ch. 209; Drew. 651; Play ford v. P., 4 
 
 Re Brigqs v. Spicer, (1891) 2 Ch. Ha. 546; Re Davis and Cavey, 40 
 
 127; 60 L. J. Ch. 514. Ch. D. 601; 58 L. J. Ch. 143; 
 
 (z) Pegler v. White, 33 BeaA'. Stewart v. Kennedy, 15 App. C. 
 
 403. 75. 
 
 (a) Green v. Smith, 1 Atk. (e) Clermont v. Tasburgh, 1 
 
 572, 573; Waring v. M. S. # L. J. & W. 112. 
 R. Co., 7 Ha. 483, 492; Hi^qrave (/) Fcnton v. Broione, 14 Ves. 
 
 V. Case, 28 Ch. D. 356; 54 L. J. 144; Attwood v. Small, 6 C. & F. 
 
 Ch. 399. 232. 
 
 (i) Lumley v. Wagner, 1 De (.17) Shirley v. Stratton, 1 Bro. 
 
 G. M. & G. 604. ' C. C. 440. 
 
 (c) Brewer v. Brown, 28 Ch.
 
 686 
 
 SPECIFIC PERFORMANCE. 
 
 somebody, is not sufficient (h). So if the plaintiff has 
 induced the defendant to take too much drink, and then: 
 taken advantage of him, not only would specific perform- 
 ance be refused, but the contract would bo rescinded (^); 
 and if, though the plaintiff were innocent of inducing the- 
 defendant to drink, he was so intoxicated as to be incapablei 
 of exercising sound judgment, that would alone prevent a 
 decree for specific performance (k). Reference may be 
 made to the chapter on Fraud for the fuller analysis of 
 contracts viewed with disfavour in equity on such grounds 
 as are here mentioned. If a contract is such that equity 
 will rescind it as fraudulent, a fortiori, it will refuse 
 specific performance. 
 
 (2.) V igilantihiis non dormientibus trquitas suhvenit. 
 and promptly. A plaintiff' must comc within a reasonable time with his- 
 demand. Laches will dis-entitle him to assistance (Z). 
 •Especially is this the case when the subject-matter of the 
 contract is an article of fluctuating value; so that delay 
 may greatly change the aspect of the bargain {m). 
 
 III. It will be convenient also here to call attention to- 
 certain statutes which have affected the jurisdiction in 
 these matters, particularly the Chancery Amendment Act, 
 21 & 22 Vict. c. 27, commonly known as Lord Cairns' Act. 
 
 (1.) By this statute, which took effect from and after 
 the 1st of November, 1858, it is enacted that in all 
 cases in which the Court of Chancery has jurisdiction to- 
 entertain an application for an injunction against a breach 
 of any covenant, contract, or agreement, or against th& 
 commission or continuance of any wrongful act, or for the 
 specific performance of any covenant, contract, or agree- 
 
 Statutory 
 modificatii >ii8 
 of the 
 jurisdiction. 
 
 Cainis' Act. 
 •1 1 t •2-2 Virt 
 c. 27. 
 
 (A) Haywood v. Copr, 26 Beav. 
 140. 
 
 (i) Cooke V. Clayworth, 18 
 Ves. 12. 
 
 (k') Cragg v. Holme, cited 18 
 Ves. 14; but see Lightfoot v. 
 Heron, 3 Y. & C. Ex. 586. 
 
 (0 Moore v. Blake, 1 Ball & B. 
 62; Smith v. Clay, 3 Bro. C. C. 
 640; Eads v. Williams, 4 De G. 
 M. & G. 674, 691; Levy v. 
 Siogdon, (1899) 1 Ch. 5; 68 L. J. 
 Ch. 19. 
 
 im) Pollard v. Clayton, 4 K_ 
 & J. 462.
 
 GENERALLY. 687 
 
 ment, it shall bo lawful for the same Court, if it shall 
 think fit, to award damages to the party injured, either in 
 addition to or in substitution for such injunction or 
 specific performance, and such damages may be assessed 
 in such manner as the Court shall direct. It also provides 
 means for the assessment of damages and the trial of 
 questions of fact either by a jury before the Court itself 
 or by the Court alone, or for the assessment of damages 
 by a jury before any judge of one of the Superior Courts 
 of Common Law at nisi prius, or before the sheriff of any 
 county or city. 
 
 With reference to the construction and application of 
 this Act, the following points seem to be settled: — 
 
 (i.) That the statute does not extend the jurisdiction of Effects of this 
 the Court to cases where there is a plain common law ^'^^• 
 remedy, and where before the statute it would not have 
 interfered (n). In other words, the Court could not under 
 the Act award damages save in cases where it had j uris- 
 diction to decree specific performance. It could give 
 damages in lieu of, or in addition to, specific performance; 
 but this ability brought no new matter within the 
 principle of specific performance (o). 
 
 (ii.) Where, however, the Court has jurisdiction to 
 grant specific performance, it may award damages for 
 non-performance of part of the contract, in respect of 
 which part it could not have enforced specific perform- 
 ance. For example, though, generally speaking, there 
 is no jurisdiction to decree specific performance of a con- 
 tract to build a house, the remedy at law being complete, 
 yet if a plaintiff asks for specific enforcement of an agree- 
 ment whereby he undertook to grant and the defendant to 
 take a lease as soon as the defendant should have built a 
 new house on the land, the plaintiff may be awarded 
 damages for the non-building of the house at the same 
 
 («) Wicks V. Hunt, Johns. 175; Lcwers v. Shaftesbury, 2 
 372, 380. Eq. 270; Lavery v. Purssell, 39 
 
 (o) Rogers v. Ohallis. 27 Beav. Ch. D. 508; 57 L. J. Ch. 570.
 
 t)8« SPECIFIC PERFORMANCE. 
 
 time that he obtains a decree for specific performance of 
 the agreement to accept a lease (p). 
 
 (iii.) A plaintiff will not be entitled to damages if he 
 has done any act, or has been guilty of any laches, which 
 would disentitle him to specific performance {q) . 
 
 (iv.) Though, as a general rule, damages will be 
 awarded only as incidental to granting specific perform- 
 ance or an injunction, yet damages may be given where' 
 the evidence is insufficient to procure a mandatory 
 in j miction (r). 
 
 (v.) The power to give damages being discretionary, 
 the Court may refuse to give damages where the question 
 of damages can be more satisfactorily tried at law (s). 
 
 Lord Cairns' Act has been repealed by 44 & 45 Vict, 
 c. 59, but without prejudice to any jurisdiction or prin- 
 ciple or rule of law or equity established or confirmed by 
 it. The above authorities accordingly remain applicable. 
 Rolt'sAct, (2.) By 25 & 26 Vict. c. 42, the Court of Chancery 
 
 ^42 ^^ naay, in its discretion, direct an issue to be tried at the 
 assizes or at nisi prius, where the circumstances render 
 such a course advisable, and the case is a proper one for 
 equitable relief (i^). 
 Judicature ('3 ^ gy ^lie Judicature Act. 1873 (u), s. 34, all causes 
 
 Act 1873. \ / J \ yi ■> 
 
 and matters for the specific performance of contracts 
 
 between vendors and purchasers of real estates, including 
 
 contracts for leases, are assigned to the Chancery Division 
 
 of the High Court of Justice. 
 
 Having regard to these preliminary matters, we proceed 
 
 to consider the general operation of the doctrine of specific 
 
 performance, illustrated by the leading decisions on the 
 
 subject. 
 
 (p) Soames v. Edge, Johns. {r) City of London Brewery v. 
 
 669; Wilkinson v. Clements, 8 Tennnnt, 9 Ch. 212; Holland v. 
 
 Ch. 96. Worley, 26 Ch. D. 578; 54 L. J. 
 
 (^) Collins V. Htuteley, 7 W. Ch. 268. 
 
 R. 710; Martin v. Price, (1894) (s) Durdl v. Pritch-ayd, 1 Ch. 
 
 1 Ch. 276; 63 L. J. Ch. 209; 244. 
 
 Lavery v. Pursscll, sup. (^) Ibid. 
 
 (u) 3G &, 37 Vict. c. 66.
 
 CONTRACTS RKLATING TO LAND. 689 
 
 SbCTIOX II. — To WHAT CONTRACTS THE ReMEDY IS 
 
 Applied. 
 
 I. CoutriicU rekiting to Land. 
 
 II. f'oiitracU relating to Personal Chattels. 
 
 1. General Ride. 
 
 2. Special Circitmstwwes giving Jurisdiction. 
 III. Contracts respecting Persional Acts. 
 
 I. Contracts relating to Laiid. 
 
 1 . It has been said that where a contract in writing" General rule 
 respecting real property, in conformity with the Statute of specific 
 Prauds, is entered into between competent parties, and is performance. 
 in its nature and circumstances unobjectionable, it is as 
 
 much of course for a Court of equity to decree specific 
 performance, as it is for a Court of common law to give 
 damages for the breach of such a contract («), and the fact 
 that the lands in question are situate out of the jurisdic- 
 tion is no bar to the remedy (b). 
 
 2. We elsewhere fully discuss the action of the Courts Defence 
 
 of equity in those cases in which the Statute of Frauds Frauds infra 
 has not been complied with, but in which it is neverthe- P- ''^^• 
 less deemed equitable to assist the plaintiff; and under 
 this head it therefore now only remains to call attention to 
 certain special circumstances under which the jurisdiction 
 has been appealed to. 
 
 («) Hall V. Warren, 9 Ves. (6) Peiin v. Baltimore, sup. 
 
 K)05, 608. p. 16. 
 
 s. 44
 
 690 
 
 SPECIFIC PERFORMANCE. 
 
 Contracts to 
 take lands 
 under 
 statutory 
 powers. 
 
 Effect of 
 notice to 
 treat. 
 
 Agreements 
 for leases and 
 mortgages. 
 
 3. Considerable diseussion has taken place respeoting- 
 contracts by railway companies to take lands under the 
 statutorj' powers conferred upon them; and it is settled 
 that such companies are equally with private individuals 
 amenable to the enforcement of specific performance at 
 the suit of the vendor. This has been put upon the basis- 
 of mutuality of remedy: the company being able to> 
 compel the transfer, the vendor has on his side a right 
 to insist on the specific performance of the contract (c). 
 Where also a railway company has given notice to treat 
 for land, and the price has been fixed by the landowner 
 and the company, or by arbitrators under the Lands 
 Clauses Consolidation Act, the railway company is treated 
 as an ordinary purchaser, and will be compelled in equity 
 to complete the purchase {d) . So, also, if after notice tO' 
 treat the company has paid the purchase-money for lease- 
 holds, and has with the consent of the lessee been admitted 
 into possession, it will at the suit of the lessee be com- 
 pelled to accept an assignment with the usual cove- 
 nants {d). 
 
 4. Agreements to grant leases or mortgages in considera- 
 tion of money due are frequently the grounds of suits 
 for specific performance (e). But equity will not enforce 
 the granting of a lease, when the lease, if granted, might 
 be determined at onoe for a breach of a covenant which, 
 the plaintiff has already broken (/), or where no date is 
 fixed hj the contract for the commencement of the 
 term {g). And it has refused to enforce an agreement for 
 a yearly tenancy, on the ground of the adequacy of the 
 legal remedy {h); but circumstances may justify the en- 
 forcement of such a contract {i) . 
 
 (o) Boherty v. Waterford and 
 Limericlc Railway, 13 Ir. Eq. 538. 
 
 (d) Harvey v. Met. R. Co., 7 
 Ch. 154. 
 
 (e) Hermann v. Hodges, 16 
 Eq. 18; Nicholson v. Smith, 22 
 Ch. T). 640; 52 L. J. Ch. 191. 
 
 (/) 7oMgsv./.,12Ve8. 186, 188. 
 
 ((/) Oxford, M. of V. Grow, 
 (1893) 3 Ch. 535. 
 
 (A) Clayton v. lllinqworth, 10 
 Ha. 451. 
 
 (0 Lever v. Koffler, (1901) 1 
 Ch. 543; 70 L. J. Ch. 395.
 
 CONTRACTS RELATING TO PERSONAL CHATTELS. 691 
 
 II. Contracts relating to Personal Chattels. 
 
 1 . These are distinguishable from contracts relating to General 
 
 land, not bv any difference in the principle on which they ^istmction 
 
 ' <■' -^ r 1 ./ from contracts 
 
 are treated, but because from their nature a breach thereof respecting 
 has usually a complete remedy at law. 
 
 The loading authority respecting this part of the sub- 
 ject is Cuddee v. Rutter (k). 
 
 This was a bill to transfer £1,000 South Sea Stock 
 which the defendant had agreed to transfer at the rate of 
 104 per cent. Before the time specified for the delivery 
 the stock rose largely in value; the defendant did not 
 deliver the stock, but offered to pay the difference, and so 
 submitted by his answer. Lord Chancellor Parker dis- 
 missed the bill on the ground that one £1,000 stock was 
 as good as another, which the plaintiff might have bought 
 of any person on the same day. If the plaintiff, therefore, 
 had accepted payment of the difference from the defendant, 
 he would not have suffered at all by the fact that the 
 agreement was not specifically performed. The case was 
 very different from that of lands of which one parcel could 
 rarely be substituted for another with the same conveni- 
 ence to the purchaser, though it might be of the same 
 market value. 
 
 2. The legal remedy therefore being adequate, there is Specific 
 generally no ground for the exceptional and discretionary only^^^nted 
 interference of equity in contracts respecting personal in special 
 chattels. Special circumstances may, however, induce the stances. 
 Court to decree specific performance of such contracts; 
 
 and these may be classed under three heads: first, where 
 there is some peculiar difficulty in applying the legal 
 remedy; secondly, where there is some peculiarity in the 
 position of the parties, which gives a special claim for 
 equitable assistance; thirdly, where the jurisdiction arises 
 from the peculiarity of the subject-matter of the contract. 
 
 (k) 5 Vin. Ab. 538, pi. 21; 2 W. & T. L. C. 416, ed. 7. 
 
 44 (2)
 
 rm 
 
 SPECIFIC PERFORMANCE. 
 
 <1.) Where 
 there is 
 difficulty in 
 applying the 
 legal remedy. 
 
 E.ff. in 
 estimating 
 the damage's . 
 
 (1.) Ill the following cases, the difficulty of applying 
 the legal remedy was held to give jurisdiction to equity to 
 insist on specific performance. 
 
 In Taylor v. Neville (Z) specific performance was decreed 
 of a contract for sale of 800 tons of iron to be delivered 
 and paid for in a certain number of years, and by instal- 
 ments; Lord Hardwickc stating as the reason of his 
 decision that as the profit upon the contract depended 
 upon future events, it could not be correctly estimated in 
 damages, but a calculation thereof could only proceed 
 upon conjecture. 
 
 In Buxton v. Lister (m) Lord Hardwieke put the case of 
 a ship's carpenter purchasing timber which was peculiarly 
 convenient to him by reason of its vicinity, and also the 
 case of an owner of land covered with timber contracting 
 to sell the timber in order to clear the land, and assumes 
 that, as damages would not be a complete remedy, specific 
 performance of such contracts would be decreed. 
 
 In Adderley v. Dixon (n) specific performance was, at 
 the suit of the vendor, decreed of an agreement to 
 purchase certain debts which had been proved under two 
 commissions of bankruptcy, on the ground that damages 
 at law could not accurately represent the value of the 
 future dividends, and oould only be conjectural. 
 
 Similar principles have led to the enforcement of con- 
 tracts for the purchase of annuities (o), and of a patent (p). 
 
 By the Sale of Goods Act, 1893 (q), it is now enacted 
 that in any action for breach of contract to deliver specific 
 goods the Court may direct that the contract shall be 
 performed specifically, without giving the defendant the 
 option of paying damages. The reasons which would 
 induce the Court to exercise this statutory discretion are 
 
 (I) Cited in Buxton v. Lister, 
 -3 Atk. 384. 
 
 (m) Sup. 
 
 («) 1 S. & S. 607. 
 • (o) Cliford V. Turrell, 1 Y. & 
 
 C. C. 138; K(mny v. Wexham, 6 
 Madd. 355. 
 
 {p) Cogent v. Gibson, 33 Beav. 
 557. 
 
 (q) 56 & 57 Vict. c. 71, s. 52.
 
 CONTRACTS RELATING TO PERSONAL CHATTELS. ^^^ 
 
 doubtless those disclosed by the cases referred to in this 
 
 chapter. 
 
 (2.) Jurisdiction is sometimes founded on some special (-'•) Special' 
 , . . relation 
 
 relation between the parties. between the 
 
 (i.) Thus, on the ground that the remedy ought to be P**'*tie8. 
 mutual, a plaintiff is sometimes assisted, when it might be mutual, 
 have been thought that damages would have completely 
 compensated him. This argument was used in Adderlei/ 
 V. Dixon (r) above quoted, and also in the cases respecting 
 annuities, where the vendor .was assisted, though his de- 
 mand was only for a money payment. The same principle 
 was relied on in the suits against railway companies for the 
 completion of purchases of land, already discussed. And 
 it seems established that where one party to a contract has 
 a right to ask for specific performance, the other party 
 will also be entitled to similar assistance, notwithstanding 
 that a simple money payment would seem to indemnify 
 him. 
 
 (ii.) Again, if a trust be created, tlie circumstance that Trusts, 
 the subject-matter of the trust is a personal chattel will 
 not prevent the Court from enforcing due execution of the 
 trust, whether against the trustees or persons obtaining 
 possession of the property with notice (s) . 
 
 (iii.) The relation of principal and agent and other Principal an^ 
 similar relations have also been held to be sufficient to 
 move a Court of equity where it would otherwise have left 
 the parties to law. Where a fiduciary relation subsists 
 between the parties, whether it be the case of an agent, 
 or a trustee or a broker, or whether the subject-matter be 
 stock or cargoes or chattels of whatever description, the 
 Court will interfere to prevent a sale, either by the party 
 entrusted with the goods, or by a person claiming under 
 him(0. 
 
 (3.) The cases most frequently referred to as illus- (3.) Pecu- 
 liarity of the 
 
 (r) 1 S. & S. 607. H. L. 257. 
 
 (s) Pooley V. Budd, 14 Beav. (0 Wood v. B.oivcUffe, 2 Ph. 
 
 34, 43, 44; Stanton v. Percival, 5 382.
 
 694 
 
 SPECIFIC PERFORMANCE. 
 
 «ubjoct- 
 anatter. 
 
 Heirlooms, 
 
 Deeds 
 
 and writin^a. 
 
 Sale of shares 
 dn <;«»mpanifs. 
 
 trating the interference of equity in a transaction respect- 
 ing chattels on the ground of the peculiarity of the 
 subject-matter of the contract are Pusey v. Piisey (u) 
 and SoYTuerset v. Cookson{x). 
 
 In the former of these cases the unique Pusey horn was 
 ordered to be specifically delivered up to the plaintiff, and 
 in the latter a curious Greek altar piece. It is clear that 
 it would be a most insufficient remedy to decree payment 
 of the intrinsic value of such articles as these, which could 
 not at any price be replaced. 
 
 (i.) These eases are typical of one division of this class. 
 Heirlooms, and chattels of unique character, may evidently! 
 be said to partake of the quality of land in that they may 
 be of much greater value to one person than to another. 
 Their value to a given person is not estimable in 
 damages (?/). Within the same principle have been in- 
 cluded pictures and other works of art (z). But where 
 by the terms of the agreement and the frame of the 
 pleadings, the plaintiff, seeking restitution of a picture 
 had in effect put a fixed price upon it, it was held that 
 damages would be an adequate remedy, and equity refused 
 to interfere (z). 
 
 (ii.) On the same principle, the Court will order the 
 delivery up of specific deeds and writings to the persons 
 legally entitled to them (a) . In suits of this nature it 
 is not necessary in equity, as it was in law, to prove 
 conversion or resistance to deliver them up when sought to 
 be recovered (&). 
 
 (iii.) More numerous are the cases which have arisen 
 out of contracts for the sale of shares in railways and joint 
 stock companies. In Duncuft v. Albrecht (c), a distinction 
 
 (m) 1 Vern. 273; 2 W. & T. 
 L. C. 454, ed. 7. 
 
 (a;) 3 P. Wins. 389; 2 W. k T. 
 L. C. 455, ed. 7. 
 
 (y) Fells V. Read, 3 Ves. 70. 
 
 (z) Fnlcke v. Gray, 4 Drew. 
 651, 658; Bowling v. Betjpmnnn, 
 2 J. & II. 544. 
 
 («) Brown v. B., I Dick. 62; 
 Jackson v. Butler, 2 Atk. 306; 
 lieece v. Trye, 1 De G. & Sm. 
 273; Gibson v. Ingo, 6 Hare, 
 112. 
 
 {b) Turner v. Letts, 20 Beav. 
 185, 191. 
 
 (c) 12 Sim. 189.
 
 CONTRACTS RELATING TO PERSONAL CHATTELS. 695 
 
 was drawn between railway shares and public stock, the 
 former being limited in number, and not always obtain- 
 able (d) . Shares in a joint stock company have been 
 similarly dealt with(e); and it was considered no bar to 
 the jurisdiction that by the deed of settlement share- 
 holders could only transfer their shares in such a manner 
 as the directors should approve. 
 
 An agreement to accept shares in a joint stock company Agreements 
 ma}^ be specifically enforced in equity, if the directors are shares 
 prompt in instituting proceedings for that purpose (/); 
 and in the absence of deception it is no objection that a 
 call has been made on the shareholders, of which the pur- 
 chaser had no notice (g). Seciis if the purchase was made, 
 or even tlie money paid and a transfer (>xecuted in 
 ignorance that a winding-up petition had been pre- 
 sented (h) . 
 
 (iv.) The Acts for the regulation of British shipping (i) Ships, 
 have modified the action of equity as to the contractsi 
 reepecting British ships. As, under the operation of the 
 Acts, there can be no transfer in equity which is not a 
 transfer at law, equity will not enforce a contract for the 
 purchase of a British ship or of shares therein (Jc). The 
 Court has jurisdiction to compel a foreigner specifically to 
 perform a contract for the sale of a foreign ship (1). 
 
 (v.) Where the goodwill of a business is altogether or Goodwill 
 principally annexed to the premises on which it is carried "^ usuip^^'- 
 on, a contract for the sale of the goodwill and premises 
 may be enforced in equity (m) ; but the Court will not 
 decree specific performance of a contract for the sale of the 
 goodwill of a business unconnected with the premises (n) . 
 
 (d) Show V. Fisher, 2 De G. & (A) Emmerson's Case, 1 Ch. 433. 
 Sm. 11. (0 8 & 9 Vict. c. 89; 17 & 18 
 
 (e) Poole V. Middleton, 29 Vict. e. 104. 
 
 Beav. 646. (Jc) Huqhes v. Morris, 2 De G. 
 
 (/) New Bnnixwick, 4c. Co. v. M. & G. 349. 
 
 Muggeridge, 4 Drew. 686 ; (0 Hart v. Herwig, 8 Ch. 860. 
 
 Oriental, t<f. Co. v. Briggs, 2 {m) Crutticell v. Lye, 17 Ves. 
 
 J. & H. 625. " 335. 
 
 (p') Hawkins v. Malfhif, 3 Ch. («") Baxter v. Conolly, 1 J. & 
 
 188; 4 Ch. 200, 202. W. 576.
 
 am 
 
 SPECIFIC PERFORMANCE 
 
 Sales at a 
 valuatiou. 
 
 (vi.) We may here conveniently treat of contracts for 
 sale at a price to be determined by arbitration or valuation. 
 In these cases, unless the price be fixed in the manner 
 determined upon so as to be made part of the agreement, 
 specific performance will not usually be decreed (o). But 
 if the vendor refuses to allow a valuer to enter to make a 
 valuation the Court will make a mandatory order to 
 compel the vendor to allow him to enter, and to enable the 
 valuation to proceed (p). And where the fixing of the 
 value by arbitrators is not of the essence of the agreement, 
 the Court will carry the agreement into effect, and will 
 itself, if necessary, ascertain the value (g). 
 
 Acts relating 
 to land. 
 
 Contracts to 
 build or repair 
 not generallj'' 
 enforced. 
 
 Exceptions. 
 
 III. CMitracts relating to Personal Acts, 
 
 1. Of these we will consider first, as being of a some- 
 what special nature, conti'acts to perform certain acts 
 relating to land, such as contracts to build or repair. 
 
 As a general rule, such contracts will not be specifically 
 enforced (r). In the first place, the legal remedy is usually 
 sufficient; secondly, it would be almost impossible for the 
 Court to carry out its decree if made (s). Where the 
 agreement to build or repair is incidental to a contract of 
 which the specific performance would be ordinarily 
 decreed, such as a contract to grant a lease, the Court will 
 decree specific performance as regards the lease, and at the 
 same time, if necessary, direct an inquiry as to damages 
 under Lord Cairns' Act, as above described (t). 
 
 Nevertheless, the Court has jurisdiction to decree per- 
 formance of certain works, where damages would not be an 
 
 (o) Milnes v. Gery, 14 Ves. 
 400; Bichardson v. Smith, 5 Ch. 
 648. See Hordern v. H., (1910) 
 A. C. 465; 80 L. J. P. C. 15. 
 
 (js) Smith V. Petprs, 20 Eq. 
 611. 
 
 (§') Binhnm v. Bradford, 5 Ch. 
 519. 
 
 (;•) Erringinn v. Aynesley, 2 
 13ro. C. C. 341. 
 
 (.f) Brace v. W ehnert, 25 Beav. 
 348; 8. W. R. Co. v. Wythea, 1 
 K. & J. 186. 
 
 (t) Middlcton V. Greenwood. 2 
 DeG. J. &S. 142.
 
 CONTRACTS RELATING TO PERSONAL ACTS. 697 
 
 adequate remedy. Thus, a railway company has been 
 
 decreed to construct and maintain an archway under an 
 
 embankment which traversed the plaintiff's property (m). 
 
 In this and other similar cases, one motive which induces 
 
 equity to relieve is the inability of the plaintiff to enter on 
 
 the land to do the work at his own cost, and so to ascertain 
 
 the damages sustained by non-performance {x). Again, 
 
 where there have been acts amomiting to part performance 
 
 of the contract, the Court will decree specific performance 
 
 which it mig'ht otherwise have refused {y). 
 
 The general tendency of modern decisions is towards Modem 
 
 granting the relief thus sought if possible {z). Hence it in'favo'iu' 
 
 has been held no defence to an action against a railway o*" granting 
 
 ' relief 
 company that specihc performance would occasion great 
 
 inconvenience to the public (a), or that the contract was 
 
 ultra vires, or that the Attorney-General Avas a necessary 
 
 party, as representative of the public (6). 
 
 2. Passing now from contracts for works on land, we As to 
 note that Courts of equity will not, as a rule, decree ^'^^ ^*'^'" ^" 
 specific performance of an agreement to enter into and 
 
 carry on a partnership (c). This rule has been sometimes 
 departed from; for instance, where the agreement was for 
 a partnership for a fixed and definite time, and there had 
 been part performance {d)\ but to Avarrant it the circum- 
 stances must be strong (e). 
 
 3. Again, as contracts of hiring and service are of Hiring and 
 a confidential character, and cannot, therefore, advan- ^'''■^"''^• 
 
 (w) Storer v. G. W. It. Co., («) Raphael v. T. V. R. Co., 
 
 2 Y. & C. C. C. 48. 2 Ch. 147. 
 
 (a;) South Wales R. Co. v. (6) Wilson v. Furness R. Co., 
 
 Wijthes, 1 K. k. J. 186, 200; sup. 
 
 IJ'olverhampton Corp. v. Ennnons^ (c) Scott v. Rayment, 7 Eq. 112. 
 
 (1901) 1 K. B. 515; 70 L. J. {d) Anon., 2 Ves. sen. 629; 
 
 K. B. 429; Molyneuxv . Richards, England \. Curling, 8 Beav. 129; 
 
 (1906) 1 Ch. 34; 75 L. J. Ch. 39. Byrne v. Reid, (1902) 2 Ch. 735; 
 
 (y) Price V. Corp. of Penzance, 71 L. J. Ch. 830. 
 
 4 Ha. 506, 509. (e) Boivns v. Collins, 6 Ha. 
 
 (z) Wilson V. Furness R. Co., 418, 437. 
 9 Eq. 28, 33.
 
 698 
 
 SPECIFIC PERFORMANCE. 
 
 Separation of 
 husband and 
 wife. 
 
 Agrepinents 
 to refer to 
 arbitration. 
 
 tageously be enforced against an unwilling party, equity 
 now refuses to decree specific performance of them (/). 
 The same remark applies to the contract of agency {g). 
 
 4. On special grounds, agreements for separation of 
 husband and wife, with the execution of the necessary 
 deeds, will be enforced, provided there be a good con- 
 sideration to support the contract; as, for instance, a 
 compromise of a divorce suit (^), a covenant by trustees 
 to indemnify the husband against the wife's debts (^), or 
 the wife's acceptance of maintenance from her husband 
 instead of proceeding against him for divorce (fc). 
 
 5. It was not the practice for Courts of equity to decree 
 the specific performance of a covenant to refer disputes to 
 arbitration (Z), unless the agreement to submit contained a 
 covenant not to take proceedings at law or in equity. But 
 now, where there is i;Q a contract an agreement to refer 
 matters in dispute to arbitration under the Common Law 
 Procedure Act (m), and more particularly since the 
 Arbitration Act, 1889 (w), the Court is strongly disposed 
 to enforce such agreements, by ordering a stay of pro- 
 ceedings in the action (o). But where fraud is charged, 
 and a prima facie case disclosed, the Court will usually 
 refuse to stay proceedings (p). In any case the Court 
 retains jurisdiction to vary or discharge the order on good 
 
 (/) Johnson v. <S'. ij- B. R. Co., 
 3 De G. M. & G. 914; Ryan v. 
 Mutual Tontine, ^-c. Assoc, 
 (1892) 1 Ch. 427; (1893) 1 Ch. 
 116; 62 L. J. Ch. 252; Whitwood 
 V. Hardman, (1891) 2 Ch. 416; 
 60 L. J. Ch. 428. 
 
 (^) Chinnock v. Sainxbtoy, 30 
 L. J. N. S. Ch. 409. 
 
 (A) Hart v. //., 18 Ch. D. 
 670; 50 L. J. Ch. 697; Besant v. 
 Wood, 12 Ch. D. 605; Cahill v. 
 C, 8 App. C. 420. 
 
 (i) Gibbs V. Harding, 5 Ch. 
 336; Wilson v. W., 1 H. L. 538; 
 5 II. L. 40. 
 
 (k) Hobbs V. Hull, 1 Cox, 445. 
 
 (J.) Street v. Bigby, 6 Ves. 815 ; 
 fJooke V. C, 4 Eq. 77; Halfhide 
 V. Penning, 2 Bro. C. C. 336. 
 
 (/«.) 17 & 18 Vict. c. 125. 
 
 (w) 52 & 53 Vict. c. 49, s. 4. 
 
 (o) Seligmann v. De BoutiUipr, 
 L. R. 1 C. P. 681 ; Willesford v. 
 Watson, 14 Eq. 572; Clenn v. <"., 
 44 Ch. D. 200; 59 L. J. Ch. 520; 
 Ives V. Willans, (1894) 2 Ch. 478; 
 64 L. J. Ch. 621; Vnu-drey v. 
 Simpson, (1896) 1 Ch. 166; 65 
 L. .T. Ch. 369; Bonnin v. Neame, 
 (1910) 1 Ch. 732; 79 L. J. Ch. 
 388. 
 
 (/>) Riissel V. R., 14 Ch. D. 
 471.
 
 CONTRACTS RELATING TO PERSONAL ACTS. 699 
 
 <3ause showu, or an objection may be raised in an action on 
 the award {q). Cases arising under the arbitration clauses 
 in Building Societies Acts rest on quite other grounds (r). 
 
 The Court will decree specific performance of an award, Awards, 
 where it is to do anything in specie, as to convey an estate 
 or assign securities (s); and generally the Arbitration 
 Act, 1889 {t), enacts that an award may by leave of the 
 'Court be enforced in the same manner as a judgment or 
 order to the same effect. 
 
 6. A Court of equity will not generally enforce a con- Borrowing 
 
 1 1 / N , / N 'i"d leuding. 
 
 tract to lend {u), nor a contract to borrow [x), or to pay 
 money {y) ; and this at present applies to a contract to 
 lend money to a company on the security of debentures. 
 But by the Companies Act, 1907 (0), it is enacted that a 
 ■contract to take up and pay for debentures may be enforced 
 'by an order for specific performance. This enactment 
 -came into operation on the 1st July, 1908; but was 
 repealed by the Companies Consolidation Act in the same 
 year; this provision, however, was thereby re-enacted (o). 
 The remedy otherwise lies in damages only (6). Specific Agreement 
 performance of an agreement to execute a mortgage in or^settlemen* 
 •consideration of money due has been decreed (c), and also 
 of an agreement by parol to execute a bill of sale of 
 personal chattels to secure the plaintiff against certain 
 liabilities {d). A promise to make a settlement in con- 
 sideration of marriage will be enforced (e). 
 
 (y) Brierley Hill Local Board (j/) Cramptoii v. The Varna R. 
 
 V. Pearsall, 9 App. C. 595; 54 Co., 7 Ch. 562. 
 
 Iy. J. Q. B. 25; Lyou v. Johnson, (r) 7 Edw. VII. c. 50, ss. 16, 
 
 40 Ch. D. 579; 58 L. J. Ch. 626. 52. 
 
 (r) See Hack v. Land. Provi- («) 8 Edw. VII. e. 69, s. 105. 
 
 ■ dent, ^c. Soc, 23 Ch. D. 103; 52 (b) South African Territories 
 
 L. J. Ch. 541; Municipal, cf-c. v. Wallington, (1898) A. C. 309, 
 
 Soc. V. Kent, 9 App. C. 260; 53 affirming," (1897) 1 Q. B. 692; 67 
 
 X. J. Q. B. 290. L. J. Q. B. 470. 
 
 (s) Norton V. Mascall, 2 Vern. (c) Ashton v. Corrigan, 13 Eq. 
 
 "24. 76; Hermann v. Hodges, 16 Eq. 
 
 (0 52 & 53 Viet. e. 49, s. 12. 18; Starkey v. Barton, (1909) 1 
 
 (m) Sichel V. Mosenthal, 30 Ch. 284; 78 L. J. Ch. 129. 
 
 Beav. 371. {d) Taylor v. Eckersley, 2 Ch. 
 
 («) Rogers V. Challis, 2TBeny. D. 302; 5 Ch. D. 740. 
 
 J.75. (e) Coverdale v. Eastwood, 15
 
 700 SPECIFIC PERFORMANCE. 
 
 Negative 7. Where a person has entered into a contract not to do 
 
 how enforced. ^ thing, specific performance of such a negative contract 
 takes the form of an injunction. Thus, the ringing of a 
 bell (/), carrying on a trade (g), acting on the stage {h), 
 erecting buildings (i), making applications to Parlia- 
 ment (k), and various other acts have been restrained, 
 where they have been contrary to agreement. But the 
 Court will not compel by injunction the doing of some- 
 thing which involves continuous employment for an in- 
 definite period, inasmuch as the Court could not effectively 
 enforce its own order in such circumstances (l). It will 
 not usually restrain the doing of an act which is merely 
 ancillary to an agreement of which it cannot compel 
 specific performance (m) ; but where a contract for a sale 
 of chattels contained an express negative stipulation that 
 the vendor would not sell to any other person than the*- 
 purchaser, the Court restrained the vendor from so selling, 
 although the contract was one of which specific per-^ 
 formance would not have be?:i decreed (?i). 
 
 Eq. 121; and see Si/nge v. S., Co., 2 Russ. & My. 470; Exp. 
 
 (1894) 1 Q. B. 466; 63 L. J. Hartridffe, 5 Ch, 611. 
 
 Q. B. 202. (0 Powell, #c. Co. v. Taf E. 
 
 V/) Martin v. Nutkin, 2 P. Co., 9 Ch. 331; Eyan v. MntiwZ 
 
 Wms. 266. Tontine, ^-c. Assoc, (1893) 1 Ch. 
 
 {g) Barret v. Blagrave, 5 Ves. 116; 62 L. J. Ch. 252. 
 
 555; Jones v. TaukerviUc, (1909) ("0 Merchants' Co. v. Banner,. 
 
 2 Ch. 440; 78 L. J. Ch. 674. 12 Eq. 18; Davis v. Foreman, 
 
 (h) Ltimley v. Wagner, 1 De (1894) 3 Ch. 654; 64 L. J. Ch. 
 
 G. M. & G. 604; Grlmston v. 187. 
 
 Cuningham, (1894) 1 Q. B. 125. («) Bonnell v. Bennett, 22 Ch. 
 
 (O EanMn v. HusMsson, 4 D. 835; 52 L. J. Ch. 414; Lybbe 
 
 3i^. 13. V. Hart, 29 Ch. D. 8; 54 L. J. 
 
 a-) Ware v. Grand Junction Q\\. %6Q\ an^ see Clegg \. Hands,. 
 
 44 Ch. D. 503: 59 L. J. Ch. 477.
 
 THE STATIJTK OF FRAUDS. 701 
 
 Section III. — Defence of the Statute of Frauds. 
 
 I. Pctrt Performance. 
 II. Other Grounds for Relief. 
 III. Evidence as to Parol Variations. 
 
 In discussijig in the last section the general principles 
 by which equity was guided in dealing with claims for 
 specific performance, we postponed for separate examina- 
 tion that extensive class of cases arising from contracts 
 respecting land in which a non-compliance with the 
 Statute of Frauds is set up as an objection to the inter- 
 ference of equity. To this we now revert. 
 
 The Statute of Frauds {a) enacts that " no action shall statute of 
 be brought upon any contract or sale of lands, tenements, f9^c*^jf'TT 
 or hereditaments, or any interest in or concerning them, c. 3, s. 4. 
 unless the agreement upon which such action shall be 
 brought, or some memorandum or note thereof, be in 
 writing, and signed by the party to be charged there- 
 with, or some other person thereunto by him lawfully 
 authorised." Notwithstanding this enactment, there axe 
 many cases in which, though the Courts of common law 
 would not have assisted the plaintiff, equity has interfered 
 out of its regard for considerations which the common law 
 refused to recognise. This has especially been the case 
 when the party seeking relief has been put into a situation 
 which makes it against conscience for the other party to 
 insist on the want of writing signed according to the 
 statute, as a bar to the relief. The principle on Avhich 
 
 («) 29 Car. II. c. 3, s. 4.
 
 702 
 
 .SPECIFIC PKRFORMANCE. 
 
 of fraud. 
 
 Statute may these cases rest is that even an Act of Parliament shall 
 
 uot be used us . r. p i zt \ mi r^ 
 
 au instrument not be useu as an instrument of fraud (6). The Court 
 does not, indeed, affect to set aside the Act of Parliament^ 
 but it fastens on the individual who seeks ag-ainst con- 
 science to avail himself of it, and imposes on him a 
 personal obligation. 
 
 Before proceeding to consider the circumstances in 
 which it has been deemed inequitable to permit the statute 
 to be pleaded in defence, it is desirable briefly to review a 
 number of cases which turn upon the interpretation of the 
 statute itself, and in which there has been much discus- 
 sion as to what terms need to be expressed in the memo- 
 randum which the statute requires, or otherwise what 
 documents will suffice to constitute such a memorandum. 
 This is in effect a branch of the general law of contracts,, 
 and scarcely calls for detailed consideration in this work. 
 Reference may be made to the exposition of the subject 
 contained in Pollock on Contracts (pp. 1 — 48, ed. 6). A 
 brief summary of the case law must here suffice. 
 
 A formal contract in terms is not necessary, provided 
 that there is evidence of a completed agreement between 
 the parties, a definite proposal on the one side and a plain 
 unconditional acceptance on the other. And, of course, a; 
 valid contract may be constituted by duly authorised 
 agents (c). 
 
 Thus the statute will be satisfied with a contract deduced 
 from correspondence between the parties, and this notwith- 
 standing that the same discloses that the agreed terms were 
 intended to be embodied in a formal instrument {d). But 
 in judging as to the existence of a completed contract 
 under such circumstances, the whole of the correspondence 
 
 Contract 
 expressed in 
 cori'espond- 
 ence. 
 
 (6) Rochefoucauld v. Boustead, 
 (1897) 1 Ch. 196; 66 L. J. Ch. 74. 
 
 (c) Griffiths, #c. Corp. v. 
 number ^ Co., (1899) 2 Q. B. 
 414; 68 L. J. Q. B. 959; Smith 
 V. Webster, 3 Ch. D. 49; 45 L. 
 J. Ch. 528; 8ims v. Landrey. 
 (1894) 2 Ch. 318; 63 L. J. Ch. 
 
 535; Bell v. Balls, (1897) 1 Ch. 
 663; 66 L. J. Ch. 397. 
 
 {d) Ilossiter v. Miller, 3 App. 
 C. 1124; 5 Ch. D. 648; Bonne- 
 well V. Jenkins, 8 Ch. D. 70; 
 Filby V. Hounsell, (1896) 2 Ch. 
 737: 65 L. J. Ch. 852.
 
 DEFENCE OF THE STATUTE OF FRAUDS. 703 
 
 must be oonsidered. You may not draw the line at one 
 point in the negotiations at which the consensus appears 
 to be complete, and disregard conditional terms intro- 
 duced at a later time (e). Two or more documents may 
 be read together for the purpose of deducing a contract, 
 although they do not refer to one another, if it appears 
 that they refer to the same parol agreement (/). Even a 
 verbal acceptance of a written and signed offer has been 
 held to constitute a contract enforceable against the 
 writer (g). 
 
 There must of course be an identification on the memo- Contents 
 randum of the property affected, though a particular memorandum, 
 description is not required, and the memorandum for this 
 purpose is read with due regard to the circumstances of 
 the sale (h) ; and if the identification though not clear on 
 the memorandum is capable of being ascertained, it is 
 sufficient (i). Similarly, the parties must be identified, 
 though not necessarily mentioned by name (fc); and the 
 time at which the purchase is to be completed must be 
 determined (l). The appearance of any condition in the 
 acceptance suspends its operation as a contract until it is 
 assented to (m). 
 
 (e) Hussey v. Rome-Payne, 4 (A) iihurdlow v. Cotterill, 20 
 
 App. C. 311; Jervisy. Berridge, Ch. D. 90; 51 L. J. Ch. 353; 
 
 8 Ch. 351; Bristol, ^c. Co. v. Chattook v. Midler, 8 Ch. B. 171. 
 
 Mari,js, 44 Ch. D. 616; 59 L. J. (*) Norlh v. Percivd, (1898) 2 
 
 Ch.' 472; Jones v. Daniel, (1894) Ch. 128; 67 L. J. Ch. 321; Plant 
 
 2 Ch. 332; 63 L. J. Ch. 562; v. Bourne, (1897) 2 Ch. 281; 66 
 
 Von Hatzfeldt - Wildenburg v. L. J. Ch. 643. 
 
 Alexander, (1912) 1 Ch. 284; 81 (k) Possiter v. Miller, 3 xVpp. 
 
 L. L. J. Ch. 184. C. 1124; Potter v. Dtt field, 18 
 
 (/) Studds V. Wntson, 28 Ch. Eq. 4; Coombs v. Wilkes, (1891) 
 
 D. 305; 54 L. J. Ch. 626; Oliver 3 Ch. 77; 61 L. J. Ch. 42; Carr 
 
 V. ^MM<m.'7, 4r4Ch. D. 205; 59L. v. Lynch, (1900) 1 Ch. 613; 69 
 
 J. Ch. 255; Bellamy v. Deben- L. J. Ch. 345. 
 
 ham, 45 Ch. D. 481; (1891) 1 (I) May v. Thompson, 20 Ch. 
 
 Ch. 412; 60 L. J. Ch. 166; D. 705; 51 L. J. Ch. 917. 
 
 Pearce v. Gardner, (1897) 1 Q. {m) Williams v. Brisco, 22 Ch. 
 
 B. 688; 66 L. J. Q. B. 457. D. 441; Hn^sey v. Home-Payne. 
 
 (^g) Lever v. Koffler, (1901) 1 sap. 
 Ch. 543; 70 L. J. Ch. 395.
 
 '04 
 
 SPECIFIC PERFORMANCE. 
 
 Ground of 
 interference. 
 
 Part 
 
 l>erforniance. 
 
 Doctrine only 
 
 concerns 
 
 contracts 
 
 respetiting 
 
 land. 
 
 Acts must be 
 referable 
 to the 
 agreement. 
 
 I. Part Pcfforniimce. 
 
 The majority of the cases, in which relief is granted on 
 the grounds above mentioned, a re deemed to be taken out 
 of the statute by the fact that the agreement on which the\' 
 rest has been in part performed by the plaintiff. Among 
 them a leading authority is Lester v. Foxcroft (n), in 
 which specific performance of a verbal agreement to grant 
 a lease was decreed, notwithstanding the Statute oi' 
 Frauds, on the ground that in reliance thereon the lessee 
 had incurred considerable expense and trouble in pulling 
 down an old house and building new ones according to 
 the terms of the agreement, it being considered against 
 conscience under such circumstances for the defendant to 
 plead the statute. 
 
 The inquiry is thus suggested as to what circumstances 
 are considered by equity sufficient to render it against 
 conscience to ,allow the Statute of Frauds to stand as a 
 bar to the relief sought, and ^particularly as to the effect 
 of part performance. 
 
 1 . The equity of part performance only applies to con- 
 tracts respecting land. Thus, it does not affect other 
 oontractis within the statute: e.g., a contract not to be per- 
 formed wdthin a year (o) . And specific performance will 
 not be decreed of an agreement to leave money by will (p) . 
 A contract to acquire an eajsement has been held to be 
 within the doctrine (g). 
 
 2. The acts alleged as amounting to part performance 
 must be such as are not only referable to the alleged agree- 
 mentj but such as are referable to no other title. And, 
 again, they must be acts so clear, certain, and definite in 
 
 (n) 1 CoUes, P. C. 108; 2 W. 
 & T. L. C. 460, ed. 7. 
 
 (o) Brittain v. Rossiter, 11 
 Q. B. D. 123; 48 L. J. Q. B. 
 362; Be Whitehead, 14 Q. B. D. 
 419; 54 L. J. Q. B. 88. 
 
 {p) MaddisoH v. Alderson, iS 
 App. C. 467; 52 L. J. Q. B. 
 737; Caton v. C, L. R. 2 H. L. 
 127; see Be Brondirood, Edtcnt-d-: 
 V. Broftdwood, 56 S. J. 703. 
 
 (q) McMnniis v. Coole, 35 Ch. 
 D. 681; 56 L. J. Ch. 682.
 
 PART PERFORMANCE. 
 
 705 
 
 their object and design, as to refer exclusively to a complete 
 and perfect agreement of which they are part execution. 
 
 Thujs acts merely introductory or ancillary to an agree- Not merely 
 ment, although attended with expense, are not considered ^ andllary!^ 
 acts of part performance. Under this head are included 
 the delivery of abstracts of title, giving orders for con- 
 veyances to be drawn and engrossed, going to view an 
 estate, employing surveyors to value timber on an estate, 
 or appraisers to value stock or land, registering deeds, and 
 similar acts of an equivocal or preparatory nature, which 
 will not suffice to take a case out of the statute (r). The 
 superintendence by the defendant of the building of a 
 house on the land contracted to be sold was held to be 
 sufficiently unequivocal to amount to part performance (s). 
 
 3. Part payment, or even entire payment of the pur- Part payment 
 
 . n- • -1 1 • ,. Tx 'lot sufficient. 
 
 chase-money, is not sumcient to entitle relief. Here 
 the legal remedy would be quite adequate, return of the 
 money, with interest, being a complete redress (t). Part 
 payment of rent is not, in the absence of possession, 
 sufficient (u). 
 
 4. Whether or not admission into the possession of an Possession, 
 astate will be considered part performance depends on cir- Efficient 
 cumstances. If it has unequivocal reference to the con- 
 tract, it is sufficient. That a stranger should be found in 
 acknowledged possession of the land of another is strong 
 evidence of an antecedent agreement, and is usually suffi- 
 cient to warrant an application for relief in equity (x) ; 
 
 (r) Hawkins v. Holmes, 1 P. G. M. & G. 349, 356; Humphreys 
 
 Wms. 770; Pembroke v. Thorpe, v. Green, 10 Q. B. D. 148; 53 
 
 3 Swanst. 437, n. ; Whitchurch v. L. J. Q. B. 140. 
 Bevis, 2 Bro. C. C. 559, 566; (m) Thursby v. Eccles, lOL,. J. 
 
 Cooth V. Jackson, 6 Ves. 17; Q. B. 9. 
 
 Phillips V. Edwards, 33 Beav. {x) Aylesford's Case, 2 Str. 
 
 440. 783; Mundy v. Jolliffe, 5 My. & 
 
 (^s) Dickenson \. Barrow, (\^M) Cr. 167; Pain v. Coombs, 1 De 
 
 2 Ch. 339; 73 L. J. Ch. 701; G. & J. 34, 46; Hodson v. 
 
 Frame \. Dawson, \4:\es.Z%&. Heuland, (1896) 2 Ch. 428; 65 
 
 (0 CVuuin V. Cooke, 1 S. & L. L. J. Ch. 754. 
 22, 40; Hughes v. Morris, 2 De 
 
 5. 45
 
 706 
 
 SPECIFIC PERFORMANCE. 
 
 a fortiori where, in addition to possession, the plaintiff has 
 laid out money on the land {y) . 
 When uot so. On the other hand, if the possession can be reasonably 
 accounted for apart from the alleged contract, it will not 
 suffice; for instance, if in a suit for the specific perform- 
 ance of an alleged agreement for a lease, the tenant was 
 in 2^ossession under a previous tenancy, he cannot set up 
 that as a part performance (z). Or if a farm tenant from 
 year to year continues in possession, and lays out such 
 moneys as are usual in the ordinary course of husbandry, 
 this is no part performance (a) . Such continuance in 
 possession, however, if accompanied by payment of an 
 increased rent, referable to the alleged agreement, has 
 been held to be an act of part performance (6); and simi- 
 larl}^ if, while continuing in possession, he has laid out 
 money, not merely in ordinary acts of husbandry, but in 
 a manner which points to a special agreement (c) . 
 
 Moreover, where the fact of jiossession is set up as a 
 part performance, it is essential that the possession should 
 have been delivered according to the contract (c?) . It is 
 evident that a wrongful possession could not operate as a 
 title to the consideration of the Court. 
 
 Marriage uot 
 sufficient. 
 
 5. Marriage is not a part performance of an agreement 
 in relation to it, the Statute of Frauds expressly enacting 
 that every agreement made in consideration of marriage 
 must be in writing (e). Nevertheless, a contract made in 
 consideration of marriage may be taken out of the statute 
 by acts of part performance independent of the marriage; 
 
 (y) Crook V. Corp. of Seaford, 
 6 Ch. 551. 
 
 (z) JVills V. Stradlmg, 3 Ves. 
 378. 
 
 (rt) Brennan v. Bolton, 2 Dr. 
 & War. 349. 
 
 (b) Nunn v. Fabian, 1 Ch. 35; 
 Miller V. Sharp, (1899) 1 Ch. 
 622; 68 L. J. Ch. 322. 
 
 (o) Mundy v. Jolliffe, sup.; 
 Sutherland v. Briggs, 1 Ha. 26. 
 
 {d) Cole V. White, cited 1 Bro. 
 C. C. 409. 
 
 (e) Warden v. Jones, 23 Beav. 
 487; 2 De G. & J. 76; Caton v. 
 C, L. R. 2 H. L. 127; Farina 
 V. Fichus, (1900) 3 Ch. 331; 69 
 L. J. Ch. 161.
 
 marriage. 
 
 PART PERFORMANCE. 707 
 
 for instance, by giving up possession of property agreed to 
 be settled (/). 
 
 Again, where a person marries upon faith of represen- Representa- 
 tations or promises made to him for the purpose of clmnected 
 influencing his conduct with reference to the marriage, the with_ 
 person making such representations or promises will be 
 compelled in equity to make them good, not only at the 
 instance of the person to whom they were made, but also 
 .at the instance of the issue of the marriage {g) . The 
 representation or promise must, however, be clear and 
 absolute {h), and the marriage must be distinctly ascrib- 
 -able thereto (i). If there is a written agreement after 
 marriage, in pursuance of a previous parol agreement, tins 
 takes the case out of the statute (Zc). 
 
 On a similar principle, an injunction was granted to 
 restrain the enforcement of a demand, the party seeking 
 to enforce it having, while the marriage treaty was 
 pending, falsely represented to the father of the lady that 
 there was no such demand existing (Z). 
 
 Where the representation is not of an existing fact, but 
 of a mere intention, or where the promisor refuses to bind 
 himself by a contract, giving the jDarty to understand that 
 he must rely upon his honour for the fulfilment of the 
 promise, the Court cannot enforce performance (m) . 
 
 6. Companies and corporations are equalh^ with indi- Contracts of 
 
 •111 11 o P /\* companies, 
 
 Tiduals bound by acts oi part performance {n). An agree- &c. 
 ment by a corporation to let land upon lease, althougli not 
 
 (/) Surcombe v. Pinnir/er, 3 (*) Surcombe v. Pinniger, 3 
 
 De G. M. & G. 571; Ungley v. De G. M. & G. 571. 
 
 U.,5C\\..T>.^^1; PeBroadhurst, (1) Neville v. WilJcinson, 1 
 
 Rdumrds v. Broadhurst, 56 S. J. Bro. C. C. 543. 
 
 703. {ni) Maunsell v. White, 4 H. 
 
 {g~) Hammersle7j\. Be Biel,\2 L. 1039; Jordan v. Money, 5 
 
 "C. & F. 45; Walford v. Gray, 13 H. L. 185; 15 Beav. 372; 2 De 
 
 W. R. 335, 761. G. M. & G. 318; Chadwich v. 
 
 (K) Randall v. Morgan, 12 Manning, (1896) A. C. 231; 65 
 
 Ves. 67. L. J. P. C. 42. 
 
 (0 Goldicutt V. Townsend, 28 (n) Wilson v. W. H. P. Co., 
 
 .Reav. 445. 34 Beav. 187; 2 De G. J. & Sm. 
 
 475. 
 
 45 (2)
 
 708 
 
 SPECIFIC PERFORMANCE. 
 
 Auctions. 
 
 Miscellaneous 
 contracts. 
 
 under seal, will be enforced against the corporation, where 
 there have been acts of part performance on the part of 
 the intended lessee (o) . 
 
 7, Sales of land by auction are generally within the 
 Statute of Frauds, A purchaser, therefore, is not bound 
 unless there is some agreement in writing (p). 
 
 But if a purchaser takes possession after the i:ale, and 
 commits acts of ownership, it will be held to be part per- 
 formance, so as to entitle the vendor to enforce the sale as 
 regards the lots so occupied and dealt with, though not of 
 other lots sold at the same time{q). The signature of 
 the auctioneer is sufficient to satisfy the statute, on the 
 ground that he is constituted agent of the purchaser by 
 the act of bidding (r). But in order to this, the auction 
 book must embody, or at least refer to, the conditions of 
 sale (s) ; and the agency must not have been determined 
 before the signature (t). The signature of the auctioneer' e; 
 clerk is, it seems, insufficient (^<). 
 
 It has been said that the doctrine of part performance 
 is not to be extended by the Court, and it was held 
 inapplicable to a case in which a trustee had a power to 
 lease at the request, in writing, of a married woman, and 
 such request had not been made (x). 
 
 A family arrangement for the division of land, although 
 only verbal, has been carried out where there have been 
 acts of part performance by the parties interested, such as 
 holding and dealing with the land in accordance with the 
 terms of the arrangement (y) . 
 
 (o) Crook V. Corp. of Seaford, 
 6 Ch. 551. But see and compare 
 Moare v. Kingsbury Urban 
 Council, (1912) 2 Ch. 452; 81 
 L. J. Ch. 666. 
 
 (p) Blagden v. Bradbear, 12 
 Ves. 466, 472. 
 
 (g-) Buckmaster v. Harrop, 13 
 Ves. 456, 474. 
 
 (r) Peirce v. Corf, L. R. 9 
 Q. B. 210; Bird v. Boulter, 4 B. 
 & Ad. 443. 
 
 (s) Rishton v. Whatmore, 8 
 Ch. D. 467; Sims v. Landrey,. 
 (1894) 2 Ch. 318; 63 L. J. Ch. 
 535; Dewar v. Mintoft, (1912) 2 
 K. B. 373; 81 L. J. K. B. 885. 
 
 (0 Bell V. Balls, (1897) 1 Ch. 
 663; 66 L. J. Ch. 397. 
 
 {ti) Ibid. 
 
 (x) Phillips V. Edwards, 33- 
 Beav. 440. 
 
 (y) Williams v. W., 2 Dr. & 
 Sm. 378; 2 Ch. 294.
 
 OTHER GROUNDS FOR RELIEF. 709 
 
 II. Other GrouTids for Relief. 
 
 There are grounds other than part performance, in Grounds 
 consideration of which the Court, deeming it inequitable part 
 for a defendant to set up the statute as a defence, will performance, 
 decree specific performance. 
 
 1 . Where the agreement was intended to have been in Fraud of 
 writing according to the statute, but this has been pre- 
 vented from being done by the fraud of the defendant, 
 equity has relieved. Otherwise the statute, designed to 
 suppress fraud, would be used as a protection for it. Thus, * 
 if one agreement is fraudulently substituted for another, 
 or if in case of a loan on mortgage, it is agreed that the 
 security is to be in the form of an absolute deed by the 
 mortgagor and a defeasance by the mortgagee, and the 
 absolute conveyance being executed, the mortgagee refuses 
 to execute the defeasance, equity will grant relief {z) . 
 
 The principle that a statute shall not be made an instru- 
 ment for covering a fraud has been illustrated by cases in 
 which equity has not allowed parties to profit where they 
 have fraudulently induced a person to make or refrain 
 from altering a will, the mode of making which was 
 formerly regulated by ss. 5 and 19 of the Statute of 
 Frauds, and is now by the Wills Act {a). 
 
 Thus, if a person, knowing that a testator in making Analogous 
 a disposition in his favour intends it to be applied for the Wills Act. 
 purposes other than his benefit, expressly promises, or by 
 silence implies, that he will carry the testator's intentions 
 into effect, and the property is left to him upon faith of 
 that promise or undertaking, it is in effect a trust, and the 
 devisee will not be allowed to shelter himself behind the 
 Wills Act (&). It would be otherwise if the omission to 
 declare the trust according to the statute arose from the 
 
 (z) Joynes v. Statham, 3 Atk. Boustead, (1897) 1 Ch. 196; 66 
 389; Lincoln v. Wright, 4 De L. J. Ch. 74. 
 O. & J. 16; Rochefoucauld v. (a) 1 Vict. c. 26. 
 
 (b) Jones v. Badley, 3 Ch. 364.
 
 710 
 
 SPECIFIC PERFORMANCE. 
 
 error of the testator uninfluenced by the 
 But qiicere whether the heir could claim on 
 of an absence of intention to benefit the 
 The same principle applies to a case where 
 property has been suffered to descend owing to similar 
 representations made by the heir (e). 
 
 neglect or 
 
 devisee (c) . 
 the ground 
 
 devisee {d). 
 
 Evidence as 
 to parol 
 variations in 
 the contract. 
 
 Generally not 
 admissible to 
 support a 
 claim for 
 specific 
 performance ; 
 but admissible 
 in defence. 
 
 The rule rests 
 on general 
 principles of 
 
 III. Evidenoe of Parol Variations^. 
 
 The consideration of the effect of the Statute of Frauds 
 in suits for specific performance cannot be dismissed with- 
 out reference to the important class of cases which have 
 turned upon the question of the admissibility of parol 
 evidence of alleged variations from the written agreement.. 
 
 The leading principle which guides the Court in deciding 
 this question cannot bo better illustrated than by reference 
 to the case of Toiunshend v. Stangroom (/). 
 
 There a lessor filed a bill for specific performance of a 
 written agreement for a lease, alleging a parol variation as 
 to the quantity of land included; and the lessee filed a 
 cross-bill for specific performance of the agreement simply 
 as written. Lord Eldon dismissed both bills; the lessor's^ 
 because parol evidence was not admissible for him as 
 plaintiff to set up an agreement different from that which 
 was written: the lessee's, because the very same evidence 
 loas admissible on the part of the lessor by way of 
 defence (g) . 
 
 1. These cases are consiDicuous among many decisions 
 which have well established the difference between the 
 
 (o) Adlington v. Cann, 3 Atk. 
 151. 
 
 (<f) Russell V. Jackson, 10 Ha. 
 204; Muckleston v. Brown, 6 
 Ves. 52; Rowbotham v. Dunnett, 
 8Ch. D. 431. 
 
 (e) SticMand v. Aldridge, 9 
 Ves. 516, 519; M'Cormick v. 
 Grogan, L. R. 4 H. L. 82, 88. 
 
 (/) 6 Ves. 328. 
 
 {g) See also Woollam v. Hearn, 
 7 Ves. 211; 2 W. & T. L. C. 513, 
 ed. 7.
 
 EVIDENCE OF PAROL VARIATIONS. 711 
 
 evidence which is available for a plaintiff seeking and a 
 defendant resisting specific performance of a contract. 
 Although the question as to the admissibility of parol 
 evidence is affected by the Statute of Frauds, it does not 
 wholly rest thereon. Independently of the statute, by 
 " the general rules of evidence, writing stands higher in 
 " the scale than mere parol testimony, and when treaties' 
 " are reduced to writing such writing is taken to express 
 " the ultimate sense of the parties, and is to speak for 
 " itself. In the case of a contract respecting land, the 
 " general idea receives weight from the circumstance that 
 "you cannot contract at all on that subject but in wiit- 
 " ing; and this, therefore, is a fiu-ther reason for rejecting 
 " parol evidence. In this \va,Y only is the Statute of 
 " Frauds material, for the foundation and bottom of the 
 " objection is in the general rules of evidence " (h). 
 
 The rule, theu, is. that parol evidence on the part of a General 
 plaintiff seeking performance of a written contract, with a illustrations, 
 variation supported b}- such evidence, will be rejected, not- 
 withstanding that the difference of the written from the 
 real agreement is the result of fraud, accident, or surprise. 
 Thus, a plaintiff cannot adduce evidence to prove that 
 lands comprised in a written agreement were by parol 
 agreed to be left out of a lease (^), nor to prove verbal 
 declarations at an auction in opposition to printed condi- 
 tions of sale (fc), nor that a written agreement to sell to 
 two jointly was in reality an agreement to sell to one of 
 them, and that the other was to have some interest in the 
 premises by way of security for such part of the purchase- 
 money as he might advance (/),nor in any similar case (m). 
 
 2. On the principle, however, already explained in Exception, 
 connexion with Lester v. Foxcroft, that part performance ^^'".°\. 
 
 •' ' 1 i variation 
 
 partly 
 
 (A) Davis V. Symonds, 1 Cox, (k) Jenkinson v. Pepys, cited P ^ 
 
 402. 1 V. & B. 528. 
 
 (i) Lawson v. Laude, 1 Dick. {l) Davis v. Symonds, sup. 
 
 346. (m) Clinan v. Cooke, 1 S. & L. 
 
 22, 30.
 
 712 
 
 SPECIFIC PERFORMANCE. 
 
 When 
 available in 
 defence. 
 
 will serve the purpose of evidence which is otherwise want- 
 ing, it is established that when the alleged parol variation 
 had been partly performed, specific performance of the 
 written agi'eement with the parol variation may be 
 decreed (n). In such cases the parol variation is in fact 
 treated as a new agreement partly performed: and it is 
 considered that such agreement, having been acted upon, 
 cannot be disregarded without injustice (o). 
 
 3. It is equally well established that it is open to a 
 defendant in certain circumstances to resist a claim for 
 specific performance by means of parol evidence designed 
 to show that the real agreement was not that which is 
 represented in the writing, and that its enforcement would 
 be, therefore, inequitable. This is, indeed, no infringe- 
 ment of the statute, which " does not say that a written 
 " agreement shall bind, but that an unwritten agreement 
 "shall not bind" (p). For example, in a recent case it 
 was held that a clear and distinct statement by an auc- 
 tioneer at the time of the sale verbally correcting a 
 material misdescription in the particulars, disentitled the 
 purchaser to specific performance with compensation for 
 that misdescription, even though he did not hear the state- 
 ment (q). And where a purchaser purchased at auction a 
 property different from that which he intended to buy, 
 through a mistake in no way induced by the vendor, 
 Bpecific performance was refused (r). 
 
 The circumstances, always of much weight in equity, 
 which entitle a defendant to make use of such evidence, 
 are fraud, mistake, or surprise (s). 
 
 (w) Anon., 5 Vin. Abr. 522, 
 tit. 38; Legal v. Miller, 2 Veg. 
 er. 299. 
 
 (o) Pit cairn v. Osbourne, 2 
 Ves. sr. 375. 
 
 (^) Clinan v. Coohe, sup. 
 
 (q) lie Hare and More's Con- 
 tract, (1901) 1 Ch. 93; 70 L. J. 
 
 Cli. 45; following Manser v. 
 Back, 6 Ha. 443. 
 
 (r) Van Praaqh v. Everidge, 
 (1903) 1 Ch. 434; 72 L. J. Ch. 
 260; reversing, (1902) 1 Ch. 266; 
 71 L. J. Ch. 598. 
 
 (s) Joynes v. Statham, 3 Atk. 
 388; Clowes v. Higginson, 1 V. & 
 B. 524; Manser v. Back, sup.
 
 EVIDENCE OF PAROL VARIATIONS. 713 
 
 Where the terms of a writteii agreement have been 
 ambiguous, so that, adopting one construction, they may 
 reasonably be supposed to have an effect which the- 
 •defendant did not contemplate, the Court has on that 
 ground refused to enforce the agreement (^); the author 
 of the ambiguity has even himself had the benefit of this 
 principle (u). 
 
 But it appears that, in the case of a misunderstanding 
 between the parties, the plaintiff is entitled to waive his 
 contention as to the construction, and to insist on specific 
 performance of the contract as understood by the defen- 
 dant (x). Such a case might be distinguished from those 
 in which the difference between the parties is of such 
 a nature that there is really no contract at all for want 
 of a consensus ad idem (y). The distinction clearly rests 
 on the nature and degree of the difference between the 
 parties. 
 
 The admissibility of parol evidence in defence is not 
 confined to matter collateral to and independent of the 
 written agreement, but may amount even to a contradic- 
 tion of it {z). 
 
 It is not sufficient, however, to entitle the vendor to the When not so. 
 benefit of such evidence, that the contract is not precisely 
 such as he expected it to be. A mere unproved suspicion 
 of fraud in the plaintiff (a), or a mistake of law, or as to 
 the legal effect of the contract, or the legal consequences 
 of an act (6), or a mistake as to the interest which the 
 
 purchase will enable a person to acquire (c), cannot be set 
 
 » 
 
 (<) Calverley v. Williams, 1 V. & B. 165; Winch v. Win- 
 
 Ves. 210; Clowes v. Jligginson, Chester, ib. 375. 
 
 sup. («) Lightfoot V. Heron, 3 Y. & 
 
 (m) Neap V. Abbott, C. P. C. Ex. 586; Wilding v. Sander- 
 Goo^. 333. son, sup. 
 
 {x) Preston v. Luck, 27 Ch. D. (6) Cooper v. Phibbs, L. R. 2 
 
 197. H. L. 149; Poivell v. Smith, 14 
 
 (y) Marshall v. Berridge, 19 Eq. 85; G. W. R. v. Cripps, 5 
 
 Ch. D. 233; 51 L. J. Ch. 329; Ha. 91; Steivart v. Kennedy, 15 
 
 Wilding v. Sanderson, (1897) 2 App. C. 108. 
 
 Ch. 534; 66 L. J. Ch. 684. (o) Mildmny v, Hungerford, 2 
 
 (z) Ramsbottom v. Gosden, 1 Vern. 243.
 
 714 
 
 SPECIFIC PERFOKMANCK 
 
 Mutually 
 dependent 
 (ion tracts. 
 
 Parol waiver. 
 
 Subsequent 
 variation. 
 
 up as a defence. And if mistake of fact is alleged it must 
 be clearly proved (d). Further, an inadvertent omission 
 to propose an intended term to an agreement (e), or its. 
 purposed omission, upon the supposition that it was 
 illegal, is not sufficient (/). 
 
 4. An analogous class of cases is that in which two 
 contracts are alleged by the defendant to be mutually 
 dependent, and he claims to resist the performance of one 
 until the plaintiff performs the other, parol evidence being- 
 necessary to connect the two. In Croome v. Lediard (g) 
 such evidence was rejected, and the plaintiff's prayer 
 granted, though the defendant could not make a good 
 title to the estate he wished to sell, and he sought to prove^ 
 that the whole transaction was intended as an exchange. 
 Lord Brougham rejected the tendered evidence on the 
 ground that evidence of matter dehors the written agree- 
 ment was not admissible to alter the terms and substance 
 of the contract, though evidence of matter collateral to it 
 might be received. But Lord St. Leonards, in com- 
 menting on the case, considered that the proper ground 
 was the absence of any proof of fraud, mistake, or 
 surprise (h). 
 
 5. A clearly proved parol waiver of a written contract,, 
 amounting to a complete abandonment, will bar specific 
 ^performance (i). And where a written agreement is sub- 
 sequently varied by parol, upon proceedings being taken 
 for specific performance with or without the variation, the. 
 Com"t will, it seems, put the defendant to his election, and 
 if he declines to elect, will decree specific pei*formance of 
 the agreement without the variation (fc). But it seems 
 
 (d) Barnley v. L. C. ^ B. R., 
 L. R. 2 H. L. 43. 
 
 (e) Parker v. Tasivcll, 2 De G. 
 & J. 559. 
 
 (/) Irnham v. Child, 1 Bro. 
 C. C. 92; see also Cross v. Ber- 
 ridge. 8 Ch. 359. 
 
 (^) 2 My. & K. 251. 
 
 (A) Sugd. V. & P. 1&3, 14th 
 ed.; Lloyd v. L., 2 My. & Cr. 
 192. 
 
 (0 Price V. Byer, 17 Ves. 356; 
 Pattle V. Ilornibroolc, (1897) 1 
 Ch. 25; 66 L. J. Ch. 144. 
 
 (Jc) Robinson v. Page, 3 Russ. 
 114.
 
 EVIDENCE OF PAROL VARIATIONS. 715 
 
 that parol evidence of a contemporaneous variation in or Contempo- 
 addition to an agreement, which was by admission cor- variation, 
 rectly put into writing, is not admissible as a defence to 
 specific performance (I). 
 
 6. Although it will be a good defence to show that a Plaintiff may 
 
 , , J . • . . . „ assent to parol 
 
 written agreement does not contain a provision in lavom' variation, 
 of a defendant verbally agreed upon between the parties, 
 nevertheless, when such a verbal agreement is alleged, the 
 plaintiff may, by submitting to perform the omitted pro- 
 vision, and in the absence of fraud, or mistake with 
 reference to it, obtain a decree for performance of the 
 whole contract (m). And there are many cases in which 
 the effect of the evidence has been, not to defeat the 
 plaintiff's claim to specific performance, but to lead the 
 Court to perform the contract, taking care that the parol 
 agreement is also carried into effect, so that all the parties 
 may have the benefit of what they contracted for (n) . 
 
 (I) Ormerod v. Hatdman, 5 ('0 Ramsbottom v. Gosden, 1 
 
 V^, 722. V. & 13. 165; L. ^ B. R. Co. v. 
 
 {m) Martin v. Py croft, 2 De Winter, Cr. & Ph. 57; Smith v. 
 G. M. & G. 785;' Preston v. Wheatcroft, 9 Ch. D. 223; Olley 
 Luck, 27 Ch. D. 497. v. Fisher, 34 Ch. D. 367; 56 
 
 L. J. Ch. 208.
 
 716 
 
 SPECIFIC PERFORMANCE WITH A VARIATION. 
 
 Section IV. — Specific Performance with a Variation. 
 
 Contrast of Law and Equity. 
 
 I. Where the Dispute relates to Time. 
 
 1. When Time is essential. 
 
 2. When not so. 
 
 3. Compensation. 
 
 II. Where the Dispute relates to Quantity or Quality. 
 
 1. In vendors' suits. 
 
 2. In purchasers' suits . 
 
 Defences 
 peculiar to 
 suits for 
 specific 
 performance. 
 
 Having examined the general principles which deter- 
 mine whether or not a suit for specific performance of 
 a contract will lie in equity, we are now led to consider 
 the force of a peculiar class of defences which may be 
 used in answer to such claim, and to observe the manner 
 in which equity deals with them. There is scarcely any 
 branch of the subject of equitable jurisdiction more fertile 
 in illustrations of the contrast between the principles and 
 methods of equity and those which prevailed in the Courts 
 of common law. 
 
 In the important case of Seton v. Slade (a), the defen- 
 dant agreed to purchase certain property from the plain- 
 tiff. The memorandum of agreement was signed by him, 
 but not by the plaintiff. One of the terms was that a 
 good title to the property was to be made within two 
 months, and the purchase was to be completed within that 
 time. The abstract of title was only delivered within a 
 few days of the expiration of the two months, but the 
 
 (a) 7 Ves. 265; 2 W. & T. L. C. 475, ed. 7.
 
 CONTRAST OF LAW AND EQUITY. 717 
 
 defendant received and retained it without objection until 
 the expiration of the two months. On a bill for specific 
 performance of the agreement, it was held that the defen- 
 dant could not insist on the time as of the essence of the 
 contract, and specific performance was decreed. 
 
 In many resj^cts analogous to this are other cases in 
 which the dispute as to the performance rests not upon the 
 question of time, but upon the fact that the vendor has 
 not the same interest in the estate as that which he con- 
 tracted to sell; or that there is some deficiency in the 
 quantity or quality of it. In such cases a party not able 
 strictly to perform his contract had no remedy at law by 
 way of damages; but in equity he might often obtain 
 specific performance, adequate compensation being allowed 
 for the partial departure from the contract. 
 
 At the suggestion, therefore, of this case we may con- 
 veniently investigate the general circumstances under 
 which, though the plaintiff cannot strictly carry out his 
 agreement, he will obtain specific performance on allowing 
 compensation. 
 
 This is a fitting place in which to mention a useful Application 
 enactment which has been the means of saving consider- under 37 & 38 
 able expense in case of disputes such as we are about to ^^'^- ^- ^^' 
 consider. By the Vendor and Purchaser Act, 1874 (6), 
 it is provided that a vendor or purchaser of real or lease- 
 hold estate in England may apply in a summary way to a 
 judge in Chambers in respect of any requisitions or objec- 
 tions, or any claim for compensation, or any other question 
 arising out of the contract (not being a question affecting 
 the existence or validity of the contract), and the judge 
 shall make such order upon the application as to him shall 
 appear just. 
 
 And in proceedings under this Act, the Court has juris- 
 diction not only to answer the question submitted, but to 
 give all consequential directions, e.g., it can determine the 
 
 (6) 37 & 38 Vict. c. 78, s. 9.
 
 '18 
 
 SPECIFIC PERFORMANCE WITH A VARIATION. 
 
 question whether a right to rescind has been well exer- 
 cised (c); and may order a return of the deposit with 
 interest when a vendor has failed to make a title (d) . But 
 the Court has no jurisdiction, in this procedure, to award 
 damages (e). 
 
 Time formerly 
 essential 
 at law. 
 Judicature 
 Act, 8. 25, 
 sub-8. 7. 
 
 I. Where the Dispute relates to Time. 
 
 In the Courts of law prior to the passing of the Judi- 
 cature Act of 1873, time was in all cases considered as 
 of the essence of the contract. By that Act, however, it 
 is enacted (/) that " stipulations in contracts as to time 
 " or otherwise, which would not before the passing of this 
 " Act have been deemed to be, or to have become, of the 
 " essence of such contracts in a Court of equity, shall 
 " receive in all Courts the same construction and effect as 
 " they would have heretofore received in equity." Equit- 
 able principles, therefore, in this as in other matters, now 
 prevail in all the Courts; so that when we speak hereafter 
 of a distinction between the rules of law and equity, we 
 must be understood to refer to the state of things previous 
 to the 1st of November, 1875. 
 
 Though, as in the principal case, equity usually con- 
 siders time to be a circumstance, and not of the essence of 
 a contract, there are other cases in which its treatment is 
 as strict as that of law. It will be well, therefore, to con- 
 sider these classes of contracts separately; and first, the 
 emaller and exceptional class. 
 
 (c) Re Jackson and Woodburn, 
 37 Ch. D. 44; 57 L. J. Ch. 243; 
 Re Lander and Bagley's Contract, 
 (1892) 3 Ch. 41; 61 L. J. Ch. 
 707. 
 
 (c?) Re Hargreaves and Thomp- 
 son's Contract, 32 Ch. D. 454; 56 
 L. J. Ch. 199; and see Re Bryant 
 and Barninqham's Contract, 44 
 Ch. D. 218; 59 L. J. Ch. 636; 
 
 Re Thompson and Holt's Con- 
 tract, 44 Ch. D. 492; 59 L. J. 
 Ch. 651; Re Scott and Alvarez' 
 Contract, (1895) 2 Ch. 603; 64 
 L. J. Ch. 821. 
 
 (e) Re Wilson and Stevens, 
 (1894) 3 Ch. 546; 63 L. J. Ch. 
 863. 
 
 (/) Sect. 25, sub-s. 7.
 
 WHERE THE DISPUTE RELATES TO TIME. 
 
 719 
 
 1. Where time is deemed essential. Time, when 
 
 essential 
 
 Equity is induced to treat time as of the essence of a "^ equity, 
 -contract either in consideration of the nature of the pro- 
 perty concerned, or on account of the special agreement of 
 the parties to that effect. 
 
 (1.) From the nature of the property. 
 
 (i.) Where the thing is of greater or less value, accord- Property 
 ing to the effluxion of time, such as a reversion, equity yalue!' ^^ 
 requires strict adherence to time. Such contracts are 
 generally occasioned by the vendor's present want of 
 money, and to give him interest thereon during a long 
 ■delay is no adequate compensation to him (g). Within 
 the same principle is included property of an unusually 
 fluctuating value, such as a mining lease, or foreign 
 stock {h) ; or of a wasting character, as a life annuity or 
 leaseholds (*"). 
 
 (ii.) Equity is disposed to treat mercantile contracts Mercantile 
 generally with greater strictness than contracts relating to coi^*''^''*^'*- 
 land (fc). The purpose of the purchase is considered as Purpose of 
 influencing the construction of the contract: thus, time is ^ ^"^"^ 
 insisted on where premises are needed for commercial 
 purposes (?), or with a view to immediate residence (m), 
 or the money is required for paying off debts of the 
 vendor (?^). It may be added, that the tendency of modern 
 decisions is to bind parties more strictly to the terms of 
 their agreements. Relief will be refused if the delay has 
 been so great as to indicate an abandonment of the 
 contract (o). 
 
 (<7) Newman v. Sogers, 4 Bro. (I) Walker v. Je-ffreys, 1 Ha. 
 
 C. C. 393. 341; Parker v. Frith, 1 S. & S. 
 
 (A) Macbryde v. Weeks, 22 190, n. 
 
 Beav, 533; Doloret v. Rothschild, (jn) Tilley v. Thomas, 3 Ch. 61. 
 
 1 S. & S. 590. (n) Popham v. Eyre, Lofft, 786. 
 
 (i) Hudson v. Temp'le, 29 Beav. (o) Levy v. Stogdon, (1899) 1 
 
 636. Ch. 5; 68 L. J. Ch. 19; swp., 
 
 (Je) Jteuter v. Sala, 4 C. P. D. p. 686. See Cornwall v. Henson, 
 
 1239. (1900) 2 Ch. 298; 69 L. J. Ch. 
 
 581.
 
 720 
 
 SPECIFIC PERFORMANCE WITH A VARIATION. 
 
 Sale of 
 public- house. 
 
 Right of pre- 
 emption. 
 
 (iii.) In the absence of express stipulation to the con- 
 trary, time is always regarded as essential in the sale of a 
 public-house as a going concern (p), and the licence must 
 be transferred promptly (g). 
 
 (iv.) An option to purchase under a right of pre- 
 emption is always construed strictly, and must be 
 exercised at the time prescribed (r). 
 
 By special 
 agreement of 
 the parties. 
 Generally. 
 
 Stipulation 
 must be strict. 
 
 (2.) By special agreement of the parties. 
 
 (i.) It was at one time held that the parties could not 
 make time of the essence of a contract any more than they 
 could contract themselves out of the operation of the 
 principles of equity as to the redemption of mortgages, or 
 the penalties of bonds; but it is now established that if by 
 the contract it clearly appears to be the intention of the 
 parties, if, for instance, they stipulate that the agreement 
 shall be void unless the purchase be completed on a given 
 day, equity will treat the fixture of time as essential (s). 
 
 It nevertheless requires a strict stipulation to effect that 
 object in contracts relating to the sale of land (t). A 
 mere stipulation that an abstract shall be given, or posses- 
 sion delivered on a named day, will not suffice (m). A 
 stipulation that time shall be of the essence of the contract 
 with regard to one of the steps towards completion, raises 
 a presumption that it was not intended to be so with 
 regard to others (x) ; and if the contract evidently con- 
 templates an extension of the time beyond the day fixed^ 
 as by fixing interest to be thereafter paid upon the 
 purchase-money, time will not be strictly regarded (y). 
 
 (p) Day V. Luhke, 5 Eq. 336. 
 
 (^) See Tadcaster Brewery v. 
 Wilson, (1897) 1 Ch. 705; 66 
 L. J. Ch. 402. 
 
 (r) Brooke v. Garrod, 3 K. & 
 J. 608; Dibbins v. B., (1896) 2 
 Ch. 348; 65 L. J. Ch. 724. 
 
 (s) Hudson V. Bartram, 3 
 Madd. 440; Boehm v. Wood, 1 J. 
 
 & W. 419; Hudson v. Temple, 
 sup. 
 
 (t) Webb V. Hughes, 10 Eq. 
 286. 
 
 (m) Roberts v. Berry, 3 De G. 
 M. & G. 284; Tilley v. Thomas, 
 sup. 
 
 (x) Wells V. Maxwell, 32 Beav. 
 408. 
 
 (y) Webb v. Hughes, sup.
 
 of time and 
 waiver. 
 
 WHERE THE DISPUTE liELATES TO TIME. 721 
 
 Though time be not originally of the essence, yet, where Notice 
 there has been great and unreasonable delay on one side, negotiations. 
 the other party has a right to fix a reasonable time within 
 which the contract is to be completed, and that time will 
 be regarded and insisted on by equity (0) . But the notice 
 to be effective must be reasonable (a); and if time is not 
 originally of the essence of the contract, it cannot be made 
 so by notice unless there has been some default or 
 unreasonable delay (b). 
 
 (ii.) If time has been made of the essence of the con- Enlargement 
 tract by agreement, or is considered so by reason of the 
 nature of the property, or becomes so by notice during 
 progress of the transaction, it may b© enlarged or waived 
 by subsequent agreement, or by conduct of the parties. 
 Thus, if negotiations go on after the fixed time has passed, 
 it amounts to a waiver (c), unless the negotiations were 
 expressly conditioned to be without prejudice to the legal 
 position {d). And if, as in Seton v. Slade (e), the pur- 
 chaser is aware of the objections to the title, or if he 
 receives the abstract after the day appointed, or proceeds 
 with the purchase after the completion of the time fixed, 
 unless, at least, he does so under protest (/), he will be 
 held to have waived his right to object to the delay, and 
 will not be able to resist specific performance (g). And 
 likewise, if a vendor receives and entertains the requisi- 
 tions of the purchaser after the time specified, unless he 
 reserves his right he will be deemed to have waived it (h) . 
 The time within which objections are to be made to a title 
 may, of course, be enlarged by the vendor's consent (i). 
 
 (z) Kinff V. Wilson, 6 Beav. 126. (d) Tilley v. Thomas, 3 Ch. 61. 
 
 (a) Wells v. Maxwell, Z1~Qea,w. (e) Supra, p. 716. 
 
 408; Crawford v. Toogood, 13 Ch. (/) Magennis v. Fallon, 2 Moll. 
 
 D. 153; Hatten v. Russell, 38 576. 
 
 Ch. D. 334; 57 L. J. Ch. 425. (g) PincJce v. Curteis, 4 Bro. 
 
 (i) Green v. Sevin, 13 Ch. D. C. C. 329; Iloggart v. Scott, 1 
 
 589; and see as to forfeiture of Russ. & My. 293. 
 
 deposit, p. 259, sup. (h) Oakden v. Pike, 11 Jur. 
 
 (c) Boyes v. Liddell, 6 Jur. N. S. 666. 
 
 725; Pegg v. Wisden, 16 Beav. (*) Cutis v. Thodey, 13 Sim. 
 
 239. 206. 
 
 S. 46
 
 722 
 
 SPECIFIC PERFORMANCE WITH A VARIATION. 
 
 Ground 
 
 of rescission. 
 
 Main fides 
 repels usual 
 rule. 
 
 (iii.) The vendor may, it seems, insist upon the con- 
 tract being rescinded, where circumstances exist which 
 render it improbable that the purchase-money can be paid 
 for a long time, as the bankruptcy or death of the pur- 
 chaser, and the inability of his representatives to get in 
 assets (fc), and the omission to require payment of the 
 deposit will not deprive him of his right to insist that the 
 contract be rescinded, where he has taken other sufficient 
 steps for that purpose (/). 
 
 (iv.) Although time may be made of the essence of the 
 contract in reference to any matter appear;ing upon the 
 abstract, as, for instance, in taking objections to the title, 
 an exception from the ordinary rule may arise, and time 
 not be considered essential for taking such objection, 
 where there has been unfair dealing and a plain want of 
 bona fides on the part of the vendor: as where the con- 
 ditions were so framed as to deceive the purchaser, or 
 throw him off his guard (m). 
 
 2. Where time is not deemed cm essential. 
 Time when rpj-^^ delay Occasioning the objection will arise either 
 
 not deemed ^ . 
 
 essential. from the conduct of the parties, or from the state of the 
 
 title. 
 
 Where delay 
 arises from 
 i;onduct 
 of parties 
 generally. 
 
 (1 .) From the conduct of the parties. 
 
 (i.) The principal case shows the view taken by Courts 
 of equity as to contracts generally — namely, that the 
 general object being only the sale of an estate for a given 
 sum, the particular day named is merely formal, and that 
 the stipulation means in truth that the purchase shall 
 be completed within a reasonable time, regard being had 
 to all the circumstances of the case; and, as in the case 
 of mortgages, it acts on the general intention rather than 
 
 (A) Mackreth v. Marlar, 1 Cox, My. 236. 
 259. {m) Boyd v. Bichson, 10 I. R. 
 
 {}) Wutson V. Iteid, 1 Russ. ii Eq. 239.
 
 WHERE THE DISPUTE RELATES TO TIME. 723 
 
 on the particular words of the stipulation. The rule is, 
 then, that it will grant the relief of specific performance, 
 notwithstanding a failure to keep the dates assigned by 
 the contract, if it can do justice to the parties, or if there 
 is nothing in the stipulations between the parties, the 
 nature of the property, or the surrounding circumstances 
 which would make it inequitable to interfere with and 
 modify the legal right. At law the vendor was bound to 
 have his title deeds and abstract ready at the appointed 
 time. In equity it is not solely incumbent upon the vendor 
 to move by making a tender of the abstract, but it is also 
 incumbent upon the purchaser to ask for it at .the 
 appointed day, or on such other day as will leave suffi- 
 cient time for the completion of the contract. Other- 
 wise the time would be considered as waived (n). So if 
 the abstract were delivered after the appointed day, and 
 the purchaser made no objection to the delay, he would be 
 considered to have waived it (o). 
 
 If, however, the vendor does not deliver his abstract 
 promptly, he of course cannot hold his purchaser to send 
 in his objections in the time limited, even though it may 
 have been stipulated that time in that respect should be 
 of the essence of the contract (p). 
 
 (ii.) Equity, however, does not go so far as to enforce Exceptional 
 performance on a purchaser when the vendor has taken no ^^-ses. 
 steps whatever to complete the contract, and the purchaser 
 has without delay insisted on the return of his deposit and 
 refused to proceed; nor would it have granted an injunc- 
 tion to restrain the purchaser fi'om suing for his deposit at 
 law (g). Unreasonable delay will of itself be a bar to 
 either party obtaining a decree. " A party must show 
 himself ready, desirous, prompt, and eager," in calling 
 
 (w) Guest V. Homfray, 5 Ves. (^) Upperton v. Nickolson, 6 
 
 818; Jones v. Price, 3 Anstr. 924. Ch. 436. 
 
 (o) Smith V. Burnam, 2 Anstr. {q) Lloyd v. Collett, 4 Bro. 
 
 527. C. C. 469. 
 
 46 (2)
 
 724 
 
 SPECIFIC PERFORMANCE WITH A VARIATION. 
 
 for the assistance of the Court (r), and a continual claim, 
 ■without any active steps in support of it, will not keep 
 alive a right which would otherwise be barred by 
 laches (s). 
 
 This rule has been relaxed where a strict application of 
 it would work injustice, as where after an agreement for 
 a lease the intended lessee had entered into or remained in 
 possession, and no further steps were taken formally to- 
 complete the contract until fourteen years had expired {t). 
 But the fact that a purchaser has paid part of the purchase- 
 money is not sufficient to entitle him to assistance, if he 
 has lain by and delayed completion for an unreasonable 
 time {u) . Equity will not countenance parties in delaying 
 matters with a view to see whether the contract will prove 
 advantageous or not, and accordingly either to abandon it, 
 or claim specific performance (x). Nor will a purchaser be 
 aided who has taken trifling and vexatious objections to 
 the title, and shown a disinclination to proceed {y), or is 
 clearly unable to pay the purchase-money {z). 
 
 The granting or withholding of specific performance 
 being discretionary, equity has sometimes refused to assist 
 a party who is out of time on the general ground that the 
 contract is inequitable, or the price unreasonable (a). 
 
 From the 
 nature of the 
 title. 
 
 General rale. 
 
 (2.) From the nature of the title. 
 
 The general rule is, that if a vendor commence an action 
 for specific performance, he is entitled to assistance if he 
 can procure a good title at the time of the decree. It is 
 immaterial that ho had not a title when entering into the 
 
 (r) Milward v. E. of Thanet, 
 5 Ves. 720, n. 
 
 (s) Lehmnnn v. McArthur, 3 
 Eq. 74.6; 3 Ch. 496; Levy v. 
 Stogdon, (1899) 1 Ch. 5; 68 L. 
 J. Ch. 19. 
 
 (i) Shepheard v. Walker, 20 
 Eq. 659. 
 
 (m) Harrington v. Wheeler, 4 
 Ves. 686. 
 
 (a;) Alley v. Beschamps, 13 
 Ves. 225. 
 
 (y) Hayes v. Caryll, 1 Bro. 
 P. C. 126. 
 
 (£) Gee V. Pearse, 2 De G. & 
 Sm. 325; Aberaman Iron Worku 
 V. Wickens, 5 Eq. 485. 
 
 («) Whorwood v. Simpson, 2 
 Vern. 186.
 
 WHERE THE DISPUTE RELATES TO TIME. 
 
 725 
 
 articles for sale (&). It ought, however, generally to be 
 made out in time for the master's certificate, though this 
 has not uniformly been insisted upon (c). 
 
 Where the objection to the vendor's title is that there 
 is an interest outstanding in a third party, and the pur- 
 chaser buys up that interest, he can no longer resist 
 specific performance on the ground that it is not in the 
 vendor {d). 
 
 The tendency of decisions is now against the practice Tendency of 
 of compelling a purchaser to take an estate of which the ^cieions. 
 title is not made out till after the time fixed by the con- 
 tract, and the purchasers have been allowed the benefit of 
 many slight circumstances in their favour; for instance, 
 that a new suit has become necessary, or that an account 
 of debts remains to be taken in a suit, &c. (e). But if a 
 purchaser would repudiate a contract on the ground of 
 defect of title he must do so promptly on discovering the 
 defect. After a decree for specific performance has been 
 made, a purchaser cannot repudiate without leave of the 
 Court (/). 
 
 3. Compensation. 
 
 In all cases in which specific performance has been Compen- 
 decreed not\vithstanding discrepancy in time or in sub- ^^fauH^ 
 stance of the contract, care has been taken that proper time, 
 compensation should be made, and the parties in fact put 
 in the same situation as if the contract had been strictly 
 fulfilled. 
 
 Ordinarily a purchaser is entitled to the profits of the how 
 estate from the time at which the contract ought to have calculated, 
 been completed (g), and the vendor is entitled to interest Interest. 
 
 (J)) Lam/ford v. Pitt, 2 P. Sim. 29; ZVaser v. /Foocf, 8 Beav. 
 
 Wms. 630.' 339. 
 
 (c) Coffin V. Cooper, 14 Ves. (/) Hcilkett v. E. of Dudley, 
 
 205. (1907) 1 Ch. 590; 76 L. J. Ch. 
 
 ((f) Murrell v. Goodyear, 1 De 330. 
 
 G. F. & J. 432. {g) Be Visme v. Be V., 1 Mao. 
 
 (e) Lechmere v. Brasier, 2 J. & G. 346. 
 & W. 289; Balby v. PuUen, 3
 
 726 
 
 SPECIFIC PERFORM A NCE WITH A VARIATION. 
 
 Rents 
 
 and profits. 
 
 Accessions. 
 
 Deteriora- 
 tions. 
 
 on the unpaid purchase-money from the same time (h). 
 But where the purchaser was in default of payment, 
 under a contract by which the vendor was not bound to 
 give up possession until payment, and the vendor, who 
 occupied the property for the purpose of his business, con- 
 tinued the business on his own behalf under a pressure 
 arising from the plaintiff's default, the vendor was ad- 
 judged to receive interest on his money, but not to pay an 
 occupation rent for the premises from the time when the 
 contract was made (^). 
 
 Where no time is fixed for completion, interest is 
 usually payable by the purchaser from the time of taking 
 possession (k). The purchaser, moreover, by taking 
 possession, is deemed to have accepted the title {I), though 
 this will not relieve the vendor from perfecting the title 
 if it is in his power to do so. 
 
 In the case of sales by the order of the Court, if the 
 estate be in possession, the purchaser will be entitled to the 
 rents and profits from the quarter-day preceding his pur- 
 chase, he paying his purchase-money before the following 
 one (w). If the estate be reversionary, the purchaser will 
 be entitled to any benefit from the dropping of lives after 
 the time of confirming the report absolute, and will conse- 
 quently be liable to pay interest from that time (w). 
 
 If there has been delay in making out the title, and 
 the property has deteriorated by dilapidations or mis- 
 management, compensation will be allowed to the pur- 
 chaser (o), but not for deterioration after the time when 
 he ought to have taken possession (p), and of course not 
 
 (/i) Lowther v. C . of Andover, 
 1 Bro. C. C. 396; Calcraft v. 
 Roebuck, 1 Ves. 221. 
 
 (j) Leqgatl v. Met. lly . Co., 
 5 Ch. 716. 
 
 (Jc) Birch V. Joy, 3 H. L. 565 ; 
 Ballard v. Strutt, 15 Ch. D. 122. 
 See He Mayor of London and 
 Tubbs' Contract, (1894) 2 Ch. 
 524; 63 L. J. Ch. 580; and see 
 Halkett v. E. of Dudley, sup. 
 
 (l) Re Gloag and 3Iiller's Con- 
 tract, 23 Ch. D. 320; 52 L. j;. 
 Ch. 654. 
 
 (m) Mackrell v. Hunt, 2 Madd. 
 34, n. 
 
 («) Exp. Manning, 2 P. Wms. 
 410; Davy v. Barber, 2 Atk. 489. 
 
 (o) Foster v. Deacon, 3 Madd. 
 394. 
 
 (p) Binks V. Rokeby, 2 Sw. 
 226.
 
 WHERE DISPUTE RELATES TO VENDOk's INTEREST. 727 
 
 for deterioratiou occasioned by himself (g). Possession 
 is not usually decreed pending a suit for specific perform- 
 ance; but the vendor, if remaining in possession, is a 
 quasi trustee for the pui'chaser, and is bound to preserve 
 the property (r). On the other hand, if the purchaser 
 takes possession before completion, he may at his option 
 pay the purchase-money or give up possession; in the 
 latter case paying interest at 4 per cent, from the date for 
 completion (s). If in possession the purchaser becomes 
 liable for outgoings {t). 
 
 When time is of the essence of the contract, and the 
 purchaser obtains a decree for specific performance, he will 
 be entitled to comj^ensation for the loss which he has 
 sustained in consequence of possession not having been 
 given to him according to the contract (ii). 
 
 The general method of ascertaining the amount payable Inquiry 
 for compensation, is by directing an inquiry to that effect ^^ chambers, 
 by the master in chambers. 
 
 II. Where the Dispute relates to the Quantity or Quality 
 of the Vendor's Interest. 
 
 The consideration of these cases naturally falls into two Disputes as to 
 divisions, according as to whether the vendor or the pur- qJJalit^*'' 
 chaser is plaintiff; but it must be remembered that in all 
 cases the condition on which these suits are entertained is 
 that of compensation for the error or misdescription. It 
 follows that the deficiency or difference alleged must be Compen- 
 such as to admit of the proper compensation being sation must 
 
 1 1 11 1 * ,-1 1- P 11 1 o 1 be calculable. 
 
 adequately calculated. Accordingly relief will be refused 
 
 (q) Harford v. Furrier, 1 (1891) 2 Ch. 144; 60 L. J. Ch. 
 
 Madd. 532. 351. 
 
 (r) Clarke v. Ramuz, (1891) 2 {f) See Cooh v. Andrews, 
 
 Q. B. 456; 60 L. J. Q. B. 679; (1897) 1 Ch. 266; 66 L. J. Ch. 
 
 Bijr/rave\. Met. Board of Worku, 137; Tubbs v. Wy)me, (1897) 1 
 
 32 Ch. D. 147; 55 L. J. Ch. 602. Q. B. 74; 66 L. J. Q. B. 116. 
 
 (s) Greenwood v. Turner, (w) Gedge v. Montrose, 26 
 
 Beav. 45.
 
 '28 
 
 SPECIFIC PKKFOKMANCK WITH A VARIATION. 
 
 Vendors' suits 
 generally. 
 
 DiflEerence 
 
 must not 
 
 be substantial. 
 
 Differences of 
 tenure. 
 What deemed 
 substantial. 
 
 where, from the nature of the property or the nature of 
 the dispute, the Court considers itself unable to fix or 
 ascertain the amount proper to be allowed {x). 
 
 1. Where the veyidor seeks specific performance. 
 
 At law, when a person contracted to sell a given interest, 
 for instance, a given term of years, and it turned out that 
 the interest was less than was represented, the purchaser 
 might recover the deposit and rescind the contract, not- 
 withstanding that the vendor might offer compensation. 
 But in equity, if the purchaser can get substantially what 
 he contracted for, the vendor can enforce specific perform- 
 ance against him, allowing compensation for the difference 
 in value. But the amount of variation which equity will 
 recognise as admissible without destroying the contract, 
 is, of course, a matter of degree. In general terms, the 
 misdescription must not be substantial. The particular 
 inquiry is, what is, and what is not, considered substantial. 
 
 (1.) The difference .often relates to the tenure of land; 
 and it is established that a purchaser cannot be required 
 to accept land of a different tenure from that for which he 
 bargained. Thus leaseholds, however long the term, or 
 copyholds, cannot be substituted for freeholds {y), nor 
 freehold for copyhold, even though it may seem a better 
 interest {z) ; though where the conditions of sale left the 
 tenure doubtful or barred any objection on this ground, 
 and the difference in value was slight, performance was 
 enforced {a). Similarly, a perpetual rent-charge will not 
 sufficiently answer the description of a fee simple (6), nor 
 can a purchaser be compelled to take an underlease instead 
 of an original lease (c). Moreover, in cases of this descrip- 
 
 (x) Re Bunbnry's Estate, 1 
 I. R. Eq. 458; Ridgivny v. Gray, 
 1 Mac. & G. 109. 
 
 (y) Breiv v. Corp, 9 Ves. 368. 
 
 (2) Ayles V. Cox, 16 Beav. 23. 
 
 (rt) Price V. Macaulay, 2 De 
 G. M. & G. 339. 
 
 (ft) Prpndergast v. Eyre, 2 
 
 Hogan, 81. 
 
 (o) Madeley v. Booth, 2 De G. 
 & Sm. 718; Re Bey f us and 
 Masters' Contract, 39 Ch. D. 110; 
 Waring v. Scotland, 57 L. J. Ch. 
 1016; Re Bpighton and Harris' 
 Contract, (1898) 1 Ch. 458; 67 
 L. J. Ch. 240.
 
 WHERE DISPUTE RELATES TO VENDOR's INTEREST, 729 
 
 tion, an express condition of sale that any misdescription 
 shall not annul the sale, does not meet a purchaser's 
 objection, such a condition relating to the corporeal pro- 
 perty, not to the title {d) . And where the term of a 
 leasehold turns out to be largely different from what was 
 represented, the vendor will not be able to enforce hia 
 bargain, e.g., where the contract was for a sixteen years' 
 lease, and the term offered was only six (e). A purchaser 
 of an entirety would not be obliged to take an undivided 
 share of the estate (/), nor a remainder instead of an 
 estate in possession {g), nor an estate subject to unusual 
 easements {h), or to an undisclosed reservation of mine- 
 rals (^) . 
 
 On the other hand, where there are undisclosed quit- Whatnot, 
 rents, and rent-charges, at any rate if of small amount, 
 they are considered fit subjects for compensation (/c); and 
 similarly, where there was a small error as to the term of 
 a lease {I), or a mistake as to the amount of quit-rents 
 sold (m) . 
 
 Objections to the tenure may be waived by the conduct Waiver by 
 of the purchaser, as by his proceeding with the treaty* of^purchaser. 
 after notice of the nature thereof, though by such waiver 
 he does not lose his claim to compensation on perform- 
 ance {n). 
 
 (2.) Another class of cases is where the misdescription Differences of 
 relates to the quantity or the boundaries of the estate or boundaries 
 sold. Though the vendor fails to make a title to a small compensated 
 
 , . P ,, -PI • • • T 1 if small and 
 
 portion 01 the estate, il such portion is not material to the not material 
 
 to enjoyment. 
 
 {d) Re Beyfus and Masters' (*) Esdaile v. Stephenson, 1 
 
 Contract, Z9 Ch. D. 110. S. & S. 122; Hornibloiv v. 
 
 (e) Long v. Fletcher, 2 Eq. Shirley, 13 Ves. 81. 
 
 Ca. Ab. 5, pi. 4. (0 Halsey v. Grant, 13 Ves. 
 
 C/) Att.-Gen. v. Bay, 1 Vea. 77. 
 
 218. {m) Cuthbert v. Baker, cited 
 
 (y) Collier v. Jenkins, You. Sugd. V. & P. concise view, 219, 
 
 295. ed. 1851. 
 
 (A) Seaman v. Vaudrey, 16 («) Fordyce v. Ford, 4 Bro. 
 
 Ves. 390. C. C. 494; Calcraft v. Roebuck, 1 
 
 (i) Upperton v. Nickolson, 6 Ves. jr. 221. 
 Ch. 436.
 
 730 
 
 SPECIFIC PEKFOKMANCE WITH A VAKIATION. 
 
 Sales by 
 auftion 
 in lots. 
 
 Effect of 
 approximate 
 description . 
 
 possession and enjoyment, specific performance with com- 
 pensation will be decreed (o); but not if the portion is 
 material, as where the contract is for a wharf and a jetty, 
 and it turns out that the jetty is liable to be removed by 
 the Corporation of London (p). 
 
 So, also, if a purchaser in the same contract agrees to 
 purchase an estate for a fixed price, and also something- 
 else not essential to the enjoyment of the estate, but only 
 a small adjunct of it, and a good title to this adjunct can- 
 not be made, the sale of the estate alone will be enforced; 
 for instance, a contract to buy an estate for £24,000, and 
 the furniture thereon at a valuation (g). Secus, if the 
 adjunct is essential to the enjoyment of the property, as 
 the fixtures of a public-house (r). 
 
 In the case of an estate being sold by auction, after 
 which it is found that a good title cannot be made to some 
 of the lots, specific performance will be decreed, unless the 
 lots as to which the failure occurs are complicated with 
 the others (s) ; but everything depends in such a case upon 
 the nature of the property; for instance, if a farm were 
 sold along with a house for residence thereon, and the title 
 to the house failed, the rest of the contract would not be 
 enforced (t). 
 
 Where lands are described as of or about a certain acre- 
 age, or of a certain acreage " be the same more or less," 
 and there is found to be a considerable discrepancy from 
 the figure named, it appears that, in the absence of an 
 express condition to the contrary, a purchaser may be 
 allowed an abatement, even after accepting a convey- 
 ance (u) . A fortiori, if he discovers the error before 
 
 (o) M' Queen v. Farquhar, 11 
 Ves. 467 ; He Fawcett and 
 Holmes' Contract, 42 Ch. D. 150; 
 58 L. J. Ch. 763. 
 
 (p) Peers V. Lambert, 7 Beav. 
 546; Perkins v. Ude, 16 Beav. 
 193; Jacobs v. Pevell, (1900) 2 
 Ch. 858; 69 L. J. Ch. 879. 
 
 (§•) Richardson v. Smith, 5 Ch. 
 648. 
 
 (r) Durbeij v. WhitaTcer, 4 
 Drew. 134. 
 
 (s) Poole V. Shergold, 2 Bro. 
 C. C. 118. 
 
 (<) Perkins v. Ede, sup. 
 
 (m) Palmer v. Johnson, 13 Q.
 
 WHERE DISPUTE RELATES TO VENDOR' S INTEREST, 731 
 
 conveyance, unless it is of trifling extent, he may 
 claim abatement (a;) ; nor would the purchaser's inti- 
 mate acquaintance with the estate relieve the vendor {y) . 
 If lands are purchased on the usual condition as to 
 compensation for misdescription, and they prove to exceed 
 the estimate, though the purchaser caii enforce perform- 
 ance .on paying compensation, the vendor cannot compel 
 him to complete and pay a larger sum than he contracted 
 to pay (2). 
 
 2. Where the purchas'er seeks specific perfomunce. 
 
 The general rule is that a purchaser may, if he chooses. Purchasers' 
 
 compel a vendor who has contracted to sell a larger in- ^"^*^" 
 
 Purchaser can 
 
 terest m an estate than he has, to convey to him such usually claim 
 interest as he is entitled to, with compensation (a), and Performance 
 this whether the difference is one of tenure or of quan- abatement. 
 tity(6). This has been done even where the difference 
 in quantity amounted to as much as one-half (c) . Where, Exceptions. 
 however, the title of the vendor is doubtful or defective, 
 it has been held that the purchaser cannot compel a con- 
 veyance of such interest as he has (d). 
 
 If the purchaser, at the time of the contract, knows of Notice. 
 the limited interest of the vendor, he will not be able to 
 insist upon a conveyance of such interest with compensa- 
 tion (e); and the neglect of a purchaser to make proper 
 inquiries may disentitle him from claiming compensation 
 
 B. D. 351; 12 ib. 32; 53 L. J. C'rommelin, 2 I. R. Eq. 134; 
 
 Q. B. 348; Jie Turner and Hooper v. Smart, 18 Eq. 683; 
 
 Skelton, 13 Ch. D. 130. McKenzie v. Hesketh, 7 Ch. D. 
 
 (x) Rill V. Buckley, 17 Ves. 675; North v. Percival, (1898) 2 
 
 394; Winch v. Winchester, 1 V. Ch. 128; 67 L. J. Ch. 321. 
 
 & B. 375. (c) Burroiv v. Scammell, 19 
 
 (y) King V. Wilson, 6 Beav. Ch. D. 175; but see Wheatleij v. 
 
 124. Slude, 4 Sim. 126. 
 
 (z) Frice v. North, 2 Y. & C. {d) WllVmms v. Higden, 1 C. 
 
 Ex. 620. P. 500; Budd v. Lascelles, (1900) 
 
 (a) Mortlockv. Buller, 10 Yes. 1 Ch. 815; 69 L. J. Ch. 396. 
 
 315. (e) Lawrenson v. Butler, 1 S. 
 
 (6) Huqhes V. Jones, 2 De G. & L. 13; Harnett v. Yeilding, 2 
 
 F. & J. 307; Wood v. Griffith, S. & L. 549; Castle v. Wilkinson, 
 
 Wilson, Ch. Eep. 44; Leslie v. 5 Ch. 534.
 
 732 
 
 SPECIFIC PKHFORMANCE WITH A VARIATION. 
 
 Mistake, 
 piirchaser'e 
 optiou to 
 rescind. 
 
 Express 
 
 stipulation 
 
 contrary. 
 
 to 
 
 for some defect which, with ordinary care, he might have 
 discovered (/), as where a vendor had contracted to sell 
 certain property which the purchaser knew to be in the 
 occupation of a tenant, and it turned out that the tenant 
 had an agreement for a lease {g), the occupation being 
 considered to amount to constructive notice of the lease. 
 But it appears that the doctrine of constructive notice is 
 not generally applicable to such cases, and that at least it 
 would not suffice in a vendor's suit {h), or in a purchaser's 
 suit to give a title to compensation in respect of the 
 tenant's interest (^). 
 
 Where, however, the statement as to quantity was 
 simply a mistake, and it would be plainly unjust to the 
 vendor to decree specific performance with compensation, 
 the purchaser has been required to elect whether he would 
 perform the contract without compensation, or have his 
 action dismissed {k) ; in this case there was a difference of 
 nearly one-half in the acreage stated. 
 
 The right to compensation also may be excluded by 
 express contract, as by a stipulation to that effect contained 
 in the conditions of sale (Z), unless such a condition may 
 be construed so as to extend only to small accidental 
 inaccuracies (m). The right, however, is not excluded by 
 a mere condition that he shall not object to complete the 
 purchase if the quantity should turn out less than was 
 stated in the particulars {n) ; nor by acts on his part which 
 merely amount to a waiver of objections to the title (o). 
 It may be excluded by the vendor rescinding the contract 
 under a condition empowering him to do so, if unwilling 
 
 (/) Edwards-Wood v. Majori- 
 hanks, 7 H. L. 806. 
 
 (17) James v. Lichfield, 9 Eq. 
 51.' 
 
 (Ji) Caballero v. Henty, 9 Ch. 
 447. 
 
 (0 Phillips V. Miller, 10 L. R. 
 C. P. 428. 
 
 (yfc) Earl of Durham v. Legard, 
 34 L. J. Ch. N. S. 589; and see 
 Re Hare and O'More's Contract, 
 
 (1901) 1 Ch. 93; 70 L. J. Ch. 45. 
 
 (l) Cordingley v. Cheese- 
 borough, 3 Giff. 496. 
 
 {m) Whittemore v. W., 8 Eq. 
 603; Re Terry and White's Con- 
 tract, 32 Ch. D. 14; 55 L. J. Ch. 
 345. 
 
 (h) Frost V. Brewer, 3 Jur. 
 165. 
 
 (o) Calcraft v. Roebuck, 1 Ves. 
 Jr. 221.
 
 WHERE DISPUTE RELATES TO VENDOR's INTEREST. 733 
 
 or unable to make a satisfactory title {p)\ but not if the 
 vendor sold the property under such a condition knowing 
 his title to be defective, or has been guilty of wilful mis- 
 representation (g) ; and, notwithstanding such condition, 
 if the purchaser is willing to waive all objections to the 
 title, he is entitled to take the jjroperty without compensa- 
 tion (r). 
 
 The right to rescind \Ti\xy, moreover, be lost by the Right of 
 vendor's replying to the purchaser's objections or requi- 
 sitions (s), and by acquiescence in, or confirmation of, the 
 contract (^). A fuUer discussion of the right of a pur- 
 chaser to repudiate a contract on grounds of mistake and 
 misrepresentation is found in the chapters on Mistake and 
 Fraud (m). As to a vendor's right to rescind under a 
 special condition enabling him so to do in case of the pur- 
 chaser taking any objection to the title which the vendor 
 is unable or unwilling to meet, reference may be made to 
 He Dames mid Wood (x), in w^hich it was held that, after 
 the vendor had elected to rescind, it was not open to the 
 purchaser to waive his objections and insist on the contract. 
 Even under such a condition a mere dispute as to the form 
 of conveyance is not a sufficient ground for rescission (y) . 
 The right of rescission must in any case be exercised in 
 good faith. He may not keep the iDurchaser in suspense 
 while he negotiates with other parties. If he does so, the 
 purchaser msLj recover his deposit with interest and 
 costs (2;). After a final judgment has been given it is 
 too late to exercise the right of rescission (a). 
 
 (jp) Mawson v. Fletcher, 6 Ch. (a;) 29 Ch. D. 626; 54 L. J. 
 
 91; 10 Eq. 213; Buddell v. Ch, 771. See also Ashburner v. 
 
 Simpson, 2 Ch. 102. Sewell, (1891) 3 Ch. 405; 60 L. 
 
 {q) Nelthorpe v. Holgate, 1 J. Ch. 784. 
 
 Coll. 203; Price v. Macaulay, 2 (y) Re Monkton and Gilzean, 
 
 De G. M. & G. 347. 37 Ch. D. 555; 54 L. J. Ch. 257; 
 
 (r) Page v. Adam, 4 Beav. 269. Hardman v. Child, 28 Ch. D. 
 
 (s) Tanner v. Smith, 10 Sim. 712; 54 L. J. Ch. 695. 
 
 410; Shepherd v. Croft, (1911) 1 (z) Synith v. Wallace, (1895) 
 
 Ch. 521; 80 L. J. Ch. 170. 1 Ch. 385; 64 L. J. Ch. 240. 
 
 (<) Cole V. Gibbons, 3 P. Wms. (a) Re Arbib and Class' Con- 
 
 290; Attivood v. Small, 6 CI. & tract, (1891) 1 Ch. 601; 60 L. J. 
 
 F. 424. Ch, 263; Halkctt v. E. of Dudley, 
 
 (m) Supra, pp. 172, 220. (1907) 1 Ch. 590; 76 L. J. Ch. 330.
 
 734 
 
 CHAPTER VI. 
 
 INJUNCTIONS. 
 
 Injunction 
 compared 
 with specific 
 performance. 
 
 In some respects analogous to the equitable remedy of 
 specific performance is the equally characteristic remedy 
 of injunction. A decree of specific performance, as its 
 name implies, enforces the performance of some specific 
 act. An injunction is the converse of this; it judicially 
 forbids the performance of some specific act or series of 
 acts (a). 
 
 From the nature of the case the remedy of specific per- 
 formance only applies to cases arising out of contract; 
 since it rarely happens apart from contract that one person 
 has a right to the performance of a particular act on the 
 part of another. 
 
 On the contrary, the cases for which injunction is a 
 proper remedy have usually no connexion with contract. 
 There are, indeed, cases in which one person contracts with 
 another not to do a certain act; and such negative con- 
 tracts may, as we have seen, be specifically enforced by 
 means of injunction (&), and if a contract, though affirma- 
 tive in form, is negative in substance, an injunction may 
 be granted (c) . But in the absence of a negative stipula- 
 tion, an affirmative contract will not generally be indirectly 
 enforced by an injunction restraining an act inconsistent 
 with the contract (d), and a negative stipulation will not be 
 
 («) Jo)trs V. Tankervillc, (1909)) 
 2 Ch. 440; 78 L. J. Ch. 674. 
 
 (6) P. 700. Lumlry v. Wagner, 
 1 De G. M. & G. 615; Mnnchestor 
 Ship Canal Co. v. Manchester 
 Racecourse Co., (1901) 2 Ch. 37; 
 VO L. J. Ch. 468; Grimston v. 
 
 Cuninqham, (1894) 1 Q. B. 125. 
 
 (c) Metropolit'/n Electric Sup- 
 ply Co. V. Ginder, (1901) 2 Ch. 
 799; 70 L. J. Ch. 862. 
 
 (d) IVhifivood Chemical Co. v. 
 Havdman, (1891) 2 Ch. 416; 60 
 L. J. Ch. 428, overruling Mon-
 
 INJUNCTIONS. 
 
 735 
 
 enforced if unreasonable or oppressive (e); or if, though 
 negative in form, it is affirmative in substance (/). But a 
 great majority of the cases in which one person seeks to 
 prohibit a certain act depend on rights which avail against 
 all the world; or, to use the technical language of juris- 
 prudence, depend on jura in rem, not on obligationes. As 
 far, however, as regards the remedy, there is little import- 
 ance in the distinction. Whether the negative duty, or 
 duty to abstain, be contractual or general, the injunction 
 which enforces it is the same in nature and in form. 
 
 An injunction may be described as a judicial process Definition, 
 whereby a party is required to do a particular thing {i.e.,' 
 a mandatory injunction) or to refrain from doing a par- 
 ticular thing. There is, however, a marked contrast 
 between injunctions which command and injunctions 
 which forbid the doing of an act. The former, as a rule, 
 only issue after decree, and are of the nature of an execu- 
 tion to enforce the same. Only in cases where there has 
 been an evident attempt to anticipate and evade the 
 ultimate decision of the Court has a mandatory interlocu- 
 tory injunction been made (g). Injunctions may be either Interlocutory- 
 interlocutory or perpetual. Interlocutory injunctions are orperpeua. 
 made pending the hearing of the cause upon the merits, 
 and are generally expressed to continue until such hearing 
 or until further order. Perpetual injunctions are such as 
 form part of the decree made at the hearing upon the 
 merits, and perpetually restrain the defendant from the 
 assertion of a right or the commission of some act contrary 
 to equity: they are in fact final decrees. 
 
 Interlocutory injunctions are merely provisional and do 
 not conclude a right. Their object is to preserve the pro- 
 
 tfiffue V. Flockton, 16 Eq. 189; Ch. 451; 67 L. J. Ch. 644. 
 
 Holford V. Acton, ^-c. Council, (/) Davis v. Foreman, (1894) 
 
 (1898) 2 Ch. 240; 67 L. J. Ch. 3 Ch. 654; 64 L. J. Ch. 187. 
 
 636. if/) D'lniel v. Ferguson, (1891) 
 
 (p) Ehrmann v. Bartholomew, 2 Ch. 27; Von Joel v. Hornsey, 
 
 (1898) 1 Ch. 671; 67 L. J. Ch. (1895) 2 Ch. 774; 65 L,. J. Ch. 
 
 319; Robinson v. Heuer, (1898) 2 774.
 
 im 
 
 INJUNCTIONS. 
 
 Maudatoiy 
 injimotioii.s. 
 
 Enforcement. 
 
 Origin of the 
 jurisdiction. 
 
 pertj subject to litigation in statu quo until the hearing or 
 further order, and may be obtained by a plaintiff who 
 shows that he has a fair question to raise as to the exist- 
 once of the right which he alleges (h). 
 
 It was formerly considered that a Court of equity had 
 no jurisdiction in the absence of contract to compel the 
 performance of a positive act, such as the removal of a 
 work already executed, though it might, by framing the 
 order in an indirect form, compel a defendant to restore 
 things to their former condition. The present practice, 
 however, is to express such an injunction in a direct 
 mandatory form (^). This jurisdiction is, however, only 
 exercised in cases which adm|it of no other adequate 
 remedy, and their occurrence is comparatively unfrequent. 
 This species of relief will always be refused if the injury 
 can be reasonably recompensed by damages, or even if the 
 balance of convenience is strongly on the side of the 
 defendant (k). And in fact, generally, the remedy of 
 injunction will not be applied in trivial circumstances (I). 
 
 An injunction, when granted, is enforceable, if need be, 
 by committal for contempt in the event of disobedience, 
 and this not only as against the parties to the action, but 
 also against others knowingly abetting them.' in the 
 breach (m). 
 
 The jurisdiction of equity to decree injunctions arose, 
 like that of specific performance, from the want of an 
 adequate remedy at law. The common law had, indeed, 
 in certain cases, the power of prohibiting the committal of 
 wrongs: for instance, waste could be restrained by the writ 
 
 {h) See Kerr on Injunctions, 
 pp. 11, 12, ed. 2. 
 
 (j) Jackson V. Normanby Brick 
 Co., (1899) 1 Ch. 438; 68 L. J. 
 Ch. 407. 
 
 {k) Beere v. Guest, 1 My. & 
 C. 516; Jacomb v. Knight, 3 
 Do G. J. & S. 538. 
 
 {I) Llandudno Urban Council 
 V. Woods, (1899) 2 Ch. 705; 68 
 
 L. J. Ch. 623; Colls v. Rome 
 and Colonial Stores, (1904) A. C. 
 179; 73 L. J. Ch. 484; over- 
 ruling Warren v. Brown, (1902) 
 
 I K. B. 15; 71 L. J. K. B. 12. 
 {m) Wellesley v. Mornington, 
 
 II Eeav. 180; Seaward v. Pater- 
 son, (1897) 1 Ch. 545; 66 L. .J. 
 Ch. 267.
 
 INJUNCTIONS. "737 
 
 of prohibition and estrepement of waste. But the cases in 
 which the common law supplied remedies of this nature 
 were very few, and the procedure by which they were 
 applied was cumbrous and inconvenient, so that the 
 assistance of equity was at an early period found necessary 
 for the proper administration of justice; and when this 
 jurisdiction was established, the superiority of its process 
 gradually caused the inferior remedies of law to fall into 
 desuetude. 
 
 The following' is in substance the enumeration given by Ckssification 
 
 '^ _ . . or injunctions • 
 
 a learned author of the circumstances in which the remedy 
 
 of injunction has been most commonly applied (n). 
 
 1. To stay proceedings in Courts of law. 
 
 2. To restrain the indorsement or negotiation of nego- 
 
 tiable instruments, the sale of land, the sailing of 
 a ship, the transfer of stock or the alienation of a 
 specific chattel. 
 
 3. To prevent the wasting of assets or other property 
 
 pending litigation. 
 
 4. To restrain trustees from assigning or improperly 
 
 dealing with the legal estate or trust property. 
 
 5. To prevent the removing out of the jurisdiction, 
 
 marrying, or having any intercourse which the 
 Court disapproves of, with a ward. 
 
 6. To restrain the commission of every species of waste. 
 
 7. To prevent the infringement of patents and the 
 
 violation of copyright. 
 
 8. To prevent the continuance of public or private 
 
 nuisances. 
 
 9. To prevent multiplicity of suits and vexatious 
 
 litigation. 
 It will be observed that this enumeration admits of a 
 division into two strongly distinguished classes of cases; 
 first, those in which the wrong restrained is one which was 
 
 («) Eden on Injunctions, p. 1. • . 
 
 s. 47
 
 738 
 
 INJUNCTIONS. 
 
 Injunctions 
 against 
 equitable 
 wrongs. 
 
 Injunctions 
 against legal 
 wrongs. 
 
 formerly regarded as such in equity only, and in which, 
 accordingly, the ground of the jurisdiction is the absence 
 of a legal remedy altogether; secondly, those in which the 
 wrong restrained is both legal and equitable, in Avhich, 
 therefore, the ground of the jurisdiction is the superiority 
 of the equitable to the legal remedy. 
 
 The former class comprises, — first, injunctions which 
 are designed to prevent the abuse of legal processes, under 
 circumstances which render it inequitable to apply them; 
 secondly, injunctions protecting equitable estates and 
 interests not recognized at law. 
 
 The latter class includes, — first, injunctions protecting 
 common rights as to the enjoyment of land; secondly, 
 injunctions protecting the peculiar rights arising from 
 patents, copyright, and the use of trade marks. 
 
 The enumeration above quoted does not indeed pretend 
 to be exhaustive; nor is it possible to specify every case 
 to which the remedy of injunction might be applied. 
 Wherever a plaintiff is equitably entitled in rem or in 
 personam to restrain the commission or continuance of an 
 act, he may be aided by means of injunction. The cases 
 here given copiously illustrate the circumstances in which 
 the remedy is most usually sought; and whatever other 
 oases may suggest themselves will be found to fall easily 
 within one or other of the classes indicated.
 
 TO PREVENT THE ABUSE OF LEGAL PROCESSES. 739 
 
 Section I. — Injunctions restraining Wrongs purely 
 Equitable. 
 
 I. To prevent the abuse of Legal Processes. 
 II. To protect Equitable Estates and Interests. 
 
 I. Injunctions to prevent the abuse of Legal Processes. 
 
 The most important class of cases falling under this 
 description is that of which one of the oldest and most 
 famous of authorities is The Earl of Oxford's Case (a) . 
 
 This case is celebrated in history on account of the warm 
 ■dispute which arose therefrom between Lord Chancellor 
 Ellesmere and Lord Chief Justice Coke. The former 
 insisted on the right and jurisdiction of equity to restrain 
 persons who had obtained judgments at law from making 
 such judgments instruments of injustice. He did not 
 pretend to a power to overrule the judgment, but claimed 
 to prevent the party obtaining it from acting upon it 
 contrary to conscience. The latter, however, considered 
 the exercise of this power as an encroachment upon the 
 jurisdiction of the Courts of common law. So far did the 
 contention go that indictments were preferred at Coke's; 
 instigation against the parties who had filed their bill in 
 Chancery, their counsel and solicitors; and, on the other 
 hand, the Attorney-General was directed to prosecute in 
 the Star Chamber those who had preferred the indict- 
 ments. 
 
 In the event the jurisdiction of equity contended for 
 was firmly established. And reasonably so, for it con- 
 sisted not in any assumption of superiority to the Courts 
 ■of law, but in the assertion of a right to control the acts 
 
 («) 1 Ch. Rep. 1; 1 W. & T. L. C. 730, ed. 7. 
 
 47 (2)
 
 740 INJUNCTIONS RESTRAINING EQUITABLE WRONGS. 
 
 of the parties concerned, according to principles of con- 
 science and equity. 
 
 The recent history of this head of equitable jurisdiction, 
 shows by what steps it has come to be at present of 
 comparatively small effect and importance. 
 
 C. L. P. Act, 1 First, by the Common Law Procedure Act, 1854 (b)^ 
 it was enacted that equitable pleas and replications 
 might be made use of at law. The effect of this might 
 have been to have rendered the interference of equity on 
 behalf of the defendant at law in the future unnecessary. 
 But this effect was prevented by the narrow construction 
 put upon the Act by the common law judges, who held 
 that no equitable plea was good unless it disclosed facts 
 which would entitle the defendant to a perpetual and un- 
 conditional injunction in equity (c). Thus in a multitude 
 of cases applications to the Court of Chancery continued 
 to be necessary. Moreover, the Act only gave an option 
 to the defendant at law to plead an equitable defence; it 
 still left him the pomer of proceeding in equity for an 
 injunction as before (^d). 
 
 Jud. Acts. 2. By the Judicature Acts, 1873 and 1875 (e), the 
 
 principal previously existing Courts of law and equity were 
 consolidated into the Supreme Court of Judicature, con- 
 sisting of Her Majesty's High Court of Justice and Her 
 Majesty's Court of Appeal; and it was enacted that in 
 every division thereof law and equity should be concur- 
 rently administered. Further, by s. 24, sub-s. 5, of the 
 Act of 1873, it is enacted that " no cause or proceeding 
 " at any time pending in the High Court of Justice or 
 " before the Court of Appeal shall be restrained by pro- 
 " hibition or injunction; but every matter of equity on 
 
 (6) 17 & 18 Vict. c. 125, s. 83. {d) Gompertz v. Pooley, 4 
 
 (c) Jeffs V. Bay, L. R. 1 Q. B. Drew. 453. 
 374. (e) 36 & 37 Vict. c. 66, and 
 
 38 & 39 Vict. c. 77.
 
 TO PREVENT THE ABUSE OF LEGAL PROCESSES. 741 
 
 *' 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 
 '' terms or conditions, may be relied on by way of defence 
 ^' thereto: Provided always, that nothing in this Act con- 
 ^' tained shall disable either of the said Courts from 
 ^' directing a stay of proceedings in any cause or matter 
 " pending before it if it shall think fit; and any person, 
 '" whether a party 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 
 " apply 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 there- 
 *' upon make such order as shall be just." 
 
 The result of this legislation is to put a stop in general Effect 
 to injunctions against judicial proceedings, providing in- of legislation, 
 stead a power for any division of the High Court to order 
 a stay of its own proceedings, and in applications for this 
 purpose to consider and give weight to those principles of 
 equity which were previously invoked for the purpose of 
 obtaining an injunction. 
 
 3. Still, there are cases not affected by the Judicature Cases not 
 Act in which this equitable procedure may be appealed to; ^j^g ^^^g 
 and it is therefore not idle to consider the principles byi 
 which it was and may still be directed. 
 
 In the first place, it is to be observed that the old juris- 
 diction remains in force as regards proceedings in all 
 Courts not comprised by the Judicature Acts in the High 
 Court of Justice. 
 
 Thus, the Chancery Division may restrain a person Suits in
 
 742 
 
 INJUNCTIONS RESTRAINING EQUITABLE WRONGS. 
 
 foreign 
 Courts 
 restrained. 
 
 And in 
 
 English 
 
 Courts 
 
 not aifected 
 
 by the Acts. 
 
 Court of 
 Bankruptcy. 
 
 In what 
 
 circumstances 
 
 grauted. 
 
 within its jurisdiction from taking proceedings in Courts 
 out of its jurisdiction — ^for instance, in Scotland, Ireland,, 
 the colonics, or in foreign countries (/) . But no more in 
 these cases than formerly in granting injunctions against 
 proceedings in the ordinary Courts of law does equity 
 affect to control, or overrule or examine, the judicial or 
 administrative action of the foreign tribunals {g) . It 
 addresses its decree to the person within its jurisdiction, 
 forbidding his action {h) . 
 
 Again, there are certain Courts in England which were 
 not affected by the Judicature Act, and which, therefore, 
 continue to be ruled by the old principles and procedure. 
 One instance of this is the Lord Mayor's Court in London; 
 and if from any circumstances it were inequitable that a 
 person should take or continue proceedings therein, there 
 seems no reason why he should not as formerly be re- 
 strained by a Court of equity (^). Other local Courts in 
 England fall within the same principle (fc). 
 
 4. The Court of Bankruptcy, which was not affected by 
 the Judicature Act, is now incorporated in the High Court 
 of Justice {m), and consequently its former power of re- 
 straining actions in other Courts no longer exists {I) . 
 
 5. There being, therefore, cases in which injunctions 
 against legal proceedings may still be sought in equity, it 
 is not immaterial to inquire into the circumstances wdiich 
 are deemed to warrant such application; especially since, 
 in cases in which an injunction is no longer the proper 
 remedy, the same circumstances which formerly warranted 
 it will now entitle a defendant to a stay of proceedings. 
 
 (/) l^e Hermann Looq, 36 Ch. 
 D. 502. 
 
 (ff) See British S. Africa Co. 
 V. Companhia de Mocambique, 
 (1893) A. C. 602; 63 L. J. Q. B. 
 70. 
 
 (Ji) PorUirlington v. Soulby, 3 
 My. & K. 106; Hope v. Carnegie, 
 1 Ch. 320. 
 
 (j) Mildred v. Neate, 1 Dick. 
 279; Cottesworth v. Stephens, 4 
 Ha. 185. 
 
 (k) Hedley v. Bates, 13 Ch. D. 
 498 ; Stannard v. St. Giles' Vestry, 
 20 ib. 190. 
 
 (I) 46 & 47 Vict. c. 52, s. 93. 
 
 (»0 Re Barnett, 15 Q. B. D. 
 169.
 
 TO PREVENT THE ABUSE OF LEGAL PROCESSES. 743 
 
 Lord Ellesmcre in the principal case gave certain illus- 
 trations of the circumstances in which the Court had 
 interfered to stay proceedings at law, on the grounds of 
 some equity of which the defendant could not avail him- 
 self in a Court of law, but to which he might appeal as a 
 suppliant in Chancery. The following heads have been 
 specified as comprising the various grounds on which 
 such interference of equity might be sought: — accident, 
 mistake, fraud, accounts, illegal and immoral contracts, 
 penalties and forfeitures, breaches of covenants, adminis- 
 tration of assets, marshalling of securities and surety- 
 ship (n) . The distinction between equitable and legal 
 doctrines and practice as to these matters has already been 
 expounded under the various headings of this work, and of 
 course need not now be particularly referred to. It suffices 
 to adduce a few illustrations of the operation of the juris- 
 diction in the cases in which it still applies, at the same 
 time contrasting it with the procedure by which in other 
 cases the same result is now reached. 
 
 First, however, we may premise that it was always Equitable 
 necessary for a plaintiff seeking an injunction against *^*^® required, 
 legal proceedings to establish some special equitable title to 
 relief — the remedy was not given on the ground of matter 
 which might be alleged in defence at law (o) ; and thus the 
 amendment of the law effected by the Common Law Pro- 
 cedure Act, 1854, already quoted, reduced the number of 
 cases in which the remedy of injunction was available (p). 
 Moreover, the principle of injunctions cannot be so applied ]j^ere error at 
 
 as to amount in effect to an appeal from a Court of law. ^^^'^'^^ 
 .... .„ 1 T • 1 • sufficient. 
 
 An injunction will never be granted against the execution 
 
 of a judgment on the mere ground of its being a decision 
 
 erroneous at law (g). Still less where the result has been 
 
 (m) Eden on Injunctions, 4; (p) Farebrother v. Welchman, 
 
 Joyce on Injunctions, 1053, 1257. 3 Drew. 122; and of. Gompertz 
 
 (o) Harrison v. Nettleship, 2 v. Pooley, 4 Drew. 453. 
 My. & K. 423. {q) Simpson v. Iloivden, 3 My. 
 
 & Cr. 108.
 
 744 
 
 INJUNCTIONS RESTRAINING EQUITABLE WRONGS. 
 
 Executors and 
 administra- 
 tors protected. 
 
 Stay of 
 proceedings. 
 
 General 
 creditors 
 protected. 
 
 produced bj the negligence of the party seeking relief (r) . 
 The illustrations adduced will show the nature of the 
 special equitable claims which form proper grounds for 
 seeking the remedy. 
 
 6. Perhaps there is no class of actions in which the 
 remedy for injunction has been so frequently applied as in 
 those of creditors against the legal personal representatives 
 of deceased persons. ' 
 
 In some of such cases the injunction is sought and 
 granted for the protection of the executor or administrator. 
 At law, when the legal personal representative had once 
 acquired possession of or become chargeable with sufficient 
 property of the deceased to discharge his debts, he remained 
 chargeable, notwithstanding any accident, such as robbery 
 or fire, which might destroy the property before its distri- 
 bution ; and it mattered not how free from default he may 
 have been, or how great the liability thus devolving upon 
 him personally. But in equity the hardship and injustice 
 of a creditor's action under such circumstances was re- 
 cognized; and on the application of the executor or 
 administrator, a Court of equity would issue an injunc- 
 tion forbidding the creditor to continue his proceedings at 
 law (s). 
 
 Under the present practice, the Courts of law would 
 themselves stay proceedings under circumstances formerly 
 warranting an injunction, and might direct the transfer of 
 the action to the Chancery Division. 
 
 7. In another class of cases an injunction was obtain- 
 able for the protection of the general creditors. We have 
 elsewhere s^een that executors had at law large powers of 
 preference with regard to the !payment of the debts of their 
 testator. To prevent the unfair exercise of this preference. 
 Courts of equity encouraged suits for the general adminis- 
 
 (r) Bateman v. Willoe, 1 S. 
 L. 204. 
 
 (s) Crosse v. Smith, 7 East, 
 258; Croft v. Lyndsey, Freem. 1.
 
 TO PREVENT THE ABUSE OF LEGAL PROCESSES. 745 
 
 tration of estates, in which their decrees difiered from a 
 judgment at law in that they were equally in favour of all 
 creditors. After the granting of such a decree, equity was 
 wont to restrain all actions brought by individual creditors 
 at law (t) . But it would not interfere with a creditor who 
 had obtained a judgment at law prior to the administra- 
 tion decree (w) . 
 
 Under the present practice, a Court of law would stay Present 
 proceedings in such an action (x), and the judge in whose '^^^ ^°®" 
 Court the administration action is pending has power, 
 without any further consent, to order the transfer to him- 
 self of an action pending in any other Division of the 
 Court brought by or against the executors or administra- 
 tors whose assets are being administered (2) . 
 
 Similar to these cases were those in which actions at injunctions in 
 law were commenced against a company after proceedings ^^° ^S-^V- 
 had been taken in equity for its winding-up. These cases 
 are now also provided for by the rule of Court above 
 referred to. 
 
 The Court will not restrain a party from proceeding Arbitration, 
 with an arbitration, whether the source of the objection is 
 that the matter referred is beyond the scope of the agree- 
 ment to refer (a) or that the party is proceeding without 
 authority in the name of another (6); but it has jurisdic- 
 tion to restrain such proceeding if, for example, it is 
 satisfied that injury will result to the party complaining 
 if the arbitration is allowed to proceed, but it will not 
 do so merely on the ground that the arbitration will be 
 futile (c) . 
 
 (0 Morrice v. B. of England, G. N. R. Co., 11 Q. B. D. 30; 
 
 Ca. t. Talb. 217; 4 Bro. P. C. 52 L. J. Q. B. 380. 
 ■287; Rush v. Higgs, 4 Ves. 638. (5) London ^ Blackmail R. Co. 
 
 (m) Ealy V. Barry, 3 Ch. 452; v. Cross, 31 Ch. D. 354; 58 L. 
 
 Etheridge v. Woynersley, 29 Ch. J. Ch. 313; but see and distin- 
 
 D. 557; 54 L. J. Ch. 965. guish G. W. R. Co. v. W. ^ L. 
 
 {x) Crowle v. Russell, 4 C. P. R. Co., 17 Ch. D. 493. 
 D. 186. (c) Farrar v. Cooper, 44 Ch. 
 
 (z) Order XLIX., rule 5 (1883). D. 323; 59 L. J. Ch. 506; Kitts 
 
 la) North London R. Co. v. v. Moore, (1895) 1 Q. B. 253; 64 
 
 L. J. Q. B. 152.
 
 746 
 
 INJUNCTIONS RESTRAINING EQUITABLE WRONGS. 
 
 Equitable 
 
 defences 
 ajrainat legal 
 iustrumentH. 
 
 Trust estates 
 protected. 
 
 Injunctions 
 against 
 multiplicity 
 of actions. 
 
 Foreign suits, 
 
 when 
 
 restrained. 
 
 8. Other illustrations of the granting of similar injunc- 
 tions are afforded bj cases in which instruments legallj 
 binding have been obtained by such actual or constructive 
 fraud as confers an equitable title to relief against them. 
 Such matters can now, of course, be pleaded in defence in 
 any Division of the Court; formerly the relief took the 
 form of an injunction restraining legal proceedings on the 
 instrument (j.d) . 
 
 9. Where, again, the legal and equitable titles to pro- 
 perty were in different people, an action at law by the 
 person having the legal estate was restrained by injunction. 
 Thus separate estate limited to a married woman without 
 the intervention of trustees was protected against the 
 judgment creditors of her husband by this means. The 
 creditors, indeed, obtained a legal title through the hus- 
 band; but he being in equity a trustee, their execution 
 was restrained by injunction (e). 
 
 10. The desire to avoid multiplicity of actions was 
 also a frequent ground of injunctions to stay proceedings. 
 A party was never suffered to sue for the same thing at 
 the same time in equity and at law. When litigation was 
 pending in one Court in which complete relief could be 
 had, and it was sought to institute proceedings elsewhere,, 
 the person so attempting was restrained by injunction (/); 
 a fortiori if the design of the foreign proceedings was to 
 gain some unfair advantage, as where a creditor who had a 
 specific charge upon a part of the testator's real estate came 
 in under a decree in a general administration suit, and 
 then claimed to prove in a creditors' suit which he had 
 instituted in Ireland (gr). 
 
 11. In the case of foreign suits, even though no decree 
 has been obtained in this country, yet if a suit instituted 
 
 (d) Lloyd V. Clark, 6 Beav. 
 309; Tyler v. Yates, 11 Eq. 265. 
 
 (e) Neivlands v. Paynter, 4 
 My. & Cr. 408. 
 
 (/) Carroll, 4'C. Co. v. Maclaren, 
 5 H. L. 416, 437; Harrison v. 
 Gurney, 2 J. & W. 563. 
 
 (p') Beauchamjy v. Huntley^ 
 Jac. 546.
 
 TO PREVENT THE ABUSE OF LEGAL PROCESSES. 747 
 
 abroad appears ill-calculated to answer the ends of justice, 
 it may be restrained (A). And where there has been no 
 question as to the necessity of the foreign litigation, a 
 person within the jurisdiction of the Court of Chancery 
 has been restrained from proceedings which are deemed by 
 it contrary to good conscience, such as a suit to recover a 
 gambling debt (i) . 
 
 The fact of a foreigner having property in this country 
 enables the Court to make effectual an injunction issued 
 against him (fc) . 
 
 On the contrary, where such interposition would not 
 tend to equality of all parties, or where it would not add to 
 the convenience of proceeding, it will not be granted (?). 
 
 When a foreigner seeks no assistance from the Courts of 
 this country, it requires a very strong case to induce them 
 to restrain him, when domiciled in another country, from 
 proceeding to obtain payment of his debts according to the 
 law of that country (m) . 
 
 12. Analogous in principle to the restraining of pro- Application 
 ceedings in Courts of justice are those in which application Parliament, 
 has been made to the Court of Chancery against a party 
 applying for a private Act of Parliament, or for an Act 
 respecting property. It has been laid down by many 
 judges that the Court, acting in personam, has power to 
 grant such an injunction, though there is no case in which 
 it has been actually carried into effect (w) . In Heathcote v. 
 N. S. R. Co.('0) an injunction was granted by Sir L. Shad- 
 well, but was dissolved by Lord Cottenham on appeal, not 
 indeed on the general ground of want of jurisdiction, but 
 from the absence in that case of circumstances warranting 
 such a decree. His lordship pointed out an important 
 
 (A) Baillie v. £., 5 Eq. 175. Hunter, 4 Eq. 62; 3 Ch. 479; 
 
 (i) Tortarlinrjton v. Soulby, 3 Jones v. Geddes, 1 Ph. 725. 
 
 My. & K. 104; Simpson v. Fogo, {m) Carron, ^c. Co. v. Mac- 
 
 1 J. & H. 18; 1 H. & M. 195. laren, sup. 
 
 (Jc) Carron, ^c. Co. v. Maclaren, (n) But see Att.-Gen. v. Man- 
 
 5 H. L. 416. Chester ^ Leeds R. Co., 3 Jur. 
 
 (Z) Liverpool, S^c. Co. v. 379. 
 
 (o) 2 Mac. & G. 100.
 
 748 
 
 INJUNCTIONS RESTRAINING EQUITABLE WRONGS. 
 
 When 
 restrained. 
 
 Equity 
 protects its 
 own officers. 
 
 distinction between such a case and an injunction against 
 proceedings at law, the ground of the latter being that it 
 was sought to interfere with an inequitable use of a legal 
 right, while in the former case, it was the ordinary pro- 
 vince of the legislature to abrogate existing rights and 
 create new ones. To hold, therefore, that no application 
 should be made to Parliament because its object was to 
 interfere with some right or interest, would be in effect to 
 hold that the Court should by its injunction deprive the 
 subject of the benefit of parliamentary interference. An 
 injunction, therefore, could not be granted on the ground 
 that the Act of Parliament sought for would interfere 
 with existing rights, it being the very object of it to do so. 
 
 Upon the same principle, in the absence of some special 
 equity, the Court will not restrain an application to the 
 legislature of a foreign country (p). 
 
 As, however, it is unlawful, and in fact a breach of trust, 
 to apply the funds of a company in an application to Par- 
 liament for powers to extend the business of the company 
 beyond the objects for which it was constituted, the Court 
 has power, at the suit of any of the shareholders, to inter- 
 fere by injunction to restrain such application, and gener- 
 ally to restrain acts ultra vires of the directors (g). The 
 funds of a company may, however, be employed in defence 
 of existing rights, and if it be necessary to apply to Par- 
 liament for their protection, such application will not be 
 restrained (r). 
 
 13. Courts of equity have always been careful to pro- 
 tect their own officers in the execution of the processes of 
 the Court against any actions brought against them for 
 acts done in pursuance of their duty. If the processes 
 were irregular, they were not to be examined in other 
 Courts; the Courts of equity would themselves apply the 
 proper remedy (s). 
 
 #c. Co., 1 
 
 (^p) Bill V. Sierra, 
 De G. F. & J. 177. 
 
 (5') Simpson v. Denison, 10 
 Ha. 51; see also G. W. R. Co. 
 
 V. Rushotit, 5 De G. & Sm. 290. 
 
 (r) Bright v. North, 2 Ph. 216. 
 
 (s) May V. Hook, 2 Dick. 619, 
 cited; Walker v. Micklethwait, 1
 
 TO PREVENT THE ABUSE OF LEGAL PROCESSES. 749 
 
 14. It may be laid down as a general principle that a Criminal 
 Court of equity neither has nor had any jurisdiction to not restrained, 
 restrain by injunction any criminal proceedings (t). It 
 was but an apparent exception that when the person 
 instituting such proceedings was at the same time himself 
 a plaintiff in equity, the Court had power to require him 
 to elect between his suit in equity and his prosecution (u) ; 
 and this case has been disapproved of by high autho- 
 rity (x). Under s. 85 of the Companies Act, 1862, the 
 Court, after the presentation of a petition for winding-up, 
 restrained criminal proceedings against the company (y). 
 
 II. Injimctions protecting Equitable Estates and 
 Interests not recognised at Law. 
 
 1. Trusts supply the most extensive and important Trust 
 
 class of purely equitable estates. An illustration which Property 
 
 . ^ , . protected, 
 
 falls with equal propriety under this head has been already 
 
 given of the protection of trust property by means of 
 
 injunction (z). Other instances of a similar nature may 
 
 be easily supplied; for example, where a trustee seeks 
 
 payment to himself of a legacy bequeathed to his cestui 
 
 que trust (a). So where a cestui que trust proves a probable Breach of 
 
 intention on the part of his trustee to commit a breach of ^^f' ■ , 
 
 trust, he may procure an injunction to restrain him (6); 
 
 and it is not necessary to entitle him to this relief that 
 
 Dr. & Sm. 49; Be Maidstone Co. v. Hampton Urban Counoil, 
 
 Palace of Varieties, Blair v. M. (1898) 2 Ch. 701; 67 L. J. Ch. 
 
 P. of v., (1909) 2 Ch. 283; 78 703. 
 
 L. J. Ch. 739. {y) Re Briton Medical and 
 
 (<) Montague v. Bodman, 2 General Co., 32 Ch. D. 503; 55 
 
 Ves. sr. 396. L. J. Ch. 416. 
 
 (m) M. of York V. Pilkington, (z) Newlands v. Paynter, 4 
 
 2 Atk. 302. My. & Cr. 408. 
 
 (a;) Saull v. Browne, 10 Ch. (a) Hill v. Turner, 1 Atk. 516. 
 
 64; Kerr v. Corp. of Preston, 6 (&) Balls v. Strutt, 1 Ha. 146. 
 Ch. D. 463; Grand Junction, S;c.
 
 '50 
 
 INJUNCTIONS RESTRAINING EQUITABLE WRONGS. 
 
 Liens 
 protected. 
 
 Constructive 
 trusts. 
 
 Improper 
 dealing with 
 wards of 
 Court. 
 
 the threatened damage should he irreparable (c) . It is the 
 right and duty of a trustee who apprehends a breach of 
 trust by his co-trustee to seek an injunction to restrain 
 him (d). 
 
 2. Thus again, the lien of a purchaser has been prop 
 tected by an injunction restraining the vendor from part- 
 ing with the legal estate (e); and similarly, the interest 
 of an equitable mortgagee (/). Constructive trusts aris- 
 ing from frauds have also been assisted by restraining the 
 indorsement or negotiation of notes fraudulently 
 obtained {g). 
 
 3. We have seen elsewhere (p. 477) that the unautho- 
 rised marriage or removal of wards of Court will be pro- 
 hibited by injunction; a guardian may even be restrained 
 from giving his consent to such a marriage without the 
 leave of the Court (h); and, by an analogous jurisdiction, 
 fathers have for special reasons been restrained from tak- 
 ing their children abroad, or interfering with their 
 education (^). 
 
 (c) Anon., 6 Mad. 10; Dance 
 V. Goldingham, 8 Ch. 902. 
 
 {d) Re Chertsey Market, 6 Pri. 
 279. 
 
 (e) Echli-ff V. Baldwin, 16 Ves. 
 267. 
 
 (/) Lond. ^ County Bk. v. 
 Lewis, 21 Ch. D. 490. 
 
 (f/) Smith V. Aykwell, 3 Atk. 
 566. 
 
 (/t) Beard v. Travers, 1 Ves. 
 313. 
 
 (i) Exp. Warner, 4 Bro. C. C. 
 101; Be Manneville v. Be M., 
 10 Ves. 52.
 
 GENERAL PRINCIPLES. T51 
 
 Section II. — Injunctions Restraining Wrongs at 
 ONCE Legal and Equitable. 
 
 General Principles. 
 
 I. Injunctions protecting Rights in Land. 
 
 1. Waste. 
 
 (1.) Doctrines and remedies of Law as to 
 
 waste. 
 (2.) Doctrines and remedies of Equity as 
 
 to ivaste. 
 
 2. Trespass. 
 
 3. Nuisance. 
 
 4. Libel, Sc. 
 
 II. Injunctions protecting Patent Rights, dc. 
 
 1. Patents. 
 
 2. Copyright. 
 
 3. Trademarks. 
 
 4. Goodivill. 
 
 The protection of legal rights to property from irre- Principles of 
 parable, or at least from serious damage, pending the trial ^j junsdic- 
 of the legal right, is part of the original and proper office 
 of a Court of equity {a). It has sometimes been quoted 
 as a maxim that equity will not suffer a ivrong ivithout a . 
 remedy. A full discussion, therefore, of the case in which 
 the protection of an injunction might be afforded would 
 require an exposition of legal rights generally, which 
 cannot, of course, be here attempted. It must suffice, 
 first, to indicate the general principles by which the 
 exercise of the jurisdiction is directed, and secondly, to 
 pass in review, by way of illustration, some of the most 
 frequently occurring and important cases in which this 
 particular remedy is applied. 
 
 (a) Kerr, Inj. 13; Hilton v. Granville, Cr. & Ph. 283, 292.
 
 752 
 
 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 Plaintiff must 
 show prima 
 facie right, 
 
 and that 
 defendant's 
 right is 
 doubtful, or 
 his act is 
 injurious. 
 
 and that the 
 legal remedy- 
 is insufficient. 
 
 (1.) A plaintiff seeking in equity an injunction for the 
 protection of a legal right, must first show a fair prima 
 facie case in support of the title which he asserts (6). 
 It is not necessary for him to show a clear legal title, but 
 he must satisfy the Court that he has a fair question to 
 raise as to the existence of the legal right which he sets 
 up (c). 
 
 (2.) He must also show that there are substantial 
 grounds for doubting the existence of the right asserted 
 by the defendant whom he seeks to restrain {d); or, if his 
 legal right is not disputed, he must show that the act com- 
 plained of is in fact a violation of his right (e), and that 
 there is a real probability or danger of his right being in- 
 vaded. On the one hand, the mere apprehension of injury 
 is not sufficient (/) ; on the other, the mere denial by the 
 defendant of his intention to infringe the plaintiff's right 
 will not necessarily prevent the Crown from interfer- 
 ing (^). It suffices if the Court is satisfied that an in- 
 fringement is threatened or is imminent {h). Statutory or 
 contractual rights may be protected by injunction, more- 
 over, without proof of actual damage (i) . For example, 
 the directors of a company may be restrained from exceed- 
 ing or abusing their powers (k), as by the improper pay- 
 ment of a dividend (I). 
 
 (3.) Thirdly, the plaintiff must show that the mischief 
 which he seeks to restrain wiU be such as to be incapable 
 
 (b) Kerr, Inj. 13; Saunders v. 
 Smith, 3 My. & Cr. 714, 728. 
 
 (o) Shrewsbury # Chester R. 
 Co. V. Shrewsbury cj Birminqham 
 R. Co., 1 Sim. N. S. 410, 426. 
 
 (<^) Sparrow v. 0. W. cj' W. 
 R. Co., 9 Ha. 436, 441. 
 
 (e) Ripon v. Hobart, 3 My. & 
 K. 169, 176; Raines v. Taylor, 
 10 Beav. 471; 2 Ph. 209; Gas 
 Light # Coke Co. v. St. Mary 
 Abbott Vestry, 15 Q. B. D. 1; 
 54 L. J. Q. B. 414. 
 
 (/) Hanson v. Gardiner, 7 Ves. 
 307; Batten v. Gedye, 41 Ch. D. 
 507; 58 L. J. Ch. 549. 
 
 (r/) Jackson v. Cator, 5 Ves. 
 688. 
 
 (h) Gibson v. Stnith, 2 Atk. 
 182. 
 
 («) Att.-Gen. v. Shrewsbury 
 Bridge Co., 21 Ch. D. 752; Att.- 
 Gen. V. G. E. R. Co., 11 ib. 449; 
 Herron v. Rathniines, ^-c. Gomm., 
 (1892) A. C. 498. 
 
 (Jc) Punt V. Symons ^ Co., 
 (1903) 2 Ch. 506; 72 L. J. Ch. 
 768; Baily v. British Equitable 
 Ass. Co., (1904) 1 Ch. 374; 73 
 L. J. Ch. 240. 
 
 (0 Hoole V. G. TV. R. Co., 2 
 Ch. 262.
 
 GENERAL PRINCIPLES. 753 
 
 of reparation by any legal remedy. It must be sucli 
 that a mere payment of damages will not suffice to put 
 the parties in their original position (m). This may be the 
 case either because the act threatened would destroy the 
 subject-matter of dispute (n), or because the nature of the 
 act renders it impossible accurately to ascertain the 
 damage (o). 
 
 On these general conditions rests the jurisdiction to 
 grant an injunction for the protection of a legal right. 
 The detailed considerations which affect it will best be 
 seen under the headings which particularly illustrate its 
 application. These fall under one or other of two classes. 
 of which the first comprises common law rights respecting 
 the enjoyment of land or houses; the second, the some- 
 what peculiar class of rights which arise from patents, 
 copyright and the use of trade marks. 
 
 It should be observed that by the Judicature Act it is Jud. Act, 
 enacted that, "a mandamus or an injunction may be ^- -^' sub-s. 8. 
 " granted by an interlocutory order of the Court in all 
 " cases in which it shall appear to the Court to be just or 
 " convenient that such an order should be made " {p). 
 
 On these words it has been argued that the principles on 
 which the Courts proceeded in granting injunctions were 
 thereby extended, and in many cases it has been sought to 
 secure the assistance of this remedy in circumstances under 
 which, before the Act, it would have been admittedh' 
 refused. It has, however, been clearly established that 
 the principles which move the Court in granting injunc- 
 tions have not been extended by the Act (g). No more 
 than before will it interfere in cases where no legal injury 
 has been effected or threatened. Typical cases of this kind 
 are found in Day v. Broivnrigg (r), where an injunction 
 
 (m) Wood V. SutcUffe, 2 Sim. (ja) 36 & 37 Vict. c. 66, s. 25, 
 
 N. S. 165. sub-s. 8. 
 
 (w) Hilton V. Granville, Cr. & (^q) Kitts v. Moore, (1895) 1 
 
 Ph. 283, 292. Q. B. 253; 64 L. J. Q. B. 152; 
 
 (o) Att.-Gen. v. AsphtaU, 2 Carter v. Fey, (1894) 2 Ch. 541. 
 
 My. & Cr. 613. (r) 10 Ch. D. 294. 
 
 s. 48
 
 754 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 was sought to restrain the defendant from giving a name 
 to his house which might confuse it with a neighbouring 
 house, and in Street v. TJnion Bank of Spain (.s), in which 
 an injunction was sought to restrain the use of a cypher 
 addresis. In both cases the remedy was refused, on the 
 ground that it was but an inconvenience, not a legal 
 injury, which was threatened (t). Under this Act, how- 
 ever, an injunction has been granted in support of a legal 
 rig-ht, notwithstanding the existence of the legal remedy 
 by Quo warranto (u), and it appears that now the Court 
 may, in an ejectment action, protect the property before 
 judgment, as under the old law it lacked jurisdiction 
 to do (x). 
 
 I. Injunctions protectiyig Rights in Land. 
 
 1. Injunctions against waste. 
 
 Some of the most important cases in which equity assists 
 the law by applying its special processes for the protection 
 of legal rights are supplied by questions respecting waste. 
 There are indeed cases of waste in which the wrong 
 redressed is simply equitable, and which would, therefore, 
 more strictly fall under the preceding heading. But it 
 will be more convenient to treat together the various 
 matters concerning waste which call for comment; and in 
 doing so, the distinctions between legal and equitable 
 waste will be plainly indicated. The principles of equity 
 respecting waste will most clearly appear if we lirst review 
 those of law on the same subject. 
 
 (s) 30 Ch. D. 156; 55 L. J. 450; Saunders v. Sun Lije ./ss. 
 
 Ch. 31. of Canada, (1894) 1 Ch. 537; 63 
 
 (t) And see North Lond. R. L. J. Ch. 247. 
 
 Go. V. G. N. R. Co., 11 Q. B. D. (m) Richardson v. Methley 
 
 30; 52 L. J. Q. B. 380; and see School Board, (1893) 3 Ch. 510; 
 
 also Bu Boidatj v. Bti B., L. R. 62 L. J. Ch. 943. 
 
 2 P. O. 430; Att.-Gen. v. {x) Berry \. Kean, 511.. J. Ch. 
 
 Clerkenivell Vestry, (1891) 3 Ch. 912: Foxwell v. Van Grutten, 
 
 527; Cowley v. C, (1901) A. C. (1897) 1 Ch. 64; 66 L. J. Ch. 53.
 
 WASTE AT LAW. 
 
 755 
 
 (1.) The doctrines and remedies of law as to ivaste. 
 
 Waste at law has been defined as " any spoil or destruc- Definition. 
 " tion done, or allowed to be done, to houses, woods, lands, 
 " or other corporeal hereditaments by the tenant thereof, 
 " during the continuance of his particular estate " (y). 
 
 (a.) Against whom chargeable. 
 
 Waste, as distinguished from trespass, could only be Tenant for 
 committed by a limited owner, that is, a tenant for life or 
 for years, in dower or in curtesy, and it could only b© 
 charged against him by one between whom and himself 
 there was privity of estate. 
 
 A tenant in tail after possibility of issue extinct. Tenant in tail 
 although practically a tenant for life, was not within the 
 legal restrictions as to waste; he was regarded as having 
 an inheritance (0), but a person to whom he conveyed 
 his estate was treated only as tenant for life (a). 
 
 These legal restrictions from waste have no application Legal waste 
 when the instrument giving rise to the life or limited 
 tenancy contains with respect thereto the common clause^ 
 " without impeachment of waste," or its equivalent. 
 Then, he may fell timber, or open quarries or mines, and 
 will be entitled to the full produce {h). In the presence 
 of these words, the Courts of law possessed no restraining 
 power, and had no further jurisdiction. 
 
 (b.) What acts amount to waste at law. 
 
 i. Timber trees (oak, ash and elm) being part of the Felling 
 inheritance, it is waste to fell or lop them, or do any act 
 whereby they might decay. A tenant is allowed to cut 
 down trees under twenty years old for the purpose of 
 allowing the proper development and growth of other 
 timber in the same wood and plantation; that is improve- 
 
 (y) 3 Steph. Com. 405, 7th ed. («) George Ap-Rice's Case, 3 
 
 (r) Willmms v. W., 15 Ves. Leon. 241. 
 419. (&) Lewis Boivles' Case, 11 
 
 Eep. 83. 
 
 48 (2)
 
 756 
 
 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 Opening new 
 pits or mines. 
 
 iment rather than waste (c) . The tenant i'or life of a 
 timber estate, i.e., an estate cultivated merely for the 
 produce of saleable timber, and where timber is cut peri- 
 odically, may fell it in the ordinary course. To do so is 
 a mode of cultivation, and timber feUed in proper course 
 constitutes the annual fruit of such land, such as the 
 settlor of the land would expect the successive tenants to 
 receive, and the nature of the act may be affected by local 
 usage or custom ftZ). He may also cut underwood and 
 willows in due course (e), and all trees other than timber 
 trees (/) . 
 
 It is provided by the Settled Land Act, 1882, that 
 where a tenant for life is impeachable for waste in respect 
 of timber, and there is on the settled estate timber ripe for 
 cutting, the tenant for life may, with the consent of the 
 trustees, or by obtaining an order of the Court, cut and 
 sell such timber; on such sale, three-fourths of the pro- 
 ceeds are to be set aside as capital money, and one-fourth 
 is applied as income (g) . 
 
 ii. A tenant for life commits waste by digging pits for 
 gravel, lime, clay, stone, &c. (except for repairs), or by 
 opening new mines for metal, coal, &c. (h); but he may 
 continue working pits and mines previouslj^ opened, and 
 in order to do so may make new pits or shafts (^) . 
 
 Writ of 
 waste. 
 
 (c . ) Remedies at laic . 
 
 The remedies for waste at law were by writ of waste 
 (abolished by 3 & 4 Will. 4, c. 27, s. 36), by an action for 
 damages, by trover for trees, &c. which became the pro- 
 
 (c) Honyivood v. H., 18 Eq. 
 310; Lowndes v. Norton, 6 Ch. 
 D. 139. 
 
 {d) Dashwood v. Maqniac, 
 (1891) 3 Ch. 306; 60 L. J. Ch. 
 809; Re Trevor-Batty e. Bull v. 
 Trevor-Batty e, (1912) 2 Ch. 339; 
 81 L. J. Ch. 646. 
 
 (e) Hampton v. Hodr/es, 8 Ves. 
 
 105; Phillips V. Smith, 14 M. & 
 W. 589. 
 
 (/) Honyivood v. H., sup. 
 
 Iff) 45 & 46 Vict. c. 38, s. 35. 
 
 (X) Co. Litt. 53 b; Finer v. 
 Vauffhan, 2 Beav. 466; Campbell 
 V. Wnrdlaw, 8 A. C. 641. 
 
 (i) Glavering v. C, 2 P. Wm.'f. 
 388; FAias v. Griffith, 8 Ch. D. 
 521.
 
 WASTE AT LAW. 
 
 "57 
 
 perty of the next owner of the inheritance as soon as they 
 were felled, or bv action for money had and received for 
 the produce of their sale (k) . 
 
 The incompleteness or inadequacy of these remedies is luadequacy of 
 very apparent. They only contemplate the recovery of *'^^°^'^ y- 
 damages after the waste has been committed, and pre- 
 viously to 17 & 18 Vict. c. 125, Courts of law had no 
 power to prevent by injunction the commission of the 
 waste. Again, Courts of law had no efficient machinery 
 for the taking of accounts, which in such cases were often 
 long and complicated. Further, they supplied no remedy 
 at all for many cases of legal waste, as will be more fully 
 seen when considering the nature of the equitable juris- 
 diction. And lastly, thej' took no cognizance whatever 
 of what is termed equitable waste. 
 
 Of course the contrast thus suggested between law and 
 equity is now a matter of historj' . By the Judicature Act, 
 1873 (Z), it is enacted that, "An estate for life without 
 " impeachment of w^aste shall not confer or be deemed to 
 " have conferred upon the tenant for life any legal right 
 " to commit waste of the description known as equitable 
 " waste, unless an intention to confer such right shall ex- 
 "pressly appear by the instrument creating such estate." 
 Though tenants for years and tenants in tail after possi- 
 bility of issue extinct are not here mentioned, they are 
 brought within the same rule b}^ sub-s. 11, which enacts 
 that in case of a conflict between law and equity the rules 
 of equity shall prevail. 
 
 (2.) The doctrines cmd remedies of equity as to waste. 
 
 The contrast between the doctrines of equity and those Contrast 
 of law with respect to waste is twofold. In the first place, Luity /^ 
 it consists in the more extended meaning which equity 
 ascribes to the word, reckoning, as it does, many acts as 
 
 (;!;) Seagram v. Knight, 2 Ch. Q) 36 & 37 Vict. c. 66, s. 25, 
 
 632. sub-s. 3.
 
 "58 
 
 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 waste which the law did uot consider chargeable . Secondly, 
 equity affords a remedy to many persons to whom law 
 would not have allowed a Iocii» standi. Its jurisdiction, 
 therefore, in cases of waste depends partly upon the nature 
 of the act complained of, partly upon the position of the 
 parties. 
 
 Equitable 
 waste defined. 
 
 Instances 
 of equitable 
 waste. 
 
 Destroying- 
 mansion 
 house. 
 
 Stripling 
 estate of 
 timber. 
 
 (a.) As to the imture of the act charged. 
 
 The consideration of the jurisdiction which particularly 
 depends on the nature of the waste complained of, requires 
 a definition of equitable waste. 
 
 Though equity follows the law in allowing weight to the 
 words " without impeachment of waste," or their equiva- 
 lent, when used respecting a limited tenancy, it does so 
 only to a certain degree. When they are used it will not 
 restrain from the committing of ordinary waste, such as 
 cutting timber trees and opening mines; but it will not 
 allow this power to be exercised contrary to conscience 
 and in an unreasonable manner, so as to amount in fact 
 to a destruction of the estate settled {m) . 
 
 The following acts of waste, with which in tenancies 
 " without impeachment of waste," the law would not 
 have interfered, have been deemed unconscionable and 
 unreasonable in equity, and constitute, therefore, equitable 
 waste : — 
 
 i. The destruction or dismantling of the mansion 
 house {n), and the wanton pulling down of farmhouses 
 on the property (o) . If, however, such destruction has 
 been simply for the jaurpose of erecting houses of a better 
 kind, or in more favourable situations, the tenant incurs 
 no liability to account (p). 
 
 ii. Though equity allows the ordinary and reasonable 
 cutting of timber, it will interfere if a tenant threatens to 
 
 78. 
 
 (m) Vane v. Barnard, 2 Vern. 
 J. 
 (w) Lord Barnard's Case, ibid. 
 
 (o) Aston V. A., 1 Ves. si*. 265. 
 Ip) Morris v. J/.. 3 De G. & 
 J. 323.
 
 WASTE AT LAW. 759 
 
 strip the estate thereof, or to g'rub up a wood setthxl, or 
 make any such extravagant misuse of the power (q) . 
 
 iii. Similarly, it will not allow the felling of timber Felling 
 planted or left standing for the shelter or ornament of a o"iamental 
 mansion house or grounds (r), even if planted by the 
 tenant himself (s) . In applying this restriction equity 
 will not criticise the designs of the settlor ; his taste as well 
 as his will binds his successors (t). The principle extends 
 also to ornaments of outhouses and grounds, plantations, 
 vistas, avenues, and to all the rides for ten miles round (t) : 
 but not necessarily so as to prevent the cutting for repairs 
 of woods through which such rides pass (m) . 
 
 iv. The Court will prevent the cutting of saplings not Cutting 
 proper to be felled (x), and of underwood before it is of ''^P™^^- 
 sufficient growth (y), but not the felling of timber merely 
 because it is not full grown or proper for building (z). 
 
 v. Analogous to the wanton destruction of timber is the Improvident 
 improvident or destructive working of mines, from which 
 a tenant for life may be restrained, though not impeach- 
 able for waste. 
 
 vi. It is now settled that the Court will not usually Permissiye 
 interfere to prevent or remedy permissive waste, that is to 
 say, waste occasioned not by act, but by omission, as by 
 suffering houses to fall into decay for want of repairs (a); 
 but an account was directed where there was an express 
 covenant to repair (6). And the principle does not apply 
 
 (q) Talbot v. Hope-Scoit, 4 K. {z) Aston v. A., 1 Ves. sr. 265. 
 
 & J. 96; Abrahal v. Bubb, 2 («) Powys v. Blagrave, Kav, 
 
 Freem. 54. 495; 4 De G. M. & G. 448; Re 
 
 (r) Rolt V. Somervillc, 2 Eq. Hofchki/s, Freke v. Calmady, 32 
 
 C'a. Ab. 759. Ch. D.'408; 55 L. J. Ch. 546: 
 
 (s) Coffi,) V. C, Jac. 71. Avis v. Newrruin, 41 Ch. D. 532: 
 
 (t) M. of Downshire \. Sandys, 58 L. J. Ch. 590; Tomlinson v. 
 
 6 Ves. 110; Weld-Blundell v. Atidrew, (1898) 1 Ch. 232; 67 
 
 Wolseley, (1903) 2 Ch. 664; 73 L. J. Ch. 97; Dlmond v. Ne/r- 
 
 L. J. Ch. 45. burn, (1898) 1 Ch. 28; 67 L. J. 
 
 (u) M.of Bownshire V. Sandys, Ch. 14. 
 
 S7(p. ' (b) Marsh v. Wells, 2 S. & S. 
 
 (x) O'Brien v. O'B., Amb. 107. 87; see Tucker v. Linger, 21 Ch. 
 
 (y) Brydges v. Steven.^. 6 D. 18. 
 Madd. 279. 
 
 waste.
 
 760 
 
 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 Tenant in 
 tail after 
 possibility of 
 issue extinct. 
 
 Tenant in 
 tail not 
 accountable 
 generally. 
 
 Mortgagee in 
 possession. 
 
 in the case of a tenant for life of leaseholds, who is bound 
 by the covenants in the lease (c). 
 
 An interference with property is techniealh' " waste," 
 although its effect may be to improve the property. To 
 such the term "ameliorating waste" has been applied; 
 and the exercise of the remedy of injunction being dis- 
 cretionary, the Court has refused to interfere in cases of 
 this kind (d) . 
 
 (b.) By and against whom waste may be charged. 
 
 The next inquiry is as to those cases in w^hich the juris- 
 diction of equity arises from the position of the j^arties 
 concerned being such as to leave no remedy at law^ 
 
 i. A tenant in tail after possibility of issue extinct, 
 although unimpeachable of waste at law, is within the 
 principle of equitable waste, and will be restrained in 
 equity from committing malicious and extravagant waste, 
 such as pulling down houses, and the other acts above 
 mentioned (e). But equity will not, any more than law, 
 interfere with an ordinary tenant in tail, who may at his 
 unrestrained pleasure commit any degree of waste, and 
 this notwithstanding that he is restrained by statute from 
 barring his issue or those in remainder, with reversion to 
 the Crown (/). 
 
 ii. A mortgagee in fee in possession may at present be 
 restrained from committing M'aste, as by cutting timber, 
 unless the security is insufficient, in which case the money 
 arising by sale of the timber or otherwise from the waste 
 must be applied to sink the principal and interest of the 
 debt(gr). 
 
 But as regards mortgages executed after Dec. 31st, 
 1881, it has now been enacted that a mortgagee in posses- 
 
 (c) Betty V. Att.-Gen., (1899) 
 1 Ch. 821; 68 L. J. Ch. 435; 
 Cooper V. Gjers, (1899) 2 Ch. 54; 
 68 L. J. Ch. 442. 
 
 {d) Boherty v. Allman, 3 App. 
 C. 709; Meux v. Cobley, (1892) 2 
 
 Ch. 253; 61 L. J. Ch. 449. 
 
 (e) Att.-Gen. v. D. of Marl- 
 borough, 3 Madd. 538. 
 
 (/)'76«<f., 498, 536, 539. 
 
 (^) Farrant v. Lovel, 3 Atk. 
 723.
 
 WASTE. "61 
 
 sion shall have power to cut and sell timber and other 
 trees ripe for cutting, and not planted or left standing for 
 shelter or ornament, or to contract for any such cutting 
 and sale, unless a contrary intention is expressed in the 
 mortgage deed(^). 
 
 On the other hand, a mortgagor in possession Avill be Mortgagor, 
 restrained from waste at the suit of the mortgagee, on his 
 showing that the security would be thereby rendered 
 insufficient or scanty {i) . 
 
 iii. The most important of the cases under this heading Tenant for 
 are those which are illustrated by the leading authority of remainder for 
 Garth v. Cottmi'k). ^f^- 
 
 In its simplest form it is as follows: An estate) is limited 
 to a tenant for life, remainder to another for life, wdth 
 remainder over in fee or in tail. Here the remainderman 
 for life could not sue for waste at law, because he has not 
 the inheritance; and the remainderman in fee or tail could 
 not sue, because the plaintiff at law must recover the place 
 wasted, and that would be an injustice to the remainder 
 for life which is not forfeited. Under such circumstances 
 equity has a very ancient jurisdiction to grant an injunc- 
 tion (l), either at the suit of the owner of the inheritance, 
 or of the mesne remainderman for life (m) . 
 
 As to executory devises, after some doubts (n) it seems Devisee 
 to be settled that a devisee in fee, with an executory e°ecuto^v 
 devise over on his death without leaving issue, may be devise over, 
 restrained from equitable, but not from legal waste (o), 
 though a testator could make such a tenant impeachable 
 for legal waste by express words (p) . 
 
 Where a plaintiff in possession sought an injunction to "Waste by 
 
 (/t) 44 & 45 Vict. c. 41, s. 19; (m) Bayrell v. CJuinipneys, 1 
 
 1 & 2 Geo. V. c. 37, s. 4. Eq. Ca. Ab. 400. 
 
 (i) Humphreys v. Harrison, 1 (w) Robinson v. Litton, 3 Atk. 
 
 J. & W. 581; King v. Smith, 2 309; Stansfieldv. Habergham, 10 
 
 Ha. 239. Ves. 278. 
 
 (k) 1 Ves. sr. 524, 546; 1 Dick. (o) Turner v. Wright, 1 Johns. 
 
 183; 2 W. & T. L. C. 970, ed. 7. 740; 2 De G. F. & J. 234. 
 
 (I) Tracy v. T., 1 Vern. 23. {p) Blake v. Peters, 1 De G. 
 
 J. & S. 345.
 
 '62 
 
 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 person under 
 adverse title. 
 
 Waste Ly 
 
 tenants 
 
 in common. 
 
 Under-lessee. 
 
 restrain waste by a person claiming under an adverse title, 
 the tendency of the Court was to grant the relief prayed, 
 at least when the acts complained of did or might tend to 
 the destruction of the estate {q)\ and now, by Judicature 
 Act, 1873, s. 25, sub-s. 8, such an injunction is expressly 
 placed within the discretion of the Court. 
 
 Though tenants in common will not in general be 
 restrained from committing either ordinary or equitable 
 waste, equity will interfere between them to prevent 
 malicious or destructive waste — as, for instance, cutting 
 saplings and timber trees or underwood at unseasonable 
 times (r). And under special circumstances ordinary- 
 waste has been restrained — for instance, where the parties 
 interested were only equitable tenants in common, and 
 the one who was committing the waste not only was not 
 entitled to the possession, but was also insolvent, and un- 
 able to pay to his co-tenants their shares of the produce of 
 the waste (s) . After a decree has been made in a partition 
 suit between such tenants, the Court has jurisdiction to 
 restrain waste {t). 
 
 A ground landlord may have an injunction to stay 
 waste against an under-lessee, where the original lessee, 
 by collusion or neglect, does not seek to restrain it {u). 
 
 Superioritj of 
 
 equitable 
 
 remedies. 
 
 (c.) Equitable remedies. 
 
 (1.) The jurisdiction of equity in matters of waste is 
 not less due to the superior remedial processes which it 
 commands, than to the broader principles which it applies. 
 At common law, previous to the addition to its power 
 effected by 17 & 18 Vict. c. 125, there existed no power 
 to interfere with the commission of waste generally. The 
 
 (§') Lowmles v. Bettle, 10 Jur. 
 N. S. 226; 12 W. R. 399. 
 
 (r) Hole V. Thomas, 7 Ves. 
 589; Clegg v. C, 3 Giff. 322, 336. 
 
 (s) Smcdhuan v. Oi/lo/if, 3 Bro. 
 C. C. 621. 
 
 (0 Wright V. AtTcyns, 1 V. & 
 B. 313. See Bailey v. Hobson, 5 
 Ch. 180. 
 
 («<) F a )■>•(( u I V. Lnvel, 3 Atk. 
 723.
 
 WASTE. 763 
 
 injured party could at most recover damages to indemnify 
 himself after the wrong' had been done. On the contrary, 
 equity could always be appealed to where a single act of 
 waste could be established, to interfere by injunction to 
 restrain the offending party from any further acts of like 
 nature; and this whether the waste complained of were 
 legal or equitable (a?) . Again, while common law was 
 hampered in its estimation of damages by the want of 
 the machinery requisite for examining lengthy matters of 
 account, which are the usual concomitants of such suits as 
 those arising from wrongful waste, equity could readily 
 undertake such inquiries, and conduct them to a certain 
 issue. 
 
 (2.) It was f ormerlj' a much disputed question, whetlier Account, 
 there was any jurisdiction in equity to decree an account incident only 
 where no case lay for an injunction; the objection being to injunction. 
 that after the waste had been committed the dispute 
 between the parties was only one of pecuniary loss, the 
 complete and proper remedy for which was by action at 
 law. This reasoning was successful in Je.SM.s College y. 
 Bloom (y), and Smith v. Cooke {z), where the jurisdiction 
 to decree an account was considered to arise as an incident 
 of the power to restrain by injunction, and to have no 
 existence where, there being no possibility of a repetition 
 of the offence, an injunction could not be required. But 
 in Parrot v. Palmer (a), the conclusion was reached, which, 
 with the exceptions to be presently referred to, may be 
 accepted as expressing the true principles, viz., that where 
 there was a remedy at law for waste, an account would not 
 be decreed except as incident to an injunction; but that 
 where there was only a remedy in equity, as would alwaj^s 
 be the case where equitable waste Avas charged, an account 
 would be granted, although there was no injunction. The 
 importance of the distinction has evidently disappeared 
 
 (x) Coffin V. C, 6 Madd. 17. (z) 3 Atk. 381. 
 
 (y) 3 Atk. 262; Amb. 54. («) 3 My. & K. 632.
 
 '64 
 
 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 since the fusion of legal and equitable remedies by the 
 Judicature Acts. 
 
 Origin and 
 nature of the 
 jurisdiction. 
 
 Naked 
 trespass not 
 restrained. 
 
 Erection 
 of buildini 
 
 2. Injunctions against trespass. 
 
 In many respects analogous to the jurisdiction to 
 restrain waste is that which enables Courts of equity to 
 grant the protection of injunction in certain cases of 
 trespass. 
 
 The principles of the jurisdiction are precisely those 
 which govern the whole class of injunctions in aid of legal 
 rights. The Court requires to be assured of the existence 
 of the legal right, that a breach of the right is immi- 
 nent (6), and that irreparable or at lea.st serious damage 
 is likely to result (c) . 
 
 The jurisdiction to grant relief in cases of mere trespass, 
 aiS distinguished from waste (in which there is privity of 
 title between the parties), seems to have been first asserted 
 in Flamang's Case {d), where the plaintiff was in posses- 
 sion of a close, and the defendant was working into his 
 minerals and taking away the very substance of his estate. 
 It has since been repeatedly asserted in cases falling 
 within the above-mentioned conditions (e). 
 
 A mere ordinary naked trespass will not be restrained 
 by injunction (/). Thus the Court has refused to restrain 
 a person from vexatiously distraining on the tenants of the 
 plaintiff (g) . But an act not of itself amounting to serious 
 damage may by continuance or repetition be held to come 
 within the remedy of injunction (/?-). 
 
 If the alleged trespass consists in the erection of works 
 
 (b) Stannard v. Vestry of St. 
 Giles, 20 Ch. D. 190; 51 L. J. 
 Ch. 629. 
 
 (c) Supra, pp. 752, 753; Cooper 
 V. Crabtree, 20 Ch. D. 589; 51 
 L. J. Ch. 544. 
 
 (d) Cited 6 Ves. 147; 7 Ves. 
 308. 
 
 (e) Mitchell v. Dors, 6 Ves. 
 147; Hanson v. Gardiner, 7 ibid. 
 
 305; Gnskin v. Balls, 13 Ch. D. 
 324. 
 
 (/) Mogg V. M., 2 Dick. 670; 
 Behrens v. RicJutrds, (1905) 2 
 Ch. 614; 74 L. J. Ch. 615. 
 
 (r/) Best V. Brake, 11 Ha. 369; 
 Aldis V. Fraser, 15 Beav. 220. 
 
 (h) L. # N. W. R. V. L. ^ 
 Y. R., 4 Eq. 178; Allen v. 
 Martin, 20 Eq. 465.
 
 TRESPASS. 765 
 
 or buildingis on the plaintiff's land, an injunction may be when 
 had as long as they are in an incomplete state (^) ; but if 
 they have been completed the plaintiff will generally be 
 left to his remedy by damages (k) . This rule has, how- 
 ever, been departed from and an injunction granted where 
 the conduct of the defendant has been fraudulent, vexa- 
 tious, or oppressive, or where the trespass has been of an 
 exceptionally serious nature (T). 
 
 The remedy of injunction in cases of trespass is more Trespass by 
 readily granted against public companies or corporations companies 
 having compulsory statutory powers than against private 
 persons; and generally the plaintiff is not required to 
 show destructive or irreparable damage. An equitj' is 
 raised on the plaintiff's behalf by the fact of the power 
 and resources commonly enjoyed by such public bodies, 
 the Court being always disposed to keep them strictly 
 within the terms of the authority conferred upon them (m). 
 In these cases the inclination to grant the special relief of 
 equity is so strong, that it will only be refused in cases 
 where the damage is so slight as to be almost inappreciable, 
 or where the ordinary legal remedy is evidently adequate 
 and sufficient (?2). Where the dispute is between two 
 incorporated companies, the same principles apply as in 
 ordinary cases (o). 
 
 In cases of trespass, as in those respecting nuisances, if Trespasses 
 the act oomplained of affects the public interest, the pu^Uc'^^ 
 proper remedy is by information at the suit of the interest. 
 Attorney-General (p) ; and in this case evidence of actual 
 damage is not required (g). But if, in addition to the 
 
 («') Farrow v. Vansittart, 1 («) Turner \. Blamire,! Drew. 
 
 Ra. Ca. 602; Goodsonv. Richard- 409; River Bun, ^c. Co. v. A\ 
 
 son, 9 Ch. 221. M. R. Co., 1 Ra. Ca. 121. 
 
 (Jc) Beere v. Gust, 1 My. & C. (o) M. 8. i- L. R. Co. v. G. 
 
 516. N. R. Co., 9 Ha. 284. 
 
 (J) Poivell V. Aiken, 4 K. & J. (p) Att.-Gen. v. Cleaver, IH 
 
 343; Boivser v. Maclean, 2 De G. Vea. 217; Att.-Gen. v. Forbes, 2 
 
 F. & J. 415. My. & C. 133. 
 
 (m) Kerr, Inj., p. 120; Kemp (q) Att.-Gen. v. Shrewsbury , 
 
 V. L. # B. R. Co., 1 Ea. Ca. 495. ^c Co., 21 Ch. D. 752.
 
 766 
 
 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 Plaintiff must 
 be prompt. 
 
 Account. 
 
 interference with a public right, special damage is done to 
 a private person, he has a right to sue (r); so that in such 
 a ease there msij be both an information and an action (s). 
 
 A plaintiff seeking the interference of the Court to 
 restrain a trespass must be prompt in making his applica- 
 tion . Eelief will be refused if he has stood by and allowed 
 another to spend money on his property upon the faith 
 that no objection will be made(t). 
 
 In cases of trespass, as in others, the remedy of account 
 is often incident to that of injunction. This is especially 
 the case in mining suits. The rule in these is that if the 
 plaintiff knew, or with reasonable diligence might have 
 known, of the wrongf id taking, the account will be limited 
 to six years (u). But in the absence of such knowledge or 
 negligence, or if the defendant has acted wittingly, and a 
 fortiori if he has been guilty of concealment or fraud, the 
 account is not so limited (x) ; and the trespasser may be 
 charged the full value of the minerals taken, without 
 damao'es'^* ^^ allowance for the expense of severing them (y). Moreover, 
 an inquiry is often directed with a view to allowing the 
 plaintiff compensation for any damage which may have 
 been done (z). 
 
 Nuisance 
 defined. 
 
 3. Injunctions against nuisances. 
 
 A nuisance, a,s distinguished from a trespass, is an act 
 which causes substantial injury to the corporeal or incor- 
 poreal hereditaments of other persons unaccompanied by 
 any invasion of the property itself (a). 
 
 (r) Sample v. L. ^- B. R. Co., 
 9 Sim. 209. 
 
 (s) Att.-Gen. v. Sheffield Gas 
 Co., 3 De G. M. & G. 304; Att.- 
 Gen. V. IJ. K. Telegraph Co., 30 
 Beav. 287. 
 
 (^) Gordon v. Cheltenham B. 
 Co., 5 Beav. 229; Marker v. M., 
 9 Ha. 16. 
 
 («) Dean v. Thivaite, 21 Beav. 
 623; Dawes v. Bagnall, 23 W. R. 
 
 690. 
 
 {x) Eccl. Commis. v. N. E. R. 
 Co., 4 Ch. D. 845. 
 
 (y) Philip-ps V. Homiray, 6 
 Ch. 770; Llynvi Co. v. Brogden, 
 11 Eq. 188; Whitwam v. iVest- 
 minster, c^-c. Co., (1896) 2 Ch. 
 538; 65 L. J. Ch. 741. 
 
 (z) Hunt V. PeaJce, Johns. 705 ; 
 Jegon v. Vivian, 6 Ch. 742. 
 
 (rt) Kerr, Inj., 165.
 
 NUISANCES. 767 
 
 111 considering the now well established jurisdiction Public and 
 
 „ • • • ■, • • j_i n J 1 private 
 
 oi equity to restrain nui^sances, it is m the tirst place nuisances 
 
 most material to distinguish between private and public distinguished. 
 nuisances. A private nuisance is one which affects the 
 comfort or enjoyment of only one individual, or at most 
 a limited class of individuals. A public nuisance is one 
 which similarl3' affects all persons who oome within the 
 sphere of its operation. The importance of the distinction 
 lies in the fact that in the case of a private nuisance the 
 injured person has a personal right to a civil action for its 
 redress, though it is not in every case that he will be 
 entitled to the special remedy of injunction: the circum- 
 stances which warrant this will be presentlj^ considered. 
 The proper remedy for a public nuisance, on the other 
 hand, is an information at the suit of the Attorney- 
 General (b). 
 
 If the act complained of is of such a nature as to inter- Nuisance both 
 fere with the comfort or enjoyment of all within its reach, ^^^ private. 
 and at the same time to cause a special and distinct injury 
 to a limited cla.ss of persons, it is both a public and private 
 nuisance, and the person causing it is obnoxious to both 
 remedies. The person or persons suffering the special 
 damage may bring an action; and at the same time the 
 Attorney-General may proceed on behalf of the public (c) 
 and may obtain an injunction (d). But in order to justify 
 the private action, the injury done to the plaintiff must be 
 of a different character from that which he suffers in 
 common with the public; or at least must be such that 
 the plaintiff suffers special damage peculiar to himself 
 from the interference with the public right (e). It does 
 not suffice that from his mere proximity to the nuisance 
 he happens to suffer more inconvenience than others (/) . 
 
 (b) See Solfau v. Be Held, 2 275. 
 
 Sim. N. S. 142. (e) Boyce v. Padding ton 
 
 (c) Att.-Gen. v. U. K. Tele- Council, (1903) 1 Ch. 109; 72 
 (jra'ph Co., 30 Beav. 287. L. J. Ch. 78. 
 
 (rf) Att.-Gen. v. Tod-JIeatley, (/) Ware v. Regent's Canal 
 
 (1897) 1 Ch. 560; 66 L. J. Ch. Co., 3 De G. & J. 212; Totten-
 
 General 
 princii^le.s 
 
 768 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 Nuisance or It would lead US too far afield here to enter upon ^n 
 
 for jury. investigation of the extensive subject as to vv^hat consti- 
 
 tutes a public or private nuisance. Such an inquiry is 
 more appropriate to a treatise on common law. The 
 question of nuisance or no nuisance is eminently one of 
 fact for a jury, and though, by virtue of 25 & 26 Vict. 
 c. 42 {g), or under the more recent provisions of the Judi- 
 cature Acts, it may be tried in the Chancery Division, it 
 involves no distinctly equitable principles. Our concern 
 is merely with those special circumstances which call for 
 the peculiar remedy of injunction. 
 
 Nor is it necessary here to repeat at length those general 
 conditions, already stated, which are always required by 
 Courts of equity before they will grant this assistance in 
 aid of a legal right. In these as in other cases the plaintiff 
 must show that the legal remedy of damages would not 
 afford an adequate compensation; and this generalh' 
 requires proof that the injury will be permanent, or con- 
 stantly^ recurring, or irreparable {h). As in cases of tres- 
 pass, so here, a mere threatened injury will not generally 
 suffice to call forth the interference of the Court. But if 
 a man insists upon his right to do the act complained of,, 
 that is a sufficient ground to justify an injunction, even 
 though no nuisance has been actually committed {i) ; and 
 there are other cases in which the Court has so interfered 
 before the nuisance has been committed, on clear proof 
 that the act sought to be restrained would inevitably result 
 in injury (fc). 
 
 ham District Council v. Wil- Clifden, (1897) 1 Ch. 694; 66 
 
 liamson, (1896) 2 Q. B. 353; 65 L. J. Ch. 398. 
 
 L. J. Q. B. 591. (i) Elliott v. N. E. R. Co., 1 
 
 (.9) Eolt's Act. J. & H. 156; 2 De G. F. & J. 
 
 (A) Fishmongers' Co. v. East 423; 10 H. L. 333; Pennington 
 
 India Co., 1 Dick. 163; Wyn- \. Brin.so'p, ^-c. Co., b Ch..Ti.^1(,9. 
 
 Stanley v. Lee, 2 Swanst. 335; {k') Haines v. Taylor, 2 Ph. 
 
 Robinson v. Kilvert, 41 Ch. D. 209; Drayson v. P«t'er, 5 Ha. 430. 
 
 88; 58 L. J. Ch. 342; Wood- Cf. Att.-Gen. v. Manchestcv 
 
 home V. Walker, 5 Q. B. D. 404; Corp., (1893) 2 Ch. 87; 62 L. J. 
 
 49 L. J. Q. B. 609; Jenl^-s v. Ch. 459.
 
 NUISANCES. 
 
 769 
 
 It now only remains to illustrate the application of the 
 remedy from the cases most usually occurring in practice. 
 
 CI.) One larffe class of cases to which the remedy of Nuisances 
 
 • • f»i -i-iT- afifecting 
 
 injunction is appropriate consists oi those in which the houses, 
 right for which protection is sought concerns the enjoy- 
 ment of dwelling-houses or places of manufacture or 
 business. 
 
 With respect to such cases generallj^ it must be observed Generally, 
 that there exists no hard and fast line by which to deter- 
 mine whether or not an act amounts to a nuisance. This 
 depends upon the circumstances of the case; for instance, 
 the purpose for which the house is used, and the character 
 of the neighbourhood. An act may amount to an action- 
 able injury to a dwelling-house which would not be so with 
 respect to a manufactory; and an act may be deemed 
 a nuisance in a sanatorium which would not be so in the 
 vicinity of wharves (l). Moreover, the question will not 
 be determined by the standard of persons of elegant and 
 dainty habits, but by the simple notions of those in 
 ordinary life (m). Where a case of irreparable injury to 
 health or trade is established, an injunction will be 
 granted. Of course, there is a marked distinction between 
 cases which rest on the allegation of nuisance and those 
 which are based on breach of covenant or other contract. 
 The remedy might well be granted in the latter case, when 
 it would have been refused in the former (tz). 
 
 A multitude of cases falling within this class concern Ancient 
 the right to light and air. A right to the free passage of ^ ^' 
 light and air may be acquired by grant, express or im- 
 
 (l) Jackson v. J), of Neiocastle, v. Kilvert, 41 Ch. D. 88; Adams 
 
 3 De G. J. & S. 284; Kelk v. v. Vrsell, (1913) 1 Ch. 269; 82 
 
 Pearson, 6 Ch. 811. L. J. Ch. 157. 
 
 (»?) Walter v. Selfe, 4 De G. (w) Cf. Christie v. Davey, 
 
 & S. 322; Cooper v. Crabtree,2i) sup.; and Wanton v. Coppard, 
 
 Ch. D. 589; 51 L. J. Ch. 544; (1899) 1 Ch. 92; 68 L. J. Ch. 
 
 Christie v. Davey, (1893) 1 Ch. 8; Tod-Heatley v. Benham, 40 
 
 .^16; 62 L. J. Ch. 339; Robinson Ch. D. 80; 58 L. J. Ch. 83. 
 
 s. 49
 
 770 
 
 INJUNCTIONS RESTRAINING LEGAL W HONGS. 
 
 General rule 
 as to distance. 
 
 plied (o), or by agreement (p), or by cnjoyiuenl for such 
 time and under such circumstances as will salisfy the 
 Prescription Act (g) ; and when so acquired a substantial 
 interference therewith is actionable. But in order to be 
 so it must be sufficient in degree to constitute a real injury, 
 and not mere inconvenience to the plaintiff, a question of 
 difficulty which of course no general expressions can 
 decide (r); and practically speaking, when the injury is 
 sufficient to w^arrant an action at law, an injunction may 
 be obtained in equity (s), except in cases in which the- 
 remedy of damages would be clearly sufficient. 
 
 The Court will not usually restrain the erection of a 
 building the height of which above the ancient light is 
 not greater than the distance between the building and 
 the light (^). The fact of the building being at such a 
 distance was formerly regarded as prima facie, but not 
 conclusive, evidence that it would not cause a sufficient 
 interference with the light to warrant an injunction. In 
 such cases the Court would only restrain the building on 
 special evidence of injury (u). But it has recently been 
 questioned whether any force is to be attributed to this 
 rule (x) . 
 
 (o) See Birm'mgJutm, <fc. Co. 
 V. Ross, 38 Ch. D. 295; 57 L. J. 
 Ch. 601; Myers v. Catterson, 43 
 Ch. D. 470; 59 L. J. Ch. 315; 
 Broomfield v. Williams, (1897) 
 1 Ch. 602; 66 L. J. Ch. 305; 
 Pollard V. Gare, (1901) 1 Ch. 
 834; 70 L. J. Ch. 404; and Conv. 
 Act, 1881 (44 & 45 Vict. c. 41), 
 s. 6 (2). 
 
 (i») Wilson V. Queen's Club, 
 (1891) 3 Ch. 522; 60 L. J. Ch. 
 698. 
 
 (y) 2 &3 Will. IV. c. 71. See 
 Russell V. Watts, 10 App. C. 90; 
 Hymnn v. Van Ben Burgh, 
 (1908) 1 Ch. 167. 
 
 (r) Back v. Stacey, 2 Car. & P. 
 465; Lazarus v. Artistic Photo- 
 graphic Co., (1897) 2 Ch. 214; 
 66 L. J. Ch. 522; Warren v. 
 Brown. (1900) 2 Q. B. 698; 69 
 
 L. J. Q. B. 842; (1902) 1 K. B. 
 15; Ankerson \. Connelly, (1907) 
 
 1 Ch. 678. 
 
 (s) Leech v. Schweder, 9 Ch.. 
 476; Greenivood v. Hornsey, 33 
 Ch. D. 471; Jordeson v. Sutton, 
 ^c. Gas Co., (1899) 2 Ch. 217; 
 67 L. J. Ch. 666; Jolly v. Kine, 
 (1907) A. C. 1; Higgins v. Belts, 
 (1905) 2 Ch. 210; 74 L. J. Ch. 
 621. As to the measure of 
 damages, reference may be made 
 to Griffith V. Clay (?• Rons, (1912) 
 
 2 Ch. 291; 81 L. J. Ch. 809. 
 (0 Beadel v. Perry, 3 Eq. 466. 
 (m) Citif of London Brewery 
 
 Co. V. Teniumt, 9 Ch. 212"; 
 Parker v. First Avenue Hotel 
 Co., 24 Ch. D. 282. 
 
 (.r) name and Colonial Stores 
 V. Colls, (1902) 1 Ch. 302; on 
 appeal, Colls v. Home and
 
 NUISANCES. 771 
 
 There is no easement in English law corresponding to No right to 
 tho servitude ne prospectui officiatur in Roman law . How- 
 ever much the obstruction of a view may interfere with 
 the enjoyment or depreciate the value of property, it 
 affords no ground for an action (y), unless, indeed, its 
 erection is on other gi'ounds unlawful (2:) . A fortioH, 
 the mere unsightliness of a building {a), or the fact that 
 it overlooks grounds previously private, gives no title to 
 legal or equitable relief (6). And though the easement Right to air. 
 above referred to is commonly described as a right to light 
 and air, cases in which an obstruction to the free 
 passage of air has been made the basis of an action, 
 or has been seriously considered in the estimation of 
 damages, are rare. It has been said that it is only in 
 very special cases, involving danger to health, or at least 
 something very nearly approaching to it, that the Court 
 would be justified in interfering on the ground of dimi- 
 nution of air (c) . The right seems limited to access of 
 air through a definite channel or aperture {d). 
 
 The right to purity of air is an easement of quite a Pollution 
 different kind, independent of grant or prescription; and 
 anj^ considerable pollution thereof is a nuisance which 
 may be restrained (e). It depends g-reatly on the locality 
 ■s\'hat degree of interference will be sufficient to ground an 
 action. In any case there must be a sensible and real 
 damao^e inflicted. A rio-ht to carrv on an offensive trade 
 
 Colonud Stores, (1904) A. C. (c) Per Lord S©Iborne, 9 Ch. 
 
 179; Andrews v. JF«rte, (1907) 2 221; and see Radcliffe v. D. of 
 
 Ch. 500; Davis v. Marrable, Portland, 3 GifE. 702. 
 
 (1913) 2 Ch. 421; 82 L. J. Ch. ^^^ ^^^.^ ^ ^^^^^^ ^ fjo., 
 
 / s ,,^ :,> n n r> =o (1894) 2 Ch. 437; 63 L. J. Ch. 
 
 (y) Aldreds Case, 9 Co. 58 a; ^^^ ^^,f^ ^_ Ackland, (1895) 
 
 Potts V. Smith, 6 Eq. 315. ^ ^ ^55 ^ L. J. Q. B. 523; 
 
 (2:) See Campbell y. P^f^ng- ^^^ ^ ^^,^^^ ^_ -^ ^^gOg^ 1 
 
 ton Borough uouncit, (1911) 1 /-,i neg 
 K. B. 869;' 80 L. J. K. B. 739. 
 
 (o) Att.-Gen. v. Doughty, 2 (e) Aldred's Ca., 9 Co. 58a; 
 
 Ves. jr. 453. ^t- Helens Smelting Co. v. Tip- 
 
 (b) Jones V. TapUng, 12 C. B. ping, 11 H. L. 642; Sellors v. 
 
 N. S. 842. Matlock Bath, 14 Q. B. D. 928. 
 
 49 (2)
 
 772 
 
 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 may be acquired by prescription, but no length of time 
 can legalise a public nuisance (/) . 
 
 Noisep, If, again, real damage or great inconvenience is occa- 
 
 sioned by the carrying on of a noisy trade or otherwise 
 causing excessive noise or vibration, an action may be 
 brought and an injunction obtained to restrain its continu- 
 ance. Here, again, the decision depends greatly on the 
 locality; and each case must be decided on its own cir- 
 cumstances {g). It has been held that the acts of two or 
 more persons taken together may constitute a nuisance 
 which will be restrained, though the separate acts of the 
 contributing parties might be so inappreciable as not to 
 warrant interference {Ji) . 
 
 (2.) Another extensive and important class of cases rests 
 on the right of a landowner to the lateral support of his 
 land in its natural state. This right is a co^mmon law 
 right altogether independent of prescription. He may 
 therefore restrain his neighbour from so digging into the 
 adjacent soil as to cause a subsidence of the surface of his 
 land. No action lies until damage has actually been done; 
 but when this has happened, it is no defence to show that 
 the works causing the damage have been carried on with 
 care and skill (^) , 
 
 of buildings. But the right to the support of a building by the ad- 
 jacent soil of an adjacent owner is of a different nature. 
 This is not a natural right of property ; it is an easement 
 which can only be acquired by prescription from the time 
 of legal memory, or by grant express or implied (fc) . It 
 
 Rights to 
 lateral 
 support 
 of land ; 
 
 (/) Weld V. Hornby, 7 East, 
 199. 
 
 {g") See Gaunt v. Finney, 8 
 Ch. 8; Ball v. Ray, ibid. 467; 
 Beinlmrdt v. Mentasti, 42 Ch. D. 
 685; 58 L. J. Ch. 787; Christie. 
 V. Bavey, (1893) 1 Ch. 316; 62 
 L. J. Ch. 339; Polsiie v. Riish- 
 mer, X1906) 1 Ch. 234; 75 L. J. 
 Ch. 79; (1907) A. C. 121. 
 
 (A) Lambton v. MelNs/i, (1894) 
 3 Ch. 163; 63 L. J. Ch. 929. 
 
 (i) Hunt V. Peake, John. 710; 
 Trinidad Asphalte Co. v. Ambard, 
 (1899) A. C. 594; 68 L. J. P. C. 
 114; and see Jordeson v. Sutton, 
 .S-c. Gas Co., (1899) 2 Ch. 217; 
 68 L. J. Ch. 457; Butterley Co. 
 V. New Hucknall Colliery Co., 
 :(1909) 1 Ch. 37; 78 L. J. Ch. 63. 
 
 (k) Tone v. Preston, 24 Ch. D. 
 739; 53 L. J. Ch. 50; Rigby v. 
 Bennett, 21 Ch. D. 559.
 
 NUISANCES. 773 
 
 may, moreover, be acquired by the circumstance that the 
 building has stood for twenty years, if during that period 
 the owner of the adjacent soil knew, or might have known, 
 that the building was thereby supported and was capable 
 of making a grant; and after twenty years' enjoyment in 
 point of fact the claim to the right will not be defeated 
 by proof that no grant of the easement was ever made (I). 
 
 (3.) Another large class of nuisances which often pro- Rights^ 
 vokes equitable interference, relates to rights respecting ^ater 
 water. All acts done by a man on his own land, whereby 
 the rights of his neighbour respecting water are injuriously 
 affected, or whereby water becomes a cause of damage to 
 the land of his neighbour, are considered as nuisances 
 relating to water (m) . 
 
 We cannot digress into a particular account of the 
 various rights to water. They in.a.j be conveniently 
 classified as rights respecting quantity, and rights respect- 
 ing quality. 
 
 A riparian proprietor has a right to the use of the as to 
 water which flows by his land, and this right is incident ^'^^ ^^'^ 
 to the ownership of the adjacent soil; but he is not 
 entitled to abstract water from a natural stream for pur- 
 poses foreign to or unconnected with his tenement (w) . 
 The right being enjoj'ed by the successive proprietors 
 along the bank, none may so interfere with the water as to 
 prejudice those above or below^ him, unless, of course, he 
 has some special title to exclusive enjoyment. He may, 
 therefore, be restrained from diverting the stream, or 
 materially diminishingthe quantity which would naturally 
 flow to his neighbours below (o); or, on the other hand, 
 
 (l) Angus v. Dalton, 4 Q. B. (m) Kerr, Inj., p. 224; Bal- 
 D. 162; 6 App. C. 740; 50 L. J. Inrd v. Tomlinson, 29 Ch. D. 115 j 
 Q. B. 689; Lenmitre v. Bains, 24 54 L. J. Ch. 454. 
 Ch. D. 287; 51 L. J. Ch. 173; {n) McCartney v. Londonderry^ 
 and see Union Lighterage Co. v. ifc. Raihvay, (1904) A. C. 301; 
 Lond. Graving Bock Co., (1902) 73 L. J. P. C. 73. 
 2 Ch. 557; 71 L. J, Ch. 791; (o) Ferrandv. Corp. of Brad- 
 Ray V. Hazeldine, (1904) 2 Ch. ford, 21 Beav. 412. See alea 
 17; 73 L. J. Ch. 537. Bradford Corp. v. Pickles, (1895)
 
 T74 
 
 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 and quality. 
 
 Artificial 
 water- 
 courses. 
 
 Navigable 
 ravers. 
 
 from damniing back the stream so as to cause an overflow 
 on the land of his neighbour above him. 
 
 Secondly, a riparian proprietor has a right to a natural 
 stream in a natural state of puritj^ He may therefore 
 restrain the fouling of the water, and this without even 
 proof of actual injury (p). And it is immaterial that the 
 stream was previously in some degree polluted. The right 
 is as clear to prevent an increase of pollution as to prevent 
 pollution in the first instance (p). 
 
 The rights respecting artificial watercourses must, how- 
 ever, be carefully distinguished from the above. The 
 water in an artificial stream is the property of the person 
 by whom it is created or caused to flow. In the absence 
 of long enjoyment he has no right to discharge it on the 
 land of another; while his neighbour cannot claim the 
 continuance of the flow, notwithstanding that a right to 
 discharge it may have been acquired by the producer (q) . 
 In the case of an old artificial watercourse whose origin is 
 unknown, the presumption is that the channel was origin- 
 ally constructed for the joint use of all the riparian owners, 
 and that they are entitled to use the water for all reason- 
 able purposes (r). 
 
 The public rights in navigable rivers are likewise fre- 
 quently protected by means of the remedy of injunction. 
 These rights may be infringed either by buildings, &c. 
 which interfere with the public right of navigation, or by 
 the fouling of rivers in such a manner as to be injurious to 
 the public health, or destructive of a fishery (s) ; and where 
 
 A. C. 587; 64 L. J. Ch. 759; 
 Bradford Corp. v. Ferrand, 
 (1902) 2 Ch. 655; 71 L. J. Ch. 
 859. 
 
 (/j) Crosslei/ v. Llf/htoicler, 2 
 Ch. 478; Penninqton v. Brinsop, 
 §c. Co., 5 Ch. D'. 772. Compare 
 Ait.-Gen. v. Birmingham, ^c. 
 Drainage Board, (19i2) A. C. 
 788; 82 L. J. Ch. 45; Att.-Gen. 
 V. Lewes Corp., (1911) 2 Ch. 
 495; 81 L. J. Ch. 40; Jones v. 
 Llanrwst Urban Council, (1911) 
 
 1 Ch. 393; 80 L. J. Ch. 145. 
 
 (,7) Kerr, Inj. 235. 
 
 (r) Whitiuores, Lim. v. Stan- 
 ford, (1909) 1 Ch. 427; 78 L. J. 
 Ch. 144; distinguishing Burrows 
 V. Lanq, (1901) 2 Ch. 502; 70 
 L. J. Ch. 607. 
 
 (s) See Att.-Gen. v. Lonsdale, 
 7 Eq. 388; Att.-Gen. v. Terry, 
 9 Ch. 423; Att.-Gen. v. Mayor, 
 (f'C. of King ston-upon-Thames , 34 
 L. J. Ch. 481 ; Bridges v. 
 Ilighton, 11 L. T. N. S. 653.
 
 NUISANCES. 775 
 
 a sufficient case of injury is established the nuisance may 
 be restrained at the suit of the Attorney-General. 
 
 It nuist suffice merely to mention other extensive classes Other 
 ., . 1 • 1 11-1 1 ••111 nuisances, 
 
 oi nuisances which are dealt with on the principles already 
 
 amply expounded; for instance, obstructions of public 
 
 highways and private rights of way, obstructions of the 
 
 seashore and of ferries, markets, commons, &c. 
 
 Before dismissing the subiect of nuisances, it must be Nuisances 
 
 , 11 PI authonsedby 
 
 observed that when a statutory power has been conierred statute. 
 
 to do an act which otherwise might have been actionable, 
 
 the person so protected is not amenable to the process of 
 
 the Court as long as he confines himself strictly to the 
 
 limits of the power conferred upon him. The unlawful 
 
 character of the act is taken away by the sanction of the 
 
 legislature, however injurious it may be (t). Such powers 
 
 when conferred must, however, be strictly complied with. 
 
 Any injurious act which is not covered by their provisions 
 
 brings the offender at once w^ithin the reach of the law (?«). 
 
 But where the legislature has pointed out another mode 
 
 of procedure for the redressing of a wrong, the Court will 
 
 not, unless it be under very special circumstances, grant 
 
 an injunction (ar); and delay in asserting the right 
 
 may induce the Court in its discretion to refuse the 
 
 remedy (y). 
 
 (0 Rex V. Pmse, 4 B. & A. (1897) A. C. Ill; 66 L. J. P. C. 
 
 30; London ^ Brighton Ry. v. \; Cohvell v. St. Pancras Borough 
 
 Truman, 11 App. C. 45; 55 L. Council, (1904) 1 Ch. 707; 73 
 
 J. Ch. 354; National Telephone L. J. Ch. 275. 
 6'o. V. 5«Aw, (1893) 2 Ch. 186; ^^,^^^^ j^^^^^,^^^ ^y^^^^_ 
 
 c \i 7 ^ rr^ ; r"'''r^<.Z\ ^'^°rks v. Hampton, ^c. Council, 
 SouthioarK^c 11 ater Co gm) ^^ggS) 2 Ch. 331; 67 L. J. Ch. 
 2 Ch 409; 60 L. J Ch. 630. ^^^3 'j)^^ , c'orp. v. Tozer, 
 
 K S ^^< rT ^- I T^'^' (1902) 2 Ch. 182; 71 L. J. Ch. 
 
 5 Ch. 591; Clowes v. Stafford- ^ ,. ^ ,f,Q„.. \ ishbourne 
 
 sh,re Potteries C«., 8 Ch. 139; ^^9,^3 ^ ^.j^ ^^1 ; 72 L. J. Ch. 
 
 Metrop. Asylum v. Hill, 6 App. „_ ' ' 
 
 C. 193; 50 L. J. Ch. 353; Eapier ^'• 
 
 V. Land. Tramirnys Co., (1893) 2 (y) Aft. -Gen. v. Grand Juno- 
 
 Ch. 588; 63 L. J. Ch. 36; Ogston tion Canal Co., (1909) 2 Ch. 505; 
 
 V. Aberdeen Trnmivnys Co., 78 L. J. Ch. 681.
 
 770 
 
 INJUNCTIONS REl^TRAINING LEGAL WRONGS. 
 
 Crimes not 
 restrained. 
 
 Libel, when 
 restrained. 
 
 4. Injunctions against libel, &c. 
 
 Abundant illustrations have been given of the applica- 
 tion of the remedy of injunction to restrain the commission 
 of torts. Moreover, it is clear that equity will not inter- 
 fere by injunction to restrain the commission of a crime. 
 But there is a class of offences which partakes both of 
 the nature of a tort and of that of a crime, inasmuch as 
 a breach of the rights to which they refer renders the 
 offender at once liable to a civil action and to criminal 
 proceedings. The most conspicuous illustration of such 
 offences is afforded by cases of libel; and it is necessary 
 to inquire if and when equity will interfere by injunction 
 in such cases. 
 
 A series of recent decisions has shown a disposition to 
 extend the principles which were previously understood to 
 apply to cases of libel. It was formerly considered that 
 the remedy of injunction was only applicable when the 
 libel in question threatened injury to property or trade (z); 
 and it is still true that in such cases this relief is more 
 readilj^ accorded than in others (a) ; though even so it is 
 not ever}' threatened injury to trade which will be 
 restrained (&). But it is now established that in proper 
 circumstances, that is to say, where the remedy in damages 
 would be insufficient, an injunction interlocutory or final 
 may be granted apart from any consideration of damage 
 to trade or property (c). The cases cited, however, show 
 that the jurisdiction is to be carefully exercised and only 
 
 (z) Mtdkern v. Ward, 13 Eq. 
 619 ; Pr-udentml Ass. Co. v. 
 Knott, 10 Ch. 142. 
 
 (a) Thorley's Cnftle Food Co. 
 V. Massam, 14 Ch. D. 763; 
 Quartz Hill, <f-c. Co. v. Beall, 20 
 Ch. D. 501; 51 L. J. Ch. 874; 
 Hill V. Hnrt-Bavies, 21 Ch. D. 
 798; 51 L. J. Ch. 845; Harnrard 
 V. H., 34 Ch. D. 198; 56 L. J. 
 Ch. 287. 
 
 (6) Collard v. Marf<hall, (1892) 
 1 Ch. 571; 61 L. J. Ch. 26«; 
 
 Mellin v. White, (1895) A. C. 
 154; 64 L. J. Ch. 308; Salomans 
 V. Knight, (1891) 2 Ch. 294; 60 
 L. J. Ch. 743. 
 
 (c) Monson v. Ttcssatcd, (1894) 
 1 Q. B. 671; 63 L. J. Q. B. 454; 
 Bonnord v. Pern/man, (1891) 2 
 Ch. 269; 60 L. .J." Ch. 217; Coats 
 V. Chadunch. (1894) 1 Ch. 347; 
 63 L. J. Ch. 328; Pollard v. 
 Photographic (?o., 40 Ch. D. 354; 
 58 L. J. Ch. 251; Corelli v. 
 Wall, 22 L. T. R. 532.
 
 PATENT RIGHTS. 
 
 in special circumstanoes. Even an oral slander, which is 
 detrimental to the business of the plaintiff, may be re- 
 strained by injunction (^). On similar gi'ounds a con- 
 spiracy calculated to injure a person in his trade may be 
 the subject of injunction where irreparable damage is 
 threatened (e); but it is necessary to show that the 
 defendants are committing an illegal act. The fact that 
 the combination may injure other traders is not suffi- 
 cient (/) . On a somewhat similar principle expulsion 
 from a club has been restrained where the circumstances 
 were deemed to be inequitable {g) ; and the Attorney- 
 General may successfully intervene to protect the public 
 from a false representation inimical to its interests (/^). 
 
 777 
 
 II. Ivjvnctions protecting Patent Rights, Copyrighty 
 Trade Marks, and Goodwill. 
 
 It is convenient to class together the rights here men- Grounds 
 tioned, since, though they are in themselves strongly con- jurisdiction, 
 trasted, the jurisdiction of equity respecting them rests on 
 the same foundation, namely, the desirability of prevent- 
 ing a multiplicity of suits and vexatious litigation. 
 
 The rights in themselves are fully recognised at law, Inadequacy 
 and have always sufficed to ground an action at law for at law. 
 damages. But it is evident that such a remedy supplies 
 an exceedingly inadequate protection. Not only might 
 the patentee, or author, or owner of a trade mark be com- 
 pelled to bring innumerable actions, and thus be ruined! 
 by interminable litigation, but in many cases damages, 
 
 (rf) Hermann Looq v. ^ea-;?, 26 Simmons, (1898) 1 Q. B. 181; 67 
 
 Ch. D. 306; 53 L. J. Ch. 1128. L. J. Q. B. 213. 
 
 (e) Walters v. Green, (1899) /■ \ t'- i, r ? /ioni\ 
 
 o r<u cna ao T T f^u -ron \9) Fisher V. Jackson, (1891) 
 
 2 Ch. 696; 68 L. J. Ch. 730; „ ni em u >. a- *■• • u d • j 
 
 ^rr-n- /■i onn\ i r-i - Ch. 691; Dut oistinffuish Baird 
 
 (/) Mogul Steamship Co. v. (A) Att.-Gen. v. Smith, Lint., 
 
 McGregor, (1892) A. C. 25; 61 (1909) 2 Ch. 524; 78 L. J. Ch. 
 L. J. Q. B. 295; Euttley v. 781.
 
 778 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 even if recovered, would al'i'ord an insuflicient redress for 
 the injury sustained . The business or t he reputation might 
 bo imijaired by the interferenee jjending the litigation, in 
 a manner and to an extent which no inquiry could ascer- 
 tain (i) . And further, the facility for taking accounts 
 afforded by equity, and yet more conspicuously its power 
 of peremptorily stopping the infringement of the right by 
 injunction, plainly indicate the appropriateness of the 
 jurisdiction of its Courts for dealing with such matters. 
 It must suffice very briefly to describe the rights them- 
 selves here under review, the particular object being to 
 ascertain under what circumstances an aggrieved party 
 can obtain an injunction against an infringement of them. 
 
 1 . Patent Rights. 
 
 Origin of (1.) The abuse of the royal prerogative of granting 
 
 pa en s. patents for monopolies, and the disputes which arose there- 
 
 from, are well-known matters of English history, and 
 need not be here recapitulated (k). Suffice it to say, that 
 21 Jac. I. the result thereof was the statute 21 Jac. I. c. 3, which 
 abolished the general power of granting monopolies and 
 patents, but by express reservation excepted the power of 
 granting letters patent for the term of fourteen years or 
 under to the inventor of any neio maiiufaciure, provided 
 it were not contrary to law nor mischievous to the 
 State (/). On this statute alone the legality of patent 
 rights as enjoyed by inventors rested for many years. 
 
 It has been followed by various enactments passed from 
 time to time for the amendment of the law, and finally by 
 the Patents and Designs Act, 1907 (m), which repeals the 
 previous Acts, and to which the student must now resort 
 for a full statement of the present law on the subject. 
 
 (0 Hog ff V. Kirbi/, 8 Yes. 223. pealing 46 & 47 Vict. c. 57; 
 
 (k) Sec' Mompesson's Case, 2 48 & 49 Vict. c. 63; 49 & 50 Vict. 
 
 How. St. Tr. 1119. c 37; 51 i: 52 Vict. c. 50; 1 
 
 (0 S. 6. Edw. VII. c. 18; 2 Edw. VII. 
 
 (m) 7 Edw. VII. c. 29, re- c. 34; and 7 Edw. VII. c. 28.
 
 PATENT RIGHTS. 779 
 
 The first question which arises is as to what may be the 
 subject of the rig-ht. 
 
 It is to be observed that the Statute of James uses only "Manufac- 
 the term " manufacture," and neither this nor the succeed- 
 ing statutes have at all enlarged the right as previously 
 existing at common law. The subject-matter of a patent 
 must therefore oome within this term, and must be for a 
 legal purpose. It would he superfluous to trace the course 
 of the decisions hj which these conditions are now in some 
 degree defined: it is sufficient briefly to summarise their 
 results. 
 
 The word " manufacture " has indeed received a liberal Wliat coin- 
 interpretation, and not onH' comprehends anything made, 
 but also the mode, method or process of making; it com- 
 prises, therefore, not only vendible articles, the result of 
 chemical or mechanical processes, but new machines or new 
 combinations of machinery, or an improvement of an old 
 prooess (n) . 
 
 It is, however, particularly to be observed that a bare No patent 
 
 •1 i.T,i.i i^- i. £ ii-xn-i. obtainable for 
 
 principle cannot be the subject oi a patent, r or instance, amere 
 
 no one could have obtained a patent for the mere idea of principle. 
 
 utilising electricity as a motor power (o) . The discovery 
 
 of a principle is not an invention in the sense of patent 
 
 law. The means must be shown of practically applying 
 
 the principle (p) . This distinguishes a principle from 
 
 a process. 
 
 Secondly, the invention must be new. It is not indeed Novelty 
 necessary that the object produced should be of a species 
 unknown before, but the process of making it must be the 
 true and original invention of the person seeking protec- 
 tion; original not only in the sense that he derived it from 
 no one, but in the sense that no one had used it before (q). 
 
 (w) Kerr, Inj. 282; Johnson's T. N. S. 142. 
 
 Pat. Man. 7th ed. 5; Crane v. (^p) Boulton v. Bull, 2 H. Bl. 
 
 Price, 4 Mac. & G. 580; Ralston 463; Consol. Car Heating Co. v. 
 
 T. Smith, 11 H. L. 223. Came, (1903) A. C. 509; 72 L. J. 
 
 (o) Jupe V. Pratt, 1 W. P. C. P. G. 110. 
 
 145; Danger field v. Jones, 13 L. {q) Pennant's Case, Dav. on
 
 rso 
 
 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 UtiUty. 
 
 Procedure. 
 
 What 
 amounts 
 to infringe- 
 ment. 
 
 Previous sale, even by the inventor himself, would avoid 
 the patent (r). Previous user beyond the realm or in the 
 colonies is no objection to a patent (s). 
 
 The present statutes provide under certain conditions 
 that the exhibition of an invention at an industrial or in- 
 ternational exhibition shall not prejudice patent rights {t). 
 Prima facie a patentee is not the first inventor if 
 before the date of the patent an intelligible description 
 of the invention in English or any other well-known 
 language, is shown to have existed in this country (u) ; 
 but the presumption may be rebutted by evidence that th& 
 existence of such a description was not in fact known, or 
 that it could not have been seen by anyone who could 
 understand it (x) . 
 
 Thirdly, it must be useful; but this word is applied 
 with considerable latitude (?/). It is not confined to 
 abstract, or comparative, or competitive or commercial 
 utility (z). 
 
 These are, briefly stated, the conditions which determine 
 what may be the subject of a patent right. But not only 
 must the matter for which protection is sought fall within 
 these conditions; the inventor must also, in order tO' 
 procure patent privilege, closely follow the procedure laid 
 down by the statutes above referred to. 
 
 (2.) A patent is infringed when a man directly or in- 
 directly uses the protected invention, or produces the sam& 
 result by means only colourably different. Similarity in 
 
 Pat. 429; United Telephone Co. 
 V. Harrison, 21 Ch. D. 720; 51 
 L. J. Ch. 705. 
 
 (r) Wood V. Zimmcr, 1 Holt, 
 N. P. C. 58. 
 
 (s) Edqeherry v. Stephens, 2 
 Salk. 447; Rolls v. Isaacs, 19 Ch. 
 D. 268; 51 L. J. Ch. 170. 
 
 (0 7 Edw. VII. c. 29, ss. 45, 
 59. 
 
 (m) Pichard v. Prescott, (1892) 
 A. C 263; Anglo-American 
 
 Brush, S;c. Corp. v. King, (1892)' 
 A. C. 367. 
 
 (a;) Harris v. Rothwell, 35 Ch» 
 D. 416; 56 L. J. Ch. 459; dis- 
 tinguishing Otto V. Steel, 31 Ch. 
 D. 241; 55 L. J. Ch. 196. 
 
 (y) Manton v. Parker, Dav. P. 
 C. 327. See Badische Anilin, ^o. 
 V. Levinstein, 29 Ch. D. 366; 12 
 App. C. 710. 
 
 (z) Welsbnch, 6tc. Co. v. Neur 
 Incandescent, i^c. Co., (1900) 1 
 Ch. 843; 69 L. J. Ch. 343.
 
 PATENT RIGHTS. 781 
 
 principle between two machines will not constitute an 
 infringement if the mode of operation is different, though 
 the same result may be attained {a); nor is there an in- 
 fringement in the application of a patented machine to a 
 different purpose from that for which it was patented (&). 
 It is an infringement to offer patented articles for sale, 
 though no sale takes place (c), or to buy or sell in the way 
 of trade articles made by a machine which is itself an 
 infringement (d). Whether the mere importation of 
 patented articles is an infringement or not depends on 
 where the contract of sale was completed (e) . It is 
 immaterial whether there is or not an intention to 
 infringe (/); and ignorance of the existence of the patent 
 is no answer (g) . 
 
 (3.) Such being a brief review of the nature and con- Remedies, 
 ditions of patent right, we now may intelligibly consider 
 the application for its protection of the equitable remedies. 
 
 i. The injunctions sought in patent cases are usually of Injunction, 
 the interlocutory species. One of the leading authorities 
 on the principles of the Court respecting them is Hilt v. 
 TJiompso?i{h), which not only substantiates and illustrates 
 wEat has been above stated as regards the necessity for 
 novelty and utility in the invention (i), but also clearly 
 expresses the circumstances under which an injunction 
 
 (a) Seed v. Higgins, 8 H. L. C. 200; 67 L. J. Ch. 141; 
 
 550 ; cf. Saccharin Corp. v. Saccharin Corp. v. Reitmeyer, 
 
 Quincey, (1900) 2 Ch. 246; 69 (1900) 2 Ch. 659; 69 L. J. Ch. 
 
 it. J. Ch. 530. 761; British Motor Syndicate v. 
 
 (6) Newton v. Vaucher, 6 Ex. Taylor, (1901) 1 Ch. 122; 70 L. 
 
 859. .T. Ch. 21; Badische Anilin und 
 
 (c) Oxley V. Holden, 8 C. B. Soda Fabrik v. Eickson, (1905) 2 
 
 N. S. 666. Ch. 495; 74 L. J. Ch. 669. 
 
 (<f) Wright V. Hitchcock, L. (y) Heath v. Umvin, 15 Sim. 
 
 R. 5 Ex. 38. 552; Vnited Telephone Co. v. 
 
 (e) Vnited Telephone Co. v. Sharpies, 29 Ch. D. 164; 54 L. 
 
 London, <fc. Telephone Co., 26 j Q\y 533 
 
 Ch. D. 774; 53 L. J. Ch. 1158; ' '., ' „, ^, „ r^, ^^ 
 
 ■M u T T? J ■ n i'y) Ctcrtis V. Piatt, 3 Ch. D. 
 
 compare Nobels Explosives Co. iqo 
 
 V. Jones, 8 App. C. 1 ; 52 L. J. '^"' "* 
 
 Ch. 339; Badische Anilin v. C^O 3 Mer. 622. 
 
 Basle Chemical Works, (1898) A. (i) At p. 629.
 
 782 
 
 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 When 
 obtainable. 
 
 When the 
 legal right 
 must be 
 established. 
 
 Proper 
 
 diligence 
 
 required. 
 
 ■would be g-ranted. From thai cast' it appears that witli 
 respect to patents which have been for a long time in 
 the exclusive enjoyment of the plaintiff, equity would 
 presume an exclusive right, and would restrain a defen- 
 dant from infring'cment without requiring him to estab- 
 lish its validity at law, but that in the case of recently 
 granted patents it would not interpose by injunction until 
 the right had been established by law (/c) . But if a 
 good prima facie case is made out the Court has juris- 
 diction to interfere notwithstanding the recency of the 
 patent (Z). The plaintiff must in any case show both a 
 prima facie title to the patent and a prima facie case of 
 infringement (m) . 
 
 If the Court is satisfied of the validity of the patent and 
 of the fact of the infringement, it may grant an injunction 
 at once without requiring the plaintiff to establish his legal 
 right; but it will rarely do this if either the validity of 
 the patent or the fact of infringement is denied . In such 
 cases the Court will usually put the plaintiff to a trial 
 of the right, either in the meanwhile protecting him by 
 interim injunction, or ordering the motion to stand over 
 until the right has been tried; the defendant meanwhile 
 keeping an account, and the plaintiff giving an under- 
 taking as to damages. The Court will, in its discretion, 
 follow whichever of these courses appears the more con- 
 venient under the circumstances of the case (w) . 
 
 A plaintiff who seeks the aid of the Court must 
 apply with proper diligence. Any open encouragement or 
 acquiescence in the invasion of his right, especially know- 
 ingly permitting the defendant to expend moneys upon 
 
 (k) See also Univ. of 0. f C. 
 V. Sic/uirdson, 6 Ves. 689; Maw- 
 nian v. Tegg, 2 Euss. 385. 
 
 (JJ) Plimpton V. Spill er, 4 Ch. 
 D. 286. 
 
 (w) Bridson v. Macalpine, 8 
 Beav. 230; Caldwell v. Vanvlis- 
 sengen, 9 Ha. 424; Bickford v. 
 
 Skewes, 4 My. & Cr. 500. 
 
 (n) Kerr, Inj. 274; Bacon v. 
 Jone&, 4 My. & Cr. 436; Renard 
 V. Levinstein, 2 H. & M. 628: 
 Plimpton V. Mnlcohnson, 20 Eq. 
 37; Plimpton v. Spiller, ^c.f 
 sup. ; Badische, ^c. Fabrik v. 
 Levinstein, 12 App. C. 710.
 
 COPYKIGHT. 
 
 783 
 
 the faith of non-intorfcrenee. will bar his right to the 
 extraordinary interference of equity (o) . 
 
 The Act provides that if a person claims to be a Injunction 
 patentee, and by circulars or otherwise threatens legal threats, 
 proceedings on the ground of his alleged patent, a person 
 aggrieved by such threats may bring an action and obtain 
 an injunction against the continuance thereof, unless the 
 soi-disant patentee with due diligence commences and 
 prosecutes an action for infringement (p) . A private 
 letter has been deemed sufficient to authorise proceedings 
 thereunder (g) . 
 
 2. Copyright. 
 
 It was long ago established that copyright exists only Origin of the 
 by statute (r) . Until a very recent date, the various '^ 
 species of copyright depended on a series of statutes, which 
 have been expounded by innumerable decisions of the 
 Courts. Literary copyright generally was regulated by 
 5 & 6 Vict. c. 45; copyright in lectures by 5 & 6 Will. IV. 
 c. 6o; dramatic and musical copyright by 3 & 4 Will. IV. 
 c. 1-5, and 45 & 46 Vict. c. 40; copyright in jjrints and 
 engravings by 8 Geo. II. c. 13, and 7 Geo. III. c. 38, 
 extended to sculpture by 54 Geo. III. c. 56, to lithographs 
 by 15 & 16 Vict. c. 68, and to original paintings, draw- 
 ings and photographs by '25 & 26 Vict . c . 28 . 
 
 These several statutes have been repealed by the The 
 comprehensive and consolidating Copyright Act, 1911 (s), Act, 1911. 
 which now regulates almost all the questions arising in 
 matters of copyright. 
 
 (o) Bridson v. Benecke, 12 638; 55 L. J. Ch. 391; Barney 
 
 Beav. 1; Bovill v. Crate, 1 Eq. v. United Telephone Co., 28 Ch. 
 
 388. D. 394; Combined Weighing, ^-c. 
 
 (p) 7 Edw. VII. c. 29, s. 36; Co. v. Automatic, ifc. Co., 42 
 
 Colley V. Hart, 44 Ch. D. 179; Ch. D. 665; 58 L. J. Ch. 709; 
 
 59 L. J. Ch. 308; Barrett v. Skinner v. Shew, (1894) 1 Ch. 
 
 iDay, 43 Ch. D. 435; 59 L. J. Ch. 581 ; 63 L. J. Ch. 826. 
 
 (^) Driffield, ^c. Co. v. " ""■ 
 
 Waterloo, #c. Co., 31 Ch. D. (v) 1 .^ 2 Geo. V. c. 46.
 
 784 
 
 INJUNCTIONS RKSTRAINING LEGAL WRONGS. 
 
 S. 1. 
 
 Definition 
 copyright 
 and its 
 extent. 
 
 A ooinplotc ('X|)osit.ion ot* this Act lies beyond the scope 
 of the present work, and it must suffice to summarise its 
 provisions in so far as they give rise to the remedy of 
 injunction, which is the subject now in hand. It is neces- 
 sary, however, to set out in full the earlier sections of the 
 Act, as they contain specific definitions of the terms before 
 us, and embody the results of many judicial decisions 
 which were cited in previous editions of this w^ork, but 
 which, having- now received statutory authority, seem now 
 scarcely to require detailed reference. 
 
 S. 1 of the Act enacts that: — "Subject to the pro- 
 visions of this Act, copyright shall subsist throughout 
 the parts of His Majesty's dominions to which this Act 
 extends (t) for the term hereinafter mentioned in every 
 original, literary, dramatic, musical, and artistic work, 
 if— 
 
 " (a) In the case of a published work, the work was 
 " first published within such parts of His Majesty's 
 "dominions as aforesaid; and 
 " (b) In the case of an unpublished work, the author 
 "was at the date of making the work a British 
 " subject or resident within such parts of His 
 " Majesty's dominions as aforesaid; but in no other 
 "works except so far as the protection conferred 
 "by this Act is extended by Orders in Council 
 " thereunder relating to self-governing dominions 
 " to which this Act does not extend and to foreign 
 " countries. 
 
 "2. For the purjDoses of this Act 'copyright' means 
 " the sole right to produce or reproduce the work or anj' 
 ' ' substantial part thereof in any material form what- 
 " soever, to perform, or in the case of a lecture to deliver, 
 "the work or any substantial part thereof in public; if 
 " the w^ork is unpublished to publish the work or any 
 
 (0 As to which, see ss. 25, 26, 27, 28, 35 (1).
 
 COPYRIGHT. 785 
 
 "substantial part thereof; and shall include the sole 
 " right — 
 
 " (a) To produce, reproduce, perform, or publish any 
 
 " translation of the work; 
 " (b) In the case of a dramatic work, to convert it into 
 
 " a novel or other non-dramatic work; 
 " (c) In the case of a novel or other non-dramatic work, 
 
 "or of any artistic work to convert it into a 
 
 "dramatic work, by way of performance in public 
 
 " or otherwise: 
 " (d) In the case of a literary, dramatic, or musical 
 
 "work, to make any record, perforated roll. 
 
 " cinematograph-tilm or other contrivance by 
 
 " means of which the work may be mechanically 
 
 "performed or delivered. 
 *' and to authorise any such acts as aforesaid (u) . 
 
 "3. For the purposes of this Act publication in relation Publication 
 " to any work means the issue of copies of the work to f^f^^ned. 
 " the public, and does not include the performance in 
 "public of a dramatic or musical work, the delivery in 
 " public of a lecture, the exhibition in public of an artistic 
 " work, or the construction of an architectural work of 
 " art, but, for the purposes of this provision, the issue of 
 "photographs, and engravings of works of sculpture and 
 " architectural works of art, shall not be deemed to be 
 " publication of such works.' 
 
 The nature of copyright being thus defined, s. 2 of the What 
 Act declares what shall amount to an infringement of the intnna-ement. 
 right as follows: — 
 
 "S. 2. — (1) Copyright in a work shall be deemed to 
 " be infringed by any person who, without consent of 
 " the owner of the copyright, does anything the sole right 
 "to do which is by this Act conferred on the owner of 
 
 (m) For definitions of the teehnieal t^rms used in this section. 
 see s. 35. 
 
 s. 50
 
 786 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 " the copyright: Provided that the following acts shall 
 "not constitute an infringement of copyright: — 
 
 " (i.) Any fair dealing with any work for the pur- 
 " poses of private study, research, criticism, 
 "review, or newspaper summary; 
 " (ii.) Where the author of an artistic work is not the 
 " owner of the copyright therein, the use by the 
 " author of any mould, cast, sketch, plan, model, 
 " or study made by him for the purpose of the 
 " work, provided that he does not thereby repeat 
 "or imitate the main design of the work; 
 " (iii.) The making or publishing of paintings, draw- 
 "ings, engravings, or photographs of a work of 
 " sculpture or artistic craftsmanship, if per- 
 " manently situate in a public place or building, 
 " or the making or publishing of paintings, draw- 
 " ings, engravings, or photographs (which are not 
 "in the nature of architectural drawings or plans) 
 "of any architectural work of art; 
 " (iv.) The publication in a collection, mainly com- 
 " posed of non-copyright matter, bond fide in- 
 " tended for the use of schools, and so described 
 "in the title and in any advertisements issued by 
 " the publisher, of short passages from published 
 "literary works not themselves published for the 
 "use of schools in which copyright subsists: Pro- 
 " vided that not more than two of such passages 
 " from works by the same author are published 
 " by the same publisher within live years, and 
 " that the source from which such passages are 
 "taken is acknowledged; 
 " (v.) The publication in a newspaper of a report of 
 " a lecture delivered in public, unless the report is 
 " prohibited by conspicuous written or printed 
 " notice affixed before and maintained during the 
 *' lecture at or about the main entrance of the 
 " building in which the lecture is given, and,
 
 COPYKIGHT. 787 
 
 '■ except whilst the building is being used for 
 " public worship, in a position near the lecturer; 
 '■ but nothing in this paragraph shall affect the 
 "provisions in paragraph (i.) as to newspaper 
 " summaries; 
 " (vi .) The reading or recitation in public by one person 
 "of any reasonable extract from any published 
 "work. 
 
 " (2) Copyright in a work shall also be deemed to be 
 " infringed by any person who — 
 
 " (a) Sells or lets for hire, or by way of trade exposes 
 
 ■■ or offers for sale or hire; or 
 " (b) Distributes either for the purposes of trade or 
 " to such an extent as to affect prejudicially the 
 "owner of the copyright; or 
 " (c) By way of trade exhibits in public; or 
 " (d) Imports for sale or hire into any part of His 
 " Majesty's dominions to which this Act extends, 
 " any work which to his knowledge infringes 
 "copyright or would infringe copyright if it had 
 " been made within the part of His Majesty's 
 " dominions in or into which the sale or hiring, 
 " exposure, offering for sale or hire, distribution, 
 " exhibition, or importation took place. 
 " (3) Copyright in a work shall also be deemed to be 
 " infringed by any person who for his private profit 
 "permits a theatre or other place of entertainment to be 
 " used for the performance in public of the work without 
 " the consent of the owner of the copyright, unless he 
 "was not aware, and had no reasonable ground for sus- 
 " pecting, that the performance would be an infringement 
 " of copyright." 
 
 By s. 3 it is provided that the term "for which copy- 
 " right shall subsist (except as otherwise expressly pro- 
 ' vided by the Act) shall be the life of the author and a 
 "period of fifty years after his death." 
 
 •50 (2)
 
 78H 
 
 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 The term of 
 copyright. 
 
 Particular 
 cases. 
 
 Previously the term of copyright in books published in 
 the lifetime of the author was the property of the author 
 or his assigns during his Life and seven years afterwards, 
 or for forty-two years if the latter were the longer term. 
 
 The exceptions " expressly provided" include — 
 
 (1) Works of joint authors, for which the term is fifty 
 years after the death of the author who dies first, or the 
 life of the longest liver, whichever period is the longer (x). 
 
 (2) Any literary, dramatic, or musical work or any 
 engraving not published or performed in public in the life- 
 time of the author, until publication or performance in 
 public and fifty years thereafter (z) . 
 
 (3) Photographs (a), perforated rolls, &c. (6), fifty 
 years from making the negative or plate. 
 
 (4) Government publications — the copyright in which 
 has in default of agreement with the author vested in the 
 Crown — fifty j^ears from the date of first publication (c; . 
 
 As has been already said, these provisions and defini- 
 tions embody in statutory form and with statutory 
 authority the results of a multitude of judicial decisions 
 based on the preceding Acts. But it is obvious from 
 the nature of the case that no statutory formulae can 
 exclude the application of judicial discretion to the many 
 and varied questions which may still arise. 
 
 We observe that to come within the protection of the 
 Act a work need not consist of new or original matter. 
 A compilation of old materials, or materials open to the 
 research of all men, may be the subject of copyright. 
 Thus copyright may exist in a directory (d), a calendar, 
 or a catalogue (e), or in a newspaper (/). But there can 
 
 (x) S. 16. 
 
 (.) S. 17. 
 
 (a) S. 21. 
 
 (b) S. 19 (1). 
 
 (c) S. 18. 
 
 (d) Kelly v. Hoaper, 4 Jur. 
 21; Leslie \. Young, (1894) A. 
 C. 335. 
 
 (e) LovKimiin v. Winchester, 
 16 Ves. 269; Eotten v. Arthur, 
 
 1 H. & M. 603; Weatherhy v. 
 Intprn-ntionM Horse Affency, 
 (1910) 2 Ch. 297; 79 L. J. Cli. 
 609. 
 
 (f) Wrdtrr v. Hoire. 17 Ch. D. 
 708; 50 L. J. Ch. 621; Waller 
 V. Stelnhopf, (1892) 3 Ch. 489; 
 61 L. J. Ch. 521; 44 & 45 Vict, 
 c. 60.
 
 COPYRIGHT. 789 
 
 bo no copyright in a book the publication oi" which is 
 illegal on the ground of immoralit}^ indecency, sedition, 
 or blasphemy {g), and it appears that copyright will not 
 be recognised in a mere title or name {K) . 
 
 So with regard to the infringement of copyright, which 
 often depends upon what is deemed to be a " reasonable" 
 use of the work in question; it is impossible to determine 
 the point by general expressions. A subsequent writer 
 may, of course, make references to and quotations from 
 a prior publication; but he may not do so to such an extent 
 as sensibly to diminish the value of the original {i) . The 
 question is whether a material and substantial part of the 
 prior work has been taken (fc), and it is evident that the 
 solution of this will often be difficult. Especially is this 
 the case where the pirated work is, like a calendar or 
 directory, compiled from materials open to everyone. In 
 such cases similarity approaching to identity is inevitable, 
 and almost the only means by which the fact of piracy can 
 be sustained is by showing a community of errors. A 
 bond fidr abridgment of a book has been held not to be 
 piracy (?), but here again the difficulty is great in drawing 
 the line between good and bad faith. The tendency of 
 modern decisions has been to restrict, rather than to 
 extend, the latitude once allowed in this respect (m) . 
 
 The Act provides for both civil and summary remedies Remedies, 
 in cases of infringement. With the latter this work is 
 not concerned. As to the former it is broadly enacted by 
 s. 6 that "Where copyright in any work has been 
 " infringed, the owner of the copyright shall, except as 
 "otherwise provided by this Act{n), be entitled to all 
 
 (g) Stockdale v. Omvhyn, 5 (Jc) Chatterton v. Cave, 3 App. 
 
 B. & C. 173. C. 483; 2 C. P. D. 42. 
 
 ,„ ^, ^ (0 Npwbprij's Case, Lofft R. 
 
 {K) Dicks r Yates IS Ch D. ^^^ Dickens v. Lee, 8 Jur. 184. 
 
 76; 50 L. J. Ch 809; KeJhj v. ^^„^ y.^^^^^ ^ ^^^^^ 1 H. & 
 
 Byles, 13 Ch. D. 682. jy- 747. jf/„rne v. Seebohm, 39 
 
 (i) Scott V. Stanford, 3 Eq. Ch. D. 73; 57 L. J. Ch. 689. 
 
 718; Wrtlter v. Stelnkopf, sup. (») As to which, see ss. 8 
 
 and 9.
 
 790 
 
 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 Plaintiff must 
 be diligent. 
 
 Nature of the 
 injunction. 
 
 " such remedies by way of injunction or interdict, 
 " damages, accounts and otherwise, as are or may be con- 
 " f erred by law for the infringement of a right." 
 
 Formerly, the owner of a copyright could not ordinarily 
 maintain his action until the copyright had been regis- 
 tered. This restriction disappears except as to copyright 
 in designs capable of being registered under the Patents 
 and Designs Act, 1907 (o). It wiU be seen from the 
 above quoted section that the remedies available to the 
 owner of an infringed copyright are such as are common 
 to all whose rights are infringed, and therefore, as regards 
 the remedy of injunction, fall within the general prin- 
 ciples which have already been stated, and which need 
 scarcely be enlarged upon at any length in this particular 
 connexion. Reference to a few incidents of the remedy 
 may here suffice. 
 
 As a rule no injunction can be obtained until the defen- 
 dant's work has been published (p) . It is not, however, 
 necessary that the plaintiff should show a clear legal title . 
 A fair prima facie title, or a clear colour of title, legal 
 or equitable, is sufficient, even though limited in point 
 of time or extent (q) . 
 
 Delay or acquiescence, unless adequately explained, will 
 be fatal to the claim (r), as will also participation in the 
 conduct complained of (s). Under 5 & 6 Vict. c. 45, s. 26, 
 all actions must be commenced within twelve months of 
 the offence. 
 
 The injunction may be granted against the whole or a 
 part of the work, according to the extent of the piracy (t) ; 
 the whole will be included if the pirated part is so inter- 
 mixed witli the original matter as to be practically in- 
 
 (o) 7 Edw. VII. c. 29. See 
 s. 22 of the Act. 
 
 (^) Morris v. Wright, 5 Ch. 
 279. 
 
 (9) Vniv. of 0. 4- C. V. 
 Richardson, 6 Ves. 689; Nichol 
 V. Stockdale, 3 Swanst. 687. 
 
 (r) Mawman v. Teqg, 3 Russ. 
 393. 
 
 (s) Bundell v, Murray, Jac. 
 311. 
 
 (i) Lewis 
 Beav. 6. 
 
 V. Fidlnrton, 2
 
 COPYRIGHT. 791 
 
 separable (u). In copyright, as in patent cases, an inter- 
 locutory injunction if granted usually determines the 
 action. The plaintiff is, however, entitled to a perpetual 
 injunction, and this will be decreed with costs at the 
 hearing, unless the defendant has submitted to the inter- 
 locutory injunction, and offered to pay the costs up to 
 that time (x) . 
 
 Whatever relief is required by the plaintiff, as incident Discovery, 
 to the right to an injunction, may be decreed to him. 
 Thus, he may have discovery of the original sources from 
 "which the defendant alleges that he has taken his work (y). 
 A right to an account of profits is also incident to the Aticount. 
 injunction (z). By statute the plaintiff' is also entitled to 
 delivery up of all copies of the defendant's work (a). 
 
 In deciding the question of piracy, the Court now 
 usually inspects the work itself (b). 
 
 By the Bankruptcy Act, 1913 (c), it is enacted that 
 "where the property of a bankrupt comprises the copy- 
 right in any work or an}' interest in such copyright, the 
 trustee in bankruptcy shall not be entitled to sell or 
 authorise the sale, or to perform or authorise the perform- 
 ance of the work except on the terms of paying to the 
 author such sums by way of royalty or share of profits as 
 would have been payable by the bankrupt. 
 
 3. Trade marks and Trade names. 
 
 A third species of right, for the protection of which the 
 remedy of injunction is peculiarly suitable, is that to the 
 exclusive use of a trade mark. Apai't from the provisions 
 of the recent statutes which now resrulate the law as to 
 
 (w) Mawman v. Tegg, sup.: 560; Procter v. Bayley, 42 Ch. 
 
 Kelly V. Morris, 1 Eq. 697. D. 390; 59 L. J. Ch. 12. 
 
 {x) MilUngton v. Fox, 3 My. («) 5 & 6 Vict. c. 45, s. 23: 
 
 & Cr. 352. Macrae v. Holdsworth, 2 De G. 
 
 (y) Kelly v. Wyman, 17 W. &S. 497; Muddock v. Blackwood. 
 
 E. 399. (1898) 1 Ch. 58; 67 L. J. Ch. 6. 
 
 (z) Baily v. Taylor, 1 R. & M. (6) Lewis v. Fullarton, sup. 
 
 73; Colburn v. Simms, 2 Ha. (c) 3 & 4 Geo. V. c. 34, s. 25.
 
 792 
 
 INJUNCTIONS liKSTKAINlNG LEGAL WRONGS. 
 
 General 
 principles of 
 trade marks. 
 
 What may be 
 a trade mark. 
 
 trade marks, the following jDrinciples Avere established for 
 the protection of vendors and the public: — 
 
 (1.) No man has a right to sell his goods as being the 
 goods of another manufacturer or trader. If, therefore, 
 some particular mark or symbol has come to be recognised 
 in trade as the mark of the goods of a particular person, 
 another person cannot lawfullj^ mark his goods with that 
 mark so as to induce a purchaser to believe that they are 
 the goods of the person entitled to use the mark {d) . The 
 right is limited to the use of the mark in connexion with 
 a particular class of goods; that is to say, it would be no 
 infringement to mark goods of a different class with the 
 same symbol (e). Moreover, if an article has acquired a 
 certain name in the market, which name indicates its 
 nature rather than its being of a j^articular manufacture, 
 any man maj' call it by that name, though in the first 
 place it may have been the name of the inventor or 
 original maker (/) . 
 
 (2.) Any name, symbol, or emblem which is not merely 
 descriptive of an article, or which does not denote the 
 general character of a business, may constitute a trade 
 mark [g) . No person other than the original inventor, or 
 those claiming through him, may use such words as " the 
 original" or "the only genuine" as a trade mark {h)\ 
 but a man cannot be prevented from calling goods by his 
 
 {(l) Pprry v. Tniefitt, 6 Bcav. 
 66; Beddaway v. Banham, (1896) 
 A. C. 199; 65 L. J. Q. B. 381; 
 Soxlehner v. ApoUinaris Co., 
 (1897) 1 Ch. 893; 66 L. J. Ch. 
 533; B'lrm'inqhnm, ^c. Cn. v. 
 Pou-ell, (1897) A. C. 710; 66 
 L. J. Ch. 763; di.stinguish Par- 
 sons V. Gillpspip, (1898) A. C. 
 239; 67 L. J. P. C. 21; Major v. 
 FrruiMin, (1908) 1 K. B. 712; 77 
 L. J. K. B. 601; Edqe v. 
 yirholh, (1911) A. C. 693; 80 
 L. J. Ch. 744. 
 
 (p) Edelsten \. E., 1 De G. J. 
 & S. 185; Hart v. Colley, 44 Ch. 
 D. 193; 59 L. J. Ch. 355. 
 
 (/) Hall V. Barrotcs, 4 De G. 
 J. cV; S. 150; Bury v. Bedford, 
 ib. 502; National Starch, ^c. Co. 
 V. Munn's, c?-c. Co., (1894) A. C. 
 275; 63 L. J. P. C. 112; Cellular 
 Clolhinr/ Co. V. Ma.vton, (1899) 
 A. C. 326; 68 L. J. P. C. 72; 
 British Vacuum Cleaner Co. v. 
 New Vacuani Cleaner Co., (1907) 
 2 Ch. 312; 76 L. J. Ch. 511. 
 
 (r/) Braham v. Bustard, 1 H. 
 & M. 447; Burgess v. B., 3 De 
 G. M. & G. 896; Baggett v. 
 Findlater, 17 Eq. 29. 
 
 (A) CocT^s V. Chandler, 11 Eq. 
 U^\ James v. J., 13 Eq. 425.
 
 TKADE MARKS. 
 
 793 
 
 OAvn name merely because some oiu' of the same name 
 invented the goods or made them before him(^). The 
 same principh; applies in the case of a partnership name, 
 if the use of the name be bond fide ; but the Court will not 
 suffer a name to be used for the purpose of having- the 
 benefit of the reputation which another firm has acquired. 
 This amounts to a fraud on the public (y). The cases 
 referred to illustrate the application of the principles in 
 question, and it will be observed that the distinctions 
 drawn are sometimes necessarily fine. 
 
 (3.) By the Trade Marks Act, 1905 {k), which re- Re-ristratiou. 
 pealed the previous Registration Act (/), registration '"' ^^3^- ^I^- 
 of a trade mark is required before proceedings to 
 prevent its infringement can be instituted. But trade 
 marks in use prior to the 13th of August, 1875 (the 
 date of the first Registration Act), are excepted. A 
 trade mark must consist of or contain at least one of 
 the following particulars: — (1) A name of a company, 
 individual or firm re2>resented in a special or parti- 
 cular manner. (2) The signature of the applicant for 
 registration or some predecessor in his business. (3) An 
 invented word or invented words (m) ; or (4) a word 
 or words having no direct reference to the character or 
 quality of the goods and not being according to its 
 ordinary signification a geograj>hical name {n). (5) Any 
 
 (i) Burgess Y. B., sup. ; I'uiton Cli. ISi; Kingston, Miller ij- Co. 
 
 V. T., 42 Ch. D. 128; 58 L. J. v. Kingston ,|- Co., (1912) 1 Ch. 
 
 Ch. 677; Saunders v. Sun Life, bib; 81 L. J. Ch. 417. 
 
 #c. Co., (1894) 1 Ch. 537; 63 {k) 5 Edw. VII. c. 15. 
 
 L. J. Ch. 247. (0 46 & 47 Vict. c. 57. 
 
 (/) Croft V. Bay, 7 Beav. 84; {m) Re Gestetner's Trade Marl-, 
 
 Singer, ^c. v. Wilson, 2 Ch. D. (1908) 1 Ch. 513; 77 L. J. Ch. 
 
 453; Massam v. Thorletj's, iS,-c. 299 ; Phillipart v. Whiteley, 
 
 Co., 14 Ch. D. 748; Finet v. P., (1908) 2 Ch. 274; 77 L. .J. Ch. 
 
 (1898) 1 Ch. 179; 67 L. J. Ch. 650. 
 
 41; North Cheshire, ^-c. Bretvery (n) See IJ'ood v. Lambert, 32 
 
 V. Manchester Brcwen/, (1899') Ch. D. 247; 55 L. J. Ch. 377; 
 
 A. C. 83; 68 L. J. Ch.'74; Cash Re Price's Pat. Candle Co., 27 
 
 V. C. (1901), W. N. 46; Panhard Ch. D. 681; 54 L. J. Ch. 210; 
 
 et Levassor v. PanJiard, (1901) 2 Be Meyerstein's Trade Mark, 43 
 
 Ch. 513; Fine Cotton Spinners, Ch. D. 604; 59 L. J. Ch. 401; 
 
 4-c. Ass. V. Harn-ood, C1907) 2 Be Holt's Trade Mark, (1896) 1
 
 '94 
 
 INJUNCTIONS RESTRAINING LEGAL WRONGS. 
 
 What 
 amounts 
 to imitation. 
 
 other distinctive mark, but a name, signature or word or 
 words other than such as fall within the above paragraphs 
 (1) (2) (3) and (4) shall not, excejDt by order of the Board 
 of Trade or tlie Court, be deemed a distinctive mark. 
 The cases cited illustrate the recent judicial interpretation 
 of these requirements, which it would be beyond the scope 
 of this work to consider in detail. The comptroller has a 
 discretion as to the acceptance of a proposed mark, which 
 is not readily interfered with, especially in the case of a 
 mark more or less closely resembling one already regis- 
 tered for the same class of goods (o) . 
 
 (4.) As to what amounts to colourable imitation or in- 
 fringement, reference may be made to Leather Cloth Co. 
 V. American Cloth Co. (p), Seixo v. Provizende (g), and 
 other cases cited below (r). Almost all that can be laid 
 down respecting this question in general terms is that the 
 resemblance must be such as to deceive an ordinary pur- 
 chaser; it is sufficient if it be calculated to deceive even 
 the unwary; and it is not incumbent on the plaintiff to 
 show that anyone has been actually deceived (s) . On the 
 other hand, it has been held that the fact of one person 
 having been actually deceived is not conclusive proof of an 
 improper imitation (t). Each case must be judged on its 
 
 Ch. 711; 65 L. J. Ch. 410; Be 
 Bovril Trade Mark, (1896) 2 Ch. 
 600; 65 L. J. Ch. 715; Re Mag- 
 nolia, tfc. Trade Marks, (1897) 2 
 Ch. 371; 66 L. J. Ch. 598; Re 
 Linotype Trade Mark, (1900) 2 
 Ch. 238; 69 L. J. Ch. 625; Row- 
 land V. Mitchell, (1897) 1 Ch. 71; 
 66 L. J. Ch. 110; Re Faulder's 
 Trade Mark, (1902) 1 Ch. 125; 
 71 L. J. Ch. 124; Re Uneeda 
 Trade Mark, (1902) 1 Ch. 783; 
 71 L. J. Ch. 353; Bourne v. 
 Swan and Edgar, (1903) 1 Ch. 
 211; 72 L. J. Ch. 168; Re Bur- 
 roughs, Wellcome S; Co.'s Trade 
 Marks, (1904) 1 Ch. 736; 73 L. 
 J. Ch. 474; Christv v. Tipper, 
 (1905) 1 Ch. 1: 74 t. J. Ch. 55; 
 
 Grand Hotel Go. of Caledonia 
 Springs v. Wilson, (1904) A. C. 
 103; 73 L. J. P. C. 1. 
 
 (o) Eno V. Dunn, 15 App. C. 
 252; Re Goodall's Trade Mark, 
 42 Ch. D. 566; Re Apollinaris 
 Trade Mark, (1907) 2 Ch. 178. 
 
 {p) 11 H. L. 523. 
 
 {q) 1 Ch. 192. 
 
 (r) Montgomery v. Thompson, 
 (1891) A. C. 217; 60 L. J. Ch. 
 757 ; Reddaway v. Bentham, ^c. 
 Co., (1892) 2 Q. B. 639. 
 
 (s) Johnston v. Orr-Ewing, 7 
 App. C. 219; 51 L. J. Ch. 797. 
 
 (t) Civil Service Suppli/ Ass. 
 V. Dean, 13 Ch. D. 512. '.
 
 GOODWILL. 795 
 
 own merits (u). Under the recent statutes, an innocent 
 user of a protected mark amounts to an infringement (x) . 
 
 (5.) Incident to the remedy of injunction in cases of Remedies, 
 infringement is the right to an account of the profits made 
 by the illegal user (y) . An innocent vendor of goods 
 spuriously marked is, however, not liable to an account, 
 except in respect of sales made after he has acquired know- 
 ledge of the wrong (z) . A plaintiff must, in these as in 
 other cases, be prompt in his application after discovery of 
 the infringement. Delay or acquiescence may be held to 
 bar his right to an injunction (a). 
 
 4. GoodwilL 
 
 The remedy of injunction has often been sought for the Goodwill, 
 protection of rights arising from the sale or assignment of 
 the goodwill of a business. It is now decided after some 
 conflict of opinion that, in the absence of an express 
 agreement to the contrary, a vendor of a business is en- 
 titled to set up a business of a similar nature; but that, 
 having sold the goodwill, he may be restrained from 
 soliciting the customers of the former firm (6). The pur- 
 chaser may use the vendor's name so far as is necessary to 
 show the continuation of the business, provided that it is 
 so done as not to involve the vendor in any liability, or to 
 practise any deception on the public (c). But if the 
 vendor bargains expressly not to interfere with the 
 
 (m) Fayton v. Snellinq, Lam- & Cr. 1; Lee v. Haley, 5 Cli. 155, 
 
 'pard ^ Co., (1901) A. C.'SOS; 70 160. 
 L. J. Ch. &44. (6) Trego v. Hunt, (1896) A. 
 
 {x) Upmann v. Forester, 24 C. 7; 65 L. J. Ch. 1; over- 
 
 Ch. D. 231; 52 L. J. Ch. 946. ruling Pearson v. P., 27 Ch. D. 
 
 {y) Burgess w. Hills, 2% -Qe^y. ^^^' ^.^ ^r ,^ ' ^^^^ ^V """^ 
 
 244 See also General 4eridp»i approvins: Lnbouchere v. Dawson, 
 
 n^ ^ ,. A/^ ; /inno\ i tt tj ^^ ^^' oil', y ernon v. HaUom, 
 
 Corp. V. Noel, (1902) 1 K. B. ,^^^^ ^ ^4g. ^^^ j ^^ ^^..^ 
 
 '■ „ Curl V. Webster, (1904) 1 Ch. 
 
 (z) Moet V. Couston, 33 Beav. 685; 73 L. J. Ch. 540. 
 
 578; Slazenger v. Spalding, (o) Thorneloe v. Hill, (1894) I 
 
 (1910) 1 Ch. 257; 79 L. J. Ch. ch. 569; 63 L. J. Ch. 331; 
 
 122. Thymie v. Shove, 45 Ch. D. 577; 
 
 (a) Motley v. Downman, 3 My. 59 L. J. Ch. 507.
 
 796 INJFJNC'J'ION« RESTRAINING LEGAL WRONGS. 
 
 customers, or otherwise binds himself b}^ contract not to 
 carry on business so as to interfere with the purchaser, his 
 negative contract may be enforced by injunction (d). 
 Such contracts must conform to the rules of law respect- 
 ing contracts in restraint of trade, or they will be void, as 
 opposed to public policy (e). A full discussion of the 
 scope of these rules may be found in the notes to Mitchel 
 V. Reynolds, in Smith's Leading Cases (/), to which refer- 
 ence should be made. 
 Trade secrets. The Court has also jurisdiction to restrain the inequit- 
 able disclosure of trade secrets, the knowledge of which 
 has been acquired in the course of conhdential employ- 
 ment {g) . The cases cited illustrate the application of 
 this principle to the attempted use of engineering draw- 
 ings and of a list of the plaintiff's customers. It is an 
 implied term of the contract of service that there shall be 
 no such breach of confidence (/^) . 
 
 {(I) Whittaler v. Howe, 3 505; Rohh v. Gyeen, (1895) 2 Q. 
 
 Beav. 683; Bnhies v. Geary, 35 B. 315; 64 L. J. Q. B. 593; 
 
 Ch. D. 154; 56 L. J. Ch. 935. Amber Size, ^c. Co. v. Menzel, 
 
 (e) Hotnerv. Ashford,d'BiTig. (1913) 2 Ch. 239; 82 L. J. Ch. 
 
 322; and see 7 Edw. YII. c. 29, 573. 
 s. 38. 
 
 (/) 1 Sm. L. C. 406, ed. 11. (h) Lamb v. Evans, (1893) 1 
 
 (f/) MerryivcKther v. Moore, Ch. 218; 62 L. J. Ch. 404; Louis 
 
 (1892) 2 Ch. 518; 61 L. .T. Ch. v. Smellie (1895), W. N. 115.
 
 '97 
 
 CHAPTER VII. 
 
 INSTANCES OF lURISDICTION ANALOCX)US TO INJUNCTION 
 
 I. Cancellation and Delivery up of Documents . 
 
 II. Actions to establish WilU. 
 
 III. Actions Quia Timet. 
 
 IV. Actions in the nature of Bills of Peace. 
 V. Writ of Ne Exeat Eegno. 
 
 VI. Actions to perpetuate Testimonij. 
 
 I. Cancellation and Delivery up of Documents. 
 
 Courts of equity have long been wont to entertain suits Grounds 
 which seek the cancellation, rescission, or delivery up of jurisdiction, 
 instruments, when there is a danger of their being im- 
 properly employed for the injury of the plaintiff. Such 
 cases are now, by the Judicature Act, assigned to the 
 Chancery Division {a) . 
 
 It often happens that agreements, securities, or deeds 
 which have answered the purposes for which they were 
 created, or which are voidable or even entirely void, have 
 nevertheless an appearance of validity, and may therefore 
 be used by an ill-disposed person for purposes of annoy- 
 ance, vexation, and fraud. In such circumstances, no 
 preventive remedy could be obtained at law, and a useful 
 field was accordingly left for the peculiar jurisdiction of 
 equity (6). 
 
 It is apparent that the relief sought in such cases bears Remedy 
 6ome resemblance to that of Injunction; and as in that i^^retionaiy. 
 case, so in this, the exercise of the jurisdiction is eminently 
 
 {a) 36 & 37 Vict. c. 66, s. 34 (3). 
 (6) Story, 692.
 
 '98 
 
 REMEDIES ANALOGOUS TO INJUNCTION. 
 
 When 
 granted . 
 
 1. Void 
 instrument-s 
 
 Relief 
 granted 
 unless 
 illegality 
 is apparent 
 on their face. 
 
 Not if it is so. 
 
 a matteir within the discretion of the Court. A decree 
 cannot be demanded as a matter of right; the Court will 
 considei* all the circumstances of the case, and impose such 
 conditions as it thinks fit (c) . It remains to consider in 
 what cases, and under what circumstances, equity will 
 grant the relief desired . 
 
 There are three classes of instruments to be particularly 
 considered: First, those which are utterly void; secondly, 
 those which are voidable; thirdly, those which are in 
 themselves unexceptionable, but to which the plaintiff has 
 a title as against the defendant. 
 
 1 . As to void instruments, it was at one time questioned 
 Avhether Courts of equity ought to interfere to procure 
 their cancellation or delivery up. It was argued against 
 the jurisdiction, that such instruments being of no effect at 
 law, there was no necessity for any equitable interference 
 respecting them; and further, that if an equitable remedy 
 was needed, the proper course would be the issuing of a 
 perpetual injunction against the use of the instrument (d). 
 
 On the other hand, more recent cases have proceeded on 
 the principle that if there is a real danger that such an 
 instrument may be injuriously used, that alone supplies 
 ■sufficient ground for equitable interference (e) . 
 
 The question whether the Court would or would not 
 interfere, therefore, resolved itself into the question 
 whether the instrument was of such a nature as to admit 
 of injurious use. If so, it would be ordered to be delivered 
 up; if not, equity would not interpose. 
 
 If, then, the illegality of the instrument, whether agree- 
 ment, security, or deed, is apparent on the face of it, so 
 that its nullity can admit of no doubt, there is no suffi- 
 cient ground for seeking equitable assistance respecting it. 
 
 (o) story, 693 ; Goring v. Nash, 
 .3 Atk. 188. 
 
 (d) Story, 698 ; Hilton v. Bar- 
 row, 1 Ves. jr. 284; Jiyan v. 
 Machmath, 3 Bro. C. C. 15, 16. 
 
 (e) Swanstwn's note to Bams 
 V. B. of Marlborough, 2 Swanst. 
 157; Jones v. Merioneth P. B. 
 Building Soc, (1892) 1 Ch. 173; 
 61 L,. J. Ch. 138.
 
 CANCELLATION AND DELIVERY UP OF DOCUMENTS. 799 
 
 Such a document is plainly innocuous; no lapse of time 
 can add to its power so as to render it dangerous. Illus- 
 trations are supplied by instruments which on their face 
 disclose an illegal consideration, or the fact that they have 
 been fully satisfied (/). Equity, which will do nothing 
 which is useless, will not interfere in such cases. 
 
 Where, however, an instrument, though in fact void, 
 has an appearance of validity, the case is otherwise. Then 
 there exists a material danger against which protection 
 may reasonably be sought. Thus, a deed purporting to Cases in 
 convey hereditaments, as long as it remains in hostile has^oranter/ 
 hands, has a tendency to throw a cloud on the title {g) ; a relief. 
 mere written agreement may be used vexatiously and 
 improperly (h) ; and in such cases lapse of time only adds 
 to the danger, by rendering it more difficult to procure the 
 evidence necessary to expose the fraud (i). In such cases 
 if the Court considers it against conscience for a party to 
 hold or retain the mischievous document, its jurisdiction 
 to order delivery up and cancellation is well established; 
 or it may, in a proper case, perpetuate the testimony 
 necessary for a legal defence (fc) . Forged instruments 
 have similarly been held to be delivered up, without any 
 prior trial at law as to the forger}^ (T) . 
 
 2. As to voidable instruments, it is not now necessary Voidable 
 to repeat what has already been said under the headings 
 of Fraud and Mistake respecting the circumstances which 
 will give a person the option of avoiding his own acts. 
 The present question has a close connexion with what 
 
 (/) Simpson v. Howden, 3 Mj^. {h) Bromley v. Holland, 7 
 
 & Cr. 97; Smyth v. Griffin, 13 Ves. 20. 
 
 Sim. 245; Threlfall v. Ltmt, 7 (i) Kemp v. Prior, 7 Ves. 248. 
 
 Sim. 627. {k) Inf., p. 812; Brooking v. 
 
 Maudslay, 38 Ch. D. 636; 57 L. 
 
 (r/) Pierce v. Webb, 3 Bro. C. J. Ch. 1001. 
 
 C. 16; Byne v. Vivian, 5 Ves. (/) Peuke v. Highfield, 1 Russ. 
 
 607; Bondv. Walford, 32 Ch. D. 559; Johnston v. Benton, 9 Eq. 
 
 238; Phillips v. Probyn, (1899) 1 181; Cooper v. Vesey, 20 Ch. D. 
 
 Ch. 811; 68 L,. J. Ch. 401. 612; 51 L. J. Ch. 862.
 
 800 
 
 REMEDIES ANALOGOUS TO INJUNCTION. 
 
 Cancelled mi 
 groiind of 
 fraud in 
 defendant. 
 
 Plaintiff niui^t 
 be innocent, 
 or not in 
 
 pari delict (I. 
 
 Relief on 
 grounds of 
 public policy. 
 
 Even though 
 jjlaintiff has 
 participated . 
 
 ■was tlierc stated, and referring- thereto, it may be briefly 
 answered — 
 
 Equity will set aside and cancel a voidable agreement 
 or security: — 
 
 (1.) When Ihc defendant has been guilty of actual 
 fraud, in which the plaintiff has not participated. 
 
 This is the simplest and clearest case, plainly conform- 
 able to the elementary rule that a man shall not be allowed 
 to reap an advantage from his own fraud against one who 
 is innocent. 
 
 (2.) Where the plaintiff', as well as the defendant, has 
 in some degree participated in the fraud, but they are not 
 in pari delicto. 
 
 It is a general maxim that " he who comes into equity 
 must come iciiJt cleai/ h(ind'<'-, and as a rule no relief will 
 be given to one who has been guilty of any unconscientious 
 dealing respecting the subject-matter of the suit . But if 
 a fraud has been committed by the defendant, and par- 
 ticipated in by the plaintiff, yet if the plaintiff acted under 
 the influence of oppression, imposition, hardship, or other 
 undue influence, such as may arise from great inequality 
 between the ages and conditions of the parties, he may 
 succeed in establishing his claim to relief (m). 
 
 (3.) If the transaction has been in effect a fraud upon 
 public policy. 
 
 In these cases, as in those last mentioned, relief may be 
 given notwithstanding the participation of the plaintiff in 
 the fraud; the reason in this case is that public policy 
 would be defeated by allowing the transaction to stand. 
 Thus, gaming securities have on this ground been decreed 
 to be given up (n), and other agreements founded on 
 immoral considerations cancelled (o). 
 
 Save, however, in these two exceptional cases, equity will 
 
 (m) Osborne v. Williams, 18 
 Ves. 379; Bosanqiiet v. Dash- 
 wood, Ca. t. Talb. 37, 40, 41. 
 
 («) Milltown V. Stewart, S 
 My. & Cr. 18. 
 
 (o) W. V. B., 32 Beav. 574.
 
 CANCELLATION AND DELIVERY UP OF DOCUMENTS. 801 
 
 peremptorily refuse its assistance to one who has himself 
 been guilty of fraud, whether actual or constructive (p). 
 
 3. Lasth^ we have to consider those cases in which the Valid 
 
 ,..„,,,,. „ . ^ ,^ ^, instruments. 
 
 piaintiii seeks the delivery up oi an instrument not on the 
 ground of any equity arising out of the nature of the in- 
 strument itself, but because he has an equitable right as 
 against the defendant to its possession or custody. In Relief on 
 
 , . „ . n • ground of 
 
 these cases there is oi course no question as to cancellation; title, 
 the relief sought is simply delivery up. 
 
 A person is entitled to the title deeds of his own 
 property; thus, heirs-at-law, devisees, and other persons 
 properly entitled to the custody and possession of the title 
 deeds of their property may oome into equity and obtain a 
 decree for the specific delivery of them (g); and the same 
 doctrine applies to other instruments, such as bonds, nego- 
 tiable instruments, &c., which are detained from persons 
 who have a legal or equitable interest in them (r). 
 
 In such cases the Courts of common law could not 
 afford complete redress, since the prescribed forms of their 
 remedies rarely enabled them to pronounce a judgment 
 in rem. 
 
 Similarly, remaindermen and reversioners, and other Preservation 
 
 , . T . , , . . . 1 . 1^ ^^ deeds. 
 
 persons having limited or ulterior interests in real estate, 
 may in many cases take measures in equity to secure the 
 preservation of their title deeds (s). The plaintiff must, 
 however, in such cases be prepared to show the necessity 
 for his action by proving that there is some danger of the 
 
 (p) Franco v. Bolton, 3 Ves. Meiv, 29 Ch. D. 725; 54 L. J. 
 386; St. John v. St. J., 11 ib. Ch. 909. 
 
 635; Atjerst v. Jenkins, 16 Eq. (r) Kaye v. Moore, 1 S. & S. 
 
 275; distinguished in Phillips v. 61; Freeman v. Fairlie, 3 Mer. 
 Probyn, (1899) 1 Ch. 811. 30. 
 
 (s) Smith V. Cooke, 3 Atk. 382; 
 
 (?) Reeves v. R., 9 Mod. 128 
 Tanner v. Wise, 3 P. Wms. 296 
 Cooper V. Vesey, 20 Ch. D. 612 
 51 L. J. Ch. 862; Manners v. C. 217. 
 
 s. 51 
 
 and see Jenner v. Morris, 1 Ch. 
 603; Stanford v. Roberts, 6 Ch. 
 307; Lyell v. Kennedy, 8 App.
 
 802 
 
 REMEDIES ANALOGOILS TO INJUNCTION. 
 
 Vohiutury 
 settlements 
 not relieved 
 asfainHt. 
 
 loss or destruction of the instruments unless protected by 
 the Court, and his interest must not be too remote {t). 
 
 It may be here observed that voluntary agreements 
 untainted with fraud, although not enforceable in equity, 
 will not be set aside. Unless such a deed reserves a power 
 of revocation, the settler will be bound by it (m), and the 
 fact that such a deed contains no power of revocation is 
 not sufficient to render it voidable (cc). 
 
 Will of 
 
 personalty 
 requires legal 
 personal re- 
 presentative, 
 
 in whom the 
 
 property 
 
 vests. 
 
 Will of real 
 property 
 formerly a 
 conveyance to 
 the devisee. 
 
 II. Actions to establish Wills. 
 
 In considering the equitable jurisdiction to establish 
 wills, the- student must carefully observe two things: first, 
 the distinction which formerly existed between the juristic 
 effects of wills of personalty and wills of realty ; secondly, 
 the distinction between disputes as to the validity and 
 disputes as to the construction of wills. 
 
 1 . A will of personal property requires for its effectual 
 performance the appointment of a legal personal represen- 
 tative. Usually the will itself provides for this by the 
 appointment of one or more executors. If not, or if those 
 appointed are incapable, the Court supplies the vacancy 
 by the appointment of an administrator. If the will is 
 in other respects valid, the administrator cum testamento 
 annexo acts in conformity therewith as an executor. The 
 persona of the testator devolves in a measure upon him; 
 he is liable for the debts; the general personalty vests in 
 him, and only passes to the beneficiaries by his consent. 
 
 A will of real property, on the other hand, operated in 
 effect as a conveyance. Putting aside for the present the 
 various steps by which it became liable to debts, and in 
 
 (0 Ivie V. /., 1 Atk. 431; 
 Ford V. Peering, 1 Ves. jr. 76. 
 
 (w) Villiers v. Beaumont, 1 
 Vern. 101; Bill v. Cureton, 2 
 My. & K. 503. 
 
 (x) Hall V. H., 8 Ch. 430; 
 Henry v. Armstrong, 18 Ch. D. 
 6(58. See Bonhote v. Henderson, 
 (1895) 2 Ch. 202; 64 L. J. Ch. 
 556.
 
 ACTIONS TO ESTABLISH WILLS. HO'i 
 
 Bome respects placed within the power of the executors, the 
 will itself might be regarded as a conveyance of the real 
 estate to the devisee or devisees named. Now, however, 
 by the Land Transfer Act, 1897 {y), real estate as well as 
 personalty vests on the testator's death in his personal 
 representatives, who hold the same as trustees for the 
 persons beneficiallj' entitled; and probate and letters of 
 administration may be granted of a will comprising real 
 estate only. 
 
 2. The second distinction needs only to be stated. It Distinction 
 is evident that the question whether a certain document ^k^te^ as to 
 is or is not a will is quite distinct from the question as to validity and 
 what its.language means. conrtruction. 
 
 When we here speak ,of the jurisdiction of Courts of 
 equity to establish wills, we refer to the former of these 
 questions. The construction of wills is a matter in which 
 they are continually concerned, and which has already 
 come largely under our consideration in connexion with the 
 administration of assets. 
 
 Previously to the Judicature Acts the Court of Chancery No general 
 had no general iurisdiction as to the validity of wills. As |yi8<iiction m 
 
 '='_*' -^ Unancery 
 
 regards wills of personal property, the Court of Probate, as to validity 
 which by virtue of 20 & 21 Vict. c. 77, succeeded in 1857 ^^ ^'''^^' 
 to the functions of the Ecclesiastical Court, was the proper 
 forum; and the same Court at the same time acquired 
 jurisdiction as to wills of real property, which was 
 formerly exercised by the Courts of Common Pleas and 
 Queen's Bench. 
 
 The position of the Court of Chancery with respect not even in 
 to wills is weU illustrated by the case of Allen v. cases of fraud. 
 M'Pherson (z), in which it was sought to set aside a will 
 of personalty by suit in equity on the ground of undue 
 influence, notwithstanding that it had been admitted to 
 probate in the Ecclesiastical Court; but the bill was dis- 
 missed for want of jurisdiction. A similar decision has 
 
 (y) 60 & 61 Vict. c. 65, ss. 1 and 2. (z) 1 H. L. 191. 
 
 51 (2)
 
 804 
 
 REMEDIES ANALOGOUS TO INJUNCTION. 
 
 Incidental 
 jurisdiction 
 before Jud. 
 
 Aocs. 
 
 WU18 of pure 
 real estate 
 established in 
 equity. 
 
 been much more recently arrived at in a case in which bothi 
 real and personal property were concerned (a). It has 
 indeed been held under the Judicature Acts that the 
 Chancery Division has now concurrent jurisdiction with 
 the Probate Division to grant probate of wills (b); but 
 the same cases show that it is most unlikely to put thia 
 power into exercise. 
 
 But, notwithstanding these considerations, and pre- 
 viously to the Judicature Acts, the cases were numerous 
 in which a qualified jurisdiction respecting wills was exer- 
 cised by Courts of equity. 
 
 In the first place, if a will came incidentally before the 
 Court, and its validity had not been admitted or elsewhere 
 established, the Court effectually determined the question. 
 This was done either by directing an issue to be tried at 
 law, or by the production and examination of witnesses in 
 the Court of equity itself; and when the validity of the 
 will was thus once determined, the rights of those claim- 
 ing under it might be established, if necessary, by a 
 perpetual injunction against the heir (c). 
 
 Secondly, as regards wills purely of real estate, which 
 formerly required neither the appointment of an executor 
 nor a grant of probate, equity had jurisdiction to entertain 
 a suit by a devisee to establish his right against the heir, 
 by means of a perpetual injunction restraining him from 
 contesting its validity in future (<^). Such action could 
 not have been brought at law, and yet might be necessary 
 for the security of the devisee ; since the heir might delay 
 seeking ejectment against him until the evidence had 
 grown obscure. The jurisdiction, therefore, is in some 
 respects analogous to that which empowers interference 
 quia timet (e). 
 
 (a) Meluish v. Milton, 3 Ch. 
 D. 27. 
 
 (6) Pinney v. Hunt, 6 Ch. D. 
 101; Bradford v. Young, 26 ib. 
 656 ; and see Priestman v. Thomas^, 
 9 P. D. 70, 210. 
 
 (o) Sheffield v. D. of Bucking- 
 hamshire, 1 Atk. 628. 
 
 (d) Bootle V. Blundell, 19 Ves. 
 494, 509. 
 
 (e) Infra, p. 805.
 
 ACTIONS TO ESTABLISH WILLS. ^^^ 
 
 ■ thiF. na.fnrft 
 
 Itossborougfh. 
 
 A leading authority respecting actions of this nature -^oy** v 
 
 is Boyse v. Rossboroiigh (/), where a will was established 
 at the suit of a devisee against an heir, although the heir 
 had brought no ejectment against the devisee, although no 
 trusts were declared by the will, and although there was 
 no necessity for the administration of the estate by the 
 Court. It has also been held that the Court has power to 
 establish such a will not only against the heir, but against 
 all persons setting up adverse claims — for instance, claims 
 depending on a prior will {g). 
 
 On the other hand, an heir, having a complete legal Heir cannot 
 remedy by action of ejectment, could not have come into awiU. 
 equity as plaintiff to contest the validity of a will, except, 
 at least, by consent of the devisee. Under the present 
 practice, these distinctions between the jurisdiction of 
 Courts of law and equity have, of course, ceased to exist. 
 
 The combined result of legislation and decision, there- 
 fore, even before the Land Transfer Act, 1897, already 
 referred to (h), practically confined the jurisdiction to 
 establish wills to a very limited number of cases — namely, 
 to wills relating solely to real property. Since the last- 
 mentioned Act has placed wills of real estate on the same 
 footing (as regards Probate) as wills of personalty, it 
 would appear the jurisdiction now under consideration has 
 become practically obsolete (^), except, perhaps, as to 
 copyholds. 
 
 III. Actions Quia Timet. 
 
 In certain circumstances equity has jurisdiction to inter- 
 fere for the protection of a right before any injury has 
 been actually done, and a party who fears a probable 
 
 (/) Kay, 71; 1 K. & J. 124; 3 (h) Sup. p. 803. 
 De G. M. & G. 817; 6 H. L. 1. 
 
 (g') Stip.;Lovett-v.L.,3J^.& (i) See Plomley v. Stileman, 
 
 J. 1. (1901) W. N. 165.
 
 800 
 
 REMEDIES ANALOGOUS TO INJUNCTION. 
 
 Nature of 
 relief given 
 quia timet. 
 
 Pieseryation 
 of trust 
 property. 
 
 Appointment 
 of receiver. 
 
 Keeping down 
 incumbrances. 
 
 invasion of his right may establish an action for his pro- 
 tection without claiming any other relief. 
 
 The nature of the relief given depends, of course, upon 
 the circumstances under which it is sought; sometimes it 
 takes the form of the appointment of a receiver of rents or 
 other income; sometimes that of an order to pay a fund 
 into Court; sometimes security is directed to be given; 
 sometimes it suffices merely to issue an injunction (A;). 
 
 The db jeot of the action in all cases is to preserve pro- 
 perty to its appropriate uses and ends. It must liere 
 suffice to adduce a few illustrations of the circumstances 
 which call for and warrant the exercise of the jurisdiction* 
 
 1 . If property in the hands of a trustee is in danger of 
 being diverted or squandered, to the injury of any claimant 
 having a present lar prospective title thereto, the Court 
 will take such measures for its protection as it deems 
 requisite. And the same principle applies to executors or 
 administrators, if there is danger of collusion between 
 them and the debtors of the estate, or of a waste of the^ 
 estate from any other cause (l). Such cases will generally 
 be met by theappointment of a receiver; and when this is 
 done the appointment is made for the benefit of all the par- 
 ties in interest, and not for that of the plaintiff only (m). 
 
 The appointment of a receiver rests in the discretion of 
 the Court; and when appointed he is regarded as an 
 officer of the Court, and therefore subject to its orders (>?): 
 he is required to give security. 
 
 2. Where the tenants of a particular estate for life or in 
 tail neglect to keep down the interest due upon incum- 
 brances, the Court often appoints a receiver to secure the 
 performance of this duty (o). 
 
 (_k) Story, 826; Jlendriks v. 
 Montarjue, 17 Ch. D. 638. 
 
 (0 Story, 827, 828; Taylor v. 
 Allen, 2 Atk. 213; Foxwell v. 
 Van Grutten, (1897) 1 Ch. 64; 66 
 L. J. Ch. 53; John v. J., (1898) 
 2 Ch. 573; 67 L. J. Ch. 616. 
 
 {m ) Bavis v. D. of Marl- 
 borough, 1 Swanst. 83; 2 ib. 125. 
 
 (m) Skip V. Hartvood, 3 Atk. 
 564. 
 
 (o) Giffard v. Hart, 1 S. & L. 
 407, n.
 
 ACTIONS QUIA TIMET. H07 
 
 3. The jurisdiction is also exercised Tor the protection of Protection of 
 sureties. A surety who apprehends loss from the delay of 
 
 his creditor to sue the principal debtor may come into 
 equity to compel the discharge of the debt (p). 
 
 4. In all cases in which there is a future right of enjoy- Protection of 
 ment of personal property, and there is danger of loss or i^ persoimlty. 
 deterioration or injury to it in the hands of the party 
 
 entitled to present possession, equity has power to inter- 
 pose, and grant relief on an action in the nature of a bill 
 quia timet {q). Such cases may be met by an order to Security, 
 give security (r); or, still more effectually, by requiring Payment into 
 the fund to be paid into Court (s). Whenever trust ^<^"^*- 
 money is traced to hands not entitled to hold it, the Court 
 will, or. the application of the cestiiis que trusts, order its 
 payment into Court (t). 
 
 It is, of course, unnecessary here to dwell upon the Injunctions, 
 circumstances which warrant the granting of injunctions 
 for the protection of property, these having been already 
 copiously illustrated. In order to claim an injunction 
 quia timet the plaintiff, as in the case of injunctions 
 against legal wrongs generallj^ must show either that 
 substantial danger is imminent, or that the threatened 
 injury will, if it happens, be irreparable (u), or, at least, 
 a strong case of probability that the apprehended mischief 
 will in fact arise (x). We need only further observe that Jud. Act, 
 the same authority, above quoted, which now enables the ^uh-L 8. ' 
 Court to grant an injunction by an interlocutory order 
 whenever it seems to be just or convenient, enables it 
 
 (p) Wright V. Simpson, 6 Ves. {t) Leigh v. Macaiday, 1 Y. & 
 
 734 ; and see Wooldridge v. C. Ch. 260; Bowsher v. Watkins, 
 
 Norris, 6 Eq. 410; Hughes- 1 R. & M. 277. 
 
 Rallett V. Indian, ^c. Co., 22 Ch. (w) Fletcher v. Bealei/, 28 Ch. 
 
 D. 561; Ascherson v. Tredegar, D. 688; 54 L. J. Ch. 424; 
 
 (fc. Co., (1909) 2 Ch. 401;' 78 Tussaiid \. T., U Qh. J). Ql%; 59 
 
 L. J. Ch. 697. L. J. Ch. 631; Martin v. Price, ' ' 
 
 iq) Story, 845. (1894) 1 Ch. 276; 63 L. J. Ch. 
 
 209. 
 , . „, . „ , r. T^ (^) Att.-Gen. v. Manchester 
 
 (s) Slanmng v. Style, 3 P. Corp., (1893) 2 Ch. 87; 62 L. J. 
 
 (r) Rous V. Nohle, 2 Vera. 249 
 (s) Slanning v. Style, 3 P 
 Wms. 336. Ch. "459, and cases there "cited
 
 808 
 
 REMEDIES ANALOGOUS TO INJUNCTION. 
 
 to appoint a receiver in a similar manner and on similar 
 conditions {y). This extensive power renders it now un- 
 necessary to consider many restrictions on the jurisdiction 
 which were formerly effective. 
 
 Nature of 
 bills of peace. 
 
 The right of 
 one 
 
 established 
 ag-ainst many 
 defendants. 
 
 The right of 
 many against 
 one. 
 
 IV. Actions in the nature of Bills of Peace. 
 
 In some respects analogous to the remedy last con- 
 sidered is that formerly known as a bill of peace, and 
 now taking the form of an action of the same effect as 
 the former bill. 
 
 A bill of peace was one brought to establish and 
 perpetuate a right which from its nature might be contro- 
 verted by different persons at different times, and by 
 different actions; or where separate attempts had already 
 been made to overthrow the same right, and justice 
 required that the party should be quieted in the right and 
 relieved from the annoyance of continual litigation. In 
 such cases equity, which is always opposed to multiplicity 
 of suits, has jurisdiction to interfere and put an end to the 
 fruitless litigation. 
 
 One class of cases in which this remedy is appropriate 
 consists of those in which one general right is to be 
 established against a great number of persons, as where a 
 person has possession and claims a right of fishery on a 
 river, and the riparian proprietors set up several adverse 
 rights (0) ; or where a lord seeks to restrain encroachments 
 by tenants under colour of a common right, or to establish 
 an enclosure which he has approved under the Statute of 
 Merton {a). 
 
 Similar relief may be sought where many persons claim 
 or defend a right against one; or where tenants seek 
 
 (y) Jud. Act, 1873, s. 25, sub- 
 8. 8. 
 
 (z) M. of York v. Pilkington, 
 1 Atk. 282; TenJiam v. Herbert, 
 
 2 ib. 483. 
 
 (a) 20 Hen. III. c. 4; Hanson 
 V. Gardiner, 7 Ves. 305; D. of 
 Norfolk V. Myers, 4 Mad. 50, 117.
 
 ACTIONS IN THE NATURE OF BILLS OF PEACE. ^^"^ 
 
 to prevent the disturbance by a lord of a common 
 right (&). 
 
 But in order to entitle a party to claim the assistance Conditions of 
 
 f» 1 /^ 1 • Till ^'^'^ remedy. 
 
 of the Court on these grounds, it must be clear that there 
 is a right claimed which affects many persons, and a 
 suitable number of parties in interest must be brought 
 before the Court (c); and it is to be observed that the 
 Court will not decree a perpetual injunction in contradic- 
 tion of a public right, such as a right to a highway or to a 
 common navigable river (d). On the other hand, the right 
 in question must affect numerous parties; on the other, it 
 must not affect the public at large. 
 
 Another class of cases for which a bill of peace was an Protection of 
 apt remedy, comprised those in which the plaintiff had established 
 after repeated trials established his legal right, but yet at law. 
 was threatened with further litigation from new attempts 
 to controvert it. In such circumstances, the Court was 
 wont to grant a perpetual injunction to quiet the plaintiff's 
 possession, and to suppress future litigation (e). It would 
 not, however, interfere until the right had been satisfac- 
 torily established at law; but two trials were deemed a 
 sufficient determination of the right to warrant an in- 
 junction (/). By 25 & 26 Vict. c. 42, the Court of Chan- Roit's Act. 
 eery was empowered to direct an issue, if necessary, to be 
 tried at the assizes or at nisi prius, or itself to decide the 
 question of law or fact: and since the Judicature Acts the Jud. Acts. 
 Courts of law could themselves apply the remedy without 
 requiring the defendant to appear as a plaintiff in equity . 
 We have already seen, that as regards the various divisions 
 of the High Court of Justice no one division can now 
 restrain proceedings in another. Each can order a stay of 
 
 (b) Conyers v. Abergavenny, 1 (e) E. of Bath v. Sherivin, 
 
 Atk. 285; Phillips v. Hudson, 2 Prec. Ch. 261; 10 Mod. 1; 4 
 
 Ch. 243. Bro. P. C. 373. 
 
 (e) Story, 857; Cowper v. 
 Clerk, 3 P. Wms. 15. (/) Devonsher v. Newenham, 2 
 
 {d) Story, 858; Hilton y. Scar- S. & L. 208; Leighton v. L., 1 
 
 borough, 2 Eq. Ca. Ab. 171. P. Wms. 671.
 
 810 
 
 REMEDIES ANALOGOUS TO INJUNCTION. 
 
 its own proceedings whenever there is an equitable claim 
 to it. 
 
 Nature and 
 origin of the 
 writ. 
 
 Granted only 
 for equitable 
 debts, 
 
 except iu 
 oases of 
 alimony, 
 
 and where 
 there is 
 admitted 
 balance but 
 larger sum is 
 claimed. 
 
 Conditions of 
 the remedy. 
 
 V. Ne Exeat Regno. 
 
 The writ of ne exeat regno was a prerogative writ, 
 issued to prevent a person from leaving the realm. It 
 was originally applied only for political objects and 
 purposes of state, and at present it is exercised for 
 the protection of private rights with much caution and 
 jealousy (^). 
 
 The writ ne exeat regno was, as a rule, only granted in 
 respect of equitable debts, a plaintiff who had a legal claim 
 being left to his legal remedy. But to this rule there 
 were two exceptions. 
 
 First, when alimony had been decreed to a wife the writ 
 was procurable to restrain the husband from evading the 
 obligation by leaving the realm Qi) . The alimony must, 
 however, have been actually decreed, and not appealed 
 from. The writ could not be obtained while the case was 
 still pending {i) . 
 
 Secondly, where there was an admitted balance due 
 from the defendant to plaintiff, but the plaintiff claimed 
 a larger sum, he might be assisted by the writ (k). This 
 case was brought within the purview of equity by its 
 jurisdiction in matters of account. 
 
 With respect to the equitable demands for which the 
 writ might be issued, they were required to be certain as 
 to their nature, and actually and presently payable, not 
 contingent or prospective {I) . It must also have been a 
 pecuniary demand, and not of the nature of damages or 
 
 (gr) Story, 1465-7. 
 
 (/O Read V. R., 1 Ch. Ca. 115; 
 Shaftoe v. ;S'., 7 Ves. 71. 
 
 (t) Ibid.; Dawsnn v. D., 7 
 Ves. 173; Colverson v. Bloom- 
 field, 29 Ch. D. 341; 54 L. J. 
 Ch. 817. 
 
 (Jc) Jones V. Samson, 8 Ves. 
 593; Jones v. Alephsin, 16 Ves. 
 471. 
 
 (0 Anon., 1 At.k. 521: 
 Gaidtier, 3 ift. 500. 
 
 Rice
 
 NE EXEAT REGNO. 811 
 
 any unliquidated claim (m) . It need not, however, have 
 been directly created between the parties; thus the cestui 
 que trust or obligee of a bond was entitled to the writ 
 against the obligor (?z). A cestui que trust who has a 
 vested interest is entitled to the writ as against his trustee, 
 if he has reason to apprehend that he is going abroad (o) ; 
 but the breach of trust must be brought home to the 
 trustee before he is liable to the process (p) . 
 
 Such were the general conditions of the jurisdiction as 
 unaffected by legislation. At present it seems that its 
 scope is completely determined by the following statutes: 
 
 (1.) By the Debtors Act, 1869 (q), which, with certain Debtors Act, 
 exceptions, abolished imprisonment for debt, it was enacted 
 that in future no person should be arrested upon mesne 
 process in any action, but that where the plaintiff in any 
 action in any of the Courts of law at Westminster, in which 
 previously the defendant would have been liable to arrest, 
 proves at any time before final judgment by evidence on 
 oath to the satisfaction of the judge that the plaintiff has 
 good cause of action against the defendant to the amount 
 of £50, and that there is probable cause for believing 
 that the defendant is about to quit England, and that his 
 absence will materially prejudice the j^laintiff in his action, 
 such judge may order the defendant to be arrested and 
 imprisoned for a period not exceeding six months, unless 
 he gives 'the prescribed security, not exceeding the amount 
 claimed in the action, that he will not go out of England 
 without the leave of the Court . 
 
 With respect to this enactment, it has been held that it Effect of the 
 has in effect confined the writ of ne exeat regno to cases ^^^' 
 which come within its provisions (r), the reasoning being 
 that the jurisdiction of Chancery must follow that of law, 
 
 (m) Etches v. Lance, 7 Ves. (jw) See Re Owens, 47 L. T. 
 
 417; Cock V. Ravie, 6 ib. 283. N. S. 61. 
 
 («) Grant v. G., 3 Russ. 598: r \ on n oo \t- j. ac c, 
 
 T 1 T ^ f I \\i a(\K K<i) 32 & 33 Vict. c. 62, s. 6. 
 
 Leake v. L., 1 J. & W. 605. ^^■' ' 
 
 (o) Hawkins v. H., 1 Dr. & (r) Brover v. Beyer, 13 Ch. D. 
 
 Sm. 75. 242.
 
 812 
 
 EEMEDIES ANALOGOUS TO INJUNCTION. 
 
 Jud. ActH. 
 
 Bankruptcy 
 Act, 1883. 
 
 and the power of the Courts of law to arrest for legal 
 idebts being by this statute restricted, the power of the 
 Courts of equity with respect to equitable debts was sub- 
 jected to a corresponding restriction. This argument does 
 not seem to have been resorted to in Sobey v. Sohey (s), 
 in which the writ was issued in the same manner as before 
 the statute (t). 
 
 (2.) Further, by the Judicature Acts, the distinction 
 between legal and equitable debts has disappeared, so that 
 the reasoning applied by the Master of the Rolls in 
 Drover v. Beyer is now much stronger than it would have 
 previously been. It appears from this case, at any rate, 
 that the effect of the Judicature Acts has not been to 
 extend the remedy. 
 
 (3.) It may here be further mentioned, that by the 
 Bankruptcy Act, 1883 (u), power is conferred upon the 
 Court of Bankruptcy to issue a similar writ, under the 
 conditions there prescribed, to prevent a debtor from going 
 abroad after the issue of a bankruptcy notice, or presenta- 
 tion of a bankruptcy petition against him (x) . 
 
 Grounds 
 of the 
 jurisdiction. 
 
 VI. Actions to perpetuate Testimony. 
 
 Circumstances often arise in which public justice re- 
 quires that measures should be taken to perpetuate evidence 
 of a right which cannot be presently protected by judicial 
 decision. For instance, a person may have a claim to a 
 remainder, or he may be in actual possession of the 
 property in question : in neither case can he directly make 
 his right the subject of a judicial decision; and yet his 
 right may be dependent upon evidence which the lapse of 
 
 (s) 15 Eq. 200. 
 
 (<) And see Lees v. Patterson, 
 7 Ch. D. 866. 
 
 (m) 46 & 47 Viet. c. 62, s. 25; 
 
 Hands v. Andrews, (1893) 2 Ch. 
 1; 62 L. J. Ch. 336. 
 
 {x) See Reg. v. Northallerton 
 County Court, (1898) 2 Q. B. 
 680.
 
 ACTIONS TO PERPETUATE TESTIMONY. 813 
 
 time will weaken or perhaps destroy. In such circum- 
 stances it is in the highest degree necessary for him that 
 some measures should be taken to secure or perpetuate 
 this evidence, and so to protect him against some adverse 
 claimant, who may be purposely delaying his suit with a 
 view to profit by the loss of the proofs of title. 
 
 Such cases strongly appealed to that principle of equity 
 which declares that it will not suffer a wrong without a 
 remedy. And yet the exercise of a jurisdiction thus to Objections 
 perpetuate testimony was evidently subject to the strong *^®''®^0' 
 objection that the depositions so taken were not published 
 until after the death of the witnesses. The evidence, there- 
 fore, was not given under the sanction of the legal penalties 
 attached to perjury. In consequence of the danger thus and 
 attending the process, we find that the Courts of equity cautfonlnits 
 were careful only to grant relief of this kind in strong exercise, 
 cases, where a failure of justice would be otherwise 
 seriously threatened {y) . Assistance was refused if by 
 any means open to the plaintiff the whole matter could be 
 at once adjudicated upon {z). If, as in the illustrations 
 above given, this was impossible, equity would exercise the 
 necessary jurisdiction, and take the requisite evidence {a). 
 
 It is immaterial, as regards the exercise of the juris- Applicable to 
 diction, whether the subject-matter in question is real or property ° 
 personal estate, or of the nature of a mere personal 
 demand, or whether the evidence to be used tends to the 
 proof of the plaintiff's title or is needed for defence (6). 
 Equity, however, will do nothing in vain, and it accord- 
 ingly will not interfere to support a right which is liaUe 
 to be immediately barred; for instance, it will not enter- 
 tain an action of this nature by a remainderman against 
 a tenant in tail in possession, who can at any time bar 
 
 (y) Angell v. A., 1 S. & S. 83. («) Spencer v. Prek, 3 Eij. 
 
 (z) EUice V. Roupell, 32 Beav. 415; Re Tayleur, 6 Ch. 416. 
 299. See West v. Sackville, (6) Story, 1509; Suffolk v. 
 
 (1903) 2 Ch. 378; 72 L. J. Ch. Green, 1 Atk. 450; Brooking v. 
 649. Mandslay, 38 Ch. D. 636; 57 L. 
 
 J. Ch. 1001.
 
 814 
 
 REMEDIES ANALOGOUS TO INJUNCTION. 
 
 5 & 6 Viot 
 c. 69. 
 
 Titles and 
 dignities. 
 
 Expectancies, the entail (c) . Formerly, moreover, a mere expectancy, 
 such as that of an heir-at-law, was not deemed sufficient 
 to sustain a bill, though a remote or contingent interest 
 would do so (c). But 5 & 6 Vict. c. 69, provided for this 
 case, and extended the remedy by enacting that any person 
 who would under the circumstances allegGd by him to 
 exist become entitled upon the happening of any future 
 event to any honour, title, dignity or office, or to any 
 estate or interest in any property, real or personal, the 
 right or claim to which could not by him be brought to 
 trial before the happening of such event, should be 
 entitled to file a bill in Chancery, to perpetuate any 
 testimony which might be material for establishing such 
 claim or right. The terms of this enactment, it will be 
 observed, extend the remedy to claims to titles and dig- 
 nities; it was previously confined to cases in which the 
 right to some property was in dispute (d) . 
 
 This statute has since been repealed (e); but by 
 0. XXXVII. rr. 35 — 38, the jurisdiction is continued, 
 and the procedure in suits of this nature is now regulated 
 thereby. Where the validity of a marriage, or legitimacy 
 of a child is in issue, the Court is empowered to entertain 
 a suit for the perpetuation of testimony by the Legitimacy 
 Declaration Act (/) . 
 
 Although actions in the nature of bills to perpetuate 
 testimony have remained unaffected in principle by the 
 Judicature Acts, bills for discovery, on the contrary, 
 which were formerly analogous in many respects thereto, 
 and which formed a conspicuous feature in equitable 
 jurisdiction, have been rendered completely obsolete by 
 the present procedure. It has been, therefore, deemed 
 unnecessary here to discuss them. A study of the Orders 
 
 Bills for 
 
 discovery 
 
 obsolete, 
 
 (c) Dursley v. Fitzhardinge, 6 
 Ves. 261. 
 
 (rf) Townshend Peerage Case, 
 10 CI. & F. 289; and see Camp- 
 
 bell V. E. of Balhousie, L. R. 1 
 H. L. (Sc.) 462. 
 
 (e) 46 & 47 Vict. c. 49. 
 
 (/) 21 & 22 Vict. c. 93; see 
 Re Stoer, 9 P. D. 120.
 
 ACTIONS TO PERPETUATE TESTIMONY. ^15 
 
 under the Judicature Acts, in particular of O. XXXI., 
 in any of the recognised handbooks thereto, will supply 
 ample information as to the present means of attaining 
 the ends formerly sought by bill in Chancery. 
 
 Again, it is now scarcely necessary to do more than and also bills 
 mention the bills to take evidence de bene esse, which once 
 occupied a useful and important place in the auxiliary 
 jurisdiction of equity. The purpose of these bills was to 
 take the testimony of persons resident abroad. They 
 could only be brought while an action was then depending: 
 but they were available as well for a person out of as for 
 one in possession; in both these respects differing from 
 bills to perpetuate testimony (g) . Ample powers of a 
 similar nature were, however, long ago conferred upon the 
 Courts of law (h), and at present such matters fall entirely 
 within the province of Procedure, and consequently beyond 
 the scope of this work (i) . 
 
 (ff) Angell y. A.,l Sim. & St. (i) See 0. XXXVII. rr. 1—5; 
 
 83; Warner v. Mosses, 16 Ch. D. Llanover v. Homfray, 19 Ch. D. 
 
 ^°?i^^^Q o' "^'t??' ^^«o aa 1 224; Bidder v. Bridges, 26 Ch. 
 
 {h) 13 Geo. III. c. 63, 8. 44; 1 ' r^ 
 
 Will. IV. 0. 22, 8. 1. D. 1; 53 L. J. Ch. 479.
 
 INDEX. 
 
 Abatement 
 
 of legacies, 598 
 
 specific performance with, 731 
 
 Absconding Debtor, 
 
 ne exeat regno, 810, 811 
 
 Abstract 
 
 of title, effect of delay in delivering, 724 
 
 Accident, 245 — 251 
 
 annuities reduced by, 251 
 
 apprenticeship, 250 
 
 contracts for personal service, 247, 250 
 
 definition of, 245 
 
 destruction of deeds, &c., 247, 249, 250 
 
 demised premises, 249 
 
 subject-matter of contract, 246 
 equal equity, no relief, 248 
 executor, remedy in case of, 251, 744 
 indemnity in cases of, 249 
 jurisdiction in cases of, 245 
 legal remedy, defect of, 245 
 
 extent of, 246 
 loss of bonds, 247, 249 
 
 deeds, 247, 250 
 
 negotiable instruments, 250 
 
 proof of, 249 
 mistake distinguished, 245 
 negligence, effect of, 248 
 payments by executors, 251, 744 
 positive contracts, 248 
 remedy in equity, 248 ff. 
 
 at law, 245 
 trust property, to, 125, 744 
 vis major, 246 
 warranty, 247 
 
 Account, 
 
 accident, 576 
 
 action in equity, 556—560 
 at law, 556, 557 
 
 s. 52
 
 818 INDEX. 
 
 Account — continued. 
 
 agent and principal, 558 
 
 apportionment, 5/2 — 574; see Apportionment. 
 
 appropriation of payments, 562 ff; see Appropriation of 
 
 Payments. 
 appropriation of securities, 566 ff; see Appropriation op 
 
 ISecurities. 
 claims legal and equitable regarded, 561 
 contribution, 574; see Contribution, Surety. 
 copyright suits, in, 791 
 defences to action for, 575 ff. 
 
 laches, 577 
 
 Limitations, Statute of, 577 
 
 settled account, 575 
 election, in cases of, 504 
 extent of jurisdiction, 558, 559 
 falsify, liberty to, 577 
 fiduciary relations, 558 
 fraud, effect of, 576 
 
 injunction, incident to, 558, 763, 766, 782, 791, 795 
 Judicature Acts, effect of, 559 
 jurisdiction founded on, 558, 559 
 Limitations, Statute of, 577 
 mistake, 576 
 
 mortgagor and mortgagee, 273, 294 fi; see Mortgagee. 
 partnership, of, 650, 651 
 patent suits, in, 782 
 principal and agent, 558 
 procedure, equitable, 557 
 
 legal, 556 
 re-opening, 576 
 set-off, 568 ff; see Set-off. 
 setLled,*575 
 
 solicitor and client, between, 576 
 surcharge, liberty to, 577 
 trade mark suits, in, 795 
 trespass, 766 
 
 trustee and cestui que trust, 115, 142, 143, 147, 576 
 waste, 763; see Waste. i 
 
 Accountant's Lien, 337 
 
 Acknowledgment. See Married Woman. 
 mortgage, of, 277, 278, 310 ff. 
 
 Acquiescence, 
 
 breach of trust by co-trustee, 136 
 
 generally, 145 
 cestui que trust, by, 145 
 constructive trusts, effect in, 106 
 copyright, by owner of, 791 
 creditors, by, in trust deed, 65 
 election, effect in, 505 
 evidence of, 107
 
 INDEX. 819 
 
 Acquiescence — continued, 
 family compromises, 226 
 fraud in, 106, 189 
 improvements in, by mortgagor, 298 
 
 by owner, 211 
 married woman, by, 146, 431, 432 
 patentee, by, 782 
 requisites of, 107, 189 
 
 restraint on anticipation, effect in, 146, 431, 432 
 resulting trust rebutted by, 82 
 specific performance, in actions for, 686 
 trade mark, by owner of, 795 
 trespass, in actions of, 766 
 
 vigilantibus non dormientihus, &c.; see Maxims. 
 ward, by, 471 
 
 Actio in personam, 16, 17 
 
 Actio in rem, 16, 17 
 
 Action to Perpetuate Testimony, 812 ff; see Testimony. 
 
 Acts of Parliament, 
 
 injunction against procuring, 747 
 private and public, distinguished, 223 
 
 Ademption, 
 
 difference in character, 538 
 
 exceptions — legacy for special purpose, 534 
 
 general principle of, 532 ff. 
 
 leaning against double portions, 533 
 
 locus parentis, 533, 534 
 
 meanings attached to the word, 623 
 
 occasional gifts, 537 
 
 portions, 535 
 
 presumplion, how repelled, 535 
 
 fro tanto, 536, 537 
 
 relationship, parental generally essential, 533 
 
 residuary bequest, 537 
 
 specific legacies, of, 617, 623 ff. 
 
 change or removal of subject-matter, 624 
 
 insanity of testator, 625 
 
 Wills Act, effect of, 617 ff. 
 
 Administration of Assets, 578 — 613 
 annuities, 598 
 assets, 598 ff; see Assets. 
 bankruptcy, rule in, 591 
 charge, what amounts to, 597 
 creditors, rights of, 584 ff, 589, 593 
 cum testamento annsxo, 802 
 debts, priority of, 584 if. 
 
 crown, 584 
 
 judgments, 584 
 
 recognizances, 585 
 
 52 (2)
 
 820 INDEX. 
 
 Administration of Assets — continued. 
 debts, priority of — continued. 
 
 secured, 591 
 
 simple contracts, 585 
 
 specialty, 585 
 
 statutes, 585 
 
 voluntary bonds, 585 
 executors, rights and liabilities of, 586 ff. 
 insolvent estates, 590 
 Judicature Act, effect of, 583, 590 
 legacies; see Legacy. 
 married woman's estate, 421, 464 
 marshalling assets, 608; see Marshalling. 
 
 securities, 613; see Marshalling. 
 mortgage debts, 600 ff. 
 
 adoption of debt, 602 
 
 Locke King's Act, 346, 603 ff. 
 Amendment Acts, 606 
 
 personalty, when liable, 520 
 order of, 593 ff. 
 
 appointed property, 599 
 
 charge of debts, 594 
 
 devise, residuary, specific, 598 
 
 exemption, express or implied, 594 ff. 
 
 lands charged, 597 
 descended, 596 
 devised on trust for payment, 596 
 
 legacies, general, specific, 598 
 
 paraphernalia, 599 
 
 personalty first liable, 593 
 partnership, of, 660 
 Public Trustee, by, 154, 155 
 retainer of executor, 586 
 small estates, 155 
 
 Administrator. And see Executor. 
 cum testamento annexo, 802 
 purchase of assets, by, 108 
 
 Advancement, Doctrine of, 
 child, in favour of, 83 
 evidence, rules of, 87 ff. 
 locus parentis, 84 
 rebutting circumstances, 86 
 wife, in favour of, 85 
 
 Advancement of Infant, 
 
 maintenance distinguished from, 484 
 power of, 484 
 
 what fund allowed out of, 485, 486 
 without a power, 485 
 
 Advowson, 
 
 partition of, 667
 
 INDEX. 821 
 
 Agency, 
 
 contract of; specific performance, 698 
 
 Agent, 
 
 account against, 558 
 
 notice to, effect of, 359 
 
 purchase by, 110, 111 
 
 renewal of lease by, 98 
 
 sale by, 110 
 
 secret profit, 111, 169 
 
 trustees may employ, when, 164 
 
 Agreements. See also Contracts. 
 
 against public policy, 204, 206, 389, 390 
 
 buying offices, 208 
 
 champerty, 390 
 
 maintenance, 390 
 
 marriage, respecting, 204, 205 
 
 officers of State, to influence, 208 
 
 pensions, assignment of, 389 
 
 restraint of trade, 206, 796 
 
 testators, to influence, 206 
 
 Alien, 
 
 cestui que trust, 28 
 guardian of, 476 
 trustee, 26 
 
 Alienation. See also Separate Estate. 
 lands, of, restrictions at law, 20 
 married woman, by, 419, 456 
 restraint on, 426 ff . 
 wife's property, of, 448, 449 
 
 A-LLOWANCES 
 
 to co-owner, 100, 101 
 
 to mortgagee, 170, 297, 298 
 
 to trustee, 163, 164 
 
 Ancient Lights, 769 
 
 Annuities, 
 
 accidental reduction of, 251 
 administration, in, 598 
 executor, given to, for trouble, 165 
 lien of vendor for, 344, 351 
 purchase-money, application of, 374 
 valuation of, 598 
 
 Ante-nuptial Agreement, 
 effect of written, 71 
 settlement rectified by, when, 236 
 
 Anticipation, 
 
 restraint on, 426 ff; see Separate Estate.
 
 822 INDKX. 
 
 Apparent Possession, 289 
 
 Application 
 
 of purchase-money, 371 — -'579; see Purchase-Monei. 
 
 Appointment, 
 
 conti'act between appointees, 217 
 defective, 240; see Powers. 
 fraudulent, 212 — 219; see Powers. 
 fund appointed, in administration, 599 
 illusory, 218 
 
 Apportionment 
 Act, 1870... 573 
 
 apprentice, premium of, 250, 572 
 charge, of, 573 
 Crown not bound, 574 
 dividends, 573 
 maintenance, 574 
 rents, 573 
 
 Apprentice, 
 
 premium apportioned, 250, 572 
 
 Appropriation of Payments, 
 creditor's option, 563 
 debtor's option, 562, 563 
 general effect, 566 
 illegal debts, 563 
 'interest, 565 
 presumption of law, 564 
 Eoman law compared, 562 
 statute-barred debt, 563 
 
 Appropriation of Securities, 
 double proof, right of, 567 
 insolvency of drawer and acceptor, 567 
 principle of, 566 
 
 Arbitration, 
 
 agreements to refer; specific performance, 698 
 
 Abbitrator, 
 
 purchase of claim by, 113 
 
 Archway, 
 
 notice of right of way, 358 
 
 specific performance of contract to build, 696 
 
 Arrears, 
 
 pin-money, 432, 433 
 
 settlement out of arrears of income, 441 
 
 Articles, Marriage, 
 
 executory trusts in, 49, 50 
 settlement rectified by, 236, 237
 
 INDEX. H23 
 
 Artisan's Lien, 337 
 
 Assets. And see Administration. 
 definition, 578 
 descent, by, 579 
 
 dibtiuftiou of lej?al and equitable — statutes afi'ectin{i, oSO, 582 
 equitable, 580, 581 
 legal, 579 
 
 marshalling, 608 — 613; see Marshalling. 
 real, 578 
 statutory, 579 
 
 Assignment, 
 
 causes of, to certain Divisions of the High Court, 2, 4 
 
 champerty, 390 
 
 choses in action, 379, 382 
 
 bankruptcy, effect of, 385 
 
 bills of exchange and of lading, 379 
 
 bonds, 379 
 
 charging order, 386 
 
 communication to creditor, 383 
 
 illegal, 389 
 
 intention clear, 383 
 
 Jud. Act, effect of, 388 
 
 laches, 387 
 
 negotiable instruments, 387 
 
 notes, 379 
 
 notice, 383, 384 
 
 pendente lite, 390 
 
 pensions, 389 
 
 policies of assurance, 64, 379 
 
 reputed ownership, 385 
 
 stop order, 386 
 
 subject to equities, 386 
 
 when complete, 383 
 equity of redemption, 274 
 expectancies, 3S0 
 future-acquired property, 380 
 maintenance, 390 
 mortgages, 272, 273, 274 
 non-existent property, 381 
 possibilities, 380 
 
 Attorney. See Solicitor. 
 
 Attornment Clause, 300 
 
 Auction, 
 
 defect of title, 730 
 sale by, Stat, of Frauds, 708 
 specific performance, 708 
 trustees purchase at, 105 
 variation at sale by, 711, 712
 
 S24 iNT>i:x. 
 
 Auctioneer, 
 
 deposit with, by trustee, 126 
 executor, profit by, 168 
 purchase of property by, 110 
 
 Award, 
 
 specific performance of, 699 
 
 Bank, 
 
 deposit by trustees in, 126, 127, 141 
 
 Banker, 
 
 lien of, 338 
 
 Bankrupt, Bankruptcy, 
 
 administration of estate of, 583, 590 — 592 
 
 attornment to take effect on, void, 300 
 
 bill of sale, 285 
 
 consolidation against trustee in, 323 
 
 equitable mortgage, 331 
 
 fraudulent preference, 300 
 
 injunctions by Court of, 742 
 
 partner, of, 645, 646, 657 
 
 reputed ownership, 385 
 
 surety, rights of, in, 403 
 
 trustee bankrupt, 26, 147 
 
 in bankruptcy, purchase from, 105 
 by, 109 
 voluntary settlements, how affected by, 66 
 
 Barrister. See Counsel. 
 
 Benefit Building Societies, 
 
 statutory penalties, relief against, quaere, 260 
 
 Bequest. See Legacy. 
 
 Bill of Exchange, 
 
 appropriation of goods to, 566 
 assignment of, 379, 387 
 injunction against negotiation, 737 
 loss of, remedy, 247, 250 
 
 Bill of Lading, 
 
 assignment of, 379, 387 
 
 Bill of Peace, 808 ff; see Peace, Bill of. 
 
 Bill of Sale 
 
 Acts, 281—290 
 actual possession, 284 
 apparent possession, 284, 289 
 fixtures, 288 
 form of, 287 
 growing crops, 288
 
 INHKX. 825 
 
 BiT>L OF Sale — continued. 
 priority, 286, 287 
 registration, 286 
 reputed ownership, 385 
 
 Bona vacantia, 167, 515 
 
 Bond, 
 
 administration, place in, 585 
 assignment of, generally, 387 
 
 to surety, 410 
 destroyed or lost, I'emedy, 247, 249 
 penalty relieved against, 253 
 tacking, 315, 320 
 
 Boundaries, Settlement of, 
 commission for, 662, 678 
 confusion caused by tenant, 679 
 foreign lands, 17, 678 
 fraud, 679 
 
 jurisdiction to settle, 662, 678 
 
 possession by defendant, plaintiff must prove, 679 
 rent, owner of, relieved, 678 
 soil, ownership of, must be disputed, 678 
 
 Breach of Tuust. And see Trustee. 
 acquiescence in, 106, 136, 146, 148 
 agreements involving, not specifically enforced, 689 
 co-trustee, by, liability for, 128, 135 ff; see Trustee. 
 fraudulent, indictable, 150 
 injunction against, 749 
 Limitations, Statute of, 99, 149, 311, 312 
 married woman, by, 26, 421, 422 
 purchaser party to, 376 
 simple contract debt created by, 585 
 
 Broker's Lien, 338 
 
 Building, 
 
 agreement to build, specific performance, 696 
 covenant to build, forfeiture on breach, 258 
 injunction against, when, 764, 770 
 lateral support to, 772, 773 
 societv. See Benefit B. S. 
 
 Cancellation and Delivery up of Documents, 797 If. 
 deeds, preservation of, 801 
 forged documents, 799 
 fraud, effect of, 800 
 gaming securities, 800 
 illegality, effect of, 798 
 jurisdiction as to, grounds of, 797 
 public policy, 800
 
 826 INDEX. 
 
 Cancellation and Delivery up of Documents — continued. 
 remedy discretionary, 797 
 title, 801 
 
 valid instruments, 801 
 void instruments, 232, 798 
 voidable instruments, 799 
 voluntary instruments, 802 
 
 Catching Bakgains, 185; see Fraud. 
 
 Cestui Que Trust, 
 
 acquiescence by, 82, 106, 148 
 
 following trust fund, 142 ff. 
 
 purchase from. See Trusts, Constructive. 
 
 release by, 148 
 
 remedies against, 163, 164 
 
 of, against trustees, 142 ff. 
 who may be, 27, 28 
 
 Champerty, 390 
 
 Chancery Division, matters assigned to, 18 
 
 Charge, 
 
 apportionment of, 573 
 debts, on realty, 
 
 administration, in, 579, 594, 597 
 
 contrasted with devise on trust for debts, 79 
 
 effect on purchaser, 374 
 
 equitable assets, 579 
 
 sale by executors, 375, 378 
 mortgage debt, 601, 603 
 separate estate, 423 — 424; see Separate Estate. 
 
 Charities, Charitable Trusts, 
 cy-pres, doctrine of, 31, 32 
 defective assurances remedied, 33 
 favoured in equity, 30 
 lapse prevented, 30 
 marshalling not allowed for, 34, 35 
 particular distinguished from general design, 33 
 resulting trusts in gifts to, 78, 79 
 what are charitable objects, 28, 29 
 
 Chattels, 
 
 contracts respecting, 691 — 696; see Specific Performance. 
 
 donatio mortis causa of, 629 
 
 gift of, 56 
 
 married woman's husband's rights respecting, 412 
 
 mortgage of, 282—290; see Bill of Sale. 
 
 pledge of, 282 
 
 trust of, how created, 38 
 
 voluntary settlement of, 64 
 
 Children. See Advancement, Parent and Child, Infant.
 
 INDEX. 82^ 
 
 CnosES IN Action, 
 
 assignment of, 379; see Assignment. 
 
 donatio mortis causa, 629; see Donatio Mortis CAUiSA. 
 
 married woman's husband's rights, 412 
 
 reduction in possession, 442 
 voluntary settlement, 66 
 
 Co-executor, 
 
 distinguished from co-trustee, 138 
 liability of, 136 ff . 
 
 Colonies, 
 
 lands in, suits respecting, 16, 17 
 
 trusts of, 24 
 laws of, 223 
 settlement of boundaries in, 678 
 
 Commission, 
 
 boundaries, 667, 678—680 
 partition, 663, 667 
 
 Committal, 
 
 commands of equity enforced by, 16 
 
 Company, 
 
 chairman, trustee, 170 
 contracts of, 
 
 specific performance of, 707 
 debentures, 290, 699 
 
 directors, 109, 150, 170; and see Directors. 
 fraud; see Fraud. 
 injunctions against acts ultra vires, 748 
 
 in winding-up, 745, 749 
 partnership distinguished from, 637 
 promoters, 109; a/id see Promoters. 
 trespass by, 765 
 winding-up, 290, 745 
 
 Compensation, 
 
 election, in cases of, 494 ff. 
 forfeiture instead of, 258 
 penalties, 258 
 specific performance with, 725, 729 
 
 Composition, 
 
 debts by trustees, 117 
 sureties, with, 402 
 
 rights of, in case of, 402, 403 
 
 Compound Interest, 
 
 when charged against mortgagor, 296 
 trustee, 147, 163 
 
 Compromise, 
 
 debt, of, by executors and trustees, 117 
 family settlements, 226, 227 
 married woman, by, 431, 432
 
 828 INDEX. 
 
 Compulsory Powers, 
 
 conversion under, 512 
 injunction against abuse of, 765, 775 
 purchase-money of leaseholds taken, 101 
 specific performance of agreements, 690 
 
 Concealment, 
 
 active, effect of, 181 
 composition deeds, in, 183 
 family settlements, 183 
 insurance, in, 182 i 
 
 latent defects, of, 182 
 married woman, by, 209 
 siippressio veri, effects, 181 ff. 
 suretyship, in, 183, 395 
 third person, from, 209 If. 
 trustee, by, 103, 148 
 
 Conditional Sale 
 
 compared with mortgage, 270 
 
 Conditions in Eestraint of Marriage, 202 ff; see Marriage. 
 
 Confidential Eelations. See Fiduciary. 
 
 Confirmation, 
 
 breach of trust, 150 
 
 fraudulent transactions, 184, 189 
 
 iiile, of, 212 
 
 Consent, 
 
 marriage of infant, 476 
 married woman, of, 437 ff. 
 
 Consideration of Marriage, 70 
 
 Consolidation, 321 fE; see Mortgage. 
 
 Constructive 
 fraud, 176 
 
 notice, 354 ff; see Notice. 
 trust, 92 ff, 194; see Trust. 
 
 Contempt of Court, 
 
 marriage of ward, 476 
 
 Contingent Interests, 
 assignment of, 379 ff. 
 maintenance of infant out of, 481 
 
 Contract. See Agreement, Settlement. 
 appointees, between, 217, 218 
 a^jprenticeship, of, 250, 572 
 duress, 192 
 fraud, 200 ff, 205; see Praud.
 
 INDEX. S29 
 
 OoNTliACT — cnntinaed. 
 illegal, 201, 206 
 infant, of, 192 
 infirm persons, 191 
 influence testators, to, 201, 206 
 intoxication, effect of, 191, 686 
 lunatic, 191 
 maintenance, 207, 390 
 marriage brokage, 205 
 
 married woman, of, 421, 454, 459; see Married Womax. 
 misrepresentation, effect of, 177 ff. 
 mistake, 220 if; see Mistake. 
 personal chattels, 691 
 personal service, 250, 697 
 public policy, against, 201 ft'. 
 rescission of. See Fraud, Mistake. 
 restraint of marriage, in, 202, 204 
 
 trade in, 206 
 sailors, with, 194 
 
 specific performance, when decreed, 681 ff; see Specific Per- 
 formance. 
 trustee and cestui que trust, purchases, 103 fE; see Trusts, 
 Constructive. 
 
 remuneration of trustee, 165 ff; see Trustee. 
 varying on condition, penalty distinguished, 256 
 
 Contribution, 
 
 charge on lands, 574 
 
 partition, in, 668 
 
 suretyship, in, 393, 405 ff ; see Surety. 
 
 trustees, between, 145 
 
 Conversion, 
 
 bankruptcy in case of, 511, 517 
 bequest of money, effect on, 515 
 character of converted property, 515 
 
 unconverted, 519 ff. 
 Court, by the, effect of, 512, 523 
 covenant to lay out money on land, effect of, 515 
 discretionary power of, 510 
 effects of, 513 ff. 
 failure of purposes of, effect of, 519, 522 
 
 gift over, 520 
 
 partial failure, 519 
 
 total, 519 ff. 
 
 where conversion by Court, 512, 523 
 heir, when excluded, 522 
 how effected, 508 ff. 
 infant's property, 512 
 
 intention of owner, express or implied, 508, 518 
 land into money, effects of, 514 
 lapsed land, descends to heir, 524 
 lunatic's property, 489, 512, 513 
 married woman, by, 513
 
 830 INDEX. 
 
 Conversion — continued. 
 
 money into land, effect of, 513, 524 
 
 mortgages, 511 
 
 optional powers of sale, 509 
 
 partial, 510 
 
 partnership property, of, 653, 654, 655 
 
 power of sale under, 509, 511 
 
 principle of, 507 
 
 purchase under compulsory powei'S, 512 
 
 reconversion, 525 ff; see Eeconversion. 
 
 sale, powers of, under, 509, 511 
 
 under Partition Acts, 513 
 time from which it takes place, 
 
 bankruptcy, in, 517 
 
 compulsory sales, 517 
 
 generally, 516 ff. 
 
 options to purchase, 517 
 
 Conveyances, Voluntary, 55 ff; and see Assignment, Gift, 
 Trust. 
 
 Copyholds, 
 
 partition of, 666 
 trusts of, Statute of Prauds, 38 
 Statute of Uses, 22 
 
 Copyright, 
 
 account in cases of, 795 
 
 acquiescence of plaintiff, 795 
 
 action, when maintainable, 795 
 
 definition of, 784 
 
 discovery in cases of, 791 
 
 dramatic, 785 
 
 infringement generally, 785 
 
 injunction, form of, 790 
 
 lectures in, 783 
 
 limitation, statutory, as to, 788 
 
 literary, 785 
 
 musical, 785 
 
 origin of the right, 783 
 
 piracy, how decided, 785 
 
 prints, 786 
 
 publication defined, 785 
 
 subject of, what may be, 784 
 
 summary remedies, 789 
 
 term of, 788 
 
 Corporation, 
 
 cestui que trust, 28 
 trustee, 25 
 
 Costs, 
 
 lien of solicitor for, 340 
 mortgagor and mortgagee, 301, 314
 
 INDEX. 831 
 
 Costs — continued. 
 
 partition actions, in, 676 
 
 tacking of, 314 
 
 town agent of solicitor trustee, 169 
 
 trustee, of and against, 115, 163, 164, 169 
 
 Co-Trustee. And see Trustee. 
 
 acquiescence of, 136 
 
 contribution from, 145 
 
 fraud of, 136 
 
 indemnity clauses, 138 
 
 liability for, 135 ff. 
 
 mortgage to, 128 
 
 negligence of, 136 
 
 receipts, formal, 138 
 liability for, 138 ff. 
 necessity of transaction, 139 
 signature, 'prima facie effect of, 138 
 trustee and executor, cases of, distinguished, 138 
 
 wife, husband's liability for, 25, 26 
 
 Counsel, 
 
 constructive trust, purchase by, 112 
 
 gift to, 197 
 
 notice to, effect of, 360 
 
 Covenant. See Agreement, Contract, Forfeiture. 
 effect in mortgage, 301, 308, 311 
 not to sue surety, 402, 403 
 
 Creditors, 
 
 acquiescence of, 66 
 
 administration; see Administration, Debts. 
 
 marshalling; see Marshalling. 
 rights of creditors in, 584, 593 
 secured creditors, 591 
 partnership, 
 
 dissolution, rights of, in, 661 
 
 joint and several liability of partners, 644 
 trust deed for, 72 ff. 
 
 claim under, when barred, 74 
 
 communication to creditors, 72 
 
 revocable, when, 72 
 voluntary settlement void against, 64, 69 
 
 acquiescence in, 65 
 
 Crime, 
 
 no injunction against, 776 
 
 Criminal Proceedings, 
 
 no injunction against, 749 
 
 Crown, 
 
 bona vacantia, right to, 167, 515 
 cestui que trust, 28
 
 8;32 iNDKx. 
 
 Crown — continued. 
 
 debts to, place iu adrainisti-atiou, 584 
 jurisdiction as to lunatics, 486 
 trustee, 25 
 
 Curtesy, 
 
 converted money, in, 514 
 
 equity to settlement docs not affect, 439 
 
 separate estate, in, 420 
 
 whether affected by Married Women's Property Act, 458 
 
 Custodian Tbustee, 155, 156 
 
 Custody, 
 
 deeds, of, 801 ; see Equitable Mortgage. 
 infants, of, 467, 474, 475 
 
 Cy-pres, Doctrine of, 
 charitable trusts, 31 
 executory trusts, 55 
 
 Damages, 
 
 inquiry as to, incident to injunction, Cairns' Act, 686, 687 
 patent suits, 782 
 specific performance, in, 687 
 trespass, 766 
 
 De bene esse, 
 bills, 815 
 
 Debtor, 
 
 ne exeat regno, 810 
 
 Debts, 
 
 administration, priority in, 584 ff; see Administration. 
 assignment of, 379 ff; see Assignment, Chose in Action. 
 mortgage, payment of, 600 ff; see Administration, Mort- 
 gage Debts. 
 purchaser, when bound to see to payment of, 372, 373 ff. 
 satisfaction of, 546 ff; see Satisfaction. 
 
 Decree. See Judgment. 
 
 Deed, 
 
 acknowledgment by married woman, 444, 457 
 
 cancellation, 797 ff. 
 
 delivery up, 797 ff. 
 
 deposit of, 327 ft'; see Equitable Mortgage. 
 
 inquiry for, 348 
 
 loss of, remedy, 247, 250 
 
 mistake, execution by, 229 
 
 expression, in, 227, 235 
 
 of law, 224, 227 
 notice of, is notice of contents, 358, 359
 
 INDEX. 833 
 
 Deed — continued. 
 
 possession of, notice, 355 
 rectification of settlements, 236 
 
 voluntary deeds, 238, 802 
 
 wills, 238 
 registration; see Bill of Sale. 
 
 deposit of register certificate, 328 
 
 notice, whether, 362 
 
 Defective 
 
 conveyances to charities, 33 
 execution, 241 ff; see Powers. 
 
 Delay. See Acquiescence. 
 
 Delivery, 
 
 donatio mortis causa, 629 
 
 gift of chattels, 56 
 
 specific delivery of chattels, specific perfornrance, 691 ti. 
 
 deeds, specific performance, 694 
 up of instruments, 797 ff; see Cancellation. 
 
 pirated copies, 791 
 
 Demonstrative Legacy, 626; see Legacy. 
 
 Deposit of Deeds, 327. See Equitable Mortgage. 
 
 Devastavit 
 
 by married woman, 25 
 
 Devise. See Administration, Purchase-Money. 
 
 Directors. And see Company. 
 injunction against, 748 
 liability of, 
 
 trustees, as, 109, 171 
 Limitations, Statute of, 110, 149 
 profits beyond salary not allowed to, 170 
 purchase of shares by, 109, 110 
 " ultra vires," acts of, 748 
 
 Discovery, 
 
 copyright actions, in, 791 
 
 special jurisdiction as to, abolished, 4, 814 
 
 Dissolution of Partnership, 656 ff; see Partnership. 
 
 Distress, 
 
 mortgage, attornment, 300 
 
 Distringas, 
 
 proceedings in lieu of, 386 
 
 Dividends, 
 
 apportionment of, 573 
 
 s. 53
 
 834 INDEX. 
 
 Donatio Inter Vivos. »See Gift. 
 
 Donatio Mortis Causa, 
 
 administration, place in, 633, 634 
 
 cheque, 631 
 
 conditions of, 629 
 
 definition, 628 
 
 delivery necessary, 629, 630 
 
 imperfect, creates no trust, 632 
 
 legacy compared with, 628, 633 
 
 Eoman law compared, 629 
 
 trust created by, 631 
 
 what may be subject of, 630 
 
 Wills Act, 632 
 
 DOVSTER, 
 
 election as to, 501 
 
 money converted into land, out of, 513 
 
 partition by dowress, 666 
 
 Dramatic Copyright, 785 
 
 Drunkenness. And see Intoxication. 
 contracts, effect on, 191 
 custody of infants, 468 
 specific performance, effect on, 686 
 
 Duress, 
 
 contracts made under, 192 
 gifts made under, 200 
 
 Duty, 
 
 donatio mortis causa, 634 
 legacy, land converted, 514 
 probate, land converted, 514 
 succession, money converted, 514 
 trustee, of. See Trustee. 
 
 Easement, 
 
 light and air, 769, 770 _ 
 
 support of land and buildings, 772 
 
 water rights, 773 
 
 Ecclesiastical Law 
 
 as to legacies, 202, 628 
 
 Education 
 
 of infant, 474, 475, 479 ff. 
 
 Ejectment, 
 
 mortgagee, by, 291, 299 
 
 Election • 
 
 account may be required, 504 
 acquiescence, 505
 
 INDEX. 835 
 
 Election — continued. 
 
 appointments under powers, 496, 499, 500 
 
 bequests, beneficial and onerous, 498 
 
 claims arising in one instrument, 497 
 
 compensation not forfeiture, 494 
 
 conditions of, generally, 495 
 
 debts, not applicable to, 499 
 
 definition of, 491 
 
 derivative interests, 503 
 
 devise to co-owner, 504 
 
 dower, as to, 501 
 
 effects, generally, 506 
 
 evidence of intention, 495, 496, 501 
 
 forfeiture, not incurred, 494 
 
 general principle, 492 
 
 heir, by, 502 
 
 how effected, 504 
 
 imperfect wills, 502 
 
 implied, 505 
 
 infants, by, 504 
 
 married women, by, 430, 505, 506 
 
 partial interests, 503 
 
 penalties, as to, not allowed, 260 
 
 perpetuities, rule against, 501 
 
 powers, under, 496, 499 
 
 qualified election, 503 
 
 re-convert, to, 525 ff; see Eeconversion. 
 
 remaindermen not bound, 506 
 
 Eoman law, doctrine compared, 493 
 
 surplus restored to donee, 494 
 
 time limited for, 505 
 
 Wills Act, effect of, 502 
 
 Equitable 
 
 assets, 580 ff. 
 
 assignment. Bee Assignment. 
 
 jurisdiction. See Jurisdiction. 
 
 lien. See Lien. 
 
 mortgage. See Equitable Mortgage. 
 
 Equitable Mortgage, 
 
 agreement for mortgage, 325 
 
 Bankruptcy Act, effect of, 331, 335 
 
 charge, by, 325 
 
 classification, 325, 326 
 
 Conveyancing Acts, 1881 and 1882, effect of, 330, 334, 335 
 
 covenant, by, 326 
 
 deposit of deeds, by, 
 
 after-acquired property, 331 
 
 against whom effective, 332 
 
 agreement for lease, 327 
 
 bankruptcy of depositor, 331, 332, 335 
 
 certificate of registry, 328 
 shares, 327 
 
 53 (2)
 
 836 INDEX. 
 
 Equitable Mortgage — continued. 
 deposit of deeds, by — continued. 
 
 copyholds; Court rolls, 327 
 
 covenants in leases, 334 
 
 creation of charge generally, 327 
 
 Crown, against, 332 
 
 debts secured by, 331, 332 
 
 evidence of agreement, 327, 329, 333 
 
 extension of security, 333 
 
 fixtures, how affected, 331 
 
 interest, 331, 332 
 1 judgment creditor, 332 
 
 leases, 327, 334 
 
 memorandum, effect of, 330 
 
 negligence of depositee, 333 
 
 parol evidence, 330, 332 
 
 partial deposit, 327 
 
 policy of insurance, 327 
 
 priority of incumbrances, 327, 332, 347 
 
 property affected by, 330 
 
 receipt for purchase-money, 328 
 
 register of ship, 327 
 
 registry lands, 328 
 
 subject to equities, 332 
 
 trustee in bankruptcy, against, 331, 332 
 
 volunteer, against, 333 
 
 with different creditors, 328 
 
 with third person, 328 
 equity of redemption, 326, 334 
 foreclosure of, 334 
 mandate, by, 326 
 receiver, 335 
 
 remedies applicable, 334 ff. 
 sale, 335 
 
 Equity, 
 
 definition of, 8 
 
 distinguished from law, 4, 8 — 10 
 
 jurisdiction. See Jurisdiction. 
 
 maxims of. See Maxims. 
 
 meaning of, 7, 8 
 
 to a settlement, 435 ff; see Married Woman. 
 
 Evidence, 
 
 accident, of, in equity, 235, 249 
 
 contribution between sureties, excluding, 407 
 
 de bene esse, 815 
 
 equitable mortgage by deposit, 
 
 agreement, 327 
 
 excluded by, 329 
 
 security extended to subsequent advances, 332, 333 
 future creditors, 333 
 fraud, of, in equity, 178, 234
 
 INDEX. 837 
 
 Evidence — continued. 
 
 joint purchase, intontion to hold severally, 91 
 
 legacies, repetition of, as to, 544 
 
 meaning of general words, as to, 235 
 
 mistake of, in equity, 235 
 
 mortgage, to prove tranisaction to be, 270 
 
 perpetuate testimony, actions to, 812 if. 
 
 presumption of advancement, 
 
 rebutted by parol, when, 87, 88 
 resulting trusts rebutted by parol, 80 ff. 
 
 express trust proved, 81 
 
 intention of advancement, 82 
 
 trust rebutted by parol, as to payment of purchase-money, 
 80 
 satisfaction of debts, presumption as to, 538, 539, 541 
 
 legacies by legacies, 541, 545 
 
 portions, presumption rebutted, 542 
 secret trusts, as to, 40 
 specific legacy, as to, 624 
 specific performance, 
 
 parol variations, when admitted, 710 ff. 
 when not so, 713 
 
 waiver of contract, 714 
 Statute of Frauds, required by, 37, 701, 710 
 undue influence, of, 199, 200 
 will, to construe, 541 
 
 Executed and Executory Trusts, 46 ff. Bee Trusts. 
 
 Execution, Defective. (See Powers. 
 
 Executor. And see Administration, Trust, Trustee. 
 accident, protected against loss by, 251, 744 
 annuity for trouble, when ceases, 165 
 assent to legacies x'equired, 802 
 auctioneer, profit by, 166 
 charitable trust, lapse prevented, 30 
 compounding debts, 117 
 custody of trust property, 125 ff. 
 donatio mortis caitsd, no assent needed, 633 
 duties of, 
 
 collection of debts, 116, 117 
 money in trade, 116 
 
 converting perishable property, 118 ff. 
 reversionary property, 118 ff. 
 injunctions against, 749 
 
 protecting, 251, 744 
 interest payable by, 147 
 investments, 129 ff; see Investment. 
 liability for co-executor, 136 — 138 ' • 
 
 to creditors, 593 
 mortgage by, of trust property, 368 
 mortgage debt vests in, 272
 
 838 JNDEX. 
 
 Executor — continued. 
 
 payments to. See Purchaser. 
 power of sale, 372, 373, 378 
 preference, power of, 586 
 protection from liability, 589 
 purchase of trust property, 109 
 receipts, power to give, 372 
 release of debts by, 117 
 relief quia timet against, 506 
 remuneration of, 168 ff. 
 renewal of leases by, 95 
 retainer, 586 
 tacking against, 316 
 
 by, 317 
 trustees contrasted, 138 
 trustees of residue, 168 
 
 Exoneration 
 
 of mortgaged estate, 605 ff. 
 
 of personalty, 601, 602, 603; see Administration, Mortgage 
 Debt. 
 
 Expectancy, 
 
 assignment of, 380 
 
 Express Trusts. .See Trusts. 
 
 Eactor's Lien, 339 
 
 Ealsifying and Surcharging, 577 
 
 Family Arrangement 
 
 favoured in equity, 190, 226 
 fraud in, 183, 190, 226 
 mistake in, 227 
 mortgage by way of, 271 
 specific performance of, 708 
 
 Feme Covert. See Married Woman. 
 
 FlDEI COMMISSA, 
 
 trusts comparejl with, 19 
 
 Fiduciary Eelations, 
 
 contracts between persons in, 113 
 gifts between persons in, 199 
 
 Fixtures, 
 
 equitable mortgage of, 331 
 in bill of sale, 289 
 
 Foreclosure, 301 ff, 335; see Mortgage, Equitable Mortgagb.
 
 INDEX. 889 
 
 Foreign 
 
 infant, guardian of, 476 
 
 lands, jurisdiction respecting, 17 
 
 partition not applied, 667 
 
 trusts of, 24 
 law, mistakes of, 224 
 suite, injunction against, 742 
 
 Forfeiture, Eelief against, 252 ff. 
 accidental, 258 
 bonds, 253 
 compensation, 258 
 Conveyancing Acts, effect of, 262 
 covenant to build, 258 
 
 insure, 255 
 
 pay rent, 255 
 
 repair, 258 
 deposit of, on sale, 259 
 interest on mortgage, 254 
 lease, 255, 262 
 liquidated damages, 261 
 mortgaged estate, 255, 265 
 shares of, for non-payment of calls, 259 
 surprise, effect of, 258 
 
 Fraud, 
 
 acquiescence in, 189 
 
 actual, 177 ff. 
 
 administration of justice, 208 
 
 boundaries, as to, 679 
 
 catching bargains, 185 
 
 classification, 175 ff. 
 
 concealment, 181, 210; and see Concealment. 
 
 active, 181, 209 
 
 composition deeds, 183 
 
 deception of third person, 208 ff. 
 
 defects, patent and latent, 182 
 
 family settlements, 183 
 
 insurance, 182 
 
 suretyship, 183, 395 
 confirmation of, 189 
 constructive, 176 
 contracts. See Contracts. 
 definition of, 173 
 drunken persons, 191 
 duress, 192, 206 
 equitable jurisdiction, 173, 174 
 family compromises, 183, 190 
 fiduciary relations, 194, 198 
 forfeiture, defence against, 258 
 gifts. See Gifts. 
 husband and wife, 199, 206 
 implied, 225 
 inadequate consideration, 185
 
 840 INDEX. 
 
 Fraud — con tinned . 
 
 incumbrances, denying, 210 
 infant, of, 192, 193 
 infirm persons, 191 
 
 legal and equitable, distinguished, 172, 173 
 marital rights, 450 ff; see Marital Rights. 
 marriage, 202 ff; see Marriage. 
 
 married woman, of, 211, 421, 444; see Married Woman. 
 misrepresentation, 178 ff, 221; see Misrepresentation. 
 mistake of law, in, 221 ff. 
 negligence, 179 
 parents, on, 205, 707 
 partnership induced by, 659, 660 
 post-obits, 188 
 
 powers on, 212 ff; see Powers. 
 pretence of trading, 188 
 public policy, 201 ff; see Contracts. 
 ratification, 184 
 
 release of equity of redemption obtained by, 271 
 restraint of marriage, 202 ff . 
 trade, 206, 796 
 resulting trusts, as to, 88 
 reversions, sale of, 186 ff. 
 sailors, 194 
 suggestio falsi, 178 
 suppressio veri, 181 
 testators, influencing, 206 
 third persons, fraud on, 208 ff. 
 trustee, by, 103, 197 
 undue influence, 199 ff; see Undue Influence. 
 
 Frauds, St.\tute of, 
 
 creation of trusts (ss. 7 — 9), 37, 38 
 equitable mortgage, 326 
 
 specific performance, defence, 701 ff; see Specific Perform- 
 ance. 
 voluntary trusts, 60, 61 
 
 Fraudulent Tru.sts and Gifts. Hee Trusts, Gifts. 
 
 Funds in Court, 
 
 lien on, when, 340 
 right to, declai'ed, 368 
 stop order, 386 
 
 Funds Recovered, 
 lien, 340 
 
 Funeral Expenses 
 
 charged on realty, effect of, 594 
 
 Gambling Securities, 800
 
 INDEX. 841 
 
 Gifts Inter Vivos, 
 chattels, of, 56 
 fraudulent, 195 ff. 
 husband to wife, 56, 417, 418 
 intended gifts, 57 
 
 do not create trusts, 57 
 lands, of, 56 
 
 promise, not enforceable, 57 
 securities, of, 56 
 undue influence; see. Undue Influence. 
 
 effect of, 195 ff. 
 
 evidence of, 199 
 
 presumption of, 195 
 
 wills, as to, 201 
 wife to husband, 199, 419 
 
 Goodwill, 
 
 contract by vendor, 795 
 injunction, 
 
 protected by, 795 
 sale of, specific performance, 695 
 trade name, fraudulent use of, 795 
 trade secrets, 796 
 
 Guarantee, 404 
 
 Guardian, Guardianship, 
 
 accounts of, 471 
 
 appointment by Court, 473 
 stranger, 472 
 will, 469 
 
 contracts between guardian and ward, 113 
 
 custody of children, 467, 468 
 
 father, guardianship of, 466 
 
 interfered with, when, 467, 468 
 statutory powers respecting, 466 — 469 
 superintendence by Court, 467 
 wishes followed, 471, 472, 474 
 
 foreign ward, of, 476 
 
 gifts of ward to guardian, 197 
 
 jurisdiction as to, 465, 475 
 
 Limitations, Stat, of, 471 
 
 married woman not appointed alone, 474 
 
 mother, 469 
 
 natural, 466, 469 
 
 obsolete forms, 466 
 
 religion of infant, 467, 475 
 
 removal of guai'dian, 467, 471 
 
 security required, 477 
 
 statutes affecting, 466 — 469 
 
 supervision by Court, 467, 471, 473 
 
 survivorship of office, 470, 471, 474 
 
 testamentary, 469 
 
 appointment of, 470 
 bankruptcy, 472
 
 842 INDEX. 
 
 Guardian, Guardianship — continued. 
 testamentary — continued. 
 
 disclaimer, 471 
 
 powers of, 471 
 
 superintendence by Court, 471 
 
 survivorship', 470, 471 
 
 trustee, 471 
 waiver of father's rights, 472 
 wards, marriage of, 471, 476 
 
 removal of, out of jurisdiction, 475 
 
 settlement by, 477, 478 
 
 Heir, 
 
 administration, place in, 596 
 
 construction of word, in executory trusts, 53 
 
 contesting will, 805 
 
 conversion, rights in, 513 — 516; see Conversion. 
 
 devise to, election, 502 
 
 marshalling by, 610 
 
 mortgage, 
 
 reconveyance by, 271, 272 
 
 redemption by, 274 
 
 tacking against, 315 
 
 Heirloom, 
 
 delivery of, specific performance, 694 
 executory trust of chattels, 54 
 
 Highway, 
 
 nuisance to, injunction, 775, 800 
 
 Houses, 
 
 lateral support, 772 
 
 nuisances to, 769; see Light, Air, &c. 
 
 Husband and Wife. See Married Woman. 
 advancement of wife, 84 
 agreements and contracts between, 462 
 assignment of wife's property, 412, 420, 449 
 conditions tending to separate, 205 
 contract between, 462 
 custody of children, 466 ff; see Infant. 
 debts, ante-nuptial, 463 
 devastavit of wife, 421, 459 
 equity to settlement, 435 ff. 
 fraud on marital rights, 450 ff. 
 gifts between, 417, 418 
 intestate succession, 458 
 judicial separation, 453 
 life assurances, 463 
 loan to husband, 420, 462 
 maintenance, 484 
 mortgages of wife's property, 280 
 presumption of advancement, when, 84, 85
 
 INDEX. 84o 
 
 Husband and Wife — continued. 
 
 receipt of wife's property by husband, 420 
 
 reduction of wife's property into possession, 442, 447 ff. 
 
 restraint of marriage, 202 fE. 
 
 seduction before marriage, 452 
 
 separate estate of wife, 415 ff. 
 
 statutory separate estate, 453 ff. 
 
 suit by, 448 
 
 Illegal Contracts. See Contracts. 
 
 Immoral 
 
 books, no copyright in, 789 
 conduct in guardian, 468 
 
 transactions, specific performance not decreed, 683, 685; and 
 see Contracts. 
 
 Impeachment of Waste. See Waste. 
 
 Implied Trusts, 36, 76 if; see Trusts. 
 
 Improvements, 
 
 allowance for, 100, 115, 298 
 
 lien for, by constructive trustee, 100 
 
 mistake as to property, 210 
 
 mortgagee's accounts, when allowed in, 298 
 
 Income, 
 
 apportionment of, 572 
 maintenance out of, 479 fE. 
 
 Incumbrances, 
 denying, 210 
 
 notice, 355, 356; see Notice. 
 
 priority of, 312 ff, 332, 361 ff; and see Tacking, Purchase 
 for Value. 
 
 Indemnity 
 
 between co-trustees, 140, 141 
 trustee's right to, 100 
 
 Infants. See also Guardian, Parent and Child. 
 accounts of guardian, 471 
 advancement, doctrine of, 83 ff; see Advancement. 
 
 payments for, 484 ff; see Advancement. 
 apprenticeship, 250, 572 
 contracts, of, 192, 193 
 conversion of property of, 512, 523 
 custody of, 466, 469, 474, 475 
 day to show cause, 302 
 education of, 474, 479 ff. 
 election by, 504 
 foreclosure against, 302
 
 844 INDKX. 
 
 Infants — continued. 
 
 foreign, guardian of, 476 
 fraud of, 193 
 gifts by, 196 
 
 guardian, 465 ft'; see Guardian. 
 illegitimato, guardian of, 469 
 joint tenant, renewal of lease, 97 
 maintenance, 479 ff; see Maintenance. 
 marriage of, 476, 477 
 mother, right of, 469 
 reconversion, 525, 526 
 religion, 467, 475 
 I'emoval from father's care, 467 
 of ward of Court, 477, 750 
 settlement on marriage, 477 
 trustee, 26 
 ward of Court, 473 ff; see Ward of Oourt. 
 
 Information, 
 
 public nuisance, by Att.-Gen. against, 767 
 public trespass, 765 
 
 Injunction, 
 
 account incident to, generally, 558, 763 
 
 copyright actions, 791 
 
 patent actions, 782 
 
 trade-mark actions, 795 
 
 trespass actions, 754, 766 
 
 waste actions, 763 
 acquiescence, bar to, 766, 782, 791 
 actions at law, against, 739 ff. 
 
 C. L. P. Act, 1854... 740 
 
 Judicature Act, 740 
 Acts of Parliament, applications for, 747 
 administrators protected, 744 
 air, 771 
 
 ancient lights, 769 
 arbitration cases, 745 
 Bankruptcy, by Court of, 742 
 bills of exchange, negotiation of, 737 
 bills of peace, 808 ff. 
 boycotting, against, 777 
 breach of trust restrained, 746, 749, 750 
 buildings, lateral support of, 772 
 classification of, 737 
 company, against, 748, 765 
 conspiracy, 777 
 
 copyright protected, 783 ff; see Copyright. 
 creditors protected by, 744 
 crimes not restrained by, 776 
 criminal proceedings, 749 
 damages, inquiry as to, 687 
 definition of, 735 
 directors, 748, 752
 
 INDEX. «45 
 
 Injunction — continued. 
 
 dividends, payment of, 752 
 
 enforced, how, 736 
 
 equitable defences asserted by, 746 
 
 equitable estates and interests protected, 749 ff. 
 
 executors protected by, 744 
 
 foreign Courts, suits in, 746, 747 
 
 land, as to, 17 
 general principles of, 734 
 goodwill, 795 
 
 inconvenience, not rcstraiiiable by, 753, 754 
 interlocutoi'y, 735 
 
 Judicature Act, 1873... 741, 753, 768 
 land, rights in, protection of, 754 ff. 
 legal rights protected, when, 738, 751, 754 
 libel, when restrained by, 776 
 liens protected, 750 
 light, 769 
 
 local Courts, proceedings in, 742 
 Lord Mayor's Court, proceedings in, 742 
 mandatory, 736 
 
 marital rights, protected by, 706, 707 
 marriage of wards of Court, against, 476, 737, 750 
 mining, improvident, 756 
 multiplicity of actions restrained, 746, 808 
 navigable rivers protected, 774, 775 
 negative contracts enforced by, 699, 734 
 noises, 772 
 
 nuisances, 766 ff; see Nuisances. 
 officers of Courts of equity protected, 748 
 origin of the jurisdiction, 736 
 partnership, cases in, 649 
 patent cases, in, 777; see Patents. 
 permissive waste, 759 
 perpetual, 735, 809 
 
 quia timet, actions, 768, 805 ff; see Quia Timet Action. 
 receiver, 806 
 
 remedy at law must be insufficient, 752 
 removal of wards of Court, 475, 737, 750 
 rights established at law, 809 
 slander, when restrained, 776 
 specific performance compared with, 734 
 stay of proceedings, 740 ff. 
 threats, restrained by, 783 
 
 trade-marks protected, 791; see Tradk-marks. 
 trade secrets, 796 
 trespass, 764 ff; see Trespass. 
 trust estates protected, 744, 746, 749 
 trustee, against, 746 
 vexatious actions, 746 
 waste, 293, 754 ff; see Waste. 
 watercourses protected, 774 
 
 rights protected, 774 
 winding-up company, in, 745
 
 84(i INDEX. 
 
 Innkeeper's Lien. 338 
 
 Insurance, 
 
 assignment of policies, 61, 64, 380 
 concealment in, 182 
 mortgagee, by, 299 
 
 Interest, 
 
 breach of trust, payable on, 147 
 legacies, on, 626—628 
 mortgage debt, on, 
 
 compound, wben charged, 296 
 
 relief against, 254 
 
 tacking of, 314, 315 
 purchase-money, unpaid, on, 726 
 
 Intestacy 
 
 between husband and wife, 458 
 
 Intoxication, 
 
 contracts, how affected by, 191 
 
 specific performance, in action for, when a defence, 686 
 
 Invention. See Patent. 
 
 Investment 
 
 of trust property, 
 
 agents, employment of, 125 
 
 brokers, 126 
 
 solicitors, 126 
 cestui que trusts, just to, 135 
 colonial stock, 134 
 contributory mortgages, 132 
 debenture stock, 130 
 East India stock, 133 
 general rule as to, 125 
 leasehold, 130 
 
 loan to co-trustee, 129, 132 
 mortgage, amount lent, 131 
 
 second, 123, 131 
 personal security, 129 
 protection of trustees, 127 
 prudence necessary, 128, 132 
 real security, 130 ff. 
 retaining security, 123 
 solicitor's negligence, 127 
 statutory powers of, 133 ff. 
 trust fund, following, 142 
 trustees, remedies against, 142 ff. 
 
 Ireland, 
 
 Registration Act in, 362
 
 INDEX. 847 
 
 Joint 
 
 mortgages, 90 
 
 tenancy, leaning against, in equity, 89 
 
 tenants, 89, 97 
 
 lien for improvements, 100 
 
 partition sought by, 664 
 
 partners, when, 652 
 
 purchases by resulting trust, 89, 90 
 
 renewal of lease by, 97 
 
 Jointress, 
 
 right to redeem mortgage, 275 
 
 Judgment 
 
 creditor, tacking by, 317 
 debt, 
 
 administration, place in, 584 
 
 tacking of, 315, 320 
 decree equivalent to, 584 
 
 Judicature Acts. See Table of Statutes. 
 
 Judicial Trustee, 27, 153 
 
 Jurisdiction. And see passim. 
 auxiliary, 3 
 concurrent, 2 — 5 
 
 distinctive procedure, where based upon, 5, 558, 559 
 exclusive, 2 
 
 foreign Courts, actions in, 741, 746 
 general basis of equitable, 5 
 land, 16, 17 
 
 Jurisprudence, 
 
 practical limitations of, 9, 10 
 lloman, 9 
 
 Jus Naturale, 9 
 
 Laches. See Acquiescence; Negligence. 
 Land. See Assets, Conversion, Investment. 
 
 Law, 
 
 mistake of; see Mistake. 
 
 Lease, Leasing, 
 
 agreement for, specific performance, 690 
 
 bequest of, 622 
 
 breach of covenants in, relief, 255, 256, 258, 261 
 
 forfeiture, 256, 263 
 
 mortgagee, by, 291, 292 
 
 mortgagor, by, 291, 292 
 
 notice of, 356, 358
 
 848 iNDtx. 
 
 Lease, Leasing — continued. 
 
 powers of, defective execution, 241 
 reinewal of, by adininistrators, 95 
 
 agents, 98 
 
 executors, 95 
 
 joint tenants, 97 
 
 mortgagee and mortgagor, 98 
 
 partner, 97 
 
 tenant at will, 95 
 
 tenant for life, 95 
 
 trustee, 93, 95, 103 
 
 when impossible, accumulations, 102 
 
 LEASEHOLDS, 
 
 investments in, 130 
 
 married women, of, 414, 440 
 
 mortgages of, 283, 296 
 
 partition of, 667 
 
 renewable, purchase of, constructive trust, 93, 102 
 
 sale of, by executor, 372 
 
 settlement of, 68, 69 
 
 trusts of (Statute of Prauds), 38 
 
 uses (Statute of Uses), 22 
 
 Lectuees, 
 
 copyright in, 785 
 
 Legacy, 
 
 abatement, 598 
 
 ademption by portion, 532 ff; see Ademption. 
 
 of sjjecific legacy, 623; see Ademption. 
 annuities treated as, in administration, 374, 598 
 attempt to separate husband and wife by means of, 206 
 charge of legacies, purchaser's liability, 374 
 charitable, favoured, how far, 29 — 32 
 classification of, 615, 616 
 debt of, 621 
 
 satisfaction of debt by, 545; see Satisfaction. 
 demonstrative, characteristics of, 625, 626 
 
 defined, 616 
 
 interest on, 628 
 
 sum charged on real estate, 622 
 
 time of payment, 628 
 donatio mortis causa compared, 633, 634 
 duty, converted land, 514 
 ecclesiastical law as to, 202, 610, 628 
 executor's assent required, 802 
 general, defined, 615 
 
 place in administration, 598 
 interest, rate of, 628 
 
 time of commencing, 626 — 628 
 maintenance out of, 482; see Maintenance. 
 marshalling for, 609, 610; see Marshalling. 
 "my stock" or "shares," &c., 619, 621.
 
 INDEX, 849 
 
 Legacy- — continued. 
 
 perishable property, enjoyment in specie, 118 ff. 
 repetition of, 542 ff; see Satisfaction. 
 residuary distinguished from specific, 598, 617, 618 
 reversions, when to be converted, 118 ff. 
 specific, 
 
 ademption of, 623; see Ademption. 
 
 administration, place in, 598 
 
 articles of value, 619 
 
 characteristics of, 622 
 
 chattels real, of, 622 
 
 debts, of, 621 
 
 defined, 616 
 
 devise, residuary, 598 
 
 form, change of, 624 
 
 general legacies distinguished, 616, 626 
 
 money, of, 620 
 
 non-existence of subject-matter, 623 
 
 rent, of, 622 
 
 residuary distinguished, 617 — 620 
 
 stock, of, 621 
 
 Wills Act, effect of, 617 
 things qitce usii consumtintur, 619 
 time of payment, 626 ff. 
 vesting of,' 610, 626 
 
 Lessee 
 
 a purchaser, 68; and see Lease. 
 
 Lex Situs, 17 
 
 Libel, 
 
 injunction against, wheii, 776 
 
 Lien, 
 
 abandonment of, 342, 349, 350 
 
 accountant's, 337 
 
 artisan's, 337 
 
 banker's, 338 
 
 barred, when, 345, 346 
 
 definition of, 337 
 
 equitable, gcnorallv, 337, 342 ff. 
 
 factor's, 339 
 
 general, 339 
 
 improvements by joint tenants, 100 
 
 injunction, protected by, 750 
 
 innkeeper's, 338 
 
 law, at, 337 
 
 marshalling, 351 
 
 negligence, lost by, 346, 347 
 
 partner's, 338 
 
 shipowner's, 338 
 
 solicitor's, 339 — 342; see Solicitors. 
 
 s. 54
 
 850 INDEX. 
 
 Lien — continued. 
 specific, 337 
 trustee's, 100, 164 
 vendee's, 351, 352 
 vendor's, 343 ff; sre Vendor. 
 waiver of, 349, 350 
 wharfinger's, 339 
 whom it binds, 346 
 
 Light and Air, 769, 770 
 
 Limitations, Statutes of, 
 absence beyond seas, 277 
 account, action for, 577 
 acknowledgment, mortgagee, by, 277, 278 
 
 mortgagor, by, 278 
 appropriation of payments, 565 
 covenants, 308 ff. 
 disability, 277 
 foreclosure suits, 308 
 
 mortgage, 277, 308; .see FoRECLOsruE, Redemption. 
 redemption, 278 
 trust, constructive, 99 
 
 express, 99, 149, 311 
 
 Lis Pendens, notice, 363, 390 
 
 Locke King's Act, 603. See Administration, Mortgage Debt, 
 Table of Statutes. 
 
 Lord Mayor's Court, 
 injunction, 742 
 
 Lunacy and Lunatic, 
 conti'acts with, 191 
 
 conversion of property, 488, 511, 512, 526 
 jurisdiction as to, 486 ff. 
 
 purely administrative, 488 
 partnership, effect on, 658 
 reconversion, 525, 526 
 unsoundness of mind — uncertified — effect of, 488 
 
 Maintenance, 
 
 assignment savouring of, 390 
 
 infants, of, 479 ff. And see Advancement. 
 
 advancement distinguished from, 484 
 
 past and future distinguished, 484 
 
 powers of, 480 
 ' statutory powers, 480, 481 
 
 what fund payable out of, 479 ff. 
 
 when decreed, 483 
 
 widow allowed, 483
 
 INDEX. 851 
 
 1£andamtjs, 753 
 
 Mansion-house, 
 
 destruction of, 758 
 ornamental timber, 759 
 
 Marital Eights, 
 
 fraud on, 450 ff. 
 
 general principle, 450 
 knowledge of husband, 452 
 limits of principle, 452 
 obsolete, how far, 450 
 seduction, effect of, 452 
 valuable consideration, 451, 452 
 injunction protecting, 707 
 
 Marriage, 
 
 agreements to marry, 204 
 articles, executory trusts in, 48 
 brokage contracts, 205 
 conditions in restraint of, 202 ff. 
 consideration of, 70 
 contracts in restraint of, 204 
 fraud on parents, 205, 707 
 settlements, in fraud of, 450 ff, 
 
 rectification of, 236 ff. 
 
 rights of creditors against, 70 
 specific performance of representations respecting, 707 
 wards of Court, of, 476, 750 
 
 Married Woman. And see Husband and Wife. 
 acknowledgment, 443, 444, 456 
 acquiescence, 148, 431, 432 
 administration, 425 
 adultery bars equity to settlement, 444 
 advancement, presumption of, 84 
 alienation of property, 419, 442, 443, 456 
 bankruptcy, 460 
 breach of trust by, 26, 421, 422 
 
 concurrence in, 148 
 cestui que trust, 27 
 chattels of, husband's right to, 412 
 choses in action, rights in, 412, 439, 448, 449 
 
 reduction into possession of, 413, 447 ff. 
 compromise by, 431, 432 
 consent, 441 
 contracts of, bind separate estate, 422 ff. 
 
 ante-nuptial debts, 463 
 
 bankruptcy, 460 
 
 fraud in, 421, 430 
 
 under Married Women's Property Acts, 454, 459 
 
 with husband, 462 
 debts, ante-nuptial, 463 
 
 charge on separate estate, 423 
 
 54 (2)
 
 852 INDEX. 
 
 Marbied Woman — continued. 
 desertion of, 440, 445, 453 
 devastavit by, 25 
 dower; see Dower. 
 election by, 501, 505, 506 
 equity to a settlement, 
 
 adultery bars, 444 
 
 against assignees, 436 
 husband, 436, 442 
 
 alienation, barred by, 442 ff. 
 
 amount of, capital, 444, 445 
 income, 445 
 
 arrears of income, 441 
 
 barred, liow, 441 ff. 
 
 children, rights of, 437 
 
 choses in action, 439, 449 
 
 consideration, 447 
 
 creditors, rights of, 447 
 
 curtesy not affected by, 441 
 
 desertion, effect of, 445 
 
 equitable estates, 439 
 
 Pines and Eecoveries Act, 443 
 
 form of settlement, 446 
 
 fraud, barred by, 444 
 
 income, 441, 445 
 
 insolvency, barred by, 442 
 
 leaseholds, 440 
 
 legal interests, 439 
 
 life interests, 440 
 
 misconduct, barred by, 444 
 
 obsolete, how far, 435 
 
 plaintiff in equity, for, 436 
 
 property affected, 438 ff. 
 
 purchaser, against, 436 
 
 reduction into possession, barred by, 442, 447 
 
 right to receive, attaches on, 438 
 
 settlement already made, 442, 446 
 
 waiver of, 437, 441 
 
 fund must be a,scertained, 441 
 infant, by, 441 
 retractation of, 441 
 ward of Court, by, 441 
 examination of, 444 
 
 feme sole and feme covert distinguished, 417 
 foreclosure a,gainst, 302 
 fraud of, binds separate estate, 421 
 
 equity to settlement barred by, 444 
 gifts by, to husband, 199 
 
 to, by husband, 418 
 guardian, 469, 474 
 husband, rights of, to wife's property, 412, 413; see Husband 
 
 AND Wife. 
 intestate succession, 458 
 judgment against, 460
 
 INDEX. 863 
 
 Marbied Woman — continued. 
 life assurance, 463 
 loan to husband, 461 
 mortgages of, 280 
 
 paraphernalia, 433; see Pabaphernalia. 
 partner, 640 
 
 pin-money, 432; see Pin-money. 
 Property Acts, 414, 453 ff. 
 reconversion by, 527 
 remedies against, 413, 459 
 
 restraint on anticipation, 425 ff, 459; see Separate Estate. 
 reversionary interests, alienation of, 442, 443 
 rights of, at law, 412, 413 
 
 in equity, 413 if. 
 separate estate, 27, 413 ff; see Separate Estate. 
 separation, agreement for, specific performance, 698 
 
 effect of, 440, 445, 453 
 settlement; see Marriage. 
 suit against, 413 
 survivorship, rights bj', 413, 450 
 trustee, 25, 457, 459 
 
 Marshalling of Assets, 
 
 beneficiaries, between, 608 ft'. 
 
 charity, not applied for, 32, 612 
 
 creditors, between, 611 
 
 devisee of lands charged, for, 610 
 
 heir, for, 610 
 
 legacies charged on land, 611 
 
 limits of the principle, 612 
 
 paraphernalia, for, 609 
 
 pecuniary legacies, for, 610 
 
 principle of, 608, 612 
 
 specific devisee, for, 609 
 
 legatee, for, 609 
 when not applied, 610, 611 
 
 Marshalling of Securities, 
 Admiralty cases, 614 
 creditors, between, 
 
 of living persons, 613 
 mortgages without notice, 614 
 not to prejudice third persons, 614 
 principle of, 614 
 
 Maxims, 11, 12 
 
 analysis of, 10 — 15 
 
 dehitor non presumitur donare, 546 
 
 delay defeats equities. See Vigilantibus, &c., infra. 
 
 delegatus non potest delegare, 471 
 
 equality is equity, 14, 45, 89 
 
 equity acts in personam, 16, 266 
 
 equity follows the law, 11, 14, 89 
 
 equity imputes intention to fulfil obligations, 13, 91, 550
 
 854 INDKX. 
 
 Maxims — continued. 
 
 equity looks on that as done wiiich ought to liave boon done, 
 
 13, 92, 326, 507 
 equity never wants a trustee, 26 
 
 equity regards the intent rather than the form, 12, 261, 267 
 equity will not suiter a wrong without a remedy, 13, 751 
 expressio unius est exclusio alterius, 595 
 he who comes into equity must come with clean hands, 14, 
 193, 205, 685, 800 
 seeks equity must do equity, 15, 249, 313, 436, 439, 800 
 ignorantia juris neminem excusat, 222 
 modus ct conventio vincunt legem, 261 , 652 
 qui prior est tempore, potior est jure, 15, 319, 346 
 vigilantibus non dormientihus oequitas suhvenit, 10, 15, 98, 
 
 577, 686, 795 
 where equities are equal the first in time prevails, 15, 313, 319, 
 
 346 
 where equities are equal the law must prevail, 14, 319 
 
 Mines and Minerals, 
 
 covenants in leases of, forfeiture, 262 
 equitable waste, as to, 759 
 lateral support, right of, 772 
 mortgagee, working by, 298 
 tenant for life, working by, 756 
 trespass, accounts in cases of, 766 
 
 MiSREPBESENTATION, 
 
 agent, by, 180 
 
 contracts, when voidable through, 177 
 dans locum contractui, 178, 180 
 deception of third parties, 209 
 exaggeration, 178 
 falsity, 178 
 infant, by, 193, 212 
 married woman, by, 210, 212 
 material fact, 179 
 mistake distinguished, 221 
 negligent ignorance, 179 
 prospectus, in, of company, 
 
 pufiing expressions, 178, 180 
 reckless, 178 
 
 remote consequences, 180, 209 
 rules as to, generally, 177 
 specific performance, right to, barred by, 685 
 trustee, by, bar to defence of acquiescence, 148 
 
 Mistake, 
 
 accident distinguished, 220 
 
 classification of, 221 
 
 construction of deed, 225 
 
 deeds executed by, 229 
 
 defective execution of powers, 240 ft'; see Powers. 
 
 definition, 220
 
 INDEX. 855 
 
 Mistake — continued. 
 
 election made under, 504 
 equal equity, no relief against, 234 
 execution of deed by, 229 
 expression, of, 
 
 family settlements, in, 226, 227 
 
 rectification of instruments, 236, 238; see Eectification. 
 
 when relieved against, 234 
 fact of, 
 
 common to both parties, 237 
 
 evidence of, 235 
 
 fundamental, 229 
 
 generally, 228 
 
 material, 231, 232 
 
 unilateral, 232 
 fraud implied, 225 
 
 improvements of another's property, 211 
 law, of, 
 
 compromises, 226, 227 
 
 family settlements, 226 
 
 foreign law, 223 
 
 formal expression, 224 
 
 fraud, 224—226 
 
 fundamental mistake, 224 
 
 ignorantia juris neminem excusat, 223 
 
 private rights, 223 
 
 statutory law, 223 
 
 when relieved against, 224 ff. 
 legacy given by, 237 
 misrepresentation distinguished, 221 
 nature of transaction, as to, 229 
 payment by, 227 
 person, as to, 230 
 quality and quantitv, 231, 728 
 rectification, 236, 238 
 release given bv, 236 
 remedies, 231, 232 
 specific performance suits, in, 228, 728; nee Rpecifio Per- 
 
 FORMA]SrCE. 
 
 subject-matter of contract, as to, 230 
 surprise, 225 
 unilateral, 231, 232 
 
 Mortgage, 
 
 absolute conveyance distinguished, 270 
 accounting, 294 £f; see Mortgagee. 
 advowson, of, 293 
 agreement for, equitable mortgage by, 325, 327 
 
 specific performance, 699 
 assignment of, 272 
 
 accountability of mortgagee, 273 
 
 concurrence of mortgagor, 272 
 
 notice, 273 
 attornment clause, 300
 
 856 INDEX. 
 
 Mortgage — continued. 
 
 bankruptcy, consolidation iu, 323 
 
 proof "of debt in, 591, 592 
 bills of sale, 281 ff; see. Bills op Sale. 
 chattels, of, 282; see Bills of Sale. 
 common law doctrines rc^specting, 264 
 conditions in, 266, 268 
 consolidation, 
 
 bankruptcy, in, 323 
 
 Conveyancing Act, 1881... 324 
 
 limits of the principle, 323 
 
 notice, effect of, 321, 322 
 
 purchasers, against, 322 
 
 tacking compared, 321 
 conversion not etfected by power of sale iu, 511 
 costs, 2G9, 297, 314 
 covenant, limitation of action on, 310 ff. 
 
 not to redeem, effect of, 267 
 day to show cause, 302 
 debentures, 290 
 
 debt; see Administration, Mortgage Debt. 
 definition, 264 
 
 deposit of title deeds, 327 ff; and see Equitable Mortgage. 
 director's qualification, 293 
 equitable mortgage; see Equitable Mortgage. 
 equity of redemption, 266 ff. 
 
 action dismissed, effect of, 308 
 
 adverse possession, 279 
 
 an estate, 271 
 
 evasion of, 267 
 
 general principle of, 266 fi'. 
 
 Limitations, Statute of, 277 ff. 
 
 notice to mortgagor, 277 
 
 persons entitled to redeem, 274 ff. 
 
 release of, 271 
 
 sale of, 271 
 
 time of redemption, 276 
 
 wife's property, 280 
 evidence, parol, as to mortgage, 270, 277, 278 
 executor, debt vests in, 272 
 exoneration of mortgaged estate, 600 ff. 
 family settlement, restraint on redemption, 271 
 foreclosure, 
 
 accounts in, 301 
 
 costs of, 301 
 
 day to show cause, 302 
 
 defined, 300 
 
 dismissal of action to rerleem, 308 
 
 foreign lands, 17 
 
 form of decree, 301 
 
 infant, against, 302 
 
 Limitations, Statute of. 309, 310 
 
 married woman, against, 302 
 
 reopened, how, 308
 
 INDEX. 857 
 
 Mortgage — continued. 
 
 foreclosure — continued. 
 
 sale instead of, 303 
 
 power of, 303, 304 
 
 time for, 303 
 foreign land, 17 
 infant, 302 
 
 injunction against waste, 760 
 interest; and see Mortgagor and Mortgagee, Accounting. 
 
 penal, relieved against, 254, 268 
 
 tacking 313 
 investniontfi on, by trustees, 123, 130, 131 
 joint tenancy in, 90 
 leaseholds, 283 
 Locke King's Act, 603 ff. 
 married woman's property, 280 
 
 resulting trust of equity of redemption, 280 
 marshalling securities, 613 
 mortuum vadium, 368 
 notice; see Notice. 
 
 once a mortgage always a mortgage, 267 
 personalty, 281; see Bills of Sale, Pledges. 
 pledge compared, 282 
 preservation of the property, 299 
 priority; scr also Notice, Tacking, Purchase for Value, &c. 
 
 legal estate pi"evails, 313, 365 
 
 qui prior est tempore, &c., 313, 319, 367 
 
 right to call for legal estate, 320, 367 
 purchase without notice; see Purchaser. 
 receiver, 303, 306, 307 
 redemption, 266, 308 
 remedies, concurrent, 307 
 rent must be reasonable, 300 
 sale, 270, 303, 305 
 settlement by, 271 
 ships, of, 283 
 tacking, 
 
 bonds, 315, 320 
 
 costs, 314 
 
 interest, 314, 315 
 
 judgment creditor, by, 317 
 "debts, of, 318 
 
 mesne incumbrancer, against, 316 ff. 
 
 mortgagor, against, 313 
 
 notice, 313, 317, 318, 319 
 
 principle of, 313 
 
 representatives of mortgagor, against, 315 
 
 simple contract debts, of, 320 
 
 specific lien, 320 
 
 where legal estate outstanding, 319 
 trust term to secure debt, effect of, 312 
 vivum vadium, 264 
 waste, 298, 760 
 Welsh, 265 
 wife's property, 280
 
 858 INDEX. 
 
 MOKTGAGEE, 
 
 accounting by, 
 
 costs, 301 
 
 damage to property, 297 
 
 improvements, 298 
 
 interest, 294—296 
 
 occupation rent, 296 
 
 proceeds of sale, 297 
 
 repairs, 299 
 
 waste, 298, 760 
 action for debt, 299 
 allowances to, 163, 298, 299 
 assign, power to, 272 
 assignee of, rights of, 273 
 
 where fiduciary relation, 273 
 attornment, 300 
 
 bankruptcy rights in, 331, 591, 592 
 collateral advantage by, 161, 162, 268 
 consolidation, 321 £f; see Mortgage. 
 foreclosure, 300, 301 ; see Mortgage. 
 lease by, 291 
 leaseholds, of, 283, 296 
 Limitations, Statute of, 309, 310 
 partition by, 665 
 
 personal representative of, entitled to mortgage debt, 272 
 possession, right to, 295, 297 ff. 
 purchase by, 108 
 receiver, 303, 307 
 redemption, 266, 308 
 remedies of, 299 ff. 
 
 all pursued at once, 299, 307 
 renewal of lease by, 98 
 sale by, 303 
 
 tacking; see Mortgage. 
 trustee, 108, 170 
 waste by, 298, 760 
 
 Mortgagor, 
 
 action in his own name by, 294 
 
 concurrence in assignment, 272 
 
 eviction, liable to, 291 
 
 heir of infant, foreclosure suit against, 302 
 
 improvements, acquiescence in, 298 
 
 infant, 295 
 
 injunction against, 292, 760 
 
 lease by, 291 
 
 profits, not accountable for, 291 
 
 release of equity of redemption by, 271 
 
 redemption, 266, 308 
 
 renewal of lease by, 98 
 
 rights of, in possession, 291 ff. 
 
 surrender of lease, 292 
 
 tacking against, 312 ff. 
 
 waste by, 293, 760
 
 INDEX. 859 
 
 Mortmain, 
 
 converted money, 514 
 Statute of, 20, 28, 683 _ 
 
 vendor's lien within, 345 
 
 Musical Copyright, 785 
 
 Name, 
 
 trade, 791, 793 
 
 use as trade mark, 793 
 
 Naturalisation, 
 
 alien cestui que trust, 27 
 
 right of, to converted land, 514 
 trustee, 26 
 
 Navigable Stream, 
 
 injunction protecting, 774, 808 
 
 Nb Exeat Eegno, 
 
 absconding debtors, 811 
 
 alimony, in cases of, 810 
 
 balance of debt admitted, 810 
 
 Bankruptcy Act, 812 
 
 conditions of the remedy generally, 810 
 
 Debtors Act, 1869... 811 
 
 equitable debts, 810 
 
 Judicature Act, 1873... 812 
 
 nature and origin of the writ, 810 
 
 Necessaries, 
 
 contracts of infants for, 193 
 lunatics, 191 
 
 Negligence, 
 
 co-trustee, liability for, 135, 136 
 
 covenant to insure, as to, 255 
 
 ignorance, statement made in, 179, 210 
 
 investment by trustees, 133, 147 
 
 lien of vendor lost by, 347, 348 
 
 mistake arising from, 233 
 
 partner, of, ground of dissolution, 658 
 
 relief against accident barred by, 248 
 
 trustee, by, 117, 136, 147 
 
 vigilantihus non dormientibus cequitas suhvenit; see Maxims. 
 
 Negotiable Instruments. See Bill of Exchange. 
 
 New Trustee. See Trustee, Eemedies. 
 
 Noise, 
 
 injunction against, 772
 
 860 INDKX. 
 
 Notice, 
 
 actual notice, 354 
 
 agent, to, when notice to principal, 359 
 
 assignment of chose in action, 383 
 
 mortgage, 272 
 
 negotiable instrument, 387 
 breach of trust, 148 
 
 consolidation of mortgages, effect in, 322 
 constructive, generally, 354 
 creditors, to, of trust for them, 72, 73 
 deed, of, is notice of contents, 358 
 defined, 353 
 effect of, generally, 361 
 facts, obvious, notice of rights, 354 
 guarantee, notice to terminate, 404 
 legal estate, outstanding, 355 
 lien, 346, 347, 355 
 Us pendens, 363, 390 
 making time essence of contract, 720 
 material structures, 358 
 occupation, 356 
 peculiarities in deeds, 355 
 private statutes, 223 
 purchase with n., from a purchaser without n., 382 ff. 
 
 without n., 362 ff; and see Purchaser. 
 redemption of mortgage, 276 
 registration, whether, 321, 362, 364 
 solicitor, to, 360 
 statutes, of, 223 
 
 tacking, effect in, 313, 319, 321 
 tenancy, 357, 358 
 
 title deeds in hands of third person, 355 
 vendor's lien, effect on, 347, 348; and see Purchaser. 
 visible appearance of property, 358 
 voluntary trust, of, 63 
 
 Nuisances, 
 
 air, rights to, 771 
 
 ancient lights, 769 
 
 defined, "766 
 
 equitable jurisdiction, principles of, 768 
 
 houses, affecting, 769 ff. 
 
 information by Attorney-General, 767 
 
 injunction, 768 ff. 
 
 jury, question for, 767 
 
 lateral support, 772 
 
 noises, 772 
 
 obstructions of highways, &c., 775, 808 
 
 public and private, distinguished, 767 
 
 rivers, 775 
 
 statutory authorisation, 773 
 
 trespass distinguished, 767 
 
 water, rights to, 773, 775, 808
 
 INDEX . 861 
 
 Occupation, 
 
 notic« of, 356 
 
 rent, mortgagee, 296 
 
 Option to Purchase, 
 
 conversion, effect in, 509 
 
 time of conversion in cases of, 517 
 oonveyajice with option to repurchase, mortgage compared 
 
 270 
 remedies of cestui que trust, 147 ff; see Cestui Que Trust. 
 
 Paraphernalia, 
 defined, 433 
 disposition of, 434 
 liability to debts, 434, 599 
 marshalling for, 609 
 place in administration, 599 
 
 Parent and Child, 
 
 ademption of legacy by portion, 533, 534 
 advancement, doctrine of, 83 ff; see Advancement. 
 
 power of, 484 ff. 
 defective execution of power aided, 244 
 equity to settlement, rights of child, 437 
 gifts from child, fraud, 196 
 in loco perentis, 81, 197, 534, 627 
 infant, 465 ff; see Infants. 
 interest on legacy, 628 
 maintenance, 479 
 satisfaction of portion by legacy, 538 ff. 
 
 Parliament. See Act of. 
 
 Parol, 
 
 ante-nuptiiil agreement, 69. And see Evidence. 
 
 Partition, 
 
 Acts; sec Table of Statutes. 
 
 advowson, of, 667 
 
 boundaries, settlement of, compared, 663; see Boundaries. 
 
 commission, when directed, 667 
 
 conduct of sale, 674 
 
 co-parceners, by, 664 
 
 copyholds, of, 666 
 
 costs, 676 
 
 difficulty, nonobjection, 668 
 
 dowress, by, 666 
 
 foreign land, of, 17, 667 
 
 freeholds, of, 666 
 
 infants' rights, 669 
 
 joint tenant's right to, 664 
 
 Judicature Acts, 662 
 
 jurisdiction, 662 
 
 leaseholds, of, 667
 
 862 INDEX. 
 
 Partition — continued. 
 
 legal title, not tried in suits for, 665 
 
 Lunacy Act, 670 
 
 manor, 667 
 
 mortgagee, by, 665 
 
 mutual conveyances, 669 
 
 origin of the jurisdiction of equity, 662 
 
 possession, plaintiff must be entitled in, 665 
 
 recompense decreed, 668 
 
 remainderman bound, 664 
 
 sale before Partition Acts, 670 
 
 under, 670 ff. 
 tenants in common, by, 664 
 
 for life, by, 664 
 
 in tail, by, 665 
 third parties, rights of, not affected, 669 
 title of plaintiff must be shown, 665 
 trust for sale, 636 
 Trustee Acts, 669 
 
 unsound mind, person of, action by, 670 
 vesting order, 670 
 writ of, at common law, 664 
 
 Partnership, 
 
 account without dissolution, 650 
 
 actions between firms with common partner, 642 
 
 partners at law, 648 
 in equity, 648 
 administration of assets of, 645 
 advertisement of retiring partner, 660, 661 
 agency of partners, 643 
 banking, 638 
 bankruptcy, 645, 657, 661 
 Bovill's Act, 639 
 companies, distinguished, 637 
 constructive trusts, 97, 111, 171, 651 
 conversion of real estate, 651 ff. 
 creditors, rights of, 645, 646, 660 
 debts, 646, 660 
 
 deceased partner — liability of estate of, 661 
 definition of, 637 
 development of law, 635 
 dissolution, 
 
 account in, 661 
 
 advertisement of, 661 
 
 bad conduct, 658 
 
 bankruptcy of partner, 657 
 
 breach of articles, 659 
 trust, 659 
 
 business loss, 659 
 unlawful, 658 
 
 creditor's rights in, 660 
 
 death of partner, 657
 
 INDEX. 860 
 
 Paetnership — continued. 
 dissolution — continued. 
 
 decree of, grounds for, 658 
 distribution of effects, 646, 661 
 fixed term, 656 
 fraud of partner, 646, 659 
 incapacity of partner, 658 
 incompatibility of temper, 659 
 limited partners in, 660 
 lunacy of partner, 658 
 manager appointed, 661 
 negligence of partner, 659 
 operation of law, by, 657 
 option of partner, 656 
 receiver, appointment of, 661 
 term, expiration of, 657 
 essentials of, 638 
 fraud, debts incurred by, 646 
 liow constituted, 637 ff. 
 injunctions against breach of articles, 649 
 intention of parties, 641 
 joint liability, 644 
 joint tenancy, 639 
 jurisdiction, grounds of, 636 
 limited, 647, 656, 658, 660 
 lunacy of partner, 658 
 married woman, 640 
 nature of, 637 
 ownership by partners, 651 
 premium, return of, 660 
 proof of debt by partners, 645, 646 
 purchase of partnership property by partner, 111 
 real property, 
 
 belonging to partners separately, 651 
 conversion by agreement, 652, 654 
 
 when, takes place, 653, 654 
 devised to partners, 653 
 Mortmain Act applies to, 654 
 purchased with partnership funds, 652 
 
 for resale, 655 
 reconversion, 655 
 receiver, appointment of, 661 
 reconversion, 655 
 renewal of lease by partner, 97 
 restrictions, statutory, on, 637, 638 
 resulting trusts of partnership property, 652 ff. 
 retiring partner, 661 
 sharing profits, effect of, 639 ff. 
 solicitor partner, profit by, 168 
 specific performance of articles of, 642, 649, 697 
 
 contract for, 642 
 surviving partner, 
 
 remedies against, 661 
 
 trustee for deceased partner, 171, 653
 
 864 INDEX. 
 
 Part Perkormanoe. See Specific Perform aiNX'e. 
 
 Patent, 
 
 account, 782 
 
 damages, 782 
 
 diligeiic-e required in seeking remedy, 782 
 
 infringement, what amounts to, 780, 781 
 
 injunction, conditions of, 781, 783 
 
 jurisdiction as to, grounds of, 777 
 
 " manufactures," 779 
 
 novelty required, 779, 780 
 
 origLu of, 778 
 
 principle and process distinguished, 779 
 
 procedure to obtain, 780 
 
 remedy at law, 777 
 
 in equity, 778 ff. 
 sale, infringement bj', 780 
 subject of, what may be, 779 
 threats, 783 
 utility required, 780 
 
 Peace, Bill of, 
 
 conditions of the remedy, 809 
 
 Judicature Act, effect of, 809 
 
 nature of the remedy, 808 
 
 protection of rights established at law, 809 
 
 rights of one against rights of many, 808 
 
 Eolt's Act, 809 
 
 Penalties, Eelief against. And see Forfeiture. 
 bond, 253 
 
 building societies, 260 
 collateral acts secured, 255 
 compensation must be ascertainable, 258 
 covenants to pay, 255 
 
 to repair, 258 
 effect of accident, fraud, surprise, 258 
 insurance, 255 
 
 interest on mortgages, 254, 268 
 liquidated damages distinguished, 261 
 no election between penalties and performance, 260, 682 
 railway company, bye-law of, 257 
 rent, payment of, 255 
 several defaults secured, 256 
 statutory, 260 
 
 Pension, 
 
 assignment of, 389 
 
 Performance, 
 annuity, 553 
 
 equitable principle of, 550 
 imputed from acts of covenantor, 550 
 intestacy, 553
 
 INDEX. 865 
 
 Performance — continued. 
 law, by opei-ation of, 552 
 residue, gift of, 553 
 satisfaction distinguished from, 550 
 trustees, purchase by, 552 
 
 Perpetuation of Testimony. See Testimony. 
 
 Perpetuity, 
 
 election not applied against the rule of, 500, 501 
 executory trusts, in, cy-'pres, 55 
 restraint on anticipation must conform to, 427 
 trusts against the doctrine of, 43 
 
 Personalty. See Administration, Trusts, Executory. 
 conditions in restraint of marriage in gifts of, 204 
 mortgages of, 281 ff; see Bills of Sale. 
 wills of, 802 
 
 Pin-Money, 
 
 accumulation not allowed, 433 
 arrears of, when recoverable, 432 
 definition of, 432 
 executors cannot claim, 433 
 
 Pledge, 
 
 definition of, 282 
 mortgage distinguished, 282 
 pignus compared, 282 
 remedies of pledgee, 282, 335 
 
 Policy, 
 
 assignment of, 64, 380 
 
 Portions, 
 
 ademption of legacy by, 532 ff; see Ademption. 
 satisfaction of, by legacy, 538 ff; see S.^tisfaction. 
 
 Possibility, 
 
 assignment of, 380 
 
 Post Obit Bond, 
 
 relief against, 188, 189 
 
 Power, 
 
 appointment, of, 
 
 married woman, by, liability to debts, 420, 423, 461 
 
 property subject to, in administration, 581, 599, 60S 
 attorney, of, 
 
 not an equitable assignment, 383 
 defective appointments aided, 
 
 equitable appointment, 242 
 
 formal defects aided, 243 
 
 intention, rules as to, 241 
 
 s. 55
 
 866 INDEX. 
 
 Po WEE — con tin ued. 
 
 defective appointments aided — continued. 
 
 leasing, p. of, 242 
 
 non-execution, 243 
 
 parliamentary p., 241 
 
 principles of granting relief, 240 
 
 to whom relief granted, 243, 244 
 
 what powers aided, 240 
 
 will, by, instead of deed, 241, 242 
 
 witnesses, number of, 242 
 fraud on, 
 
 agreement to benefit appointor, 213 
 stranger, 214 
 
 appointor benefiting himself, 214 
 stranger, 216 
 
 contract between appointees, 217 
 
 fraudulent consent, 217 
 release, 214, 215 
 
 illusory appointments, 218 
 
 motive immaterial, 218 
 
 partial fraud, 217 
 in the nature of a trust, 44 
 
 gift to a class, 45 
 
 time of ascertaining class, 46 
 
 when executed by Court, 44 
 non-execution not aided, 243 
 receipts, to give; see Purchaser. 
 sale, of, by executors, 
 
 charge of debts, 375 
 
 equitable p., 376 
 
 implied, when, 373 
 
 statutory, 378 ff. 
 trustee, of; see Trustee. 
 
 Precatory Expressions, 39 
 
 Pre-emption, 
 
 agreement for, by mortgagee, 270 
 time of the essence of the contract, 729 
 
 Preference of Creditors, 
 by executor, 586 
 fraudulent, attornment clause, 300 
 
 Prescription, 
 
 lateral support of land and buildings, 772 
 lights, 769 
 purity of air, 771 
 
 Presumption. See Ademption, Advancement, Satisfaction. 
 evidence in cases of, 88 ff, 542 
 
 Principal and Agent. See Agent. 
 
 Principal and Surety. See Surety.
 
 INDEX. 867 
 
 Prioeity. See Administration, Mortgage, Notice, Pur- 
 chaser. 
 
 Probate Duty, 
 
 donatio mortis causa, 633 
 land converted, 514 
 
 Promissory Note. See Bill of Exchange. 
 
 Promoters, 
 
 constructive trustees, 109 
 fraud by, 180 
 
 Prospectus, 
 
 fraud in, 180 
 
 Protection Order, 453. See Separate Estate. 
 
 Public-House, 
 
 sale of, time the essence of the contract, 720 
 
 Public 'Trustee, 153 If . 
 
 administration of small estates, 155 
 custodian trustee, 155, 156 
 duties, 154 
 executor, 157 
 ordinary trustee, 157 
 powers, 154 
 
 Purchaser 
 
 for value without notice, 
 
 breach of trust, effect of, 367, 376 
 
 defendant with legal estate, 365 
 
 equity of, 365 ff. 
 
 foreclosure suits, 370 
 
 Judicature Acts, 370 
 
 legal estate outstanding, 368 
 procured after notice, 365 
 right to call for, 367 
 
 plaintiff having legal estate, 369 
 
 relief given to, 369 
 from volunteer under fraudulent trust, 66 
 liability for application of purchase-money, 371 fP. 
 
 lands devised charged, 375 
 on trust for sale, 372 ff. 
 
 personalty, 372 
 
 real property, 372 ff. 
 
 statutory changes, 377 ff. 
 pendente lite, 390 
 
 Quia Timet, 
 
 action, 805, 806 
 
 injunctions, 807. And see Injunction. 
 55 (2)
 
 868 INDEX. 
 
 Quia Timet — continued. 
 
 Judicature Acts, effect of, 807 
 
 nature of, 806 
 
 preservation of property, 806 
 
 receiver, 806 
 
 relief given in, 806 
 
 sureties, protection of, 399, 807 
 
 trust-money, payment into Court of, 807 
 
 Eailway Company, 
 
 conversion of land taken by, 512, 517 
 
 lien of vendor against, 345 
 
 renewable leaseholds taken by, rights of tenant for life, 101 
 
 specific performance of contracts, 690, 694 
 
 Eeal Estate. See Administration, Purchaser. 
 
 Eeceipts, Power of Giving. See Trustee, Executor, Pur- 
 chaser. 
 
 Receiver, 
 
 equitable execution, 275 
 married woman's property, 448 
 mortgagee's right to, 306, 307 
 mortgagee, when appointed, 268 
 partnership action, 661 
 quia timet, in actions, 806 
 recognizance required, 585 
 trustee, when appointed, 162 
 
 Eecognizance, 
 
 administration, place in, 585 
 
 Eeconversion, 
 
 contingent interest by, person entitled to, 528 
 election to take in unconverted form, 525 
 
 how effected, 529 
 
 person electing must be sui juris, 526 
 infant, by, 526 
 intention, when implied, 529 
 interests bound by, what, 527 
 lunatic, by, 526 
 married woman, by, 526 
 neglect of trustee to convert, 530 
 partnership property, of, 655 
 presumption against, 525, 526 
 receipt of money from trustees, 530 
 remainderman, by, 527 
 retention of property unconverted, 529 
 tenant-in-tail, 527, 528 
 undivided interests, by persons having, 528
 
 INDEX. 869 
 
 Eectification, 
 
 .settlements, of, 236 
 
 general rules as to, 236 ff. 
 voluntary deeds, 238 
 wills, 238 
 
 evidence of mistake in, 237 
 
 misdescription of legatee, 239 
 
 Eedemption. See Moetgage. 
 
 Eeduction into Possession. See Husband and Wife, Married 
 Woman. 
 trust funds, of, by trustee, 116 ff. 
 
 Eegistration, 
 
 bills of sale, 286 
 deeds, 364, 365 
 judgments, 364, 584 
 Us pendens, 364 
 notice, whether, 320, 364 
 trade marks, 793 
 
 Eeleasb, 
 
 equity of redemption, of, 271 
 
 fraudulent, 214, 215 
 
 mistake, given by, 236 
 
 surety, of, 393, 402 ff; see Surety. 
 
 trustee, of, by cestui que trust, 148 
 
 Eemaindebman, 
 
 reconversion, 527 
 
 Eenewal of Lease. See Lease. 
 
 Ebpairs, 
 
 allowance for, to mortgagee, 297, 298 
 trustee, 163 
 
 Eepkesentative. See Executor. 
 
 Eestraint op Marriage, 202 ff. 
 
 Eestraint of Trade, 206 ff, 796 
 
 Eestraint on Anticipation. See Separate Estate. 
 
 Eesulting Trust. See Trust. 
 
 Eetainer. See Executor. 
 executor's right of, 586 ff.
 
 870 INDEX. 
 
 Reversionakv Property, 
 
 conversion of, by trustees, 118 
 
 married woman's, 
 
 alienation by wife, 442, 444 
 assignment by husband, 449 
 equity to settlement does not attach, 439 
 
 sale of, inadequacy of consideration, 185 ff. 
 
 valuation of, 187 
 
 Rights of Water and of Way, 173 £f. -See Water, Way. 
 
 Riparian Owners, 
 rights of, 774, 808 
 
 River, 
 
 injunction pa-otecting, 775, 808 
 
 Roman Law, 
 
 actio finiuTn regundorum, 663 
 
 ecclesiastical law derived from, 202 
 
 election in, 493 
 
 fidei-cummissa, 19 
 
 hypotlieca, 282 
 
 inadequacy of consideration as to, 187 
 
 legacies, as to, 202, 628 
 
 pignus, 282 
 
 Praetorian law, 9 
 
 Sailors, 
 
 contract with, 194 
 
 Sale. See Mortgagee, Purchaser, Trustee, &c. 
 
 Satisfaction, 
 
 ademption of legacies, 532 ft". See Ademption. 
 cumulative legacies, 542, 543 
 debts by legacies, of, 
 
 contingent legacy does not effect, 547, 548 
 
 expressed motive contrary to, 548 
 
 legacy less than debt, 547 
 
 parent and child, relationship immaterial, 549 
 
 presumption, how rebutted, 547 ff. 
 
 pro tanto, no satisfaction, 547 
 debts by portions, of, 549 
 
 compared with ademption, 538 
 definition of, 531 
 
 intention expressed or implied, 531, 532 
 legacies by legacies, of, 
 
 evidence, 544 
 
 in different instruments, 543, 544 
 the same instrument, 541 
 
 specific legacies, 541 
 
 substituted legacy on same conditions, 545 
 legacies by portions. See Ademption.
 
 INDEX. 871 
 
 Satisfaction — continued. 
 
 performance, distinguished from, 550; see Perfokmance. 
 portions by legacies, 538 ft'. 
 
 evidence as to, 541, 542 
 
 gift by will, distinguished from advancement, 541 
 
 partial satisfaction, 540 
 
 presumption, how rebutted, 539 
 repetition of legacies, 542, 543 
 
 Secured Creditor, 
 
 rights in administration, 591, 592 
 
 Securities, 
 
 marshalling of, 613, 614 
 
 Separate Estate of Married Woman, 
 administration of, 424, 581 
 alienation of, 
 
 absolute interest in personalty, 419 
 realty, 419 
 
 equity to settlement lost by, 442 
 
 life interest in realty, 420 
 
 life interest with power of appointmt-nt, 420 
 assignment by husband, 420, 449 
 breach of trust, effect of, 421 
 creation of, 
 
 by agreement, 415, 416 
 devise, 416 
 
 form of words immaterial, 416 
 gifts, 417, 418 
 intention must be clear, 416 
 
 by settlement, 416, 436 
 
 outlay on separate property, 419 
 
 savings, 418 
 debts, liability to, 422 ff. 
 
 bills of exchange, 422 
 
 breach of trust, 421 
 
 contracts generally, 422 
 
 fraud, 421 
 
 generally, 422 
 
 life estate with power of appointment, 42o 
 equitable assets, 424, 581 
 feme sole and feme covert, gifts to, 417 
 gift to husband of, 418 
 loan to husband of, 420, 462 
 maintenance of family, liability to, 84 
 mortgage of, 280, 281 ; see Mortgage. 
 paraphernalia, 433; see Paraphernalia. 
 permissive dispositions, 420 
 pin-monej^ 432; see Pin-money. 
 power of appointment, effect of, 
 
 general, 423 
 
 liability to debts, 423, 424 
 
 on alienation, 423
 
 872 INDKX. 
 
 Separate Estate of Married Woman — continued. 
 receipt of, by husband, 420 
 I'estraint on anticipation, 422, 425 ff. 
 
 confined to coverture, 429 
 
 dispensed with by Court, when, 430, 506 
 
 effects of, generally, 428 
 
 election against, 430, 506 
 
 expressions insufficient to effect, 427 
 
 how effected, 426 
 
 origin of, 425 
 
 perpetuities, rule as to, 427, 428 
 
 substitution of property, 429 
 
 when renewed on second marriage, 428 
 statutory, 453 ff. 
 
 acquisition of, 456 
 
 contract, right to, 455, 459 
 
 disposition of, 456 
 
 Divorce Acts, 453 
 
 intestate succession, 458 
 
 married woman trustee, 457, 458 
 
 Married Women's Property Acts, 1870 and 1874... 453, 463 
 
 1882... 454 ff. 
 
 personal representative, 458 
 
 property, right to hold, 456 
 
 testamentary power, 457 
 
 trustees not necessary, 456 
 voluntai'y dispositions of, 419 
 will of, 419, 457 
 
 Separation. See Husband and Wife, Marriage. 
 specific performance of agreement for, 698 
 
 Service, 
 
 specific performance of contract for, 697, 698 
 
 Set-off, 
 
 assignee of chose in action liable to, 386, 569 
 
 bankruptcy in, 571 
 
 debts incurred in different rights, 570 
 
 equitable debts, 569 
 
 equity distinguished from law, 568 
 
 executor, 570 
 
 law, doctrines of, as to, 568 
 
 mutual credit, 569 
 
 rights of third persons, 571 
 
 solicitors' costs, 341 
 
 statutory provisions respecting, 568 
 
 suretyship, in cases of, 570 
 
 trustee, by, not allowed, 148 
 
 winding up company, not allowed in, 571 
 
 Settled Account, 575 
 
 Settlement, 
 
 arrears of income, out of, 441 
 consideration of marriage, 70
 
 IiNDEX. 873 
 
 Settlement — continued. 
 
 equity to, 435 ff; see Married Woman. 
 
 family; see Family Arrangement. 
 
 infants, 477; see Infants. 
 
 mortgages by way of family s., 271 
 
 post-nuptial s. made in pursuance of ante-nuptial agreement, 
 
 70, 71 
 rectification of, 236 ft'; see Eectification. 
 separate estate by; see Separate Estate. 
 voluntary; see Trusts, Voluntary, Table of Statutes, 
 
 13 Eliz. c. 5; 27 Eliz. c. 4. 
 
 Shares in Company, 
 
 agreement to accept, specific performance, 694, 695 
 forfeiture of, 259 
 
 Ship, 
 
 contracts respecting, specific performance, 695 
 mortgage of, 283 
 resulting trusts of, 82 
 
 Solicitor, 
 
 advancement of child, presumption rebutted, 87 
 contracts with client, generally, 112 
 
 for fixed remuneration, 112 
 costs, set-off, 341 
 deed in possession of, notice, 355 
 employment by trustee, when allowed, 168, 169 
 fraudulent concealment by, 360, 361 
 gifts from client pending suit, 197 
 lien, 
 
 assignee of, 341 
 
 change of solicitors, 339, 342 
 
 funds, on, 340 
 
 general, 339 
 
 notice of, 348 
 
 papers, on, 339 
 
 priority, 341 
 
 real estate on, 340 
 
 security displacing, 342 
 
 set-off, notwithstanding, 341 
 money handed to, trustee when liable for, 126, 127 
 mortgagee, 269 
 
 notice to, constructive notice, 359, 360 
 partner making profit of trust, 169 
 purchase from client. 111 
 remuneration of, 112, 164 
 town agent, 169 
 trustee, charges allowed to, 163 
 
 remuneration of, generally, 160, 161, 163, 165 
 
 Sovereign. See Crown. 
 
 Specific Legacy. See Legacy. '
 
 874 INDKX. 
 
 Specific Performance, 
 abatement, with, 731 
 agency, contract of, 697 
 arbitration, agreements to refer, 698 
 arcbway, contract to build, 697 
 auction, sales by, 708, 730 
 award, 699 
 
 borrowing and lending, 699 
 breach of prior agreement, 683 
 building contracts, 696 
 chattels, contracts respecting, 696 ff. 
 
 difficulty of applying legal remedy, 692 
 
 goodwill, 695 
 
 heirlooms, 694 
 
 principal and agent, between, 693 
 
 relief, when granted, 691 ff. 
 
 remedy mutual, 693 
 
 ships, 695 
 
 special circumstances entitling to relief, 691 ff. 
 
 trusts of, 693 
 companies, contracts of, 694, 707 
 conditions of, generally, 681 ff. 
 
 agreement must be lawful, 682 
 complete, 694 
 on good consideration, 683 
 possible, 685 
 reasonable, 684 
 
 legal remedy inadequate, 681 
 
 plaintiff must come promptly, 686 
 with clean hands, 685 
 damages incidental to, 686, 687, 688 
 debentures, 699 
 
 deeds, contracts respecting, 694 
 defences peculiar to action for, 716 ff. 
 
 under Statute of Frauds, 701 ff. 
 family arrangements, 708 
 foreign lands, 17 
 fraud, agreements involving, 683 
 Frauds, Statute of, defence of, 689, 801 ff. 
 
 correspondence, contract by, 702 
 
 evidence admissible, 710 ff. 
 
 fraud, not to be used for, 702, 709 
 
 fraud of defendant, 709 
 
 memorandum, contents of, 703 
 
 parol agreement for lease, 707 
 
 part performance, 704 ff. 
 
 possession, 705 
 
 variation ; see infra, parol variation . 
 general principles of jurisdiction, 681 
 goodwill of business, 695 
 heirlooms, 694 
 hiring and service, 697 
 husband and wife, separation, 698 
 illegal agreements, 682
 
 INDEX. 875 
 
 Specific Perfokmance — continued. 
 intoxication, 686 
 
 Judicature Acts, 688 i 
 
 jurisdiction, conditions of, 681 
 
 discretionary, 682 
 land, contracts respecting, generally, 689 
 
 leases, 690 
 
 mortgages, 690 
 
 notice to treat, 690 
 
 Statute of Frauds, 701 
 
 taking, under statutory powers, 690 
 legal remedy inadequate, 681 
 marriage, representations connected with, 707 
 mistake, 230, 732 
 
 mortmain, agreements against, 683 
 mortgage, 690 
 
 negative contracts, injunction, 699 
 parol variations, 
 
 assent to, by plaintiff, 715 
 
 contemporaneous, 715 
 
 evidence as to, general rule, 710 
 when admissible, 
 
 for defendant, 711, 712 
 for plaintiff, 710, 711 
 
 mutually dependent contracts, 714 
 
 part performance of, 712 
 
 waiver, 714 
 partnership, agreements for, 642, 697 
 
 articles of, 649 
 part performance, 
 
 acts amounting to, 704 
 
 land, doctrine only applies to, 704 
 
 laying out money, 705 
 
 limits of doctrine, 708 
 
 marriage, 706 
 
 payment, 705 
 
 possession, 705 
 peculiar subject-matter, 693 
 perpetuity, 683 
 
 personal acts, contracts relating to, 696 ff. 
 railway companies, contracts of, 690, 697 
 refused, on what grounds, 682 ff. 
 repairing contracts, 696 
 rescission of contract, 722 
 sales at valuation, 695 
 separation of husband and wife, 698 
 shares, agreements respecting, 695 
 ships, agreements respecting, 695 
 statutory modifications. 
 
 Cairns' Act, 686 
 
 Bolt's Act, 688 
 trust, illegal, not enforced, 683
 
 876 INDEX. 
 
 Specific Performance — continued. 
 variation, with, 
 
 compensation for defaults, 725 
 accessions, 726 
 amount of, inquiry as to, 727 
 deteriorations, 726 
 how calculated, 726 
 contemporaneous or subsequent v., 715 
 differences of quality or quantity, 
 
 abatement, specific performance with, 731 
 auction, 730 
 
 description, approximate, 730, 731 
 difference of tenure, 728 
 
 title, 730 
 mistake, 732 
 notice, 731 
 
 purchasers' suits, 731 ff'. 
 rescission, right of, 732 
 stipulations against, 732 
 substantial, what are, 729 
 vendors' suits, 728 ff. 
 waiver, 729 
 procedure as to, under Vendor and Purchaser Act, 717 
 time, disputes as to, 718 ff. 
 
 Judicature Act, provision as to, 718 
 when essential, 
 
 enlargement of time, 721 
 fluctuating property, 719 
 mala fides, 722 
 mercantile contracts, 719 
 notice, making, effect of, 720 
 pre-emption, right of, 720 
 sale of public-house, 720 
 special agreement, 720 
 waiver, 721 
 time when not essential, 722 ff. 
 conduct of parties, 722 
 tendency of decisions, 725 
 title, nature of, 724 
 vexatious objections, 724 
 voluntary settlor, 71 
 Wills Act, defence of, 709 
 
 Statutes. See Table of Statutes. 
 
 Statutes of Frauds, Limitations, Uses. Bee Frauds, Limita- 
 tion, Uses. 
 
 Stop Order 
 
 on fimds in Court, 386 
 
 Subpcena, 
 
 writ of, 21
 
 INDEX. 871 
 
 Succession Duty 
 
 charged on converted money, 514 
 
 Superstitious Uses, 29 
 
 Surcharging and Falsifying Accounts, 577 
 
 Surety and Suretyship, 
 
 alteration of terms, 293 ft', 
 composition with co-surety, 403 
 
 debtor with, surety when released by, 402, 403 
 concealment, effect of, 183, 395 
 continuing suretyship, 404 
 contribution, 
 
 parol evidence of contract, 407 
 
 principle of, 393, 405 ff. 
 
 when not applicable, 406, 407 
 covenant not to sue co-surety, 403 
 
 debtor, 402 
 death of s., 394 
 decree, dealings after, 398 
 departure from contract, 400 
 divisible contract, 399 
 
 equity, general principles of, as to, 395 ff. 
 formation of contract, 395 
 fraud, 183, 396 
 further advance, 410, 411. 
 giving time to debtor, 396 
 
 surety, 398 
 guarantee, 404 
 
 increasing responsibility of s., 396 
 insolvency of s., 394 
 legal doctrines as to, 392 
 
 contribution, 393 
 
 death of co-surety, 394 
 
 insolvency of co-surety, 394 
 
 proof, 392 
 
 release of sureties, 393 
 need not prove damage, 397 
 quia timet, action, to protect, 806 
 release of s., 393, 402 ff. 
 reserving rights against, 398 
 securities, right of s. to, 408 ff. 
 
 bonds, 410 
 
 executions, 410 
 
 further advance, 410, 411 
 
 judgments, 409 
 
 Mercantile Law Amendment Act, 410 
 substituted security, 401 
 tacking against s., 411 
 
 Surprise, 
 
 mistake in law arising from, 220, 225
 
 878 INDEX. 
 
 Survivorship. See Joint Tenant, Married Woman. 
 
 Tacking. See Mortgage. 
 
 Tenancy in Common, 
 partition, 664 
 
 preferred to joint tenancy, 50, 89 
 waste, in case of, 762 
 
 Tenant for Life, 
 
 improvements, lien for, 100 
 
 partition by, 664 
 
 redemption of mortgage, right to, 275 
 
 renewal of lease by, 95 
 
 timber, proceeds of sale, when entitled to, 758 
 
 waste by, 755, 761; see Waste. 
 
 Tenant-in-Tail, 
 
 reconversion by, 527, 528 
 waste by, 755, 761; see Waste. 
 
 Testamentary Guardian, 469 ff. See Guardian. 
 
 Testimony, 
 
 action to perpetuate, 812 ff. 
 de bene esse, bills, 815 
 discovery, bills for, obsolete, 814 
 expectancies, 813 
 jurisdiction, grounds of, 812 
 property to which it applies, 813 
 titles and dignities, 814 
 
 Timber. See also Waste. 
 
 mortgagee, when entitled to, 298, 758, 759, 760 
 mortgagor, 761 
 ornamental, what, 759 
 tenants in common, 762 
 trees, what, 756 
 
 Time. See Limitations, Statute of. Specific Performance, 
 Surety. 
 ascertaining class, of, 45 
 
 Title, 
 
 confirmation of, 212 
 
 nature of, effect in specific performance suits, 724, 725 
 
 settlement of boundaries, in, 679 
 
 delivery up of, 368, 370, 799, 801 
 deposit of; see Equitable Mortgage. 
 inquiry for, lien, 348 
 loss of, remedy, 247, 250; see Accident. 
 peculiarities in, 355; see Notice. 
 right to, 801
 
 INDEX. 879 
 
 Tbade, 
 
 contracts in restraint of, 206 
 marks, 791 
 
 name, injunction, 791, 796 
 secrets, 207, 795, 796 
 
 Trade-Mark, 
 
 account in suits, 795 
 acquiescence by plaintiff, 795 
 imitation, what is, 794 
 injunction, when granted, 795 
 principles of equity as to, 792 
 registration, 793 
 remedies, 795 
 what may be, 792, 793 
 
 Trade-Name, 795. See Goodwill. 
 
 Trespass, 
 
 account in cases of, 766 
 
 buildings, erection of, when restrained, 764, 765 
 
 damages, inquiry as to, 765, 766 
 
 injunctions restraining, principles respecting, 765 
 
 Judicature Act, 753 
 
 laches of plaintiff, 766 
 
 naked trespass not restrained, 764 
 
 public companies, by, 765 
 
 interest, affecting, 765 
 relief, when granted, 766 
 
 Trust. And see Trustee. 
 
 application of funds; see Purchaser, Trustee. 
 breach of, indictable, 150; and see Trustee, Eemedies. 
 charitable, 28 — 30; see Charity. 
 classification of, 35 
 colonial land, of, 24 
 constructive, 33, 92 
 
 purchase of trust property, 
 
 account of profits, 115 
 
 acquiescence, 106 
 
 administrator, by, 109 
 
 agent, as, 105 
 by, 110, 111 
 through, 105 
 
 annuitant, 108 
 
 arbitrator, by, 113 
 
 auction, at, 105 
 
 cestui que trust, sui jxiris, 106, 107 
 
 compensation, 114 
 
 confirmation, 107 
 
 contract, private, 104 
 
 costs, 115 
 
 decree, under, 105 
 
 directors, by, 109 
 
 equity of redemption, 108
 
 880 INDKX. 
 
 Trust — continued. 
 
 coTisixViGiiver— continued . 
 
 purchase of trust property — continued. 
 
 executor, by, 109 
 
 express trustee, 107 
 
 fiduciary relation, person in, 113 
 
 guardian, 113 
 
 leave of Court, 10(i 
 
 mortgagee, 108 
 
 nominal trustee, 108 
 
 partner. 111 
 
 promoter of company, 109 
 
 reconveyance, 114 
 
 remedies, 114 
 
 retiring trustee, 105 
 
 solicitors. 111, 112 
 
 stock-jobber. 111 
 
 sub-contractor. 111 
 
 trustee in bankruptcy, 105, 109 
 
 value given immaterial, 104 
 renewal of leases, 
 
 account of profits, 100, 101 
 
 administrator, by, 95 
 
 agents, by, 94, 98 
 
 compulsory powers, purchase by, 101 
 
 executors, by, 95 
 
 express trustee, 95 
 
 improvements, 100 
 
 indemnity for expenses, 100 
 
 joint tenants, 97 
 
 lien for improvements, 100 
 
 Limitations, Statute of, 99 
 
 mortgagor and mortgagee, by, 98 
 
 partners, by, 98 
 
 purchase of reversion, 94, 95 
 
 renewal impossible, lt)2 
 
 tenants for life, by, 95 
 
 trustees, by, 95 
 
 volunteers claiming through trustees, 99 
 creation of, 37 ff. 
 
 certainties, the three, 39 
 object must be certain, 41 
 
 lawful, 42 
 Statute of Frauds, 37, 38 
 subject must be certain, 41 
 words, what sufficient, 39 
 creditors for; see Creditors. 
 debts, for payment of, 72 £P. 
 definition of, 23 
 evidence; see Evidence. 
 executed, 46 
 executory, 46 
 cy-pres, 55 
 definition, 46
 
 INDEX. 8§1 
 
 Trust — continued. 
 
 executory — continued. 
 
 intention of creator followed, 48 
 
 marriage articles, in, 49 
 
 perpetuities, law of, 55 
 
 tenancy in common, 50 
 
 wills, in, personalty, 54 
 real property, 51 
 
 construction of, 51, 52 
 particular expressions, 53 
 express, defined, 33 
 foreign, land of, 24 
 fraudulent; see Voluntary. 
 history, outline of, 19 ff. 
 illegal, 42, 43 
 implied, 36, 76 ff. 
 intention necessary to create, 58 
 Limitations, Stat, of; see Limitations. 
 object of, must be certain, 41 
 parol declaration, when valid, 40, 61 
 perpetuities, law of, 42, 43 
 powers in the nature of, 44, 45, 46; see Power. 
 precatory words, 39 
 property subject to, what may be, 24 
 resulting, 76 ff. 
 
 acquiescence, rebutted by, 82 
 
 advancement; see Advancement. 
 
 classified, 76 
 
 charge distinguished, 79 
 
 charitable trusts, 78 
 
 conversion, doctrine of; see Conversion. 
 
 defined, 35 
 
 evidence, 79, 80, ST, 88, 91 ; see Evidence. 
 
 intention expressed, 77 
 presumed, 77 
 
 joint mortgages, 90 
 
 joint purchases, 89 
 
 mortgage of wife's property, 280 
 
 Parliament, Act of, contravening, 82 
 
 partnership purchases, 651 ff. 
 
 presumption of law, 77 
 when rebutted, 79 
 
 purchase in name of another, 80 fl. 
 money, payment, evidence, 80 
 
 uses compared, 77 
 secret, 40 
 subject of, 24 
 
 must be certain, 41 
 valid legal obligation, effect of, in equity, 59 
 voluntary, 55, 59 
 
 assignment of equitable interest, 62 
 
 Bankruptcy Act, 67 
 
 binding on settlor, 60, 63 
 
 ». 56
 
 882 INDEX. 
 
 Trust — continued. 
 
 voluntary — continued. 
 creation of, 61, 62 
 distinguished from gifts, 56 
 fraud, effect of, 63, 64 
 fraudulent, 
 
 13 Eliz. c. 5.. .64 
 
 acquiescence by creditor, 65 
 
 27 Eliz. c. 4... 68 
 
 purchase-money under, 69 
 imperfect gifts distinguished, 56, 61 
 intended gifts distinguished, 57 
 leaseholds of, 69 
 locus poeniteniio', when, 62 
 marriage consideration, 70, 71 
 mistake, effect of, 63 
 
 notice, how far necessary, 63; see Notice. 
 payment of debts, 72 ff; see Creditors. 
 pendente life, 66 
 policies of assurance, 64 
 purchasers, who are, 68 
 settlor becoming trustee, 63 
 specific performance, 71 
 Statute of Frauds, 60 
 transfer of legal estate, 62 
 two ways of creating, 61, 62 
 Voluntary Conveyances Act, 69 
 what property may be subject of, 24 
 
 Tbustbb, 
 
 Acts, 162, 153 
 
 alien, 26 
 
 bankrupt, 26, 147, 151 
 
 bankruptcy, in, 105; see Bankruptcy. 
 
 breach of trust, 116 ff. 
 
 creates simple contract debt, 145, 586 
 cannot make profit out of trust, 92, 161 
 cannot take beneficially, 42 
 charities; see Charities. 
 constructive; see Trust, Constructivb. 
 
 not treated as express trustee, 99 
 corporation, 25 
 
 co-trustee's liability for, 135 ff ; see Co-tbusteb. 
 Grown, 25 
 
 claim to chattels of deceased c. q. t., 167 
 custodian, 155, 156 
 directors; see Directors. 
 duties and liabilities of, 116 ff. 
 
 agents, employment of, 125, 126, 168, 170 
 [ bank, deposit in, 126 
 
 brokers, employment of, 126 
 
 control of trust fund, 126 
 
 conversion of 
 
 leaseholds, 120
 
 INDEX. 883 
 
 Teustee — continued. 
 
 duties and liabilities of — continued. 
 conversion of — continued. 
 
 neglect to convert, 116, 147, 530 
 principle as to, 118 
 real securities, 130 
 reversionary property, 118 
 wasting property, 118 
 when loss would result, 120 
 custody of trust property, 125 ff. 
 
 conduct expected from trustee, 126 
 risks, unnecessary, 126 
 debts, collecting, 116 
 
 compounding, 117 
 investments, rule as to, 129; and see Investment. 
 brokers, employment, 125, 126 
 solicitors, employment, 126, 168 
 mixing trust property, 144 
 moneys employed in trade, 118, 162 
 neglect to convert, consequences of, 116, 147, 530 
 outstanding property, 116 
 equity never wants a, 26 
 fraud by, 150, 200 
 indemnity clauses, 140, 141 
 
 trustee's right to, 100, 140 
 infant, 26 
 judicial, 125, 153 
 lien for improvements, 100 
 married woman, 25, 457 
 mortgage by, 132 
 
 new trustees, appointment of, 151 ff. 
 notice to, when necessary, 63 
 partners, when trustees, 171 
 public, 154; see Public Trustee. 
 
 purchase of trust property, by, 103 ff ; see Trust, Construc- 
 tive. 
 account for profits, 115 
 acquiescence of c. q. t., 106 
 agent, through, 105 
 auction, at, 105 
 compensation allowed, 114 
 confirmation of, 107 
 decree under, 105 
 leave of Court, when given, 106 
 option allowed to c. q. t., 114 
 other property, 106 
 reconveyance ordered, 114 
 relief given in equity, 114, 115 
 
 costs, 115 
 re-sale, 115 
 
 value given immaterial, 104 
 when trust determined, 105 
 qualifications of, 25 
 relief of, 160 
 
 66 (2)
 
 SM INDEX. 
 
 Trustee — continued. 
 
 remedies against, 142 E. 
 
 acquiescence, 145, 148 
 
 administration action, 160 
 
 contribution, 145 
 
 conversion of trust property, It-"} 
 
 criminal proceedings, 150 
 
 direction of Court, 160 
 
 following trust funds, 142 
 
 new trustees, appointment of, 151 If. 
 
 personal remedy, 145 
 
 proceedings in equity, 145 
 
 removal of, 150 
 
 set-off, no, 148 
 
 Statutes of Limitation not applied, 1 1!». And see Limita- 
 tions. 
 
 Trustee Acts, 152 ff. 
 remuneration of, 
 
 agents, 163, 170 
 
 authorised, 165 
 
 benefiting by trust, 92, 161, 162, 166 
 
 constructive trustee, 171 
 
 contract for, 165 
 
 directors, 170; and see Directors. 
 
 executors, 168 
 
 express trustee, 168 
 
 indirect profit by, 161 
 
 lapse, by, of real estate, 166 
 
 mortgagees, 170 
 
 solicitors, 168 
 
 using trust funds, 162 
 renewal of lease by, 93 ff . 
 retiring for breach, 128 
 sale, power of, 378 
 
 set-ofi' not allowed in breach of trust, 148 
 who may be, 25 — 27 
 
 Ultra Vires, 
 
 injunction, 748 
 
 Unconscionable Bargains. See Fraud, Undue Influence. 
 catching bargains with heirs, 185 
 confirmation and acquiescence, 189 
 family arrangements, 190 
 inadequacy of consideration, 185 
 post obits, 188 
 pretence of trading, 188 
 relief, terms of, 189 
 reversions, sale of, 186 ff . 
 
 Undue Influence, 
 
 description of, 199 ff. 
 doctor and patient, 198
 
 INDEX. 886 
 
 Undue Influence — continued. 
 evidence of, 199 
 fictitious consideratioiij 200 
 fiduciary relations generally, 198 
 guardian and ward, 196 
 lawyer and client, 197 
 parent and child, 196 
 priest and penitent, 198 
 suitor, gift to, 199 
 trustee, 197 
 wills in obtaining, 201 
 
 Uses, 
 
 introduction of, 20 
 resulting, 77 
 Statute of, 21 
 trusts compared, 22 
 
 Vendor's Lien, 
 
 abandonment, 349 
 
 annuity, sale for, 344 
 
 extent of, 344 
 
 Frauds, Statute of, 345 
 
 general principle as to, 343 
 
 injunction protecting, 750 
 
 interest in land, how far, 345 
 
 Limitations, Statute of, 345 
 
 Locke King's Act, 346, 606 
 
 marshalling for, 351 
 
 Mortmain Acts, 345 
 
 negligence, lost by, 347 
 
 notice, 348 
 
 purchaser for value, against, 347 
 
 railway company, purchase by, 345 
 
 registration, 348 
 
 rent-charge, 345 
 
 security, effect of taking, 349 
 
 trustee in bankruptcy, against, 349 
 
 waiver of, 350 
 
 Wills Act, 345 
 
 VivuM Vadium, 264 
 
 VOLUNTAKY SETTLEMENT. See TRUSTS, VOLUNTARY. 
 
 Ward of Court, 
 
 education of, 475 
 injunctions respecting, 750 
 marriage of, 476, 750 
 removsd of, 475 
 settlements, 477
 
 886 INDEX. 
 
 Waste, 
 
 account, 763 
 
 adverse title, by person claiming, 762 
 
 ameliorating, 760 
 
 Common Law Procedure Act, 757 
 
 definition of, 755 
 
 equitable remedies generally, 757, 763 
 
 instances of, 759 
 
 waste defined, 758 
 equity contrasted with law, 755, 756 
 executory devise, 761 
 injunction, 755 ff; and see Injunction. 
 Judicature Acts, 753, 757 
 law, doctrines of, 
 
 acts amounting to w., 752, 755 
 
 against whom chargeable, 755 
 
 remedies for, 756 
 mansion-house, dismantling, 758 
 mines, opening, 756 
 mining, improvident, 759 
 mortgagor and mortgagee, by, 298, 760 
 permissive, 759 
 remaindermen, 760 
 saplings, cutting, 759 
 tenants in common, by, 762 
 
 for life, by, 
 
 chargeable for, 101 
 in equity, 761 
 at law, 756 
 
 in tail, 
 
 in equity, 760 
 at law, 755 
 timber; see Timber. 
 
 equitable doctrines, 759 
 
 legal doctrines, 755 
 
 ornamental, 759 
 trespasser, by, 765 
 underlessee, by, 762 
 writ of, 766 
 
 Water, Eight to, 
 
 injunctions protecting, 773 fE. 
 navigable rivers, 774 
 
 Watercourses, 
 artificial, 774 
 natural, 774, 809 
 
 Way, Eights of, 
 
 injunctions protecting, 775, 809 
 
 Welsh Mortgage, 265 
 
 Widow. iSee Dower. 
 
 right to allowance for maintenance, 483
 
 INDEX. 887 
 
 Wife. See Married Woman, Husband and Wife. 
 
 Wills. And see Election, Conversion, Legacy, Evidence. 
 Act. See Table of Statutes. 
 actions or bills to establish, 802 ff. 
 executed trusts in, 48 
 executory trusts in, 51 
 heir cannot contest validity of, 805 
 imperfect will not aided, 59 
 jurisdiction of Chancery, 803, 804 
 personalty, of, probate, 802 
 realty, of, 802 
 rectification of, 238 
 validity and construction of, distinguished, 803 
 
 Winding-up of Company, 
 
 bankruptcy, rules of, to be observed in, 592 
 set-ofE in, not allowed to shareholder-creditor, 671 
 
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 10 
 
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 French-English Dictionary of Legal and 
 
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 Supplemental Volume incorporating the First 
 
 Supplement 1931 . 42 
 
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 20th ed. 
 
 — 
 
 . 21 
 
 
 
 1931 
 
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 1921 
 
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 1929 
 
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 HOLT An Outline of the Rules of Evidence ...2nded. 
 
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