THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 PRINCIPLES 
 
 um or PERSONAL PEOPEETY, 
 
 INTENDED FOR 
 
 THE USE OF STUDENTS IN CONVEYANCING. 
 
 RY 
 
 JOSHUA WILLIAMS, ESQ., 
 
 or Lincoln's inn, one of uer majestt's counsel. 
 
 SEVENTH EDITION. 
 
 LONDON: 
 
 H. SWEET, 3, CHANCERY LANE, FLEET STREET, 
 
 Hah) 13oofe6ElIcr antj IJubltsfjrr ; 
 
 nODGES, SMITH & CO., GRAFTON ST., DUBLIN. 
 
 1870.
 
 T 
 
 LONDON: 
 PRINTED BY C. ROWORTH AND SONS, 
 NEWTON ST., HIGH HOLBORN.
 
 ADVERTISEMENT 
 
 TO THE SEVENTH EDITION. 
 
 In this Edition the alterations which have 
 taken place in the Law since the publica- 
 tion of the last Edition have been incor- 
 porated in the Text. The chapters on 
 Bankruptcy and part of the chapter on 
 Debts have been re- written. 
 
 3, Stoxe Buildings, Lincoln's Inn, 
 Dec. 18G9. 
 
 
 Uv*^-'
 
 PREFACE 
 
 TO THE FIRST EDITION. 
 
 The following pages are intended as supplementary 
 to the author's " Principles of the Law of Real 
 Property." At the time when that work was 
 written, the plan of the present treatise was not 
 matured, and a chapter " On Personal Property 
 and its Alienation " was inserted in that work. The 
 contents of that chapter will be found interspersed 
 in parts of the present volume ; and should a second 
 edition of the " Principles of the Law of Real Pro- 
 perty" be called for, it is the author's intention to 
 omit that chapter of his former work, and to supply 
 its place by some further remarks on such ele- 
 mentary parts of the law of real property as may 
 appear to have been but slightly touched upon 
 before. The very favourable reception which the 
 author's work on the law of real property has met 
 with from the profession has encouraged him to 
 undertake in the present work, a task, he believes,
 
 VI PREFACE. 
 
 hitherto unattempted : for it is singular that, not- 
 withstanding the rapid growth and now enormous 
 value of personal property in this country, no treatise 
 has yet appeared having for its object the intro- 
 duction of the student in conveyancing to that 
 large and increasing portion of his study and prac- 
 tice which comprises the law relating to such pro- 
 perty. As to real property, he may take his choice 
 amongst three or four publications, all having the 
 same object of facilitating his studies ; but the law 
 of personal property, though sufficiently treated of 
 in all that relates to it as purely mercantile, has not 
 yet had any elementary treatise on its principles, 
 so far as they affect the practice of conveyancing. 
 The present work is an attempt to supply this 
 deficiency, and, in conjunction with the author's 
 " Principles of the Law of Real Property," to afford 
 the student a brief and simple introduction to the 
 whole system of modern conveyancing. The no- 
 velty of the attempt has, however, increased the 
 difficulty of the task. The author has endeavoured 
 proportionably to increase his diligence and care. 
 He can, however, scarcely hope to have escaped all 
 errors. And here he would caution the student 
 against too implicit a reliance on the dicta of text
 
 PREFACE. VU 
 
 books. Elementary books cannot from their nature 
 be completely accurate. As helpers to more perfect 
 knowledge, they may be most valuable. But it 
 would be as great a mistake for a student to remain 
 satisfied with his knowledge of a text book, as for 
 an author to compress into an elementary work all 
 that could possibly be said on the subject. 
 
 7, New Square, Lincoln's Inn, 
 23rd May, 1848.
 
 TABLE OF CONTENTS. 
 
 ■♦- 
 
 INTRODUCTORY CHAPTER. 
 
 PAGE 
 
 Of the Subjects and Nature of Personal Property 1 
 
 Part I. 
 OF CHOSES IN POSSESSION 9 
 
 CHAP. I. 
 Of Chattels which descend to the Heir 9 
 
 CHAP. II. 
 Of Trover, Bailment and Lien 23 
 
 CHAP. III. 
 Of the Alienation of Choses in Possession 34 
 
 CHAP. IV. 
 Of Ships 55 
 
 Part II. 
 OF CHOSES IN ACTION 63 
 
 CHAP. I. 
 Of Actions ex delicto 63 
 
 CHAP. II. 
 Of Contracts 70
 
 X TABLE OF CONTENTS. 
 
 PAGE 
 CHAP. III. 
 
 Of Debts , 96 
 
 CHAP. IV. 
 Of Bankruptcy op Traders 132 
 
 CHAP. V. 
 Of Bankruptcy of Non-traders 166 
 
 CHAP. VI. 
 Of Insurance 175 
 
 CHAP. VII. 
 Of Arbitration 1 83 
 
 Part 111. 
 OF INCORPOREAL PERSONAL PROPERTY .... 198 
 
 CHAP. L 
 Of Personal Annuities, Stocks and Shares 198 
 
 CHAP. II. 
 Of Patents and Copyrights 235 
 
 Part IV. 
 OF PERSONAL ESTATE GENERALLY 259 
 
 CHAP. I. 
 Of Settlements of Personal Property 259 
 
 CHAP. II. 
 Of Joint Ownership and Joint Liability 302 
 
 CHAP. III. 
 Of a Will 321
 
 TABLE OF CONTENTS. XI 
 
 PAGE 
 CHAP. IV. 
 
 On Intestacy 354 
 
 CHxiP. V. 
 Of the Mutual Eights of Husband and Wife 369 
 
 Part V. 
 OF TITLE 395 
 
 — ♦ — 
 
 Appendix (A.) 413 
 
 Appendix (B.) 418 
 
 Index 431
 
 INDEX TO CASES CITED. 
 
 A. 
 
 Abbot v. Blofield 
 Abbott r. Eogers 
 Abergavenny, Earl of, Morgan v. 
 Abingdon (Lord), Clarke v. . . 
 Acaster, Eogers v. 
 Accidental Death Insurance 
 
 Company, Shilling v. 
 Ackerman, Ex parte . . 
 Acton V. Acton 
 M"Neillie v. 
 
 PAGE 
 . 376 
 . 215 
 
 20 
 108 
 381 
 
 176 
 313 
 
 345 
 315 
 
 V. White 386 
 
 V. Woodgate . . . . 299 
 
 Adam v. Statham . . . . 1 92 
 
 Wilkinson v. . . 349, 350 
 
 Adams, Malkin I'. .. .. 133 
 
 t>. Paynter .. ..291 
 
 Adcock, Ross v. . . . . 69 
 
 Walter t) 127 
 
 Woodv 192 
 
 Addenbrooke, Foley v. . . 304 
 
 Addison v. Round . . . 25 
 
 Adney, Wennall v. ., . . 76 
 Aflalo, Grove v. . . . . 43 
 
 Agar V. Lisle . . . . . . 24 
 
 Aitcheson v. Cargey . . . . 192 
 
 Cargey r. .. ..191 
 
 Aldous V. Comwell . . 
 Alexander v. Alexander 
 ■ Dover v. 
 
 273 
 350 
 
 29 
 267 
 
 35 
 344 
 268 
 382 
 
 Alford, Sunbolf v. 
 Alger V. Parrott 
 Allatt V. Carr . . 
 Allen, Brown v. 
 
 Festing v. . . 
 
 Hobby V. .. 
 
 V. Smith 29 
 
 Alleyn v. Alleyn . . . . 346 
 All wood V. Heywood . . . . 12 
 Alsager v. Spalding . . . . 122 
 
 Ambergate, &c. Railway Com- 
 pany tJ. Norcliffe .. ..212 
 
 Amcotts, Phelp v 296 
 
 American Leather-Cloth Com- 
 pany Limited, Leather-Cloth 
 Company Limited v. 256, 257 
 
 PAGE 
 
 Ames V. Parkinson . • . . 201 
 
 Amicable Assurance Society v. 
 
 BoUand 176 
 
 Amies v. Skillem . . . . 303 
 
 Amis, Witt v. . . . . 327 
 
 Amyot, Brown v. . . . . 264 
 Anchor Reversionarj' Company 
 
 Limited, Marriott v. . . 60 
 
 Anderson v. Coxeter . . . . 193 
 
 Currier. .. .. 41 
 
 V. Martindale . . 304 
 
 Petty V 383 
 
 Price V 263 
 
 Andrew r. Andrew . . . . 262 
 
 Andi'ews v. Diggs . . . . 98 
 
 Kempe v. .. . . 305 
 
 V. Partington . . 280 
 
 Windier 86 
 
 Angerstein, Tidswell r. . . 177 
 
 Angier v. Stannard . . . . 293 
 
 Annandale, Brown v. . . 238 
 
 Annesley, Macleod v. . . 283 
 Anon., 1 Atk. 262 .. ..155 
 
 1 Salk. 71 . . . . 190 
 
 2Ventr. 218 .. ..51 
 
 Anstruther, Ouseley v. . . 201 
 
 Antrobus, Cunningham v. . . 378 
 
 ?'. Smith .. ..36 
 
 Appleby, Pickering v. . . 204 
 
 Arbouin, Pritchard v. . . 349 
 
 Archer, Eyre r. . . . . 126 
 
 V. Gardiner . . . . 377 
 
 V. Kelly . . . . 296 
 
 V. Marsh . . . . 91 
 
 Armistead, De Begnis r. . . 89 
 Armory v. Delamirie . . 25, 26 
 Armstrong, TuUett v. 385, 386 
 
 Arnold, Rawsthom t;. .. 194 
 
 Ashbm-ner, Fletcher v. . . 287 
 
 V. M'Gurre . . . . 344 
 
 Warden v 264 
 
 Ashby V. Ashby . . . . 379 
 
 Lloyd V 318 
 
 Yevev 318 
 
 Ashford, Davies v. . . . . 287 
 
 Ashley v. Ashley . . • . 176
 
 XIV 
 
 INDEX TO CASES CITED. 
 
 Ashton V. Lord Langdale 
 Askew, Carey v. 
 
 Newton v. 
 
 Aspinall v. Pickford . . 
 Aston, Harvey v. 
 Atcheson, Scarpellini i\ 
 Atherton, Lackington r. 
 Atkinson v. Bell 
 Cla]5man v. . . 
 
 Atkyns i\ Kinnicr 
 Attenborough, Morley v. 
 Att.-Gen. v. Bouwens 
 
 V. Davies 
 
 V. Davison 
 
 Drake v. 
 
 Glubb V. 
 
 V. Graves 
 
 PAGE 
 
 . 348 
 
 . 323 
 
 . 298 
 
 . 30 
 
 . 370 
 
 . 376 
 
 . 44 
 
 . 40 
 
 126, 128 
 
 122 
 
 71, 72, 91 
 
 399 
 
 336 
 
 349 
 
 191 
 
 387 
 
 348 
 
 348 
 
 V. Hertford, Marqnis 
 
 342 
 
 T. Hope . . . . 336 
 
 V. Malkin .. ..267 
 
 March r 848 
 
 V. Meyrick . . . . 347 
 
 V. Tyndall . . . . 349 
 
 Attwater v. Attwater . . . . 345 
 
 Attwood V. ISIunuings • . . . 398 
 
 Aubert v. Maze . . . • 89 
 
 Aubin^'. Daly 199 
 
 Anldjo, Wallace r 378 
 
 Avery v. Langford . . . . 91 
 
 Scott r 184 
 
 Axtell, Young v. . . . . 315 
 
 Ayton V. Ayton . . . . 351 
 
 B. 
 
 of 
 
 Badcock, Saddlers' Company v. 179 
 ~ ' ..192 
 
 .. 50 
 .. .850 
 .. 899 
 351, 852 
 .. 299 
 .. 116 
 .. 320 
 .. 327 
 .. 351 
 .. 319 
 .. 292 
 .. 303 
 .. 269 
 .. 387 
 .. 368 
 .. 54 
 .. 31 
 .. 169 
 
 Badger, In re 
 
 V. Shaw 
 
 Bagley r. Mollard 
 Bagueley v. Hawley 
 Bagwell V. Dry 
 
 Law V. 
 
 Bailey v. Edwards 
 
 V. Macaulay 
 
 Baily, Snellgrove v. 
 Bain v. Lescher 
 Bainbridge, Hedley v. 
 Bainbrigge v. Blair 
 Baine, Willing v. 
 Bainton v. Ward 
 Baker v. Bayldon 
 
 V. Bradley 
 
 Heslop r. . . 
 
 V. Henderson 
 
 Leonard v. 
 
 PAGE 
 
 Baker, Lyon v. .. . . 292 
 
 Mos'ley v. .. . . 282 
 
 Balch V. Symes . . . . 31 
 
 Baldey v. Parker . . . . 41 
 
 Baldry, Norman v. . . . . 341 
 
 Baldwin, Ex parte Foss, Ee . • 255 
 
 Lloyd V 288 
 
 Balfour v. Ernest . . . . 320 
 
 • r. Welland .. ..288 
 
 Balgny, Broadhurst r. . . 293 
 
 Ball, Caldwell c 62 
 
 Gambart v. . . . . 251 
 
 Bamfield i: Tupper . . . . 82 
 
 Bamford, Brown v 386 
 
 Bank of England, Churchill v. 207 
 
 Eranklinv. .. 208 
 
 V. Lunn . . 206, 208 
 
 V. IMoffatt . . . . 208 
 
 V. Parsons . . 
 
 Richardson v. 
 
 Banks, Bell v 
 
 r. Gibson 
 
 Banner r. Lowe 
 
 Bannister, Eicholtz v. 
 
 Haley v. . , 
 
 Moodie v. . . 
 
 Banwen Iron Co. v. Barnett 
 Bai-ber v. Barber 
 
 Buckley v. . . 
 
 ?'. Fox . . 
 
 Knight V, 
 
 Mills r. 
 
 Barchard, Savill v. 
 Barclay, Ex parte 
 
 Hidson v. 
 
 r. Wainewright 
 
 Bardcll, Rex v. 
 
 Barden, In the Goods of, 
 
 Barham, Moor ?». 
 
 Power ;". 
 
 Baring v. Day . . 
 Barker v. Lea . . 
 
 ■ Price V. 
 
 Re 
 
 Stamper r, 
 
 V. Stead 
 
 Barlow, EiTat v. 
 
 Barnard, Earl of Glengall v. 
 
 Lyde V. 
 
 Barnes, Skey v. 
 Barnett, Brandao ■?'. . . 
 
 Banwen Iron Co. v. 
 
 Van V. . . 
 
 Barrack ?'. M'Culloch 
 Barrett zk Parry 
 Ban-ie, Glover v. 
 Barrow, Lysons v. 
 BaiTows, Hall v. 
 
 208 
 213 
 116 
 
 258 
 
 265 
 
 399 
 
 279 
 
 402 
 
 216 
 
 351 
 
 305 
 
 107 
 
 204, 280 
 
 84 
 
 30 
 
 14 
 
 128 
 
 263 
 
 186 
 
 328 
 
 362 
 
 399 
 
 30 
 
 378 
 
 311 
 
 180 
 
 888 
 
 320 
 
 279 
 
 347 
 
 84, 409 
 
 277 
 
 30 
 
 216 
 
 287 
 
 298 
 
 189 
 
 191 
 
 334 
 
 256, 257
 
 INDEX TO CASES CITED. 
 
 Beit's Trusts, In re . . 
 Barry, Haly v. 
 
 V. Nesham 
 
 Bai-tholoniew, Drybutter v. 
 Bartlett v. Bartlett . . 
 
 Ex pai'te 
 
 ?'. Gillard 
 
 Barton v. Barton 
 
 Beckton v. 
 
 r. Briscoe 
 
 V. Crofts 
 
 PAGE 
 
 . 408 
 . 207 
 . 316 
 . 210 
 . 408 
 . 389 
 . 346 
 . 369 
 . 347 
 . 386 
 . 43 
 . 374 
 . 116 
 , 312 
 . 27 
 
 Barton's Will, In re . . 
 Bartrop, Eyre r. 
 
 Bassett, Way r. . . 
 
 Bastard, Nicholls v. • • 
 
 Bate, Hunt v 73 
 
 Bateman, Brown v. .. . . 35 
 
 Bateman v. Davis . . . . 285 
 
 V. Ross . . . . 3SS 
 
 Bates -y. Cooke . . .. .. 183 
 
 Foster v. . . 
 
 Turby v. ,. 
 
 Bates & Redgate, Re 
 Bath, Ex parte . . 
 Bayldon, Baker v. 
 Baylis, Chowne v. 
 Beale v. Beale . . 
 Bear v. Bromley 
 Beard, Boulton v. 
 V. Egerton 
 
 .. 357 
 
 .. 40 
 
 .. 238 
 
 .. 133 
 
 .. 378 
 
 47, 397 
 
 .. 274 
 
 .. 214 
 
 .. 293 
 
 239, 241 
 
 Beaufort, Duke of, Wellesley v. 388 
 
 Beaumont v. Oliveira . . . . 349 
 
 Beaumont v. Reeve . . . . 76 
 
 Beavan v. Earl of Oxford . . 206 
 
 Beck, Newton v. . . . . 11 
 
 , Ward V. .. . . . . 57 
 
 Beckett, Donaldson v. . . 246 
 
 Beckford, Greening r, . . 409 
 Beckham ■?'. Drake .. 312,316 
 
 Beckton v. Barton . . . . 347 
 
 Beddoes, Brampton v. . . 91 
 
 Beer v. Beer 264 
 
 Belding v. Read . . . . 34 
 
 Bell, Atkinson v. ., . . 40 
 
 V. Banks 116 
 
 V. Bidgood . . . . 98 
 
 Bowlby I'. .. ..230 
 
 Hamilton v. . . . . 54 
 
 Hobson -y .. 410 
 
 Meux tf 408 
 
 Sanderson v. . . , . 29 
 
 Bellaris, Brown v. . . . . 298 
 
 Bellasis v. Ermine . . . . 370 
 
 Belton V. Hodges . . . . 134 
 
 Benedict, Montague v. . . 383 
 
 • Seaton v 382 
 
 Benham r. Broadhurst . . 1 27 
 
 Bennett v. Burton . . . . 170 
 
 Bennett, Ex parte 
 Page 11. . . 
 
 Benning, Sweet r. 
 
 Bensley v. Bignold 
 
 Benson v. Maude 
 
 Bentall v. Burn 
 
 Bentley v. Mackay 
 
 Benyon v. Maddison . . 
 
 Berchtoldt, Countess of, Earl 
 
 of Lonsdale v. 
 Bern, Hardy v.. . 
 Bernard, Coggs v. 
 Berndtson v. Strang . • 
 Bernes, Stanley v. 
 Bemey, West v. 
 Berriman v. Peacock . . 
 Berrington v. Evans 
 Best, Paull v. . . 
 Betts v. Barch. . 
 
 V. Kimpton 
 
 V. Menzics 
 
 Bevan, Ex parte 
 V. Walters 
 
 PAGE 
 
 . 344 
 
 . 180 
 , 247 
 . 89 
 . 341 
 . 42 
 . 298 
 . 266 
 
 266 
 .. 109 
 .. 27 
 .. 45 
 ., 325 
 .. 274 
 .. 18 
 102, 297 
 .. 155 
 .. 71 
 .. 376 
 .. 237 
 .. 313 
 .. 29 
 .. 18 
 . . 90 
 .. 166 
 .. 98 
 .. 89 
 
 Bewit, Whitfield v. . . 
 Biddell v. Leeder 
 Biddlecomb ik Bond . . 
 Bidgood, Bell -v. 
 Bignold, Bensley v. 
 
 Bill V. Cureton 298 
 
 Billingsley, Lady Shore v. . . 303 
 Bingham, Pardo v. . . . • 402 
 
 Binks, Harland « 299 
 
 Binnington c. Wallis . . 74, 90 
 
 Binns, Swallow v. . . .. 277 
 
 Birch, Watson v. • ■ . . 401 
 
 Bird V. Boulter 43 
 
 V. Browai . . . . . . 44 
 
 V. Gammon . . . . 82 
 
 Morley v 303, 351 
 
 V. Ralph 68 
 
 Bishop V. Elliott . . . . . . 15 
 
 Bishopp v. Colebrook . . • . 381 
 Bissett V. Burgess . . . . 69 
 
 Bittleston, Quartermaine v. . . 54 
 
 Bkck, Willis ^) 296 
 
 Blackburn, Hobson v.. . . . 349 
 Bhickburne, Strode v.. , . . 12 
 Blacklow V. Laws • • . . 384 
 Blades v. Higgs . . . . 22 
 Blair, Bainbrigge v. • • • • 292 
 1'. Bromley .. ..318 
 
 -y. Nugent.. .. .. 401 
 
 Blake, Dundas I' 406 
 
 Ex parte . . . . 296 
 
 V. Izard . , . . . . 35 
 
 r. White .. ..116 
 
 Blakelock, Stevenson v. . . 30 
 Bland, Ex parte .. ..134
 
 XVI 
 
 INDEX TO CASES CITED. 
 
 PAGE 
 
 Blantem, Collins v 88 
 
 Bligh V. Brent 305 
 
 Blight, Loveacres d. Mudge v. 307 
 Blisset V. Cranwell . . • • 307 
 
 Blofield, Abbot t; 376 
 
 Bloomer v. Darkes . • • • 128 
 
 Blount V. Burrow . • . • 328 
 
 Bloxham v. Sanders . . 43, 46 
 
 . -u.Elsee .. ..241 
 
 Blunden v. Desart . . . . 31 
 
 Blurton, Kirk 'y. .. •• 318 
 
 Blythe v. Granville . . . . 296 
 Boaler t?. Mayor .. ..116 
 
 Bodley v. Reynolds . . . . 46 
 Bogue V. Houlston . . . . 251 
 Boldero, GodsaU v. . . • • 177 
 
 Lushington v. . ■ 18 
 
 Bolland, Amicable Assm-ance 
 Society v. 
 
 V. Disney . . 
 
 Bollett, Bumby v. . . . • 
 
 Bond, Biddlecomb v. •. 
 
 • Smith V. .. 
 
 Booker, Van Casteel v. 
 Boosey r. Jefferj-s 
 
 Jefferys v. 
 
 Booth V. Booth. . 
 
 Kirkman v. • • 
 
 Martindale t\ . . 
 
 Whale V. 
 
 Boothby, Morley i\ . . 
 Borman, Scarborough v. 38 
 Boss V. Godsall . . 
 Botfield, Bradbume «... 
 Boucher, Prescott v. . . 
 Boughton, Knight v. . . 
 
 ■ Lord St. John v. • 
 
 Boulter, Bird v 
 
 Boulton V. Beard 
 
 V. Bull . . _ 
 
 Bourne, Dowbiggin r. . . 
 
 ■ V. Fosbrooke . . 
 
 Hawken v. 
 
 Boutts v. Ellis 
 
 Bouwens, Attorney-General v. 
 Bowden, Jones v. 
 Bower, Nicholson ^^ . . 
 
 V. Harris 
 
 Mexborough v. 
 
 Boweren, Grymes v 
 
 Bowes, Countess of Strathmore 
 
 V. 
 
 Bowker, Wilmshurst v. 
 
 Bowlby t'. Bell 
 
 Bowles's case . . 
 Bowley, Reynolds v. . . 
 Bowman, Mullen r. . . 
 Bowser v. Cox . . 
 
 176 
 
 176 
 
 399 
 
 166 
 
 108 
 
 45 
 
 246 
 
 248 
 
 203 
 
 315 
 
 48 
 
 339 
 
 79 
 
 386 
 
 . 286 
 
 . 304 
 
 . 377 
 
 . 264 
 
 • 401 
 
 . 43 
 
 . 293 
 
 , . 239 
 
 ,. 114 
 
 26, 36 
 
 , . 319 
 
 . . 327 
 
 336 
 
 400 
 
 41 
 
 121 
 
 183 
 
 14 
 
 Bowsher, Davis v. 
 Bowyer v. Woodman 
 Boyd V. Boyd . . 
 
 V. Shorrock 
 
 BoydeU v. M'Michael . 
 
 383 
 45 
 230 
 19 
 314 
 352 
 116 
 
 PAGE 
 
 .. 30 
 .. 403 
 .. 361 
 .. 50 
 .. 16 
 Boyle V. Bishop of Peterborough 272 
 
 Ex parte 155 
 
 Bracebridge v. Cook . . • . 374 
 Bradbume v. Botfield . . . • 304 
 
 Bradley, Baker v. . . . . 386 
 
 V. Copley . . 25, 49 
 
 Hampshire v. . . . . 293 
 
 Perkins v. . . . . 47 
 
 Wren v. . . . • 387 
 
 Bradsey ^•. Clyston .. ..189 
 Bradshaw, Custance v. • • 305 
 
 Yeoman tJ. .. •• 110 
 
 Bradyl, Bixrridge v. . . . . 346 
 
 Braithwaite v. Britain . . 312 
 
 t\ Skinner . . 6 
 
 Bramah v. Roberts . • . . 319 
 
 Brampton t\ Beddoes . . . . 91 
 
 Bramwell v. Eglinton. . . . 172 
 
 Brandao v. Bamett . . . . 30 
 
 Brander v. Brandcr • . . . 263 
 
 Brandon v. Robinson,' . . . . 385 
 
 Brathwait, Larapleigh v. . . 73 
 Brearey, Roundell v. . . . . 297 
 
 Brembridge, Evans v.. • . . 311 
 
 Brent, Bligh v 305 
 
 Brereton, Drosier r. . . • . 282 
 
 Brett V. GreenweU . . • . 377 
 
 Briant, Philpot v 117 
 
 BricetJ. Stokes 293 
 
 Bridge v. Bridge . . . . 298 
 
 -y. Cage 90 
 
 1;. Yates .. ..303 
 
 Bridges, Etty r 409 
 
 v. Hawkesworth . . 26 
 
 Brierley iK Kendall . . . . 49 
 
 Briggs V. Chamberlain . . 382 
 
 Bright, Jones v.. . • . • . 400 
 
 Bright's trusts 407 
 
 Briscoe, Barton v. . . . . 386 
 
 Hanchctt r 381 
 
 Brise, Matthews v 282 
 
 Bristead v. Wilkins . . . . 207 
 
 Bristol and Exeter Railway 
 
 Company, Coombs 'V. . . 42 
 
 Bristowe v. Warde . . . . 273 
 
 Britain, Braithwaite v. • • 312 
 
 British Empire Shipping Com- 
 pany r. SomeB . . . . 29 
 Broadbent, Mason r. .. . . 403 
 Broadhurst v. Balguy . . . . 293 
 
 Benham v. . . 127 
 
 Brockelbank, Stocker v. . . 316 
 Bromage v. Lloyd . . . . 85
 
 INDEX TO CASES CITED. 
 
 XVll 
 
 Bromhead, Wilkius i 
 Bromley, Bear v. 
 
 Blair v. 
 
 Bromley v. Brunton 
 Brooke r. Enderby 
 
 V. Haynes 
 
 V. Mitchell 
 
 188 
 
 Brooks V. Keith 
 Broom v. Broom 
 Broughton ^1. Broughton 
 Brown v. Allen 
 
 V. Amyott 
 
 V. Aunandale . . 
 
 V. Bamford 
 
 V. Bateman 
 
 V. Bellaris 
 
 Bird V. .. 
 
 Collins' Co. V. 
 
 V. Edgington . . 
 
 Jennings v. 
 
 V. Lee . . 
 
 Metropolitan Counties, 
 
 &c. Society c. . . 
 
 V. Pocock 
 
 Richardson v. 
 
 V. Vawser 
 
 Wakefield v. . . 
 
 r. Weatherby . . 
 
 Cavendish . . 
 
 Browne v. 
 
 V. Hammond . 
 
 ■ Pfleger v. 
 
 r. Savage 
 
 Brownlow, Nixon r. . . 
 Brownrigg, Bryson r. 
 Brownsmith, Wilson r. 
 Brumridge r. Brumrid^ 
 Bruning, Smith v. 
 Brunton, Bromley v. . . 
 Bryan v. Clay . . 
 
 Hemsworth v. . 
 
 Bryans v. Nix . . 
 Bryant, Hollis v. 
 
 Laythoarp v. . 
 
 Bryce, Cannan 
 Bryson v. Brownrigg . . 
 Buchanan, Fleming v. 
 Buck, Sutton v. 
 Buckhurst's case 
 Buckingham, Earl of, v. Dru 
 Buckland r. Johnson .. 
 Buckley v. Barber 
 
 V. Gross 
 
 Earl of Stafford v. 
 
 Ex parte 
 
 Buckley's trust 
 Bull, Boulton 'V. 
 
 V. Faulkner 
 
 Bunn r. Markham 
 W.P.P. 
 
 PAGE 
 . 40 
 
 . 214 
 , 318 
 . 327 
 , 315 
 . 330 
 189 
 296 
 305 
 292 
 344 
 264 
 238 
 386 
 35 
 298 
 44 
 256 
 400 
 76 
 115 
 
 14 
 
 385 
 399 
 197 
 304 
 312 
 299 
 352 
 120, 122 
 . 408 
 . 212 
 . 327 
 . 345 
 . 294 
 . 370 
 . 327 
 . 69 
 . 188 
 . 37 
 . 167 
 . 81 
 89, 92 
 . 327 
 . 269 
 27 
 10 
 372 
 46 
 305 
 26 
 199 
 318 
 294 
 239 
 31 
 327 
 
 PAGE 
 
 Burch, Betts v. . . ..71 
 
 Burdiss, CaiT v. . . . . 38 
 
 Burford, Dix v 293 
 
 Burge, Heyhoe tJ. .. .. 316 
 Burgess, Bissett v. . . . . 69 
 
 Ransome r. .. .. 280 
 
 Tappenden c. .. 123 
 
 Williams v. . . 101 
 
 Burghart, Lane v. ,. . . 79 
 
 Burke v. Jones . . . . 405 
 
 Burley, Gilly v 263 
 
 Burn, Bentall v 42 
 
 r. Bum .. .. ..319 
 
 Bumbv r. Bollett . . . . 399 
 Burnell, Gale ;•. . . 34, 49 
 
 Burnet r. Mann , . . . 362 
 
 Burridge v. Bradyl . . . . 346 
 
 Burrough v. Moss . . . . 375 
 
 BiuTow, Blount v 328 
 
 Burrowes, Stuart v. . . . . 332 
 
 Bm-ton, Bennett i\ . . . . 170 
 
 Goode V. . . . . 11 
 
 i\ Hughes . . . . 28 
 
 Bury, Petrie v. . . . . 302 
 
 Bush, Hart v 42 
 
 'V. Shipman . . . . 122 
 
 Bushell v. Wheeler . . . . 41 
 Busk r. Davis . . . . . . 40 
 
 Pickering v 398 
 
 Butcher v. Butcher . . . . 296 
 
 V. Jackson . . . . 275 
 
 Butler, Falkner v 273 
 
 Butterfield, In re . . . . 315 
 
 Byers, Wilkinson v. . . . . 120 
 
 B}Tig r. Lord Strafford . . 266 
 
 Byi-ne, Ward v. . . . . 91 
 
 Byron v. Byron . . . . 78 
 
 Bywater, Wrightson v. . . 191 
 
 Cadogan v. Earl of Essex . . 286 
 
 Cage, Bridge v. . . . . 90 
 
 Caldwell v. Ball . . . . 62 
 
 Calvert v. London Dock Com- 
 pany . . . . . . ..116 
 
 Camm, Goulder v. . . . . 386 
 
 Campbell r. Campbell . . 292 
 
 V. Home . . . . 275 
 
 Macarthur v. . . 194 
 
 Campion v. Cotton . . . . 74 
 
 Candish, Wilkinson v. . . 133 
 
 Cannan v. Bryce . . 89, 92 
 
 Cannings v. Flower . . . . 279 
 
 Careless, Rachfield r. . . 352 
 
 Carew, Clive t'. . . . . 386 
 
 Carey r. Askew . . .323
 
 XVIU 
 
 INDEX TO CASES CITED. 
 
 Carey, Collins v. 
 
 Cargie r. Aitcheson . . 
 
 Aitchesou v. . . 
 
 Carlisle, Earl of, Lechmere '•. 
 
 Carlon, Clack v. 
 
 Carpenter v. Smith . . 
 
 Tebbs V 
 
 Carr, Allatt v. 
 
 V. Burdiss 
 
 Carrick, Freshney v. . . 
 
 Carrington, Ex parte . . 
 
 Carruthers, Parkin v. . . 
 
 Carstairs, Ex parte . . 
 
 Maltby v 
 
 Carter v. Crick 
 
 ■ V. Taggart . . 264, 
 
 V. Whalley 
 
 Cartwright v. Cartwright 
 
 1\ Vawdry 
 
 Carver, Waugh v. . . 316, 
 
 Case, Hartley v. 
 
 South Carolina Bank v. 
 
 Cassell, In re . . 
 
 V. Stife . . 
 
 Castle V. Sworder 
 
 Castrique, Ilderton v. . 
 
 Catchpole, Cook v. 
 
 Caulfield v. Maguire . 
 
 Cautley, Foster v. 
 
 Cave V. Cave . . 
 
 Farquharson v. . 
 
 V. Roberts 
 
 Cavendish, Browne v. 
 
 Chadvvick *'. Doleman. 
 
 Chaloner, Horsley v. 
 
 Chamberlain, Briggs v. 
 
 • V. Williamson . 
 
 Chambers, Willet v. . . 
 
 Champernown v. Scott 
 
 Champneys, Sturgis v. 
 
 Chandler, Kensington t\ 
 
 Channon v. Patch 
 
 Chanter v. Hopkins 
 
 Chaplin, Ex parte 
 
 V. Rogers 
 
 Chapman, Howse v. 
 
 May 'V. 
 
 V. Milvain 
 
 Charlesworth, Malcolm 
 
 Chase, Goodman r. 
 
 Cherry v. Hemming 
 
 Cheslyn v. Dalby 
 
 Chesterfield and Midland Silk- 
 stone Colliery Co. Limited v. 
 Hawkins 
 
 Cheyne, Eccles v. 
 
 Chichester, Coventry r. 
 
 Smith V 
 
 AGE 
 
 292 
 191 
 192 
 287 
 292 
 237 
 201 
 
 35 
 
 38 
 
 49 
 133 
 314 
 116 
 116 
 399 
 379 
 315 
 387 
 350 
 319 
 
 87 
 319 
 196 
 254 
 
 42 
 127 
 184 
 114 
 272 
 
 16 
 327 
 364 
 299 
 273 
 342 
 382 
 
 67 
 318 
 
 31 
 377 
 298 
 
 18 
 399 
 282 
 
 36 
 347 
 
 87 
 214 
 379 
 
 79 
 
 80 
 
 82 
 
 127 
 
 352 
 
 347 
 
 31 
 
 Chidell V. Galsworthy . 
 Child V. Morley 
 Chiswell, Gray v. 
 Chitty, Hulme jj. 
 ChoUett V. Hoffman . 
 Cholmeley r. Paxton . 
 Chowne v. Baylis 
 Chmrchill r. Bank of England 
 V. Small 
 
 Churchward v. Studdy 
 Cburton v. Douglas . 
 Citv of London Steam Packet 
 
 PAGE 
 
 35 
 203 
 312 
 
 388 
 
 245 
 
 19 
 
 47, 397 
 
 207 
 
 12 
 
 21 
 
 257, 258 
 
 Company, Fenton r. 
 Clack i'. Carlon 
 Clancy c. Piggott 
 Clapman v. Atkinson . 
 Clare, Ridgway v. 
 Claridge, Hollis v. 
 Clarke v. Abingdon, Lord, 
 
 Groves v. . . 
 
 Hopkins v. 
 
 ?'. Parker . . 
 
 Rawlinson v. 
 
 In re 
 
 V. Seton . . 
 
 V. Shee . . 
 
 Smith V. . . 
 
 v. Williams 
 
 Clarkson, Wild c. 
 Clay, Bryan v. . . 
 Clayton v. Kynaston 
 Cleave v. Jones 
 Clegg V. Clegg.. 
 
 V. Rowland 
 
 Clift V. Schwabe 
 Climie v. Wood 
 Clive, Carew v. 
 Close V. Close . . 
 
 v. Waterhouse 
 
 Clough V. French 
 V. Lambert 
 
 Clulow, In re . . 
 Clyston, Bradson r. 
 Cobb, Rishton v. 
 Cock, Lashbrook v. 
 Cockburn, Daubney v 
 
 Ex parte 
 
 V. Peel 
 
 Cocksedge v. Cocksed, 
 Coggs V. Bernard 
 Coker, Hitchcock v. 
 .Col beck. In re . . 
 Cole, Kearsley v. 
 
 Kerrison *;. 
 
 Colebrook, Bishopp v. 
 Colegrave v. Dias Santos 
 Coles V. Turner 
 Collectors of Customs, Rex v, 
 
 308 
 
 62 
 292 
 
 79 
 
 6, 128 
 
 313 
 
 31 
 108 
 378 
 172 
 370 
 316 
 318 
 108 
 395 
 
 85 
 126 
 108 
 
 69 
 311 
 
 82 
 296 
 342 
 176 
 
 14 
 386 
 116 
 
 30 
 105 
 388 
 264 
 189 
 369 
 307 
 275 
 127 
 284 
 387 
 
 27 
 
 91 
 316 
 311 
 
 90 
 381 
 
 14 
 127 
 305
 
 INDEX TO CASES CITED. 
 
 Collett, Meryon v. 
 
 r. Morrison 
 
 Collins V. Blantern 
 
 V. Carey 
 
 V. Collins 
 
 Drew V. 
 
 • Hobby V. 
 
 i\ Lamport 
 
 Lowndes v. . . 
 
 V. jMartin 
 
 ■ Com]xiny v. Brown . 
 
 Collinson, Holderness v. 
 Colvin, Wilton r. 
 Combe, Ward v. 
 Compton, Peter i\ 
 
 Right d. Compton v 
 
 Conduitt V. Soane 
 Congreve, Douglas v. . . 
 
 -v. Evetts 
 
 Conquest, Marsh v. 
 Cook, Bracebridge r. . . 
 
 V. Catchpole 
 
 V. Cook . . 
 
 V. Wright 
 
 Cooke, Bates v. 
 
 • V. Fuller 
 
 V. Whorwood . . 
 
 Cookson V. Cookson . . 
 
 V. Reay 
 
 Coombs V. Bristol and Exeter 
 
 PAGE 
 
 . 267 
 . 177 
 . 88 
 . 292 
 . 195 
 . 128 
 . 382 
 . 60 
 . lU 
 . 87 
 . 256 
 . 30 
 . 296 
 . 263 
 . 80 
 '. 370 
 . 262 
 . 296 
 . 35 
 . 248 
 . 374 
 . 184 
 . 183 
 . 74 
 . 183 
 . 390 
 . 192 
 . 305 
 . 288 
 
 Railway Company 
 V. Coombs 
 
 Coope V. Cresswell 
 
 V. Tw3"man 
 
 Cooper, Davidson v. 
 
 Edwards v. 
 
 ■ Haymes v. 
 
 V. Johnson 
 
 Loveridge v. 
 
 V. Shepherd 
 
 V. Willomatt 
 
 tK Woolfit 
 
 Cope V. Rowlands 
 Copeland, Morton v. 
 Copis V. Middleton 
 Copley, Bradley v. 
 Coppin, Dillon v. 
 Corbet, Ewer v. 
 
 Cordell, Elliott v 
 
 Corles, Dipple v. 
 Cornforth v. Smithard 
 Cornthwaite, Frith v. . . 
 Comwallis, Lassells v. 
 Cornwell, Aldous i?. . . 
 Corporation of Liverpool, Scott 
 
 V. 
 
 Corrance i'. Corrance . . 
 
 .. 42 
 .. 356 
 
 .. 402 
 .. 116 
 .. 88 
 .. 298 
 .. 32 
 .. 188 
 407, 409 
 .. 46 
 .. 28 
 .. 17 
 ., 89 
 .. 248 
 .. 114 
 25,49 
 36, 75 
 .. 339 
 
 379 
 73 
 
 77 
 299 
 269 
 
 184 
 391 
 
 PAGE 
 
 .. 74 
 .. 347 
 291, 296 
 .. 281 
 30,32 
 
 40 
 
 Cotton, Campion v. . . 
 Coventry v. Chichester 
 
 V. Coventry . . 
 
 Lord, L}'gou v. 
 
 Cowell IK Simpson 
 Cowley, Earl, v. Wellesley 
 Cox, Bowser v. 
 Coxeter, Anderson ??. . . 
 Craddock, Lake v. 
 Cradock v. Piper 
 Craig, Downes v. 
 Crallan v. Oultou 
 Cramer ?j. Moore 
 Cranefeld, Freake i\ . . 
 Cranley v. Hillary 
 Cranraer's case 
 Cranwell, Blisset v. 
 Craythorne v. Swinburne 
 Creed v. Perry.. 
 Cresswell, Coope v. 
 
 Green v. 
 
 Creswick t\ Woodhead 
 Crick, Carter v. 
 Cripps V. Hartnell 
 Ci'istall, Ferguson v. . • 
 Crofton V. Poole 
 Crofts, Barton v. 
 
 Elves V. 
 
 Croinpe, Martin v. 
 Cross, Re 
 Crosskey, European, &c. Ship- 
 ping Co. V. . . . . ..196 
 
 Crossley v. Dobson . . . . 309 
 
 Crow V. Robinson . . . . 207 
 
 Croydon Canal Co., Hodges v. 403 
 Cruger v. Dunlop . . . . 128 
 
 Cruise v. Hunter . . . . 388 
 
 Cruttwell V. Lye . . . . 258 
 
 Cubitt, Stansfeld v 50 
 
 Cubley, Pigot v. . . 27, 28 
 
 Cullingworth v. Lloyd . . 122 
 
 Cullwick V. Swindell . . . . 14 
 
 Cumber v. AVane . . . . 120 
 
 Cunningham v. Antrobus . . 378 
 Cunynghame v. Thurlow . . 275 
 
 Cureton, Bill v 298 
 
 Curling ?j. Flight .. ..410 
 
 Currey, Wilmer v. . . . . 309 
 
 Currie v. Anderson . . . . 41 
 
 Cusack V. Robinson . . . . 41 
 
 Custanre v. Bradshav/ . . 305 
 
 Cutbush V. Cutbush . . . . 315 
 
 Cutfield, Wardroper v. . . 264 
 
 Cuthbert v. Dobbin . . . . 100 
 
 Cutler, In re 377 
 
 Cutten V. Sanger . . . . 298 
 
 b 2 
 
 . 116 
 . 193 
 . 305 
 . 292 
 . 68 
 . 405 
 . 296 
 5,406 
 . 122 
 . 346 
 . 307 
 . 116 
 . 381 
 . 402 
 . 79 
 . 330 
 . 399 
 . 79 
 25,28 
 . 158 
 . 43 
 . 91 
 . 305 
 . 205
 
 XX 
 
 INDEX TO CASES CITED. 
 
 D. 
 
 PAGE 
 
 . 167 
 . 82 
 
 Dabbs, Ford v. 
 
 Dalby, Cheslyn i\ 
 
 V. India and London Life 
 
 Assurance Company . . 177 
 
 Dale, Drayton v. . . . . 158 
 
 Dalton, In re 371 
 
 Daly, Aubin v. .. . . 199 
 
 Dalzell, Lynch v. . . . . 179 
 
 Danby, Trimmer v. . . . ■ 264 
 
 Daniel, Kirwan v. . . ■ ■ 299 
 
 Daniell v. Dudley . . . . 267 
 
 Darby v. Darby . . . . 305 
 
 Darell, Hales t\ . . . . 346 
 
 Sturgis V. . . . . 404 
 
 Darkes, Bloomer v. . . . ■ 128 
 
 Darlington District Joint Stock 
 
 Banking Company, Ex parte 
 Dartmouth, Lord, Howe v. . . 
 Darton, Moore r. 
 Daubeny v. Cockbum . 
 Davenport, Elliott v. . 
 Ex parte . 
 
 Davids, Jones v. 
 Davidson v. Cooper 
 
 Ex parte 
 
 Davies v. Ashford 
 
 319 
 201 
 .. 327 
 .. 275 
 266, 351 
 .. 37 
 .. 114 
 
 Attorney-General r. 
 
 V. Humphreys . . 
 
 V. Penton 
 
 V. Stainbank . . 
 
 V. Vernon 
 
 Davis, Bateman v. 
 
 V. Bowsher 
 
 Busk r. . . 
 
 V. Earl of Dysart 
 
 Godfi'ey v. 
 
 V. Mason . . 
 
 Shepley v. 
 
 Davison, Attorney-General 
 Daw V. Eley 
 Dawes v. Peck. . 
 Dawson r. Kearton . . 
 Pearson v. 
 
 248 
 
 287 
 
 349 
 
 .. 116 
 
 .. 71 
 
 .. 116 
 
 10, 12, 31 
 
 .. 285 
 
 Day, Baring v. 
 
 Hulkes V. 
 
 Wallis V. 
 
 Deakle, Pain v. 
 
 Dean r. Hogg . . 
 
 Dearie r. Hall . . . . 40 
 
 De Begnis t\ Armistead 
 
 De Castro, Willis i: . . 
 
 Dedire, Freemoult v. . . 
 
 Deeks v. Strutt 
 
 Deering v. Earl of Winchelsea 115 
 
 De la Crouee, Hambidge v. . . 319 
 
 De la Garde v. Lempriere . . 378 
 
 Delamirie, Armory r. . . 25, 26 
 
 . 30 
 . 40 
 , 12 
 . 350 
 . 91 
 . 40 
 i: 191 
 . 240 
 42,45 
 . 76 
 37,42 
 . 30 
 . 207 
 . 91 
 . 189 
 . 62 
 409 
 89 
 311 
 297 
 6 
 
 PAGE 
 
 De Mattos, De Pothonier r. . . 117 
 
 De Mautort r. Saunders . . 312 
 
 Denby, Atkinson v. . . . . 122 
 
 Denny, Floiy v. . • . . 39 
 
 De Pass, Lyons v. . . • • 396 
 
 De Pothonier r. De Mattos . . 117 
 
 De Proven, Duplex ik . • 102 
 
 Desanges, Thomas v. . . . . 150 
 
 Desart, Blunden v. .. . • 31 
 
 Desbrisay, Fearon v. . . . . 275 
 
 Detastet, Ex parte . . . . 313 
 
 Devaux v. Steinkeller . . . . 84 
 
 Devaynes v. Noble . • 121, 312 
 Devereux i: Kilkenny, &c. 
 
 Railway Company . . . . 212 
 
 Dewdney, Ex parte . . . . 405 
 
 Dewhirst v. Jones . . • • 126 
 
 V. Kershaw . . . . 127 
 
 D'E}Ticourt r. Gregory . . 15 
 
 Dias Santos, Colcgrave r. . , 14 
 
 Dickie, Gibson v. . . . . 74 
 
 Dickinson r. Ivitchen . . . . 60 
 
 Orr r 61 
 
 V. Teesdale . . . . 406 
 
 t\ Valpy . . . . 319 
 
 Diggs, Andrews i\ . . . . 98 
 Dillon V. Coppin . . 36, 75 
 
 Dimsdale r. Robertson . . 189 
 
 Dipple V. Corles . . . . 73 
 
 Disney, Bolland v. ■ ■ . . 176 
 
 Dix r. Burford . . . . 293 
 
 Dixie, Wood v 52 
 
 Dixon, Fisher v. . . . . 16 
 
 V. Yates . . 37, 44, 45 
 
 Dobbin, Cuthbert v 100 
 
 Dobree, Ruddell v 327 
 
 Dobson, Crosslev v. ■ . . . 309 
 
 Dodd, Lewen v.' . . . . 307 
 
 Doe d. Esdaile v. Mitchell . . 150 
 
 d. Morrison v. Glover . . 232 
 
 d. Stace v. Wheeler . . 330 
 
 Doleman, Chadwick v. . . 273 
 
 Dolland, Kensington t\ . . 384 
 
 Dominv, Thompson r. . . 62 
 
 Donaldson v. Beckett . . . . 246 
 
 V. Donald: on . . 298 
 
 Doncaster v. Doncaster . . 265 
 
 Donellan i\ Reid . . . . 80 
 
 Doran v. Wiltshire . . . . 288 
 
 Dorrien, Lucas i'. . . . . 37 
 Dorrill, Routledge r. . . 274, 276 
 Douglas, Churton v. . . 257, 258 
 
 ■ V. Congreve . . . . 296 
 
 V. Russell . . . . 62 
 
 Dover v. Alexander . . . . 350 
 
 Dowbiggen r. Bourae. . . . 114 
 
 Dow ling. Wade v. . . . . 191 
 
 Downes v. Craig . . . . 68
 
 INDEX TO CASES CITED. 
 
 XXI 
 
 Downes ?•. Jennings . . 
 Do^Ynman, Motley v. • • 
 Downs, England r. 
 Dowson, Pickering v. . . 
 Drake i\ Attorney-General . . 
 
 Beckham v. .. 312, 
 
 Drayton v. Dale 
 Drew t'. Collins 
 Driver i'. Mawdesley . . 
 
 r. Scott 
 
 Drosier v. Brereton . . 
 Drummond, Evans v. . . 
 
 M'Leod r. 
 
 V. Parish . . 
 
 Drury, Earl of Buckingham t: 
 
 r. Scott 
 
 Dry, Bagwell v. . . 351, 
 
 Drybutter v. Bartholomew . . 
 Dubost, Ex parte 
 
 Morell V 
 
 Dudley, Daniel v. 
 
 V. Warde 
 
 Dufanr, Ex parte 
 
 DufE v. East India Companj^ . . 
 
 Gordon r. 
 
 Duffield V. Elwes 
 Duffy's trust, In re 
 Duke, Samuel v. 
 
 Sheppard r. 
 
 Duncan v. Topham . . 
 Dundas r. Blake 
 
 V. Dutens 
 
 Dungannon, Lord, Ker v. 
 Dunkley r. Dunkley . . 
 Dunlop, Cruger v. 
 
 r. Higgins 
 
 Dunnicliff r. Mallet . . 
 Duplex r. De Proven . . 
 Durant, James v. 
 
 V. Prestwood . . 
 
 Dumford v. Lane 
 Dutens, Dundas i\ 
 Dutton V. Morrison . . 
 Dyke v. Walford 
 Dykes, Tolson v. 
 Dysart, Earl of, Davis v. 
 
 E. 
 
 Eads V. Williams 
 Eardley v. Owen 
 Earle, Heinekey v. 
 
 Mare v. . . 
 
 East India Co., Duff r. 
 
 Murray r. 
 
 Venables iJ. 
 
 Easton V. London 
 
 AGE 
 
 383 
 257 
 383 
 399 
 337 
 316 
 158 
 128 
 299 
 293 
 282 
 315 
 339 
 323 
 372 
 296 
 352 
 210 
 
 36 
 
 99 
 267 
 
 16 
 133 
 318 
 3-14 
 327 
 379 
 396 
 401 
 
 81 
 406 
 206 
 261 
 378 
 128 
 
 81 
 307 
 102 
 296 
 362 
 371 
 206 
 123 
 355 
 172 
 
 12 
 
 . 191 
 
 . 296 
 
 ,. 45 
 122 
 
 , . 318 
 
 . . 404 
 
 , . 330 
 
 . . 12 
 
 Eastwood V. Kenyon . . 
 Eccles V. Cheyne 
 Ede, Mitchell v. 
 Edelston v. Vick 
 Edgeberry v. Stephens 
 Edgington, Brown i\ . . 
 Edmonds, Goodtitle d 
 ards V. 
 
 V. Low 
 
 Edmund v. Waugh 
 Edsun, Smarte v. 
 Edwards, Bailey v. 
 
 V. Cooper . . 
 
 V. Ereeman . . 
 
 -,,. Hall 
 
 V. Harben . . 
 
 V. Janes 
 
 V. Jones 
 
 PAGE 
 
 73,76 
 .. 352 
 .. 37 
 .. 257 
 .. 239 
 .. 400 
 Rich- 
 .. 266 
 .. 346 
 .. 403 
 .. 310 
 .. 116 
 ..298 
 .. 358 
 .. 348 
 .. 48 
 83 
 36, 298, 328 
 
 V. Countess of War- 
 
 26S 
 
 239, 241 
 
 wick . . 
 Egerton, Beard i\ 
 
 Eglinton, Bramwell r. . . 172 
 
 Eicholtz ?'. Bannister . . . . 399 
 
 Eley, Daw v 240 
 
 Elibank, Lady, v. Montolieu . . 377 
 
 Lord, Mun-ay v. . . 378 
 
 Elliot V. MeiTiman . . . . 339 
 
 Elliott, Bishop v 15 
 
 r. Cordell . . . . 379 
 
 V. Davenport . . 266, 851 
 
 V. Royal Exchange As- 
 
 surance Co. 
 Ellis, Boutts ?'. 
 
 r. Nimmo 
 
 Ellison r. Ellison 
 
 r. Elwin 
 
 Lyddon v. 
 
 Elsee, Bloxam v. 
 Elton, Ex parte 
 Elves V. Crofts 
 Elvy V. Norwood 
 Elwes, Duffield v. 
 Eorrest v. 
 
 ;;. Maw . • 
 
 Elwin, Ellison v. 
 Enderby, Brooke v. 
 England t'. Downes 
 
 King V. 
 
 184 
 
 327 
 
 75 
 
 298 
 
 379 
 
 274 
 
 241 
 
 313 
 
 91 
 
 403 
 
 327 
 
 293 
 
 .. 15 
 
 371, 379 
 
 .. 315 
 
 .. 383 
 
 33 
 
 36, 
 371. 
 
 201, 
 
 Equitable Reversionary Inte- 
 rest Society 'i-\ Fuller . . 285 
 El-mine, Bellasis i: . . . . 370 
 
 Ernest, Balfour v 320 
 
 EiTat V. Barlow . . . . 279 
 
 Erskine's trust . . . . 377 
 
 Espinasse, Petre r. . . . . 298 
 
 Essex, Earl of, Cadogan v. . . 286 
 
 Ettricke v. Ettricke . . . . 307 
 
 Ettv V. Bridges . . . • 409
 
 XXll 
 
 INDEX TO CASES CITED. 
 
 
 PAGE 
 
 European Co. v. Eoval 
 
 Mail 
 
 Co ".. 
 
 .. 60 
 
 European, &c. Shipping 
 
 Co. V. 
 
 Crosskey 
 
 .. 196 
 
 Evans, Berrington v. . . 
 
 102, 297 
 
 V. Bremridge 
 
 .. 311 
 
 V. Drummond . . 
 
 .. 315 
 
 Field V 
 
 .. 386 
 
 Legg V 
 
 25, 32, 49 
 
 V. Pi'osser 
 
 .. 370 
 
 V. Scott . . 
 
 .. 278 
 
 Wilkinson v. 
 
 .. 42 
 
 V. Williams 
 
 .. 102 
 
 Williams v. 
 
 .. 14 
 
 Everard v. Poppleton . . 
 
 .. 101 
 
 Everett, Eyre v. 
 
 .. 116 
 
 Evetts, Congreve v. . . 
 
 .. 35 
 
 Ewer V. Corbett 
 
 .. 339 
 
 Eyre v. Archer 
 
 .. 126 
 
 V. Bartrop 
 
 ,. 116 
 
 V. Everett 
 
 .. 116 
 
 Holland v. 
 
 .. 81 
 
 Eyres v. Faulkland . . 
 
 .. 261 
 
 Evton, Pott V. 
 
 .. 316 
 
 F. 
 
 Ealkner r. Butler . . . . 273 
 
 Earebrother r. Simmons . . 43 
 Farina v. Home . • . . 42 
 
 Farmer v. Smith . . . . 232 
 
 Sparrow v. . . . . 232 
 
 Farnell, Kiddill v 398 
 
 Farquhar, M'Queen v. . . 275 
 
 Farquharson v. Cave . . . . 327 
 
 Farr, Meredith v 350 
 
 FaiTant v. Thompson . . 16 
 
 Farren, Kemble v. • . . . 71 
 
 Fauldex", Harper v. . . . . 12 
 
 Faulkland, Eyres v 261 
 
 Faulkner, Bull v 31 
 
 Fearnhead, KnatchbuU f. . . 341 
 
 Fearon v. Desbrisay . . . . 275 
 
 Fentonw. City of London Steam 
 
 * Packet Company . . 
 
 Trueman i\ . . 
 
 Fenwick v. Greenwell 
 
 Ferguson v. Cristall . . 
 
 Sainter v. . . 
 
 Fergusson v. Norman 
 Femie, Hodgkinson v. 
 
 Young V. 
 
 Fesenmeyer, Johnson r. 
 Festing v. Allen 
 Fetherstone v. Hutchinson 
 Fettiplace v. Gorges . . 
 Fidgeon, Laing v. 
 
 62 
 . 76 
 . 294 
 25,28 
 . 71 
 . 89 
 . 192 
 . 237 
 . 134- 
 . 268 
 . 90 
 . 384 
 . 400 
 
 Field V. Evans 
 
 Northey v. 
 
 Yea V. 
 
 Fielder, Proudley v. . 
 Fielding v. Lee 
 Finney, Foden v. 
 Firm in v. Pulham 
 Fisher v. Dixon 
 
 V. Pimbley 
 
 Fitch v. Sutton 
 Fitzer v. Fitzer 
 Fleming v. Buchanan . 
 
 V. Self 
 
 Fletcher v. Ashbumer 
 
 V. Fletcher 
 
 Lechmere v. • 
 
 Young r. 
 
 PAGE 
 
 .. 386 
 
 .. 45 
 
 .. 10 
 
 .. 884 
 
 .. 54 
 
 .. 377 
 
 .. 293 
 
 .. 16 
 
 .. 192 
 
 .. 120 
 
 .. 388 
 
 .. 269 
 
 .. 232 
 
 .. 287 
 
 .. 388 
 
 .. 82 
 
 .. 134 
 
 .. 410 
 
 .. 71 
 
 .. 39 
 
 .. 279 
 
 .. 377 
 
 .. 304 
 
 .. 403 
 
 .. 81 
 
 .. 281 
 201, 293 
 
 .. 127 
 
 Flight, Curling r. 
 Flintoff, Homer r. 
 Flory V. Denny 
 Flower, Cannings v. . . 
 Foden 'v. Finney 
 Foley V. Addenbrooke 
 
 Paget V. • • 
 
 Foljambe, Ogilvie v. ■ . 
 
 V. Willoughby 
 
 Fooks, Pride v. 
 Foote, Woods v. 
 
 Ford V. Dabbs 167 
 
 V. Jones . . . . . . 196 
 
 '• V. Peering . . • • 12 
 
 Fordhara v. Wallis . . . . 83 
 
 Fordwich (iIayorof),Tomlinr. 191 
 Fores v. Johnes . . . . 91 
 
 Forrest v. Elwes . . 201 , 293 
 
 Fosbrooke, Bourne r. . . 26, 36 
 
 Foss, Ex parte, Re Baldwin . . 255 
 Foster v. Bates 
 
 V. Cautley 
 
 V. Pearson 
 
 '■ — V. Weston 
 
 Fourdrin r. Gowdey . . 
 Fowler v. Fowler 
 
 Marshall v. . . 
 
 Wishart v. . . 
 
 Fox, Barber v. 
 
 Freakley 'v. 
 
 V. Smith . . 
 
 Webb V 
 
 Francis v. Grover 
 
 11. Hawkesley . . 
 
 Viner v. 
 
 Franklin v. Bank of England 
 
 V. Hosier 
 
 V. Neate 
 
 Fi'anks, Ex parte 
 Eraser, In the Goods of 
 Mather v. 
 
 357 
 
 272 
 
 395 
 
 114 
 
 346 
 
 346 
 
 378 
 
 123 
 
 107 
 
 330 
 
 192 
 
 158 
 
 403 
 
 77 
 
 351 
 
 208 
 
 . 29 
 
 . 27 
 
 . 133 
 
 . 359 
 
 14,50
 
 IXDEX TO CASES CITED. 
 
 XXlll 
 
 PAGE 
 
 Fraser v. Palmer . . . . 292 
 
 V. Thompson . . . . 74 
 
 Freake v. Cranefeldt . . 405, 40(j 
 
 Freakley r. Fox . . . . 330 
 
 Freckcr, Norton v. . . . . 405 
 
 Freeland v. Pearson . . . . 352 
 
 Freeman, Ex parte . . . . 314 
 
 Edwai'ds v. . . • . 358 
 
 Freemoult v. Dedire . . . . 297 
 
 French, Clough v. . . . . 105 
 
 Ex parte . . . . 283 
 
 Frere, Thomason v 306 
 
 Freshney v. Carrick . . . . 49 
 
 Friar, Grey v 199 
 
 Frith, Cornthwaite v. . . 299 
 
 Frost, Williams v 23(1 
 
 Frowd, Moore v. . . . . 292 
 
 Fry, Ex parte 314 
 
 Fryatt, Reid w. .. ..189 
 
 Fuller, Cooke v 390 
 
 ■ , Equitable Reversionaiy 
 
 Interest Society «... . . 285 
 
 Furniss v. Leicester . . . . 399 
 
 G. 
 
 Gaffee, In re 386 
 
 Gale V. Bnmell . . 34,4:9 
 
 Griffiths t? 352 
 
 V. Walsh 86 
 
 Galsworthy, Chidell r. , . 35 
 
 V. Strutt . . . . 71 
 
 Gambart v. Ball . . . . 251 
 
 I'. Sumner . . . . 251 
 
 Gammon, Bu'd v. . . . . 82 
 
 Gardiner, Archer r. . . . . 377 
 
 Gardner v. Marshall . . . . 377 
 
 Gardom, Ex parte . . . . 318 
 
 Garland, Ex parte . . . . 315 
 
 Gamer v. Hannyngton . . 12 
 
 Garnet, Pierson i\ . . . . 274 
 
 GaiTard *'. Lord Lauderdale . . 299 
 
 Garrod v. Simpson . . . . 126 
 
 Gaskell v. King . . . . 90 
 
 Gaters v. Madeley . . . . 376 
 
 Gatty, Phillipson v 282 
 
 Gayler, Howell v. . . . . 267 
 
 Gaze, Love v. . . . . . . 353 
 
 Gee V. Gurney . . . . . . 275 
 
 Geldard, Robinson r. . . . . 349 
 
 Gent V. Harris 378 
 
 Gery, Humfrey v. . . . . 403 
 Gibbeson, Greenham v. . . 285 
 Gibbon, Kempe v. . . . . 402 
 Gibbons v. North-Eastern Me- 
 tropolitan Asylum District . . 81 
 Gibbs, Lindsay v. . . . . 62 
 
 Gibson, Banks v. 
 
 V. Dickie 
 
 Gresty ?'. 
 
 Gifford, Ex parte 
 
 Nugent V. 
 
 Gilbert v. Lewis 
 Richai-dson 
 
 201 
 
 Giles, Walker v. 
 Gilkes t\ Leonino 
 Gill, In the Goods of 
 
 r. Shelley.. 
 
 Gillard, Bartlett v. 
 Gilly V. Burley 
 Giraud, Hilton v. 
 Girdlestone, Watts v. 
 Glaysher, Ex parte 
 Gleaves v. Paine 
 Glendinning, Ex parte 
 Glengall, Earl of, r. Barnard . 
 Gloucester, Corporation of, 
 
 Trye v. 
 Glover v. Barrie 
 
 Doe d. Momson ?•. . 
 
 Morrison r. 
 
 Glubb V. Attorney-General . 
 Glynn, Morris v. 
 
 V. Thorpe 
 
 Goddard, Pedley v. 
 
 t\ Snow 
 
 Godden, Ex parte . . 12] 
 Godfrey v. Davis 
 
 r. Tumbull 
 
 Godsall V. Boldero 
 
 Boss V. 
 
 Goldsmid v. Goldsmid . . 
 Gomley r. Wood 
 Gomme, Hill v. 
 Goode V. Burton 
 Goodman v. Chase 
 
 r. Harvey . . 
 
 Goodtitle d. Richards *'. Ed 
 
 monds 
 Gordon v. Duff . . 
 
 V. Gordon 
 
 V. Harper .... i 
 
 Norcott V. 
 
 Gorges, Fettiplace v. . . 
 Gould, Weldon v. 
 Goulder v. Camm 
 Gowdey, Foudrin v. . . 
 Grace v. Smith 
 
 Webb V. 
 
 Grafftey i: Humpage . . 267 
 Graham v. Graham . . 346, 
 
 V. Londonderry 
 
 Grane, White v. 
 Grant v. Grant 
 Routledge r. 
 
 PAGE 
 
 258 
 74 
 127 
 116, 311 
 339 
 384 
 247 
 233 
 81 
 356 
 350 
 346 
 263 
 348 
 293 
 186 
 377 
 122 
 347 
 
 349 
 191 
 232 
 232 
 348 
 348 
 105 
 193 
 383 
 , 128 
 350 
 315 
 177 
 286 
 274 
 292 
 341 
 11 
 79 
 395 
 
 266 
 
 344 
 
 350 
 
 5, 28 
 
 3^6 
 
 384 
 
 30 
 
 386 
 
 346 
 
 316 
 
 370 
 
 , 296 
 
 , 391 
 
 374 
 
 281 
 
 108 
 
 81
 
 XXIV 
 
 IISTDEX TO CASES CITED. 
 
 PAGE 
 
 Grant v. Vaughan . . . . 395 
 Grantham v. Hawley . . . . 34 
 
 Granville, Blyth v 296 
 
 Graves, Attorney-General r. . . 348 
 
 V. Weld . . . . 17 
 
 Gray v. Chiswell . . . . 312 
 
 Hind V 91 
 
 Irving i: . . . . . . 128 
 
 v. Limerick, Earl of . . 273 
 
 V. Mathias 
 
 Great Northern Railway Com- 
 pany, Harwood r. . . 237 
 
 Pym V. . . . . 65 
 
 Great Western Railway Com- 
 pany, Rouch V. 
 Greaves v. Hepke 
 
 Shuttleworth r. 
 
 Steward r. 
 
 Greedy v. Lavender . . 
 Green v. Cresswell 
 
 Hardey v.. . 
 
 In re 
 
 Mathers v. 
 
 Price V. . . 
 
 V. Price . . 
 
 Greenberg ?'. Ward . . 
 Greenham r. Gibbeson 
 Greenhill, Rex r. 
 Greening r. Beckf ord . . 
 Green's Patent. . 
 Greenwell, Brett r. 
 
 Fenwick v. . . 
 
 r. Greenwell 
 
 Greenwood's case 
 Greese, Richardson v. . . 
 Gresham, Wiles v. 
 Gresty r. Gibson 
 Gregory, D'Eyncourt r. 
 
 Heckscher r. 
 
 Grey v. Friar . . 
 
 r. Stuart . . 
 
 Gx'iffin, Bishop of Hereford i- 
 
 Lee v. . . 
 
 Thompson v. , . 
 
 Griffith V. Ricketts . . 
 Griffiths V. Gale 
 Grimes v. Harrison . . 
 Gross, Buckley v. 
 Grote, Limbard v. 
 Grove v. Aflalo 
 Grover, Francis v. 
 
 Whittingstall v. 
 
 Groves t\ Clarke 
 
 V. Perkins 
 
 Giymes v. Boweren . . 
 
 Stratton v. 
 
 Guedalla, Moutefiore v. 
 Gunn, Pawle v. 
 
 150 
 
 37 
 
 344 
 
 . 214 
 
 . 381 
 
 . 79 
 
 . 296 
 
 . 341 
 
 . 307 
 
 . 71 
 
 90,91 
 
 . 127 
 
 . 285 
 
 . 389 
 
 . 409 
 
 . 245 
 
 . 377 
 
 . 294 
 
 . 279 
 
 . 217 
 
 • 346 
 
 . 285 
 
 . 127 
 
 . 15 
 
 . 203 
 
 . 109 
 
 . 296 
 
 . 247 
 
 . 42 
 
 . 280 
 
 287, 299 
 
 352 
 
 233 
 
 26 
 
 274 
 
 43 
 
 403 
 
 313 
 
 378 
 
 378 
 
 14 
 
 370 
 
 347 
 
 73, 204 
 
 Gumey, Gee v. 
 Guthrie, Hewison v. 
 
 Leslie v. 
 
 Gutteridge, Simmons 
 Guy, Styles v. . . 
 
 PAGE 
 
 275 
 
 33 
 
 62 
 
 330 
 
 293 
 
 H. 
 
 H. r. W 387 
 
 Hacon, Wills v. .. ..126 
 
 Haddan, Mason v. . . . . 184 
 
 Hadfield, Rnshforth v 30 
 
 Haigh, Howdon v. . . . . 122 
 
 Hale V. Saloon Omnibus Com- 
 
 pany 
 
 Hales V. Darell . . 
 Halesham v. Young . . 
 Haley r. Bannister 
 Halford r. Kymer 
 Hall v. Barrows 
 
 Dearie i\ . . 
 
 Edwards v. 
 
 V. Hardy . . 
 
 — Heath v. .. 
 
 v. Hewer . . 
 
 • r. Hugonin 
 
 r. Lawrence 
 
 Moss V. . . 
 
 T. Norfolk Estuary 
 
 pany 
 
 i'. Palmer.. 
 
 Pinkney v. 
 
 V. Potter . . 
 
 Reynolds v. 
 
 Stanton v. 
 
 Hallewell, Hawker v. . . 
 Halliday, Streatlield v. 
 Halthin, Steinmitz v. . . 
 Haly V. Bany . . 
 Hambidge v. De La Crouee 
 Hames r. Hames 
 Hamilton i'. Bell 
 
 V. Kirwan . . 
 
 Hammond, Browne v. . . 
 
 • V. Hammond 
 
 Hamper, Ex parte 
 Hampshire v. Bradley . . 
 Hanbury r. Kirkland . . 
 Hanchett r. Briscoe . . 
 Hancock v. Heywood . . 
 Handley, Keenan v. . . 
 Hanforth, Howell v. . . 
 Hannyngton, Gamer v. 
 Hanrott, Wombwell t. 2 
 Hanson v. Keating 
 
 v. Meyer 
 
 Harben, Edwards v. . . 
 
 40 
 
 Com 
 
 52 
 346 
 318 
 279 
 177 
 6, 258 
 409 
 348 
 196 
 117 
 274 
 381 
 196 
 116 
 
 93. 
 
 211 
 
 89 
 
 318 
 
 370 
 
 54 
 
 379 
 
 , 170 
 
 310 
 
 378 
 
 207 
 
 319 
 
 267 
 
 54 
 
 275 
 
 352 
 
 296 
 
 316 
 
 293 
 
 298 
 
 381 
 
 306 
 
 74 
 
 265 
 
 . 12 
 
 2,273 
 
 . 377 
 
 . 39 
 
 . 48
 
 INDEX TO CASES CITED. 
 
 XXV 
 
 PAGE 
 
 Harcourt i". Ramsbottuin . . 191 
 Hardey v. Green . • • • 296 
 
 Hardvr. Bern 109 
 
 1-Hall V 196 
 
 Hare r. Horton . . . . 14 
 
 ■ Hyat V 318 
 
 Harewood, Lord, Milner i: . . 371 
 
 Hai-ford, Neilson r 211 
 
 Harland r. Binks .. ..299 
 
 Harley v. Harley . . . . 381 
 
 Harmer v. Westmacott . . 255 
 
 Harms v. Parsons . . . . 91 
 
 Harnett v. Macdougail . . 386 
 
 Harper v. Faulder . . . ■ 12 
 
 Gordon v. . . 25, 28 
 
 Harrington v. Price . . . . 10 
 
 Harris, Ex parte . . . . 313 
 
 Gentv. .. ..378 
 
 r. Lloyd . . 168, 850 
 
 f.Wall 77 
 
 Harrison, Grimes v. . . . . 233 
 
 t). Jackson .. .. 319 
 
 n Paynter .. ..118 
 
 Harrobin, Pole v. . . . . 89 
 
 Harrop r. Howard . . • . 386 
 
 Hart i>. Bush 42 
 
 V. Stephens . . . . 376 
 
 Hartford r. Jones . . . . 30 
 
 Hartley v. Case . . . . 87 
 
 Hartnell, Cripps r 79 
 
 Harvey v. Aston . . . . 370 
 
 I Goodman v. ■ . . . 395 
 
 Harwood v. Great Northern 
 
 Railway Company . . . . 237 
 
 Haslam, Nickels r. . . . . 241 
 
 Hassell r. Hawkins . . . . 346 
 
 Hastings, Lord, Scott r. , . 207 
 Hawken v. Bom-ne . . . . 319 
 Hawker v. Hallewell . . 93, 170 
 Hawkesley, Francis v. . . 77 
 
 Hawkesworth, Bridges r. 
 
 ■, Wolverhampton 
 
 New Waterworks Company v. 
 Hawkins, Chesterfield and Mid- 
 land Silkstone Colliery Com- 
 pany Limited v. 
 
 Hassell v. . . 
 
 Hawley, In re . . 
 
 Bagueley v. . . 
 
 Grantham i\ . . 
 
 Haworth, Meyer i'. . . 
 Hay, Ex parte . . 
 
 V. Palmer 
 
 Hayes v. Haj^es 
 
 Massy v. . . 
 
 Haygarth, Taylor v. . ■ 
 Hayley, Hope v. 
 Haymen, Stapleton v. . ■ 
 
 26 
 
 211 
 
 127 
 
 346 
 
 196 
 
 399 
 
 34 
 
 76 
 
 313 
 
 265 
 
 344 
 
 384 
 
 364 
 
 35 
 
 57 
 
 Haymes v. Cooper 
 Haynes, Brooke v. 
 Hayter v. Tucker 
 Hayward, Williams v. 
 Head, March v. 
 Headington, Holloway r. 
 Heard 2j. Stamford 
 Heath v. Hall . . 
 
 V. Key 
 
 'V. Lewis . . 
 
 Heather, Richards v. . . 
 Heaver, Manser v. 
 Hebb's case 
 Hebdon v. West 
 Hecht, Hunt v. 
 Heckscher v. Gregory . . 
 Hedley v. Bainbridge . . 
 Heinekey v. Earle 
 Helleley, Johnson v. ■ . 
 Hellicar, Powell r. 
 Hembrow, Prior v. 
 Heming, Cherry i\ 
 
 V. Swinnerton . . 
 
 Hemsworth v. Bryan . . 
 Henderson, Baker v. . . 
 Wilkinson v. 
 
 330 
 348 
 233 
 377 
 
 75 
 382 
 117 
 116 
 370 
 309 
 191 
 
 81 
 176 
 
 41 
 203 
 319 
 
 45 
 258 
 327 
 188 
 
 80 
 186 
 188 
 
 31 
 312 
 274 
 381 
 303 
 330 
 
 37 
 
 Heneage v. Hunloke . . 
 Henning, Whittle v. . . 
 Henshaw, Williams v. . . 
 Hensloe's case . . 
 Hepke, Greaves v. 
 Hereford, Bishop of, v. Griffin 247 
 Herlaken den's case . . 17, 18 
 Hertford, Marquis of, Attorney- 
 General V 342 
 
 Hesilrige, M'Donnell r. . . 298 
 
 Heslop V. Baker . . . . 54 
 
 Ex parte . . . . 64 
 
 Hewer, Hall v 274 
 
 Hewison v. Guthrie . . . . 33 
 
 Hewitt V. Kaye . . . . 327 
 
 V. Price . . . . 230 
 
 Webb v 116 
 
 Hey hoe v. Burge . . . . 316 
 
 Hey wood, AUwood r. ■ . ■ . 12 
 
 Hancock v 306 
 
 Hibbert, Simond v. . . . . 30 
 
 Hickman, Wheatcroft v. . . 316 
 
 Hicks, Lovell v 318 
 
 Hidson v. Barclay . . . . 128 
 
 Higgins, Dunlop v. . . . . 81 
 
 1: Pitt 122 
 
 V. Sargent . . ..114 
 
 Seedy 242 
 
 Higgs, Blades v. ■ . . . 22 
 
 Hilbert, Tate v. . • 327, 328 
 
 Hillr. Gomme 341 
 
 Johnson v. . . . . 29
 
 XXVI 
 
 IXDEX TO CASES CITED. 
 
 Hill, Rex V. . . 
 
 V. Spencer 
 
 V. Thompson 
 
 Warbnrton v. . . 
 
 Hill's patent 
 
 Hillary, Cranley v. 
 
 Hillman, Tapfield v. ■ ■ 
 
 Hills r. Hills 
 
 V. Liverpool United Gas- 
 light Company 
 
 Hilton r. Giraud 
 
 Hinchcliffe r. Hinchcliffe 
 
 Hinchinbrook, Lord, Ship- 
 brook r. 
 
 Hind v. Gray . . 
 
 Hindley r.Westmeath, Marqrds 
 of .. 
 
 Hinton r. Pinke 
 
 Hirsch v. Im Tham . . 
 
 Hiscox, Willis r. 
 
 Hitchcock r. Cokcr 
 
 Hitchins r. Kilkenny, &c. 
 Railway Company . . 
 
 Hitchman v. Stewart . . 
 
 r. Walton . 
 
 PAGE 
 
 . 190 
 
 239, 241 
 .. 207 
 .. 237 
 .. 122 
 .. 34 
 .. 328 
 
 237 
 348 
 346 
 
 293 
 91 
 
 387 
 344 
 184 
 293 
 91 
 
 . 212 
 
 . 115 
 14, 16 
 
 . 40 
 
 . 296 
 
 . 261 
 
 . 382 
 
 . 382 
 
 . 410 
 
 . 349 
 
 52 
 
 31 
 
 327 
 
 134 
 
 Hoadley r. M'Lainc . . 
 Hoare v. Hornby 
 
 V. Parker 
 
 Hobby V. Allen 
 
 • t\ Collins 
 
 Hobson V. Bell. . 
 
 V. Blackburn . . 
 
 Hobson V. Thelluson . . 
 Hockley, Stead man c. . 
 Hodge, Walter r. 
 Hodges, Belton v. 
 - — V. Croydon Canal Com- 
 pany 403 
 
 Hodgkinson I". Fernie. . .. 192 
 
 Hodgson r. Loy . . . . 44 
 
 Nash v. . . 83, 121 
 
 r. Sliaw . . . . 114 
 
 Simonds r 182 
 
 Hodson V. Observer Life Assur- 
 ance Society . . 176 
 
 Wallis r 362 
 
 Hoffman, Chollett v. .. . . 245 
 
 Hogg, Dean r. . . . . . . 62 
 
 r. Skeen 319 
 
 Holden, Stokes v. . . . . 47 
 
 Holdemcss r. Collinsrn . . 30 
 
 V. Rankin . . . . 54 
 
 Holford V. Phipps . . . . 293 
 
 Holland v. E3Te . . . . 81 
 
 r. Hughes . . . . 201 
 
 Hollier, Ravenshaw r.. . . . 299 
 
 Hollinshead, Reid v 318 
 
 Hollis V. Bryant . . . . 167 
 
 Hollis V. Claridge 
 HoUoway v. Headington 
 Holmes v. Mackrell 
 
 V. Mitchell 
 
 V. Prescott 
 
 V. Tutton 
 
 Holroyd r. Marshall 
 Hoist V. Pownal 
 Homan, Owen t\ 
 Home, Campbell r. 
 Homewood, Leader i\ 
 Honner r. Morton 
 Hood, Wilson v. 
 Hooper v. Ramsbottom 
 
 i: Rossiter 
 
 Hope, Attorney-General i: 
 
 V. Hayley 
 
 V. Hope . • 
 
 Hopkins, Chanter v. 
 
 V. Clarke 
 
 V. Logan 
 
 r. Prescott 
 
 Tugman v. 
 
 Hopkinson v. Lee 
 Hopper, Re 
 Hornby, Hoare r. 
 Home, Farina r. 
 Horner v. Flintoff 
 Homsby r. Miller 
 Horsley v. Chaloner 
 Horton, Hare i\ 
 
 Richardson r. 
 
 V. Sayers 
 
 Wells V. 
 
 Hosier, Franklin v. 
 Hotham v. Somerville 
 Houghton V. Houghton 
 
 r. Matthews 
 
 Houlston, Bogue v. 
 How, Jones r. . . 
 
 Bidding v. 
 
 Howard, Harrop v. 
 
 i\ Rhodes 
 
 Howarth, Samuel v. . . 
 Howden v. Haigh . . . 
 Howe V. Lord Dartmouth 
 
 V. Synge . . 
 
 Whittaker v. 
 
 Howell i\ Gayler 
 
 V. Hanforth 
 
 r. M'lvers 
 
 Ho'wes, Morris v. 
 Howse V. Chapman 
 Hubbersty v. Manchester, Shef- 
 field, &c. Railway Company 211 
 
 Hudson, Smith v. . . 41, 45 
 
 Hughes, Burton v. . . . . 28 
 
 Holland v 201
 
 I]SDEX TO CASES CITED. 
 
 XXVll 
 
 PAGE 
 
 Hughes V. Kelly . . . . 403 
 
 V. Layton . . . . 233 
 
 Oldham v 287 
 
 Rann v. . . . . 72 
 
 Stoveld V 86 
 
 V. Stubbs . . . . 299 
 
 V. Wynne . . 108, 405 
 
 Hughes's trusts, re, . . . . 408 
 Hugonin, Hall v. , . . . 381 
 
 Hulkes V. Day 207 
 
 Hulme V. Chitty . . . . 388 
 
 Humble v. Mitchell . . 204, 230 
 
 M'lver V 315 
 
 Hume V. Richardson . . . . 284 
 Humfrey v. Gery . . . . 403 
 Humpage, Grafftey r. . . 207, 296 
 Humphrey, Peer v. . . . . 396 
 Humphreys, Davies v.. . ..116 
 Hunloke, Heneage c. . . . . 274 
 Hunt V. Bate 73 
 
 V. Hecht . . . . . . 41 
 
 Knight v.. . . . . . 122 
 
 V. Peacock . . . . 406 
 
 Hunter, Cruise v. . . . . 388 
 
 V. Nockolds . . . . 403 
 
 Huntley v. Russell . . . . 69 
 Hurst V. Jennings . . . . 109 
 ParnhamtJ. .. .. 117 
 
 Smith V. . . . . 299 
 
 Husbands, Ex parte . . . . 313 
 
 Hutchings v. Smith . . . . 379 
 
 Hutchinson, Fetherstone v. . . 90 
 
 Hyat V. Hare 318 
 
 Hyde v. Price . . . • • • 114 
 
 Idle's case 
 
 Ilderton v. Castrique . . 
 
 Ilfracombe Railway Company 
 
 Pickering r. .. 
 Im Thurn, Hirsch v. 
 India & London Life Assurance 
 
 Company, Dalby v. . . 
 Inge i\ Moseley 
 Ingham, Simson v. 
 Ingilby, Winn r. 
 Inglebach v. Nichols . . 
 Innes, Penny v. 
 Inns, Stalworth v. 
 Insole, Re 
 
 Irish Land Co., Norris v. 
 Irons V. Smallpiece 
 Irvine, Rannie v. 
 Irving V. Gray . • 
 
 Mercer «... 
 
 Iveson, Other v. 
 Izard, Blake v... 
 
 19 
 
 127 
 
 207 
 184 
 
 177 
 89 
 
 121 
 16 
 
 127 
 86 
 
 191 
 
 390 
 63 
 36 
 91 
 
 128 
 72 
 
 309 
 35 
 
 J. 
 
 Jackson, Butcher ?'. 
 
 Harrison v. 
 
 r. Jackson 
 
 V. Nichol 
 
 Pearse v. 
 
 Purdew v. 
 
 i: Sinclair 
 
 V. Thompson 
 
 Thorpe r. 
 
 V. Woolley 
 
 Jacquet v. Jacquet 
 Jacob, Worrall v. 
 James v. Durant 
 James, Richards v. 
 
 V. Thomas 
 
 Jamieson, In re 
 Janes, Edwards i\ 
 Janson, Ex parte 
 Jarvis, Smith v. 
 Jeffereys v. Small 
 Jeffery r. Jeffery 
 Jeffereyes, Watts v. 
 Jefferj^s r. Boosey 
 
 Boosey v. 
 
 Jenkins, Perry r. 
 
 Richardson r. 
 
 Jenkyn v. Vaughan 
 Jenkyns v. Usborne 
 Jennings v. Brown 
 Downes v. 
 
 Hurst V. 
 
 Rawlings v. 
 
 ■ r. Rigby 
 
 Jervis, Radburn z'. 
 Jervoise v. Jervoise 
 
 V. Silk . . 
 
 Jessopp i\ Watson 
 Johnes, Fores v. 
 Johnson, Buckland v. 
 
 Cooper V. 
 
 r. Fesenmayer 
 
 • V. Helleley 
 
 V. Hill . . 
 
 r. Johnson 
 
 Rawson v. 
 
 V. Stear 
 
 W^oiTall V. 
 
 Jones V. Bowden 
 
 V. Bright . . 
 
 Burke iK . . 
 
 Cleave v. . . 
 
 V. Davids. . 
 
 Dewhirst v, 
 
 Edwards v. 
 
 Ford i\ . , 
 
 Hartford t'. 
 
 V. How . . 
 
 PAGE 
 
 275 
 319 
 275 
 
 45 
 233 
 380 
 403 
 168 
 312 
 312 
 406 
 387 
 296 
 
 50 
 108 
 196 
 
 83 
 313, 314 
 318 
 305 
 
 75 
 206 
 248 
 246 
 404 
 106 
 298 
 
 45 
 
 76 
 383 
 109 
 200 
 102 
 199 
 374 
 280 
 362 
 
 91 
 
 46 
 188 
 134 
 258 
 
 29 
 352 
 
 43 
 
 28 
 
 31 
 400 
 400 
 405 
 
 82 
 
 114 
 
 126 
 
 ,328 
 
 196 
 
 30 
 296 
 
 36, 298,
 
 XXAIll 
 
 IXDEX TO CASES CITED. 
 
 Jones V. Lock . . 
 
 Macoubrev v. 
 
 Merryweather -!'. 
 
 V. Morris . . 
 
 Reillj V. . . 
 
 Scott 11. . . 
 
 Tyler r. . . 
 
 1'. Waite . . 
 
 Waite ;•. . . 
 
 Joyce V. Swann 
 Judson, Nicholls v. 
 Jukes, Ivilshaw v. 
 
 K. 
 
 Kain, Shepperd v. 
 Kaye, Hewitt v. 
 Keane, Mornington v. 
 Kearsley, Morris v. 
 
 r. Cole 
 
 Kearton, Dawson v. 
 Keating, Hanson v. 
 
 ■ Smith v. 
 
 Keeley, Winch v. 
 Keenan r. Handley 
 Keightley v. Watson 
 Keith, Brooks v. 
 
 Rees r. 
 
 Kekemch v. Manning- 
 Kelly, Archer v. 
 
 Hughes ^\ 
 
 Kemble v. Farren 
 
 Kemp, Philanthropic Society 
 
 Kempe i'. Andrews 
 
 ■ r. Gibbon 
 
 Kendall, Brierley v. 
 Kennay, Rogers i\ 
 Kennedy, Ex parte 
 
 . Molony u, 
 
 Kensington v. Chandler 
 
 • r. Dolland 
 
 Ex parte . 
 
 Kenyon, Eastwood r. . 
 Ker r. Lord Dungannon 
 Kerrison r. Cole 
 Kershaw, Dewhirst 
 Kettlewell, Meek v. 
 Key, Heath v. 
 Key sell, Topping v 
 Kiddill V. Earnell 
 Kidson v. Turner 
 Kilkenny, &c. Railway 
 pany Devereux 
 
 Hitchins v. 
 
 Killby V. Wright 
 Kilshaw v. Jukes 
 Kimpton, Betts r. 
 
 Com- 
 
 PAGE 
 
 36 
 274 
 387 
 126 
 
 71 
 406 
 188 
 387 
 
 90 
 
 40 
 346 
 316 
 
 399 
 
 327 
 
 297 
 
 305 
 
 311 
 
 76 
 
 377 
 
 299 
 
 117 
 
 74 
 
 804 
 
 296 
 
 378 
 
 298 
 
 296 
 
 403 
 
 71 
 
 . 349 
 
 . 305 
 
 , 402 
 
 , 49 
 
 , 25 
 
 . 313 
 
 , 384 
 
 . 298 
 
 , 384 
 
 . 313 
 
 '3,76 
 
 . 261 
 
 . 90 
 
 . 127 
 
 . 75 
 
 . 116 
 
 . 134 
 
 . 398 
 
 . 76 
 
 Kincaid, In re . . 
 King (The) v. Sankey 
 
 V. England 
 
 Gaskell v. 
 
 V. Rendall 
 
 Kingsford i-. Merry 
 Kingsley's trust, In re 
 lunnersley t: Mussen . . 
 Kinnier, Atk3'ns v. . ■ ' 
 Kirby v. Potter 
 
 Ivirk r. Blur ton 
 Kirkland, Hanbury v. . . 
 Kii'kman r. Booth 
 
 Needham v. . . 
 
 Kirkpatrick v. Tattersall 
 Kirwan r. Daniel 
 
 Hamilton r. , . 
 
 Kitchen, Dickinson r. . . 
 Knatchbull r. Fearnhcad 
 Knight r. Barber 
 
 r. Boughton . . 
 
 r. Hunt 
 
 Kruges r. Wilcox 
 Kymer, Halford v. 
 Kynaston, Clayton v. . . 
 
 Lacy V. 
 
 Kyne v. Moore. . 
 Kynman, Whinman r. 
 Kynnersley, Marquis of 
 mend V. 
 
 PAGE 
 
 .. 377 
 .. 31 
 .. 83 
 .. 90 
 .. 128 
 37, 396 
 .. 390 
 .. 100 
 ■],72, 91 
 .. 344 
 .. 318 
 .. 293 
 .. 315 
 .. 296 
 .. 76 
 .. 299 
 . . 275 
 .. 60 
 .. 341 
 
 204, 230 
 .. 264 
 .. 122 
 .. 32 
 .. 177 
 
 308, 311 
 .. 311 
 .. 89 
 .. 82 
 
 Or- 
 .. 196 
 
 212 
 212 
 127 
 316 
 376 
 
 L. 
 
 Lacey, Thompson i'. . . . . 29 
 Lack, Thompson r. .. 116,311 
 Lackington v. Atherton • • 44 
 Lacy V. Kynaston . . . . 311 
 
 1 V. Rhys 248 
 
 Ladbrooke, Wheelhouse i\ .. 109 
 Laing v. Eidgeon . . . . 400 
 
 Tucker r 117 
 
 Lake v. Craddock . . . . 305 
 
 Tyler v 384 
 
 W^illiams v. • • . . 79 
 
 Lambert's case . . .. .. 318 
 
 Lambert, Clough v. . . . . 388 
 
 Mason v. . . • • 68 
 
 Lampert's case . . . . . . 260 
 
 Lamport, Collins v. .. . . 60 
 
 Lampleigh v. Brathwait . . 73 
 Lane. & Yorkshire Railway 
 
 Company, Schotsmans v. 46 
 Lane r. Burghart . . . . 79 
 
 Duniford r. . . . . 371 
 
 Langdale, Lord, Ashton v. . . 348 
 Langford, Ayerv v. . . • • 91 
 
 In re " . . . . 285 
 
 Langham's trust. In re . . 348 
 
 Langston, Wetherell v. . . oU4
 
 INDEX TO CASES CITED. 
 
 XXIX 
 
 177 
 
 196 
 
 91 
 
 68 
 
 384 
 
 15 
 
 81 
 
 233 
 
 378 
 
 15 
 
 25 
 
 92 
 
 PAGE 
 
 Lashbrook v. Cock . . . . 307 
 
 Lassells v. Comwallis . . . . 269 
 
 Lauderdale, Lord, Garrard v. . . 299 
 Lavater, Walton v. 2U, 299, 307 
 Lavender, Greedy y. •. •• 381 
 
 Law V. Bagwell . . • . 299 
 
 V. London Indisputable 
 
 Life Policy Company 
 
 Lawrence, Hall v. 
 
 V. Smith . . 
 
 Sollers r. 
 
 Laws, Blacklow i-. 
 Lawton v. Lawton 
 Laythoarp v. Bryant . . 
 Layton, Hughes r. 
 Lea, Barker r. .. 
 Leader v. Homewood . . 
 Leake v. Loveday 
 
 Monys v. 
 
 Leather Cloth Co. Limited v, 
 
 American Leather Cloth Co. 
 
 Limited . . - - 256, 257 
 
 Lechmere v. Earl of Cuilisle . . 287 
 
 V. Fletcher.. .. 82 
 
 Ledsam, Kussell v. .. . . 237 
 
 Lee, Brown i'. .. .. ..115 
 
 ■ • Fielding v. . . . . 5-1 
 
 V. Griffin 42 
 
 Hopkinson v. .. . . 304 
 
 r. Lockhart .. ..122 
 
 Morris v... . . . . 87 
 
 V. Muggeridge . . . . 76 
 
 V. Pain . . . . . . 351 
 
 V. Prieaux . . . . 384 
 
 Waring/' 273 
 
 ?•. Young 286 
 
 Leeder, Biddell v 90 
 
 Leggi'. Evans.. .. 25,32,49 
 
 Leicester, Furniss r. . . . . 399 
 
 r. Rose . . . . 122 
 
 Leighton v. Wales . . 71, 91 
 
 Leith, Mant v 282 
 
 Lempriere, De la Garde v. . . 378 
 Leonard v. Baker . . . . 169 
 
 Leonino, Gilkes v. . . . . 81 
 
 Lepard v. Vernon . . . . 398 
 
 Lescher, Bain v. . . . . 351 
 
 Leslie v. Guthrie . . . . 62 
 
 i'. Richardson .. .. 189 
 
 Sing ('. . . . . . . 274 
 
 Lett, Stahlschmidt r. . . . . 405 
 
 Le Vasseur v. Scratton 371, 379 
 Lewen v. Dodd • • . . 307 
 
 Lowers v. Earl of Shaftesbury ^ 64 
 Lewis Bowles's case . . . . 19 
 
 Lewis, Gilbert v 384 
 
 Heath v 370 
 
 V. Madocks . . . . 296 
 
 PAGE 
 
 Lewis V. Marling . . . . 237 
 
 Reynell v 320 
 
 Lickbarrow v. Mason . . . . 45 
 
 Liford's case . . • • . . 18 
 
 Limbard v. Grote • • . . 274 
 
 Limerick, Earl of, Gray /-. . . 273 
 Lincoln v. Windsor . . . . 292 
 
 Lindsay r. Gibbs . . . . 62 
 
 Lingard, Ex parte . . . . 196 
 
 Lingen v. Sowray . . . . 288 
 
 Linley v. Taylor . . . . 348 
 
 Linton, Trollope v. .. . . 372 
 
 Lisle, Agar v . . 24 
 
 Lister, Tidd v 379 
 
 Littlefield v. Shee . . . . 76 
 Liverpool, Corp. of, Scott v. . . 184 
 
 United Gas Light Co., 
 
 Hills y 237 
 
 Livesay v. Redfem . ■ . . 345 
 
 Llanwame, In the Goods of . . 359 
 Lloyd V. Ashby • • . . 318 
 
 V. Baldwin . . . . 288 
 
 Bromage ;'. ■ . . . 85 
 
 CuUingworth r . . . . 122 
 
 Harris v 168, 350 
 
 v. Lloyd 370 
 
 Powell i' 123 
 
 r. Tench 362 
 
 Lock, Jones v. .. . • . . 36 
 
 Lockhart, Lee v. . . . . 122 
 
 r. Reilly .. ..115 
 
 Lodge V. Pritchard . . . . 313 
 
 Loftus, Ricketts v 272 
 
 Logan, Hopkins «/•. . . . . 73 
 
 Lomas «J. Wright .. .. 110 
 
 London, Easton v. . . . . 12 
 
 London Dock Company, Cal- 
 vert t'. .. .. 116 
 
 Indisputable Life Policy 
 
 Company, Law r. . . 177 
 Londonderry & Coleraiu Rail- 
 way Company, 
 Reg.r. .. 211 
 
 Graham i\ .. 374 
 
 Long t'. Storie . . . . . . 92 
 
 Longman v. Tripp . . . . 255 
 
 Longstaff v. Meagoe . . . . 14 
 
 Lonsdale, Earl of, ?'. Countess 
 
 ofBerchtoldt 266 
 
 Ri' 
 
 Prideaux i\ . 
 
 195, 
 
 Lord, In re 
 
 Love 'V. Gaze . . 
 
 Loveacres d. Mudge r. Blight 
 
 Loveday, Leake v. 
 
 Lovell V. Hicks 
 
 383 
 196 
 353 
 .307 
 25 
 318 
 
 Loveridge v. Cooper 
 Low, Edmonds v. 
 
 407, 409 
 .. 346
 
 XXX 
 
 INDEX TO CASES CITED. 
 
 PAGE 
 
 Low t\ Routledge . . . . 248 
 Lowe, Banner v. . . . . 265 
 
 Lowndes r. Collins .. ..114 
 
 V. Lowndes ... . . 193 
 
 Ley, Hodgson v. . . . . 44 
 
 Luard's case . . . . . . 382 
 
 Lucas i;. Dorrien . . . . 37 
 
 V. Wilson . . . . 198 
 
 Lucy's case . . . . . . 74 
 
 Lunn, Bank of England v. 206, 208 
 
 V. Thornton . . . . 34 
 
 Lushington r. Boldero . . 18 
 
 Lyddou i: Ellison . . . . 274 
 
 Lyde v. Barnard . . 84, 409 
 
 V. Russell . . . . 15 
 
 Lye, Cruttwell v 258 
 
 Lygon 'V. Lord Coventry . . 281 
 Lynch v. Dalzell . . . . 179 
 
 Lyon V. Baker 292 
 
 Perrin v 369 
 
 Lyons v. De Pass . . . . 896 
 
 Lysons v. Barrow . . . . 334 
 
 M. 
 
 Maberley v. Turton . . 
 Macarthur v. Campbell 
 Macaulay, Bailey v. . . 
 M'Culloch, Barrack v. 
 M'Donald, Walter v. . . 
 M'Donnell r. Hesilrige 
 Macdougall, Harnett v. 
 
 r. Robertson 188, 
 
 M'Ewan v. Smith 
 M'Guire, Ashburner v. 
 M'lver V. Humble 
 M'lvers, Howell v. 
 Mackay, Bentley r. . . 
 M'Kenzie's Settlement, Re 
 Mackenzie v. Mackenzie 
 
 Sandeman r. 
 
 Mackinnon v. Stewart 
 Mackintosh v. Trotter 
 
 Wellingtun c. 
 
 Mackrell, Holmes v. . . 
 M'Laine, Hoadley v. . . 
 Maclaren i: Stainton . . 
 Macleod v. Annesley . . 
 
 V. Drummond . . 
 
 M'Michael, Boydell v. 
 Macnaught ii. Russell . . 
 M'Neillie v. Acton 
 Ma«ouln'ey r. Jones . . 
 M'Queen ;•. Fai-quhar. . 
 Maddison, Benyon v. . . 
 Madeley, Gaters v. 
 Madocks, Lewis v. 
 
 280 
 194 
 320 
 298 
 
 85 
 298 
 886 
 189 
 
 37 
 844 
 315 
 117 
 298 
 296 
 267 
 273 
 299 
 
 14 
 188 
 
 77 
 
 40 
 263 
 283 
 339 
 
 16 
 128 
 315 
 274 
 275 
 266 
 376 
 296 
 
 PAGE 
 
 Maguire, Caulfield V. . . .. 114 
 
 Mainwaring's Settlement, Re 296 
 Malcolm v. Charlesworth . . 379 
 Malkin v. Adams . . . . 133 
 
 Attorney-General v. . . 267 
 
 Mallan v. May . . 90, 91 
 
 Mallet, Dunnicliff v 307 
 
 Malone v. Minoughan . . 11 
 
 Maltby i'. Car stairs .. ..116 
 
 Man V. Shiff ner . . . . 30 
 
 Manchestei-, Sheffield, &c. Rail- 
 way Company, Hubbersty v. 211 
 Manders v. Williams . . . . 27 
 
 Mann, Burnet v 362 
 
 Mangles, Nay] or v 30 
 
 Manning's, Matthew, case . . 260 
 
 Kekewich v. . . 298 
 
 Manser v. Heaver . . . . 191 
 
 Mant V. Leith 282 
 
 March v. Attorney- General . . 348 
 
 V. Head 377 
 
 V. Russell 341 
 
 V. Warwick . . . . 128 
 
 Mare v. Earle 122 
 
 V. Warner . . . . 122 
 
 Market overt, the case of . . 396 
 ]\larkham, Bunn v. ■ ■ . . 327 
 
 Marlborough, the Duke of, v. 
 
 St. John 68 
 
 Marling, Lewis v 237 
 
 Marris, Bower v. . • . . 121 
 
 INIarriott v. The Anchor Rever- 
 sionary Co. Limited . . 
 Marsh, Archer v. 
 
 V. Conquest 
 
 Stone V. ' . . 
 
 Marshall v. Fowler 
 
 . Gardner v. . . 
 
 Holroyd v. . . 
 
 Martin, Collins r. 
 
 V. Crompe 
 
 Reynish r. 
 
 V. Sedgwick . . 
 
 Townsend r. . . 
 
 Martindale, Anderson i\ 
 
 V. Booth . . 
 
 V. Smith . . 
 
 Taylor t\ . . 
 
 Mason v. Broad bent . . 
 
 Davis V. 
 
 V. Haddan 
 
 r. Lambert 
 
 Lickbarrow r. . . 
 
 V. Morgan 
 
 Sid well V. 
 
 v. Wallis 
 
 Massy v. Hayes 
 Mather v. Fraser 
 
 .. 60 
 
 .. 91 
 
 .. 248 
 
 318, 397 
 .. 378 
 .. 377 
 .. 35 
 .. 87 
 .. 305 
 .. 370 
 
 319, 409 
 .. 345 
 .. 304 
 .. 48 
 .. 89 
 ., 199 
 .. 403 
 .. 91 
 .. 184 
 .. 68 
 .. 45 
 .. 375 
 .. 77 
 .. 189 
 .. 384 
 
 50 
 
 14
 
 INDEX TO CASES CITED. 
 
 Mather v. Scott 
 Mathers v. Green 
 Mathias, Gray v. 
 Matthews v. IJrise 
 
 Houghton /•. 
 
 Young V. 
 
 Maude, Benson v. 
 
 Scales t\ 
 
 Maunder, Wright v. . . 
 Maw, Elwes v.. . 
 Mawdeslej, Driver r. . . 
 Maxwell's trusts, In re 
 May V. Chapman 
 
 Mai Ian v 
 
 Mayor, Boaler?'. 
 
 Squire v. 
 
 Maze, Aubert v. 
 Meacher c. Younge . . 
 Meagoe, Longstaff v. . . 
 Medina v. Stoughtou . . 
 Medworth v. Pope 
 Meek v. Kettlewell 
 Melvill, Otter v. 
 Melville, Preston v. 
 Mentney v. Petty 
 Menzies, Betts i\ 
 Mercer v. Irving 
 Meredith v. Pan- 
 Merrett, Powell v. 
 Merriman, Elliot v. 
 
 v. Ward 
 
 Merry, Kingsford v. . . 
 Merryweather t: Jones 
 Meryon v. Collett 
 Metcalf , Wise v. 
 Metropolitan Counties, &c. 1 
 
 ciety V. Brown 
 Meux V. Bell . . 
 Mexborough, Bower r. 
 Meyer, Hanson v. 
 
 ■ V. Ha worth 
 
 Meyrick, Attorney-G cneral 
 Michell V. Michell 
 Michelmore v. Mudge 
 Middleton, Copis v. . . 
 Miles V. Presland 
 Mill, The Queen v. 
 Miller, Hornsby v. 
 
 V. Miller 
 
 r. Race 
 
 • Spackman v. . . 
 
 Stranger v. 
 
 ■ I". Taylor 
 
 Mills V. Barber 
 Milne, Walker ;'. 
 
 Walmesley v. . . 
 
 Milner v. Lord Harewo-.d 
 Milvain, Chapman v. . . 
 
 PAGE 
 
 . 349 
 . 307 
 . 89 
 . 282 
 , 30 
 , 36 
 , 341 
 , 36 
 , 168 
 . 15 
 , 299 
 , 263 
 . 87 
 90, 91 
 . 116 
 . 16 
 . 89 
 . 280 
 . 14 
 , 399 
 . 349 
 . 75 
 . 296 
 . 263 
 . 362 
 . 237 
 . 72 
 . 350 
 . 364 
 . 339 
 . 121 
 7,396 
 . 387 
 . 267 
 . 68 
 
 14 
 408 
 183 
 
 39 
 
 76 
 347 
 264 
 379 
 114 
 206 
 242 
 
 49 
 36, 327 
 395 
 
 49 
 123 
 246 
 
 84 
 348 
 
 14 
 371 
 214 
 
 Minnit v. Whinery 
 Minonghan, Malone t: 
 Mitchell, Brooke v. 25, 188, 
 Doe d. Esdaile r. . . 
 
 t'.Ede 
 
 Humble v. . . 204, 
 
 Holmes r. . . 
 
 Moffatt, Bank of England v. 
 MoUard, Bagley v. 
 Mollett V. Wackerbath 
 Molony v. Kennedy . . 
 Monkman v. Shepherdson 
 Montague v. Benedict . . 
 Montefiore v. Guedalla . . . 
 Montolieu, Lady Elibank r. . . 
 Monys v. Leake 
 Moodie r. Bannister . . 
 Moor V. Bar ham 
 Stokes V. .. 
 
 Williams t: 
 
 Moore, Cramer v. 
 
 V. Darton 
 
 r. Erowd 
 
 Kyne v. 
 
 V. Moore 
 
 Morell V. Dnbost 
 Morgan, Ex parte 
 
 Mason v. 
 
 Osbom v. 
 
 Kickman r. 
 
 ■ 'V. The Eai-1 of Aber- 
 gavenny 
 Morley v. Attenborough 
 Bird r 303, 
 
 r. Boothby 
 
 Child V. 
 
 • r. Rennoldsou . . 369, 
 
 Roddam r. 
 
 Wright V. 
 
 Mornington v. Keane . . 
 Morris v'. Glynn 
 
 V. Howes 
 
 • Jones 'V. 
 
 V. Kearsley 
 
 V. Lee . . 
 
 Morrison, Collett v. 
 
 Dutton y. . . 
 
 V. Glover 
 
 Mortimore v. Mortimorc 
 Morton i\ Copeland . . 
 
 Honuer v. 
 
 1\ Tibbett 
 
 Moseley, Inge r. 
 
 Mosley r. Baker 
 
 Moss, Burrough v. 
 
 'V. Hall 
 
 Turquand r. 
 
 Motley V. Downman . . 
 
 AGE 
 
 319 
 
 11 
 189 
 150 
 
 37 
 230 
 
 79 
 208 
 350 
 
 88 
 384 
 
 76 
 383 
 347 
 377 
 
 92 
 402 
 362 
 
 81 
 
 77 
 296 
 327 
 292 
 
 89 
 386 
 
 99 
 128 
 375 
 378 
 347 
 
 20 
 399 
 351 
 
 79 
 203 
 370 
 402 
 379 
 297 
 348 
 267 
 126 
 305 
 
 87 
 177 
 123 
 232 
 282 
 248 
 380 
 
 41 
 
 89 
 232 
 375 
 116 
 128 
 257
 
 INDEX TO CASES CITED. 
 
 PAGE 
 
 Mudge, Michelinore v. . . 379 
 
 Muggeridge, Lee v. . . . . 76 
 
 Mullen V. Bowman . . . . 352 
 
 Mannings, Attwood i: . . 398 
 
 Munro, Ex parte . . . . 408 
 
 MuiTay I'. East India Company 404 
 
 V. Lord Elibank .'. 378 
 
 ■ Wood house v.. . . . 51 
 
 Mussen, Kinnersley e. . . 100 
 
 Myers v. Perigal . . . . 348 
 
 N. 
 
 Nash r\ Hodgson 
 
 Sprigens v. 
 
 Naylor v. Mangles 
 Neate, Eranklin i\ 
 Needham r. Kirknian . 
 
 v. Smith 
 
 Webb r. 
 
 Neilson, Ex parte 
 
 v. Hai-ford 
 
 Nesham, BaiTV r. 
 Netherseal, Rex i\ 
 Nevill, Walker v. 
 Newall, In re . . 
 Newbon, Wakefield v. 
 Newman, Page v. 
 Newnham, Pai-beny v. 
 Newton, Ex parte 
 
 i: Askew 
 
 i: Beck 
 
 and Hetherington, 
 
 Nichol, Jackson i: 
 Nicholls v. Bastard 
 
 r. Judson . . 
 
 'V. Rosewame 
 
 V. Stretton . . 
 
 Nichols, Inglebach i: . . 
 
 V. Norris 
 
 r. Roe . . 
 
 Nicholson v. Bower 
 
 Potter V. 
 
 V. Potts 
 
 V. Revill 
 
 Nickels v. Haslam 
 Nicolls, Smith r. 
 Nimmo, Ellis v. 
 Nix, Bryans v. 
 Nixon V. Brownlow . . 
 Noble, Devaynes v. 
 
 Vulliamy r. . . 
 
 Nockolds, Hunter r. . . 
 Norbury i-. Norbury . . 
 Norcliffe, Ambei-gate, &c. 
 
 way Company ;•. 
 Norcott V. Gordon 
 
 83, 121 
 
 .. 195 
 
 .. 30 
 
 .. 27 
 
 .. 296 
 
 .. 296 
 
 .. 356 
 
 .. 216 
 
 .. 241 
 
 .. 316 
 
 .. 332 
 
 .. 128 
 
 237, 238 
 
 ., 31 
 
 .. 114 
 
 .. 189 
 
 .. 292 
 
 .. 298 
 
 .. 11 
 
 Re 186 
 
 .. 45 
 
 .. 27 
 
 .. 346 
 
 .. 234 
 90, 91 
 
 .. 127 
 
 .. 122 
 
 .. 193 
 
 .. 41 
 
 .. 100 
 
 .. 127 
 
 116, 311 
 
 .. 241 
 
 .. 102 
 
 .. 75 
 
 .. 37 
 
 .. 212 
 
 121, 312 
 
 .. 315 
 
 .. 403 
 
 .. 201 
 
 Rail- 
 
 212 
 346 
 
 PAGS 
 
 Norfolk Estuarj' Co., Hall r. 211 
 Norman r. Baldry . . . . 341 
 
 — Fergusson i;. . . . . 89 
 
 V. Phillips . . . . 42 
 
 v. Thompson . . . . 120 
 
 Norris v. Irish Land Co. . . 63 
 
 Nichols?'. .. ..122 
 
 V. Wright . . . . 283 
 
 North Eastern Metropolitan 
 Asylum District, Gibbous v. 
 Northey v. Field 
 
 V. Northey 
 
 Norton v. Frecker 
 Norton's patent 
 Norwood, Elvy v. 
 Nom-se, Richardson v 
 Nugent, Blair v. 
 
 V. Gifford 
 
 Nnmes v. Scipio 
 
 O. 
 
 Observer Life Assurance So- 
 ciety, Hodson V. 
 
 Ockenden, Ex parte 
 
 Ogilvie V. Foljambe 
 
 Oldham r. Hughes 
 
 Olive, Stephens v. 
 
 Oliver, Ex parte 
 
 Smith V. 
 
 Oliveira, Beaumont v. 
 
 Onslow ;;. Onslow 
 
 Onwhyn, Stockdale v. 
 
 Ormond (Marquis of) v. K\ 
 nersley 
 
 Orr V. Dickinson 
 
 Osborn r. Morgan 
 
 . Silk V. .. 
 
 Other V. Iveson . 
 
 Otter v. Melvill 
 
 Oulton, Crallan i: 
 
 Ouseley v. Austruther 
 
 Overhill's trust 
 
 Owen, Eardley v. 
 
 r. Homan 
 
 V. Thomas 
 
 Oxford, Earl of, Beavnn r. 
 
 Packman, Sloane ?•. 
 Page I". Bennett 
 
 f. Newman 
 
 r. Page . . 
 
 Powles V. . . 
 
 Pajiet V. Folev . . 
 
 .. 92 
 
 .. 180 
 .. 114 
 .. 351 
 
 :'19, 409 
 .. 403
 
 INDEX TO CASES CITED. 
 
 XXXlil 
 
 PAGE 
 
 Pain, Lee v. . . . . . . 35 1 
 
 Ridout V ] 92, ] 93 
 
 V. Whitaker . . . . 28 
 
 Paine, Gleaves r 377 
 
 Palles, Simmonds r 299 
 
 Palmer, Fraser v. .. .. 292 
 
 Hall r 89 
 
 Hay V 265 
 
 Vandenberg r. . . 36 
 
 V. Wakefield . . . . 382 
 
 V. Wheeler . . . . 275 
 
 Parberry ?;. Newnham . . 189 
 
 Pardo V. Bingham . . . . 402 
 
 Paris ?'. Paris . . . . . . 263 
 
 SpaiTow ?7. .. .. 71 
 
 Parish, Drummond r. . . 323 
 
 Parker, Baldey V. .. .. 41 
 
 Clarke v 370 
 
 Hoare v. . . . . 261 
 
 Sparling v. . . . . 348 
 
 Stanes v 292 
 
 Watson t' 110 
 
 Parkesr. Smith ,. ..186 
 
 Parkin V. Carruthers .. ..314 
 
 Parkinson, Ames v. . . . . 201 
 
 Pamham ?'. Hurst .. ..117 
 
 Parrott, Alger i' 267 
 
 Parr}', Barrett i'. .. .. 189 
 
 Parsons, Bank of England v. 208 
 
 ■ Harms?'. .. .. 91 
 
 Partington, Andrews r. . . 280 
 
 Partridge, Wheldale v. . . 287 
 
 Pass, Poole v 293 
 
 Patch, Channon v. . . . . 18 
 
 Patent Derrick Co., Thames 
 
 Iron Works Co. v 29 
 
 Paton V. Sheppard . . . . 264 
 
 PauU V. Best . . . . . . 155 
 
 Pawle V. Gunn , . . . 73, 204 
 
 Pawlett (Lord William), Ex 
 
 parte . . 
 Paxton, Cholmeley v. . . 
 
 V. Popham 
 
 Payne -v. Deakle 
 Paynter, Adams v. 
 
 V. Harrison 
 
 Peacock, Berriman v. ■ . 
 
 Hunt i\ 
 
 t\ Rhodes 
 
 Peake, Ex parte 
 Pearly v. Smith 
 Pearse v. Jackson 
 Pearson v. Dawson . . 
 
 Foster *'. 
 
 Freeland v. 
 
 Peck, Dawes v. 
 Pedley t'. Goddard 
 Peel, Cockburn t: 
 
 w.r.p. 
 
 283 
 
 19 
 
 88 
 
 189 
 
 291 
 
 118 
 
 18 
 
 406 
 
 395 
 
 313 
 
 264 
 
 233 
 
 37,42 
 
 395 
 
 352 
 
 42, 45 
 
 193 
 
 284 
 
 PAGE 
 
 Peel V. Tatlock ,. ..116 
 
 Peer v. Humphi-ey . . . . 396 
 
 Peering, Ford r. . . . . 12 
 
 Pelly V. Wathen . . . . 31 
 
 Pemberton, Ex parte . . . . 31 
 
 r. Vaughau . . 91 
 
 Wortham r. . . 377 
 
 Pendlebury r. Walker 116, 122 
 
 Pennell r. Reynolds . . . . 134 
 
 Pennistone, Waterfall r. . . 60 
 
 Penny i\ Innes . . . . 86 
 
 Penoyre, Ward v. . . . . 341 
 
 Penton, Davies v. . . . . 71 
 
 Perigal, Myers r. . . . . 348 
 
 Perkins r. Bradley . . . . 47 
 
 Groves v 878 
 
 Walker v 89 
 
 Perrin r. Lyon . . . . . . 369 
 
 Perry, Creed v. . . . . 381 
 
 V. Jenkins . . . . 404 
 
 r. Truefit 257 
 
 Peny's Executors v. The Queen 352 
 
 Fetch V. Tutin 34 
 
 Peter r. Compton . . . . 80 
 
 -y. Rich .. .. .. 115 
 
 Peterborough (Bishop of ), 
 
 Boyle 'V 272 
 
 Petre v. Espinasse . . . . 298 
 
 Petrie v. Bury 302 
 
 Pettitt, Thompson r 39 
 
 Petty r. Anderson . . . . 383 
 
 Mentney v 362 
 
 V. Sty ward . . . . 306 
 
 Pfleger r. Browne .. 120,122 
 Phelp v. Amcotts . . . . 296 
 
 Philanthropic Society r. Kemp 349 
 Philips r. Robinson . . . . 10 
 
 Phillips, Norman i\ . . . . 42 
 
 V. Phillips . . 305, 307 
 
 ■ Swann ;'. . . 84, 409 
 
 Phillipson v. Gatty . , . . 282 
 Philpot I'. Briant .. ..117 
 Philpott, Ex parte . . . . 123 
 V. St. George's Hos- 
 pital 349 
 
 Phipps, Holford v 293 
 
 Pickering c. Applebv . . . . 204 
 
 v. Busk ' . . . . 398 
 
 v. Dowson . . . . 399 
 
 V. Ilfi-acombe Railway 
 
 Co. . ; 207 
 
 Pocock r 101 
 
 Pickford, Aspinall i'. .. .. 30 
 
 Picton, Shaw ?'. .. .. 121 
 
 Pidding v. How . . . . 257 
 
 Pidgley -v. Rawling . . . . 18 
 
 Pierce v. Thornely . . . . 379 
 
 Pierson r. Garnet . . . . 274
 
 XXXIV 
 
 INDEX TO CASES CITED. 
 
 Piggott, Clancey r. 
 Wilson r. 
 
 PAGE 
 
 .. 79 
 272, 273 
 
 27,28 
 
 Pigot v. Cubley 
 
 Pigdt's case .. .. ..'88 
 
 Piick, Shower r 36 
 
 Pilkington, Smith ;• 232 
 
 PimbW, Fisher i- 192 
 
 Pinchon's case . . . . . . 105 
 
 Pinke, Hinton v. . . . . 34i 
 
 Pinkney r. Hall ., ..318 
 
 Piper, Cradock v. ,. . . 292 
 
 Pitt, Higgins v. . . . . 122 
 
 Plaice, Russell v 339 
 
 Piatt 'V. Routh 337 
 
 Plummer, In re .. ..313 
 
 Plymouth (Earl of), Padout r. 374 
 Pocock, Brown v. 
 
 r. Pickering 
 
 Roberts -v. 
 
 Pole IK Harrobin 
 Poole, Crofton v. 
 r. Pass . . 
 
 Pope, Med worth v. 
 
 Rusden v. 
 
 Seagrave v. 
 
 Popham, Paxton v. 
 Poppleton, Evcrard c. . . 
 Porter, Watts v. 
 
 Whitehead v. 
 
 Portland (Duke of), Topham v. 275 
 
 38; 
 
 101 
 345 
 
 89 
 158 
 293 
 349 
 
 GO 
 232 
 "88 
 101 
 206 
 126 
 
 Pott ('. Eyton 
 Potter, Hall r. . . 
 
 Kirby t'. 
 
 V. Nicholson 
 
 Potts, Nicholson r. 
 Powel, Shafto v. 
 Powell V. Hellicar 
 
 ■ v. Lloyd 
 
 r. Merrett 
 
 V. Rees . . 
 
 Power tK Barham 
 Powle V. Gunn 
 Powles V. Page 
 Pownal, Hoist i\ 
 Prance v. Sympson 
 Presland, Miles v. 
 Prescot, Snce r. 
 Prescott (' Boucher 
 
 ■ Holmes v. 
 
 Hopkins v. 
 
 Preston v. Melville 
 Prestwood, Duraut v. 
 Price r. Anderson 
 
 Barker v. . . 
 
 r. Green . . 
 
 Green v. . . 
 
 Harrington v. 
 
 Hewitt V. . . 
 
 316 
 .. 370 
 .. 344 
 .. 100 
 .. 127 
 .. 102 
 .. 327 
 .. 123 
 .. 364 
 .. 67 
 .. 399 
 .. 73 
 319, 409 
 .. 45 
 .. 77 
 .. 206 
 .. 44 
 .. 377 
 .. 2G8 
 .. 90 
 .. 263 
 .. 362 
 .. 263 
 .. 311 
 .. 71 
 90, 91 
 .. 10 
 .. 230 
 
 Price Hyde i'. . . 
 
 Prosser v. 
 
 Price V. Richardson 
 Pride r. Fooks.. 
 Pride aux v. Lonsdale 
 Prieaux, Lee t;. 
 Pring V. Pring . . 
 Prior V. Hembrow 
 Pritchard i\ Arbouin 
 
 Lodge V. 
 
 Shaw V. 
 
 Proctar ;■. Sei'gent 
 Prosser, EA-ans i\ 
 Price 
 
 Proudley i\ Fielder . . 
 Pryor r. Pryor . . 
 Pugh r. Stringfield 
 
 '^^ Taylor . . 
 
 Pulham, Firmin r. 
 
 Pullen V. Purbecke 
 
 Purbccke, Pullen v. . . 
 
 Purdcw r. Jackson 
 
 Pye, Ridout v. .. 
 
 Pym V. Great Northern Railw. 
 
 Co 
 
 Sweet V. .. 
 
 Q. 
 
 Quartermaine v. Bittleston . . 
 
 Queen, The, v. Mill . . 
 
 V. The Lords of the 
 
 Treasury . . 
 
 Perry's Execu- 
 tors V. 
 
 r. Whitmarsh . . 
 
 PAGE 
 ..114 
 
 .. 233 
 .. 79 
 201, 293 
 .. 383 
 .. 384 
 .. 352 
 .. 188 
 .. 349 
 .. 313 
 .. 92 
 .. 91 
 .. 370 
 .. 233 
 .. 384 
 .. 275 
 .. 305 
 .. 383 
 .. 293 
 .. 53 
 .. 53 
 .. 380 
 .. 191 
 
 65 
 32 
 
 54 
 
 242 
 
 264 
 
 352 
 214 
 
 R. 
 
 Race, Miller v 395 
 
 Rachfield v. Careless . . . 352 
 
 Radburn I'. Jervis .. ..199 
 
 Ralph, Bird r 68 
 
 Ralston v. Smith . . . . 242 
 
 Ram, Ex parte . . . . 406 
 
 Ramsbottom, Harcourt r. .. 191 
 
 Hoojier v. .. 12 
 
 Ramsden r. Smith , . . . 296 
 
 Randall r. Randall . . . . 305 
 
 r. Russell . . . . 262 
 
 Rankin, Holderness v. . . 54 ' 
 
 V. Weguelin . . . . 327 
 
 Rann v. Hughes . . . . 72 
 
 Rannie r. Irvine . . . . 91 
 
 Ransome r. Burgess . . . . 280 
 
 Ravenshaw tJ. H oilier.. .. 299 
 
 Rawling, Pidgley fj. .. .. 18
 
 INDEX TO CASES CITED. 
 
 XXXV 
 
 Eawlings r. Jennings . . 
 
 In re . . 
 
 Kawlinson /'. Clarke ■ . 
 
 Williams r. ■ . 
 
 Rawson v. Johnson 
 Eawsthom v. Arnold . . 
 Read, Balding v. 
 Reaj, Cookson v. 
 
 V. Richardson 
 
 Redfern, Livesay v. . - 
 Reed v. Wilmot 
 Rees r. Keith . . 
 
 Powell V. . . 
 
 Reeve, Beaumont v. . , 
 
 V. Whitmore • . 
 
 Reeves v. Watts 
 Regina i: Londonderry and 
 Coleraine Railway Co. 
 
 V. Whitmarsh . . 
 
 Reid, Donellan v. 
 
 r. Fryatt . . 
 
 ■?). Hollinshead . . 
 
 West -v. .. 
 
 Reilly v. Jones 
 Lockhart v. 
 
 Reindell v. Schell 
 Rendall, King v. 
 Rennoldson, Morley r. 8fiD, 
 Revill, Nichdlson «. .. IIG, 
 Rex V. Bardell . . 
 
 V. Collector of Customs 
 
 V. Greenhill 
 
 V. Hill . . 
 
 V. Netherseal 
 
 V. Sankey 
 
 V. SheiTington . . 
 
 r. Wheeler 
 
 Reynell v. Lewis 
 Reynish v. Martin . . 
 Reynolds, Bodley v. . . 
 
 i\ Bowley . . 
 
 r. Hall 
 
 ■ Pennell v. . . 
 
 Robinson v. . . 
 
 Rhodes, Howard v. 
 
 Peacock v. .. i 
 
 V. Smethurst . . 
 
 Rhys, Lacy v. .. 
 Rice V. Shute . . 
 
 Weall?' 
 
 Rich, Peter v. .. 
 Richards v. Heather . . 
 
 V. James . . 
 
 V. Richards . . 
 
 Wilding V. . . 
 
 Richardson v. Bank of England 
 
 • V. Brown . . 
 
 • Ex pai"te . . 
 
 AGE 
 
 200 
 
 128 
 
 316 
 
 121 
 
 43 
 
 \U 
 
 34 
 
 288 
 
 120 
 
 845 
 
 48 
 
 378 
 
 0,1 
 
 76 
 
 35 
 
 127 
 
 211 
 214 
 
 80 
 180 
 318 
 409 
 
 71 
 115 
 
 71 
 128 
 370 
 311 
 186 
 305 
 380 
 190 
 332 
 
 31 
 388 
 241 
 320 
 370 
 
 46 
 314 
 
 54 
 184 
 
 87 
 292 
 395 
 405 
 248 
 312 
 346 
 115 
 309 
 
 50 
 376 
 299 
 213 
 399 
 315 
 
 Richardson v. Gilbert 
 
 V. Greese . . 
 
 r. Horton . . 
 
 Hume v. . . 
 
 r. Jenkins 
 
 Leslie v. .. 
 
 V. Nonrse. . 
 
 Price V. . . 
 
 Reay v. . . 
 
 Warwick v. 
 
 Riches, In re . . 
 
 Ricketts, Griffiths r. . . 28 
 
 V. Lot'tus 
 
 Rickman r. Morgan . . 
 
 Ridgway v. Clare 
 
 Ridley v. Ridley 
 
 Ridout t\ Earl of Plvmouth 
 
 c. Pain ".. 19 
 
 r. Pye . . 
 
 Rigby, Be, 
 
 Jennings r. 
 
 Rigg r. Earl of Lonsdale 
 Right (I. Compton r. Coaipton 
 Rijdey v. Waterworth 
 Rishton t\ Cobb 
 Roberts, Bramah v. . . 
 
 Cave r. 
 
 v. Pocock 
 
 r. Spicer 
 
 r. Walker 
 
 V. Wyatt 
 
 Robertson, Dimsdale r. 
 
 IMacdougall /'. 188, 
 
 Robinson, Brandon v. 
 Crow V. 
 
 Cusack V. . . 
 
 V. Geldard . . 
 
 Philips V. . . 
 
 r. Reynolds 
 
 V. Robinson 201, 
 
 V. Wheehvright 
 
 Roddam v. Morley 
 Rodway, Sanders v. . . 
 Roe, Nichols v. 
 Rogers, Abbott v. 
 
 V. Ac aster 
 
 Chaplin v. 
 
 — V. Kennay 
 
 Rogers's trusts 
 Roile, Ryall v. 
 Rose, Leicester v. 
 Rosewame, Nicholls r. 
 Rosier, Shackell v. 
 Ross ('. Adcock 
 
 Bateman v. 
 
 Ross's trust 
 
 Rossiter, Hooper r. 
 
 Rouch ■?'. Great Western Ry. Co, 
 
 c 2 
 
 'AGE 
 
 247 
 846 
 309 
 284 
 106 
 189 
 192 
 
 79 
 120 
 308 
 319 
 , 299 
 272 
 347 
 313 
 
 80 
 374 
 , 193 
 191 
 102 
 102 
 
 22 
 370 
 208 
 369 
 319 
 864 
 345 
 884 
 
 47 
 
 25 
 189 
 189 
 385 
 207 
 
 41 
 349 
 
 10 
 
 87 
 282 
 385 
 402 
 387 
 193 
 215 
 381 
 
 36 
 
 25 
 265 
 
 49 
 122 
 234 
 
 74 
 
 69 
 388 
 386 
 
 26;; 
 
 150
 
 INDEX TO CASES CITED. 
 
 PAGE 
 
 Round, Addison i\ . . . . 25 
 
 Eoundell r. Brearey . . . . 297 
 
 Routh, Piatt V. .. . . 337 
 
 Routledge v. Dorril . . 27-1, 276 
 
 r. Grant . . . . 81 
 
 Low V 248 
 
 Rowland, Clegg v 342 
 
 Rowlands, Cope v. .. . . 89 
 
 Rowlandson, Ex parte . . 316 
 
 Rowles, Ryall v. . . 36, 49 
 
 Royal Exchange Assurance Co. 
 
 Elliott ?J 184 
 
 Royal Mail Co. , European Co. v. 60 
 Ruddell r. Dobrce . . . . 327 
 
 Rudge i\ Winnall . . . . 17 
 
 Rusden v. Pope - . . . 60 
 
 Rushforth v. Hadfield . . 30 
 
 Russell, Douglas v. .. .. 62 
 
 Huntley r 69 
 
 T. Ledsham . . . . 237 
 
 Jjjde V. .. .. 15 
 
 Macnaught r. . . 128 
 
 March i'. .. ..341 
 
 V. Plaice . . . . 339 
 
 Randall v 262 
 
 . V. Smith . . . . 248 
 
 Rutland, Duke of, v. Duchess 
 
 of Rutland 362 
 
 Ryall r. Rolle 49 
 
 V. Rowles . . 36, 49 
 
 Saddler's Company v. Badcock 179 
 St. George's Hospital, Philpottr. 349 
 St. John, Lord, ?'. Boughton.. 401 
 Lord, V. St. John, 
 
 Lady 388 
 
 St. John, Duke of Marlborough 
 
 V 68 
 
 Sainter V. Ferguson .. .. 71 
 
 Salkeld, In re 196 
 
 Saloon Omnibus Company, 
 
 Hale V. 
 
 Salt, Stead r 
 
 Saraon's case . > 
 
 Samuda, Zwinger r. . . 
 
 Samuel r. Duke 
 
 i\ Howarth . . . . 
 
 Sandeman v. Mackenzie 
 Sanders, Bloxam r. 
 
 V. Rodway 
 
 Sanderson r. Bell 
 Sandwich, Lord, Case of 
 Sandys, Warburton r. 
 Sanger, Cutten v. 
 Sankey, Rex p. 
 
 52 
 . 319 
 . 191 
 . 37 
 . 396 
 . 116 
 . 273 
 43, 46 
 . 387 
 . 29 
 . 275 
 . 290 
 . 298 
 . 31 
 
 Sargent, Higgins v. . . 
 Saunders, De Mautort r. 
 
 Tollit t' 
 
 f. Topp 
 
 r. Wakefield 
 
 Savage, Browne ?'. 
 
 Savill V. Barchard 
 
 Sawyer, Whittem v. . . 
 
 Savers, Horton v. 
 
 Scales V. Maude 
 
 Scarborough v. Borman 385, 
 
 Scarpellini i-. Atcheson 
 
 Scattergood v. Sylvester 
 
 Schell, Reindell v. 
 
 Schwabe, Clift r. 
 
 Scipio, Numes v. 
 
 Scott V. Avery . . 
 
 Champemown t 
 
 r. Corporation of Liver- 
 pool . . 
 
 Scott, Driver v. 
 
 Drury r. . . 
 
 Evans r. . . 
 
 r. Jones . . 
 
 r. Lord Hasting 
 
 Mather ?'. 
 
 V. Spashett . . 377, 
 
 r. Van Sandau .. 187, 
 
 Scottish Union, &c., Simpson v. 
 
 Scratton, Le Vasseur v. 871, 
 
 Seagrave r. Pope 
 
 Seaton v. Benedict 
 
 Sedgwick, Martin r. .. 319, 
 
 Seed i: Higgins 
 
 Selby r. Selby . . 
 
 Self, Fleming v. 
 
 Sergent, Proctor r 
 
 Seton, Clarke r. 
 
 Sewell, Stickney v 
 
 Shackell r. Rosier 
 
 Shaftesbury, Earl of, Lewers v. 
 
 Shafto V. Powel 
 
 Shalmer, Spalding r. 
 
 Shaw, Badger r. 
 
 V. Evans . . 
 
 Hodgson r. 
 
 V. Picton . . 
 
 r. Pritchard 
 
 Shee, Clarke r. 
 
 Littlefield r. 
 
 Shelley, Gill r. 
 Shepherd, Cooper r. 
 
 Zachary v. 
 
 Shepherdson, Monkm 
 Shepley v. Davis 
 Sheppard iK Duke 
 Shepperd v. Kain 
 Paton r. 
 
 AGE 
 
 114 
 312 
 196 
 
 41 
 
 79 
 408 
 
 30 
 378 
 183 
 
 36 
 386 
 376 
 397 
 
 71 
 176 
 204 
 184 
 
 31 
 
 184 
 293 
 296 
 278 
 406 
 207 
 349 
 379 
 191 
 180 
 379 
 232 
 382 
 409 
 242 
 
 81 
 232 
 
 91 
 108 
 282 
 
 74 
 
 64 
 102 
 288 
 
 60 
 
 114 
 121 
 
 92 
 395 
 
 76 
 350 
 
 46 
 193 
 
 76 
 
 40 
 401 
 399 
 264
 
 INDEX TO CASES CITED. 
 
 XXXVH 
 
 Sherrard t\ SheiTard 
 Sherrington, Rex r. 
 V. Yates 
 
 PAGE 
 
 . 264 
 , 388 
 . 375 
 , 292 
 , 405 
 , 30 
 
 Sherwood, In re 
 
 Shewen r. Vanderhorst 
 
 Shiffner, Man v. 
 
 Shilling V. Accidental Death 
 
 Insurance Company . . 176 
 
 Shipbrook, Lord, v. Lord Hinch- 
 
 inbrook 293 
 
 Shipman, Bush r. .. ..122 
 
 Shore, Lady v. Billingsley . . 303 
 Shorrock, Boyd r. . . . . 60 
 
 Shortland, Ex parte . . . . 298 
 
 Shower v. Pilck . , . . 36 
 
 Shute, Rice-y 312 
 
 Shuttleworth v. Greaves . . 344 
 
 Wigg r 90 
 
 Sibree v. Tripp . . . . 120 
 
 Sid well V. Mason . . . . 77 
 Silk, JerYoise v. . . . . 280 
 
 r. Osbom . ." . . 158 
 
 Simmonds r. Palles . . . . 299 
 
 Simmons, Farebrother t\ . . 43 
 
 r. Gutteridge . . 330 
 
 Simond v. Hibbert . . . . 30 
 
 Simonds v. Hodgson . . ..182 
 
 Simpson, Cowell v. . . 30, 32 
 
 GaiTod w 126 
 
 V. Scottish Union &c. 180 
 
 Thompson r. .. 275 
 
 Sims r. Thomas . . 297, 403 
 
 Simson u. Ingham .. .. 121 
 
 Sinclair v. Jackson . . . . 403 
 
 Sing V. Leslie . . . . 274 
 
 Skarf r. Soulby . . . . 297 
 
 Skeen, Hogg r. .. ., 319 
 
 Skerrat, Ex parte . . . . 298 
 
 Skey 'V. Barnes . . . . 277 
 
 Skillem, Amies ?'. . . . . 303 
 
 Skinner, Braithwaite i'. . . 6 
 
 V. Upshaw . . . . 29 
 
 Skip, West V 36 
 
 Slatter r. Slatter . . . . 388 
 
 Sleech v. Thorington . . . . 344 
 
 Slingsby's case • . 302, 304 
 
 Sloane v. Packman . . . . 92 
 
 Smailes V. Wright .. ..195 
 
 Small, Churchill r 12 
 
 Jeflfereys r. . . . . 305 
 
 Smallpiece, Irons r. . . . , 36 
 Smarte v. Edsun . . . . 310 
 
 Smethurst, Rhodes /•. . . . . 405 
 
 Smith, Re 127 
 
 ■ Allen r. . . . . 29 
 
 Antrobus r. . . . . 36 
 
 V. Bond . . . . 108 
 
 ' r. Brnnino- .. .. 870 
 
 Smith, Carpenter v. . 
 
 V. Chichester , 
 
 V. Clarke 
 
 Farmer v. 
 
 Fox V. . , 
 
 Grace v. 
 
 r. Hudson 
 
 V. Hurst 
 
 ■ Hutchings v. . 
 
 V. Jarvis 
 
 r. Keating 
 
 ' Lawi-ence v. . 
 
 M'Ewan v. 
 
 ■ Martindale v. . 
 
 ■ Needham v. 
 
 V. NicoUs 
 
 V. Oliver 
 
 Parkes v. 
 
 Pearly v. 
 
 r. Pilkington . 
 
 Ralston r. 
 
 Ramsden v, 
 
 Russell V. 
 
 r. Smith 
 
 Vernon r. 
 
 V. Whitmore . 
 
 Whitmore v. . 
 
 Williams v. 
 
 Smithard, Cornforth r. 
 Snee r. Prescot 
 Snellgrove v. Baily 
 Snow, Goddard r. 
 
 Wilbraham r. 
 
 Soane, Conduitt r. 
 Sollors r. La\\Tence 
 Somerville, Hotham r. 
 Somes, British Empir 
 
 ping Company r. 
 Sothern, Swanwick r. . 
 Souch r. Strawbridge. 
 Soulby, Skarf i\ 
 South Carolina Bank i: 
 Sowray, Lingen r. 
 Spackman r. Miller 
 Spalding, Alsager r. 
 
 V. Shalmer 
 
 Sparling r. Parker 
 Span'ow, Ex parte 
 
 Farmer r. 
 
 r. Paris 
 
 Spashett, Scott r. 
 Spencer, Hill v. 
 
 r. Spencer 
 
 Spettigue, White v. 
 Spicer, Roberts r. 
 Spiers, Thompson v. 
 Spirett r: Willows 
 Spooner, Vandenbun 
 
 I'AGE 
 
 .. 237 
 .. 31 
 .. 85 
 .. 232 
 .. 192 
 .. 316 
 41, 45 
 .. 299 
 .. 379 
 .. 318 
 .. 299 
 .. 91 
 .. 37 
 
 ... 39 
 .. 296 
 .. 102 
 .. 349 
 .. 186 
 .. 264 
 .. 232 
 .. 242 
 .. 296 
 .. 248 
 
 341, 408 
 .. 179 
 .. 194 
 .. 191 
 .. 396 
 .. 77 
 .. 44 
 .. 327 
 .. 383 
 .. 25 
 .. 262 
 .. 68 
 .. 12 
 Ship- 
 .. 29 
 .. 39 
 .. 80 
 .. 297 
 . Case.. 319 
 .. 288 
 .. 49 
 .. 122 
 .. 288 
 .. 348 
 .. 49 
 .. 232 
 - 71 
 
 377, 379 
 .. 89 
 .. 274 
 .. 396 
 .. 384 
 408, 409 
 .. 377 
 .. 42
 
 XXXVlil 
 
 INDEX TO CASES CITED. 
 
 PAGE 
 
 Spragiic, Ex parte .. ..314 
 
 Sprigens r. Nash . . . . 195 
 
 Squire v. Mayor . . . , 16 
 
 *'. Whitton .. ..116 
 
 Stafford, Earl of, r. Buckley . . 11)9 
 
 Stahlschniidt v. Lett . . . . 405 
 
 Stainbank, Davies <\ . . .. 116 
 
 Stainton, Maclaren r. .. .. 263 
 
 Stallvvood, Tharpe v 357 
 
 Stahvorth r. Inns . . . . 191 
 
 Stamford, Heard r. .. . . 382 
 
 Stamper ;;. Barker . . . . 388 
 
 Stanes v. Parker . . . . 292 
 Stanger v. Miller . . ..123 
 
 Staniland v. Willott . . . . 328 
 
 Stanley r. Bemes . , . . 325 
 
 Stannard, Angier v. .. .. 293 
 
 Stansfeld v. Cubitt . . . . 50 
 
 Stanton v. Hall . . . . 379 
 
 Stapleton r. Hajonen . . . . 57 
 
 Statham, Adam r. . . . . 192 
 
 Stead, Barker v. . - . . 320 
 
 V. Salt 319 
 
 Steadman v. Hockley . . . . 31 
 
 Stear, Johnson v. .. . . 28 
 
 Steele, Swan I'. .. .. 318 
 
 Steinkeller, Devaux v. . . 84 
 
 Steinmitz i\ Halthin . . . . 378 
 
 Stephens, Edgeberry r. . . 239 
 
 Hart V. . . . . 376 
 
 r. Olive . . . . 387 
 
 Sterling, Ex paile . . . . 31 
 
 Stevenson f. Blakelock . . 30 
 
 Toft (• 403 
 
 Steward r. Greaves . . . . 214 
 
 Stewart, Hitchman r. . . .. 115 
 
 Mackinnon i'. .. 299 
 
 Stickney r. Sewell . , . . 282 
 
 Stiff, Cassell (' 254 
 
 Stockdale v. Onwhyn . . . . 91 
 
 Stocken v. Stocken . . . . 280 
 
 Stocker V. Brockelbank .. 316 
 
 Stokes, Brice r 293 
 
 V. Holden . . . . 47 
 
 V. Moor . . . . 81 
 
 Stone V. Marsh. . . . 318, 397 
 
 Storie, Long v.-. . . . . 92 
 
 Stoughton, Medina v 399 
 
 Stoveld V. Hughes . . . . 36 
 
 Strafford, Lord, Byng v. . . 266 
 
 Strang, Berndtson v. .. .. 45 
 Strathmore, Countess of, v. 
 
 Bowes 383 
 
 Stratton v. Grymes . . . . 370 
 
 Strawbridge, Souch v... .. 80 
 
 Streatfield w. Halliday .. 310 
 Stretton, Nicholls v. . . 90, 91 
 
 Stringfleld, Pugh r. . . . . 305 
 
 PAOB 
 Strode w. Blackburne . . ., 12 
 
 Strutt, Decks v. . . . . 6 
 
 Galsworthy v... . . 71 
 
 Stuart V. Burrowes . . . . 332 
 
 Grey v. . . . . 296 
 
 Stubbs, Hughes v 299 
 
 Studdy, Churchward c. .. 21 
 
 Sturges, Welchman v. . . 357 
 
 Sturgis ?;. Champneys . . .. 377 
 
 V. Darell . . . . 405 
 
 Styles V. Guy 293 
 
 Sty ward, Petty V 306 
 
 Sumner, Gam hart r. . . . . 251 
 
 Sunbolf V. Alford . . . . 29 
 
 Sutton V. Buck . . . . 27 
 
 Fitch V. . . . . 120 
 
 Swallow V. Binns . . . . 277 
 
 Swan ■('. Steele . . .. .. 318 
 
 Swann, Jovce ^\ . . . . 40 
 
 T. Phillips . . 84, 409 
 
 Swans, The case of . . . . 19 
 
 Swanwick v. Sothern . . . , 39 
 
 Swayne v. Swayne . . , . 409 
 
 Sweet i\ Benning . . . . 247 
 
 V. Pvm 32 
 
 Swift V. Swift 389 
 
 Swinburne, Cray thorne r. .. 116 
 Swindell, Cull wick i\ . . .. 14 
 
 Swinnerton, Heming r. . . 186 
 
 Swinton, Willoughby i\ . . 109 
 Sworder, Castle v. .. . . 42 
 
 Sylvester, Scattergood v. . . 397 
 Symes, Balch v. . . . . 31 
 
 Symonds, Thompson v. . . 251 
 
 Williams v. . . 409 
 
 Sympson, Prance v. .. . . 77 
 
 Synge, Howe v. . . . . 90 
 
 Taggart, Carter v. . . 264, 379 
 Tapfield v. Hillman . . . . 34 
 
 Tap penden t'. Burgess .- 123 
 
 Tate V. Hilbert . . 327, 328 
 
 Tatlock, Peel v 116 
 
 Tattersall, Kirkpatrick v. . . 76 
 
 Taunton, Wood v 196 
 
 Taylor ;•. Haygaith . . . . 364 
 
 Linley v. ■ . . . 348 
 
 V. Martindale . . . . 199 
 
 Miller v 246, 
 
 r. Pugh . . . . 383 
 
 In re 389 
 
 Tetley r 128 
 
 r. Tunibull . . . . 207 
 
 Wallist' 267 
 
 Waters -y 183 
 
 Tcbbs f. Carpenter .. .. 201
 
 INDEX TO CASES CITED. 
 
 XXXIX 
 
 Teesdale, Dickinson v. 
 Tenqicst iK Tempest . . 
 Templeton r. Warrington 
 Tench, Lloyd i\ 
 Tetley v. Taylor 
 Teynham, Lord, v. Webb 
 Thames Iron Works Company 
 ;-. Patent Derrick Company 
 Tharpe v. Stallwood . . 
 Thelluson, Hobson v. .. 
 Thomas v. Desauges . . 
 
 James v. 
 
 Owen V. 
 
 Sims V. . . 
 
 V. Thomas 
 
 PAGE 
 
 406 
 349 
 
 , 277 
 
 , 302 
 
 128 
 
 , 273 
 
 Thomason v. Frere 
 Thompson v. Dominy . 
 
 Farrant v. . 
 
 Fraser r. 
 
 V. Griffin 
 
 Hill y. 
 
 Jackson v. 
 
 f'. Lack 
 
 ■ Norman v. . 
 
 r. Pettitt . 
 
 r. Simpson . 
 
 V. Spiers 
 
 V. Symonds . . 
 
 V. Thompson 
 
 Thompson's trusts 
 Thorington, Sleech v.. . 
 Thorneley, Pierce v. .. 
 Thornton, Lnnn ?'. 
 Thorpe, Glynn v. 
 
 ('. Jackson 
 
 Williams )'. 
 
 Thnrlow, Cunynghame v. 
 
 Tibbett, Morton v. 
 
 Tidd V. Lister . . 
 
 Tidswell v. Angerstein 
 
 Tipping V. Tipping . . 
 
 Todd {'. Wilson 
 
 Toft v. Stephenson 
 
 ToUit V. Saunders 
 
 Tolson V. Dykes 
 
 Tonilin v. Mayor of Fordwich 
 
 Topham v. Duke of Portland. . 
 
 Duncan v. 
 
 Topp, Saunders v. 
 Tojiping, Ex parte 
 
 V. Key sell 
 
 Townroe, Wightman r. 
 Townsend v. Mai'tin . . 
 Townshend, Lord, v. Windham 374 
 Travers v. Travers . . . . 29G 
 
 Treasury, Lords of the. The 
 Queen v. . . . . . . 2G4 
 
 20 
 
 357 
 
 .. 52 
 
 .. 150 
 
 .. 108 
 
 .. 81 
 
 297, 403 
 
 .. 391 
 
 .. 306 
 
 .. 62 
 
 .. 16 
 
 .. 74 
 
 .. 280 
 
 239, 241 
 
 .. 1G8 
 
 •• 29 
 
 116, 311 
 
 .. 120 
 
 .. 39 
 
 .. 275 
 
 408, 409 
 
 .. 251 
 
 .. 348 
 
 .. 47 
 
 .. 344 
 
 .. 379 
 
 .. 34 
 
 .. 106 
 
 .. 312 
 
 .. 408 
 
 .. 275 
 
 .. 41 
 
 .. 379 
 
 .. 177 
 
 .. 374 
 
 292 
 
 .. 403 
 
 .. 196 
 
 .. 172 
 
 191 
 
 275 
 
 81 
 
 41 
 
 313 
 
 134 
 
 315 
 
 345 
 
 PAGE 
 
 Trimmer v. Danby . . . . 264 
 
 Tripp, Longman r 255 
 
 Tripp, Sibree z'. .. ..120 
 
 TroUope v. Linton . . . . 372 
 
 Trotter, Mackintosh t;. .. 14 
 
 Truefit, Perry v. . . . . 257 
 
 Trueman v. Fenton . . . . 76 
 
 Trye r. Gloucester, Corporation 
 
 of S49 
 
 Tucker, Hayter v 348 
 
 Tucker, In the Goods of . . 334 
 
 r. Laing .. ..117 
 
 Tuer V. Turner . . . • 382 
 
 Tugman v. Hopkins . . . . 384 
 
 Tullett V. Armstrong . . 385, 386 
 
 Tupper, Bamfield v 82 
 
 Turbv V. Bates . . . . 40 
 
 Turnbull, Godfrey r 3i5 
 
 Tavlor r 207 
 
 Turner, Coles v 127 
 
 Kidson v. .. . . 76 
 
 Tuer V 382 
 
 V. Turner .. 199, 279 
 
 V. Vaughan . . . . 89 
 
 . Ward r 36 
 
 . Woodr 327 
 
 Turquand v. ISIoss . . . . 128 
 
 Turton, Maberley v 280 
 
 Tutin, Fetch v. . . . . 34 
 
 Tutton, Holmes ?'. .. ..119 
 
 Twynam, Coope v. ■ . ..116 
 
 Twyne's case . . . • 48, 75 
 
 Tyler r. Jones 188 
 
 . V. Lake 384 
 
 Tyndall, Attorney-General r. 349 
 Tyi-e, Williams v 230 
 
 U. 
 
 Upshaw, Skinner r. . . 
 Usborne, Jenkyns v. . . 
 
 V. 
 
 Valpy, Dickinson v. . . 
 Van V. Barnett 
 Van Casteel v. Booker 
 Vandenbergh v. S])ooncr 
 Vandenbm-g r. Palmer 
 Vandeputt, Wiseman v. 
 Vanderhorst, Sheweu v. 
 Van Sandau, Scott v. . . 
 Vansittart v. Vansittart 
 Vaughan, Grant v. 
 
 Jenkin v. 
 
 Pemberton r. 
 
 Turner ;•. . . 
 
 Walmslcy v. 
 
 187 
 
 20 
 45 
 
 319 
 
 287 
 
 45 
 
 42 
 
 36 
 
 44 
 
 405 
 
 191 
 
 388 
 
 395 
 
 298 
 
 91 
 
 89 
 
 273
 
 xl 
 
 IXDEX TO CASES CITED. 
 
 Vawclry, Cartwright r. 
 Vawser, Brown v. 
 Veal V. Veal . . 
 Venables v. East India Com 
 
 PAGE 
 
 350 
 . 197 
 , 327 
 
 pany 
 
 Vere v. Ashby • . /. 
 Vernon, Davies v. 
 
 Lepard v. 
 
 r. Smith 
 
 Vick, Edelston r. 
 Viner v. Francis 
 Vulliamy v. Noble 
 
 W. 
 
 .. 330 
 
 .. 318 
 10, 12, 31 
 
 .. 398 
 
 .. 179 
 
 .. 257 
 
 .. 351 
 
 .. 315 
 
 W., B..V 387 
 
 Wackerbath, Mollett r. . . 88 
 
 Wade V. Dowling . . . . 191 
 
 Wainewright, Barclay r. . . 263 
 
 Wainsford, Warner v. . . 357 
 
 Waite v. Jones . . . . 90 
 
 Jones V. .. . . 387 
 
 Wakefield v. Brown . . . . 304 
 
 -v. Newbon . . . . 31 
 
 Palmer r. . . . . 382 
 
 • Saunders v. . . . • 79 
 
 Wales, Leighton y. .. 71,91 
 
 Walford, Dyke v. .. . . 355 
 
 Walker v. Giles . . . . 233 
 
 V. Milne . . . . 348 
 
 ^'. Nevill .. ..128 
 
 Pendlebury v. . . 116,122 
 
 V. Perkins . . . . 89 
 
 Roberts v 47 
 
 — ^— Woodmeston r. . . 385 
 
 Young?? 192 
 
 Wall, Harris v. .. . . 77 
 
 Wallace v. Auldjo . . . . 378 
 
 V. Woodgate . . 29 
 
 Wallis, Binnington r. 74, 90 
 
 V. Day . . . . . . 91 
 
 Fordhara v. .. . . 83 
 
 V. Hodson . . . . 362 
 
 . Mason v. . . . . 189 
 
 r. Taylor . . . . 267 
 
 Walmesley r. Milne . . . . 14 
 
 Walmsley v. Vaughan . . 273 
 
 Walrond v. Walrond . . . . 388 
 
 Walsh, Gale v. . . . . 86 
 
 V. Whitcomb . . . . 117 
 
 Walter v. Adeock . . . . 127 
 
 r. Hodge . . , . 327 
 
 V. Macdonald . . . . 85 
 
 Walter Idle's case .. .. 19 
 
 Walters, Bevan v. . . . . 29 
 
 Walton, Hitchman r. .. 14, 16 
 
 . :». Lavater .. 244,307 
 
 PAGE 
 
 Wane, Cumber v. . . . . 120 
 
 Warburton r. Hill . . . . 207 
 
 V. Sandys .. L'90 
 
 Ward, Bainton v 269 
 
 V. Beck 57 
 
 V. Byrne . . . . . . 91 
 
 V. Combe 263 
 
 Greenberg v. . . . . 1 27 
 
 Merriman v. , . . . 121 
 
 «. Penoyre .. ..341 
 
 V. Turner . . . . 36 
 
 V. Yates 379 
 
 Warde, Bristow v 273 
 
 Dudley v 16 
 
 In re 285 
 
 Warden t\ Ashburner . . 264 
 
 Wardroper v. Cutfield . . . . 264 
 
 Waring i>. Lee. . .. .. 273 
 
 Warner and Powell's Arbitra- 
 tion, Re . . . . 190 
 
 Mare f. .. ..122 
 
 V. Wainsford . . . . 357 
 
 Warrington, Templeton v. . . 277 
 Wanvick, Countess of, Ed- 
 wards V. . . 265 
 
 March V 128 
 
 V. Richardson . . 308 
 
 Waterfall v. Pennistone . . 50 
 Waterhouse, Close v. .. . . 30 
 Waterpai'k, Young v. . . . • 272 
 
 Waters V. Taylor .. ..183 
 
 Waterworth, Ripley v. .. 208 
 
 Wathen, Pelly v 31 
 
 Watmough's trusts, In re . . 349 
 Watson V. Birch . . . . 401 
 
 Jessopp V. .. . . 362 
 
 Keightley v. . . . . 304 
 
 r. Parker .. .. llO 
 
 Watt V. Watt 384 
 
 Watts r. Girdlestone .. 201, 293 
 
 V. Jelf eryes . . . . 206 
 
 V. Porter 206 
 
 Reeves v. .. . . . . 127 
 
 Waugh r. Carver .. 316,319 
 
 Edmunds v 403 
 
 Way ». Bassett .. ..312 
 
 Way's settlement, Re . . . . 298 
 
 Weall V. Rice 346 
 
 Weatherby, Brown v... . . 312 
 
 Webb v. Fox 158 
 
 V. Grace 370 
 
 V. Hewitt 116 
 
 V. Needham . . . . 356 
 
 Teynham, Lord, r. . . 273 
 
 Webb's Policy, Re . . . . 408 
 
 Webster r. Webster . . . . 315 
 
 Weguelin, Rankin ??. . . . . 327 
 
 Welchman, In re . . . . 378
 
 INDEX TO CASES CITED. 
 
 xli 
 
 PAGE 
 
 Welchman v. Sturgis . . . . 357 
 
 Weld, Graves v. . . . . 17 
 
 Weldon r. Gonld . . . . 30 
 
 Wellaiid, Balfour r 2S8 
 
 Wellesley r. Beaufort, Duke of 388 
 ' Earl Cowley v. . . 18 
 
 T. Wellesley . . 297 
 
 Wellington f. Mackintosh ., 183 
 Wells i\ Horton . . . . 80 
 
 Wennall r. Adney . . . . 76 
 
 Wenslcy, Ex parte . . . . 134 
 
 West V. Beruey . . . . 271 
 
 Hartlepool Harbour and 
 
 Eailvvay Co., Wilson v. 212 
 
 Hebdon v. . . . . 176 
 
 V. Reid 409 
 
 V. Skip . . • • . . 36 
 
 Westland, Wiseman v. ..12 
 
 Westmacott, Harmer v. . . 255 
 
 Westmeath, Marquis of, Hiud- 
 
 ley c 387 
 
 Westminster Brymbo Coal and 
 Coke Company Limited, 
 
 Wheatley v 184 
 
 Weston, Foster ?). .. ..114 
 Wetherell r. Langston . . 304 
 
 V. Wilson . . . 281 
 
 Whale V. Booth . . . . 339 
 
 Whalley, Carter t; 315 
 
 Wheatcroft v. Hickman . . 316 
 
 Wheatley v. Westminster 
 Brymbo Coal and Coke 
 Company Limited .. ..184 
 
 Wheeler, Bushel w 41 
 
 Doe d. Stace r. . . 330 
 
 Palmer v. ,. . . 275 
 
 Uexv 241 
 
 Wheelhouse t;. Ladbrooke .. 109 
 Wheelwright, Robinson v. . . 385 
 Wheldale v. Partridge . . 287 
 
 Whinery, Minnit t; 319 
 
 Whinman v. Kynman . . . . 82 
 
 Whitaker, Pain v 28 
 
 Whitcomb, Walsh i; 117 
 
 White, Acton v. . . . . 386 
 
 Blake i; 116 
 
 V. Grane . .• , . 281 
 
 u. Spettigue . .. 396 
 
 Whitehead D. Porter .. ..126 
 
 Whitfield ?;. Bewitt .. ..18 
 
 Whitmarsh, Regina i . . . 214 
 
 Whitmore, Reeve v. ,. . . 35 
 
 V. Smith . . . . 191 
 
 Smith?; 194 
 
 Whittaker v. Howe . . . . 91 
 
 Whittem v. Sawyer . . . . 378 
 
 Whittingham, In re . . . . 390 
 
 Whittingstall t). Grovcr .. 313 
 
 w.r.p. 
 
 PAGE 
 
 Whittle V. Helming . . . . 381 
 
 Whitton, Squire «;. .. ..116 
 
 Whorwood, Cooke V. .. .. 192 
 
 Wigg V. Shuttleworth . . . . 90 
 
 Wightman y. Towuroe .. 315 
 
 Wilbraham v. Snow . . . . 25 
 
 Wilcox, Kruges v. . . . . 32 
 
 Wild V. Clarkson . . . . 108 
 
 Wilding v. Richards .. .. 299 
 
 Wildman v. Wildman . . . . 200 
 
 Wiles c. Gresham . . . . 285 
 
 Wilkins, Bristead v 207 
 
 V. Bromhead . . . , 40 
 
 Wilkinson v. Adams . . 349, 350 
 
 V. Byers . . . . 120 
 
 V. Candlish . . . . 133 
 
 V. Evans . . . . 42 
 
 «. Henderson ,. 312 
 
 Willet V. Chambers . . . . 318 
 
 Williams D. Burgess .. .. 101 
 
 Clarke t; 126 
 
 Eads?; 191 
 
 ( . Evans . . . . 14 
 
 Evans v. . . . . 102 
 
 Ex parte . . . . 280 
 
 V. Frost . . . . 236 
 
 V. Hayward . . . . 233 
 
 . ti. Heushaw.. .. 303 
 
 V. Lake . . . . 79 
 
 — Mauders t). .. ..27 
 
 • V. Moor . . . . 77 
 
 V. Rawlinson . . 121 
 
 V. Smith . . . . 396 
 
 t. Symonds . . . , 409 
 
 V. Thorpe . . 408, 409 
 
 w. Tyre .. ..230 
 
 W^illiamson, Chamberlain v. . . 67 
 Willing D. Baine .. ..303 
 
 Willis V. Black . . . . 296 
 
 V. De Castro .. .311 
 
 «. Hiscox 293 
 
 Willomatt, Cooper v 28 
 
 Willott, Staniland v 328 
 
 Willoughby, Foljambc D. .. 281 
 
 V. Swinton .. 109 
 
 Willows, Spire tt v. . . . . 377 
 
 Wills V. Hacon . . .126 
 
 Wilmer v. Currey . . . . 309 
 
 Wilmot, Reed v. . . . . 48 
 
 Wilmshurst v. Bowker . . 45 
 
 W^ilson V. Brownsniith . . 345 
 
 V. Hood . . . . 32 
 
 Lucas V. . . . . 193 
 
 V. Piggott . . 272, 273 
 
 Todd /'. . . . . 292 
 
 V. West Hartlepool Har- 
 bour and Railway Co. 21 2 
 
 — Wetherell «... . . 281 
 
 d
 
 IXDEX TO CASES CITED. 
 
 Wilson r. Wilson 
 Wilton V. Colvin 
 Wiltshire, Doran v, 
 
 Winch V. Keeley . 
 
 Winchelsea, Earl of, Deeringu. 115 
 Windham, Townsend, Lord, o. 374 
 
 PAGE 
 
 293, 387, 388 
 
 ..296 
 
 ..288 
 
 117 
 
 Windle v. Andrews 
 Windsor, Lincoln v. . . 
 Winn V. Ingilby 
 Winnall, Rudge v. 
 Wise V. Metcalf 
 Wiseman v. Vandepntt 
 
 t>. Westland . . 
 
 Wishart v. Eowler 
 Witham, In the Goods of 
 Witt V. Amis . . 
 Wolverhampton New Water 
 
 works Co. V. Hawkesford 
 Wombwell v. Hanrott . . '. 
 Wood V. Adcock 
 
 Climie v. .. 
 
 V. Dixie . . 
 
 Ex parte . . 
 
 Gomley v. 
 
 V. Taunton 
 
 V. Turner 
 
 V. Wood . . 
 
 Woodgate, Acton v. . . 
 
 Wallace v. . . 
 
 Woodhead, Cresswick v. 
 Woodhouse v. Murray 
 Woodman, Bowyer v. . . 
 Woodmeston v. Walker 
 Woods V. Foote 
 Woolfit, Cooper v. 
 Woolley, Jackson v. . . 
 YV^orrall v. .Jacob 
 Worrell v. Johnson . . 
 
 86 
 292 
 16 
 17 
 68 
 
 a 
 
 12 
 123 
 331 
 327 
 
 211 
 
 ,273 
 
 192 
 
 14 
 
 52 
 
 54 
 292 
 196 
 327 
 118 
 299 
 
 29 
 330 
 
 51 
 403 
 385 
 127 
 
 17 
 312 
 387 
 
 31 
 
 PAGE 
 
 Wortham v. Pemberton . . 377 
 
 Wren v. Bradley . . . . 387 
 
 Wright, Cook v 74 
 
 Killbyj) 127 
 
 Lomas ». .. ..110 
 
 V. Maunder . . . . 168 
 
 V. Morley . . . . 379 
 
 Norris v. .. .. 288 
 
 Smailes v. . . . . 195 
 
 Wrightson v. Bywater . . 191 
 
 Wyatt, Roberts" I? 25 
 
 Wynne, Hughes v. . . 108, 405 
 
 Yates, Bridge v 303 
 
 Dixon V. .. . . 37, 44, 45 
 
 Sherrington «... . . 375 
 
 Ward V 379 
 
 Yea V. Field 10 
 
 Yeoman i;. Bradshaw . . .. 110 
 
 Young V. Axtell . . . . 315 
 
 Ex parte . . . . 54 
 
 V. Fei-nie . . . . 237 
 
 V. Fletcher . . . . 134 
 
 Halesham u. .. ..318 
 
 . Lee?; 286 
 
 V. Matthews . . . . 36 
 
 V. Walker . . . . 192 
 
 V. Waterpark . . . . 272 
 
 Younge, Meacher t. . . . . 280 
 
 Z. 
 
 Zachary v. Shepherd . . . . 193 
 
 Zwinger v. Samuda . . . . 37
 
 ERRATA AND ADDENDA. xllii 
 
 Attention is requested to the folio icing ERRATA and AD- 
 DENDA, most of ivhich have been occasioned by 
 alterations in the law after some of the earlier sheets 
 of the present work had passed throiigh the press : — 
 
 rage 49, n. (a-). The statute 12 & 13 Vict. c. 106, is repealed by stat. 
 32 & 33 Vict. c. 83; but the provision in question 
 is, in substance, re-enacted by the Bankruptcy Act, 
 1869, Stat. 32 & 33 Vict. c. 71, s. 15, par. (5). See 
 post, p. 5i. 
 
 Page 50, n. (2). By the Bankruptcy Act, 1869, stat. 32 & 33 Vict, 
 c. 71, a trustee is substituted for the assignees in 
 case of bankruptcy. 
 
 Page 50, n. (c). The stat. 24 & 25 Vict. c. 134, is repealed by stat. 
 32 & 33 Vict. c. 83 ; but by the Bankruptcy Act, 
 1869, stat. 32 & 33 Vict. c. 71, s. 6, par. (5), seizure 
 and sale of the goods of a ti'ader under an execution 
 for not less than fifty pounds is now an act of 
 bankruptcy. 
 
 Page 51, n. (?/). The stat. 24 & 25 Vict. c. 134, is repealed by stat. 
 32 & 33 Vict. c. 83 ; and the 74th section of the 
 former statute docs not appear to have been re- 
 enacted. 
 
 Page 51, n. (Ji). See erratum, p. 50, n. (r). 
 
 Page 61, n. {g). By stats. 31 & 32 Vict. c. 71, and 32 & 33 Vict. c. 51, 
 admiralty jurisdiction is given to some of the county 
 courts. 
 
 Page 74, n. (/(-•). The case of Fraser v. Tlwmpson, 1 Giff. 49, 65, has 
 been reversed on appeal, 4 Dc Gex & Jones, 659.
 
 xliv ERRATA AXD ADDENDA. 
 
 Page 7G, n. (?»). The statutes 5 & 6 Vict. c. 122, 12 & 13 Vict. c. 106, 
 and 24 & 25 Vict. c. 134, are now repealed by stat. 
 32 & 33 Vict. c. 83 ; and the Bankruptcy Act, 1869, 
 provides (sect. 12) that where a debtor shall be adju- 
 dicated a bankrupt, no creditor to whom the bank- 
 rupt is indebted in respect of any debt provable 
 under the bankruptcy shall have any remedy against 
 the property or person of the bankrupt in respect of 
 such debt, except in manner directed by that act. 
 
 Page 85, n. 0^). For stat. 31 & 32 Vict. c. Ill, read stat. 32 & 33 Vict, 
 c. 85. 
 
 Page 96, n. {d). The stat. 12 & 13 Vict. c. 106, is now repealed by 
 stat. 32 & 33 Vict. c. 83; but by the Bankruptcy- 
 Act, 1869, stat. 32 & 33 Vict. c. 71, s. 65, the 
 London Com-t of Bankruptcy is a principal court 
 of record.
 
 PRINCIPLES 
 
 LAW OF PERSONAL PROPERTY. 
 
 INTRODUCTORY CHAPTER. 
 
 OF THE SUBJECTS AND NATURE OF PERSONAL 
 PROPERTY. 
 
 The English law of property is divided into two great Real and per- 
 branches, — the law of real property, and the law of per- ^^^^^ property, 
 sonal property. The feudal rides, which respected the 
 holding and culture of land, were the elements of the 
 common law of real property ; the rules relating to the 
 disposition of goods were the origin of the law of per- 
 sonal property. Such property was anciently of little 
 importance, and its laws were consequently few and 
 simple. It did not, however, escape the ecclesiastical 
 influence which spread so widely in the middle ages ; 
 and it has thence derived that subjection to the rules of The civil law. 
 the civil law by which it is characterized when trans- 
 mitted by will or distributed on intestacy. 
 
 The division of property into real and personal, though Chattels real, 
 now well recognized, and constantly referred to even in 
 the acts of the legislature, is comparatively of modem 
 date. In ancient times property was divided into lands, 
 tenements and hereditaments on the one hand, and goods 
 
 W.P.P. B
 
 2 INTRODUCTORY CHAPTER. 
 
 and cliatiels on the other. These two last terms appear 
 to be synonymous. In process of time, however, cer- 
 tain estates and interests in land grew up, which were 
 unknown to the ancient feudal system, and could not 
 conveniently be subjected to its rules. Of these the 
 most important Avere leases for years. Such interests, 
 therefore, were classed among chattels ; but as they 
 savoured, as it was said, of the realty, they acquired the 
 name of chattels real {a). In more modem times, chat- 
 tels real have been classed, A^ith other chattels, within 
 the division of personal property ; but as chattels real, 
 though personal property, are in fact interests in land, 
 the laws respecting them have been noticed in the 
 author's treatise on the Principles of the Law of Real 
 Property (b). Chattels real will therefore be only inci- 
 dentally noticed amongst the subjects treated of in the 
 present Avork. 
 
 Chattels per- ^Yhen leases for years, and other interests in land of 
 
 ®°"^ • the like nature, w-ere admitted into the class of chattels 
 
 as chattels real, it became necessary that such goods as 
 
 had previously constituted the whole class, should be 
 
 distinguished from them by some further name ; and the 
 
 title of chattels personal was accordingly applied to all 
 
 Reason for the such chattels as did not savour of real estate. For this 
 
 term "per- title, the choice of two i-easons is given to the reader by 
 
 sonal. . ° •' 
 
 Sir Edward Coke, " because, for the most part, they 
 
 belong to the person of a man, or else for that they are 
 
 to be recovered by personal actions (c)." The former 
 
 of these two reasons has been chosen by Mr. Justice 
 
 Blackstone (d). But it is submitted that the latter 
 
 reason is most probably the true one. When goods and 
 
 {a) Co. Litt. 118 b. 373, 8th ed. 
 
 {b) Principles of the Law of (c) Co. Litt. 118 b. 
 
 Real Property, 315 etseq., 1st ed.; {d) 2 Black. Com. 16, 384; 3 
 
 307, 2nd ed.; 322, 4th ed.; 333, Black. Cora. 144. 
 5th ed.; 350, 6th ed.; 357, 7th ed.;
 
 OF THE SUBJECTS AND NATURE OF PERSONAL PROPERTY. '. 
 
 chattels began to be called personal, they had become 
 too numei'ous and important to accompany the persons 
 of their owners. On the other hand, the bringing and 
 defending of actions has always been the most prevail- 
 ing business of lawyers ; from the different natures of 
 actions, the nomenclature of the law is therefore most 
 likely to have proceeded. Now actions Avere long di- Actions real, 
 vided into tlu-ee classes, — real actions, personal actions, ^^ed^ ' 
 and mixed actions. Real actions were brought for the 
 recovery of lands, and, by their aid, the real land was 
 restored to its rightful owner. Mixed actions, as their 
 name imports, were real and personal mixed together. 
 Personal actions were brought in respect of goods for 
 which, as they are in their nature destructible, nothing 
 but pecuniary damages could with certainty be recovered 
 ■from the person against whom the action was brought. 
 Accordingly, by the ancient law of England, there never 
 were more than two kinds of personal actions in which 
 there was a possibility of recovering, by the judgment 
 of the Court, the identical goods in respect of which the 
 action was brought. One of these was the action of Action of de- 
 detinue, where goods, ha\dng come into a man's posses- *^'^"^" 
 sion, were unlawfully detained by liim ; in which case, 
 however, the judgment was merely conditional, that the 
 plaintiff recover the said goods, or {if they could not be 
 had) their respective values, and also the damages for 
 detaining them (e). The other was the action oireplevin, Action of re- 
 brought for goods which had been unlawfully distrained ; P^®"°- 
 but in this case the goods were never beyond the cus- 
 tody of the sheriff, who is an officer of the law, and their 
 safe return could therefore be secured (y ). Goods there- 
 fore seem to have been called personal, because the 
 remedy for their abstraction was against the person who 
 had taken them away, or because, in the words of Lord 
 
 {e) 3 Black. Com. 152. (/) Ibid. H0. 
 
 B 2
 
 INTEODUCTOET CHAPTEE. 
 
 New enact- 
 ments. 
 
 Coke, they were to be recovered by personal actions (^). 
 By recent statutes (A), however, provision has been made 
 for enforcing the delivery of goods, in actions for their 
 detention or for breach of contract to deliver them for a 
 price in money; and if they cannot be found, all the 
 lands and chattels of the defendant may be distrained 
 till they are delivered. 
 
 Chose in ac- 
 tion. 
 
 Maintenance. 
 
 Chattels personal, then, are the subjects of the pre- 
 sent treatise. In ancient times they consisted entu'ely of 
 moveable goods, visible and tangible in their nature, and 
 in the possession either of the owner or of some other 
 person on his behalf. Notliing of an incorporeal natiu-e 
 was anciently comprehended within the class of chattels 
 personal. In this respect the law of personal property 
 strikingly differs from that of real property, in which, 
 from the earliest times, incorporeal hereditaments occu- 
 pied a conspicuous place. But although there was for- 
 merly no su^ch thing as an incorporeal chattel personal, 
 there existed not unfrequently a right of action, or the 
 liberty of proceeding in the courts of law either to re- 
 cover pecuniary damages for the infliction of a wrong 
 or the nonperformance of a contract, or else to procure 
 the payment of money due. Such a right was called, 
 in the Norman French of om' early lawyers, a chose or 
 tiling in action, whilst moveable goods were denominated 
 clioses in possession. Glioses in action, though valuable 
 rights, had not in early times the ordinary incident of 
 propert}", namely, the capability of being transfeiTed ; 
 for, to permit a transfer of such a right was, in the 
 simplicity of the times, thought to be too great an en- 
 couragement to litigation (?') ; and the attemj)t to make 
 such a transfer involved the guilt of maintenance or the 
 
 (^) See Principles of the Law 
 of Real Property, 7. 
 
 (A) Stats. 17 & 18 Vict. c. 12.5, 
 
 s. 78; 19 & 20 Vict. c. 97, s. 2. 
 (0 10 Eep. 48 a.
 
 OF THE SUBJECTS AND NATUiiE OF PERSONAL niOPERTY. 
 
 maintaining of another person in his suit. It Avas im- 
 possible, however, that this simple state of things should 
 long continue. Within the class of clioses in action Avas 
 comprised a right of growing importance, namely, that 
 of suing for money due, which right is all that consti- 
 tutes a debt. That a debt should be incapable of transfer A debt, 
 was obviously higlily inconvenient in commercial trans- 
 actions; and in early times the custom of merchants 
 rendered debts secured by bills of exchange assignable 
 by indorsement and delivery of the bills. But choses 
 in action, not so secured, could only be sued for by the 
 original creditor, or the person who first had the right of 
 action. In process of time, however, an indirect method 
 of assignment was discovered, the assignee being em- 
 powered to sue in the name of the assignor ; and in the 
 reign of Heniy VII. it was determined that a " chose 
 in action may be assigned over for lawfid cause as a just 
 debt, but not for maintenance, and that where a man is \ 
 indebted to me in £20, and another owes him £20 by I 
 bond, he may assign this bond and debt to me in satis- | 
 faction, and I may justify for suing it in the name of the \ 
 other at my own costs "(y). Choses in action, having -' 
 now become assignable, became an important kind of | 
 personal property ; and their importance was increased 
 by an act of the following reign {k), whereby the taking 
 of interest for money, which had previously been un- 
 lawfiil, was rendered legal to a limited extent. Loans 
 and mortgages soon became common, forming a kind 
 of incorporeal personal property unknown to the ancient 
 law. In the reign of Queen Anne, promissory notes 
 were rendered, by act of parliament, assignable by in- 
 dorsement and delivery, in the same manner as inland 
 bills of exchange (J). More recent statutes have enabled 
 
 {j) Bro. Abr. tit. Chose in Ac- (0 Stat. 3 & 4 Anne, c. 9, made 
 
 tion, pi. 3, 15 Hen. VII. c. 2. perpetual by stat. 7 Anne, c. 25, 
 
 {h) Stat. 37 Hen. VIII. c. 9. s. 3.
 
 IXTEODUCTORY CHAPTER, 
 
 the indorsee of a bill of lading (wz), and the assignee 
 of a life (n) or sea(o) poHcy of insurance, to sue in his 
 own name. But other clioses in action continue to this 
 day assignable at law only by empowering the assignee 
 to sue in the name of the assignor. 
 
 Equitable 
 choses in ac- 
 tion. 
 
 In addition to the mass of incorj)oreal personal pro- 
 perty, which now exists in the form of choses in action 
 recoverable by action at law, there exist also equitable 
 choses in action, or rights to be enforced by suit in 
 equity ; of these a pecuniary legacy is a familiar in- 
 stance, for which, if the executor withhold payment, the 
 legatee can maintain no action at law(/>), but must 
 bring a suit in equity. This kind of chose in action 
 may be assigned directly from one person to another, 
 and the assignee may sue in equity in his own name. 
 For equity, being of more modern origin than the 
 common law, is guided in its practice by rules more 
 adapted to the exigencies of modern society. 
 
 Funds, shares, 
 &c. 
 
 In modern times also several species of property have 
 sprung up which were unknowTi to the common law. 
 The funds now afford an investment, of which our fore- 
 fathers were happily ignorant, whilst canal and railway 
 shares, and other shares in joint stock companies, and 
 patents and copyrights, are evidently modern sources of 
 Avealth. These kinds of property are all of a personal 
 nature, many of them having been made so by the acts 
 
 (to) Stat. 18 & 19 Vict, c 111, 
 s. 1. 
 
 (n) Stat. 30 & 31 Vict. c. 144. 
 
 (0) Stat. 31 & 32 Vict. c. 86. 
 
 (p) Beeks V. Strutt, 5 T. Eep. 
 690; Braithnaite v. Skinner, H 
 Mee. & Wels. 313. Legacies under 
 fifty pounds may now be reco- 
 vered in the county courts, under 
 the acts for the more easy reco- 
 
 very of small debts and demands 
 in England, unless the validity of 
 the bequest be disputed. Stats. 
 9 & 10 Vict. c. 95, ss. 58, 65; 13 
 & 14 Vict. c. 61; 19 & 20 Vict, 
 c. 108. These courts have now 
 an equitable jurisdiction. Stats. 
 28 & 29 Vict. c. 99; 30 & 31 
 Vict. c. 142.
 
 OF THE SUBJECTS AND NATUEE OF PERSONAL PROPERTY. 
 
 of parliament under the authority of which they have 
 originated. For want of a better classification, these 
 subjects of personal property are now usually spoken of 
 as choses in action. They are, in fact, personal property 
 of an incorporeal nature, and a recurrence to the history 
 of their classification amongst choses in action will, as 
 we shall hereafter see, help to explain some of their 
 peculiarities. 
 
 Such is the general outline of the subjects of modem How personal 
 personal property. They are distinguished from real from^real ^ ^'^ 
 property by being unaffected by the feudal rules of , 
 tenure, by being alienable by methods altogether dif- j 
 ferent, by passing in the first instance to the executors, i 
 when bequeathed by Avill, and by devohang, on their 
 owner's intestacy, not on his heir, but on an adminis- 
 trator appointed formerly by the Ecclesiastical Court, \ 
 but now by the Court of Probate, by whom they are { 
 distributed amongst the next of kin of the deceased. ' 
 On the first of these characteristics, however, mainly 
 depends the nature of the property which exists in 
 things personal. The first lesson to be learned on the 
 nature of real property is this— that of such projDerty 
 there can be no such thing as an absolute ownership ; 
 the utmost that can be held or enjoyed in real property Real property 
 is an estate (§-). There may be an estate for fife, or an ^eld by estates, 
 estate tail, or an estate in fee simple ; but, according to 
 the law of England, there cannot exist over landed pi'o- 
 perty any absolute and independent dominion. All the 
 land in the kingdom is the subject of tenure ; and if the 
 estate is not holden of any subject, at any rate it must 
 be held of the crown. With regard to personal property. Personal pro- 
 however, the primary rule is precisely the reverse. Such P^*"*^ the sub- 
 property is essentially the subject of absolute ownership, iute ownership. 
 and cannot be held for any estate. It is true that the 
 
 {q) Principles of the Law of Real Property, 16.
 
 INTRODUCTORY CHAPTER. 
 
 phrase personal estate is fi'equently used as synonymous 
 with personal property ; but this general use of the term 
 estate should not mislead the student into the supposition 
 that there can be any such thing as an estate in per- 
 sonalty properly so called. The rule that no estate can 
 subsist in personal property would seem to have origi- 
 nated in the nature of such property in early times. 
 Goods and chattels of a personal kind, in other words, 
 moveable articles, then formed, as we have seen, the 
 whole of a man's personal estate. And such articles, it 
 is evident, may be the subjects of absolute ownership, 
 and have not those enduring qualities which woidd ren- 
 der them fit to be holden by any kind of feudal temu-e. 
 As personal property increased in value and variety, 
 many kinds of property of a more permanent nature 
 became, as we have seen, comprised Avithin the class of 
 personal, such as leases for years, of whatever length, 
 and Consolidated Bank Annuities. But the ride that 
 there can be no estate in chattels, the reason of wliich 
 was properly applicable only to moveable goods, still 
 continues to be applied generally to aU sorts of personal 
 property, both coi-poreal and incorporeal. The conse- 
 quences of this rule, as we shaU hereafter see, are curious 
 and important. But in the first place it will be proper 
 to consider the laws respecting those moveable chattels, 
 or choses in possession, which constitute the most ancient 
 and simple class of personal property ; the class, how- 
 ever, which has given to the rest many of the rules for 
 regulating their disposition.
 
 ( 9 ) 
 
 PART I. 
 
 OF CHOSES IN POSSESSION. 
 
 CHAPTER I. 
 
 OF CHATTELS WHICH DESCEND TO THE HEIR. 
 
 C HOSES in possession are moveable goods, siicli as plate, 
 furniture, farming stock, both live and dead, locomotive 
 engines and ships. These, as has been before remarked, 
 are essentially the subjects of absolute ownership, and 
 cannot be held by estates ; they are alienable by methods 
 altogether different from those employed for the convey- 
 ance of landed property, and they devolve in the first 
 instance on the executor of the will of their owner, or on 
 the administrator of his effects, if he should die intestate. 
 There are, however, some kinds of choses in possession Exceptions to 
 which form exceptions to the general rule : these consist *^jgf^°^'^^ 
 of certain chattels so closely connected with land that 
 they partake of its nature, pass along with it, Avhenever 
 it is disposed of, and descend along Avith it, when un- 
 disposed of, to the heir of the deceased owner. The 
 j chattels which thus form exceptions are the subject of 
 the present chapter: they consist principally of title 
 \ deeds, heir-looms , fixtures , chattels vegetable, and animals 
 \fera> naturce. Of each in their order. 
 
 Title deeds, though moveable articles, are not strictly Title deeds 
 speaking chattels. They have been called the sinews ^'J^^e^^ance of 
 of the land ( a), and are so closely connected with it the lands, 
 that they will pass, on a conveyance of the land, without 
 
 (a) Co. Litt. (j a.
 
 10 OF CHOSES IN POSSESSION. 
 
 being expressly mentioned : the property in the deeds 
 passes out of the vendor to the purchaser simply by the 
 grant of the land itself (Z*). In like manner a devise of 
 lands by will entitles the devisee to the possession of the 
 deeds ; and if a tenant in fee simple should die intestate, 
 the title deeds of his lands will descend along with them 
 to his heir at laAv (c). In former times, when warranty 
 was usually made on the conveyance of lands (</), the 
 rule was that the feoffor should retain all deeds contain- 
 ing warranties made to himself or to those through whom 
 he claimed, and also aU such deeds as were material for 
 the maintenance of the title to the land (e). But if the 
 feoffment was made without any warranty, the feoffee 
 was entitled to the w^hole of the deeds ; for the feoffor 
 could receive no benefit by keeping them, nor sustain 
 any damage by delivering them {/)' Warranties have 
 now faUen into disuse ; but the principle of the rule 
 above stated still applies when the grantor has any other 
 lands to which the deeds relate, or retains any legal 
 interest in the lands conveyed ; for in either of these 
 cases he has stiU a right to retain the deeds (^). And if 
 the grantor should retain merely an equitable right to 
 redeem the lands, as in the case of a mortgage in fee 
 simple, it has been said that this equitable right is a 
 sufficient interest in the lands to authorize him to with- 
 hold the deeds, unless they are expressly granted to the 
 mortgagee {h). It is very questionable, however, whe- 
 
 (&) Harrington v. Price, 3 426, 8th ed. 
 
 Bam. & Adol. 170; Philips v. (e) Buchhurst's case, 1 Eep. 
 
 Rohinson, 4 Bing. 106; S. C. 12 lb. 
 
 Moore, 308. (/) 1 Rep. 1 a. 
 
 (c) Wentworth's OfiBce of an {g) Bro. Abr. tit. Charters de 
 
 Executor, 14th ed. 153; Williams Terre, pi. 53; Yea v. Field, 2 T. 
 
 on Executors, pt. 2, book 2, c. 3, Rep. 708; see however Sugd. 
 
 s. 3. Vend. & Pur. 367, 13th ed.; 2 
 
 {d) See Principles of the Law Prest. Conv. 4G6. 
 
 of Real Property, 344, 1st ed.; (A) JDaviesY. Vernon, Q Q,. "Q. 
 
 846, 2nd ed.; 365, 4th ed.; 376, 443, 447. 
 5th ed.; 399,6th ed.; 407, 7th ed.;
 
 OF CHATTELS WHICH DESCEND TO THE HEIR. 11 
 
 ther a legal right ought to be attached to an interest 
 merely equitable. And the doctrine last mentioned is 
 opposed bj more recent decisions in another court (2). 
 
 If a conveyance of lands should be made by way of When the con- 
 use, thus, if lands should be granted to A. and his heii'S ^ay ofVse. ^ 
 to the use of B. and his heirs, it has been said that the 
 title deeds of the land will belong to A., the grantee ; 
 because, although the Statute of Uses (A) conveys the 
 legal estate in the lands from A- to B., it does not affect 
 the title deeds, which must consequently still remain 
 vested in A. (Z). But this doctrine has been justly 
 questioned, on the ground that the legislative conveyance 
 from A. to B., effected by the Statute of Uses, ought 
 to be at least as powerful as the common law conveyance 
 of the lands to A. ; and if the latter conveyance can 
 carry with it the deeds relating to the land, the former 
 conveyance should be considered as powerful enough to 
 do the same (m); and it has accordingly been so decided 
 in a case in Ireland (;z). 
 
 The tenant of an estate m fee simple in lands pos- 
 sesses the highest interest which the law of England 
 allows to any subject ; and such a tenant possesses also 
 an absolute property in the title deeds, Avhich he may 
 destroy at his pleasm-e, or sell for the value of the parch- 
 ment (0). But if the lands to which deeds relate should When the 
 be settled on any person for life or in tail, a qualified settle(f^^ 
 ownership will arise with respect to the deeds, different 
 in its nature from that simple property which is usually 
 held in chattels personal. As the lands are now held 
 for a limited estate, so a limited interest in the deeds 
 
 (i) Goode v. Burton, 1 Exch. (m) Sugd. Vend. & Pur. 366, 
 
 Eep. 189; Nervton v. Bech, 3 H. 13th ed.; Co. Litt. 6 a, n. (4). 
 
 & N. 220. (»,) Malone v. Minouglian, 14 
 
 (Jt) 27 Hen. VIII. c. 10. Ir. Com. Law Rep. 540, disseu- 
 
 (Z) 1 Sand. Uses, 4th ed. 119; tiente Hayes, J. 
 
 5th ed. 117. ^o) Cro. Eliz. 496.
 
 12 OF CHOSES IN POSSESSIOX. 
 
 belongs to the tenant. The tenant for hfe or in tail, 
 when in possession of the lands, being the freeholder for 
 the time being, is entitled also to the possession of the 
 deeds (/?); whereas the tenant for a mere term of years 
 of whatever length, not having the fr'eehold or feudal 
 possession of the lands, has no right to deeds which re- 
 late to such freehold ((/) ; although deeds relating only to 
 the term belong to such a tenant, and will pass, without 
 any express grant, to the assignee of the term (r). The 
 tenant for life or in tail in possession, though entitled 
 to the possession or custody of the deeds which relate 
 to the inheritance, has no right to injure or part Avith 
 them (5) : he has an interest in the title deeds corre- 
 spondent only to his estate in the lands ; and if he 
 should part with the deeds, even for a valuable con- 
 sideration, the remainder-man, on coming into posses- 
 sion of the lands, will nevertheless be entitled to the 
 possession of the deeds, just as if the tenant for life or in 
 tail had kept them in liis own custody {t). 
 
 Heir-looms. Heir-looms, strictly so called, are now very seldom to 
 
 be met with. They may be defined to be such personal 
 chattels as go, by force of a special custom, to the heir, 
 along with the inheritance, and not to the executor or 
 administrator of the last owner (?/). The owner of an 
 heir-loom cannot by his avlU bequeath the heir-loom, if 
 he leave the land to descend to liis heir ; for in such a 
 
 (^p) Ford V. Peering, 1 Ves. (r) Hooper v. Ramshottom, 6 
 
 jun. 76; Strode v. Blackhurne, 3 Taunt. 12. 
 
 Ves. 225; Garner v. Hanmjng- (s) Bro. Abr. tit. Charters de 
 
 ton, 22 Beav. 627; Allwood v. Terre, pi. 36. As to production 
 
 Heywood, Exch. 11 "W. R. 291; see Davis v. JEarl of Dysart, 20 
 
 1 Hm-lst. & Colt. 745. Beav. 405. 
 
 {q) CliurcMll v. Small, 8 Ves. (f) Davies v. Vernon, 6 Q. B. 
 
 323; Harper y. Faulder,i:'^l3iA. 443; Easton v. London, Exch. 
 
 129, 138; Wiseman v. Westland, 12 W. R. 53; 33 L. J., Exch. 34. 
 
 1 You. & Jerv. 117; Hotliam v, (?*) See Co. Litt. 18 b. 
 Somerville, 5 Beav. 3G0.
 
 OF CHATTELS WTIICII DESCEND TO THE HEIR. 13 
 
 case the force of the custom will prevail over the be- 
 quest, which, not coming into operation until after the 
 decease of the owner, is too late to supersede the cus- 
 tom [x). According to some authorities heir-looms con- 
 sist only of bulky articles, such as tables and benches 
 fixed to the freehold ( ?/) ; but such articles would more 
 properly fall within the class of fixtures, of which we 
 shall next speak. The ancient jewels of the crown are Crown jewels. 
 heir-looms (z). And if a nobleman, knight or esquire 
 be buried in a chui'ch, and his coat armour or other en- Coat armour, 
 signs of honor belonging to his degree be set up, or if a 
 tombstone be erected to his memory, his heirs may main- Tombstone, 
 tain an action against any person who may take or deface 
 them (a). The boxes in which the title deeds of land Deed boxes. 
 are kept are also in the nature of heir-looms, and will 
 belong to the heir or de\'isee of the lands; for such 
 boxes " have their very creation to be the houses or 
 habitations of deeds" (b) ; and accordingly a chest made 
 for other uses will belong to the executor or adminis- 
 trator of the deceased, although title deeds should hap- 
 pen to be found in it. In popular language the term Popular use 
 "heir-loom" is generally applied to plate, pictures or 
 articles of property which have been assigned by deed 
 of settlement or bequeathed by will to trustees, in trust 
 to permit the same to be used and enjoyed by the per- 
 sons for the time being in possession, under the settle- 
 ment or will, of the mansion-house in which the articles 
 may be placed. Of this kind of settlement more will be 
 said hereafter. 
 
 Fixtures are such moveable articles or chattels per- Fixtures, 
 sonal as are fixed to the ground or soil, either directly, 
 or indirectly by being attached to a house or other 
 
 (a-) Co. Litt. 185 b. (z) Co. Litt. 18 b. 
 
 (y) Spelman's Glossary, voce («) Ibid. 
 
 Heir-Loom. See Williams on Exe- (5) Wentwortb's Office of an 
 
 cutors, pt. 2, bk. 2, ch. 2, s. 3. Executor, 157, 14tb ed. 
 
 of the term 
 heir-loom."
 
 14 
 
 OF CHOSES IN POSSESSION. 
 
 Fixtures of 
 tenants for 
 years. 
 
 building. The ancient common law, regarding land as 
 of far more consequence than any chattel which coidd 
 be fixed to it, always considered everything attached 
 to the land as part of the land itself, — the maxim being 
 quicquidplantatur solo, solo cedit{c). Hence it followed 
 that houses themselves, which consist of aggregates of 
 chattels personal (namely, timber and bricks) fixed to 
 the land, were regarded as land, and passed by a con- 
 veyance of the land Avithout the necessity of express 
 mention ; and this is the case at the present day {d). So 
 now, a conveyance of a house or other building, whether 
 absolutely or by way of mortgage, will comprise all ordi- 
 nary fixtures, such as stoves, grates, shelves, locks, &c. (e), 
 and also fixtures erected for the purposes of trade (/"), 
 Avithout any express mention, unless an intention to 
 withhold the fixtures can be gathered from the con- 
 text ( g). So on the decease of a tenant in fee simple, 
 the devisee of a house, or the heir at law in case of in- 
 testacy, will be entitled generally to the fixtures set up 
 in it {li). The ancient rule respecting fixtures has been 
 greatly relaxed in favour of tenants for terms of years, 
 who are now permitted to remove articles set up by them 
 for the purposes of trade or of ornament or domestic 
 convenience {{), provided they remove them before the 
 
 (c) See 4 Eep. 64 a; 1 Lord 
 Raymond, 738 ; MacTiintosh v. 
 Trotter, 3 Mee. & Wels. 184, 186; 
 Williams on Executors, pt. 2, bk. 
 2, ch. 3, s. 2. 
 
 {d') See Principles of the Law 
 of Real Property, 13. 
 
 (e) Colegrave v. Dias Santos, 
 2 Barn. & Cress. 76; S. C. 3 Dowl. 
 & Ry. 255; Longstaff \. Meayoe, 
 2 Ad. & Ell. 167; Hitchvian v. 
 Walton, 4 Mee. & Wels. 409; Ex 
 parte Barclay, 5 De G., M. & G. 
 403; Mather v. Fraser, 2 Kay & 
 
 John. 536; Williams y. Evans, 2^ 
 Beav. 239; Walmesley v. Mihie, 
 7 C. B., N. S. 115; Metropolitan 
 Counties ^'c. Society v. Brown, 
 26 Beav. 454. 
 
 (/) Culln-ick V. Swindell, M. 
 R., L. Rep., 3 Eq. 249 ; Cllmie v. 
 Wood, Law Rep., 3 Exch. 257. 
 
 (g) Hare t. Horton, 5 Barn. 
 & Adol. 715. 
 
 {h) Shep. Touch. 470. 
 
 (0 Grymes v. Bower en, 6 
 Bing. 437.
 
 OF CHATTELS WHICH DESCEND TO THE HEIR. 15 
 
 expiration of their tenancy (_/). But the old rule still Agricultural 
 prevails with regard to agricultural fixtures, which, 
 though set up by the tenant, become, by being fixed to 
 the soil, the property of the landlord (A) ; unless they 
 are put vip with the consent in writing of the landlord 
 for the time being, in which case it is provided by an 
 act of the present reign (/) that they shall be the property 
 of the tenant, and shall be removable by him on gi\Ting 
 to the landlord or his agent one month's previous notice 
 in Avriting of his intention so to do, subject to the land- 
 lord's right to purchase the same by valuation in the 
 manner provided by the act. This act extends to farm 
 buildings either detached or otherwise, and to engines 
 and machinery, either for agricidtural purposes or for 
 the purposes of trade and agriculture, although built in 
 or permanently fixed to the soil, so as the tenant making 
 any such removal do not in anywise injure the land or 
 buildings belonging to the landlord, or otherwise do put 
 the same in like plight and condition, or as good pHght 
 and condition as the same were in before the erection 
 of anything so removed. A relaxation of the old rule Fixtures of 
 has also been made in favour of the executors of a tenant '^^"^°* ^^'^ ^'^®- 
 for Hfe, who appear to be allowed to remove fixtures set 
 up by their testator for the purposes of trade or of 
 ornament or domestic convenience {m). But the rule Fixtures of 
 of the common law still retains much of its force as *^^^°* ^° ^'^^■ 
 between the devisee or heir of a tenant in fee simple 
 and his executor or administrator. Thus a tenant for 
 years may remove ornamental chimney-pieces set up by 
 him during his tenancy {n) ; but if erected by a tenant 
 in fee simple, they will pass with the house to the devisee 
 
 {j) Lyde v. Rnssell, 1 Bam. & U. See D'Eijncovrt v. Gregory, 
 
 Adol. 394; Leader v. Homewood, M. R., 36 Law Joum., N. S. 107 ; 
 
 5 C. B., N. S. 546. L. Rep., 3 Eq. 382. 
 
 {k) Elwes V. Maw, 3 East, 38. (w) Bishoj) v. Elliot, Ex. Ch., 
 
 (Z) Stat. 14 & 15 Vict. c. 25, lJur.,N. S. 962;24 Law J.,Exch. 
 
 s. 3. 229; 11 Ex. Rep. 113. 
 
 (wi) Lan'ton v. Larvton, 3 Atk.
 
 16 
 
 OF CHOSES IN POSSESSIOX. 
 
 or lieir (o). So machinery employed in carrjang on iron 
 works or collieries may be removed by a lessee for years, 
 if erected by liim ; but if erected by a tenant in fee 
 simple, such machinery, even though removable without 
 injury to the freehold, will belong to the heir or the 
 devisee of the land(/»). However it seems that pier 
 glasses, fixed by nails, and not let into panels, and 
 hangings fastened up for ornament, will now belong to 
 the executor or administi-ator of a tenant in fee simple 
 as part of his personal estate (q). 
 
 When fixtures 
 are demised. 
 
 Where fixtures are demised to a tenant along with the 
 house, mill or other building in which they may happen 
 to be, the property in the fixtures still remains in the 
 landlord, subject to the tenant's right to the possession 
 and use of them during his term (r) ; and if they should 
 be severed from the building by the tenant or any other 
 person, or should be separated by accident, the landlord 
 will acquire an immediate right to the possession of 
 them (s). In this respect they are subject to the same 
 rules as timber, which, as we shall see, is equally a part 
 of the inheritance until severed, and when cut becomes 
 the personal property of the owner of the fee. Fixtures, 
 which would descend with the house or building to the 
 heu' of the owner of the fee on intestacy, are not in fact 
 his goods and chattels properly so called (t). 
 
 Chattels vege- 
 table. 
 
 Chattels vegetable consist, as their name imports, of 
 moveable articles of a vegetable origin, such as timber, 
 imderwood, com and fi^t. All these articles, so long 
 
 (o) Dudley v. Warde, Amb. 
 113. 
 
 (^) Fishery. Dixon, 12 CI. & 
 Fin. 312. 
 
 (q) Cave v. Cave, 2 Vem. 508; 
 Squire v. Mayor, 2 Eq. Ca. Abr. 
 430, pl. 7; S. C. 2 Freem. 249. 
 
 (r) Boydell v. M'Micliael, 1 
 
 Cro. Mee. & Rose. 177; Hitch- 
 in an T. Walton, 4 Mee. & Wels. 
 409. 
 
 (s) Farrant v. Thompson, 5 
 Bam. & Aid. 826. 
 
 (f) Winn V. Inyiliy, 5 Barn. 
 & Aid. 625.
 
 OF C'TTATTELS WHICH DE.^CEND TO THE HEIR. 17 
 
 as they remain unsevered from the land, arc for many 
 purposes considered as part of it ; and they will pass 
 by a conveyance or devise of the land without express 
 mention (u). If, however, the trees shoidd be expressly 
 excepted out of the conveyance, they will remain the 
 personal property of the grantor, although severed only 
 in contemplation of law (x); and in like manner the trees 
 alone may be granted by a tenant in fee simple, and will 
 then form the personal property of the grantee, even 
 before they are cnt down (?/). But if a tenant of lands 
 in fee simple should die without having sold or devised 
 them [z), the law then draws a distinction between such 
 vegetable products as are the annual results of agricul- 
 tural labour, and such as are not. The former class are Emljlements. 
 called by the name of emblements, and the right to reap 
 them belongs to the executor or administrator of the 
 deceased in exclusion of the heii* (a) ; whilst the latter 
 class descend to the heir along with the land. The 
 reason of the distinction appears to be, that as annual 
 crops are mainly the result of labour inciu-red at the 
 expense of the owner's personal estate, his personal 
 estate ought to reap the benefit of the crop which re- 
 sults (Z»). Accordingly crops of corn, and grain of all 
 kinds, flax, hemp, and everything yielding'an artificial 
 annual profit produced by labour, belong to the executor 
 or administrator, as against the heir; whilst timber, 
 frmt trees, grass, and clover, which do not repay within 
 the year the labom- by which they are produced, be- 
 long to the heir as part of the land(c). The right to 
 
 («) Com. Dig. tit. Biens (H). v. Winnall, 12Beav. 357; Cooper 
 
 (x) EcrlaJie7iden's caseyme^. v. Woolfit, 2 Hurl. & Nonn. 122. 
 63 b. (rt) Com. Dig. tit. Biens (G). 
 
 (y) Wentworth's Office of an (J) AVentworth's Office of an 
 
 Executor, 14th ed. 148; Williams Executor, Uth ed. 147. 
 on Executors, pt. 2, bk. 2, ch. 2, (c) See Graves v. Weld, 5 Bam. 
 
 sect. 2. & Add. 105 ; S. G. 2 Nev. & Man. 
 
 (:) As to a devisee, see Rudge 725. 
 
 w .r.p. c
 
 18 
 
 OF CnOSES TX ?0>J>iESSTON. 
 
 emblements also belongs to the execntor or adminis- 
 trator of a tenant for life (d), and to a tenant at will 
 if dismissed from his tenancy before harvest (e). The 
 claims of tenants at rack rent, whose tenancies may de- 
 termine by the death or cesser of the estate of tenants 
 for life, or for any other uncertain interest, are now 
 provided for by a recent enactment, gi^dng the tenants 
 at rack rent a right to continue to hold until the expi- 
 ration of the cmTent year of their tenancy (/). 
 
 "When lands 
 are let for 
 years or life. 
 
 Timber tree?. 
 
 When lands are let to a tenant for years or for Hfe, if 
 no exception is made of the timber, the property in the 
 timber will still remain in the owner of the inheritance, 
 subject to the tenant's right to have the mast and fruit 
 growing upon it, and the loppings for fiiel, and the 
 benefit of the shade for his cattle (y). Accordingly all 
 fruit wdiich may be plucked, or bushes or trees, not 
 being timber, A\'hich may be cut or blo^vn down, Avill 
 belong to the tenant (A) ; but timber trees, which may 
 be cut or blown down, Avill immediately become the pro- 
 perty of the owner of the first estate of inheritance in 
 the land, whether in fee simple or in tail (^). Timber 
 trees are oak, ash, and elm in all places ; and in some 
 ]iarticular parts of the country, by local custom, wdiere 
 
 {(P) Principles of the Law of 
 Kcal Property, 24, 2nd ed. ; 25, 3rd 
 & 4th eds.; 27, 5th, 6th, 7th and 
 )>th eds. 
 
 (0 Ibid. p. 310, 2nd cd.; 325, 
 4th ed.; 33G, 5th ed.; 353,6th ed.; 
 360, 7th ed.; 376, 8th ed. 
 
 (/ ) Stat. 14 & 15 Vict, c, 2rj. 
 s. 1. See Principles of the Law of 
 Real Property, p. 25, 3rd & 4th 
 eds.; 27, 5th, 6th, 7th and 8th 
 eds. 
 
 (ff) LilforcVs case, 11 Rep. 
 48 h. 
 
 (A) Channon v. Patch, 5 Bam. 
 & Cress. 897; S. C. 8 Dow. & Ry. 
 651; Berriman v. FeacocTi, 9 
 Bing. 384 ; S. C. 2 Moo. & Scott. 
 524; Pidfilcy v. liaivTuig, 2 Coll. 
 275. 
 
 (i) Jlcrlakenden's case, 4 Rep. 
 63 a; Whitfield v. Ben-itt, 2 P. 
 Wms. 240; 3 P. Wms. 268; Lnsli- 
 ingtoii V, Boldcro, 15 Beav.- 1. 
 See, however. Earl Conley v. 
 Wellesley, M. R., 1 Law Rep. 
 Eq. 656, qn.?
 
 OF CHATTELS ^MTICH DESCEXD TO THE HETK. 19 
 
 other trees are generally used for building, tliey are for 
 that reason considered as timber (i^). But if the tenant Tenant with- 
 should be a tenant ■without impcacliment of waste (sine ^ent"af^T t 
 imj^etitione vasti), timber cut down by him in a husband- 
 like manner will become his o"\vn property Avhen actually 
 se^■ered(7), but not before (;«) ; for the words "without 
 impeachment of Avaste" imply a release of all demands 
 in respect of any waste which may be committed (n). 
 If, however, the words should be merely without beim/ 
 impleaded for loaste, the property in the trees when cut 
 would still remain in the landlord, and the action only 
 would be discharged, which he might otherwise have 
 maintained against the tenant for the waste committed 
 by the act of felling the timber (o). 
 
 iV.mmals ferce naturcp, or wild animals, including Animal.s/^;-^' 
 game, are exceptions from the rules which relate to ^^"' ''"^" 
 other moveables, on the gromid that until they are 
 caught there is no property in them. If therefore the 
 owner of land in fee simple should die, the game on his 
 land, or the fish in any river or pond upon the land, will 
 not l)elong to his executor or administrator ( j9 ). And if 
 a man shoidd have a park or Avarren, he has no true pro- 
 perty in the deer, conies, pheasants, or partridges ; but 
 they belong to him only " rationc privilegii for his game 
 and pleasure so long as they remain in the privileged 
 place" {q). But a property in Avild animals may be ob- 
 tained by reclaiming or catching them (■propter indiis- 
 triam), or by reason of their being unable to get aAvay 
 
 (70 2 Black. Com. 281. («.) 11 Rep. 82 b. 
 
 (?) Lewis Bowies' case, 11 Rep. {o) Walter Idle's case, 11 Rep. 
 
 82 1>. See PriBciples of the Law 83 a. 
 
 of Real Property, 23, 2ncl ed.; 24, {j)) Co. Litt. 8 a; Tlie case of 
 
 Srd & 4th eds.; 25, 5th, Gth, 7th S)vans, 7 Rep. 17 b. 
 
 and 8th eds. (17) 7 Rep. 17 b; Year Book, 
 
 (wO ChoJmeley v. I^axton, 3 4 Hen. VI. 55 b, 5G a; F. N. B. 
 
 Bing. 207; 10 Barn. & Cress; 564. 87, u. (a). 
 
 c 2
 
 2Q or cnosEs i\ pobsesstox. 
 
 ( propter impotentiam) (r). Thus deer, even thoiigli in a 
 legal park, may be so tame and reclaimed as to pass to 
 the executors of the o^nier of the park on liis decease (s); 
 so rabbits in a hutch, fish in a box, and young pigeons 
 in a dove house, una1)le to fly, will belong to the exe- 
 cutor or administrator of the owner, and not to his heir. 
 Hawks ;ind It appears to have been formerly thought that hawks 
 h')uuds. _^^^^-^ bounds Avere not subjects of personal property, but 
 
 would descend Avith the lands to the hen-; but this 
 opinion is not now law. " For," observes the author of 
 the Office of an Executor (^), "although they be for the 
 most part but things of pleasure, that hindereth not but 
 they may be valuable as well as instruments of music, 
 both tending to delight and exhilarate the spirits ; a cry 
 of hounds hath to my sense more spirit and vivacity 
 than any otlier music." 
 
 Kiglittokill The occupier of land for the time has now the sole 
 
 and take gam-. ^.[g\^i ^f killing and taking the game upon the land, 
 unless such right be reserved to the landlord or any 
 other person (z<). Where the landlord has reserved to 
 himself the right of killing game, he may authorize any 
 person or persons, who shall have obtained ceiiificates, 
 to enter upon the land for the purpose of pursuing and 
 killing game thereon (.r). And a recent enactment 
 proA-ides, that where the landlord or lessor of any land 
 has reserved to himself, by any deed or writing, the ex- 
 clusive right to the game on such land, then such land- 
 lord or lessor, for the pm-pose of prosecutmg all persons 
 
 (r) 2 Black. Com. 391, 394 ; thor of this work is supposed to 
 
 Williams on Executors, pt. 2, hk. hare been Jlr. Justice Doddi-idge. 
 2, ch. 2, sect. 1. (") Stat. 1 & 2 Will. IV. c. 32. 
 
 {s) Morgai) v. Tlie Earl of See as to hares, stat. 11 & 12 Vict. 
 
 Alergavenny, 8 C. B. 678. c. 29. 
 
 (^) Wentworth's Office of an (.?•) Stnt. 1 & 2 Will. IV. c. 32, 
 
 Executor, 143, 14th ed. The an- s. 11.
 
 OF CHATTELS MJIICII DESCEND TO THE HEIR. 21 
 
 for trespassing in pnrsnit of game on sueli laud Avitliout 
 his consent, shall be deemed the legal occnpier of the 
 gaid land ; and any person -who shall enter or be npon 
 the said land in search of or in piu'suit of game, without 
 the consent of such landlord or lessor, shall be deemed 
 a trespasser (y). And the lord of any manor or reputed 
 manor has the right to })nrsue and kill tlie game npon 
 the wastes or commons within the manor, and to autho- 
 rize any other person or persons, avIio shall have obtained 
 certificates, to enter npon such wastes or commons for 
 the same piu'pose (z). 
 
 When game or other wild animals were killed on any property in 
 land by any other person than the rightfld o^vner, the o''^'"^- 
 laAv, Avitli respect to the property in the game, was for- 
 merly as follows : If a man started any game Avithin his 
 OAvn grounds and followed it into another's, and killed 
 it there, the property remained in himself And so if a 
 stranger started game in one man's chase or free warren, 
 and hunted it into another libei-ty, the property con- 
 tinued in the owner of the chase or wan-en ; tliis pro- 
 perty arising from privilege, and not being changed by 
 the act of a mere stranger. Or if a man started game 
 on another's private grounds, and killed it there, the 
 property belonged to liim on whose ground it Avas killed. 
 Whereas, if, after being started there, it was killed in 
 the grounds of a third person, the property belonged 
 not to the owner of the first ground, because the property 
 was local ; nor yet to the oAvner of the second, because 
 it AA^as not started in liis soil ; but it vested in the person 
 who started and killed it, though guilty of a trespass 
 against both the OAvners (a). And this appears to be 
 still the law Avith respect to Avild animals Avhich are not 
 
 (//) Stat. 27 & 28 Vict. c. G7. («) 2 Bl. Com. 419; Cknrch- 
 
 (:;) Stat. 1 & 2 Will. IV. c. o2, ward v. Studdi/, U East, 249. 
 s. 10,
 
 22 OF CHORES IN POSSESSION. 
 
 game (i). But with respect to game an alteration 
 appears to have been made by the last Game Act (c), 
 ■which seems to vest the property in game killed on 
 any land by strangers, in the person having the right 
 to kiU and take the game upon the land (d). 
 
 (h) See madfs v. Iliffffs, 12 (c) Stat. 1 & iMVill. IV. c.32. 
 
 C. B., N. S. 501; 13 C. B., N. S. (,d) Sect. 36. Mig/f v. Earl of 
 
 844; 11 Jur. N. 8.701. Lonsdale, 1 H. & N. 923.
 
 ( 23 ) 
 
 CHAPTER II. 
 
 OF TROVER, BAILMENT AND LIEN. 
 
 Having now considered those moveable articles of 
 property wliicli form exceptions to the rules by which 
 chattels personal are in general governed, let us proceed 
 to notice some circumstances in which chattels personal 
 may be placed, so as to form not real but apparent 
 exceptions to the primary rule already noticed («), that 
 personal property is essentially the subject of absolute 
 ownership, and cannot be held for any estate. The pro- 
 perty in goods can only belong to, or be vested in, one 
 person at one time : in this respect it resembles the seisin 
 or feudal possession of lands {!)). Lands hoAvever may 
 be so conveyed that several persons may possess in them, 
 at the same time, several distinct A^ested estates of free- 
 hold, one of them being in possession, and the others 
 in remainder, or the last perhaps being in reversion (c). 
 
 (But the laAV knows no such thing as a remainder or 
 reversion of a chattel. It recognizes only the simple Property in 
 propcrtij in goods, coupled or not with the right of im- ^'°° "' 
 mediate possession. This simple principle of laAV, if 
 carefully borne in mind, will serve to explain many points 
 Avhicli Avould otherwise appear difficult or even contra- 
 dictory. It nuist be remembered, hoAvever, that it does 
 not strictly apply to the moveable articles noticed in our 
 first chapter, Avliich, from their connection Avitli the land, 
 
 (a) Antc,\,. 7. 136, 8tli ed. 
 
 {h) Sec rrinciples of the Law of (r) Ihid. p. 198, 2ud ed. ; 200, 
 
 Ileal Tropcrty, 111, 2iia ed.; 11 G, 4th ed.; 215, 5th ed.; 225, Gth 
 
 3rd & Ith cds.; 121, 122, 5th ed. ; cd.; 2ol, 7th ed.; 241, Sth ed. 
 127, 128,0thed.; loU, 131, 7th cd.;
 
 24 OF CH08ES IN POSSESSION. 
 
 are often governed by the principles of real, rather than 
 those of personal property. 
 
 1. When the property in goods is conpled ^ith the 
 possession of them, the ownership is of course complete. 
 This is the common and usual case of the ownership of 
 chattels personal : the OAvner Imows that the goods are 
 his own, and in his own possession, and that is sufficient 
 for him. Circumstances may, however, arise to change 
 Where an arti- tliis state of tilings. An article may be lost. In this 
 cle IS lost. ^^gg ^j^g OAvner still retains his property in the thing, but 
 
 he has lost the possession of it. The property, however, 
 which still remains in him, entitles him to the possession 
 of the article, whenever he can meet with it ; or, in legal 
 phraseology, the property draws with it the right of pos- 
 session {d). If therefore another person should find the 
 article lost, he Avill have no right to convert it to his own 
 use, if he has any means of knowing to whom it be- 
 longed, but must on demand deliver it up to the rightful 
 owner, in whom the property is already vested. If he 
 shoidd refuse to do so, such refiisal wiU argue that he 
 claims it as his own, and will accordingly be CAddence of 
 Action of a conversion of the thing to his own use (e). For the 
 
 trover and con- ^yj^-Qj^o; or trespass thus committed, a specific remedy has 
 version. . . . 
 
 been proA^ided by the law, in the shape of an action of 
 
 trove?' and conversion, or more shortly an action oi trover, 
 which is one of those actions comprised within the tech- 
 nical class of trespass on the case. The Avord trover is 
 from the French trouver, to find ; and the Avord con- 
 version is added, from the conversion of the goods to the 
 use of the defendant being the gist of the action thus 
 brought against him. That the defendant should liaA'e 
 found the article lost is not his fault, but his conversion 
 of it to his OAvn use is a trespass and renders him liable 
 
 {(l) 2 "Wms. Saunders, 47 a. Hob, 187; Bac. Abr. tit. Trover 
 
 (e) Ibid, il c; Ayar v. Lisle, (B}.
 
 OF TllOVEU, BAILMENT AND LIEN. 25 
 
 to tlic action avc are now considering. This action ac- 
 cordingly is noAv constantly brought to recover damages 
 for Avithholding the possession of goods whenever they 
 ha^e been wrongfldly converted by the defendant to his 
 own use, without regard to the means, whether by find- 
 ing or otherwise, by which the defendant may have 
 become possessed {/). This action can be maintained 
 only when the plaintiff has been in possession of the 
 goods ( ff), or has such a property in them as draws to it 
 the right to the possession. If the goods have been 
 Avrongfully converted by the defendant to liis own use, 
 the plaintiff will succeed, if he should prove either Avay 
 his own right to the immediate possession of the 
 goods (A) ; if he should not prove such right, he will 
 fail (?■). The property in the goods is that which most 
 usually draws to it the right of possession ; and the right 
 to maintain an action of trover is therefore often said to 
 depend on the plaintiff's proper ti/ in the goods ; the right 
 of immediate possession is also sometimes called itself a 
 special kind of property (A) ; but these expressions shoidd 
 not mislead the student. The action of trover tries 
 only the right to the immediate possession, wliicli, as we 
 shall now see, may exist apart from the property in the 
 goods. 
 
 For let us suppose that the finder of the article lost. If the finder 
 whilst ignorant of the true OAvner, shoidd have been ^^-IJeli^ tg may 
 wrongfully deprived of it by a third person. In this maintain 
 
 (/) 3 Black. Com. 153; stat. Taunt. 2G8; Legg v. Emns, 6 
 
 15 & 16 Vict. e. 7G, s. 49, schecl. Mee. & W. 36; Stephen on Plead- 
 
 (B) 28. ing, 354, 5th ed. 
 
 (g') Addiso)iv.Iiou)id,iAd.Si (() Gordon v. Har2)er, 7 T. 
 
 Ell. 799; S. C. 6 NeV. & Man. Rep. 9; Ferguson v. Cristall, B 
 
 422; Brooke v. Mitchell, 6 N. C. Bing. 305; Leahe v. Loveday, 4 
 
 349; S. C. 8 Scott, 739. Man. & Gr, 972; Bradle v. 
 
 (7i) Wilbrahani v. Snow, 2 Copley, 1 C. B. 685. 
 
 Savind. 47; Armory v. Dclamirie, (Ji) Rogers Y. Kennay, 9 Q. B. 
 
 iStr. 505; Roberts v. Wyatt, 2 592.
 
 2G t)F ClIOf<E« IX roSt?E«8I0N. 
 
 case the oAvner being absent, tlie finder is evidently 
 entitled to the possession of the thing ; and he will ac- 
 cordingly succeed in an action of trover brought by him 
 against the Avrong-doer(Z). Here the property in the 
 thing which was lost evidently belongs still to the original 
 owner ; but the right of possession is in the finder, until 
 the oAvner makes his appearance. The owner's property 
 then draAvs Avith it the right of possession ; and should 
 the finder convert the article found to his OAvn use, he m 
 his turn Avill be liable to an action of trover in respect 
 of the OAAaier's right of possession. Thus, so far as Ave 
 have already proceeded, we have found nothing more 
 than a simple property in goods, existing AAith or Avitli- 
 out the right of possession. The action of trover tries 
 the right of possession, and may or may not determine 
 the property. For, strange as it may appear, there is 
 no action in the laAv of England by Avliich the property 
 either in goods or lands is alone decided. 
 
 Bailment, 2. But the article in question, instead of being lost 
 
 and found, may become the subject of bailment. Bail- 
 ment is defined by Sir William Jones, in his admirable 
 and classical Treatise on the LaAv of Bailment (?«), to be 
 a delivery of goods in trust, on a contract expressed or 
 implied that the trusts shall be duly executed, and the 
 goods redelivered as soon as the trust or use for Avhicli 
 they were bailed shall have elapsed or be performed. 
 The term huihnent is derived from the French Avord 
 huiller, to deliver. The person Avho deliA'crs the goods 
 is called the bailor ; the person to Avhom they are de- 
 livered the bailee. The trusts on Avhich goods may be 
 delivered are various. The principal are the folloAving. 
 They may merely be lent to a friend, or left in the cus- 
 
 (/) Armory v. Dclamlrlc, 1 3 13est & Smith, ^{j^>; Sournc \, 
 
 Str. 505; 1 Smith's Leading Cases, Foshroolie, 18 C. B., N. S. 515. 
 
 \o\', Bridgcs\.HawkesivortU,lo (/«) P. 117. 
 Jur. 1079. ^li^Bucldeyy, Gvo><!<,
 
 OF TKUNEK, lJAJL3iEXT AM> LIEX. 27 
 
 tody of a Avareliouscmaii or Avliarfiiiger, or the}' ma}' bo 
 
 entrusted to a carrier to convey to a distance, or to an 
 
 agent or factor to sell ; or tliey may be paA\Tied for 
 
 money lent, "with or "wdthout a poAver to sell them (w), 
 
 or let out to hire(o). In all cases of bailment, however, 
 
 the simple rule still holds, that the i)ro})erty in goods Property re- 
 11. ,1 T 1 T mains in the 
 
 can belong to one party only ; and Avlien any goods arc bailor. 
 
 hailed^ the property still remains in the bailor (7;). The 
 
 I possession of the goods, hoAvever, is CAddently for the 
 time being with the bailee. But if, while goods are in 
 Ijaihnent, a third person should become possessed of 
 them, and should wTongfldly convert them to his own 
 use, the right to recover possession Avill in some degree 
 depend upon the natm-e of the bailment. 
 
 If the bailment should be what is called a simple hail- Simple bail- 
 ment, as in the four first instances above mentioned, that 
 is, a bailment which does not confer on the bailee a right 
 to exclude the bailor from possession, in such a case 
 either the bailee or the bailor may maintain an action of 
 trover against the wrong-doer (^q). The bailee may main- Bailee or 
 tain this action, because the action depends only on the jy^aintain^ 
 right to the possession -which the bailee has by \drtue of trover, 
 the bailment made to him (r) ; and the bailor may also 
 maintain the action, because liis property in the goods 
 draws "with it the right of possession, and the bailment 
 is not of such a kind as to vest this right in the bailee 
 solel}'. Ilie bailee is rather in tlie situation of servant 
 to the bailor, and the possession of the one is equivalent 
 in construction of law to the possession of the other. 
 But as it would be unjust that the wrong-doer should 
 
 («) See Plgot v, Cuhley, 15 C. (//) NlcJiolls v. Bastard, 2 C. 
 
 B., N. S. 701. M. & R. 659; Mandcrs v. Wll- 
 
 (o) See Cofff/SY. Bernard, 2 Ld. liam,^, 4 Exch. Eep. 339. 
 
 Kaym. 909, 912. (r) Sutton v. Buch, 2 Taunt. 
 
 {})) FraiMUi v. Xcaic, \o Mec. 302. 
 & W. 481.
 
 28 OF CIIOSES IN POSSESSION, 
 
 pay damages hvlcc over for his oiFence, the recovery of 
 damages either by bailee or bailor deprives the other 
 of his right of action (s). Tf, liowever, the bailment 
 Pawnee or should not be of the simple kmd, but should confer on 
 alone maintain ^he bailee the right to exclude the bailor from the pos- 
 tiovcr. session, here, though the property in the goods still 
 
 remains in the bailor, the bailee alone can maintain an 
 action of trover against any person who may have taken 
 the goods and converted them to his own use. Thus 
 the pa-\^-nee or hirer of goods can alone maintain an 
 action of trover so long as the pawning or hii-ing con- 
 tinues (^). Here agam we have the property in the 
 goods still vested in one person, the bailor, draTving with 
 it, in the case of simple bailment, the right to the pos- 
 session, and, in the case of other bailments, temporarily 
 disconnected from that right. If, IwAever, any bailee, 
 Avhatever be the nature of his bailment, shoidd convert 
 the goods bailed to him to his own use, he will by that 
 act have determined the bailment : the property in the 
 bailor will draw to it the right to immediate possession, 
 and the bailor may accordingly recover damages for the 
 act by an action of trover (?<). 
 
 Lien. 3. The last case requiring notice in wliich goods may 
 
 be in the possession of a person who has no property in 
 them, is the case of the existence of a lien on the goods. 
 A lien is the right of a person in the possession of goods 
 to retain them until a debt due to him has been satis- 
 Particnlar or fied (v). A lien is either particulm- or general. A par- 
 general, ticular lien is a right to retain the particular goods in 
 
 (s) Bac. Abr. tit. Trover (C). B. 672; Johnson v. Stear, 15 C, 
 
 (t) Gordon v. Harper, 7 T.R. B., N. S. 330; Pirjot v. CuMei/, 
 
 9; Burton v. HngUes, 2 Bins. 15 C. B., N. S. 701. . 
 
 \-^; Fergusony. Crlstall,o'&mg. (?') 2 East, 235; 2 Rose, 357; 
 
 305; Pain y. mUtaJccr, 'Ry. Si Smith's Compendium of Mercan- 
 
 Moo. 99. tile Law, 531, 5th cd.; 503, 0th 
 
 (h) Coo2)cr V. Willomatt, 1 C. cd.
 
 OF TnOYEll. r,ATL:\rFA'T AND LTEX. 29 
 
 respect of which the debt arises. A general lien is a 
 right to retain goods in respect of a general balance of 
 rai account. The former kind of lien is favoured in 
 law ; Ijut the latter, having a tendency to prefer one cre- 
 ditor above another, is taken strictly (x). A particular rarticnlai- Hen. 
 lien is given by the common laAv over goods which a 
 ]>erson is compelled to receive ; thus carriers (y) and 
 innkeepers (~) have a lien on the goods in their care ; 
 although an innkeeper cannot detain his guest's pex'son, 
 or take his coat off his back, to secure payment of his 
 bill («). A particular lien is also given by law to every 
 person who l)yhis labour or skill has improved or altered 
 an article entrusted to his care : thus a miller has a lien 
 on the flour he has ground for the cost of grinding (Z») : 
 and a shipwright has a Hen on a ship entrusted to him 
 to repair for the costs of repairing it(c). So a lien may 
 be claimed for .training a horse, because he is improved 
 by the labour and skill thus bestowed upon him {d) ; 
 but no lien can arise merely for his keep (e), imless he 
 has been kept by an innkeeper, who is compelled to 
 take him in(f). A lien on goods is not sufficient to 
 Avarrant the sale of them {(/), nor does it authorize the 
 possessor to charge for their standing (A). A particular Salvage. 
 lien also arises in the case of salvage, or rescuing a ship 
 
 (.X') 3 Bos. & Pul. idi. & Mai. 23G. 
 
 (i/) Sklnnevv. I j)sha7v, 2 Jjoril (e) Wallace v. Woodgatc, 1 
 
 Raym. 752. Ry. & Moo. 293. See Sanderson 
 
 (z) TJiom.pson v. Lacnj, 3 B. & v. Bell, 2 Cro. & Mee. 304, 311; 
 
 Aid. 283. 4 Tyr. 244, 252. 
 
 {a)Suiihol/y.Alford,3'McQ.8i (/) Johnson y. 1^(7Z, 3 Stark. 
 
 Wcls. 248. The lien of innkeepers 172; Allen \. Smith, 12 C. B., 
 
 on the goods of their giiests is now N. S. 638, affirmed in Ex. Cham., 
 
 regulated hy stat. 2G & 27 Vict. Jur., N. S. 1284, 11 W. R. 440. 
 
 c. 41. (c/) Thames Iron Worlis Com- 
 
 {h) Ex jxirtc Oehendcn, I Ai^. pany v. Patent Berr'ieli Com- 
 
 235. l}a>iy, 1 John. & H. 93. 
 
 (c) FranldlnY. Hosier, m. ^ (//) British Empire Shippincj 
 
 Aid. 341. Companii y. Somes, 1 E. B. & E. 
 
 (r7) Bevon v. Walters, 1 INToo. 353.
 
 30 
 
 OF CIIOSES TX POSf^ESSIOX. 
 
 rrciffLt. 
 
 or its lading from tlic perils of tlie sea or the queen's 
 enemies, for tlie trouble and risk incurred (?"); but this 
 kind of Hen has])cen modified by the Merchant Shipping- 
 Act, 1854, which provides for the appointment of public 
 receivers of all Avreck, into Avhose hands any person, not 
 being the owner, who finds or takes possession of any 
 Avreck, is bound to deliver it as soon as possible (j). 
 The lien of a shipowner for freight is now regulated 
 by the Merchant Shipping Act Amendment Act, 
 1862 (A). 
 
 Gcner:il lien. A general lien, when it does not arise hy express con- 
 tract, or fi-om a contract implied by the course of deal- 
 ing between the parties (/), accrues in consequence of the 
 custom of some trade or profession ; and it may be local 
 also, that is, confined to some particular place (i7i). It 
 obtains iii many trades, such as Avharfingers {71), dyers (o), 
 calico printers (^j), factors ((7), policy brokers (?'), and 
 bankers (.s), and perhaps also common carriers {t). So- 
 
 Solicitor's lien, licitors and attomies have also a lien on all the deeds 
 and documents of their clients in their possession for 
 their professional charges generally (u); l)ut this doctrine 
 
 (i) Ucu'tford y. Jones, 1 Lord 
 Eaym. 393; Bartnfj v. Daij, 8 
 East, 57. 
 
 (j) Stat. 17 & IS Vict. c. 104; 
 amended by stats. 18 & 19 Vict. 
 c. 91; 24 Vict. c. 10, and 25 & 2G 
 Vict. c. G3. 
 
 (Ji) Stat. 25 & -26 Vict, c, G3, 
 ss. 6G, 78. 
 
 (Z) Simond v. Jlihhrrf, 1 En<?. 
 & Myl. 719. 
 
 (w) Hohlcrncss v. CollUimi), 7 
 Barn. & Cress. 212. 
 
 (?;) Kaylor v, Manrjlrit, 1 Esp. 
 109. 
 
 {0) Sfiv'tU Y. Barcliai-d, 4 Esp. 
 53. See however Close v. Water- 
 
 house, G East, 523, n. 
 
 (^;) Wcldoii V. Guuld, 3 Esp. 
 208. 
 
 (^) Tloufjldon V. Matthews, 3 
 Bos. & Pul. 488; Con-ell v. Simi)- 
 snii, IG Ves. 280. 
 
 (r) Many. Shiffner, 2 East, 523. 
 
 (s) Davis V. Bowsher, 5 T. E. 
 488; Bvandao v. Barnett, 3 C. B. 
 519, 530. 
 
 (f) Sec Riishfovfh V. Hadfield, 
 G East, 519; 7 East, 224; AsjJui-' 
 all V. Pichford, 3 Bos. & Pul. 
 44, note. As to railways, see stat. 
 8 & 9 Vict. c. 20, s. 97. 
 
 {11) Stevenson, v. BlaTieloeh, 1 
 I\Iau. & Sel. 535; Ex parte Ster-
 
 OF TFvOVKn.. r,\TL^n:\T axd tjf.x, :\\ 
 
 is to be taken in connection with the peculiar nature of 
 title deeds, which being the sinews of the land, follow the 
 seisin of it, and may therefore be held by the client only 
 for a limited interest. Thus, if a tenant for life should 
 leave the title deeds of the land in the hands of his soli- 
 citor, the lien of the solicitor for his professional charges 
 would be coextensive only Avith his client's interest, and 
 on the client's decease the solicitor Avould be bound to 
 deliver up the deeds to the remainder-man, although his 
 charges might remain unpaid (u). So if the client should 
 be a mortgagee, the solicitor having the deeds would be 
 bound to deliver them to the mortgagor, on the recon- 
 A'cyance of the property, on payment to the mortgagee 
 of all principal and interest ; for on such reconveyance 
 the mortgagee ceased to have any interest in the lands (.r). 
 And in like manner if the client should be a mortgagor, 
 the solicitor woidd have no right to retain the deeds as 
 against the prior claim of the mortgagee (y) : and if the 
 client should be a trustee, the deeds must be given up. 
 for the purposes of the trust (r). This lien also extends 
 only to charges strictly professional («), and to docu- 
 ments in the possession of the attorney or solicitor in his 
 ])rofessional character ( b) ; but it has been held that such 
 lien is assignable, together with the debt and documents, 
 to a third person not a solicitor or attorney (c). A mere 
 certificated conveyancer has no general lien on the do- 
 cuments in his hands (d). It is now provided that in 
 
 li/>!/, IG Ves. 258; Ux j/raie {a) The King \. Sanhcij, ~i AA. 
 
 Pcmljcrion, 18 Vcs. 282. & Ell. 423; Worrell \. Johimw, 
 
 ((•) Davies v. Vernon, G Q. B. 2 Jac. & Walk.-21S. 
 
 443, 447. {h) Ch(imperno)vii v. Scott, 
 
 (,!•) Wdl'efehl V. Xen-l>on, ]\Iaaa. 03; Batch v. Sijmes, T. & 
 
 Q. B. 276. Buss. 87. 
 
 (y) Smith v. Chiche.ster, 2 Di-. (c) Bull v. FauUncr, 2 Dc G. 
 
 & War. 393; Blunden v. Besart, & S. 772, scdqu. 
 
 id. 405; Pclli/ v. Watken, 7 Haic, (d) HolUs v. Claridge, 4 Taunt. 
 
 351; 1 De Gex, Mac. & Gord. 16. 807; Steadman v. Hockley, 15 
 
 (r) Baher v. Henderson, 4 Sim. Mcc. & Wels. 553.
 
 32 
 
 OF CHOSES IX POSSESSION. 
 
 New enact- 
 ment as to 
 solicitors' lien. 
 
 every case in which an attorney or soHcitor shall be 
 employed to prosecute or defend any suit, matter or pro- 
 ceeding in any court of justice, it shall be lawful for the 
 coui-t or judge, before Avhom any such suit, matter or 
 proceeding has been heard, or shall be depending, to 
 declare such attorney or solicitor entitled to a charge 
 upon the property recovered or preserved ; and upon 
 such declaration being made, such attorney or solicitor 
 shall have a charge upon and against, and a right to 
 payment out of the property, of wliatsoever nature, 
 tenure or kind the same may be, which shall have been 
 recovered or preserved through the insti-umentality of 
 any such attorney or solicitor, for the taxed costs, 
 charges and expenses of or in reference to such suit, 
 matter or proceeding (e). 
 
 Property of 
 goods subject 
 to lien is in 
 the owner. 
 
 How lien is 
 lost. 
 
 Lien, then, of whatever kind, is merely a right to 
 retain the possession of the goods. This right of posses- 
 sion enables the person who has been in possession by 
 virtue of the lien to maintain an action of trover for the 
 goods (/); hut i\\Q jJi'operty \n the goods still remains 
 with the owner ; and if the person having the lien should 
 give up the possession of the goods, his lien will be 
 lost(/7); the owner's property in them will draw to it 
 the right of possession, and enable him to maintain an 
 action of trover (A). And if the person having the lien 
 shoidd take a seciu'ity for his debt, payable at a distant 
 day, his lien woidd on that account be lost, as it would 
 be unreasonable that he should detain the goods till 
 such txitiu'C time of payment {{) ; and in this case also 
 an action of trover may be maintained by the o^Mier 
 
 (e) Stat. 23 & 24 Vict. c. 127. 
 s. 28 ; Wilsoyi v. Hood, 3 Hiu'lst. 
 & Colt. 148 ; Haymcs v. Cooper, 
 33 Beav. 431. 
 
 (/) Legg v. Ei-an», 6 Mee. & 
 Wels. 36. 
 
 {g') Kruges v. Wilcox, Amb. 
 254. 
 
 (Ji) Sweet V. Pym, 1 East, 4. 
 
 (/) Concll V. Sim]}son, 16 Ves. 
 275.
 
 OF TROVER, BAILMENT AND LIEN. 33 
 
 of the goods, by virtue of the right of possession now 
 accrued to him in respect of his property (A). 
 
 When goods are taken under a distress for rent, the Distress for 
 property in the goods still remains in the owner, until a ^ 
 sale is made pursuant to the statute (/) by which a sale 
 is authorized (^?^). 
 
 In all the above cases of finding of goods, bailment, 
 lien and distress, it appears clear, therefore, that the 
 property in the goods is still simply vested in one party 
 only, although the right to their immediate possession 
 may be in another party, and the actual possession pos- 
 sibly in a third. 
 
 (7e) Hemison v. Guthrie, 2 1, c. 5, s. 2. 
 New Cas. 756, 759. (/«) King v. England, 4 Best 
 
 {I) Stat. 2 Wm. & Mary, Sess. & Smith, 782. 
 
 W.P.P. D
 
 34 OP CHOSE8 IN POSSESSION. 
 
 CHAPTER III. 
 
 OF THE ALIENATION OF CHOSES IN POSSESSION. 
 
 Choses in possession have always been freely alienable 
 
 from one person to another. The feudal pnnciples of 
 
 tenure, which in ancient times opposed the alienation of 
 
 landed estates, could have no application to the then 
 
 insignificant subjects of personal property ; although the 
 
 full right of testamentary disposition was not, as we shall 
 
 A grant can- hereafler see, enjoyed in early times. But, though the 
 
 not be made of property in personal chattels may be freely ahened, it is 
 
 a maiS'hls^no impossible for a man to make a valid grant in law of 
 
 actual or po- ^^lat in which he has no actual or potential property, but 
 tential pro- , , ' 
 
 perty. which he only expects to have. A person wlio has an 
 
 interest in land may grant all the fruit wiiich may grow 
 
 upon it hereafter {a). So a grant of the next year's wool 
 
 of all the sheep wdiich a man now has is valid, because 
 
 he has a potential property in such wool (Z> ). But a grant 
 
 of the wool of all the sheep which a man ever shall have 
 
 is void (c). And in the same manner the assignment of 
 
 a man's stock in trade passes only such articles as are 
 
 his property at the time he executes such assignment, 
 
 and will not comprise any other articles Avhich he may 
 
 afterwards purchase (rf) ; not even if the instrument of 
 
 assignment should pm-port to convey all goods which 
 
 shoidd at any time thereafter be in or upon his dwelling- 
 
 hovise {e). The property in goods to be hereafter ac- 
 
 (a) GranthaviY.nawleij,'Kc,h. Man. & Gr. 245; S. C. 6 Scott, 
 
 132; Fetch V. Tutin, 15 Mee. & N. R. 967. 
 
 Wels. 110. (e) Lunn v. Tlwrnton, 1 C. B. 
 
 (i) Per Pollock, C. B., 15 Mee. 379; Gale v. Burnell, 7 Q. B. 
 
 & Wels. 116. 850; Balding v. Read, Exch. 11 
 
 (c) Com. Dig. tit. Grant (D). Jur., N. S. 547; 3 Hurlst. & Colt. 
 
 (d) Taphill v. Tollman, 6 955.
 
 OF THE ALIENATION OF CHOSES IN POSSESSION. 35 
 
 quired may however be efFectually passed by an assign- 
 ment thereof in equity coupled Avith a licence to seize 
 them(/). 
 
 The manner in which the ahenation of personal chat- 
 tels is effected, is in many respects essentially different 
 from the modes of conveying real estate. In ancient 
 times, indeed, there was more similarity than there is at 
 present. The conveyance of land Avas then usually made Ancient mode 
 by feoffment, with Hvery of seisin, which was nothing real*pix)p^rty 
 more than a simple gift of an estate in the land accom- 
 panied by delivery of possession {g). This gift might 
 then have been made by mere word of mouth (Ji) ; but 
 the Statute of Frauds {i) made writing necessary; and 
 now every conveyance of landed property is required to 
 be by deed ( j). Personal chattels, on the contrary, are Modes of 
 still alienable by mere gift and delivery ; though they personal chat- 
 may be disposed of by deed ; and they are also assign- tels. 
 able by sale, in a manner totally different from the con- 
 veyance requisite on the transfer of real estate. Each 
 of these three modes of conveyance deserves a separate 
 notice. 
 
 1. And first, personal chattels are alienable by a mere Gift and deli- 
 gift of them, accompanied by delivery of possession. ^' 
 For this purpose no deed or writing is required, nor is it 
 
 (/) Congreve v. Evetts, 10 of Real Property, 113, 2nd ed.; 
 
 Exch. 298; Hope v. Hayley, 5 118, 3rd & 4tli eds.; 121, 5th ed. ; 
 
 E. & B. 830; Allatt v. Carr, 127, 6th ed.; 130, 7th ed.; 138, 
 
 Exch. 6 W. R. 578; Chidell v. 8th ed. 
 
 Galsivorthy, 6 C. B., N. S. 471; (Ji) See Principles of the Law 
 
 Holroyd v. Marshall, 10 H. of L. of Real Property, 117, 2nd ed.; 
 
 Gas. 191 ; 9 Jur., N. S. 213; Reeve 122, 3rd & 4th eds. ; 128, 5th ed.; 
 
 V. mdtmore, L. C, 12 W. R. 134, 6th ed.; 187, 7th ed.; 143, 
 
 113; 9 Jur., N. S. 1214; Bro7vn v. 8th ed. 
 
 Bateman, L. Rep., 2 C. P. 272; (i) Stat. 29 Car. II. c. 3, ss. 
 
 Blake Y. Izard, C. P. 16 W. R. 1, 2. 
 
 108. (j) Stat. 8 & 9 Vict. c. 106, 
 
 (y) See Principles of the Law s. 3. 
 d2
 
 3G 
 
 OF CHOSES IN POSSESSION. 
 
 Trust, though 
 voluntai-y, en- 
 forced in 
 equity. 
 
 essential tliat there sliould be a consideration for the gift. 
 Thus, if I give a horse to A. B., and at the same time 
 deliver it into his possession, this gift is complete and 
 irrevocable, and the property in the horse is thencefor- 
 ward vested in A. B. (A). But if I purport to assign 
 the horse, and yet retam the possession, the gift, though 
 made by m-iting (so that it be not a deed), is absolutely 
 void at law (Z), and equity will give no relief to the 
 donee (m). It may, however, be observed, that if the 
 donor should not attempt to part with the subject of 
 gift, but should declare that he keeps possession of it in 
 trust for the donee, equity will seize on and enforce this 
 trust, although voluntarily created (?«). In some cases 
 it is not possible to make an immediate and complete 
 delivery of the subject of gift ; and in these cases, as 
 near an approach as possible must be made to actual 
 delivery ; and if this be done the gift will be effectual. 
 Thus if goods be in a warehouse, the delivery of the 
 key win be sufficient (o) ; timber may be delivered by 
 marking it with the initials of the assignee (p), and an 
 actual removal is not essential to the delivery of a hay- 
 stack (q). But the delivery of a part of goods capable 
 of actual delivery, is not a sufficient delivery of the 
 whole (r). 
 
 (i) 2 Black. Com. 441. 
 
 (Z) Irons y. S7nall2nece,2'BaYn. 
 & Aid. 551; Miller \. Miller, 3 
 P. Wms. 356 ; Bourne v. JPos- 
 Iroohe, 18 C. B., N. S. 515. See 
 also Shower v. Pilcli, 4 Ex. Rep. 
 478. 
 
 (?«,) AntrohnsY. Smith, 12 Ves. 
 30, 4G; Edwards v. Jones, 1 My. 
 & Cr. 226; Dillon v. Copjiin, 
 4 My. & Cr. 647, 671. 
 
 (ft) Ellison V. Ellison, 6 Ves. 
 656; Ex imrte Duhost, 18 Ves. 
 140, 150; Vandenhergx. Palmer, 
 4 Kay & John. 204; Jones v. 
 
 Loch, L. C. 11 Jur., N. S. 913, 
 correcting Scales v. Matide, 6 De 
 G., M. & G. 43, 51. 
 
 (o) West V. Shi/p, 1 Ves. sen. 
 244; By all v. Bowles, 1 Ves. sen. 
 362; 1 Atk. 171; War Ay. Turner, 
 2 Ves. sen. 443. 
 
 {p) Stoveldv. Hughes, 14 East, 
 308. 
 
 (q) Chaplin v. Bogers, 1 East, 
 190. See Young v. Matthews, 
 L. Eep., 2 C. P. 127. 
 
 (r) Per Pollock, C. B., 14 Mee. 
 & Wels. 37, correcting a dictum 
 of Taunton, J., 2 Ad. & Ell. 73.
 
 OF THE ALIENATION OE C'lIOSES IN POSSESSION. 37 
 
 When goods are in the custody of a simple bailee, Constractive 
 such as a wharfinger or carrier, the possession of such ^oodrai-riu" 
 bailee is, as we have seen (5), constructively the posses- the custody of 
 sion of the bailor ; and either the bailor or bailee may 
 maintain an action of trover in respect of the goods. 
 This constructive possession of the bailor may be de- 
 livered by him to a third person, by making as near an 
 approach to actual delivery as is possible under the cir- 
 cumstances of the case. By the custom of Liverpool 
 the delivery of goods in another person's warehouse is 
 effected by merely handing over a delivery order (t) ; 
 and the property in wines in the London Docks appears Dock warrant, 
 to pass by the indorsement and delivery of the dock 
 warrant (m). But in the absence of a custom to the con- 
 trary, it would seem that there can be no legal dehvery 
 of goods into the hands of a third person Avithout the 
 consent of the warehouseman or wharfinger in whose 
 custody the goods are (x). When goods are at sea, the Bill of lading. 
 delivery of the bill of lading, after its endorsement, is a 
 delivery of the goods themselves (?/) ; for it is not pos- 
 sible, in this case, to make any nearer approach to an 
 actual delivery {z). 
 
 2. The next method of alienating chattels personal is Alienation by 
 by deed. Every deed imports a consideration («) ; for ^^"^ ' 
 
 (s) Ante, p. 27. ibid. 278; Brrjans y. Mx, 4 Mee. 
 
 {t) Dixon y. Yates, ?> Bam. & & Wels. 775, 791; M'Ewcvn v. 
 
 Adol. 313; and see Greaves v. Smith, 2 H. of L. Cases, 309. 
 
 Heplie, 2 Barn. & Aid. 131; And see Pearson v, Dawson, 1 
 
 Kingsford v. Ilerry, 1 Hurl. & E. B. & E. 448. 
 
 N. 503. (y) Mitchell v. Ede, 11 Ad. & 
 
 (?<) Ex parte Davenport, Mon. Ell. 888; and see stat. 18 & 19 
 
 & Bl. 165. Delivery orders are Vict. c. 111. 
 
 now subject to a stamp duty of one (z) 1 Ves. sen. 362; 1 Atk. 171. 
 
 penny, and dock warrants to a («) Plowd. 308; 3 Buit. 1639; 
 
 stamp duty of threepence, by sta- 1 Fonb. Eq. 342; 2 Eonb. Eq. 26; 
 
 tutes 23 Vict. c. 15, and 23 & 24 Principles of the Law of Eeal Pro- 
 
 Vict. c. 111. perty, 118, 2nd ed.; 123, 3rd & 
 
 {x) Zrainger v. Samnda, 7 4th eds.; 128, 5th ed.; 134, 6th 
 
 Taunt. 265; Ducas \. Dor Hen, ed. ; 137, 7th ed. ; 144, 8th ed.
 
 38 
 
 OF CHOSES IN POSSESSION. 
 
 it was anciently supposed, that no person would do so 
 solemn an act as the sealing and deUvery of a deed 
 without some sufficient ground. The presence of this 
 implied consideration renders a deed sufficient of itself 
 to pass the property in goods (b). It supplies on the one 
 hand the want of dehvery, and on the other the want 
 of that actual consideration which always exists in the 
 third and most usual mode of ahenation of chattels per- 
 sonal, which is. 
 
 Sale. 
 
 Effect of a 
 contract for 
 the sale of 
 lands. 
 
 Contract for 
 sale of goods 
 transfers the 
 property. 
 
 3. By sale. It is in this last and most usual method 
 of alienation that the contrast presents itself between 
 the means to be employed for the alienation of real pro- 
 perty and chattels personal. When a contract has 
 been entered into for the sale of lands, the legal estate 
 in such lands still remains vested in the vendor ; and it 
 is not transferred to the vendee until the vendor shall 
 have executed and delivered to him a proper deed of 
 conveyance. In equity, it is true, that the lands belong 
 to the purchaser from the moment of the signatm-e of 
 the contract ; and from the same moment the pm-chase- 
 money belongs, in equity, to the vendor (c). But at 
 law the only result of the signature of a contract for 
 the sale of lands is, that each party acquires a right to 
 sue the other for pecuniary damages, in case such con- 
 tract be not performed. Not so, however, the case of a 
 contract for the sale of chattels personal. Such a con- 
 tract immediately transfers the legal property in the 
 goods sold from the vendor to the vendee, without the 
 necessity of any thing fiu'ther(6?). In order to this, it 
 is of course necessary, that the transaction have within 
 itself all the legal requisites for a sale ; and these requi- 
 
 (5) Carr v. BurAiss, 1 C, M. & 
 K. 782, 788; S. C. 5 Tjrw. 309, 
 316. 
 
 (c) Principles of the Law of 
 Real Property, 133, 2nd ed.; 137, 
 
 3rd & 4th eds.; 143, 5th ed.; 150, 
 6th ed.; 153, 7th ed.; 159, 8th ed. 
 id^ Com. Dig. tit. Biens (D), 
 3.
 
 OF THE ALIENATION OF CH0SE8 IN POSSESSION. 39 
 
 sites mil accordingly form the next subject for our con- 
 sideration (e). 
 
 The requisites for the sale of goods partly depend Requisites for 
 upon their value. Goods under the value of 10/. sterling g^^^^ ^^^^^ 
 may now be sold in the same manner as goods of what- the value of 
 ever value were anciently saleable ; whereas goods of the 
 value of 10/. or upAvards are now regulated in their sale 
 by an enactment contained in the Statute of Frauds (/). 
 And first, with regard to such goods and chattels as do 
 not fall within this enactment, there can be no sale with- 
 out a tender or part pajmient of the money, or a tender 
 or part delivery of the goods, unless the contract is to 
 be completed at a futm-e time. Thus if A. should agree 
 to pay so much for the goods, and B., the owner, should 
 agree to take it, and the parties should then separate 
 without any thing further passing, this is no sale (^). 
 But if A. should tender the money, or pay but a penny 
 of it, or B. should tender the goods, or should deliver 
 any, even the smallest portion, of them to A., or if the 
 payment or delivery or both should be postponed by 
 agreement tiU a hiture day, the sale will be valid, and 
 the property in the goods vnR pass at once from the 
 vendor to the vendee (A). If, however, any act should 
 remain to be done on the part of the seller previously to 
 the delivery of the goods, the property will not pass to 
 the vendee until such act shall have been done. Thus, 
 if goods, the Aveight of Avhich is unknown, are sold by 
 weight (^), or if a given weight or measure is sold out of 
 
 (e) In the recent cases of (ff) 2 Bla. Com. 447; Smith's 
 
 Thompson v. Pettitt, 10 Q. B. Mercantile Law, 461, 5th ed. ; 
 
 101, and Flory v. Denny, 7 Ex. 488, 6th ed. 
 Eep. 581, the property in goods (/t) Shep. Touch. 224; 3Iartin- 
 
 was held to pass by a mere written dale v. Siriith, 1 Q. B. 389, 395. 
 memorandum by way of »io?'^/7ff(7e, (i) Hanson v. Meyer, 6 East, 
 
 without any delivery; sed qu. 614; Sivann'ick v. Sothern, 9 Ad. 
 
 (/) 29 Car. II. c. 3, s. 17. & Ell. 895.
 
 40 
 
 OF CHOSES IN POSSESSION. 
 
 Requisites for 
 the sale of 
 goods of the 
 vah;e of 10^. 
 or upwai'ds. 
 
 a larger quantity (A), tlie property A\'ill not pass to the 
 vendee until tlie price shall have been ascertained by 
 weighing the goods in the one case, or the goods sold 
 shall have been separated by weight or measiu-e in the 
 other. So if an article be ordered to be manufactured, 
 the property in it wall not vest in the person who gave 
 the order, until it shall, Avith his assent, have been ap- 
 propriated for his benefit (/). It is not, however, neces- 
 sary that a price should actually be named. A con- 
 tract to sell withovit naming a price is a contract to sell 
 at a reasonable price : and the property in goods may 
 Avell pass by such a contract (m). So a contract to sell 
 by weight may pass the property in the goods before 
 they are actually weighed, if such appear to be the in- 
 tention of the parties (n). 
 
 But with regard to goods of the value of lOZ. or up- 
 wards, additional requisites have been enacted by the 
 seventeenth section of the Statute of Frauds (o), which 
 provides, " that no contract for the sale of any goods, 
 wares and merchandizes for the price of 10/. sterling .or 
 upwards shall be allowed to be good, except the buyer 
 shall accept part of the goods so sold, and actually re- 
 ceive the same, or give something in earnest to bind 
 the bargain, or in part of payment, or that some note or 
 memorandiun in A^o-iting of the said bargain be made 
 and signed by the parties to be charged by such con- 
 tract, or their agents thereunto la wildly authorized." 
 And by a modern statute (p), this enactment " shall 
 extend to all contracts for the sale of goods of the value 
 
 ik) Busk V. Davis, 2 Man. & 
 Selw. 397; Shepley v. Davis, 5 
 Taunt. 617. 
 
 (Z) Atliinson v. Bell, 3 B. & 
 Cress. 277; Williins v. Bromhead, 
 5 Man. & Gr. 963, 973. 
 
 {m) Joyce v. Snanti, 17 C. B., 
 
 N. S. 84. 
 
 (;t) Turhy v. Bates, 2 Hurl. &' 
 Norm. 200. 
 
 (0) 29 Car. II. c. 3. 
 
 (i;) Stat. 9 Geo. IV. c. 14, s. 7. 
 ?>tQlIoadley v. M'Laine, lOBing. 
 482, 486.
 
 OF THE ALIENATION OF CHOSES IN POSSESSION. 41 
 
 of 10/. sterling and upwards, notwithstanding the goods 
 may be intended to be delivered at some future time, or 
 mav not at the time of such contract be actually made, 
 procured or provided, or fit or ready for delivery, or 
 some act may be requisite for the making or completing 
 thereof, or rendering the same fit for delivery." 
 
 The above section of the Statute of Frauds has been 
 
 interpreted by a vast number of cases decided on almost 
 
 every one of the phrases it contains (q). The chief dif- What is an ac- 
 
 ficulty has been to determine the exact meaninsr of the ^eptance and 
 ^ ° , ^ actual receijjt 
 
 acceptance of part of the goods and actual receipt of within the stu- 
 
 the same, required on the part of the buyer, and to as- " ^' 
 certain in each particular case whether such acceptance 
 and actual receipt ha^'c taken place or not. The ac- 
 ceptance required appears not to be necessarily such as 
 shall preclude the purchaser from afterwards objecting 
 to the quality of the goods (r), and it may be prior to 
 the receipt (5). Actual receipt seems, according to the 
 great preponderance of authority, to mean receipt of the 
 possession of the goods, and to be merely correlative to 
 delivery of possession on the part of the vendor {t). 
 There must, therefore, be an actual transfer of the 
 article sold, or some part thereof, by the seller, and an 
 actual taking possession of it by the buyer (?<). The 
 possession of a simple bailee is, however, as Ave have 
 seen {y), constructively the possession of the bailor. 
 If therefore the vendor should change his character 
 and become the bailee of the purchaser, there may be a 
 sufhcient actual receipt in law on the part of the piu*- 
 
 (//) See Smith's Mercantile Law, B. 11 Jur., N. S. G22; G Best & 
 
 468 et seq. 5th ed.; 495 et acq. Smith, 431. 
 
 6th ed. (s) C'usack y. Robinson, 1 Best 
 
 (r) Morton v. Tihhetf, 15 Q. & Smith, 299. 
 
 B. 428; Bushell v. Whcclrr, 15 {t) Smith's Mercantile LaM-, 
 
 Q. B. 442; Cxrrie v. Anderson, il'2, n. {g), 5th ed. ; 499, n. (w), 
 
 2 Ellis Si, Ellis, 592, 600. Sec, 6th ed. Sminders v. Topp, 4 Ex. 
 
 however. Hunt v. Ilecht, 8 Exch. Ivcp. 390. 
 
 814; Nicholson v. Bower, 1 Ellis ( u) Baldey v. Varlicr, 2 B. & 
 
 & Ellis, 72; Smith v. Hudson, Q. Cress. 37, 41. 
 
 (t') Ante, p. 27.
 
 42 OF CHOSES IN POSSESSION. 
 
 chaser, altliougli the goods still remain in the possession 
 of the vendor {x). So if any part of the goods be 
 dehvered to an agent of the vendee, or to a carrier 
 named by him, this is a sufficient receipt by the vendee 
 himself (y) ; and if the goods should be in the possession 
 of a warehouseman or wharfinger at the time of sale, 
 the receipt by the purchaser of a delivery order, pro- 
 vided it were coupled with the assent of the bailee, 
 would be a sufficient receipt of the goods within the 
 statute (z). The whai-finger holds the goods as the 
 agent of the vendor, until he has agreed with the pur- 
 chaser to hold for him. Then, and not till then, the 
 wharfinger is the agent or bailee of the pm-chaser, and 
 the possession of such wharfinger is that of the pur- 
 chaser; and then only is there a constructive dehvery 
 to him («). 
 
 The requisi- The requisitions of the statute, it will be observed, 
 
 tions of the • ^1 alternative. Either the buyer must accept 
 
 statute are m n • i 
 
 the alternative, part of the goods sold, and actually receive the same, 
 
 or he must give something in earnest or in part of pay- 
 ment, or some note or memorandimi in wTiting must be 
 signed. The two former alternatives are left as they 
 were before the statute ; but the last is a new requisition 
 which must be observed in the absence of either of the 
 former (b). The effect of the statute, therefore, is to 
 abolish tender and mere Avords as sufficient for a sale, 
 and to substitute for them the more exact evidence of a 
 Memorandum note or memorandum in writing (c). But as the memo- 
 
 (.r) Castle v. Stvorder, Exch. {a) Farina v. Home, 16 M. & 
 
 Chamb. 6 H. & N. 828, reversing W. 119, 123. 
 
 the judgment of the Com-t of Ex- (b) Lee v. Griffin, 1 Best & 
 
 chequer, 5 H. & N. 281. Smith, 272; Wilkinson v. Erans, 
 
 (y) Ban-es v. Peek, 8 T. Eep. Law Rep , 1 C. P. 407. See Van- 
 
 330; Hart v. Bush, 1 E. B. & E. deniergh v. Sj}ooner, Law Rep., 
 
 iOi, 4!)8. See however Norman I Ex. 316. 
 
 V. Phillips, 14 M. & W. 277; (c) Every memorandum, letter. 
 
 Coombs V. Bristol and Exeter or agreement made for or relating 
 
 Ballway Company, 3 H. & N. to the sale of any goods, wares or 
 
 510. merchandize, is exempt from all 
 
 (z) Bentall v. Burn, 3 B. & stamp duty; stat. 55 Geo. III. c. 
 
 Cress. 423; Pearson v. Dan-son, 184, Sched., Part I. tit. Agree- 
 
 1 E. B. & E. 448. See ante, p. 37. ment. 
 
 m writmo
 
 OF THE ALIENATION OF CH08ES IN POSSESSION. 43 
 
 randum may be signed by an agent lawfully authorized, 
 tlie bought or sold notes given by a broker are a suffi- 
 cient memorandum Avithin the meaning of the statute (d). 
 And it is held that the entry of a purchaser's name by 
 an auctioneer's clerk at an auction is also sufficient to 
 satisfy the statute, as the clerk is, for that piu-pose, the 
 authorized agent of the purchaser (e). But one of the 
 contracting parties to a sale cannot be the agent for the 
 other for the purpose of signing a memorandum of the 
 bargain (jf). 
 
 If the agreement is not to be performed within the When the 
 space of one year from the making thereof, then, how- nortTbTper- 
 ever small be the value of the goods, no action can be formed within 
 brought upon it, unless the agreement, or some memo- 
 randum or note thereof, shall be in writing, and signed 
 by the party to be charged therewith, or some other 
 person thereunto by him lawfully authorized. This is 
 another provision of the Statute of Frauds (^), and will 
 be hereafter noticed more particularly. 
 
 Although the property in goods sold passes, as we 
 have seen (A), fi-om the vendor to the vendee, immedi- 
 ately upon the execution of a valid contract for sale, yet 
 the possession of the goods of course remains with the 
 vendor until he deliver them, which he is bound to do 
 when the purchaser is ready to pay the price (i), but not 
 before (k). And so long as the vendor retains actual or Vendor's lien, 
 constructive possession of the goods, he has a lien upon 
 them for so much of the purchase-money as may remain 
 
 (,d) Grove v. AJJalo, 6 B. & (g) 29 Car. II. c. 3, s. 4. 
 
 Cress. 117; Barton v. Crofts, 16 (/i) Ante, p. 38. 
 
 C. B., N. S. 11. (;■) Rmvsony. Johnston,, 1 East, 
 
 (e) Bird t. Boulter, 4 B. & 203. 
 Adol. 443. (Ti) Bloxam\. Sanders, iB&m. 
 
 (/) Farehrother v. Simmons, & Cress. 941. 
 5 B. & Aid. 333.
 
 44 
 
 OF CIIOSES IN POSSESSION. 
 
 unpaid (/). But when the goods are once delivered by 
 the vendor out of his own actual or constructive posses- 
 sion, his Hen is gone ; for lien in law is, as we have 
 seen (»«), merely a right to retain possession, and not to 
 recover it when given up. 
 
 Stoppage in 
 transitu. 
 
 First allowed 
 by Court of 
 Chancery. 
 
 Under certain circumstances, however, the vendor of 
 goods has a right to resume their possession, with which 
 he had previovisly parted imder a contract for sale. This 
 right is called the right of stoppage in transitu; and it 
 occurs Avhen goods are consigned entirely or partly {n) 
 on credit from one person to another, and the consignee 
 becomes bankrupt or insolvent before the goods arrive. 
 In this event the consignor (o) has a right to direct the 
 captain of the ship, or other carrier, to deliver the goods 
 to himself or his agent instead of to the consignee, who 
 has thus become imable to pay for them. The right of 
 stoppage in transitu was first allowed and enforced only 
 by the Com-t of Chancery, which, in the exercise of its 
 equitable jm-isdiction, considered that, under the cfrcum- 
 stances above mentioned, it was very allowable in equity 
 for the consignor to get his goods again into his own 
 hands ( p). But the right was subsequently acknowledged 
 by the courts of law ; and it is now constantly enforced 
 by them. As this right was originally of equitable origin 
 it cannot be expected to depend on strictly legal princi- 
 ples ; and the doctrines of law on this particular subject 
 are in fact unlike its usual doctrines on other matters. 
 Thus it is at variance with the general principles of law 
 that a man should be allowed to transfer to another a 
 right which he has not, or that a second purchaser should 
 
 (Z) Dixon V. Yates, 5 Bam. & 
 Adol. 313; Lachington v. Ather- 
 ton, 7 Man. & G. 360. 
 
 (?/i) Ante, p. 28. 
 
 (ii) Hodgson v. Loy, 7 T. R. 
 440. 
 
 (o) Bird V. Brown, 4 Ex. Rep. 
 786. 
 
 ( j?) Wiseman v. Vandejnitt, 2 
 Vern. 203 ; Snee v. Prescot, 1 
 Atk. 245.
 
 OF THE ALIENATION OF CHOSES IN TOSSESSION. 45 
 
 stand in a better position than Ms vendor (q) ; but the 
 consignee of goods may, by indorsing the bill of lading 
 to a honajide indorsee, defeat the consignor's right to 
 stop in transitu (r). So a delivery of goods into the 
 possession of a carrier appointed by the vendee is, in 
 construction of law, a delivery to the vendee himself, 
 and divests the vendor's lien for the unpaid purchase- 
 money {s) ; but until the transitus is completely ended, 
 or the goods come to the actual possession of the vendee, 
 the vendor's right to stop them in transitu may still be 
 exercised in the event of the bankruptcy or insolvency 
 of the vendee (0, unless indeed such right be defeated, 
 as we have said, by a honajide indorsement of the bill 
 of lading. Thus, although by the sale of the goods the 
 property in them, involving the risk of their loss, passes 
 to the purchaser, and although the possession of them 
 be dehvered to a carrier named by him, still such posses- 
 sion may be resumed by the vendor dm-ing the journey, 
 in the event of the bankruptcy or insolvency of the 
 vendee. As this right is a departure from legal princi- 
 ples on the vendor's behalf, it is allowed only in one of 
 the two cases of bankruptcy or insolvency, by which 
 latter term appears to be here meant a general inability 
 to pay, evidenced by stopping of payment (?«). When 
 possession of goods has been resumed by the vendor 
 under his right of stoppage in transitu, he is restored to 
 
 (jl) Dixon V. Yates, 5 Barn. & 508, 519. See Van Casteel v. 
 
 Adol. 339. Booker, 2 Ex. Rep. 691; Eeine- 
 
 (r) LicJilarro7VY. 3Iason,2T. hey v. Earle, 8 E. & B. 410; 
 
 R. 63; 1 H. Bl. 357; 6 East, 21; Smith v. Hudson, Q. B. 11 Jur., 
 
 1 Smith's Leading Cases, 888; N. S. 622; 6 Best & Smith, 431; 
 
 Jenhyns v. Ushorne, 7 Man. & Serndtson v. Strang, L. C. 16 
 
 Gr. 678, 699. W. R. 1025; L. Rep., 3 Ch. 588. 
 (s) Dawes v. Peck, 8 T. R. 330; (w) See Smith's Merc. Law, 525, 
 
 ante, p. 40; WUmshurst v. Bom- n. (5), 5th ed.; 554, n. 6th ed. 
 
 ker, in error, 7 Man. & Gr. 882. The case of WUmshurst v. Bow- 
 it) Hoist V. Ponmal, 1 Esp. 240; ker, 5 New Gas. 541 ; 7 Scott, 561 ; 
 
 Northey v. Field, 2 Esp. 613; 2 Man. & G. 812, was reversed in 
 
 Jackson V. Nichol, 5 New Cases, error, 7 Man. & Gr. 882.
 
 46 OF CHOSES IN POSSESSION. 
 
 the lien for the unpaid purchase-money which he had 
 before he parted with such possession ; but, according- 
 to the better opinion, the contract for sale is not thereby 
 rescinded {x). 
 
 A recovery in There is one case in which the property in goods 
 
 trover vests passes from One person to another by payment of their 
 
 the property mi _ -■■ ^ l j 
 
 the defendant, value without any actual sale. In any action of trover (?/) 
 
 the plaintiff is entitled to damages equal to the value of 
 the property he has lost, but not fm-ther, unless he has 
 sustained any special damage {z). The defendant there- 
 fore, hasdng paid the amoimt of the damages, is entitled 
 to retain the goods in respect of which the action is 
 brought; and the property in them vests in him ac- 
 cordingly («). 
 
 The alienation of personal chattels is prohibited to be 
 made by certain persons and for certain objects. And 
 Alien. first "with respect to persons. An alieyi or foreigner is 
 
 under great restrictions as to the acquirement of real 
 estate (Z») ; but with respect to personal chattels he stands 
 i/»j'>r a. y^. on the same footing as a natural-bom subject; for by 
 the act to amend the laws relating to aliens (c), it is 
 enacted (c?) that from and after the passing of this act, 
 any alien, being the subject of a friendly state, shall and 
 may take and hold by purchase, gift, bequest, represen- 
 tation or otherwise, every species of personal property, 
 
 {x) Bloxamv. Sande7-s,4:BiiYn. Johnson, C. P. 18 Jur. 775; 15 
 
 & Cress. 949; 1 Smith's Leading C. B. 145. 
 
 Cases, 432; Seliotsmans v. Lan- (b) See Principles of the Law 
 
 casMre and Torkshire Railway of Real Property, 56, 2nd ed.^ 58, 
 
 Company, Law Rep., 2 Ch. 332, 3rd & 4th eds.; 61, 5th & 6th eds.;- 
 
 340; 36 L. J., N. S. 361, 366. 62, 7th & 8th eds. 
 
 (y) See ante, p. 24. {c) Stat. 7 & 8 Vict. c. 66, ex- 
 
 (r) Bodley v. Reynolds, 8 Q. plained by stat. 10 & 11 Vict. c. 
 
 B. 779. 83. 
 
 (a) Cooper v. Shepherd, 3 C. (r7) Sect. 4. 
 
 B. 266, 272. See BucMand v.
 
 OF THE ALIENATION OF CHOSES IN POSSESSION. 47 
 
 except chattels real, as fully and effectually to all intents 
 and purposes, and •v\itli the same rights, remedies, ex- 
 emptions, priyileges and capacities, as if he were a na- 
 tural-born subject of the united kingdom. The gift of Infant, idiot 
 an infant or person under the age of twenty-one years ^° ^ ' • 
 is voidable (e), and that of an idiot or lunatic appears to 
 be absolutely void (_/) : in tliis respect the law of personal 
 chattels is now the same as that of real estate (^). Mar- Mamed 
 ried women also are incapable of making any disposition 
 of personal chattels, except such as may be settled in 
 equity in trust for their own separate use ; for marriage 
 is an absolute gift in law of all the wife's choses in pos- 
 session to her husband, as well those she is possessed of 
 at the time of the marriage, as those which come to her 
 during her coverture (h). Persons convicted of treason Convicts. 
 or felony forfeit on such conviction the whole of their 
 goods and chattels to the crown : and nothing but a bojici /*-'*t # •^^ -^ 
 /ide alienation for a valuable consideration, made pre-» ' X* ' <-»- <•!•• 
 \aously to conviction, can avert such forfeiture (2). ,> ^ ^"^^ ^' .. 
 When a felony is not capital, the punishment endured r / 'X-*.' •» IV" 
 has the effect of a pardon (A); but the restoration to 
 civil rights does not take effect till the determination of * ' *^' ' "^ 
 the period of punishment. All personal property, there- ^^ f ' "^ 
 fore, which accrues to a felon during his transportation ' ' / "^ "^^ ' 
 is forfeited to the crown (Z); but a mere contingent*''^"''' ^^i^C'ijt. 
 interest Avill not be forfeited, if it do not vest until the 
 expiration of the period of banishment (??i). 
 
 (e) Bac. Abr. tit. Infancy and (I) 3 Rep. 82 b; 4 Bla. Com. 
 
 Age (I), 3. 387, 388; Perkins v. Bradley, 1 
 
 (/) Ibid. tit. Idiots and Lnna- Hare, 219; Cliomne v. Baylis, 31 
 
 tics (r). Beav. 351. 
 
 (^) See Principles of the Law (/<-) Stat. 9 Geo. IV. c. 32, s. 3. 
 
 of Real Property, 57, 2nd ed.; (/) Roberts y. TFci/ee?', 1 Russ. 
 
 59, 3rd & 4th eds.; 62, 5th cd.; & M. 752. 
 
 63, 6th ed.; 64, 7th & 8th eds. (w) Stokes v. Holden, 1 Keen, 
 
 (Ji) Co. Litt. 300 a; 1 Rop. Hnsb. 145; Thomjjson's trusts, 22 Beav. 
 
 and Wife, 169. See j^ost, the 506. 
 chapter on Husband and Wife.
 
 48 
 
 Gift for de- 
 frauding cre- 
 ditors. 
 
 Mortgage 
 of goods. 
 
 OF CHOSES IN POSSESSION. 
 
 "VYItli regard to the objects for wlilcli the alienation 
 of chattels personal is prohibited, gifts to charitable 
 purposes are not restricted, neither are corporations 
 excepted objects, as in the case of landed property (w). 
 But by a statute of the reign of Ehzabeth (o), the gift 
 or alienation of any lands, tenements, hereditaments, 
 goods and chattels, made for the purpose of delaying, 
 hindering or defrauding creditors, is rendered void as 
 against them, unless made upon good, which here means 
 valuable, consideration, and honajide to any person not 
 having at the time of such gift any notice of such fi-aud. 
 There are also more stringent provisions to the same 
 efiect contained in the bankrupt laws, to which reference 
 will be hereafter made in the chapter on bankmptcy. 
 The fraudident pm-pose intended by the statute of 
 Elizabeth can of com'se only be judged of by circum- 
 stances. Thus it has been held that if the owner of 
 goods make an absolute assignment of them by deed to 
 one of his creditors, and yet remain in the possession of 
 the goods, such remaining in possession is a badge of 
 fraud, which renders the assignment void, by virtue of 
 the statute, as against the other creditors (jg). But if 
 the assignment be made to secm-e the payment of money 
 at a fritm-e day, with a proviso that the debtor shall 
 remain in possession of the goods imtil he shall make 
 defaidt in payment, the possession of the debtor, being 
 then consistent with the terms of the deed, is not re- 
 garded in modern times as rendering the transaction 
 fr-audulent within the meaning of the statute {q). Such 
 a transaction is in fact a mortgage of the goods, analo- 
 gous to a mortgage of lands (r). The property in the 
 
 1 
 
 {n) See Principles of the Law 
 of Keal Property, 58, 2nd ed.; 60, 
 61, 3rd & 4th eds.; 64, 65, 5th ed. ; 
 69, 6th ed.; 72, 7th & 8th eds. 
 
 (o) Stat. 13 Eliz. c. 5. 
 
 (ji») Tmyne's case, 3 Kep. 80 b; 
 1 Smith's Leading Cases, 1 ; Ed- 
 
 wards V. Harhen, 2 T. Rep. 587. 
 
 {q) Edwards v. Harhen, 2 T. 
 Rep. 587 ; Martindale v. Booth, 
 3 Bam. & Adol. 498; Reed v. 
 Wilmot, 7 Bing. 577. 
 
 (?•) See Principles of the Law 
 of Real Property, 332, 2nd ed.;
 
 OF THE ALIENATION OF CHOSES IN POSSESSION. 49 
 
 goods passes at law bj the deed to the mortgagee (.5), 
 whilst the possession of them rightly remains ^^dth the 
 mortgagor. The mortgagee therefore cannot maintain 
 an action of trover for the goods against a stranger, 
 until default has been made bj the mortgagor m pay- 
 ment of the money secured {t). In this respect a mort- 
 gage of goods differs from a mere pledge, in which the 
 property in the goods remains with the pledgor, and 
 the pledgee, although he may have power to sell them, 
 obtains possession only (^^), the right to retain which 
 enables him to maintain an action of trover (i'). The 
 chief disadvantage in a mortgage of goods is, that, as 
 the goods continue in the possession of the mortgagor 
 as reputed owner, they will, by virtue of provisions in 
 one of the banki-upt acts, become liable, in the event of 
 his bankruptcy, to be sold for the benefit of his creditors 
 generally (x). By recent acts of parliament (y) every Eegistration 
 bill of sale of personal chattels, whereby the grantee ^^ ^^^^^ °^ ^^^^* 
 shall have power to take possession of any effects therein 
 comprised, or a true copy thereof, must be registered in 
 the office of the Court of Queen's Bench Avithin twenty- 
 one days ; otherwise such bill of sale is rendered void, 
 so far as regards any of the goods in the apparent pos- 
 
 849, 4th ed. ; 360, 5th ed.; 382, See 2 Davidson's Precedents, 609, 
 6th ed.; 389, 7th ed.; 407, 8th ed. 2nd ed.; B,v parte Sjnirrow, 2 De 
 
 («) Gale V. Burnell, 7 Q. B. G., M. & G. 907. 
 
 850. (m) Ante, p. 27. 
 
 (t) Bradley v. Cojfley, 1 C. B. («) Leffg v. Bvans, 6 Mee. & 
 
 685; Brierleij Y. Xendall, 17 Q. Wels. 36. 
 
 B. 937. If the mortgagor should (x) Ryall v. Rolle, 1 Atk. 165, 
 
 retain possession after default in 170; S. C. nom. Ryall v. Roivles, 
 
 payment at the time specified, it 1 Ves. sen. 348 ; stat. 6 Geo. IV. 
 
 may possibly be doubted whether c. 16, s. 72, repealed and re-enacted 
 
 the security would not then be by stat. 12 & 13 Vict. c. 106, 
 
 void as against creditoi's under the s. 125; Freshney v. Carrick, 1 H. 
 
 statute of Elizabeth, for, by the & IST. 653; Spachman v. Miller, 
 
 terms of the deed, the mortgagor 12 C. B., N. S. 659; Hornsby v. 
 
 is only to enjoy possession nnt'il Miller, 1 Ell. & Ell. 192. 
 
 default. But the better opinion (y) Stats. 17 & 18 Vict. c. 36; 
 
 is that the deed will still be g-od. 29 & 30 Vict. c. 96. 
 
 W.P.P. E
 
 50 
 
 OF CHOSES IN POSSESSION". 
 
 session of the grantor, as against tlie assignees of the 
 grantor, in case of his baulvruptcy, or under any assign- 
 ment for the benefit of his creditors, and as against all 
 sheriff's officers and other persons seizing the effects in 
 execution of any process of any court of law or equity 
 issued against the goods of the grantor, and also as 
 against any subsequent duly registered bill of sale {z). 
 Such bills of sale before the act were vahd as against 
 an execution creditor, though void as against assignees 
 luider the bankruptcy of the grantor, and the act does 
 not appear to give to such bills of sale as are filed under 
 it any greater vahdity than they had before (a). But 
 if the bill of sale be not filed, the goods may now be 
 taken in execution, which they could not have been 
 Fixtures. before the act. The act does not apply to fixtures, 
 
 when they pass by a conveyance of the premises to 
 which they are affixed (Z»). And as seizure of the goods 
 of a trader under an execution for an amount exceeding 
 fifty pounds has now been made an act of bankruptcy (c), 
 a bill of sale of the goods of a trader, whether filed or 
 Eegistration to not, now affords a very unsatisfactory secui-ity. The 
 emyTe'^ Bills of Sale Act, 1866 (d), now pro\-ides for the re- 
 years, newal every five years of the registration of biUs of sale, 
 by an affida\dt to be filed in a given form that the se- 
 curity is stin subsisting, without which the prior regis- 
 tration will cease to be of any effect. 
 
 Involuntary 
 alienation for 
 payment of 
 debts. 
 
 Choses in possession have long been liable to invo- 
 luntary alienation for the payment of the debts of their 
 
 (z) Richards y. James, L. Eep., 
 2 Q. B. 283. 
 
 (a) Stansfeld \. Cuiitt, 2 De 
 G. & Jones, 222; Badger v. Shaiv, 
 Q. B., 8 W. R. 210; 6 Jur., N. S. 
 377 ; 2 Ell. & Ell. 472. 
 
 (Jj) Mather v. Fraser, 2 Kay 
 & J. 536 ; Waterfall v. Penni- 
 stone, 6 E. & B. 876; Boyd v. 
 
 Shorrock, V. C. W., L. Rep., 
 5 Eq. 72. The bill of sale must 
 be duly stamped before it can be 
 registered. Stat. 24 & 25 Vict. 
 c. 91, s. 34. 
 
 (c) Stat. 24 & 25 Vict. c. 134, 
 s. 73. 
 
 {d) Stat. 29 & 30 Vict. c. 90.
 
 OF THE ALIENATION OF CHOSES IN POSSESSION. 51 
 
 OA^^le^. On the decease of any person, liis personal 
 property generally has always been liable, in the first 
 place, to the payment of his debts of every kind. And 
 if a creditor take proceedings against his debtor in the 
 debtor's lifetime, a sale of his goods and chattels may 
 be prociu'ed by means of a wiit oi fieri facias [fi.fa.) Writ of fieri 
 issued in execution of iho, judgment of the court. This '^'^^'^^* 
 wi'it is of very ancient date, and is usually said to be 
 given by the common law ; though some suppose that 
 its name arose from the wording of the statute of 
 Edward I. (e), by wliich the wiit of eler/it was pro- 
 ■vdded(/). The wiit directs the sheriff to cause the 
 debt to be realized out of the goods and chattels of the 
 debtor, quod fieri facias de bonis et catallis, &c. : and a 
 sale of the goods is made by the sheriff accordingly. 
 This sale is now directed to be made by pviblic auction 
 in all cases where the debt or damage recovered exceeds 
 fifty pomids, unless the Court of Bankruptcy shall 
 othermse direct (^). And the seizure of the goods of 
 a trader is now aiv act of bankruptcy whenever the debt 
 or damages recovered exceed fifly pounds (A). Goods 
 however are not, as lands formerly were, affected by the 
 mere entry of 2i judgment of a court of law against the 
 owner. The debtor was always allowed to alienate his 
 goods until the wi-it of execution was issued ; although, 
 by a fiction of law, all judicial proceedings, writs of exe- 
 cution included, formerly related back to the first day 
 of the term to wliich they belonged (z). Goods, there- 
 fore, which had been sold afler the first day of a term, 
 
 (e) Stat. 13 Edw. I. c. 18, called s. 74. This section was perhaps 
 
 the Statute of Westminster the intended to apply to traders only, 
 
 Second. See Principles of the but its wording is general. 
 
 Lawof Real Property, G3, 2nd ed.; (/*) Sect. 73. Woodhouse v. 
 
 G6, 3rd and 4th eds.; 71, 5th ed.; Murray, L. Rep., 2 Q. B. 634. 
 
 75, 6th ed.; 78, 7th and 8th eds. (*) Com. Dig. tit. Execution 
 
 (/) Bac. Abr. tit. Execution (D 2); Anon., 2 Vent. 218. See 
 
 (C). 2 Sugd. Vend. & Pur. 9th ed. 198. 
 
 {g) Stat. 24 & 25 Vict. c. 134, 
 
 E 2
 
 62 
 
 OF CHOSES IN POSSESSION. 
 
 Statute of 
 Frauds. 
 
 New enact- 
 ment. 
 
 mlglit yet practically have been seized under a writ of 
 /i. fa. relating back to that day, but subsequently issued. 
 To remedy this e\il, it was enacted by one of the sec- 
 tions of the Statute of Frauds (j), that no wi-it ofjieri 
 facias or other writ of execution shall bind the property 
 of the goods against which it is sued, but from the time 
 that such writ shall be delivered to the sheriff, under- 
 sheriff, or coroner, to be executed; and the officer is 
 required, upon receipt of the T\T:it, to indorse on it 
 (without fee) the day of the month and year on which 
 he received it. Goods and chattels might therefore be 
 safely alienated, although judgment might exist against 
 the owner, provided a ^a-it of execution were not actually 
 in the hands of the sheriff. And a recent statvite now 
 provides that no writ of execution shall prejudice the 
 title to goods acquired by any person bondjide, and for 
 a valuable consideration, before the actual seizure thereof 
 by virtue of such ^sT^-it ; pro\aded such person had not, 
 at the time when he acquired such title, notice that such 
 ^vrit, or any other writ under Avhich the goods might be 
 seized, had been delivered to the officer and remained 
 vmexecuted in his hands {k). It has been decided that 
 an alienation to secure or satisfy another creditor is not 
 voidrntliin the above-mentioned statute of the 13 Eliza- 
 beth (/), although made with the intention of defeating 
 an expected execution of the judgment creditor (m). 
 
 Levari facias. Besides the sale of goods under the writ of fieri facias, 
 there might also be a wTit of levari facias, now disused, 
 by which the sheriff leaded the corn and other present 
 profit which grew on the lands, together with the rents 
 then due, and the cattle thereon (n). And by the writ 
 
 Elegit. of elegit, the goods of the debtor are delivered to his 
 
 ij) Stat. 29 Car. II. c. 3, s. 10. 
 
 {]{) Stat. 19 & 20 Vict. c. 97, 
 s. 1. See Hohsoii v. Thelluson, 
 L. Rep., 2 Q. B. G42, qu.? 
 
 (J.) Stat. 13 Eliz. c. .-). 
 
 (/«) Wood V. Dixie, 7 Q. B. 
 892 ; Hale v. Saloon Omnibus 
 Comijany, 4 Drew. 492. 
 
 {n) 2 Wins. Saunders, G8 a, n. 
 
 0).
 
 OF THE ALIENATION OF CHOSES IN POSSESSION. 53 
 
 creditor at an appraised value, together with possession 
 
 of his lands (o). It has however been enacted, that the 
 
 wearing apparel and bedding of any judgment debtor 
 
 or his family, and the tools and implements of his trade 
 
 (not exceeding in the whole the value of five pounds), 
 
 shall not be liable to seizure under any execution or 
 
 order of any court against his goods and chattels (p). 
 
 And the Common Law Procediu-e Act, 1860, now The court may 
 
 provides, that where goods or chattels have been seized ^^^^^ ^ ^^'*^- 
 
 in execution by a sheriff or other officer under process 
 
 of the superior com-ts of common law, and some third 
 
 person claims to be entitled under a bill of sale or other- 
 
 Avise to such goods or chattels by way of security for a 
 
 debt, the com-t or a judge may order a sale of the whole 
 
 or part thereof, upon such terms as to payment of the 
 
 whole or part of the secured debt or otherwise as they 
 
 or he shall think fit, and may direct the ajjplication of 
 
 the proceeds of such sale in such manner and upon such 
 
 terms as to such court or judge may seem just {q). 
 
 Glioses in possession are also liable to involuntary Bankruptcy, 
 alienation on the bankruptcy of their owner. In this Troperty now 
 event, all such property as may belong to or be vested trustee. 
 in the bankrupt at the commencement of the bankruptcy, 
 or may be acquired by or devolve on him during its 
 continuance, except property held by him on trust for 
 any other person, and except the tools (if any) of his 
 trade and the necessary Avearing apparel and bedding of 
 himself, his wife and children, to a value, inclusive of 
 tools and apparel and bedding, of twenty pounds in the ^ 
 
 whole, vest fu'st in the registrar of the Court of Bank- 
 ruptcy, and then in the trustee appointed by the credi- 
 tors under the Bankruptcy Act, 1869 (r). Under the Under prc- 
 prcAaous bankruptcy act the property of the bankrupt '^^""^ '^'^V^d''! 
 
 (o) Pullen V. Purbecke, 1 Ld. s. 8. assignees. 
 
 Raym. 34G. See the present forms {q) Stat. 23 & 24 Vict. c. 126, 
 
 of this writ and of the writ of fi. s. 13. 
 
 fa., 9 Adol. & Ell. 986 et scq, 5 (r) Stat. 32 & 33 Vict. c. 71, 
 
 New Cases, 366 et seq. ss. 17, 83, paragraph (6). See 
 
 (/>) Stat. 8 & 9 Vict. c. 127, post, the chaj^ter on Bankruptcy.
 
 54 
 
 OF CHOSES IN POSSESSION. 
 
 Goods in the 
 possession, 
 oi-der or dis- 
 position of a 
 bankrupt. 
 
 TJankruptfy 
 Act, 1869. 
 
 vested first in the official assignee, and then in the cre- 
 ditors' assignees (s). And in order to prevent traders 
 from obtaining false credit from the possession of pro- 
 perty Avhich Avas not their own, it was provided bj the 
 former bankruptcy acts (t), that if any bankrupt at 
 the time he became bankrupt shoidd by the consent 
 and permission of the true owner thereof have in his 
 possessio7i, order, or disposition, any goods or chattels, 
 ■v^hereof he was reputed owner, or whereof he had 
 taken upon him the sale, alteration or disposition as 
 owner, the Court of Bankruptcy should have power to 
 order the same to be sold and disposed of for the benefit 
 of the creditors under the bankruptcy. But it was held 
 that, until an order for the sale of such goods had been 
 made by the coiu-t, no property in them vested in the 
 assignees {ii) ; and the order was required to specify the 
 particular goods which were to be sold {x). The above 
 provision was apparently extended by the Bankruptcy 
 Act, 1851 (y), to all persons whether traders or not. 
 And now by the Bankruptcy Act, 18G9 {z), the property 
 of the bankrupt divisible amongst his creditors comprises 
 all goods and chattels being at the commencement of 
 the bankruptcy in the possession, order or disposition of 
 the bankrupt, being a trader, by the consent and per- 
 mission of tlire true owner, of which goods and chattels 
 the bankrupt is reputed owner, or of which he has 
 taken upon himself the sale or disposition as owner ; 
 j^ro^aded that things in action, other than debts due to 
 him in the coiu-se of his trade or business, shall not be 
 deemed goods and chattels within the meaning of tliis 
 clause. 
 
 (s) Stat. 24 & 25 Vict. c. 134, 
 ss. 108, 117. 
 
 (f) Stats. 6 Geo. IV. c. 16, s. 72; 
 1 & 2 Will. IV. c. 56, s. 7; 5 & 6 
 Vict. c. 122, s. 59 et sf^'., I'epealed 
 and consolidated Ijy stat. 12 & 13 
 Vict. c. 106, s. 125; Hamilton v. 
 Bell, 10 Ex. Eep. 545 ; 18 Jnr.' 
 1109; BeyiwhU v. Hall, 4 H. & 
 N. 519 ; Holdenieas v. Ranh'ui, 2 
 De G., F. & J. 258. 
 
 (?<) Hcsloj? V. Bakcr,Q Ex. Eep, 
 
 740; 15 Jur. 684. ^cc Ex parte 
 Hesloj), 1 De G., M. & G. 477 ; 
 Ex jmrte Wood, 4 De G., M. & 
 G. 861; Ex parte Yonng, 4 De 
 G., M. & G. 884. 
 
 {x) Qnarterma'me v. Bittlr- 
 ston, 13 C. B. l;;:!; EieUing v. 
 Lee, 18 C. B., N. S. 499. 
 
 Cy) Stat. 24 & 25 Vict. c. 134, 
 s. 232. 
 
 (r) Stat. 32 & 33 Vict. c. 71, 
 s. 15, par. (5;.
 
 ( 55 ) 
 
 CHAPTER IV. 
 
 OF SHIPS. 
 
 There is one important class of clioses in possession 
 wliicli tlie policy of the law has rendered subject to 
 peculiar rules, namely, ships and vessels. The whole 
 of the acts relating to Merchant Shipping were repealed 
 by the Merchant Shipping Repeal Act, 1854 (a), and 
 the law on this subject is now contained in the Mer- 
 chant Shipping Act, 1854 (6), as amended by the Mer- 
 chant Shipping Act Amendment Acts, 1855 (c) and 
 1862 (d). Every British ship, with a few unimportant British sMp3. 
 exceptions, is required to be registered (e), and no ship 
 is to be deemed a British ship unless she belongs wholly 
 to natm-al born British subjects, or to persons made 
 denizens or duly natiu'alized. But no natural born 
 subject who has taken the oath of allegiance to any 
 foreign state can be owner, unless he has subsequently 
 taken the oath of allegiance to her Majesty, and con- 
 tinues during his ownership resident within her Ma- 
 jesty's dominions, or, if not so resident, member of a 
 British factory, or partner in a house actually carrying 
 on business mthin her Majesty's dominions. And every 
 denizen and naturalized person must continue during 
 his ownership resident within her Majesty's dominions, 
 or, if not so resident, must be a member of a British 
 factory, or partner in such a house of business as above 
 mentioned. But bodies corporate established under 
 
 (a) Stat. 17 & 18 Vict. c. 120. (e) Stat. 17 & 18 Vict. c. 104, 
 
 (h) Stat. 17 & 18 Vict. c. lOi. s. 19. As to colonial shijiping, 
 
 (c) Stat, 18 & 19 Vict. c. 91. see stat. 31 & 32 Vict. c. 129, 
 Id) Stat. 25 & 26 Vict. c. G3.
 
 56 OF CHOSfiS IN POSSESSION. 
 
 and subject to the laws of the United Kingdom or any 
 British possession, and having their principal place of 
 business therein, may be owners (/). The registration 
 is made by the collector, comptroller or other pi-incipal 
 officer of customs for the time being at any port or 
 other place in the United Kingdom approved by the 
 commissioners of customs for the registry of ships, 
 and by other officers in the colonies and possessions 
 abroad {g). 
 
 Property in The property in every ship is divided into sixty-four 
 
 divkied intr sl^^i^es ; and, subject to the provisions of the act vAi\\ 
 
 sixty-four respect to joint owners or owners by transmission, not 
 
 shares. ^^^^ ^^^^^ thirty-tAvo indi\dduals shall be entitled to be 
 
 registered at the same time as owners of any one ship ; 
 
 but this rule is not to affect the beneficial title of any 
 
 number of persons, or of any company, represented by 
 
 or claiming under any registered owner or joint owner. 
 
 And no person is entitled to be registered as owner of 
 
 any fractional part of a share in a ship ; but any number 
 
 of persons not exceeding five may be registered as joint 
 
 owners of a ship, or of a share or shares therein. And 
 
 joint owners are to be considered as constituting one 
 
 person only, as regards the foregoing ride relating to the 
 
 number of persons entitled to be registered as owners, 
 
 and shall not be entitled to dispose in severalty of any 
 
 interest in any ship, or in any share or shares therein, in 
 
 respect of which they are registered. A body corporate 
 
 may be registered as owner by its corporate name (Ji). 
 
 No trusts en- No notice of any trust, express, implied, or constructive, 
 
 tered on the ^^^^i be entered in the register book or receivable by 
 register. _ _ . . , , 
 
 the registrar; and, subject to any rights and powers 
 
 appearing by the register book to be vested in any- 
 other part}^, the registered o^vner of any ship, or share 
 
 (/) Stat. 17 & 18 Vict. c. 104, C^) Sect. 30. 
 
 s. 18. (/O ^ect. 37.
 
 OF SHIPS. 57 
 
 therein, shall have poAver absolutely to dispose of such 
 ship or share in the manner prescribed by the act, and 
 to give effectual receipts for any money paid or advanced 
 by way of consideration (2). But the intention of the But equities 
 act is, that, without prejudice to the provisions contained £^^0(1'' ^^' 
 in the act for preventing notice of ti'usts fi-om being 
 entered on the register, and without prejudice to the 
 powers of disposition and of giving receipts, conferred 
 by the act on registered owners and mortgagees, and 
 "without prejudice to the provisions contained in the act 
 relating to the exclusion of unqualified persons from the 
 ownership of British ships, equities may be enforced 
 against owners and mortgagees of ships in respect of 
 their interest therein, in the same manner as equities 
 may be enforced against them in respect of any other 
 personal property (k). Upon the completion of the Certificate of 
 registry of any ship, the registrar gives a certificate of ^^^^^ ^^ ' 
 registry in the form prescribed by the act. And when- 
 ever any change takes place in the registered owner- 
 ship of any ship, then if such change occurs when the 
 ship is at her port of registry, a memorandum of such 
 change is forthwith indorsed by the registrar on the 
 certificate of registry. But if the ship is absent from 
 her port of registry, then, upon her first return to such 
 port, the master must deliver the certificate of registry 
 to the registrar, and he is to indorse thereon a like 
 memorandum of the change. Or if she previously 
 an'ives at any port where there is a British registrar, 
 such registrar shall, upon being advised by the registrar 
 of her port of registry of the change having taken place, 
 indorse a like memorandum thereof on the certificate of 
 registry, and may for that purpose require the certificate 
 to be delivered to him, so that the ship be not thereby 
 
 (0 Sect. 43. Jur., K S. 912; 13 C. B., N. S. 
 
 (A) Stat. 25 & 26 Vict. c. 03, 668 ; Sta2?leto7i v. Haymcn, 2 
 s. 3. See Ward v. Bech, C. P., 9 Hurlst. & Colt. 918.
 
 58 OF CHOSES IN POSSESSION. 
 
 detained (Z). Provision is also made for the granting of 
 a new certificate in the place of any which may be 
 delivered up, or may be mislaid, lost or destroyed {7n). 
 The certificate of registry is to be used only for tlie 
 navigation of the ship, and is kept in the custody of the 
 master, and is not subject to detention by reason of any 
 title, hen, charge, or interest whatsoever which any 
 0T\Tier, mortgagee or other person may have or claim to 
 have in the ship described in such certificate (w). 
 
 Transfer of A registered ship or any share therein, when disposed 
 
 ships. ^£ ^Q persons quahfied to be owners of British ships, 
 
 must be transferred by bill of sale, and such bill of sale 
 must contain such a description of the ship as is con- 
 tained in the sm-veyor's certificate, or such other descrip- 
 tion as may be sufficient to identify the ship to the satis- 
 faction of the registrar, and must be according to the form 
 set out in the schedule to the act, or as near thereto as 
 circumstances permit, and must be executed by the trans- 
 feror in the presence of and be attested by one or more 
 witnesses (o). And in case any bill of sale, mortgage or 
 other instrument for the disposal or transfer of any ship 
 or any share or interest therein, is made in any form or 
 contains any particulars other than the form and par- 
 ticulars prescribed and approved for the pui-pose by or 
 in pm-suance of the Merchant Shipping Act, 1854, no 
 registrar shall be required to record the same without 
 the express direction of the commissioners of her 
 Majesty's customs {p). And no individual can be regis- 
 tered as transferee of a ship, or of any share therein, 
 until he has made a declaration in a prescribed form, 
 stating his qualification to be registered as owner of a 
 share in a British ship. And if a body coi-porate be 
 
 (l) Stat. 17 & 18 Vict. c. 104, (o) Sect. 55. 
 
 s. 45. (2>) Stat. 18 & 19 Vict. c. 91, 
 
 (m) Sects. 47, 48, 53. s. 11. 
 In) Sect. 50.
 
 OF SHIPS. 59 
 
 transferee, the secretary or otlier diilj appointed public 
 officer of sucli body corporate must make a similar 
 declaration (5'). The bUl of sale, together with the 
 required declaration, must then be produced to the 
 registrar of the port at which the ship is registered, 
 who thereupon enters in the register the name of the 
 transferee as owner of the ship or share comprised in 
 the bill of sale, and also indorses on the bill of sale the 
 fact of such entry having been made, with the date 
 and hour thereof. All bills of sale are entered in the 
 register book in the order of then' production to the 
 registrar (r). 
 
 All mortgages of any ship, or share therein, are to Mortgage of 
 be in a form prescribed by the act, or as near thereto ^ ^^^' 
 as circumstances permit ; and on the production of 
 such instrument, the registrar of the port at which the 
 ship is registered is to record the same in the register 
 book (5). Every such mortgage is to be recorded by 
 the registrar in the order of time in which the same is 
 produced to him for that purpose, and the registrar 
 shall by memorandmn luider Ms hand notify on the 
 instrument of mortgage that the same has been re- 
 corded by him, stating the day and houi- of such re- 
 cord (f). If there is more than one mortgage regis- 
 tered, the mortgagees are entitled to priority one over 
 the other according to the date at which each instru- 
 ment is recorded in the register book, and not according 
 to the date of each instrument itself, notwithstanding 
 any express, implied or constructive notice (u). No 
 mortgagee is to be deemed by reason of liis mortgage 
 to be the owner of a ship, or of any share therein, nor 
 is the mortgagor to be deemed to have ceased to be 
 O'UTier, except in so far as may be necessary for making 
 
 iq) Stat. 17 & 18 Vict, c. 104, (s) Sect. 66. 
 
 s. 56. It) Sect. G7. 
 
 (?•) Sect. 57. 00 Sect. 69.
 
 GO OF CHOSES IN rOSSESSIOX. 
 
 such sliip or share available as a security for the mort- 
 gage debt (x). Every registered mortgagee is to have 
 power absolutely to dispose of the ship or share in 
 respect of which he is registered, and to give effectual 
 receipts for the purchase-money ; but if more persons 
 than one are registered as mortgagees of the same ship 
 or share, no subsequent mortgagee shall, except under 
 the order of some court capable of taking cognizance of 
 such matters, sell such ship or share without the con- 
 cm-rence of every prior mortgagee (y). Mortgages of 
 ships are not to be affected by the bankraptcy of the 
 mortgagor (z) ; and a form is provided for the transfer 
 of mortgages (a). And whenever any registered mort- 
 gage shall have been discharged, the registrar, on pro- 
 duction of the mortgage deed with a receipt for the 
 mortgage money indorsed thereon, didy signed and 
 attested, makes an entry of the discharge of such mort- 
 gage in the register book ; and upon such entry being 
 made, the estate, if any, wliich passed to the mortgagee, 
 vests in the same persons in whom the same would 
 (ha^-ing regard to intervening acts and circumstances, 
 if any) have vested if no such mortgage had ever been 
 made {b). 
 
 Pro\dsion is made enabling any registered owner to 
 
 empower any other person or persons to sell any entire 
 
 ship, or to mortgage any ship or any share therein, at 
 
 any place out of the country or possession in which the 
 
 Certificates of port of registry of the ship is situate. For this purpose 
 
 sale and mort- ^yJiat are caUed certificates of sale or mortgage are 
 gage. 
 
 (x) Sect. 70. See UiirojJean, v. Pojje, 37 L. J., N. S., Exch. 
 
 Co. V. Ro7/al Mail Co., 4 K. & J. 137; Law Rep., 3 Exch. 269. 
 
 676; Dickinson v. Kitchen, 8 E. (y) Stat. 17 & 18 Vict. c. 104, 
 
 & B. 789; Marriott v. Tlie Anclior s. 71. 
 
 Reversionary Comjmny, Limited, {z) Sect. 72. 
 
 2 Giff. 457; Collins v. Lamport, («) Sect. 73. 
 
 L. C. 11 Jur., N. S. 1; 13 W. R. (A) Sect. 68. 
 283; 34 L. J., Chan. 196; JRusden
 
 OF SHIPS. 01 
 
 granted by tlie registrar on certain conditions men- 
 tioned in the act, and in forms set out in the schedule 
 thereto (c). The above are the principal provisions of 
 the act so far as relates to the conveyance of ships. 
 For more particular information the reader must be re- 
 ferred to the acts themselves, which are of great length. 
 It may, however, be added, that all instruments used in Exempt from 
 carrying into effect that pai-t of the act which relates to ^*^"^P '^"*^- 
 British ships, their OAvnership and registry, are exempt 
 from stamp duty {d). 
 
 The Admiralty Court Act, 1861 {e), confers on the jurisdiction of 
 
 High Court of Admiralty iiu-isdiction to decide all ^}^^ ^^»^ 
 » . ^ , '' '' Court of 
 
 questions arising between the co-owners, or any of Admiralty. 
 them, touching the OAvnership, possession, employment 
 and earnings of any ship registered in any port in Eng- 
 land or Wales, or any share thereof; and it empowers 
 that court to settle all accounts outstanding and un- 
 settled between the parties in relation thereto, and to 
 direct the ship or any share thereof to be sold, and to 
 make such order in the premises as to the court shall 
 seem Rt{f). The same act also gives the Court of 
 Admiralty jurisdiction over any claim in respect of any 
 mortgage duly registered according to the provisions of 
 the Merchant Shipping Act, 1854 {(/). 
 
 Sometimes a vessel is hired for a given voyage. The Charter-party. 
 instrument by which such hiring is effected is termed a 
 charter-party (A). Whether the legal possession of the 
 ship passes to the hirer (or charterer, as he is called) 
 depends on the stipulations contained in the charter- 
 party, such as whether the charterer or the owner is to 
 
 (c) Sects. 76 ct saq. Sec Crr (g) Sect. 11. See also sects. 
 
 V. Dickinson, 1 John. 1. 10, 12 and 13. * 
 
 (rZ) Stat. 17 & IS Vict. c. 10-1, (/i)Thestampdutyonacharter- 
 
 s. 9. party is now sixpence. Stat. 28 
 
 (e) Stat. 24 Vict. c. 10. & 20 Vict. c. 90, s. 7. 
 
 (/ ) Sect. 8.
 
 62 
 
 OF CHOSES IN POSSESSION. 
 
 General ship. 
 Bill of ladino;. 
 
 Freight. 
 
 provide the seamen, and keep the vessel hi order (i). 
 Where a merchant ship is open to the conveyance of 
 goods generally, it is called s^genei-al ship. The receipt 
 for the goods given by the master is called the hill of 
 lading : it states that the goods are to be deUvered to 
 the consignee or his assigns ; and by the custom of mer- 
 chants, the bill of lading, when indorsed by the con- 
 signee with his name, becomes a negociable instriunent, 
 the delivery of which passes the property in the goods (A) ; 
 but it was formerly held that the right to sue upon the 
 contract contained in the bill of lading to carry and 
 dehver the goods did not pass by the indorsement (/). 
 It is, however, now enacted, that every consignee of 
 goods named in a bill of lading, and every indorsee of 
 a bill of lading, to whom the property in the goods 
 therein mentioned shall pass upon or by reason of such 
 consio-nment or indorsement, shall have transferred to 
 and vested in him all rights of suit, and be subject to 
 the same liabilities in respect of such goods, as if the 
 contract contained in the bill of lading had been made 
 ■with liimself (/«). The money payable for the hire of a 
 ship, or for the carriage of goods in it, is the freight 
 wliich, whether accrued or accruing, is assignable in the 
 same manner as any other ordinary chose in action (^^). 
 The delivery of goods imported from foreign parts, and 
 the lien of the ship owner for their freight, are now 
 regulated by the provisions of the Merchant Shipping 
 Act Amendment Act, 1862 (o). 
 
 (i) Bean v. Hof/ff, 10 Bing. 345; 
 Fenton v. City of London Steam 
 Packet Comjiany, 8 Ad. & Ell. 
 835. 
 
 (Jt) CaUnell v. Ball, 1 T. Rep. 
 205, 216. 
 
 (Z) Tlwmjfson v. Bominy, \i 
 Mee. & Wels. 403. 
 
 (w) Stat. 18 & 19 Vict. c. Ill, 
 s. 1. 
 
 («) Bouylas v. Russell, 4 Sim. 
 524 ; 1 M. & K. 488 ; Leslie v. 
 Guthrie, 1 New Cases, 697; Lind- 
 say V. Gihhs, 22 Beav. 522. 
 
 (o) Stat, 25 & 26 Vict. c. 63, 
 ss. 66—78.
 
 ( 63 ) 
 
 PART 11. 
 
 OP C HOSES IN ACTION. 
 
 CHAPTER L 
 
 OF ACTIONS EX DELICTO. 
 
 In addition to moveable goods, or clioses in possession, 
 we have observed («), that there existed also in ancient 
 times choses in action, or the libei-ty of proceeding in 
 the courts of law either to recover pecuniary damages 
 for the infliction of a wrong or the nonperformance of a 
 contract, or else to procure the payment of money due. 
 The actions to be thus brought were, of course, not real, 
 but purely personal actions. Real actions were brought 
 for the recovery of land or real property ; but the above- 
 mentioned actions were against persons only, and the 
 object was merely to obtain from them money, being 
 the only recompense then generally available. In this 
 respect, however, the law has recently undergone some 
 change : for the Common Law Procedure Act, 1854, 
 now enables the plaintitF in any action, except replevin 
 and ejectment, in any of the supeiior courts, to claim a 
 writ of mandamus commanding the defendant to fulfil Writ of man- 
 any duty in the fidfilment of which the plaintiff is per- *^ '^"^"^* 
 sonaUy interested, and by the nonperformance of which 
 he may sustain damage {b). And it also provides, that 
 in aU cases of breach of contract or other injury, where 
 the party injured is entitled to maintain and has brought 
 
 an action, he may claim a writ of injunction against the Writ of in- 
 junction. 
 
 (a) Ante, p. 4. ss. 68, 69; Norris v. Irish Land 
 
 ih) Stat. 17 & 18 Vict. c. 125, Companij, 8 E. & B. 512.
 
 G4 
 
 OF CIIOSES IN ACTION. 
 
 repetition or continuance of such breacli of contract or 
 other injury, or the committal of any breach of contract 
 or injury of a like kind, arising out of the same contract 
 Costs. or relating to the same property or right (c); and the 
 
 Common Law Procedure Act, 1860, requires that in 
 the above cases the costs of the A\-i-it of mandamus or 
 injunction shall be paid by the defendant, unless other- 
 ■\vise ordered by the court or a judge (d). But the 
 rights thus given do not appear to have materially in- 
 terfered with the wider and more ancient jurisdiction of 
 the Court of Chancery in issuing an injunction to re- 
 strain the wrong-doer from continuing his wrong, or in 
 decreeing the specific ■performance of a contract. By a 
 recent statute the Court of Chancery is empowered to 
 award pecuniary damages, either in addition to or in 
 substitution for an injunction or specific performance (e). 
 In many cases, however, money alone is a sufficient 
 recompense ; and then the right to bring an action at 
 law, in other words a legal chose in action, constitutes 
 a valuable kind of personal property. 
 
 Actions ex de- 
 licto and ex 
 contractu. 
 
 The infliction of a wi-ong, and the nonperformance 
 ^of a contract, are evidently the two grand sources from 
 ■which personal actions ought to proceed. If one man 
 commits a A\Tong against another, justice e^ddently re- 
 quires that he should give liim satisfaction ; and if one 
 man enters into a contract with another, he certainly 
 ought to keep it, or make reparation for its breach ; or 
 if the conti'act be to pay a sum of money, the money 
 ought to be duly paid. Personal actions are accordingly 
 di\'ided by the law of England into two great classes, 
 actions ex delicto, and actions ex cojitractu (^f). The 
 
 (c) Stat. 17 & 18 Vict. c. 125, s. 2; Zeivers v. Earl of Shaftcs- 
 
 ss. 79—82. hnrij, V. C. W., 2 Law Rep., Eq. 
 
 (rf) Stat. 23 & 24 Vict. c. 126, 270. 
 
 s. 32. (/) 3Black. Com. 117. 
 
 {e) Stat. 21 & 22 Vict. c. 27,
 
 OF ACTIONS i:X DKLICKJ. 6o 
 
 former arises in respect of a Avrong couiniitted, called 
 in law French a tort ; the latter, in respect of a contract 
 made for the performance of some action, which thus 
 hecomes a duti/, or for the payment of some money, 
 Avhich thus becomes a debt. Let us consider, in the 
 present chapter, the right of action which occurs c.v 
 delicto, or in respect of a toi^f. 
 
 The ancient law, in its dread of litigation, confined 
 
 the remedy In' action for a tort or wrong committed, to 
 
 the joint lives of the injurer and the injured. If either Maxim actio 
 
 party died, the right of action Avas at an end, the maxim ]'.';'Sf'nalis " o. 
 \ J ^ <^ ritur cum pei- 
 
 l)eing actio persoiiah's moritur cum persona (f/). In sona. 
 
 this rule, actions ex delicto only Avere included ; of which, 
 
 however, there seem to have been more than any other 
 
 in early times. But, by an early statute {h), the same Exceptions on 
 
 action was given to the executor for any injury done jj^'jjj^ "ujurcd. 
 
 to the personal estate of the deceased in his lifetime, 
 
 Avhereby it became less beneficial to the executor, as the 
 
 deceased himself might have In-ought in his lifetime. 
 
 And by a modern statute (i), an action is given to the 
 
 executors or administrators of any person deceased for 
 
 any injury to the real estate of such person, committed 
 
 Avithin six calendar months before his death, for Avhich 
 
 an action might have been maintained l)y him ; so that 
 
 the action be l)rought Avithin one year after the death of 
 
 such person ; and the damages, Avhen recovered, are to 
 
 be part of the personal estate of such person. And )>y 
 
 a later statute (h), it is provided, that Avhenever the 
 
 death of a person shall be caused by such AATongful act, 
 
 neglect or default, as Avould (if death had not ensued) 
 
 (ff) 1 Wms. Sannd. 2\C> a, n. (/) Stat. 3 & -t Will. IV. c. 42, 
 
 (1). ^'. L'. 
 
 (70 Stat. 4 Edw. III. c. 7, dc (l-) Stat. '.) & 10 Vict. c. 93, 
 
 loHisasportailsinvifdtestntoris, amended by stat. 27 & 28 Vict, 
 
 extended to executors of executors c 95. See Pym v. The Great 
 
 bv Stat. 1." YAw. III. c. o. Northern. Balln-ay f'o.ni>nny, 2 
 
 AV.IM', 
 
 Best & Smith, 750.
 
 66 OF CII<)SE>^ IN ACTION. 
 
 have entitled the party injured to maintain an action 
 and recover damages in respect thereof, the wrong-doer 
 shall ])e liable to an action for damages, notwithstanding 
 the death of the person injured, and although the death 
 shall have been caused under such circumstances as 
 amount in law to felony. Under this act, one action 
 only can lie for the same subject-matter of complaint ; 
 and such action must be commenced within twelve 
 calendar months after the death of the deceased (Z), in 
 the name of his executor or administrator (7;i), and must 
 he for the benefit of the ^vife, husband, parents, grand- 
 father and grandmother, stepfather and stepmother, 
 children, grandchildren and stepchildren of the deceased, 
 in stich shares as the jury shall direct (;?). And if there 
 shall he no executor or administrator of the person de- 
 ceased, or, there being such executor or administrator, 
 no action shall have been brought in his name within 
 six calendar months from the death of the deceased, 
 then such action may be brought l)y and in the name or 
 names of all or any of the persons (if more than one) 
 for whose benefit such action would have l)een, if it had 
 been brought by or in the name of such executor or 
 administrator («). Previously to this statute, a man 
 who had been maimed by another could recover com- 
 pensation for the injury ; but if he died of his wound, 
 liis family could obtain no recompense for the loss of a 
 
 (Z) Stat. 9 & 10 Vict. c. OH, mother, and graiulfather and 
 
 .«. 3, jiiandmother, and stepfather and 
 
 (w) Sect. 2. .stepmother; and the -word "child" 
 
 ()i) Sects. 2, a. This act is a .shall include son and daughter, 
 
 specimen of the common ahsur- and grandson and granddaughter, 
 
 dity of modei-n acts of parliament, and .stepson and stepdaughter, 
 
 in introducing an interpretation Now the words " parent " and 
 
 clause in one section just to vaiy " child " occur only [in the one 
 
 the meaning of another. It enacts place just mentioned besides this 
 
 in one section that the action shall intcrjiretation clause. Why not 
 
 Lc for the benefit of the wife, hus- therefore say at once what is really 
 
 band, parent and child; and in intended? 
 
 another section that the word (o) Stat. 27 it 28 "\'ict. ?. ',)', 
 
 '■■ parent "^shallinclude father and .«. ].
 
 OF ACTIOXS iCX DKIJCTO. (17 
 
 life Avliich might haAe Leen tlieir only (Icjjcndence. .Vnd 
 even now, wlien the death of a person is not caused, no 
 action can be brought by his executor or adn^inistrator 
 for any injvuy which aftected him personally, if it did 
 not touch his property. Tlius it has been held, that an 
 executor or administrator cannot have an action for a 
 breach of promise of marriage with the deceased, where 
 no special damage can l)e stated to lia^e acciiied to lier 
 personal estate {]>). 
 
 Not only tlie death of tlie injui-ed party, but also that Death of the 
 of the Avrong-docr, formerly put an end to every action '*^'^o°g-'^«^''' 
 ■\vliicli arose from a tort or wrong ; and this was the case 
 up to a very recent period ; although if the executor or 
 administrator had profited by the wrong done, the injured 
 party was able to reco^•er from him the money or goods 
 lie had thus gained {q). But by a modern statute (r) an 
 action may now be maintained against the executors or 
 administrators of any person deceased, for any wrong- 
 committed by him Avithin six calendar months before his 
 death against another person, in respect of his property 
 real or personal ; so as such action be brought within six 
 calendar months after such executors or administrators 
 sliall have taken upon themselves the administration of 
 the estate and effects of such person. And the damages 
 to be recovered in such action are to be payable in 
 the like order of administration as the simple contract 
 debts of such person. The remedy afforded by this 
 statute does not preclude such action as might haA'e 
 previously been brought against the executor or admi- 
 nistrator (.?). 
 
 There is one peculiar action founded on tort, to which. Action for di- 
 fl-om the nature of the case, the deceased himself cannot ^^^" ^ ^*^^^' 
 
 (i^) Chamljcrlaln v. WiJIiam- (r) Stat. 3 & -i Will. IV. c. 42, 
 
 son, 2 Mail. & Sel. 408, 415. s. 2. 
 
 iq) PowrJl V, lices, 7 Ad. & (.«) Pon-dl v. Ilecs, ul)i .'^npra. 
 El. 420. 
 
 F 2
 
 OF CHOSK^ IX ACTIOX. 
 
 be liable, but wliicli is maintaiuable by the common law 
 against his executors or administrators. This is the ac- 
 tion for dilapidations of the houses or buildings on a be- 
 nefice ; and it is brought by the new incumbent, whether 
 of a rectory, \dcarage or perpetual curacy (t), against 
 the executors or administrators of his predecessor. This 
 action cannot be said to be an exception to the ride actio 
 personalis moritnr cum persona, for the deceased is not 
 liable during his lifetime ; the plaintiff must be the suc- 
 ceeding incumbent ; and an action cannot be said to die 
 which never had or could have any existence («). How- 
 ever, in the case of resignation or exchange, the preceding 
 incumbent is himself liable for dilapidations {v). In es- 
 timating the damages to be recovered in this action, the 
 rule is as folloAvs : — The incumbent is bound to maintain 
 the parsonage, farm buildings, and chancel in good 
 and substantial repair, restoring and rebuilding when 
 necessary, according to the original form, Avithout addi- 
 tion or modern improvement ; and he is not bound to 
 supply or maintain anything in the natiu'e of ornament 
 to wliich painting (uidess necessary to preserve exposed 
 timbers from decay) and white wasliing and papering 
 belong (a:). And no damages can be recovered on 
 account of neglect to cultivate the glebe lands in a 
 husbandlike manner (?/). If the incumbent commit any 
 act of waste, such as could not be committed by any 
 ordinary tenant for life (z), he may l>e restrained by an 
 injunction out of the Court of Chancery (a) ; but it has 
 recently been decided that his executors will not be 
 liable in an action for dilapidations for waste committed 
 
 (_t) Mason v. Lamhevt, 12 Q. B. (y ) Bird v. Ilnli)li, 4 Bam. & 
 
 795. Adol. 820. 
 
 {u)Sollcrs\.Lan-rcnce,Vi\\\Q%, (z) See Principles of the Law 
 
 421. of Real Property, p. 23, 4tli, 5th, 
 
 ((•) Dorcnes v. Craiff, 9 Mee. & Cth, 7th & 8th cds. 
 
 Wels. 166. (a) The Duhe of Marlborough 
 
 (,v) Wise V. MHcalf, 10 Barn. v. St. John, ", De Gex & Sni. 174. 
 & Cress. 299.
 
 OF ACTIONS EX DELICTO. 09 
 
 hy him in Jigging gravel in pits -whicli -were opened by 
 liis predecessor (i). Whether they would be liable if 
 the incumbent himself opened the pits appears doubt- 
 ful (c). Claims for dilapidations have this peculiarity, 
 that they are not to be satisfied by the executor until 
 after payment of all the debts of the testator, including 
 those merely by simple contract (d). 
 
 (h) Ross v. AdcoeJ,-, L. Kqi., o (d) Bryan v. Clay, 1 E/ ^ 
 
 C. P. 655. Black. 38. But as to equitable 
 
 (<:•) See Huntley v. JRitssell, 13 assets, see Bissctt v. Burgess, 2',y 
 
 Q. B. 572; Ross v. Adcoeli, ubi Bear. 278. 
 supra.
 
 70 
 
 OF CHOSES IX ACTIOX. 
 
 CHAPTER II. 
 
 OF CONTRACTS. 
 
 Personal actions, Ave have observed (a), may be brougli' 
 not only on accoimt of tlie infliction of a wrong, but alsc 
 to recover pecvmiary damages for tlie non^Dcrformance ci 
 a contract, or to procure the payment of money due, ii. 
 tlie payment of a specific sum be the subject of the cout 
 tract. As tlie payment of money is the law's ultimate 
 remedy in personal actions, an action for a given debD 
 will be effectually satisfied by a judgment that the plain- 
 Action of debt, tiff' do recover his debt ; and this is the judgment ac- 
 cordingly given in an action of debt, which lies for the 
 recovery of a specific sum due from the defendant to the 
 Actions which plaintiff" (Z»). But when no sj^ecific sum is claimed, the 
 mageV"^'^^' action can only, in tlie law plmase, sound in damages ; 
 and the amount of the damages to be recovered must, 
 until recently, ha^e been assessed by a jury according 
 to the injury sustained (c). But the Common Law Pro- 
 cedure Act, 1852, noAv proA'ides, that, in actions in which 
 it shall appear to the court or a judge that the amount 
 of damages sought to be recovered by the plaintiff' is 
 substantially a matter of calcidation, the court or a judge 
 may direct that the amount for which final judgment is 
 to be signed shall be ascertained by one of the masters 
 of the court (d) ; and fm-ther, that, in all actions where 
 the 2)laintiff' recovers a sum of money, the amount to 
 which he is entitled may be awarded to him by the judg- 
 ment generally, without any distinction being therein 
 made as to whether such sum is recovered by way of a 
 
 New enact- 
 ment. 
 
 {a) Ante, p. 4. 
 
 (6) Stephen on I'lcadinj. 
 
 (r) Ihhl. ].. 117. 
 
 lit;. 
 
 {d) Stat. 15 & 16 Vict. c. 7(3, 
 
 y4.
 
 OF COXTIIACTS. 7i 
 
 debt or damages (e). It is, liowever, competent to the 
 parties to a contract to agree between themselves, that, Liquidated 
 in the event of a breacli by eithej party, a given sum <^^"^^g*^^- 
 sliall be recovered from him by the other as stipulated 
 or liquidated damages ; and in this case the whole of the 
 sum thus agreed on may, on a breach of the contract, be 
 recovered from the defaulter (^f). The sum so agreed 
 on is not properly called a penalty ; for, as we shall sec 
 hereafter when spealdng of bonds, the la-\v regard^s a 
 ])enalty as a seciuity only for the damage actually sus- 
 tained ; although the use of the word penalty Avill not 
 })revent the whole siuii from being recovered, if this be 
 clearly the intention (r/). But where a sum of money is 
 stipulated to be reco^'ered as liqiddated damages in case 
 of the breach of an agreement to do several acts, and 
 such sum will, in case of breaches of the agreement, be 
 in some instances too large and in others too small a 
 compensation for the injury occasioned, such sum will 
 not be allowed to be recovered in case of any breach, 
 Ijut damages only, proportioned to the actual injury 
 which the breach has occasioned (A). In such a case, 
 if the parties Avish to bind themselves to pay liquidated 
 damages, they must contract in clear and express terms, 
 that for the breach of each and every stipulation con- 
 tained in the agreement a sum certain is to be paid ; 
 and in that case, although the stipidations may be of 
 various degrees of importance, the parties Avill be held 
 to their contract (/). 
 
 {e) Stat. 15 & IG Vict. c. 7(5, B. 71G; Sparrow v. Paris, 7 H. 
 
 s. 95. & N. 59-t. 
 
 (/) Reilhj V. Jones, 1 Bing. {h) Kemhle\. Farren, QTMng. 
 
 302; S. C. 8 Moore, 2U; Sugd. 141; S. C. 3 Moo. & Pay. 425; 
 
 Vend. & Pur. 221, 11th ed. ; Davics \. Penton,QBiiY.8i,CxQS9. 
 
 Leigliton v. Wales, 2 Mce. & 210, 223; S. C. 9 Dowl. & Rj-. 
 
 Wels. 545; Price v. Green, 16 M. 3G9 ; Horner v. Tllntoff, 9 Mee. & 
 
 & W. 34G, 354; Oalsworthy v. \Yc\^.(3lS,(i^l; RcindelY. Schell, 
 
 Strutt, 1 Excli. Kep. G59; Athyns 4 Scott, N. S. 97; Bctts v. Burch, 
 
 V. Khinicr, 4 Exch. Rep. 77G. 4 II. & N. 50G. 
 
 (y) Su'udcr V. FcrfjusoH, 7 C. (() Per Parke, B., 9 Mee. &
 
 OF CHOSES IN ACTION. 
 
 Definition of 
 Li contract. 
 
 Implied pro- 
 mise. 
 
 Assumpsit. 
 
 So much then for the legal remedies fur a breach of 
 contract. Let us iioaa^ inquire more particularly of Avhat 
 a contract itself consists. A contract then, as cleiined 
 hy Blackstone (Jt), is " an agreement upon sufficient 
 consideration to do or not to do a particular thing." 
 This agreement may be either express or implied ; for 
 the law always implies a promise to do that which a 
 l^erson is legally liable to perform, and the action of 
 assumpsit on promises is constantly maintained for 
 damages for the breach of such an implied contract (Z). 
 Thus a jDerson who takes the goods of a tradesman is 
 liable in assumpsit for their market value : for, as he 
 took the goods, the law will imply for him a promise to 
 pay for them. So a person who employs another to 
 work for him impliedly contracts to give him reasonable 
 remuneration ; and a man who borrows money impliedly 
 promises to repay it. And in all these cases the plain- 
 tiff, until recently, plainly stated that the defendant 
 promised the plaintiff to pay him the money on request, 
 and that the defendant had disregarded his promise, 
 and had not paid the same monies or any pail thereof. 
 But the Common Law Procedm-e Act, 1852, now 
 requires that all statements of this kind shall be 
 omitted (m). 
 
 Express contracts are either ))y parol, or word of 
 mouth, Avhich are called simple contracts^ or by deed 
 under seal, Avhich are called special contracts (n); al- 
 though simple contracts may, and often must at the 
 Parol or simple present day, be evidenced by writing. Let us consider 
 first mere parol or simple contracts. A parol conti-act 
 then is an agreement hj word of mouth, upon sufficient 
 
 contract. 
 
 "Wels. 6S0. Se.eAtki/)isx. Kin nicr, 
 \ Exch. Rep. 776 ; Mercer v. 
 [fciug, 1 E. 13. & E. o(J3. 
 
 (Ti) 2Bla. Cum. 4-t2. 
 
 (T) Strj'hen "n Plomlinqr, 1>. 
 
 [m) Stat. 15 & 16 Vict. c. 7t>, 
 
 40. 
 
 {n) liann \. JFii>jhcs, 7 T. IJ.
 
 OF CON'J'RACTS. 
 
 consideration, to do or not to do a particular thing. 
 According to the law of England a consideration is an Consideration 
 essential ingredient in every contract : a promise with- accessary, 
 out a consideration is regarded as nudum pactum, and 
 no recompense can be recovered for its breach (o), nei- 
 ther will its performance be enforced in a court of 
 equity (;:>). Thus if a man promise to give me 100/. 
 without any consideration, he is not bound to perform 
 his promise, and I am without remedy if he should 
 break his word. 80 even if I should have done him Consiikration 
 any service, his subsequent promise to pay me money, 
 or otherwise benefit me, for a consideration already 
 executed on my part, will not be binding, unless I 
 should have done him the service at his request, in 
 which case the promise Avill relate back to the re- • 
 quest («7), or unless a request can be implied from a 
 subsequent allowance of the service, or from other cir- 
 cumstances (r); and if the service rendered be of such 
 a nature that the law will imply a promise in respect of 
 it, any subsequent express ])romise different from that 
 which the law will imply will be void as nudum inic- 
 tum {s). And if the service, or any part of it, has been illegal consi- 
 illegal from being contrary to the common law or to ^^^^g^^^" ^^^' 
 any statute, such illegal consideration will not support 
 a promise. Thus a promise made in consideration that 
 the other party had published a libel at the request of 
 the person making the promise, and had also at the like 
 request incm-red certain costs, was held void on account 
 
 (o) Doctor & Student, dial. 2, Ell. 438, 451; S. C. 3 Per. & Dav. 
 
 c. 24; 2 Bla. Com. 445. 282; 1 Wms. Saund. 2G4, n. (1). 
 
 (^) 1 Fonb. Eq. 335 ct seq.; (?■) The maxim is oiJinis rati- 
 
 Llpple V. Corlcs, 11 Hare, 183. JiaJAtio retrotraliiturct mandato 
 
 (q) Hunt Y. Bate, Dyer, 272 a; (equiparatitr: 1 Wms Saund. 
 
 Lampleigh t. Brathn-ait, Hob. 264 b, n. (e). 
 
 105; 1 Smith's Leading Cases, 67; (s) HojjM/is r. Logan, 5 Mee. 
 
 Powle V. Gunn, 4 N. C. 445, 448 ; & Wels. 241, 247. 
 EndivoofJ V. Kiuynn, 1] Ad. &
 
 Gooil. 
 
 74- OF CH08ES IX ACTIOX. 
 
 of the illegality of i)art of tlic coiir^ideratioii, naniely, 
 ])ubllslung the libel, Avhicli vitiated the -whole {t). And 
 in like manner the circumstance of a woman's having 
 cohabited with a man is not of itself a valid considera- 
 tion to su])port a promise made by him to pay her a 
 sum of money (x). 
 
 Considerations Considerations are divided in law into two classes, 
 
 good or valu- ^^^^ (sometimes called meritorious) and valuable. A 
 able. J \ 111 
 
 good consideration is that of blood, or the natural love 
 
 and affection \\hich a person has to his children, or any 
 Valuui.le'. of his relatives (r). A valuable consideration maybe 
 
 either pecuniary, naniely, the payment of money ; or 
 the gift or conveyance of anything valuable ; or it may 
 be the consideration of the man-iage of the party him- 
 self or of anv relative (?r); or the compromise of a bona 
 fide claim (^'); or any act of one party from which the 
 other, or any stranger at his request, express or implied, 
 derives any ad^-antage ; or any labour, detriment, in- 
 convenience or risk sustained by the one party, if such 
 laboTir be performed, or such detriment, inconvenience 
 or risk be suffered by the one party at the request, 
 express or implied, of the other, although such other 
 A good t'oubi- mav himself derive no actual benefit (y). A good con- 
 SuVsup-' sitleration is not of itself sufficient to support a promise, 
 port a promise, anv more than the moral obligation which arises from 
 a man's passing his word ; neither will the tAvo together 
 make a binding contract ; thus a promise by a father to 
 
 (f) Shackell v. Rosier, 2 Biug. 2G3; Fraser v. TkomjJson, 1 Giff. 
 
 N. C. 634, 64-t. 49, 65. 
 
 (?/) Biiuilngton v. Wallis, 4 (a:) Z«cy's case, 4 De Gex, il. 
 
 B. & Aid. 650, 052. See how- & G. 356; Cooli v. Wright, 1 Best 
 
 ever Gibson v. DicJt'te, 3 Man. & & Smith, 559. 
 Sel. 463; Kecnan v. JIandley, 2 (y) Sel\v}-n's Xisi Prius, tit. As- 
 
 De Gex, Jones and Smith, 283. siimpsit, 46; 1 Wms. Saund. 211 d, 
 
 (0 2 Black. Com. 297, 444. n. (2); 2 AVms. Saund. 137 li, 
 
 (?i') Canqnoii v. Cotton, 17 Vc^. n. (c).
 
 OF COXTKACTS. 75 
 
 inako ii gift to \ni< cliikl will not be enforced against 
 liim (z). The consideration of natnral love and affection 
 is indeed good for so little in law, that it is not easy to 
 see why it shonld be called ixgood consideration; for in 
 law it is considered as not good against creditors within 
 the statute 13 Elizabeth («), in which the A'ery phrase 
 f/ood consideration is used ; it is not good to support a 
 contract ; and a gift for such consideration is regarded as 
 simply voluntary {b). The only reason why such a con- 
 sideration shoidd be called ^oo<^^ appears to be, that in 
 early times, previously to the passing of the Statute of 
 Uses (c), the Court of Chanceiy enforced a covenant 
 to stand seised of lands to the use of any person of the 
 blood of the covenantor, on account of the goodness of 
 the consideration ; whence it has lia])pened that, since 
 that statute, the legal estate (being by that statute an- 
 nexed to the use {d)) will pass to a relative under a 
 covenant to stand seised to his use (e). But the rules 
 that anciently governed the Court of Chancery do not 
 now^ regulate its proceedings (f) ; although modern 
 ecjuity Avill still interfere in favour of a wife or child in 
 gome cases in which it will not interpose on behalf of 
 strangers {(j). 
 
 A valuable consideration is, therefore, in all cases Valuable con- 
 necessaiy to form a valid contract. It has indeed been ^i^^cration 
 
 (i) Jeffcnj y. Jvffevy, 1 Craig cd.; 143, Otli cd.; 147, 7tli cd.; 153, 
 
 & Ph. 138; Dillon v. Cojjpin, 4 8tli ed. 
 
 My.8iCi:6i7;IIollo7rai/v.IIcad- (e) JJ/rZ. p. 159, 2nd ed.; I(j4, 
 
 *«/7;o«, 8 Sim. 324; Meek v. A'et- 3rd ed.; 1G6, 4th ed.; 173, 5th 
 
 tlcivcll, 1 Hare, 464; 1 Phil. 342. ed.; 181, Gth ed.; 185, 7th ed.; 
 
 See however Bills v. Ximmo, 194, 8th ed. 
 
 Lloyd & Goold, 333. (/) Ihid. p. 131, 2nd ed.; 135, 
 
 (a) Tinjne's case, 3 Rep. 80 h; 3rd & 4th eds.; 141, 5th ed.; 148, 
 
 ante, p. 48. Gth ed.; 151, 7th ed.; 157, 8th ed. 
 
 {h) 2 Black. Com. 297. (^) Ibid. p. 239, 2nd ed.; 246, 
 
 00 27 Hen. VIII. c. 10. 3rd ed. ; 248, 4th cd. ; 258, 5th 
 
 {d) Principles of the Law oi' cd.; 270, Gth ed.; 276, 7th ed.; 288, 
 
 Keal Property, 126 ct seq., 2nd Sth cd. 
 
 cd.; 131, 3rd & 4th eds.; 136, 5th 
 
 contract.
 
 76 
 
 OF (;ilO.>ES IN ACTION. 
 
 ExiUTSs pro- 
 jiiisc foimded 
 oil moral ol)li- 
 gatioii insulii- 
 cicnt. 
 
 Debt barred 
 by bankruptcy 
 
 Debt barred 
 by the Statute 
 of Limitations. 
 
 tlioiio;]it that an express promise, founded on a moral 
 obligation is sufficient for this purpose (A). This how- 
 ever appears to be a mistake. An express promise can 
 give no original right of action, if the obligation on 
 -which it is founded could never have been itself en- 
 forced (/). But in some cases a valuable consideration, 
 which might have formed a contract by means of an 
 implied promise, had its operation not been suspended 
 ]>y some positive rule of law, may be revived and made 
 available by a subsequent express promise. Thus a 
 debt barred by the debtor's having become banki-u})t 
 and obtained liis certificate, might formerly have been 
 enforced against liim, if, after his bankruptcy, lie had 
 expressly promised to pay it (J) ; but such a promise 
 was required, by the modern bankrupt acts (A), to be 
 made in Avriting signed by the bankrupt, or by some 
 person thereto lan^fiilly authorized Ijy him in writing ; 
 and the Bankrupt Lavv Consolidation Act, 1849, ren- 
 dered all such ]-)romises void (Z) ; and a similar provision 
 is contained in the Bankruptcy Act, 1861 (m). So a 
 simple contract debt, A'vliicli would otherwise liave been 
 barred by the Statute of Limitations (n), from liaving 
 been incm-red upAvards of six } ears, may be revived by 
 a subsequent promise to pay, or even by an unconditional 
 
 (//.) Lce\.Miiijijcr\(hjc, o Taunt. 
 36. This case may now be con- 
 sidered as virtually overruled by 
 subsequent authorities mentioned 
 in the next note. See however 
 Dawson v. Kearton, 3 Sma. & 
 Giff. 190, qu. ? 
 
 (i) Note to Wennall v. Adney, 
 3 Bos. & Pull. 2.52 ; Littlcfidd v. 
 Shefl, 2 Barn. & Adol. 811 ; Meyer 
 V. Han-orth, 8 Adol. & Ellis, 467; 
 S. C. 3 Nev. & Per. 462; Monh- 
 man v. Shepherdsoti, 11 Adol. & 
 Ell. 411, 415; S. C. 3 Per. & 
 Dav. 182; Jennings \ . Brown, iKi' 
 Purko, B., Mec. 1*1' Wr]<. .501; 
 
 East wood v. Kcnyon, 11 Adol. & 
 Ell. 447; S. C. 3 Per. & D. 276; 
 2 Wms. Sauiid. 137 f, n. (e); 
 JJcaiimont v. lieeve, 8 Q. B. 483. 
 
 (j) Traeman v. Fenton, Cowp. 
 544; KirlqjatrlcU v. Tattersall, 
 13 Mee. & Wcls. 766. 
 
 {k) 6 Geo. IV. c. 16, s. 131; 
 5 & 6 Vict. c. 122, s. 43. 
 
 (Z) Stat. 12 & 13 Vict. c. 106, 
 s. 204; Kidson v. Turner, 3 H. & 
 N. 581. 
 
 (wO Stat. 24 & 25 Vict. c. 131, 
 .s. 164. 
 
 (w) Stat. 21 .Tnr. J. c. J 6, s. 3,.
 
 OF CO^TKACTS. 77 
 
 acknowledgment of the debt (o) ; but by modern statutes 
 such promise or acknowledgment must be made or con- 
 tained by or in some writing, to be signed by the party 
 chargeable thereby, or by his agent (p). And in like Debt incuncd 
 manner a debt incurred or contract made by a person '^ming infancy. 
 during infancy and voidable on that account, may be 
 confirmed by an express promise or ratification made 
 when of full age (</) ; although such a promise or 
 ratification must now, by one of the statutes just men- 
 tioned (r), be made by some Avriting signed by the party 
 to be charged therewith. 
 
 By the ancient conunon law, every legal instrument 
 
 in writing was a deed sealed and delivered {s) ; and in 
 
 accordance with this circumstance, contracts are, as we 
 
 have seen (/"), now divided in law into two kinds only, 
 
 namely, parol (that is verbal) or simple contracts, and 
 
 special contracts made l)y deed. But as the art of 
 
 writing became general, many parol contracts were, 
 
 for greater certainty, put into writing, though not 
 
 made by deed. And by some statutes of modern times, Contracts 
 
 writing is required to most simple contracts respectine* "'^"•^^ ^}'^ , 
 
 r-'i 1 required to be 
 
 matters of importance. Ihese statutes we shall now in writing. 
 
 proceed to notice, premising that in all cases where 
 
 writing is by any statute made necessary to a contract, 
 
 the contract is still a parol one, though evidenced by 
 
 the writing (?/.) ; but ^hen a contract is made by deed, 
 
 (o) Bac. Abr. tit. Limitations of Age (I) 8; Williams v. Moor, 11 
 
 Actions (E); Prance v. Sympson, Mee. & Wels. 256, 263; Harris v. 
 
 1 Kay, 678; Sidwell v. Mason, 2 Wall, 1 Ex. Rep. 122. 
 
 H. & N. 306, 310; Holmes v. (r) Stat. 9 Geo. IV. c. U, s. 5. 
 
 Maoh-ell, 3 C. B., N. S. 78'J; (,«) See Principles of the Law of 
 
 Cornforth v. Smithard, 5 H. & Real Property, 118, 2nd ed.; 123, 
 
 M. 13; Francis v. HnKlesley, 1 3rd & 4th eds.; 128, 5th ed.; 134, 
 
 E. & E. 1052. 6th ed.; 137, 7th ed.; 144, 8th ed. 
 
 (;;) Stat. 9 Geo. IV. c. 14, s.l, {f) Ante,^. 72. 
 
 called Lord Tcntcrdcn's Act; 19 (?/) Sugd. Vend, and Par. 115, 
 
 & 20 Vict. c. 97, s. 13. 13th ed. 
 
 (</) Bac. Abr. tit. Infancy and •
 
 78 '^F CIIOSES IX ACTTOX. 
 
 Statute of the deed Itself is tlie contract {x). The first and most 
 Frauds, s. -i. important statute then, by Avhich writing is required to 
 many agreements, is the Statute of Frauds {y), which 
 enacts in its fourth section that no action shall be 
 brought whereby to charge any executor or admi- 
 nistrator upon any special promise to answer damages 
 out of his oAvn estate, or Avhereby to charge the defen- 
 dant upon any special promise to answer for the debt, 
 default or miscarriage of another person ; or to charge 
 any person upon any agreement made upon considera- 
 tion of marriage ; or upon any contract or sale of lands, 
 tenements or hereditaments, or any interest in or con- 
 cerning them ; or upon any agreement that is not to be 
 performed A^ithin the space of one year from the making 
 thereof; unless the agreement upon which such action 
 shall be brought, or some memorandum or note thereof, 
 shall be in Avriting, and signed by the party to be 
 charged theremth, or some other person thereimto by 
 him lawMly authorized. This enactment, it ^\\\[ be 
 observed, does not give to writing any validity which it 
 did not possess before. A Avritten promise made since 
 this statute, without any consideration, is quite as much 
 nudum pactum as it woidd have been before (z). The 
 statute merely adds a fiirther requisite to the validity of 
 certain contracts, namely, that they shall, besides being- 
 good in other respects, be put into writing, otherwise no 
 action shall be maintained upon them {n). 
 
 A great numl)er of cases lia^e been decided upon tlie 
 above section of this celebrated statute. One of the 
 
 (.X') Dyer, 305 a ; Byron v. ter thereof is of the value of hi., 
 
 Byron, Cro. Eliz. 472; 1 Wms. or upwards, arc, with some excep- 
 
 Saund. 27-i a, n. (3). tions, liable to a stamp duty of 
 
 (y) 29 Car. II. c. 3. Gr7., with a further progressive 
 
 (;:) See Williams on Executors, duty of the same auiount for every 
 
 pt. i, bk. 2, ch. 2, sect. 2; 1 Wms. entire quantity of 1080 words be- 
 
 Saund. 211, n. (2). yond the first 1080; stat. 23 Vict. 
 
 (rt') Agreements, where the mat- c. 15.
 
 or iniscarnasrc. 
 
 OF C0XTRACT8. 79 
 
 most important is that of Wain v. Warlters{b), in Avliicli Wain v. 
 
 it was held that the statute, in requiring- the agreement " '^''^' 
 
 to be in Avriting, required that the consideration, which 
 
 is part of the agreement, should be in Avriting, as Avell 
 
 as the promise itself. And therefore a promise in 
 
 writing to pay the debt of a third person, w^hich did not 
 
 state any consideration, was held to give no cause of 
 
 action ; and parol evidence of a consideration was not 
 
 allowed to be given. This case was followed by many 
 
 other decisions to the same effect (c). But a recent Consideration 
 
 statute noAV provides that no special promise to answer ^^^^d not now 
 
 for the debt, default or miscarriage of another person, 
 
 being in Avriting and duly signed, shall be invalid to 
 
 support an action, by reason only that the consideration 
 
 for such promise does not appear in Avriting, or by 
 
 necessary inference from a written document (rZ). The Answerino- for 
 
 phrase in the statute, to ansxoer for the debt, default or debt, default 
 
 miscarriage of another person, means to answer for a 
 
 debt, default or miscarriage /o;- loliich that other remains 
 
 liable (e). Thus Avhere one party to an agreement ver- 
 
 l)ally promised the other, that, in consideration of his 
 
 discharging fi'om custody a third person whom he had 
 
 taken in execution for debt, he, the iirst party, Avould 
 
 pay the debt, it Avas held that action might Avell be 
 
 brought on this promise, although it Avas not put in 
 
 Avriting ( / ). For this AAas not a promise to ansAver for 
 
 (7j) 5 East. 10; 2 Smith's Lead- C. B., N. S. 3G1; Williams v. 
 
 ing Cases, 147. LaJie, 2 Ell. & Ell. 3-19, 
 
 (c) Scnindcrs v. Wahefidd, 4 (e) 1 "Wms. Saund. 211 b, n. 
 
 Bam. & Aid. 595; Morley v. (2); 1 Smith's Leading Cases, 
 
 lioothhy, 3 Bing. 107; Clancy \. 134; Green v. Cressn-ell, 10 Ad. 
 
 Piggott, 2 Adol. & Ell. 473; 1 & Ell. 453; S. C. 2 Per. & Da^•. 
 
 Smith's Leading Cases, 13G; 1 iZO; Crijjjjs \. IIartnell,Ex. Ch. 
 
 Wms. Saund. 211, n. (d); Price v. 11 W. E. 953; 10 Jur., N. S. 200. 
 
 Ilichardiwn, 15 Mcc. & Wels. {f) GoodmanY. Chase, IBam. 
 
 539. & Aid. 297. See also Lane y. 
 
 (,d) Stat. 19 & 20 Vict. c. 97, Buvyliart, 1 Q. B. 933. 
 s. 3, See Holmes y. Mitchell, 7
 
 §0 (JF CIIOSES IX ACTION. 
 
 tlie debt of another pei'r^on, to Avliicli that other re- 
 mained liable, but to pay a debt from which the other 
 Avas discharged. It was an original promise to pay 
 and not a collateral promise to guarantee, which is the 
 meaning in the statute of tlie words " ansAver for." 
 Space of one Tlic words, " any agreement that is not to be performed 
 makin °'" ^ ^^ Avithin tlie space of one year from the making thereof," 
 liave been held to mean an agreement wliich appears 
 from its terms incapable of performance Asithin the 
 year. Thus where one man promised another, for one 
 guinea, to give him a certain number on the day of his 
 marriage, it was held that a writing was uimecessary, 
 foi" the marriage might have happened withiu the 
 year(^). So a contract by A. that his executor shall 
 pay 10,000/. need not be in writing (//); for the death 
 of A. and payment of the money may all take place 
 within a twelvemonth. It has also been held that, in 
 order to bring an agreement within this clause of the 
 statute, so as to render writing necessary, both parts of 
 the agreement must be such as are not to be performed 
 Avithin a year from the making thereof. Thus where a 
 landlord agreed to lay out 50/. in improvements, in 
 consideration of the tenant undertaking to pay him 51. 
 a year during the remainder of his term (of which 
 several years were unex])ired), it was lield that Avriting 
 AA'as lumecessary (z); for although the tenant's part of 
 the agreement Avas not to be performed Avithin a Acar, 
 the landlord's part might reasonably have been so. 
 These decisions have considerably narroAved the opera- 
 tion of the statute, and have left remaining much of the 
 mischief arising from reliance on memory only, which 
 it Avas the intention of the statiite to obA'iate, by re- 
 
 (ff) Peter v. Comj)ton, Skin. 40; Itidlci/ \. U'liUey, SI Beav. 
 
 3.")3 ; 1 Smith's Leading Cases, 478. 
 
 142; Soiichx. Strairhridge, 2 C. {t) Doni'IlaH\.lield,?>B&xn. 8c 
 
 B. 808. Add. 899; Chcrru v. Heming, 4 
 
 (/') Wdh \. Horto,), 4 Bing. Ex. Eop. 631.
 
 or CONTRACTS. 81 
 
 quiring written evidence {k). The last clause of the 
 enactment has however received a very liberal construc- 
 tion. The w^ords are " signed by the party to be Signed l>y the 
 charged therewith, or some other person thereunto by charged. 
 him lawfully authorized." And it has been held that 
 any insertion by the party of his name in any part of 
 the agreement is a sufficient signing within the sta- 
 tute (/), provided the name be inserted in such a manner 
 as to have the effect of authenticating the instru- 
 ment (tw); and it is not necessary that both parties 
 should sign the agreement. The whole of the agree- 
 ment must be contained in the ■\\Titing, either expressly 
 or by reference to some other document, but the Avriting 
 is required by the statute to be signed only by the party 
 to be charged (?«). And as a " memorandum or note" Memorandum 
 of the agreement is allowed, a writing sufficient to satisfy °^ '^^ ^* 
 the statute may often be made out from letters written 
 by the party (o), or from a written offer, accepted, A^dth- 
 out any variation (/?), before the party offering has 
 exercised his right of retracting (q) ; and when corre- Acceptance of 
 spondence is carried on by means of the post, an offer ' ^ " 
 is held to be accepted fi-om the moment that a letter 
 accepting the offer is put into the post, although it may 
 never reach its destination (r). 
 
 (^k) See 1 Smith's Leading (j)) Holland v. Eyre, 2 Sim. & 
 
 Cases, 144: et seq. Stu. 194 ; Gibbons v. Korth- 
 
 (J) Ogilvie v. Foljambe, 3 Eastern Met ropolltan Asylum 
 
 Meriv. 62. District, 11 Beav. 1. 
 
 (wi) Stokes V. Moor, 1 Cox, (q) RoutledycY. Grant, iB'mg. 
 
 219; Selby v. Sdby, 3 Meriv. G53; S. C. IMoo. & P.717; 6'(77«'.s 
 
 4, (i. V. Leonino, 4 C. B., N. S. 485; 
 
 (?i) Laytlioar]} v. Bryant, 2 Hebb's case, M. R., Law Rep., 4 
 
 Bing. N. C. 735, 742. See Sugd. Eq. 9. 
 
 Vend. & Pm-. c. 4, ss. 3, 4, p. 102 (;•) Bnnlop v. Iligyins, 1 H. of 
 
 et seq., 13th edit. L. Cas. 381; Duncan v. Topkum, 
 
 {p) Owen V. Tliomas, 3 My. & 8 C. B. 225. 
 Keen, 353. 
 
 AV.P.P. G
 
 82 
 
 OF CHOSES IN ACTION. 
 
 Sale of goods The seventeenth section of the Statute of Frauds, 
 ^°u-ds^' "' "^' which relates to contracts for the sale of goods, wares 
 and merchandize for the price of 10/. or upwards, has 
 been abeady noticed (s), together with the clause in the 
 statute of Geo. IV., next noticed, called Lord Tenter- 
 den's Act, by which this enactment has been extended 
 and explained (t). 
 
 Lord Tenter- 
 den's Act. 
 
 Written ac- 
 knowledgment 
 required to 
 take the case 
 out of the Sta- 
 tute of Limita- 
 tions. 
 
 The next statute which requii-es oiu- notice is in- 
 titided " An Act for rendering a written Memorandum 
 necessary to the Vahdity of certain Promises and En- 
 gagements," and is commonly called Lord Tenterden's 
 Act{u). By this statute no acknowledgment or promise 
 by words only can take any case of simple contract out 
 of the operation of the Statute of Limitations {x), or 
 deprive any party of the benefit thereof, unless such 
 acknowledgment or promise shall be made or contained 
 by or in some writing to be signed by the party charge- 
 able thereby (y). The effect of such a promise has 
 already been referred to (z). The statute makes no 
 mention of any signature by an agent ; but by a recent 
 statute the signature of an agent has been rendered 
 sufficient (a). And no joint contractor is to lose the 
 benefit of the Statute of Limitations by reason only 
 of any written acknowledgment or promise made and 
 signed by any other joint contractor ; but nothing therein 
 contained is to alter, or take away, or lessen the effect 
 of any payment of any principal or interest made by 
 any person whatsoever (Z*). However,' no indorsement 
 
 (s) Ante, p. 40. 
 
 (t) Stat. 9 Geo. IV. c. 14, s. 7; 
 ante, p. 40. 
 
 ('«) Stat. 9 Geo. IV. c. 14. 
 
 Ix) Stat. 21 Jac. I. c. 16, s. 3. 
 
 (y) See Lechmere v. Fletcher, 
 1 Cro. & Mee. 023; Bird v. Gavv- 
 mon, 3 Bing. N. C, 883 ; Cheslyn 
 
 V. Dalhy, 4 You. & Coll. 238. 
 
 (c) Ante, p. 76. 
 
 (a) Stat. 19 & 20 Vict. c. 97, 
 s. 13. 
 
 (5) Stat. 9 Geo. IV. c. 14, s. 1; 
 Whitwian v. Kynmaii, 1 Ex. Rep. 
 118; Cleave v. Jones, 6 Ex. Rep. 
 573 ; Bamfield v, TupXJer, 7 Ex.
 
 OF CONTRACTS. 83 
 
 or memorandum of any payment wiitten or made upon 
 
 any promissory note, bill of exchange or other ^\Titing, 
 
 by or on behalf of the party to whom such payment 
 
 shall be made, shall be deemed sufficient proof of such 
 
 payment, so as to take the case out of the operation of 
 
 the Statute of Limitations (c). And by a recent statute 
 
 payment of any principal or interest by a co-contractor 
 
 or co-debtor vnW not deprive a debtor of the benefit of 
 
 the Statute of Limitations {d). Lord Tenterden's Act Promise to pay 
 
 forther enacts, as has been already mentioned (e), that f^JcfedTn in- 
 
 no action shall be maintained whereby to charge any fancy. 
 
 person upon any promise made after full age to pay any 
 
 debt contracted during infancy, or upon any ratification 
 
 after fuU age of any promise or simple contract made 
 
 during infancy, unless such promise or ratification shall 
 
 be made by some writing signed by the party to be 
 
 charged therewith. And it is further enacted (/), that Eepresenta- 
 
 no action shall be brought whereby to charge any person j.a° ter^ &c. " 
 
 upon or by reason of any representation or assurance 
 
 made or given concerning or relating to the character, 
 
 conduct, credit, abihty, trade or deahngs of any other 
 
 person, to the intent or purpose that such other person 
 
 may obtain credit, money or goods ujwn, unless such 
 
 representation or assurance be made in writing signed 
 
 by the party to be charged therewith. There appears 
 
 to be some error in the word ''upon'''' in this enactment, 
 
 which, as it stands, is superfluous (^). And it has been 
 
 doubted whether a representation made to a purchaser 
 
 by the trustee of some property, that the property was 
 
 encumbered to a less extent than was actually the case, 
 
 was a representation concerning the ability of the vendor 
 
 Eep. 27; Fordham v. Wallis, 10 v. Woolley, 8 E. & B. 784, 
 
 Hare, 217; iVflA'A v. Hodgson, 1 (^0 Stat. 9 Geo. IV. c. 14, s. 5, 
 
 Kay, 650; Edwards v. Janes, 1 ante, p. 77. 
 
 Kay & John. 534. (/) Stat. 9 Geo. IV. c. 14, 
 
 (c) Sect. 3. s. 6. 
 
 {d) Stat. 19 & 20 Vict. c. 97; i<j^ See 1 Mee. & Wels. 104, 
 
 s. 14, not retrospective; Jachson 123. 
 
 G 2
 
 84 
 
 OF CHOSES IN ACTION. 
 
 Bills and 
 
 notes. 
 
 A bill of ex- 
 change. 
 
 A promissory 
 note. 
 
 Prohibited 
 bills and notes. 
 
 witliin tlie meaning of the statute (A). The better 
 opinion seems to be, that such a representation is Avithin 
 the statute, and ought consequently to be obtained in 
 wvitrng. 
 
 In addition to those contracts which by statute are 
 required to be in Avriting, there exists a peculiar class of 
 contracts, which in their nature are expressed in wiiting, 
 and for which a consideration is presumed to have been 
 given till the contrary is proved (z). These are bills of 
 exchange and promissory notes (A). A bill of exchange 
 is a written order from one person to another to pay to 
 a thii-d person, or to his order, or to the bearer, a cei-tain 
 sum of money. The person making the order is called 
 the drawer, the person on whom it is made the drawee, 
 and the person to whom the money is payable the payee. 
 The bill is sometimes made payable to the draAver him- 
 self, or to his order, or to him or bearer. If the person 
 on whom the biU is dra^ATi imdertakes to pay it, he 
 whites on it the word " accepted," Avith his signatiu-e, 
 and is then called the acceptor. A promissory note, or 
 note of hand, as it is sometimes called, is a written 
 promise fi'om one person to pay to another, or to his 
 order, or to bearer, a certain sum of money. The per- 
 son making the promise is called the maker of the note. 
 No negotiable or transferable biU or note can be law- 
 fully draAvn or made for any sum under 20s. (I) ; but 
 any person may now draAv upon his banker, wdio shall 
 bona fide hold money for his use, any draft or order for 
 the payment to the bearer, or to order, on demand, of 
 any sum of money less than 20^. (m). Bills and notes 
 
 (7<) See Lyde v. Barnard, 1 
 Mee. & Wels. 101 ; Swann v. Phil- 
 lips, 8 Ad. & Ell. 457; Devaux 
 V. Steinkeller, 6 Bing. N. C. 84. 
 
 (i) See Mills v. Barber, 1 Mee. 
 & Wels. 425. 
 
 (A') See Byles on Bills, and 
 Bayley on Bills. 
 
 (0 Stat. 48 Geo. III. c. 88, 
 s. 2. 
 
 (»0 Stat. 23 & 24 Vict. c. Ill, 
 s. 19.
 
 OF CONTRACTS. 85 
 
 under 51. cannot be made payable to bearer on demand, 
 and were formerly subject to other stringent restric- 
 tions {n), which were repealed for three years from the 
 28th of July, 1863, and until the end of the then next 
 session of Parliament (o) ; and the repeal has been since 
 regularly extended from year to year(j!?). Bills and 
 notes payable to bearer on demand are also prohibited 
 from being issued by bankers, except by the banks and 
 under the restrictions mentioned in the act passed to 
 regulate the issue of bank notes ((/). Bills or notes 
 payable to A. B. or order are transferable by a A\Titten 
 order indorsed thereon by A. B. The mere signature 
 by A. B. of his name on the back, followed by the 
 delivery of the bill or note (r), is however sufficient for 
 this purpose. This is called an indorsement in blank ; Indorsement in 
 and after such an indorsement, the bill or note, together "^'^^^• 
 with the right to sue upon it, may be transferred by 
 mere delivery (5). Any holder of the bill may, conse- 
 quently, after such an indorsement, enforce payment to 
 himself. The indorsement may, however, be special, as Special in- 
 " Pay C. D. or order, A. B." And in this case the dorsement. 
 bill or note, in order to become transferable, must be 
 indorsed by C. D. But if a bill be once indorsed in 
 blank, it AviU. always be payable to the bearer by any 
 of the parties thereto, although it may subsequently be 
 specially indorsed ; but the special indorser Avill not be 
 liable to the bearer without the indorsement of the per- 
 son to whom he has specially indorsed it (t). With Banker's pro- 
 regard to bankers, an act of the present reign provides 
 that any draft or order drawn upon a banker for a sum 
 
 tection. 
 
 (w) Stat. 17 Geo. III. c. 30; 7 (/•) Bromage v. Lloyd, 1 Ex. 
 
 Geo. IV. c. 6, s. 4. Rep. 32. 
 
 {()) Stat. 26 & 27 Vict. c. 105. (s) Pcacoch v. Rlwdes, 2 Doug. 
 
 (7;) Last extended by stat. 31 333. 
 
 & 32 Vict. c. 111. I^t) Smith v. ClarTic, 1 Peake, 
 
 iq) Stat 7 & 8 Vict. c. 32, ss. 29.5; Walter v. Macdonnld, 2 Ex. 
 
 10, 11. Rep. .527.
 
 86 
 
 OP CHOSES IN ACTION. 
 
 Liability of 
 acceptor; 
 
 of drawer. 
 
 Protest. 
 
 Liability of 
 indorser. 
 
 of money payable to order on demand which shall, 
 when presented for payment, purport to be indorsed by 
 the person to whom the same shall be drawn payable, 
 shall be a sufficient authority to such banker to pay the 
 amount of such draft or order to the bearer thereof (m). 
 A bill or note payable to bearer is transferable by mere 
 deUvery without any indorsement. 
 
 The effect of accepting a bill, or making a promissory 
 note, is to render the acceptor or maker primarily hable 
 to pay the same to the person entitled to require pay- 
 ment. The effect of drawing a bill is to make the 
 drawer liable to payment, if the acceptor make default. 
 But in order to charge the di-awer of a foreign bUl, it 
 must, by the custom of merchants, be protested by a 
 notary pubhc (v). This protest is a declaration by him 
 in due form that payment has been demanded and re- 
 fused. A protest, however, is unnecessary for an inland 
 bill or promissory note (x). The effect of indorsing a 
 bill or note is to make the indorser also liable to pay- 
 ment, if the acceptor of the bill or maker of the note 
 should make default. The indorsement operates as 
 against the indorser as a new drawing of the bill by 
 him (y). An indorsement, hoAvever, may be made with- 
 out recom'se to the indorser, or " sans recours," as it is 
 generally expressed, in which case the indorser avoids 
 all personal liabihty (z). The drawer of a bill, or the 
 indorser of a bill or note, will, however, be discharged 
 from all Habihty, unless the person requiring payment 
 should, witliin a reasonable time, give him notice that 
 the bill or note has not been paid, or, as it is termed, 
 has been dishonoured, and give him to understand. 
 
 Of) Stat. 16 & 17 Vict. c. 59, 
 s. 19. 
 
 (v) Gale Y. Wahh, 5 T. Eep. 
 239. 
 
 (.r) Windle Y . Andrews, 2 Barn. 
 & Aid. 696. 
 
 (y) Penny v. Innes, 1 Cro. 
 Mee. & Rose. 44] . 
 
 (2) Byles on Bills, 117, 6tli ed.
 
 OF CONTRACTS. 87 
 
 either expressly or by implication, that he looks to him 
 for payment («). In consequence of a consideration Bona fide 
 being presumed to have been given for every bill or ^*^|'^*^i' ^^^J ^^- 
 note till the contrary is shown, it foUows, that if a bill 
 or note should have been drawn, accepted or indorsed 
 without any consideration, or for a consideration which 
 is illegal, a bona fide holder for valuable consideration, 
 or any indorsee from him, may, nevertheless, enforce 
 j)ayment ; for when he took the security he was entitled 
 to rely on the legal presumption of a proper considera- 
 tion having been given (Z»). It is stated by Sir William Eeason why a 
 Blackstone (c), "that every note, from the subscription js°° resumed'^ 
 of the drawer, carries yvith it an internal evidence of 
 a good consideration." This however appears to be a 
 mistake. The law does not give this effect to biUs of 
 exchange and promissory notes in respect of the under- 
 taking being evidenced by writing, but in order to 
 strengthen and facilitate that commercial intercourse 
 which is carried on through the medium of such se- 
 curities (t?). On this ground the law allows these 
 instruments to form an exception to the general rule 
 that a consideration must be shown for every agree- 
 ment, although evidenced by writing. The remedies 
 on bills of exchange and promissory notes have been 
 facihtated by a recent act (e). 
 
 We now come to the second class of contracts, namely. Contracts by 
 special contracts, or contracts by deed. These contracts ^^^^' 
 differ from mere simple contracts in the following im- 
 portant particular, that they of themselves import a con- 
 
 (a) Hartley v. Case, 4 Bam. & (c) 2 Black. Comm. 446. 
 
 Cress. 339 ; Byles on Bills, 213 et (d) 1 Fonbl. Eq. 343, 344. 
 
 seq., Gth ed.. (e) Stat. 18 & 19 Vict. c. 67. 
 
 (Zi) Collins V. 3Iartin, 1 Bos. & The .stamps on hills and notes are 
 
 Pull. G51; Morris v. Lee, Bayley now regulated by stats. 17 & 18 
 
 on Bills, 500 ; RoJnnson v. Rey- Vict. c. 83, 23 Vict. c. 15, 23 & 
 
 iwlds, 2 Q. B. 196; May v. C/i«/> 24 Vict. c. Ill, and 27 & 28 Vict. 
 
 ma)i, 16 M. & W. 355. c. 56, s. 2,
 
 88 OF CHOSES IN ACTION. 
 
 sideration (/), whilst in simple contracts a consideration 
 must be proved. For the law presumes that no man 
 will put his seal to a deed without some good motive {g). 
 And when an agreement is once embodied in a deed, 
 such deed becomes itself the agreement, and not eH- 
 dence merely, as is the case when a parol agreement is 
 Alteration, reduced to writing. On tliis principle it appears to be 
 lasm-e, &c. ^\^r^x^ j^fj-gj. ^ ^qq^ \^^^ Ijeen executed, any alteration, 
 rasm-e or addition made in a material point, even by a 
 stranger, will render the deed void (Ji). It is true that 
 by recent decisions (z) this doctrine has been extended 
 to a mere written agreement. But although it is no 
 doubt highly important that all legal instruments shoidd 
 be preserved in then- integrity, it may perhaps be doubted 
 Avhether the docti-ine in question would ever have ex- 
 isted, had there been no other reason for it than the 
 duty of a person, having the custody of an instrument 
 made for his benefit, to preserve it in its original state. 
 
 Oiijects of a Having now spoken of the promise, whether express 
 
 c.^iitract, law- ^^ implied, which is necessary to a contract, and also of 
 fill. the consideration, whether express or implied, by which 
 
 such promise is sustained, let us consider some important 
 objects for which a contract may be made, and which 
 seem to requh-e a special mention. The object for which 
 a contract is made may be either lavrful or unlawfid ; and 
 if it be unlawful the contract Avill be void, and the ille- 
 gality may be pleaded as a defence to an action brought 
 upon such a contract (K). A distinction was formerly 
 
 (/) 1 Fonbl. Eq. 342. yrackerharth, 5 C. B. 181. It is 
 
 (^) See Principles of the Law now held that immatei'ial altera- 
 
 of Real Property, 118, 2nd ed. ; tions, though made by a party to 
 
 123, 3rd & 4th eds. ; 128, 5th ed.; an instrument, do not render it 
 
 134, Gth ed. ; 137, 7th ed.; 143, void; Aldous v. CorrmcU, L. R., 
 
 8th ed. 3 Q. B. 573. 
 
 (A) Piffot's case, 11 Rep. 27 a. (^) CoUinsv. Blantern, 2 Wils. 
 
 {I) Davi(lsonY.Cooper,\ZMQQ. 341, 347; S. C. 1 Smith's Lead- 
 
 k AA\d.s. 343, 352; Mollett v. ing Cases, 154; Paa-ton v. Pojf-
 
 OF CONTRACTS. 89 
 
 taken between contracts Avliose object was merely pro- 
 hibited by the law under some given penalty, and those 
 whose object Avas morally -wrong. The former were Mala prohibita 
 termed mala jjrohihita, the latter mala in se{l); and it ^nd mala m se. 
 was considered that, as the former involved no moral 
 turpitude, a man might embrace either of the alter- 
 natives offered by the law, and either abstain from the 
 offence and remain harmless, or commit it and suffer 
 the penalty. This distinction, however, has long been Distinction 
 exploded {7n) ; for it is considered to be equally unfit that °°'^ exploded. 
 a man should be allowed to take advantage of what the 
 laAV says he ought not to do, whether the thing be pro- 
 liibited because it is against good morals, or whether 
 it be prohibited because it is against the interest of the 
 state. Whether, therefore, the object of a contract be Contract with 
 unlawful because morally wrong, or unlawful by the ?e"t^void ° ' 
 policy of the common law, or unlawful because a penalty 
 is attached to it by any particular statute, in every case 
 the contract is void ; and it is indifferent, under such 
 circumstances, whether the contract be made by deed, 
 or by parol merely. Thus if a bond under seal be Bond to induce 
 given by a man to a woman in order to induce her to ^°.^Jit'''^tion 
 cohabit with him, it is void for the immorality of its 
 object (n). But a bond given to a woman in respect But bond for 
 of the injury she has sustained by past cohabitation is E^^^^ cohabita- 
 vaHd (o). For in this case the object is not immoral ; 
 
 ham, 9 East, 408; Pole v. Harro- (n) Walker v. PerMns, 1 Wm. 
 
 hUi, 9 East, 416, n.; De Begnls Black. 517; S. C. 3 Burr. 1568; 
 
 V. Armistead, 10 Bing. 107; S. C. G7-a]/ r. Matliias, 5 Ves. 286. 
 
 3 Moo. & Scott, 516. (o) Turnery. YanglMn,2yV\\s. 
 
 (I) See 1 Black. Com. 54, 57. 339; Hill v. Spencer, 2 Amb. 641 ; 
 
 (jii) Aulerty.Maze, 2 Bos. & Gray v. Matldas, 5 Ves. 286; 
 
 Pul. 374, 375; Cannany. Bryce, Hall v. Palmer, 3 Hare, 632; 
 
 3 B. & Aid. 183; Benslcy v. Big- Eyne v. Moore, 1 Sim. & Stu. 61; 
 
 noU, 5 Barn. & Aid. 335, 341; 2 Sim. & Stu. 2C0; Inge v. Mose- 
 
 Coj)ey.R.on-lands,2M&&. & Wels. ley, 6 Bam. & Cres. 133; 2 Sim. 
 
 149, 157; Fergusson v. Nonnan, 161. 
 5 Bing. N. C. 76, 84.
 
 90 
 
 OF CHOSES IN ACTION. 
 
 and the consideration implied by the bond being a deed 
 under seal supplies the want which would otherwise 
 If some objects exist of a proper consideration (/?). If a contract have 
 othw-s unlaw- ^^o^'G than one object, and some of the objects are laAvM 
 ftH. whilst the others are unlawtul, the unlawiul objects will 
 
 not -vdtiate the others (^), provided the good part be 
 separable fl-om, and not dependent upon, that which is 
 bad ( r) ; unless of course the whole contract should be 
 rendered A^oid bj any enactment to the effect that all 
 instriunents containing any matter contrary thereto shall 
 be void, in which case ever}i:hing connected with the 
 instrument wall be vitiated (5). And if the good part 
 of a contract be inseparable from the bad, as if a con- 
 tract be made partly in consideration of the payment of 
 money (which woidd be good), and partly for a con- 
 sideration whose object is illegal, the illegal part of the 
 consideration will vitiate the good, and render the whole 
 contract void {t). 
 
 Immoral pub- 
 lication. 
 
 The instance above given of a bond for friture coha- 
 bitation is an example of a contract void on account of 
 its object being malum in se, or morally wrong. In the 
 same manner, no action can be maintained on any con- 
 tract for the sale or publication of any libellous or 
 
 (^p) Binningto7i v. Wallis, 4 
 Barn. & Aid. 650, G52; ante, p. 
 73. 
 
 {q) GasTicll v. King, 11 East, 
 165; Wigg t. Shuttleworth, 13 
 East, 87; Ilon'e v. Sgnge, 15 East, 
 440; in all whicli decisions unlaw- 
 ful covenants to pay the property 
 tax were held not to vitiate other 
 valid covenants in the same instru- 
 ment. See also Kerrison v. Cole, 
 8 East, 231; Mallan v. Mag, 11 
 Mee. & Wels. 653; Green\, Price, 
 13 Mee. & Wels. 695; affinned 16 
 
 Mee. & Wels. 34G; Nicliolls v. 
 Strctton, 10 Q. B. 346. 
 
 (;•) See Biddcll v. Leeder, I 
 Bam. & Cress. 327, decided on the 
 old Ship Eegisti-y Act. 
 
 (s) See 1 Smith's Leading Cases, 
 169, and the statutes recited in the 
 preamble to 5 & 6 Will. IV. c. 41. 
 
 {t) Fcilierstone r. Hutchinson^ 
 Cro. Eliz. 199; Bridge v. Cage, 
 Ci-o. Jac. 103. See also per Tin- 
 dal, C. J., in Waite v. Jones, 1 
 Bing. N. C. 662; IIopUiis v. 
 PrcscoU, 4 C. B. 578.
 
 OF CONTRACTS. 91 
 
 immoral book or print [ti). A striking instance of a Contracts in 
 
 contract, void on account of its object being contrary to ''*^'**|^'^iiit oi 
 
 the policy of the common law, occui's in the case of a 
 
 contract in restraint of trade. It is for the advantajre 
 
 of the community that every person should be allowed 
 
 the flill exercise of his trade or profession ; and any 
 
 contract whereby a person is attempted to be restrained 
 
 from following his usual calling, even for a limited time, 
 
 is therefore absolutely void {x). But a contract is not 
 
 rendered void by ha^vdng for its object the restraint of a 
 
 person from trading in a particidar place (?/), or within 
 
 a reasonable distance from any particular place (z), for 
 
 he may carry on his trade elsewhere ; nor is a contract 
 
 void which restrains a person from serving a particular 
 
 class of customers («) (for there are plenty of others to 
 
 be found), or which binds a person to be the servant for 
 
 life in his trade to another (6), for this is not in restraint 
 
 of trade when it is to be carried on for his life. In a 
 
 recent case (c) a person agreed that he would become 
 
 assistant to a dentist for four years, and that after the 
 
 expiration of that term he would not caiTy on the busi- 
 
 (u) i^ore.s V. Jb/iwes, 4 Esp. 97; Q8^; Pemherton v. Yavghan, 10 
 
 Stochdale v. Onwhijn, 5 Barn. & Q. B. 87; Athjns v. Einnier, 4 
 
 Cres. 173; S. C. 7 Dow. & Ey. Ex. Rep. 77G; Elves v. Crofts, 10 
 
 G25; Lamvcnce v. Smith, Jac. C^. 2i\; Avcvt/ y. La^igford, \ 
 
 471. Kay, G63, 6G7, where the cases are 
 
 (a;) Year Book, P. 2 Hen. V. collected ; Harms v. Parsons, 32 
 
 pi. 2G; Ward v. Byrne, 5 IMee. & Beav. 328 ; Brampton t. Bed- 
 
 Wels. 548; Hindy. Gray, 1 Man. does, 13 C. B., N. S. 538. 
 
 & Gran. 195. («) Rannle v. Irvine, 7 Man. & 
 
 (y) EitcUcoeh v. Coler, G Ad. Gr. 9G9. 
 
 & El. 438; S. C. 1 Nev. & P. ' {h) Wallis v. Day, 2 Mee. & 
 
 79G; Archer v. Marsh, G Ad. & Wels. 273. 
 
 Ell. 959 ; S. C. 2 Nev. & P. 5G2; (ff) Mallan v. May, 11 ISIee. & 
 
 LeUjhton v. Wales, 3 Mee. & Wels. 653. See also Green v. 
 
 Wels. 545. Price, 13 Mee. & Wels. G95, 
 
 {z) Davis \. Maso)i, 5 T. Rep. affirmed, IG Mee. & Wels. 346; 
 
 W^; Proctor Y. Sergeant, 2 Man. Nlcholls v. Strettoii, 10 Q. B. 
 
 & Gr. 20; S. C. 2 Scott, N. R. 346. 
 289; Whlttaker v. Hotve, 3 Beav.
 
 92 
 
 OF CHOSES IN ACTION. 
 
 ness of a dentist in London, or anj of the towns or 
 places in England or Scotland where the dentist might 
 have been practising before the expiration of the service. 
 And it Avas held that the covenant not to practise in 
 London was valid; but that the stipulation as to the 
 other toAvns and places in England or Scotland was void. 
 And according to the rule above mentioned [d), that 
 where some of the objects of a contract are lawful and 
 others unlaAA-fiil, the unla^wful objects will not vitiate the 
 others, it was held that the stipulation as to practising 
 in London was not affected bj the illegahty of the re- 
 mainder of the ao^reement. 
 
 Charjres on 
 benefices. 
 
 The cases in which contracts may be void in conse- 
 quence of their contravening some acts of parliament 
 are too numerous to be here specified. As an instance 
 may be mentioned contracts by clergymen holding bene- 
 fices with ciu'e of souls, made for the purpose of charging 
 such benefices with any sum of money ; which contracts 
 are rendered void by a statute of Elizabeth (e). And 
 in these cases it has been held that auy personal cove- 
 nant for the payment of the money charged is not in- 
 vaHdated by being contained in the same deed as the 
 attempted charge on the benefice (/). Contracts for the 
 sale or transfer of stock, of Avliich the person contracting 
 was not possessed at the time, and of which no transfer 
 Stock Jobbing was intended to be made, were formerly void by the Stock 
 Jobbing Act {(/) ; and money lent for the purpose of 
 settling losses which had arisen firom such illegal con- 
 tracts could not be recovered back (A). But this act 
 is now repealed (J). Securities for money won at play 
 
 Act. 
 
 (<Z) Ante, p. 90. 
 
 (e) Stat. 13 Eliz. c. 20. See 
 SJiatv V. Pritcliard, 10 Bam. & 
 Cress. 241; Long v. Storie, 3 De 
 Gex & Smale, 308. 
 
 (/) Monys y.Leahc, 8 T. Kep. 
 
 411; Sloane v. PacJanan, 11 Mee. 
 & Wels. 770. 
 
 (^) Stat. 7 Geo. II. c. 8, s. 8. 
 See 2^ost, the chapter on Stock. 
 
 (/i) Cannan v. Bryce, 3 Bam. 
 & Aid. 179. 
 
 (/) Stat. 23 Vict. c. 28.
 
 OF CONTRACTS. 93 
 
 or any game, or by betting on any game, or for money Securities for 
 lent for gaming or betting at the time and place of sncli "1°"^^ ^^^ ^ 
 play, were declared by a statute of Anne to be utterly 
 void (k) ; but by a later statute (/) such securities are 
 not to be utterly void, but are to be taken to have been 
 given for an illegal consideration ; they are consequently 
 now void only as between the parties, but valid in the 
 hands of any innocent holder, to whom they may have 
 been transferred without notice of the illegality of the 
 transaction in Avhich they originafed (m). And by a Contracts by 
 more recent statute (w) it is enacted, that all conti-acts or ycml." ^^"^"^^ 
 agreements, whether by parol or in writing, by way of ? , 
 
 gaming or wagering, shall be null and void ; and that , . , , 
 
 no suit shall be brought or maintained in any court of ^ ,-^^^^^ ^ , 
 law or equity for recovering any sum of money or valu- / ' .y, '— i " J ^ m 
 able thing alleged to be won upon any wager, or which My " ' *r ^ " 
 shall have been deposited in the hands of any person y'^ '" ' *1 C^ 
 to abide the event on which any wag-er shall have been "" ", * 
 
 made. But this enactment is not to apply to any sub- ^ ,^ • ^- . 
 scription or contribution, or agreement to subscribe , . , a. i—J 
 or contribute, for or towards any plate, prize or sum of ^^<s.ii ». ^'t^;— *• «Jv" 
 money to be a^varded to the winner or winners of any J'-^^' ^S^-*^>^. 
 la^vful game, sport, pastime or exercise. Contracts for Usurioxis con- 
 the payment of money, whereby there should be reserved *'^''''^*^^*^- 
 more than five per cent, interest, were in like manner 
 declared void by a statute of Anne, called the Usury 
 Law (o) ; but in order to protect innocent holders of 
 securities given for usvirious consideration, it was sub- 
 seqviently declared that such contracts should not be 
 absolutely void, but shoidd be considered to have been 
 made for an illegal consideration (jo). However, by a 
 statute of the reign of King William the Fourth ((/), it 
 
 (Ji) Stat. 9 Aune, c. 14. («) Stat. 8 & 9 Vict. c. 109, s. 
 
 (0 5 & 6 Will. IV. c. 41 ; Haw- 18. 
 her V. Hallemell, 3 Sma. & Giff. (o) Stat. 12 Anne, st. 2, ch. 16. 
 
 194. ij)) Stat. 5 & G Will. IV. c. 41, 
 
 (?«) See ante, p. 87. (<7) Stat. 3 & 4 Will. IV. c. 98, 
 
 s. 7.
 
 94 OF CHOSES IN ACTION. 
 
 ■was provided that no bill of exchange or promissory note 
 made payable at or within three months after the date 
 thereof, or not having more than three months to rim, 
 should be void by reason of any interest taken thereon 
 or secured thereby, or any agreement to pay or receive 
 or allow interest in discounting, negociating or transfer- 
 ring the same. And by a subsequent statute (r), all bills 
 of exchange and promissory notes made payable at or 
 within twelve months after the date thereof, or not having 
 more than twelve months to run, and all contracts for 
 the loan or forbearance of money above the sum of 10/. 
 sterling, were exempted from the operation of the Usury 
 Law. Nothing, however, contained in the last-men- 
 tioned act was to extend to the loan or forbearance of 
 any money upon secra-ity of any lands, tenements or 
 Usury laws hereditaments, or any estate or interest therein. And 
 now repealed. ^^^^ -^^ j^^ act passed on the 10th of August, 1854 {s), 
 all the laws against usury are repealed. But where 
 interest is now payable upon any contract, express or 
 implied, for payment of the legal or cm-rent rate of 
 interest, or where interest is payable by any rule of law, 
 the same rate is recoverable as before the act {t). 
 
 The above enactments are perhaps the most important 
 statutory pro\asions by which contracts may be vitiated. 
 Contracts with Contracts whose objects are lawftd are endlessly diver- 
 lawful objects. gj£g^^ ^^^ many of them are regulated by laws which it 
 is not within the scope of the present work to enumerate. 
 For the breach of any such contract pecuniary damages 
 are, as we have seen (u), the sovereign remedy prescribed 
 by law; though equity not unfi-equently administers 
 more appropriate specifics. The person to whom money 
 has become due, whether fi-om any injury received, or 
 fi-om any contract broken, or from a contract to pay 
 money itself, stands in a situation more or less advan- 
 
 (r) 2 & 3 Vict. c. 37. (0 Sect. 3. 
 
 (s) Stat. 17 & 18 Vict, c. 90. (w) Ante, p. 03.
 
 OF CONTRACTS. 95 
 
 taffeous as resfarcls liis remedies for recoverino; the 
 money, according to tlie natnre of the debt which has Debts. 
 thus become due to him. For by the law of England 
 all creditors are not allowed equal rights, but are pre- 
 feiTcd the one to the other, partly according to acci- 
 dental cu'cumstances, and partly according to the degree 
 of diligence and precaution which each may have used. 
 The subject of debt is of sufficient importance to form 
 a separate chapter.
 
 9Q 
 
 OF CHOSES IX ACTION. 
 
 CHAPTER III. 
 
 OF DEBTS. 
 
 Debts, by tlie law of England, are divided into different 
 classes, conferring on the creditor different degrees of 
 security for re-payment. The class which confers the 
 highest privileges is that of debts of record, Avhich class 
 will accordingly first claim our attention. 
 
 Superior 
 courts of 
 record. 
 
 Debt of record. A debt of record is a debt due by the e\adence of a 
 court of record (a). Every court, by having power 
 given to it to fine and imprison, is thereby made a court 
 of record (b). Such courts are either supreme, superior 
 or inferior. The supreme court is the Parliament. 
 The superior courts of record are the House of Lords, 
 the Court of Chancery, and the Courts of Queen's 
 Bench, Common Pleas and Exchequer, which are the 
 more principal courts. The courts of the Counties 
 Palatine of Lancaster and Durham are also superior 
 courts of record (c). The Court of Bankruptcy and its 
 district courts, and every commissioner thereof, also 
 exercise and enjoy all the powers and privileges of a 
 court of record as fully as the courts of law at West- 
 minster (d). The Court of Probate is also a court of 
 record (e); and so is the High Court of Admiralty (y). 
 
 Inferior courts The inferior courts of record may be said, generally, to 
 consist of the numerous courts established throughout 
 the country, under the acts for the more easy recovery 
 
 of record. 
 
 (a) 2 Black. Com. 4G5. 
 
 (&) Bac. Abr. tit. Courts (D) 2. 
 
 (c) IMd. (D) 1. 
 
 Id) Stat. 12 & 13 Vict. c. 106, 
 
 s. 6. 
 
 (c) Stat. 20 & 21 Vict. c. 77, 
 s. 23. 
 
 (/) Stat. 24 Vict. c. 10, s. 14.
 
 OF DEBTS. 97 
 
 of small debts and demands in England, now called the County courts. 
 County Com-ts Acts (^). 
 
 Debts of record do not, however, confer the same Crown debts. 
 advantages on all creditors equally, for there is one cre- 
 ditor whose claims are paramount to all others, namely, 
 the crown. In order to enjoy this priority, the crown 
 debt was formerly required to be a debt of record, or a 
 debt by specialty, that is, secured by deed (A); though 
 if the debt were by simple contract without such secm-ity, 
 it would have had preference over the other simple con- 
 tract creditors of the debtor, and, as some say, even over 
 other creditors by specialty (i). But the distinction 
 Avhich formerly existed betAveen specialty and simple 
 contract debts has been abolished by a recent statute {k), 
 which reduces all specialty debts to the level of debts 
 by simple contract. It seems, therefore, that a simple 
 contract debt to the crown would now prevail over a 
 specialty debt due to a private person. The Hen of the 
 crown on the lands of its debtors by record or specialty, 
 and also on the lands of accountants to the croAATi, is 
 mentioned in the author's Treatise on the Principles of 
 the Law of Real Property (Z). 
 
 Of all debts which one subject may OAve to another. Judgment 
 that which confers the most important remedy is 2i judg- 
 ment debt, or a debt which is due by IYlq judgment of a 
 court of record. As such a debt is due by the evidence 
 of a com-t of record, it is of course a debt of record. 
 
 {g) Stats. 9 & 10 Vict. c. 95, s. {It) Williams on Executors, pt. 
 
 3; 12 & 13 Vict. c. 101; 13 & 14 3, bk. 2, ch. 2, s. 1. 
 Vict. c. 61; 15 & 16 Vict. c. 54; (?) Bac. Abr. tit. Executors 
 
 17 & 18 Vict. c. 16; 19 & 20 Vict. (L) 2. 
 
 c. 108; 21 & 22 Vict. c. 74; 22 & {k) Stat. 32 & 33 Vict. c. 46. 
 
 23 Vict. c. 57; 28 & 29 Vict. c. 99; (0 Page 62, 1st ed. ; 65, 2ud 
 
 29 & 30 Vict. c. 14; 30 & 31 Vict. ed.; 70, 3rd & 4th eds.; 76, 5th 
 
 c. 142; 31 & 32 Vict. c. 71 ; 32 & ed.; 81, 6th ed.; 84, 7th ed.; 85, 
 
 33 Vict. c. 51. 8th ed. 
 
 Vr .P.P. . . H
 
 98 
 
 OF CHOSES IN ACTIOX. 
 
 Cognovit. 
 
 Sucli a debt may however now be incurred without any 
 actual exercise of judgment on the part of the court. 
 For, strange as it may appear, a judgment against a 
 defendant in an adverse suit, though the most ob\aous, 
 is yet not the most usual method of incmTing a judg- 
 ment debt. Such a debt may be incuiTcd by the volun- 
 tary defaidt of the defendant in making no reply to the 
 action, which is called nihil dicit, or by his failing to 
 insti'uct his attorney, whose statement of that circum- 
 stance is called non sum informatus, or by a cognovit 
 actionem, or more shortly cognovit, by which the de- 
 fendant confesses the action, and sirffers judgment to be 
 Judge's order, at once entered up against him (m). Of late years also 
 it has become very usual for the parties to a suit to obtain 
 by consent a judge's order, authorizing the plaintiff to 
 enter up judgment against the defendant, or to issue exe- 
 cution against him, either at once and unconditionally, 
 or more usually at a future time, conditionally on the 
 non-payment of whatever amount may be agreed on. 
 A judgment obtained on a judge's order for immediate 
 judgment and execution is however the same thing as a 
 judgment by 7iihil dicit, or confession (n). The method 
 formerly the most frequent of iucmi-ing a judgment debt 
 is not however attended with the actual commencement 
 of any adverse action. A warrant of attorney is given 
 by the intended debtor, Avhich consists of an authonty 
 from him to certain attorneys to appear for him in court, 
 and to receive a declaration in an action of debt for the 
 amount of the intended judgment debt, at the suit of 
 the intended creditor, and thereupon to confess the 
 action, or suffer judgment to go by defaidt, and to per- 
 mit judgment to be foi-tli^\ith entered up against the 
 intended debtor for the amount, besides costs of suit. 
 Such a warrant of attorney is generally executed as a 
 
 "Warrant of 
 attoi-ney. 
 
 (ot) 3 Black. C!om. 397; Stephen .763; Andrews 
 on Pleading, 120. Eep. 827. 
 
 (ft) Bell V. Biilgood, 8 C. B. 
 
 V. Biggs, 4 Ex.
 
 or DEBTS. 99 
 
 security for a smaller sum of money, usually one-lialf of 
 tlie amount of the judgment debt ; and it is accordingly 
 accompanied by a defeazonce, wliicli must be wiitten on Defeazance, 
 the same paper or parcliment as the warrant of attor- 
 ney, otherwise the warrant will be void (o). This defea- 
 zance, as its name imports, defeats the full operation of 
 the warrant of attorney, by declaring that it is given 
 only as a secui-ity for the smaller sum and interest, and 
 that no execution shall issue on the judgment to be 
 entered up in pm-suance of the warrant of attorney, 
 until defaidt shall have been made in payment of such 
 sum and interest at the time agreed on ; but that, in 
 case of default, execution may be issued (7?). The 
 defeazance also until recently contained an agreement 
 that it should not be necessary for the creditor to issue 
 a ^YY\i of scire facias, or do any other act for reviving Scire facias. 
 the judgment or keeping the same on foot, although no 
 proceedings should have been taken thereupon for the 
 space of one year. Without such a provision, no exe- 
 cution coidd be issued after the expiration of a twelve- 
 month from the date of the judgment, without the 
 expense and trouble of a writ of scire facias, calling on 
 the debtor to inform the court, or show cause, why exe- 
 cution should not be issued (^q). But the Common Law 
 Procedure Act, 1852, now provides that during the 
 lives of the parties to a judgment, or those of them 
 during whose lives execution may at present issue within 
 a year and a day without a scire facias, and within six 
 years from the recovery of the judgment, execution may 
 
 (fl) Reg. Gen. Hil. 1853, s. 27 ; some exceptious, liable to the same 
 
 stat. 3 Geo. IV. c. 39, s. 4 ; 32 & duty (one-eighth per cent, on the 
 
 33 Vict. c. 62, s. 26. Collateral money secm-ed) as bonds for the 
 
 securities must be noticed, Morcll like purpose. Stat. 13 & 14 Vict. 
 
 V. -Dw/wsf, 3 Taunt. 235. c. 97. See^^os^. 
 
 {j}) Warrants of attorney to con- {q) Stat. Westm. the second, 13 
 
 fess judgment for securing any Edw. I. c. 45. 
 sum or sums of money are, with 
 
 H 2
 
 UK) 
 
 OF CHOSES IN ACTIOX. 
 
 "Warrant of 
 attorney to 
 secure an un- 
 nnity. 
 
 Execution 
 and attestation 
 of warrants of 
 attorney and 
 cognovit. 
 
 issue without a revival of the judgment (r). A warrant 
 of attorney is also sometimes given for entering up 
 judgment for a sum of money, in order to secure the 
 regidar pa}-ment of an annuity ; in Avhicli case the de- 
 feazance of course expresses that no execution shall be 
 issued until default shall have been made for so many 
 days in some payment of the annuity, but that, in case 
 of such defaidt, execution may be issued from time to 
 time (5). 
 
 A warrant of attorney need not be under seal (t), 
 though it generally is so. In order to guard against 
 any imposition in procuring debtors to execute war- 
 rants of attorney or cognovits in ignorance of the effect 
 of such instruments, it is provided (u) that a warrant 
 of attorney to confess judgment in any personal action, 
 or cognovit actionem, given by any person, shall not 
 be of any force, unless there is present some attorney 
 of one of the superior courts on behalf of such person, 
 expressly named by him and attending at his request, 
 to inform liim of the natm-e and effect of such warrant 
 or cognovit, before the same is executed ; which at- 
 torney shall subscribe his name as a witness to the due 
 execution thereof, and thereby declare himself to be 
 attorney for the person executmg the same, and state 
 that he subscribes as such attorney. And a wan-ant 
 of attorney or cogno\dt not executed in manner afore- 
 said, shall not be rendered valid by proof that the 
 person executing the same did in fact understand the 
 nature and effect thereof, or was fully informed of the 
 same (x). Every acknowledgment of satisfaction of a 
 
 (?•) Stat. 15 & 16 Vict. c. 76, s. 2i, re-enacting stat. 1 & 2 Vict. 
 
 s. 128. 
 
 (s) See Cuthbert t. Dohhiu, 1 
 C. B. 278. 
 
 (f) Kinnerslcy v. Musscn, 5 
 Taunt. 264. 
 
 c. 110, s. 9, repealed by stat. 32 
 & 33 Vict. c. 83. 
 
 (a;) Stat. 32 & 33 Vict. c. 62, s. 
 25, re-enacting stat. 1 & 2 Vict. c. 
 110, s. 10, repealed by stat. 32 & 33 
 
 (?0 Stat. 32 & 33 Vict. c. 02, Vict. c. 83 ; Potter v. Mclwlson,
 
 OF DEBTS. 101 
 
 judgment is also reqinred to be attested in a similar 
 manner (y). Since the acts for registering - writs of 
 execution (z), warrants of attorney have become much 
 less frequent than before. 
 
 Not only was there a risk of debtors being imposed 
 upon, in being prevailed on to execute warrants of 
 attorney, but creditors also Avere formerly hable to be 
 defrauded by their debtors giving secret warrants of 
 attorney, cognovits, or judge's orders, to some favoured 
 creditors, to the prejudice of the others. In order to Provision for 
 obviate this inconvenience, proAdsion has been made by o/aftomeT'^*^^ 
 modern acts of parliament for the filing, in the office of cognovits, and 
 the Covirt of Queen's Bench, of all warrants of attorney, within tweuty- 
 with the defeazances thereto, and of all cognovits, and of ^^^ ^^y^- 
 all such judge's orders as before mentioned, or of copies 
 thereof, within twenty-one days after their execution, 
 otherwise the same shall be deemed fraudulent and shall 
 be void («). And a list of such warrants of attorney, 
 cognovits and judge's orders (Z*), and also an index 
 containing the names, additions and descriptions of the 
 persons giving the same (c), is directed to be kept by 
 the officer of the Queen's Bench, open to public inspec- 
 tion and search on payment of a small fee. 
 
 Every judgment debt cames interest at the rate of A judgment 
 Ai . i" ii i* i? i. • debt carries 
 
 4:1. per cent, per annum trom the time ot entering up interest 
 
 the judgment until the same shall be satisfied, and such 
 
 interest may be IcAded under a "vvrit of execution on such 
 
 8 Mce. & Wels. 494; Everard v. {a) Stats. 3 Geo. IV. c. 39, ss. 1, 
 
 Popplcton, 5 Q. B. 181; Pococli 3; 32 & 33 Vict. c. G2, ss. 26, 27, 
 
 V. Plclierinf], 18 Q. B. 789. 28. The twenty-one days are 
 
 (y) Reg. Gen. Hil. 1853, s. 80. reckoned exclusively of the day 
 
 {z) Stats. 23 & 24 Vict. c. 38; of execution; Williams v. Bui'- 
 
 27 & 28 Vict. c. 112. See Trin- ffcss, 12 Adol. & Ell. 635. 
 
 ciples of the Law of Real Pro- {h) Stat. 3 Geo. IV. c. 39, s. 5. 
 
 pcrty, p. 79, 6th cd.; 81, 82, 7th (c) Stats. 6 & 7 Vict. c. 66; 
 
 ul.; 82, 83, 8th ed. 32 & 33 Vict. c. 62, s. 28.
 
 102 
 
 OF CHOSES IN ACTIOX. 
 
 Judgment 
 debts entitled 
 to preference 
 in administra- 
 tion; 
 
 but must be 
 registered. 
 
 Remedies of 
 judgment cre- 
 ditors. 
 
 Imprisonment 
 by writ of ca- 
 pias ad satis- 
 faciendum. 
 
 judgment (d). On the death of the debtor, his judg- 
 ment debts must be paid in Ml by his executors or 
 administrators out of his personal estate before any of 
 his debts on bond or by simple conti-act(e); but it is 
 now provided that, in order to secure this preference, the 
 judgment must be registered or re-registered within five 
 years before the death of the testator or intestate, in the 
 same manner as is required in order to affect lands in 
 the hands of piu'chasers or mortgagees (_/). The decree 
 of a coui*t of equity is equivalent to the judgment of a 
 coiu-t of law {cf). And the pri\alege of priority of pay- 
 ment extends to the judgments of every com-t of record, 
 whether superior or inferior ; but the judgment of a 
 foreign court is entitled to no precedence over a simple 
 contract debt (h). The remedies of the creditor by 
 jvidgment of any of the superior courts, against the 
 real estate of his debtor, are mentioned in the author's 
 treatise on the Principles of the Law of Real Pro- 
 perty (z). The remedies against the choses in posses- 
 sion of the debtor have been referred to in a previous 
 part of the present work (k). The remedies in resj)ect 
 of the choses in action of the debtor will be hereafter 
 mentioned. In addition to these remedies, such a judg- 
 ment creditor might formerly have imprisoned the per- 
 son of his debtor by means of the widt of capias ad satis- 
 faciendum {I) ; but should he have done so, he would 
 
 (d) Stat. 1 & 2 Vict. c. 110, 
 s. 17. 
 
 (e) TVentworth's Executors, 265 
 et seq. 14th ed.; Williams on Exe- 
 cutors, pt. ui. bk. 2, c. 2, s. 2; 
 Berrington v. Evans, 3 Y. & Col. 
 38-1. 
 
 (/) Stat. 23 & 24 Vict. c. 38, 
 ss. 3, 4, not retrospectiye ; Evans 
 V. Williams, 2 Drew. & Smale, 
 324. See Me Righy, M. R., 12 W. 
 R. 32; Jennings v. Righy, 33 
 Beav. 198; Principles of the Law 
 
 of Real Property, p. 75 et seq. 6th 
 ed.; 80 et seq. 7th ed; 81 et seq. 
 8th ed. 
 
 {g) Shafto \. Pone, 3 Lev. 355. 
 
 (A) Duplex T. Be Proven, 2 
 Vem. 540. See also Smith v. 
 Kicolls, 5 Bmg. N. C. 208. 
 
 (i) P. 63 et seq. 2nd ed.; 66, 
 3rd & 4th eds.; 71, 5th ed.; 75, 
 6th ed.; 78, 7th & 8th eds. 
 
 {Ti) Ante, p. 51. 
 
 (J) Bac. Abr. tit. Execution 
 (C)3.
 
 OF DEBTS. 103 
 
 liave relinquished all right and title to the benefit of any 
 charge or security which he might have obtained by 
 wtue of his judgment (m). If, however, the debt 
 should not have exceeded 201. , the debtor could not 
 have been imprisoned (72) without a previous summons 
 and examination before a commissioner of bankrupt or 
 a judge of a county court, who would have ordered the 
 commitment of the debtor only in case of fraud or other 
 ill behaviour (0) ; and the imprisonment would not then 
 have operated as any satisfaction of the debt (/>). But Abolition of 
 an act has now been passed for the abolition of impri- fo/debt"^^'^ 
 sonment for debt and for the punishment at the same 
 time of fraudulent debtors {g). This act is styled " The The Debtors 
 Debtors Act, 1869," and the 1st of January, 1870, is ^''*' ^^^^' 
 the date of its commencement. It provides, that, with 
 the exceptions after mentioned, no person shall, after 
 the commencement of the act, be arrested or imprisoned 
 for making default in payment of a sum of money. The 
 exceptions are: — (1.) Default in payment of a penalty. Exceptions. 
 or sum in the nature of a penalty, other than a penalty 
 in respect of any contract. (2.) Default in payment of 
 any sum recoverable summarily before a justice or jus- 
 tices of the peace. (3.) Defaidt by a trustee or person 
 acting in a fiduciary capacity and ordered by a court 
 of equity to pay any siun in his possession or imder his 
 control. (4.) Default by an attorney or solicitor in 
 payment of costs when ordered to pay costs for mis- 
 conduct as such, or in payment of a sum of money when 
 ordered to pay the same in his character of an officer 
 of the court making the order. (5.) Default in pay- 
 ment for the benefit of creditors of any portion of a 
 salary or other income in respect of the payment of 
 
 (m) Bac. Abr. tit. Execution (o) Stat. 8 & 9 Vict. c. 127; 9 
 
 (D); Stat. 1 & 2 Vict. c. 110, s. Ifi. & 10 Vict. c. 95, s. 99. 
 
 (n) Stat. 7 & 8 Vict. c. 90, (j?^) Stat. 8 & 9 Vict. c. 127, s. 
 
 s. 57. 3; 9 & 10 Vict. c. 95, s. 103. 
 
 iq) Stat. 32 & 33 Vict. c. 62.
 
 104 
 
 OF CHOSES IX ACTIOX, 
 
 Scotch and 
 Irish judg- 
 ments. 
 
 wliicli any court lia\dng jiu-isdictiou in banki*uptcy is 
 authorized to make an order. (6.) Defaidt in payment 
 of sums in respect of the payment of which orders are 
 in that act authorized to be made. But no person is to 
 be imprisoned in any case excepted from the operation 
 of that section for a longer period than one year(r). 
 Power is also reserved for any court to commit to 
 prison for a term not exceeding six weeks, or initil pay- 
 ment of the sum due, any person who makes default in 
 payment of any debt, or instalment of any debt, due 
 from him in pursuance of any order or judgment of 
 that or any other competent coiul ; but this power is 
 guarded by many provisions which it is not here neces- 
 sary to recite (s). Arrest on mesne process is also 
 allowed under certain circumstances if the debtor is 
 about to quit England {t). Provision is also made for 
 the punishment of fraudident debtors by imprisonment 
 for any time not exceeding two years vnth or vrithout 
 hard laboru:(z<). An act has recently been passed for 
 rendering judgments obtained in the Supei'ior Coui-ts in 
 England, Scotland and Ireland effectual in any other 
 part of the United Kingdom (y). 
 
 Removal of 
 judgments of 
 inferior courts. 
 
 Judgments of the inferior courts may be removed into 
 the superior courts by order of any judge of the latter 
 courts ; and immediately on such removal the judgment 
 has the same force, charge and effect as a judgment of 
 the superior covu't ; but it cannot affect any lands, tene- 
 ments or hereditaments, as to purchasers, mortgagees or 
 creditors, unless registered in the same manner as judg- 
 ments of the superior courts {w). A registry is now 
 
 (r) Stat. 32 & 33 Vict. c. 02, 
 s. 4. 
 
 (s) Sect. 5. 
 
 It) Sect. 6. 
 
 (w) Sect. 11 et seq. 
 
 (t)) Stat. 31 & 32 Vict. c. 5L 
 
 (w) Stat. 1 & 2 Vict. c. 110, 
 s. 22; 18 & 19 Vict. c. 15, s. 7. 
 See Principles of the Law of Real 
 Property, 74, 5th ed.; 78, 6th cd.; 
 80, 7th ed. ; 81, 8th ed.
 
 OF DEBTS. 105 
 
 pro'V'ided for judgments in the county courts for the Eegistryof 
 sum of 10/. and upwards {z). county*'cour5. 
 
 In addition to judgment debts, other debts of record Recognizances 
 
 1 HI ni/\ Tj-ii and statutes. 
 
 are recognizances ^\hQ.n duly enrolled (y), and statutes 
 
 merchant, statutes staple and recognizances in the 
 nature of statutes staple. The three last are now quite 
 obsolete. A recognizance is an obligation entered into 
 before some court of record or magistrate didy autho- 
 rized, with condition to do some particular act, as to 
 appear at the assizes, to keep the peace, or to pay a 
 debt (r). It is payable out of the personal estate of 
 the debtor, in the event of his decease, next after judg- 
 ment debts (a). 
 
 Next in importance to debts of record were formerly Specialty 
 specialty debts, or debts secured by sjjecial contract con- ^ ^* 
 tained in a deed (/»). These were of two kinds, debts by 
 sjDCcialty in which the heirs of the debtors were bound, 
 and debts by specialty in which the heu-.s were not 
 boimd. On the decease of the debtor, both these classes 
 of specialty debts stood on a level so far as regarded 
 then* payment out of the personal estate of the debtor. 
 They ranked next after debts of record, and took pre- 
 cedence of aU debts by simple contract (c), with the An-earsof 
 exception of money owing for aiTcars of rent, to which ^^^ ' 
 the feudal principles of our law have given an im- 
 portance equal to that of debts secured by deed (rZ). 
 Debts by specialty in which the heirs were bound had. Precedence of 
 however, a precedence over those in which the heirs jji^dinff the 
 were not bound, in case the real estate of the debtor teii-. 
 
 (x) Stat. 15 & 16 Vict. c. 54, {h) 2 Bla. Com. 465. ^eaante, 
 
 s. 18. p. 72. 
 
 (y) Glynn v. Thorpe, 1 Barn. (c) Pinchon's case, 9 Rep. 88 b. 
 
 & Aid. 153. («?)Wentwortli's Executors, 284, 
 
 (c) 2 Bla. Com. 341. 14th edit. ; Clavgh t. French, 2 
 
 {a) Williams on Executors, pt. Coll. 277. 
 ill. bk. 2, c. 2, s. 2.
 
 106 OF CHOSES IN ACTION. 
 
 should have been resorted to on Ms decease (e) ; unless 
 he should have charged liis real estates by his will with 
 the payment of his debts, in which case all the creditors 
 of every kind Avould have been paid out of the produce 
 of such real estates, without any preference (/). An act. 
 Priority of however, has recently passed to abolish the distinction 
 now'abolishe? ^^ ^^ priority of payment which formerly existed between 
 the specialty and simple contract debts of deceased per- 
 sons (y). This act provides that in the administration 
 of the estate of every person who shall die on or after 
 the 1st of January, 1870, no debt or Hability 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 constituted a specialty debt ; but all 
 the creditors of such person, as well specialty as simple 
 conti-act, shall be treated as standing in equal degree, 
 and be paid accordingly out of the assets of such 
 deceased person, whether such assets are legal or equit- 
 able, any statute or other law to the contrary notwith- 
 standing ; proWded that the act shall not prejudice or 
 affect any lien, charge or other security which any 
 creditor may hold or be entitled to for the payment of 
 his debt. 
 
 For the sake of the advantage of priority which 
 might have been gained on the decease of the debtor, 
 his heirs were usually bound in every specialty debt. 
 The deed creating the debt was either a deed of cove- 
 Covonant. ncmt or a bond. A covenant ran thus : " And the said 
 
 (debtor) doth hereby for himself, his heirs, executors 
 
 (e) See Principles of the Law (/) 2 Jarm. Wills, 523, 2nd 
 
 of Real Property, CO, 2nd ed.; 63, ed.; 584, 3rd ed. 
 
 3rd & 4tli eds.; G8, 5th ed. ; 72, (ff) Stat. 32 & 33 Vict. c. 46. 
 
 6th ed.; 77, 7th ed. ; 78, 8th ed.; The public are indebted for this 
 
 Richardson v. JenUns, 1 Drew. important act to Mr. J. Hiudc 
 
 477, 483. Palmer, Q.C.
 
 OF DEBTS. 
 
 107 
 
 and administrators, covenant witli the said {creditor), 
 his executors and administrators," to pay, &c. A bond Bond, 
 was in the following form : " Know all men by these 
 presents, that I {debtor), of {such a jjlace), am held and 
 firmly bound to {creditor), of (such a place), in the 
 penal simi of 1,000/. of laA\^d money of Great Britain, 
 to be paid to the said {creditor), or to his certain attor- 
 ney, executors, administrators or assigns, for which pay- 
 ment to be well and tridy made I bind myself, my heirs, 
 executors and administrators, and every of them, firmly 
 by these presents. Sealed with my seal. Dated this 
 1st day of January, 1848." In both of the above cases 
 it Avill be observed that the executors and administrators 
 were bound as well as the heirs. This, however, was 
 not absolutely necessaiy, and the covenant or bond 
 woidd have been equally effectual if the hehs only had 
 been named in it (A). 
 
 A bond in the form above mentioned, without any single bond, 
 addition to it, was called a single bond. Bonds, how- 
 ever, had usually a condition annexed to them, that, on 
 the person bound (called the obhgor) doing some speci- 
 fied act (as paying money when the bond was to secure 
 the payment of money), the bond should be void. The Bond ^ath 
 condition of an ordinary money-bond was as follows : ^^^ ^ ^°^' 
 " The condition of the above-wi-itten bond or obligation 
 is such, that if the above-bounden {debtor), his heirs, 
 executors or administrators, shovdd pay unto the said 
 {creditor), his executors, administrators or assigns, the 
 fuU sum of 500/. {usually half the amount named in the 
 penalty) of lawful money of Great Britain, with interest 
 for the same after the rate of 51. per cent, per annum, 
 
 upon the day of now next ensuing, without 
 
 any deduction or abatement whatsoever, then the above- 
 
 Avritten bond or obhgation shall be void, otherwise the 
 
 (7i) Co. Litt. 209 a; BarUr v. Fox, 2 Wms. Saund. 136.
 
 108 
 
 OF CHOSES IN ACTIOX. 
 
 same shall remain in full force." Bonds -n-itli conditions 
 of this kind were long in use. In former times, when 
 the condition was forfeited, the whole penalty was 
 recoverable {i). Equity subsequently interfered, and 
 prevented the creditor from enforcing more than the 
 amount of the damage which he had actually sustained. 
 The courts of law at length began to follow the example 
 of the com-ts of eqnity ; and according to a course of 
 proceeding, of which there are many examples in the 
 history of our law, the legislature more tardily adopted 
 the rules Avhich had abeady been acted on in the courts ; 
 and by a statute of the reign of Queen Anne it was pro- 
 vided, that, in case of a bond Adth a condition to be void 
 upon payment of a lesser sum, at a day or place certain, 
 the payment of the lesser sum with interest and costs 
 should be taken in fidl satisfaction of the bond, though 
 such payment were not strictly in accordance with the 
 Creditor could condition (J). But if the arrears of interest should have 
 more *than the accumulated to Such an amount as, together with the 
 penalty. principal, to exceed the penalty of the bond, the creditor 
 
 coidd claim no more than the penalty either at law (k) 
 Except in spe- or in equity (/). If, however, there were special circum- 
 stances in the creditor's favour, as if he had a mort- 
 gage also for the principal and interest (m), or if the 
 debtor had been delaying him by vexatious proceed- 
 ings (/?), equity would then have aided him to the frdl 
 extent of his demand (o). 
 
 cial circum- 
 stances. 
 
 (i) Litt. s. 340. 
 
 {j) Stat. 4 & 5 Anne, c. 16, ss. 
 12, 13. See 3 Bur. 1373; 2 Bla. 
 Com. 341; Smit7i v. Bond, 10 
 Bing. 125; S. C. 3 Moo. & Scott, 
 528; James v. Thomas, 5 Bam. & 
 Adol. 40. 
 
 (A-) Wild V. Clarlison, 6 T. R. 
 303. 
 
 (Z) Clarle v. Seton, G Ves. 411; 
 Hughes V. Wijnnc, 1 My. & 
 
 Keen, 20. 
 
 (ot) Clarlie v. Lord Ahingdon, 
 17 Ves. 106. 
 
 (n) Granty. Grant, 3 Sim. 4.30. 
 
 (o) 6 Ves. 416. By the Stamp. 
 Act, 13 & 14 Vict. c. 97, bonds 
 and covenants for the payment of 
 any definite and certain sum of 
 money are, ■with some exceptions, 
 charged with an ad valorem duty 
 of one-eighth per cent, or half-a-
 
 OF DEBTS. 109 
 
 Bonds were frequently given, not only for securing the Bonds for per- 
 
 „ . , 1x1 VI formance of 
 
 payment of money on a given day, but also with con- agreements. 
 
 ditions to be void on the performance of many other acts 
 agreed to be done, or on the payment of money by in- 
 stalments. In such cases the law formerly was, that on 
 the breach of any part of the condition, the whole penalty 
 became due ; and judgment and execution might be had 
 thereon, subject only to the control of a coiu't of equity 
 on application to it for relief. But subsequently in such Assi^mment of 
 cases the obligee (or person to whom the bond is made) 
 was required in bringing his action to state or assign 
 the breaches which had been made by the obligor (^j) ; 
 and although judgment was still recovered for the Avhole 
 penalty, execution of such judgment was allowed to issue 
 only for the damages in respect of the breaches actually 
 committed ; and the judgment remained as a fiirther 
 security for the damages to be sustained by any future 
 breach {q). But now, since bonds and covenants have 
 been deprived of all priority in administration, they will 
 gradually become obsolete. 
 
 crown per hundred pounds on the following table contained in the 
 
 money secured, according to the act: — 
 
 s. d. 
 
 Not exceeding £50 13 
 
 Exceeding ioO and not exceeding £100 2 6 
 100 „ 150 3 9 
 
 150 „ 200 5 
 
 200 „ 250 6 3 
 
 250 „ 300 7 6 
 
 And where the same shall exceed £300, 
 then for eveiy £100, and also for any 
 
 fractional part of £100 2 6 
 
 By Stat. 30 & 31 Vict. c. 90, s. 23, transfers of bonds are 
 
 generally subject to an ad valorem duty of sixpence for 
 
 every £100 and any fractional part of £100. 
 
 ( _?;) See the judgment of Parke, s. 8 ; Hardy v. Bern, 5 T. R. 636 ; 
 
 B.,in 6^;'ey V. i^Har, 15Q. B. 891, WiUoin/hhi/ v. Swinton, 6 East, 
 
 910; M7ieelhousev.Ladbrooke,'d 550; 1 Wms. Saund. 57, n. (1); 
 
 H. & N. 291. Hurstw. Jennings, 5 Bar. & Cress. 
 
 {q~) Stat. 8 & 9 Will. UI. c. 11, 650 ; S. C. 8 Dow. & Ry. 424.
 
 110 
 
 OF CHOSES IN ACTIOX. 
 
 Simple con- 
 tract debts. 
 
 Voluntary 
 bonds. 
 
 Voluntary 
 bonds and 
 covenants. 
 
 Bills and 
 notes. 
 
 The last and most numerous, tliougli least important, 
 class of debts in tlie eye of the law are debts by simple 
 contract, which are all debts not secm-edby the e\^dence 
 of a court of record, or by deed or specialty. On the 
 decease of the debtor, these debts were formerly pay- 
 able out of his personal estate, by his executor or ad- 
 ministrator, subsequently to all debts of record or by 
 specialty, except voluntary bonds, Avhich were payable 
 after all simple contract debts, but before any of the 
 legacies (r). But now, as we have seen, all simple con- 
 tract debts Avill be payable pari passu with debts seciu-ed 
 by specialty. Voluntary bonds and covenants under 
 seal will still be probably continued in use, inasmuch as 
 every deed imports a consideration (s), and an action at 
 law may consequently be brought upon a voluntary deed 
 which woidd not lie upon a mere voluntary contract. 
 But in administration voluntary bonds and covenants 
 will still be payable after other debts for valuable con- 
 sideration, whether specialty or simple contract. Debts 
 secured by bills of exchange and promissory notes have 
 no preference over the other simple contract debts of 
 the deceased (t). 
 
 Defects in the 
 law of debtor 
 and creditor. 
 
 Thus it will be seen that until recently there were, 
 according to the law of England, five principal kinds of 
 debts, namely, crown debts, judgment debts, specialty 
 debts in which the heirs were bound, specialty debts in 
 which the. heirs were not bound, and simple contract 
 debts. Each of these classes had a law of its o^vn, and 
 remedies of varying degrees of efficacy. According to 
 natural justice one would suppose that all creditors for 
 valuable consideration should have an equal right to be 
 paid ; or if any difference were allowed, that those who 
 could least afford to lose should be preferred to the others. 
 
 (?•) Lomas v. Wright, 2 My. & 
 Keen, 769 ; Watson v. Parker, 6 
 Beav. 283. 
 
 (s) Ante, pp. 87, 88. 
 (f) Yeoman v. Bradshaw, 3 
 Salk. 1G4.
 
 OF DEBTS. 1 1 1 
 
 Om* law, liowever, takes precisely tlie opposite coiu-se, 
 and, for reasons wliicli certainly illustrate the history of 
 England, gives to the crown, representing the public in 
 the aggregate, who can best afford to lose, a decided 
 preference over private creditors, whose loss may be 
 their ruin. Again, a debt admitted without dispute 
 gives the creditor far less advantage than a debt which 
 has been contested and decreed to be paid by the judg- i^ ^ ., 
 ment of a court of record. The proper function of a fr:rv_J^£ , 
 coui't of judicature would seem to be the settlement of 
 disputes. In our law, however, the judgment of the 
 court is permitted to be made use of not only to settle 
 contested claims, but also as a better security for money 
 admitted to be due. The reason of this perversion of 
 the proper end of a judgment has been the superior 
 advantages possessed by a creditor having a judgment 
 in his favour. So long, however, as the court exercises 
 its legitimate function of deciding on contested claims, 
 there seems to be no reason why a debt established by 
 the decision of the court should have any preference 
 over one wliich has never been disputed. If this were 
 the case, the use of judgments as mere secimties, by 
 collusion or agreement of the parties, would at once 
 fall to the ground ; and an end would be put to a very 
 " fruitful source of litigation and fraud. Practically there 
 are but two reasons why payment of a debt is withheld, 
 namely, either because the debtor, though able to pay, 
 doubts his liability, or because he is unable to pay, 
 though he knows he is liable. In the first case an 
 action at law decides the question ; but the judgment 
 given by the court in exercise of its proper function is 
 scarcely ever folloAved by the taking out of execution. 
 The debt being established, the debtor pays it, and the 
 judgment is immediately satisfied. The creditor has 
 the advantage of the decision of the coiu't, but he has 
 no occasion for any of those extraordinary remedies to 
 which his position as a judgment creditor entitles him.
 
 112 OF CHOSES IX ACTION. 
 
 If, lioweyer, the debtor is unable to pay, judgment is 
 obtained merely for the sake of its fruit. The creditor 
 endeavours, by suing out an execution, to obtain an 
 advantage over other creditors, who may not have put 
 themselves and the debtor to the same trouble and 
 expense. But inability to pay one debt is prestmiptive 
 e\ddence of inability to pay others ; and when a man is 
 unable to pay all his creditors in full, it is time that a 
 distribution should be made of his property amongst his 
 creditors rateably. The extraordinary pri\Tleges con- 
 ferred on a judgment creditor seem, therefore, in most 
 cases, practically to end in an undue preference of a 
 pressing creditor over others who have as good a right 
 to be paid. With respect to the three last classes of 
 debts, namely, debts by specialty in which the heirs were 
 bound, those in which the heirs were not bound, and 
 simple couti-act debts, the distinctions between them 
 serve principally to mark the steps of the struggle by 
 which the rights of creditors have at length been ob- 
 tained. The trophies of a victory so hardly won can 
 scarcely be expected to present a very orderly appear- 
 ance. The rights of these creditors accordingly varied 
 with the accident of the death of the debtor, with the 
 proportion which his real estate might have borne to his 
 personalty, and vnih the circumstance of his haAang or 
 not having charged his real estate by his will with the 
 pa}Tneut of his debts ; although, as we shall see, he 
 could bring them all to a level by becoming a bankrupt 
 if he pleased. It was sm-ely time that the law of debtor 
 and creditor shovdd be placed upon some more simple and 
 Much has now reasonable footing. This has now been done to a great 
 been done. extent, SO far as judgments are concerned, by a pro- 
 vision in the Banki-uptcy Act, 1861 (m), by which, as 
 we have seen, the seizm-e and sale of the goods of a 
 trader debtor, on an execution for a sum exceeding fifty 
 
 00 Stat. 24 & 25 Vict. c. 134, s. 73.
 
 OF DEBTS. 113 
 
 pounds, Avas made an act of bankruptcy. And this, 
 though now repealed (^x), has been re-enacted by the 
 Bankruptcy Act, 1869 (y), with respect to sums not 
 less than fifty pounds. The act which has placed 
 specialty and simjole contract creditors on the same 
 footing at the debtor's decease (z) is an important fiir- 
 ther step in the right direction. Further improvements. Suggested im- 
 however, might still be made. There seems no reason P^*^^^"^^" ■^• 
 why claims for dilapidations made by a succeeding in- 
 cumbent against the personal representatives of his pre- 
 decessor should rank subsequently to all other debts 
 instead of rateably with them («), nor why a debt for 
 rent should have priority in payment out of the personal 
 estate of the deceased tenant over his other just debts (b)-, 
 and with regard to Crown debts and judgment debts 
 the author's opinion has already been expressed. 
 
 The next subject which claims our attention is that Interest on 
 of interest upon debts. The absurd prejudice which ^ ^' 
 anciently caused interest, under the name of usury, to 
 be considered unlawflil, retained some hold upon our 
 law long after the taking of interest was rendered lawful 
 by act of parliament (c). In ordinary cases a debtor 
 was allowed to withhold payment of his debt, without 
 being obliged to give to his creditor the poor recom- 
 pense of interest on the money he was making use of 
 for his own benefit. For until recently it was a general 
 rule of law, that interest was not payable on any debts, 
 whether by specialty or simple contract, unless expressly 
 agreed on, or miless a promise could be implied from 
 the usage of trade or other circumstances, or unless the 
 debt were secured by a bill of exchange or promissory 
 note, which, being mercantile securities, always carried 
 
 (ar) Stat. 32 & 33 Vict. c. 83. {a) Ante, p. G9. 
 
 (y) Stat. 32 & 33 Vict. c. 71, (b) Ante, p. 105. 
 
 s. G, par. (5). (c) Stat. 37 Hen. VIII. c. 9. 
 
 {x) Stat. 32 & 33 Vict. c. 46. See ante, p. 5. 
 
 W^P.P. I
 
 114 OF CHOSES IN ACTION. 
 
 interest (f/). But in equity interest was more frequently 
 allowed (e). And now, by an act of King William the 
 Fourth (y*), interest is recoverable on all debts payable 
 by virtue of any ^vritten instrument, at a certain time, 
 fi'om the time when such debts were payable, or if pay- 
 able otherwise, then from the time when demand of 
 payment shall have been made in writing, so as such 
 demand ffive notice to the debtor that interest wiU be 
 claimed from the date of such demand until the time of 
 payment. 
 
 Sureties. The payment of a debt is sometimes secured by a 
 
 surety, who makes himself liable, together wath the prin- 
 cipal debtor, for the payment. If the surety should pay 
 the debt, he will become the creditor of the principal 
 debtor for the amount ; but although the debt paid 
 should have been secured to the original creditor by the 
 bond luider seal of the debtor and his surety, the surety 
 having paid the debt, would until recently have become 
 the simple contract creditor only of the principal debtor ; 
 unless he should have taken the precaution to pro- 
 cure from such debtor a counter-bond for his own in- 
 demnity (^). The surety, however, would have been 
 entitled to the benefit of all collateral securities which 
 the creditor, whom he had repaid, held for the debt ; 
 but he was not to be entitled to the original bond exe- 
 cuted by the debtor, because that was at an end by the 
 very fact of the payment {Ji). In the words of Lord 
 Brougham (z), the court admitted the surety's right, as 
 
 (<Z) Higgins v. Sargent, 2 Bam. 578. 
 
 & Cress. 348; S. C. 3 Dow. & Ry. ig) Copis v. Middleton, Turn. 
 
 613; Foster v. Weston, 6 Bing. & Russ. 224. 
 
 709; Page \. Nemman,2 1^&nx. & (^0 Turn. & Euss. 231; Don-- 
 
 Cress. 378. ^W^'^ ^- Bourne, 2 You. & Coll. 
 
 (e) See Lowndes v. Collins, 17 462 ; Jones v. Davids, 4 Russ. 
 
 Ves. 27; 2 Fonb. Eq. 429; C. P. 277; Cavlfield v. Maguire, 2 
 
 Cooper, 246 et seq. Jones & Lat. 164, 168. 
 
 (/) Stat. 3 & 4 Will. IV. c. 42, (i) Hodgson v. Shaw, 3 My. & 
 
 ss. 28, 29; Hyde v. Price, 8 Sim. Keen, 183, 194.
 
 OF DEBTS. 115 
 
 against the principal debtor, to stand in tlie slices of 
 the creditor, but said there were no shoes for him to 
 stand in. But by a recent enactment every surety who New enact- 
 pays a debt is now entitled to have assigned to him "*®^ ' 
 every judgment, specialty or other seciu-ity which shall 
 be held by the creditor in respect of such debt, whether 
 such judgment, specialty or other security shall or shall 
 not be deemed at law to have been satisfied by the pay- 
 ment of the debt ; and such person shall be entitled to 
 stand in the place of the creditor and to use all the 
 remedies, and if need be and upon a proper indemnity 
 the name, of the creditor in any action to obtain from 
 the principal debtor indemnification for his loss; and 
 the payment made by the surety shall not be pleadable 
 in bar of any action or other proceeding by him {k). If Co-sureties, 
 there should have been more than one surety, any one 
 surety, pajdng the Avhole debt, is entitled, according to 
 the general principles of justice, to contribution fi-om 
 his co-sureties in equal shares, or if they shoidd have 
 been sureties to unequal amounts, then in proportion to 
 the respective amoimts to which they have made them- 
 selves liable (/). And the remedies given by the act 
 above mentioned are extended to co-sureties ; provided 
 that no co-surety shall be entitled to recover from any 
 other co-surety, by the means aforesaid, more than the 
 just proportion to which, as between those parties 
 themselves, such last-mentioned person shall be justly 
 liable (w). In equity, if any surety has become insol- 
 vent, the others must contribute rateably to the pay- 
 ment of the whole debt (w). But if the sm-ety has paid 
 no more than his own proportion of the debt he cannot 
 
 (h) Stat. 19 & 20 Vict. c. 97, Cress. 689; S. C. 9 D. & R. 701. 
 
 s. 5; LocMart v. Reillcy, 1 De (ot) Stat. 19 & 20 Vict. c. 97, 
 
 Gex & Jones, 464. s. 5. 
 
 (I) Deering v. Earl of Win- (w) Peter v. Rich, \ Cha. Eep. 
 
 Chelsea, 2 Bos. & Pul. 270, 272, 34 ; Hitchman v. Stewart, 3 
 
 273; Brown v. Lee, 6 Barn. & Dre\\T.7, 271. 
 
 I 2
 
 116 OF CHOSES IN ACTION. 
 
 obtain coutribvition from any of tlie otliers(o) ; nor will 
 contribution be allowed when the suretyship of one per- 
 son is a distinct transaction from that of the others ( p). 
 Discharge of A surety, however, may be discharged fr-om his Hability 
 surety. ]^y ^j^g conduct of the creditor. As surety he has made 
 
 himself hable only for the payment of a particular debt 
 at a given time, or vmder certain given cfrcumstances. 
 If therefore the creditor, by any subsequent arrange- 
 ment with the principal debtor, preclude himself fr-om 
 demanding payment of his debt at the time or under 
 the cu-cumstances originally agreed on, the surety will 
 be at once discharged fr-om all habihty (</). Thus if 
 the creditor bind himself to give fiu-ther time for pay- 
 ment to the principal debtor (r), or compovrnd with 
 him, without expressly reserving his remedy against 
 the sm-ety {s), the surety will be discharged. But the 
 acceptance by the creditor fr-om the principal debtor of 
 a new and independent security for the debt \\all not 
 discharge the sm-ety (^). Neither will the surety be 
 discharged by the mere neglect of the creditor to en- 
 force payment of the debt from the principal debtor at 
 the time of its becoming due (?^) ; nor by the creditor's 
 
 (o) Ex parte Gifford, 6 Ves. M. & G. 679; Bailey y. Edwards, 
 
 807; Davies v. Humphreys, 6 4 Best & Smith, 761. 
 
 Mee. & Wels. 153, 168, 169. (s) Ex parte Gifford, 6 Ves. 
 
 (^) Coope V. Tivyman, T. & 807; Ex parte Carstairs, Buck, 
 
 Rnss. 426; Craythorne v. Sn-in- 560; Maltly v. Carstairs, 7 Bar. 
 
 inrne, 14 Ves. 160; Pendlehnry v. & Cress. 737; S. C. 1 Man. & Ry. 
 
 Walker, 4 You. & Coll. 424. 549; Thompson v. Lack, 3 C. B. 
 
 {q) Calvert v. London Doch 540; OnenY. Homan,4:\i.o\xs,Qoi 
 
 Company, 2 Keen, 638; Heath v. Lords Cases, 997; Close v. Close, 
 
 Key, 1 Y. & Jerv. 434; Nicholson 4 De Gex, M. & G. 176; WeU v. 
 
 V. Revill, 4 Ad. & Ell. 675, 683; Hewitt, 3 Kay & John. 438; 
 
 Blahe v. White, 1 You. & Coll. Boaler v. Mayor, 19 C. B., N. S. 
 
 420; Bowser v. Cox, 4 Beav. 879; 76. 
 
 6 Beav. 110; and see Squire v. (t) Bell v. Banhs, 3 Man. & 
 
 Whitton, 1 H. of L. Cases, 333. Gr. 258. 
 
 (r) Samnelv.Horvarth, S'Sleriv. (?/) Eyre y. Everett, 2 Russ. 
 
 272; Eyre v. Bartrop, 3 Madd. 381; Peely. Tatlock, 1 B. & P. 
 
 221; Mossy. Hall, 5 Ex. Rep. 46; 419. 
 Davies v. Stainhanh, 6 De Gex,
 
 OF DEBTS. 117 
 
 express agreement to give time to the principal debtor, 
 if such agreement fail in any of the requisites of a bind- 
 ing contract {x). 
 
 We noAv approach the subject of the alienation of Alienation of 
 debts, to which some reference has already been made. 
 We have seen that a debt was anciently considered as a 
 mere right to bring an action against the debtor, and as 
 such was incapable of being transferred (y). In process 
 of time, however, an assignment of a debt was permitted 
 to take place by means of an authority from the creditor 
 to his assignee to sue the debtor in the creditor's name. 
 This authority is usually called a poiver of attorney, Power of 
 which need not be by deed, but may be by writing un- * o^^^y- 
 sealed (r), or even by parol (a) ; and when a debt is a 
 legal debt, recoverable only in a court of law, it cannot 
 be effectually assigned ■\^dthout such a power. The 
 assignment of debts by means of powers of attorney is 
 now recognized and protected by the courts of law. 
 Thus in a case where the original creditor became bank- 
 rupt after he had assigned his debt, it was held that an 
 action against the debtor might still be properly brought 
 in the name of such original creditor, by virtue of the 
 power of attorney which he had given to his assignee ; 
 although, if no assignment had been made, the assignees 
 of the creditor under the bankruptcy would have been 
 the proper parties to sue {b). So if a power of attorney 
 be given on an assignment of a debt for a valuable con- 
 sideration, it is held to be irrevocable by the assignor (c). 
 AVhen a debt or demand is equitable only, that is of a 
 nature to be recoverable only in the Court of Chancery, 
 
 (a;) PMljwty. Briant, 4 Bing. (&) Winch v. Keeley, 1 T. R. 
 
 717; Tucker r. Laing, 2 Kay & 619; Parnham v. Hurst, 8 Mee. 
 
 John. 745. & Wels. 743. See De PotJionier \. 
 
 (y) Ante, p. 4. De Mattos, 1 E. B. & E. 461. 
 
 (2) nojvell V. ]\r leers, 4 T. R. (c) Walsh v. mutcoml), 2 Esp. 
 
 600. 565. 
 
 {a) Heath v. Hall, 4 Taunt. 326.
 
 118 
 
 OF CHOSES IX ACTION. 
 
 Life and sea 
 policies. 
 
 Notice to the 
 debtor. 
 
 it may be assigned without a power of attorney ; for 
 equity will allow the assignee to sue in liis own name. 
 The same pri\'ilege has recently been extended by Par- 
 liament to monies secured by policies of assurance of 
 hves (d), and also to policies of marine assurance (e) ; 
 and it is to be hoped that it may one day be extended 
 to every other legal debt. When a debt is assigned, 
 the title of the assignee is not complete imtil he has 
 given to the debtor notice of the assignment (f) ; for 
 the debtor, if he has had no notice of the assignment, 
 may lawfully pay his debt to the original creditor, and 
 will be effectually discharged by his receipt. 
 
 Bills and 
 notes. 
 
 Bills of exchange and promissory notes are, as we 
 have already seen (y), exceptions to the rule which re- 
 quires a power of attorney to enable the assignee to sue 
 the debtor for the debt assigned. The custom of mer- 
 chants was in ancient times sufficiently powerfld to 
 countervail in this respect the strictness of the common 
 law, and the holder of a bill of exchange Avas able to sue 
 upon it in his own name. By a statute of Anne (A), 
 promissory notes were made assignable or indorsable 
 over in the same manner as inland bUls of exchange 
 miofht be according to the custom of merchants. 
 
 Involuntary 
 alienation of 
 debts. 
 
 Debts, being formerly considered as mere rights of 
 action, could not be taken in execution on a judgment 
 obtained against the creditor. But when they are 
 secured by some cheque, bill, note, bond, specialty or 
 other security (i), the act for extending the remedies of 
 creditors against the property of debtors (^) provides 
 
 id) Stat. 30 & 31 Vict. c. 144. 
 
 (f) Stat. 31 & 32 Vict. c. 86. 
 (/) See jfost, the chapter on 
 
 Title. 
 
 (g) Ante, p. 4. 
 
 (A) Stat. 3 & 4 Anne, c. 9, 
 
 made perpetual by stat. 7 Anne, 
 c. 25. 
 
 (i) Harrison v. Paynter, 6 
 Mee. & Wels.387; Woody. Wood, 
 4 Q. B. 397. 
 
 (k) Stat. 1 & 2 Vict. c. 110, s. 
 12.
 
 OF DEBTS. 119 
 
 that under the Avrit of Jieri facias (I) the sheriff may 
 seize not only money and bank notes, but also the secu- 
 rities above mentioned, and may sue upon them in his 
 own name on the arrival of the time of payment ; but 
 the sheriff is not bound to sue, unless indemnified in 
 the manner prescribed by the acts from the costs of the 
 action. And the Common LaAv Procedure Act, 1854, Common Law 
 now enables the coiu't or a judge to order the examina- fg'^^^^^'"^ '^^^' 
 tion of any judgment debtor as to any and what debts 
 are owing to him (?«) ; and a judge may, on the applica- 
 tion of the judgment creditor, either before or after such 
 examination, order that all debts owing from any third 
 person (in the act called the garnishee) to the judgment 
 debtor shall be attached to answer the judgment debt (n). 
 And pajTuent made by the garnishee, or execution levied Garnishee. 
 ujjon him under the provisions of the act, for the amoimt 
 of his debt, is a valid discharge to him as against the 
 judgment debtor to the amount paid or levied, although 
 such proceedings may be set aside, or the judgment 
 reversed (o). And the Common Law Procedure Act, Common Law 
 1860, fm-ther jorovides that if it be suggested by the Procedure Act, 
 garnishee that the debt sought to be attached belongs to 
 some third person who has a lien or charge upon it, the 
 judge may order such third person to appear before him, 
 and may order execution to issue to levy the amount 
 due fi-om such garnishee, or the judgment creditor to 
 proceed against the garnishee ; and he may bar the 
 claim of such third person, or make such other order 
 as he shall think just {p). 
 
 In the event of bankruptcy, the assignees of the Bankruptcy, 
 bankrupt Avere empowered to sue for debts owing to him 
 
 (Z) See ante, p. 51. s. 65. See Holmes v. Tutton, 5 
 
 {VI) Stat. 17 & 18 Vict. c. 125, E. & B. 65. 
 s. 60. 0^) Stat. 23 & 21 Vict. c. 12G, 
 
 ill) Ibid. s. 61. ss. 28-31. 
 (o) Stat. 17 & 18 Vict. c. 125,
 
 120 
 
 OF CHOSES IN ACTION. 
 
 Payment of 
 debts. 
 
 Payment of 
 smaller sum 
 no satisfaction 
 of larger. 
 
 Appropriation 
 of payments. 
 
 in their own names for tlie benefit of liis creditors {q). 
 And now by tlie Bankruptcy Act, 1869 (r), a trustee 
 of a bankrupt may sue and be sued by the official name 
 of " The trustee of the property of A. B., a bankrupt." 
 And any person, to whom anything in action belonging 
 to the bankrupt is assigned in pursuance of that act, 
 may bring or defend any action or suit relating to such 
 thing in action in his own name (s). 
 
 We have now to consider the pajTnent of debts. 
 And, in the first place, the payment of a smaller sum 
 is no satisfaction of a larger one, unless there be some 
 consideration for the reHnquishment of the residue (t), 
 such as the payment at an earlier time than the whole 
 is due (m), or the concurrence of some (a;) or all of the 
 other creditors of the debtor in accepting a composi- 
 tion (y). But it seems that the acceptance of a nego- 
 tiable security for a small amount may be a good satis- 
 faction for a larger debt (z) ; and the payment of a small 
 sum may be a good satisfaction for an unliquidated 
 demand for large pecuniary damages, on account of the 
 uncertainty of such a claim (a). When a less sum is 
 paid to the creditor than the Avliole amount of his de- 
 mands, it is competent to the debtor to make the pay- 
 ment in satisfaction of any demand he may please, and 
 the creditor must appropriate the pajTnent accord- 
 
 ed) Stat. 12 & 13 Vict. c. 106, 
 s. 141, repealing stats. 6 Geo. IV. 
 c. 16, s. 63, andl & 2 Will. IV. 
 c. 56, s. 25; and now repealed by 
 Stat. 32 & 33 Vict. c. 83. And 
 see Stat. 15 & 16 Vict. c. 76, s. 142, 
 as to the bankruptcy of a plain- 
 tiff in an action at law. 
 
 (r) Stat. 32 & 33 Vict. c. 71, 
 ss. 22, 83, par. (7). 
 
 («) Sect. 111. 
 
 (i) Curribery. Wane, 1 Strange, 
 425 ; S. C. 1 Smith's Leading 
 
 Cases, 146; Fitch v. Sutton, 5 
 East, 230. 
 
 («) Co. Litt. 212 b. 
 
 («) Norman v. Thomi)son, 4 
 Ex. Rep. 755. 
 
 (y) Reay v. Richardson, 2 Cro. 
 Mee. & Rose. 422; Pfleger v. 
 £ro)vne, 28 Beav. 391. 
 
 (z) Slbree v. Tripp, 15 Mee. & 
 Wels. 23. 
 
 («) Wilhinson v. Byers, 1 Ad. 
 & Ell. 100.
 
 OF DEBTS. 121 
 
 inglj {b); but if the payment be made generally, with- 
 out any express appropriation, the creditor may elect, at 
 the time of payment (c), or witliin a reasonable time 
 after (d), to appropriate the money to whichever demand 
 he may please. And if no election as to the appropria- 
 tion of the payment should be made on either side, the 
 law will, in ordinary cases of cun-ent accounts, presume 
 that the first item on the debit side is discharged or 
 reduced by the first payment entered on the credit side, 
 and so on in the order of time (e). When the debt 
 carries interest, the payment is considered to be applied 
 in the first place in discharge of the interest then due, 
 and the surplus, if any, in discharge p?'o tanto of the 
 principal. For no creditor would apply any payment 
 to the discharge of part of the principal, which carries 
 interest, instead of to the discharge of interest for which, 
 when due, no further interest is payable (/). 
 
 When a person becomes so embarrassed as to be im- Composition 
 able to pay all his debts in fiill, he usually endeavours to 
 enter into a composition with his creditors, prevailing 
 on them to accept so much in the pound, and to allow 
 a given time for payment. In this case a letter of licence 
 is generally given by the creditors, by wliich they cove- 
 nant not to take any proceedings for their debts in the 
 meantime ; and this hcence is frequently embodied in a 
 deed of inspectorship, by which certain inspectors are ap - , '' * j' • *^^ 
 pointed to watch the winding-up of the debtor's affair's"^ i." «. ' u u 
 on behalf of the creditors. The payment of the com- 'j < & ''re- 
 position is sometimes guaranteed by some friends of the , 
 debtor as his sureties, and when pajonent is made, a" . * — '" "if^— II*' 
 
 {b) Shaw V. Picton, i Barn. & & Cress. 65. ^ ^ ^.^ 
 
 Cress. 715; JVash\. Hodffson,Jjd. (e) 1 Meriv. 608 ; Williams v. 
 
 C. & Lds. Justices, 1 Jur., N. S. Rawlinson, 10 J. B. Moore, 362; 
 
 'J46 ; 6 De Gex, M. & G. 474. Merriman v. Ward, 1 John. & H. 
 
 (c) Devaynes v. Noble, 1 Mer. 371. 
 604. (/ ) Bower v. Marris, 1 Cr. & 
 
 (fZ) Simson v. Ingham, 2 Bam. Phi. 351, 355.
 
 122 OF CHOSES IN ACTION. 
 
 release of all demands is given by the creditors. If, 
 however, the composition should not be punctually paid, 
 the creditors ^-ill no longer be restrained from proceed- 
 ing to enforce the flxll payment of then* debts {g). Such 
 creditors as hold secm'ity for then- debts should openly 
 stipulate that then- securities are not to be affected; and 
 such a stipidation vr\)l be sufficient to preserve them (Ji). 
 But any secret agreement between the debtor and a 
 creditor, by which he is to have any advantage over the 
 others, in order to induce him to agree to the composi- 
 tion, is evidently a fraud on the other creditors, and as 
 such is absolutely void (?), and prevents the creditor 
 who is party to it fr-om suing for his share in the com- 
 position (Ji). 
 
 Bankruptcy The Bankruptcy Act, 1861 (/), provided, that every 
 
 Act, 1861. (Jeed, insti-ument or agreement whatsoever, by which 
 a debtor, not being a banki-upt, conveyed, or covenanted 
 or agreed to convey his estate and effects, or the prin- 
 cipal part thereof, for the benefit of his creditors, or 
 made any arrangement or agi-eement with his creditors, 
 or any person on their behalf, for the distribution, in- 
 spection, conduct, management or winding-up of his 
 affairs or estate, or the release or discharge of such 
 debtor fi'om his debts or liabilities, should, within 
 twenty-eight days from and after the execution thereof 
 by such debtor, or within such frirther time as the Court 
 
 (^) Cranley v. Hillary, 2 Mau. Coll. 424; Alsager v. Spalding, 4 
 
 & Selw. 120. N. C. 407; Higgins v. Pitt, 4 Ex. 
 
 (7i) jVichols V. 3Ior7'is, 3 Bam. Rep. 312 ; Pfleger v. Browne, 28 
 
 & Adol. 41; Ex parte Glendin- Beav. 391; Mare v. Warner, 3 
 
 ning, Buck, 517; Lee v. LocMavt, Giff. 100; Mare v. Earle, 3 Giff. 
 
 3 Mylne & Craig, 302 ; Culling- 108. 
 
 worth Y. Lloyd, 3 Beav. 385, and {k) Hoivden v. Haigh, 11 Adol. 
 
 the cases collected, p. 395 ; Bush & Ell. 1033; Ex parte Oliver, 4 
 
 V. Shipman, 14 Sim. 239. De Gex & Smale, 354. See At- 
 
 (i) Leicester v. Rose, 4 East, kinson v. Denhy, 7 H. & N. 934. 
 
 372; Knight Y. Hunt, oBing. 432; (?) Stat. 24 & 25 Vict. c. 134, 
 
 Pendlehury v. Walker, 4 You. & s. 194.
 
 OF DEBTS. 123 
 
 in London should allow (?/«), be registered in the Court 
 of Bankruptcy ; and in default thereof should not be 
 received in e%Tidence. And every such deed, on being 
 so registered as aforesaid, shoidd have a memorandum 
 thereof written on the face of such deed, stating the 
 day and the hour of the day at which the same was 
 brought into the office of the Chief liegistrar for regis- 
 tration (w). But this act has now been repealed (o). Now repealed. 
 
 In some cases an assignment of the debtor's estate Assignment 
 
 and effects was made to trustees for sale and conversion *° trustees for 
 
 creditors void 
 into money, to be di\aded rateably amongst the ere- as an act of 
 
 ditors. As however this is the process adopted by the ^^'^"^P '^^• 
 law in cases of bankruptcy, where it is carried on under 
 judicial sanction, the law considered that such an assign- 
 ment of the whole of the estate of the debtor was an 
 act of bankruptcy, and as such void, if there were any 
 creditor or creditors Avho had not concurred in it of 
 sufficient amount to sue out a petition for adjudication 
 of bankruptcy {p). And now the Bauki-uptcy Act, 
 1869(5-), has expressly made the following act, amongst 
 others, an act of bankruptcy, viz. that the debtor has, 
 in England or elsewhere, made a conveyance or assign- 
 ment of his property to a trustee or trustees for the 
 benefit of his creditors generally. An exception to Exception 
 this rule was formerly made, if a petition for adjudica- formerly made. 
 tion of bankruptcy did not issue within three calendar 
 months from the execution of such a deed by any trader, 
 provided the deed were executed by every trustee within 
 fifteen days after the execution thereof by the trader, 
 and that the execution by such trader and by every 
 
 {m) Wishart v. Fowler, 4 Best 17 Ves. 193, 199; Powell v. Lloyd, 
 
 & Smith, 674. 2 You. & Jen-. 372 ; Ex jJarte 
 
 (/i) Sect. 196 ; Stamjery. Miller, Philpott, Court of Review, 10 Jur. 
 
 Ex. 11 Jur., N. S. 1005. 717. See post, the chapter on 
 
 {0) Stat. 32 & 33 Vict. c. 83. Bankruptcy of Traders. 
 
 iP) Tappenden v. Burgess, 4 (i?) Stat. 32 & 33 Vict. c. 71, 
 
 East, 230; Button v. Morrison, s. 6, par. (1).
 
 124 
 
 OF CHOSES IN ACTIOX. 
 
 Deed to l>e 
 registered. 
 
 Stamp duty. 
 
 such trustee were attested by an attorney or solicitor ; 
 and provided that notice were given within one month 
 after the execution thereof by such trader in the London 
 Gazette and two London daily newspapers, if he resided 
 in Loudon or within forty miles of it ; or in the London 
 Gazette, one London daily newspaper, and one provincial 
 newspaper published near to such trader's residence, if 
 he did not reside Avithin forty miles of London, and 
 such notice was required to contain the date and exe- 
 cution of the deed, and the name and place of abode 
 respectively of every such ti'ustee and of such attorney 
 or soHcitor (r). But every such deed was required to 
 be registered, as we have seen, in the Court of Bank- 
 ruptcy (5), and to be stamped, in addition to the ordinary 
 stamp duty, with a stamp denoting a duty computed at 
 the rate of five shillings upon every hundred pounds, or 
 fraction of a hundred pounds, of the sworn or certified 
 value of the estate or effects comprised in or to be 
 collected or distributed under such deed or instrument ; 
 provided, that the maximum of ad valorem duty payable 
 in respect of any such deed or insti-ument should be 
 two hundred pounds (^). But these enactments are now 
 repealed (/<), and no exception is admitted to the rule, 
 that every conveyance of a debtor's property to trustees 
 for his creditors generally is an act of bankruptcy. 
 
 Arrangements 
 by deed. 
 
 The Banki-upt Law Consolidation Act, 1849, con- 
 tained provisions by which deeds of arrangement be- 
 tween a trader and his creditors, signed by six-sevenths 
 in number and value of those creditors whose debts 
 amounted to ten pounds and upwards, were binding on 
 all the creditors (:?;). These provisions were repealed 
 
 (r) Stat. 12 & 13 Vict. c. 106, 
 s. 68, repealing stat. 6 Geo. IV. c. 
 16, s. 4. 
 
 (s) Stat. 24 & 25 Vict. c. 134, 
 s. 294, ante, p. 122. 
 
 (t) Sect. 195. 
 
 (?0 Stat. 32 & 33 Vict. c. 83. 
 (x) Stat. 12 & 13 Vict. c. 106, 
 s. 224.
 
 OF DEBTS. 125 
 
 by the Bankruptcy Act, 1861 (y), which substituted 
 foi* them other enactments, which applied to all debtors, 
 whether traders or not. These enactments have been 
 themselves repealed by the Bankruptcy Repeal and In- 
 solvent Court Act, 1869 (z) ; but as some knowledge of 
 their provisions will for some time be practically neces- 
 sary, it may be desirable to state them shortly. Every 
 deed between a debtor and his creditors, relating to his 
 debts or liabilities, and his release therefrom, or the distri- 
 bution, inspection, management and winding-up of his 
 estate, or any of such matters, was rendered binding 
 on all the creditors of such debtor, pro\dded the following 
 conditions Avere observed; that is to say, (1.) A majority 
 in number, representing three-fourths in value of the 
 creditors of such debtor, whose debts respectively 
 amounted to ten pounds and upwards, should, before 
 or after the execution thereof by the debtor, have in 
 writing assented to or approved of such deed or instru- 
 ment. (2.) If a trustee or trustees were appointed by 
 such deed or instrument, such trustee or trustees should 
 have executed the same. (3.) The execution of such 
 deed or instnmient by the debtor should have been 
 attested by an attorney or solicitor. (4.) Within 
 twenty-eight days from the execution of such deed or 
 instrument by the debtor, the same should have been 
 produced and left (having been first duly stamped) at 
 the office of the Chief Registrar, for the purpose of being 
 registered. (5.) Together with such deed or instru- 
 ment there should have been delivered to the Chief 
 Registrar an affidavit by the debtor, or some person 
 able to depose thereto, or a certificate by the trustee or 
 trustees, that a majority in number, representing tln^ee- 
 fourths in value of the creditors of the debtor whose 
 debts amounted to ten pounds or upwards, had in writing 
 assented to or approved of such deed or instrument ; 
 
 (y) Stat. 24 & 25 Vict. c. 134, (z) Stat. 32 & 33 Vict. c. 83. 
 
 s. 192.
 
 126 
 
 OF CHOSES IN ACTION. 
 
 and also stating tlie amount in value of the property 
 and credits of the debtor comprised in such deed. 
 (6.) Such deed or instiiiment should, before registra- 
 tion, bear such ordinary and ad valorem stamp duties 
 as were by the act provided («). (7.) Immediately on 
 the execution thereof by the debtor, possession of all 
 the property comprised therein, of which the debtor 
 coidd have given or ordered possession, should have 
 been given to the trustees (Z»). 
 
 The Banki'uptcy Amendment Act, 1868 (c), re- 
 quired statements to be added, containing particulars 
 (1) of the debts and habilities of the debtor, and (2) of 
 ■ the debtor's property and credits. It also contained 
 other provisions, which it is hardly necessary to state, 
 as this act also has been repealed by the Bankruptcy 
 Repeal and Insolvent Coiu't Act, 1869 {d). 
 
 The statutory The statutory form of conveyance for the benefit of 
 
 form of con- creditors, pro^aded by the Bankruptcy Act, 1861, con- 
 veyance aid ' J^ /. T T T 11- Tx £. 
 
 not release the tained no release of the debtor by his creditors ti-om 
 debtor. ^1^^.^. jg^^g^ ^^^ consequently could not be pleaded by 
 
 the debtor in bar to an action by a creditor for his 
 debt (e). If, hoAvever, a release by the creditors had 
 been inserted in the deed, or were the necessary effect 
 of its provisions, it was pleadable in bar to an action 
 by a non-assenting creditor (/). All the creditors of 
 the debtor, and not merely those who executed the 
 deed, ought to have been equally benefited by its pro- 
 
 (a) Stat. 24 & 25 Vict. c. 13-t, 
 s. 195. See ante, p. 124. 
 
 (5) Sect. 192. 
 
 (c) Stat. 31 & 32 Vict. c. 104. 
 
 id) Stat. 32 & 33 Vict. c. 83. 
 
 (e) Eyre v. Archer, 16 C. B. 
 N. S. 638; Jones v. Morris, Q. B. 
 11 Jur., N. S. 812; Clarke v. 
 
 V,'miams, Exch. Cham. 13 W. E. 
 923; 34 L. J., Ex. 189. 
 
 (/) Chapman v. Athinson, 4 
 B. & S. 722; ]niife?iead Y.Porter, 
 5 B. & S. 193; Garrod \. Simpson, 
 Ex. 11 Jm-., N. S. 227; Wills v. 
 Hacon, 5 B. & S. 196; Ben-hirst 
 V. Jofies, 3 II. & C. GO.
 
 OF DEBTS. ] 27 
 
 visions {g) ; and the deed must not have contained any 
 unreasonable stijDidation, by Avhich the non-assenting 
 creditors might have been prejudiced i^h). It was un- Unreasonable 
 reasonable if the executing creditors were paid down a stipulations. 
 comj)osition, which the non-assenting creditors had only 
 a covenant to pay {i) ; or even if the executing creditors 
 had the benefit of a covenant, of which the non-assentins" 
 creditors could not avail themselves (A). But it was Reasonable 
 held not unreasonable to empower the trustees of the stipulations, 
 deed to require persons claiming to be creditors to verify 
 their debts or claims by statutory declaration proved 
 before the commissioners of bankruptcy, or otherwise 
 as the trustees might think fit (/). Nor w^as it unrea- 
 sonable to give the trustees a discretion as to the sale 
 and management of the estate, or power to sell to the 
 debtor himself (?w), or a discretion as to the amount 
 and manner of payment of dividends, or as to the 
 enforcement of payment of debts. And the value of 
 securities held by creditors might reasonably have been 
 ascertained by valuers, or an umpire appointed in the 
 usual way(7?). Again, a covenant in a composition 
 deed not to sue the debtor for a limited time was not 
 
 (<7) Walter v. Adcoch, 7 H. & Potts, Exch. Cham. 12 W. R. 440. 
 
 "N. 54:1; -Ex jmrte Godden,!,. J., (i) Ux parte Cochhurn, Re 
 
 32 L. J., Bank. 37; Deivhirst v. Smitli, uhi svp. 
 
 AersJiaw, 1 H. &, C. 726; llderton (k) Benham v. Broadhurst ; 
 
 V. Castriqiie, 14 C. B., N. S. 99; Chesterfield and Midland Silh- 
 
 Ex 'parte CocMmrn, lie Smith, stone ColUei'y Comjmny , Limited , 
 
 L. C, 12 W. R., 184, 673; 10 Jur., v. Hawkins, iibi sup. And see 
 
 N. S. 573; Benham v. Broadhurst, Gresty v. GUson, 1 Law Rep., Ex. 
 
 3 H. & C. 472; Chesterfield and 112; Reeves v. Watts, Q. B. 12 
 
 3Udland Silkstone Colliery Com- Jur., N. S. 565. 
 
 pany, Limited, v. Hawkins, 3 H. {I) Coles t. Turner, Exch. 
 
 & C. 677. Cham. 1 Law Rep., C. P. 373. 
 
 ill) Woods y.Foote, 1 H. & C. (m) Greenherg v. Ward, C. P. 
 
 841; Inglehach v. mdiolls, 14 12 Jur., N. S. 524; 1 Law Rep., 
 
 C. B., N. S. 85 ; Killby v. Wright, C. P. 585. 
 
 18 C. B., N. S. 272; Nicholson v. («) Coles v. Turner, uhi sup.
 
 128 
 
 OF CHOSES IN ACTIOX. 
 
 unreasonable (o) ; nor was a power to revoke a letter 
 of licence given to tlie debtor (;j). In estimating the 
 requisite majority, secured as well as unsecured creditors 
 were requii*ed to be taken into account {q). But this 
 was altered by the Bankruptcy Amendment Act, 
 1868 (/•), wliich required that the amount diie to each 
 secured creditor, after deducting the value of his se- 
 curities on the debtor's property, shoidd alone be 
 reckoned. And the deed of composition was not re- 
 quired to provide for the distribution of the whole of 
 the debtor's estate amongst his creditors (5) as was re- 
 quired by the corresponding section of the Act of 
 1849(0- 
 
 Regulations as The Bankruptcy Act, 1869, now contains the follow- 
 to composition :^ provisions with respect to composition ^\\\\\ cre- 
 by creditors. i^ i. i -i 
 
 ditors (m) : — " The creditors of a debtor unable to pay liis 
 
 debts may, without any proceedings in bankruptcy, by 
 an extraordinary resolution, resolve that a composition 
 shall be accepted in satisfaction of the debts due to 
 them from the debtor. An extraordinary resolution of 
 creditors shall be a resolution which has been passed by a 
 majority in number and three-fourths in value of the cre- 
 ditors of the debtor, assembled at a general meeting to be 
 held in the manner prescribed, of which notice has been 
 
 (d) Hidson v. Barclay, 3 H. 
 & C. 361; WaUer v. Kevill, 3 H. 
 & C. 403. 
 
 {p) Walker v. Nevill, nbi snp. 
 
 (q) King v. Rendall, 14 C. B., 
 N. S. 721; Ex parte Godden, 1 
 De Gex, J. & S. 260; Turqitand 
 V. 3I0SS, 17 C. B., N. S. 15. 
 
 {r) Stat. 31 & 32 Vict. c. 104, 
 s. 3. 
 
 (s) lie Raivlings, L. J., 1 De 
 Gex, J. & S. 225; 9 Jnr., N. S. 
 316; Ex parte Morgan, L. C, 9 
 
 Jur., N. S. 559; 1 De Gex, J. & S. 
 283; Clapliam v. Atkinson, 4 B. 
 & S. 722. 
 
 {t) Tetleyr. Taylor, 1 E. &B. 
 521; Breio v. Collins, 6 Ex. Rep. 
 670; March v. Warwick, 1 H. & 
 N. 158; Macnaught v. Russell, 1 
 H. & N. 611 ; Irving v. Gray, 3 
 H. & N. 34 ; Bloomer \. Barkes, 
 2 C. B., N. S. 165; Crvger v. 
 Bunlop, 7 H. & N. 525. 
 
 (w) Stat. 32 & 33 Vict. c. 71, 
 s. 126.
 
 OF DEBTS. 129 
 
 given in tlie prescribed manner, and has been confirmed 
 by a majority in number and value of the creditors 
 assembled at a subsequent general meeting, of which 
 notice has been given in the prescribed manner, and 
 held at an interval of not less than seven days nor more 
 than fom',teen days fi-om the date of the meeting at 
 which such resolution was first passed. In calculating 
 a majority for the purposes of a composition under this 
 section, creditors whose debts amount to sums not 
 exceeding ten pounds shall be reckoned in the majority 
 in value, but not in the majority in number ; and the 
 value of the debts of secured creditors shall, as nearly as 
 circumstances admit, be estimated in the same way, and 
 the same description of creditors shall be entitled to vote 
 at such general meetings, as in bankruptcy. The debtor, 
 unless prevented by sickness or other cause satisfactory 
 to such meetings, shall be present at both the meetings 
 at which the extraordinary resolution is passed, and 
 shall answer any inquiries made of him, and he, or if he 
 is so prevented from being at such meetings some one 
 on his behalf, shall produce to the meetings a statement 
 shoAving the whole of his assets and debts, and the 
 names and addresses of the creditors to whom such 
 debts respectively are due. The extraordinary resolu- 
 tion, together with the statement of the debtor as to his 
 assets and debts, shall be presented to the registrar, and 
 it shall be his duty to inquire whether such resolution 
 has been passed in manner du*ected by this section, and 
 if satisfied that it has been so passed he shall forthwith 
 register the resolution and statement of assets and debts, 
 but until such registration has taken place such resolu- 
 tion shall be of no validity; and any creditor of the 
 debtor may inspect such statement at prescribed times, 
 and on payment of such fee, if any, as may be prescribed. 
 The creditors may, by an extraordinary resolution, add 
 to or vary the provisions of any composition previously 
 W.P.P. K
 
 130 OF CIIOSES IN ACTIOX. 
 
 accepted by them, without prejudice to any persons 
 taking interests under such provisions who do not 
 assent to such addition or variation; and any such 
 extraordinary resohition shall be presented to the regis- 
 trar in the same manner and with the same consequences 
 as the extraordinary resolution by which the composition 
 was accepted in the first instance. The provisions of 
 a composition accepted by an extraordinary resolution 
 in pursuance of this section shall be binding on all the 
 creditors whose names and addresses, and the amount 
 of the debts due to whom, are shown in the statement 
 of the debtor, produced to the meetings at which the 
 resolution has passed, but shall not affect or prejudice 
 the rights of any other creditors. Where a debt arises 
 on a bill of exchange or promissory note, if the debtor 
 is ignorant of the holder of any such bill of exchange or 
 promissory note, he shall be required to state the amount 
 of such bill or note, the date on which it falls due, the 
 name of the acceptor or person to whom it is payable, 
 and any other particulars witliin his knowledge respect- 
 ing the same, and the insertion of such particulars shall 
 be deemed a sufficient description of the creditor of the 
 debtor in respect of such debt, and any mistake made 
 inadvertently by a debtor in the statement of his debts 
 may be corrected after the prescribed notice has been 
 given, with the consent of a general meeting of his 
 creditors. The provisions of any composition made in 
 pursuance of this section may be enforced by the court 
 on a motion made in a summary manner by any person 
 interested, and any disobedience of the order of the 
 court made on such motion shall be deemed to be a 
 contempt of coiu-t. Kides of court may be made in 
 relation to proceedings on the occasion of the acceptance 
 of a composition by an extraordinary resolution of cre- 
 ditors, in the same manner and to the same extent and 
 of the same authority as in respect of proceedings in
 
 OF DEBTS. 131 
 
 bankrviptcy. If it appear to the court on satisfactoiy 
 e\ddence that a composition under this section cannot, 
 in consequence of legal difficulties, or for any sufficient 
 cause, proceed Avitliout injustice or undue delay to the 
 creditors or to the debtor, the com't may adjudge the 
 debtor a bankrupt, and proceedings may be had ac- 
 cordingly." 
 
 K 2
 
 J 32 OF CHOSES IN ACTION. 
 
 CHAPTER IV. 
 
 OF BAISTKRUPTCY OF TRADERS. 
 
 Under some circmnstances a debtor is discharged by- 
 law from his debt without any actual payment, or with- 
 out payment of more than a part of it. This occurs in 
 the case of bankruptcy. 
 
 The whole of the law of bankruptcy now depends on 
 the Bankruptcy Act, 1869 (a), to make way for which 
 all the previous bankruptcy acts have been repealed (b). 
 The former acts were the Bankruptcy Act, 1861 (c), 
 under wliich persons not in trade were for the first time 
 liable to become bankrupt, and the Banki-uptcy Act of 
 1849 {d), by which all the previous acts were repealed. 
 Of these the most important was the statute of 6 Geo. 
 IV. c. 16, "An Act to amend the Laws relating to 
 Bankrupts," which had been amended and altered by 
 various others (e), the provisions of which, with some 
 alterations, were consolidated in the Act of 1849. 
 
 Who are Traders were defined by the Act of 1 849 to be, aU alum 
 
 traders. makers, apothecaries, auctioneers, bankers, bleachers, 
 
 brokers, brickmakers, builders, calenderers, carpenters, 
 curriers, cattle or sheep salesmen, coach proprietors, cow 
 keepers, dyers, fi^illers, keepers of inns, taverns, hotels or 
 coffee houses, lime burners, livery stable keepers, market 
 
 («) Stat. 32 & 33 Vict. c. 71. 4 Will. 4, c. 47; 1 & 2 Vict. 
 
 {?>) By Stat. 32 & 33 Vict. c.llO; 2 Vict. e. 11; 2 & 3 Vict. 
 
 c. 83. c. 29; 5 & G Vict. c. 122; 7 & 8 
 
 (c) Stat. 24 & 25 Vict. c. 134. Vict. c. 9G; 8 & 9 Vict. c. 48; 
 
 (d) Stat. 12 & 13 Vict. c. 106. 10 & 11 Vict. c. 102; 11 & 12 
 
 (e) 1 & 2 Will. IV. c. 50; 3 & Vict. c. 8G.
 
 OF BANKRUPTCY OF TPwiDEllS. 133 
 
 gardeners, millers, packers, printers, shipowners, sliip- 
 wi-iglits, victuallers, warehousemen, wharfingers, scri- 
 veners receiving other men's monies or estates into their 
 trust or custody, persons insuring against perils of the 
 sea, and all persons using the trade of merchandise by 
 way of bargaining, exchange, bartering, commission, 
 consignment, or otherwise in gross or by retail, and all 
 persons who either for themselves, or as agents or factors 
 for others, seek their living by buying or selling, or by 
 buying and letting for hire, or by the workmanship of 
 goods or commodities. But no farmer, grazier, common 
 labourer, or workman for hire, receiver-general of the 
 taxes, or member of or subscriber to any incorporated 
 commercial or trading companies estabhshed by charter 
 or act of parliament, was to be deemed as such a trader 
 liable to become bankrupt (/). And this enumeration 
 has been repeated in the Bankruptcy Act, 1869, with 
 the addition of sharebrokers, stockbrokers and stock- 
 jobbers {f/). An attorney or solicitor, as such, is not a Attorney or 
 trader Avithin the bankrupt law; but if he is in the habit UabTe'as^uch. 
 of receiving his clients' money into his own hands and 
 investing it for them, and charging a compensation for 
 so doing, in addition to his charges for other professional 
 business, he will be liable to become bankrupt as a scri- 
 vener receiving other men's monies into his trust (A). 
 An alien or denizen is within the bankrupt law ; and Alien or deni- 
 
 so is a married woman carrying on trade for her separate ^^^' 
 
 . Married 
 
 use by the custom of London (z), or whilst her husband woman, 
 
 is undergoing sentence of transportation (k). But an Infant. 
 
 infant under the age of twenty-one years cannot be a 
 
 bankrupt, because by the law of England he cannot be 
 
 (/) Stat. 12 & 13 Vict. c. 106, also Wilkinsons. CandUsh, 5 Ex. 
 
 s. G6. Rep. 91, 97; Ex parte Dufaur, 2 
 
 iff) Stat. 32 & 33 Vict. c. 71, De Gex, M. & G. 246. 
 
 Schedule 1. (i) -E'.c ^;a?fe Carrington, 1 
 
 (7i) Malkin v. Adams, 2 Rose, Atk. 206. 
 
 2B; JbJa; parte BathfMont. 82,84, {k) Ex parte Franlts, 7 Bing. 
 
 where the cases are collected. See 7<;'>2 ; 1 M. & Scott, 1.
 
 134 
 
 OF CHOSES IN ACTIOX. 
 
 Act of bank- 
 ruptcy. 
 
 Lying in 
 prison. 
 
 Escape. 
 
 made liable on contracts entered into bj him in tlie 
 course of trade (/). 
 
 A person witliin the bankiiipt laws becomes bankrupt 
 by committing an act of bankruptcy . The following 
 acts, if done with intent to defeat or delay the creditors 
 of a trader, were acts of bankruptcy T\4thin the Act of 
 1849, namely, if any such trader should depart this 
 realm, or being out of this realm should remain abroad, 
 or depart fi-om his dweUing-house, or othenvise absent 
 himself, or begin to keep his house, or suffer himself to 
 be arrested or taken in execution for any debt not due, 
 or yield himself to prison, or suifer himself to be out- 
 lawed, or procure himself to be arrested or taken in exe- 
 cution, or his goods, monies or chattels to be attached, 
 sequestered or taken in execution, or make or cause to 
 be made, either within this realm or elsewhere, any 
 fraudident grant or conveyance of any of his lands, 
 tenements, goods or chattels, or make or cause to be 
 made any fraudident surrender of any of his copyhold 
 lands or tenements, or make or cause to be made 
 any fraudulent gift, delivery or transfer of any of his 
 goods or chattels (?n). It was also an act of bank- 
 ruptcy for a trader to lie in piison for debt for fourteen 
 days, or, having been committed or detained for debt, 
 to escape out of prison or custody. But the Bank- 
 ruptcy Act, 1861, pro\'ided that no debtor should be 
 adjudged bankrupt on the ground of having lain in 
 prison as aforesaid, unless, having been summoned, he 
 should not offer such securit}^ for the debt in respect of 
 which he was imprisoned or detained as the commissioner 
 or registrar, whose duty it Avoidd othen\ase be to adjudi- 
 
 {V) Bclton T. Hodges, 9 Bing. 
 365, 370. 
 
 (?ft) Stat. 12 & 13 Vict. c. 106, 
 s. 67; Ex parte Bland, 6 De 
 Gex, M. & G. 757; Johnson v. 
 Fesenmeyer, 25 Bear. 88; 3 De 
 
 Gex & Jones, 13; Pennell v. 
 Reynolds, 11 C. B., N. S. 709; 
 Ex parte Wensley, 1 De Gex, J. 
 & S. 273; Toj}pinfj v. Key sell, 16 
 C. B.,N. S. 258; Youngy. Fletcher, 
 3 H. & Colt. 732.
 
 OF BANKRUPTCY OF TRADERS. 135 
 
 cate, slioiild deem reasonably sufficient (??). Tlie act 
 for the abolition of imprisonment for debt (o) has now 
 rendered this provision unnecessary. And the Bank- 
 ruptcy Act, 1 8 6 9 ( /?), has siunmed up the above-mentioned 
 acts of bankruptcy in the following terms : — 
 
 (1.) That the debtor has, in England or elsewhere, 
 made a conveyance or assignment of his pro- 
 perty to a trustee or trustees for the benefit of 
 his creditors generally : 
 
 (2.) That the debtor has, in England or elsewhere, 
 made a fraudulent conveyance, gift, delivery, 
 or ti'ansfer of his property or of any part 
 thereof: 
 
 (3.) That the debtor has, mth intent to defeat or 
 delay his creditors, done any of the following 
 things, namely, departed out of England, or 
 being out of England remained out of England ; 
 or being a trader departed from his dwelling- 
 house, or otherwise absented himself; or begun 
 to keep house ; or suffered himself to be out- 
 lawed. 
 
 Most of the above acts of bankruptcy have been such 
 ever since a banki-upt was first defined by the statute of 
 EHzabeth " touching orders for bankrupts " (q). Bank- * 
 ruptcy was then considered as a crime, and the bank- 
 rupt was called " an offender " (?■). But in modem 
 times bankruptcy has been looked upon as the proper 
 remedy for a trader in embarrassed circmnstances. He 
 gives up all his property to his creditors, to be divided 
 rateably amongst them ; and, if his behaviour has been 
 free from serious blame, he obtains a discharge from past 
 liabilities. Accordingly by the Bankruptcy Act, 1861, declaration of 
 
 insolvency. 
 (k.) Stat. 24 & 25 Vict. c. 134, s. 6. 
 s. 71. («7) Stat. 13Eliz. c. 7. 
 
 (o) Stat. 32 & 33 Vict. c. 62. (r) Stat. 13 Eliz. c. 7, s. 10; 2 
 
 (iO Stat. 32 & 33 Vict. c. 71, Black. Com. 471.
 
 136 
 
 OF CHOSES IN ACTION. 
 
 Seizure and 
 sale of goods 
 under an exe- 
 cution. 
 
 Insolvency in 
 the colonies. 
 
 Judgment 
 debtor sum- 
 mons. 
 
 a person was enabled to commit an act of bankruptcy 
 hy making a formal declaration of his inability to meet 
 liis engagements (s). So the seiziu-e and sale of the 
 goods of a trader under an execution upon any judg- 
 ment in a personal action for the recovery of any debt 
 or money demand exceeding fifty pounds was an act of 
 banla-uptcy (t). The filing of a petition by or against a 
 debtor in any court having jvmsdiction for the relief of 
 insolvent debtors in insolvency or bankruptcy in any of 
 Her Majesty's dominions, colonies, or dependencies, and 
 the adjudication of an act of insolvency or bankruptcy 
 on such petition, was also evidence of an act of bank- 
 ruptcy (m). An act of bankruptcy might also have 
 been committed by non-payment after what was called a 
 judgment delator summons. Every judgment creditor 
 who was entitled to sue out a writ of capias ad satis- 
 faciendum (x) against the debtor in respect of any debt 
 amounting to 50/., exclusive of costs, might at the end 
 of one week from the signing of judgment have sued 
 out against any trader, whether he were in custody or 
 not, a summons, called a judgment debtor summons, 
 requiring him to appear, and to be examined respect- 
 ing his ability to pay the debt(?/). In like manner, 
 where any decree or order of a court of equity, or 
 order in bankruptcy, insolvency, or lunacy, du-ecting 
 the payment of money, had been disobeyed by the debtor, 
 after ha\ing been duly served on liim, and the person 
 entitled to the money, or interested in enforcing pay- 
 ment of it, had obtained a peremptory order fixing a 
 day for payment, and the debtor, being a trader, should 
 not v^itliin seven days after service on liim of the pe- 
 remptory order, or within seven days after the day 
 fixed by the peremptory order for payment (which 
 
 (s) Stat. 24 & 25 Vict. c. 134, 
 s. 72. 
 
 (t) Sect. 73. 
 (//) Sect. 75. 
 
 (x) See ante, p. 102. 
 
 (y) Stat. 24 & 25 Vict. c. 134, 
 
 s. 76.
 
 OF BANKRUPTCY OF TRADERS. 137 
 
 should last have happened), have paid the money, or 
 seciu-ed, or tendered, or compounded for it, to the satis- 
 faction of the creditor, the creditor might at the end of 
 those seven days have sued out against the debtor a 
 judgment debtor summons (s'). And if after service of 
 such summons the debtor should not have paid the 
 debt and costs, or secured or compounded for the same 
 to the satisfaction of the creditor, the court might, on 
 the appearance of the debtor, or if he should not have 
 appeared having no lawful impediment allowed by the 
 court, have adjudged him bankrupt (a). The Act of ^iliiig affidavit 
 1849 contained a flirther provision, that on a proper 
 affidavit of debt being made by any creditor, stating, 
 amongst other things, the delivery to the trader per- 
 sonally, or to some adult inmate at his usual or last 
 known place of abode or business, of Avritten particulars 
 of his demand, with notice requiring immediate pay- 
 ment, such trader might be summoned to appear before 
 the bankrupt court either to admit the demand, or to 
 swear that he verily believed that he had a good defence 
 to such demand or to some part of it. And in such 
 case the court was empowered to require the trader to 
 enter into a bond with two sureties to pay such sum as 
 shoidd be recovered, together with such costs as shoidd 
 be given in any action which should have been or shoidd 
 be brought for the recovery of such demand or any part 
 thereof {b). And if he admitted the demand, and did Admission of 
 not satisfy the creditor within seven days next after the ^^^^ ^^'l ^'^^' 
 filing of such admission, he committed an act of bank- 
 ruptcy on the eighth day after the filing of such admis- 
 sion, provided a petition for adjudication of banlcruptcy 
 were filed against him within two calendar months from 
 the filing of the creditor's affidavit (c). There Avere 
 other attendant provisions which it is now unnecessary 
 
 (z) Stat. 24 & 25 Vict. c. 134, (?>) Stat. 12 & 13 Vict. c. 10(5, 
 
 s, 77. ss, 78, 79. 
 
 (a) Sect. 83. (c) Sect. 81.
 
 138 OF CHOSES IN ACTIOX. 
 
 to state, as the only other acts of bankruptcy beyond the 
 three above referred to (fZ) are stated by the Bankruptcy 
 Act, 1869 {e), in the following terms : — 
 
 (4.) That the debtor has filed in the prescribed 
 manner in the court a declaration admitting: 
 his inability to pay his debts : 
 (5.) That execution issued against the debtor on any 
 legal process for the purpose of obtaining 
 payment of not less than fifty pounds has in 
 the case of a trader been leaded by seizure and 
 sale of his goods : 
 (6.) That the creditor presenting the petition has 
 served in the prescribed manner on the debtor 
 a debtor's summons requuing the debtor to 
 pay a sum due, of an amount of not less than 
 fifty pounds, and the debtor being a trader has 
 for the space of seven days, or not being a 
 trader has for the space of three weeks, suc- 
 ceeding the ser^ace of such smnmons, neglected 
 to pay such stun, or to secure or compoimd for 
 the same. 
 But no person shall be adjudged a bankrupt on any 
 of the above grounds unless the act of bankruptcy on 
 which the adjudication is grounded has occuiTed within 
 six months before the presentation of the petition for 
 adjudication; moreover, the debt of the petitioning 
 creditor must be a liquidated sum due at law or in 
 eqiuty, and must not be a seciu^ed debt, unless the peti- 
 Secnred tioner state in his petition that he will be ready to give 
 
 creditor. ^^p ^^^ch security for the benefit of the creditors in the 
 
 event of the debtor being adjudicated a bankrupt, or 
 unless the petitioner is willing to give an estimate of 
 the value of his seciu'ity, in which latter case he may be 
 admitted as a petitioning creditor to the extent of the 
 balance of the debt due to him after deducting the 
 
 {d) Ante, p. 135. (e) Stat. 32 & 33 Vict. c. 71, s. 6.
 
 or BANKRUPTCY OF TRADERS. 139 
 
 value so estimated, but he shall, on an application being 
 made by the trustee within the prescribed time after the 
 date of adjudication, give up his security to such trustee 
 for the benefit of the creditors upon payment of such 
 estimated value. 
 
 When an act of bankruptcy has been committed, any Petition for 
 
 single creditor, or two or more creditors if the debt due ^djuf^ication 
 
 . in bankruptcy. 
 
 to such single creditor, or the aggregate amount of 
 
 debts due to such several creditors, from any debtor, 
 
 amount to a sum of not less than fifty pounds, may 
 
 present a petition to the court, praying that the debtor 
 
 be adjudged a bankrupt, and alleging as the ground for 
 
 such adjudication any one or more of the above-mentioned 
 
 acts or defaidts, included under the expression " acts of 
 
 bankruptcy " (/). The truth of the petition is sworn to 
 
 by the petitioning creditor (^); and at the hearing the 
 
 court shall require proof of the debt of the petitioning 
 
 creditor, and of the trading, if necessary, and of the 
 
 act of bankruptcy, and if satisfied with such proof shall 
 
 adjudge the debtor to be a bankrupt (h). 
 
 Formerly a commission of bankruptcy under the Commission of 
 great seal issued in every case, whereby certain persons ^^'^"Ptcy- 
 were appointed commissioners for the purpose of di- 
 recting that particular bankruptcy (z). Subsequently a 
 Court of Bankruptcy was erected in London, and cer- Court of 
 tain fixed commissioners appointed, by any one of whom ^^^i^^i'^ptcj. 
 the duties of a commissioner were to be performed in 
 all cases of bankruptcies in London (k). The creditor Fiat in bank- 
 presented a formal petition to the Lord Chancellor, ^^^l^^^y- 
 whereupon a fiat in banki-uptcy issued, w^hereby the 
 
 (/) Stat. 32 & 33 Vict. c. 71, (7i) Stat. 32 & 33 Vict. c. 71, 
 
 s, 6; ante, pp. 135, 138. s. 8. 
 
 (ff) Stat. 32 & 33 Vict. c. 71, (i) Stat. 13 Eliz. c. 7, s. 2; 
 
 s. 80, par. (1), 6 Geo. IV. c. 16, s. 12. 
 
 Ck) Stat. 1 & 2 Will. IV. c. 56.
 
 140 
 
 OP CIIOSES IN ACTION. 
 
 creditor was authorized to prosecute his complaint 
 against the trader in the Court of Bankruptcy, or before 
 one of the commissioners of that court (/). And more 
 recently fixed commissioners were appointed throughout 
 the country, each of whom had a separate district, and 
 formed a court of record (m). But by the Bankruptcy 
 Act, 1861, jurisdiction in bankruptcy was vested in 
 the judges of the County Courts, except those of the 
 metropolis (n). And provision was made for the re- 
 duction of the number of the London commissioners to 
 three (o). And her Majesty was empowered, upon any 
 vacancy in the office of country commissioner, to transfer, 
 by order in Council, the jurisdiction of such commis- 
 sioner to any of the judges of the County Com-ts mthin 
 the district (p). But the Bankruptcy Act, 1869, has 
 now abolished all the London commissioners and also 
 all the country district com-ts, and has pro\aded for the 
 appointment of a chief judge in the London Bankruptcy 
 Court, and for the transfer of all the country business 
 to the County Courts {q) ; subject to powers reserved to 
 the Lord Chancellor to exclude any of them from juris- 
 diction in bankruptcy (r). 
 
 The adjudi- 
 cation. 
 
 Advertise- 
 ment of order 
 of adjudica- 
 tion. 
 
 The fiat was abohshed by the Act of 1849 ; and the 
 debt, the trading, and the act of bankruptcy having 
 been proved, the trader is adjudged a bankrupt by the 
 coiu-t to which the petition is presented {s). And the 
 Bankruptcy Act, 1869, provides that a copy of an 
 order of the court adjudging the debtor to be bankrupt 
 shall be published in the London Gazette, and be 
 advertised locally in such manner (if any) as may be 
 
 (0 Stat. 1 & 2 Will. IV. c. 5G, 
 s. 12. 
 
 im) Stats. 5 & G Vict. c. 122, 
 s. 59 et seq.; 12 & 13 Vict. c. 106, 
 ss. 6—11. 
 
 («) Stat. 24 & 25 Vit. c. 134, 
 s. 3. 
 
 (o) Sect. 2. 
 {l>) Sect. 4. 
 
 {q) Stat. 32 & 33 Vict. c. 71, 
 ss. 59, 60, 128, 130. 
 (?•) Sect. 79. 
 (.*) Sect. 8.
 
 OF BANKRUPTCY OF TRADERS. 141 
 
 prescribed, and the date of such order shall be the date 
 of the adjudication for the purposes of the act, and the 
 production of a copy of the Gazette containing such 
 order as aforesaid shall be conclusive evidence in all 
 legal proceedings of the debtor having been duly ad- 
 judged a bankrupt and of the date of the adjudication (^). 
 
 Previously to the Bankruptcy Act, 1869, the estate Assignees. 
 of the bankrupt vested in his assignees. These were 
 in modern times of two kinds ; official assignees and 
 creditors' assignees. The official assignees were officers Official as- 
 of the Bankruptcy Court, one of whom was aj^pointed ^^S^iee. 
 by the com-t to act for every bankruptcy. His duty 
 formerly Avas to receive all the personal estate and 
 effiscts, and the rents and profits of the real estate, and 
 the proceeds of the sale of the estate and effects, real 
 and personal, of the bankrupt ; and after the appoint- 
 ment of the creditors' assignees, he continued to be an 
 assignee jointly with them. But the Bankruptcy Act, 
 1861, provided that, at the appointment of the creditors' 
 assignee, all the estate, both real and personal, of the 
 bankrupt shoidd be devested out of the official assignee 
 and vested in the creditors' assignee (m). The manage- 
 ment of the estate was then vested in the creditors' Creditors' 
 assignee ; except as to debts due to the estate not ex- ^^^'S^ee. 
 ceeding £10, as to which the official assignee was to be 
 deemed the sole assignee of the estate, notwithstanding 
 the appointment of a creditors' assignee {x). But the 
 Bankruptcy Act, 1869, has abolished the official as- 
 signees, and has substituted for the creditors' assignees a 
 trustee to be appointed at a general meeting of the Trustee, 
 creditors. And the act provides (?/) that the creditors 
 
 (0 Sect. 10. («) Stat. 24 & 25 Vict. c. 134, 
 
 ill) Stat. 24 & 25 Vict. c. 134, s. 128. 
 s. 117. (y) Stat. 32 & 33 Vict. c. 71, 
 
 s. 14,
 
 142 
 
 OF CHOSES IN ACTION. 
 
 Trustee. 
 
 Committee of 
 inspection. 
 
 assembled at such meeting shall and may do as 
 follows : — 
 
 ( 1 . ) They shall, by resolution, appoint some fit person, 
 Avhether a creditor or not, to fill the office of 
 trustee of the property of the bankrupt, at such 
 remuneration as they may fi'om time to time 
 determine, if any; or they may resolve to leave 
 liis appointment to the committee of inspection 
 thereinafter mentioned : 
 
 (2.) They shall, when they appoint a trustee, by 
 resolution declare what security is to be given, 
 and to whom, by the person so appointed, 
 before he enters on the office of trustee : 
 
 (3.) They shall, by resolution, appoint some other fit 
 persons, not exceeding five in nimiber, and 
 being creditors qualified to vote at such first 
 meeting of creditors as is in the act mentioned, 
 or authorized in the prescribed form by cre- 
 ditors so qualified to vote, to form a committee 
 of inspection for the purpose of superintending 
 the administration by the trustee of the bank- 
 rupt's property : 
 
 (4.) They may, by resolution, give directions as to 
 the manner in which the property is to be 
 administered by the trustee, and it shall be 
 the duty of the trustee to conform to such 
 directions, unless the court for some just cause 
 otherwise orders. 
 
 Power of 
 trustee to deal 
 with property. 
 
 Subject to the pro^dsions of the act, the trustee has 
 poAver to do the following things : — 
 
 (1.) To receite and decide upon proof of debts in the 
 prescribed manner, and for such piu-pose to 
 administer oaths : 
 
 (2.) To cany on the business of the bankrupt so far
 
 OF BANKRUPTCY OF TRADERS. 143 
 
 as may be necessary for the beneficial winding- 
 up of the same : 
 
 (3.) To bring or defend any action, suit, or other 
 legal proceeding relating to the property of 
 the bankrupt : 
 
 (4.) To deal with any property to which the bankrupt 
 is beneficially entitled as tenant in tail in the 
 same manner as the bankrupt might have 
 dealt with the same ; and the sections fifty-six 
 to seventy-three (both inclusive) of the act of 
 the session of the thii'd and fourth years of the 
 reign of King WiUiam the Fourth (chapter 
 seventy-fom^), "for the abolition of fines and 
 recoveries, and for the substitution of more 
 simple modes of assiu-ance," shall extend and 
 apply to proceedings in bankruptcy under 
 the act as if those sections were re-enacted 
 and made applicable in terms to such pro- 
 ceedings : 
 
 (5.) To exercise any powers the capacity to exercise 
 which is vested in him under the act, and to 
 execute aU powers of attorney, deeds, and 
 other instruments expedient or necessary for 
 the puipose of carrying into effect the pro- 
 visions of the act : 
 
 (6.) To sell all the property of the bankrupt (including 
 the goodwill of the business, if any, and the 
 book debts due or growing due to the bankrupt) 
 by public auction or private contract, with 
 power, if he thinks fit, to ti'ansfer the whole 
 thereof to any person or company, or to sell 
 the same in parcels : 
 (7.) To give receipts for any money received by him, 
 which receipt shall effectually discharge the 
 person paying such monies fi^-om all responsi- 
 bility in respect of the apphcation thereof: 
 (8.) To prove, rank, claim, and draw a di\ddend in
 
 144 OF CHOSES IN ACTION. 
 
 the matter of the banla-uptcy or sequestration 
 of any debtor of the bankrupt {z). 
 
 Tower to allow The trustee may appoint the bankrupt himself to 
 
 Iluuulge'pro- Superintend the management of the property or of any 
 
 perty. part thereof, or to carry on the trade of the bankrupt 
 
 (if any) for the benefit of the creditors, and in any other 
 
 respect to aid in administering the property in such 
 
 manner and on such terms as the creditors direct (a). 
 
 Powers of The trustee may, with the sanction of the committee 
 
 sfuicdon^f of inspection, do all or any of the folloAving things: — 
 
 committee. 
 
 (1.) Mortgage or pledge any part of the property of 
 the bankrupt for the purpose of raising money 
 for the payment of his debts : 
 
 (2.) Refer any dispute to arbitration, compromise all 
 debts, claims, and liabilities, whether present 
 or flitui*e, certain or contingent, liquidated or 
 unliquidated, subsisting or supposed to subsist 
 between the bankrupt and any debtor or per- 
 son who may have incurred any liability to 
 the bankrupt, upon the receipt of such sums, 
 payable at such times, and generally upon 
 such terms as may be agreed upon : 
 
 (3.) Make such compromise or other arrangement as 
 may be thought expedient with creditors, or 
 persons claiming to be creditors, in respect of 
 any debts provable under the bankruptcy : 
 
 (4.) Make such compromise or other arrangement as 
 may be thought expedient with respect to any 
 claim arising out of or incidental to the pro- 
 perty of the bankrupt, made or capable of 
 being made on the trustee by any person or 
 by the trustee on any person : 
 
 (r) Stat. 32 & 33 Vict. c. 71, (a) Sect. 2G, 
 
 B. 25.
 
 OF BANKRUPTCY Or TRADEKS. 145 
 
 (5.) Divide in its existing form amongst the cre- 
 ditors, according to its estimated value, any 
 property which from its peculiar natm-e or 
 other special circumstances cannot advan- 
 tageously be realized by sale. 
 The sanction given for the purposes of this section 
 may be a general permission to do all or any of the 
 above-mentioned things, or a permission to do all or any 
 of them in any specified case or cases (i). 
 
 The trustee may, with the sanction of a special reso- Power of 
 lution of the creditors assembled at any meeting, of accept com- 
 which notice has been given specifying the object of such position or 
 meeting, accept any composition offered by the bank- of an-ange- 
 rupt, or assent to any general scheme of settlement of '"^'^*- 
 the affairs of the bankrupt, upon such terms as may be 
 thought expedient, and with or without a condition that 
 the order of adjudication is to be annuUed, subject 
 nevertheless to the approval of the court, to be testified 
 by the judge of the court signing the instrument con- 
 taining the terms of such composition or scheme, or 
 embodying such terms in an order of the court (c). 
 
 A trustee shall not, without the consent of the com- Trustee, if a 
 mittee of inspection, employ a sohcitor or other agent, bepai°HoT^ 
 but where the trastee is himself a solicitor he may con- services. 
 tract to be paid a certain sum by way of per-centage or 
 otherwise as a remuneration for his services as trustee, 
 including all professional services, and any such contract 
 shall, notwithstanding any law to the contrary, be 
 laAvfid (d). 
 
 Where the goods of any trader have been taken in Proceeds of 
 „ . T , ^ -I . sale and sei- 
 
 execution m respect of a judgment tor a sum exceeding ^uie of goods. 
 
 ih) Stat. 32 & 33 Vict. c. 71, (c) Sect. 28. 
 
 s. 27. {d) Sect. 29. 
 
 w'.p.r. L
 
 146 OF CIIOSES IN ACTION. 
 
 fifty pounds and sold, the sheriff, or in the case of a sale 
 under the direction of the county court, the high bailiff 
 or other officer of the county court, shall retain the 
 proceeds of such sale in his hands for a period of four- 
 teen days ; and vipon notice being served on him within 
 that period of a bankruptcy petition having been pre- 
 sented against such trader, shall hold the proceeds of 
 such sale, after deducting expenses, on trust to pay the 
 same to the tmstee ; but if no notice of such petition 
 having been presented be served on him within such 
 period of fourteen days, or if, such notice having been 
 served, the trader against whom the petition has been 
 presented is not adjudged a bankrupt on such petition, 
 or on any other petition of which the sheriff, high bailiff 
 or other officer has notice, he may deal with the proceeds 
 of such sale in the same manner as he would have done 
 had no notice of the presentation of a bankruptcy peti- 
 tion been served on him (e). 
 
 Proof of debts. As the bankrupt was discharged from such claims 
 only as had been or might have been proved under the 
 bankruptcy, elaborate provisions were made by the 
 former acts for the proof of as many demands as possible. 
 As these provisions have now been repealed, it is unneces- 
 sary to state them. The present act provides as follows : 
 Description of — " Demands in the nature of unliquidated damages 
 debts now arising; otherwise than by reason of a contract or promise 
 
 provable in *= •' '■ 
 
 bankruptcy. shall not be provable in bankruptcy; and no person 
 having notice of any act of bankruptcy available for 
 adjudication against the bankrupt shall prove for any 
 debt or liability contracted by the bankrupt subse- 
 quently to the date of his so having notice. Save 
 as aforesaid, all debts and habilities, present or future, 
 certain or contingent, to which the bankrupt is subject 
 at the date of the order of adjudication, or to which he 
 
 (e) Stat. 32 & 33 Vict. c. 71, s. 87.
 
 OF BANKRUPTCY OF TllADERS. 147 
 
 may become subject during the continuance of the bank- 
 ruptcy by reason of any obligation inciu'red previously 
 to the date of the order of adjudication, shall be deemed 
 to be debts provable in bankruptcy, and may be proved 
 in the prescribed manner before the trustee in the bank- 
 niptcy. An estimate shall be made according to the Estimate of 
 rules of the court for the time being in force, so far as the [^biJitfes ' 
 same may be appHcable, and where they are not appli- 
 cable at the discretion of the trustee, of the value of any 
 debt or liability provable as aforesaid, which by reason of 
 its being subject to any contingency or contingencies, 
 or for any other reason, does not bear a certain value. 
 Any person aggrieved by any estimate made by the 
 trustee as aforesaid may appeal to the court, and the 
 court may, if it tliink the value of the debt or liability 
 incapable of being fairly estimated, make an order to 
 that effect, and upon such order being made such debt 
 or liability shall, for the purposes of this act, be deemed 
 to be a debt not provable in bankruptcy, but if the 
 court think that the value of the debt or liability is 
 capable of being faii-ly estimated it may du-ect such 
 value to be assessed with the consent of all the parties 
 interested before the court itself without the interven- 
 tion of a jm-y, or if such parties do not consent, by a 
 jury, either before the court itself or some other compe- 
 tent court, and may give all necessary directions for 
 such purpose, and the amount of such value when assessed 
 shall be provable as a debt under the bankruptcy. 
 " Liability " shall for the purposes of tliis act include Definition of 
 any compensation for work or labour done, any obHga- liability, 
 tion or possibility of an obligation to pay money or 
 money's worth on the breach of any express or imphed 
 covenant, contract, agreement, or undertaking, whether 
 such breach does or does not occur, or is or is not likely 
 to occur or capable of occurring before the close of the 
 bankruptcy ; and generally it shall include any express 
 
 l2
 
 148 
 
 OF CIIOSES IN ACTION. 
 
 or implied engagement, agreement, or undertaking, to 
 pay, or capable of resulting in the payment of money or 
 money's worth, whether such payment be as respects 
 amount fixed or unliquidated, as respects time present or 
 lliture, certain or dependent on any one contingency or 
 on tAvo or more contingencies, as to mode of valuation 
 capable of being ascertained by fixed rules, or assessable 
 only by a jury, or as matter of opinion" ( /). 
 
 Power for 
 landlord to 
 distrain for 
 one year's 
 rent. 
 
 The landlord or other person to whom any rent is 
 due fl'om the bankrupt may at any time, either before 
 or after the commencement of the bankrujDtcy, distrain 
 upon the goods or effects of the bankrupt for the rent 
 due to him fi'om the bankrupt, with this limitation, that 
 if such distress for rent be levied after the commence- 
 ment of the banki'uptcy it shall be available only for 
 one years rent accrued due prior to the date of the 
 order of adjudication, but the landlord or other ]3erson 
 to whom the rent may be due ii'om the bankrupt may 
 prove under the bankruptcy for the overplus due for 
 which the distress may not have been available (^). 
 
 Proof in case When any rent or other payment falls due at stated 
 
 periodical pay- pei'iods, and the order of adjudication is made at any 
 
 ment. time other than one of such periods, the person entitled 
 
 to such rent or payment may prove for a proportionate 
 
 part thereof up to the day of the adjudication, as if such 
 
 rent or pajTnent grew due from day to day (A). 
 
 Interest on 
 debts. 
 
 Interest on any debt provable in bankruptcy may be 
 alloAved by the trustee under the same circumstances in 
 which interest would have been allowable by a jury if 
 an action had been brought for such debt (/). 
 
 (/) Stat. 32 & 33 Vict. c. 71, (Ji) Sect. 35. 
 
 s. 31. (i) Sect. 86. 
 
 (^) Sect. 3i.
 
 OF BANKRUPTCY OF TRADERS. 149^ 
 
 If any bankrupt is at the date of the order of adjiidi- Proof in re- 
 cation liable in respect of distinct contracts as member jj^j^j. ^ontracts. 
 of two or more distinct firms, or as a sole contractor, 
 and also as member of a firm, the circumstance that such 
 firms are in Avhole or in part composed of the same 
 individuals, or that the sole conti'actor is also one of the 
 joint contractors, shall not prevent proof, in respect of 
 such contracts, against the properties respectively liable 
 upon such conti-acts (j). 
 
 The trustee, with the consent of the creditors, testified Allowance to 
 
 1 1 . • T . 1 j_' r bankrupt for 
 
 by a resolution passed in general meeting, may trom maintenance 
 time to time, during the continuance of the bankruptcy, or service. 
 make such allowance as may be approved by the cre- 
 ditors to the bankrupt out of his property for the sup- 
 port of the bankrupt and his family, or in consideration 
 of his services if he is engaged in winding up his 
 estate (k). 
 
 Where there have been mutual credits, mutual debts. Set-off. 
 or other mutual deaHngs between the bankrupt and any 
 other person proving or claiming to prove a debt under 
 his bankruptcy, an account shall be taken of what is 
 due fi'om the one party to the other in respect of such 
 mutual dealings, and the sum due from the one party 
 shall be set off against any sum due from the other 
 party, and the balance of such account, and no more, 
 shall be claimed or paid on either side respectively; but 
 a person shall not be entitled under this section to claim 
 the benefit of any set-off against the property of a bank- 
 rupt in any case where he had, at the time of giving 
 credit to the bankrupt, notice of an act of bankruptcy 
 committed by such bankrupt and available against him 
 for adjudication (/). 
 
 A creditor holding a specific security on the property Provision as 
 
 (J) Sect. 37. (0 Sect. 39. 
 
 (k) Sect. 38,
 
 150 OF CIIOSES IN ACTION. 
 
 to secured of tlie bankrupt, or on any part thereof, may, on giving 
 
 creditor. ^^ j^-^ gg(,^^.J^y^ prove for liis whole debt. He shall also 
 
 be entitled to a dividend in respect of the balance due 
 to him after reahzing or giving credit for the value of 
 his security, in manner and at the time prescribed. A 
 creditor holding such secmnty as aforesaid, and not com- 
 plying with the foregoing conditions, shall be excluded 
 from aU share in any dividend (m). 
 
 As the bankruptcy of a person consists in his com- 
 mitting an act of bankruptcy, and not in his being ad- 
 judged bankrupt, his assignees, when appointed, became 
 entitled to all the real and personal estate of which he 
 was possessed at the hoiu' when he committed the act (w) ; 
 though the legal estate in the bankrupt's lands remained 
 vested in him until conveyed to the assignees by their 
 The title of appointment (o). The title of the assignees, it was said, 
 
 the assignees related back to the act of bankruptcy. The consequences 
 related back to . t y^ 
 
 the act of 01 this rule were formerly very serious, as many oo7ia 
 
 bankruptcy, j^^j^ transactions were overturned in consequence of an 
 
 act of bankruptcy having been committed by one of the 
 
 parties Avithout the knowledge of the other. But after 
 
 Former enact- several partial remedies (p), it was enacted by the Act 
 
 ment. of 1849, that all payments really and bona fide made by 
 
 any bankiiipt, or by any person on his behalf, before the 
 
 filing of a petition for adjudication of bankruptcy, and all 
 
 payments really and bona fide made to any bankrupt 
 
 before the filing of such petition, and all conveyances by 
 
 any banki-upt bona fide made and executed before the 
 
 filing of such petition, and all contracts, dealings and 
 
 transactions by and with any bankrupt really and bond 
 
 (jm) Stat. 32 & 33 Vict. c. 71, (o) Doc d. Esdaile v, Mitchelli 
 
 s. 40. 2 Mau. & Selw. 446. 
 
 (w) Thomas v. Desanges, 2 Bar. (j;) Stat. 46 Geo. III. c. 135, 
 
 & Aid. 586 ; Rouch v. Great s. 1; 49 Geo. III. c. 121, s. 2; 56 
 
 Western Railway Comi)any, 1 Geo. III. c. 137, s. 1 ; 6 Geo. IV. 
 
 Q. B. 51. c. 16, ss. 81, 82, 84; 2 & 3 Vict. 
 
 c. 11, s. 12; 2 & 3 Vict. c. 29.
 
 OF BANKRUPTCY OF TRADERS. 151 
 
 Jide made and entered into before the filing of such 
 petition, and all executions and attachments against the 
 lands and tenements of any bankrupt bond Jide executed 
 by seizure, and all executions and attachments against 
 the goods and chattels of any bankrupt bona fide exe- 
 cuted and levied by seizure and sale before the filing of 
 such petition, should be deemed to be valid, notwith- 
 standing any prior act of bankruptcy by such bankiaipt 
 committed; provided the person so dealing with or 
 paying to or being paid by such bankrupt, or at whose 
 suit or on whose account such execution or attachment 
 should have issued, had not at the time of such payment, 
 conveyance, contract, dealing or transaction, or at the 
 time of executing or levying such execution or attach- 
 ment, or at the time of making any sale thereunder, 
 notice of any prior act of bankruptcy by him com- 
 mitted {q). The effect of this enactment was to substitute 
 the filing of the petition for adjudication for the act of 
 bankruptcy, so far as respects all persons dealing and 
 acting bond fide and without notice of the act of bank- 
 ruptcy. On this subject the Bankruptcy Act, 1869, Present 
 now contains the following provisions. It enacts that P^'^isions. 
 the bankruptcy shall be deemed to have relation back 
 and to commence at the time of the act of banlcruptcy (r), 
 and then provides as follows : — 
 
 Nothing in this act contained shall render invalid, — Protection of 
 (1.) Any payment made in good faith and for value actions with' 
 received to any banki-upt before the date of bankrupt. 
 the order of adjudication by a person not 
 having at the time of such payment notice of 
 any act of bankruptcy committed by the bank- 
 rupt, and available against him for adjudica- 
 tion : 
 (2.) Any payment or dehvery of money or goods 
 belonging to a banla*upt, made to such bank- 
 er) Stat. 12 & 13 Vict. c. 106, (r) Stat. 32 & 33 Vict. c. 71, 
 s. 133. s. 11.
 
 152 OF CHOSES IN ACTION. 
 
 nipt by a depositary of such money or goods 
 before the date of the order of adjudication, 
 who had not at the time of such payment or 
 delivery notice of any act of bankruptcy com- 
 mitted by the bankrupt, and available against 
 him for adjudication : 
 (3.) Any contract or dealing with any bankrupt, 
 made in good faith and for valuable con- 
 sideration, before the date of the order of 
 adjudication, by a person not having, at the 
 time of making such contract or dealing, 
 notice of any act of bankruptcy committed 
 by the bankrapt, and available against him 
 for adjudication (5). 
 
 Protection of Subject and without prejudice to the provisions of 
 certain trans- ^j^- ^ relating to the proceeds of the sale and seizure 
 
 actions entered » ^ . . r i • 
 
 into by or in of goods of a trader, and to the provisions 01 this act 
 pror^erty^o/the avoiding certain settlements, and avoiding, on the 
 bankrupt. ground of their constituting fraudulent preferences, 
 
 certain conveyances, charges, payments, and judicial 
 proceedings, the following transactions by and in rela- 
 tion to the property of a bankrupt shall be valid, not- 
 withstanding any prior act of bankruptcy, — 
 
 (1.) Any disposition or contract with respect to the 
 disposition of property by conveyance, transfer, 
 charge, delivery of goods, payment of money, 
 or otherwise howsoever made by any bankrupt 
 in good faith and for valuable consideration, 
 before the date of the order of adjudication, 
 Avith any person not having at the time of the 
 making of such disposition of property notice 
 of any act of bankruptcy committed by the 
 bankrupt, and available against him for adju- 
 dication : 
 
 (s) Stat. 32 & 33 Vict. c. 71, 9. 94.
 
 OF BANKRUPTCY OF TRADERS. 153 
 
 (2.) Any execution or attachment against the land 
 of the bankrupt, executed in good faith by- 
 seizure before the date of the order of adjudi- 
 cation, if the person on whose account such 
 execution or attachment was issued had not 
 at the time of the same being so executed by 
 seizxu'e notice of any act of bankruptcy com- 
 mitted by the bankrupt, and available against 
 him for adjudication : 
 
 (3). Any execution or attachment against the goods 
 of any bankrupt, executed in good faith by 
 seizm-e and sale before the date of the order 
 of adjudication, if the person on whose account 
 such execution or attachment was issued had 
 not at the time of the same being executed by 
 seizure and sale notice of any act of bankruptcy 
 committed by the bankrupt, and available 
 against him for adjudication (t). 
 
 But any settlement of property made by a trader, not Avoidance 
 being a settlement made before and in consideration of setttementsf 
 maiTiage, or made in favour of a purchaser or incum- 
 brancer in good faith and for valuable consideration, or 
 a settlement made on or for the wife or children of the 
 settlor of property which has accrued to the settlor after 
 marriage in right of his wife, shall, if the settlor becomes 
 bankrupt within tico years after the date of such settle- 
 ment, be void as against the trustee of the bankrupt 
 appointed under the act, and shall, if the settlor 
 becomes bankrupt at any subsequent time within ten 
 years after the date of such settlement, unless the parties 
 claiming vmder such settlement can prove that the 
 settlor was at the time of making the settlement able to 
 pay all his debts withoiit the aid of the property com- 
 posed in such settlement, be void against such trustee. 
 
 (f) Stat. 32 & 33 Vict. c. 71, s. 95.
 
 154 
 
 OF CIIOSES IN ACTION. 
 
 Avoidance of 
 covenant for 
 future settle- 
 ment. 
 
 Any covenant or contract made by a trader, in considera- 
 tion of marriage, for the fliture settlement upon or for 
 his wife or children of any money or property wherein 
 he had not at the date of his marriage any estate or 
 interest, whether vested or contingent, in possession or 
 remainder, and not being money or property of or in 
 right of his wife, shall, upon his becoming bankrupt 
 before such property or money has been actually trans- 
 ferred or paid pursuant to such contract or covenant, 
 be void against his trustee appointed under the act. 
 " Settlement " shall for the purposes of this section 
 include any conveyance or transfer of property (m). 
 
 Avoidance 
 of fraudulent 
 preferences. 
 
 All debts paid 
 rateably. 
 
 And every conveyance or transfer of property, or 
 charge thereon made, every payment made, every obliga- 
 tion incurred, and every judicial proceeding taken or 
 suffered by any person imable to pay his debts as they 
 become due from his OAvn monies in favom' of any cre- 
 ditor, or any person in trust for any creditor, with a 
 view of giving such creditor a preference over the other 
 creditors, shall, if the person making, taking, paying, or 
 suffering the same become bankrupt within three months 
 after the date of making, taking, paying, or suffering 
 the same, be deemed fraudulent and void as against the 
 trustee of the bankrupt appointed under this act ; but 
 this section shall not affect the rights of a purchaser, 
 payee or mcumbrancer in good faith and for valuable 
 consideration (v). 
 
 In the payment of dividends no preference is given on 
 account of the nature of the debt, whether judgment 
 debt, bond debt, specialty or simple contract. In this 
 respect the Court of Chancery, to which the jurisdiction 
 in bankruptcy anciently belonged, and which now exer- 
 cises an appellate jurisdiction {x\ followed its rule that 
 
 (tt) Stat. 32 & 33 Vict. c. 71, (f) Sect. 92. 
 
 s. 91, (a?) Sect. 71.
 
 OF BANKRUPTCY OF TRADERS. 155 
 
 equality Is equity. The crown, however, may enforce Crown debts. 
 payment of the entire debt of a bankrupt crown debtor, 
 notwithstanding the bankrupt laws (y). And a judg- Judgment, 
 ment debt, if entered up one year at least before the 
 bankruptcy, was, by the statute for extending the 
 remedies of creditors, a charge in equity on all the bank- 
 rupt's real estate (z). But tliis was altered with respect 
 to all judgments entered up after the 29th July, 1864, 
 the date of the act to amend the law relating to future 
 judgments, statutes and recognizances (a). The land- Rent. 
 lord of a bankrupt might, notwithstanding an act of 
 bankruptcy, distrain for his rent, not exceeding one 
 year's rent accrued prior to the day of the filing of the 
 petition for adjudication (b). And the present act con- 
 tains, as we have seen, a provision to the same effect (c). 
 The wages or salaiy of a clerk or servant of the bank- Wages. 
 rupt, for any time not exceeding three calendar months 
 and not exceeding 30/. (df), and also the wages of any 
 labourer or workman not exceeding 40^., might, by 
 the Act of 1849, be ordered by the court to be paid 
 in full(e) ; and the present act extends this exception to 
 four months' wages or salary of a clerk or servant, not 
 exceeding ^ftJ/ pounds, and to the wages of any 
 labourer or workman n6t exceeding two months' 
 wages (/). It also gives priority to rates and taxes Rates and 
 due from the bankrupt for twelve months preceding {(/). *'^^^^- 
 The bankrupt is entitled to any surplus remaining after Surplus, 
 payment of his creditors and the costs of the bank- 
 ruptcy (A). 
 
 (y) Anon., 1 Atk. 262; stat. (c) Stat. 32 & 33 Vict. c. 71, 
 
 32 & 33 Vict. c. 71, s. 4i). s. 34, ante, p. 148. 
 
 (z) Stat. 1 & 2 Vict. c. 110, (d) Stat. 12 & 13 Vict, c. 106, 
 
 s. 13; Ex 2f arte Boyle, 3 De Gex, s. 168. 
 
 M. & G. 515; S. C, 17 Jur. 979. (e) Sect. 169. 
 
 (a) Stat. 27 & 28 Vict.c. 112, (/) Stat. 32 & 33 Vict. c. 71, 
 
 s. 1. s. 32. 
 
 (J) Stat. 12 & 13 Vict. c. 106, (^) Sect. 32. 
 
 s. 129; PauU v. Best, 3 B. & S. (A) Sect. 45. 
 537.
 
 156 
 
 or cnosEs in actiox. 
 
 If the bankrupt had duly siu-rendered and confonned 
 The certificate, to the bankrupt law, he was fonnerly entitled to a certi- 
 ficate of conformity, by which he was discharged from 
 all debts due by him when he became bankrupt, and 
 from all claims and demands made provable under the 
 bankruptcy {i). Formerly the certificate was requfred 
 to be signed by a given proportion of the creditors (A) ; 
 but, by the Act of 1849, the court Avas constituted the 
 sole judge of any objections which might be made by 
 any creditors against allowing the certificate ; and the 
 court might either allow the same or refiise or suspend 
 the allowance thereof, or annex such conditions thereto 
 as the justice of the case might require (/). The certi- 
 ficates were by this act divided into tlu'ee classes. If 
 the bankruptcy had arisen from unavoidable losses and 
 misfortunes, the bankrupt was entitled to a certificate of 
 the first class. If the bankruptcy had not wholly arisen 
 from unavoidable losses and misfortunes, he was entitled 
 to a certificate of the second class. And if the bank- 
 ruptcy had not arisen fi'om unavoidable losses or misfor- 
 tunes, he was only entitled to a certificate of the third 
 class (m). But all classification of certificates was 
 abolished by the Bankruptcy Act, 1861 {n); and the 
 bankrupt, if he had properly conducted himself, became 
 entitled to an order of discharge, which discharged him 
 from all debts, claims or demands, provable under his 
 bankruptcy (o). The Bankruptcy Act, 1869, now con- 
 tains the following provisions with respect to the order 
 of discharge. When a banknq^tcy is closed, or at any 
 time during its continuance, Avith the assent of the cre- 
 ditors testified by a special resolution, the bankrupt 
 may apply to the court for an order of discharge ; but 
 
 Order of dis- 
 charge. 
 
 Present 
 provisions, 
 
 (i) Stat. 12 & 13 Vict. c. 106, 
 ss. 199, 200. 
 
 (Ji) Stat. 6 Geo. IV. c. IG, s. 
 122. 
 
 (0 Stat. 12 & 13 Vict. c. 100, 
 s. 198. 
 
 (w) Stat. 12 & 13 Vict. c. 106, 
 sched. Z. 
 
 (w) Stat. 24 & 2.5 Vict. c. 134, 
 s. 157. 
 
 (o) Sect. ICl.
 
 OF BANKRUPTCY OF TKADERS. 157 
 
 such discharge shall not be granted unless it is proved 
 to the court that one of the following conditions has 
 been fulfilled, tliat is to say, either that a dividend of not 
 less than ten shillings in the pound has been paid out of 
 his property, or might have been paid excejDt through 
 the negHgence or fraud of the trustee, or that a special 
 resolution of his creditors has been passed to the effect 
 that his banki'uptcy or the failure to pay ten shillings in 
 the pound has, in their opinion, arisen from circum- 
 stances for which the bankrupt cannot justly be held 
 responsible, and that they desire that an order of dis- 
 charge shoidd be granted to him. And the court may 
 suspend for such time as it deems to be just, or withhold 
 altogether, the order of discharge in the circumstances 
 following: namely, if it appears to the court on the 
 representation of the creditors made by special resolu- 
 tion, of the truth of which representation the court is 
 satisfied, or by other sufficient e\ddence, that the bank- 
 rupt has made default in giving up to his creditors the 
 property which he is required by this act to give up ; 
 or that a prosecution has been commenced against him 
 in pursuance of the provisions relating to the punishment 
 of fraudulent debtors, contained in the "Debtors Act, 
 1869" ( /?), in respect of any offence alleged to have been 
 committed by him against the said act {q). 
 
 An order of discharge shall not release the bankrupt Effect of 
 from any debt or liability incuiTcd by means of any chame ^^ 
 fraud or breach of trust, nor fl'om any debt or liability 
 whereof he has obtained forbearance by any fraud, but 
 it shall release the bankrupt from all other debts prov- 
 able under the bankruptcy, with the exception of — 
 
 (1.) Debts due to the crown : 
 
 (2.) Debts with which the bankrupt stands charged 
 at the suit of the croAvn or of any person for 
 
 (i?) Stat. 32 & 33 Vict. c. 62, (q) Stat. 32 & 33 Vict. c. 71, 
 
 ruite, p. 103, s. 48.
 
 158 
 
 OF CHOSES IN ACTION. 
 
 any offence against a statute relating to any 
 branch of tlie public revenue, or at tbe suit 
 of the sheriff or other public officer on a bail 
 bond entered into for the appearance of any 
 person prosecuted for any such offence : 
 and he shall not be discharged fi-om siich excepted debts 
 unless the Commissioners of the Treasury certify in 
 writing their consent to his being discharged therefrom. 
 An order of discharge shall be sufficient evidence of the 
 bankruptcy, and of the validity of the proceedings 
 thereon ; and in any proceedings that may be instituted 
 against a bankrupt who has obtained an order of dis- 
 charge in respect of any debt fi-om which he is released 
 by such order, the bankrupt may plead that the cause 
 of action occiuTcd before his discharge, and may give 
 the act and the special matter in evidence (r). 
 
 Exception of 
 joint debtors. 
 
 The order of discharge shall not release any person 
 who, at the date of the order of adjudication, was a 
 partner with the bankrupt, or was jointly bound or had 
 made any joint contract with him (s). 
 
 Rights of un- 
 certificated 
 bankrupt. 
 
 Until the bankrupt obtained his discharge all the real 
 and personal property which might descend, revert, or 
 be devised or bequeathed or come to him, became vested 
 in his assignees {t). But an uncertificated bankrupt 
 might maintain an action for his personal labour per- 
 formed after the bankruptcy (u), and he might also sue 
 in respect of contracts made with himself, and also in 
 respect of any after-acquu-ed property, if the assignees 
 or creditors did not interfere {v). The court, however. 
 
 (r) Stat. 32 & 33 Vict. c. 71, 
 s. 49. 
 
 (s) Sect. 50. 
 
 it) Stat. 12 & 13 Vict. c. 106, 
 SB. 141, 142. 
 
 (?f) SUJi V. Oshoinie, 1 Esp. R. 
 140. 
 
 (f) WeU V. Fox, 7 T. Rep. 
 391 ; Drayton v. Dale, 2 Bam. & 
 Cress. 293 ; Crofton v. Poole, I 
 Bam. & Adol. 568.
 
 OF BANKRUPTCY OF TRADERS. 159 
 
 was empowered by the Act of 1861 in certain cases of 
 misconduct, eitlier to refuse or suspend the order of dis- 
 charge, or to grant the same subject to any conditions 
 touching any salary, pay, emoluments, profits, wages, 
 earnings or income, which might afterwards become due 
 to the bankrupt, and touching his after-acquired pro- 
 perty (jo). The Act of 1869 has, as we have seen (a;), 
 substituted the trustee for the assignees ; and it vests 
 in him all the property of the bankrupt at the com- 
 mencement of the bankruptcy, or which may be 
 acquired by or devolve on him diu'ing its continu- 
 ance (y). The act also contains the following provisions 
 with regard to the status of an undischarged bankrupt. 
 Where a person who has been made bankrupt has not Statxis of nn- 
 obtained his discharge, then, from and after the close of ^^^^'^^^f'^ 
 his bankiiiptcy, the foUomng consequences shall ensue : 
 
 (1.) No portion of a debt provable under the bank- 
 ruptcy shaU be enforced against the property 
 of the person so made bankrupt imtil the ex- 
 piration of three years fi'om the close of the 
 bankruptcy ; and during that time, if he pay 
 to his creditors such additional sum as Avill, 
 with the dividend paid out of his property 
 during the bankruptcy, make up ten shillings 
 in the pound, he shall be entitled to an order 
 of discharge in the same manner as if a divi- 
 dend of ten shillings in the pound had ori- 
 ginally been paid out of his property : 
 
 (2.) At the expiration of a period of three years from 
 the close of the bankruptcy, if the debtor 
 made bankrupt has not obtained an order of 
 discharge, any balance remaining unpaid in 
 respect of any debt proved in such bankruptcy 
 (but without interest in the meantime) shall be 
 deemed to be a subsisting debt in the nature of 
 
 (w) Stat. 24 & 25 Vict. c. 134, (y) Stat. 32 & 33 Vict. c. 71, 
 
 s. 159, s. 15. 
 
 (») Ante, p. 141.
 
 160 OF CHOSES IN ACTION. I 
 
 a judgment debt, and, subject to the rights of ^ 
 any persons who have become creditors of the 
 debtor since the close of his bankruptcy, may 
 be enforced against any property of the debtor 
 with the sanction of the court which adjudi- 
 cated such debtor a bankrupt, or of the court 
 having jurisdiction in bankruptcy in the place 
 where the property is situated, but to the 
 extent only, and at the time and in manner 
 directed by such court, and after giving such 
 notice and doing such acts as may be pre- 
 scribed in that behalf (z). 
 
 Evidence of ^ny petition or copy of a petition in bankruptcy, 
 
 proceedings ^j^y order or copy of an order made by any coiu-t 
 an -lup ty. j^^^^^^ jimsdiction in bankruptcy, any certificate or 
 copy of a certificate made by any court having juris- 
 diction in bankrviptcy, any deed or copy of a deed 
 of arrangement in bankruptcy, and any other instru- 
 ment or copy of an instrument, affidavit or document 
 made or used in the course of any bankniptcy pro- 
 ceedings, or other proceedings had under the Bank- 
 ruptcy Act, 1869, may, if any such instrument as afore- 
 said or copy of an instrument appears to be sealed with 
 the seal of any court having jurisdiction, or piu'ports to 
 be signed by any judge having jurisdiction in bank- 
 ruptcy under this act, be receivable in evidence in all 
 legal proceedings whatever (a). 
 
 Privilege of If a person ha^ing privilege of parliament commits 
 
 parliament not ^^ ^^^ ^f bankruptcy he may be dealt mth under the 
 
 to prevent ad- ,., -n ■, t -i ^ i 
 
 judication in Act of 1869 m like manner as it he had not such pn- 
 
 bankruptcy. ^^^^^ ^^^^ 
 
 Vacating of If a person, being a member of the Commons House 
 
 ofcommoSs^ of Parhament, is adjudged bankrupt, he shaU be and 
 
 (z) Stat. 32 & 33 Vict. c. 71, («) Sect. 107. 
 
 s. 54. i^J) Sect. 120.
 
 OF BANKRUPTCY OP TRADERS. 161 
 
 remain during one year from the date of the order of 
 adjudication incapable of sitting and voting in that 
 House, unless within that time either the order is 
 annulled or the creditors who prove debts under the 
 bankruptcy are fully paid or satisfied. Provided that 
 such debts (if any) as are disputed by the bankrupt 
 shall be considered, for the purpose of this section, as 
 paid or satisfied if within the time aforesaid he enters 
 into a bond, in such sum and with such sureties as the 
 coiu't approves, to pay the amount to be recovered in 
 any proceeding for the recovery of or concerning such 
 debts, together with any costs to be given in such pro- 
 ceedings (c). 
 
 The following regulations are made by the Bank- Regulations as 
 ruptcy Act, 1869, with respect to the liquidation by {," aJmnge-""" 
 arrangement of the affairs of the debtor: ment. 
 
 (1.) A debtor imable to pay his debts may summon 
 a general meeting of his creditors, and such 
 meeting may, by a special resolution as de- 
 fined by the act, declare that the affairs of the 
 debtor are to be liquidated by arrangement 
 and not in bankruptcy, and may at that or 
 some subsequent meeting, held at an interval 
 of not more than a week, appoint a trustee, 
 uith or without a committee of inspection. 
 
 (2.) All the provisions of the act relating to a first 
 meeting of creditors, and to subsequent meet- 
 ings of creditors in the case of a banlo-uptcy, 
 including the description of creditors entitled 
 to vote at such meetings, and the debts in 
 respect of which they are entitled to vote, shall 
 apply respectively to the first meeting of cre- 
 ditors, and to subsequent meetings of creditors, 
 
 (c) Stat. 32 & 33 Vict. c. 71, s. 121. 
 W.P.P. M
 
 162 OF CHOSES IN ACTION. 
 
 for the piu-poses of this section, subject to the 
 following modifications : 
 (a.) That every such meeting shall be presided 
 over by such chairman as the meeting may 
 elect; and 
 (b.) That no creditor shall be entitled to vote 
 until he has proved by a statutory declaration 
 a debt provable in bankruptcy to be due to 
 him, and the amount of such debt, with any 
 presciibed particulars ; and any person wilfully 
 making a false declaration in relation to such 
 debt shall be guilty of a misdemeanor. 
 
 (3.) The debtor, unless prevented by sickness or other 
 cause satisfactory to such meeting, shall be 
 present at the meeting at which the special 
 resolution is passed, and shall answer any 
 inquiries made of him, and he, or if he is so 
 prevented from being at such meeting some 
 one on his behalf, shall produce to the meeting 
 a statement shoT^dng the whole of his assets 
 and debts, and the names and addresses of the 
 creditors to whom his debts are due. 
 
 (4.) The special resolution, together vnth the state- 
 ment of the assets and debts of the debtor, and 
 the name of the tiaistee appointed, and of the 
 members, if any, of the committee of inspec- 
 tion, shall be presented to the registrar, and 
 it shall be his duty to inquhe whether such 
 resolution has been passed in manner directed 
 by this section, but if satisfied that it was so 
 passed, and that a trustee has been appointed 
 with or without a committee of inspection, he 
 shall forthwith register the resolution and the 
 statement of the assets and debts of the debtor, 
 and such resolution and statement shall be 
 open for inspection on the prescribed condi-
 
 OF BANKRUPTCY OF TRADERS. 163 
 
 tions, and the liquidation by aiTangement shall 
 be deemed to have commenced as from the 
 date of the appointment of the trustee. 
 
 (5.) All such property of the debtor as woidd, if he 
 were made bankrupt, be divisible amongst his 
 creditors shall, from and after the date of the 
 appointment of a trustee, vest in such trustee 
 under a liquidation by arrangement, and be 
 di^dsible amongst the creditors, and all such 
 settlements, conveyances, transfers, char-ges, 
 payments, obligations and proceedings as 
 would be void ao:ainst the trustee in the case 
 of a bankruptcy shall be void against the 
 trustee in the case of liquidation by arrange- 
 ment. 
 
 (G.) The certificate of the registrar in respect of the 
 appointment of any trustee in the case of a 
 liquidation by arrangement shall be of the 
 same effect as a certificate of the court to the 
 like effect in the case of a banla-uptcy. 
 
 (7.) The trustee under a hquidation shall have the 
 same powers and perform the same duties, as 
 a trastee under a bankruptcy, and the property 
 of the debtor shall be distributed in the same 
 manner as in a banki'uptcy ; and with the 
 modification hereinafter mentioned all the pro- 
 visions of the act shall, so far as the same are 
 applicable, apply to the case of a liquidation 
 by aiTangement in the same manner as if the 
 word "banlvrupt" included a debtor Avhose 
 affairs are under liquidation, and the word 
 " bankruptcy " included hquidation by arrange- 
 ment ; and in construing such provisions the 
 appointment of a trustee under a liquidation 
 shall, according to circumstances, be deemed 
 to be equivalent to and a substitute for the 
 presentation of a petition in bankruptcy, or the 
 M 2
 
 164 OF CHOSES IN ACTION. 
 
 service of such petition or an order of adjudi- 
 cation in bankruptcy. 
 (8.) The creditors at their first or any general 
 meeting may prescribe the bank into which 
 the trustee is to pay any monies received by 
 him, and the sum which he may retain in his 
 hands. 
 (9.) The pro^dsions of the act with respect to the 
 close of the bankruptcy, discharge of a bank- 
 rupt, to the release of the trustee, and to the 
 audit of accounts by the comptroller, shall not 
 apply in the case of a debtor whose affairs are 
 under liquidation by aiTangement; but the 
 close of the hquidation may be fixed, and the 
 discharge of the debtor and the release of the 
 trustee may be granted by a special resolution 
 of the creditors in general meeting, and the 
 accounts may be audited in pursuance of such 
 resolution, at such time and in such manner 
 and upon such temis and conditions as the 
 creditors think fit. 
 (10.) The trustee shall report to the registrar the 
 discharge of the debtor, and a certificate of 
 such discharge given by the registrar shall 
 have the same effect as an order of discharge 
 given to a bankrupt under the act. 
 (11.) Rules of court maybe made in relation to pro- 
 ceedings on the occasion of liquidation by 
 arrangement in the same manner and to the 
 same extent and of the same authority as in 
 respect of proceedings in bankruptcy. 
 (12.) If it appear to the coiu-t on satisfactory evidence 
 that the liquidation by arrangement cannot, 
 in consequence of legal difficulties, or of there 
 being no tnistee for the time being, or for any 
 sufficient cause, proceed without injustice or 
 undue delay to the creditors or to the debtor,
 
 OF BANKRUPTCY OF TRADERS. 165 
 
 the court may adjudge the debtor a bankrupt, 
 and proceedings may be had accordingly. 
 
 (13.) Where no committee of inspection is appointed 
 the trustee may act on his own discretion in 
 cases where he would otherwise have been 
 bound to refer to such committee. 
 
 (14.) In calcvdating a majority on a special resolu- 
 tion for the purposes of this section, creditors 
 whose debts amount to sums not exceeding 
 ten pourids shall be reckoned in the majority 
 in value, but not in the majority in number (c?). 
 
 (<Z) Stat. 32 & 33 Vict. c. 71, s. 125.
 
 166 or CHOSES in actiox. 
 
 CHAPTER V. 
 
 OF BANKRUPTCr OF NON-TEADERS. 
 
 Before the Baukmptcj Act, 1861, a person not in 
 trade could not be made a bankmpt. He might, 
 however, have become insolvent. Insolvency, strictly 
 speaking, means a general inability to meet pecuniary 
 engagements («). But the term was very commonly 
 and conveniently applied to the means of getting rid of 
 such engagements afforded by certain acts of parhament 
 passed for the reUef of insolvent debtors. 
 
 Stat. 1 & 2 The principal act for the relief of insolvent debtors in 
 
 Vict. c. 110. England was the statute 1 & 2 Vict. c. 110, the former 
 sections of Avhich were, however, occupied in abolishing 
 arrest on mesne process in ci\al actions, and in extend- 
 ing the remedies of judgment creditors against the 
 property of their debtors. So far as the act related to 
 insolvent debtors, it was for the most part a reprint, 
 with some important additions, of a preWous statute for 
 the same purpose {b), by which the laws then existing 
 Discharge on the subject were amended and consolidated. The 
 rom prison. j.g}|gf afforded to the debtor was his discharge from 
 prison ; and the act accordingly only applied to persons 
 in actual custody within the walls of a prison in England. 
 Any such person in custody upon any process whatso- 
 ever, for or by reason of any debt, damages, costs, sum 
 or sums of money, or in consequence of contempt of 
 any court Avhatsoever for non-payment of money or 
 costs, taxed or untaxed, might at any time within the 
 
 (a) Biddlecombe v. Bond, 4 tinued and amended by stat. 11 
 Adol. & Ell. 332. Geo. IV. & 1 Will. IV. c. 38. 
 
 (6) Stat. 7 Geo. IV. c. 57, con-
 
 OF BANKRUPTCY OF NON-TRADERS. 167 
 
 space of fourteen days next after the commencement of 
 his actual custody, or afterwards by permission of the 
 court, apply by petition to the Court for the Relief of 
 Insolvent Debtors for his discharge from such custody, 
 according to the provisions of the act (c). In the 
 country the petition was referred for hearing to the 
 county court of the district within which the insolvent 
 was in custody (</). The insolvent himself was formerly 
 the only person who could put the machinery of the act 
 in motion ; but afterwards the creditor at whose suit the 
 prisoner was committed to prison or charged in execu- 
 tion might, if not satisfied within twenty-one days next 
 after such prisoner should have been so committed or 
 charged in execution, himself petition the court for his 
 share of the relief (e), w^hich consisted in the real and 
 personal estate and effects of the prisoner being vested 
 in the provisional assignee of the court for the benefit of 
 his creditors. 
 
 On the filing of the petition either of the debtor or of Vesting order, 
 the creditor, a vesting order, as it was termed, was made 
 by the court. By this order all the real and personal 
 estate and effects of the prisoner, both within this realm 
 and abroad (except his wearing apparel, bedding and 
 other such necessaries of himself and his family, and 
 his working tools and implements, not exceeding in the 
 whole the value of twenty pounds), and all the future 
 estate to which he might become entitled until his final 
 discharge, were vested in the provisional assignee for 
 the time being of the estates and effects of insolvent 
 debtors in England {f ). The court might subsequently Assignees, 
 
 (c) Stat. 1 & 2 Vict. c. 110, prisoner to file a schedule of his 
 
 s. 35. property ; Hollis v. Bryant, 12 
 
 (<?) Stat. 10 & 11 Vict. c. 102, Sim. 492, 501. 
 s. 10. (/) Stat. 1 & 2 Vict. c. 110, 
 
 (e) Sect. 36. In this case, how- s. 37; Ford v. JDabbs, 5 Man. & 
 
 ever, the Insolvent Court had no Gr. 309. 
 adequate means of compelling the
 
 1G8 
 
 OF CHOSES IN ACTION. 
 
 have appointed any proper person or persons to be 
 assignees of snch estate and effects, in whom the same 
 accordingly vested on the acceptance of the appoint- 
 ment being signified by him or them to the court (g). 
 The estate and effects of the prisoner were then sold 
 and converted into money by the assignees in the manner 
 directed by the act (h). And the court had power to 
 order that any property of the prisoner might be mort- 
 gaged, instead of being sold, if it should appear to 
 the com-t that his debts could be discharged by such 
 means (z). If the insolvent were a beneficed clergy- 
 man, the assignees might have obtained a sequestration 
 of the profits of the benefice for the payment of his 
 debts (/«). And if the insolvent were or had been an 
 officer under government, or in the service of the East 
 India Company, a portion of his pay, half-pay, salary, 
 emohmients or pension might, with the written consent 
 of the chief officer of the department to which he be- 
 longed or had belonged, be ordered to be paid to the 
 assignees (Z). The produce of the insolvent's estate was 
 then divided by the assignees rateably amongst the cre- 
 Voluntary pre- ditors (m). And if any prisoner should before or after 
 his imprisonment, being in insolvent circrmistances, have 
 voluntarily conveyed, charged or made over any of his 
 estate to or in trust for any creditor or creditors, every 
 such transaction was declared to be fraudulent and void 
 as against the assignees, if made within three months 
 before the commencement of the party's imprisonment, 
 or with the view or intention on his part of petitioning 
 the court for his discharge under the act (??). 
 
 Beneficed 
 clergyman. 
 
 Officer. 
 
 ference. 
 
 {g) Stat. 1 & 2 Vict. c. 110, (Z) Stat. 1 & 2 Vict. c. 110, 
 
 s. 45. 
 
 (Ji) Sect. 47. See Wright v. 
 Maunder, 4 Beav. 512. 
 
 (i) Sect. 48. 
 
 (A) Sect. 55. See stat. 12 & 13 
 Vict. c. 67. 
 
 s. 56. 
 
 (m) Sect. 62. 
 
 («-) Sect. 59. See Harris v. 
 Lloyd, 6 Beav. ^2&; Jackson v. 
 Thompson, 2 Q. B. 887 ; 3 Man. 
 & Gr. 621.
 
 OF BANKRUPTCY OF NON-TKADERS. 169 
 
 Within fourteen days next after the making of the The schedule. 
 vesting order, or within such further time as the court 
 thought reasonable, a schedule was required to be de- 
 livered into the court, signed by the prisoner, containing 
 a flill description of his name, trade or profession, place 
 of abode, debts and property of every description (o). 
 Immediately after the filing of this schedule, a time and 
 place Avere appointed by the court for the prisoner to be 
 brought up to be dealt with according to the act (p), of 
 which due notice was given to the creditors (^). His 
 schedule was then examined into on oath by the court ; 
 and any creditor might oppose his discharge, and for 
 that purpose might put such questions to the prisoner 
 and examine such witnesses as the court thought fit(r). 
 After such examination the court Avas then empowered, 
 upon the prisoner swearing to the truth of his schedule, 
 and executing the warrant of attorney to be mentioned 
 afterwards, to adjudge that such prisoner shoidd be dis- 
 charged from custody, and entitled to the benefit of the Discharge 
 act as to the several debts and sums of money mentioned ^™™ custody. 
 in the schedule, due, or claimed to be due, at the time 
 of making the vesting order, from the prisoner to the 
 persons named in his schedule, or for Avhich such persons 
 should have given him credit before the time of making 
 such vesting order, and which were not then payable, 
 and as to the claims of all other persons, not knoAvn to 
 the prisoner at the time of the adjudication, who might 
 have been indorsees or holders of any negotiable security 
 set forth in the schedide(5). The discharge might have 
 been, in the discretion of the court, either immediate, 
 or might have been postponed for six months {t) ; and 
 in certain cases of flagrant misconduct it might have 
 
 (fl) Stat. 1 & 2 Vict. c. 110, (r) Sect. 72. 
 
 s. 69. (.?) Sect. 75; Leonardo. Balier, 
 
 {p) Sect. 70. 15 Mee. & Wels. 202. 
 
 (-7) Sect. 71. {t) Sect. 7G.
 
 170 
 
 OF CHOSES IN ACTION, 
 
 Effect of dis- 
 charge. 
 
 Warrant of 
 attorney ex- 
 ecuted by 
 pi'isoner. 
 
 been postponed for any period not exceeding three 
 years {u). 
 
 The insolvent bemg thus discharged was free fr'om 
 any futiu-e imprisonment, and his property was also free 
 from execution at the suit of his creditors, for the debts 
 mentioned in the schedule (:r). And the costs of actions 
 and suits {?/), and the claims of annuity creditors {z), 
 might have been comprised in such discharge. The 
 discharge, however, was not, like that of bankruptcy, 
 final and complete ; for before any adjudication was 
 made, the prisoner was required to execute a warrant 
 of attorney, authorizing the entering up of a judgment 
 against him in one of the superior coiu'ts at Westminster, 
 in the name of the assignee or assignees, for the amount 
 of the prisoner's unsatisfied debts as stated in the sche- 
 dule. And if at any time it should have appeared to 
 the satisfaction of the com-t that the prisoner was of 
 abihty to pay such debts, or any part thereof, or that 
 he was dead leaving assets for that pm^pose, the court 
 might have permitted execution to be taken out upon 
 the judgment for such sum as it might have ordered, 
 such sum to be distributed rateably among the cre- 
 ditors («). 
 
 Insolvency 
 under stat. 
 5 & 6 Vict. 
 c. 116. 
 
 Under certain circumstances, an insolvent might, by 
 other acts of parliament have obtained as complete a 
 discharge from his debts as if he had become bank- 
 rupt {b). The acts, however, only applied to such 
 persons as had become indebted Avithout any fraud, or 
 
 (m) Stat. 1 & 2 Vict. c. 110, 
 ss. 77, 78. 
 
 (x) Sects. 90, 91. 
 
 (y) Sect. 79. 
 
 (z) Sect. 80. See Bennett v. 
 Burton, 12 Ad. & Ell. 657, 
 
 («) Sect. 87. See also sects. 8S 
 and 89. Sea HarvkesY . Halliivell, 
 2 Sma. & Giff. 498. 
 
 (b) Stats. 5 & 6 Vict. c. 116; 
 7 & 8 Vict. c. 96; 10 & 11 Vict. 
 c. 102.
 
 OF BANKRUPTCY OF NON-TRADEliS. 171 
 
 gross or culpable negligence (c). Any person so in- 
 debted, not being a trader within the bankrupt laws, 
 or being such trader, but owing debts amounting in the 
 whole to less than 300/., might, whether he should have 
 already been in prison or not (J), have applied for the 
 protection of his person fi'om process, on making a fiiU 
 disclosure and surrender of all his estate and effects for 
 the payment of his debts. The application was made 
 to the Com't for the Relief of Insolvent Debtors (e). 
 But if the petitioner should not have resided for the 
 last six calendar months within twenty miles of London, 
 but should have resided for that time within the district 
 of a County Court, application must then have been 
 made to such County Court (y). The whole estate 
 and eifects of the insolvent were then vested in the pro- 
 \'isional assignee of the Insolvent Court, or in the clerk 
 of the County Court, as the case might be, for the 
 benefit of all the creditors rateably (^). But the wear- 
 ing apparel, &c. of the petitioner and his family, not 
 exceeding the value of 20/., might have been excepted, 
 as in the other Insolvent Act, provided such excepted 
 articles, and the values thereof, were fiiUy and truly 
 described (A). With the exception of the warrant of 
 attorney given by the prisoner under the other Insolvent 
 Act, the provisions of these acts were generally similar 
 to those of that act. The filing of every petition under 
 these acts was required to be registered in the registry 
 for judgments of the County Courts (/). 
 
 In the reign of Geo. III. an act was passed for the stat. 48 Geo. 3, 
 discharge of debtors in execution upon any judgment ^' ^^^' 
 
 (c) Stats. 5 & 6 Vict. c. 116, {g) Stats. 5 & 6 Vict. c. 116, 
 
 s. 4; 7 & 8 Vict. c. 96, s. 24. s. 7; 10 & 11 Vict. c. 102, s. 5. 
 
 (<?) Stats. 7& SVict.c. 96,s.6; (A) Stat. 7 & 8 Vict. c. 96, 
 
 10 & 11 Vict. c. 102, s. 7. s. 9. 
 
 (e) Stat. 10 & 11 Vict. c. 102, (i) Stat. 17 & 18 Vict. c. 16, 
 
 ss. 6, 8. s. 2. See ante, p. 105. 
 
 (/) Ibid. s. 6.
 
 172 
 
 OF CHOSES IN ACTION. 
 
 Stat. 7 & 8 
 Vict. c. 70. 
 
 for any debt or damages not exceeding 20/., exclusive 
 of costs (A). Bvit this act is now repealed (/). An act 
 was also passed in the early part of the present reign 
 for facilitating arrangements between debtors and cre- 
 ditors (m), which applied only to such debtors as were 
 not traders within the bankrupt laws. But this act 
 also has been repealed (w). 
 
 The Bank- Xhe Bankruptcy Act, 1861 (o), made a complete 
 
 1861. ' change in the law with respect to the insolvency of 
 persons not in trade. That act repealed all the above- 
 mentioned acts for the relief of insolvent debtors, and 
 abolished the court for their relief (jo). All persons 
 whether traders or not became subject to the bankrupt 
 law (q) ; but no person was to be adjudged a bankrupt, 
 except in respect of some one of the acts of bankruptcy 
 described in the act as applicable to a non-trader (r). 
 The Bankruptcy Act, 1861, also contained provi- 
 sions for the discharge from prison of pauper and 
 lunatic prisoners for debt. These provisions apphed 
 both to traders and non-traders (5). This act also 
 contained provisions for the payment of a portion of the 
 pay, half-pay, salary, emolument or pension of any 
 bankrupt to his assignees if sanctioned by the chief 
 officer of the department to which he might have 
 Sequestration, belonged (f); also for the sequestration of the profits 
 of the benefice of any bankrupt who was a beneficed 
 clergyman (2<). But the Bankruptcy Act, 1861, has 
 
 Pauper and 
 lunatic pri- 
 soners. 
 
 Pay, half-pay, 
 &c. 
 
 (k) Stat. 48 Geo. III. c. 123. 
 See Tolson v. Dykes, 1 Phillips, 
 439. 
 
 (I) Stat. 32 & 33 Vict. c. 83. 
 
 (to) Stat. 7 & 8 Vict. c. 70. 
 
 {n) Stat. 32 & 33 Vict. c. 83. 
 
 (0) Stat. 24 & 25 Vict. c. 134. 
 
 ip) Sects. 19—27. 
 
 (i?) Sect. 69. 
 
 (»•) Sect. 69. 
 
 (s) Sects. 98—107; Bramwell 
 \. Eglinton, Q. B., 10 Jur., N. S. 
 583. 
 
 {t) Stat. 24 & 25 Vict. c. 134, 
 s. 134. 
 
 («) Sect. 135 ; Hopkins v. 
 Clarke, 4 Best & Smith, 836, 
 affirmed, 5 B. & S. 753.
 
 OF BANKRUPTCY OF XOX-TRADERS. 173 
 
 now been repealed (x), and its place is supplied by the 
 Banki'uptcy Act, 1869 (y). Imprisonment for debt Bankruptcy 
 lias also been abolished (z). Under the present act a '^ ' 
 non-trader is still liable to be made a bankrupt, and the 
 acts of bankruptcy have ah-eady been enumerated (a). 
 
 Where a bankrupt is a beneficed clergyman, the Sequestration 
 trustee (b) may apply for a sequestration of the profits tical benefice. 
 of the benefice, and the certificate of the appointment of 
 the trustee shall be sufficient authority for the granting 
 of sequestration without any writ or other proceeding, 
 and the same shall accordingly be issued as on a writ of 
 levari facias (c) founded on a judgment against the 
 bankrupt, and shall have priority over any other seques- 
 tration issued afl;er the commencement of the bankruptcy, 
 except a sequestration issued before the date of the order 
 of adjudication by or on behalf of a person who at the 
 time of the issue thereof had not notice of an act of 
 bankruptcy committed by the bankrupt, and available 
 against him for adjudication ; but the sequestrator shall 
 allow out of the profits of the benefice to the bankrupt, 
 while he performs the duties of the parish or place, such 
 an annual sum, payable quarterly, as the bishop of the 
 diocese in which the benefice is situate directs ; and the 
 bishop may appoint to the bankrupt such or the hke 
 stipend as he might by law have appointed to a curate 
 didy licensed to serve the benefice in case the bankrupt 
 had been non-resident (c?), 
 
 Where a bankrupt is or has been an officer of the Appropriation 
 army or navy, or an officer or clerk or otherwise em- ^a of^offic*ers 
 ployed or engaged in the civil service of the crown, or to creditors. 
 
 (a?) Stat. 32 & 33 Vict. c. 83. (J) Ante, p. 141. 
 
 ly) Stat. 32 & 33 Vict. c. 71. (c) Ante, p. 52. 
 
 (z) Stat. 32 & 33 Vict. c. 62, {d) Stat. 32 & 33 Vict. c. 71, 
 
 ante, p. 103. s. 88. 
 (a) Ante, pp. 135, 138.
 
 1 74 OF CHOSES IN ACTION. 
 
 is in the enjoyment of any pension or compensation 
 granted by the Treasury, the tnistee during the bank- 
 ruptcy, and the registrar after the close of the bank- 
 ruptcy, shall receive for distribution amongst the credi- 
 tors so much of the bankrupt's pay, half-pay, salary, 
 emolument, or pension as the court, upon the applica- 
 tion of the trustee, thinks just and reasonable, to be 
 paid in such manner and at such times as the court, 
 with the consent in writing of the chief officer of the 
 department under which the pay, half-pay, salary, 
 emolument, pension, or compensation is enjoyed, 
 directs {e). 
 
 Appropriation Where a bankrupt is in the receipt of a salary or 
 
 of portion of ij-jco^-^g other than as aforesaid, the court upon the 
 
 salary to ere- _ _ -■■ 
 
 ditors. application of the trustee shall from time to time make 
 
 such order as it tliinks just for the payment of such 
 
 salary or income, or of any part thereof, to the trustee 
 
 during the bankruptcy, and to the registrar if necessary 
 
 after the close of the bankruptcy, to be applied by him 
 
 in such manner as the court may direct (/"). 
 
 After the adjudication of bankruptcy has taken place, 
 the proceedings are the same whether the bankrupt may 
 have been a trader or not. 
 
 {e) Stat. 32 & 33 Vict. c. 71, s. S9. (/) Sect. 00.
 
 ( 175 ) 
 
 CHAPTER VI. 
 
 OF INSURANCE. 
 
 Having now considered, tlioiigli very briefly, the sub- 
 ject of debts generally, there remain certain debts, 
 payable on contingencies, which deserve a separate 
 notice, namely, debts arising under conti'acts to insure 
 effected by policies of insm-ance. A policy of insurance. Policy of 
 or assurance, is the name given to an instniment by ii^suranee. 
 wliich a contract to insure is entered into; and a con- 
 tract to insui-e is a contract either to indemnify against 
 a loss which may arise on the happening of some event, 
 or to pay, on the happening of some event, a sum of 
 money to the person insured. The most usual kinds of 
 insurance are, insurance of lives, insurance against loss 
 hy Jii-e, and insurance of ships and their cargoes against 
 the perils of the seas. 
 
 And, first, as to life insm-ance. The advantages of Life insurance. 
 
 life insurance are now so well knoAvn, that there is no 
 
 occasion to dilate upon them. By payment of a small 
 
 annual premium during the life insvu-ed, a sum of money 
 
 may be secured at his decease, applicable to the pajonent 
 
 of his debts, for a provision for his family, or any other 
 
 purposes. But as the insurance of lives and other 
 
 events, in which the person insured has no interest, is 
 
 often nothing more than a mischievous Idnd of gaming, 
 
 it is enacted, by an act of the 14th of George III., 
 
 that no insurance shall be made on the life of any insurances on 
 
 person, or on any other event whatsoever, wherein the V^? ^° whicli 
 •^ the insured has 
 
 person lor whose use and benent, or on whose account, no interest 
 
 such policy shall be made, shall have no interest, or by ^"'''"
 
 17G 
 
 OF CHOSES IN ACTION. 
 
 A person may 
 insure his own 
 life. 
 
 A creditor has 
 an insurable 
 interest in the 
 life of his 
 debtor. 
 
 way of gaming or wagering ; and that every such 
 assurance shall be null or void, to all intents and pur- 
 poses whatsoever (a) ; and that it shall not be lawfiil to 
 make any policy on the life of any person, or other 
 event, without inserting in the policy the person's name 
 interested therein, or for whose use or benefit, or on 
 whose account, such policy is made (b) ; and that in all 
 cases where the insured hath an interest in such life or 
 event, no greater sum shall be recovered or received 
 fi'om the insurer than the amount or value of the 
 interest of the insured in such life or other event (c). 
 But this act does not extend to insurances bond Jide 
 made on ships, goods or merchandises {d), with respect 
 to which pro\'isions have been made by another act of 
 parliament (e). Every person is considered to have a 
 sufficient interest in the diu'ation of his own life to sus- 
 tain Ids own insurance of it ; but if he should afterwards 
 put an end to his life, or die by the sentence of the law, 
 the insurance will be void in the hands of his executors; 
 and no provision to the contrary contained in the policy 
 of insurance will be of any avail (f). The assignee of a 
 person who has insured his own life is not required by 
 the above-mentioned statute to have any interest in the 
 life of such person, for the statute makes no mention of 
 the assignment of policies (^). A creditor has an in- 
 siu-able interest in the Kfe of his debtor to the extent of 
 his debt ; but if the debt should be discharged from any 
 other soiu-ce, it was foiTaerly held that the policy Avould 
 
 (^7) Stat. 14 Geo. IH. c. 48, 
 s. 1 ; ShillingY. Accidental Death 
 Insurance Company, 2 H. & N. 
 42; Hebdon v. West, 3 Best & 
 Smith, 579. 
 
 {b) Sect. 2; Hodson v. Ob- 
 server Life Assurance Societi/, 8 
 E. & B. 40. 
 
 (c) Sect. 3. 
 
 {d) Sect. 4. 
 
 (e) Stat. 19 Geo. H. c. 37, 
 amended by stat. 27 & 28 Vict, 
 c. 5G, s. 1. 
 
 (/) Amicable Assurance So- 
 ciety V. BoUand, 4 Bligh, N. S. 
 1 94, reversing Holland v. Disney, 
 3 Russ. 3.t1; see Clifty. ScJuvabe, 
 3 C. B. 437. 
 
 (g) Ashley v. Ashley, 3 Sim. 
 149.
 
 OF INSURANCE. 17V 
 
 tlienceforth be void for want of interest (A). This strict 
 law was not however usually taken advantage of by 
 the assurance offices, who generally paid the sums in- 
 siu'ed Avithout any inquiry as to the extent of the 
 interest of the party insvu'ed in the life on which the 
 insm-ance had been effected (i). And by recent de- 
 cisions (A), the doctrine that a contract for life assurance 
 is a contract for indemnity only has been overruled ; so 
 that if the person insuring has an insurable interest at 
 the time of effecting the policy, the subsequent loss 
 of such interest will not render the policy void. An Trustee, 
 interest as trustee is sufficient to support a life insur- 
 ance (/). But a father has not such an interest in the Father and 
 life of his son as to warrant an insurance of it for ^"°" 
 his own benefit (m). By recent statutes (?<), policies of 
 life insiu'ance are subject to stamp duties according to 
 the table in the note (o). 
 
 An act has recently been passed to enable assignees 
 of poHcies of life assurance to sue thereon in their own 
 
 (A) Godsall V. Boldero, 9 East, (^) Tldswell v. Angerstein, 
 
 72 ; S. C. 2 Smith's Leading Peake, N. P. Cases, 151 ; Collett 
 Cases, 157. v. Morrison, 9 Hare, 162, 176. 
 
 (i) Lloyd & Goold, Cas. Temp. {m) Halford\.Kymer,\Ql&a.ni. 
 
 Sugden, 291. & Cress. 724. 
 
 {k) Dnlhy v. India ^' London (n) Stats. 16 & 17 Vict. cc. 59, 
 
 Life Assurance Company, 15 C, 63, ss. 10, 11; 23 & 24 Vict. c. 
 B. 365; S. C. 18 Jur. 1024; Lam 111, s. 10; 28 & 29 Vict. c. 96, 
 V. London Indispxdahle Life Po- s. 15. 
 licy Company, 1 Kay & John. 223. 
 
 s. d. 
 (o) Where the sum insured does not exceed £25. ..03 
 Exceeding £25, and not exceeding £500, then for 
 
 every £50 and any fractional part of £50 ..06 
 Exceeding £500 and not exceeding £1,000, then for 
 
 every £100 and any fractional part of £100 ..10 
 Exceeding £1,000, then for every £1,000 and any 
 
 fractional part of £1,000 ........ 10 
 
 The stamp on policies for accidental death or per- 
 sonal injury is regulated by stat. 28 & 29 Vict. 
 c. 96, ss. 10-15. 
 W.P.P. N
 
 178 
 
 OF CHOSES m ACTION. 
 
 Assignees of 
 life policies 
 may sue in 
 their own 
 names. 
 
 Defence or 
 repl}- on equi- 
 table grounds 
 may be 
 pleaded. 
 
 Notice of as- 
 signment to 
 be given. 
 
 Principal 
 ])laces of busi- 
 ness to be 
 specified on 
 policies. 
 
 names (p). It provides that any person or coiporatioii 
 entitled, by assignment or other derivative title, to 
 a policy of life assurance, and possessing at the time of 
 action brought the right in equity to receive and the 
 right to give an effectual discharge to the assurance 
 company liable under such pohcy for monies thereby 
 assured or secured, shall be at liberty to sue at law in 
 the name of such person or corporation to recover such 
 monies (g). In any action on a policy of life assurance, 
 a defence on equitable grounds, or a reply to such 
 defence on similar grounds, may be respectively pleaded 
 and relied upon in the same manner and to the same 
 extent as in any other personal action (r). No assign- 
 ment made after .the passing of the act of a poHcy of life 
 assm-ance shall confer on the assignee therein named, 
 his executors, administrators or assigns, any right to 
 sue for the amount of such poHcy, or the monies 
 assured or sectrred thereby, until a "written notice of the 
 date and pm-port of such assignment shaU have been 
 given to the assurance company liable under such 
 policy at their principal place of business for the time 
 being ; and the date on which such notice shall be re- 
 ceived shall regulate the priority of all claims imder 
 any assignment ; and a payment bond Jide made in 
 respect of any policy by any assurance company before 
 the date on which such notice shaU have been received, 
 shall be as valid against the assignee giving such notice 
 as if the act had not been passed {s). Eveiy assiu'ance 
 company is requu-ed on every poKcy issued by them 
 after the 30th of September, 1867, to specify their 
 principal place or places of business at which notices of 
 assignment may be given in pursuance of the act (#). 
 And every assurance company to whom notice shall 
 
 (^p) Stat. 30 & 31 Vict. c. 144. (s) Sect. 3. 
 
 (5-) Sect. 1. (f) Sect. 4. 
 
 (»•) Sect. 2.
 
 OF INSURANCE. 179 
 
 have been duly given of the assignment of any policy Notices of 
 under which they are liable, shall, upon the request in fssignment to 
 
 . . •' ^ \ lie acknow- 
 
 writmg of any person by whom any such notice was ledgcd. 
 given or signed, or of his executors or administrators, 
 and upon payment in each case of a fee not exceeding 
 five shillings, deliver an acknowledgment in writing 
 under the hand of their principal officer of their receipt 
 of such notice ; and every such Avritten acknowledg- 
 ment, if signed by a person being dejure or de facto the 
 principal officer of the company whose acknowledgment 
 the same purports to be, shall be conclusive evidence as 
 against the company of their ha\dng duly received the 
 notice to which such acknowledgment relates (^u). 
 
 Insurance against fire is a contract to indemnify Fire insurance, 
 against loss by fire, and is usually renewed from year to 
 year on payment of a premium. The person who effijcts 
 such an insurance must have an interest in the property 
 insured, and he cannot recover beyond the extent of his 
 interest ; neither can he assign his policy without the 
 consent of the insurers {x). When the building insured 
 is situate mtliin the limits of the Metropolitan Building 
 Acts, any person interested may procure the insurance 
 money, in case of fire, to be laid out in repairs or re- 
 building (y). A covenant to insure any building within 
 such limits is therefore tantamount to a covenant to 
 repair to the extent of such insurance, and, if entered 
 into by a lessee in his lease, "will run tcith the land, so 
 as to be binding on the assignee of the lease (z). And 
 
 (w) Stat. 30 & 31 Vict. c. 144, by stat. 18 & 19 Vict. c. 122, s. 
 s. 6. 109. 
 
 {x) Lynch v. Dalzell, 4 Bro. {z) Version v. Smith, 5 Bam. & 
 
 Pari. Cas. 431; Saddlers' Com- Aid. 1; see Principles of the Law 
 
 2)anij V. Badcocli, 2 Atk. 554. of Real Property, 31G, 2nd ed. ; 
 
 (y) Stat. 14 Geo. IH. c. 78, 326, 3rd ed.; 331, 4th ed. ; 342, 
 
 s. 83. This section is not repealed 5th ed. ; 359, 6th ed. ; 367, 7th ed. ; 
 
 383, 8th ed. 
 n2
 
 180 
 
 OF CnOSES IN ACTION. 
 
 New enact- 
 ment. 
 
 Belief against 
 forfeiture. 
 
 Lessor to have 
 benefit of in- 
 formal insur- 
 ance. 
 
 Protection of 
 purchasers. 
 
 it is now decided that, according to the tme construc- 
 tion of the act of Geo. III. relating to this subject, the 
 law is the same even if the bnilding be situate beyond 
 the above-mentioned limits (a). A recent enactment 
 empoAvers a Court of Equity to relieve against a for- 
 feiture for breach of a covenant or condition to insure 
 against fire, when no loss or damage by fire has hap- 
 pened, and the breach has, in the opinion of the court, 
 been committed through accident or mistake, or other- 
 wise A^athout fi-aud or gross negligence, and there is an 
 insurance on foot at the time of the apphcation to the 
 court in conformity AAith the covenant to insure (b). 
 But the same person is not to be relieved more than 
 once, or where a forfeiture has been already waived out 
 of court (c). It is also provided that the person entitled 
 to the benefit of a covenant on the part of the lessee or 
 mortgagor to insiu^e against fire shall, on loss or damage 
 by fire happening, have the same advantage fi-om any 
 then subsisting insurance of the premises, effected by 
 the lessee or mortgagor, or by any person claiming 
 under him, but not effected in conformity with the cove- 
 nant, as he would have from an insurance effected in 
 conformity with the covenant (d). There is a further 
 enactment, which will be very beneficial to the pur- 
 chasers of leasehold property, namely, that where, on a 
 bondjide purchase of such property, the piu^chaser is 
 furnished with a receipt for the last payment of rent 
 accrued due before the completion of the purchase, and 
 an insurance is subsisting in conformity with the lessee's 
 covenant to insure, the purchaser shaU not be hable for 
 any breach of such covenant, committed at any time 
 
 (rt) See 4 Jur., N. S. pt. 2, p. 
 132; Sim2Json v. Scottlslb Union, 
 4-c.,\. C. W., 11 W. K. 459; 1 
 Hem. & Mill. G18; J?e Barker, L. 
 C, 10 Jur., N. S. 10S5. 
 
 (5) Stat. 22 & 2.3 Vict. c. 35, 
 s. 7; Page v. Bennett, 2 Giif. 117. 
 
 (f) Stat. 22 & 23 Vict. c. 35, 
 s. 6. 
 
 {(1) Sect 7.
 
 OF INSUKANCE. 181 
 
 before tlie completion of tlie purchase, of which he had 
 not notice before such completion (e). 
 
 The insiu"ance of ships and their cargoes from the Insurance of 
 perils of the sea is a matter belonging rather to mer- ' ^^'^' 
 cantile law than to the department of conveyancing. 
 In this kind of insurance, as well as in the others, an 
 interest in the property insured must generally belong 
 to the party effecting the insurance, if the ship be a 
 British vessel, or the goods be laden on board any such 
 vessel {/)' It is now jirovided that whenever a policy 
 of insurance on any ship or on any goods in any ship, or 
 on any freight, has been assigned so as to pass the 
 beneficial interest in such policy to any person entitled 
 to the property thereby insured, the assignee of such 
 policy shall be entitled to sue thereon in his o^vn name ; Assignee may 
 and the defendant in any action shall be entitled to make ^a^"^ ^^ ^^^"^ 
 any defence which he woidd have been entitled to make 
 if the said action had been brought in the name of the 
 person by whom or for whose account the policy sued 
 upon was effected (g). Full information on the subject 
 of marine insurance will be found in Park on Insurance, 
 Arnould on Marine Insurance, Abbott on Shipping, 
 and in the chapter on maritime insurance in the late 
 J. W. Smith's admirable Compendium of Mercantile 
 Law. Connected with maritime insurance are botfomri/ 
 and respondentia. Bottomry is an agreement by which Bottomry. 
 a vessel is hypothecated or pledged by the owner for the 
 payment, in the event of her voyage terminating success- 
 fully, of money advanced to him for the necessary use 
 of the vessel, together with interest, Avliich interest, in 
 
 (p) Stat. 22 & 23 Vict. c. 35, The stamps on sea insurance are 
 
 s. 8. The ad valorem duty on now regulated by stat. 30 Vict, 
 
 fire insurances is now repealed by c. 23, s. 3 et seq. 
 Stat. 32 Vict. c. 14, s. 12. (</) Stat. 31 & 32 Vict. c. 86, 
 
 (/) Stat. 19 Geo. II. c. 37, s. 1. s. 1.
 
 182 OF CHOSES IN ACTION. 
 
 consideration of tlie risk incuiTed, is generally far 
 rvcppoudcntia. beyond five per cent., formerly tlie legal rate (h). Re- 
 spondentia is a somewhat similar contract wath respect 
 to the cargo, except that the boiTOwer only is responsible 
 in the event of the safe tennination of the voyage, the 
 lender having no hen on the goods (i). 
 
 (/<) Slmouds V, Hodgson, 3 B. (t) 2 Black. Com. 457. 
 
 & Adol. 50.
 
 ( 183 ) 
 
 CHAPTER VII. 
 
 OF ARBITRATION. 
 
 Instead of tlie ultimate remedy of an action at law or 
 suit in equity, recourse is sometimes had for the set- 
 tlement of disputes to the more amicable expedient of 
 arbitration. And in some transactions, especially in Agreements 
 
 articles of co-partnership between traders, it is usual to to lefer to 
 ^ ^ j^ \ arbitratioD. 
 
 stipulate that, if any dispute shall arise, it shall be re- 
 ferred to the determination of two indifferent persons as 
 arbitrators, or of their umpire, who is usually and very 
 properly required to be chosen by the arbitrators before 
 they proceed to take the subject in question into consi- 
 deration ( a). And it is agreed that the award in writing 
 of the arbitrators, or of their umpire in case of their 
 disagreement, shall be binding and conclusive on all 
 parties. 
 
 As the courts of law and equity have fidl jurisdiction Jurisdiction of 
 on all questions arising out of agreements of any kind, mattei-rao-reed! 
 it follows that they retain a jm-isdiction over matters to be refei-red 
 which the parties themselves have agreed should be 
 referred to arbitration (5). Notmthstanding, therefore, 
 an agreement to refer disputes to ' arbitration, either 
 party may bring the matter into court (c). But the Kew enact- 
 Common Law Procedure Act, 1854, now provides, ^^^ ' 
 that, whenever the parties to any deed or instrmnent in 
 Avriting to be thereafter executed shall agree to refer 
 
 (a) See Bates y. Cooke, d Barn. 10, 18; Mcxhorough v. Bower, 7 
 & Cress. 407, 408. Beav. 127, 132; Horton v. Sayers, 
 
 (b) Wellington v. Machintosli, 4 H. & N. 643; Coolt v. Cook, 
 2 Atk. 569. V. C. W., 15 W. E. 981. 
 
 (c) Wate7-s V. Taylor, 15 Ves.
 
 184 OF cnosES m action. 
 
 their differences to arbitration, and one of sncli parties 
 shall nevertheless commence an action at law or suit 
 in equity against the others in respect of the matters so 
 agreed to be referred, the com-t may stay the proceedings 
 on such terms as it may think fit, on being satisfied 
 that no sufficient reason exists why such matters cannot 
 be or ought not to be referred to arbiti-ation, and that 
 the defendant was at the time of the bringing of such 
 action or suit and still is ready and willing to concur 
 in all acts necessary for causing such matters to be de- 
 cided by arbitration (d). And a contract may be so 
 r worded as to amoimt to merely an agreement to pay 
 
 so much as an arbitrator may award, in which case 
 there can be no right to sue until the award has been 
 made (e). 
 
 Eeference by The reference of disputes to arbitration appears to 
 rule of court, ^i^^tq been early adopted by the courts of law, with the 
 consent of the parties to an action, in cases where the 
 matter in dispute could be more conveniently settled in 
 this mode. A verdict was taken for the plaintiff by 
 consent, subject to the award of an arbitrator agreed 
 upon by the parties, and the reference was made a rule 
 of comi;. This plan is still continually adopted. The 
 arbitrators and the parties to the reference by this means 
 become subject to the jm-isdiction of the court, which 
 has power to set aside any award which may appear to 
 have been given unjustly or through mistake of the law; 
 or if the award be valid, its performance may be en- 
 forced under the penalty of imprisonment for contempt 
 
 id) Stat. 17 & 18 Vict. c. 125, V. C. W., 10 Jur., N. S. 1068. 
 
 s.ll; Hirschv.ImThtirn,i C. B., (e) Scott y. Avert/, 5 House of 
 
 N. S. 569. See Mason v. Haddan, Lords Cases, 811; Scott v. Corpo- 
 
 6 C. B., N. S. 526; WJieatley v. ratio7i of Liverpool, 3 De Gex & 
 
 Westminster Brymho Coal and Jones, 33-1; Elliott \. Royal Ex- 
 
 CoTie Company, Limited, 2 Drew. chajige Assurance Company, Law 
 
 & Sma. 347; Cook v. Catchpole, Eep., 2 Ex. 237.
 
 or AKBITRATION. 185 
 
 of court. And by the Common Law Procedm-e Act, 
 1854, the court has power, upon the appUcation of either 
 party, to order any matter in dispute, which consists 
 wholly or in part of matters of mere account, to be re- 
 ferred to arbitration, upon such terms as to costs and 
 othenvise as the court may think reasonable (/*). In 
 order to extend the benefits of this mode of submission 
 to arbitration to all cases of controversies between 
 merchants and traders or others concernine; matters of 
 account or trade or other matters, an act of parliament 
 was passed in the reign of William the Third, intitided 
 " An Act for determining Differences by Arbitra- Act for deter- 
 tion" {g). This act empowers aU merchants and traders }e|")j"f g'b^" 
 and others desiring to end by arbitration any con- arbitration. 
 troversy, for which there is no other remedy but by 
 personal action or suit in equity, to agree that their 
 submission of their suit to the award or umpirage of 
 any person or persons shall be made a rule of any of 
 her majesty's corn-ts of record which the parties shaU 
 choose. And it pro^ddes, that, in case of disobedience 
 to the arbitration or umpirage to be made pursuant to 
 such submission, the party neglecting or refusing to 
 perform and execute the same, or any part thereof, shall 
 be subject to all the penalties of contemning a ride of 
 court when he is a suitor or defendant in such court. 
 And the process to be issued accordingly shaU not be 
 stopped or delayed in its execution by any order, rule, 
 command or process of any other court, either of law or 
 equity, unless it shall be made to appear on oath to such 
 court that the arbitrators or umpire misbehave them- 
 selves, and that such award, arbitration or umpirage was 
 procured by corniption or other undue means. It is 
 also further provided (Ji), that any arbitration or um- 
 pirage procured by corruption or undue means shall be 
 
 (/) Stat. 17 & 18 Vict. c. 125, (^7) Stat. 9 & 10 Will. III. c. 
 
 ss. 3, 6, 7. 15. 
 
 ill) Sect. 2.
 
 186 
 
 OF CHOSES IN ACTION. 
 
 Submission to 
 arbitration 
 may now be 
 made a rule 
 of court. 
 
 Revocation of 
 submission. 
 
 judged void, and be set aside by any court of law or 
 equity, so as complaint of such coiTuption or undue 
 practice be made in the court where the rule is made for 
 submission to such arbitration or umpirage before the 
 last day of the next term after such arbitration or mn- 
 pirage is made and published to the parties. The 
 Comt of Chancery is a court of record within the 
 meaning of this act {i). And it is now provided, that 
 every agreement or svibmission to arbitration by consent, 
 whether by deed or instrument in writing not imder 
 seal, may be made a rule of any one of the superior 
 com-ts of law or equity at Westminster, on the applica- 
 tion of any party thereto, unless such agi-eement or 
 submission contain words purporting that the parties 
 intend that it should not be made a nde of court ; but 
 where it is pro\^ded that it shall be made a rule of one 
 of such courts in particular, it may be made a rule of 
 that court only ( j). A parol submission cannot be 
 made a rule of court, even though made in pm'suance 
 of an agreement to refer contained in a deed (k). 
 
 Previously to a recent statute either party might 
 have revoked his submission, and thus determined the 
 authority of the arbitrators ; and this may still be done, 
 if the submission relate to criminal matters, which are 
 not within the statute (Z). But it is now enacted (m), 
 that the power and authority of any arbitrator or umpire, 
 appointed by or in pursuance of any rule of court or 
 judge's order or order of nisi prius in any action, or by 
 or in pursuance of any submission to reference contain- 
 ing an agreement that such submission shall be made a 
 
 SK'mnertun, 2 
 
 (i) Heming 
 Pbil. 79. 
 
 (j) Stat. 17 & 18 Vict. c. 125, 
 s. 17; Re Newton and Hether- 
 ington, 19 C. B., N. S. 342; Parlies 
 V. Smith, 15 Q. B. 297. 
 
 (/.;) Ex parte Glaysher, 3 Hurl. 
 & Colt. 442. 
 
 (0 2 Wms. Saund. 133 e, n. {(T); 
 Rex.Y. Bar dell, 5 Ad. & Ell. 619; 
 S. C. 1 Nev. & P. 74. 
 
 («0 Stat. 3 & 4 Will. IV. c. 42, 
 s. 39.
 
 OF ARBITRATION. 187 
 
 ride of any of her majesty's courts of record, shall not 
 be revocable by any party to such reference without the 
 leave of the court by which such rule or order shall 
 be made, or which shall be mentioned in such submis- 
 sion, or by leave of a judge (n). And the arbitrator or 
 lunpire is empowered and required to proceed with the 
 reference notwithstanding any such revocation, and to 
 make such award although the person making such 
 revocation shall not afterwards attend the reference. 
 The court, or any judge, is also empowered under any 
 such reference, by rule or order, to command the attend- 
 ance and examination of witnesses, or the production of 
 any document (o). And by the act to amend the law 
 of evidence it is now provided, that every arbitrator or 
 other person, having by law or by consent of parties 
 authority to hear, receive and examine evidence, may 
 administer an oath to all such witnesses as are legally 
 called before them respectively ( p). 
 
 The Common Law Procedure Act, 1854, provides. On failure of 
 that if reference is authorized to be made to a single P^""*^^*^^ J"^^s® 
 
 o may appoint 
 
 arbitrator, and all the parties do not, after differences an arbitrator. 
 have arisen, concur in the appointment of an arbi- 
 trator ; or if any appointed arbitrator refuse or become 
 incapable to act, or die, and the terms of the document 
 authorizing the reference do not show that it was in- 
 tended that such vacancy should not be supplied, and 
 the parties do not concur in appointing a new one ; then 
 any party may serve the remaining parties with a written 
 notice to appoint an arbitrator ; and if within seven clear 
 days after such notice shall have been served no arbi- 
 trator be appointed, it shall be lawftd for any judge of 
 any of the superior courts of law or equity at West- 
 minster, upon summons to be taken out by the party 
 
 («) See Scott v. Van Sandmi, s. 40. 
 1 Q. B. 102, (^y) Stat. U Si 15 Vict. c. 99, 
 
 (o) Stat. 3 & 4 Will. IV. c. 42, s. 16.
 
 188 
 
 OF CHOSES IN ACTION. 
 
 Death of cither 
 party. 
 
 Bankruptcy. 
 
 having serv.ed siicli notice, to appoint an arbitrator, wlio 
 sliall have the same power to act in the reference and 
 to make an award as if he had been appointed bj con- 
 sent of all parties {q). 
 
 The authority of arbitrators is hable to be determined 
 not only by a revocation of the submission, but also by 
 the death of either of the parties previously to the 
 making of the award (r). In order to obviate this in- 
 convenience, it is now usual to insert in the order or 
 rule of coiu't, by which reference is made to arbitration, 
 a provision that the death of either of the parties shall 
 not operate as a revocation of the authority of the 
 arbitrators, but that the award shall be dehvered to the 
 executors or administrators of the parties, or either of 
 them, in case of their or liis decease (5). And the same 
 stipulation may be effectually made in a submission to 
 arbitration by private agreement (f). The banki'uptcy 
 of either party is not a determination of a submission 
 to arbitration {u). 
 
 Death, &c. of 
 one of two 
 arbitrators. 
 
 If one party 
 fail to appoint, 
 the other ]5arty 
 may appoint 
 his arbitrator 
 to act solely. 
 
 ^\nien the reference is made to two arbitrators, one 
 appointed by each party, it is now pro\aded (u), that 
 either party may, in case of the death, refusal to act or 
 incapacity of any arbitrator appointed by him, substitute 
 a new arbitrator, unless the document authorizhig the 
 reference show that it was intended that a vacancy 
 should not be supplied. And if on such a reference one 
 party fail to appoint an arbitrator, either originally or 
 by way of substitution as aforesaid, for seven clear days 
 
 {q) Stat. 17 & 18 Vict. c. 125, 
 s. 12. 
 
 {)•) Cooper V. Johnson, 2 Bam. 
 & Aid. 394; £rooke v. Mitchell, 
 6 Mee. & Wels. 473. 
 
 (a) Tyler v. Jones, 3 Bam. & 
 Cress. 144; Prior v. Hemhrow, 8 
 Mee. & Wels. 873; 2 Wms. Sauud. 
 
 133 d, n. {d). 
 
 {t) JMacdougall v. Roiertson, 2 
 You. & Jerv. 11; S. C. 4 Bing. 
 435; 1 Moo. & P. 147. 
 
 (?/) Hemsnorth v. Bryan, 1 C. 
 B. 131. 
 
 (r) Stat. 17 & 18 Vict. c. 125, 
 s. 13.
 
 OF ARBITRATION, 189 
 
 after the other party shall have appointed an arbitrator, 
 and shall have sei-^^ed the party so failing to appoint 
 with notice in writing to make the appointment, the 
 party Avho has appointed an arbitrator may appoint such 
 arbitrator to act as sole arbitrator in the reference ; and 
 an award made by him shall be binding on both parties 
 as if the appointment had been by consent ; provided, 
 however, that the court or a judge may revoke such 
 appointment on such terms as shall seem just. 
 
 Wlien no time is limited for the making of the award Time for 
 it must be made -vvithin a reasonable time (.r) ; but if a awards 
 given time be limited, the award must be made within 
 that time, unless the time for making it be enlarged (y). 
 And if the award is required to be made and ready to 
 be delivered to the parties by a certain day, it will be 
 considered as ready to be delivered if it be made {z), 
 unless the arbitrators should fail to deliver it to either 
 of the parties on request made for that purpose on the 
 last day (a). The submission to arbitration frequently Enlargement 
 contains a power for the arbitrators or umpire to enlarge *""^' 
 the time for making the aAvard ; and in this case the 
 time may be enlarged from time to time (Z») by such 
 arbitrators or umpire (c), provided the enlargement be 
 made on or before the expiration of the time originally 
 limited for making the award {d). And if the submis- 
 sion be made a rule of com-t, then, whether the arbi- 
 trators or umpire have power to enlarge the time or 
 not (e), the com-t, or a judge thereof, has power to 
 
 (a;) 3Iacdougall v. Robertson, 658. 
 nbi supra. (t?) See Dlmsdale v. Robertson, 
 
 (y) 1 Wms. Saund. 327 a, n. (3). 2 Joues & Lat. 58. 
 
 (z) Bradsey t. Clyston, Cro. {d) See Raid v. Fi'yatt, 1 M. 
 
 Car. 541. & Sel. 1; Mason v. WalUs, 10 13, 
 
 (a) BrooTie v. Mitchell, 6 Mec. & Cress. 107. 
 
 & Wels. 473. (e) Parbery v. Newnham, 7 
 
 (b) Payne v. Bealde, 1 Taunt. Mce. & Wels. 378 ; Leslie v. 
 509; Barrett v. Parry, 4 Taunt. Richardson, 6 C. B. 378.
 
 190 OF CHOSES IN ACTION. 
 
 enlarge tlie time (/). And should no enlargement be 
 formally made, yet the parties may, by continuing their 
 attendance on the reference, or by recognizing the pro- 
 ceedings under it, viiiually empower the arbitrators or 
 umpu-e to make a valid award subsequently to the time 
 originally limited {g). And the Common Law Pro- 
 cediu-e Act, 1854, noAv provides, that the arbitrator 
 acting under any such document or compulsory order 
 of reference, as mentioned in the act, shall make his 
 award under his hand, and (unless such docmnent or 
 order respectively shall contain a different Hmit of time) 
 within three months after he shall have been appointed 
 and shall have entered on the reference, or shaU have 
 been called upon to act by a notice in writing from any 
 party ; but the parties may, by consent in writing, enlarge 
 the term for making the award. And the superior coiu't 
 of which such submission, document or order is or may 
 be made a rvde or order, or any judge thereof, may for 
 good cause truly stated in tlie rule or order for enlarge- 
 ment from time to time enlarge the term for making the 
 award ; and if no period be stated for the enlargement 
 in such consent or order for enlargement, it shall be 
 deemed to be an enlargement for one month (Ji). The 
 word " month " in an act of parliament now means a 
 calendar month {i). 
 
 Attendance of 111 proceeding in the business of the arbitration, the 
 the parties, arbitrators are boimd to requhe the attendance of the 
 parties, for which pm^ose notice of the meetings of the 
 arbitrators shoidd be given to them (j). But if either 
 party neglect to attend either in person or by attorney, 
 after due notice, the arbitrators may proceed without 
 
 (/) Stat. 3 & 4 Will. IV. c. 42, (70 Stat. 17 & 18 Vict. c. 125, 
 
 s. 39 ; Re Warner and Powell's s. 15. 
 
 Arbitration, V. C. S., Law Rep., (/) Stat. 13 & 14 Vict. c. 21, 
 
 3 Eq. 2G1. s. 4. 
 
 (</) Bex V. Hill, 7 Price, G36. (J) Aiuui., 1 Salk. 71.
 
 OF ARBITRATION. 191 
 
 him (/{). In taking the evidence the arbitrators are at Mode of pro- 
 liberty to proceed in any way they please, if the parties ^ '^ °' 
 have due notice of their proceedings, and do not object 
 before the award is made (Z). But each must use his 
 ovni judgment (m) ; and in order to ob\date any objec- 
 tion, they ought to proceed in the admission of e^ddence 
 according to the ordinary rules of law (w). The award 
 should be signed by the arbitrators in each other's 
 presence (o), and when made it must be both certain 
 and final. Thus if the award be that one party enter Award mnsf. 
 into a bond with the other for his quiet enjoyment of g^j^l!' 
 certain lands ; this award is void for uncertainty ; for 
 it does not ajjpear in what sum the bond should be ( />). 
 With regard to certainty, however, the rule of law is id 
 certiim est quod certum reddi potest, and therefore an 
 aAvard that one of the parties should pay the costs of an 
 action is good without fixing the amount of the costs, 
 for that may be ascertained by the taxing officer (^). 
 On the question of finality many cases have arisen. If 
 the arbitrators be empowered to decide all matters in dif- 
 ference between the parties, the award will not neces- 
 sarily be wanting in finahty for not deciding on all such 
 matters, unless it appear to have been required that all 
 such matters shovdd be determined by the award (r). If 
 the award reserve to the arbitrators (5), or to give to any 
 other person (^), or to one of the parties (m), any flirther 
 
 (A') Har court t. Ramsiottom, (p) Samon's case, 5 Rep. 77 b. 
 
 1 Jac. & "Walk. 512; Scott v. Van (q) Cargey v. Aitcheson, 2 B. 
 
 Sandau, 6 Q. B. 237. & Cress. 170; S. C. 3 Dowl, & Ry. 
 
 (J) Rldout V. Pye, 1 Bos. & P. 433; 2 Wms. Saund. 293 b, n. («). 
 
 91. (?') Wrightson y. Bynmtcr, 3 
 
 (jti) Wliitnwre v. Smith, 5 H, Mee. & Wels. 199; 1 Wms. Saund, 
 
 & N. 824. 32 a, n. («). 
 
 (n) Attoi'ney- General y. Da I- i^ (s) Manser y. Heaver, 3 Bar. 
 
 son, M'Clcl. & Y. 160. & Adol. 295. 
 
 (0) Stal7V07-th y. In?is, 13 Mee. (t) Toinlin v. Mayor of Ford- 
 
 & Wels. 466 ; Wade v. DowUng, wick, 5 Ad. & Ell. 147. 
 
 Q. B. 18 Jur. 728; 2 E. & B. 44; (?/) Glover v. Barrie, 1 Salk. 
 
 Eads V. Williains, 4 De Gex, M. 71. 
 & G. 674, 688.
 
 192 OF CHOSES IN ACTION. 
 
 authority or discretion in the matter, it will be bad for 
 Avant of finality. And if the award be that any stranger 
 to the reference should do an act, or that money 
 should be paid to, or any other act done in favour of, a 
 stranger, unless for the benefit of one of the parties {x), 
 such aAvard Avill be void (y). An award, however, may 
 be partly good and partly bad, provided the bad part is 
 independent of and can be separated from that which is 
 good(2r). But if, by reason of the invalidity of part of 
 the award, one of the parties cannot have the advantage 
 intended for him as a recompense for that Avhich he is 
 to do, according to that part of the aAvard which would 
 othei-wise be valid, the Avhole Avill be void (a). If it 
 should appear on the face of the award that the arbi- 
 trators, intending to decide a point of laAv, have fallen 
 into an obvious mistake of the law, the award will be 
 invalid (b). But where subjects invohdng questions 
 both of law and fact are referred to arbitration, the 
 arbitrators may make an aAvard according to what they 
 beheve to be the justice of the case, ii-respective of the 
 Arbitrator law on any particidar point ( c). And it is now provided, 
 may state ^j^g^^ j^ ^\^^]\ i^q laAvful for the arbitrator, upon any com- 
 
 special case -i ^ r^ t "r> j 
 
 for the opinion pulsory reference under the Common l^aw I'rocedure 
 
 of the couit. j^^^^ 1854, or upon any reference by consent of parties, 
 where the submission is or may be made a rule or order 
 of any of the superior com-ts of law or equity at West- 
 minster, if he shall think fit, and if it is not proAaded 
 to the contrary, to state his award as to the Avhole or 
 any part thereof in the form of a special case for the 
 
 (a-) Woody.Adcoc7i,7'E:ii.Ile^. (a) 2 Wms. Saund. 293 b, n. 
 
 4G8. (1). 
 
 (y) Cooke Y. Whorwood, 2 (&) Ilidoxd v. Pain, 3 Atk. 
 
 Saund. 337 ; Adam \. Statham, 494 ; Richardson v. A'ovrse, 8 
 
 2 Lev. 235; Fisher v. PimUey, Barn. & Aid. 237. 
 
 11 East, 188. (c) Re Badger, 2 Barn. & Aid. 
 
 (z) Fox V. Smith, 2 TVils. 2G7; G91 ; Yoitng v. Walker, 9 Ves. 
 
 Aitcheson v. Cargey, 2 Bing. 199. 364 ; Hodgkinson v. Fernie, 3 
 
 C. B., N. S. 189.
 
 OF ARBITRATION. 193 
 
 Opinion of the court ; and when an action is referred, 
 judgment, if so ordered, may be entered according to 
 the opinion of the court (^). 
 
 When the submission to arbitration is not made the Setting aside 
 rule of any other court (e), the Court of Chancery, ac- 
 cording to tlie ordinary principles of equity, has power 
 to set aside the award for corruption or other miscon- 
 duct on the part of the arbitrators, or if they should be 
 mistaken in a plain point of law or fact(y). If the 
 submission be made a rule of coiu't under the above- 
 mentioned statute of Will. III. {g^, the court of Avhich 
 it is made a rule has power to set aside the award, not 
 only on the grounds of corruption or undue practice 
 mentioned in the act, but also for mistakes in point of 
 law (A) ; and no other court has a right to entertain any 
 application for this purpose (z). The application to set 
 aside the award must, however, be made Avithin the time 
 limited by the act (k). But although the time limited 
 by that statute may have expired, yet if there be any 
 defect apparent on the face of the award, the court will 
 not assist in carrying it into effect by granting an attach- 
 ment for its nonperformance (/). If the submission to 
 arbitration be made by rule or order of the court in any 
 cause independently of the statute, the court still retains 
 its ancient jm-isdiction of setting aside the awai-d on 
 account either of the misconduct of the arbitrators, or 
 of their mistake in point of law (m). In analogy, how- 
 
 {(l) Stat. 17 & 18 Vict. c. 125, Coxeter, 1 Stra. 301; see 1 Wras. 
 
 s. 5. Saund. 327 d, n. (s). 
 
 (e) Nichols V. Roe, 3 Myl. & (i) Stat. 9 & 10 Will. III. c. 15, 
 
 Keen, 431. s. 2; Nichols v. Roe, 3 Myl. & 
 
 (/) Ridont V. Pain, 3 Atk. Keen, 431. 
 
 41)4. (Ji) Lowndes v. Lowndes, 1 
 
 {g) Stat. 9 & 10 Will. III. c. East, 276; ante, p. 185. 
 
 15. (0 Pedley v. Goddard, 7 T. 
 
 {h) Zachary v. Shepherd, 2 T. Rep. 73. 
 
 Rep. 781; Lowndes y. Lowndes, \ (w) Lucas v. Wilson, 2 Buit. 
 
 East, 276, overruling Anderson v. 701. 
 
 W.P.P. O
 
 194 
 
 OF CHOSES IN ACTIOX. 
 
 Two arbitra- 
 tors may 
 appoint an 
 umpire. 
 
 On failure of 
 parties judge 
 may appoint 
 an umpire. 
 
 ever, to the practice under the statute of Will. III., the 
 court in ordinary cases requires application for setting 
 aside the award to be made mthin the time limited by 
 that statute (w) ; but upon sufficient grounds it will 
 grant such an application, though made after the expi- 
 ration of that time (o). All apphcations, however, to 
 set aside any award made on a compulsory reference 
 under the Common Law Procedure Act, 1854, must 
 be made ^^ithin the first seven days of the term next 
 following the publication of the award to the parties, 
 w^hether made in vacation or term ; and if no such 
 application is made, or if no rule is granted thereon, 
 or if any rule granted thereon is afterwards discharged, 
 the award is final(p). The coiui; or a judge has also 
 power to remit the matters referred to arbitration, or 
 any of them, to the reconsideration of the arbitrator, 
 upon such terms as to costs and otherwise as to such 
 coiu-t or judge may seem proper (^q). 
 
 It is usual to pro^ade for the appointment of an um- 
 pire in case the parties should disagi'ce. But the Com- 
 mon Law Procedm-e Act, 1854, now pi'ovides(r), that 
 when the reference is to two arbitrators, and the terms 
 of the document authorizing it do not show that it was 
 intended that there should not be an umpii-e, or provide 
 otherA\4se for the appointment of an umpire, the two 
 arbitrators may appoint an umpire at any time within 
 the period during which they have power to make an 
 aAvard, unless they be called upon to make the appoint- 
 ment sooner, by notice under the following provision. 
 And if, where the parties or two arbitrators are at 
 liberty to appoint an umpire or thu-d arbitrator, such 
 
 (?i) Macarthvr v. Cavijjbell, 5 
 Bam. & Adol. 518; Smith v. 
 Whitmore, 1 Hem. & Mill. 576, 
 affirmed 10 Jur., N. S. 1190. 
 
 (o) Matvsthoj'n v. Arnold, 6 
 
 Bam. & Cress. 629; S. C. 9 Dow. 
 & Ky. 556. 
 
 {p) Stat. 17 & 18 Vict. c. 125, 
 s. 9. 
 
 {q) Ibid. s. 8. 
 
 {r) Ibid. s. li.
 
 OF ARBITRATION. 195 
 
 parties or arbitrators do not appoint an umpire or 
 third arbitrator, or if any appointed umpire or third 
 arbitrator refiise to act, or become incapable of acting, 
 or die, and the terms of the document authorizing the 
 reference do not show that it was intended that such 
 a vacancy should not be supplied, and the parties or 
 arbitrators respectively do not appoint a new one, then 
 any party may serve the remaining parties, or the arbi- 
 trators as the case may be, with a ^vritten notice to 
 appoint an umpire or third arbitrator ; and, if within 
 seven clear days after such notice shall have been 
 served no umpire or third arbitrator be appointed, it 
 shall be lawful for any judge of any of the superior 
 courts of law or equity at Westminster, upon summons 
 to be taken out by the party ha^dng served such notice, 
 to appomt an umpire or third arbitrator, who shall have 
 the same power to act in the reference and make an 
 award as if he had been appointed by consent of all 
 parties {s). 
 
 If an umpire be appointed, his authority to make an Umpire. 
 award commences from the time of the disagreement of 
 the arbitrators {t), unless some other period be expressly 
 fixed ; and if, after the disagreement of the arbitrators, 
 he make an award before the expu-ation of the time 
 given to the arbitrators to make their award, such 
 award will nevertheless be valid (m). And it is now 
 provided that if the arbitrators shall have allowed their 
 time, or their extended time, to expire without making 
 an award, or shall have delivered to any party, or to the 
 umpire, a notice in writing stating that they cannot 
 agree, the umpire may enter on the reference in Heu of 
 the arbitrators (x). The umpire must be chosen by the 
 
 (s) Stat. 17 & 18 Vict. c. 125, & Sel. 559; Sprigens r. Nash, 5 
 
 s. 12; see Re Lord, 1 K. & John- Mau. & Sel. 193. 
 
 son, 90; Collins v. Collins, 26 (?«) Sprigens v. Nash, ubi sup. 
 
 Beav. 306. (a-) Stat. 17 & 18 Vict. c. 125, 
 
 {t) Smailes v. Wright, 3 Mau. s. 15. 
 
 o2
 
 196 
 
 OF CHOSES IN ACTION. 
 
 arbitrators in the exercise of their judgment and at the 
 same time (3/), and must not be determined by lot {z), 
 unless aU the parties to the reference consent to his 
 appointment by such means (a). In order to enable him 
 to form a proper decision, he ought to hear the whole 
 evidence over again (b), unless the parties should be 
 satisfied with his deciding on the statement of the arbi- 
 trators (c). And the whole matter in difference must 
 be submitted to his decision, and not some particidar 
 points only on which the arbitrators may disagree {d). 
 
 Award for 
 payment of 
 money creates 
 a debt. 
 
 An award for the payment of money creates a debt 
 from one party to the other, for which an action may be 
 brought in any court of law (e), and which will be suffi- 
 cient to support a petition for adjudication of bank- 
 ruptcy (f)' But Avhen the award is made a rule of 
 court, its performance may, as we have seen (^), be en- 
 forced by attachment. And where the reference is 
 made by order of the Court of Chancer}^ (A), or where 
 the award requires any act to be done which cannot 
 be enforced by an action at law (2), equity will decree 
 a specific performance. And it is now provided that 
 Avlien any award directs possession of any lands or 
 tenements to be dehvered to any party, the court, of 
 which the document authorizing the reference is or is 
 
 (y) Be Lord, Q. B. 1 Jur., N. S. 
 893; 5 E. & B. 404. 
 
 («) In Me Cassell, 9 Bai-n. & 
 Cress. 624; Ford v. Jones, 3 Bam. 
 & Add. 248; European, ^-c. 
 SMpjnng Company v. Crosshey, 
 8 C. B., N. S. 397. See, however, 
 Be Hopper, L. R., 2 Q. B. 367 ; 
 8 Best & Smith, 100. 
 
 (a) Be Jamieson, 4 Adol. & 
 Ell. 945. 
 
 (b) Be Salheld, 12 Ad & Ell. 
 767; Be Ban-ley, 2 De Gex & 
 Smale, 33. 
 
 (c) Hall V. Lawrence, 4 T. 
 Rep. 689. 
 
 (<?) Tollit V. Saunders, 9 Price, 
 612. 
 
 (e) 2 Wms. Saund. 62 a, n. (5). 
 
 (/) Ex parte Llngard, 1 Atk. 
 241. 
 
 (^) Ante, p. 184. 
 
 (A) Marquis of Ormond v. 
 Kynnersley, 2 Sim. & Stu. 15; 
 Wood V. Taunton, 11 Beav. 449. 
 
 (i) Hall V. Hardy, 3 P. Wms. 
 190.
 
 OF ARBITRATION. 197 
 
 made a riile or order, may order any party to the 
 reference who shall be in possession of such lands or 
 tenements, or any person in possession of the same, 
 claiming under or put in possession by him since the 
 making of the document authorizing the reference, to 
 deHver possession of the same to the party entitled 
 thereto pursuant to the award ; and such rule or order 
 to deliver possession shall have the effect of a judgment 
 in ejectment against every such party or person named 
 in it, and execution may issue, and possession shall 
 be delivered by the sheriff as on a judgment in eject- 
 ment (A). 
 
 The award of arbitrators or of an umpire, though in- Award under 
 dented and under hand and seal, is not a deed unless ^^^^ ^^^ ^ ^^^^' 
 delivered as such (Z). It is now subject to stamp duty stamp, 
 according to the table in the note (/«). 
 
 (k) Stat. 17 
 
 & 
 
 18 Vict. c. 
 
 125, 
 
 (0 
 
 Brown v. Vawser, 4 East, 
 
 s. 16. 
 
 
 
 r 
 
 184. 
 
 
 
 £ s. 
 
 d. 
 
 (m) Stat. 28 
 
 & 
 
 29 Vict. c. 
 
 96, s. 3, 
 
 , where the amount or 
 
 
 
 value of the matter in 
 
 dispute 
 
 shall not e 
 
 xceed £5 . 
 
 
 
 3 
 
 And where it shall exceed £5 and not exceed £10 . 
 
 
 
 6 
 
 » 
 
 
 » 
 
 10 
 
 
 J) 
 
 20 , 
 
 1 
 
 
 
 V 
 
 
 >y 
 
 20 
 
 
 » 
 
 30 . 
 
 1 
 
 6 
 
 >» 
 
 
 » 
 
 30 
 
 
 ») 
 
 40 . 
 
 2 
 
 
 
 » 
 
 
 » 
 
 40 
 
 
 » 
 
 50 . 
 
 2 
 
 6 
 
 »J 
 
 
 » 
 
 50 
 
 
 » 
 
 100 . 
 
 5 
 
 
 
 » 
 
 
 » 
 
 100 
 
 
 » 
 
 200 . 
 
 10 
 
 
 
 » 
 
 
 »j 
 
 200 
 
 
 » 
 
 500 . 
 
 15 
 
 
 
 i> 
 
 
 » 
 
 500 
 
 
 )> 
 
 750 . 
 
 1 
 
 
 
 „ 
 
 
 „ 
 
 750 
 
 
 » 
 
 1,000 . 
 
 1 5 
 
 
 
 And where 
 
 it shall exceed £1,000, 
 
 and 
 
 also in all 
 
 
 
 other ( 
 
 lases not above 
 
 ! provided for 
 
 
 
 I 15 
 

 
 ( 198 ) 
 
 PART IIL 
 
 OF INCORPOREAL PERSONAL PROPERTY, 
 
 CHAPTER I. 
 
 OF PERSONAL ANNUITIES, STOCKS AND SHARES. 
 
 In addition to goods and chattels in possession, which 
 have always been personal property, and to debts which 
 have long since been considered so, there exist! in 
 modem times several species of incorporeal personal 
 property, to which Ave now propose to direct our atten- 
 tion. These species of property are certainly not choses 
 in possession, neither yet are they like debts strictly 
 choses in action, though often classed as such. In 
 analogy, therefore, to the well-known division of real 
 estate into corporeal and incorporeal, we have ventm-ed 
 to place these kinds of property together into a class to 
 be denominsited incorporeal personal prope7'ti/. A debt 
 no doubt is also incoi"poreal, but it is still well charac- 
 terized by its ancient name of a chose in action. 
 
 Personal an- The first kind of incorporeal personal property which 
 
 "^ ^' we shall mention is a persojial annuity. This kind of 
 
 property is not indeed of so modern an origin as some 
 of those which we shall hereafter mention. It consists 
 of an annual payment, not charged on real estate ; but 
 it may nevertheless be limited to the heirs, or the heirs ' 
 of the body of the grantee. In former times it was 
 doubted whether an annuity was not a mere chose in 
 action, and therefore incapable of assignment (a); but 
 
 (a) Co. Litt. U4b, n.(l).
 
 OF PERSONAL ANNUITIES, STOCKS AND SHARES. 199 
 
 this objection has long been overnilecl. When Umited 
 to the heirs of the grantee it will, on his intestacy, de- 
 scend, like real estate, to his heir; bnt it is still personal 
 property (Z»), and will pass by his will under a bequest of 
 all his personal estate ( c). When given to the grantee 
 and the heirs of his body, the grantee does not acquire 
 an estate tail ; for this kind of inheritance is not a tene- 
 ment within the meaning of the statute De Donis Con- 
 ditionalibus (d). The gi'antee has merely a fee simple 
 conditional on his having issue, such as a grantee of 
 lands woidd have had imder a similar grant prior to the 
 statute De Donis (e), or as a copyholder would now take 
 in manors where there is no custom to entail (^). 
 When the grantee has issue, he may therefore alien the 
 annuity in fee simple by a mere assignment ; but should 
 he die without issue the annuity will fail. A personal 
 annufty given to a man for ever will devolve on the 
 executor, and not on the heir of the grantee (^). 
 
 The next kind of incorporeal personal property to be Stock or bank 
 considered is stock in the public funds, or bank an- not exist be- 
 nuities. Previously to the Revolution in 1688 there fore tbe Revo- 
 was no fxmded debt properly so called; although King 
 Charles I. and King Charles II. both found occasion to 
 raise money by the grant of annuities in fee simple 
 chargeable on particular branches of the revenue. 
 These annuities, not being payable out of real estate, 
 appear to have been the first instances of personal an- 
 nuities limited to the grantees and their heirs, and they 
 
 {b) Earl of Stafford v. Buck- Real Property, 30, 36, 2ud ed. ; 
 
 ley, 3 Ves. sen. 171 ; Eadburii v. 32, 38, 3rd & 4th eds. ; 35, 41, 5th, 
 
 JerHs, 3 Beav. 450, 461. 6th, 7th & 8th eds. 
 
 (c) ArtUn v. Dahj, 4 Barn. & (/ ) Ibid. 286, 2nd ed. ; 295, 
 
 Aid. 59. 3rd ed. ; 299,' 4th ed. ; 310, 5th 
 
 {d) Turner v. Turner, 2 Arab. ed.; 327, 6th ed.; 334, 7th ed.; 349, 
 
 776, 782 ; Uarl of Stafford v. 8th ed. 
 
 BucMey, nhi suTp. (g) Taylor v. Martlndale, 12 
 
 (e) See Principles of the Law of Sim. 158.
 
 200 
 
 OF IISrCORrOREAL PERSONAL PROPERTY. 
 
 The funds are 
 
 redeemaVjle 
 
 annuities. 
 
 gave occasion to those law suits by wliich the legal na- 
 ture and incidents of personal annuities have been de- 
 termined ; although some mention of such annuities is 
 certainly to be found in the old books [h). Soon after 
 the Revolution, however, a portion of the pubHc debt 
 was funded, or transferred into perpetual annuities, pay- 
 able, by way of interest, on the capital advanced, which 
 caj^ital was to be repaid by the government iu the manner 
 agreed on. And from that time to the present, the 
 frmded debt of the country has, by several acts of par- 
 liament, been gi-eatly increased. Stock in the fiinds, 
 therefore, is merely a right to receive certain annuities, 
 by half-yearly dividends, as they become due (i), subject 
 to the right of government to redeem such annuities on 
 payment of a stipulated sum, which sum is the nominal 
 value of the stock. Thus, 100/. £3 per cent. Consoli- 
 dated Bank Annuities is a right to receive 3/. per aiimim 
 for ever, subject to the right of government to redeem 
 this annuity on payment of 100/. sterling. The actual 
 value of 100/. £3 per cent. Consolidated Bank An- 
 nuities (or Consols as they are shortly termed) of course 
 depends on the state of the stock market, being generally 
 lower, though it has been higher, than the nominal 
 price, which is called par. 
 
 Consols for- 
 merly the in- 
 vestment of 
 the Court of 
 Chancery. 
 
 The public funds are composed of several separate 
 stocks, of which, however, by far the largest and most 
 important are the consols. In this frmd alone the Court 
 of Chancery formerly invested all the money committed 
 to its care belonging to the suitors in that court: and, 
 as it is a rule of equity, that whatever the Court would 
 certainly order to be done may be done without apply- 
 ing to the Court, every trustee and executor was justified 
 
 (A) Co. Litt. 144 b; Fitz. N. B. 
 152 a. 
 
 (i) Wildman v. Wildman, 7 
 Ves. 174, 177; Raivlings v. Jen- 
 
 nings, 13 Ves. 38, 45. Dividend 
 warrants may now be sent by post, 
 Stat. 32 & 33 Vict. c. 104.
 
 OF PERSONAL ANISTUITIES, STOCKS AND SHARES. 201 
 
 in investing in consols any money which he might have 
 held in tnist, withont any express direction for that 
 purpose (k). But shoidd he have invested trust money Liability of 
 upon any other security, without express authority so vestin^'^"*'"" 
 to do, he would have been answerable to his cestuis que consols. 
 trust for the amount of the money so invested, should 
 the security have failed; and it seems also, that the 
 cestui que trust had an option either to claim the money, 
 or to have so much stock as the money improperly in- 
 vested would have purchased at the time when the im- 
 proper investment Avas made (/). But when the trustee 
 was authorized by the terms of his trust to invest either 
 in the funds or on real securities, it was decided, after 
 much conflict of opinion, that the cestui que trust had 
 no option to charge the defaulting trustee with any 
 larger sum than the amount of the money lost, with 
 interest at four per cent. For had the trustee chosen, 
 as he might, to invest on real security, the cestui que 
 trust Avould have gained notliing by the subsequent rise 
 in the ftmds(7?2). Kecent enactments have, however, 
 now largely extended the investments in which trust 
 ftmds may be placed (w). 
 
 The legal nature and incidents of stock in the public 
 funds have been fixed by the various acts of parliament 
 by which these funds have been created. These statutes 
 are far too numerous to be here mentioned ; but their 
 provisions are generally similar. By one of the earliest Stock is per- 
 of these statutes (o), it is provided, that all persons who ^'^"^^ eshde. 
 
 {k) Home V. Lord DartmouiTi, {iii) Rolnnson \. Iioblnson,uhi 
 
 7 Ves. 150 ; Holland v. Hughes, sup., overruling Watts v. Girdle- 
 
 16 Ves. 114; Tehhs v. Carpenter, stone, 6 Beav. 188, Ames v. Par- 
 
 1 Mad. 306 ; Norhury v. Norbury, Idnson, 7 Beav. 379, and Ouseley 
 
 4 Mad. 191. V. Anstruther, 10 Beav. 45G. 
 
 (J,) Forrest \.Elnies,A^YQsA^7; {n) See jwst, the chapter on 
 
 Pride V. Ihoks, 2Bea.vA30; Bo- "Settlements." 
 
 hhison V. Rohlnson, Lords Jus- (o) Stat. 1 Geo. I. st. 2, c. 19, 
 
 tires, 1 De Gex, Mac. & Gord.247. s. 9.
 
 202 
 
 OF INCOKPOREAL PERSONAL PROPERTY 
 
 Transfer of 
 stock. 
 
 Dividends 
 
 Stock in the 
 name of a 
 trustee. 
 
 shall be entitled to any of the annuities thereby created, 
 and all persons lawftilly claiming under them, shall be 
 possessed thereof as of a personal estate, and the same 
 shall not be descendible to the heir. And the same nde 
 holds with respect to all the public funds which now 
 exist. 
 
 The transfer of stock in the pubhc fluids is effected 
 only by the signatm-e of the books at the Bank of 
 England in the manner prescribed by act of parhament ; 
 and tliis transfer may be effected either in person or 
 by attorney duly appointed for the purpose by writing, 
 under hand and seal, attested by two or more credible 
 witnesses (;>). The legal title to stock belongs to the 
 person in whose name it is standing in the bank books ; 
 and the Bank refuses to recognize trusts, or to keep 
 more than one account for the same person ; neither will 
 it allow of the transfer of any stock into the names of 
 more than four persons. Formerly the right to stock 
 always carried the right to the cm-rent half-year's divi- 
 dends, and the transfer books were closed for some days 
 prior to the days of payment of the dividends. But a 
 day for closing the books is now fixed in the month pre- 
 ceding that in which the dividends are payable, and the 
 person whose name then appears inscribed in the books 
 as proprietor is, as between him and the transferee, 
 entitled to the current half-year's dividend ; and after 
 that day the person to whom any transfer is made is not 
 entitled to the cm-rent dividend (5-). When stock is 
 standing in the name of a trustee, the beneficial owner 
 may transfer his equitable interest in any manner he 
 pleases. As the claim of the beneficial owner is equit- 
 able only, there will be no occasion to give to the trans- 
 feree a power of attorney to sue in the name of the 
 transferor (?•) ; and the transferee, on giving notice of 
 
 (2?) Stat. 1 Geo. I. st. 2, c. 19, 
 s. 11, and subsequent acts. 
 
 {q) Stat. 24 Vict. c. 3, s. 7. 
 (;■) See ante, p. 6.
 
 
 ficates. 
 
 nard's Act. 
 
 OF PERSONAL ANNUITIES, STOCKS AND SHARES. 203 
 
 the transfer to the trustee, will be entitled to a legal 
 
 transfer of the stock into his own name in the books at 
 
 the Bank. A recent act of parliament contains provi- stock certi- 
 
 slons for the conversion of stock, transferable only at 
 
 the Bank, into stock certificates payable to bearer, and 
 
 transferable accordingly from hand to hand (s). 
 
 As the constant fluctuations of the value of the flinds 
 were long since found to present a great temptation to 
 gambling on the chance of their rise or fall, an act was Sir John Bar- 
 passed in the reign of Geo. II. (^) for the pm*pose of 
 suppressing such transactions. This act was introduced 
 into parHament by Sir John Barnard, whose name it 
 bears, and it was intituled " An Act to prevent the in- 
 famous Practice of Stockjobbing." It contained several 
 provisions directed against the practice of fictitious sales 
 of stock for a future time, where the seller had not the 
 stock he sold, neither intended to procure it, and the 
 buyer had no intention to purchase the amount he con- 
 tracted for ; but the only object of the parties was that, 
 should the stock rise, the vendor should pay the buyer 
 the difference occasioned by the increase in price, and, 
 should it fall, the buyer should pay the vendor the dif- 
 ference occasioned by the decrease (z^). But this act, 
 having been found to interfere with legitimate transac- 
 tions, has lately been repealed (x). 
 
 (s) Stat. 26 Vict. c. 28. jobber, properly so called, is a 
 (t) Stat. 7 Geo. II. c. 8. person who supplies the public, 
 ('«) See Child y.Morley, 8 T. through the medium of the brokers, 
 Eep. 610 ; Heckscher v. Gregory, with money or stock to the exact 
 4 East, 007, 614. The buyer who amount they may require, making- 
 is interested in the rise of the a profit only of l-8th per cent, on 
 funds is called, in the language of each transaction ; a course of busi- 
 the Stock Exchange, a bull, the ness altogether different from the 
 seller is a bear, but either party, " infamous" practices usually 
 if unable to pay his differences, called stockjobbing by the public, 
 becomes a lai7ie duck. A stock- («) Stat. 23 Vict. c. 28.
 
 204 
 
 OF IXCORPOREAL PERSONAL PROPERTY. 
 
 Contract for It seems that stock is not goods, leaves or merchandize 
 
 not\?fthin''Ae '^vithin the 17th section of the Statute of Frauds (y), so 
 
 Statute of that it does not require a Avritten memorandum for a 
 
 contract for its sale, if the value exceeds ten pounds 
 
 and the buyer does not accept and receive any part, nor 
 
 give something in earnest to bind the bargain or in part 
 
 pa}Tnent {z). Contract notes for the sale or purchase 
 
 Stamp duty on of Government or other pubHc stocks or shares, to the 
 
 amount or value of five pounds or upwards, are now 
 
 liable to a stamp duty of one penny (a). 
 
 Infants. 
 
 Lunatics and 
 idiots. 
 
 By a modern act of parliament, the Court of Chancery 
 is empowered to order the di^ddends of stock belonging 
 to infants to be appHed for their maintenance (h). By 
 another act the Lord Chancellor is empowered to appoint 
 a person to transfer stock and receive and pay over 
 diWdends standing in the name of or vested in any 
 lunatic, idiot or person of unsound mind beneficially 
 entitled thereto, or standing in the name of or vested in 
 the committee of a limatic who may have died intestate, 
 or himself become lunatic, or may be out of the juris- 
 diction of or not amenable to the process of the Court 
 of Chancery, or if it be uncertain whether such com- 
 mittee be living or dead, or if he should neglect or refuse 
 to transfer such stock and to receive and pay over the 
 dividends thereof (c). And the Lord Chancellor is also 
 empowered to appoint a person to transfer stock stand- 
 ing in the name of or vested in any lunatic residing 
 out of England ; and also to receive and pay over the 
 dividends thereof to the curator of such lunatic or other- 
 
 (y) Stat. 29 Car. 2, c. 3. See 
 ante, p. 40. 
 
 (z) See JYumes V. Scij)io, 1 Com. 
 ii5G;Picke?'in(/y. Appleby, 1 Com. 
 354; 2 P. Wms. 308; Pa7vle v. 
 Gunn, 4 Bing. N. C. 445; Humble 
 V. Mitchell, 11 A. & E. 20.1; 
 
 Knight v. Barber, 16 M. & W. 
 66. 
 
 («) Stat. 23 & 24 Vict. c. 111. 
 
 {b) Stat. 11 Geo. IV. & 1 Will. 
 IV. c. 65, s. 32. 
 
 (c) Stat. 16 & 17 Vict. c. 70, 
 s. 140.
 
 OF PERSONAL ANNUITIES, STOCKS AND SHARES. 205 
 
 wise as the Lord Chancellor shall think fit {d). By 
 another recent act it is provided, that, when stock shall 
 be standing in the name of any infant or person of un- 
 sound mind jointly with any person not under any legal 
 disability, such person may alone give a power of 
 attorney to receive the dividends (e). And generally 
 the land or stock of any lunatic, in possession, reversion 
 or expectancy, may be sold or mortgaged for the pay- 
 ment of his debts, or for his maintenance and otherwise 
 for his benefit (/)• 
 
 When any person has an interest in stock standing in Distringas. 
 the name of another he is enabled to restrain the transfer 
 of such stock, or, as it is said, to put a stop upon it, by 
 means of a writ of distringas, to be served upon the 
 Bank of England. This writ appears to be in strictness 
 a proceeding in a suit supposed to have been commenced 
 by the party obtaining it against the Bank and the legal 
 OAvner of the stock ; but in practice a suit is not com- 
 menced, unless the right to stop the stock be disputed (^). 
 This writ formerly issued only out of the equity side of 
 the Court of Exchequer ; but when the equitable juris- 
 diction of that court was transferred to the Court of 
 Chancery, it was provided that a writ of distringas, in a 
 prescribed form, should issue out of the latter court, the 
 force and effect of which, and the practice relating to 
 the same, shoidd be such as was previously in force in 
 the Court of Exchequer (A). The writ commands the 
 sheriff to distrain the Bank by their lands and chattels, 
 so that they appear in court to answer a bill of com- 
 plaint lately exhibited against them and other defendants 
 by the person obtaining the writ. The object of the 
 
 (d) Sect. 141. 12-14. 
 
 (e) Stat. 8 & i) Vict. c. 97, (^) See Wilkinson on the Funds, 
 s. 3. 235—252 ; Re Cross, 1 Drew. & 
 
 (/) Stat. 16 & 17 Vict. c. 70, Sra. 580. 
 s. 116; 25 & 26 Vict. c. 86, ss. (A) Stat. 5 Vict. c. 5, s. 5.
 
 206 OF INCORPOREAL PERSONAL PROPERTY. 
 
 Avrit is stated in a notice, which is served along with it, 
 to be for the purpose of restraining any transfer of the 
 stock in question until the order of the court be obtained. 
 An appearance is accordingly entered by the Bank, and 
 the transfer of the stock is thus delayed. When the 
 distringas is required to be removed, an order of the 
 com-t may be readily obtained for the dismissal of the 
 supposed suit. It is sm-prising that a course by which 
 a cestui que trust of stock may be so effectually pro- 
 tected from any fi-audulent transfer by his trustee should 
 not be more fr'equently adopted. 
 
 Stock may be Stock, being a kind of chose in action, could not for- 
 chaiged with merlv have been sold under a fieri facias issued in exe- 
 debts. cution of a judgment against the owner [i). And, m 
 
 fact, in the acts by which stocks were created, it was 
 declared that they should not be taken in execution (A). 
 But by the act for extending the remedies of creditors 
 against the property of debtors (Z), it is provided that 
 any judge of one of the superior courts of common 
 law (m), on the appHcation of any judgment creditor, 
 may order that any government stock of the debtor 
 standing in his own name, or in the name of any person 
 in trust for him, shall stand charged with the payment 
 of the judgment debt and interest, and such order shall 
 entitle the judgment creditor to all such remedies as he 
 would have been entitled to if such charge had been 
 made in his favour by the debtor ; but no proceedings 
 are to be taken to have the benefit of such charge until 
 after the expiration of six calendar months fi-om the 
 date of such order (n). And by a subsequent act of 
 
 (i) Dundas v. Dvtens, 1 Ves. (?«) Miles v. Presland, 4 Myl. 
 
 jun. 198. & Cr. 431. 
 
 (A) Barik of England v. Lunn, (n) See Watts v. Jefferyes, 3 
 
 15 Ves. 577. Mac. & Gord. 372; Watts v. Por- 
 
 (Z) Stat. 1 & 2 Vict. c. 110, ter, Q. B., 1 Jur., N. S. 133; 3 E. 
 
 s. 14. & B. 743; contra, Beavany. Earl
 
 OF PERSONAJL ANNUITIES, STOCKS AND SHAJRES. 207 
 
 parliament (o), this proA-ision is declared to extend to 
 the interest of any judgment debtor, whether in posses- 
 sion, remainder or reversion, and whether vested or con- 
 tingent, as well in such stock as in the di%adends or 
 annual produce thereof, and also to stock in which the 
 debtor may be interested standing in the name of the 
 accountant-general of the Couil of Chancery (/?). And 
 in order to prevent any judgment debtor from disposing 
 of the stock authorized to be charged, an order may be 
 procured by the creditor, m the first instance ex parte, 
 restraining the Bank of England fi-om pennitting a 
 transfer of the stock until the order shall either be made 
 absolute (that is, confirmed and continued) or discharged ; 
 and no disposition of the judgment debtor in the mean- 
 time is to be vahd or effectual as against the creditor. 
 And the order will be made absolute if the debtor do 
 not, Avithin a time mentioned in the order, show cause 
 to the contrary (q). AVhen the debtor is entitled to the 
 di^ddends of stock standing in the names of trustees, 
 the order obtained by the creditor charging such divi- • 
 
 dends will be binding on the trustees; but the Bank 
 must still pay the di^ddends to the trustees as legal 
 owners (r). 
 
 The history of the law respecting the transmission of Transmission 
 stock by will affords a cm-ious instance of the enact- ^]j*°*^ 
 ments of the legislature having been virtually overruled 
 by the decisions of the Coiu-t of Chanceiy. The acts 
 by which the fimds were created provided, that any 
 person possessed of stock might devise the same by will 
 
 of Oxford, 6 De Gex, M. & G. Kay, 470; Mali/ v. Barrxj, L. E., 
 
 524, 525, 532; Scott \. Lord Hast- 3 Ch. Ap. 452, 456, 457. 
 
 ings, 4 Kar & J. 633, 638; Cro7v (q) Stat. 1 & 2 Vict. c. 110, 
 
 V. RoMtuon, L. E., 3 C. P. 264, s. 15. 
 
 267; Pickering t. Tlfracomhe {r) Churchill y. Bank of Eng- 
 
 Baibvag Co., J..JI., 3 C.T.2S5, land, 11 Mee. & Wels. 323; 
 
 251. Bristead \. JMlkins, 3 Hare, 
 
 (o) Stat. 3 & 4 Vict. c. 82, s. 1. 235 ; and see Taylor v. Turnhull, 
 
 Se€ Hnlkes v. Day, 10 Sim. 41. 4 H. & X. 495. 
 
 (^) See Warburtou v. Hill, 1
 
 208 OF INCORPOREAL PERSONAL PROPERTY. 
 
 in writing attested by two or more credible witnesses^ 
 but that such de\'isee should receive no payment till so 
 much of the will as related to the stock had been entered 
 in the office at the Bank ; and in defaidt of such devise 
 the stock shoidd go to the executors or administrators (5). 
 The Court of Chancery however held, that as stock had 
 been declared by parliament to be personal estate, it 
 must, like all other personal estate, devolve, in the first 
 instance, on the executor for payment of debts, even 
 though it should have been specially bequeathed {t) ; 
 and that the executor, having it in his hands by \artue 
 of his office of executor, was bovmd after payment of 
 debts to dispose of it according to the AA-iU of his testator, 
 even although such Avill were unattested (m). For, pre- 
 viously to the act for the amendment of the laws with 
 respect to wills {x), a will of personal estate required no 
 attestation. In effect, therefore, a person Avas enabled 
 to bequeath his stock by a wtII unattested. AU wiUs, 
 \\ . however, are no\ required to be attested by two wit- 
 • ' nesses. And by a recent act of parhament the pro- 
 
 visions of the old acts, which had virtually been dis- 
 regarded, have been formally repealed ; and it is declared 
 that the stock of a deceased person may be transferred 
 by his executors or administrators, notAvithstanding any 
 specific bequest or disposition thereof contained in the 
 will ; but the Bank are not to be required to aUow of 
 such transfer, or of the receipt of any dividend on the 
 stock, until the probate of the avlU or the letters of ad- 
 ministration shall have been fu-st left at the Bank for 
 registration. And the Bank may require all the exe- 
 cutors who shall have proved the will to concm- in the 
 transfer (y). And the registry of specific bequests of 
 
 (s) Stat. 1 Geo. I. stat. 2, c. 19, (m) Ripley y. Waterworth, 7 
 
 s. 12, and subsequent acts. Ves. 440; Franklin v. Bank of 
 
 (t) Bank of England v. Mof- England, 575, 589. 
 
 fatt, 3 Bro. C. C. 260; Bank of {x) Stat. 7 Will. IV. & 1 Vict. 
 
 England v. Parsons, 5 Ves. 665; c. 26. 
 
 Bank of England v. Lunn, 15 (y) Stat. 8 & 9 Vict. c. 97, 
 
 Ves. 569. s. 1.
 
 OF PERSONAL ANNUITIES, STOCKS AND SIIAEES. 209 
 
 stock is no longer required, but merely tlie registry of 
 the names of the deceased party, and of liis executors 
 and administrators (r). 
 
 The next kind of incorporeal personal property which Shares. 
 we shall mention are shares in joint stock companies. 
 Joint stock companies were formerly of two kinds, those 
 which were incorporate, or made into corporations, and 
 those Avliich were not so. 
 
 Corporations are legal personages, always known by Corporations 
 the same name, and preserving their identity through a ^°^^ ^^'^ aggre- 
 perpetual succession of natural persons. They are either 
 corporations sole, composed only of one person, such 
 as a bishop, a parson, or the chamberlain of London ; 
 or corporations aggregate, composed of many persons 
 acting on all solemn occasions by the medium of their 
 common seal («) ; and it is of such corporations that we 
 are now about to speak. Such corporations may be 
 created either by charter conferred by the queen's letters- 
 patent, or by act of parliament. And, till a few years 
 ago, all joint stock companies which had not obtained 
 this expensive sanction were in fact private partnerships 
 on an extended scale. In the present reign however, 
 as we shall hereafter see, provision has been made for 
 the incorporation of all public joint stock companies {b); 
 but such companies as are incorporated by letters- 
 patent or special act of parliament still enjoy peculiar 
 privileges. These companies therefore first require 
 notice. 
 
 The natiu'e and incidents of shares in the joint stock Companies in- 
 
 of companies incorporated by letters-patent or act of corporated by 
 ^ i ./ 1 charter or act. 
 
 (z) Sect. 2. Vict. c. 14, s. 23; 7 & 8 Vict. 
 
 (a) See Bac. Abr., tit. Corpo- c. 113, partly repealed by stat. 20 
 
 rations ; 1 Black. Com. ch. 18. & 21 Vict. c. 49; all now repealed 
 
 (J) Stat. 7 & 8 Vict. c. 110 ; by the Companies Act, 18G2, stat. 
 
 partly repealed by stat. 20 & 21 25 & 26 Vict. c. 89. 
 W.P.P. P
 
 210 OF IXCORPOREAL PERSONAL PROPERTY. 
 
 parliament have generally been determined by tlieir re- 
 spective charters or acts of incorporation. And in the 
 great majority of cases, and in all the modern charters 
 and acts of incoi-poration, the shares are declared to be 
 personal estate, and transmissible as such. In a few ot 
 the older companies, of which the New River Company 
 is an instance (c), the shares are real estate in the nature 
 of incorporeal hereditaments. For the futui'c, however, 
 all the provisions contained in special acts for the incor- 
 poration of joint stock companies -vvdll, as far as pos- 
 The Clauses sible, be the same. For an act of parliament has been 
 Acte? ^^°^ passed "for consohdating in one act certain provisions 
 usually inserted in acts vrith respect to the constitution 
 of companies incorporated for carrying on undertakings 
 of a public natm'e"(c?). Other acts have also been 
 passed for consolidating certain provisions usually in- 
 serted in acts authorizing the taking of lands for under- 
 takings of a pubhc nature (e) ; in acts authorizing the 
 making of railways {f); in acts for constructing or 
 regulating markets and fairs (ff) ; in acts authorizing the 
 making of gasworks for supplying towns with gas (A) ; 
 or of waterworks for supplpng towns "^ath water (z) ; , in 
 acts for the making and improving of harbours, docks 
 and piers (A) ; in acts for paving, draining, cleansing, 
 lighting and improving towns (Z) ; and in acts autho- 
 rizing the making of cemeteries (tw). In each of these 
 acts enactments are made vnth. respect to various matters 
 
 (c) DrylniUer v. BartholomeK, c. 120; 27 & 28 Vict. c. 121 ; 30 & 
 
 2P. Wms. 127, 31 Vict. c. 127; 32 & 33 Vict. 
 
 {d) Stat. 8 & 9 Vict. c. 16 ; c. Hi. 
 extended by stat. 26 & 27 Vict. {g) Stat. 10 & 11 Vict. c. 14, 
 
 c. 118; amended by stat. 32 & 33 (/;) Stat. 10 & 11 Vict. c. 15. 
 
 Vict. c. 48. (0 Stat. 10 & 11 Vict, c, 17; 
 
 (e) Stat. 8 & 9 Vict. c. 18 ; extended by stat. 26 & 27 Vict, 
 
 extended by stat. 23 & 24 Vict. c. 93. 
 c. 106, (A') Stat. 10 & 11 Vict. c. 27. 
 
 (/) Stat. 8 & 9 Vict. c. 20 ; (0 Stat. 10 & 11 Vict. c. 34, 
 
 extended by stat. 26 & 27 Vict, (w) Stat. 10 & 11 Vict. c. 65. 
 
 c. 92. See also stats. 27 & 28 Vict,
 
 OF PERSONAL ANNUITIES, STOCKS AND SHARES. 211 
 
 usually contained in acts of incorporation for tlie above 
 purposes ; and it is provided that tlie clauses and pro- 
 visions of these general acts, save so far as tliey shall 
 be expressly varied or excepted by any special act, shall 
 apply to every undertaking which shall thereafter be 
 authorized by act of parliament for any of the purposes 
 above refeiTed to. A uniformity is thus given to the 
 constitution of such companies, and the length of the 
 acts of parliament required to establish them has been 
 greatly diminished. A short title, for the convenience 
 of reference, is given to each act. The act first men- 
 tioned is called " The Companies Clauses Consolidation 
 Act, 1845 " (n) ; the acts amending it are called " The 
 Companies Clauses Act, 1863 "(o), and "The Com- 
 panies Clauses Act, 1869 "(j?); and all the others have 
 similar titles. 
 
 The Companies Clauses Consolidation Act contains Companies 
 provisions with respect to the distribution of the capital fo{|JIation°Act 
 of the company into shares, which are to be personal 1845. 
 estate, and transmissible as such (g) ; with respect to 
 the transfer of shares, which must be by deed duly 
 stamped, in which the consideration shall be truly 
 stated (r), and which cannot take place until the trans- 
 feror shall have paid all calls for the time being due on 
 every share held by him (s) ; with respect to the trans- 
 mission of shares by will, intestacy, marriage of a female 
 &c. (f) ; with respect to the payment of calls {u), which 
 
 (ri) Stat. 8 & 9 "Vict. c. 16, s. 4, Q. B. 998 ; Huhhersty v, 3fan- 
 
 (o) Stat. 26 & 27 Vict. c. 118. chest er, Sheffield and Lincoln- 
 
 ip) Stat. 32 & 33 Vict. c. 48. shire Railmnj Comjiany, 36 L. J., 
 
 (^) Stat. 8 & 9 Vict. c. 16, s. 7. N. S., Q. B. 198. 
 
 (r) Sect. 14. (0 Sects. 18, 19. 
 
 (s) Sect. 16; Hall v. Norfolk (m) Sects. 21— 28; see Wolver- 
 
 Estuary Company, Q. B., 16 Jur. hanipton New Waterworks Com- 
 
 149; Regina v. Londonderry and pany^'. Hawkesford, 6 C. B., N. S. 
 
 Coleraine Bailway Company, 13 336. 
 
 p2
 
 212 OF IXCORPOREAL PERSONAL PROPERTY. 
 
 may be made payable by instalments (v), and tlie for- 
 feitm-e of shares for nonpayment of calls (w) ; with 
 respect to the remedies of creditors of the company 
 VI ^ <r^^ against the shareholders (x), which are confined to the 
 ""^ ^ f- ^"^ extent of their shares in the capital of the company not 
 ■'^.^zZ^'" . , , then paid up, and may be exercised only in case there 
 X i^ ^^. Z'^^- cannot be found sufficient property or effects of the com- 
 pany whereon to levy execution (?/) ; with respect to the 
 borrowing of money by the company {£), the conversion 
 of the borrowed money into capital («), the consolidation 
 of the shares into stock (Z>), general meetings (c), the 
 appointment and rotation of directors (c?), the powers ie), 
 proceedings and liabilities of the dii'ectors(/'), the ap- 
 pointment and duties of auditors (^), the accountabihty 
 of the officers of the company (/i), the keeping of ac- 
 counts(e), the makingof di\'idends(A),andof byelaws(Z). 
 the settlement of disputes by arbitration (??z), the gi^^ing 
 of notices (??), the recovery of damages and penalties (o), 
 and appeals with respect to such damages or penalties 
 to the quarter sessions (z*) ; and, lastly, with respect to 
 affi)rding access to the special act by all parties inter- 
 ested (y). The provisions of the other acts are not of 
 a natui'C to require enumeration. By a recent act of 
 
 (v) Amiergate, ^-c. Baihvay (d) Sects. 81—89. 
 
 Company v. Nor cliff e, 6 Ex. Eep. (e) Sects. 90, 91. 
 
 G29. (/) Sects. 92—100; Wilson v. 
 
 (w) Sects. 29 — 35. v. West Hartlepool Harhour and 
 
 {x) Sect. 36. Railway Company, Lds. Js., 11 
 
 (?/) JDevereux v. Kilkenny, ^'C. Jur., N. S. 124. 
 Eailway Company, 5 Ex. Eep. (^) Sects. 101 — 108. 
 
 834; EltcJdns v. Kilkenny, cfc. (h) Sects. 109 — 114. 
 
 Mailway Company, 10 C. B. 160; (/) Sects. 115 — 119. 
 
 Nixon V. Bromnlow, 3 H. & N. {k) Sects. 120—123. 
 
 686. (0 Sects. 124—127. 
 
 {z) Stat. 8 & 9 Vict. c. 16, ss. (»t) Sects. 128—134. 
 
 38—55. («) Sects. 135-139. 
 
 («) Sects. 56—60. (o) Sects. 142—158. 
 
 (&) Sects. 61—64. Ip) Sects. 159, 160. 
 
 (c) Sects. 66—80. {q) Sects. 161, 162.
 
 OF PERSOiSrAL ANNUITIES, STOCKS AND SHARES. 213 
 
 parliament provision lias been made for the exoneration 
 from stamp dutj of transfers of bonds and mortgages 
 given by public companies for money which by their 
 acts of parliament they may be authorized to borrow 
 on the original bond or mortgage being stamped in the 
 first instance with three times the amount of the ad 
 valorem duty over and above such duty (r). 
 
 Joint stock companies which had not obtained letters- inconvenience 
 patent or special acts of incorporation were formerly , "'^"^''^^nt 
 subjected to very great inconvenience whenever they stock com- 
 had occasion to take legal proceedings against any "^^^ 
 person who happened to be a shareholder. And every 
 shareholder in such companies was subject to. the Hke 
 inconvenience Avhenever he had occasion to proceed 
 against the company. For such a company, however 
 extensive, was in law merely a partnership ; and a part- 
 ner who owes money to the partnership of which he is 
 a member, evidently owes a portion of it to himself ac- 
 cording to his interest in the joint stock ; and in like 
 manner a partner who is a creditor claims part of his 
 demand against himself. In each case, therefore, an 
 account must be settled before the exact debt or credit 
 of the partner can be ascertained (5). In order to ob- 
 viate the difficulties which thus arose, many joint stock 
 companies obtained special acts of parliament, enabling 
 them to sue and be sued in the name of some officer. 
 And an act of parliament (t) was passed empowering Letters-patent. 
 the crown to grant, by letters-patent, charters to com- 
 panies for any trading or other purposes whatsoever, 
 which, without incorporating such companies, would 
 empower them to sue and be sued in the name of some 
 officer appointed and registered for the purpose. This 
 
 (r) Stat. 16 & 17 Vict. c. 59, (0 Stat. 7 Will. IV. & 1 Vict. 
 
 s. 14. c. 73, repealing a former statute 
 
 (s) See Richardson v. Banli of for a similar purpose, 4 & 5 Will. 
 
 England, 4 My. & Cr. 165. IV. c. 94.
 
 214 
 
 OF INCORPOREAL PERSONAL PROPERTY. 
 
 Bankinc 
 panics. 
 
 act is still in force, and it contains a valuable provision, 
 empowering tlie crown to limit, by the letters-patent, the 
 liability of the individual members of the company for 
 its engagements to a given extent per share (u). Bank- 
 ing companies, whose shareholders are generally their 
 customers, were peculiarly subject to the inconvenience 
 above referred to in suing and being sued. Accordingly 
 by modern statutes (.r), all such banking companies as 
 consisted of more than six members were allowed to 
 appoint some public officer who must sue and be sued 
 on behalf of the company (y). More recently, however, 
 two acts of parliament were passed, the one incorpo- 
 rating public joint stock companies, the other for pro- 
 viding for the incorporation of joint stock banks. Each 
 of these acts require some notice. 
 
 Joint Stock 
 Companies 
 Registration 
 Act. 
 
 The first act was intituled " An Act for the Registra- 
 tion, Incorporation and Regulation of Joint Stock Com- 
 panies "(^r). This act applied to every joint stock com- 
 pany estabhshed for any commercial purpose, or for any 
 purpose of profit («), or for the pm-pose of insm-ance 
 (except banking companies, schools and scientific and 
 literaiy institutions, and friendly, loan and benefit build- 
 ing societies duly certified and enrolled imder the statutes 
 in force respecting such societies (Z*)) ; and the term 
 *' joint stock company " comprehended every partnership 
 whereof the capital was di\dded or agreed to be divided 
 into shares, and so as to be transferable without the ex- 
 press consent of all the copartners; and also every insu- 
 
 00 Stat. 7 Will. IV. & 1 Vict. 
 c. 73, s. 4. 
 
 (») Stats. 7 Geo. IV. c. 46, s. 9 
 ef seq.; 1 & 2 Vict. c. 9C; extended, 
 3 & 4 Vict. c. Ill ; made pei-petual, 
 5 & 6 Vict. c. 85; 27 & 28 Vict. 
 c. 32. 
 
 (y) ClMpman v. Mllroin, .5 Ex. 
 Eep. Gl; Steward v. Greaves, 10 
 
 Mee. & Wels. 711. 
 
 (--) Stat. 7 & 8 Vict. c. 110, 
 amended by stat. 10 & II Vict, 
 c. 78. 
 
 {(t) See Tlic Qveen v. T17;/Y- 
 marsli, 15 Q. B. GOO; Bear v. 
 Bromley, 21 L. Joiir. Q. B. 354; 
 18 Q. B. 27L 
 
 (b) See post, p. 230.
 
 OF PERSONAL ANNUITIES, STOCKS AND SHARES. 215 
 
 i-ance company ; whether of lives, ships, or against fire 
 or storm ; and every company for granting or pm-chasing 
 annuities on lives; and every friendly society insuring to 
 an amomit exceeding 200/. upon one life or for any one 
 person ; and also every partnership which at its forma- 
 tion, or by subsequent admission (except any admission 
 consequent on devolution or other act of law), should 
 consist of more than twenty-five members. But the act 
 did not apply to companies incorporated by statute or 
 charter, nor to companies authorized to sue and be sued 
 in the name of some officer or person (c). This act, 
 however, has since been repealed {^d). It provided for Now repealed. 
 the establishment of a registry office, in which the name Registry office. 
 and business of every projected company, together with 
 the names, occupations and places of business and resi- 
 dence of the promoters of the company, were required to 
 be registered before they could proceed to make public, 
 whether by way of prospectus, handbill or advertise- 
 ment, any intention or proposal to form the company (e). 
 Further particulars were also to be registered as they 
 should be decided on fi.'om time to time (/). This re- 
 gistration, however, only enabled the company to act 
 provisionally, and it was therefore termed provisional Provisional 
 registration. And before the company could act other- registration. 
 wise than provisionally, it was required to obtain a cer- 
 tificate of complete registration. This certificate could Complete 
 only be obtained on production of a deed of settlement registration. 
 of the company, according to the form set forth in the 
 act, signed by at least one-fourth in number of the per- 
 sons who at the date of the deed had become subscribers, 
 and who should hold at least one-fourth of the maximum 
 number of shares in the capital of the company (^). 
 
 {c) Sect. 2. Jur., N. S. 804; 16 C. B. 277. 
 
 (d) Stat. 25 & 26 Vict. c. 89. (/) Stat. 7 & 8 Vict. c. 110. 
 
 {e) Stat. 7 & 8 Vict. c. 110, s. 4. s. 4; 10 & 11 Vict. c. 78. ss. 4, 
 
 See also stat. 10 & 11 Vict. c. 78, 5, 6. 
 s. 7; AUott V. Bogers, C. P. 1 (j3) Stat._7 & 8 Vict. c. 110, s. 7.
 
 216 
 
 OF INCORPOREAL PERSONAL PROPERTY. 
 
 This deed yvas, required to be certified by two dii-ectors 
 of tlie company in a given form, and along with it was 
 to be produced a complete abstract or index of the deed, 
 together wdtli a copy of it for registration. Provision 
 was also made for the registration, half-yearly or oftener, 
 of all transfers of shares, and of changes in the names 
 of the shareholders (h), and for an annual return of the 
 name and business of every company (?'). On complete 
 Incorporation, registration being certified the company became incor- 
 porated (^) as fi'om the date of the certificate, by the 
 name of the company as set forth in the deed of settle- 
 ment, with power to have a common seal, l)ut on which 
 was to be inscribed the name of the company, and with 
 other powers necessary to the conduct of their affairs (Z), 
 including a power to hold lands on obtaining a licence 
 for that purpose firom the Board of Trade (w). Provi- 
 sion was also made for the registiy of joint stock com- 
 panies then existing, and for the alteration of their 
 deeds of settlement in order to comply with the pro^d- 
 sions of the act (n). The transfer of shares was required 
 to be effected by deed in a given form, to be duly 
 stamped, and in which the full amount of the pecuniary 
 consideration for the sale was to be truly expressed (o). 
 But no sale or mortgage of any share was valid until 
 the company had obtained a certificate of complete re- 
 gistration and the subscriber had been duly registered 
 as a shareholder in the Begistry Office ( p) ; and no 
 transfer could be made if the transferor should not then 
 have paid up the full amount due to the company on 
 every share held by him, unless there were a pro\asion 
 to the contrary in the deed of settlement (q). Share- 
 
 7 & 8 Vict. c. 110, 
 
 Existing com' 
 panics. 
 
 Transfer of 
 shares. 
 
 Liability of 
 shareholders. 
 
 (7i) Stat, 
 ss. 11—13. 
 
 (0 Sect. 14. 
 
 (^) Baniven Iron Company v. 
 BarneU, 8 C. B. 406. 
 
 (J) Stat. 7 & 8 Vict. c. 110, s. 25. 
 
 (m) Stat. 10 & 11 Vict. c. 78,. 
 ss. 1, 2, 3. 
 
 («) Sects. 58, 59, 
 
 (o) Sect. 54. 
 
 {p) Sect. 26; Ex pa/rte Neil- 
 son, 3 De Gex, M. & G. 556. 
 
 {q) Sect, 54.
 
 OF TERSOXAL AXXUITIES, STOCKS AND SHARES. 217 
 
 liolders in these companies were liable to the creditors 
 of the company, if such creditors had used due diligence 
 to obtain satisfaction by execution against the property 
 of the company ; but after the expiration of three years 
 next after any person shoidd have ceased to be a share- 
 holder, his liability ceased (r). 
 
 The act which provided for the incorj^oration of Banking corn- 
 banking companies was intituled " An Act to regulate l^*^"^*^""- 
 Joint Stock Banks in England'' (s). This act has now Repeal of act. 
 been repealed (if). The incorporation effected under the 
 pro\4sions of this act was by letters-patent, obtained, on 
 petition, from the crown. The petition was referred to 
 the Board of Trade, on whose report a charter was 
 granted to the company {u) for a term not exceeding 
 twenty years (x). Other provisions were also made for 
 the registration of the company, the transfer of shares, 
 the Hability of shareholders, and other matters which it 
 is now xmnecessary to state. 
 
 The main object of the two statutes above referred to Objects of 
 was evidently to give publicity to the names of the real 
 promoters and shareholders of joint stock companies, 
 so that the public might know with whom they were 
 dealing, and that those who reaped the benefit of such 
 imdertakings might also bear their proper share of the 
 risk. Another object was to recognize, as legal per- 
 sonages, bodies which before had a legal existence, but 
 had no convenient means of acting or of being acted 
 on. In the same spirit another act of parliament was Bankraptcy 
 passed in the same session, " for facihtating the winding- compaiifs?^^ 
 up the affairs of joint stock companies unable to meet 
 
 (r) Sects. G6— 68; Greenwood's (t) Stat. 25 & 26 Vict. c. 89. 
 
 case, 3 De Gex, M. & G. 459, 478 ; 00 Stat. 7 & 8 Vict. c. 113, s. 3. 
 
 S. C. 18 Jur. 387. («) Sect. 6. 
 
 (s) Stat. 7 & 8 Vict. c. 113.
 
 218 
 
 OF IXCORPOREAL, PEESOXAL PEOPERTY. 
 
 "Winding-up 
 acts. 
 
 tlieir pecuniary engagements" (3/). Bj tliis act all in- 
 corporated or pri\-ileged companies for any commercial 
 or trading purposes, including banking companies (z), 
 and also all joint stock companies mtliin tlie definition 
 contained in the act for their incorporation {a), were 
 made liable to bankruptcy in the same manner as pri- 
 vate individuals ; but the bankruptcy of the company 
 was not to be construed to be the bankruptcy of any 
 member of the company in his individual capacity (b). 
 This act, however, was almost entirely superseded 
 by the " Joint Stock Companies Winding-up Act, 
 1848"(c), as amended by the Joint Stock Companies 
 Winding-up Amendment Act, 1849" (d), under which 
 an official manager was appointed, and a list of contri- 
 butories made out, on whom calls were made from time 
 to time for payment of the debts and liabilities of the 
 company. These acts again did not apply to com- 
 panies registered under the " Joint Stock Companies 
 Act, 1856 " (e), by which act, as several times 
 amended (f), joint stock companies were regulated, 
 until the passing of the " Companies Act, 1862" (p). 
 This act has repealed and consolidated all the former 
 acts relating to joint stock companies. 
 
 The Limited 
 Liability Act, 
 1855. 
 
 An act of parliament was passed in 1855 for limiting 
 the liability of members of certain joint stock com- 
 panies (A). Under this act any joint stock company to 
 
 (y) Stat. 7 & 8 Vict. c. Ill, 
 amended by stat. 20 & 21 Vict. 
 c. 78. 
 
 (z) Stat. 7 & 8 Vict. c. 1 13, s. 48. 
 
 la) Stat. 7 & 8 Vict. c. 110, s, 
 2; ante, p. 214. 
 
 (b) Stat. 7 & 8 Vict. c. Ill, s. 2. 
 
 (c) Stat, n & 1 2 Vict. c. 45. 
 id) Stat. 12 & 13 Vict, c, 108, 
 
 amended by stat. 20 & 21 Vict. c. 
 
 78; and see as to Eailways, stat. 
 13 & 14 Vict. c. 83. 
 
 (e) Stat. 19 & 20 Vict. c. 47, s. 
 108. 
 
 (/) Stat. 20 & 21 Vict. c. 14; 
 20 & 21 Vict. c. 49; 21 & 22 Vict, 
 c. GO; 21 & 22 Vict. c. 91. 
 
 (ff) Stat. 25 & 26 Vict. c. 89; 
 Amended by stat. 30 & 31 Vict. c. 
 131. 
 
 (70 Stat. 18 & 19 Vict. c. 133.
 
 OF PERSONAL ANNUITIES, STOCKS AND SHARES. 219 
 
 be formed under the act 7 & 8 Vict. c. 110, other than 
 an assm-ance company, with a capital to be divided into 
 shares of a nominal value of not less than lOZ. each, 
 might obtain a certificate of complete registration with 
 limited liability, upon complying with certain condi- 
 tions. With reference to this act it was remarked in 
 the tliird edition of the present work (i), that it seems 
 that all that can noAV be expected of an act of parlia- 
 ment is to introduce a principle to be worked out by 
 subsequent amendments ; and that it was to be hoped 
 that the principle of limited hability then introduced 
 might by some future act be both more widely extended 
 and more accurately apphed. Tliis was afterwards 
 done by the Joint Stock Companies Acts, 1856(A), 
 and 1857 (/), and the Joint Stock Banking Companies 
 Act, 1857 (m), as amended by subsequent acts(w), all 
 of which are now repealed and consolidated by the 
 Companies Act, 1862 (o), as amended by the Com- 
 panies Act, 1867 (7)). 
 
 Under these acts seven or more persons associated Companies 
 for any lawM pui-pose, may by subscribing their names andlsGT." 
 to a memorandum of association, and otherwise com- 
 plying mth the requisitions of the acts in respect of 
 registration, form an incorporated company, with or 
 without Hmited liability (q). But no banking company 
 claiming to issue notes in the United Kingdom shall be 
 entitled to hmited liabihty in respect of such issue (r). 
 Not more than ten persons may cany on the business 
 of banking as partners, unless they are registered under 
 this act, or are formed in pursuance of some other act of 
 
 (;) Pp. 182, 183. c. 91. 
 
 (/O Stat. 19 & 20 Vict. c. 47. («) Stat. 25 & 2G Vict. c. 89. 
 
 (Z) Stat. 20 & 21 Vict. c. 14. ip) Stat. 30 & 31 Vict. c. 131. 
 
 (w) Stat. 20 & 21 Vict. c. 49. (-/) Stat. 25 & 26 Vict. c. 89, 
 
 (m) Stat. 20 & 21 Vict. c. 80; s. G. 
 21 & 22 Vict. c. GO; 21 & 22 Vict. (r) Sect. 182.
 
 220 
 
 OF IXCORPOREAL PERSONAL PROPERTY. 
 
 Liabilit}' may 
 be limited. 
 
 parliament or of letters-patent ; and no partnership con- 
 sisting of more than twenty persons can now be formed 
 for the purpose of carrjdng on any other business that 
 has for its object the acquisition of gain by the partner- 
 ship or by the indi\'idual members thereof, unless it be 
 registered as a company under this act, or be formed in 
 pursuance of some other act of parliament, or of letters 
 patent, or be a company engaged in working mines 
 within and subject to the jiu'isdiction of the Stanna- 
 ries (s). The liability of the members of a company 
 formed under this act may, according to the memo- 
 randum of association, be limited either to the amount, 
 if any, impaid on the shares respectively held by them, 
 or to such amount as the members may respectively 
 undertake by the memorandum of association to con- 
 tribute to the assets of the company in the event of its 
 being wound up (t). In the former case, the company 
 is said to be limited by shares ; and in the latter, to be 
 Company may limited by guarantee. And the Companies Act, 1867, 
 wkhiSmS ^^^ provides, that the liabihty of the directors or 
 liability. managers, or managing director of a limited company, 
 
 may, if so provided by the memorandum of association 
 or fixed by special resolution, be milimited (u). 
 
 Memorandum 
 of association 
 of company 
 limited by 
 shares. 
 
 The memorandum of association of a company Hmited 
 by shares must contain the following things : — 
 
 1. The name of the company with the addition of 
 
 the word " limited," as the last word of such 
 name. 
 
 2. The part of the United Kingdom in wliich the 
 
 registered office of the company is proposed to 
 be situate. 
 
 3. The objects for which the company is to be 
 
 established. 
 
 (s) Stat. 25 & 26 Vict. c. 
 s. 4. 
 
 (f) Sect. 7. 
 
 (w) Stat. 30 & 31 Vict. c. 131, 
 ss. 4—8.
 
 OF PERSONAL ANNUITIES, STOCKS AND SHARES. 221 
 
 4. A declaration, that the habihty of the members 
 
 is hmited. 
 
 5. The amount of capital with which the company 
 
 proposes to be registered, divided into shares of 
 a certain fixed amoimt ; subject to the following 
 regulations : — 
 
 1. That no subscriber shall take less than one 
 
 share. 
 
 2. That each subscriber of the memorandum of 
 
 association shall write opposite to his name 
 the number of shares he takes (x). 
 
 When the company is limited by guarantee, its memo- Memorandum 
 randum of association must contain the first three of ^^ company" 
 the above-mentioned requisites ; and, (4), a declaration, limited by 
 that each member undertakes to contribute to the 
 assets of the company, in the event of the same being- 
 wound up during the time that he is a member, or 
 within one year afterwards, for payment of the debts 
 and liabihties of the company conti'acted before the 
 time at which he ceases to be a member, and of the 
 costs, charges and expenses of winding up the com- 
 pany, and for the adjustment of the rights of the 
 contributories amongst themselves, such amount as may 
 be requu'ed, not exceeding a specified amount (y). 
 
 If no Hmit be placed on the liability of the members Memorandnm 
 the company is called an unhmited company, and its 
 memorandum of association must contain only the fol- company, 
 lowing things : — 
 
 1. The name of the company. 
 
 2. The part of the United Kingdom in which the 
 
 registered office of the company is proposed to 
 be situate. 
 
 (a?) Stat. 25 & 26 Vict, c. 89, (y) Sect, 9. 
 
 s. 8. 
 
 of association 
 of unlimited
 
 222 
 
 OF INCORPOREAL PERSONAL PROPERTY, 
 
 3. Tlie objects for wliicli tlie company is to be 
 established {z). 
 
 Effect of 
 memorandum 
 of association. 
 
 No alteration 
 to be made. 
 
 Exception. 
 
 Name may 
 be changed. 
 
 Power to com- 
 pany to reduce 
 capital. 
 
 Subdivision of 
 shares. 
 
 The memorandum of association must bear the same 
 stamp as if it were a deed, and must be signed by each 
 subscriber in the presence of and be attested by one 
 witness at the least. When registered, it binds the 
 company and the members thereof to the same extent 
 as if each member had subscribed his name and affixed 
 his seal thereto, and there were contained in the memo- 
 randum a covenant on the part of himself, his heu'S, 
 executors and administrators, to observe all the con- 
 ditions of such memorandum, subject to the provisions 
 of the act {a). No alteration can be made by any com- 
 pany in the conditions contained in its memorandum of 
 association ; except that a company limited by shares 
 may increase its capital by the issue of new shares of 
 such amount as it thinks expedient, or may consohdate 
 and divide its capital into shares of larger amount than 
 its existing shares, or convert its paid-up shares into 
 stock (b) ; and except that any company may, with the 
 sanction of a special resolution of the company as after 
 mentioned, and -with the approval of the Board of Trade, 
 change its name ; but such change will not affect any of 
 the rights or obhgations of the company (c). And the 
 Companies Act, 1867, now empowers any company 
 limited by shares to modify by special resolution the 
 conditions of its memorandimi of association so as to 
 reduce its capital, pro\dded the sanction of the com-t be 
 obtained (c?). The same act also empowers any com- 
 pany limited by shares to divide its capital or any part 
 thereof into shares of a smaller amount than originally, 
 fixed by its memorandum of association ; provided that 
 
 (c) Stat. 25 & 2G Vict. c. 89, 
 s. 10. 
 
 (a) Sect. 11. 
 (J) Sect. 12. 
 
 (c) Sect. 13. 
 
 [d) Stat. 30 & 31 Vict. c. 131, 
 ss. 9—20.
 
 OF PERSONAL ANNUITIES, STOCKS .iND SHARES. 223 
 
 the proiDortion between tlie amount wliicli is paid, and 
 the amount (if any) which is unpaid, on each share of 
 reduced amount, shall be the same as it Avas in the case 
 of the existing share or shares from which the share of 
 reduced amount is derived (e). 
 
 The memorandum of association may in the case of 
 a company limited by shares, and must in the case of a 
 company limited by guarantee or unlimited, be accom- 
 panied, when registered, by articles of association signed Articles of 
 by the subscribers to the memorandum of association, ^^^^^''^ ^°"* 
 and prescribing such regulations for the company as the 
 subscribers shall deem expedient. These articles must 
 be expressed in separate paragraphs numbered arith- 
 metically. The act contains a Table marked A, in the 
 first schedule thereto, of provisions, all or any of which 
 may be adopted in the articles of association {f). The 
 regulations contained in this Table will, if not excluded 
 or modified by the articles, be deemed, so far as they 
 are applicable, to be the regulations of every company 
 Hmited by shares (y). The articles of association must 
 be printed and stamped as if they were contained in a 
 deed, and must be signed and attested in the same 
 manner as the memorandum of association ; and when 
 registered, they bind the company and the members 
 thereof to the same extent (A). The memorandum and Eegistration, 
 articles, if any, are to be registered by the registrar of 
 joint-stock companies {i) ; and thereupon the company 
 is incorporated, with power to hold lands ; and a cer- Company in- 
 tificate of the incorporation of any company given by ^orporated. 
 the registrar shall be conclusive evidence that all the 
 requisitions of the act in respect of registration have 
 been complied with {k). No company formed for the 
 
 (e) Stat. 30 & 31 Vict. c. 131, ((/) Sect. 15. 
 
 s. 21. (/;.) Sect. 16. 
 
 (/) Stat. 25 & 26 Vict. c. 89, (i) Sect. 17. 
 
 s. 14. {k) Sect. 18.
 
 224 
 
 OF IXCORrOEEAL PERSONAL rEOPERTY, 
 
 Shares per- 
 sonal estate. 
 
 Register of 
 members. 
 
 Certificate of 
 shares or stock. 
 
 Register 
 evidence. 
 
 purpose of promoting art, science, religion, charity or 
 any other like object, not involving the acquisition of 
 gain by the company, or by the indi\adual members 
 thereof, shall, without the sanction of the Board of 
 Trade, hold more than two acres of land : but the 
 Board of Trade may, by Hcence under the hand of one 
 of their principal or assistant secretaries, empower any 
 such company to hold lands in such quantity and sub- 
 ject to such conditions as they think fit (Z). All shares 
 are to be personal estate (m). Every company is re- 
 quired to keep a register of its members (;z) ; and every 
 company having a capital divided into shares is required 
 to make out an annual list of its members, with other 
 particulars, and to forward a copy thereof to the regis- 
 trar of joint-stock companies {o). No notice of any 
 trust, expressed, implied or constructive, is to be entered 
 on the register (j9 ). And a certificate under the common 
 seal of the company, specifying any shares or stock 
 held by any member, is j^rimd facie evidence of his title 
 to the shares or stock therein specified (5'). And the 
 register of members is prima facie evidence of any 
 matters by the act directed or authorized to be inserted 
 therein (r). 
 
 Registered 
 office. 
 
 Name of 
 limited com- 
 pany to be 
 painted up, 
 &c. 
 
 Every company is bound by the act to have a regis- 
 tered office, to which all commimications and notices 
 may be addi-essed {s). And eveiy limited company 
 must keep its name painted or affixed on the outside of 
 every office or place of business of the company, in a 
 conspicuous position, in letters easily legible, and must 
 have its name engraven in legible characters on its seal, 
 and must have its name mentioned in legible characters 
 
 (0 Stat. 25 & 2G Vict. c. 89, (i?) Sect. 30. 
 
 s. 21. (!?) Sect. 31. 
 
 (w) Sect. 22. (?•) Sect. 37. 
 
 in). Sect. 25. (•*') Sect. 39. 
 {(>) Sect. 2G.
 
 OF PERSONAL ANNUITIES, STOCKS AND SHARES. 225 
 
 in all notices, advertisements, bills, notes, indorsements, 
 cheques, orders for money or goods on behalf of the 
 company, and in all bills of parcels, invoices, receipts 
 and letters of credit of the company (t). But associa- 
 tions not for profit may, by licence of the Board of 
 Trade, be registered with limited liability, without the 
 
 addition of the word limited to their names (u). Every Eegister of 
 
 T 1 • , r ^^ mortgages. 
 
 limited company is requu-ed to keep a register ot all 
 
 mortgages and charges specifically affecting property 
 of the company (.r). And every limited banking com- 
 pany, and every insurance company, and deposit, pro- 
 vident or benefit society under the act, is required before 
 it commences business, and afterwards on the first 
 Monday in February and the first Monday in August 
 in every year, to make a statement of its capital, lia- 
 bilities and assets in a given form, to be put up in a 
 conspicuous place in the office of the company (y). 
 
 Subject to the provisions of the act, and to the con- Power to alter 
 ditions contained in the memorandum of association, gpfciaT^^"^^ ^ 
 any company formed under the act may, in general resolution. 
 meeting, from time to time, by passing a special reso- 
 lution in manner after mentioned, alter all or any of the 
 regulations of the company contained in the articles of 
 association, or in the Table marked A. in the first sche- 
 dule, where such table is applicable to the company ; 
 or make new regulations to the exclusion of or in addi- 
 tion to all or any of the regulations of the company ; 
 and any regidations so made by special resolution shall 
 be deemed to be regulations of the company of the 
 same validity as if they had been originally contained 
 in the articles of association, and shall be subject in like 
 manner to be altered or modified by any subsequent 
 
 (i) Stat. 25 & 26 Vict. c. 89, (x) Stat. 25 & 26 Vict. c. 89, 
 
 s. 41. s. 43. 
 
 (u) Stat. 30 & 31 Vict. c. 131, (y) Sect. 44. 
 
 s. 23. 
 
 w.p.p. Q
 
 226 OF INCORPOREAL PERSONAL PROPERTY. 
 
 A special special resolution (z). A resolution passed by a com- 
 
 pany under the act is deemed to be special whenever 
 a resolution has been passed by a majority of not less 
 than tln-ee-fourths of such members of the company for 
 the time being entitled, according to the regulations 
 of the company,, to vote as may be present, in person 
 or by proxy (in cases where by the regulations of the 
 company proxies are allowed), at any general meeting 
 of which notice specifying the intention to propose such 
 resolution has been didy given ; and such resolution has 
 been confhmed by a majority of such members for the 
 time being entitled, according to the regulations of the 
 company, to vote as may be present, in person or by 
 proxy, at a subsequent general meeting, of which notice 
 has been duly given, and held at an interval of not less 
 than fourteen days, nor more than one month from the 
 date of the meeting at which such resolution was first 
 passed : At any such meeting, unless a poll is demanded 
 by at least five members, a declaration of the chairman 
 that the resolution has been carried shall be deemed 
 conclusive eiddence of the fact, without proof of the 
 number or proportion of the votes recorded in favour or 
 against the same. Notice of any such meeting shall 
 be deemed to be didy given, and the meeting to be duly 
 held, whenever such notice is given and meeting held 
 in manner prescribed by the regulations of the com- 
 pany. In computing the majority when a poll is de- 
 manded, reference shall be had to the number of votes 
 to which each member is entitled by the regulations of 
 the company («). A copy of every special resolution 
 must be printed and registered {b), and must be an- 
 nexed to or embodied in every copy of the articles of 
 association that may be issued after the passing of such 
 resolution (c). 
 
 {z) Stat. 25 & 20 Vict. c. 89, (?j) Sect. 53. 
 
 .s. 50. {■<•) Sect. 54. 
 
 (a) Sect. 5L
 
 OF PERSONAL AN-NTJITIES, STOCKS AND SHARES. 227 
 
 Contracts on belialf of any company may be made Contracts, bow 
 as follows : — 
 
 (1.) Any contract wliicli, if made between private 
 persons woidd be by law required to be in 
 writing, and if made according to English 
 law to be under seal, may be made on behalf 
 of the company in writing under the common 
 seal of the company, and such contract may 
 be in the same manner varied or discharged. 
 
 (2.) Any contract Avhich, if made between private 
 persons would be by law required to be in 
 wi-iting and signed by the parties to be 
 charged therewith, may be made on behalf of 
 the company in writing signed by any person 
 acting under the express or implied authority 
 of the company, and such contract may in the 
 same manner be varied or discharged. 
 
 (3.) Any contract, which, if made between private 
 persons would by law be valid, although made 
 by parol only and not reduced into waiting, 
 may be made by parol on behalf of the com- 
 pany by any person acting imder the express 
 or implied authority of the company, and 
 such contract may in the same way be varied 
 or discharged {d). 
 
 Shares in joint stock companies are transferred by Transfer of 
 deed registered at the office of the company. But the 
 Companies Act, 1867, provides, in the case of a com- 
 pany limited by shares, for the issue of share warrants Share war- 
 mth respect to shares fully paid up, or wdth respect to ^■''^"'^'^• 
 stock (e) ; and these warrants entitle the bearer to the 
 shares or stock specified in them, and such shares or 
 stock may be transferred by delivery of the share war- 
 rant (/). 
 
 Cd) Stat. 30 & 31 Vict. c. 131, (c) Sects. 27—33. 
 
 s. 37. (/) Sect. 28. 
 
 Q 2
 
 tories. 
 
 228 OF IXCORPOEEAL PEESONAL PEOPEETY. 
 
 Winding-np. Provision is made for the Avinding-up of Joint Stock 
 
 Companies either by the court (g) or vokintarily (Ji) ; 
 and if vokmtarily, the Avinding-up may by the order of 
 the court be subject to its super\dsion {i). The court 
 to which this jurisdiction is given is the Court of Chan- 
 cery, except in the case of mines subject to the juris- 
 diction of the Stannaries ; but where the Court of Chan- 
 cery makes an order for winding up a company under 
 the act, it may, if it think fit, direct all subsequent 
 proceedings for winding up the same to be had in the 
 
 Liquidators. County Comi;(/^). The winding-up is effected by liqui- 
 dators appointed for that pm-pose, and who if appointed 
 
 Contribn- by the court are styled official liquidators {T). All 
 
 persons liable to contribute to the assets of a company 
 under the act, in the event of its being wound up, are 
 called contributories {m). The liability of contribu- 
 tories is regvdated by the following rules (w) : — 
 
 1. No past member shall be liable to contribute to 
 the assets of the company, if he has ceased to be 
 a member for a period of one year or upwards 
 prior to the commencement of the winding-up : 
 
 2. No past member shall be liable to contribute ^in 
 respect of any debt or hability of the company 
 contracted after the time at which he ceased to 
 be a member : 
 
 3. No past member shall be liable to contribute to 
 the assets of the company unless it appears to 
 the court that the existing members are unable 
 to satisfy the contributions requu-ed to be made 
 by them in pursuance of the act : 
 
 4. In the case of a company limited by shares, no 
 
 {g) Stat. 25 & 26 Vict. c. 89, (Ji) Stats. 25 & 26 Vict. c. 89, s. 
 
 ss. 79—128. See also stat. 30 & 81 ; 30 & 31 Vict. c. 131, ss. 41, 42. 
 
 31 Vict. c. 131, s. 40. (Z) Stat. 25 & 26 Vict. c. 89, 
 
 (70 Stat. 25 & 26 Vict. c. 89, ss. 92—97, 133—144. 
 
 ss. 129-146. (to) Sect. 74. 
 
 ((■) Sects. 147—152. («) Sect. 38.
 
 OF PERSONAL ANNUITIES, STOCKS AND SHAKES. ^-9 
 
 contribution sliall be required from any member 
 exceeding the amount, if any, unpaid on the 
 shares in respect of which he is hable as a pre- 
 sent or past member : 
 
 5. In the case of a company limited by guarantee, no 
 
 contribution shall be required from any member 
 exceeding the amount of the undertaking en- 
 tered into on his behalf by the memorandum of 
 association : 
 
 6. Nothing in the act contained shall invalidate any 
 
 provision contained in any policy of insurance or 
 other contract, whereby the liability of indi\adual 
 members upon any such policy or conti-act is 
 restricted, or whereby the funds of the company 
 are alone made liable in respect of such policy 
 or contract : 
 
 7. No sum due to any member of a company, in his 
 
 character of a member, by way of dividends, 
 profits or otherwise, shall be deemed to be a 
 debt of the company payable to such member in 
 a case of competition b.etween himself and any 
 other creditor not being a member of the com- 
 pany ; but any such sum may be taken into ac- 
 count for the purposes of the final adjustment of 
 the rights of the contributories amongst them- 
 selves. 
 
 Acts have since been passed to enable joint-stock The Com- 
 companies carrying on business in foreign countries to J^'^^J^isw!''' 
 have official seals to be used in such countries (o), and 
 to enable certain companies to issue mortgage debentures The Mortgage 
 founded on secmities upon or affecting land, and to make Act,^1865! 
 provision for the registration of such mortgage de- 
 bentures and securities (p). 
 
 (o) Stat. 27 Vict. c. 19. (j^) Stat- 28 & 29 Vict. c. 78.
 
 230 OF INCOEPOREAL PERSONAL PROPERTY. 
 
 Sale of shares Shares in joint stock companies are not goods, ivares 
 Statute of ^^"^ or merchandize mtliin tlie 17tli section of the Statute of 
 Frauds, Frauds ; so that they do not require a ^vritten memo- 
 
 randum for a conti-act for their sale, when the value 
 exceeds 10/., and the buyer does not accept and receive 
 any part, nor give something in earnest to bind the 
 bargain or in part-payment {q). And such shares were 
 not considered to be stock within the meaning of the 
 Stock Jobbing Act above mentioned and now re- 
 Shares in joint pealed (r). Bvit the sale of shares in joint stock banks 
 stock banks. jg ^^^ ^qj^j unless the contract shall set forth in writing 
 the numbers of the shares in the registry of the company, 
 or, Avhere there is no register by distinguishing numbers, 
 then the names of the registered proprietors of the shares 
 at the time of making the contract (5). 
 
 Friendly Several acts of parhament have been passed for the 
 
 societies. encouragement of friendly societies, for the mutual re- 
 
 lief of their members and their families in case of sick- 
 ness, old age, death, or other contingencies {t) ; all of 
 wliich are now consohdated into one act (u). The rules 
 of these societies are required to be certified by the re- 
 gistrar of friendly societies, and in whose custody a 
 transcript of the rules of every fi:^endly society is now 
 required to be kept {x). And it is now provided that 
 
 {q) HumUcy. Mitchell, 11 Ad, Vict. c. 65; 16 & 17 Vict. c. 123 ; 
 
 & Ell. 205; Kniglit v. Barler, 16 17 & 18 Vict. c. 101, 
 
 M. & W, 66; Bomlby v. Bell, 3 («) Stat. 18 & 19 Vict, c, 63, 
 
 C, B. 284, See ante, p. 40. amended by stats. 21 & 22 Vict, 
 
 (r) Hewitt \. Price, 4 Man. & c. 101; 23 & 24 Vict. c. 58; 30 & 
 
 Gr, 355; Williams v. Ti/re, 18 31 Vict. c. 117, and 32 & 33 Vict. 
 
 Beav, 366; ante, p. 203, c, 61. 
 
 (s) Stat. 30 Vict, c. 29, (x) Stat, 18 & 19 Vict, c. 63, s. 
 
 (t) Stat, 10 Geo. IV. c. 56, 2Q. A transcript of the rules was 
 
 amended by 4 & 5Will. IV, c. 40; formerly required to be inrolled 
 
 3 & 4 Vict, c. 73 ; 9 & 10 Vict, c, with the clerk of the peace, Stat. 
 
 27; 13 & 14 Vict. c. 115; 15 & 16 4 & 5 Will. IV. c. 40, s, 4.
 
 OF PERSONAL ANNUITIES, STOCKS AND SHARES. 2:M 
 
 the registrar of friendly societies shall not grant any cer- 
 tificate to any society assuring to any member thereof 
 a certain annuity or superannuation, deferred or imme- 
 diate, unless the table of contributions payable for such 
 kind of assurance shall have been certified under the 
 hand of the actuary to the commissioners for the reduc- 
 tion of the national debt, or by an actuary to some life 
 assurance company in London, Edinburgh, or Dublin 
 who shall have exercised the profession of actuary for 
 at least five years (y). On the death or removal of any 
 trustee of one of these societies, the whole property of 
 the society vests in the succeeding trustee for the same 
 estate and interest as the former trustee had therein, 
 and subject to the same trusts, without any assignment 
 or conveyance whatever, except the transfer of stock 
 and securities in the public fimds (z). And on the 
 death, bankruptcy or insolvency of any officer of any 
 such society, or on any execution issuing against him, 
 or on his making any assignment or conveyance for the 
 benefit of his creditors, the money or effects in his hands 
 belonging to the society are to be paid over and de- 
 livered to the society before any other of his debts 
 are paid (a). Acts of parHament have also been passed Industrial and 
 to legahze the formation of industrial and provident gociltier 
 societies for carrying on trades or handicrafts in com- 
 mon (A), and many of the provisions which relate to 
 friendly societies apply also to these institutions (c). 
 Loan societies are regulated by another act of par- Loan societies. 
 liament, which, after having been long periodically 
 continued, is now made perpetual (d). Other acts of Savings banks. 
 
 (y) Stat. 18 & 19 Vict. c. 63, 25 & 26 Vict. c. 87, amended by 
 
 s. 26. Stat. 30 & 31 Vict. c. 117. 
 
 (z) Sect. 18. (c) Stats. 25 & 26 Vict. c. 87, 
 
 (a) Sect. 23. s. 15; 30 & 31 Vict. c. 117, s. 3. 
 
 (&) Stat. 15 & 16 Vict. c. 31, (d) Stat. 3 & 4 Vict. c. 110, 
 
 amended by stats. 17 & 18 Vict. made perpetual by stat. 26 & 27 
 
 c. 25, and 19 & 20 Vict. c. 40; re- Vict. c. 56. 
 pealed and consolidated by stat.
 
 232 
 
 OF INCORPOREAI. PERSONAL PROPERTY. 
 
 Post office 
 savings banks. 
 
 parliament have recently been passed for tlie regula- 
 tion of sa\-ings banks (e) ; and particularly for the 
 establishment of savings banks in connexion with the 
 post-office (/), — banks which, having the security of a 
 government guarantee, are a great boon to the poorer 
 classes. 
 
 Building An act of parliament also exists for the regulation 
 
 societies. ^^ benefit building societies ((/). The ftmds of these 
 
 ^ • societies are raised by monthly contributions of the 
 
 " '^ ">' >• f^-.*-/^ members, which must not exceed 20s. per share, and 
 y^ . ^ > ^^ j^ t)v fines for non-payment. The shares must not exceed 
 ►---^v^ -y^' the value of 150/. each; but any member may hold 
 " more than one share (A). When the amount of the 
 
 y^' *-^'^^ *^ ^ shares has been reahzed, the money is divided amongst 
 * '<(^Wc Jo a. the members, and the society is dissolved. Such 
 /y/^//'^ ^ri_^fc members, however, as may A^dsh to buy land or to 
 _, ^^ ^^«fbuild, may receive the amount of their shares in ad- 
 ^y 7^ vance on payment of an additional subscription by way 
 of interest, and also on payment of a bonus for the 
 advance, which of course is deducted from the amount 
 of the share advanced. This bonus is usually deter- 
 mined by competition amongst the members, the shares 
 to be paid in advance being put up by auction by the 
 society ; and the subscriptions and fines to become due 
 in respect of the advanced shares are then secured to 
 the society by the purchasers, by mortgage of land or 
 Stamp duty. houses of sufficient value {%). These mortgages are not 
 
 (e) Stat. 26 & 27 Vict. c. 87. 
 
 (/) Stats. 24 Tict. c. 14; 26 
 Vict. c. 14, and 32 & 33 Vict. 
 c. 59. 
 
 (^) Stat. 6 & 7 Will. IV. c. 32. 
 
 (Jh) Morrison v. Glover, 4 Ex. 
 Rep. 430. 
 
 (i) See 3Iosley v. BaTier, 6 
 Hare, 87; 3 De Gex, M. & G. 
 
 1032; Boe d. Morrison, v. Glover, 
 15 Q. B. 103 ; Seagrave v. Pope, 
 1 De Gex, Mac. & Gord. 783; 
 Fleming v. Self, Kay, 518 ; 3 
 De Gex, Mac. & Gord. 997; 
 Farmer v. Smith, 4 H. & N. 196; 
 Sparrow v. Farmer, 26 Beav. 
 511; Smith v. Pilkington, 1 De 
 Gex, F. & J. 120.
 
 OF PERSONAL ANNUITIES, STOCKS AND SHARES. 233 
 
 liable to stamp duty (k), provided they be made by a 
 member for securing the repayment to the society of 
 money not exceeding five hundred pounds ; but in other 
 cases the stamp duty now attaches (Z). These mort- 
 gages were also exempt from any of the forfeitures or 
 penalties formerly in force against usury (m). And a 
 receipt for the monies secured, indorsed by the tiTistees 
 of the society upon any such mortgage, vests the estate 
 comprised in the security in the person entitled to the 
 equity of redemption, without any reconveyance (/^). 
 Under cover of the Building Societies Act, many Freehold land 
 societies called jQ-eehold land societies have been estab- ^^^^^ ^°^' 
 lished for the pm-pose of buying freehold land and 
 selling it again in lots to the different members; but 
 these societies are not witliin the scope of the building 
 and fi-iendly societies acts, and can only be certified as 
 such by the concealment of their real object (o). 
 
 An act has also been passed for facilitating the The Labourers 
 erection of dwelling-houses for the labouring classes (p), V^lf^^^^ '^^^' 
 under which any number of persons, not less than six, 
 may by subscribing articles of association form them- 
 selves into a company for the purposes of the act. The 
 articles are to be in a given form, and to be registered 
 by the registrar of joint stock companies. And the 
 Companies Clauses Consolidation Act, 1845, is incor- 
 porated into the act, the articles of association being 
 deemed the special act. 
 
 The provisions above referred to for charging the Judgment 
 
 debts. 
 
 (k) Walker v. Giles, 6 C. B. 28 Beav. 68 ; Pearse v. Jackson, 
 662; Williams v. Hay ward, 22 Law Rep., 3 Ch. Ap. 576. 
 Beav. 220. (o) See Grimes v. Harrison, 
 
 (I) Stat. 31 & 32 Vict. c. 124, 26 Beav. 433; Hughes v. Layton, 
 s. 11. Q. B., 10 Jur., N. S. 513. 
 
 (wt) Stat. 6 & 7 Will. IV. c. 32, (^) Stat. 18 & 19 Vict. c. 132. 
 
 s. 2. See also stats. 29 Vict. c. 28 ; 30 
 
 (n) Sect. 5 ; Prosser v. Price, Vict. c. 28, and 31 & 32 Vict.c. 130.
 
 234 OF INCORPOREAL PERSONAL PROPERTY. 
 
 stock of any debtor with the pa}Tnent of any judgment 
 debt (q), extend to stock and shares in any j)uhUc com- 
 pany in England, whether incorporated or not (r). 
 
 Tatcuts. The prerogative of the crown in the grant of letters- 
 
 patent is frequently exercised not only for the incor- 
 poration of joint stock companies, but also for con- 
 fen-ing on private individuals certain exclusive rights 
 and privileges. These rights, called patents fi*om the 
 letters-patent wliich confer them, will be considered in 
 the next chapter. 
 
 {q) Ante, p. 206. 14. See Nlcholls v. Rosewarne, 
 
 (r) Stat. 1 & 2 Vict. c. 110, s. 6 C. B., N. S. 480.
 
 ( 235 ) 
 
 CHxVPTER II. 
 
 OF PATENTS AND COPYRIGHTS. 
 
 A PATENT is the name usually given to a grant from A patent, 
 the crown, by letters-patent, of the exclusive privilege 
 of making, using, exercising and vending some ncAV * 
 invention. The granting of such letters-patent is an 
 ancient prerogative of the crown, a prerogative which 
 remains unaffected by the Patent Law Amendment 
 Act, 1852 («). In the reign of Queen Ehzabeth this 
 prerogative was stretched far beyond its due limits, 
 and the monopolies thus created formed one of the 
 grievances which King James, her successor, was at 
 last obliged to remedy. Accordingly by a statute 
 passed in the twenty-first year of his reign, and com- 
 monly caUed the Statute of Monopohes (b), it was Statute of 
 declared and enacted that all such monopolies were ^^o'lopolies. 
 altogether contrary to the laws of this reahn, and so 
 were and should be utterly void and of none effect, and 
 in nowise put in ure or execution. In this statute, 
 however, there are certain exceptions, and particularly 
 one on wliich the modem law with respect to patents 
 may be said to be founded. This exception is as 
 foUows : " Provided also and be it declared and enacted. Proviso, 
 that any declaration before mentioned shall not extend 
 to any letters-patent and grants of privilege for the 
 term oi fourteen years or under, hereafter to be made, 
 of the sole working or making of any manner of new 
 manufactures mtliin this realm, to the true and first 
 inventor and inventors of such manufactm-es, which 
 others at the time of making such letters-patent and 
 
 {a) Stat. 15 & 16 Vict. c. 83; see sect. 16. 
 {!)) Stat. 21 Jac. I. c. 3.
 
 236 OF INCORPOREAL PERSONAL PROPERTY. 
 
 grants sliall not use, so also they be not contrary to tlie 
 law or mischievous to the state, by raising prices of 
 commodities at home, or hurt of ti-ade, or generally 
 inconvenient ; the said fourteen years to be accotmted 
 from the date of the first letters-patent or grant of such 
 privilege hereafter to be made ; but that the same shall 
 be of such force as they should be if this act had never 
 been made, and of none other " (c). 
 
 It will be seen that the granting of letters-patent 
 is not expressly warranted by this statute ; but that it 
 merely reserves to such letters-patent as fall within the 
 terms of the exception, such force as they should have 
 had if the act had never been made, and none other 
 force. As, however, all grants of exclusive privilege by 
 letters-patent, which do not fall ^\4thin this exception, 
 and some others of Httle importance, are now rendered 
 void by the statute, the construction of this exception 
 has become a matter of great practical importance. 
 Term of patent And, fii'st, the term must he fourteen years from the 
 fourteen years. ^^^^ ^^ ^^^ letters-patent, or under ; and the ftdl term 
 of fourteen years is usually granted. But it is now 
 provided, that all letters-patent for inventions, granted 
 under the pro\-isions of the Patent Law Amendment 
 Act, 1852, shall be made subject to the condition that 
 the same shall be void, and that the powers and privi- 
 leges thereby granted shall cease, at the expfration of 
 three and seven years respectively from the date thereof, 
 unless there be paid before the expiration of the said 
 three and seven years respectively certain stamp duties 
 mentioned in the act, namely, 50/. stamp duty before the 
 expiration of the third year, and 100/. stamp duty before - 
 the expiration of the seventh year {d). These pajonents 
 appear high, but they are a great improvement on the 
 old law, under which heavy fees and duty Avere payable 
 
 (r) Stat. 21 Jac. I. c. 3, s. 6. 
 
 (^) Stat. 16 & 17 Vict. c. 5, s. 2; Williams v. Frost, 28 Beav. 93.
 
 OF TATEXTS AXD COrYRIGIITS. 237 
 
 on taking out every patent ; wliereas now, if a patent 
 jH'ove useless, it may be discontinued, and the payment 
 paved. By a modern act of parliament (e), a prolonga- Extension of 
 tion of the term granted by the original letters-patent ^^^^' 
 may be granted, either to the original grantor or to his 
 assignee {f), for a term not exceeding seve?i years after 
 the expiration of the first term in case the Judicial 
 Committee of the Privy Council shall, upon proper 
 application, report to her Majesty, that such further 
 extension of the term should be granted. And if such 
 further period of seven years can be shown to be insuf- 
 ficient for the reimbursement and remuneration of the 
 expense and labour incurred in perfecting the invention, 
 then, by a subsequent statute (^), the crown may grant 
 to the inventor, or his assignee, an extension of the 
 patent for any time not exceeding fourteen years. 
 
 Secondly, the patent must be for " new manufactures New mannfac- 
 within this realm, which others at the time of making ^^^' 
 such letters-patents and grants shall not use." The iise 
 here mentioned has been held to mean a use in public ; 
 if therefore the invention, for which the patent is sought 
 to be obtained, has been previously used in public wdthin 
 the realm, the patent Avill be void (/<). And the realm 
 in this statute has been determined to mean the united 
 
 (e) Stat. 5 & 6 Will. IV. c. 83, P. C, 9 Jur., N. S. 1209; 12 W. R. 
 
 s. 4, amended by 2 & 3 Vict. c. 67 ; 25. 
 
 and extended by stats. 15 & 16 (7i) Lewis y. 3Iarling, YO'Qnxn. 
 
 Vict. c. 83, s. 40, and 16 & 17 & Cress. 22; Carpenter v. Smith, 
 
 Vict. c. 115, s. 7. 9 M. & W. 300; Re Nenall, 4 C. 
 
 (/) RvssellY. Ledsam, 14 Mee. B., N. S. 269 ; JBetts v. 3Ienzies, 
 
 & Wels. 574 ; affirmed, 16 M. & 10 H. of L. Cas. 117; 9 Jur., N. S. 
 
 W. 633; 1 H. of L. Cas. 687. 29; Hills v. Liverpool United 
 
 ig) Stat. 7 & 8 Vict. c. 69, ss. Gaslifiht Company, 9 Jur., N. S. 
 
 2, 4, continued by stats. 15 & 16 140; Harwoody . Great Nortlievn 
 
 Vict. c. 83, s. 40, and 16 & 17 Railway Com2)any,'ii^^'Law3ouxn. 
 
 Vict. c. 115, s. 7; In Re Norton'' s Q. B. 27; Young v. Fernie, 
 
 Patent, P. C, 9 Jur., N. S. 419; Giff. 577; 10 Jur., N. S. 526. 
 11 W. R, 720; Re Hiirs Patent,
 
 238 
 
 OF INCORPOREAL PERSONAL PROPERTY, 
 
 kingdom of Great Britain and Ireland ; so tliat Avlien 
 separate letters-patent were granted for England and 
 Scotland, if any invention had been publicly knoA^^i 
 or practised in England, a patent for Scotland was 
 void (z). 
 
 Provisional 
 speciti cation. 
 
 Specification. 
 
 By an act of parliament to wliicli we have before re- 
 feiTcd, it is, liowever, provided, that letters-patent may 
 be confirmed, or new ones granted, for any invention or 
 supposed invention, which shall have been foimd by the 
 verdict of a jury, or discovered by the patentee or his 
 assigns, to have been either wholly or in part invented 
 or used before, if the Judicial Committee of the Privy 
 Council, u.pon examining the matter, shall be satisfied 
 that the patentee believed himself to be the first and 
 original mventor, and that such invention, or part 
 thereof, had not been publicly and generally used before 
 the date of the first letters-patent (A). It is also now 
 provided by the Patent Law Amendment Act, 1852, 
 that any invention may be used and published for six 
 months Irom the date of the application for letters-patent 
 for the invention, mthout prejudice to the letters-patent, 
 provided the provisional specification^ which describes 
 the natiu-e of the invention, and is to accompany the 
 petition for the letters-patent, be allowed by the proper 
 law officer (/). It is also pro^aded that the applicant, 
 instead of ha^-ing a pro\'isional specification, may, if he 
 tliink fit, file a complete specification under his hand 
 and seal, particularly describing and ascertaining the 
 natiu-e of his invention, and in what manner the same 
 is to be performed, in which case the invention will be 
 protected for six months fi-om the date of the aj^plica- 
 tion, and may be used and published without prejudice 
 
 (0 Stat. 15 & 16 Vict. c. 83, s. 
 8; Be Kewall, 4 C. B., N. S. 269; 
 lie Bates and Bedgate, L. Rep., 4 
 Ch. Ap. 577; 38 L. J., Chan. 501. 
 
 (i) Brown v. Annandale, 8 CI. 
 & Fin. 214. 
 (/t) Stat. 5 & 6 Will. IV. c. 83,
 
 OF PATENTS AND COPYRIGHTS. 239 
 
 to any letters-patent to be granted for the same (m). 
 It is also provided, that if any application for letters- 
 jjatent be made in fraud of the true and first inventor, 
 any letters-patent granted to the true and first inventor, 
 shall not be invalidated by reason of any use or publi- 
 cation of the invention subsequent to such application, 
 and before the expiration of the term of protection (n). 
 
 Thirdly, a patent must be granted " to the true and True and first 
 first inventor and inventors." If therefore the original ^''''^'' "*'• 
 inventor should sell his secret to another person, such 
 person cannot obtain letters-patent for the invention in 
 his own name ; but the original inventor must obtain 
 the letters-patent, and then assign them to the other. 
 If two persons shoidd both make the same discovery, he 
 who first publishes it by obtaining a patent for it, will 
 be the true and fii-st inventor within the meaning of the 
 statute, although he may not actually have been the 
 first to make the discovery (o). But a person cannot 
 obtain a patent for an invention which has been com- 
 municated to him by another within the realm {p). If, Foreign inven- 
 however, a person shoidd be in possession of an invention *^*^'^^- 
 communicated to him fr-om abroad, such person, if he 
 be the first introducer of the invention into this country, 
 is regarded by the law as the true and first inventor 
 thereof \\ithin the meaning of the statute of James (q) ; 
 and it is no objection that the patent is taken out in 
 trust merely for the foreign inventor (r). But it is now New cnact- 
 provided that where letters-patent are granted in tlie «^<^'^'- 
 United Kingdom for any invention first invented in any 
 foreign country, or by the subject of any foreign state, 
 
 (m) Sect. 9. See also stat. 16 (2)) Hill v. nom2)son, 8 Tanut. 
 
 & 17 Vict. c. 115, s. 6. 395; S. C. 2 J. B. Moore, 452. . 
 
 («) Stat. 15 & 16 Vict. c. 83, (q) EdgeUrry v. Stephens, 2 
 
 s. 10. Salk. 447. 
 
 {o-) Bvulton V. Bull, 2 H. Black. (r) Beard v. Egerton, 3 C. B. 
 
 487. 97, 129.
 
 240 OF INCORPOREAL PERSONAL PROPERTY. 
 
 and a like privilege for tlie exclusive use or exercise of 
 such invention in anj foreign country is there obtained 
 before the grant of sucli letters-patent in the United 
 Kingdom, all rights and privileges under such letters- 
 patent shall (notwithstanding any term in such letters- 
 patent hmited) cease and be void immediately upon the 
 expu-ation or other determination of the term of the 
 like privilege obtained in such foreign countiy ; or where 
 more than one such like pri\alege is obtained abroad, 
 immediately upon the expiration or determination of 
 the term of such privileges which shall first expire or 
 be determined. And no letters-patent granted for any 
 invention, for which any patent or like pri\alege shall 
 have been obtained in any foreign country, shall be 
 of any vahdity, if granted after the expiration of the 
 term for which the foreign patent or privilege was in 
 force (s). The remaining restrictions imposed by the 
 act of James I. require no comment. 
 
 The granting of letters-patent is, as has been ob- 
 served, a prerogative of the crown ; and although a 
 patent may now be always obtained for any new in- 
 vention, yet the grant is still a matter of favour and 
 not of right, and aU grants of letters-patent for in- 
 ventions are at the present day clogged with certain 
 Specification, conditions. Of these conditions, the most important is 
 that which requnes the inventor particularly to describe 
 and ascertain the nature of his invention, and in what 
 manner the same is to be performed, by an instrument 
 in writing under his hand and seal, called the specifica- 
 tion, and to cause the same to be filed in the High 
 Court of Chancery within a given period, generally six 
 calendar months ft-om the date (t). This instrument 
 
 (s) Stat. 15 & 16 Vict. c. 83, (t) Ibid. s. 27. See stat. 16 & 
 
 s. 25 ; Bam v. Meij, V. C. W., 17 Vict. c. 115, s. 6. As to mu- 
 
 36 L. J., N. S. 482 ; Law Rep., 3 nitions of war, see stat. 22 Vict. c. 
 
 Eq. 496. 13.
 
 OF PATENTS AND COPYIIIGIITS. 241 
 
 was formerly required to be enrolled, instead of being 
 merely filed as at present. And it is pro\dded by the act 
 of 1852 that, if a complete specification be filed along 
 •with the petition for the letters-patent, then, in heu of 
 a condition for making void the letters-patent in case 
 the invention be not described and ascertained by a 
 subsequent specification, the letters-patent shall be con- 
 ditioned to become void, if such complete specification 
 filed as aforesaid does not particularly describe and 
 ascertain the nature of the invention, and in what 
 manner the same is to be performed (?<). The object 
 of requiring a specification is to secure to the public 
 the benefit of the knowledge of the invention after the 
 term granted by the patent shall have expired. The 
 framing of the specification is a matter of great nicety ; 
 for the description contained in it must correspond 
 with the title of the invention contained in the letters- 
 patent (u), and must clearly describe the invention (?i')) 
 neither covenng more than the proper subject of the 
 patent (:r), nor omitting anything necessary to make 
 the description intelligible (?/). Provision however has 
 been made by an act of parliament before referred to (r), 
 for enabling the grantee or assignee of any letters- Disclaimer. 
 patent to enter a disclaimei' of any part either of the 
 title of the invention, or of the specification, stating the 
 reason of such disclaimer, or to enter a memorandum 
 of any alteration in the title or specification, not being 
 such disclaimer or such alteration as shall extend the 
 exclusive right granted by the patent. Under these 
 provisions, letters-patent originally void may in many 
 
 ((0 Stat. 15 & 16 Vict. c. 83, (a-) mil v. T7iom2>son, SMariv. 
 
 s 9. 629. 
 
 (v) Re.T V. Wheeler, 2 Bam. & (>/) Bex v. ^Mleeler, iibi supra; 
 
 Aid. 345, 350. See Klchels v. Neilsoii v. Harford, 8 Mee. & 
 
 JIaslam, 7 Man. & Gran. 378 ; Wels. 805. 
 
 Beard v. Egerton, 3 C. B. 97. (r) Stat. 5 & 6 Will. IV. c. 83, 
 
 (w) Bloxham v. Elsee, 6 Bam. s. 1. See also stat. 7 & 8 Vict. c. 
 
 & Cress. 16'J. 69, ss. 5, 6. 
 
 v..p.r. R
 
 242 
 
 OF INCORPOREAL PERSONAL PROPERTY. 
 
 Eegister of 
 patents. 
 
 cases be rendered valid, the disclaimer being read as 
 part of the original title or specification (a). But the 
 object of the act is merely to allow of the removal from 
 the specification of that which is superfluous ; and a 
 disclaimer yvWl not be allowed which converts a descrip- 
 tion, in itself unintelhgible or impracticable, into a 
 practicable description of a usefol invention (b). The 
 above-mentioned provisions have been extended to 
 letters-patent granted and specifications filed under the 
 Patent Law Amendment Act, 1852 (c). This act also 
 provides for the pi-inting, publishing and sale, under 
 the direction of the commissioners of patents, of all 
 specifications, disclaimers, and memoranda of alterations 
 deposited or filed under the act (d). A "register of 
 patents" is also directed to be kept, where shall be 
 entered and recorded, in chronological order, all letters- 
 patent granted under the act, the deposit or filing of 
 specifications, disclaimers and memoranda of alterations 
 filed in respect of such letters-patent, all amendments 
 in such letters-patent and specifications, all confirma- 
 tions and extensions of such letters-patent, the expiry, 
 vacating or cancelling of such letters-patent, with the 
 dates thereof respectively, and all other matters and 
 things affecting the validity of such letters-patent as 
 the commissioners may direct ; and such register, or a 
 copy thereof, is to be open at all convenient times to 
 the inspection of the public, subject to such regidations 
 as the commissioners may make (e). 
 
 Vesting in Another condition formerly inserted in letters-patent 
 
 twelve persons I'endered them void, in case the letters-patent, or the 
 
 liberty and privileges thereby granted, should become 
 
 (ffi) The Queen v. Mill, 10 C. 
 
 (c) Stat. 
 
 15 & 16 Vict. 
 
 B. 379; Seed v. Higgins, 8 H. of 
 
 s. 39. 
 
 
 L. Cas. 550. 
 
 {d) Sect. 
 
 29. 
 
 . (i) Ralston v. Smith, 11 H, of 
 
 (r) Sect. 
 
 34. 
 
 L, Cas. 223, 
 
 
 
 c. 83,.
 
 OF PATENTS AND COPYRIGHTS. 243 
 
 vested in or in trust for more than the number of tAvelve 
 l)ersonSj or their representatives, at any one time, as 
 partners, dividing or entitled to di\'ide the benefit or 
 profit obtained by reason thereof; but it is now enacted 
 that, notwithstanding any proviso that may exist in 
 former letters-patent, it shall be lawful for a larger 
 number than twelve persons hereafter to have a legal 
 and beneficial interest in such letters-patent {/). 
 
 In letters-patent a clause is usually contained for- Licence to use 
 bidding all persons from using the invention without P^*^^"*-* 
 the consent, licence or agreement of the inventor, his 
 executors, administrators or assigns, in ^^I'iting, luider 
 his or their hands and seals, first had and obtained in 
 that behalf (^). The granting of licences to use a 
 patent is one of the most profitable ways of turning it 
 to account. All hcences are now required to be regis- 
 tered in the registry to be presently mentioned. 
 
 Letters-patent obtained in England formerly con- Scotch and 
 ferred an exclusive privilege only within England, "^ patents. 
 Wales and the town of Berwick upon Tweed ; and also 
 within the islands of Guernsey, Jersey, Alderney, Sark 
 and Man, and her Majesty's colonies and plantations 
 abroad, if so expressed in the patent. In order to 
 obtain the hke exclusive privilege for Scotland, it was 
 necessary to obtain separate letters-patent under the 
 seal appointed by the treaty of union to be used instead 
 of the great seal of Scotland ; and in the same manner 
 the hke privilege for Ireland was required to be ob- 
 tained by letters-patent under the great seal for Ire- 
 land. But it is now provided that letters-patent shall 
 extend to the whole of the United Kingdom of Great 
 Britain and Ireland, the channel islands, and the Isle 
 
 (/) Sect. 36. See post, the (//) See the form of letters- 
 
 chapter on joint ownership and patent in Appendix (A.) 
 joint liability. 
 
 r2
 
 244 OF INCORPOEEAL PERSONAL PROPERTY. 
 
 of ISIan ; and in case the warrant for granting the 
 patent shall so direct, such letters-patent shall be made 
 applicable to her Majesty's colonies and plantations 
 abroad, or such of them as may be mentioned in such 
 warrant (A). But where separate letters for England, 
 Scotland or Ireland have been abeady granted, sepa- 
 rate letters-patent may still be granted for the other 
 countries, on payment for such comitry of one-third 
 the stamp duties payable for a patent for the whole 
 kingdom (z). 
 
 Assignment of Letters-patent and the privileges thereby granted 
 letters-patent. ^^,^ ^^j^ assignable from one person to another, and 
 the assignee by such assignment is placed in the same 
 position as his assignor previously stood. The assignee 
 may consequently bring in his own name the same 
 actions and suits both at law and in equity against 
 those who have infringed upon the patent as the 
 patentee himself might have done (A). The privileges 
 granted by letters-patent are therefore plainly an in- 
 stance of an incorporeal kind of personal property, 
 different in its nature from a mere cliose in action, 
 As to the ne- which never has been assignable at law. A deed is 
 deed/ ° ^ said to be necessary for the valid legal assignment of 
 letters-patent ; but the author is not aware of any 
 authority for this position ; and the general rule appears 
 to be, that the assignment of incorporeal personal pro- 
 perty may be made without deed. Perhaps, however, 
 the necessity of an assignment by deed may be implied 
 fi'om the clause in the letters-patent, which forbids the 
 use of the invention "mthout the consent, licence or 
 agreement of the inventor, his executors, adminis- 
 trators or assigns, in writing, under his or their hands 
 
 (70 Stat. 15 & IG Vict. c. 83, {It) Godson on Patents, 237; 
 
 s. 18. Walton v. Lavater, 8 C. B., N. S. 
 
 (i) Stat. IG & 17 Vict. c. 5, 1G2. 
 s. 4.
 
 OF PATENTS AND COrYEIGIITS. 245 
 
 and seals, first had and obtained in tliat behalf." All 
 assignments of letters-patent are noAV required to be 
 registered under the Patent Law Amendment Act, 
 1852. 
 
 The act provides that there shall be kept at the office Register of 
 appointed for filing specifications in chancery under P^'^P^^^ '^'^s- 
 this act, a book or books entitled "The Kegister of 
 Proprietors," wherein shall be entered, in such manner 
 as the commissioners shall direct, the assignment of any 
 letters-patent, or of any share or interest therein, any 
 licence under letters-patent, and the district to which 
 such licence relates, with the name or names of any per- (Sic.) 
 son having any share or interest in such letters-patent 
 or licence, the date of his or their acquiring such letters- 
 patent, share and interest, and any other matter or thing 
 relating to or affecting the proprietorship in such letters- 
 patent or licence ; and a copy of any entry in such book 
 certified under such seal as may have been appointed, 
 or as may be directed by the Lord Chancellor, to be 
 used in the said office, shall be given to any person re- 
 quiring the same, on payment of the fees therein pro- 
 vided ; and such copies so certified shall be received in 
 evidence, in all courts and in all proceedings, and shall 
 be prima facie proof of the assignment of such letters- 
 patent, or share or interests therein, or of the licence or 
 proprietorship as therein expressed; provided always, 
 that until such entry shall have been made, the grantee 
 or grantees of the letters-patent shall be deemed and 
 taken to be the sole and exclusive proprietor or pro- 
 prietors of such letters-patent, and of all the licences 
 and privileges thereby given and granted (/ ). 
 
 Closely connected with the subject of patents is that Copyiiglit. 
 of copyright. Copyright may be defined to be the ex- 
 
 (0 Stat. 15 & 16 Vict. c. 8;], Bcav. 145 ; Chollett v. Hoffrmn, 
 s. 35. See Green's patent, 24 7 E. & B. 686,
 
 246 OF INCOEPOREAL PERSONxVL PROPERTY. 
 
 elusive right of multiplying eopies of an original work 
 or eomposition (m). From the nature of this right it 
 must almost neeessarily have had its origin at a period 
 subsequent to the invention of the art of printing. It 
 is, however, the better opinion that svich a right existed 
 j)rior to the Statute of Anne(?^), by which the term of 
 an author's copp'ight was first limited by the legis- 
 lature (o). But this statute, together with others by 
 which the copyright of authors was further secured (p), 
 has been repealed by the act of the present reign to 
 amend the laAV of copyright, on which the law of copy- 
 Present act. i-ight now depends {q). By this act the copyright of 
 every book (Avhich term includes for the piu'poses of the 
 ^ act every pamphlet, sheet of letterpress, sheet of music, 
 . \ ■ tf/»-t*«-^2**-«-fc.*^ap, chart or plan) published after the passing of the 
 »^** act in the lifetime of the author shall endm-e for his 
 
 Aw-A^^;^ "■ "^^ff natural life, and for the further term of seven years from 
 J^.^:f^c^- z^ his death, and shall be the property of such author and 
 liis assigns ; but if the term of seven years shall expire 
 before the end of forty-two years from the fii'st publica- 
 ^/^ r- ^ tion of the book, the copyright shall in that case endure 
 
 — ~ ■' -^ — - for such period of forty-two years ; and the copyright in 
 
 ' * / / ' ' every book published after the death of its author shall 
 endure for forty-two years from the first publication 
 Extension of thereof (/'). By the same act the existing copjTight in 
 riehts"^ *^°^'^" ^ooks then pubHshed is extended for the full term pro- 
 vided by the act in the case of books thereafter pub- 
 lished. But if the copjTight belong wholly or partly 
 to a publisher or other person, who has acquired it for 
 any other consideration than that of natural love and 
 affection, the copp'ight is not to be extended by the act, 
 
 (??0 14 M. & W. 316. Boosey v. Jefferys, 6 Exch. Eep. 
 
 (m) 8 Anne, c. 19. 502. 
 
 (<?) 3niler V. Taylor, 4 Burr. C^j) Stats. 41 Geo. III. c. 107 ; 
 
 2303; Donaldson v. Beckett, 4 54 Geo. III. c. 1.56. 
 Burr. 2408; 2 Bro. P. C. 129; {q) Stat. 5 & 6 Vict. c. 45. 
 
 (?•) Sect. 3.
 
 OF PATENTS AND COPYRIGHTS. 247 
 
 unless the author, if living, or his personal representa- 
 tive if he be dead, and the proprietor of such copyright, 
 shall, before the expiration of the subsisting term of 
 cop\Tight, consent and agree to accept the benefits of 
 the act, and shall register a minute of such consent in 
 the prescribed form ; in which case the copyright shall 
 endure for the full term provided by the act, and shall 
 he the property of the person or persons expressed in 
 the minute (s). And in order to provide against the 
 suppression of books of importance to the public, the 
 Judicial Committee of the Privy CounciL are authorized, 
 on complaint made to them, that the proprietor of the 
 copyright in any book, after the death of its author, has 
 refiised to allow its republication, to grant a licence to 
 the complainant to publish the book in such manner 
 and subject to such conditions as they may think fit (t). 
 
 And vnth regard to encyclopEedias, reviews and other Encyclopae- 
 
 . T 1 1 • • ' • T T , 1 i . 1 • 1 j^ • diss, reviews, 
 
 periodical works, it is provided, that the copjaight m &<._ 
 
 every article shall belong to the proprietor of the work 
 
 for the same term as is given by the act to authors of 
 
 books, whenever any such article shall have been or 
 
 shall be composed on the terms that the copyright 
 
 therein shall belong to such proprietor and be paid for 
 
 by him(M); but payment must be actually made by the 
 
 proprietor before the copyright can vest in him (x) ; 
 
 and after the term of twenty-eight years from the first 
 
 publication of any such article, the right of publisliing 
 
 the same in a separate form shall revert to the author 
 
 for the remainder of the term given by the act ; and 
 
 during such term of twenty-eight years the proprietor 
 
 shall not publish any such article separately without 
 
 previously obtaining the consent of the author or his 
 
 assigns. But any author may reserve to liimself the 
 
 (s) Stat. 5 & 6 Vict. c. 45, s. 4. Berming, 16 C. B. 459. 
 
 (f) Sect. 5. (a;) Richardson v. (lllhrrt, 1 
 
 (?/) See Bishop of Hereford v. Sim., N. S. 33G. 
 GrifKn, 16 Sim. 190: Street v.
 
 248 
 
 OF IXCOErOEEAL PEESONAL PEOPEETY, 
 
 mnsic:\l com 
 posi.ions 
 
 riglit to publish any siicli composition in a separate 
 form, and lie ^411 tlaen be entitled to the copp-ight in 
 such composition when published separately, without 
 prejudice to the right of the proprietor of the encyclo- 
 pa3dia, re\dew or other periodical. in which it may have 
 Dramatic and first appeared (y). By the same act the sole liberty of 
 representing any dramatic piece at any place of dramatic 
 entertainment, and of performing any musical composi- 
 tion in any public place (z), is secm-ed to the author 
 and his assigns for the same term as is provided for the 
 dm-ation of copyright in books (a). The property in 
 dramatic works had previously been secured to the 
 authors for a shorter period by an act of the reign of 
 King William the Fom-th, which is still in opera- 
 tion (b). It is now decided that a foreigner residing 
 abroad is not entitled to the copyright of any work com- 
 posed by him and first published in this country; but a 
 foreigner residing in England or in a British colony at 
 the time of the first publication of liis work is entitled 
 to the copyright (c). 
 
 Forcijiner. 
 
 Eogistry of 
 proprietors of 
 copyrights. 
 
 By the same act a book of registry is required to be 
 kept at Stationers' Hall, open to public insj^ection on 
 payment of a small fee, in wliich may be registered the 
 proprietorship and assignment of copyrights {d ). And 
 no proprietor of copp'ight in any book which shall be 
 first pubhshed after the passing of the act can maintain 
 any action or suit at law or in equity, or any summary 
 
 (ij) Stat. 5 & 6 Vict. c. 45, 
 s. 18, 
 
 (z) Russell V. Smith, 15 Sim. 
 181; 12Q. B. 217. 
 
 {a) Stat. 5 & evict, c. 45, s. 20. 
 
 (i) Stat. 3 & 4 Will. IV. c. 15. 
 See Morton v. Copeland, 16 C. B. 
 517; Marsh v. Conquest, 17 C. B., 
 N. S. 418 ; 12 W. R. lOOC, ; Lacy 
 V. Rhys, 4 Best & Smith, 873. 
 
 (c) Jefferys v. Boosey, H. of 
 Lords, 1 Jur., N. S. 615; 4 H. of 
 L. Cas. 815; Low \. Rovtledge, 
 V. C. K., 10 Jur., N. S. 922, af- 
 firmed 11 Jur., N. S. 939 ; Law 
 Rep., 3 H. of L. 100. 
 
 {(l) Stat. 5 & 6 Vict. c. 45, ss. 
 1 1 , 1 9, 20. See Ex parte David- 
 son, 18 C. B. 297; Ex parte Da- 
 vidson,2'E. & B.577,gi(.i'
 
 OF PATENTS AND COPYRIGHTS. 
 
 249 
 
 proceeding, in respect of any iufi-ingement of such copy- 
 right, unless he shall, before commencing such action, 
 suit or proceeding, have caused such book to be regis- 
 tered pm-suant to the act ; but the omission to register 
 will not affect the copyright in the book, but only the 
 right to sue or proceed in respect of the infringement 
 thereof. And the remedies of the proprietors of the sole 
 liberty of representing any dramatic piece under the 
 above-mentioned act of Will. IV. are not to be preju- 
 diced, although no entry shall be made in the register 
 book (e). And evevj registered proprietor is empowered Assignment. 
 to assign his interest by making entry in the book of 
 registry of such assignment and of the name and place 
 of abode of the assignee, in the form given in a schedule 
 to the act ; and such assignment so entered is declared 
 to be effectual in law to all intents and purposes whatso- 
 ever, A^dthout being subject to any stamp or duty, and to 
 be of the same force and effect as if such assignment had 
 been made by deed (/ ). But if the right of repre- 
 senting any dramatic piece or performing any musical 
 composition is intended to pass to the assignee of the 
 copyright, an entry must be expressly made of such 
 intention {(/). 
 
 The act also expressly provides, that all copyrights Copyrights to 
 protected by the act shall be deemed personal property, property"^ 
 and shall be transmissible by bequest; or, in case of 
 intestacy, shall be subject to the same laws of distribu- 
 tion as other personal property (A). 
 
 In order to give more effectual protection to persons Importation of 
 entitled to the copyright of books, it is also provided pHntf^of books 
 
 (e) Stat. 5 & 6 Vict. c. 45, ({/) Sect. 22. 
 
 s. 24. (/') Sect. 25. 
 
 (/) Sect. ]3. 
 
 entitled to 
 copyright.
 
 250 OF INCORPOREAL PERSONAL PP.OPERTY. 
 
 tliat no person, not being tlie proprietor of the copyright, 
 or some person authorized by him, may import into any 
 part of the United Kingdom, or into any other part of 
 the British dominions, for sale or hire any printed book 
 first composed or written or priijted and pnbhshed in 
 any part of the United Kingdom, wherein there shall be 
 copyright, and reprinted in any country or place what- 
 soever out of the British dominions (2). And by sub- 
 sequent acts (j), books, wherein the copyright is subsist- 
 ing, first composed or written or printed in the United 
 Kingdom, and printed or reprinted in any other country, 
 are absolutely prohibited to be imported either into the 
 United Kingdom or into the British possessions abroad, 
 proidded the proprietor of such copyright, or his agent, 
 shall have given notice in writing to the commissioners 
 of customs that such copyright" subsists, and in such 
 notice shall have stated when the copyright Avill exph'e. 
 But by another act (A) it is provided, that in case the 
 proper legislative authorities in any British possession 
 shall make any act or ordinance to make due provision 
 for securing the rights of British authors in such pos- 
 session, her Majesty, on the same being transmitted to 
 the Secretary of State, may, if she think fit so to do, 
 express her royal approval of such act or ordinance, and 
 thereupon may issue an order in council declaring that, 
 • so long as the provisions of such act or ordinance con- 
 
 tinue in force mthin such colony, the prohibitions con- 
 tained in the above-mentioned acts, or in any other acts, 
 with respect to foreign reprints of books first composed, 
 ■WTitten, printed or published in the United Kingdom, 
 and- entitled to copp-ight therein, shall be suspended so 
 far as regards such colony ; and thereupon such act or 
 ordinance shall come into operation, except so far as 
 
 (!) Stat. 5 & G Vict. c. 45, s. 17. 9; and 1(1 & 17 Vict. c. 107, ss. 44, 
 (J) Stilt. 8 & 9 Vict. c. 9;5, s. IGO. 
 
 (k) Stat. 10 & 11 Vict. c. 95.
 
 OF PATENTS AND COrYRIGIITS. 251 
 
 may be otlier^^ase provided therein, or as may be other- 
 wise directed by such order in council (/). 
 
 By acts of parliament of an older date, coppnght has Copyright in 
 also been created in prints, eno-ra\dngs, maps, charts ^"° ^' "^'^I'^' 
 and plans for the term of twenty-eight years, to com- 
 mence from the day of first publisliing thereof; which 
 day, together -v^ath the proprietor's name, is to be tinily 
 engraved on each plate, and printed on every print {m). 
 But these acts do not apply to illustrative wood en- 
 gravings printed on the same sheet as the letter-press 
 of a book, as such engravings form part of the book 
 and are comprised within its copyright (??). Under 
 these acts the assignee of the copyright may bring an 
 action in his own name against any person who may 
 pirate it (o). And by a modem statute (/>) all the 
 provisions contained in these acts are extended to the 
 United Kingdom of Great Britain and Ireland. And 
 it is provided (17), that if any person shall, during the 
 existence of the copjanght, engrave, etch or publish any 
 engraving or print of any description whatever, either 
 in whole or in part, already published in any part of 
 Great Britain or Ireland, without the express consent 
 of the proprietor or proprietors thereof first obtained in 
 ■svriting signed by him, her or them respectively, with 
 his, her or their own hand or hands, in the presence of • 
 
 and attested by two or more credible witnesses, then 
 every such proprietor may, by a separate action upon 
 the case, to be brought against the person so offending, 
 
 (Z) Several British colonies have Ball, 14 C. B., N. S. 30G. 
 
 obtained Orders in Council under (») Bogne v. Honlston, 5 Do 
 
 this act. See 6 Jur., N. S. pt. 2, Gex & Smale, 267; S. C. IG Jur. 
 
 p. 45, 272. 
 
 (m) Stat. 8 Geo. II. c. 1.3, (o) 77iomj)sonv. Si/fmnds, 5T. 
 
 amended by 7 Geo. III. c. 38, and Rep. 41. 
 
 rendered more effectual by 17 (y^) Stat. C & 7 Will. IV. c. .50, 
 
 Geo. III. c. 57; Gamhnrt v. Sum- s. 1. 
 
 ner, 5 H. & N. .5; Gamhart v. (^) Sect. 2.
 
 252 OF IXCOKPOREAL TEESOXAL PIlOrERTY. 
 
 in any com-t of law in Great Britain or Ireland, recover 
 such damages as the jury shall assess, together with 
 double costs of suit. By a more recent act it is 
 declared that the provisions of the above-mentioned 
 statutes are intended to include prints taken by litho- 
 graphy, or any other mechanical process by which 
 prints or impressions of drawings or designs are capable 
 of being multiplied indefinitely (r). 
 
 Copyright in By other acts of parliament copyi'ight has been 
 
 sculptuies, &c. gj^.j^n^g(j to the makers of new and original scidptures, 
 models, copies and casts for the term of fourteen years 
 from their first putting forth or pubhshing the same (s), 
 with a further term of fourteen years to the original 
 maker, if he shall be then HA-ing {t) ; provided that in 
 every case the proprietor cause his name, with the date, 
 to be put on every such sculpture, model, copy or cast 
 before the same shall be put forth or published {u). And 
 it is also pro\-ided that no person who shall purchase 
 the right or property of any such sculpture, model, 
 copy or cast of the proprietor, expressed in a deed in 
 writing signed by him ^vith his own hand, in the pre- 
 sence of and attested by two or more credible witnesses, 
 shall be subject to any action for coppng, casting or 
 vending the same (x). By the Designs Act, 1850 (y), 
 pro\asion has been made for the registration of sculp- 
 tures, models, copies and casts within the protection 
 of the Sculpture Copyi'ight Acts, which registration 
 entitles the proprietor of the copyright to certain 
 Paintincr? penalties in case of piracy (z). And with regard to 
 
 drawings and paintings, dra'v\angs and photographs, it is now provided 
 photographs. ^^^^^ ^j^^ exclusive right of coppng, engra\-ing, repro- 
 
 (?•) Stat. 15 & 16 Vict. c. 12, (%) Sect. 1. 
 
 s. U. (^) Sect. 4. 
 
 (.s) Stat. 38 Geo. III. c. 71, (y) Stat. 13 & U Yict. c. 104, 
 
 amended hy 54 Geo. III. c. 56. s. 6. 
 
 it) Stat. 54 Geo. III. c. 56, s. 6. (--) Sect. 7.
 
 OF PATENTS AND COPYRIGHTS. 253 
 
 ducing and multiplying them by any means and of any 
 size shall belong to the author, being a British subject 
 or resident within the dominions of the Crown, for the 
 term of his life and seven years after his death (a). 
 And a register of proprietors of copyi'ight in paintings, 
 drawings and lithographs is established at Stationers' 
 Hall, subject to similar regulations to that established 
 for the registry of copyright in books {b). 
 
 By an act of parliament recently passed to amend the International 
 law of international copyright (c), her Majesty is em- ^^^PJ^^ 
 powered by any order in council to grant the privilege ^"^ ^^ / 
 of copyright for such period as shall be defined in s^f^h *"'„» ^ 
 
 order (not exceeding the term allowed in this country), ^^^^^^/^.i* - 
 to the authors, inventors and makers of books, prints, 
 articles of sculpture and other works of art, or any par- 
 ticular class of them, to be defined in such order, wdiich 
 shall, after a future time to be specified in such order, 
 be first pubhshed in any foreign country, to be named 
 in such order. And her Majesty is also empowered {d) 
 by any order in council to direct that the authors of 
 dramatic pieces and musical compositions, which shall 
 after a future time to be specified in such order, be first 
 publicly represented or performed in any foreign country 
 to be named in such order, shall have the sole liberty 
 of representing or performing in any part of the British 
 dominions such dramatic pieces or musical compositions 
 during such period as shall be defined in such order, 
 not exceeding the period allowed in this country. Pro- 
 vision however is made for the entry of proper par- 
 ticulars of the subjects for w^hich copyi'ights shall be 
 granted in the register book of the Stationers' Company 
 in London, within a time to be prescribed in each such 
 
 (a) Stat. 25 & 26 Vict. c. C8, 3, 4, extended to paintings, draw- 
 
 s. 1. ings and photographs by stat. 25 
 
 (?0 Sects. 4, 5, ante, p. 247. & 26 Vict. c. 68, s. 12. 
 ic) Stat. 7 & 8 Vict. c. 12, ss. 2, (^d) Stat. 7 & 8 Vict. c. 12, s. 5.
 
 254 OF IXCORPOREAL PERSONAL PROPERTY. 
 
 order in council (e). And all copies of books wherein 
 there shall be any subsisting copp'ight by \4rtue of 
 this act, or of any order in council made in pursuance 
 thereof, printed or reprinted in any foreign country, 
 except that in Avhich such books were first published, 
 are absolutely prohibited to be imported into any part 
 of the British dominions, except with the consent of the 
 registered proprietor of the copyi-iglit thereof, or his 
 agent authorized in writing {/). But no such order in 
 council shall have any effect unless it shall be therein 
 stated, as the ground for issuing the same, that due pro- 
 tection has been secured by the foreign power named in 
 such order in council for the benefit of parties interested 
 in works first pubhshed in the dominions of her Majesty, 
 similar to those comprised in such order (^). And 
 every such order in council is to be published in the 
 London Gazette as soon as may be after the making 
 thereof, and fi-om the time of such pubhcation shall 
 have the same effect as if every part thereof were in- 
 cluded in the act (A). And no copyi'ight is allowed to 
 any book, dramatic piece, musical composition, piint, 
 article of sculpture or other work of art, first published 
 out of her Majesty's dominions, other^vise than under 
 this act. A convention under tliis act has already been 
 effected with France, the stipulations of which have 
 been confirmed by act of parliament ( i). And the pro- 
 visions of the International Copyi'ight Act have been 
 extended to authorized translations of foreign books for 
 a term not exceeding five years fi-om the first publication 
 of such translations (/i) ; also to authorized translations 
 of foreign dramatic pieces for a term not exceeding five 
 years from the time at which the authorized translations 
 are first published or publicly represented (/), but so as 
 
 (e) Stat. 7 & 8 Vict. c. 12, ss. (Ji) Sect. 15. 
 
 6, 7, 8, 9; Cassell v. Stiff, 2 Kay 0) Stat. 15 & 16 Vict. c. 12. 
 
 & J. 279. lli) Sects. 1, 2, 3, 4. 
 
 (/) Sect. 10. (Z) Sects, i, 5, 
 
 07) Sect. U.
 
 OF PATENTS AND COPYRIGHTS. 255 
 
 not to prevent fair imitations or adaptations to the 
 English stage of any dramatic piece or musical compo- 
 sition published in any foreign country (/«). 
 
 No person can print or publish any newspaper before Newspapers. 
 delivering at the Stamp Office a declaration containing, ^^ ^. ^^ ^ . 
 amongst other things, the true name, addition and place ^ ^ ^^^'^^ e^> 
 of abode of the printer and publisher, and of every pro-'^ ^""^ ^~S24 
 prietor resident out of the United Kingdom, and also«/ />,.r.c. '-w f 
 of every proprietor resident in the United Kingdom,* '?^«-.^ ^ ') ' 
 if their number shall not exceed two, exclusive of the^' " "^ " ^f 
 printer and publisher; and if their number should exceed ^T„'*^ **i .<— 
 two, then the names of two of the proprietors must be ^^«— -vi ^ 
 given, the amount of w hose shares shall not be less than 
 the share of any other proprietor resident in the United 
 Kingdom, exclusive of the printer and publisher ; and 
 the amomit of their shares must be specified {n). Under 
 this act if one person holds in trust for another, both 
 names must be mentioned (o) ; and a mortgagee must 
 be mentioned also, otherwise the right to publish the 
 newspaper would formerly have been considered as goods 
 of the mortgagee, in the order and disposition of the 
 mortgagor, and would accordingly, in the event of his 
 banki-uptcy, have passed to his assignees (p). But this 
 appears to be no longer the case under the Bankruptcy 
 Act, 1869 {q). 
 
 By recent statutes a copyright has been granted to Designs for 
 designs for articles of manufacture for the term of three manufacture. 
 years, one year, or nine calendar months, according to 
 the natru'e of the manufacture (r); and, in pursuance of 
 
 Qm) Sect. 6. & Pull. N. Eep. G7 ; Ex inirte 
 
 (n) Stat. 6 & 7 Will. IV. c. 76, Foss, Be BaUwyii, 2 De Gex & 
 
 s. G. Jones, 230. 
 
 (o) Banner v. Westmacott, 6 {q) Stat. 32 & 33 Vict. c. 71, 
 
 Sim. 281:. ante, p. 54. 
 
 {2>) Longman v. Trijjj), 2 Bos. (r) Stat. 5 & G Vict. c. 100, by
 
 256 OF INCORrOREAL PERSONAL RROPERTY. 
 
 these acts, a registrar of designs for articles of manufac- 
 ture lias been appointed, by whom all designs to be 
 protected by the acts are required to be registered {s) ; 
 and provision is also made for the transfer of the copy- 
 right in such designs by any writing piu'porting to be a 
 transfer, and signed by the proprietor, and also for the 
 registration of transfers in a prescribed form (^). These 
 acts have been extended and amended by the Designs 
 Act, lS50{u), which provides for the "provisional re- 
 gistration" of designs for the term of one year, and 
 empowers the Board of Trade to extend the copyright 
 in ornamental designs for such term, not exceeding the 
 additional term of three years, as the board may think 
 fit (?;). A more recent statute extends the copyright to 
 certain ornamental designs (x), and provides for the 
 registration of any pattern or portion of any article of 
 manufacture instead of a drawing or description (?/). 
 It also enables proceedings for piracy to be brought in 
 the county court {z). 
 
 Trade marks. The marks often used by manufacturers to designate 
 goods made by them resemble copp-ight as a subject of 
 property («); and the Court of Chancery will restrain 
 a third person from passing off his own goods as those 
 made by another, by the use of that other person's 
 trade mark. And when a business, "vvith the machinery 
 
 ■whicli all the previous statutes s. 9. 
 
 were consolidated, and G & 7 Vict. (x) Stat. 21 & 22 Vict. c. 70, 
 
 c 65 ; 21 & 22 Vict. c. 70 ; 21 & s. 3. 
 
 25 Vict. c. 73. (y) Sect. 5. 
 
 (s) Stat. 6 & 7 Vict. c. Go, ss. 7, (z) Sects. 8, 9. 
 
 8, 9. («) Hall V. Barron-s, L. C, 
 
 (f) Stats. 5 & 6 Vict. c. 100, s. 10 Jar., N. S. 55 ; Leatlier- Cloth 
 
 C ; 6 & 7 Vict. c. 65, s. 6. Company, Limited, y. Ameri- 
 
 (m) Stat. 13 & 14 Vict. c. 104. can Leather- Cloth Company, 
 
 See also stats. 14 & 15 Vict. c. 8, Limited, H. of Lords, 13 W. R. 
 
 extended by stat. 15 & 16 Vict. 373 ; 11 Jur., N. S. -513. See, 
 
 c. 6. however, Collins' Company t. 
 
 ((•) Stat. 13 & 14 Vict. c. 104, Bronn, 3 Kay & J. 423.
 
 OF PATENTS AND COPYRIGHTS. 257 
 
 and trade marks, is assigned from one person to another, 
 
 the assignee has the same right as the assignor had 
 
 before to prevent others from using the marks (h). A 
 
 trade mark may belong to particular works as well as 
 
 to particular persons (c). But those who themselves 
 
 deceive the public cannot prevent others from using 
 
 their marks {d). A recent act of parliament has New enact- 
 
 amended the law relating to the fraudulent marking of '^^'^'• 
 
 merchandize (e), and has made the forging of trade 
 
 marks or theh wrongfld application to articles of mer- j-f-*^ ^ yi-^/ 
 
 chandize a misdemeanor (/). And every person who ^^-^' 'S'df. 
 
 now contracts to sell any article with any trade mark 
 
 thereon is deemed to warrant that such mark is 
 
 genuine, unless the contrary be expressed in some 
 
 writing signed by or on behalf of the vendor, and 
 
 delivered to and accepted by the purchaser (^). And 
 
 the same provision has been made with respect to any I 
 
 description, statement or other indication of or respect- \ 
 
 ing the number, quantity, measure or weight of any 
 
 article, or the place or country in which it shall have . 
 
 been made or produced (A). 
 
 Connected -with the subject of trade marks is that of Goodwill, 
 goodwill. The goodwill of a trade or business is of^en 
 of great value. It comprises every advantage which 
 has been acquired by carrying on the business, whether 
 connected Avith the premises in which the business 
 has been carried on, or with the name of the firm by 
 whom it has been conducted (?). On the dissolution of 
 
 (&) Edelston v. Yick, 11 Hare, ClotJi Company, Limited, 13 W. 
 
 78. R. 873; 11 Jur., N. S. 513. 
 
 (c) Motley v. Bomnman, 3 My. (e) Stat. 25 & 26 Vict. c. 88. 
 
 &Cr. 1. (/) Sects. 2, 3. 
 
 {d-) Pidding v. Horv, 8 Sim. {g) Sect. 19. 
 
 477 ; Perry v. Truefitt, 6 Beav. (Ji) Sect. 20. 
 
 66; Leather- Cloth Company, (i) Churtony. Douglas, 3 dhn.- 
 
 Limited, v. American Leather- son, 174. 
 
 W.P.P. 8
 
 258 OF INCORPOREAL PERSONAL PROPERTY. 
 
 a partnersliip, eacli partner has a right, in the absence 
 of any stipulation to the contrary, to use the name of 
 the old firm (k); and if there be a stipulation that, in 
 case of the decease of one partner, the surv'i\4ng partner 
 shall take the stock or capital at a valuation, the good- 
 will must be included in such valuation (Z). The sale 
 of the goodwill of a business will not prevent the vendor 
 from setting up the same business on his own account, 
 even in immediate proximity to the premises on which 
 the old business has been carried on (m) ; so that the 
 pm'chaser should, in such cases, always insist on a cove- 
 nant being entered into by a vendor not to carry on the 
 business within so many miles of the old j)remises, 
 which covenant, as we have seen (n), is valid. And in 
 a recent case, where the goodwill of a partnership 
 business was ordered to be sold by the Court, a notice 
 was directed to be inserted in the advertisements and 
 particulars of sale, that the sale would not prevent any 
 person theretofore interested in the business from cariy- 
 ing on the like business in the same town (o). 
 
 (k) Banks V. Cfidson, M. E., (m) Cruttnell v. Lye, 17 Ves. 
 
 11 Jur., N. S. 680 ; 3i L. J., Chan. 335 ; Hall v. Barrows, C%urton 
 
 179 ; 13 W. R. 1012. v. Bovglas, ubi supra. 
 
 (J) Hall V. Barrows, M. R., 9 (w) Ante, p. 91. 
 
 Jur., N. S. 483, affirmed by L. C. (o) Johnson v. Helleley, 2 De 
 
 10 Jul-., N. S. 55. Gex, J. & S. 446.
 
 ( 269 ) 
 
 PART IV. 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 CHAPTER I. 
 
 OF SETTLEMENTS OF PEESONAL, PEOPERTY. 
 
 Personal property is capaljle of being settled, but not No estate for 
 in the same manner as land. Land, being held bj ^ ^' 
 estates, is settled by means of life estates being given to 
 some persons, with estates in remainder in tail and in 
 fee simple to others. But personal property, as we have 
 already observed (a), is essentially the subject of abso- 
 lute ownership. The settlement of such property, by 
 the creation of estates in it, cannot therefore be accom- 
 plished. And there is a striking difference in many 
 cases between the effect of the same limitation, ac- 
 cording as it may be applied to real or to personal 
 property. 
 
 As there can be no estate in personal property, it 
 follows that there can be no such thing as an estate for 
 life in such property in the strict meaning of the j)hrase. 
 Thus, if any chattel, whether real or personal, be 
 assigned to A. for his life, A. will at once become en- 
 titled in law to the whole. By the assignment the pro- 
 perty in the chattel passes to him, and the law knows 
 nothing of a reversion in such chattel remaining in the 
 assignor. And this is the case even though the chattel 
 be a term of years of such length (for instance 1000 years) 
 that A. coidd not possibly live so long (h). The term is 
 
 (a) Ante, p. 7. (&) 2 Prest. A.bs. 5. 
 
 s2
 
 260 
 
 OF PEESONAL ESTATE GENERALLY. 
 
 considered in law as an indivisible chattel, and conse- 
 quently incapable of any suck modification of OAvnersliip 
 as is contained in a life estate. 
 
 Bequest of a An apparent exception to the above rule has long 
 
 been established in the case of a bequest by will of a 
 term of years to a person for his life : in this case the 
 intention of the testator is carried into effect by the 
 application of a doctrine similar to that of executory 
 devises of real estates (c). The whole term of years is 
 considered as vesting in the legatee for Hfe, in the same 
 manner as under an assignment by deed ; but on his 
 decease the term is held to sliifl away from him, and to 
 vest, by way of executory bequest, in the person to be 
 next entitled {d). Accordingly, if a term of years be 
 bequeathed to A. for his life, and afler his decease to 
 B., A. will have, during his life, the whole term vested 
 in him, and B. will have no vested estate, but a mere 
 possibility, as it is termed (e), until after the decease of 
 A. ; and this possibility, hke the possibihty of obtaining 
 a real estate, was formerly inalienable at law unless by 
 will(^j, though capable of assignment in equity (5'). 
 
 How alienable. But by the act to amend the law of real property (A), 
 which repeals an act of the previous session passed for 
 the sanae purpose {i), it is pro\aded that an executory 
 and a future interest, and a possibility coupled with an 
 interest, in any tenements or hereditaments of any tenure 
 may be disposed of by deed. B. may, therefore, during 
 the hfe of A., assign his expectancy by deed ; and such 
 
 Executory 
 bequests. 
 
 Possibility. 
 
 (c) See Principles of the Law 
 of Keal Property, 249, 2nd. ed. ; 
 256, 3rd ed. ; 259, 4th ed. ; 270, 
 6th ed. ; 284, 6th ed. ; 292, 7th 
 ed. ; 301, 8th ed. 
 
 {d) 3Iatthew Manning's case, 
 8 Rep. 95 ; LamperVs case, 10 
 Kep. 47. 
 
 (e) See Piinciples of the Law 
 
 of Real Property, 223, 2nd ed.; 
 230, 3rd ed. ; 231, 4fh ed. ; 240, 
 5th ed. ; 250, 6th ed. ; 256, 7th 
 ed. ; 267, 8th ed. 
 
 (/) Shep. Touch. 230. 
 
 ((7) Fearne, Cont. Rem. 548. 
 
 {li) Stat. 8 & 9 Vict. c. 106, s. 
 6. 
 
 {%) Stat. 7 & 8 Vict. c. 76, s. 5.
 
 OF SETTLEJIENTS OF PERSONAL PROPERTY. 261 
 
 assignment will entitle the assignee to tlie whole term 
 on A.'s decease. If, however, no such assignment 
 should have been made, B. wiR become, on the decease 
 of A., possessed of the whole term, which Avill then 
 shift to B. by virtue of the executory bequest in his 
 favour. The mere circumstance, indeed, of the term 
 being bequeathed to A. for his life only, wall operate to 
 shift away the term on his decease (J), independently 
 of the bequest to B. ; so that, if there had been no 
 bequest over to B., the interest of A. would continue 
 only during his life, and the residue of the term would 
 then remain part of the undisposed of property of the 
 testator. It may, however, be doubted whether the 
 doctrine of executory bequests is applicable in law to 
 any other chattels than chattels real (A). 
 
 The strict and ancient doctrine of the indivisibility of Life interests 
 a chattel, though still retained by the courts of law, has ^^ ^"^"^ ^ 
 no place in the modern Court of Chancery, which, in 
 administering equity, carries out to the utmost the in- 
 tentions of the parties. In equity, therefore, imder a 
 gift of personal property of any kind to A. for his life, 
 and after his decease to B., A. is merely entitled to a 
 life interest, and B. has, during the life of A., a vested 
 interest in remainder, of Avhich he may dispose at his 
 pleasure, and the Com-t of Chancery wiU compel the 
 person to whom the coiu'ts of law may have awarded 
 the legal interest to make good the disposition. Ac- 
 cordingly, if the personal property so given should 
 consist of moveable goods, equity will compel A., the 
 owner for life, to furnish and sign an inventory of the 
 goods, and an undertaking to take proper care of 
 
 {j) Eyres v. Faulldand, 1 See, however, 1 Jarm. Wills, 793; 
 
 Salk. 231 ; Ker v. Lord Dungan- 747, 2nd ed. ; Eoare v. Parker, 
 
 non, 1 Dru. & War. 509, 528. 2 T. Rep. 376. 
 
 (fe) Feame, Cont. Rem. 413.
 
 2G2 OF TEESOXAL ESTATE GENERALLY. 
 
 them (I). This doctrine, however, is comparatively of 
 
 Ancient dis- modern date ; for fomierly the Com-t of Chancery fol- 
 
 tween a <fift of lowed the rtdes of law in the construction of such gifts ; 
 
 goods and a ^nd if a p-ift of moveable ffoods had been made to A. 
 
 gilt of the use ... . t-» i 
 
 of goods. for his life, and after his decease to B., they would not 
 
 have afforded to B. any assistance after A.'s decease (m). 
 But if the gift had been of the use or enjoyment of the 
 goods only to A. for his life, and after his decease to 
 B., the coiu't would then have assisted B. by declaring 
 A.'s representatives after his decease to be trustees only 
 for the benefit of B. {ii). But this distinction is now 
 exploded; and the only case in wliich the tenant for 
 life is now entitled absolutely to tilings given to him 
 Articles qnas for hfe is, that of articles qucB ipso usu consumuntur, as 
 sumunturr^" ""^nes, &c., a gift of which to a person for his life vests 
 in him the absolute ownership (o). In all other cases, as 
 we have said, modern equity will assist the donee in re- 
 mainder, to whom any gift of personal estate may be 
 made after the decease of another who is to have them 
 Settlement of Only for his hfe(/>). When, therefore, it is wished to 
 
 P^^*^"^ '^^^' make a settlement of any kind of personal property, the 
 perty by means _ •' l r l j ^ 
 
 of trusts. doctrine of the Court of Chancery is at once resorted 
 
 to. The property is assigned to trustees, in trust for 
 A. for his life, and after his decease in trust for B., &c. 
 This assignment to the trustees vests in them the whole 
 legal interest in the property; and in a court of law 
 they are held to be absolutely entitled to it; for the 
 Statute of Uses (5') has no application to any kind of 
 personal estate. But in equity the trustees are com- 
 pellable to pay the entu-e income to A. for his life, and 
 after his decease to B., and so on according to the 
 
 (Z) Feame, Cont. Eem. 407 ; (/?) Feame, Cont. Eem. 406. 
 
 Conduitt v. Soane, 1 Coll. 285. {q) 27 Hen. VIH. c. 10 ; Prin- 
 
 (vi) Feame, Cont. Eem. 402. ciples of the Law of Eeal Pro- 
 
 (») Ibid. 404. perty, 126, 2nded.; 131, 3rd and 
 
 (o) Randall v. Biixsell, 3 4th eds. ; 136, 5th ed. ; 142, Cth 
 
 Mcriv. 190 ; Andrciv v. Andrciv, ed. ; 14G, 7th ed. ; 152, 8th ed. 
 
 1 Coll. 690.
 
 OF SETTLEMENTS OF PERSONAL PROPERTY. 263 
 
 trusts of the settlement ; and if B. should alien his 
 interest during the life of A., the trustees will be bound, 
 on having notice of the disposition, to stand possessed 
 of the property, after A.'s decease, in trust for the 
 ahenee (r). 
 
 When shares in joint stock companies are settled in Bonus. 
 the manner above mentioned, it sometimes becomes a 
 question Avhether any extraordinaiy profit which may 
 be divided amongst the shareholders by way of bonus 
 should be considered as capital or as interest. The 
 eqvutable tenant for life is too frequently incKned to 
 consider himself entitled to any bonus in the same man- 
 ner as to ordinary dividends. The Court of Chancery, 
 however, usually considers every bonus, whether con- 
 sisting of additional joint stock or shares (5), or simply 
 of money (t), as part of the capital, unless it appear to 
 be nothing more than an increased dividend arising from 
 the increased profits of the year (?/). In the absence, 
 therefore, of any special provision to the contrary, every 
 bonus ought to be invested upon the trusts of the settle- 
 ment, and the mcome only paid to the tenant for life. 
 
 By a modern act of parliament (u), on the decease of Apportion- 
 a person entitled to a Hfe interest in any income, made ^^°' ^^' 
 payable or coming due at fixed periods, of any property, 
 whether real or personal, his executors or administrators 
 
 (?•) A form of mamage settle- Beav. 619, 624, and the cases 
 
 ment of stock and other personal there collected, 
 
 estate upon the usual trusts will («) Barclay v. Waineyvright, 
 
 be found in Appendix (B). 14 Ves. 66; Price v. Anderson, 
 
 (s) Brander v. Brander, 4 15 Sim. 473 ; Preston v. Melville, 
 
 Ves. 800 ; Hooper v. Bossiter, 16 Sim. 163 ; Maclaren v. Stain- 
 
 13 Price, 774 ; S. C, M'Cleland, ton, 3 De Gex, F. & J. 203. 
 
 527. (») Stat. 4 cSc 5 Will. IV. c. 22, 
 
 it) Paris V. Paris, 10 Ves. s. 2 ; Be MaxivelVs Trusts, V. C. 
 
 1S5 ; Ward v. Combe, 7 Sim. 634. W., 9 Jur., N. S. 350 ; 1 Hem. & 
 
 See also Gilli/ v. Burley, 22 Mill. 610.
 
 264 '"of personal estate generally. 
 
 are entitled to recover from tlie remainderman an appor- 
 tioned part of the next payment of the income, accord- 
 ing to the time which shall have elapsed since the last 
 period of payment, up to and including the day of the 
 decease of such person. And when any other limited 
 interest determines, a similar right to an apportionment 
 is also given. But the act makes no apportionment of 
 rent between the heir or devisee and the executor of a 
 tenant in fee simple ( w). And where the property ceases 
 with the interest, and does not go over to another, as in 
 the case of a life annuity, the act appears inapplicable ; 
 
 v>-^ " ' "£!< and the right to an apportioned part should therefore, 
 I- if desfred, be expressly conferred (^). The act extends 
 
 JT-;^, /a^. tfjy.ojAj to instruments executed, and wills coming into 
 
 operation, after the passing of the act, wliich took place 
 
 on the 16th June, 1834 (i/) ; and its proA^sions do not 
 
 apply to any case in which it is expressly stipulated that 
 
 no apportionment shall take place, or to annual sums 
 
 made payable in policies of assurance of any descrip- 
 
 Previous law. tion(2'). Previously to this act no apportionment was 
 
 made of annuities, or of the di^ddends of stock settled 
 
 in trust for one person for life, with remainder to another ; 
 
 but the remainderman Avas entitled to the ^v^hole of the 
 
 annuity or dividend which fell due next after the decease 
 
 of the person entitled for life(«\ But in a case where 
 
 the tenant for life of stock died on the day on which a 
 
 half-year's dividend became due, it was held that it 
 
 Atinnity given belonged to his personal estate (i). If an annrdty were 
 for mainte- 
 nance, (w) Bro7im V. Amijot, 3 Hare, (r) Stat. 4 & 5 Will. IV. c. 22, 
 
 173, 183 ; Beer v. Beer, C. P. 16 s. 3. 
 
 Jul-. 223, 225 ; 12 C. B. 60 ; Re (a) Pearly v. Smith, 3 Atk. 
 
 Clulorv, 3 Kay & J. 689. 260 ; Sherrard v. Sherrard, 3 
 
 (,r) But see Carter v. Taggart, Atk. 502 ; Warden v. Ashburner, 
 
 16 Sim. 447; Trimmer\. Banhij, 2 De Gex & Smale, 366; Tlie 
 
 V. C. K., 23 L. J., Chan. 979. Queen v. The Lords of the Trea- 
 
 iy) Miehell v. ATichell, i Beav. siiry, 16 Q. B. 357. 
 
 549; Knight v. Boiighton, 12 (J) Patonv. Sheppard, \0 Sim. 
 
 Beav. 312 ; Wardroper v. Cut- 186. 
 
 field, V. C. K, 10 Jur., N. S. 194.
 
 OF SETTLEMENTS OF PERSONAL PEOPEETY. ' 265 
 
 given for tlie maintenance of an infant (c), or of a mar- 
 ried woman living separate from her husband (c?), the 
 necessity of the case was considered a ground for pre- 
 suming that an apportionment was intended. The interest was 
 interest of money lent was also always apportioned ; for '^]'^^yf appor- 
 though the payment of such interest be made half- 
 yearly, yet it becomes due de die in diem, so long as the 
 principal remains unpaid (e). 
 
 An estate tail, such as that created by a gift of lands No estate tail 
 to a man and the heirs of his body(/), has nothing ^^" l^®^^^,*^"^^ 
 analogous to it in j)ersonal property. An estate tail 
 cannot be held in such property at law, neither does 
 equity admit of any similar interest. A gift of personal 
 property of any kind to A. and the heirs of his body 
 -^vill simply vest in him the property given ( y). And in 
 the construction of "\\alls, where many informal expres- 
 sions are allowed to vest an estate tail in lands, the 
 general rule is, that expressions, which if applied to real 
 estate would confer an estate tail, shall, when applied to 
 personal property, simply give the absolute interest (A). 
 The same effect will be produced by a gift of such pro- 
 perty to a man and his heirs. The words "heirs," and Word "heirs" 
 "heirs of his body," are quite inapplicable to personal pg'JgojjaTestlte. 
 
 estate ; the heir, as heir, has nothinor to do Avitli the i ^ , '■^^^'^ ^■ 
 
 personal property of his ancestor. Such property has»^ ^/^ '^>- ►^W^^ 
 nothing hereditary in its nature, but simply belongs to ^■•^^f ^f-z.t^J'. 
 its oAvner for the time being. Hence, a gift of personal A simple gift 
 property to A. simply, without more, is sufficient to ^"®'^^'^°*- 
 
 (c) Hay V. Palmer, 2 P. Wms. of Real Property, 28, 2nd ed. ; 30, 
 
 501 ; 1 Swanst. 349, note. 3rd and 4th eds. ; 33, 5th, 6th, 7th 
 
 id) Howell V. Hanforth, 2 W. and 8th eds. 
 
 Black. 1016. (ff) Feame, Cont. Rem. 461, 
 
 (e) Edwards v. Countess of 463 ; Doncastcr v. Doncasier, 3 
 
 Warwlcli, 2 P. Wms. 176 ; Ban- Kay 8i J. 26. 
 
 ner t. Lowe, 13 Ves. 135; Jte (h) 2 Jarm. Wills, ch. 44, p. 
 
 Rogers's Trusts, 1 D. & S. 339. 534, 3rd ed. 
 
 (/) See Principles of the Law
 
 2G6 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 vest in liini the absolute interest {i). Whilst, under the 
 very same words, he would acquire a Hfe interest only 
 in real estate {j), he will become absolutely entitled to 
 Example. personal property. Thus a gift of lands to A. for life, 
 
 and after his decease to B., gives to B. a mere life 
 interest in remainder expectant on the decease of A. (A); 
 unless indeed the gift be by will under the act for the 
 amendment of the laws with respect to wills (Z). But a 
 gift of personal property to A. for life, and after his 
 decease to B., gives to B. a vested equitable interest in 
 the corpus or body of the fund, to which he becomes 
 absohitely entitled, subject only to A.'s life interest ; 
 and the cuxumstance of B.'s dying in the lifetime of A. 
 would be immaterial {m). 
 
 Use of the 
 words " execu- 
 tors, adminis- 
 trators and 
 assigns." 
 
 It is true that in deeds and other legal instruments it 
 is usual to transfer personal estate absolutely, by the use 
 of the words " executors, administrators and assigns." 
 As real estate is conveyed to a man, his heirs and as- 
 signs {n), so pei-sonal property is assigned to him, his 
 executors, administrators and assigns. The executor or 
 administrator is, as we shall see, the person who becomes 
 legally entitled to a man's personal estate after his de- 
 cease ; in the same manner that a man's heir or assign 
 becomes entitled to liis real property. But the analogy 
 extends no fiirther. There is no necessity for the use of 
 these terms (o) as there is for the employment of the 
 
 (i) Byng v. Lord Strafford, 5 
 Beav. 558. 
 
 {j) Principles of the Law of 
 Real Property, 17, 114, 2nd ed.; 
 18, 119, 3rd and 4th eds.; 18, 125, 
 6th ed.; 18, 131, 6th ed. ; 18, 134, 
 7th ed.; 19, 140, 8th ed. 
 
 (Jt) Goodtitle d. B'lcliards v. 
 Edmonds, 7 T. Eep. 635. 
 
 (Z) Stat. 7 Will. IV. & 1 Vict, 
 c. 26, s. 28. 
 
 (w) Benyon v. Maddison, 2 
 Bro. C. C. 75. 
 
 (ft) Principles of the Law of 
 Real Property, 115, 2nd ed. ; 120, 
 3rd and 4th eds.; 126, 5th ed.; 
 132, 6th ed.; 135, 7th ed.; 141, 
 8th ed. 
 
 (o) Elliott V. Barenport, 1 P. 
 Wms. 84. See Earl of Lonsdale 
 V. Countess of Berchtoldt, 1 Kay, 
 646.
 
 or SETTLEMENTS OF PERSONiVL, PROPEETY. 267 
 
 word " lieirs." These terms, however, are constantly 
 employed in conveyancing as words of limitation of an 
 absolute interest ; and a rule has sprmig up with respect 
 to their construction similar to the rule in Shelley's case. Rule in 
 by which the word " heirs," when following a life estate ^^^^^^y'^ c^^°- 
 given to the ancestor, is merely a word of limitation, 
 giving to such ancestor an estate in fee (/*). Thus, if 
 money or stock be settled in trust for A. for life, and 
 after his decease in trust for his executors, adminis- 
 trators and assigns, A. Avill be simply entitled abso- 
 lutely {q') ; in the same manner as a gift of lands to A. 
 for his life, with remainder to his heirs and assigns, 
 gives him an estate in fee simple. But as the rule, so 
 far as it applies to personal property, is not founded on 
 the same strict principle as the rule in Shelley's case, a 
 gift of such property to the executors or administrators 
 (not adding assigns) of a person who has taken a pre- 
 vious life interest is sometimes construed as giving him 
 no ftirther interest in such property (r); Avliilst, under 
 the same circumstances, the Avord " heirs " in a gift of 
 real estate would have given him the fee simple. 
 
 As no estates can subsist in personal property, it Rules as to 
 
 follows that the rules, on which contingent remainders mainders do 
 
 in freehold lands depend for their existence, have never °o* ^pply to 
 ,, ,.. . ,. .. ^ contingent dis- 
 
 had any application to contingent dispositions ot per- positions of 
 
 sonal property. Such dispositions partake rather of the P'^^'^°^''*'^ P"^"^" 
 
 indestructible natme of executory devises and shifting 
 
 (^j) See the Principles of the Jlon'es, 4 Hare, 599. 
 
 Law of Real Property, 207, 2ud (r) Wallis v. Taylor, 8 Sim. 
 
 ed.; 214, 3rd ed.; 215, 4th ed.; 241 ; see 1 Beav. 52; Daniel v. 
 
 224, 5th ed.; 234, 6th ed.; 240, Dudley, 1 Phi. 1 ; Attorney- 
 
 7th ed. ; 250, 8th ed. General v. MalUn, 2 Phi. 64 ; 
 
 {c[) Co. Litt. 54 b ; Hames v. Machenzie t. Mackenzie, 3 Mac. 
 
 Names, 2 Keen, 646 ; Grafftey v. & Gord. 559. See also Alger v. 
 
 Ilumpaye, 1 Beav. 46 ; Howell y. Parrott, V. C. W., Law Rep., 3 
 
 Gayler, 5 Beav. 157 ; Meryon v. Eq. 328. 
 
 Collett, 8 Beav. 386 ; Morris v.
 
 268 
 
 OP PERSONAL ESTATE GENERALLY. 
 
 Limit to 
 future dispo- 
 sitions. 
 
 Restraint on 
 accnmu'ation. 
 
 uses. Thus a gift of lands to A. for his life, and after 
 liis decease to sucli son of A. as sliall first attain tlie 
 age of twenty-one years, creates a contingent remainder, 
 which will fail in the event of no son of A. ha^ang at- 
 tained the prescribed age at the time of his decease («). 
 The reason of this failure depends on the ancient rule, 
 that there must always be some defined owner of the 
 feudal possession ; and, consequently, between the time 
 of the death of A. and the time of his son's attaining 
 the age of twenty-one years, some owner of the freehold 
 ought to have been appointed, in Avhom the feudal pos- 
 session might continue (f). Personal property, however, 
 has evidently notliing to do with these feudal rules 
 relating to possession. If, therefore, a gift be made of 
 personal property to trustees, in trust for A. for his life, 
 and after his decease, in trust for such son of A. as shall 
 fii'st attain the age of twenty-one years ; or if a term of 
 years be bequeathed to A. for his life, and after his 
 decease to such son of A. as shall first attain the age of 
 twenty-one years ; it will be immaterial whether or not 
 the son attain the age of twenty-one years in the hfetime 
 of his father. On his attaining that age, he ^^ill become 
 entitled quite independently of his father's interest. His 
 ownership will spring up, as it were, on the given event 
 of his attaining the age. But as the indestructible nature 
 of these fixture dispositions of personal estate might lead 
 to trusts of indefinite duration, the rule of perpetuities, 
 which confines executory interests within a live or lives 
 in beinsf, and twentv-one vears afterwards, svith a fiu-ther 
 allowance for the time of gestation, should it exist (w), 
 appfies equally to personal as to real estate. And the 
 
 (s) Festing v. Allen, 12 Mcc. 
 &Wels. 279; 5Hare,573; Holmes 
 T. Prescott, V. C. W., 10 Jur., N. 
 S. 507 ; 12 W. R. 636. 
 
 (t) Principles of the Law of 
 Real Property, 209, 1st ed. ; 217, 
 2nd ed. ; 224, 3rd and 4th eds.; 
 
 233, 5th ed. ; 246, 6th ed. ; 250, 
 7th ed. ; 259, 8th ed. 
 
 (m) Principles of the Law of 
 Real Property, 242, 1st ed.; 251, 
 2nd ed. ; 259, 3rd ed. ; 262, 4th 
 ed. ; 272, 5th ed. ; 286, 6th ed. ; 
 294, 7th ed. ; 305, 8th ed.
 
 OF SETTLEMENTS OF PERSONAL PROrERTY. 269 
 
 further restriction on tlie accumulation of income im- 
 posed by the Thellusson Act {v), appKes to trusts for the 
 accumulation of the income of personal estate as well as 
 real. 
 
 Equitable interests in personal property of a future Powers. 
 kind may be created through the instrumentality of 
 powers, in a similar manner, and to the same extent, as 
 futm-e estates in land {x). Thus stock in the flinds may 
 be vested in trustees upon such trusts as B. shall by any 
 deed or by his Avill appoint, and in default of and until 
 any such appointment, in trust for C, or upon any other 
 trusts. Here C. will have a vested interest in the stock, 
 subject to be divested or destroyed by B.'s exercising his 
 power of appointment ; andB., though not owner of the 
 stock, has power to dispose of it by deed or will, and 
 may if he please appoint to himself; in which case the 
 trustees will be bound to transfer it to him. If the 
 power should not be exercised by B., C. will then be 
 entitled absolutely ; and will not, as was formerly the. 
 case Avith respect to landed property, be subject to 
 judgment debts incurred by B. (y), or to any other of 
 his debts. But if B^should exercise his power by deedjf power is ex- V* 
 wit hout valuable " consTderation, or by will, in favour of ^g^ualj^e^fl^n "* 
 a third person, the stock so ap]:)ointed would be con- sideration, tlie 
 sidered in equity as part of the assets of B. the ap- pomteVis^sTib- 
 pointor, and would be subject to the demands of his ject to debts of 
 
 «.o«»~».»«'^^----*-^««iL .«~=— -,i~*» . apijointor. 
 
 preierence to the claim oi the appomtee (z). 
 
 (i') Stat. 39 & 40 Geo. III. c. 6th ed. ; 272, 7th ed. ; 283, 8th 
 
 98 ; Principles of the Law of Real ed. 
 
 Property, 243, 1st ed. ; 253, 2ud (y) Ibid. 
 
 ed. ; 260, 3rd ed. ; 263, 4th ed. ; (z) Lassells t. Cornwallis, 2 
 
 274, 5th ed. ; 288, 6th ed. ; 295, Vern. 465 ; BaUiton v. Ward, 2 
 
 7th ed. ; 307, 8th ed. Atk. 172. The doctrine applies 
 
 (a;) See Principles of the Law also to appointments of real estate, 
 
 of Real Property, 231 et seq. 1st See Fleming t. Buchanan, 3 De 
 
 ed. ; 236, 2nd ed. ; 243, 3rd ed. ; Gex, M. & G. 976. 
 245, 4th ed. ; 2.->5, oth ed. ; 266,
 
 270 OF PEKSONAL ESTATE GENERALLY. 
 
 Bankruptcy. In case of bankruptcy, it was pro^dded by the former 
 
 acts (a) that all powers vested in the bankrupt, which 
 
 he might legally execute for his own benefit (except 
 
 ** 'a'^ ^ C ^o ^^ rifflit of nomination to any vacant ecclesiastical 
 
 * ' " y^ benefice), might be executed by the assignees for the 
 
 : ' ^"^^T' benefit of the creditors in the same manner as the bank- 
 
 i> ' t* f 'iQ ' ^"^P* might have executed the same. And by the 
 
 >^ . ^ ^ />|Banki-uptcy Act, 1869, such powers may now be exer- 
 
 .■-"' T ., j ms-~^ »^-cised by the trustee for the creditors (J). 
 
 Rules respect- The rules respecting the necessity of a compliance 
 over^r^eal e^state ^"^^^ ^^® terms and formalities of the power, whenever 
 apply to it is exercised otherwise than by will (c), and the rehef 
 
 persorial*pro- afforded by the Coml of Chancery on the defective 
 perty. exercise of a power {d), apply as well to personal as to 
 
 real property. Powers over personal estate may also 
 be exercised by women, without their husbands' consent, 
 and also in favom' of their husbands, in the same man- 
 ner as powers over land (e) ; and the provision of the 
 recent Wills Act, which requires wills made in exercise 
 of powers to be executed and attested Hke all other 
 wills (/), applies equally to powers over personal estate. 
 _^ I A general bequest of personal estate aatU also now 
 
 ^^^^X!X*^n include any personal estate wliich the testator may have 
 only a power to appoint as he may think fit, in the same 
 
 ./^.Z ., , ■ --^-M- 
 
 ^^,<fJL^.Xjij 
 
 (a) Stat. 12 & 13 Vict. c. 106, 12. 
 
 s. 147, repealing stat. G Geo. IV. {d) Ibid. 239, 2nd ed. ; 246, 3rd 
 
 c. 16, s. 77, to the same effect, and ed. ; 248, 4th ed. ; 258, 5th ed. ; 
 
 now repealed by stat. 32 & 33 269, 6th ed. ; 276, 7th ed. ; 287, 
 
 Vict. c. 83. 8th ed. 
 
 (&) Stat. 32 & 33 Vict. c. 71, (e) Ibid. 241, 2nded. ; 248, 3rd 
 
 ss. 15, par. (4); 25, par. (5). ed. ; 250, 4th ed. ; 260, 5th ed. ; 
 
 (c) See Principles of the Law 271, 6th ed. ; 278, 7th ed. ; 289, 
 
 of Real Property, 238, 2nd ed. ; 8th ed. 
 
 245, 3rd ed. ; 247, 4th ed. ; 257, (/) Ibid. 240, 2nd ed. ; 247, 
 
 5th ed. ; 268, 6th ed; 274, 7th 3rd ed. ; 249, 4th ed. ; 259, 5th 
 
 cd. ; 285, 8th ed. See now as to ed. ; 271, 6th ed. ; 277, 7th ed. ; 
 
 deeds, stat. 22 & 23 Vict. c. 35, s. 288, 8th ed.
 
 OF SETTLEMENTS OE PERSONAL PROPERTY. 271 
 
 manner as a general devise of real estate will comprise 
 real estate subject to any such j^ower^^^)^^^;^^ ^ 
 
 A frequent instance of the empioyrrieht of a power Appointment 
 over personalty occurs in the case of children's portions, portions?^ ^ 
 Avhich are usually settled on all the children equally, 
 subject to a power given to the parents to appoint the 
 shares in a different manner. When such a power is 
 exercised, the shares previously vested in the children 
 are divested from them, and new shares are vested in 
 them by the operation of the power. Formerly, if such 
 a power were so worded as not to authorize an exclusive 
 appointment to some or one of the children, it was held 
 by the Court of Chancery, as a rule of equity, that each 
 child ought to have a substantial share ; and an appoint- 
 ment to any child of a very small share was called an 
 illusory appointment, and was held void (/t). But this Uluscry ap- 
 doctrine having given rise to difficulties and family dis- ^^^^ ^^" ^' 
 putes, from the uncertainty of the qiTCstion what Avas 
 too small or what a sufficient share, the meddlesome The doctrine 
 doctrine of equity on this point was a few years ago abolished.^^°"^ 
 abolished by act of parliament {i) ; and now the appoint- 
 ment of any share, however small, cannot be set aside 
 on the ground of its being illusory. The act extends, 
 as did the doctrine, to real estate as well as personal ; 
 but landed property is, from its nature, seldom cut up 
 into little portions. 
 
 Although no appointment is now void for being illu- Exclusive ap- 
 sory, yet where an exclusive appointment is not autho- ^!ben"vdd'. 
 rized, any appointment, by which any object of the 
 power would be entirely excluded, is still void. Thus, if 
 
 (^r) See Principles of the Law (Ji) 1 Sugd. Pow. 568 et seq. ; 
 
 of Eeal Property, 242, 2nd ed.; 449, 8th ed. ; Chance on Powers, 
 
 249, 3rd ed. ; 251, 4th ed. ; 261, 396 et seq. 
 
 5th ed. ; 273, 6th ed. ; 279, 7th (i) Stat. 11 Geo. IV. & 1 Will, 
 
 ed. ; 291, 8th ed. IV. c. 46, 16th July, 1830,
 
 972 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 1,000/. be given to A., B. and C. in sucli shares as their 
 father shall appoint, and in default of appointment to 
 them equally, an appointment of 900/. to A. would now 
 be good, as 100/. would remain to be equally di^aded 
 z_ ybetween the three (A), of which B. and C. woidd get 
 
 ^ZX ^^ each one-third (/). But a subsequent appointment of 
 
 i, . ^> ^ - I . . „i the remaining 100/. to B. would be void, as altogether 
 
 J excluding C, who is equally an object of the power (m). 
 
 ^^ ' ^ ' ^^^ It is customary, however, in modern settlements to give 
 to parents a power of appointment in favour of any one 
 or more of the children exclusively of the others. And 
 in order that those to whom appointments have been 
 made should not obtain more than may have been in- 
 tended for them, it is generally provided that no child 
 taking any share of the fund under any appointment 
 shall be entitled to any share in the part unappointed 
 without bringing his or her share into hotchpot, and 
 accounting for the same accordingly. Under such a 
 provision. A., in the instance above given, would not be 
 entitled to any share in the 100/. unappointed, without 
 also agreeing to a hke di"sasion of his 900/. amongst him- 
 self and the others. The clause of hotchpot operates 
 favourably to the representatives of those children who 
 may happen to die before any appointment shall have 
 been made to them. For when a power is given to 
 appoint amongst children, no appointment can be made 
 cutors or admi- to the executors or administrators of those who may 
 
 nistrators of tt/\ i i -i • • 
 
 deceased ob- have died(??); so that such executors or administrators 
 J^'^*^- cannot possibly take more than the aliquot part given 
 
 to the deceased child in default of any appointment ; 
 
 whilst they may be partially or totally excluded even 
 
 Hotchpot. 
 
 No appoint- 
 ment can be 
 made to exe- 
 
 (h) Toting v. Wateiyark, 13 
 Sim. 202. 
 
 (Z) Wilson V. Piggott, 2 Ves. 
 jun. 351 ; Wonihwell v. Hanrott, 
 14:Beav. 143. ^e.& Foster y. Caut- 
 Iry, 6 De Gex, M. & G. 55. 
 
 (m) 2 Ves. jun. 35.5. 
 
 («) Boyle V. The Bislwj) of 
 Peterhorough, 1 Ves. jun. 299 ; 
 EickettsY, Loftus, 4 You. & CoU. 
 519.
 
 OF SETTLEMENTS OF PERSONAL PROPERTY. 2. i , 
 
 from that by a partial or complete exercise of the power 
 of appointment in favour of the surviving children, or 
 even of a single survivor. When the appointment is 
 partial only, the executors or administrators of a de- 
 ceased child will, under the hotchpot clause, divide the 
 fund unappointed Avith the other children to whom no 
 appointment may have been made ; whereas, without 
 such a clause, the children to Avhom appointments may 
 have been made Avould be equally entitled to participate 
 in the part unappointed (o). 
 
 When a poAver is given to appoint property amongst Appointment 
 a particular class, no portion of the fund can be ap- class." 
 pointed in faA^our of any person Avho is not a member 
 of that class ; and any appointment to such person Avill 
 accordingly be void. Thus, if the power be to appoint 
 the property to all or any of the children of the ap- Children, 
 pointer in such manner as he may think fit, no interest 
 in the property can be appointed to any grandchild 
 of the appointor ; for a grandchild is not an object of 
 the power (7^). So if the poAver be to appoint amongst Nephews. 
 nephcAvs or grandnephcAvs, those only can take any 
 shares Avho ansAver that description (^q). Again, if the Younger 
 power be to appoint portions amongst younger children, 
 nothing can be taken by a younger son avIio afterAvards 
 becomes the eldest by the decease of his elder brother (r) ; 
 although if he should have actually received any share 
 in the money AA^hilst a younger son, he Avill not be obliged 
 to reflind it on becoming the eldest (5). The word 
 
 (0) Wilson V. Piggott, 2 Yes. 514; Waring v. Zee, 8 Beav. 247. 
 
 jun. 351 ; Wombrvell \. Hanrott, (?•) Chadmich v. Doleman, 
 
 14 Beav. 143 ; Walmsley v. Vern. 528 ; Lord Teynham v. 
 
 Ymiglian, 1 De Gex & Jones, Wehh, 2 Ves. sen. 198 ; Gray y. 
 
 114. Earl of Limerick, 2 De Gex & 
 
 {p) Alexander v. Alexander, Smale, 370. See Sandeman v. 
 
 2 Ves. sen. 640 ; Bristow v. Mackenzie, 1 John. & H. 613. 
 
 Warde, 2 Ves. jun. 336. (.s) 2 Sugd. Pow. 293 ; 680» 
 
 (§') Fnlltner v. Biitlrr, Amb. 8th cd. 
 
 AV.P.P. T
 
 274 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 Child en 
 
 " younger," however, is not, in parental provisions (t), 
 taken literally, but as meaning any child who may not 
 be entitled to the family estate. Therefore a daughter, 
 who may be the eldest child, would be considered as a 
 pro])er object of a power to appoint amongst the younger 
 children, whilst her younger brother, being the eldest 
 son entitled, to the family estate, woidd not be allowed 
 to participate (m). And in the same manner a second 
 son becoming the eldest, but not obtaining the family 
 estate, would be allowed a share (u). A power to 
 appoint amongst children living at their father's decease 
 
 ventre sa mere, includes a child en ventre sa mere {w\ 
 
 "When an ap- 
 pointment to 
 the issue of a 
 child is good. 
 
 In some cases where the power only authorizes an 
 appointment amongst children, an appointment in favour 
 of the issue of a child may be sustained as being, in 
 effect, first an appointment to the child, and then an as- 
 signment by such child in favour of his issue {x). But 
 this of course can only be done when the child is of age, 
 and is a party to and executes the deed by which the 
 appointment is made. And the more regular plan in 
 such cases is, for the father first to make the appoint- 
 ment in favom- of the child, and then for the child to 
 make an assignment of the fund appointed to trustees 
 in trust for his children in the manner intended. 
 
 Appointment An appointment by a father in favoiu^ of his child, in 
 
 by a father exercise of a power for that purpose, ouffht to be made 
 
 must not be ^ ... 
 
 for his own for the benefit of the child who is the object of the pro- 
 benefit. 
 
 (J:) Hallr. Hewer, Amb. 203; 
 Lyddon v. Ellison, 19 Beav. 565. 
 
 (w) Pierson v. Garnet, 2 Bro. 
 C. C. 38 ; Henenge v. Hnnloltc, 2 
 Atk. 456 ; Beale v. Beale, 1 P- 
 Wms. 24L 
 
 (?•) Spencer v. Spencer, 8 Sim. 
 87 ; Macouhrey v. Jones, 2 Kay 
 & J. CSl ; Siny v. Leslie, 2 Hem. 
 
 & Mil. 68. 
 
 (?v) Beale v. Beale, 1 P. Wms, 
 244. 
 
 (x) Boutledgey. Dorril, 2 Ves. 
 jun. 357 ; West v. Berney, 1 
 Knss. & My. 431, 439 ; Goldsmid 
 V. Goldsmid, 2 Hare, 187 ; Lim- 
 iard v. Grate, 1 Mylne & Keen, 
 1.
 
 OF SETTLEMENTS OF PERSONAL PROPERTY. 275 
 
 vision, and not indirectly for the benefit of the father 
 Avho makes the appointment or of any other person. 
 Accordingly, any exercise of the power under a bargain 
 for, or even with a view to the benefit of the appointor, 
 or of any other person than one of the objects of the 
 power, "wdll be considered as, in technical phrase, a fraud Fraud on the 
 on the power and will be void (y). But when there is P°^^^- 
 no e\ddence that the appointment is made under a 
 bargain for the benefit of the father, although there 
 may be strong suspicion that such is the case, the ap- 
 pointment cannot be set aside (2"). Powers of appoint- 
 ment amongst children usually enable the parent to fix 
 the age or time at which the fund appointed shall vest 
 in any child. But, on the principle just stated, a father 
 will not be allowed to make an immediate appointment 
 to an infant child, for the sake of becoming himself 
 entitled to the fimd appointed, as the child's personal 
 representative in the event of its decease (a). An ap- 
 pointment to an infant is not, however, necessarily void 
 on accoimt of the circumstance that the father, who 
 has made the appointment, will become entitled to the 
 property appointed in the event of the child's de- 
 cease (b). 
 
 In the exercise of powers of appointment amongst Perpetuity to 
 
 children, care should be taken not to postpone the vest- },^ avoided m 
 ' _ . . ^ ^ the exercise 01 
 
 iug of their shares to a period which may exceed the powers. 
 
 (y) Danheney v. Cocltbiirn, 1 Ves. 467 ; Hamilton v. Kirrvan, 
 
 Meriv. 626 ; Palmer t. Wheeler, 2 Jones & Lat. 393 ; Camplell v. 
 
 2 Ball & Beatty, 18 ; Jachson v. Home, 1 You. & Coll. N. C. 604. 
 
 Jachson, 1 Dru. 91 ; Thompson («) Cunynghame v. Thurlow, 
 
 V. Simpson, 2 Jones & Lat. 110 ; 1 Russ. & M. 436 ; Lord Sand- 
 
 Tophamy. Dulie of Portland, 1 wich's case, cited 11 Ves. 479 ; 
 
 De Gex, Jones & Smith, 517; Gee v. Gurney, 2 Coll. 486. 
 
 Pryor v. Pryor, 2 De Gex, J. & (&) Butcher v. Jackson, 14 
 
 S. 205. Sim. 444 ; Fearon v. Dcshrisay, 
 
 (z) M'Qtieen v. Farquhar, 11 14 Beav. G35. 
 
 T 2
 
 27G. OF PERSONAL ESTATE GENERALLY. 
 
 limits alloAved by the law of perpetuity ( c). ^Yhen the 
 power of appointment is a general power, enabling the 
 appointor to make a disposition in favour of any object 
 he may please, the property is e^-idently not tied up so 
 long as such a power exists over it; and neither the 
 reason nor the mle which forbids a peqietuity has any 
 application till some settlement is made in exercise of 
 such a power. In such a case, therefore, the limits of per- 
 petuity commence from the time of the appointment (c?). 
 But where the power of appointment is to be exercised 
 only in favour of a particular class of objects, the pro- 
 perty subject to the power is evidently already tied up 
 in favour of that class. The hmits of perpetuity are 
 therefore in this case to be reckoned, not fi-om the time 
 of the exercise of the power, but fi'om the date of its 
 creation. The interests given by the power must, for 
 this pm-pose, be regarded as if they had been inserted in 
 the settlement by which the power was created; and if 
 such interests would have been too remote, if inserted 
 in the original settlement, they will be too remote when 
 given in exercise of the power (e). Thus a person having 
 a general power of appointment by -will over a frmd, may 
 by his will appoint a share of it in favour of any unborn 
 child of his own, to be vested in such cluld on his attain- 
 ing the age of twenty-tlu-ee years. The limit of per- 
 petuities is reckoned from the time of the appointment, 
 which in this case is the death of the appointor, when his 
 will begins to take effect. The child must necessarily 
 then be born, or in ventre sa mere, and the child's life is 
 accordingly the life then in being withia which the share 
 must necessarily vest. But if by a marriage settlement 
 a ftmd be settled in trust for the father for his hfe, and 
 
 (c) See ante, \>. 2G8. 2 ; 1 Sugd. Pow. 498 ; 396, 8th 
 
 {d) 1 Sugd. Pow. 249, 49.5 ; ed. ; Routledge v. Lorril, 2 Ves. 
 
 395, 8th ed. jnn. 357. 
 (e) Co. Litt. 271 b, n. (1), vii.
 
 OF SETTLEMENTS OF PERSONAL PROPEKTY. 277 
 
 after his decease in trust for the children, in such shares 
 
 as he shall appoint bj his will, he cannot make an ap- 
 
 pomtment in favour of any unborn child, to be vested on 
 
 his attaining the age of twenty-three years. For in this "^ '- '■r W c '«* , 
 
 case the limit of perpetuities counts from the date of the " *"•''' ''"^ »4i 
 
 settlement, when the property was first tied up for the -'^ ^ "*' 
 
 benefit of the children ; and this limit would be exceeded ( \ ■ d. •— ' c 7 /• ' 
 if the child should not attain the given age within twenty- ^,<f^ \ 
 
 t J 
 
 one years after the decease of the father, who Avas the „ ' »*-, 
 
 life in being at the date of the settlement. And the /T \^ 
 
 rule is, that every limitation which may exceed in '^"^?-ji " ''^"Sni.'^ 
 
 tion a life or lives in being, and twenty-one years after- '^ ^^*^-^ ^ 
 
 wards (alloAving for the period of actual gestation), is JfrP? /^ *£*. fl^-f 
 
 void as tending to a perpetuity {/). 
 
 When personal property is directed to be paid to any The courts 
 
 persons at a future time, the leaning of the courts is ?*^^" ^° vested 
 ^ . . ° , interests. 
 
 always m favoiu- of vested interests ; that is to say, the 
 
 courts lean to that construction Avhicli will give to the 
 
 parties a present assignable and transmissible right to 
 
 that which is not payable till a fiiture time. Thus if a 
 
 legacy be given to a person to be payable when he attains 
 
 the age of twenty-one years, the legacy is cansidered to 
 
 be immediately vested, and will accordingly be payable 
 
 to the administrator of the legatee in case he should die 
 
 under age (cj). So if personal estate be settled in trust 
 
 for A. for life, and after his decease for all his children 
 
 in equal shares, each of his children will be entitled to a 
 
 share, whether such child surA-ive his parent or not, and 
 
 although such child should die in infancy (A). If, how- Vesting of 
 
 ever, the property shoidd consist of money charged on charged on 
 
 land. 
 
 (/) See Principles of the Law Litt. 237 a, note (1). 
 of Real Property, 242, 1st ed. ; (h) Skey v. Barnes, 3 Mer. 
 
 251, 2nd ed. ; 259, 3rd ed. ; 273, 335 ; Templeton v. Warrington, 
 5th ed. ; 287, 6th ed. ; 294, 7th 13 Sim. 267. See Stvallow v. 
 ed. ; 305, 8th ed. Binns, 1 Kay & John. 417. 
 
 {n) 2 Black. Comm. 513; Co.
 
 *4 
 
 278 OF PERSONAL ESTATE GENERALLY. 
 
 land or other real estate, such as the portions of younger 
 children when the family estate is entailed on the eldest 
 son, the rvile is different; and if any of the children 
 should die before the time Avhen his or her portion be- 
 comes payable, it will, in the absence of special provi- 
 sion to the contrary, sink into the land for the benefit 
 of the estate (^). 
 
 Vesting of in- In the settlement of personal property upon children 
 
 terests given there are two plans, either of which may be adopted 
 to children. ^ . ^ , . . rm 
 
 with respect to the vestmg of the interests given, ilie 
 
 ^ ^ ^/ one plan is, to vest the interests of the children in them 
 ■ — rT^~2] k^ immediately as they come into being, divesting from 
 — ^ ^^^ of them proportionate shares as others are born, 
 
 '^^'ff- and also divesting the shares altogether in favour of the 
 others, in the event of the decease of any son under age, 
 or of any daughter under age and without having been 
 married. The other plan is, to vest the interests given 
 only in those who, being sons, attain the age of twenty- 
 one years, or, being daughters, attain that age or marry 
 under it. So far as the corpus of the fund is concerned, 
 the result of each of these plans is the same, the property 
 being ultimately divided only amongst those children 
 who, being sons, live to come of age, or, being daughters, 
 come of age or previously marry. But ^^A\}a. regard to 
 the income of the fimd the plans are different. In the 
 first case, the income belongs to the children whilst 
 under age ; but in the second no interest either in the 
 income or in the principal is given during minority, or, in 
 Maintenance ^^ case of daughters, until marriage under age. In the 
 and education, f^j-gt case, therefore, if the father be dead, the income 
 will be payable to the guardian of the children toward 
 their maintenance and education ; but in the second 
 case there will be no pro^^sion for these purposes in the 
 
 (/) Co. Litt. 237 a, n. (1). See Ecam v. Scott, 1 H. of L, Cases, 
 43, 57.
 
 OF SETTLEMENTS OF PERSONAL PROPERTY-. 279 
 
 absence of express directions. Such directions therefore 
 should in such case be always inserted, with a provision 
 for the accumulation of the surplus income by way of 
 increase of the principal. If however the whole pro- 
 perty is ultimately to go amongst the children (k), or if 
 the persons entitled, in the event of the children not 
 li\dng to attain vested interests, should agree (/), the 
 Court of Chancery will direct the income to be applied 
 for the children's maintenance in the absence of suffi- 
 cient pro\dsion for that purpose, and even in the face 
 of an express direction to accumulate the income (m). 
 And a recent act of parliament now provides that, New enact- 
 in all cases where any property is held by trustees in maintenance. 
 trust for an infant, either absolutely or contingently on 
 his attaining the age of twenty-one years, or on the 
 occurrence of any event previously to his attaining that 
 age, it shall be lawful for such trustees, at their sole 
 discretion, to pay to the guardians (if any) of such in- 
 fant, or otherwise to apply for or towards the mainte- 
 nance or education of such infant, the whole or any 
 part of the income to which such infant ma?/ he entitled 
 in respect of such property, whether there be any other 
 fond applicable to the same purpose, or any other person 
 bound by law to provide for such maintenance or educa- 
 tion, or not; and such trustees shall accumulate all the 
 residue of such income by way of compound interest, 
 by investing the same and the resulting income thereof 
 from time to time in proper securities, for the benefit of 
 the person who shall ultimately become entitled to the 
 jjroperty from w^hich such accumulations shall have 
 arisen : pro\dded always, that it shall be lawful for such 
 trustees at any time, if it shall appear to them expe- 
 dient, to ap])ly the whole or any part of such accumu- 
 
 {Ti) Ualey v. Bannister, 4 430; Cannings \. Flower,! 't^'im. 
 
 Mad. 275 ; Errat v. Barlow, 14 523. 
 
 Ves. 202, (?m) Gi'ecnn-ellw Grccnn-ell,o 
 
 (J) Turner v. Turner, 4 Sim. Ves. 194.
 
 280 
 
 OF PERSONAL ESTATE GENEE.VLLY. 
 
 lations as if the same were part of the income arising 
 in the then ciuTent year (w). This enactment apphes 
 only to deeds executed, and ^v\l\s executed or confirmed 
 or revived by codicil executed after the passing of the 
 act, Avhich took place on the 28th of August, 1860 (o). 
 The act, it will be observed, ajjplies only to income to 
 which the infant may be entitled ; so that if the infant 
 should not be entitled to the income irrespectively of 
 the act, it would scarcely be safe for the trustees to 
 apply it for the infant's maintenance without express 
 authority. 
 
 Maintenance 
 of children in 
 their father's 
 lifetime. 
 
 In marriage settlements a life interest is usually and 
 properly given to the father and mother, so that no pro- 
 vision is required for the maintenance of the children 
 until after the decease of the survivor. And Avhere life 
 interests are not given to the parents, but provision is 
 made for the maintenance of the childi'cn during the 
 father's lifetime out of the settled ftmd, such provision 
 is considered as primarily applicable for the maintenance 
 of the children accordingly {p). But the general r ule is, 
 that eveiy father is boun d to maintain his chil dren, if of 
 ability so to do (§'); and a pro^dsion contained in a gift 
 to an infant child, for his main tenance and edu cation, 
 will not be apphed f or that purpose during his fat her's 
 lifetime, if the father is able to maintain him 
 
 m a 
 
 manner suitable t(^ his condition^gd prospects (r). 
 When, therefore, it is intended that the incoi^e^f'pro- 
 perty given to children should be applied to their 
 maintenance during their father's lifetime, without 
 
 (w) Stat. 23 & 2i Vict. c. 145, See Thomjjson v. GrijHn, 1 Craig 
 
 s. 26. 
 
 (o) Sect. 34. 
 
 ( j?) Stochen v. StocJien, i Sim. 
 152 ; Meaclier v, Yovnge, 2 Myl. 
 & K. 490 ; Ransome v. Burgess, 
 y. C. K., Law Rep., 3 Efj. 773. 
 
 & Phillips, 317. 
 
 (q) Andrews v. Partington, 3 
 Bro. C. C. 60. 
 
 (?•) Maberley v. Turton, 14 
 Ves. 499 ; Jervoise v. Silk, G. 
 Cooper, 52 ; Ex parte Williams, 
 2 Colljer, 740.
 
 OF SETTLEIVIENTS OF PERSONAL PROPERTY. 281 
 
 reference to his ability to maintain them, the applica- «. f , -^ • >i ^ I n 
 tion of the income, Avithout reference to his abiUty,*fM^ i^\>*-^'%' , 
 should be expressly directed ; and, if such application '^ '' ^ ^ " ' *V 
 
 be so directed, the income must of course be applied 
 accordingly (s). When two funds are provided for the Whenlwo 
 maintenance of an infant, it is frequently difficult to vi^ded fw main- 
 decide to which fund recourse should be first had. The tenance^ 
 general rule is, that the interest of the infant determines ^ . 
 the order of application (t); but, in order to avoid (j^^Q^-p ^^Jj^^^ .^J^..^ 
 tions, it is very desirable, when two funds are pro\dded ^ 73^. dr. 2TV 
 for an infant's maintenance, to direct that one of themr**,;;-; — r, — - ^ 
 shall be in aid only of the provision afforded by the^^*^ ^ • ' ^ 
 other. But the act to which we have just referred 'isew enact- 
 
 ment. 
 
 "7- 
 
 gives, as we have seen {ii), a discretion to the tr^^stees^^^^ r x-j.j^ 
 
 to apply the income of the infant's property for his 
 maintenance, Avhether there be any other fund ap- 
 phcable to the same purpose, or any other person bound 
 by law to provide for such maintenance or education, 
 or not. 
 
 ■^ In settlements of personal property, it has long been Investment of 
 usual to pro^dde for the investment of the fund settled 
 in the parliamentary stocks or public funds of Great 
 Britain, or at interest upon government or real secu- 
 rities in England or Wales, but not in Ireland ; and at 
 the present day investments in railway debentures, pre- 
 ference shares and other secm-ities yielding a larger 
 income, are often authorized. Government securities. Government 
 as distinguished from stocks or flmds, seem to be 
 notliing else than Exchequer bills, in which trustees 
 appear to be justified, even without express authority, 
 in investing the property for any temporary piu-pose, as 
 during the necessary delay in completing a contem- 
 
 (s) See Wetherell v. Wilson, 1 Sim. & Stu. 165 ; Lygon v. Lord 
 
 Keen, 80 ; White v. Grane, 18 Coventry, 14 Sim. 41. 
 
 Beav. 571. {n) Ante, pp. 279, 280. 
 
 it") Foljamhe \. Willovgh'hy,2 
 
 secunties. 
 
 ^jP. ya ^. 
 
 -2- ^
 
 282 OF PERSOXAL ESTATE GEXEKALLY. 
 
 plated mortgage seciu-ity (u). But where a permanent 
 investment is intended, a trust to lay out money in 
 government securities will not authorize the purchase 
 
 Real security, of Exchequer bills (ic). Real security means the mort- 
 gage of real estate, namely, freehold or copyhold here- 
 ditaments of sufficient value {x). And if it be desired 
 that the trustees should have power to invest the trust 
 money on mortgage of leasehold estates, or in railway 
 debentures (y), or shares, or any other securities, or to 
 lend it to any person on his bond, express authority 
 
 The Improve- ought to be given to the trustees for the pui-pose. But 
 
 ment of Land ^y^g Improvement of Land Act, 1864, now provides. 
 Act, 1864. , ,, ■,. -,1 1 
 
 that all trustees, dn-ectors and other persons who may 
 
 be du-ected or authorized to invest any money on real 
 security shall (unless the contrary be provided by the 
 instrument directing or authorizing such investments) 
 have power at their discretion to invest money in the 
 charges authorized by that act, or on mortgages there- 
 of (z). And it is fiirther provided, that no charge on 
 land made by any absolute order of the Inclosure Com- 
 missioners by virtue of that act shall be deemed such 
 an incumbrance as shall preclude a trustee of money, 
 ■with poAver to invest the same in the pm-chase of land 
 or on mortgage, from investing it in a purchase or 
 upon a mortgage of the land so charged, unless the 
 terms of his trust or power expressly provide that the 
 land to be so purchased or taken in mortgage be not 
 Real securities subject to any prior charge (a). Investments in Ire- 
 
 in Ireland. 
 
 ((•) 3Iatthe7vs Y. Brise, 6 Beay. 15 Beav. 221. Turnpike bonds 
 
 239 244. are real securities for some pur- 
 
 (w) Mv j^arte Chaplin, 8 Yon. poses; Robinson v. Bobinson, 
 
 6 Coll. 397 ; as to the issue of Lords Justices, 1 De Gex, Mac.-& 
 Exchequer Bills, see stat. 24 Vict. Gord. 247, 262. 
 
 c. 5. (y) 3Iortimore\. Moj'timore,^: 
 
 (a;) See Stichiey v. Sen-ell, 1 De Gex & Jones, 472. 
 
 My. &Cr.8; Phillij>sony. Gattij, {z) Stat. 27 & 28 Vict. c. 114, 
 
 7 Hare, 516 ; Mant v. Leith, 15 s. 60. 
 
 Beav. 524; Drosier v. Brereton, {o j Sect. 61.
 
 OF SETTLEMENTS OF PERSONAL PEOrEllTY". 283 
 
 land Avere often expressly proliibited, on account of an 
 act of parliament, which empowered trustees, who were 
 authorized by their trust to lend money at interest on 
 real securities in England, Wales or Great Britain, to 
 lend the same at interest on real securities in Ireland (6). 
 But all loans of money on real secui-ities in Ireland 
 under the act, in which any minor or unborn child, or 
 2)erson of unsound mind, might be interested, were 
 required to be made by the direction and under the 
 authority of the Coiu^t of Chancery in England, to be 
 obtained in any cause or upon petition in a summary 
 Avay (c) ; and every such loan was to be made with the 
 consent of the person or persons, if any, whose consent 
 might be required as to the investment of such money 
 upon real securities in England, Wales or Great 
 Britain, testified in the manner required by the trust (d ). 
 And it was also provided that the act should not apply 
 to cases where there was an express restriction against 
 the investment of the trust money on securities in Ire- 
 land (e). A recent statvite now provides, that when New enact- 
 a trustee, executor or administrator shall not, by some 
 instruments creating his trust, be expressly forbidden 
 to invest any trust fund on real securities in any part 
 of the United Kingdom, or on the stock of the Bank 
 of England or Ireland, or on East India Stock, it shall 
 be lawful for such trustee, executor or administrator to 
 invest such trust fund on such securities or stock ; and 
 he shall not be liable on that account as for a breach 
 of trust, provided that such investments shall in other 
 respects be reasonable and proper {f ). This pro\dsion 
 
 (h) Stat. 4 & 5 Will. IV. c. 29. 510 ; Ux parte Lord William 
 
 Leaseholds for lives perpetually Pawlett, 1 Phill. 570 ; JVorris v. 
 
 renewable at a head rent form real Wright, 14 Beav. 291. 
 
 securities in Ireland ; Macleocl v. (<Z) Sect. 4. 
 
 Annesley, IG Beav. 600. {e) Sect. 5. 
 
 (c) Stat. 4 & 5 Will. IV. c. 21), (/) Stat. 22 & 23 Vict. c. 35, 
 
 s. 2 ; Ex parte French, 7 Sim. s. 32.
 
 284 
 
 OF PERSOA'AL ESTATE GENEKALLV. 
 
 lias been made retrospective by act of parliament (^). 
 
 Meaning of And by a subsequent act of parliament the term " East 
 
 Stock," India Stock," as above used, lias been explained to mean 
 
 as well East India Stock then existing as East India 
 
 Stock charged on the revenues of India and created 
 
 under any act or acts of parliament vphich subsequently 
 
 General orders received the royal assent (A). A fiirther enactment 
 
 for investment, empowers the making of general orders from time to 
 
 time as to the investment of cash under the control of 
 
 the Coiu't of Chancery, and for the conversion of any 
 
 3/. per Cent. Bank Annuities, standing in the name of 
 
 the accountant-general of the Court of Chancery, in 
 
 trust in any cause or matter, into any stocks, funds, 
 
 or securities, upon which by any such general order 
 
 cash under the control of the court may be invested («'). 
 
 And when any such general order shall have been made, 
 
 trustees, executors or administrators, having power to 
 
 invest their trust funds upon government securities, or 
 
 upon parliamentary stocks, funds or securities, or any 
 
 of them, may invest such trust flinds or any part thereof 
 
 in any of the stocks, funds or securities, in or upon 
 
 which, by such general order, cash under the control of 
 
 General order, the court may from time to time be invested (J). In 
 
 pm'suance of this enactment a general order has been 
 
 made dated the 1st of February, 1861, authorizing the 
 
 investment of ^cash under the control of the court in 
 
 Bank Stock, East India Stock, Exchequer Bills, and 
 
 21. \0s. per Cent. Annuities, and upon mortgage of 
 
 freehold and copyhold estates respectively in England 
 
 and Wales, as weU as in Consolidated 3/. per Cent. 
 
 
 •^^^ ^'^ lu. riiZ^ /Annuities, Reduced 3Z. per Cent. Annuities, and New 
 r.-Te. / £;^. /j^. 3/. per Cent. Annuities (^). 
 
 {g) Stat. 23 & 24 Vict. c. 38, s. 
 12 ; Cocltburn v. Peel, 3 De Gex, 
 Fisher & Jones, 170 ; Hume v. 
 Richardson, 4 De Gex, F. & J. 
 29. 
 
 (/t) Stat. 30 & 31 Vict. c. 132. 
 (i) Stat. 23 & 24 Vict. c. 38, s. 
 
 10. 
 
 O') Sect. 11. 
 
 (^) See Equita'^Ie Beversion- 
 
 " 1 
 
 ^. ^. ^/^^-^^ -7^ gy 
 
 Z' TP. 
 
 ^^ ' ^/''^'
 
 OF SETTLEMENTS OF PERSONAL PROrERTY. 285 
 
 A still later enactment of the same session authorizes Further enact- 
 
 trustees, having trust money in their hands which it is ' 
 
 their duty to invest at interest, at their discretion to 
 
 invest the same in any of the parliamentary stocks or 
 
 ]3ublic funds, or in government securities, and at their 
 
 discretion to call in any trust hinds invested in any 
 
 other securities, and to invest the same on any such 
 
 securities as aforesaid, and also from time to time at Power to vary 
 
 T . . . h investments. 
 
 their discretion to vary any such investments as atore- 
 
 said for others of the same nature ; provided that no 
 
 such original investment as aforesaid (except in the 
 
 £3 per Cent. Consohdated Bank Annuities), and no 
 
 such change of investment as aforesaid, shall be made 
 
 where there is a person under no disability entitled 
 
 in possession to receive the income of the trust fund 
 
 for his life or for a term of years determinable with his 
 
 life, or for any greater estate, without the consent in 
 
 writing of such person (/). This last enactment, how^- 
 
 ever, like the other provisions in the same act, extends 
 
 only to persons acting under a deed executed, or a will 
 
 executed or confirmed or revived by a codicil executed 
 
 after the 28th of August, 1860, the date of the act {m). 
 
 The consent of the persons for the time being entitled Consent to 
 to the income of the property is generally required, ^gsJlfen'ts/ 
 in settlements, to any change of investment which the 
 trustees may be authorized to make ; and this consent 
 is sometimes required to be in writing, and occasionally 
 to be testified by deed. Where consent is required, it 
 must be given pre^dously to or at the time of the change 
 of investment {n); for, as the consent is required as a 
 
 ary Interest Societij v. Fuller, (m) Sect. 34. 
 
 1 John. & Hem. 379 ; i?e Lang- (n) J5atemanv.I)arls,3MsiQ\d. 
 
 ford, 2 John. & Hem. 458 ; Be 98 ; Greenliam v. Gibheson, 10 
 
 Warde, 2 John. & Hem. 191. Bing. 363 ; Wiles v. Gresham, 2 
 
 (Z) Stat. 23 & 24 Vict. c. 145, Drewry, 258. 
 s. 25.
 
 2S6 OF PERSONAL ESTATE GENERALLY. 
 
 check upon the trustees, a subsequent consent, when 
 the mischief may be done, is evidentlj unavailing. The 
 person whose consent is required is not, however, the 
 sole judge of the propriety of any change of investment : 
 the ti-ustee, by virtue of his office, has also a discretion ; 
 and if he should consider the investment ineligible, he 
 may refuse to make it, although requested so to do by 
 the person whose consent ought to be obtained (o). But 
 the terms of the instrument may require the trustees 
 to change the investments at the request of any given 
 person ; and in this case they T^dll generally be bound 
 to act accordingly, unless the circumstances of the case 
 shovdd be such as were evidently not contemplated when 
 the settlement was made (/j). 
 
 Investment of In Settlements of personal property authority is some- 
 in^the pur^^^ times given to the trustees to make investments in the 
 chase of lands, purchase of landed estates. As land devolves in a dif- 
 ferent manner from personal property, it is obvious that 
 a simple change of the property from personalty to land 
 woidd in many cases mateiially disaiTange the destina- 
 tion of the property. Thus if a person entitled under 
 the settlement to a reversionary interest in the settled 
 fund should have died intestate, his administrator would 
 be entitled to such interest, so long as the j^roperty con- 
 tinued to be personal, but, on its being changed into 
 real estate, it Avould shift to his heir-at-law. In order 
 to obviate this inconvenience, it is so contrived that the 
 lands to be purchased should, fi-om the moment the pur- 
 chase is made, be considered as personal property. To 
 effect this object, the lands when purchased are directed 
 to be held by the trustees upon trust to sell them, with 
 the consent of the equitable tenants for life, du-ring their 
 
 (o) Lee V. Young, 2 You. & Coll. N. C. 617 ; Cadogan\.Earl 
 Coll. N. C. 532. of Essex, 2 Drewrv, 227. 
 
 (/)) Boss V. God sail, 1 Yon. &
 
 OF SETTLEMENTS OE PEESONAL PROPERTY. 287 
 
 lives, aud after their decease at the discretion of the 
 trustees (*7). This trust for sale converts the lands into 
 money in the contemplation of equity ; for it is a rule 
 of equity, that whatever is agreed to be done shall be 
 considered as done akeady. In the words of Sir 
 Thomas Sewell(r), " Nothing is better estabhshed than 
 this principle, that 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 Avhatever manner the direction is given, 
 whether by will, by way of contract, maiTiage articles, 
 settlement or other-\^dse, and whether the money is 
 actually deposited or only covenanted to be paid, 
 whether the land is actually conveyed or only agreed to 
 be conveyed. The owner of the fund or the contracting 
 parties may make land money, or money land." And 
 if land is clearly directed to be sold, the circumstance 
 that the consent of some person or persons is required to 
 the sale wall not prevent the immediate conversion of the 
 land into money in the contemplation of equity, althoiigh 
 such a circumstance may often cause a long postpone- 
 ment of the period of its actual conversion (s). Not- Election that 
 withstanding a trust for the sale of land, if all the ^q^\q ^^i^^ 
 parties interested should be of full age ( t), and if females 
 immarried(?<), they may elect that the land shall not be 
 sold ; and after such election the land will be considered 
 as real estate in equity as well as at law {x). And the 
 election of the parties need not be expressed in so many 
 
 (q) See Appendix B. Carlisle, 3 P. "Wms. 218, 219. 
 
 (r) In Fletcher v. Ashhurner, (f) Van v. Barnett, 19 Ves. 
 
 1 Bro. C. C. 499, approved by 102. 
 
 Lord Alvanley in Wheldale v. («) Oldham y. RitgJies, 2 Atk. 
 
 Partridge, 5 Ves. 396, 397. See 452. 
 
 also Griffith v. Richetts, 7 Hare, {x) Davies v. Ashford, 15 Sim, 
 
 299. 42. 
 
 (s) See Lechmere v. Earl of
 
 288 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 words, but may be infen-ecl from any acts by wlilcb 
 tbeir intention is clearly shown (^). 
 
 Keceipt clause. All properly drawn settlements of personal estate 
 formerly contained a power for the trustees or trustee 
 for the time being, acting in the execution of the trusts, 
 to give receipts for any money payable to them or him 
 under the tiaists, which receipts, it was declared, should 
 effectually discharge the persons paynng the money from 
 all responsibility as to its application. The necessity of 
 this provision arose from a rule of equity, by which any 
 person who paid money to another, whom he knew to 
 be merely a tnistee, was bound to see the money ap- 
 plied according to the trusts (z). If, however, the 
 trusts were of such a kind as to require time and dis- 
 cretion to carry them into effect, the receipt of the 
 trustees would, fi-om the nature of the case, have been 
 an effectual discharge, without an express clause for 
 this purpose (a). But by a recent act of parliament it 
 is provided, that the bona fide payment to and receipt 
 of anv person to whom any piirchase or mortgage money 
 shaU be payable upon any express or imj)lied tnist shall 
 effectually discharge the person paying the same fi-om 
 seeing to the application or being answerable for the 
 misapplication thereof, unless the contrary shall be ex- 
 pressly declared by the instrument creating the trust 
 or security (^). It is the better opinion that this enact- 
 ment is not retrospective ; for it can scarcely be sup- 
 posed that the legislature contemj)lated the existence ot 
 a prescience of this act in the authors of old settlements, 
 inducing them to insert therein an express declaration 
 that the act should not apply. And with respect to 
 instruments executed and wills.or codicils confirmed or 
 
 New enact- 
 ment.- 
 
 Not retrospeC' 
 tive. 
 
 Turther enact- 
 ment. 
 
 (y) L'lngen v. Sonray, 1 P. 
 Wms. 172 ; CooTtson v. Reay, 5 
 Bear. 22 ; 12 CI. & Fin. 121. 
 
 (z) Sjjalding v. Shalmer, 1 
 A^ern. 301 ; Llo7/d v. Balfln-in, 1 
 
 Ves. sen. 173. 
 
 (a) Boran t. WiltsJiire, 3 
 Swanst. 699; Balfour^. Welland, 
 IG-Ves. 151. 
 
 (7>) S^at. 22 5; 20 Vict. c. 35, s. 23.
 
 OF SETTLEMENTS OF PERSONAL PROPERTY. 289 
 
 revived by codicil executed after the 28tli August, 18G0, 
 it is now provided that the receipts in writing of any 
 tnistees or trustee for any money payable to them or 
 him, by reason or in the exercise of any trusts or 
 powers reposed or vested in them or him, shall be suf- 
 ficient discharges for the money therein expressed to be 
 received, and shall effectually exonerate the person 
 paying such money from seeing to the application 
 thereof, or from being answerable for any loss or mis- 
 application thereof (c). 
 
 Every settlement, the trusts of which were likely to power to ap- 
 
 be of long duration, formerly contained a power of ap- P°^°*' "^^^ 
 
 ° . . trustees. 
 
 pointing new trustees in the event of any trustee dying, 
 
 going to reside beyond the seas, desiring to be dis- 
 charged, refusing, or becommg incapable to act in the 
 execution of the trusts {d). And as the mere appoint- 
 ment of a trustee was not sufficient to vest the trust 
 property in him, it was usual and proper to direct that, 
 on every such appointment, the trust property should 
 be so conveyed, assigned, transferred or paid as effectu- 
 ally to vest the same in the new trustee jointly with the 
 surviving or continuing trustees, or solely, as the case 
 might require. Every new trustee was also invested 
 with the same powers as the original trustees. But the New enact- 
 act to which we have already referred (e), now provides ™'^^*' 
 that whenever any trustee, either original or substituted, 
 and whether appointed by the Court of Chancery or 
 otherwise, shall die, or desire to be discharged from or 
 refuse or become unfit or incapable to act in the trusts 
 or powers in him reposed, before the same shall have 
 been fully discharged and performed, it shall be lawftil 
 
 (c) Stat. 23 & 24 Vict. c. 145, act applies also to trustees ap- 
 s. 29. pointed by the Court of Chancery 
 
 (d) See Appendix B. of the County Palatine of Lan- 
 
 (e) Stat. 23 & 24 Vict. c. 145, caster. Stat. 28 Vict. c. 40. 
 s. 27, ante, pp. 279, 280, 285. This 
 
 w.r.p. u
 
 290 OF PERSONAL ESTATE GENERALLY. 
 
 for tlie person or persons nominated for tliat purpose by 
 the deed, will, or other instrument creating the trust 
 (if any), or if there be no such person, or no such person 
 able and willing to act, then for the surviving or con- 
 tinuing trustees or trustee for the time being, or the 
 acting executors or executor, or administrators or ad- 
 ministrator of the last sm-^aving and continuing trustee, 
 or for the last retiring trustee, by writing, to appoint 
 any other person or persons to be a trustee or tnistees 
 in the place of the trustee or trustees so dying or desning 
 to be discharged, or refusing, or becoming unfit or in- 
 capable to act as aforesaid ; and so often as any new 
 trustee or trustees shall be so appointed as aforesaid, 
 all the trust property (if any) which for the time being 
 shall be vested in the sm-vi^dng or continuing ti-ustees 
 or trustee, or in the heirs, executors or administi-ators 
 of any trustee, shall, with all convenient speed, be con- 
 veyed, assigned and transferred so that the same may 
 be legally and effectually vested in such new trustee or 
 trustees, either solely or jointly with the surviving or 
 continviing trustees or trustee as the case may require, 
 and every new trustee or trustees to be appointed as 
 aforesaid, as well before as after such conveyance or as- 
 signment as aforesaid, and also every trustee appointed 
 by the Coiut of Chancery, either before or after the 
 passing of the act, shall have the same powers, authori- 
 ties and discretions, and shall in all respects act, as if 
 he had been originally nominated a trustee by the deed, 
 will, or other insti'ument creating the trust. This act, 
 as we have before observed, extends only to instruments 
 executed or wills confirmed or revived by codicil exe- 
 cuted after the 28th of August, 1860. A mere power 
 to appoint a new trustee does not render such appoint- 
 ment imperative ; and in case of the death of any 
 trustee, the sur\dvors or survivor may still carry on 
 the ordinary business of the trust (/). When a trustee 
 (/) Warhurton v. Sandys, 14 Sim. C22.
 
 OF SETTLEMENTS OF PERSONAL PROPERTY. 291 
 
 has once accepted the office, he has no right to retire, 
 
 unless the person having the power to appoint another 
 
 trustee in the event of his retiring should consent to 
 
 do so ig) ; or unless, from unforeseen circumstances, the 
 
 duties of the trust should have become more onerous 
 
 than was contemplated by the trustee Avhen he accepted 
 
 the office (A). When several deeds are required for the Stamp duty. 
 
 appointment of a new trustee, it is now sufficient if one 
 
 of the deeds be stamped mth a duty of 1/. 155. and the 
 
 others with the same duty as would be payable on a 
 
 duphcate thereof (z). 
 
 The Trustee Act, 1850 (A), the provisions of which Trustee Act, 
 have been extended by a more recent act (/), empowers 
 the Com-t of Chancery to appoint a new trustee in all : f^^xr ^ ' f .. 
 cases where it is inexpedient, difficult or impracticable \ ' t^ o' ' 7y^, ^^ 
 so to do without the assistance of that com-t, and either ^^^^ <?2*^^^>^ 
 in substitution for, or in addition to, any existing trus- -■■ - 
 
 tee im), and whether there be any existing trustee or ^-y^ /a Jl^.'^rf-x 
 not {n). Provision is also made for the appointment 
 of a new trustee in lieu of any trustee who may have 
 been convicted of felony (o), and for the infancy (7?), 
 lunacy or idiotcy of any trustee or executor (5'), and 
 for his being out of the jurisdiction of the court, or not 
 being found, and for its being uncertain whether he is 
 lining or dead (r), and for his neglecting or refusing 
 
 ((7) Adams v. Paynter, 1 Coll. (J) Stat. 15 & 16 Vict. c. 55. 
 
 532. (wi) Stat. 13 & 14 Vict. c. 60, 
 
 {1i) Coventry v. Coventry, 1 ss. 32, 35. 
 
 Keen, 758. ('0 Stat. 15 & 16 Vict. c. 55, 
 
 (i) Stat. 24 & 25 Vict. c. 91, s. s. 9. 
 
 30. See Principles of the Law of (p) Sect. 8. 
 
 Eeal Property, 136, 6tli ed ; 139, (i^) Sect. 3. 
 
 Tth ed. ; 145, 8th ed. iq) Stat. 13 & 14 Vict. c. 60, 
 
 {k) Stat. 13 & 14 Vict. c. 60. ss. 5, 6 ; 15 & 16 Vict. c. 55, ss. 
 
 See Principles of the Law of Real 10, 11. 
 
 Property, p. 142, 3rd and 4th eds.; (r) Stat. 13 & 14 Vict. c. 60, 
 
 148, 5th ed. ; 155, 6th ed. ; 158, ss. 22, 25. 
 7thed.; 166, 8th ed. 
 
 tj2
 
 292 
 
 OF PEESONAL ESTATE GENERALLY. 
 
 to transfer any stock, or to receive the dividends or 
 income thereof, or to sue for or recover any chose in 
 action (5). 
 
 Trustees' costs 
 and respon- 
 sibilities. 
 
 Solicitor can- 
 not charge for 
 professional 
 trouble. 
 
 The office of trustee of a settlement is one involving 
 gi'eat responsibility, and frequently much trouble, with- 
 out any remuneration ; for a tiiistee is not allowed to 
 make a profit of his trust. And if he be a solicitor, 
 he cannot receive payment for his professional trouble 
 incurred in the bvisiness of the trust {t), unless he ex- 
 pressly stipulate before accepting the office, that he 
 shall be pennitted to do so {u), or unless his charges 
 be voluntarily paid by the cestui que trust with fuU 
 knowledge that they might have been resisted {x). But 
 a trustee may charge against the trust property all costs 
 and expenses properly inciuTcd in the conduct of the 
 trust. And, it has been held, that in the event of a suit 
 being brought against the trustees, one of the trustees, 
 being a solicitor, may be employed by his co-trustees, 
 and may make the usual charges against them, provided 
 the amoimt of the costs be not thereby increased (y). 
 And every trustee is allowed in a suit his flill costs, as 
 between solicitor and client (z). But his right to costs 
 may be forfeited by his negligence or misconduct (a) ; 
 or he may even be made to pay the costs of the other 
 
 (s) Stat. 13 & 14 Vict. c. 60, 
 ss. 23, 24, 25 ; stat. 15 & 16 Vict. 
 0. 55, ss. 4, 5. 
 
 (t) Moore v. Frowd, 3 My. & 
 Craig, 45 ; Fi'aser v. Palmer, 4 
 You. & Coll. 515 ; Collins v. 
 Carey, 2 Beav. 128 ; Bainhrigge 
 V. Blair, 8 Beav. 588 ; Todd v. 
 Wilson, 9 Beav. 486. See Ex 
 parte Newton, 3 De Gex & Sm. 
 584. 
 
 (?0 Be Sherwood, 3 Beav. 388. 
 
 (■r) Stanes v. Parlier, 9 Beav. 
 385. See Gomley v. Wood, 3 
 
 Jones & Lat. 678. 
 
 (y) Cradock v. Piper, 1 Mac. & 
 Gord. 664 ; Clack v. Carlon, V. 
 C. W., 7 Jur., N. S. 441. Sec, 
 however, Lincoln v. Windsor, 9 
 Hare, 158; Lyon v. Baiter, 5 De 
 Gex & Sm. 622; BrovgMon v. 
 BroiigMon, L. C, 1 Jur., N.. S- 
 965; 5De Gex, M. & G. 160. 
 
 (r) 2 Fonb. Eq. 176. 
 
 («) Camphell v. Camphell, 2 
 My. & Craig, 25 ; Hoivard v. 
 Bhodcs, 1 Keen, 581.
 
 OF SETTLEMENTS OF PERSONAL PROPERTY. 
 
 parties {b). As the ti'ustee lias the legal title to the 
 property, he is often enabled, if fraudulently inclined, to 
 sell it or spend it for his oa^ti benefit. It is therefore 
 highly proper that his conduct should be narrowly scru- 
 tinized, and that he should be invariably punished for 
 any breach of faith. But the Court of Chancery goes 
 fiu-ther than this, and punishes, with almost equal se- 
 verity, his neglect of duties, which in many cases he 
 scarcely knows that he has undertaken. Thus, if a 
 trustee, by his negligence or misplaced confidence in his 
 co-trustee, gives him an opportunity to commit a breach 
 of trust, of Avhich opportunity the co-trustee avails him- 
 self, the innocent trustee will be made to replace the 
 whole of the fund abstracted by the other (c). So if the 
 trustee should depart from the letter of his trust, as by 
 investing the trust fund on an unauthorized security, 
 although at the importunity of some of the parties in- 
 terested, and with a bona fide desire to benefit them all, 
 he will be answerable for any loss which such departure 
 may have occasioned (rf). And if, being ignorant of 
 law, he shoidd give himself up entirely to his profes- 
 sional adviser, he may still suffer from the mistake of 
 his solicitor or conveyancer [e) ; and in such a case he 
 will scarcely perhaps see the justice of the remark that 
 he might (had he known how) have chosen a wiser soli- 
 
 (5) Wllso?i\. Wilson, 2 Keen, (d) Drh-er v. Scott, i Euss. 
 
 249; Willis v. Hiscox, 4 My. & 195; Pride v.JPooks, 2 Bear. 430; 
 
 Craig, 197; Flrmin t. Pulliam, Forrest v. Elwes, 4 Ves. 497; 
 
 2 De Gex & Sm. 99. Watts v. Girdlestone, 6 Beav. 
 
 (c) Lord Shi2)hrooh v. Lord 188. 
 
 Hinchinbrook, II Yes. 252; Br ice (e) Willis v. Hiscox, 4 My. & 
 
 V. Stokes, 11 Ves. 319; Hanbury Craig, 197; Angier v. Stannard, 
 
 V. KirMand, 3 Sim. 265; Booth 3 My. & Keen, 566; Hamiysliire 
 
 V. Booth, 1 Beav. 125; Broad- v. Bradley, 2 Coll. 34; Boulton 
 
 hurst V. Balguy, 1 You. & Coll. \. Beard, 3 De Gex, M. & G. 608; 
 
 N. C. 16; Styles v. Gvy, 1 Mac. See, however, Poole v. Pass, 1 
 
 & Gord. 422 ; Bix v. Burford, Beav. 600 ; Holford v. Phij)j}s, 8 
 
 19 Beav. 409. Beav. 484; 4 Beav. 475. 
 
 293
 
 294 
 
 OP PERSONAL ESTATE GENERALLY. 
 
 New enact- 
 ment. 
 
 citor, or a more learned counsel (/*). In all ordinary 
 settlements, clauses used to be inserted for the indem- 
 nity and reimbursement of trustees, to the effect that 
 they should not be answerable the one for the other of 
 them, or for signing receipts for the sake of conformity, 
 or for involuntary loss ; and that they might reimburse 
 themselves out of the trust funds all costs and expenses 
 incurred in relation to the trust. But these clauses, 
 though often very highly valued by trustees, really 
 afforded them httle, if any, further protection than they 
 would have been entitled to, if left to the ordinary rules 
 of equity (^). It has, however, been recently enacted 
 that every deed, will or other instrument creating a 
 trust, either expressly or by impHcation, shall be deemed 
 to contain these clauses (h). It would have been more 
 direct, and therefore more jDhilosophical, to alter the 
 rules of equity with respect to trustees, if alteration 
 were required, rather than to enact that a deed shall 
 be deemed to contain clauses which in fact are not 
 there. 
 
 tees. 
 
 Act for better In order to pro^dde means for secm-ing trust fimds, 
 fundTand^^e ^^^ ^^^ relie-sdng trustees from the responsibility of 
 relief of trus- administering them, an act of parhament has been 
 passed (^), whereby all trustees, executors, adminis- 
 trators or other persons having in their hands (k) any 
 monies belonging to any trust whatsoever, or the major 
 part of them (/), may pay the same, with the privity of 
 the accoimtant-general of the Court of Chancery, into 
 the Bank of England, to the account of such accountant- 
 general in the matter of the trust, in trust to attend the 
 
 (/) 3 My. & Keen, 572. 
 
 (g) Femvick v. Greewell, 10 
 Beav. 412; Brumridge v. Briun- 
 Tidge, 27 Beav. 5. 
 
 (A) Stat. 22 & 23 Vict. c. 35, 
 s. 31. 
 
 (0 Stat. 10 & 11 Vict. c. 9G, 
 s. 1. 
 
 (^) Buckley's Trust, 17 Bear. 
 110. 
 
 (J) See Stat. 12 & 13 Vict. 
 c. 74.
 
 OF SETTLEIMENTS OF PERSONAL TROPERTY. 295 
 
 orders of the court. Bank anuuities, East India and 
 South Sea stock, and government and parliamentary 
 secin-ities, held upon trust, may also be transferred or 
 deposited in like manner. The trust is then adminis- . ^, ^^^ ^ ^ ^ 
 tered by the com't upon petition in a summary way, i i:^\a 4l^^ \V 
 without a biU, imless the court direct any suit to be*7 i-' "'t^f^J 
 instituted (/«). AVhere the fund does not exceed in ^'J \ J^ '"^ 
 amount or value the sum of five hundred pounds, juris-'>^-* ^ 'X/^^Th^i^X 
 diction is now given to the county courts ; the fund, if County courts. 
 money, being paid into a post-ofiice savings ban k^r^-^ c^C^— >^t'>4^ . 
 established in the town in which the coxmty court \& ^- yF JP £L^ . 3 ri. 
 held, in the name of the registrar of the coiu't, in ti'ust ^ ^ ' / ^ ' 
 to attend the orders of the com-t. And stocks or secu- 
 rities may be transferred into or deposited in the names 
 of the treasurer and registrars of the court upon the 
 like trust (?^). Where there is not a treasurer, a per- 
 son shall be nommated, by rule of practice, to whom 
 the transfer or deposit, in conjunction ^vith the registrar, 
 may be made (o). 
 
 A salutary act has recently been passed for the Punishment of 
 punishment of fraudulent trustees, bankers, directors, trustees!" 
 and public officers (j:?). More recent acts empower Power to apply 
 any trustee, executor or administra tor, by petition o r of'^aNudc^e"^*^^ 
 statemen^q be signed by counsel, to a])ply to any judge 
 of the Court of Chancery, for his opinion, advice or 
 du'ection on any question respecting the management 
 or administration of the trust property ((7). 
 
 In some marriage settlements, in addition to the Covenants for 
 
 settlement actually made, a covenant is inserted for the wife'^s"fiitiire 
 
 settlement of all such property as the intended wife shall property. 
 become entitled to during the coverture or marriage. It 
 
 (to) Stat. 10 & 11 Vict. c. OG, (0) Sect. 24. 
 
 s. 2. {,!)') Stat. 20 & 21 Vict. c. 54. 
 
 in) Stat. 30 & 31 Vict. c. 142, (<?) Stat. 22 & 23 Vict. c. 35, 
 
 ss. 24, 25. s. 30; 23 & 24 Vict. c. 38, s. 9.
 
 296 OF PERSONAL, ESTATE GEXERALLY. 
 
 sometimes happens tliat at the time when such covenant 
 is entered into, the wife is, Avithout being aware of it, 
 entitled to other property, besides that actually settled. 
 In such a case, the general rule is that the property, to 
 which she is then entitled, is subject to the covenant, 
 and ought to be settled, as well as that which she may 
 subsequently acquire (?•). But as the question is entirely 
 one of intention, if the property to which the wife is 
 entitled appear to have been pui-posely omitted, it will 
 not be bound by such a covenant (s). If the covenant 
 to settle the vnfe^s, fiiture property be entered into by 
 the intended husband alone, the wife yvi\l not be boimd 
 to settle any future property to which she may become 
 Covenants to entitled for her separate use (t). Occasionally covenants 
 settle hns- ^^,q imadviscdlv entered into by the intended husband to 
 
 band s pro- •' , •' i i • mi 
 
 perty. settle on his children, or to leave to them by his will, 
 
 all the property that he may acquire during the cover- 
 ture, or all his property generally {u). So a father may 
 covenant, on the marriage of his daughter, to leave her 
 as great a share in his property- as to any of his other 
 children {v). These covenants will be enforced in equity ; 
 but from their vague and uncertain character, they are 
 
 (?•) Graffiey v. Humjpage, 1 222; Cramer y. Moore, Z ^m&. Si 
 
 Beav. 46; James v. JJurant, 2 Giff. 141 ; Grey Y.Stuart, 2 GiS. 
 
 Beav. 177; Blythe v. Granville, 398; Brooks v. Keith, 1 Drew. & 
 
 13 Sim. 190; Ex jiarte Blake, S. 462; Coventry v. Coventry, 
 
 16 Beav. 463; Re Mac'kenzie's 32 Beav. 612; Be Mainn-aring'' s 
 
 Settlement, L. H., 2 Ch. Ap. 345. Settlement, L. R., 2 Eq. 487. 
 
 (s) Hoare y.Hornly, 2 You. & (?*) Lewis v. Madocks, 17 Ves. 
 
 Coll. N. C. 121; Otter v. Melvill, 48; Keedliam v. Smith, 4 Enss. 
 
 2 De Gex & Smale, 257; Wilton 318; Needham v. Kirkman, 4 
 
 V. Colvin, 3 Drew. %\1 ; Archer Bam. & Aid. 531; Hardey v. 
 
 V. Kelly, 1 Drew. & S. 300. Greeyi. 12 Beav. 182. 
 
 (i) Douglas v. Congreve, 1 (jv) Willis v. Black, 4 Russ. 
 
 Keen, 410, 423; Trovers y. Tra- 170; Clegg y. Clegg, 2 Russ. '& 
 
 rers, 2 ^QB.Y.llSi;Drury Y.Scott, My. 570; Eardley v. Omen, 10 
 
 4 You. & Coll. 264 ; Bamsden v. Beav. 572; Jones y.Hok, 7 Hare, 
 
 Smith, 2 Drew. 298; Hammond 267; 9 C. B. 1. See Phelp y. 
 
 Y. Hammond, 19 Beav. 29, See Amcotts, V. C. J., 17 W. R. 703. 
 also Butcher Y. Butcher, 14 Beav.
 
 OF SETTLEMENTS OF TEESONAL PROPERTY. 297 
 
 likely to lead to mucli litigation. A covenant to settle 
 property of a given value, when no time is limited for 
 its performance, creates no lien on any of the property 
 of the covenantor {w). And it appears to be now settled, 
 contrary to what was before supposed to be the law, 
 that no lien is created whether a time for the perform- 
 ance of the covenant be specified or not {x). 
 
 Marriage, as we have seen (y), is a valuable consider- Man-iage set- 
 ation. Every settlement, therefore, made by parties of valid as a pur- 
 fidl age, previously to and in consideration of marriage, c'lase. 
 or made subsequently to marriage in pursuance of 
 WT^tten articles (z), stands on the footing of a purchase, 
 and has equal vahdity. But a voluntary settlement is Voluntary set- 
 liable to be defeated by the creditors of the settlor, if he a,^^nst cre- 
 was so much indebted at the time as to bring the settle- ditors. 
 ment within the provisions of the statute of the 13th of 
 Elizabeth («) ah-eady noticed (^), by which the aliena- 
 tion of goods and chattels made for the pm-pose of 
 delaying, liindering or defrauding creditors, is rendered 
 void as against them. For although by the phrase 
 " goods and chattels" was intended only such personal 
 property as coidd be taken by the sheriff under an 
 execution on a judgment (c), yet as almost all kinds of 
 personal property may now be taken in execution (r/), 
 or charged Avith the payment of judgment debts (e), all 
 such property is now within the compass of the sta- 
 
 (w) Freemoult v. Dedire, 1 P. See ayite, p. 78. 
 Wms. 429; Berrington v. Evans, (a) Stat. 13 Eliz. c. 5 ; Skarf 
 
 3 You. & Coll. 384. v. Sovlbrj, 1 Mac. & Gord. 364. 
 
 {x) 3Iornington v. Keane, 2 {b) Ante, p. 48. 
 
 De Gex & Jones, 202, explaining (f) Sims v. Thomas, 2 Adol. & 
 
 Roundell v. Brearey, 2 Vern. Ell. 536. See ante, p. 51. 
 482, and questioning Wellesley {d) Stat. 1 & 2 Vict. c. 110, 
 
 V. Wellesley, 4 My. & Cr. 561, s. 12. See awf.?, p. 119, 
 581. ie) Stats. 1 & 2 Vict. c. 110, 
 
 {y) Ante,^.l\. s. 14; 3 & 4 Vict. c. 82, s. 1; 
 
 (z) Stat. 29 Car. II. c. 3, s. 4. ante, p. 119.
 
 298 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 tute ( f ). The voluntary assignment of goods or 
 chattels, or delivery or making over of bills, bonds, 
 notes or other securities, or the voluntary transfer of 
 any debts made by a person being at the time insol- 
 vent {rf), Avas by the former bankruptcy acts void in the 
 event of his bankruptcy (A). This provision embraced 
 aU personal estate capable of assignment or transfer {i) ; 
 but it did not extend to a gift of money (J). The pro- 
 visions of the Bankruptcy Act, 1869, on this subject 
 are very stringent, and have been already men- 
 tioned. And the word " property," which is employed 
 by the act, is expressly defined by it to include money 
 as well as every other description of property (A). 
 
 Voluntary set- 
 tlement bind- 
 ing on the 
 settlor. 
 
 Although a voluntary settlement may thus be defeated 
 by creditors, yet, when once completed, it is binding on 
 the settlor, who cannot by any means imdo it(/). Thus, 
 in one case(m), a maiden lady not immediately contem- 
 plating marriage, but thinking such an event possible, 
 transferred a sum of stock into the names of trustees in 
 trust for herself until she should marry, and, after her 
 marriage, in trust for her separate use for her life, free 
 from the control of any person or persons with whom 
 
 (/) ^Q&Edwardsy. Cooper, 11 
 Q. B. 33; Barrack v. M'Cullock, 
 3 Kay & John. 110; Jerikyn v. 
 Vaiiglian, 3 Drew. 419. 
 
 {g) See Cutten v. Sanger, 2 
 You. & Jerv. 459. 
 
 (7t) Stat. 12 & 13 Vict. c. 106, 
 s. 126, repealing stat. 6 Geo. IV. 
 c. 16, s. 73, to the same effect. 
 
 (i) Brown v. Bella ris, 5 Mad. 
 53. 
 
 (j) Ex 2Mrte Sliortland, 7 Ves. 
 88; Kensington v. Cliandler, 2 
 Mau. & Selw. 36; Ex parte Sher- 
 ratt, 2 Rose, 384. 
 
 (Ji) Ante, pp. 153, 154, Stat. 
 32 & 33 Vict. c. 71, s. 4. 
 
 {V) Ellison T. Ellison, 6 Ves. 
 G56; Edwards v. Jones, 1 My. & 
 Craig, 226; Newton v. Askew, 11 
 Bear. 145; Kekewicli^. Manning, 
 1 De Gex, Mac. & Gord. 176 
 Bentley v. Mackay, 15 Beav. 12 
 Bridge v. Bridge, 16 Beav. 315 
 Re Way's Settlement, Lds. Jus., 
 13 W. R. 149; 2 De Gex, Jones 
 & Smith, 365. 
 
 (to) Bill V. Cnreton, 2 My. & 
 Keen, 503. See also Petre v. Es- 
 2nnasse, 2 My. & Keen, 496 ; 
 M'DonnellY. Hesilrige, 16 Beav. 
 346; Donaldson v. Donaldson, 1 
 Kay, 711.
 
 OF SETTLEMENTS OF PERSONAL PROPERTY. 299 
 
 she might intei-many, and, after her decease, upon 
 trusts for the benefit of any such husband, and her 
 child or children by any husband or husbands. She 
 afterwards, being still immarried, filed a bill in Chan- 
 cery, praying that the settlement might be delivered up 
 to her to be cancelled, and that the stock might be 
 ordered to be re-transferred by the trustees. But the 
 court held that she was bound by the settlement she 
 had made, and was not entitled to any assistance to 
 release her from it. 
 
 If however the object of the settlor is merely his own Settlement for 
 benefit or convenience, the settlement will be revocable f^^^'l'"'® °^™ 
 
 ^ benent revo- 
 
 by him at his pleasure. Thus where a man, without cable by him. 
 
 any communication with his creditors, puts property 
 into the hands of trustees for the purpose of paying his 
 debts, his object is said to be, not to benefit his cre- 
 ditors, but to benefit himself by the payment of his 
 debts {n). He may accordingly revoke the trust thus 
 created (o), so long as the creditors remain in ignorance 
 of it( p). This rule, however, though well established, 
 seems to attribute to debtors a somewhat light estima- 
 tion of the claims of their creditors ; and there appears 
 to be no disposition in the courts to extend it (17). 
 
 The statute of Elizabeth (r), by which voluntary Voluntary set- 
 tlements of 
 
 (m) Per Sir C. Pepys, M. R., 2 Jones & Lat. 606, 635 ; Griffith 
 
 My. & Keen, 511; cited by Wi- v. Rlchetts, 7 Hare, 299, 307; 
 
 gram, V. C, in Hughes v. Stubbs, Maekintion v. Stewart, 1 Sim. N. 
 
 1 Hare, 479. C. 76, 89, 90 ; Harland v. Blnhs, 
 
 (0) Garrard ^. Lord Lauder- W Q. B. 713; Smith v. Hurst, 10 
 
 dale, 3 Sim. 1; Acton v. Wood- Hare, 30. But see Cornthwaite 
 
 gate, 2 My. & Keen, i^2; Ravoi- v. Frith, 4 De Gex & Smale, 
 
 shaw V. Hollier, 7 Sim. 3; Law 552. 
 
 V. Bagwell, 4 Dru. & Warren, (5) See Wilding v. Richards, 
 
 398; Smith v. Keating, 6 C. B. 1 Coll. 661; Simmonds y. Palles, 
 
 136 ; Driver v. Mawdesley, 16 2 Jones & Lat. 489 ; Kirwan v. 
 
 Sim. 511. Daniel, 5 Hare, 493, 499-501. 
 
 (^?) Browne v. Cavendish, 1 (?•) Stat. 27Eliz. c. 4; Princi-
 
 300 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 personal estate 
 not void 
 against subse- 
 quent pur- 
 chasers. 
 
 settlements of lands and other hereditaments are void as 
 against subsequent purchasers for valuable consideration, 
 though it extends to chattels real (s), does not apply to 
 purely personal estate (t). A voluntary settlement of 
 personal estate cannot therefore be defeated by a subse- 
 quent sale of the property by the settlor. 
 
 Stamps on 
 
 settlements. 
 
 Settlements of any definite and certain principal sum 
 of money, of any denomination or currency, Avhether 
 British, foreign or colonial, or of any definite and certain 
 share in the funds, or Bank, East India, or South Sea 
 stock, or in the stock or funds of any other company or 
 corporation, or in the stocks or funds of any foreign or 
 colonial government, state, corporation or company 
 whatsoever, are now liable to an ad valorem duty of 
 one-fourth per cent., or five shillings per hundred 
 pounds, on the amount of the money or the value of the 
 stock or share settled, according to the table contained 
 in the Stamp Act(u), with a progressive duty of ten 
 shillings for every entire quantity of 1080 Avords beyond 
 the first 1080. The duty on the settlement of money 
 secured by a policy of assurance is now charged on the 
 sum secured ; but if there be not any certain covenant, 
 contract or provision made for keeping up such policy, 
 or for paying the premiums which may become payable 
 in that behalf, then the ad valorem duty is chargeable 
 only on the value of the policy at the date of the settle- 
 ment {x). 
 
 The Succession 
 Duty Act, 
 1853. 
 
 By the Succession Duty Act, 1853 (y), provision has 
 been made for charging certain duties on the succession 
 
 pies of the Law of Real Property, 
 56, 1st ed. ; 59, 2nd ed. ; 62, 3rd 
 and 4th eds. ; 67, 5th ed.; 71, 6th 
 ed. ; 73, 7th ed. ; 74, 8th ed. 
 (s) Co. Litt. ah; 6 Rep. 72. 
 
 (0 2 My. & Keen, 512. 
 {u) Stats. 13 & 14 Vict. c. 97; 
 27 Vict. c. 18, ss. 11-13. 
 
 {x) Stat. 27 Vict, c, 18, s. 12. 
 (y) Stat. 16 & 17 Vict. c. 51.
 
 OF SETTLEMENTS OF PERSONAL PROPERTY. 
 
 301 
 
 to property upon the death of any person dying after the 
 19th of May, 1853. These duties are at the same rates 
 as the legacy duty, of which an account will be given 
 in the chapter on wills, increasing in proportion to the 
 distance in consanguinity between the predecessor, from 
 whom the interest succeeded to is derived, and the suc- 
 cessor.
 
 302 OF PERSONAL ESTATE GENERALLY. 
 
 CHAPTEE 11. 
 
 or JOINT OWNERSHIP AND JOINT LIABILITY. 
 
 Joint owners. There may be a joint o's\Tiersliip of any kind of per- 
 sonal property, in the same manner as there may be a 
 joint tenancy of real estate (a) ; and the four unities of 
 possession, interest, title and time, which characterize a 
 J drat tenancy of real estate, apply also to a joint owner- 
 ship of chattels. But as no estates can exist in personal 
 property, the distinctions which hold with respect to 
 joint estates for life, in tail, or in fee, do not occur in a 
 joint ownership of personalty. If personal property, 
 whether in possession or in action, be given to A. and 
 B. simply, they will be joint owners, having equal rights 
 as between themselves, during the joint ownersliip, and 
 being, Avith respect to all other persons than themselves. 
 
 Joint bond, all in the position of one single owner. Hence it follows, 
 
 ^^ " ■ that if a bond or covenant be given or made to two or 
 
 more jointly, they must all join in suing upon it {h) ; 
 
 Release by one and a release by one of them to the obligor is sufficient 
 ^"^^ ^ ' to bar them all (e). As a forther consequence of the 
 
 Survivorhip. unity of a joint ownership, the important right of sur- 
 vivorship, Avhich distinguishes a joint tenancy of real 
 estate, belongs also to a joint ownership of personal pro- 
 perty. Whether the subject of the joint ownership 
 be a chattel real as a lease, or a chose in possession as 
 a horse, or a chose in action as a debt or legacy, the 
 surviving joint owner will be entitled to the whole, un- 
 
 (a) See Principles of the Law (i^SUngshg^s ease, 5 Rep. 18 b; 
 
 of Real Property, p. 99, 1st ed. ; Petrie y. Bury, 3 Bam. & Cress. 
 
 104, 2nd ed.; 109, 3rd and 4th 353; 1 Wms. Saiind. 291 i. 
 
 eds.; 114, 5th ed.; 120, 6th ed. ; (c) 2 Rol. Abr. 410 (D.), pi. 
 
 12.3, 7th ed.; 128, 8th ed. 1,5.
 
 OF JOINT OWNEESHIP AND JOINT LIABILITY. 303 
 
 affected by any disposition which the deceased joint 
 
 owner may have made. by his will, unless the joint 
 
 tenancy should have been previously severed in the 
 
 lifetime of both the parties {d). And for this reason Trustees of 
 
 trustees of settlements of personal estate are always Se'joinT 
 
 made joint owners, in order that the sm-viving trustees owners. 
 
 may take the entire fimd, rather than that the executors 
 
 or administrators of any trustee who may happen to 
 
 die should have any right to interaieddle with the share 
 
 of the deceased. Where any beneficial interest accrues Succession 
 , • 1 • 'i • 1 J Duty Act, 
 
 to any joint owner by survivorship, it is deemed a sue- ^ggg^ 
 cession within the Succession Duty Act, 1853, and as 
 such liable to the succession duty {e). 
 
 If the joint ownership be created by a wiU, it is not The shares of 
 necessary that the shares of all the joint OAvners should unSerTwTll 
 
 vest at the same time. Thus under a bequest to A. for need not vest 
 
 ■, . -, 1 • / /. \ 1-11 / N at the same 
 
 life, and after his decease to the issue (/) or children (y) time. 
 
 of B., without words of severance, all the issue or chil- 
 dren, born in A.'s Hfetime, will become entitled jointly, 
 though some may not be Hving when the shares of the 
 others become vested interests. On the decease of any 
 of them therefore before payment, the survivors wiU 
 become entitled to their shares. A similar exception 
 to the unity of time occiu's also in the case of a devise 
 of real estate by wiU (A). 
 
 In analogy to the rule by which a joint estate in fee- I^imitation to 
 
 ^J •' ... ]omt owners, 
 
 simple in lands is created by a limitation to two or their executors, 
 
 {d) Litt. sects. 281, 282 ; Lady (/) Bridge v. Tates, 12 Sim. 
 
 Shorey.BilUngsley, 1 Vern. 482; 645. 
 
 Willing v.B (line, 3 P. Wms. 115; {g) Amies v. SMllern, 14 Sim. 
 
 Morley v. Bird, 3 Ves. 629; Wil- 428. 
 
 Hams V. Henshaw, 1 John & H. (A) See Principles of the Law 
 
 546. of Real Property, 102, 1st ed. ; 
 
 (e) Stat. 16 & 17 Vict. c. 51, 107, 2nd ed. ; 112, 3rd and 4th 
 
 s. 3 ; flw^e, p. 300. eds.; 117, 5th ed; 128, 6th ed.; 
 
 126, 7th ed.; 131, 8th ed.
 
 304 
 
 OF PERSOXAL ESTATE GENERALLY. 
 
 and assigns, 
 
 administrators more, their heirs and assigns, it is customarj -witli con- 
 veyancers to make a gift of personal estate to two or 
 more jointly, by limiting it to tliem, their executors, 
 administrators and assigns. This, however, though 
 usual is not strictly necessary. In ill-framed instru- 
 ments, limitations of personalty are sometimes made to 
 two persons, " and the sur\avor of them, and the exe- 
 cutors and administrators of such sur-savor." If, how- 
 ever, the persons are simply made joint owners, the law 
 will be sufficient of itself to carry the property to the 
 survivor. Bonds and covenants, when intended to be 
 given or made to two or more jointly, are in like manner 
 usually given or made to the obhgees or covenantees, 
 their executors and administrators ; or if the subject- 
 matter be assignable, to them, their executors, adminis- 
 trators and assigns. But when entered into with two 
 or more persons, bonds or covenants cannot, as respects 
 the obligees or covenantees, be joint or several, at their 
 election, for one and the same cause ; for otherwise the 
 court woidd be in doubt for which of them to give judg- 
 ment {i). And whether a covenant be joint or several 
 depends much more upon the subject-matter than upon 
 the words employed. If each of the covenantees has a 
 separate interest, each may have a separate cause of 
 action, and the covenant will accordingly in such a 
 case be several, though expressed to be made with the 
 covenantees jointly and severally (j ). But if each of the 
 covenantees has not a separate cause of action, all of 
 them must concur in suing upon the covenant, even 
 although it be expressed to be made with some of them, 
 " and as a separate covenant" with the others (A) ; for 
 if aU may sue, all must (J). 
 
 Joint bonds 
 and covenants. 
 
 Joint or 
 several. 
 
 (i) 5 Rep. 19 a; 1 East, .501. 
 
 {j) 5 Rejj. 19 a; 1 Wms. Saund. 
 155 a, n. (1). 
 
 (Ji) Sling sh/s case, 5 Rep. 18b; 
 Anderson v. Martindale, 1 East, 
 497 ; Foley t. Adderibroolic , 4 Q. 
 
 B. 197; Hopkinson v. Lee, 6 Q. 
 B. 964 ; Bradburne v. BotfieU, 
 14 Mee. & Wels. 559; Wakefeld 
 v. Brown, 9 Q. B. 209; Eeightley 
 V. Watson, 3 Exch. Rep. 716. 
 {I) 4 Q. B. 208; Wetherellv.
 
 OF JOINT OWNERSHIP AND JOINT LIABILITY. 309 
 
 An exception to the riglit of survivorship between Partners in 
 ... ..1 o , '.TT trade, no siir- 
 
 jomt owners occurs m the case oi partners m trade, in vivorship of 
 
 this case the law, in order to the encourao-ement of ^^oses m pos- 
 
 , . session. 
 
 commerce, vests in the executors or administrators of 
 
 a deceased partner, the share of the deceased in all 
 personal chattels in possession, such as merchandize or 
 ships, which were the joint property of the partner- 
 ship (m). But this rule does not extend at law to choses Othermse as 
 ill action, which must accordingly be sued for in the action at It 
 
 aw. 
 
 name of the survivor (?i). In equity, however, the share But not in 
 of the deceased partner, both in the choses in possession ^^i"'*^)"- 
 and in action belonging to the partnership, devolves on 
 liis executors or administrators. The consequence is 
 that, though the choses in action must be sued for by 
 the surviving partner, he will be a trustee of the share 
 of the deceased partner for his executors or adminis- 
 trators (o). The same rule is applied in equity even to Real estate 
 real estate purchased for the pm-poses of a trading partnerehip"^ 
 partnership (/>), and conveyed to the partners as joint purposes. 
 tenants in fee. On the decease of any of them, equity 
 holds the survivors to be trustees of the share of the 
 deceased for his executors or administrators as part of 
 his personal estate (jj). 
 
 Indeed, as a general rule, joint OAvnership is not Joint o^vner- 
 
 ship not 
 
 Lanfiston, 1 Exch. Rep. G34 ; (jj) liandall y. Bandall, 7 Sim. 
 
 Pugh V. Stringjicld, 3 C. B., 271. 
 
 N. S. 2. {q) PhllUps V. Phillips, 1 My. 
 
 (m) Co. Litt. 1S2 a; A'empe Y. & Keen, 649, G63 ; Brooiti v. -;;?^1^,^^_^ ^ 
 
 Andrews, 3 Lev. 290; Rex v. Col- Broom, 3 My. & Keen, 443 ; - ' " 
 
 lector of Customs, 2 Man. & Sclw. 3Iorris v. Rearsley, 2 You. & *^^ '' ^"^~r ^ 
 
 12Z;BucUeyY.Barher,QY.yjch.. Coll. 139; Bligh v. Brent, 2 ^ 
 
 Eep. 1G4. You. & Coll. 258; Houghton v. "^ ^^^-' 
 
 (rt) Martin v. Crompe, 1 Lord Houghton, 11 Sim. 491; Ciistance 
 
 Raym. 340; S. C, 2 Salk. 444 ; 2 v. Bradshaw, 4 Hare, 315, 322 ; 
 
 Wms. Saund. 117 b, n. (2). Darhy v. Darhj, 3 Drew. 495 ; 
 
 {o) Jcffercgs v. Small, 1 Vera. see Coohson v. Cookson, 8 Sim. 
 
 217 ; Lake v. Craddoch, 3 P. 529. 
 Wms. 158. 
 
 W.P.P. X
 
 306 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 favoured in 
 equity. 
 
 No sundvor- 
 ship in equity 
 of joint secu- 
 rities. 
 
 favoured in equity, on account of the liglit of survivor- 
 ship which attaches to it(/-). If therefore two persons 
 advance money by way of mortgage or otherwise, and 
 take the security to themselves jointly, and one of them 
 die, the survivor will be a trustee in equity for the re- 
 presentatives of the deceased, of the share advanced by 
 him (s). And when the intention is that the sur%avor 
 should receive the whole, a declaration should be in- 
 serted that his receipt alone shall be a sufficient dis- 
 charge for the money secured (t). 
 
 Ownership in An ownersliip in common (or, as it is usually styled 
 common. ^^ analogy to real estate, a tenancy in common) of 
 
 chattels may arise either from the severance of a joint 
 ownership, or from a gift to two or more to hold in 
 common (?<). As, however, a chose in action is inalien- 
 able at law, a joint ownership of a chose in action cannot 
 be severed at law by either, or even by both, of the joint 
 owners. Thus in case of the bankruptcy of a joint 
 creditor, by Avhich all his estate becomes vested in his 
 assignees, an action against the debtor must be brought 
 in the joint names, formerly of the assignees, and now 
 of the creditors' trustees and the other joint creditors (r). 
 And if two joint creditors should become bankrupt, the 
 action must be brought in the joint names, formerly of 
 the assignees, and now of the creditors' trustees of both 
 No tenancy in of them {w). A tenancy in common cannot in fact 
 law of a cliose exist at laAv of a chose in action. A. may owe 20/. to 
 in action. g. and C. jointly, or he may owe lOZ. to B. and 10/. to 
 
 C. ; but he cannot owe 20/. to B. and C. in common. 
 If each has a several cause of action, each must sue 
 
 (r) 2 Atk. 55; 2 Ves. sen. 258. 
 
 (s) Petty V. Styrvard, 1 Chan. 
 Kep. 57; 1 Eq. Ca. Ab. 290. 
 
 (#) See Principles of the Law of 
 Real Property, 342, 1st ed.; 343, 
 2nd ed.: 355, 3rd ed.; 361, 4th 
 ed.; 372, 5th ed.; 394, 6th ed.; 
 401, 7th ed.; 420, 8th ed. 
 
 (m) Litt. sect. 321. 
 
 (r) TJiomason v. Frere, 10 East, 
 41 8. See stat. 32 & 33 Vict. c. 71, 
 s. 105, and the repealed stat. 1 2 & 
 13 Vict. c. 106, s. 152, repealing 
 stat. 5 & 6 Vict. c. 122, s. 31. 
 
 (n-) See Hancock y. Heywood, 
 3 T. Rep. 4.^3.
 
 OF JOINT OWNEPvSHIP AND JOINT LIABILITY. 307 
 
 separately. In equity, however, the case is different. Othei-wise ia 
 
 Though B. and C. are joint owners at law, in equity ^^^^ ^' 
 
 they may be owners in common ; and on the decease of 
 
 either of them, his share may in equity belong to his 
 
 representatives, instead of accruing beneficially to his 
 
 companion. And with regard to letters-patent, it Letters pater. t. 
 
 appears that, even at law, they may be the subject of 
 
 an ownership in common, and that the assignee of an 
 
 undivided share may alone sue for an infringement of 
 
 that part of the patent, without joining the persons 
 
 interested in the remaining shares (a;). And one owner 
 
 in common of letters-patent can work the patent on his 
 
 own account, without the concm-rence of the others (3/). 
 
 In deciding whether a tenancy in common has been 
 
 created by deed, there is very seldom any difficulty. 
 
 But in wills, where greater indulgence is given to in- Gifts bj- will 
 
 formal words, the rule is, that any words which denote tenancy^hi*^ ^ 
 
 an intention to give to each of the legatees a distinct common. 
 
 interest in the subject of gift;, wiU be sufficient to make 
 
 them tenants in common. Thus a gift by will to two 
 
 or more persons " equally to be divided between 
 
 them " (z), or simply " between them " (a), or " in 
 
 joint and equal proportions" (Z»), or " equally" (c), or 
 
 " respectively" (d), or " to be enjoyed alike" (e), will 
 
 make such persons tenants in common, and not joint 
 
 tenants, as they would have been without the insertion 
 
 of such words. In this respect the rule is the same 
 
 (a;) Dunnicliff v. Mallet, 7 C. («) Laslihrooh v. Coch, 2 Mer. 
 
 B., N. S. 209; Walton v. Lavater, 70. 
 
 8 C. B., N. S. 162. (h) Ettriche v. Ettricke, 2 
 
 (y) Mathers v. Green, L. C, Ambl. 656. 
 
 11 Jur., N. S. 845. (c) Lewen v. Dodd, Cro. Eliz. 
 
 (2:) Blisset V. Cranmell, 1 Salk. 443. 
 
 2-2t3; PMlUjJsy. Phillips,2Y&r\i. {d) 1 Atk. 580; 1 Ves. sen. 
 
 430; 1 Eq. Ca. Abr. 292, pi. 6; 104. 
 
 1 P. Wms. 34. (e) Loveacres d. Mudge v. 
 
 BligU, Cowp. 352. 
 
 x2
 
 308 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 Owners in 
 common have 
 merely a unity 
 of possession. 
 
 No survivor- 
 ship. 
 
 whether tlie subject of tlie devise or bequest be real or 
 personal estate (/). 
 
 Owners in common of personal estate^, like tenants in 
 common of lands, have merely a unity of possession : 
 the interest of one may be larger or smaller than that of 
 the other, one having, for instance, one-tldrd, and the 
 other, two-thirds of the property. So the title need 
 not be the same, as one may have been originally a 
 joint tenant with a thii'd person, who may have severed 
 the joint tenancy by assigning his moiety to the other. 
 The right of siu'vivorship, which springs from a unity 
 of interest and title, has accordingly no place between 
 owners in common (y). 
 
 Joint liability. 
 
 Release of one 
 discharges all. 
 
 Discharge by 
 
 Bankruptcy 
 
 Act. 
 
 Connected with the subject of joint OAvnership is that 
 of joint liabiHty. Two or more persons may be jointly 
 liable to the same debt or demand. In a joint bond, 
 the obligors, according to the usual form, bind them- 
 selves, their heirs, executors and administrators jointly ; 
 and in a joint covenant, they, in like manner, covenant 
 for themselves, their hehs, executors and administrators 
 jointly. In every case of joint liability, each is hable 
 for the whole debt (A), yet they are aU, like joint owners, 
 considered as one person. They must accordingly all be 
 sued together dm-ing their joint lives {i); and a release 
 to one of them will discharge them all {J). It is, how- 
 ever, pro^dded by the Bankruptcy Act, 1869, that the 
 order of discharge of a bankrupt shall not release any 
 person who at the date of the order of adjudication was 
 a partner with the bankrupt, or was jointly bound, or 
 
 (/) See 2 Jai-m. Wills, 161 .?!^ 
 seq. 1st ed.; 211, 2nd cd.; 231, 
 3rd ed. 
 
 (g) Litt. sect. 321. 
 
 (A) 1 Bam. & Aid. 35. 
 
 (i) 1 Wms. Saund. 291 b, n. (4). 
 
 O') 2 Rol. Abr. 412 (G), pi. 4; 
 Clayton v. Kynaston, 2 Salk. 574; 
 2 Wms. Saund. 47 gg, n. (1); War- 
 micTi y. Richardson, 14 Sim. 281.
 
 OF JOINT OWNERSHIP AND JOINT LIABILITY. 309 
 
 had made any joint contract with him (k). And if any Discharge by 
 
 person iointly hable upon any simple contract shall be ^fat"te of 
 i _ J J i ... . Limitations. 
 
 discharged by the Statute of Limitations, but his co- 
 conti'actor or co-contractors shall be liable by virtue of 
 a new acknowledgment or promise, judgment may be 
 given and costs allowed against the latter person or 
 persons only (/). And if such person or persons shall 
 jjlead in abatement that the other ought to be jointly 
 sued, and it shall appear that he was discharged by the 
 statute, the issue joined on such plea shall be found 
 against such person or persons pleading the same (m). 
 The fact of one joint debtor being beyond the seas at Alienee be- 
 tlie time when the cause of action accrues, will not ^ °'^*^ ^'^'^®- 
 deprive the others of the benefit of the Statutes of 
 Limitation ; and the recovery of judgment against any 
 who were not beyond seas, will be no bar to an action 
 against the absent debtors on their return. And for 
 this purpose no part of the United Kingdom, nor the 
 Isle of Man, nor the Channel Islands, are to be con- 
 sidered as beyond seas(?z). After the decease of any After the de- 
 one ioint debtor the survivors or survivor of them may cease of one 
 '' •' joint debtor 
 
 still be sued for the whole debt, as though the deceased the survivor 
 had no share in it (o), and the estate of the deceased ^°^^^^ ^'''''^^• 
 will be discharged from all liability both at law and in 
 equity (p). So if a judgment be obtained against two 
 or more jointly, and one of them die, the estate of the 
 survivor or survivors, whether real or personal, will be 
 exclusively liable to be taken in execution ; although 
 
 (l) Stat. 31 & 32 Vict. c. 71, (n) Stat. 19 & 20 Vict. c. 97, 
 
 s. 50; mite, p. 158. The former ss. 11, 12. 
 
 enactment was stat. 21 & 25 Vict. (o) Rlcliards v. Heather, 1 
 
 c. 134, s. 163, repealing stat. 12 & Barn. & Aid. 29. 
 
 13 Vict. c. 106, s. 200, repealing {jf) Richardson v. Horton, 6 
 
 stats. 6 Geo. IV. c. 16, s. 121, and Bcav. 185; Wilmer v. Currey, 2 
 
 5 & 6 Vict. c. 122, s. 37, to the De Gex & Smale, 347; Crossley 
 
 same effect. v. Bohson, 2 De Gex & Smalc, 48(>; 
 
 (Z) Stat. 9 Geo. IV. c. 14, s. 1. Other v. Iveson, 3, Drew. 177. 
 
 (w) Sect. 2.
 
 310 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 the real estate of the deceased, having formerly been 
 bound from the date of the judgment, was until recently 
 liable to contribute equally with the real estate of the 
 survivors (§-). 
 
 Joint and 
 several lia- 
 bility. 
 
 Form of a 
 joint and 
 several bond. 
 
 Form of a 
 joint and se- 
 veral covenant. 
 
 A liability, however, may be both joint and several at 
 the same time ; and, as such a liability is more bene- 
 ficial to the creditor, it is more usual than a liability 
 which is simply joint. A joint and several bond has 
 hitherto run in this form : — " for Avhich payment to be 
 well and tndy made, we bind ourselves, and each of us, 
 and the heirs, executors and administrators of us and of 
 each of us, jointly and severally ; " or if there were a 
 larger number of obligors, say five, the better form 
 was : — "for which payment to be well and truly made, 
 we bind ourselves, and each of us, and any two, three, 
 or four of us, and the heirs, executors and administrators 
 of us, and of each of us, and of any two, three, or 
 four of us, jointly and severally." But now, as we 
 have seen (r), all mention of heirs, executors and ad- 
 ministrators may be omitted. In the case of a joint 
 and several bond, an action may be brought against all 
 the obligors, or against any one, two, three or foiu' of 
 them whom the obligee may select ; othermse he must 
 have sued either all of them jointly, or any one of them 
 singly (5). A joint and several covenant Avas usually in 
 this form : — "And the said A. B. and C. D. do hereby, 
 for themselves, their heirs, executors and administrators 
 jointly, and each of them doth hereby for himself respec- 
 tively, and for his respective heirs, executors and ad- 
 ministrators, covenant," &c.; or if there were more than 
 two covenantors, the better form was, for the reason 
 
 {q) 3 Rep. 14 b; Smarte v. 
 Edsun, 1 Lev. 30; 2 Wms. Saund. 
 51. See now stat. 27 & 28 Vict. 
 c. 112; Principles of the Law of 
 
 Real Property, p. 82, 7th ed.; 83, 
 8th ed. 
 
 00 Ante, pp. 106, 107. 
 
 (s) Per Buller, J., in Streat- 
 Jicld V. Hallidaij, 3 T. Rep. 782.
 
 OF JOINT OWNERSHIP AND JOINT LIABILITY. 311 
 
 above given, "And the said A. B., C. D., E. F. and 
 G. H., do hereby, for themselves, their heirs, executors 
 and administrators jointly, and any two or three of them, 
 do hereby, for themselves, their heirs, executors and 
 administrators jointly, and each of them doth hereby for 
 himself respectively, and for his respective heirs, exe- 
 cutors and administrators, covenant," &c. In all cases 
 of joint and several liability, each party is individually 
 liable, and may be sued alone for the whole debt, or if 
 the creditor please, he may sue them all jointly. In Release of ouc. 
 consequence of the joint liability, a release of one of the 
 debtors will discharge them all ; and, as they are all dis- 
 charged, the creditor will thenceforth be unable even to 
 sue any of them severally {t). As, however, the several 
 liability is distinct from the joint, it is competent to the 
 creditor, in releasing one of the debtors, expressly to 
 reserve his remedy against the others ; and in this case, 
 each of the remaining debtors ^-ill continue severally 
 liable (<<). So he may covenant with one of the debtors Covenant not 
 never to sue him ; and in such a case he will retain his 
 remedy against the others severally (v). On account of 
 the several liability, the estate of a person Avho has 
 become jointly and severally boiuid is not discharged by 
 his decease in the lifetime of his co-debtors, but still 
 remains liable to the entire debt as respects the creditor, 
 and to a proportion of it as respects the sur\dving co- 
 debtors. It has been recently enacted, that no co- Payment by 
 contractor or co-debtor, Avhether liable jointly only or 
 jointly and severally, shall lose the benefit of the Statutes 
 of Limitation by reason only of pajTnent of any prin- 
 
 (i^) 2 Rol. Abr. 412 (G), pi. 5; 807; TJiompson v. Lack, 3 C. B. 
 
 Clayton v. Eynaston, 2 Salk. 540; Kearsley v. Cole, 16 Mee. 
 
 574; Nicholsons. Rev ill, ^ AdiOl. & Wels. 136; Price v. Barker, 
 
 & Ell. 683; S. C. Nov. & Man. Q. B., I Jur., K S. 775; 4 E. & 
 
 192; Ei-ans y. Bremriflge, 2 KsLj B. 760; Willis v. Be Castro, 4 
 
 & John. 174; affirmed, 8 De Gex, C. B., N. S. 216. 
 M. & G. 100. (r) Lacy v. Kynaston, 2 Salk. 
 
 (w) Ex parte Gifford, 6 Yes. 575; 2 Wms. Saund. 48, n. (1).
 
 312 
 
 OF PEESONAL ESTATE GENERALLY. 
 
 Liability of 
 partners. 
 Joint at law. 
 
 Dormant 
 partner. 
 
 Joint and 
 several lia- 
 bility in 
 eqnity. 
 
 cipal, interest or other money by any otlier co-contractor 
 or co-debtor (tv). 
 
 One of the most usual means of incm-ring a joint and 
 several liability is the entering into a partnership. At 
 law the Hability of partners is joint only, as to debts 
 incvm-ed by the partnership ; so that they ought all to 
 be joined as defendants to an action at law for recovering 
 any such debt (x). But a dormant partner, whose name 
 may or may not be known, may either be joined or not 
 at the pleasure of the creditor (y) ; imless the contract 
 be under seal, in wliich case, as the deed is itself the 
 contract, and not merely evidence of it (z), those only 
 can be sued on it who have sealed and delivered it. In 
 equity, however, in favour of creditors, all partnership 
 debts are considered to be both joint and several. On 
 the decease of a partner, therefore, his estate will be 
 liable in equity to all the partnership debts incmTcd 
 pre\'ious to his decease («); and the creditors may, if 
 they please, resort in the first instance to the estate of 
 the deceased, leaving it to his representatives to recover 
 from the surviving partners their share of the debts (b). 
 It seems, however, that in analogy to the rule in bank- 
 ruptcy, next stated, the separate creditors of the deceased 
 partner would first be paid in fall out of the estate, before 
 its application to the pajmient of any of the debts of the 
 partnership (c). 
 
 (w) Stat. 19 & 20 Vict. c. 97, 
 s. 14, not retrospective; Jackson 
 V. Wofllley, 8 E. & B. 784. 
 
 (,r) See Pace t. Shute, 5 Burr. 
 2G11; 1 Wms. Sauncl. 291 b, n. 
 
 (4). 
 
 (y) De Ihndort v. Sarmders, 
 1 Barn. & Adol. 398; Beckham v. 
 Dralie, 9 Mee. & Wels. 79; 11 
 Mee. & Wels. .^1 5. 
 
 (z) Ante, p. 88. 
 
 {a ) Bevaynes v. Nolle, 1 Meriv. 
 529, 563 ; 2 Russ. & My. 495. 
 
 (Jj) Wilkinson v. Henderson, 1 
 M. & Keen, 582; Braithn-aite V. 
 Britain, 1 Keen, 206; Tliorpe y. 
 Jackson,2Y(m. & Coll. 553; Way 
 V. Basset, 5 Hare, 55. 
 
 (c) Gray y. Chisn-ell, 9 Ves. 
 118; Brown v. Weathcrhy, 12
 
 OF JOINT OWNERSHIP AND JOINT LIABILITY. 313 
 
 In tlie case of the bankruptcy of a trading partner- Bankruptcy of 
 ship, the rule which is ahvays followed in the payment ner&^hip.^' ^^^^ 
 
 of the debts is, that the ioint assets of the firm are in the Joint and 
 
 5 J Til several debts. 
 
 first place liable to the partnership debts ; and that the 
 
 separate estate of each partner is in the first place liable 
 to his separate debts, which must be paid in full out 
 of such separate estate, before any of it can be applied 
 towards payment of the debts of the partnership {d). 
 Any creditor of a partnership may however be a peti- 
 tioning creditor in respect of his debt, on the bankruptcy 
 of any individual member of the fu'm ; and in that case 
 he wiU be entitled to a dividend on his debt out of the 
 estate of such bankrupt .rateably with his separate cre- 
 ditors (e). And the other partnership creditors may 
 prove their debts on such separate bankruptcy in order 
 to have a vote at any meeting of creditors ; but they 
 can receive no dividends till the separate creditors have 
 been paid in full (/). But if any creditor has a joint 
 and several security, which would enable him, at law, 
 to sue any partner severally, he may, at his option, 
 prove his debt against the separate estate of any such 
 partner instead of against the firm jointly (ff) ; but he 
 cannot prove against both together (h). The Bank- 
 ruptcy Act, 1869, provides that where joint and separate 
 properties are being administered, di\-idends of the joint 
 
 Sim. 6, 10; Ridgway v. Clare, Ves. G04; Ex parte Detastet, 
 
 19 Beav. Ill; Mluttingstall v. 17 Ves. 247; stat. 32 & 33 Vict. 
 
 Grocer, M. R., 10 W. R. 53 ; c 71, s. 100. 
 Lodge T. PritcTiard, i Giflf. 294. (/) Stat. 82 & 33 Vict. c. 71, 
 
 {d) Ux 2}arte Mfon, 3 Yes. 238, s. 103. A similar provision was 
 
 241 ; Ux parte Kensington, 14 contained in stat. 12 & 13 Vict. 
 
 Ves. 447; Ex parte Pealie, 2 c. lOG, s. 140, repealing stats. 
 
 Rose, 54; Ex parte Harris, 1 6 Geo. IV. c. 16, s. G2, and 5 & G 
 
 Mad. 583; Ex jyarte Janson, 3 Vict. c. 122, s. 39, to the same 
 
 Mad. 229 ; Be Plummer, 1 Phil. efCect. 
 
 56; Ex parte Kennedy, 2 De {g) Ex parte Hay, I?, Yes. i. 
 
 Gex, M. & G. 228; Ex parte (A) Ex parte Be can, 10 Ves. 
 
 Topjnng, L. C., 11 Jur., N. S. 210. 107; Ex jun-te Husbands, 2 Glyn 
 
 (p) Ex parte Acherman, 14 & Jam. 4.
 
 314 
 
 OF PERSONAL ESTATE GEXERALLY. 
 
 and separate properties shall, subject to any order to the 
 contrary that may be made by the court on the applica- 
 tion of any person interested, be declared together, and 
 the expenses of and incident to such dividends shall be 
 fairly apportioned by the trustee between the joint and 
 separate properties, regard being had to the work done 
 for and the benefit received by each property (i). The 
 rule that the joint assets of the firm are in the fhst place 
 liable to the partnership debts applies equally where 
 there has been a change in the partnership prcAaous to 
 the bankruptcy. The stock handed over to the new firm 
 is primarily liable to all the debts incun-ed by them ; 
 and the creditors of the old firm must first have re- 
 com-se' to such assets, if any, as may still belong to the 
 old fii-m, and cannot touch the property of the new 
 partnership till all its creditors have been fully paid (k). 
 The addition or withdrawal of a partner to or from a 
 firm in difficulties may thus occasion serious detriment 
 to its creditors. 
 
 Dormant 
 
 partner. 
 
 It has recently been decided that the share of a 
 dormant partner in the assets of the partnership is not 
 goods in the order or disposition of the acting partner 
 with the consent of the true owner thereof, so as to pass 
 to his assignees, or now to the trustee for his creditors, in 
 the event of his bankruptcy (/). 
 
 Ostensible 
 partner. 
 
 The hability to the debts of a partnership may be in- 
 curred by being an ostensible partner, although no share 
 of the profits be received. Thus, if a person allow his 
 uame to be used as one of a firm (m), or to be painted 
 
 (/) Stat. 32 & 33 Vict. c. 71, 
 s. 104. See the repealed stat. 2i 
 & 25 Vict. c. 134, s. 177. 
 
 (A) Ex parte Freeman, 'Buck, 
 471; Ex parte Fry, 1 G1}ti & 
 Jam. 96; Ex parte Janson, 3 
 
 Mad. 229 ; Ex parte Sprague, 4 
 De Gex, Mac. & Gord. 866. 
 
 (Z) Reynolds v. Boivley, L. E.., 
 2 Q. B. 474; 8 Best & Smith, 
 406; see ante, p. 54. 
 
 {m) Parkin \. Carruthers, 3
 
 OF JOINT OWNERSHIP AND JOINT LIABILITY. 315 
 
 over the door of a shop {n),h.e will be liable to the debts 
 
 of the firm ; for credit maj thus be given to the firm on 
 
 the strength of his character as a solvent person. On Retiring part- 
 
 the same principle, if a person have once been known to ^^^' 
 
 be a partner in the firm (o), his liabilitv to its debts will 
 
 continue after his withdrawment, unless he takes proper 
 
 means to inform the creditors that he has ceased to be 
 
 a partner (^j)). But the circumstance of the name of a Deceased 
 
 deceased partner remaining in the firm will not render ^^^ ^^^' 
 
 Ins estate liable to the debts of the survivors (q). And if Executor car- 
 
 a trader direct by his will that his trade shall be carried '''"'= °'' *^'^*^^' 
 
 on by his executor, the executor, Avho ostensibly candies 
 
 on the trade, wiU be liable for the debts he may thereby 
 
 incur as fully as if he were canying on the trade for his 
 
 own benefit (r); but so much only of the estate of the 
 
 testator will be liable to such debts as he may have 
 
 directed to be employed in the business (s). The rest 
 
 of the testator's estate is held to be exempt, on the 
 
 ground of the great inconvenience which would arise 
 
 ft'om holding it liable after its distribution amongst the 
 
 legatees. But in stiict principle, this exemjDtion is at 
 
 variance with the rule next stated, that a liabilit}" is 
 
 incuiTcd by any participation in the profits, Avhich ride, 
 
 however, has now, as Ave shall presently see, been abo- 
 
 hshed by act of parliament. 
 
 Ils^. 2i:8; Yoimff Y. Axtell, cited 614; Webster v. Webster, 3 
 
 2 H. Black. 242. Swanst. 490, n. 
 
 (») See WIvery. Hrnnble, IG {r) 10 Ves. 119. And at law 
 
 East, 169, 174. he will be liable, though his name 
 
 (o) Erans \. Drvmmoyul, 4 do not appear; Wtghtman v. 
 
 Esp. 89: Brooke v. Enderby, 2 Townroe, 1 Mau. & Selw. 412. 
 
 Brod. & Bing. 70; 4 Moore, 501 ; («) Ex parte Garland, 10 Ves. 
 
 Carter v. Whalley, 1 Bam. & HO; Ex parteliicha7'dso)i,Bxick, 
 
 Adol. 11. 202; Cutbush \. Cutbusli, 1 Bear. 
 
 {p) Godfrey t. Turnbnll, 1 184; Be ButterfieU, 11 Jurist, 
 
 Esp. 371; M'lver \. Humble, 16 955; Kirhman r. Booth, 11 Beav. 
 
 East, 169. 273; M'Neillie v. Acton, i De 
 
 (j) VulUaviy t. Noble, 3 Mer. Gex, M. & G. 744.
 
 316 
 
 or PERSOXAL ESTATE GENERALLY. 
 
 Participation 
 in profits. 
 
 A liability to tlie debts of a partnership was until 
 recently incurred by a participation in the profits, 
 although the circumstance of such participation might 
 be unkno^vn to the creditors (t). It was enough that the 
 business was carried on on Z»e7io//'o/ the participator (^^). 
 Thus, if a person placed money in a partnership (x), or 
 left it there on retiring (i/), Avith a stipulation to have 
 a compensation for it, under whatever name, subject to 
 abatement or enlargement as the profits might fluctuate, 
 he was liable as a partner. If, however, he left no 
 money in the concern, but was to receive a compensation 
 for his ser\aces, or otherwise, a nice distinction was then 
 drawn betAveen taking a share of the profits as such 
 and taking a per-centage upon, or a salary varying 
 with, the profits. He Avho took a share of the profits 
 as such was liable as a partner (z) ; but he who took an 
 equivalent in the shape of per-centage or salary, though 
 varying with the profits, escaped the liability (a). And 
 if a trading concern were carried on for the benefit of 
 creditors, the creditors were not, fi'om the mere circiun- 
 stance of their debts being paid out of the profits, liable 
 as partners for the debts incm-red (b). 
 
 Act to amend 
 the law of 
 partnership. 
 
 A beneficial change has now been made by the act to 
 amend the law of pai-tnership (c). This act provides (d), 
 that the advance of money by way of loan to a person 
 
 (t) Bechliam v. Drake, 9 Mee. 
 & Wels. 79; 11 Mee. & Wels. 
 815. 
 
 (?/) Kilshan- v. Jukes, 3 B. & 
 S. 8i7. 
 
 (a;) Grace v. Smith, 2 Wm. 
 Black. 998, 1001; Waiigk v. 
 Carver, 2 H. Black. 235. 
 
 (y) Re Colheck, Buck, 48. 
 
 {z) Ex ijarte Roivlandson, 1 
 Rose, 89, 91 ; Barry v. JVesham, 
 3 C. B. 641; Heyhoe\. Burge, 9 
 
 C. B. 431 ; see, however, Rawlin- 
 son V. Clarke, 15 Mee. & Wels. 
 292. 
 
 (^a) Ex iJarte Hamper, 17 Ves. 
 403; Pott V. Etjton, 3 C. B. 32; 
 Stacker v. Brockelbank, 3 Mac. 
 & Gord. 250. 
 
 (ft) Wheatcroft v. Bickman, 
 H. of L., 9 C. B., N. S. 47. 
 
 (c) Stat. 28 & 29 Vict. c. 86, 
 5th July, 1865. 
 
 {d) Sect. 1. ..
 
 OF JOINT OWNERSHIP AND JOINT LIABILITY. 317 
 
 engaged or about to engage in any trade or undertaking, 
 upon a contract in writing with such 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 such trade or undertaking, shall not 
 of itself constitute the lender a partner with the person 
 or persons carrying on such trade or undertaking, or 
 render him responsible as such. And no contract for 
 the remuneration of a servant or agent of any person 
 engaged in any trade or undertaking, by a share of the 
 profits of such trade or undertaking, shall of itself render 
 such servant or agent responsible as a partner therein, 
 nor give him the rights of a partner (e). And no per- 
 son, being the widow or child of the deceased partner 
 of a trader, and receiving by way of annuity a portion 
 of the profits made by such trader in his bvisiness, shall 
 by reason only of such receipt be deemed to be a partner 
 of or to be subject to any liabilities incurred by such 
 trader (^f ). And no person receiving by way of annuity 
 or otherwise a portion of the profits of any bvisiness, in 
 consideration of the sale by him of the goodwill of such 
 business, shall, by reason only of such receipt, be deemed 
 to be a partner of or be subject to the liabilities of the 
 person carrying on such business (^). But in the event 
 of any such trader as aforesaid being adjudged a bank- 
 rupt, or taking the benefit of any act for the relief of 
 insolvent debtors, or entering into an arrangement to 
 pay liis creditors less than twenty shillings in the pound, 
 or dying in insolvent circumstances, the lender of any 
 such loan as aforesaid shall not be entitled to recover 
 any portion of his principal, or of the profits or interest 
 payable in respect of such loan ; nor shall any such 
 vendor of a o-oodwiU as aforesaid be entitled to recover 
 any such profits as aforesaid until the claims of the 
 
 (e) Sect. 2. {g) Sect. 4, 
 
 (/) Sect. 3.
 
 318 
 
 OV PERSONAL ESTATE GENERALLY 
 
 other creditors of the said ti-ader for vahiable consi- 
 deration in money or money's worth have been satis- 
 fied {h). 
 
 Each partner 
 liable to acts 
 of the other in 
 the ordinary 
 course of busi- 
 ness. 
 
 Notice to one 
 partner is no- 
 tice to all. 
 
 When the relation of partners has been established 
 between two or more persons, either ostensibly or by 
 participation in profit, each incurs liability from the 
 acts and dealings of the other in the ordinary course of 
 business. For any one partner may buy, sell (i) or 
 pledge goods (/e) ; draw(Z), accept(?w) orindorse(??) bills 
 of exchange and promissory notes; give guarantees (o), 
 receive moneys (|?) and release or compound for debts (5-) 
 in the name (r) and on the account of the firm, in the 
 ordinary course of business. Each partner is also an- 
 swerable for the fraud of his co-partner in any matter 
 relating to the business of the partnership ( s). And in 
 like manner notice of any matter relating to the part- 
 nership, if given to one partner, is constructively notice 
 to them all (t). And any agreement between the part- 
 ners, by which any one of them may be restrained from 
 doing any act to pledge the credit of the firm, though 
 binding as between themselves, will not be binding on 
 
 (70 Sect. 5. 
 
 (i) Hi/at V. Hare, Comb. 383; 
 Lamberfs case, Godbolt, 244. 
 
 (Ji) Reid V. Hollimhead, 4 B. 
 & Cress. 867. 
 
 {I) Smitli V. Jarvis, 2 Ld. Eay- 
 mond, 1484; Re Clarke, Ex imrte 
 Buckley, 14 Mee. & Wels. 469 ; 
 1 Phil. 562. 
 
 (m) Pinknerj v. Hall, 1 Salic. 
 126; 1 Ld. Eaym. 175; Lloyd \. 
 Ashhy, 2 B. & Adol. 23. 
 
 {n-)Srvan y. Steele, 7 East, 210; 
 Vere v. Ashhy, 10 Bam. Si. Cress. 
 288. 
 
 (0) Ex parte Gardom, 15 Ves. 
 
 286; see Halesham v. Youn^r, 5 
 Q. B. 833. 
 
 (jj) Bii^ff V. East India Com- 
 pany, 15 Ves. l'J8, 213. 
 
 (q)Per Lord Ken3^on, 4 T. Rep. 
 519; i?er Best, C. J., 10 Moore, 
 393. 
 
 (»•) Kirk V. Blurton, 9 Mee. & 
 Wels. 284. 
 
 (s) Willet V. Chambers, Cowp. 
 814 ; Stone v. Marsh, 6 Bara. &. 
 Cress. 551 ; Larell v. Hicks, 2 
 You. & Coll. 481; Blair \. Brom- 
 ley, 5 Hare, 542; 2 Phil. 354. 
 
 (t) Per Lord Ellenborough, 1 
 Mau. & Selw. 259.
 
 OF JOINT OA^^SfERSHIP AND JOINT LIABILITY. 319 
 
 any creditor ( z^ "^^'lio ^^^J not have notice of'it(.r). If, Transartions 
 , , ., ,-.i T not in the ordi- 
 
 liowever, the transaction be not m the ordinary course ^^^^^ course of 
 
 of the business of the partnership, the other partners business. 
 will not be liable as such in respect of it. Thus one 
 partner cannot bind the firm by a submission to arbi- 
 tration (y), or by confessing- a judgment (z) ; and one 
 partner has ordinarily no authority to execute a deed 
 in the names of the others so as to bind the partner- 
 ship (a). So a farmer carrying on his business in part- 
 nership with another would not be liable on a bill of 
 exchange drawn by his partner in the name of the 
 partnership (J) ; neither would a solicitor be liable on 
 a bill drawn by his partner in the name of his firm, 
 though given to secure a partnership debt(c) ; for bill 
 transactions form no part of the ordinary business of 
 either farmers or solicitors. Again, there is no right or Directors of 
 power implied by law in any of the directors of a joint- companies. 
 stock company to bind the company by dra^ving or 
 accepting bills .or notes («i); and in like manner notice 
 of any matter relating to the business of a joint-stock 
 company given to any member, even a director, is not 
 constructive notice to the company itself (e). For joint- 
 stock companies are essentially different from ordinary 
 partnerships. It is not necessary that the directors 
 shoidd have any other power to bind the company by 
 
 Qit) WaugTi v. Carver, 2 H. 3 C. B. 742. 
 
 Black. 2iib; South Carolina Banh (a) Harrison v. Jnclison, 7 T. 
 
 V. Case, 8 Barn. & Cress. 427; Rep. 207; see Burn v. Bitrn, 3 
 
 Hawken t. Bourne, 8 Mee. & Ves. 573, 578. 
 
 Wels. 703, 710. (h) Per Littledale, J., 10 Bam. 
 
 {x) Minnit v. Whinenj, 5 Bro. & Cress. 138. 
 
 Pari. Cas. 489; Ux pa7'te Bar- (c) Iledleij v. Bainhrirlge, 3 
 
 lington Bistrict Joint Stock Q. B. 316. 
 
 BanMng Comjjany, In re Riches, {d) BicMnson v. Valpg, 10 
 
 L. C, 11 Jur., N. S. 122. See Barn. & Cress. 12S iBraniah v. 
 
 also Hogg v. Skeen, 18 C. B., N, Roberts, 3 N. C. 963. 
 
 S. 426. (e) Pon-les v. Page, 3 C. B. 
 
 (y) Stead v. Salt, 3 Bing. 101; 16 ; Martin v. Sedgwick, 9 Beav. 
 
 S. C, 10 J. B. Moore, 389. 333. 
 
 (z) Hamhidge v. Be la Cronee,
 
 320 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 New enact- 
 ment. 
 
 Shareholders 
 in joint-stock 
 companies. 
 
 Provisional 
 committee- 
 man. 
 
 bills or notes tlian such as may be conferred on tliem 
 by the charter or articles of association (/ ). And the 
 business of such companies is always carried on at an 
 office for the purpose, and is not, lUvC that of ordinary 
 partnerships, confided to any one individual member. 
 The Companies Act, 1862, now pro^-ides, that a pro- 
 missory note or bill of exchange shall be deemed to 
 have been made, accepted or indorsed on behalf of any 
 company under that act, if made, accepted or indorsed 
 in the name of the company by any person acting under 
 the authority of the company, or if made, accepted or 
 indorsed by or on behalf or on account of the company 
 by any person acting under the authority of the com- 
 pany {gy 
 
 The liability of a shareholder in a joint-stock com- 
 pany to the debts of the company has been already 
 noticed. It varies, as we have seen (A), according as 
 the company is incorporated with unlimited liability or 
 with liability limited by shares or by guarantee. The 
 mere circumstance, however, of a person allowing his 
 name to be pubhshed as a pro\dsional committee-man 
 of a projected joint-stock company does not confer on 
 the sohcitor or secretary of the intended company, or 
 any one else, impHed authority to pledge the credit of 
 such person for goods supplied to the company, or work 
 done on its account (z). For to agree to become a 
 member of a committee is merely to agree to become 
 one of a body, to whom others have committed a par- 
 ticular duty, and does not constitute an agreement to 
 share with the other members of that body in profit or 
 loss, which is the characteristic of a partnership (k). 
 
 {f) Balfour v. Ernest, 5 C. B., 
 N. S. 60L 
 
 ig) Stat. 25 & 26 Vict. c. 89, 
 s. 47; and see as to other contracts, 
 Stat. 30 & 31 Vict. c. 131, s. 37, 
 ante, p. 227. 
 
 (A.) Ante, p. 228. 
 
 (/) Reynell v. Lewis, 15 M. & 
 W. 511; Barker y. Stead, 3 C. B. 
 946; Bailey v. Macaulay, 13 Q. 
 B. 815. 
 
 [It.) 15 Mee. & Wels. 529.
 
 ( -^21 ) 
 
 CHAPTER III. 
 
 OF A WILL. 
 
 All kinds of personal property may be bequeatlied by Growth of 
 will. This right, in its present extent, has been of very ^fjj^axy alien- 
 gradual and alniOvSt imperceptible growth ; for anciently, ation. 
 by the general common law, a man who left a wife and 
 children could not depri^'e them by his Avill of more than 
 one equal third part of his personal property. If, how- 
 ever, he left a wife and no children, or children and no 
 wife, he was then enabled to dispose of half, leaving tlie 
 other half for the wife or for the children (a). This 
 ancient rule, however, gradually became subject to many 
 exceptions, by the customs of particular places, until the 
 rule itself took the place of an exception and became 
 confined to such places as had a custom in its favour. 
 Tliese places, in later times, were the province of York, 
 the principality of Wales, and the city of London ; as 
 to all W'hich places, a general power of testamentary 
 disposition was conferred by acts of parliament of 
 William and Mary, Anne and George I. {b). And now", 
 by the act for the amendment of the laws vnth respect 
 to wills (c), every person of full age is expressly em- 
 powered to bequeath by his will, to be executed as 
 required by the act, all personal estate to which he shall 
 be entitled, either at law or in equity, at the time of his 
 decease. 
 
 (a) 2 Black. Com. 492; Wil- York; stat. 7 & 8 Will. III. c. 38, 
 liams on Executors, pt. 1, bk. 1, for Wales; and stat. 11 Geo. 1, 
 ch. 1. See also 1 C. P. Cooper's c. 18, for Loudon. See 2 Bl. 
 Reports, p. 539. Com. 493. 
 
 (b) Stat. 4 & 5 Will. & Mary, (c) Stat. 7 Will. IV. & 1 Vict. 
 c. 2, explained by stat. 2 & 3 c. 26, s. 3. 
 
 Anne, c. 5, for the province of 
 
 W.P.P. Y
 
 322 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 Age at which 
 a will of per- 
 sonal estate 
 might be 
 made. 
 
 Ko will of a 
 minor now 
 valid. 
 
 The ecclesiastical courts, as we shall hereafter see, 
 very early acquired the right of determining as to the 
 validity of wills of personal estate ; and, in the exercise 
 of this right, they generally followed the rules of the 
 civU law. By this law males at the age of fourteen, 
 and females at the age of twelve, were allowed, if of 
 sufficient discretion, to make a testament (<^) ; and the 
 same rule, accordingly, prevailed in this country with 
 respect to wills of personal property {e), although, by 
 some authorities, seventeen and even eighteen was said 
 to be the proper age (f). The act for the amendment 
 of the laws with respect to wills, has, however, now 
 made the law uniform with respect to all wills, whether 
 of real or of personal estate, and has enacted that no 
 will made by any person under the age of twenty-one 
 years shah be valid ((/). 
 
 ]Sruncupativ( 
 will. 
 
 Statute of 
 Frauds. 
 
 No witness 
 formerly re 
 quired to a 
 of personal 
 estate. 
 
 will 
 
 Personal property was anciently of so little account 
 that a will of it might be made by word of mouth, if 
 proved by a sufficient number of witnesses, as well as by 
 MT-iting ; and a will made by word of mouth was termed 
 a nuncupative testament (A ). By the Statute of Frauds, 
 however, a nuncupative testament, where the estate 
 bequeathed exceeded the value of thirty pounds, was 
 surrounded by so many requirements as to cause its 
 complete disuse {i). But no pro^asion was made for 
 guarding the execution of a written A\ill of personal 
 estate ; although by the same statute (A) a A\dll of real 
 estate was required to be attested by tlu-ee or four Avit- 
 nesses. Ko attestation, therefore, was required to a 
 will of personal estate, nor was it even necessary that 
 
 12, S. 1; 
 
 (^d) Inst. lib. 2, tit 
 Dig. lib. 28, tit. 1, s. o. 
 
 (e) 2 Bl. Com. 497. 
 
 (/) Co. Litt. 89 b, n. (6). 
 
 (g) Stat. 7 Will. IV. & 1 Vict. 
 c. 26, s. 7. 
 
 (A) Wentworth's Executors, 1 1 
 
 et seq.; Williams on Executors, 
 pt. 1, bk. 2, ch. 2, s. 6. 
 
 (i) Stat. 29 Car. IL c. 3, ss. 19 
 — 21, explained by stat. i Anne, 
 c. 16, s. 14. 
 
 (A) Sect. 5.
 
 OF A WILL. 323 
 
 such a will should be signed bj the testator. Thus, in- 
 structions for a will committed to WTiting, given by a 
 person who died before the instrument could be for- 
 mally executed, though such instructions were neither 
 reduced into writing in the presence of the testator, nor 
 even read over to him, have been held to operate as 
 fidly as a will itself (Z). It was, however, pro\dded by 
 the Statute of Frauds, that no will in writing of per- 
 sonal estate shoidd be repealed or altered by word of 
 mouth only, except the same were, in the life of the 
 testator, committed to writing, and, after the writing 
 thereof, read unto the testator, and allowed by him, 
 and proved to be so done by tlu-ee witnesses at the 
 least (m). 
 
 By the recent act for the amendment of the laws with New enact- 
 respect to wiUs, every will of personal estate must now ^ft^esses now 
 be in Avriting, and signed at the foot or end thereof by requued. 
 the testator or by some other person in his presence and 
 by his direction ; and such signature shall be made or 
 acknowledged by the testator, in the presence of two 
 or more Avitnesses present at the same time ; and such 
 witnesses shall attest and shall subscribe the will in the 
 presence of the testator (w). The act, in fact, requires 
 the same mode of execiition and attestation to every 
 will, whether the property be real or personal. But an Exception in 
 exception is made in favour of soldiers being in actual dterTaud sea- 
 military service, that is, on an expedition (o), and of men. 
 mariners and seamen, being at sea, who may dispose of 
 their personal estate as they might have done before the 
 making of the act (/>) ; a similar exception was contained 
 
 (J) Carey v. Asltew, 2 Bro. C. 169, 4tli ed.; 175, 176, 5th ed.; 
 
 C. 58; S. C. 1 Cox, 241. 183, 184, 6tli ed.; 187, 7th ed. ; 
 
 (m) Stat. 29 Car. II. c. 3, s. 22. 196, 197, 8th ed. 
 
 («) Stat. 7 Will. IV. & 1 Vict. (o) Drnmmond y. Parish, 3 
 
 c. 26, s. 9, explained by stat. 15 & Curt. 522. 
 
 16 Vict. c. 24. See Principles of {j}) Stat. 7AYilI. IV. & 1 Vict. 
 
 the Law of Real Property, 168, c. 26, s. 11. 
 
 T 2
 
 324 
 
 OF PERSONAL ESTATE GEXERALLY. 
 
 Seamen in the 
 royal navy 
 and marines. 
 
 Merchant sea- 
 men. 
 
 in the Statute of Frauds {q). The wills of soldiers on an 
 expedition may accordingly be made by an unattested 
 writing, or by a mere nuncupative testament or decla- 
 ration of their will by word of mouth, made before a 
 sufficient number of witnesses. But the wills of petty 
 officers and seamen in the royal navy, and of marines 
 and non-commissioned officers of marines, so far as 
 relates to any wages, pay, prize money or other monies 
 payable by the admiralty, are required by act of parlia- 
 ment (r) to be executed in the presence of and to be 
 attested by a commissioned officer, or certain other 
 officers or persons mentioned in the act ; and the wills 
 of such persons are also guarded by other requisitions 
 in order to prevent their being imposed upon. And by 
 the Merchant Shipping Act, 1854, it is now provided 
 that the Board of Trade may, in its discretion, refuse 
 to pay or deliver the wages or effects of any deceased 
 merchant seaman to any person claiming to be entitled 
 thereto under any will made on board ship, unless such 
 w411 is in writing and is signed or acknowledged by the 
 testator in the presence of the master or first or only 
 mate of the ship, and is attested by such master or 
 mate. And the Board may, in its discretion, reflise to 
 pay or deliver any such wages or effects to any person, 
 not being related to the testator by blood or marriage, 
 who claims to be entitled thereto under a will made 
 elsewhere than on board ship, unless such will is in 
 writing and is signed or acknowledged by the testator 
 in the presence of two witnesses, one of whom is some 
 shipj)ing master appointed under the act, or some 
 minister or officiating minister or curate of the place in 
 which the same is made, or, in a place where there are 
 no such persons, some justice of the peace, or some 
 British consular officer, or some officer of customs, and 
 
 (_q) Stat. 29 Car. 11. c. 3, s. 23. 
 
 (r) Stat. 28 & 29 Vict. c. 72, 
 
 superseding stats. 11 Geo. IV. & I 
 
 Will. IV. c. 20, ss. 48—51; 7 
 Will. IV. & 1 Vict. c. 26, s. 12.
 
 OF A WILL. 325 
 
 is attested by such Avitnesses (s). By tlic act to amend Revocation of 
 the laws with respect to Avills it is provided, that no will ^ ^" • 
 or codicil, or any part thereof, shall be revoked, other- 
 Avise than by the marriage of the testator or testatrix 
 (Avhich Avill of itself effect a revocation (^) ), or by an- 
 other will or codicil executed in the manner thereby 
 required, or by some Avriting declaring an intention to 
 revoke the same, and executed in the manner in Avhich , , ' 
 
 a Avill is thereby required to be executed, or by the ,j' ^ 
 burning, tearing or otherAvise destropng the same by \ j- ^ | . ' | 
 the testator, or by some person in his presence, and by ^-^ . j i »— - W 
 his direction, Avith the intention of reA'okiuff the same (u). '"y—^'-^ .v**'»-«-</<. ' 
 
 A Avill of personal estate Avas formerly required to be Domicile, 
 made according to the law of the domicile of the tes- 
 tator at the time of his decease {x). A person's domicile 
 is the place Avhicli he makes his home. But Avith regard 
 to many persons the circumstances connected wdth their 
 change of residence are such as to render it an exceed- 
 ingly difficidt question of fact, — Avhat country is their 
 domicile at any given time. In order to remedy the 
 inconveniences thus occasioned, it is proAdded by a 
 recent act(?/), that Avith regard to persons aaIio may die New enact- 
 after the 6th of August, 1861, the date of the act, every "''''^*- 
 testamentary instrument made out of the United King- 
 dom by a British subject, AA'hatcA'er may be his domicile 
 at the time of making it, or at his death, shall, as re- 
 gards personal estate, be held to be well executed for 
 the purpose of being admitted to probate, if the same 
 be made according to the forms required either by the 
 laAv of the place Avhere the same Avas made, or by the 
 
 (s) Stat. 17 & 18 Vict. c. 104, 191, 7th ed.; 200, 8th ed. 
 s. 200. (?0 Stat. 7 Will. IV. & 1 Vict. 
 
 (0 Stat. 7 Will. IV. & 1 Vict. c. 2G, s. 20. 
 c. 20), s. 18. See Principles of the (a;-) Stanley v. Bcrnes, 3 Ilagg. 
 
 Law of Real Property, 153, 1st ed. ; 373. 
 
 163, 2nd ed.; 170, 3rd ed.; 171, (y) Stat. 24 & 25 Vict. c. 114. 
 
 4th ed.; 179, 5th ed.; 187, 6th ed.;
 
 326 OF PERSOXAL ESTATE GENERALLY. 
 
 law of the place where such person was domiciled when 
 the same was made, or by the laws then in force in that 
 part of her Majesty's dominions where he had his domi- 
 cile of origin (^z). It is further pro\aded (« ), that every 
 testamentary instrument made within the United King- 
 dom by any British subject, whatever may be his domi- 
 cile at the time of making the same, or at his death, 
 shall, as regards personal estate, be held to be well 
 executed, and shall be admitted to probate, if the same 
 be executed according to the forms required by the laws 
 of that part of the United Kingdom where the same is 
 made. And no testamentary instrument is to be re- 
 voked or to become invalid, nor is the construction 
 thereof to be altered by reason of any subsequent 
 change of domicile of the person making the same (i). 
 Further enact- Another act of parliament, jjassed on the same day (c), 
 provides that whenever her Majesty shall, by conven- 
 tion with any foreign state, agree that provisions to the 
 effect of the enactments therein contained shall be 
 applicable to the subjects of her Majesty and of such 
 foreign state respectively, her Majesty may by order in 
 council direct that, after the publication of such order in 
 the " London Gazette," no British subject resident at 
 the time of his death in the foreign country named in 
 such order shall be deemed, under any circumstances, 
 to have acquired a domicile in such country, unless he 
 shall have been resident in such country for one year 
 immediately preceding his decease, and shall also have 
 made and deposited in a public office of such foreign 
 country (such office to be named in the order in council) 
 a declaration in writing of liis intention to become 
 domiciled in such foreign country. And any British 
 subject dying resident in such foreign country, but 
 without having so resided, and made such declaration 
 
 (z) Stat. 24 & 25 Vict. c. 114, (?>) Sect. 3. 
 
 s. 1. {c) Stat. 24 & 25 Vict. c. 121. 
 
 (a) Sect. 2.
 
 OF A AVILL. 327 
 
 as aforesaid, shall be deemed, for all purposes of testate 
 or intestate succession as to moveables, to retain the 
 domicile he possessed at the time of his going- to reside 
 there (d). Similar provisions may be made, after any 
 such convention, with regard to the subjects of such 
 foreign country dying in Great Britain (e). But this 
 act is not to apply to any foreigners Avho may have 
 obtained letters of naturalization in any part of her 
 Majesty's dominions (f). 
 
 Connected with the subject of wills is that of dona- Donatio mortis 
 tions mortis causa, Avhich may here be noticed. A do- ^^^^''^' 
 nation mortis causa is a gift made in contemplation of 
 death, to be absolute only in case of the death of the 
 giver {(/). Being a gift, it can be made only of chattels, 
 the property in Avhich passes by delivery (A) ; althoiigh a 
 bond debt has, contrary to this principle (i), been allowed 
 to pass by way of donation mortis causa by delivery of 
 the bond (k). And a policy of life assurance has also 
 recently been held a proper subject for such a gift (/), 
 also bills or notes though payable to order and unin- 
 dorsed {m). An actual or constructive delivery of the 
 subject of gift to the donee is essential to a donation 
 mortis causa (?i) : it must also be made in expectation 
 
 (fl) Stat. 24 & 25 Vict. c. 121, (I) Witt v. Amis, 1 Best & 
 
 s. 1. Smith, 109. 
 
 (e) Sect. 2. (m) Veal v. Veal, 27 Beav. 303; 
 
 (/) Sect. 3. Rankin v. Wegueliii, 27 Beav. 
 
 {g) Inst. tit. 7, De Donationi- 309. As to cheques, see Hewitt, 
 
 bus, cited by Lord Loughborough, v. Kaye, L. R., 6 Eq. 198, M. R.; 
 
 in Tate v. Hilhert,2YQ%.]\\u.\\'d; Brondcy v. Brunton, L. R., 6 Eq. 
 
 Walter v. Hodge, 2 Swanst. 99. 275, V. C. S. 
 
 (A) See an^e, p. 34 ; Miller v. (?t) Woody. Turner, 2Yts.s&\i. 
 
 Miller, 3 P. Wms. 356. 431; Br y son v. Brownrigg, 9 Ves. 
 
 (i) Biiffield\. Ehves, 1 Sim. & ]; Bvnn v. Marltliavi., 7 Taunt. 
 
 Stu. 244. 22^; Ruddell v. Bobree, 10 Sim. 
 
 (7^) S)iellgrove\. Baily,^ Afk. 244; FarqnJiarson v. Cave, 2 
 
 214; and see Bontts v. Ellis, 4 De Coll. 356; Powell v. Hellicar, 26 
 
 Gex, M. & G. 249; Moore v. Bar- Beav. 261. 
 ton, 4 De Gex & Smale, 517.
 
 328 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 of tlie donor's decease (o), and must be on condition 
 that the gift be absolute only on that event (j)). It is 
 no objection, however, that the donation is clogged with 
 a trust to be performed by the donee ((7). A donation 
 mortis causa is revocable by the donor during his life (r), 
 and after his decease it is subject to his debts {s), and 
 also to legacy duty (^). 
 
 Appointment 
 of executor 
 formerly essen- 
 tial. 
 
 Executor en- 
 titled to all 
 personal pro- 
 perty of tes- 
 tator. 
 
 Executor's 
 
 assent. 
 
 The mode of operation of a will of personalty is 
 essentially different from the operation of a a^tH of lands 
 in this respect, that in strictness the appointment of an 
 executor was formerly essential to a will of personalty (?^) ; 
 and, at the present day, the usual and proper method is 
 to appoint an executor as to the personal estate ; whereas 
 under a devise of landed property, the lands pass at 
 once to the devisee, and the intervention of an executor 
 is quite unnecessary and inapplicable (u). The executor 
 of a Avill of personal estate becomes entitled, from the 
 moment of the death of the testator, to all his personal 
 property (.r), which after payment of the debts of the de- 
 ceased he is bound to apply according to the directions 
 of the will. Thus if the testator sliould specifically be- 
 queath any part of his personal property, the property 
 so bequeathed vdH not belong absolutely to the legatee 
 until the executor has assented to the bequest ; and this 
 assent must not be given until the executor is satisfied 
 that there is sufficient to pay the debts of the deceased 
 
 (o) Tate V. lUlhert, 2 Ves. jun. 
 Ill; 4Bro. C. C. 286. 
 
 ( 1)) Edwards v. Jones, 1 My. 
 & Craig, 226; Stanilnnd v. Wil- 
 loti, 3 Mac. & Gord. 664. 
 
 (q) Blount v. Burrow, 4 Bi'o. 
 C. C. 72; Hills V. Hills, 8 Mce. 
 & Wels. 401. 
 
 (»•) 7 Taunt. 232. 
 
 (s) 1 P. Wms. 406; 2 Ves. sen. 
 434. 
 
 (0 Stat. 36 Geo. III. c. 52, s. 
 7; 8 & 9 Vict. c. 76, s. 4. 
 
 (?/) Wentworth's Executors, 3, 
 4, 14th ed.; 2 Bla. Com. 503. 
 
 (r) In the goods of Bard-en, 
 Law Eep., 1 Probate and Divorce 
 Cases, 325. 
 
 (■r) Co. Litt. 388 a; Com. Dig. 
 tit. Biens (C) ; Williams on Exe- 
 cutors, pt. 2, bk. 2.
 
 OF A WILL. 329 
 
 •without having recourse to the property so specifically 
 given (?/). 
 
 If the testator should appoint as his sole executor an 
 
 infant under the age of twenty-one years, such infant 
 
 will not be allowed to exercise his office during his 
 
 minority ; but during this time the administration of the 
 
 goods of the deceased will be granted to the guardian 
 
 of the infant, or to such other person as the Court of 
 
 Probate may think fit (z). Such person is called an Administrator 
 
 . . ' . /■ \ rr • 1 durante vii- 
 
 admmistrator durante minore cetate («). it a married. ,^0,.^ (gtate. 
 
 woman should be appointed an executrix, she cannot Married wo- 
 accept the office without the consent of her husband (<6), ^^'^^^ 
 and ha\'ing accepted it with his consent, she is unable, 
 without his concurrence, to perform any act of adminis- 
 tration which may be to his prejudice ; whilst he, on 
 the other hand, may release debts due to the deceased, 
 or make assignment of the deceased's personal estate, 
 without his wife's concm-rence (c) ; for as the general 
 ride of law is that a husband and wife are but one 
 person, the power, and mth it the responsibility, are 
 vested in the husband. Nevertheless, a married woman, 
 being an executrix, may make a will without the consent 
 of her husband, confined to the personal estate of which 
 she is executrix (rf) ; and the executor of her will so 
 made will be the executor of the original testator. For Executor of 
 it is a general rule, that if any executor should die ^^^^^ ^^ y^g " 
 
 before having: completely administered the estate of his executor of 
 
 , . testator. 
 
 testator, the executor appointed by the will of such exe- 
 cutor will be entitled to complete the distribution of the 
 estate of the former testator (e). 
 
 (y) Toller's Executors, bk. 3, {h) "Williams on Executors, pt. 
 
 s. 2; Williams on Executors, pt. 1, bk. 3, eh. I. 
 
 3, bk. 3, ch. 4, s. 3. (c) Ibid. pt. 3, bk. 1, ch. 4 ; 
 
 (z) Stat. 38 Geo. III. c. 87, s. 6. 5 Eep. 27 b. 
 
 {a) Williams on Executors, pt. {d) Ibid. pt. 1, bk. 2, ch. 1, s. 2. 
 
 1, bk. 5, ch. 3, s. 3. {c) 2 Bla. Com. 506. And
 
 330 
 
 OF PEESOXAi ESTATE GEXERALLY 
 
 Any one of the 
 executors may 
 perform acts 
 of administra- 
 tion. 
 
 All must join 
 in bringing 
 action. 
 
 Appointment 
 of debtor 
 executor. 
 
 Survivorship 
 of office of 
 executor. 
 
 Renunciation 
 by one in life- 
 time of others. 
 
 The testator however may, and usually does, appoint 
 more than one person his executors. In this case the 
 law regards all the co-executors as one individual per- 
 son ; and consequently any one of the executors of flill 
 age may, during the life of his companions, perform, 
 without their concvuTence, all the ordinary acts of admi- 
 nistration, such as giving receipts, making payments, 
 and selling and assigning the property ( /"). But all 
 the executors, infants included, must join in bringing 
 actions respecting the estate (/z). If, therefore, the tes- 
 tator appoint a person indebted to him as his executor, 
 or one of his executors, this appointment will operate 
 at law as a release of the debt (A). For the debt is a 
 chose in action, and a n>an cannot either solely or con- 
 jointly with others bring an action against himself. In 
 equity, however, an executor who Avas indelited to the 
 testator is bomid to account for his debt to the estate of 
 the testator ( i). On the decease of any co-executor, the 
 office survives to those who remain ; and imtil recently, 
 if one of them should have reuomiced the executorship 
 in the lifetime of his companions, he might at any time 
 have changed his mind and undertaken the office. But 
 if, having survived all his companions, he should then 
 have renounced (J), or if, without such renunciation, 
 administration should have then been granted to another 
 person (k), he coidd not afterwards have interfei'ed. It 
 
 seems that he is bound to do so; 
 Brooke v. Haynes, Law Rep., 6 
 Eq. 25, M. R. 
 
 (/) Shep. Touch. 484. 
 
 {g) Williams on Executors, pt. 
 2, bk. 1, ch. 2. An ejectment was 
 an exception, as any one executor 
 might demise the entirety of the 
 testator's leasehold land. Doe d. 
 Stace V. Wheclcr,\o^lee. & Wels. 
 623. But see now stat. 15 & 16 
 Vict. c. 76, ss. 168 et seq. 
 
 (A)Wentworth's Executors, 73, 
 14th ed.; Freakley v. Fox, 9 B. 
 & Cress. 130. 
 
 (i) Bac. Ab. tit. Executors and 
 Administrators (A), 10; Simmo7is 
 V. Gutteridge, 13 Ves. 264. . 
 
 {j) Hensloe's case, 9 Rep. 36; 
 Cress7vick v. Woodhead, 4 Man. & 
 Gran. 811. 
 
 (/<;) Venahles v. East India 
 Company, 2 Ex. Rep. 633.
 
 OF A WILL. 331 
 
 is however now provided by the Court of Probate Act, Xew enact- 
 1857, that where any person after the commencement ™^° ' 
 of that act(/), (which was fixed by Order in Council 
 for the 11th of January, 1858,) renounces probate of 
 the will of which he is appointed executor or one of the 
 executors, the rights of such person in respect of the 
 executorship shall wholly cease ; and the representation 
 to the testator and the administration of his effects shall, 
 without any further renunciation, go, devolve and be 
 committed in like manner, as if such person had not 
 been appointed executor {m). And by a subsequent 
 act the same effect is produced whenever an executor 
 named in a will survives the testator, but dies Avithout 
 ha\dng taken probate, and whenever an executor named 
 in a will is cited to take probate and does not appear to 
 such citation (n). When two or more executors prove, 
 the executor of the will of the siuwivor of them will, 
 after the decease of all of them, be entitled to act as 
 executor of their testator. 
 
 If any person not duly authorized should intermeddle Executor de 
 with the goods of the testator, or do any other act re- ''''"' '^^ ' 
 lating to the office of executor, he thereby becomes an 
 executor of his OAvn wrong, or, as it is called in laAV 
 French, an executor de son tort. Such an executor is 
 liable to the same demands from the creditors of the de- 
 ceased as if he had been regularly appointed ; but like 
 a regular executor he is not liable beyond the amount of 
 the assets of the testator Avhich haA^e come to his hands. 
 The chief difference between such an executor and one 
 who has been duly appointed is this, that an executor 
 de son tort is not allowed to derive any benefit fi-om his 
 own wrongfid intermeddling ; whereas a regularly ap- 
 pointed executor, if a creditor of the deceased, may law- 
 
 (Z) III the (joods of Wtfham, s. 79. 
 Law Rep., 1 Probate, 303. (>?) Court of Probate Act, 1858, 
 
 (m) Stat. 20 & 21 Vict. c. 77, 21 & 22 Vict. c. 9.5, s. 13.
 
 332 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 A will of per- 
 sonalt}' must 
 be proved. 
 
 Court of Pro- 
 bate. 
 
 The probate 
 the only proper 
 evidence. 
 
 Acts of exe- 
 cutor before 
 probate. 
 
 fully retain his oavii debt out of the assets in preference 
 to all other debts of the same degree (o). 
 
 The most striking difference between a will of per- 
 sonal estate and a will of lands yet remains to be noticed. 
 A will of lands has always operated and still operates as 
 a mode of conveyance requiring no extrinsic sanction to 
 render it available as a document of title. But a "will of 
 personal estate has always required to be proved. This 
 probate of the will was until recently required to be 
 made in some ecclesiastical court. But by the Court of 
 Probate Act, 1857 (p), the jurisdiction of all the eccle- 
 siastical com-ts over wills was entirely abolished, and a 
 court was established called the Court of Probate, with 
 a principal registry in London and district registries 
 throughout the kingdom, in which all wUls of personal 
 estate are now required to be proved. In this court 
 the wiU itself is deposited, and a copy of the will, which 
 is given by the court to the executor on proving, de- 
 nominated the probate copy, is the only proper evidence 
 of the right of the executor to intermeddle with the 
 personal estate of his testator {q). Before probate, how- 
 ever, the executor may perform all the ordinary acts of 
 administration, such as receiving and giving receipts for 
 debts due to the testator, paying the debts owing by the 
 testator, and selling and assigning any part of the per- 
 sonal estate. But when evidence is required of his 
 right to intermeddle, the probate is the only valid proof; 
 without it, therefore, no action or suit can be main- 
 tained, although proceedings may be commenced before, 
 and carried up to the point where the evidence is re- 
 quired (r). 
 
 Co) WJlliams on Executors, pt. 
 1, bk.3, ch. 5; pt. 3, bk. 2, ch. 2, 
 s. 6. 
 
 i]}) Stat. 20 & 21 Vict. c. 77, 
 amended by stat. 21 & 22 Vict. c. 
 95. 
 
 {q) Bex V. Netherseal, 4 T. R. 
 260; Wms. Ex. pt. 1, bk. 4, ch. 1. 
 
 (r) Williams on Executors, pt. 
 1, bk. 4, ch. 1, s. 2; Stuart v. 
 Burrorvcs, 1 Drmy, 2G5, 274.
 
 OF A WILL. 333 
 
 The jurisdiction of the ecclesiastical coui-ts over wills! Ecclesiastical 
 of personal estate is of a very ancient origin. The pro- Jj""^ wUls." 
 bate of wills of personalty, as a means of their authen- 
 tication, appears to have been in use from the very 
 earliest times. The first persons by whom probate was 
 granted were said to be the lords of manors ; and some 
 vestiges of this ancient right long remained in the case 
 of one or two manors, the lords of Avliich retained such 
 a jurisdiction {s) until aboKshedby the Court of Probate 
 Act, 1857 {ty Bvit so early as the time of Glanville, 
 who wi'ote in the reign of Henry II., the ecclesiastical 
 courts had acquired an exclusive right to determine on 
 the validity of a will or the bequest of a legacy (w). 
 And from this period the right of the church to inter- 
 fere in testamentary matters became gradually settled, 
 though not without much opposition on the part of the 
 temporal lords. 
 
 A wall was required to be proved in the court of the In what court 
 bishop or ordinary in whose diocese the testator dwelt, ||ave^been '^^ 
 and within whose jurisdiction the personal effects of the taken out. 
 testator consequently lay. But if there were effects to Bona nota- 
 the value of 5/., called bona notabilia, in two distinct dio- 
 ceses or jurisdictions within the same province, either of 
 Canterbiuy or York, the wiU was required to be proved 
 in the Prerogative Court of the archbishop of that 
 province {x). If there Avere personal effects within two 
 provinces, the wall must have been proved in each pro- 
 vince, either in the Prerogative Court, or in some court 
 of inferior jurisdiction ; observing, as to each proAance, 
 the same rule as would have applied had the testator 
 
 (s) Wentworth's Ex. 14tli ed. {x) Williams on Executors, pt. 
 
 99, 100; Toller's Executors, 50. 1, bk. 4, ch. 2. For an account of 
 
 {t) Stat. 20 & 21 Vict. c. 77, the rise of the archbishop's juris- 
 
 s. 3. diction, see Gent. Mag. new series, 
 
 (w) Glanville, Hb. 7, cc. 6, 7; 1 vol. 12, p. 582. 
 Reeves's Hist. Eng. Law, 72.
 
 3:u 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 Probate void. 
 
 Voidable. 
 
 Now valid. 
 
 Probate in 
 
 principal 
 
 registry. 
 
 In district 
 registry. 
 
 had no property elsewhere (y). If probate were granted 
 hj a bishop, or other inferior judge, in a case Avhere the 
 deceased had goods to the vakie of 51. in any other 
 diocese in the same province, snch probate was abso- 
 lutely void ; but probate granted by an archbishop, in a 
 case where the deceased had not bona notahUia in divers 
 dioceses, was voidable only, and not absolutely void(r). 
 But the Court of Probate Act, 1857, now renders valid 
 all grants of probates which were void or voidable by 
 reason only that the courts from which they were 
 obtained had not jurisdiction to make such grants, ex- 
 cept where the same had been already litigated (a). 
 And any will may now be proved in the principal re- 
 gistry of the Court of Probate without regard to the 
 abode of the testator (Z»). But if the testator had, at 
 the time of his death, a fixed place of abode within any 
 district, his will may be proved in the registry of that 
 district (c) ; and the grant so made will be effectual even 
 if the testator should not have had any fixed place of 
 abode within that district {^d). 
 
 Evidence re- 
 quired on pro- 
 bate. 
 
 The evidence required for the proof of a will varies 
 according to the form of the attestation, and also ac- 
 cording to the circmnstance of the validity of the will 
 being or not being disputed. The usual and proper 
 form of attestation to a will expresses that the formali- 
 ties required by the Wills Act {e) have been complied 
 with ; thus, " Signed and declared by the above-named 
 A. B., the testator, as and for his last will and testa- 
 ment, in the presence of us, both present at the same 
 time, wdio, at his request, in his presence, and in the 
 
 (y) Second Report of Real Pro- 
 perty Commissioners, 67. 
 
 (z)Went\vorth's Executors, 110, 
 14tli ed.; Lysons v. Barroiv, 2 
 Bing. N. C. 486. 
 
 (a) Stat. 20 & 21 Vict! c. 77, 
 
 Sw. & Trist. 123; 9 W. R. 420. 
 
 (/;) Stat. 20 & 21 Vict. c. 77, 
 s. 50. 
 
 (f) Sect. 46. 
 
 id) Sect. 47. 
 
 (e) Stat. 7 Will. IV. & 1 Vict. 
 
 s. 8G; In the goods of Tucker, 2 c. 26, s. 9, ante, p. 323.
 
 OF A WILL. •>'>^ 
 
 presence of each other, have hereunto subscribed our 
 names as witnesses." When the attestation is in this 
 form, and the vahdity of the will is not disputed, it is 
 proved by the simple oath of the executor, that he be- 
 lieves the Avill to be the true last will and testament of 
 the deceased. But as such a form of the attestation 
 clause is not essential to the validity of the will(/), 
 wills are sometimes informally made without any clause 
 of attestation, or with a clause which does not express 
 that the required formalities have been complied with. 
 When this occurs, an affidavit, in addition to the exe- 
 cutor's oath, is required from one of the subscribing 
 witnesses, that the will was executed in compliance with 
 
 the statute («7). Probate in either of the above modes Probate in 
 
 / • /• -r> X -x'^i ^'^•^. common form; 
 
 IS termed probate m common form. Jjut it tne validity 
 
 of the mil* should be disputed, or any dispute should be 
 anticipated by the executor, the will is proved in solemn in solemn 
 form per testes. In tliis case both the witnesses are 
 sworn and examined, and such other evidence taken as 
 the circumstances require, in the presence of the mdow 
 and next of kin of the testator, and all others pre- 
 tending to have any interest, who are cited to be present 
 to see the proceedings. When a will has once been 
 proved in this form it is finally established, and the exe- 
 cutor cannot be compelled to prove it any more ; but 
 when a will has been proved merely in common form, 
 the executor may, at any time within thirty years, be 
 compelled by any party interested to prove it per testes 
 ill solemn form {h). The contentious jurisdiction with 
 respect to the grant and revocation of probates of wills 
 has been transferred to the county courts in cases where County courts. 
 
 (/) Stat. 7Will. IV. & 1 Vict. of the Prerogative Court of the 
 
 c. 26, s. 9. Archbishop of Canterbury; Stat. 
 
 ig) Williams on Executors, pt. 20 & 21 Vict. c. 77, s. 29. 
 
 1, bk. 4, ch. 3, s. 3. The practice {h) Williams on Executors, pt. 
 
 of the Court of Probate is gene- 1, bk. 4, ch. 3, s. 4. 
 rally the same as the old practice
 
 336 
 
 OF PERSONAL ESTATE GEXERALLY 
 
 tlie personalty is under tlie value of 200/., and tlie 
 deceased was not at the time of his death beneficially 
 entitled to any real estate of the value of 300Z. (i). 
 
 Stamp duties 
 on probates. 
 
 Indian govern- 
 ment notes. 
 
 Probates of -wills are required by act of parhament 
 to be stamped -s^dth an ad valorem duty according to 
 the value of the personal estate of the testator (^■) when- 
 ever it exceeds lOOZ. (k). The effects of the testator 
 within the jurisdiction of the spiritual judge granting 
 probate were formerly alone valued for this pvu'pose (/). 
 But it is now provided that probate shall be granted 
 in respect of the whole of the personal and moveable 
 estate and effects of the deceased in the United King- 
 dom {m). And provisions have been made for extend- 
 ing to England, Scotland and Ireland respectively pro- 
 bates granted by the coiu'ts of probate which have now 
 been established in England and Ireland, and confirma- 
 tions, as they are called, of executors in Scotland (n). 
 A recent act of parliament provides that all Indian 
 government promissory notes and certificates issued or 
 stock created in lieu thereof, being assets of a deceased 
 person, the interest whereon shall be payable in London 
 by drafts payable in India, and which at the decease of 
 the owner thereof shall have been registered in the 
 books of the secretary of state in coimcil in London, or 
 in the books of the governor and company of the Bank 
 of England, or shall have been enfaced in India for the 
 purpose of being so registered before the decease of the 
 owner thereof, and all Indian govennnent promissoiy 
 
 (i) Stat. 21 & 22 Met. c. 95, s. 
 10. 
 
 ( j ) Stats. 55 Geo. IH. c. 184 ; 
 5 & 6 Vict. c. 79, s. 23 ; 22 & 23 
 Vict. c. 3G, s. 1. 
 
 (k) Stat. 27 & 28 Vict. c. 56, 
 s. 5. 
 
 (Z) Attorney-Generalx. Hoiie, 
 2 CI. & Fin. M ; Attorney- General 
 
 V. Bonn-ens, 4 Mee. & Wels. 171. 
 
 (;«) Stat. 21 & 22 Vict. c. 56, 
 s. 15. As to ships at sea, see stat. 
 27 & 28 Vict. c. o6, s. 4. 
 
 («) Stat. 20 & 21 Vict. c. 79, 
 ss. 94, 95; 21 & 22 Vict. c. 56, 
 ss. 12, 13, 14; 21 & 22 Vict. c. 95, 
 s. 29.
 
 OF A AVILL. 
 
 537 
 
 notes issued with coupons attached, which, under such 
 regulations and conditions as may be determined from 
 time to time by the secretary of state in council, shall 
 be so registered, and all certificates issued or stock 
 created in lieu thereof, shall be deemed and taken to 
 be personal estate and bona notabilia of such deceased 
 person in England ; and probate or letters of adminis- 
 tration in England, or confirmation granted in Scotland 
 and sealed with the seal of the principal court of pro- 
 bate in England, shall be sufficient to constitute the 
 persons therein named the legal personal representatiyes 
 of the deceased with respect to such notes and money 
 as aforesaid (o). Probates of w-ills operating merely in Powers of 
 
 (, n • L L J. r appointment, 
 
 exercise oi powers oi appointment oyer property oi ^^ 
 
 which the deceased had no ownership, Avere formerly 
 
 held to be exempt from probate duty in respect of the 
 
 yalue of the property appointed (7?). But it is nowNewenact- 
 
 proAnded, that probate duty shall be paid in respect of ^^^j no™ 
 
 all the personal or moA'eable estate and effects which payable. 
 
 any person dying after the 3rd of April, 1860, shall 
 
 haye disposed of by aaIII under any authority enabhng 
 
 such person to dispose of the same as he or she shall 
 
 think fit (<7). The distribution of the effects of officers Officers and 
 
 and soldiers dying on seiwice is proyided for by the ^^ service'. ^"^ 
 
 Eegimental Debts Act, 1863 (r). Exemptions fi'om Seamen, &c. 
 
 probate duty haye been made by parHament in faA^our 
 
 of the effects of common seamen, marines and soldiers, 
 
 who may be slain or die in the queen's serAdce(5). And 
 
 pay, wages, prize money or pensions due to deceased 
 
 nayal officers, marines, seamen and others employed in 
 
 (0) Stat. 23 Vict. c. 5, s. 1. As 257. 
 to bonds and specialties, see stat. (_q) Stat. 23 Vict. c. 15, s. 4. 
 
 'Jo Vict. c. 22, s. 39. (r) Stat. 26 & 27 Vict. c. 57; 
 
 (j?) Piatt V. South, 6 Mee. & and see the Army Prize (shares of 
 
 AA^els. 756; 3 Beav. 257; affirmed deceased) Act, 1664, stat. 27 & 28 
 
 iu the House of Lords; Di'ake v. Vict. c. 3G. 
 Attorney- General, 10 Ci. & Fin. (.?) Stat. 55 Geo. III. c. 184. 
 
 Ay.r.p. z
 
 338 
 
 OF PEESONAL ESTATE GENERALLY. 
 
 the nav}', Avhose Avliole assets shall not exceed thirty- 
 two pounds, are allowed to be paid out without probate 
 
 Civil service, of their wills (#). And the exemptions thus made have 
 recently been extended to all persons to whom any sum 
 of money, not exceeding one hundred pounds, may be 
 payable by a public department in respect of civil pay 
 or allowances, or annuities granted under authority of 
 parliament (w). And in the case of any civil or military 
 allowances chargeable to the army votes, and of army 
 prize money, the existing exemptions are extended to the 
 
 Seamen's wills, sum of one hundred pounds (v). Probates of the wills 
 of petty officers and seamen in the royal navy and of 
 marines and non-commissioned officers of marines are 
 placed by act of parliament under the care of an officer 
 called the inspector of seamen's wills, and are subject 
 to special regulations made to prevent frauds on persons 
 proverbially careless and liable to imposition (a:). And 
 with respect to merchant seamen, the Merchant Shipping 
 Act, 1854, now provides, that if the money and effects 
 of any such seamen do not exceed in value the sum of 
 50/., probate may be dispensed with at the discretion of 
 the Board of Trade (?/). The probate duty is in the 
 first place paid on the whole value of the personal estate 
 of the testator without allowing for his debts ; and after 
 the debts are paid, a return of part of the probate duty 
 is made according to the value to which the estate may 
 be reduced by the payment of the debts. But where 
 leasehold estates are the sole security, by way of mort- 
 gage, for any debts due from the deceased, the amount 
 of such mortgage debts may be deducted from the 
 
 Mortgage of 
 
 leaseholds. 
 
 (0 Stat. 4 & 5 Will. IV. c. 25, 
 s. 8. 
 
 (u) Stat. 31 & 32 Vict. c. 90, 
 s. 1. 
 
 (v) Sect. 2. 
 
 (.r) Stat. 11 Geo. IV. & 1 Will. 
 IV. c. 20, ss. 55 — 58, aiuenclefl by 
 
 Stat. 2 & 3 Will. IV. c. 40, ss. 12, 
 13; 4 & 5 Will. IV. c. 25, s. 8; 
 Williams on Executors, pt. 1, bk. 
 4, ch. 4; bk. 5, ch. 2, s. 4. 
 
 (y) Stat. 17 & 18 Vict. c. 104, 
 s. 199.
 
 OF A AVILL. o39 
 
 value of the said leaseliold estates (^r). As some persons 
 
 attempted to evade probate duty by means of voluntary 
 
 bonds to take effect at their decease, in lieu of legacies, 
 
 it is now provided that no return of probate duty shall 
 
 be made in respect of any voluntary debt due from any Volnntaiy 
 
 person dying after the 28th of June, 1861, which shall '^''^'''• 
 
 be expressed to be payable on the death of such person, 
 
 or payable under any instrument Avhich shall not have 
 
 been bona fide delivered to the donee thereof three 
 
 months before the death of such person (a). 
 
 When the will has been proved, it is the duty of the Payment of 
 executor to pay the testator's debts out of the personal 
 estate, to which such executor becomes entitled by 
 virtue of his office. For this purpose the executor has Powers of 
 reposed in him by the laAv the fullest powers of disposi- ^^^'^^^^^' 
 tion over the personal estate of the deceased, whatever 
 
 -** 
 
 may be the manner in which it has been bequeathed V.^^T^t-X- 
 by the will (h). And in the event of a sale of any such Purchaser 
 property by the executor, the purchaser is not bound to ^q^^q^^^ to° 
 inquire Avhether there are any debts remaining unpaid ; inquire if there 
 for, in the absence of evidence to the contrary, the 
 executor is presumed to be acting in the proper dis- 
 charge of his office (c). 'Nov is the purchaser at all Nor to see to 
 concerned with the application which the executor may ^f his'pur-^ 
 make of the purchase-money ; but the executor's receipt chase-mouey. 
 will be a sufficient discharge, and he alone will be re- 
 sponsible to the creditors and legatees for its due appli- 
 cation (f/). The order in which debts ought to be paid 
 out of the personal estate of a deceased debtor has been 
 
 (z) Stat. 31 & 32 Vict. c. 1 24, (c) Niir/ent v. Giford, 1 Atk. 
 
 s. 7. 463; Elliot \. Merriman, 2 Atk. 
 
 (rt) Stat. 24 & 25 Vict. c. i)2, 42. 
 
 s. 3. {(V) Whale v. Booth, 4 T. Rep. 
 
 (b) En-rry. Cw7;^'f, 2 P. "Wms. 625, n.; M'Lcoil v. Drummondy 
 
 148; Russell v. Plaice, 18 Bcav. 17 Ves ]."4. 
 21. 
 
 z2
 
 340 
 
 OF PEPtSOXAL ESTATE GENERALLY. 
 
 Power to 
 executors to 
 compound 
 debts, &c. 
 
 Accounts may 
 be taken by 
 the Court of 
 Chancery. 
 
 Legacies. 
 
 Executor's 
 year. 
 
 ali-eady noticed in the chapter on debts (e) ; and it has 
 also been stated that the executor, if a creditor, is 
 entitled to retain his o^yn debt in preference to all 
 others of the same degree {/)> 
 
 When the will has been executed after the 28th of 
 August, 1860, or has been confirmed or re^-ived by a 
 codicil executed after that date, the executors are em- 
 poAvered to pay any debts or claims upon any evidence 
 that they may think sufficient, and to accept any com- 
 position, or any security', real or personal, for any debts 
 due to the deceased, and to allow any time for payment 
 of any such debts as they shall think fit, and also to 
 compromise, compound or submit to arbitration all 
 debts, accounts, claims and things whatsoever relating 
 to the estate of the deceased, and for any of the pur- 
 poses aforesaid to enter into, give and execute such 
 agreements, instruments of composition, releases and 
 other things as they shall think expedient, without being 
 responsible for any loss to be occasioned thereby ((/). 
 And the executors are now empowered immediately, 
 or at any time after probate, to apply to the Court of 
 Chancery for an order to be made upon motion or peti- 
 tion of course, or by the judge at chambers, referring 
 it to the chief clerk of the judge to take an account of 
 the debts and liabihties affecting the personal estate of 
 the deceased and to report thereon ; and after any such 
 order shall have been made, proceedings at law by the 
 creditors against the executors may be restrained or 
 suspended by the court imtil the account directed by 
 such order shall have been taken (A). 
 
 When the debts have been paid, the legacies left by 
 the testator are then to be discharged. In order to give 
 
 (<?) Ante,\,]}. 97, 102, 105, 106. 
 
 (/) ^»/e, pp. 331, 332. 
 
 {£) Stat. 23 & 2i Yict. c. Uo, 
 
 s. 80. 
 
 (h) Stats. 13 & 14 Vict. c. 35, 
 s. 19;23 & 24 Vict. c. 38, s. 14.
 
 OF A -WILL. 341 
 
 the executor sufficient time to inform himself of the 
 state of the assets and to pay the debts of the deceased, 
 he is allowed a twelvemonth from the date of the death 
 of the testator before he is bound to pay any legacies (?'). 
 From this time all such general legacies as remain 
 unpaid carry interest, at the rate of four per cent, per 
 annum (j). Xot^^^thstanding the lapse of a year from Liability of 
 the testator's death, the executor, however, is still, liable e^^^'^tor. 
 to any creditor of the deceased to the amount of the 
 assets which have come to the executor's hands (A) ; and 
 if he should have paid any legacies in ignorance of the 
 claims of the creditor, his only remedy is to apply to 
 the legatees to refimd their legacies, which they will be 
 bound to do, in order to satisfy the debt (/). From this 
 liability to creditors, an executor coidd not until recently 
 have been discharged, unless he threw the property 
 into chancery, in which case the court undertakes the 
 administration, and the executor is consequently exone- 
 rated from all risk(??i). But a recent act exonerates Newenact- 
 
 executors from all liabilitv to the rents and covenants '^^"* = protec- 
 
 j- 1 111 1 '' Til *^^°^ *° 6^^" 
 
 oi any leasehold or other property liable to rents or cutors. 
 
 covenants after an assignment made by him to a pur- 
 chaser, pro\aded he shall have set apart a sufficient 
 fund to answer any fixture claim in respect of any fixed 
 and ascertained sum agreed by the lessee or grantee to 
 be laid out on the property (??). And it is further pro- 
 \aded, that Avhere an executor shall have given the like „ /- 
 notices as would have been given by the Court of^^;: — ~ 
 Chancery in an administration suit, for creditors and^_^ 
 
 (i) Ward v. Penoyre, 13 Ves. Cr. 31. 
 
 333; Benson v. Maude, 6 Madd. (?w) 3 Myl. & Cr. 126. 
 
 15. (?t) Stat. 22 & 23 Vict. c. 35, 
 
 (7) Ward V. Penoyre, ubi snp. ss. 27, 28. This act extends to 
 
 {k) Norman Y. Baldry,& ^im. leases made before it passed; 
 
 621; Knatchhvll v. Fearnhead, 3 Smith\. Smith, 1 Drew. & Smale, 
 
 My. & Cr. 122; Hill v. Gomme, 1 684; Ee Green, 2 De Gex, F. & 
 
 Beav. 540. J. 121. 
 
 {}) March \. Russell , 3 My. & 
 
 y^*/^.
 
 342 
 
 OF PEKSON.VL ESTATE GENERALLY. 
 
 Not liable be- 
 yond amount 
 of assets. 
 
 others to send in tlieir claims against the estate of the 
 testator, tlie executor may distribute the assets amongst 
 the parties entitled, Avithout liability to any person of 
 whose claim he shall not have had notice at the time of 
 distribution (o). The executor is of course not answer- 
 able to the testator's creditors beyond the amount of 
 assets which have come to his hands (p), unless he 
 should for sufficient consideration give a written promise 
 to pay personally (^q), or should do any act amounting 
 to an admission that he has assets of the testator suffi- 
 cient for the payment of the debts (r). 
 
 Legacy duty. On the pa}*ment or delivery of any legacy of the 
 amount or value of 20/. or upwards, whether payable out 
 of the estate of the testator, real or personal, or out of 
 any real or personal estate over which he had a power 
 of appointment (s), a receipt must be given by the 
 legatee, which is chargeable with a duty, called the 
 legacy duty, on the amount or value of the legacy {t). 
 
 Exemption. But no sum of money, which by any marriage settle- 
 ment is subjected to any limited power of appointment 
 to or for the benefit of any person or persons therein 
 specially named or described as the object or objects of 
 such power, or to or for the benefit of the issue of any 
 such person or persons, is liable to legacy duty under 
 the will in which such sum is appointed or apportioned 
 
 Amount of i^^ exercise of such limited power (w). The amount of 
 
 <i^ty- legacy duty varies according to the degree of relation- 
 
 
 {ii) Stat. 22 & 23 Vict. c. 3-5, {r) Horsloj v. Clialoner, 2 Yes. 
 
 s. 29 ; Clegg v. Ro7vIand,Y. C. M., sen. 83. 
 
 Law Rep., 3 Eq. 368; 36 L. J., (s) Stat. 8 & 9 Vict. c. 76, s. 4; 
 
 N. S., Chan. 137. Attorney- General v. Marquis of 
 
 (p) Bac. Abr. tit. Executors; Hertford, 3 Ex. Rep. 670. 
 
 (P), 1. (0 Stat. 36 Geo. III. c. 52, s. 
 
 (q) Stat. 29 Car. H. c. 3, s. 4; 27. 
 
 ante, p. 78; 1 TVms, Saund. 210, (?/.) Stat. 8 & 9 Vict. c. 76, 8. 4. 
 n. (l);211,n. (2). 

 
 OF A WILL. 343 
 
 slilp wlucli tlie legatee bore to the deceased. Wliere 
 the legacy is to a child or lineal descendant, or to the 
 father or mother or any lineal ancestor of the deceased 
 the duty is one per cent. If to a brother or sister, or 
 any descendant of a brother or sister, the duty is three 
 per cent. If to a brother or sister of the father or 
 mother of the deceased, or any descendant of such 
 brother or sister, five per cent. If to a brother or sister 
 of a grandfather or grandmother of the deceased, or any 
 descendant of such brother or sister, six per cent. And 
 if the legacy be to any person in any other degree of 
 collateral consanguinity to the deceased, or to any 
 stranger in blood, the duty is ten per cent(.r). But 
 the husband or wife of the deceased are exempt from 
 all legacy duty, and so also are the royal family. By Leasehold 
 the Succession Duty Act, 1853, leasehold property, property. 
 although personal estate, is exempted from legacy duty, 
 and is charged in lieu thereof with a succession duty, 
 calculated upon the same principles as the duty on real 
 property (y). 
 
 If a legacy be given to an infant, or to a person ab- Legacy to in- 
 sent beyond the seas, the only way in which the executor w^o^^ seas^"^ 
 can obtain a proper discharge for such legacy is by pay- 
 ment of it, after deducting the legacy duty, into the 
 Bank of England, with the privity of the accoimtant- 
 general of the Court of Chancery, to be placed to the 
 account of the person for whose benefit the same shall 
 be so paid. The money is then laid out by the 
 accountant-general in the purchase of consols, Avhich, 
 with the dividends thereon, are afterwards transferred 
 and paid to the person entitled, or otherwise applied for 
 his benefit, on application to the Court of Chancery by 
 
 (x) Stat. 55 Goo. IIL c. 184. the Law of Real Property, 240, 
 
 iy) Stat. 16 & 17 Vict. c. 51, 4th ed.; 249, 5th ed.; 259, 6th 
 ss. 1, 19, 21. See Principles of ed.; 265, 7th ed.; 276, ath ed.
 
 344 
 
 OF PERSOXAL ESTATE GENERALLY. 
 
 Lcpacy duty 
 on auuuities. 
 
 petition or motion in a summary way (z). Tlie legacy 
 duty on annuities for lives is fixed by tables given in 
 the Succession Duty Act, and is payable by four equal 
 payments, to be made successively on completing each 
 of the first four years' pa}Tnents of the annuity (a). 
 
 Entitled to 
 preference. 
 
 Ademption. 
 
 Specific legacy. A legacy may be either specific, demonstrative, or 
 general. A specific legacy is a bequest of a specific 
 part of the testator's personal estate. Thus a bequest 
 of "the service of plate, which was presented to me on 
 such an occasion," is specific, and so also is a bequest 
 of " 100/. consols, now standing in my name at the 
 Bank of England" {b), or of "100/. consols, part of my 
 stock" (c). A specific legacy must be paid or retained 
 by the executor in preference to those which are general, 
 and must not be sold for the payment of debts until the 
 general assets of the testator are exhausted (//). It is, 
 hoAvever, liable to ademption by the act of the testator in 
 his lifetime. Thus, in the instances given above, if the 
 testator shoidd part •with the plate, or sell the stock in 
 his lifetime, the legacy "will be adeemed, and the 
 legatee will lose all benefit {e). A demonstrative legacy 
 is a gift by will of a certain sum directed to be paid out 
 of a specific fund. Thus, "I bequeath to A. B. the 
 sum of 50/. sterling, to be paid out of the sum of 100/. 
 consols now standing in my name at the Bank of Eng- 
 land," is a demonstrative legacy. Such a legacy is not 
 liable to ademption by the act of the testator in his life- 
 time; for it is considered to be the testator's in- 
 
 Demonstrative 
 legacy. 
 
 (z) Stat. 36 Geo. III. c. 52, s. 
 32; Ex parte Bennett, V. C. K. 
 B., 15 Jur. 213. 
 
 {a) Stat. 16 & 17 Vict. c. 51, s. 
 31 ; 36 Geo. III. c. 52, s. 8. 
 
 (J) Roper on Legacies, c. 3; 
 Gordon v. Dvff, 28 Beav. 510. 
 
 (c) Kirhy v. Potter, 4 Yes. 
 750 a; Hayes v. Hayes, 1 Keen, 
 
 97; Shuttlewortli v. Greaves, 4 
 M. & Cr. 35. 
 
 (<7) Brown Y.Allen, 1 Vern. 31 ; 
 Hinton \. Pinke, 1 P. Wms. 539; 
 Sleech v. Tliorington, 2 Yes. sen. 
 560. 
 
 (e) Ashhurner v. M'Guire, 2 
 Bro. C. C. 108.
 
 OF A WILL. 345 
 
 tention that the legatee sliould at all events have the 
 legacy ; but that it should, if possible, be paid out of 
 the fiind he has pointed out. If therefore the testator 
 in this case shoidd sell the lOOl. consols in his lifetime, 
 the 501. will still be payable to the legatee out of the 
 general assets (/)> A demonstrative legacy is accord- 
 ingly more beneficial to the legatee than a specific 
 legacy. And it is also more beneficial than a legacy 
 which is merely general ; for being payable out of a 
 specific fund, it is not, while that fund exists, liable 
 to abatement with the general legacies ((/). A general General 
 legacy is one payable only out of the general assets of ^^^^^' 
 the testator, and is liable to abatement in case of a 
 deficiency of such assets to pay the testator's debts and 
 other legacies. A bequest to A. of 100/. sterling is a 
 general legacy ; so is a bequest of 100/. consols, without 
 referring to any particular stock to which the testator 
 may be entitled (/?). A bequest of a mourning ring, of 
 the value of 10/. is also a general legacy, no specific 
 ring of the testator's being refeiTcd to (i). In the two 
 last cases, the executor would be bound to set apart or 
 buy the stock, or jDurchase the ring for the legatee out 
 of the general assets of the testator, supposing them 
 sufficient for the piuqDose ; and shoidd there be a defi- 
 ciency, the amount of the stock, or the value of the ring 
 to be purchased, would abate proportionably. If, how- Legacy for 
 ever, any legacy shoidd be given for a valuable con- ^.^1"^^'}^ con- 
 sideration, it will not be liable to abatement with the 
 other general legacies. An example of this exception Dower, 
 to the usual rule occurs in the case of legacies given by 
 husbands to their wives in consideration of their releasina: 
 
 (/) lioherts v. PococJi, 4 Ves. (7t) Wilson v. Brownsmith, 9 
 
 150; Attwater v. Attrvater, 18 Ves. 180. See, however, :7((«'«se«(Z 
 
 Beav. 330. v. Martin, 7 Hare, 471, qn.? 
 
 (ff) Acton V. Acton, 1 Mcriv. (i) 1 Roper on Legacies, c. 3, 
 
 178; Livesay v. Redferu, 2 Y. & s. 2. 
 C. 90.
 
 346 OF PERSONAL ESTATE GENERALLY. 
 
 their dower (k). And bj the act for the amendment of 
 the law relating to dower (/), it is provided (m), that 
 nothing therein contained shall interfere with any rule 
 of equity or of any ecclesiastical court, by which legacies 
 bequeathed to widows in satisfaction of dower are en- 
 titled to prionty over other legacies. 
 
 Satisfaction of "Wlicn a legacy is bequeathed by a testator to his 
 
 debts by lega- cj-editor, it is considered to be a satisfaction of the debt, 
 cies. _ ' ' 
 
 if the legacy be equal to or greater than the amount of 
 the debt (?«). But if it be less than the debt (o), or 
 payable at a different time {p), or of a different nature 
 from the debt (</), or if the debt be contracted subse- 
 quently to the date of the will(r), or if the will contain 
 an express direction for payment of debts and legacies (5), 
 the legacy will not be a satisfaction. The leaning of 
 the courts is against the doctrine of the satisfaction of 
 debts by legacies, a doctrine which seems to have been 
 Satisfaction of established on rather questionable grounds. When, 
 poi ions, however, a sum of money is due to a child by way of 
 
 portion, the inclination of the courts is against double 
 portions ; and a legacy to such a child is accordingly 
 regarded as a satisfaction of the portion either in part 
 or in whole, notwithstanding such legacy may be less 
 than the portion, or payable at a different period (t). A 
 
 (i) Burr'ulfje v. Bractyl, 1 P. 300 ; Hales v. Darrell, 3 Bear. 
 
 "Wms. 127; Xorcottx. Gordon, U 324. 
 
 Sim. 258. ((2') Alleyn v. Alleyn, 2 Ves. 
 
 (Z) Stat. 3 & 4 Will. IV. c. 105. sen. 37 ; BartleU v, Gillard, 3 
 
 (jn) Sect. 12. Euss. 149; Fourdrin v. Gowdey, 
 
 («) FoKler V. Fowler, 3 P. 3 M. & K. 383, 409. 
 
 "Wms. 353; Fourdrin y. Gowdey, (r) Cranmer's case,2^2iXk.509>. 
 
 3 M. & K. 383, 409; 2 Roper on (5) Richardson v. Greese, 3 
 
 Legacies, c. 17, s. 1; Edmonds v. Atk. 65; Hassell v. Hawkins, 4 
 
 Low, 3 Kay & J. 318. Drew. 468. 
 
 (0) Graham v. Graham, 1 Yes. (t) Hinchcliffe v. Hinchcliffe, 
 
 sen. 262. 3 Ves. 516 ; Weall v. Rice, 2 
 
 (2?) Nickolls V. Judson, 2 Atk. Russ. & Myl. 251.
 
 OF A AVII.T.. 347 
 
 bequest of tlie residue, or of a share in the residue, of 
 the testator's estate, will also be cousidered as a satis- 
 faction pro tan to («). The presumption of satisfaction 
 is indeed so strong, that it is difficult to say Avhat cir- 
 cumstances of variation between the portion and the 
 legacy will be sufficient to entitle the child to both. 
 
 By a statute of George the Second, commonly called statute of 
 the Mortmain Act (.r), no hereditaments, nor any money, ^^ortmam. 
 stock in the pubKc funds, or other personal estate what- 
 soever to be laid out in the purchase of hereditaments, 
 can be conveyed or settled for any charitable uses (Avith 
 a few exceptions), otherwise than 'by deed, with certain 
 formalities mentioned in the act (y). And all gifts of 
 hereditaments, or of any estate or interest therein, or 
 of any charge or incumbrance affecting or to affect any 
 hereditaments, or of any personal estate to be laid out 
 in the purchase of any hereditaments, or of any estate 
 or interest therein, or of any charge or incumbrance 
 affecting or to affect the same, to or in trust for any 
 charitable uses whatsoever, are rendered void if made 
 in any other form than by the act is directed (z). This Bequest to 
 has been very strictly construed, and has been held to ^^*"*^i*^s- 
 prohibit the bequest for charitable purposes of personal 
 estate in any degree savouring, as it is said, of the realty. 
 Thus, it has been decided that money secured on mort- 
 gage of real estate (a), shares in a canal navigation (Z>), 
 
 («) Richman v. Morgan, 2 B. (y) Sec Principles of the Law 
 
 C. C. 394; Ua7'l of GlengaU v. of Real Property, 65, 1st ed.; 58, 
 
 Barnard, 1 Keen, 769; affirmed 2 2nd ed.; 60, 3rd and 4th eds.; 63, 
 
 H. of L. Cas. 131; Beckton v. 5th ed.; 65, 6th ed.; 67,7th ed.; 
 
 Barton, 27 Beav. 99, 106; Monte- 66, 8th ed. 
 
 fiore V. Gucdalla, 1 De Gex, F. & (z) Sect. 3. 
 
 J. 93; Coventry v. Chichester, 2 (a) Attorney- General y. Mey- 
 
 H. & Mill. 149; 2 De Gex, J. & rich, 2 Ves. sen. 44. 
 
 S. 336, reversed Law Rep., 2 H. {Jb) Hoivse v. Chapman,^. Ves, 
 
 of Lords, 71. 542, 
 
 {x) Stat. 9 Geo. 11. c. 36, s. 1,
 
 348 OP PERSONAL ESTATE GENERALLY. 
 
 and leasehold estates (c), cannot be left by "svill for any 
 cliaritable purpose. But more recently, the strictness 
 of the courts appears to have relaxed ; and it has lately 
 been held that money secured by a policy of assurance, 
 although the company may invest their funds in real 
 estates (f?), and shares in a banking company authorized 
 to invest money on mortgage of real estates {e), or in a 
 mining company (/), are not within the statute. So 
 railway scrip {g), and shares in gas companies (Ji), docks, 
 railways and canals (z), although such shares may not be 
 expressly declared by the acts establishing the under- 
 takings to be personal estate, are now held to be im- 
 affected by the statute. But debentures, by which such 
 undertakings ^nitli their rates and tolls are mortgaged, 
 have been held to be within the act {k)\ though such 
 debentures as are mere bonds or covenants to pay 
 money, and not mortgages, are clearly imafFected by 
 it(Z). With regard to the bequest of money to be laid 
 out in the purchase of hereditaments, it has been decided 
 that a bequest of money to be laid out in building on 
 land ah'eady in mortmain is good {m); but if some land 
 ah'eady in mortmain be not distinctly referred to, a be- 
 quest of money for building for any charitable purpose 
 
 {c) Attorney- Generaly. Graves, (i) Hilfony. Giraud, 1 De Gex 
 
 Amb. luo. & Smale, 183; Sjyarllng \. Parker, 
 
 {d)3Iarcli\. Attorney-General, nbi supra; Walker \. Milne, 11 
 
 5 Beav. 433. Beav. 507; Ashton v. Lord Lang- 
 {e) Ashton v. Lord Langdalc, <?«??, ubi supra; Ed wards ^ . Hall, 
 
 4 De Gex & Smale, 402; S. C. 15 G De Gex, M. & G. 74; Linley \. 
 
 Jur. 868; Myers t. Perigal, 2 De Tarjlor, 1 Giff. 67; affirmed, 2 De 
 
 Gex, Mac. & Gord. 599. Gex, F. & J. 84. 
 
 (/) Hayter v. Tucker, 4 Kay (Z;) Ashton y. Lord Langdale, 
 
 6 J. 243. See 3Iorris v. Glynn, ubi supra; Re Langhain's Trust, 
 27 Beav. 218. 10 Hare, 446. 
 
 ' (g') Ashton v. Lord Langdale, (I) Ashton v. Lord Langdale, 
 
 nbi supra. ubi supra. 
 
 (Ji) Thompson v. Thompson, 1 {m)Gluhh\. Attorney- General, 
 
 Coll. 381; Sparling v. Parker, 9 Amb. 373. 
 Beav. 450.
 
 OF A AMLL. 349 
 
 will be void, as implying a direction for the purchase of 
 land on which to build (n). And it has also been held 
 that a gift is void which tends directly to bring fresh 
 lands into mortmain, as a gift of money to a charity on 
 condition that other j)ersons provide the land(o). This 
 however has been overruled (/>). And if the purchase 
 of land be not involved in the gift, there is no laAV Avhich 
 prevents the bequest of purely personal property to any 
 amount for charitable purposes. A bequest to a charity 
 ought, therefore, to be directed to be paid out of such 
 part of the testator's personal estate as he may lawfully 
 bequeath for such a purpose. For if this precaution 
 should be neglected, the charitable legacies will fail in 
 the proportion Avhich the personal assets savouring of 
 the realty may bear to those which are purely per- • 
 sonal (q). 
 
 Other bequests wliich require some care are those to Gifts to illegi- 
 illegitimate children. It has been held that a bequest jren. 
 to the future illegitimate children of a particular woman 
 is void as tending to encourage immorality (r). And it 
 is clear that a bequest to the future illegitimate chil- 
 dren of a j)articular man is also void, as the coiu'ts 
 cannot enter into the inquiry which would be necessary 
 to identify such children (s). A child prima facie 
 means a legitimate child; a bastard is considered by 
 
 {n) Pritchard v. Arhouln, 3 614 ; Hohson v. Blaeltbuvn, 1 
 
 Russ. 456; Smith v. Oliver, 11 Keen, 273; Philanthropic So- 
 
 Beav. 481; In re Watmoiiffh's cicty v. Kemp, 4 Beav. 581 ; and 
 
 Trusts, V. C. M., Law Eep., 8 see Rohinson v. Geldard, 3 Mac. 
 
 Eq. 272. & Gord. 735; Tempest t. Tempest, 
 
 {d) Attorney- Generaly.Bavies, 7 De Gex, Mac. & Gord. 470; 
 
 9 Ves. 535; Mather v. Scott, 2 Beaumont r. Oliveif-afluL. J., L,&w 
 
 Keen, 172; Trye t. Corporation Eep., 4 Chan. 309. 
 
 of Gloucester, 14 Beav. 173. {r) Medn-orth v. Pope, 27 Beav. 
 
 (^) PMlpott V. St. George's 71. See also 2 Jarm. Wills, 153; 
 
 Hospital, 6 H. of L. Gas. 338. 202, 2nd ed. ; 204, 3rd ed. 
 
 {jl) Attorney- General v. Tyn- (.«) Wilkinson y. Adams, Wqs. 
 
 dull, 2 Eden, 207; S. C, 2 Amb. & Beauies, 4G6.
 
 350 OF PERSONAL ESTATE GENERALLY. 
 
 the laAv as nullius Jillus. Accordingly, an illegitimate 
 cliild can never take under a gift to cliildren, unless it 
 be clear, upon the terms of the mil, or according to the 
 state of facts at the making of it, that legitimate chil- 
 dren never could have taken {t). An illegitimate child 
 may, however, take under any gift in which he is suffi- 
 ciently identified as the object of the testator's bounty. 
 Thus, a bequest to the child of which a Avoman is now 
 pregnant is good {ii). And if illegitimate children have 
 acquired the reputation of being the children of the tes- 
 ^i^L-L* ►•/^^ator or any other person, and it appear by necessary 
 *""* implication on the face of the will that such persons 
 "^ ^^V\\ere intended in a bequest to children, they will be en- 
 titled, not on account of their being children, but on 
 account of their reputation as such (ar). 
 
 Rights of resi- After payment of the testator's debts and legacies, the 
 duaiy legatee, j-esidue of his personal estate must be paid over to the 
 residuary legatee, if any, named in the will. A will of 
 , personal estate has always been considered as speaking 
 \\ ftom the death of the testator; and it is now expressly 
 I I enacted, that every will shall be construed, with reference 
 ! ' to the real and personal estate comprised in it, to speak 
 and take effect as if it had been executed immediately 
 before the death of the testator, unless a contrary inten- 
 tion shall appear by the will ( ;/). Hence, it follows that 
 all personal property acquired by the testator between 
 the time of making his will and his decease will pass 
 La]ise. under it. If any legacy should lapse by the death of 
 
 {t) Cartriglit-v. Tan-dry, Ty Yes. 141. 
 
 530; Godfrey \. Davis, &YesA^; {x) WUMnso7iv. Adam,lY&s. 
 
 Harris v. Lloyd, 1 T. & Russ. &B.422; G ill \. Slielley, 2 Rass. 
 
 310; Bagley v. Mollard, 1 Russ. & My. 336; Muredith t. Fai'r, 2 
 
 & M. 581; Dover \. Alexander, 2 You. & Coll. 525. 
 
 Hai-e, 275; Re Overliill's Trust, (y) Stat. 7 Will. IV. & 1 Vict. 
 
 1 Sm. & Giff. 362. c. 26, s. 24. 
 
 («) Gordon v. Gordon,\^lcr\\. 
 
 H
 
 OF A WILL. 351 
 
 the legatee in the testator's lifetime, or should fail from 
 being contrary to law, it will fall into the residue, and 
 belong to the residuary legatee. And a legacy will lapse 
 by the death of the legatee in the testator's lifetime, al- 
 though given to the legatee, his executors, administrators 
 and assigns (^z), for these words are merely inserted in 
 analogy to the limitation of real estate to a man and his 
 heirs. If a bequest be made to two or more as joint Joint tenants. 
 tenants, and one of them die in the lifetime of the tes- 
 tator, his share will not lapse, but will survive to the 
 others (a). But if the bequest be to two or more_in Tenants iu 
 common, and one of them die in the testator's lifetime, 
 liis_s hare will lapse {b); unless the bequest be made t o a Bequest to a 
 class , as to th e children of A. in equal shares, in Av hich ^ ^^^' 
 case all who_auswer that description at the test_ator's_^^^<^>^< 
 
 decease (c), and also (if the period of distribution^ bet/. /^vLxl/^-<^ 
 postponed by the will) all who come into being bef ore jr. ^^.-f-Sl^.tSaX 
 s uch period ((/), will be entitled to divide the bequest 
 amongst them. It is, however, provided by the recent Legacies to 
 act for the amendment of the laws Avith respect to wills, ^ ^ ^^"' 
 that where any person, being a child or other issue of 
 the testator, to whom any personal estate sh^ll be be- 
 queathed for any interest not determfnable at or before 
 the death of such person, shall die in the testator's life- 
 time leaving issue, and any siwE^sue shall be living at 
 the death of the testator, such beqiiest shall not lapse, 
 but shall take effect as if the death of such person had 
 happened immediately after the death of the testator, 
 unless a contrary intention shall appear by the avlU (e). 
 
 (z) Elliott V. Baveniinrt, 1 P. (r) Yiner t. Francis, 2 Cox, 
 
 Wms. 83. 190; 2 Jarm. Wills, 74; 126, 2nd 
 
 (fl.) 3Iorley v. Bird, 3 Ves. 028, ed.; 142, 3rd ed.; Lee v. Pain, 4 
 
 631. Hare, 250. 
 
 (&) Bagwell v. Bry, 1 P. Wms. {d) Ayton v. Ayton, 1 Cox, 327 ; 
 
 700; Page t. Page, 2 P. Wms. 2 Jarm. Wills, 75; 127, 2nd ed.; 
 
 489; Barber v. Barher, 3 My. & 143, 3rd ed. 
 
 Craig, 688; Bain v. Lescher, 11 (e) Stat. 7 Will. IV. & 1 Vict. 
 
 Sim. 397. c. 26, s. 33.
 
 352 
 
 OF PERSONAL ESTATE GENERALLY, 
 
 The effect of this provision is curious. If the legatee 
 had died immediately after the testator, leaving a will, 
 it is evident that the estate bequeathed to him would 
 have passed under his will. It has been decided, there- 
 fore, that the will of the legatee shall, after his death, 
 operate on the estate l)('fpKathed to him. m the same 
 manner as if ho had been living {f). This provisionhas 
 bee;!! held to apjtly to a testamentary appointment under 
 a general power of appointment ( ff), but to be inappli- 
 cable to a testamentary appointment under a power to 
 appoint amongst the testator's children (/<); and it does 
 not extend to gifls to children or issue as a class, and 
 not individually (/). 
 
 Tomier right 
 of executor to 
 the residue. 
 
 Modem 
 statute. 
 
 If there were no residuary legatee, the residue of the 
 testator's personal estate, after pa^Tiient of debts and 
 legacies, formerly belonged to the executor for his own 
 benefit, unless a contrary intention appeared from his 
 being left executor in trust (/t), or from his having a 
 legacy left him for his trouble (Z), or from other cir- 
 cumstances {m). But by a modern statute {71), it is en- 
 acted, that when any person shall die, having by A\ill 
 or codicil appointed any executor, such executor shall 
 be deemed by couiis of equity to be a trustee for the 
 person or persons (if any) who would be entitled to the 
 estate under the Statute of Distributions, in respect of 
 any residue not expressly disposed of, unless it shall 
 
 {f)Johnson\. Johnson, ^HaxQ, 
 157. Probate duty attaches; 
 Perry^s executors v. The Queen, 
 Law Eep., 4 Ex. 27. 
 
 C/7) Eccles V. Chei/ne, 2 Kay & 
 J. 67G. 
 
 {h) Griffiths V. Gale, 12 Sim. 
 354; Freeland v. Pearson, M. K., 
 36 L. J., N. S., Chan. 374. 
 
 (/ ) Browne v. ITuminond, John- 
 
 son, 210. 
 
 (A) Pring v. Pring, 2 Vern. 99; 
 Bagwell v. Dry, 1 P. Wms. 700. 
 
 ( I) Rach field v. Careless, 2 P. 
 Wms. 158. 
 
 {>n) Mullen v. Bowman, 1 Coll. 
 197. 
 
 (n) Stat. 11 Geo. IV. & 1 Will. 
 IV. c. 40.
 
 OF A WILL, 353 
 
 appear by tlie will or any codicil thereto {o), that the 
 person so appointed executor Avas intended to take such 
 residue beneficially. The Statute of Distributions is 
 that under which the personal estate of any one dying 
 intestate is distributed between his widow and next of 
 kin. An account of this statute will be found in the 
 next chapter. 
 
 (o) Lore v. Gaze, 8 Beav. 472. 
 
 
 ^. ;«». ^ JL^^ J^o4" 
 
 W.P.P. A A
 
 354 
 
 OF PERSONAL ESTATE GENEPwVLLY. 
 
 CHAPTEE IV. 
 
 Jurisdiction of 
 ecclesiastical 
 courts over 
 goods of intes- 
 tate persons. 
 
 Fions uses. 
 
 OF INTESTACY. 
 
 The ecclesiastical courts until recently had jimsdiction 
 not only over tlie Avills of testators, but also over the 
 goods of persons dying intestate. This jurisdiction, 
 though of long standing, appears to have been at first 
 gradually acquired. In early times the clergy, being- 
 possessed of almost all the learning, appear to have 
 been the principal fi'amers of wills. The power they 
 thus acquired was exercised for their own benefit, every 
 man being expected, on making his wiU, after be- 
 queathing to his lord his heriot, in the next place to 
 remember the church («). If, however, a man should 
 have died intestate, without opportunity of making this 
 provision, the distribution of his goods devolved on the 
 chiu'ch, together with his friends, the lords first haying 
 taken his heriot (b). The Avife and the children were 
 entitled to their shares; and that part of the goods 
 which the intestate had power to dispose of by his will 
 (called the portion of the deceased) was applied by the 
 church in pios usus. This apphcation to pious uses 
 appears to have been as follows: in the first place, 
 the bequest, which it was to be presumed the intestate 
 would have made to the chiirch, was retained, and the 
 residue was then disposed of in paying the debts of the 
 deceased, and distributed amongst his wife and children, 
 his parents and their relatives. That this was the case 
 appears fi'om the comj)laints which were made by the 
 clergy of those days, of the interference of the tem- 
 
 («) Glanville, lib. 7, c. 5; Bract. 
 00 a; Fleta, lib. 2, c. 57. 
 
 (h) Bract. CO b; 
 su'ira. 
 
 Fleta, ubi
 
 OF INTESTACY. 355 
 
 poral lords in cases of intestacy, -wliereby tlie distribu- 
 tion of the effects in the manner pointed out was pre- 
 vented (c). The clergy themselves, however, do not 
 appear to have been always free from blame ; for they 
 are accused of having fr^equently taken the whole of the 
 intestate's portion to themselves, making no distribu- 
 tion, or at least an undue one, amongst the creditors and 
 relatives of the deceased {d ) ; and in order to remedy 
 this evil, it was enacted in the reign of Edward I., by 
 one of the very few statutes then passed relating to 
 personal estate (e), that the ordinary should be boimd 
 to ansAver the debts of an intestate, so far as his goods 
 would extend, in the same manner as the executors 
 wovdd have been bounden if he had made a testament. 
 The riffht of the creditor Avas thus clothed with a 
 remedy ; for, under this statute, an action at law might 
 be brought by the creditor against the ordinary for the 
 payment of his debt (/) ; but the right of the relatives 
 to the sm-plus still remained undefined. 
 
 The duty of administering intestates' effects was not, Adminis- 
 as may be supposed, usually performed by the bishops 
 in person. For this purpose they usually appointed an 
 administrator ; but, as personal property rose in import- 
 ance, it became desirable that this administrator should 
 not be considered as the mere agent of the bishop, but 
 should himself have a locus standi, in the king's courts. 
 It was accordingly enacted by a statute of the reign of 
 Edward III. {g), that where a man died intestate the 
 
 {c) Matthew Paris, 951, Addi- New Series, vol. ii. 355, 474. Sec 
 
 tamenta, 201,204,209(Wats'sed. also Dyke v. Walford, Privy 
 
 London, 1640); Constitutions of Council, 12 Jurist, 839. 
 
 Boniface, Constitutiones Proviu- (r?) Fleta, lib. 2, c. 67. 
 
 ciales, 20, at the end of Lynde- (e) Stat. 13 Edw. I. c. 19. 
 
 wood's Provinciale (Oxon. 1679), (/) 1 Ro. Abr. 906; Bac. Abr, 
 
 recited also in a Constitution of tit. Executors and Administrators 
 
 Archbishop Stratford (Lynd. Prov. (E). 
 
 lib. 3, tit. 13). Sec Gent. Mag. f//) 31 Edw. III. c. 11. 
 
 A A 2
 
 356 OF PERSONAL ESTATE GEXERALLY. 
 
 ordinaries should depute the next and most lawful Mends 
 of the deceased to administer his goods, which persons 
 so deputed shoidd have action to demand and recover 
 as executors the debts due to the deceased, to admi- 
 nister and dispend for the soul of the dead; and should 
 answer also, in the king's courts, to others to whom the 
 deceased was holden and bound, in the same manner as 
 executors should answer. By a subsequent statute (A) 
 administration might be granted to the widow of the 
 deceased, or to the next of his kin, or to both, as by the 
 discretion of the ordinary should be thought good. The 
 widow Avas usually prefeiTed to the next of kin in the 
 grant of administration (i) ; and a joint grant was seldom 
 made, so seldom, indeed, that the powers of co-admi- 
 nistrators appear to be still a matter of doubt (j). In 
 granting administration to the next of Idn, the ecclesi- 
 astical courts were guided by the right to the property 
 to be administered (^). This right avlU be hereafter ex- 
 plained. If none of the next of kin would take out 
 administration, a creditor might by custom do so, on 
 the ground that he coidd not be paid his debt until 
 representation were made to the deceased (Z); and, for 
 want of creditors, administration might be granted to 
 any person at the discretion of the court (m). But the 
 Conii; of Pro- Court of Probate Act, 1857 (w), has now abolished the 
 bate Act, 1 80/. ^j^Q^g of the jurisdiction of the ecclesiastical coiirts over 
 the effects of intestates ; and administration of the effects 
 of deceased persons is now granted by that court in the 
 same manner as the probate of wills (0). And after the 
 
 (/i) 21 Hen. VIII. c. 5. dams, 494. See Coombs v. Coombs, 
 
 (i) Webb Y. Keedham, 1 Ad- Law Rep., 1 Probate, 288. 
 dams, 494. («;) Williams on Executors, pt. 
 
 {j) Shep. Touch. 485, 486; 1, bk. 5, ch. 2, s. 1. 
 Williams on Executors, pt. 3, bk. {ii) Stat. 20 & 21 Vict. c. 77, 
 
 1, ch. 2. amended by stat. 21 & 22 Vict. c. 
 
 («) In the Goods of Gill, 1 95. 
 Hagg. 342. (o) A nte, p. 332. 
 
 (Z) Webb V. Xeedhuvi, 1 Ad-
 
 OF INTESTACY. 357 
 
 decease of any person intestate, his personal estate vests 
 in the jndge of the Conrt of Probate for the time being, 
 until letters of administration are granted, in the same 
 manner and to the same extent as they formerly vested 
 in the ordinary (/»). 
 
 The administrator, when appointed, has the same Rights and 
 right to and power over all the personal estate of the }!|jTidstrator.'^ 
 intestate as his executors would have had if he had 
 made a will {q), and this right and power relate back to 
 the time of the intestate's decease (r). The same duty 
 also devolves upon the administrator of paying the debts 
 in the first place. The provisions of the recent statutes 
 for protection of executors in distributing the assets of 
 their testator extend also to the administrator of the 
 effects of an intestate {s). He has also the same privi- 
 lege as an executor of retaining his own debt in prefer- 
 ence to all others of the same degree {t). But the sur- 
 plus, after payment of the debts, must be distributed 
 amongst the relatives of the intestate in proportions to 
 be hereafter mentioned. In order to enable the admi- Administra- 
 nistrator to inform himself of the state of the assets, and °^ ^ ^^^^' 
 to pay the debts of the deceased, the same period of a 
 year from the time of the decease as is allowed to an 
 executor is also given to the administrator before he can 
 be required to make any distribution (ii). But, notwith- 
 standing this delay, the interest of the persons entitled 
 to the surplus vests in them from the time of the decease 
 
 {p) Stat. 21 & 22 Vict. c. 95, 28, 29; 23 & 24 Vict. c. 38, s. 14, 
 
 s, 19, ante, pp. 341, 342; but not stat. 
 
 {q) Williams on Executors, pt. 23 & 24 Vict. c. 145, s. 30, ante, 
 
 2, bk. 1, ch. 1. p. 340. 
 
 (?•) Tkarpe V. Stalhvood, 5 Man. (0 Warner Y.Wainsfor(l,'Roh. 
 
 & Gran. 760; Foster v. Bates, 12 127; AVilliams on Executors, pt. 3, 
 
 M. & W. 226; Welchman v. bk. 2, ch. 2, s. 6. 
 Sturgis, 13 Q. B. 552. (?0 Stat. 22 & 23 Car. II. c. 10, 
 
 (s) Stats. 13 & 14 Vict. c. 35, s. 8. 
 8. 19; 22 & 23 Vict. c. 35, ss. 27,
 
 358 
 
 OP PERSONAL ESTATE GENERALLY. 
 
 of the intestate ; so that m case any of them should die 
 within a twelvemonth after the decease of the intestate, 
 the share of the person so dpng vnil pass to his own 
 executors or administrators {x). 
 
 Limited admi- 
 nistration : 
 
 durante mi- 
 norc aitate; 
 
 durante 
 absentia ; 
 
 pendente lite; 
 
 In some instances administration is granted for a 
 limited purpose, or confined to a given time. Of this 
 we have ah'eady had an instance in the case of admi- 
 nistration durante mmore cetate, when the sole executor 
 named in a will is under age (y) ; and the same sort of 
 administration is granted on intestacy, in case of the 
 minority of the next of kin (2-). So if the executor or 
 next of kin, as the case may be, should be out of the 
 realm at the time of the decease of the testator or intes- 
 tate, the court will grant a limited administration durante 
 ah sent id, wliicli will exph^e the moment of the retiu'n of 
 such executor or next of kin. And if the executor 
 should prove the will, or if any person should obtain 
 letters of administration, and afterwards go to reside 
 out of the jurisdiction of the English coiu'ts, the court 
 is empowered by act of parliament (a) to gi'ant ad- 
 ministration, at the end of the year from the death of 
 the testator or intestate. Again, when a suit con- 
 cerning the right of administration is pending in the 
 Court of Probate, that court may appoint an adminis- 
 trator pendente lite, who ^dll have all the rights and 
 powers of a general administrator, other than the right 
 of distributing the residue of the personal estate (6) ; 
 and the administrator so appointed may receive such 
 reasonable remuneration for his trouble as the court 
 may think fit (c). The court also may appoint such 
 
 (ar) Edwards v. Freeman, 2 P, 
 Wms. 442. 
 
 (y) Ante, p. 329. 
 
 (z) Williams on Executors, pt. 
 1, bk. 5, ch, 3, s. 3. 
 
 («) Stat. 38 Geo. IIL c. 87, ss. 
 
 1—5, extended by stats. 20 & 21 
 Vict. c. 77, s. 74; 21 & 22 Vict. c. 
 05, s. 18, 
 
 (b) Stat. 20 & 21 Vict. c. 77, 
 s. 70. 
 
 (c) Sect. 72.
 
 OF INTESTACY. 359 
 
 administrator or any otlicr person receiver of tlie real 
 
 estate of the deceased pending any suit toucliing the 
 
 validity of liis will, if it affect snch real estate (d). So cum testa- 
 
 if a AviU should have been made, l)ut the executors ''''"**' ^''"^^°' 
 
 should have renounced, or died before their testator, 
 
 the court will appoint the person liaving the greatest 
 
 interest in the effects, generally, the residuary legatee, 
 
 to administer the same according to the du-ections of 
 
 the will, in which case the administration granted is 
 
 termed an administration cum testamento annexo, "u^tli 
 
 the will annexed {e). And it is now provided, that, 
 
 if by reason of the insolvency of the estate of the 
 
 deceased, or other special circmnstances, the coiui; 
 
 shall think it necessary or convenient to appoint as 
 
 administrator any other person than the person by law 
 
 entitled to the grant, the court may do so ; and every 
 
 such administration may be limited as the court shall 
 
 tliiuk fit (/). 
 
 Letters of administration, as well as probates, are Stamp duty on 
 liable to the payment of an ad valorem stamp duty on 
 the value of the personal estate of the deceased within 
 the United Kingdom, if it exceed in value the sum of 
 lOOZ. {()) ; but the duty on letters of administration, 
 where there is no will, is after a higher rate than the 
 duty on probates, or on letters of administration with 
 the will annexed {It). A heavy penalty is imposed by 
 the Stamp Act on any person who shall take possession 
 of, or in any manner administer any part of the ' per- 
 sonal estate of any deceased person, without obtaining 
 
 (^Z) Stat. 20 & 21 Vict. c. 77, s. L. R., 1 Probate, 306 ; In the 
 
 71. Gnorls of Frascr, L. K., 1 Pro- 
 
 {r) "Williams on Exccntors, pt. bate, 327. 
 
 1, l)k. 5, ch. 3, s. 1. (r/) Ante, p. 33». 
 
 (/) Stat. 20 & 21 Vict. c. 77, s. (A) Stat. 55 Geo. III. c. 184. 
 73 ; In the Goods of Llunwarne, 
 
 administra- 
 tious.
 
 360 
 
 OF PERSONAL ESTATE GENERALLY, 
 
 probate or administration -svitliin six calendar montlia 
 after his or her decease, or Avithin two calendar months 
 after the determination of any suit or dispute respecting 
 Exemptions. the will or the right to administration (z). The same 
 exemptions from duty in favour of seamen, marines 
 and soldiers, which have been established Avith respect 
 to the proljate duty (/<), apply also to the duty on letters 
 of administration. 
 
 Office of arlmi- 
 
 Adminish-a- 
 tion de bonis 
 non. 
 
 The office of administrator is not ti-ansmissible, like 
 On the decease of an adminis- 
 trator, before he has distributed all the effects of the 
 intestate, a new administi'ator must be appointed ; for 
 the administrator or executor of such administrator has 
 no right to intermeddle. So if an executor should 
 die intestate, without ha\ang completely distributed his 
 testator's effects, an administrator must be appointed 
 to distribute, according to the will of the testator, such 
 of his effects as were not distributed by the deceased 
 executor (/). In each of these cases the administration 
 granted is called an administration de bonis non adminis- 
 tratis, of the goods not administered, or, more shortly, 
 de bonis non (m). All second and subsequent grants of 
 probate or letters of administration must be made in 
 the principal registry of the Court of Probata, or in the 
 district registry where the A\aLL is registered or the 
 original grant of administration has been made, or to 
 which it may have been transmitted (w). 
 
 Statutes of 
 Distribution. 
 
 The application of an intestate's effects, after payment 
 of his debts, is now regidated by statutes of the reign 
 
 (i) 100^., and ten per cent, on 
 the stamp duty. Stat. 55 Geo. III. 
 c. 184, s. 37. 
 
 (k) Ante, pp. 337, 338. 
 
 (Z) Shep. Touch. 465; Williams 
 
 on Executors, pt. 1, bk. 3, ch. 4. 
 
 (?«) Williams on Executors, pt. 
 1, bk. 5, ch. 3, s. 2. 
 
 in) Stat. 21 & 22 Vict. c. 95, 
 
 s. 20.
 
 OF INTESTACT. 361 
 
 of Cliai'les II. and James II. (o), commonly called the 
 Statutes of Distribution, by wliicli statutes the rights of 
 the relations of the deceased appear to have been first 
 definitely ascertained and rendered legally available. 
 Under these statutes, if the intestate leave a widow and Widow's 
 any child or children, or descendant of any child, the 
 widow shall take a third part of the surplus of his 
 effects. If he leave no child, nor descendant of any 
 child, she shall have a moiety. In this respect, the 
 disti-ibution is the same as took place under the ancient 
 law. The husband of a married woman is entitled to 
 the whole of her effects (p). If the intestate leave Shares of 
 children, two-thirds of his effects if he leave a widow, *^'^ ^°* 
 or the whole if he leave no widow, shaU be equally 
 divided amongst his children, or, if but one, to such 
 one child. But the descendants of such children as and their de- 
 may have died in the intestate's lifetime, shall stand in s^c"'^^°t^- 
 the place of their parent or ancestor ((/). Such chil- Advancements 
 dren, however, as have been advanced by the parent to be accounted 
 in his lifetime must bring the amount of their advance- 
 ment into hotchpot, so as to make the estate of all the 
 children to be equal, as nearly as can be estimated. 
 But the heir at law, notwithstanding any lands he may 
 have by descent or otherwise from the intestate, is to 
 have an equal part in the distribution with the rest of 
 the children, without any consideration of the value of 
 such land (r). If the intestate leave no children or Father of in- 
 representatives of them, his father, if living, takes the *^^*^'^'^' 
 whole ; or, if the intestate should have left a widow, 
 one-half. If the father be dead, the mother, brothers, iMother, bro- 
 and sisters of the intestate shaU take in equal shares (s), f^^}'^ ^'"^ ^^*' 
 
 (o) 22 & 23 Car. II. c. 10; 1 pi. 1402. 
 Jac. II. c. 17, s. 7. See Watkins (?•) Stat. 22 & 23 Car. II. e. 10, 
 
 on Descents, Appendix, 257 <?^se2'. s. 5 ; Boi/d v. Boyd, V. C. W. 
 
 4th edit. Law Rep., 4 Eq. 305. 
 
 {p) Stat. 29 Car. II. c. 3, s. 25. (s) Stat. 1 Jac. II. c. 17, s. 7. 
 
 (£) See Burton's Compendium,
 
 3G2 OF PERSONAL ESTATE GENERiiLLY. 
 
 subject, as before, to the widow's riglit to a moiety ; and 
 brothers or sisters of the half blood have an equal claim 
 with those of the whole blood (t). If any brother or 
 sister shall have died in the lifetime of the intestate, 
 *7 ^,^g^^J[^ fcjw^t) , leaving children, such ch ildren shall stand in loco 
 parentis, provided the mother or any brother or sister 
 be living (m). If there be no brother or sister, nor 
 child of such brother or sister, the mother shall take 
 the whole, or, if the widow be living, a moiety only, as 
 before ; but a stepmother can take nothing {x). If 
 there be no mother, the brothers and sisters take 
 equally, the children of such as may be dead standing 
 Next of kin. in loco jjarejitis. Beyond brothers' and sisters' children, 
 no right of representation belongs to the cliildren of 
 relatives with respect to the shares which their deceased 
 parents would have taken. And if there be neither 
 brother, sister nor mother of the intestate living, his 
 personal estate Avill be distributed in equal shares 
 amongst those who are next in degree of kindred to 
 him. 
 
 Degrees of In tracing the degrees of kindred in the distribution 
 
 accordin^^ to° of an intestate's personal estate, no preference is given 
 the civil law, to males over females, nor to the paternal over the 
 maternal line (y), nor to the whole over the half blood, 
 as in the case of descent of real estate ; nor does the 
 issue stand in the place of the ancestor. The degrees 
 of kindred are reckoned according to the civil law, both 
 upwards to the ancestor and downwards to the issue, 
 each generation counting for a degree {z). Thus from 
 
 (t) Jessopp V. Watson, 1 My. & of Rutland, 2 P. Wms. 216. 
 
 K. 6G5 ; Burnet v. Mann, 1 My. (//) Moovy. Bai-liam, 1 T.Wms. 
 
 & K. G72, n. 53. 
 
 (?() Lloyd V. Tench, 2 Ves. sen. (z) 3Icntney v. Petty, Pre. 
 
 215; Durant v. Prcstwood, I Cha. 59.S; WalUs v. Hodson, 2 
 
 Atk. 454; West, 448. Atk. 117; 2 Clack. Com. 504, 515. 
 
 {x)Duhe ofUuLland v. JDucUess
 
 OF INTESTACY. 363 
 
 father to son^ or from son to fatlier, Is one degree ; 
 from grandfather to grandson, or fi'om grandson to 
 grandfather. Is two degrees; and from brother to 
 brother Is also two degrees, namely, one upwards to the 
 father, and one do\\Tiwards to the other son. So from 
 uncle to nephew Is three degrees, one upwards to the 
 common ancestor, and two downwards from him ; and 
 fr'om nephew to uncle Is also tlu'ee degrees, two upwards 
 and one downwards. If therefore there be neither 
 issue, fg-ther, brother, sister nor mother of the Intestate 
 living, such persons as are his next of kin, according to 
 the ride above laid down, are entitled In equal shares 
 per capita to his personal estate, subject to his wife's 
 right to a moletj, should she survive him. As the 
 kindred becomes more distant, the number of persons 
 entitled, if Ihang, as well as the difficulty of proving 
 their respective pedigrees, becomes prodlg'Iously aug- 
 mented. "It Is at the first view astonishing," says 
 Blackstone (a), " to consider the number of lineal 
 ancestors which every man has within no very great 
 number of degrees : and so many different bloods is a 
 man said to contain in his veins as he hath lineal an- 
 cestors. Of these he hath two in the first ascending 
 degree, his owm parents ; he hath four In the second, 
 the parents of his father and the parents of his motliei' ; 
 he hath eight in the third, the parents of his two grand- 
 fathers and two grandiuothers ; and, by the same nde 
 of progression, he hath an hundred and twenty-eight in 
 the seventh ; a thousand and twenty-four in the tenth ; 
 and at the twentieth degree, or the distance of twenty 
 generations, every man hath above a million of ances- 
 tors, as common arithmetic will demonstrate." The 
 number of collateral relations who may claim through 
 sucli ancestors is of course far more numerous. 
 
 («) 2 Black. Cora. 203.
 
 364 
 
 OF PERSON^U. ESTATE GENERALLY. 
 
 Customs of 
 London and 
 York. 
 
 Wales. 
 
 The estates of intestate freemen of tlie city of Lon- 
 don {b), and of persons having their fixed or general 
 residence within the archiepiscopal province of York 
 (excepting the diocese of Chester), were until recently 
 distributed according to peculiar customs, apparently 
 derived from the ancient mode of distribution (c). Some 
 parts of Wales also appear to have been subject to 
 peculiar cvistoms of distribution ; for these several cus- 
 toms, though postponed to the right of testamentary 
 disposition by the statutes to which we have iilready 
 referred {d), were nevertheless not abolished by those 
 statutes in the event of no will being made. But a 
 recent statute has now altogether abolished all cus- 
 tomary modes of administration (e). 
 
 Duty on shares 
 of an intes- 
 tate's estate. 
 
 The crown. 
 
 The shares of persons claiming any personal estate of 
 the amount or value of 20Z. or upwards under an intes- 
 tacy are subject to the same duty as legacies to persons 
 of the same degree of kindred (/). If there be no next 
 of kin, the crown, by virtue of its prerogative, will stand 
 in their place ((/), but subject ahvays to the widow's 
 right to a moiety in case she should survive (A). 
 
 Place of the 
 half blood. 
 
 The division of the personal estate of an intestate, 
 effected by the Statute of Distributions, is remarkable 
 for its fairness. The only provision which might be 
 amended is that which places the half blood on an equa- 
 lity with the whole. A corresponding equality in inte- 
 rest and feeling but rarely exists in actual hfe. The 
 
 (J) Onslow \.Onslon\ 1 Sim. 18. 
 
 (c) Williams on Executors, pt. 
 3, bk. 4, eh. 2. 
 
 {d) Ante, p. 321. 
 
 (e) Stat. 19 & 20 Vict. c. 94. 
 
 (/) Stat. 55 Geo. III. c. 184. 
 See ante, pp. 342, 343. 
 
 (g) Taylor v. Haygarth, 14 
 Sim. 8; Powells. Merrett, 1 Sma. 
 & Giff. 381. See stat. 15 & 16 
 Vict. c. 3. 
 
 (/t) Cave V. Eoherts, 8 Sim. 
 214.
 
 OF INTESTACY. 3G5 
 
 proper place for the half blood appears to be that now 
 assigned to them in the descent of real estate, according 
 to the recommendation of the Real Property Commis- 
 sioners, namely, next after those of the same degree of 
 the whole blood (z). The appointment of an executor 
 or administrator, in whom the whole personal property 
 is vested, with full power of disposition, tends greatly to 
 simplify the title to leasehold estates and other property 
 of a personal nature. It could be wished, however, that 
 the office of an administrator were transmissible in the 
 same manner as that of an executor. In other respects. Points in 
 the distribution of personal estate on intestacy ap- bil^Tonlrpre- 
 proaches far more nearly to the disposition which the ferable to 
 deceased himself woidd probably have made, than the 
 descent of real property, either at the common law or 
 according to the custom of gavelkind. A person pos- 
 sessed only of small landed property usually devises it 
 to trustees for sale, with full poAver to give receipts to 
 purchasers, and directs the di\dsion of the produce by 
 his trustees amongst his children in such shares as he 
 may think just, with regard to the provision akeady 
 made for any of them in his lifetime. He does not 
 leave his yovmger children to beggary in order that his 
 whole property may devolve to his eldest sou according 
 to the course of the common law, a course pursued, as 
 the author believes, in no other ci\dlized country in the 
 world (A). Neither does he leave it to all his sons 
 equally in imdivided shares, thus inflicting an injustice 
 on his daughters, and allowing all plans for the improve- 
 ment of the lands to be checked by one dissentient voice, 
 unless a partition should be resorted to, by which the 
 property would be split up into parcels too small for the 
 convenience of agriculture. If by any accident a man 
 
 (i) See Principles of the Law 5th ed. ; 97, 6th cd.; 100, 7th ed.; 
 of Real Property, 77, 1st ed. ; 82, 103, 8th ed. 
 2nd ed.; 86, 3rd and 4th eds.; 91, (k) Co. Litt. 191 a, n. (1), vi. 4.
 
 366 OF PERSONAL ESTATE GENERALLY. 
 
 should die without making his will, it would seem to be 
 the province of an equitable legislature to make such 
 a disposition of his property as would, in ordinary cir- 
 cumstances, most nearly coiTcspond wdth his intention. 
 It is true that when property is large, it is usually 
 entailed on the eldest son and his issue, subject to 
 Primogeniture, moderate portions for the younger children. This cus- 
 tom of primogeniture is suited to the institutions of our 
 country, and to the habits of the class to which large 
 landed property usually belongs, and the author has no 
 wish to see it disturbed. The settlements, however, by 
 which these entails are created are more frequently made 
 by deed than by Avill. They almost invariably contain 
 provisions for the portions of younger children, varying 
 in amount with the value of the property ; and, whether 
 made by deed or will, they are usually long and intri- 
 cate in their nature, providing for the numerous contin- 
 gencies which may arise under the peculiar circumstances 
 of each family. Nothing in fact can be more different 
 than the devolution of an estate to the eldest son under 
 a family settlement, and the descent on an intestacy to 
 the eldest son as heir at law. In the one case he takes 
 subject to the proper claims of the other members of 
 his family ; in the other he is bound to them by no ob- 
 ligation at all. There seems to be no method of making, 
 in case of intestacy, any sort of disposition of landed 
 property which might be reasonably simple, and at the 
 same time resemble an ordinary family settlement. If 
 such a settlement be not made by deed, the owner has 
 ample poAver of effecting the same object by his will. 
 Intestacy, in fact, rarely happens to the owner of large 
 landed property. The property which descends to heirs 
 under intestacies, though large in the aggregate, is 
 generally smaU in individual cases. When the Avishes 
 of all cannot be consulted, that Avhich would have been 
 the wish of the generality of intestates ought apparently
 
 OP INTESTACY. 3G7 
 
 to form the foundation of the rule. From a considera- 
 tion of these circumstances the reader may perhaps be 
 indviced to think, that if, in case of intestacy, the rules 
 for the devolution of real and personal estate were iden- 
 tical, and with some slight variations similar to those 
 which now exist as to personalty, the law on this subject 
 woidd be rendered both more simple and more just. 
 
 The descent of real estate to distant heu-s, and the Descent and 
 devolution of personalty to distant kindi-ed, involve an jjstant heirs 
 amount of learning and litigation, the abolition of which and kindred. 
 would perhaps be desirable. The family and near re- 
 lations of an intestate have generally claims upon his 
 boimty, which ought not to be disappointed by the acci- 
 dent of his decease Avithout making a vnVi. But distant 
 relatives have seldom any such claims, nor consequently 
 any expectation of such claims being fidiilled. To with- 
 hold fl-ora them, therefore, that which they had never 
 expected to enjoy, would not be to inflict a loss. Under 
 the present system, the property of an intestate who has 
 no near relations, is not unfrequently frittered away iu 
 expensive contests between opposing claimants, or else 
 it devolves unexpectedly upon persons who, for want of 
 previous education, are unable to make use of it with 
 benefit either to themselves or to the community. In a 
 country so heavily burdened as oiu- own, any addition 
 to the public income, not having the pressiu-e of a tax, 
 woidd be a very desirable acquisition. Such an addi- 
 tion might, as it appears to the author, be very properly 
 made by the devolution to the public of the properties 
 of intestates having none but distant relatives. The 
 country in which a man has hved, and in which his 
 property has been acquu-ed, or at any i*ate protected, 
 has certainly some claims upon him, — claims which 
 seem preferable to those of the man who, in the case of 
 real estate, founds his title on liis descent from the jnost
 
 368 OF PERSOXAL ESTATE GENERALLY. 
 
 remote male paternal ancestor of the intestate {l), or 
 who claims a share in the personalty because he chances 
 to be a survivor amongst the multitude standing in the 
 fifth or sixth degree of a series of kindred which in- 
 creases, as it grows distant, in geometrical progres- 
 sion (m). 
 
 {I) See Principles of the Law (m) The author's attention has 
 
 of Real Property, 78, 1st ed.; 83, since been called to a similar pro- 
 
 2nd ed. ; 87, 3rd and 4th eds. ; 92, posal in Mill's Political Economy, 
 
 5th ed.; 98, 6th ed.; 101, 7th ed.; vol. 1, pp. 272, 273, 2nd ed. 
 104, 8th ed.
 
 ( 369 ) 
 
 CHAPTER V. 
 
 OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 
 
 Marriage, being essential to the welfare of the com- 
 munity, and also involving important consequences to 
 the individuals concerned, is not on the one hand 
 allowed to be unduly restrained, nor on the other to be 
 brought about by unfair' means. 
 
 Amongst the many striking differences between the Restraints on 
 laws of real and personal property, by Avhich our legal ™'^''^'''*se. 
 system is complicated, will be found the niles relating 
 to attempted restraints on marriage. Real estate is 
 governed by the miles of the common law ; but personal 
 estate, when bequeathed by will, has, as we have seen («), 
 long been subject to the jurisdiction of the ecclesiastical 
 courts. These courts have adopted, with some modifi- 
 cation, the rules of the civil law, which is more favom-- 
 able than the common law of England to liberty of 
 choice in marriage. Hence it follows that some restric- 
 tions on marriage, which are valid when applied to a 
 gift of real estate, are void when attempted to be im- 
 posed on a gift of personal property. The rules respect- 
 ing real and personal estate so far agree that a condition 
 annexed to a gift of either, that a person shall not 
 marry at all, is void (b). But a gift of either by a 
 husband to his wife during her widowhood is valid (e) ; 
 neither would a gift of the income of property to a 
 single person until marriage, with a gift over on mar- 
 
 (a) A7ite, ]). 333. Cr. 145; Morley v. BennoMson, 
 
 (b) Shep. Touch. 132; Pen-in 2 Hare, 570. 
 
 V. Lyon, 9 East, 170, 183; liisJi- (c) Barton v. Barton, 2 Vern. 
 
 ton V. Cobb, 9 Sim. G15; 5 My. & 308. 
 
 w.r.i". ij B
 
 .370 OF PERSONAL ESTATE GENERALLY. 
 
 Marriajje with- nagc, appear to be invalid (d). When, however, a gift 
 out consent. -^ j^ade, vnth a condition that it shall be forfeited if the 
 donee many Avithout the consent of certain trustees or 
 other persons, the difference between the laws of real 
 and personal estate becomes conspiciious. If the gift 
 be of real estate, or of money charged on real estate, it 
 wall cease on the event of mamage wdthont the required 
 consent (e). But if it be a bequest of personal property, 
 the condition is regarded as merely i?i terror em and 
 void {/), unless accompanied by a bequest over to some 
 other person on the marriage taking place mthout con- 
 sent (jf) ; so that the legatee will be entitled to retain 
 the legacy, notwithstanding his or her marriage without 
 consent, unless on that event it be expressly given in 
 some other manner. Such conditions in bequests of 
 personalty when unaccompanied by a gift over, are 
 called in terror em, because, says Lord Eldon, "they 
 are supposed to alarm persons, when we know they con- 
 tain no terror whatsoever" (Ji ). 
 
 IMarriage bro In order to prevent marriages from being unfairly 
 *^'^^^' obtained, it is a ride in equity that all contracts for re- 
 
 ward for procm-ing marriages (called mamage brocage) 
 are void {i). And if a parent or guardian should stipu- 
 late for any private benefit for the marriage of his child 
 or ward, such stipidation would be void, and money ac- 
 tually paid under it would be decreed to be refunded (J). 
 
 ((f) See Rigid d. Compton v. Ca. 22. 
 
 Compton, 9 East, 267 ; Morley v. (^) Stratton v. Grymes, 2 Vem. 
 
 Rennoldson, 2 Hare, 570, 580 ; 357 ; Harvey \. Aston, 1 Atk. 
 
 Webb T. Grace, 2 Phil. 701 ; 3G1 ; Clarke v. Parker, 19 Ves. 
 
 Lloyd y. Lloyd, 2 Sim., N. S. 255; 1, 13. 
 
 Heath v. Lewis, 3 De Gex, M. & (70 19 Ves. 13. 
 
 G. 954 ; Evans v. Prosser, V. C. (i) Hall y. Potter, 3 Levinz, 
 
 W., 10 Jur., N. S. 385. 411 ; Shower's Par. Gas. 76. 
 
 (e) Reynish v. Martin, 3 Atk. (^j) 1 Fonblanqne on Eqnity, 
 
 330, 333. 2fi2; Smith v. Bniniiui, 2 Vern. 
 
 (/) Belliisis v. Ermine, 1 Cha. 392.
 
 ment as to iii- 
 aiits. 
 
 OF THE MUTUAL RIGUTS OF HUSBAND AND WIFE. 371 
 
 Few mamagcs are now contracted between persons iMarria^^c set- 
 possessing any amount of property, witliout a previovis ^'"'^" ^" 
 settlement of such property being made, in some stipu- 
 lated manner, for tlie benefit of the intended hiisband 
 and Avife and the cliildi-en of the marriage. As marriage 
 is a valuable consideration (A), such settlements are bind- 
 ing on both parties if of full age. And an act of parlia- New enact- 
 ment has recently been passed (/), enal^ling every infant " 
 not under twenty if a male, and not under seventeen if a 
 female, to settle his or her property, whether real or per- 
 sonal, upon marriage, provided the sanction of the Com-t 
 of Chancery* be obtained. But if the settlement be not Not binding 
 made under the provisions of this act, and either hus- "^g^'^"^ ""'^''' 
 band or ^xife should be imder age, the settlement Avill not 
 be binding on him or her (w), although the other party, 
 if of hill age, will be bound by it (ji). And if both of 
 them should be under age, neither of them will be bound 
 by it. The circumstance of the settlement of an infant's 
 personal property being fair and reasonable, and made 
 with the approbation of his or her guardians, was for- 
 merly considered as giving it validity (o) ; but this cir- 
 cumstance seems now to have no weight. It has, how- 
 ever, been decided that a competent legal jointm-e (j)) 
 settled on the intended wife, then an infant, with the 
 concurrence of her guardians, in lieu of her right to 
 dower out of her husband's freehold lands, and in lieu of 
 her distributive share of liis personal estate in the event 
 of his intestacy, was sufficient to deprive her both of her 
 
 (k) Ante, p. 74. C. C. 106; Milner v. Lord Hare- 
 
 (Z) Stat. 18 & 19 Vict. c. 43; nwod, 18 Ves. 259. 
 
 Re Dalton, 6 De Gex, M. & G. (o) 2 Eoper's Ilushand and 
 
 201, extended to the Court of Wife, 2fi. 
 
 Chancery in Ireland, by stat. 23 { j)) See Principles of the Law 
 
 & 24 Vict. c. 83. of Real Property, 174, 1st ed.; 
 
 (ill) Elliso7i V. Eln-in, 13 Sim. 184, 2nd ed. ; 191, 3rd ed. ; 192, 
 
 309 ; Le Vassetir v. Scratton, 14 4th ed. ; 201, 5th ed. ; 21 1, Gth ed. ; 
 
 Sim. 116. 216, 7th ed. ; 225, 8th ed. 
 
 (») Durnfurd v. Lane, 1 Bi-o. 
 
 B B 2
 
 372 OF PERSONAL ESTATE GENERALLY. 
 
 doAver and of her distnbutive sliare in her husband's 
 personalty (§-). When the intended wife only is an in- 
 fant, a settlement of her personal estate in possession is 
 .-^/ valid, on account of the interest which, as we shall see, 
 the law gives to the husband in such personal estate. 
 The settlement in such a case is in fact not made by 
 the wife, but by the husband, who, being adult, is bound 
 by its provisions to the extent of the interest which he 
 would have taken had no settlement been made (r). 
 
 C < < 
 
 Tii rights ' If no settlement be made, the principles which govern 
 and witk * ^^^® rights of husband and wife to personal property must 
 still be ti'aced to the circumstances of ancient rather 
 than of modem times. In ancient times landed property 
 was by far the most important ; and the wife was ac- 
 cordingly entitled to a provision out of the lands of her 
 husband, in the event of her surAdving him, which no 
 alienation that he could make, nor any debts which he 
 might incur, were able to set aside (s). But in those 
 days personal property was of too insignificant a value 
 to be the subject of any such provision. And if a woman 
 now marry without a settlement, she has stiU no claim 
 on her husband's personal estate, however large, unless 
 he shoidd happen to die intestate, in which case, as we 
 have already mentioned, she is entitled to a third or a 
 half of what he may leave, according as he may or may 
 not leave issue siu-A^Aing him. A husband, on the other 
 hand, was in ancient times considered absolutely entitled 
 to such personal chattels as his wife might possess. In 
 this respect the law was then both simple and sufficient. 
 By the act of marriage, the wife placed herself rmder the 
 coverture or protection of her husband. She became. in 
 
 (<2') Uarl of BiicTiingJiam v. of Real Property, 172, 1st ed. ; 
 
 Dn^ry, 3 Brown's Par. Cas. 492. 182, 2nd ed.; 189, 3rd ed.; 190, 
 
 (r) Trollope Y. Linton, 1 Sim. 4th ed.; 199, 5th ed ; 209, Cth 
 
 & Stu. 477, 487. ed.; 213, 7th ed. ; 223, 8th ed. 
 
 (.S-) See Principles of tho Law
 
 OF THE MUTUAL RIGHTS OF HUSBAND AND AVIFE. 373 
 
 tlie law Frencli of tliose days ^feme covert. Tliencefortli 
 all demands to wliicli slie was personally liable were to 
 be answered by her natural protector. The wife was 
 considered as merged in her husband, and both Avere 
 regarded as but one person {t). So long therefore as the 
 coverture continued, that is, diu^ing the joint lives of the 
 husband and wife, the husband was absolutely entitled 
 to all personal property which his wife might acquire, 
 and was also liable to the payment of all debts which 
 she might ])re\aously have incurred. These simple 
 principles still pervade the law relating to the husband's 
 interest in his Avife's personal estate ; although the several 
 different species of personal estate to which modern 
 civilization has given rise, conjoined with the rules of 
 equitable administi'atiou laid down by the Court of 
 Chancery, have given to tliis branch of law a perplexity 
 imknown to the simple, though somewhat harsh, rules 
 of our ancestors. 
 
 In the first place, then, personal property of the The wife's 
 
 , . T 1 1 1 1 11 chattels per- 
 
 ancient kind, namely, chattels personal or moveable g^nai belong 
 goods, belonging to the wife at the time of her mar- ^ ^^r hus- 
 riage, or given to her afterwards, become the absolute 
 property of her husband in the same manner precisely 
 as if they had been originally his own, or had been sub- 
 sequently given to him (u). He may dispose of them 
 as he pleases in his hfetime or by his will ; they will be 
 subject to his debts ; and if he shoidd die intestate, the 
 wife will have no forther claim to them than to any 
 other of his effects. So imperative is this ride, that if 
 chattels personal be given to a married woman jointly 
 with a stranger, the law will instantly sever the jointure. 
 
 it) Pr. R. P. 1G4, 1st ed.; 176, (?<) Co. Litt. 300 a; 351 b; 
 
 2nd ed. ; 183, 3rd ed.; 184, 4th Bac. Abr. tit. Barou and Feme 
 
 ed. ; 190, 5th ed.; 200, Gth ed.; (C.) 3; 1 Rop. Husb. and Wife, 
 
 207, 7th ed. ; 214, 8th ed. 169.
 
 374 OF PERSON^VX, ESTATE GEISEEALLY. 
 
 and make tlie husband and the stranger tenants in 
 common [v). 
 
 Paraphernalia. The Only exceptions to tliis sweeping rule are the 
 wife's paraphernalia, so called from the Greek 7roipoL<^spvYi, 
 being things to which the wife is entitled over and 
 above her dower. The Avife's paraphernalia consist of 
 her apparel and ornaments suitable to her rank and 
 degree (.r) ; and gifts made by the husband to his wife 
 of jewels or trinkets to be worn by her as ornaments 
 are considered as part of her paraphernalia (?/). These 
 articles, equally with the wife's other personal chattels, 
 may be disposed of by the husband in his lifetime {z), 
 and, with the exception of the wife's necessary clothing, 
 are also liable to his debts (a). The wife also herself 
 has no power to dispose of them by gift or will during 
 her husband's lifetime (b). But paraphernalia differ 
 from the wife's other personal chattels in this respect, 
 that the husband, though he may dispose of them in his 
 lifetime, has no power to bequeath them away from his 
 wife by his will(c). Gifts of jewels or trinkets made 
 to the wife by a relative or friend, either upon or after 
 her marriage, will generally be considered in equity as 
 intended for her separate use (r/), in which case they 
 will not be reckoned amongst her paraphernaha, but 
 will, as we shall hereafter see, be exempt from the 
 
 (;') Bracchridge v. Cooh, Plow- Ea7-l of Plymouth, 2 Atk. 104 ; 
 
 den, 411. See Re Barton's will, Lord Townsend v. Wyndhain, 2 
 
 10 Hare, 12. Ves. sen. 1, 7. 
 
 (x) 2 Bl. Com. 436; 2 Eop. (b) 2 Rop. Husb. and Wife, 
 
 Husb. and Wife, 140; 11 Vin. 141. 
 
 Abr. tit. Executors (Z. 5). (c) TlpiJing v. Tipping, 1 P. 
 
 {y) Graham, v. Londonderry, Wms. 730; Northey v. Nortliey, 
 
 3 Atk. 394; Jervoise v. Jervoise, 2 Atk. 77. 
 
 17 Beav. 566. Ql) Graham v. Londonderry, 
 
 (z) lUd.; 2 Rop, Husb. and 3 Atk. 394; 2 Rop. Husb. aiid 
 
 Wife, 141. Wife, 143 ; post, p. 384. 
 
 (a) 2 Bl. Com. 436; Uidout v.
 
 OF THE MUTUAL EIGHTS OF HUSBAND AND WIFE. 375 
 
 control aud debts of her husband, and may be disposed 
 of by the wife in the same manner as if she were un- 
 married. 
 
 With regard to such of the wife's personal estate as Choses iu ac- 
 is not in possession, but for which she has only a right ^°"' 
 to sue, the rights of the husband are different, according 
 as the proceedings against the persons liable to be sued 
 must be taken in a court of law or of equity. Pro- 
 perty of this nature, as we have ah-eady seen(e), is 
 termed in law French choses in action: such as may be 
 recovered by action at law are called legal choses in 
 action, and such as may be recovered by suit in equity 
 are called equitable choses in action. With regard to 
 each of them, the rights of the husband are of a different * ' '■^- ^- "^ 
 kind, although in each the same rule applies, that if he *t' ^"^ «:—»-' 
 can get them into his possession diuing the coverture ^" ^y^^ ^An^ •.-< 
 he has a right to keep them, otherwise they will belong <A^<,*t„ 
 to his wife (/). J:.^ 7a£^ . ^--5»^ , 
 
 Legal choses in action consist principally of debts Ix'gal choses 
 due to the wife, and secured or not by bond, or by bills ^^ ^*^ ^°^' 
 or promissory notes. Of all these the husband has a 
 right to receive payment, and should payment be re- 
 fused him, he may sue for them in the joint names of 
 himself and his wife {g) ; but bills and notes of the Avife 
 payable to order, being transferable by indorsement, 
 may be indorsed by the husband alone Qi), or sued for 
 in his own name (i). All such legal choses in action 
 as accrued to the wife after her mari-iage may be sued 
 
 (e) Ante, p. 4. case the note was not payable to 
 
 (/) 2 Bl. Com. 434; 1 Wms. order, and therefore not negoti- 
 
 on Executors, pt. 2, bk. 3, ch. 1, able, 
 s. 3. (Ji) Mason v. 3Iorgan, 2 Ad. & 
 
 {g) 1 Rop. Husb. and Wife, El. 30. 
 213, 214; Sherrington v. Yates, {:i)Burrongh \. Moss, 10 Barn. 
 
 12 Mee. & Wela. 855. Iu thi;i & Cress. 558.
 
 376 
 
 OF PERSONAL ESTATE GEXERALLT. 
 
 Husband sur- 
 viving must 
 tftke out ad- 
 ministration. 
 
 Exception. 
 
 for by tlie husband, either in the joint names of liimself 
 and his wife, or in his own name only(^); but if the 
 A\'ife has really no interest, he cannot of course make 
 use of her name (/). If the husband shoidd sue in the 
 joint names of himself and his wife, the benefit of the 
 judgment of the court will in case of his decease survive 
 to her (m) ; but if he sue in liis own name, the benefit 
 of the judgment Avill form part of his own personalty. 
 If, however, the husband should not have received the 
 money in his hfetime, or should not have obtained 
 judgment for it in his o'wn name, his vnfe vriR, on his 
 decease, be entitled by survivorship to the chose in 
 action so remaining stiU unreduced into possession (n); 
 and biUs and notes form no exception to this rule (o). 
 But, if the wife should die before her husband, these 
 choses in action, still remaining unreduced, -^^U form 
 part of her personal estate ; and her husband must 
 take out administration to her effects before he can 
 proceed to recover them(/?): when recovered, they 
 wiU, with the rest of her personalty, belong to himself 
 absolutely, after payment of her debts (</). The only 
 exception to this rule occurs in the case of the husband 
 being entitled, in right of his vafe, to " any estate in 
 fee simple, fee tail, or for term of life, of or in any 
 rents or fee-farms ;" in which case the husband, after 
 the death of his wife, is empowered by statute (r) to 
 recover the arrears accrued to his wife before marriage 
 
 (^) 1 Kop. Husb. and Wife, 
 213. 
 
 (Z) Allot V. Blofield, Cro. Jac. 
 644. 
 
 (to) 1 Vem. 396; ] Rop. Husb. 
 & Wife, 212. 
 
 (») Co. Lit. 351 b. 
 
 (o) Richards v. Richards, 2 
 Barn. & Adol. 447 ; Gaters v. 
 Madelerj, 6 Mee. & Wels. 423; 
 
 Hart V. Stejjhens, 6 Q. B. 937 ; 
 Scarj}eirini v. Atcheson, 7 Q. B. 
 864. 
 
 ip) 1 Eop. Husb. and Wife, 
 205. Sec Befts v. Ximjjton,' 2 
 B. & Adol. 273. 
 
 Cq) Stat. 29 Car. H. c. 3, s. 25, 
 ante, p. 361. 
 
 (r) Stat. 3-2 Hen. VIII. c. 37, 
 s. 3.
 
 OF THE MUTUAL EIGHTS OF HUSBAND AND WIFE. 377 
 
 by action of debt or distress. But tliis pro\4sion does 
 not ajjply to tbe rents reserved upon leases for years {s). 
 
 Equitable clioses in action consist principally of lega- Equitable 
 cies, residuary personal estate of testators, and money in tio*n^^ ^ ^°" 
 the fimds. But all kinds of property, including, as is 
 now decided, botli freehold estates (?) and chattels real(u), 
 vested in trustees, who are answerable only to the Court 
 of Chancery, are subject to a rule of equity, by which 
 equitable clioses in action are mainly distinguished from 
 such as are merely legal. This rule is as follows : that 
 the Court of Chancery will not assist, nor, if the wife 
 shoidd dissent, Avill it allow, the husband to recover or 
 receive any property of his wife recoverable only in that 
 court, without his settling a due proportion of such pro- 
 perty on his wife and cliildren (x). The right of the wife Wife's equity 
 to such a provision is termed the wifes equity for a settle- j^^^*^ ^^ 
 merit {y). In fixing the proportion to be settled, a prior 
 settlement will always be taken into account (^z). But 
 where no settlement has previously been made, the pro- 
 portion required to be settled on the wife is most fre- 
 quently one-half (a) ; and sometimes the court has gone 
 so far as to require a settlement of the whole friiid (It). 
 
 {s) Prescott v. Bouclier, 3 Barn. abolished; In re Cutler, 14 Bcav. 
 
 & Adol. 849. 220 ; Re Klncaid, 1 Drew. 326. 
 
 if) Sturgis v. Champneys, 5 (?/) 1 Rop. Husb. & Wife, 256 
 
 Myl. & Cr, 97 ; Wortham v. Pem- et seq. 
 
 berton, 1 De Gex & S. 644; ^z) llarclbw. Head, 3 Atk. 720; 
 
 Gleaves v. Paine, 1 De Gex, J. Lady JEUhank v. Montolieu, 5 
 
 & S. 87. See, however, Sugd. Ves. 737 ; ErsMne's Trust, 1 Kay 
 
 V. & P. 450, 13th ed.; 560, 14th & John. 302; Spirett v. Willows, 
 
 ed. L. C, 12 Jur., N. S. 538; 1 Law 
 
 (jt) Hanson Y.Keatlny, 4 Hare, Rep., Ch. Ap. 520. 
 
 1. («) 1 Rop. Husb. and Wife, 
 
 (a?) It was formerly held that 2&0; Archer v. Gardiner, 1 C. P. 
 
 the wife's equity to a settlement Coop. 340. 
 
 did not extend to sums under {h) Brett v. Grecmvell, 3 You. 
 
 2001.; Foden v. Finney, 4 Russ. & Coll. 230; Gardner v. Mar- 
 
 428; but this distinction is now shall, 14 Sim. 575; Scott v. Spas-
 
 378 OF TEllSONAL ESTATE GENERALLY. 
 
 Altlioiigli the cliiltlren are usually inserted in tlie settle- 
 ment, yet the riglit is personal to the Avife, and may be 
 waived by her(c) ; nor Avill it sm'vive to the childi-en in 
 case of her decease before the coru-t has made its de- 
 cree (c?) ; but if she die after the decree, it will stiU be 
 carried into effect for the benefit of the children (e). 
 This nde of the Com't of Chancery is foimded on one 
 of the maxims of equity, that he who Avould have equity 
 must do what is equitable (/) ; it cannot, therefore, be 
 enforced until the time arrives when the fimd becomes 
 payable to the husband {g). If, however, as most fre- 
 quently happens, the husband can obtain from the exe- 
 cutor or trustee of the ftind in question payment of it 
 to himself, without the assistance of the covu't, he has 
 a right to do so, and in this case the wife's equity is at 
 once excluded ; and if the time of payment has anived 
 the executor or ti-ustee may safely pay over the flmd to 
 the husband, unless the wife shall have aheady filed 
 her bill in Chancery to enforce her right to a settle- 
 ment (A) ; and the receipt of the fund by the husband, 
 when it has thus become payable, is also an effectual 
 bar to the wife's right by sxu-Aavorship (e). 
 
 hett, 3 Mac. & Gord. 599; DunTi- K., 9 Jui-., N. S. 687; 2 Drew. & 
 
 ley V. Dunhley, L. C, 16 Jur. Smale, 216, aflBrmed by Lords 
 
 767 ; 2 Gex, M. & G. 390; Mar- Jus. 11 W. K. 972 ; 1 De Gex, J. 
 
 shall V. Fowler, 16 Beav. 249 ; & S. 643. 
 
 Gent V, Ha7'ris, 10 Hare, 383 ; (e) Ch-oves v. Clarke, 1 Keen, 
 
 Re Welclman, 1 Giff. 31. 132 ; S. C, Groves v. Perkins, 6 
 
 (c) Murray v. Lord Elihanh, Sim. 584. 
 
 13 Ves. 6. But the mfe having (/) 2 P. Wins. 641, 
 
 once insisted on her right cannot {g) Oshorn v. Morgan, 9 Hare, 
 
 aftenvards waive it; Earlier v. 432. 
 
 Lea, 6 Mad. 330; Wliittem v. (Ji) 1 Rop. Husb. and Wife, 
 
 Sawyer, 1 Beav. 593. 273; Mnrray v. Lord Elibank, 
 
 {d) De la Garde v. Lempriere, 10 Ves. 90. 
 
 6 Beav. 344 ; overruling Stc'in- (?) 1 Eop. Husb. and Wife, 
 
 mitz V. HaltUn, 1 Glyn & Jam. 220; Ilees v. Keith, 11 Sim. 383; 
 
 64; Baker v. Bayldon, 8 Hare, Cunnin!jhamy.Antrol)US,\^^Sm.. 
 
 210; Wallace v. Auldjo, V. C. 430.
 
 OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 379 
 
 If the husband, instead of obtaining payment of the Effect of tlic 
 fund, should assign it to a third person (A), or if he JjTjIli^^ent*' ''''' 
 should become bankrupt (/), his assignee will take sub- 
 ject to the wife's equity for a settlement, in the same 
 manner as if no assignment had been made. But if 
 the interest to which the wife is entitled consists of an 
 equitable estate for her life only, an assignee from the 
 husband of such life interest for valuable consideration 
 will be entitled to hold it as against the Avife's equity for 
 a settlement (m) ; although she Avould be entitled to a 
 settlement as against his assignees, or now his creditors' 
 trustee, in bankruptcy {n). If the husband should die 
 before the assignee has got possession of the fund, 
 leaving his wife surviving, the wife's right by siu'vivor- 
 ship will prevail over the title of the assignee, whether 
 in bankruptcy (o) or for valuable consideration (/»). 
 
 A recent act of parliament [q) enables every married Disposition of 
 woman, with the concurrence of her husband, by deed ^onarvla- ' 
 to dispose of every fiiture or reversionary interest, tercsts. 
 whether vested or contingent, of such married woman, 
 or her husband in her right, in any personal estate to 
 which she shall be entitled under any instrument (ex- 
 cept her marriage settlement) made after the 2>\st De- 
 cember, 1857 ; also to release or extinguish any power Release of 
 in regard to any such personal estate ; and also to re- 1"^"'*^'*^- 
 
 iji) 1 Eop. Husb. and Wife, G. 857; Re Duff if s Trust, 28 
 
 271; Malcomy. Charleswoi-tJi, 1 Beav. 386. 
 
 Keen, 73, 74; Scott v. Sjmshett, (n) Wright \. Morley, II Ves. 
 
 3 Mac. & Gord. 599; Carter \. 17. 
 
 Taggart, 5 De Gex & Smale, 49; (o) Pierce v. Tliornley, 2 Sim. 
 
 1 De Gex, M. & G. 286. See 107. 
 
 Ward V. Yates, 1 Drew. & S. 80. (p) Hutchings v. Smith, 9 Sim. 
 
 (Z) 1 Rop. Husb. and Wife, 137 ; Ellison v. Elwin, 13 Sim. 
 
 268. 309 ; Ashhy v. Ashhy, 1 Coll. 553 ; 
 
 (m) Elliott V. Cordell, 5 Mad. Le Vasseur v. Scratton, 14 Sim. 
 
 H9; Stanto}iY. Hall, 2 Russ. & 116; Michelmorc v. Mudge, 2 
 
 M. 175, 182; Tidd v. Lister, 10 Giff. 183. 
 
 Hare, 140, 154; 3 De Gex, M. & (^) Stat. 20 & 21 Vict. c. 57.
 
 3&0 
 
 OF PEESOX.VL ESTATE GENERALLY. 
 
 Eelcase of 
 equity to a 
 settlement. 
 
 ledsed. 
 
 lease and extingiiisli lier equity to a settlement out of 
 her personal estate in possession under any such instru- 
 To be sepa- ment as aforesaid. But every such disposition must be 
 lately acknow- separately acknowledged by her in the manner reqiiired 
 by the act for the abolition of fines and recoveries (r). 
 And nothing therein contained is to extend to any 
 reversionary interest, to which she shall beconje entitled 
 mider any instrimient by which she shall be restrained 
 from ahenating or affecting the same. 
 
 Assignment of 
 wife's rever- 
 sionary choses 
 in action. 
 
 Example. 
 
 If the wife should be entitled to any chose in action, 
 A^ hether legal or equitable, of a reversionary natm-e, not 
 witliin the above-mentioned act, the effect of an assign- 
 ment by the husband will be different under different 
 circumstances. The wife, of coiu'se, cannot assign ; for 
 by the act of marriage she deprives herself of all power 
 so to do ; and the husband can only assign to another 
 the interest to which he may be entitled himself. Sup- 
 pose therefore that the wife is entitled, on the death of 
 A., a person now H^Tng, to a sum of stock standing in 
 the names of trustees, and that her husband should 
 make an assignment of this reversionary interest to B., 
 a piu'chaser; the benefit which ^vill accrue to B. by 
 virtue of this assignment Avill vary, according as the 
 husband, the vdfe, or A., the tenant for life, may happen 
 to die first. If the husband should die first, B. will lose 
 his pm-chase ; for the wife, having sur^-ived her husband, 
 will now on the death of A. be entitled to the stock, 
 which has never been reduced into the possession of her 
 husband, or of B., his assignee (s). If A. shovdd die 
 first, B. may then obtain a transfer of the stock, if the 
 trvistees choose to transfer it to him, and if the wife- 
 slioidd not have filed a bill to enforce her equity to a 
 
 (?•) Stat. 3 & 4 Will. IV. c. 74. 
 See Principles of the Law of Real 
 Property, 189, 4th ed. ; 197, 5th 
 ed.; 207, 6th ed.; 212, 7th ed. ; 
 
 222, 8th ed. 
 
 (s) Piirdem v. JacTison, 1 Rnss. 
 1 ; Honner v. MoHon, 3 Russ. 
 65.
 
 OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 381 
 
 settlement (^). But if the trustees should refuse to 
 transfer without the direction of the Court of Chancery, 
 or if the wife should insist upon her right, then B. will, 
 as we have seen{u), most probably obtain only half of 
 the flmd for his own benefit, and Avill be obliged to settle 
 the other half on the wife and children. If, however, 
 the Avife should die first, then this chose in action, re- 
 maining unreduced into possession, will, like a legal 
 chose in action, under the same circumstances {x), re- 
 main part of the wife's personal estate ; and the husband, 
 on taking out administration to his wife, will be bound 
 by his previous assignment. B. Avill accordingly in this 
 single event obtain the whole flmd, subject hoAvever to 
 the wife's debts, if any. It was once thought that if an 
 assignment could be obtained from the tenant for life, 
 of his life interest in a fund circumstanced as above 
 mentioned, to the married woman entitled to the rever- 
 sion, she Avould be in the same situation as if the whole 
 fund had been originally held in trust for her absolutely ; 
 and that after such an assignment, the whole fvmd 
 might therefore be transferred to the husband (y). Btit 
 it is contrary to the general principle of equity to allow 
 the rights of parties to be affected by any merger or ex- 
 tinguishment of interests ; and the doctrine in question 
 has been overruled (z). 
 
 The same principles Avhich apply to the assignment Eelease of 
 by a husband of his wife's reversionary interest in a ""^'^'"^'^'^'* 
 chose in action, apply also to his release, which will be 
 as little binding on her as his assignment, in case of her 
 
 (^t) Greedy v. Lavender, 13 595; Blsliopp v. Colehrooh, Y. C. 
 
 Beav. 62. E., 11 Jur. 793. 
 
 (m) ^w^e, p. 377. (z) Whittle v. Hemiing, 11 
 
 (x) Ante, p. 376. Beav. 222; affirmed, 2 Phil. 731; 
 
 (?/) Creed v. Perry, 14 Sim. ITanchett v. Briscoe, 22 Beav. 
 
 592; Hall V. ILigomn, \A Sim. 496.
 
 382 OF PERSONAL ESTATE GENERALLY. 
 
 Money charged })eing the siunavor (ff). If, however, the reversionaiy 
 on real estate. ■, • ,. o ,-\ -c • , f ^ i 
 
 chose m action oi the wile consist oi money charged on 
 
 real estate, the wife's interest can either he released or 
 assigned by a deed acknowledged by her, ^^A\\\ the con- 
 currence of her husband, under the provisions of the 
 act for the abolition of fines and recoveries (Z>). The 
 contrary was decided in a recent case (c), which may 
 now be considered as overruled (</). 
 
 iTnshaiicl's li.i- The Same principle of the merger of the wife in the 
 wife^s*debts husband, which gives him such important rights in her 
 personal estate, renders him also answerable for aU the 
 debts and liabilities of his wife contracted previously to 
 her marriage {e). But if judgment for any debt be not 
 recovered during the continuance of the marriage, the 
 liability ceases, except to the extent of the assets to 
 which the husband may be entitled as his wife's admi- 
 nistrator (y) ; and if the wife survive, she will again 
 become solely hable. The husband is also bound during 
 the coverture to supply his wife wath necessaries suitable 
 to her station in life. She is therefore, whilst living 
 with him, considered as his agent for the purchase of 
 any such necessary articles with Avhich he may not have 
 supplied her (^). And even if the articles should not 
 be necessaries, yet if the husband be aware of the pur- 
 
 (a)Rogers Y.Acaster, 14 Beav. tutes, p. 240, 1st ed.; p. 233, 2nd 
 
 445 ; Harley v. Harley, 10 Hare, ed. ; Briggs v. Chamberlain,, V. C. 
 
 325. Wood, 18 Jur. 56; S. C, 11 Hare, 
 
 (h) Stat. 3 & 4 Will. IV. c. 74, 69; Tuer v. Turner, 20 Beav. 560. 
 
 See Principles of the Law of Eeal (e) 2 Eoper's Husband and 
 
 Property, 189, 4tli ed.; 197, 5th Wife, 73; Palmer v. Wakefield, 
 
 ed.; 207, 6th ed.; 212, 7th ed.; ^B&sly. 2'>,1; Lnard's case, 1 D& 
 
 222, 8th ed. Gex, F. & J. 533. 
 
 (c) Eohhy V. Alleyi, V. C. (/) Heard v. Stamford, 3 P. 
 
 Knight Bruce, 15 Jur. 835; S. C. Wms. 409. 
 
 noni. Holly v. Collins, 4 De Gex (//) 2 Eoper's Husband and 
 
 & S. 289. Wiipe, 110; Seaton v. Benedict, 
 
 id) Sugd. Eeal Property Sta- 5 Bing. 28.
 
 OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 383 
 
 cliase (A), or if lie recognize it, by allowing his wife to 
 use or wear the articles bought (^), she will be considered 
 as having bought them with his authority, and he will 
 consequently be liable to pay for them. 
 
 The burdens with which the husband is thus charge- Fraud on the 
 able are the consideration which he pays for his marital ^^rital riohts. 
 rights in his wife's property. It is therefore a lade of 
 law, that the husband shall not, previously to the mar- 
 riage, be defrauded of those rights by his intended 
 wife(^). Accordingly if the wife, after an engagement 
 to marry, should assign away any of her property with- 
 out the knowledge and consent of her intended husband, 
 such assignment would be void, as a fraud on his marital 
 rights (Z). And the circumstance of the intended hus- 
 band's being ignorant of her possession of the property 
 in question woidd be immaterial (m). 
 
 The right of the husband to the whole of his wife's The husLand 
 personal estate, in the event of her decease in his life- ™is Vife to dis- 
 
 time, may be waived by his giving her authority to dis- pose of her 
 
 /» • • i3Grsontil cstfitc 
 
 pose of such estate, or any part of it, by her will ; and by her will 
 such a will will be valid and binding on the husband if 
 he once allow it to be proved (n). But during the wife's 
 lifetime, and even after her death, until probate of the 
 will, this authority may be revoked ; and if the husband 
 should die before the wife, such a will wordd not be 
 binding on the wife's next of kin (o). 
 
 (h) Petty Y.Anderso7i, SB'wg. Giff. 159; affirmed, 1 De Gex, 
 
 170. Jones & Smith, 433; Downes v. 
 
 (i.) See Montague v. Benedict, Jennings, 32 Beav. 290. 
 
 3 Bam. & Cress. 631,038. (wt) Goddard v. Snow, 1 Russ. 
 
 (Ji) Countess of Strathmore v. 485. 
 
 Bon-es. 1 Ves. jun. 22, 28. {n) 1 Rop. Husb. and Wife, 
 
 (J) England v. Downs, 2 Beav. 169, 170. 
 
 522 ; Ta]/lor v. Pugh, 1 Hare, (o) 15 Ves. 156. 
 608; Prideaiix v. Lonsdnle, 4
 
 384 OF PERSONAL ESTATE GENERALLY. 
 
 Trusts for the But at the present day, power to dispose of property 
 wife's separate ^f ^^^ ^^^ ^^j ^^ gixen to a married woman, inde- 
 pendently of her husband, by means of a trust for her 
 separate use, which trust may be enforced in equity (p). 
 When personal estate is so given, the wife has the same 
 powers of ownership as if she were a feme sole ; she 
 may accordingly dispose of such property without her 
 husband's concurrence, either in her lifetime or by her 
 will (7). But should she die in liis lifetime without 
 having made any disposition, her husband will become 
 entitled to it either in his marital right (?•) or as her ad- 
 mmistrator (5), accordmg as the property may be in 
 possession or in action. A trust for a woman's separate 
 use is properly and technically created by means of the 
 words " separate use." But a direction that her receipt 
 alone shall be a sufficient discharge (t), will also create 
 a trust for her separate use. A gift, however, to a 
 woman for her sole use has now been decided not to 
 create a trust for her separate use, unless aided by the 
 context ( u). And a gift to a woman for her owti use (x), 
 or to be paid into her proper hands (y), or even to be 
 paid into her proper hands for her own proper use and 
 benefit (r), will not be sufficient to exclude the rights of 
 her husband. 
 
 (j)) See Principles of the Law (t) Lee v. Prieaux, 3 Bro. C. 
 
 of Eeal Property, 164, 1st ed.; C. 381. 
 
 174, 2nd ed.; 181, 3rd ed.; 182, (w) Glassy v. Sayes, L. J., Ire- 
 
 4th ed. ; 190, oth ed.; 200, 6th land, 15 W. R. 376; affirmed in 
 
 ed.; 207, 7th ed.; 214, 8th ed. the House of Lords, 16 July, 
 
 {q) Fcttiplace v. Gorges, 1 Ves. 18G9; Gilbert v. Lewis, 1 De Gex, 
 
 jun. 46; S. C; 3 Bro. C. C. 8; 2 J. & S. 38. S- ^. >4fA^^ ^•^^9. 
 
 Rop. Hush, and Wife, 182. {x) Bohcrts v. Spieer, 5 Madd. 
 
 {r)3rolony Y. Ketmedy, 10 ^im. 491; Xensington v. Bollond, 2 
 
 174 ; Tiigman v. HojjJdns, 4 Man. Myl. & Keen, 184. 
 
 & Gran. 384. (y) Tyler v. LaJie, 2 Russ. & 
 
 (s) WattY. Watt, 3 Ves. 246, Myl. 183. 
 
 247; Provdley v. Fielder, 2 My. (z) BlacUow v. Laws, 2 ILarc, 
 
 & Keen, 57. 49.
 
 OF THE aiUTUAL KIGTITS OF HUSBAND AND WIFE. 385 
 
 A simple gift of property for a married woman's sepa- Gifts of in- 
 
 rate use is not so usual as the srift of the income only ^"'"^ ^*^^ ^ 
 
 ^ _ ^ woman s scpa- 
 
 of the property diu-ing her life or during the joint lives late use. 
 of herself and her husband {a). A gift of the income of 
 property to a woman's separate use may be made either 
 after her marriage, or in contemplation of marriage, or 
 whilst she is sole ; and the gift may be made either in- 
 dependently of her present husband, if any, or of any 
 future husband. When the gift is made to a woman's 
 separate use, independently of any future husband, the 
 act of her marriage Avill confer no interest in the property 
 on her husband, but she will enjoy, after marriage, the 
 same interest and power of disposition as she had be- 
 fore (b). It is, hoAvever, more usual, when the income Restraint on 
 only of property is given to a wife's separate use, to in- '^°<^icipatiou. 
 sert a condition that she shall not dispose of the same 
 in any mode of anticipation. Conditions restraining 
 the ahenation of property are generally invalid, as being 
 contrary to the policy of the law. But the courts of 
 equity have made an exception to this rule in favour of 
 married women, and having once established a trust for 
 a woman's separate use, they have permitted such a 
 trust to be made effectual by depriving the wife herself 
 of the power of disposition (c). When the income of 
 property is given to a woman's separate use, without 
 power of anticipation, she is not thereby deprived of the 
 power of alienation so long as she continues single (</). 
 Previously to or in contemplation of marriage she may 
 therefore make such disposition or settlement of such 
 income as she may think proper. But should she marry 
 without a settlement, the restraint on alienation will 
 
 (a) See Appendix B. Ves. 434; Rohinson v. ^\^ieel- 
 
 (fi) Tullett V. Armstrong, 1 wrigJit, 6 De Gex, M. & G. 535. 
 
 Beav. 1; 4 Myl. & Cr. 390; Scar- {d) Woodmeston v. Walker, 2 
 
 borough v. Barman, 1 Beav. 34; Russ. & Myl. 197; Brown v. Po- 
 
 4 Myl. & Cr. 377. each, 2 Rnss. & Myl. 210. 
 (c) Brandon v. Rohinson, 18 
 
 W.P.P. c c
 
 386 OF PERSONAL ESTATE GEXETIALLY. 
 
 then attach, and so long as she remains under coverture 
 she will have no further power than that of receiving 
 the income as it grows due (e). On her widowhood her 
 power of alienation will again revive (/" ), but will cease 
 on her second mariiage without having previously made 
 any disposition (^), provided the restriction on alienation 
 be not, by the terms of the gift, confined to her first 
 marriage (A). The intention to resti'ain alienation ought 
 always to be clearly expressed. A direction to pay the 
 income of property into the hands of a married woman, 
 and not other^Aase {i), or on her personal appearance 
 and receipt [k), will not be sufficient to restrain her 
 fi'om disposing of her interest, the words being consi- 
 dered as intended only to exclude the marital claims of 
 her husband. But if an intention can be collected from 
 the terms of the instrument, not only to exclude the 
 husband's claims, but also to prevent the wife fi-om 
 anticipating, such intention will prevail, although it 
 may be expressed rather in popular than in strictly 
 technical language (/). 
 
 Powers. In addition to trusts for separate use, powers of ap- 
 
 pointment may, as Ave have seen (m), be given to married 
 women independently of their husbands, by means of 
 which they may be enabled to dispose of property with- 
 out their husband's concurrence (w) ; and any appoint- 
 ed) Tullett V, Armstrong, 1 (^) Ross's Trust, 1 Sim., N. S. 
 Beav. 1; 4 Mjl. & Cr. 390; Scar- 196. 
 
 iorovgh v. Barman, 1 Beav. 34; (Z) Brown v. Bamford, 1 Phil. 
 
 4 Myl. & Cr. 377 ; Oliver. Carew, 620; Moore v. Moore, 1 Coll. 54 ; 
 1 John. & H. 199. Harrop v. Howard, 3 Hare, 624; 
 
 (/) Barton v. Briscoe, Jacoh, Harnett v. Macdougall, 8 Beav. 
 603. 187 ; Field v. Emns, 15 Sun. 875 ; 
 
 ig") Tullett v. Armstrong, ubi Baker v. Bradley, 7 De Gex, M. 
 supra. & G. 597; Gould ery. Camm, 
 
 (Ji) Re Gaffee, 1 Mac. & Gor. De Gex, P. & J. 146. 
 541. (jn) Ante, p. 270. 
 
 (i) Acton V. IVliite, 1 Sim. & («) See Appendix B. 
 
 Stu. 429.
 
 OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 387 
 
 ment under a general power may be made by a married 
 woman iu favom; of her husband, as well as of any other 
 person. 
 
 Unhappy diflferences between husband and wife some- Separation. 
 times end in a separation. Such a state of things is not, 
 however, encouraged by the law. A clause in a marriage 
 settlement providing for the event of a separation, has 
 been considered to be void(o) ; and so has a condition 
 in a gift of personal estate to a woman li\dng apart from 
 her husband, that the gift shall cease in case she should 
 cohabit with him (/)). It is however clear, that a deed 
 making provision for an immediate separation between 
 husband and wife is not void for illegality ( q), and any 
 infringement of the covenants contained in it wiU be re- 
 strained by the injunction of the Court of Chancery (r). 
 One of the usual pro\asions of a deed of separation is, a Covenant to 
 
 covenant on the part of some friend of the wife's to in- ""''^.'"^"y 
 
 ■»■ against wire s 
 
 demnify the husband -against any debts she may incur debts. 
 whilst living apart. Siicli a covenant is a valuable con- 
 sideration for any settlement which the husband may 
 make for the benefit of his wife, and places such settle- 
 ment on the same footing as any other alienation made 
 for valuable consideration (5). But if there be no such 
 covenant, nor any other valuable consideration (t), a 
 settlement made by a husband on separating fi-om his 
 wife stands in the same position as any other voluntary 
 deed (m) ; and, though binding on liimself, may not be 
 
 (0) Coclisedge v. Cocksedge, 14 {q) Jones v. Waite, 4 Man. Ss 
 
 Sim. 244 ; Cartwright v. Cart- Gr. 1104. 
 
 tvright, 3 De Gex, M. & G. 982; (r) Sanders t. Rodmaij, 16 
 
 H. V. W., 3 Kay & J. 382. See Beav. 207. 
 
 also Hindleg v. Marquis of West- (.?) Stephens v. Olive, 2 Bro. C, 
 
 meath, 6 Barn. & Cress. 200; C. 90; Worr all y. Jacob, ZMqxvt. 
 
 Merryweather v. Jones, 4 Giff. 256, 269. 
 
 499. (0 See Wilson v. Wilson, 14 
 
 ip) Wren t. Bradley, 2 De Sim. 405; 1 H. of L. Cas. 538. 
 
 Gex & S. 49. (w) See ante, pp. 297, 298. 
 
 C C 2
 
 388 OF PERSONAL ESTATE GEXERALLY. 
 
 binding on his creditors (x). The circumstance of 
 vohmtary separation gives to the wife no furtlier power 
 of disposition over property than she possessed whilst 
 li\ang with her husband ( y). Accordingly she will not, 
 shoidd she siun-ive her husband, be bound by any dis- 
 position of her personal estate made on the separation, 
 which her husband woidd have been unable to make, 
 without her conciu'rence, had no separation taken 
 place (2"). If afber separation the parties become recon- 
 ciled (a), or if a restitution of conjugal rights be decreed 
 by the Court for Divorce and Matrimonial Causes {b), 
 the provisions of the deed of separation will thenceforth 
 become inoperative. 
 
 Custody of in- In the event of separation, the custody of the infant 
 an c 1 ren. d^^j-en belongs by law to the father as the natural 
 guardian (c). And it has been decided that he is in- 
 competent to relinquish a duty thrown upon him by the 
 law, and that, therefore, a covenant on his part to give 
 up the childi'en to the care of their mother is illegal (<5?). 
 If, however, the conduct of the father should be such 
 that the childi'en woidd be exposed to ciiielty or gross 
 corniptiou of morals fi-om being left in his custody, the 
 law will deprive him of a charge for which he has slioi^oi 
 himself totally unfit (e). And by a modem act of par- 
 
 («) Fitzer V. Fitzer, 2 Atk. (b) FletcJier y. Fletcher, 2 Cox, 
 
 511; Clouffh V. Lambert, 10 Sim. 99; stat. 20 & 21 Vict. c. 85. 
 
 174. {c) Co. Litt. 88 b, n. (12); 
 
 (y) Lord St. John v. Lady St. Hex v. Sherrington, 3 Bam. & 
 
 John, 11 Ves. 531. Add. 714. 
 
 (2) Stamper v. Bar'ker,^ Madd. (<^) Lord St. John v. Lady St. 
 
 157 ; Slatter v. Slatter, 1 Yo. & John, 1 1 Ves. 531 ; Vansittart t. 
 
 Col. 28. Vansittart, 4 Kay & J. 62; 2 De 
 
 (a) Bateman v. Jioss, 1 Dow, Gex & Jones, 249; Hope v. Hope, 
 
 235, 245; Lord St. John v. Ladi/ 22 Bear. 351; 3 Jur., N. S. 454, 
 
 St. John, 11 Yes. 537 ; WUso7i v. Lords Just.; Walrond v. Wal- 
 
 Wilson, 15 Sim. 487, 500 ; 1 H. rond, 1 John. 18. 
 
 of L. Cas. 538. See, however (e) Cruise v. Hunter, 2 Bro. 
 
 IJnline v. Chitty, 9 Beav. 437. ' C. C. 400; Wellesley v. Buke of
 
 OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 389 
 
 liament {f), power is given to tlie judges of the Court 
 of Chancery (^), upon the petition of the mother of any 
 infant, being in the sole custody of the father, or of any 
 person by his authority, or of any guardian after the 
 death of the father, to make order for the access of the 
 petitioner to such infant, at such time and subject to 
 such regulations as shall be deemed convenient and just ; 
 and, if such infixnt shall be within the age of seven years, 
 to make order that such infant shall be delivered to and 
 remain in the custody of the petitioner imtil attaining 
 such age, subject to such regulations as shall be deemed 
 convenient and just. If adultery has been established 
 against the mother, no order can be made in her favoiu* 
 under this act (A). 
 
 The jurisdiction anciently possessed by the ecclesias- 
 tical courts over matrimonial causes has been trans- 
 ferred to a new court, called the Court for Divorce and Court for Di- 
 
 Matrimonial Causes, which has been established since 1°''*^® '*.°f ^^^' 
 ' tnmonial 
 
 the eleventh of January, 1858 (€). Instead of the Causes. 
 
 ancient decree for a divorce a mensa et thoro, a decree 
 
 for a judicial separation has been substituted, which has 
 
 the same force and conseqiiences {k). The very doubtfiil Dissolution of 
 
 benefit formerly enjoyed only by the richer classes of ™''^^"*'Se. 
 
 obtaining by act of parliament a dissolution of the 
 
 marriage with liberty to marry again, is now extended 
 
 to all persons by petition to the coiu't (Z). A beneficial Protection of 
 . . 1 1 1 . . T . wife deserted 
 
 provision has however been inserted empowering a j^y j^gj. tmg. 
 
 woman, who has been deserted by her husband, to apply b^"*!' 
 
 to a magistrate or to the com^t or the judge ordinary 
 
 Beavfort, 2 Euss. 1 ; Bex v. (/(,) Stat. 2 & 3 Vict. c. 54, s. 4. 
 
 OrcenMU, 4 Add. & Ell. 624; (i) Stat. 20 & 21 Vict. c. 85, 
 
 Swift T. Swift, L. J., 11 Jur., N. amended by stats. 21 & 22 Vict. 
 
 S. 458; 34 Law Journ. Chancery, c. 108; 22 & 23 Vict. c. fil. 
 
 394. {h) Stat. 20 & 21 Vict. c. 85, 
 
 (/) Stat. 2 & 3 Vict. c. 54 ; s. 7. 
 
 Ex parte Bartlett, 2 Coll. 661. (l) Sects. 27, 57. 
 
 (y) In re Taylor, 10 Sim. 291.
 
 390 
 
 OF PERSONAL ESTATE GENERALLY. 
 
 Alimony. 
 
 Judicial sepa- 
 ration. 
 
 Wife a feme 
 sole. 
 
 thereof, for an order to protect any money or property 
 she may acquu-e by her own lawful industry, and pro- 
 perty which she may become possessed of after such 
 desertion, against her husband or his creditors ; and in 
 such case her earnings and her property, whether held 
 beneficially or as executrix, administratrix or trustee, 
 and whether in possession or reversion, will belong to 
 herself as if she were a feme sole (m). In every case of 
 a decree either for judicial separation or for the dissolu- 
 tion of the maiTiage, the court has power to order the 
 husband to secure to the wife for her life a separate 
 maintenance imder the name of ahmony, either by annual, 
 monthly or weekly payments {n^. And in every case of 
 a judicial separation the Avife is, from the date of the 
 sentence and whilst separated, to be considered as a feme 
 sole with respect to her property, whether held bene- 
 ficially or as executrix, administratrix or trustee, and 
 also for the pui-j30ses of contract, and wrongs and 
 injuries, and suing and being sued in any civil pro- 
 ceeding ; and her property may be disposed of by her in 
 all respects as a feme sole ; and on her decease the same 
 will, in case she shall die intestate, go as it would have 
 gone if her husband had then been dead (o). If, however, 
 ahmony has been ordered to be paid to the wife, and the 
 same shall not be duly paid by the husband, he will be 
 liable for necessaries supplied for her use. But the wife 
 may, during such separation, join A^ath the husband in 
 the exercise of any joint power given to herself and 
 him ( /)). And if the wife should again cohabit with her 
 husband, all such property as she may be entitled to 
 when such cohabitation shall take place, shall be held to 
 
 (m) Stat. 20 & 21 Vict. c. 85, 
 s. 21, amended by stat. 27 & 28 
 Vict. 0. 44 ; 21 & 22 Vict. c. 108, 
 ss. 6, 7, 8, 9, 10; i?e Kingsley's 
 Trust, 26 Beav. 84; Cooke t. Ful- 
 ler, 26 Beav, 99; Re '[Miitting- 
 Mm, V. C. W., 10 Jur., N. S. 818. 
 
 (w) Stats. 20 & 21 Vict. c. 85,' 
 ss. 24, 32; 29 Vict. c. 32. 
 
 (o) Stat. 20 & 21 Vict. c. 85, 
 ss. 25, 26; 21 & 22 Vict. c. 108, 
 s. 7; Be Insole, 35 Beav. 92. 
 
 (p) Stat. 20 & 21 Vict. c. 85, 
 s. 26.
 
 OF THE MUTUAL lUGllTS OF HUSBAND AND WIFE. 391 
 
 her separate use, subject, however, to any agreement in 
 writing made between herself and her husband whilst 
 separate (q). In every case of a suit for judicial sepa- 
 ration or for nullity or dissolution of marriage, the court 
 or the judge ordinary is empowered, either before or after 
 its final decree, to make provision with respect to the Custody, main- 
 custody, maintenance and education of the childi-en cducation° £ 
 of the marriage, or for placing the children under the children. 
 protection of the Court of Chancery (r). Whenever Settlement on 
 the court shall pronoimce a sentence of di^'orce or Jat/ou^ ^^^*" 
 judicial separation for adidtery of the wife, it has 
 power to order a settlement to be made of her property, 
 whether in possession or reversion, for the benefit of the 
 innocent party and the children of the marriage, or 
 either or any of them (s). And any instrument exe- 
 cuted pursuant to any order of the court made under 
 this enactment, at the time of or after the pronouncing 
 of a final decree of divorce or judicial separation, shall 
 be deemed valid and effectual in the law, notwithstand- 
 ing the existence of the disability of coverture at the 
 time of the execution thereof (^). And after a decree Dissolution of 
 of nulhty or dissolution of marriage, the court may ™'J^''ii''ige. 
 inquire into the existence of antenuptial or postnuptial Settled pro- 
 settlements made on the parties whose marriage is the P^^'*^- 
 subject of the decree, and may make such order with 
 reference to the apphcation of the whole or a portion of 
 the property settled, either for the benefit of the childi-en 
 of the marriage or of their respective parents, as to the 
 court shall seem fit (m). But this pro^dsion does not 
 appear to apply if there be no child of the marriage 
 living at the date of the order {x ). 
 
 (q) Sect. 25. (w) Stat. 22 & 23 Vict. c. 61, 
 
 (r) Sect. 35; 22 & 23 Vict. c. s. 5. 
 
 61, s. 4. (x) Thomas v. TJiomas, 2 Sw. 
 
 (s) Stat. 20 & 21 Vict. c. 85, & Tr. 89; Corrance v. Corrcuice, 
 
 s. 45. 16 W. R. 893; L. E., 1 P. & D. 
 
 (t) Stat. 23 & 24 Vict. c. 144, 495; Graham v. Graham, 17 
 
 s. 6, made perpetual by stat. 25 & W. R. 628. 
 .26 Vict, c. 81.
 
 392 OF PERSONAL ESTATE GENERALLY. 
 
 Comparison of A comparison of the laws of husband and wife relating 
 band\m!f wSe" ^o real estate, with those which affect personal property, 
 as to real and ^yju show a great discrepancy between them. Histo- 
 cstate!*^^^°"^ rically, no donbt, this discrepancy is easily accounted 
 for ; but practically, as things now exist, it is not so easy 
 to give a satisfactory reason for the difference. Since 
 the intended amendment of the law relating to dower, 
 the wife's rights in her husband's real estate have, for 
 the satisfaction of conveyancers, been reduced to as low 
 a level as her rights in his personalty. But the hus- 
 band's rights in his Avife's property still materially vary, 
 according as it may happen to be invested in real or in 
 personal estate. If it consist of real estate, he has only 
 a life interest as tenant by the curtesy, provided he has 
 issue by his wife born ahve, who might by possibility 
 inherit as her heir (y). If it be personal estate, he has a 
 right to appropriate to himself all that he can lay hands 
 on. Again, the real estate of the wife is guarded £fom 
 alienation by the most carefid provisions. Formerly the 
 fictitious and cumbersome machinery of 2ifine was requi- 
 site ; and now every conveyance of her real estate must 
 be not only signed by her, but also acknotoledgcd by her 
 before commissioners, apai-t from her husband, as her 
 own act and deed {z). Recently the same principle has 
 been applied to the release of her equity to a settlement, 
 and to the assignment of her reversionary interests (a). 
 But, in aU cases not within the act for these purposes, 
 the assignment of her personal estate, if made at all, can 
 only be made by her husband ; and her concurrence or 
 objection is quite immaterial. When personal estate 
 consists of mere moveable articles, the natm-e of the 
 
 (y) See Principles of the Law cd. ; 188, 3rd ed.; ISO, 4th ed. ; 
 
 of Real Property, 167, 1st ed. ; litj, 5th ed.; 207, 6th ed. ; 213, 
 
 177, 2nd ed.; 184, 3rd ed.; 185, 7th cd.; 222, 8th ed. 
 
 4th ed.; 193, 5th ed.; 203, 6th (a) Stat. 20 & 21 Vict, c. 57; 
 
 ed. ; 209, 7th ed.; 218, 8th ed. ante, p. 379. 
 
 (z) Ibid. 171, 1st ed. ; 181, 2nd
 
 OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 3ii3 
 
 property no doubt affords a sufficient reason for tlie 
 
 difference between the laws whicli dispose of it, and 
 
 those which regulate estates in fixed and immoveable 
 
 landed property. But when personalty assumes the 
 
 form of such solid investments as mortgages or consols, 
 
 when it becomes like land disposable by deed rather 
 
 than by deliveiy, the laws which affect it should rather 
 
 depend on its present nature than on its past history. 
 
 It seems hardly fair that a married woman should have 
 
 no voice in the disposition of property of this kind 
 
 belonging to herself. At the same time, the present Acknowledfx- 
 
 system of taking her acknowledgment on a convevance ^^^^ ^^■' ^^'^° 
 
 •' ^ ^ ^ •'on conveyance 
 
 of her real estate is often found to be a burdensome of real estate. 
 expense without any practical benefit. For if a hus- 
 band can persuade his wife to sign a deed, he can easily 
 prevail on her to make an acknowledgment before two 
 commissioners, notwithstanding that dui-ing the two 
 minutes which the transaction lasts she may remain 
 " separate and apart " from him. If, whenever the wife's 
 property of any kind should be alienated by deed, her 
 signatiu-e were necessary, but her separate examination 
 were dispensed with, the laAv both of personal and real 
 estate would perhaps be improved. The Court of Chan- 
 cery, by the establishment of trusts for separate use, and 
 by giving the wife an equity to a settlement of part of 
 her personal property when claimed tlu'ough the medium * 
 
 of that court, has done much to mitigate the simple 
 rigom* of the common law. Trusts for separate use are 
 now, after much wavering, firmly settled, it is to be 
 hoped, into a system according both ^^4th the interests 
 of the community and the general principles of the law. 
 Such trusts, however, generally require to be established 
 by deed or will, and are very seldom implied. And the 
 wife cannot assert her equity to a settlement without 
 taking the serious step of making an application to the 
 Court of Chancery. The theory of that court certainly
 
 394 OF PERSONAL ESTATE GENERALLY. 
 
 is, that its assistance is free and open to everybody, and 
 that those who neglect to avail themselves of its aid 
 suiFer by their own fault. Experience, however, is too 
 apt to suggest that the remedy may sometimes prove 
 worse than the disease.
 
 ( 395 ) 
 
 PART V. 
 
 OF TITLE. 
 
 The title to personal estate varies according as it may 
 consist of money or negotiable securities, or of ordinary 
 choses in possession, or of choses in action. 
 
 And, first, with regard to money or negotiable secu- Money and 
 rities, no title at all is required to be shown by the payer securities. 
 in any bond fide transaction. Thus, if a sovereign or a 
 bank note be offered in payment of a debt, it is no part 
 of the duty of the creditor, under ordinary cu'cum- 
 stances, to ask the debtor how he came by it. The 
 reason of this rule is founded on the currency of the 
 articles in question, and on the great inconvenience to 
 trade and commerce which would ensue if the ride were 
 otherwise (a). And the rule applies to all negotiable 
 securities, that is, to all instruments the delivery of which 
 passes the legal right to the property seciu-ed by them. 
 Promissory notes and bills of exchange payable to bearer, 
 or payable to order, and indorsed in blank, are accord- 
 ingly within the rule {h). But if there be any mala fides 
 on the part of the person receiving any money or nego- 
 tiable security, or such gross negHgence as may amount 
 in itself to e^adence of mala fides, the true OA^Tier may 
 recover such property, provided its identity can be 
 ascertained (c). A dehvery order does not of itself pass Delivery order. 
 
 (a) Miller v. Race, 1 Burr. 452; (c) Clarlie v. Shee, Co'rt). 197; 
 
 1 Smith's Leading Cas. 250. Foster v. Pearson, 1 C. M. & E. 
 
 (*) Grant Y. Vauffhan,, 3 Burr. 849; S. C, 5 Tyrw. 255; Good- 
 
 1516; Peacock v. Rhodes, 2 Doug. vian v. Harvey, 4 Ad. & Ell. 870. 
 333 J see ante, p. 85.
 
 396 
 
 OF TITLE. 
 
 the property in tlie goods mentioned in it ; it is there- 
 fore not a negotiable security within the rule above 
 mentioned ; and the transferee is accordingly bound to 
 inquire into the title of the transferor (d). 
 
 Sale of chat- "VYith regard to ordinary choses in possession, a valid 
 ovei-r ^^^ ^ ^^*1*2 ^o them is generally obtained by a purchase in an 
 open market, or market overt, although no property may 
 have been possessed by the vendor (e). And every shop 
 in the city of London, where goods are openly sold, is 
 considered as a market overt within this rule, for such 
 things as by the trade of the owner are put there for 
 sale(y). But the shops at the west end of the town 
 do not appear to possess this pri\alege. If the sale is 
 not made in market overt, the pm-chaser, though he 
 purchase bond fide, acquires no flirther property in the 
 article sold than was possessed by the vendor (^). And 
 formerly, if a writ of execution should have been 
 actually in the hands of the sheriff on a judgment 
 against the vendor, the goods, if not sold in market 
 overt, were subject, in the hands of the purchaser, to 
 the sheriff's right to seize, in the same manner as if 
 they had remained in the hands of the vendor (A). But 
 a recent enactment now protects a purchaser bona 
 fide for valuable consideration, without notice of any 
 Stolen goods, -writ (z). So if the goods have been stolen, a bona fide 
 purchaser, who has not bought them in market overt, 
 will be bound to restore them to the true owner (j) ; 
 whereas, a sale in market overt would have given the 
 
 (<?) Kingsford v. Merry, 1 H. 
 & N. 503. 
 
 (e) 2 Black. Com. 449. 
 
 (/) The case of Market Overt, 
 5 Rep. 83 b ; Lyons v. De Pass, 
 11 Ad. & Ell. 326. 
 
 {g) Peer v. Humphrey, 2 Ad. 
 .& El. 495 ; Wliite v. Bpettigue, 
 13 Mee. & W. 603. 
 
 (Ji) Samuel v. Duke, 3 Mee. & 
 W. 622. See ante, p. 51. 
 
 (i) Stat. 19 & 20 Vict. c. 97, 
 s. 1, ante, p. 52, not retrospective. 
 Williavis V, Smith, 2 H. & N. 
 443. 
 
 {j) White V. Spettigue, 13 
 Mee. & W. 603.
 
 OF TITLE. 397 
 
 purchaser a valid title. There is one case, however, in 
 which even a sale in market overt will not protect a 
 purchaser, namely, the case of the goods having been 
 stolen, and the true owner prosecuting the thief and 
 obtaining his conviction. In this case the property in 
 the goods, wherever they may be, vests, on the con- 
 viction, in the trae ovmer(k); and the only exception 
 allowed is, where the article stolen is some valuable 
 security, Avhich shall have been paid or discharged 
 bo?id fide by the person liable, or being a negotiable 
 instrument, shall have been bona fide transferred or 
 dehvered for a just and valuable consideration, "svith- 
 out any notice, and Avithout any reasonable cause to 
 suspect that the same had been obtained by any felony 
 or misdemeanor (/ ). If a person suffer the loss of his 
 goods by theft, he cannot by any civil action recover 
 them from the felon (m). To do this, he is bound to 
 suffer the further loss of time or money incurred in a 
 prosecution. If he should succeed in obtaining a con- 
 viction, he is then rewarded for his good fortune by a 
 restitution of his property, whether in the hands of the 
 felon himself, or of any innocent purchaser who may 
 have chanced to buy them, although in open market. 
 Such is the application made by the law of the righteous 
 principle of restitution (n). 
 
 With regard to horses, a sale in market overt will Horses, 
 not confer on the purchaser any further title than is 
 possessed by the vendor, unless the sale be made 
 according to the directions of certain statutes (o) ; and 
 even then the true owner may, at any time within six 
 
 <Ji) Scattergood v. Sylvester, 47 b, n. {j)). 
 
 15 Q. B. 506. {n) See Clwwne y. Baylis, 31 
 
 (Z) Stat. 7 & 8 Geo. IV. c. 29, Beav. 351. 
 
 s. 57. (o) Stats. 2 & 3 P. & M. c. 7 ; 
 
 (m) Stone v. Marsh, 6 Barn. & 31 Eliz. c. 12 ; 2 Black. Com. 
 
 Cress. 551, 564 ; 2 Wms. Saund. 450.
 
 398 
 
 OF TITLE. 
 
 Factors and 
 agents. 
 
 Power of at- 
 torney. 
 
 Decease of 
 
 person giving 
 power of at- 
 torney. 
 
 New enact- 
 ment. 
 
 months after liis horse has been stolen, recover his pro- 
 perty on tender to the person in possession of the price 
 he bona fide paid for it (jo). 
 
 A factor or agent in the possession of goods could 
 not bj the common law give any ftirther title to the 
 goods than he was authorized to do by his principal, 
 either expressly or by implication arising ft-om the 
 usual course of his employment (§-). And when one 
 man is appointed the agent of another for any particular 
 purpose by power of attorney, his authority must still 
 be strictly pursued, otherwise his principal ^vill not be 
 bound (r). But by modern acts of parliament a more 
 extended authority has, for the convenience of com- 
 merce, been conferred on factors and agents {s). The 
 provisions of these acts are too long to be here inserted ; 
 but their general effect is to render valid sales and 
 pledges made by factors or agents, notwithstanding any 
 notice of the fact of their being merely factors or 
 agents, provided the party dealing with them have no 
 notice that they are acting without authority or mala 
 fide. The authority of an agent acting under a power 
 of attorney, determines by the decease of the person 
 giving the power {t). But by a recent act, no trustee, 
 executor or administrator making any payment or 
 doing any act bond fide in pursuance of any poAver of 
 attorney, in ignorance of the death of the person who 
 gave the power, or of his having done some act to 
 avoid the power, shall be liable for the money so paid 
 or the act so done {u). 
 
 (^7) Stat. 31 Eliz. c. 12, s. 4. 
 
 {q) Pickering v. Busk, 15 
 East, 38, 43. 
 
 (r) AttKOOcl V. Munnings, 7 
 Bam. & Cress. 278. 
 
 (s) Stats. 4 Geo. IV. c. 83 ; 6 
 Geo. IV. c. 94 ; 5 & 6 Vict. c. 39. 
 
 {f) Bacon's Abridgment, tit. 
 
 Authority (E) ; Lepard v. Ver- 
 non, 2 Ves. & Bea. 51. Other- 
 wise where expressed to be valid 
 notwithstanding death. Kiddill 
 V. Farnell, 3 Sma. & Gif. 428. 
 
 (u) Stat. 22 & 23 Vict. c. 35, 
 s, 26.
 
 OF TITLE. 809 
 
 In ancient times the sale of lands was usiially accom- Warranty. 
 panied by a warranty of their title ; and some words, 
 such as the word give in a feoffment, had the effect of 
 an implied Avarranty, when none was expressed (u). 
 When warranties fell into disuse, the purchasers of 
 lands acquired a right to covenants for the title, varpng 
 in their stringency according to the nature of the title 
 of the vendor (^x). No warranty however arises from 
 the mere sale of goods, unless it be expressly given, or 
 implied from the custom of the trade or the nature of 
 the contract (y) ; but the sale of goods in an open shop 
 or warehouse has lately been held to be an implied 
 warranty that the seller is the owner of the goods {z). 
 Every affirmation made by the vendor at the time of 
 sale respecting the goods is an express warranty, if it 
 appear to have been so intended («). And if the 
 vendor state that the goods are his own, this amounts 
 to a warranty of his title (b); but if the contract for 
 sale be in writing, the wairanty must be in writing 
 also (c). And a warranty made subsequently to the 
 sale is void for want of consideration (cZ). Contracts 
 made in the com^se of any trade are always subject to 
 the custom of that trade ; and if by the custom of the 
 trade a warranty is imphed in any contract, the vendor 
 
 (?') See Principles of the Law of (z) Eicholtz v. Bann'ister, C. 
 
 Real Property, 344, 1st ed. ; 346, P., 11 Jur.,N. S. 15 ; 17 C. B., N, 
 
 2nd ed. ; 359, 3rd ed. ; 365, 4th S. 708. 
 
 ed.; 376, 5th ed. ; 399, 6th ed. ; (a) ^gq Richardson y. Bron-n, 
 
 407, 7th ed. ; 426, 8th ed. 1 Bing. 344 ; Sheppard v. Kain, 
 
 (a?) Ibid. 348, 1st ed. ; 349,2nd 5 Barn. & Aid. 240; Power v. 
 
 ed. ; 362, 3rd ed. ; 368, 4th ed. ; Barliam, 4 Ad. & Ell. 473 ; Car- 
 
 379, 5th ed. ; 402, 6th ed. ; 410, ter v. Cricl, 4 H. & N. 412. 
 
 7th ed. ; 429, 8th ed. (&) Furniss v. Leicester, Cro. 
 
 {y) Clianter v. IlopVvns, 4 Jac. 474 ; Medina v. Stoiighton, 
 
 Mee. & W. 399; JBurnhy v. 1 Salk. 210. 
 
 Bollett, 16 Mee. & W. 644 ; (c) PicTicring v. Dowson, 4 
 
 Morley v. Atteniorough, 3 Exch. Taunt. 779. 
 
 Rep. 500 ; Bagiieley v. Haivley, {d) Finch, L. 189. See ante, 
 
 L. R., 2 C. P. 625. p. 73.
 
 400 
 
 OF TITLE. 
 
 will be boimcl by it, in the same manner as if lie had 
 given an express warranty [e). So the nature of the 
 contract may be such as to imply a warranty. Thus 
 a contract to ftu-nish goods for a particular purpose, 
 contains an implied warranty that they are fit for that 
 piu'pose (f) ; and a conti-act to fiu-nish manufactiu'ed 
 goods implies a wan'anty that they shall be of a mer- 
 chantable quality (ff). And an important addition to 
 the law of wan-anty has been made by the jSIerchandise 
 Marks Act, 1862, to the provisions of which we have 
 before referred (A). 
 
 Statute of 
 Limitations. 
 
 Disabilities. 
 
 If goods and chattels should have come into the 
 possession of persons ha^n^ng no title to them, such 
 persons will, in coui-se of time, be quieted in their 
 enjoyment by virtue of the Statute of Limitations (i). 
 By tliis statute all actions of trespass, detinue and 
 replevin for goods or cattle must be brought within six 
 years next after the cause of such action (J) ; but if the 
 person entitled to any such action be under age, feme 
 covert, or non compos mentis, such person shall be at 
 liberty to bring the same action Avithin six years after 
 the disabiht}^ is removed (A). The disabilities of absence 
 beyond seas and imprisonment have been abohshed by 
 a recent statute (/). 
 
 Statutes of Choses in action, whether legal or equitable, differ 
 
 Limitation as ^.qjj^ choscs in possession in this, that the title to them 
 
 action. is endangered rather than strengthened by the Statutes 
 
 of Limitation. This difference arises from the nature 
 
 (e) Jones V. Bomden, 4 Taunt, 
 847. 
 
 (/) Jones T. Bright, 5 Bing. 
 533 ; Brown v. Edgington, 2 
 Man. & Gr. 279. 
 
 (<7) Laingy. Fidgeon, 6 Taunt. 
 108. 
 
 (7i) Stat. 25 & 26 Viet. c. 
 a7ite, p. 257. 
 
 (0 Stat. 21 Jac. I. c. 16. 
 
 U) Sect. 3. 
 
 (A) Sect. 7. 
 
 (Z) Stat. 19 & 20 Vict. c. 
 ss. 10, 12. 
 
 97,
 
 OF TITLE. 401 
 
 of the property. Goods aud chattels may exist without 
 any owner ; but if there cease to be a person entitled 
 to a debt, the debt itself ceases to exist. The time 
 within Avhich actions or suits may be brought for the 
 recovery of choses in action varies according to the 
 nature of the seciu-ity. The law on this subject has 
 been rendered somewhat difficult by two different acts 
 of parliament {m) varying from each other, each passed 
 the same session of parhament, and each intended to 
 amend the law. The following, however, appear to be 
 the distinctions. If the chose in action be money se- Mortgages, 
 cured by any mortgage, judgment (n) or lien, or other- i"^gmeuts and 
 wise charged upon or payable out of any real estate at 
 law or in equity, or any legacy (o), or the -personal c^<i/d.^^^ 
 estate or any share of the personal estate of a person ^ "tHZT ^^ 
 who has died intestate (p), no action or suit can be a c^ p^ 
 
 brought to recover the same but within twenty years ^ / 
 
 next after a present right to receive the same shall have 
 accrued to some person cajoable of giving a discharge 
 for or release of the same ; luiless in the meantime some 
 part of the principal money, or some interest thereon, 
 shall have been paid, or some acknowledgment of the 
 right thereto shall have been given in Avriting signed by 
 the person by whom the same shall be payable, or his 
 agent (5-), to the person entitled thereto or his agent (r); 
 and in such case no such action or suit shall be brought 
 but within twenty years after such payment or aclaiow- 
 ledgment, or the last of such payments or acknowledg- 
 ments, if more than one, was made or given {/). If the 
 
 (m) Stats. 3 & 4 Will. IV. cc. s. 13. 
 
 27, 42. (g-) Lord St. John v. JSouffliton, 
 
 (%) Watson V. Birch, 15 Sim. 9 Sim. 219. 
 
 523. ('/■) -Blair v. Nugent, 3 Jones 
 
 (0) Sheppanl r.Duke, 9 Sim. & Lat. 673, 677. 
 
 667. (s) Stat. 3 & 4 Will. IV. c. 27, 
 
 (j?) Stat. 23 & 24 Vict. c. 38, s. 40. 
 
 W.P.P. D D
 
 402 
 
 OF TITLE. 
 
 Rent secured 
 by indenture, 
 and money 
 secured by 
 bond, specialty 
 or recogni- 
 zance. 
 
 Absence be- 
 yond seas. 
 
 Arrears of 
 dower. 
 
 chose in action be rent due upon an indenture of demise, 
 or money secured by bond or other specialty or by a 
 recognizance, an action must also be brought within 
 twenty years after the cause of such action it), or within 
 twenty years after the removal of any of the disabilities 
 of infancy, coverture or lunacy {u). And if any person 
 against whom there is any such cause of action shall be 
 beyond the seas at the time such cause of action ac- 
 crued, the person entitled to any such cause of action 
 may bring the same against him within twenty years 
 after his return iy). And the absence of a joint debtor 
 beyond the seas will not prevent time from rimning in 
 favour of the others, who may not be beyond the seas ; 
 and the recovery of judgment against them will not 
 prevent the creditor from commencing an action against 
 the absent debtor after his return {x). If any acknow- 
 ledgment shall have been made, either by writing signed 
 by the party liable (y), or his agent, or by part payment 
 or part satisfaction on account of any principal or interest 
 then due, the person entitled may bring his action for 
 the money remaining unpaid, and so acknowledged to 
 be due, within twenty years after such acknowledgment, 
 or within twenty years after any of the above-men- 
 tioned disabilities shall have ceased, or the party liable 
 shaU have returned fi-om beyond the seas, as the case 
 may be {z). If the chose in action consist of arrears 
 of dower, neither such arrears nor damages on account 
 thereof can be recovered or obtained by any action or 
 suit for a longer period than six years next before the 
 
 (f) Stat. 3 & 4 Will. IV. c. 42, s. 11. 
 
 s. 3. (y) See Rodclam v. Morley, 1 
 
 (?0 Stat. 3 & 4 Will. IV. c. 42, De Gex & Jones, 1 ; Moodie t. 
 
 s. 4; 19 & 20 Vict. c. 97, s. 10; Bannister, 4 Drew. 432; Coopey. 
 
 Pardo T. Bingham, L. C, 17 W. Cresswell, L. C, Law Rep., 2 Ch, 
 
 R. 419. Ap. 112. 
 
 (v) Stat. 3 & 4 Will. IV. c. 42, (z) Stat. 3 & 4 Will. IV. c. 42, 
 
 s. 4. s. 5 ; Kempe v. Gibbon, 9 Q. B. 
 
 (./•) Stat. 1 & 20 Vict. c. 07, 609.
 
 OF TITLE. 403 
 
 rent and in- 
 terest. 
 
 commencement of such action or suit (a). Arrears of Arrears of 
 rent or of interest in respect of any sum of money 
 charged upon or payable out of any real estate or in 
 respect of any legacy, can be recovered only within 
 six years next after the same shall have become due, or 
 next after an acknowledgment of the same in writing 
 shall have been given to the person entitled thereto, or 
 his agent, signed by the person by whom the same was 
 payable, or his agent ( i). But if such arrears are secured 
 to the claimant ( c) by indenture of demise {d ), or by bond 
 or other specialty (e), an action of debt or covenant may 
 be brought for such arrears at any time within twenty 
 years. And where a mortgagee or other incumbrancer 
 shall have been in possession of any real estate within 
 one year next before the action or suit of a subsequent 
 mortgagee or incumbrancer, the latter may recover the 
 arrears of interest which may have become due to him 
 during the whole time that the prior mortgagee or in- 
 cumbrancer Avas in possession ( /). If the chose in action Simple con 
 consist of a simple contract debt, it must be sued for 
 within six years next after the cause of action, or wdtliin 
 six years next after the removal of any of the disabilities 
 of infancy, coverture or lunacy ((7). And no acknow- 
 ledgment or j)romise by words only to pay such debt 
 shall be deemed sufficient evidence of a ncAv or con- 
 
 (rt) Stat. 3 & 4 Will. IV. c. 27, (c) Huglres v. Kelly, 3 Dru. & 
 
 s. 41. Warren, 482. 
 
 (J) Stat. 3 & 4 Will. IV. c. 27, (rZ) Paget v. Foley, 2 New Ca. 
 
 s. 42 ; Hodges v. Croydon Canal 679. 
 
 Company, 3 Beav. 86; Francis v. {e) Sims v. Thomas, 12 Ad. & 
 
 Grover, 5 Hare, 39 ; Humfrey v. Ell. 536 ; Hunter v. Nockolds, 1 
 
 Gery, 7 C. B. 567. See Toft v. Mac. & Gord. 640. See Flvy v, 
 
 Stevenson, 5 De Gex, M. & G. Norwood, 5 De Gex & Smale, 
 
 735; Mason v. Broadhent, 33 2^^; Sinclair'^. Jackson, \1 ^q3,.y. 
 
 Beav. 296; Edmund v. WaiigJi, 405. 
 
 V. C. K., 14 W. R. 257 ; 1 Law (/) Stat. 3 & 4 Will. IV. c. 27, 
 
 Eep., Eq. 418; £o?vyer y. Wood- s. 42. 
 
 man, V. C. W., L. Rep., 3 Eq. (g) Stat. 21 Jac. I. c. 16, ss. 3, 
 
 313. 7 ; 19 & 20 Vict. c. 97, ss. 10, 12. 
 
 D D 2 
 
 tract debts.
 
 404 
 
 OF TITLE. 
 
 Awards, fines 
 for copyholds, 
 &c. 
 
 Penalties, &c. 
 given to the 
 party grieved. 
 
 tinuing contract to take the case out of the operation 
 of the statute, unless such acknowledgment or promise 
 shall be made in writing, signed by the party charge- 
 able thereby (h) or his agent {i). Actions of debt upon 
 any award where the submission is not by specialty, 
 or for any fine due in respect of any copyhold estates, 
 or for an escape, or for money leaded on anjjieri facias, 
 must also be brought within six years after the cause of 
 action, with a similar saving in respect of disabilities to 
 that applicable in the case of actions on indentin-es of 
 demise, bonds or other specialties {k). And actions for 
 penalties, damages or sums of money given to the party 
 grieved by any statute now or hereafter to be in force, 
 must be brought within tico years after the cause of such 
 actions, with the like saving in resj^ect of disabihties, 
 unless the time for bringing such action is or shall be 
 by any statute specially limited (/). 
 
 Death of cre- 
 ditor. 
 
 Death of 
 debtor. 
 
 When a cause of action accrues to a person in his 
 lifetime, the time limited by the Statutes of Limitation 
 will run on after his decease from the period that the 
 cause of action accrued, and w ill not be reckoned from 
 the time that administration was taken out to his 
 effects (m). But if the cause of action accrue after the 
 death of the party, the time limited by the statute will 
 nm only fi'om the grant of the letters of administra- 
 tion (??). On the other hand, the death of the debtor 
 and the absence of any personal representative to his 
 effects, will not prevent the time limited by the statute 
 from continuing to run on. For if there be once a 
 cause of action, a plaintiff that can sue, and a defendant 
 
 (7t) Stat. 9 Geo. IV. c. 14, s. 1. 
 
 (i) Stat. 19 & 20 Vict. c. 97, 
 s. 13; see ante, pp. 77, 82. 
 
 iji) Stat. 3 & 4 Will. IV. c. 42, 
 ss. 3, 4; see ante, p. 402. 
 
 (Z) Stat. 3 & 4 Will. IV. c. 42,. 
 
 ss. 3, 4. 
 
 (m) 2 Wms. Saund. 63 k. 
 
 in) Murray v. East India 
 Compamj, 5 Bam. & Aid. 204 ; 
 Perry v. Jenkins, 1 Mylne & Cr. 
 118.
 
 OF TITLE. 405 
 
 tliat can be sued in England, the time limited by the 
 
 statute will begin to run, and will not be stopped by the 
 
 decease of either party (o). An executor or adminis- Executor or 
 
 trator is not, however, bound to plead the Statute of no'^ijound^to^ 
 
 Limitations to any debt or demand, but may, if he plead the sta- 
 
 please, pay the same notwithstanding the time limited 
 
 by the statute may have expired (jo). But if the estate 
 
 be administered in the Coiu't of Chancery, any party to 
 
 the suit is competent to take the objection, 'although the 
 
 executor may not have insisted on it ( y). 
 
 Notwithstanding the period of six years limited for Charge of real 
 the payment of simple contract debts, the debtor may ^^^^^^ ^"^ P, Y" 
 Dy charging his real estate by his will with the payment 
 of his debts, and, a fortiori, by creating an express tr ust 
 for t heir pa^mient out_of_his r eal estate, prevent the 
 operation of the statute on all such debts as have not 
 been barred by the statute in his lifetime (r). Real 
 estate, it will be remembered, was not formerly liable 
 to the payment of any debts which were not secured by 
 specialty binding the heirs (5); and the alteration, which 
 in this respect has been made in the law, affects only 
 such real estates as have not been charged by the 
 deceased with the payment of his debts. The creditors 
 therefore in whose favour the charge is made acquire, 
 as before the alteration, the character of cestui que trusts ; 
 and in equity they will not be allowed to lose their 
 
 (0) Rliodcs V. Smethurst, 6 75, 
 
 Mee. & Wels. 351; Freake v. (r) Burke y. Jones, 2 Yes. & 
 
 Cranefeldt, 3 Mylne & Cr. 499 ; Beames, 275 ; Hughes v. Wynne, 
 
 Sturgis V. Darrell, 6 H. & N. Turn. & Kuss. 307; Crallan v. 
 
 120. Oulton, 3 Beav. 1, 
 
 (p) Norton v. FrecTier, 1 Atk. (s) See Principles of the Law 
 
 526; Ex parte Den-dney, 15 Ves. of Real Property, 57, 1st ed. ; 61, 
 
 498. See StcMschmidt v. Lett, 2nd ed; 64, 3rd and 4th eds. ; 68, 
 
 1 Sma. & GifE. 415. 5th ed; 72, 6th ed.; 74, 7th ed.; 
 
 {q) Slieipen v. Vanderltorst, 1 75, 8th ed.; ante, p. 105. 
 Euss. & M. 347 ; 2 Euss. & M.
 
 406 OF TITLE. 
 
 debts, because they do not go to la^v to enforce pajment 
 when they have a trustee to pay them (t). But after 
 twenty years the charge, if not enforced, will be barred 
 like any other charge (m). An express trust, however, 
 
 •,^ '<i*..'^. jfT is proof against any length of time(r)- But as per- 
 ^ , sonal estate has always been primarily liable to the 
 
 ^ '^ ' ^ / payment of all debts, a trust created by a testator tor 
 
 the payment of his debts out of liis personal estate •v\all 
 not prevent {he operation of the statute (.r). 
 
 Unclaimed "When the di^-idends upon any stock transferable at 
 
 dividends, ^|^g Bank of England have not been claimed for ten 
 years, such stock, together with the unclaimed di^a- 
 dends, is transferred to the accoimt of the commissioners 
 for the reduction of the national debt (y) ; and such 
 di"\adends, together with all the ftiture dividends on the 
 stock, are invested by the commissioners in the pm'- 
 chase of like stock, so as to accumulate {^z). And the 
 governor or deputy governor of the bank for the time 
 being may order the transfer of such stock and the pay- 
 ment of the diWdends to any person showing, to his 
 satisfaction, a right thereto ; but in case such governor 
 or deput}^ governor shall not be satisfied of the justice or 
 legaUty of the claim, an order for transfer and payment 
 may be obtained irom the Court of Chancery by petition 
 in a summary way, stating and verifying the claim {a). 
 But no such transfer of stock or papnent of dividends, 
 exceeding the sum of 20/., can be made until tlu-ee 
 
 (0 Turn. & Russ. 309. & Cr. 499. 
 
 («) Dundas v. Blake, 11 L-. {y) Stats. 56 Geo. IJI. c. 60 ; 
 
 Eq. Rep. 138; Sug, Real Prop. 8 & 9 Vict. c. 62. 
 Stat. ^.107; Jacquety. Jacquet, {z) Stat. 56 Geo. in. c. 60, 
 
 27 Beav. 322; Dickinson v. Tees- s. 4. 
 dale, 31 Beav. 511. (a) Stat. 56 Geo. Ill, c. 60, s. 
 
 (r) See the author's Essay on 5; 24 Vict. c. 3, s. 8; £x parte 
 
 Real Assets, p. 40. Ram, 3 My. & Craig, 25; Eunt 
 
 {x) Scott V. Jones, 4 CI. & Fin. v. Peacock, 6 Hare, 361. 
 382; Freake v. Cranefeldt, 3 My.
 
 OF TITLE. 407 
 
 calendar months after the application, nor until notice 
 has been advertised in one or more newspapers circu- 
 lating in London and elsewhere, as the governor and 
 company of the bank shall think fit ; which notice must 
 state the name, description and condition of the person 
 in whose name the unclaimed stock or dividends stood 
 when transferred to the commissioners, and the amoimt 
 thereof, and the name of the claimant, and the time at 
 which the transfer or payment will be made if no other 
 claimant shall sooner appear and make out his claim. 
 And when the stock or dividends are directed to be 
 transferred or paid by any order of the Court of Chan- 
 cery, the notice must also state the purport or effect of 
 such order (Z») ; and any person may at any time before 
 the actual retransfer of the stock, or pajTuent of the 
 di\adends to any such claimant, apply to the Court of 
 Chancery by motion or petition to rescind, alter or vary 
 any order made for such transfer or payment (c). 
 
 When a chose in action, whether legal or equitable. Notice of as- 
 
 is transferred from one person to another, notice of the s^g^n^^?* °^ 
 i _ ' chases %n ac- 
 
 assignment should be given by the transferee to the tion. 
 person liable to the action at laAv or suit in equity, the 
 right to bring which is the subject of the transfer (fZ). 
 Thus if a debt be assigned, notice of the assignment 
 should be given to the debtor. If the subject of the 
 assignment be the right to stock standing in the name 
 of a trustee, notice of the assignment slioidd be given to 
 such trustee. Until such notice be given, it is evident 
 that the debtor may innocently pay the debt, or the 
 trustee transfer the stock to the transferor ; or the trans- 
 feror may fraudulently transfer his right over again to 
 a third person. The transferee, therefore, until he has 
 
 (&) Stat. 8 & 9 Vict. c. 62, s. 2. v. Coojm; 3 Russ. 1 ; BrlghVs 
 (c) Sect. 3. Trxists, 21 Beav. 430. 
 
 (<Z) Dearie v. Kail, Loveridge
 
 408 
 
 OF TITLE. 
 
 given notice to the party liable, has not done all tliat 
 Bankmptcyof lies in his powei* to perfect his title. The chose in 
 transferor. action still remains the apparent property of the trans- 
 feror ; and in the event of his bankruptcy it would 
 formerly have passed to his assignees as property in his 
 order and disposition with the consent of the true owner 
 thereof (e). This, however, is now altered by the Bank- 
 ruptcy Act, 1869, which expressly excepts tilings in 
 action, other than debts due to the bankrupt in the 
 com-se of his trade or business (/). Even the as- 
 signees themselves would formerly not have been safe, 
 unless they had given a similar notice to the person 
 liable to the action, the right to bring which was trans- 
 ferred to them by the bankruptcy (g). The importance 
 of giving notice suggests the precaution that every per- 
 son about to accept an assignment of a chose in action 
 should inquire of the person liable to the action or suit, 
 whether he has had notice of any prior assignment. 
 And if there be two or more persons liable, inquiry 
 shoidd be made of every one of them ; for notice by a 
 prior assignee to any one of them would be equivalent 
 to notice to all (A). It is also advisable that a written 
 answer should be obtained to every such inqvury, in 
 order that if the assignee should be misled by a false 
 answer, he may be enabled to recover damages for the 
 misrepresentation. For it has been doubted whether 
 the answer to such an inquiry be not a representation 
 concerning the ability of the intended assignor Avithin 
 the meaning of Lord Tenterden's act, which requires 
 
 Tnqniiy as to 
 prior assign- 
 ments. 
 
 (e) Ex parte 3Tunro, Buck. 
 .800; Williams t. Tlwrpe, 2 Sim. 
 257; Thompson v. Spiers, 13 Sim. 
 4G9; Bartlett v. Bartlett, 1 De 
 Gex & Jones, 127 ; Be Hughes's 
 Trusts, 2 Hem. & Mil. 89; Be 
 Webb's Policij, V. C. M., 15 W. 
 E. 529; see ante,Tp. 54. 
 
 (/) Stat. 32 & 33 Vict. c. 71, 
 s. 15, par. (5). 
 
 ((/) Be Bar7-'s Trusts, 4 Kay 
 & J. 219. 
 
 {h) Smith V. Smith, 2 Cr. & M. 
 231; 3Ieux V. Bell, 1 Hare, 73, 
 87. See Browne v. Savage, 4 
 Drew. 635, 640.
 
 OF TITLE. 409 
 
 tliat all sucli representations be made in Avi-iting signed 
 by the party to be charged therewith (/). The inquuy, 
 however, thus recommended ^ill not of itself strengthen 
 the title of the assignee, fiirther than by assuring him 
 that no pre^aous assignment has been made. In order 
 to obtain a good title, he must himself give notice to 
 the person or one of the persons liable to the debt or 
 demand assigned to him. When this has been done 
 his title "svill be secm-e, and will prevail over that of any 
 unknown prior assignee who may have omitted to give 
 such notice (J). If the property consist of money or 
 stock standing in the name of the accountant-general 
 of the Court of Chancery, or of securities in his posses- 
 sion (A), an order of the court should be obtained re- 
 straining transfer or pajnnent without notice to the 
 assignee. This order is called a stop order, and will Stop order. 
 have the same effect as notice of assignment given to 
 any private debtor (Z). If the property be stock standing 
 in the name of a trustee, who has died without any 
 administration having been taken out to his effects, a 
 distringas obtained by the assignee to restrain the Distringas. 
 transfer of the stock will confer on him the same 
 priority as notice to the trustee would have done had 
 he been living (m). When the property consists of a Policies and 
 pohcy of assurance, or of shares in a joint-stock com- ^ ^^^" 
 pany, notice of the transfer should be given to the office 
 of the company (n). And with respect to policies of Life policies. 
 life assurance, it is, as we have seen, now provided that 
 a A\Titten notice of the date and piu'port of the assign- 
 
 (i) Lyde v. Barnard, 1 Mee, Beav. 463. 
 
 & Wels. 101 ; Swann v. PMUijfs, (m) Etty v. Bridges, 2 Yonnge 
 
 8 Ad. & E. 457; see ante, p. 83. & Coll. N. C. 466; see ante, p. 
 
 (_;■) Dearie v. Hall, Loveridge 205, 
 
 V. Cooper, 1 Russ. 1. («) Williams v. Tliorpe, 2 Sim. 
 
 (Ji) Williams v. Symonds, 9 2b~; TJwmpsonY. Spiers, li^im. 
 
 Bear. 523. 469; West v. Reid, 2 Hare, 249; 
 
 (Z) Greening v. Bedford, 5 Martina. Sedgwick, ^Ti&aM.QZo; 
 
 Sim. 195; Sivayiie v. Swayne, 11 Pon-les v. Page, 3 C. B. 16.
 
 410 
 
 OF TITLE. 
 
 Title through 
 deeds, ■wills, 
 &c. 
 
 Abstract of 
 title. 
 
 ment must be given to the company in order to pass 
 the right to sue on the policy (o). 
 
 The title to personal property sometimes depends 
 upon deeds, wills or other documents of title of the like 
 natiu-e, and cannot be shown without their production. 
 Thus a reversionary interest in money in the funds, 
 settled by deed or wiU, may be mox-tgaged and sold 
 again and again before it becomes an interest in posses- 
 sion. In these cases the purchaser is entitled to an 
 abstract of the deeds, wills, &c. which compose the 
 title, in the same manner as if the subject of the con- 
 ti-act had been real estate ; and the original deeds, and 
 the probates or office copies of the wills, must also in 
 like manner be produced for the verification of the ab- 
 stract (p). The piu-chaser is also entitled either to the 
 possession of the deeds, or if this cannot be had, to 
 attested copies of them, and a covenant for then pro- 
 Covenants for duction, at the expense of the vendor (</). And when 
 ^^^^^- an assignment of any kind of personal property is made 
 
 by deed, it is usual for the assignor to enter into cove- 
 nants for the title similar to those entered into under 
 the like circumstances by the grantor of real estate (r). 
 
 Title to shares. The vendor of shares in a joint-stock company is 
 bound merely to give such evidence of the constitution 
 of the company, as to show that the proposed transfer 
 vnW give a vahd title to the shares sold (5). 
 
 (0) Stat. 30 & 31 Vict. c. 144, 
 s. 3; ante, p. 178. 
 
 {p) See Pi-inciples of the Law 
 of Real Property, 349, 1st ed. ; 
 351, 2nd ed.; 364, 3rd ed. ; 370, 
 4th ed. ; 381, 5th ed.; 404, 6th 
 ed.; 412, 7th ed.; 431, 8th ed.; 
 Hobson V. Bell, 2 Beav. 17. 
 
 (q) Ibid. 354, 356, 1st ed.; 356, 
 358, 2nd ed.; 369, 372, 3rd ed.; 
 
 375, 378, 4th ed.; 389, 5th ed.; 
 412, 6th ed.; 420, 7th ed.; 440, 
 8 th ed. 
 
 (r) See Principles of the Law 
 of Eeal Property, 348, 1st ed. ; 
 319, 2nd ed.; 362, 3rd ed. ; 368, 
 4th ed. ; 379, 5th ed. ; 402, 6th 
 ed.; 410, 7th ed. 
 
 (s) Curling v. Flight, 2 Phil. 
 613.
 
 OF TITLE. 411 
 
 A recent act of parliament provides that any person A person may 
 shall have power to assign personal property, now by ^^^^ ^ ^'^' 
 law assignable, directly to himself and another person 
 or other persons or corporation, by the like means as he 
 might assign the same to another (t). Before this act 
 an assignment by A. to himself and B. of leasehold 
 property or choses in possession vested the whole of 
 the property in B. The same act renders criminally 
 punishable the concealment, with intent to defi'aud, of 
 any deed or instrument material to a title or of any in- 
 cumbrance, or the falsification of any pedigree on which 
 a title depends (m). 
 
 From what has been said it Avill appear that the title Comparison of 
 , 1 J. • r • 1 i 1 ii ; i 1 the title to real 
 
 to personal property is lar more simple than that to real ^^^ personal 
 
 estate. And amongst the plans which have appeared estate. 
 for the amendment of the law has been one for adapting 
 the machinery of the funds to the transfer of landed 
 property. Upon consideration, however, it will perhaps 
 appear that the greater complexity of the title to lands 
 arises partly from the nature of the property, and partly 
 from the more full power of disposition to which lands 
 are subject. Lands, unlike stock, may be converted fi'om 
 arable to pasture, may be cut up into roads, canals or 
 railways, may be sold by the foot for building purposes, 
 may be let upon lease for terms absolute or deter- 
 minable, may be held for life, or in tail, as well as in 
 fee, and may be disposed of by contingent remainders, 
 shifting uses and executory devises, without the inter- 
 vention of any trustees. Personal property, on the 
 contrary, cannot be settled without the intervention of 
 trustees in whom a great degree of personal confidence 
 must necessarily be placed ; but when so settled, the title 
 to it is sometimes as long and intricate as that to real 
 
 (f) Stilt. 22 & 23 Vict, c. 35, (n) Sect. 24, extended by stat, 
 
 s. 21. 23 & 24 Vict. c. 38, s. 8.
 
 412 OF TITLE. 
 
 estate. If the natm-e of lands could he altered, or if 
 landowners were willing, in order to save themselves 
 expense, to give up some of their powers of disposition, 
 the title to real estate might doubtless be rendered as 
 simple as that to personal property. To the latter 
 alternative, however, few, if any, would be inclined to 
 submit. Wliilst, therefore, much might be done to 
 simplify" and improve our laws of property by an assimi- 
 lation of the rules of real and personal estate, where the 
 history of each forms the only ground of variety, care 
 should be taken to preserve untouched such distinctions 
 as are foxmded on the broad basis of practical difference.
 
 ( 413 ) 
 
 APPENDIX (A). 
 
 Keferred to, p. 243. 
 
 Form of Letters Patent. 
 
 Victoria by the grace of God of the United Kingdom of 
 Great Britain and Ireland Queen Defender of the Faith to all 
 to whom these presents shall come greeting Whereas A. B. 
 
 of hath by his petition hiimbly represented unto us 
 
 that he is in possession of an invention for which 
 
 the petitioner conceives will be of great public utility That 
 he is the true and first inventor thereof and the same is not 
 in use by any other person or persons to the best of his 
 knowledge and belief The petitioner therefore most humbly 
 prayed that we would be graciously pleased to grant unto 
 him his executors administrators and assigns our royal letters 
 patent for the sole use benefit and advantage of his said in- 
 vention within our United Kingdom of Great Britain and 
 Ireland the Channel Islands and Isle of Man [Colonies to 
 BE MENTIONED IF any] for the term of fourteen years pur- 
 suant to the statutes in that case made and provided [And 
 WHEREAS the said A. B. hath particularly described and 
 ascertained the nature of the said invention and in what 
 manner the same is to be performed by an instrument in 
 writing under his hand and seal and has caused the same to 
 
 be duly filed in ] And we being willing to give 
 
 encouragement to all arts and inventions which may be for 
 the public good are graciously pleased to condescend to the 
 petitioner's request Know ye therefore that we of our espe- 
 cial grace certain knowledge and mere motion have given 
 and granted and by these presents for us our heirs and suc- 
 cessors do give and grant unto the said A. B. his executors 
 administrators and assigns our especial licence full power 
 sole privilege and authority that he the said A. B. his execu- 
 tors administrators and assigns and evei'y of them by himself
 
 41-1 APPENDIX. 
 
 and themselves or by his or their deputy or deputies servants 
 or agents or such others as he the said A. B. his executors 
 administrators or assigns shall at any time agree with and no 
 others from time to time and at all times hereafter during 
 the term of years herein expressed shall and lawfully may 
 make use exercise and vend his said invention within our 
 United Kingdom of Great Britain and Ireland the Channel 
 Islands and Isle of Man (a) in such a manner as to him the 
 said A. B. his executors administrators and assigns or any of 
 them shall in his or their discretion seem meet and that he 
 the said A. B. his executors administrators and assigns shall 
 and lawfully may have and enjoy the whole profit benefit 
 commodity and advantage from time to time coming growing 
 accruing and arising by reason of the said invention for and 
 during the term of years herein mentioned to have hold 
 exercise and enjoy the said licences powers privileges and 
 advantages hereinbefore granted or mentioned to be granted 
 unto the said A. B. his executors administrators and assigns 
 for and during and unto the full end and term of fourteen 
 years from the day of A. d. next and imme- 
 diately ensuing according to the statute in such case made and 
 provided And to the end that he the said A. B. his executors 
 administrators and assigns and every of them may have and 
 enjoy the full benefit and the sole use and exercise of the 
 said invention according to our gracious intention hereinbe- 
 fore declared We do by these presents for us our heirs and 
 successors require and strictly command all and every person 
 and persons bodies politic and corporate and all other our 
 subjects whatsoever of what estate quality degree name or 
 condition soever they be within our United Kingdom of 
 Great Britain and Ireland the Channel Islands and Isle of 
 Man [Colonies to be mentioned if any] that neither they 
 nor any of them at any time during the continuance of the 
 said term of fourteen years hereby granted either directly or 
 indirectly do make use or put in practice the said invention 
 or any part of the same so attained unto by the said A. B. 
 as aforesaid nor in anywise counterfeit imitate or resemble 
 the same nor shall make or cause to be made any addition 
 
 (a) The Colonies should here he mentioned, if any, though it is not 
 so stated in the printed form annexed to the Act.
 
 APPENDIX. 415 
 
 thereunto or subtraction from the same whereby to pretend 
 himself or themselves the inventor or inventors devisor or 
 devisors thereof without the consent licence or agreement 
 of the said A. B. his executors administrators or assigns 
 in writing under his or their hands and seals first had and 
 obtained in that behalf upon such pains and penalties as can 
 or may be justly inflicted on such offenders for their contempt 
 of this our royal command and further to be answerable to 
 the said A. B. his executors administrators and assigns ac- 
 cording to law for his and their damages thereby occasioned 
 And moreover we do by these pi'esents for us our heirs and 
 successors will and command all and singular the justices of 
 the peace mayors sheriffs bailiffs constables headboroughs 
 and all other officers and ministers whatsoever of us our 
 heirs and successors for the time being that they or any of 
 them do not nor shall at any time during the said term hereby 
 granted in anywise molest trouble or hinder the said A. B. 
 his executors administrators or assigns or any of them or his 
 or their deputies servants or agents in or about the due and 
 lawful use or exercise of the aforesaid invention or anything 
 relating thereto Provided always and these our letters 
 patent are and shall be upon this condition that if at any time 
 during the said term hereby granted it shall be made appear 
 to us our heirs or successors or any six or more of our or their 
 Privy Council that this our grant is contrary to law or pre- 
 judicial or inconvenient to our subjects in general or that the 
 said invention is not a new invention as to the public use and 
 exercise thereof or that the said A. B, is not the true and 
 first inventor thereof within this realm as aforesaid these our 
 letters patent shall forthwith cease determine and be utterly 
 void to all intents and purposes anything herein contained to 
 the contrary thereof in anywise notwithstanding Pkoyided 
 ALSO that these our letters patent or anything herein contained 
 shall not extend or be construed to extend to give privilege 
 unto the said A. B. his executors administrators or assigns 
 or any of them to use or imitate any invention or work what- 
 soever which hath heretofore been found out or invented by 
 any other of our subjects whatsoever and publicly used or 
 exercised unto whom our like letters patent or privileges have 
 been already granted for the sole use exercise and benefit
 
 416 APPENDIX. 
 
 thereof it being our will and pleasure that the said A. B. his 
 executors administrators and assigns and all and every other 
 person and persons to whom like letters patent or privileges 
 have been already granted as aforesaid shall distinctly use 
 and practise their several inventions by them invented and 
 found out according to the true intent and meaning of the 
 same respective letters patent and of these presents Pro- 
 vided LiKEvnsE nevertheless and these our letters patent are 
 upon this express condition [that if the said A. B. shall not 
 particularly describe and ascertain the nature of his said 
 invention and in what manner the same is to be performed 
 by an instrument in writing under his hand and seal and cause 
 
 the same to be filed in within calendar months 
 
 next and immediately after the date of these our letters 
 patent] [and also if the said instrument in writing filed as 
 aforesaid does not particularly describe and ascertain the 
 nature of the said invention and in what manner the same 
 is to be perfoiined] and also if the said A. B. his executors 
 administrators or assigns shall not pay or cause to be paid at 
 the office of our Commissioners of Patents for Inventions the 
 
 sums following that is to say the sum of pounds on 
 
 or before the day of A. D. and the stamp duty 
 
 payable in respect of the certificate of such payment and the 
 
 sum of pounds on or before the day of 
 
 A.D. and the stamp duty payable in respect of the cer- 
 tificate of such payment (b) And also if the said A. B, his 
 executors administrators or assigns shall not supply or cause 
 to be supplied for our service all such articles of the said 
 invention as he or they shall be required to supply by the 
 officers or commissioners administering the department of 
 our service for the use of which the same shall be required 
 in such manner at such times and at and upon such reason- 
 able prices and terms as shall be settled for that purpose by 
 the said officers or commissioners requiring the same that 
 then and in any of the said cases these our letters patent and 
 all liberties and advantages whatsoever hereby granted shall 
 utterly cease determine and become void anything herein- 
 before contained to the contrary thereof in anywise notwith- 
 
 {h) By Stat. 16 & 17 Vict. c. 5, no fees are now payable, but stamp 
 duties only. See atite, p. 236.
 
 APPENDIX. 417 
 
 standing Provided that nothing herein contained shall pre- 
 vent the granting of licences in such manner and for such 
 consideration as they may by law be granted And lastly 
 we do by these presents for us our heirs and successors grant 
 unto the said A. B. his executors administrators and assigns 
 that these our letters patent on the filing thereof shall be in 
 and by all things good firm valid sufficient and effectual in 
 the law according to the true intent and meaning thereof and 
 shall be taken construed and adjudged in the most favour- 
 able and beneficial sense for the best advantage of the said 
 A. B. his executors administrators and assigns as well in all 
 our Courts of Record as elsewhere and by all and singular 
 the officers and ministers whatsoever of us our heirs and suc- 
 cessors in our United Kingdom of Great Britain and Ireland 
 the Channel Islands and the Isle of Man [Colonies to be 
 MENTIONED IF any] and amongst all and every the subjects 
 of us our heirs and successors whatsoever and wheresoever 
 notwithstanding the not full and certain describing the nature 
 or quality of the said invention or of the materials thereunto 
 conducing and belonging In witness whereof we have caused 
 
 these our letters to be made patent this day of 
 
 a. d. and to be sealed and bear date as of the said 
 
 day of A. D. in the year of our 
 
 w.r.p. E E
 
 418 
 
 APPENDIX. 
 
 APPENDIX (B). 
 
 Referred to, pp. 263, 287, 289, 385, 386. 
 
 Recital of in- 
 tended mar- 
 riage. 
 
 Recital of pos- 
 session of per- 
 sonalty under 
 a will. 
 
 Recital of pos- 
 session of 
 stock. 
 
 Recital of 
 agreement to 
 assign person- 
 altv to trustees. 
 
 Marriage Settlement of a Share of a Testator' s Hesiduary 
 Personal Estate and of Moiiey in the Funds upon the 
 usual Trusts. 
 
 This Indenture made the day of 1860 Between 
 
 Charles Catchpole of King Street in the city of London gen- 
 tleman of the first part Grace Gurney of Harley Street in 
 the county of Middlesex spinster of the second part and 
 Henry Hunter of Brixton in the county of Surrey Esquire 
 John James of Lincoln's Inn in the county of Middlesex 
 Esquire and Leonard Lambert of Brighton in the county of 
 Sussex Esquire of the third part Whereas a marriage has 
 been agreed upon and is intended to be shortly solemnized 
 between the said Charles Catchpole and Grace Gurney And 
 whereas under and by virtue of the last will and testament 
 of John Gurney late of Harley Street aforesaid Esquire de- 
 ceased which said will bears date on or about the ninth day 
 of January 1840 and was proved in the Prerogative Court of 
 the Archbishop of Canterbury (a) on or about the twelfth day 
 of March 1840 the said Grace Gurney is now entitled to one 
 equal undivided fourth part or share or some other part or 
 share of the residuary personal estate of the said testator or 
 the stocks funds or securities in or upon which the same is 
 or may be invested And whereas the said Grace Gurney is 
 possessed of the sum of £5000 £3 jDer cent, consolidated 
 bank annuities which said sum was lately standing in her. 
 own name in the books of the governor and company of the 
 Bank of England And whereas upon the treaty for the said 
 intended marriage it was agreed that the said Grace Gurney 
 should assign the said one equal undivided fourth part or 
 
 (a) See ante, p. 333.
 
 APPENDIX. 419 
 
 share or other part or share to which she is entitled as afore- 
 said of and in the residuary personal estate of her said late 
 father unto the said Henry Hunter Jolm James and Leonard 
 Lambert their executors administrators and assigns upon 
 and for the trusts intents and purposes hereinafter expressed 
 and declared of and concerning the same And it was also Recital of 
 agreed that the said Grace Gurney should transfer the said tr^'ngf^r'stock 
 sum of £5000 £3 per cent, consolidated bank annuities of to trustees. 
 which she is possessed as aforesaid into the names of the said 
 Henry Hunter John James and Leonard Lambert to be held 
 by them upon and for the trusts intents and purposes herein- 
 after expressed and declared of and concerning the same 
 And whereas the said sum of £5000 £3 per cent, consoli- Recital o£ 
 dated bank annuities hath been accordingly transferred by g^Q^^^^ccord- 
 the said Grace Gurney out of her name into the names of ingly. 
 the said Henry Hunter John James and Leonard Lambert 
 and the same is now standing in their names in the books of 
 the governor and company of the Bank of England as they 
 the said Henry Hunter John James and Leonard Lambert do 
 hereby admit and acknowledge Now this Lsidenture wit- Testatum, 
 NESSETH that in pursuance of the said agreement in this be- 
 half and in consideration of the said intended marriage she 
 the said Grace Gurney with the consent and approbation of 
 the said Charles Catch pole testified by his being a party to 
 and executing these presents Hath granted bargained sold Assignment. 
 assigned and transferred and by these presents Doth grant 
 bargain sell assign and transfer unto the said Henry Hunter 
 John James and Leonard Lambert their executors adminis- 
 trators and assigns All that the one equal undivided fourth Parcels, share 
 part or share or other part or share of her the said Grace °^ residue. 
 Gurney under the hereinbefore mentioned will of her said 
 late father John Gurney of and in the residuary personal 
 estate of her said late father and of and in the stocks funds 
 and securities in or upon which the same now is or shall or 
 may at any time or times hereafter be invested and of and in 
 the dividends interest and annual produce thereof And all And all the 
 the right title claim and demand whatsoever at law and in "S^^t, &c. 
 equity of her the said Grace Gurney in and to the said one 
 equal undivided fourth part or share or other part or share 
 hereby assigned To have hold receive and take the said iral)cndum. 
 
 E E 2
 
 420 
 
 APPENDIX. 
 
 Trust for lady 
 till marriage. 
 
 Power of at- 
 torney. 
 
 Trust of stock. 
 
 one equal undivided fourth part or share or other part oi' 
 share intended to be hereby assigned of and in the residuary 
 personal estate of the said John Gurney and the investments 
 and income thereof unto the said Henry Hunter John James 
 and Leonard Lambert their executors administrators and 
 assigns In trust for the said Grace Gurney her executors 
 administrators and assigns until the solemnization of the said 
 intended marriage and from and immediately after the solem- 
 nization thereof Upon and for the trusts intents and purposes 
 and with under and subject to the powers provisos agree- 
 ments and declarations hereinafter expressed and declared of 
 and concerning the same And the said Charles Catchpole 
 and Grace Gurney do and each of them doth hereby irrevo- 
 cably nominate and appoint the said Henry Hunter John 
 eTames and Leonard Lambert and the survivors and survivor 
 of them his executors administrators and assigns to be the 
 true and lawful attornies and attorney of them the said 
 Charles Catchpole and Grace Gurney and each of them (i) 
 in their his or her names or name to ask recover and receive 
 from the executors of the will of the said John Gurney and 
 all and every pei'sons and person liable to pay or transfer the 
 same the said one equal undivided fourth part or share here- 
 by assigned and to give effectual discharges for the same and 
 on non-payment or non-transfer thereof or of any part thereof 
 to commence carry on and prosecute any action or actions 
 suit or suits or other proceedings whatsoever for obtaining 
 payment or transfer thereof And also for all or any of the 
 said purposes from time to time to substitute or appoint any 
 attorney or attornies under them or him And generally to 
 do and execute all such other matters and things in the 
 premises as shall be necessary they the said Charles Catch- 
 pole and Grace Gurney hereby agreeing to allow and confirm 
 whatsoever the said Henry Hunter John James and Leonard 
 Lambert or the survivors or survivor of them his executors 
 administrators or assigns shall lawfully do or cause to be don& 
 in the premises by virtue hereof And it is hereby agreed 
 and declared by and between the said parties hereto that they 
 the said Henry Hunter John James and Leonard Lambert 
 
 (5) This power of attorney is not absolutely necessary, as the cJioses 
 in action which are assigned are equitable only; see ante, p. 117.
 
 APPENDIX. 421 
 
 their executors administrators and assigns shall stand pos- 
 sessed of and interested in the said sum of £5000 £3 per cent. 
 consoUdated bank annuities so transferred into their names 
 as aforesaid In trust for the said Grace Gumey her exe- Trust for in- 
 cutors administrators and assigns until the solemnization of tended wife till 
 
 . . A IP 1 ■ 1-1 r- marriage. 
 
 the said intended marriage And from and immediately after 
 
 the solemnization thereof Upon and for the trusts intents and 
 purposes and with under and subject to the powers provisos 
 agreements and declarations hereinafter expressed and con- 
 tained of and concerning the same And it is hereby agreed Trust of sliare 
 and declared by and between the said parties hereto that ^^ pcsonalty 
 -, o • • • • ^^'^ °^ stock 
 
 from and after the solemnization of the said intended marriage after marria-'c. 
 
 the said Henry Hunter John James and Leonard Lambert 
 their executors administrators and assigns shall stand pos- 
 sessed of and interested in the said one equal fourth part or 
 share or other part or share hereinbefore assigned of and in 
 the residuary personal estate of the said John Gurney and 
 the investments thereof and the said sum of £5000 £3 per 
 cent, consolidated bank annuities Upon trust that the said Trust to con- 
 trustees or the trustees or trustee for the time being of these investments^ 
 presents do and shall either continue the same respectively in 
 their respective actual states of investment or do and shall 
 lay out and invest the same in any of the parliamentary stocks 
 or public funds of Great Britain or at interest upon govern- 
 ment or real securities in England or Wales but not in stock 
 of the Bank of England or Ireland or in East India Stock or 
 on I'eal securities in Ireland (c) and do and shall from time 
 to time alter and vary the said stocks funds and securities for 
 or into others of a like nature as often as the said trustees or 
 trustee shall think fit Provided that every such investment With consent, 
 alteration and variation be made with the consent of the said 
 Charles Catchpole and Grace Gurney during their joint lives 
 and after the decease of either of them with the consent of the 
 survivor of them (d) and after the decease of such survivor 
 at the discretion of the said trustees or trustee for the time 
 being of these presents And it is hereby agreed and declared Declaration of 
 
 by and between the said parties hereto that after the solem- t^'^t "f invcst- 
 
 •^ _ ^ _ ments. 
 
 uization of the said intended marriage the said trustees or 
 
 (c) Sec ante, pp. 282, 283. {d) Sec ante, pp. 285, 28G.
 
 422 
 
 APPEXDIX. 
 
 Trust for sepa- 
 rate use of 
 intended wife 
 for life. 
 
 After decease 
 of intended 
 wife, trust for 
 intended hus- 
 band for life. 
 
 After decease 
 of survivor, 
 
 trustee for the time being of these presents shall stand pos- 
 sessed of and interested in the said share of the residuary 
 personal estate of the said John Gurney and the investmenta 
 thereof and the said siun of £5000 £3 per cent, consolidated 
 bank annuities and the stocks funds and securities in or upon 
 which the same may be invested and the dividends interest 
 and annual produce thereof Upon and for the trusts intents 
 and purposes and under and subject to the powers provisos 
 agreements and declarations hereinafter expressed and de- 
 clared of and concerning the same that is to say Upon trust 
 that they the said trustees or trustee for the time being of 
 these presents do and shall during the life of the said Grace 
 Gm'ney pay the interest dividends and annual produce thereof 
 unto such person or persons as the said Grace Gurney shall 
 from time to time notwithstanding her said intended or any 
 future coverture appoint by any writing under her hand but 
 not by any mode of anticipation and in default of such ap- 
 pointment into her own hands for her sole and separate use (e) 
 exclusive of the said Charles Catchpole and of any future 
 husband but so that she shall not dispose thereof in any mode 
 of anticipation And the receipts in writing of the said Grace 
 Gurney or of such person or persons as she shall appoint to 
 receive the said dividends interest and annual produce in 
 manner aforesaid but not in any mode of anticipation shall 
 notwithstanding her said intended or any future coverture be 
 effectual discharges for the same And from and immediately 
 after the decease of the said Grace Gurney Upon trust that 
 the said trustees or trustee for the time being of these 
 psesents do and shall pay the dividends interest and annual 
 produce of the said trust monies stocks funds and seciu-ities 
 unto or permit the same to be received by the said Charles 
 Catchpole and his assigns for and dinging the term of his 
 natural life And from and immediately after the decease of 
 the survivor of them the said Charles Catchpole and Grace 
 Gurney the said trustees or trustee for the time being of these 
 presents shall stand and be possessed of and interested in the 
 said trust monies stocks funds and securities and the dividends 
 interest and annual produce thereof In trust for all and 
 
 (c) See coite, p. 384.
 
 APPENDIX. 423 
 
 every or such one or more exclusively of the others or other trust for 
 
 of the children or child of the said intended marriage with ^'hild^^cn as iu- 
 
 . . p , . . . tended hus- 
 
 snch provision tor their respective maintenance and if more hand and wife 
 
 than one in such shares and proportions and subject to such shall jointly 
 
 limitations and conditions over in favour of any others or 
 
 other of the said children and in such manner {f) as the said 
 
 Charles Catchpole and Grace Gurney by any deed or deeds 
 
 instrument or instruments in writing with or without power 
 
 of revocation and new appointment to be by them sealed and 
 
 delivered in the presence of and to be attested by two or 
 
 more credible witnesses shall jointly direct or appoint And In default, as 
 
 in default of such ioint direction or appointment and so far survivor shall 
 
 .... . appoint hv 
 
 as any such joint direction or appointment if incomj^lete shall deed or will. 
 
 not extend as the survivor of them the said Charles Catchpole 
 and Grace Gurney by any deed or deeds insti'iiment or in- 
 struments in writing with or without power of revocation and 
 new appointment to be by him or her respectively sealed and 
 delivered in the presence of and to be attested by two or 
 more credible witnesses or by his or her last will or any 
 codicil or testamentary writing to be by him or her respec- 
 tively duly executed (and as to the said Grace Gurney not- 
 withstanding any future coverture) shall direct or appoint 
 And in default of such direction or appointment and so far Iq default of 
 as any such direction or appointment if incomplete shall not appointment, 
 extend In trust for all and every the children or child of trust for chil- 
 
 the said intended marriage who being a son or sons shall ^'^^^ equall}-, 
 
 ° "^ . sons at twentj- 
 
 attain the age of twenty-one years or being a daughter or one years, 
 
 daughters shall attain that age or marry under that age with da^gliters at 
 
 '^ „ , , . ■' ^. twentv-one or 
 
 the consent of her or their parent or parents guardian or marriage with 
 
 guardians for the time being and to be divided between or consent. 
 
 amongst the said children if more than one in equal shares 
 
 as tenants in common and if there shall be but one such child 
 
 who being a son shall live to attain the age of twenty-one 
 
 years or being a daughter shall live to attain that age or marry 
 
 under that age with such consent as aforesaid then the whole 
 
 shall be in trust for that one or only child But no child Hotehpot 
 
 taking any part of the said trust monies stocks funds and clause. 
 
 securities under any appointment to be made in exercise of 
 
 (/) Seeaft^e, pp. 273,272.
 
 424 
 
 APPENDIX. 
 
 If no child 
 shall become 
 entitled. 
 
 If intended 
 husband shall 
 die first. 
 
 Trust for in- 
 tended wife 
 absolutely. 
 
 If intended 
 wife shall die 
 first, 
 
 upon such 
 trusts as in- 
 tended wife 
 shall by will 
 appoint. 
 
 In default of 
 appointment, 
 
 trust for next 
 of kin of in- 
 tended wife. 
 
 Maintenance 
 and education 
 clause. 
 
 any of the aforesaid powers shall be eutitle J to any share of 
 the unappointed part of the said trust monies stocks funds 
 and securities without bringing his or her appointed share 
 into hotchpot and accounting for the same accordingly {g) 
 And if there shaU be no child or children of the said intended 
 marriage who shall become entitled to the said trust monies 
 stocks funds and securities under the trusts hereinbefore 
 declai-ed then the said trustees or trustee for the time being 
 shall stand possessed of the said trust monies stocks funds 
 and seciu-ities or so much thereof as shall not have been dis- 
 posed of under the powers and authorities herein contained 
 and the dividends interest and annual produce thereof (sub- 
 ject nevertheless to the trusts hereinbefore declared) Upon 
 and for the trusts intents and purposes hereinafter expressed 
 and declared of and concerning the same that is to say If the 
 said Charles Catchpole shall depart this life in the lifetime of 
 the said Grace Gurney In trust for the said Grace Gurney 
 her executors administrators and assigns for her own benefit 
 But if the said Grace Gurney shall depart this life in the 
 lifetime of the said Charles Catchpole then after the decease 
 of the said Charles Catchpole and such failure of children as 
 aforesaid Upon and for such trusts intents and purposes and 
 in such manner as the said Grace Gurney by her last will or 
 any codicil or testamentary writing to be by her duly exe- 
 cuted notwithstanding her said intended coverture shall direct 
 or appoint (Ji) And in default of such direction or appoint- 
 ment and so far as any such direction or appointment if in- 
 complete shall not extend In trust for the person or per- 
 sons who under the statutes made for the distribution of the 
 estates of intestates would at the decease of the said Grace 
 Gurney be entitled to her personal estate in case she had 
 died possessed of the same intestate and without having been 
 married and to be divided between or amongst the same 
 persons if more than one in the shares in which the same 
 would under the same statutes be divided between or amongst 
 them Provided always and it is hereby agreed and de- 
 clared by and between the said parties hereto that after the 
 decease of the said Charles Catchpole and Grace Gurney 
 
 (y) See ante, p. 272. 
 
 (/() See ante, p. 269.
 
 ArrENDix. 425 
 
 uud whilst any child or childreu of the said intended mar- 
 riage being a son or sons shall be under the age of twenty- 
 one years or being a daughter or daughters shall be under that 
 age and unmarried the said trustees or trustee for the time 
 being of these presents do and shall apply the whole or such 
 part as the said trustees or trustee for the time being shall 
 think fit of the dividends interest and annual produce of the 
 expectant or presumptive share of each such child in the said 
 trust monies stocks funds and securities for or towards his or 
 her maintenance and education or otherwise for his or her 
 benefit and that the said trustees or trustee for the time 
 being may either themselves or himself so apply the same or 
 may pay the same to the guardian or guardians of such child 
 for the purpose aforesaid without seeing to the application 
 thereof (^) And do and shall lay out and invest the surplus Accumulution 
 if any of the said interest dividends and annual produce in clause, 
 the names or name of the said trustees or trustee for the time 
 being in any of the stocks funds or securities hereinbefore 
 mentioned to be from time to time altered and varied for or 
 into any other stocks funds and securities of a like nature as 
 often as the said trustees or trustee shall think fit so that the 
 same may accumulate by Avay of compound interest and the 
 accumulations to be so made shall be added to the fund or 
 I'espective funds from which the same shall have proceeded 
 and be subject to the same trusts and provisions in every 
 respect and so that the dividends interest and annual produce 
 of each such accumulated fund may be subject to the provision 
 hereinbefore contained for the maintenance and education at 
 any subsequent j^eriod of minority of the child from whose 
 expectant or presumptive share the same shall have proceeded 
 Provided also and it is hereby agreed and declared that it Power of ad- 
 shall be lawful for the said trustees or trustee for the time vancement. 
 being of these presents during the joint lives of the said 
 Charles Catchpole and Grace Gurney with their consent in 
 writing and after the decease of either of them with the con- 
 sent in writing of the survivor of them which consent shall be 
 binding whether the said Grace Gurney shall be covert or 
 sole and after the decease of such survivor at the discretion 
 
 {i) See ante, pp. 278 — 281.
 
 426 
 
 APPENDIX. 
 
 chase of lands. 
 
 of the said trustees or trustee for the time being to raise and 
 apply a sufficient part of the expectant share of any child of 
 the said intended marriage in the said trust monies stocks 
 funds and securities for or towards his or her advancement 
 in the world notwithstanding he or she shall not then have 
 attained the age of twenty-one years or after he or she may 
 have attained that age in the lifetime of the said Charles 
 Catchpole and Grace Gurney or the survivor of them Pro- 
 Power to in- viDED ALWAYS and it is hereby agreed and declared by and 
 est in the pur- between the said parties hereto that it shall be lawful for the 
 said trustees or trustee for the time being at any time or times 
 during the lives or life of the said Charles Catchpole and 
 Grace Gurney or the survivor of them with their his or her 
 consent and approbation in writing signed with their his or 
 her hands or hand to convert into money the whole or any 
 part of the said stocks funds and seciu-ities and to lay out the 
 monies arising thereby in the purchase of any freehold or 
 copyhold estates in England or Wales of an estate of mhe- 
 ritance in fee simple in possession free from all incumbrances 
 except quit rents and copyhold and customary dues and 
 services (A) to be conveyed or surrendered to the said 
 trustees or trustee for the time being their or his heirs 
 and assigns Upon trust nevertheless with the consent 
 and approbation of the said Charles Catchpole and Grace 
 Gurney or the survivor of them to be signified by writing 
 sio-ned with their his or her hands or hand during the life- 
 time of them or the survivor of them and after the decease 
 of the survivor of them then at the discretion and of the 
 proper authority of the said trustees or trustee for the time 
 being of these presents to sell and dispose of the said estates 
 which shall have been so purchased as aforesaid either by 
 pubHc auction or private contract in one lot or in parcels 
 subject to such special conditions of sale and for such price 
 or prices as to the said trustees or tinastee for the time being 
 shall seem reasonable with power at any public auction of the 
 said premises or any of them to buy in the same or any of 
 them and also to vary or rescind any contract for the sale of the 
 same or any part thereof and to resell the same in maimer 
 
 Trust for sale 
 of lands to be 
 purchased. 
 
 (/;) See ante, p. 286.
 
 APPENDIX. 427 
 
 aforesaid without responsibility for any loss to be occasioned 
 
 therely and to convey and assure the said premises which 
 
 shall be sold to the purchaser or respective purchasers thereof 
 
 or as he she or they respectively shall direct And upon Trust of sale 
 
 TRUST to apply the monies arising from such sale after pay- "^""i^*^ * ^^ . 
 1 1- •/ o r J same as monies 
 
 ment of the costs charges and expenses attending the same laid out. 
 
 Upon and for such and the same trusts intents and purposes 
 
 as the monies so raised and laid out in the purchase of such 
 
 estates were subject to before such purchase was made or 
 
 would have been subject to if the same had not been laid out 
 
 therein And also upon trust in the meantime and until 
 
 such estates shall be so resold to apply the rents and profits 
 
 thereof in such manner as the interest dividends and annual 
 
 produce of the monies laid out in the purchase thereof would 
 
 have been applicable under the trusts hereinbefore declared 
 
 in case such purchase had not been made It being hereby Purchased 
 
 agreed and declared that the estates to be purchased under ^^^atx's to he 
 ^ , ^ considered as 
 
 this present power as aforesaid shall when so purchased be money. 
 
 considered as money and be subject to such and the same 
 
 trusts in all respects as the monies laid out in the purchase 
 
 thereof were subject to befoi-e such purchase was made or 
 
 would have been subject to if the same had not been laid out 
 
 therein Provided always and it is hereby agreed and de- Power of Icas- 
 
 clared by and between the said parties hereto that it shall be 1"^ estates to 
 •' ^ be puixhased. 
 
 lawful for the trustees or trustee for the time being of the 
 
 estates so to be purchased by virtue of such power as afore- 
 said with the consent and approbation of the said Charles 
 Catchpole and Grace Gurney or the survivor of them testified 
 by some writing under their his or her hands or hand and 
 after the decease of such survivor then at the discretion and 
 of the proper authority of the said trustees or trustee by deed 
 at any time or times to demise and lease the same estates or 
 any of them or any part thereof to any person or persons 
 whomsoever for any term of years not exceeding twenty -one 
 years to take effect in possession and not by way of future 
 interest at the best yearly rent that can be had or gotten for 
 the same and without any fine or foregift for the making 
 thereof and upon such other terms and conditions as the said 
 trustees or trustee shall think fair and reasonable Provided Power for trus- 
 ALWAYS and it is lieredy agreed and declared by and between ^^^^ ^'^ ^'^'■'''e
 
 428 
 
 APPENDIX. 
 
 with executors 
 as to share of 
 residue ; 
 
 and to pass 
 their accounts. 
 
 Power to refer 
 to arbitration. 
 
 Power for trus- 
 tees to post- 
 pone and for- 
 bear exercise 
 and enforce- 
 ment of powers 
 and remedies. 
 
 Receipt clause. 
 
 the said parties hereto that it shall be lawful for the trustees 
 or trustee for the time being of these presents with the con- 
 sent in writing of the said Charles Catchpole and Grace Gurney 
 during their joint lives and after the decease of either of them 
 with the consent in writing of the survivor of them and after 
 the decease of such survivor at the discretion of the said 
 trustees or trustee to settle and ascertain in such manner as 
 they or he shall deem expedient the amount of any monies 
 properties or effects due to or claimed by them or him under 
 these presents by virtue of the will of the said John Gurney 
 deceased and also to pass and allow the accounts of the per- 
 son or persons paying over or transferring the same monies 
 properties or effects or any part thereof and to accept any 
 monies properties or effects Avhich the said trustees or trustee 
 for the time being Avith such consent or at such discretion as 
 aforesaid shall deem it expedient to accept in lieu of or satis- 
 faction for the whole of the said premises hereby assigned and 
 to give releases and discharges to the accounting party or 
 parties for the same premises or any part thereof as fully 
 and effectually as the trustees or trustee for the time being of 
 these presents might or could do if they or he were absolute 
 and beneficial owners or owner of such premises And if any 
 disputes or difficulties shall at any time arise in relation to 
 the said premises hereby assigned or any part thereof it shall 
 be lawful for the trustees or trustee for the time being of 
 these presents if they or he shall think proper with such 
 consent or at such discretion as aforesaid to refer any such 
 disputes or difficulties to arbitration in the usual manner or 
 otherwise to settle and adjust the same in such manner in all 
 respects as the said trustees or trustee for the time being 
 with such consent or at such discretion as aforesaid shall 
 think proper Provided also and it is hereby further agreed 
 that it shall be lawful for the trustees or trustee for the time 
 being of these presents in their or his discretion to postpone 
 or forbear the exercise and enforcement of all or any of the 
 powers and remedies hereby vested in or which shall or may 
 be exercisable by such trustees or trustee by virtue hereof 
 anything hei'ein contained or any rule at law or equity to the 
 contrary notwithstanding Provided also and it is hereby 
 agreed and declared by and between the said parties hereto
 
 APPENDIX. 429 
 
 hat the receipts in writing of the trustees or trustee for the 
 time being acting in the execution of the trusts or powers of 
 these presents for any monies payable to them or him by 
 virtue of these presents shall effectually discharge the person 
 or persons paying the same from all responsibility as to the 
 misapplication or uonapplicatiou thereof and from all obliga- 
 tion of seeing to the application thereof (Z) And also that it Power to ac- 
 
 shall be lawful for the trustees or trustee for the time beincr cept other se- 
 
 ° curities. 
 of these presents but during the lives of the said Charles 
 
 Catchpole and Grace Gurney and the life of the survivor of 
 them with their his or her consent in writing to accept other 
 real securities for any part of the said trust funds which may 
 be invested in real securities and the interest thereof in lieu 
 of and as a substitution for the hereditaments or any part of 
 the hereditaments comprised in any such security And also And to dis- 
 to discharge from any such security any part or parts of the '"^^^^I'ge Pjyt of 
 hereditaments therein comprised and without which the said mcnts corn- 
 trustees or trustee shall deem the existing security or seen- pi'iscd in any 
 
 . . ,„ . - , „ . scfurit}'. 
 
 nties sutncieut and every such acceptance or a new security 
 
 and every release of all or any jjart of the hereditaments 
 comprised in the existing securities shall be binding on all 
 persons interested in the said trust funds and the interest 
 thereof and the persons deriving title to the hereditaments so 
 released shall not be obliged to inquire into the sutficiency in 
 point of value or title of the substituted or retained security 
 or securities Provided also and it is hereby further agreed Power to ap- 
 and declared by and between the said parties hereto that if P°"^* "'^^^' *™^' 
 the said trustees hereinbefore appointed or any or either of 
 them or any future trustee or trustees to be appointed as here- 
 inafter is mentioned shall happen to die or shall go to re- 
 side beyond the seas or shall be desirous of being discharged 
 or shall decline or become incaj)able to act in the trusts or 
 powers herein contained before the same shall be fully per- 
 formed or otherwise satisfied then and in every such case it 
 shall be lawful for the said Charles Catchpole and Grace 
 Gurney during their joint lives and after the decease of 
 either of them for the survivor of them and after the decease 
 of such survivor for the surviving or continuing trustees or 
 
 (Z) See ante, p. 288.
 
 430 APPENDIX. 
 
 trustee for the time being of these presents or the acting 
 executors or administrators of the last surviving or continuing 
 trustee (and for this purpose a retiring trustee shall if willing 
 to act in the execution of this power be considered a continu- 
 ing trustee) by any deed or deeds instrument or instruments 
 in writing to be by them him or her sealed and delivered in 
 the presence of and to be attested by two or more credible 
 witnesses to substitute and appoint any other person or per- 
 sons to be a trustee or ti'ustees in lieu of the trustee or trus- 
 tees so dying going to reside beyond the seas desiring to be 
 discharged declining or becoming incapable to act as afore- 
 said {m) And that when any new trustee or trustees shall 
 have been appointed as aforesaid all the said trust estates 
 monies and premises which shall be then vested in the trus- 
 tees or trustee for the time being of these presents or in the 
 heirs executors or administrators of the last surviving or con- 
 tinuing trustee shall with all convenient speed be conveyed 
 assigned transferred and paid so as effectually to vest the 
 same in the surviving or continuing trustees or trustee and 
 such new or other trustee or trustees or if there shall be no 
 surviving or continuing trustee then in such new ti'ustees or 
 trustee only upon the same trusts as are hereinbefore de- 
 clared concerning the same or such of the same trusts as 
 shall be subsisting or capable of taking effect And it is 
 hereby agreed and declared that every such new trustee shall 
 in all things act and assist in the management and exe- 
 cution of the trusts and powers to which he shall be so 
 appointed as effectually and with the same powers autho- 
 rities exemptions and discretion as if he had been originally 
 by these presents nominated a trustee for the purposes afore- 
 said In witness whereof the said parties to these presents 
 have hereunto set their hands and seals the day and year 
 first above written. 
 
 (?») See ante, p. 289.
 
 I N D E X. 
 
 Ability, representation as to, 83, 408. 
 
 Absence beyond the seas, saving of disability of, 402. 
 
 Abstract of title, 410. 
 
 Acceptance of goods, what is, 41. 
 
 of offer, 81. 
 Acceptor of a bill, liability of, 86. 
 Accumulation, restraint on, 268. 
 Acknowledgment, remarks on, by wife, of the conveyance of her real 
 
 estate, 393. 
 Act of bankruptcy, what is, 50, 113, 123, 124, 134, 135, 136, 137, 138, 
 151. 
 bond fide transactions valid notwithstanding, 151. 
 — See Bankruptcy. 
 Action, chose in, 4— 7, 63, 117, 306, 375, 377.— See also Chose in 
 
 Action. 
 Actions, real, personal and mixed, 3. 
 
 ex delicto and ex contractu, 63, 64. 
 personal, 3, 64, 65. 
 for dilapidations, 67. 
 of detinue, 3. 
 
 of trover and conversion, 24, 46, 49. 
 of replevin, 3. 
 ofdebt, 5, 70, 
 
 of debt by husband for arrears of wife's rent, 376. 
 limitation of, 400—405. 
 Ademption of specific legacy, 344. 
 Adjudication of bankruptcy, 140. 
 Administration, stamp on letters of, 359. 
 exemptions from, 360. 
 limited, 358. 
 
 husband's right to, of his wife's effects, 376. 
 Administrator durante minore estate, 329, 358. 
 who appointed, 355. 
 joint, 356.
 
 432 INDEX. 
 
 Administrator, rights and powers of, 357. 
 his year, ib. 
 durante absentia, 358. 
 pendente lite, ib. 
 cum testamento annexo, 359. 
 office of, not transmissible, 360. 
 de bonis non, ib. 
 
 not bound to plead the Statute of Limitations, 405. 
 Admiralty, high court of, 61, 96. 
 Admission of debt, 137. 
 Advancement to children, to be accounted for in distribution, 361. 
 
 form of power of, in a settlement, 425. 
 Affidavit of debt, filing an, 137. 
 After- acquired property of bankrupt, 158. 
 Agents, 398. 
 
 Agreements which are required to be in writing, 40, 42, 77. — See 
 Contracts. 
 stamp on, 78, n. 
 by letter, 81. 
 
 bonds for performance of, 109. 
 Alien, 46. 
 
 may be bankrupt, 133. 
 Alienation of choses in possession, 34, 37. 
 void, 46. 
 
 involuntary, 50,118. 
 
 of choses in action, 117, 118, 199, 372, 380. 
 growth of right of testamentary, 321. — See Assignment. 
 Alimony, 390. 
 
 Allowance of bankrupt, 149. 
 Alteration of a deed, 88. 
 Animals /er« natures, 19. 
 Annuities, bank. — See Stock in the Funds. 
 Annuity, apportionment of, 263. 
 
 apportionable if given for maintenance, 265. 
 legacy duty on, 344. 
 warrant of attorney to secure, 100. 
 personal, 198. 
 Anticipation, restraint on, 385. 
 Appointment of portions, 271. 
 illusory, ib. 
 exclusive, ib. 
 voluntary, 269. 
 none to executors or administrators of deceased objects* 
 
 272. 
 amongst a class, 273. 
 to issue of a child, when good, 274. 
 fraudulent by a father, 275.
 
 INDEX. 433 
 
 Appointment creating a perpetuity, 275. 
 of new trustees, 289, 291. 
 by wife in favour of her liusband, 387. 
 powers of, 271, 273, 274, 337. 
 given to wife, 386. 
 form of power of, amongst children, 423. 
 form of power of, by wife, 424. 
 Apportionment of income, 263. 
 Arbitration, 183. 
 
 in bankruptcy, 144. 
 
 jurisdiction of the Courts in matters referred to, 183. 
 act for determining differences by, 185. 
 every submission may be made a rule of court, 186. 
 revocation of submission to, ib. 
 death of parties, 188. 
 Arbitrator may state special case, 192. 
 
 on failure of parties, judge may appoint, 187, 194. 
 death of, 188. 
 appointment of, ib, 
 two may appoint umpire, 194. 
 Arrangements by deed between a debtor and his creditors, 121, 123, 
 124, 144, 145. 
 regulations as to, 164. 
 
 under control of court of bankruptcy, 125, 126, 128, 
 Arrears of rent, 105. 
 
 of rent, limitation of actions for, 403. 
 action by husband for, of rent of wife's estate, 376. 
 of interest on bond, 108. 
 of interest, limitation of actions for, 403. 
 of dower, 402. 
 Arrest on mesne process, 104. 
 Articles of association, 223. 
 
 quce ipso usu consumuntur, 262. 
 Assent of executor, 328. 
 
 Assets, executor not liable beyond amount of, 342. 
 Assignees of bankrupt, 53, 141. 
 title of, 150. 
 official, 141. 
 of insolvent, 167. 
 Assignment ofchoses in possession, 34, 35, 36. 
 
 of choses in action, 117, 118, 198, 380. 
 notice of, 118, 407. 
 of breaches, 109. 
 
 of policies of life insurance, 178, 409, 
 of marine policies, 181. 
 of letters-patent, 244, 
 of copyright, 249. 
 
 W.P.P. ^ ^
 
 434 INDEX. 
 
 Assignment in trust for creditors, 123, 124, 135. 
 
 of wife's reversionary choses in action, 380. 
 inquiry as to prior, of chose in action, 408. 
 a person may assign to liimsclf, 410. 
 of choses in action, form of an, 419. 
 Association, memorandum of, 222, 223. 
 
 articles of, 223. 
 Assumpsit, 72. 
 Attorney, warrant of, 98. 
 
 execution and attestation of warrant of, 100. 
 warrant of, formerly executed hy insolvent debtor, 170. 
 power of, on assigning a legal cliose in action, 117. 
 power of, construed strictly, 398. 
 form of a power of, 420. 
 
 not liable as a trader to the bankrupt laws, 133. 
 Auction, sale by, 43. 
 Award, 189. 
 
 time of making, ib. 
 
 enlargement of time of making, ib. 
 
 attendance of parties, 190. 
 
 mode of proceeding, 191. 
 
 must be certain and final, ib. 
 
 setting aside, 193. 
 
 effect of, 196. 
 
 performance of, ib. 
 
 for payment of money creates a debt, ib. 
 
 under seal not a deed, 197. 
 
 stamp on, ib. 
 
 limitation of actions on, 404. 
 
 B. 
 
 Bailee, possession of, 27, 37, 41. 
 
 Bailment, 26. 
 
 Bank annuities. See Stock in the Funds. 
 
 notes, title to, 395. 
 Banker's protection as to presented draft, 85. 
 Banking companies, 214. 
 
 act for incorporation of, 217. 
 sale of shares, 230. 
 Bankruptcy of joint stock companies, 217. 
 of a trading partnership, 313. 
 of joint creditors, 308. 
 
 registration of deed of composition, 123, 124. 
 fiat, 139. 
 goods in bankrupt's possession, order or disposition, 54.
 
 INDEX. 435 
 
 Bankruptcy, choses in action in bankrupt's possession, order and dis- 
 position, 152, 408. 
 
 former revival of debt barred by, 76. 
 
 court of, 96, 139, 140. 
 
 assignees, 141. 
 
 does not determine a submission to arbitration, 188. 
 
 voluntary settlement void in event of, 153, 154, 297. 
 preference, 168. 
 
 Act, 1869.. 54, 132. 
 
 who may be bankrupt, 132. 
 
 act of bankruptcy, 50, 113, 123, 124, 134, 135, 136, 137, 
 138, 151. 
 
 petition for adjudication, 139. 
 
 adjudication, 140, 150. 
 
 advertisement of order of, 140. 
 
 trustee, 141, 159. 
 
 appointment of, 142. 
 
 how trustee sues for debt, 120, 306. 
 
 committee of inspection, 142, 144. 
 
 exercise of powers by trustee, 142, 270. 
 
 management of property by bankrupt, 144. 
 
 powers of trustee with sanction of committee, ib, 
 
 to accept composition or general scheme 
 of arrangement, 145. 
 
 trustee, if a solicitor, may be paid for services, ih. 
 
 proceeds of sale and seizure of goods, ib. 
 
 proof of debts, 146, 148, 149, 162. 
 
 what are considered debts, 146. 
 
 estimate of contingent liabilities, 147. 
 
 definition of" liability," ib. 
 
 power of landlord to distrain for one year's rent, 148. 
 
 proof in case of rent, ib. 
 
 interest on debts, ib. 
 
 proof in respect of distinct contracts, 149. 
 
 allowance to bankrupt, ib. 
 
 set-off, ib. 
 
 secured creditor, provision as to, 138, 150. 
 
 title of trustee relates back to time of act of bankruptcy, 
 53, 151, 159, 163. 
 
 protection of certain transactions with bankrupt, 151, 152. 
 
 voluntary settlements, avoidance of, 153. 
 
 covenant for future settlement, avoidance of, 154. 
 
 fraudulent preferences, avoidance of, ib. 
 
 debts paid rateably in, ib. 
 
 bankrupt entitled to surplus, 155. 
 
 certificate, 156. 
 
 F F 2
 
 430 INDEX. 
 
 Bankruptcy, orJer of discharge, 135, 156, 169, 308. 
 
 effect of, 157, 170. 
 exception of joint debtors, 158. 
 uncertificated bankrupt, rights and status of, 158, 159. 
 evidence of proceedings in. 111, 160. 
 
 gazette, 141. 
 privilege of parliament not to prevent adjudication, 160. 
 vacating seat in House of Commons, ib. 
 liquidation by arrangement, regulations as to, 161. 
 bankruptcy of non-traders, 166. 
 1 & 2 Vict. c. 110.. 2&. 
 5 & 6 Vict. c. 116. .170. 
 
 24 & 25 Vict. 0. 134 ; 32 & 33 Vict. c. 71 • • 1 72, 173. 
 pauper and lunatic prisoners, 172. 
 half-pay, &c., ib, 
 pay of officers, 173. 
 
 sequestration of ecclesiastical benefice, 168, 172, 173. 
 salary, 174, 
 Barnard's Act, now repealed, 203, 230. 
 Bastard, gift by will to, 349, 350. 
 Benefice, charge by clergymen on, void, 92. 
 
 right of nomination to, does not pass to trustee in bank- 
 ruptcy, 270. 
 sequestration of, in bankruptcy, 168, 172, 173. 
 Bequest of stock in the funds, 207. 
 executory, 260. 
 
 general, operates as an exercise of a general power, 270. 
 to charities, 347. 
 
 to illegitimate children, 349, 350. 
 to joint tenants, 351. 
 to tenants in common, ib. 
 to a class, ib. 
 Bills of exchange, 84, 110, 118, 130, 
 
 what, prohibited, 84. 
 
 indorsement of, 85, 86. 
 
 liability of drawer and acceptor, ib. 
 
 of indorser, 86. 
 
 banker's protection, 85. 
 
 protest of, 86. 
 
 consideration presumed, 87. 
 
 have no preference over other simple contract debts, 
 
 110. 
 always carry interest, 113. 
 assignment of, 118. 
 title to, 395, 
 of lading, 37, 62.
 
 INDEX. 
 
 Bills of sale, registration of, 49. 
 
 renewal of registration of, 50. 
 Bona notabilia, 333, 337. 
 Bond, 107. 
 
 to induce cohabitation, void, 89. 
 for past cohabitation, good, ib. 
 single, 107. 
 with condition, ib. 
 stamp on, 108, n. 
 joint, 302, 304, 308. 
 joint and several, 304. 
 for performance of agreements, 109. 
 interest of money secured by, 107. 
 limitation of actions on, 402. 
 voluntary, 110. 
 Bonus, 263. 
 Bottomry, 181. 
 Breaches, assignment of, 109. 
 British possessions abroad, copyright in, 250. 
 
 ships, 55, 56. 
 Brothers, right of, under Statute of Distributions, 361. 
 Building societies, 232. 
 
 mortgages to, 233. 
 
 Capias ad satisfaciendum, writ of, 102, 136. 
 Casts, copyright in, 252. 
 Certificate of ship's registry, 57. 
 bankrupt's, 156. 
 
 of mortgage and sale of ships, 60. 
 of shares or stock, 224. 
 Chancery, Court of, investments of, 200, 201. 
 
 order of, restraining transfer, 406. 
 Character, representations as to, 83. 
 Charities, bequest to, 347. 
 Charter party, 61. 
 
 companies incorporated by, 209. 
 Chattels which descend to the heir, 9. 
 personal, 2. 
 
 of wife belong to her husband, 373. 
 real, 1. 
 vegetable, 16. 
 
 sale of, in market overt, 396. 
 Children, appointments to, 271, 272, 273. 
 younger, 273. 
 in ventre, 274, 276. 
 
 437
 
 438 INDEX. 
 
 Children, vesting of portions of, 277. 
 
 maintenance of, 278, 279, 391. 
 
 form of power of maintenance of, in a settlement, 424. 
 covenant to settle property on, 295, 296. 
 gifts to illegitimate, 319. 
 gifts to, 343, 351. 
 
 shares of, under Statutes of Distribution, 3(il. 
 custody of infant, 388, 391. 
 order to settle property on, 391. 
 form of powers of appointment amongst, 423. 
 form of trusts for, ib. 
 Chose in action, 4, 5, 6, 7, 63, 306, 375, 377. 
 assignment of legal, 117. 
 assignment of equitable, ib. 
 right of husband to wife's legal, 375. 
 right of husband to wife's equitable, 377. 
 Statutes of Limitations as to, 400. 
 notice of assignment of, 407. 
 in possession, 4, 5, 9. 
 
 alienation of, 34, 37, 49. 
 title to, 396. 
 
 Statutes of Limitation as to, 400. 
 Civil law, subjection of the law of property to, 1. 
 
 age at which a will may be made by the, 322. 
 degrees of kindred traced according to the, 362. 
 rules of the, as to restraint of marriage, 369. 
 Civil service, probate of will in, 338. 
 Class, appointment amongst a, 273. 
 
 bequest to a, 351. 
 Clauses Consolidation Acts, 210, 211. 
 Clergyman, insolvent, 168. 
 
 bankrupt, 172, 173. 
 action for dilapidations, 68, 69. 
 waste by, 68. 
 Coat armour, 13. 
 Co-debtor, payment by, 311. 
 Cognovit, 98. 
 
 execution and attestation of, 100, 
 to be filed within twenty-one diiys, 101. 
 Cohabitation, bond to induce, void, 89. 
 
 bond for past, good, ib. 
 Colonial shipping, 55, n. 
 Colonies, patent for, 243. 
 
 copyright in, 250. 
 Commission of bankruptcy, 139. 
 
 Committee of inspection in bankruptcy, 112, 144, 165. 
 of lunatic entitled to stock, 204.
 
 INDEX. 
 
 439 
 
 Committeeman, liability of provisional, 320. 
 
 Common Law Procedure Acts, 1854 and I860.. U!).— And see Statutes. 
 
 Companies Clauses Acts, 210, 211. 
 
 joint stock, 209.— See Joint Stock Companies. 
 Comparison of title to real and personal estate, 411. 
 Composition with creditors, 121, 124, 126, 144, 145, 
 
 regulations as to, 128. 
 Consent to change of investments, 285. 
 
 forfeiture on marriage without, 370. 
 Consideration necessary to a contract, 73. 
 executed, ib. 
 illegal, ib. 
 valuable, 74, 75. 
 
 legacy for, 345. 
 good, 74. 
 
 need not always be in writing to form a written con- 
 tract, 79. 
 why presumed to a note, 87. 
 Consols, 200.— See Stock in the Funds. 
 Contingent liabilities, proof of, in bankruptcy, 147. 
 
 remainders, none in personal estate, 267. 
 Contracts, 70. 
 
 by deed, 87. 
 
 when writing required to, 38, 40, 42, 76, 77, 78, 79, 80. 
 definition of, 72. 
 parol, ib. 
 special, ib. 
 
 valuable consideration necessary to, 75. 
 with unlawful object, 89. 
 
 where some objects lawful and others unlawful, 90, and 90, n. 
 with lawful object, 94. 
 by way of gaming, void, 93. 
 for restraint of trade, 91. 
 usurious, 93. 
 for sale of goods, 38. 
 Contributories, 228. 
 Conversion, 23, 46,49. 
 
 of money into land or land into money, 286. 
 Conveyance.— See Alienation. 
 Conveyancer, certificated, has no general lien, 31. 
 Convicts, 47. 
 
 Copyhold estates, limitation of actions for fines for, 404. 
 Copyright, 245. 
 
 in encyclopaedias, reviews, &c., 247. 
 
 in dramatic and musical compositions, 248. 
 
 foreigner entitled to, ib. 
 
 registry of proprietors, ib.
 
 440 INDEX. 
 
 Copyright, assignment of, 219. 
 
 personal property, ib. 
 foreign reprints of books, ib. 
 in prints, maps, &c., 251. 
 in sculptures, 252. 
 
 paintings, drawings and photographs, ib. 
 international, 253. 
 newspapers, 255. 
 in designs, ib. 
 Corporations, 209. 
 Costs of writ of mandamus, 64. 
 
 of trustees, 292. 
 Co-sureties, 115. 
 County Courts, 6, n., 79. 
 
 registry of judgments in, 105. 
 bankruptcy jurisdiction, 140. 
 winding-up in, 228. 
 trustee jurisdiction, 295. 
 probate jurisdiction of, 335. 
 Court for Divorce and Matrimonial Causes, 3S9. 
 
 dissolution of marriage, 3S9, 391. 
 protection of wife deserted by husband, 389. 
 alimony, 390. 
 judicial separation, ib. 
 wife a feme sole, ib. 
 
 custody, maintenance, &c. of children, 388,391. 
 settlement on judicial separation, 391. 
 Courts of Eecord, 96. 
 Covenant, 106. 
 
 to insure against fire, 179, 180. 
 stamps on, 108, n. 
 voluntary covenants, 110. 
 for settlement of wife's future property, 295. 
 to settle husband's property, 29G. 
 joint, 304, 308. 
 joint and several, 304, 310. 
 not to sue one joint and several debtor, 311. 
 for title, 399, 410. 
 Creditors, gifts for defrauding, 48, 297. 
 remedies of judgment, 102. 
 composition with, 121, 123, 12i, 126, 144, 145. 
 assignment in trust for, 120, 123. 
 petitioning on bankruptcy, 139. 
 proof by secured, in bankruptcy, 150. 
 assignees of, in bankruptcy, 141. 
 interest of, in life of debtor, 176. 
 voluntary settlement void as against, 153, 154, 297.
 
 INDEX. 441 
 
 Creditors, trust for payment of, when revocable, 299. 
 
 may by custom take out administration, 35G. 
 Statutes of Liiiiitation not affected by death of, 404. 
 Crops, 17. 
 Crown debts, 97, 110. 
 
 in bankruptcy, 155, 157. 
 jewels, 13. 
 
 right of, to intestate's estates if no next of kin, 3(j4. 
 Customs of London and York, 321, 333, 3G4. 
 of Wales, 321,364. 
 of trades, 399. 
 
 D. 
 Damages, actions which sound in, 70. 
 liquidated, 71. 
 
 limitation of actions for, 404. 
 Death, actions by executors in case of, 65, 66. 
 
 of creditor, effect of, 404. 
 
 of debtor, effect of, ib, 
 De bonis non, administration, 360. 
 Debt, action of, 5. 
 
 by husband for arrears of wife's rents, 376. 
 Debts, how assignable, 117. 
 
 barred by bankruptcy, 76. 
 
 barred by Statute of Limitations, revival of, ib. 
 
 incurred during infancy, 77, 83. 
 
 involuntary alienation of, 118. 
 
 of record, 96, 105. 
 
 crown, 97, 110, 155, 157. 
 
 judgment, 97, 101, 102, 110, 155, 159. 
 
 abolition of imprisonment for debt, 103. 
 
 the Debtors' Act, 1869, provisions of, ib. 
 
 execution for sums over 501., 51. 
 
 charge on stock of judgment, 206, 233. 
 
 specialty, 97, 105, 110. 
 
 abolition of priority of specialty debts, 97, 106, 109, 113. 
 
 simple contracts, 97, 110, 114. 
 
 interest on, 113. 
 
 interest on, in bankruptcy, 148. 
 
 when taken in execution, 118. 
 
 payment of, 120, 339. 
 
 appropriation of payments, 120. 
 
 filing an affidavit of debt, 137. 
 
 admission of, ib. 
 
 proof of, in bankruptcy, 146, 148, 149, 162. 
 
 set-off of mutual, in bankruptcy, 149. 
 
 all debts in bankruptcy paid rateably, 154.
 
 442 INDEX. 
 
 Debts, joint and several, of bankrupt trading partnership, 313. 
 voluntary, when exempt from probate duty, 339. 
 payment of, by executor, ib. 
 power of executor to compound, 340. 
 satisfaction of, by legacies, 346. 
 payment of, by administrator, 357. 
 husband's liability to wife's, 382. 
 covenant to indemnify husband against wife's, 387. 
 limitation of actions for, 400—405. 
 charge of real estate for payment of, 405. 
 notice to debtor on assignment of, 118, 407. 
 Debtor, notice to, on assigning the debt, 118, 407. 
 release of, 126. 
 
 unreasonable stipulations, 127. 
 reasonable stipulations, ib. 
 bankruptcy of.— See Bankruptcy. 
 insolvent. — See Insolvent Debto.is. 
 appointment of executor, 330. 
 effect of death of, 404. 
 joint, in bankruptcy, 158. 
 joint, beyond seas, 309. 
 and creditor, defects in the law of, 110. 
 Debtors Act, 1869, provisions and exceptions, 103. 
 Decease of person giving power of attorney, 398. 
 Declaration of insolvency, 135. 
 Decree of a court of equity, 102. 
 Deed, title deeds pass by conveyance of the lands, 9. 
 
 tenant for life entitled to a possession of the deeds, 11. 
 alienation by, 37. 
 contracts by, 87. 
 alteration or rasure of a, 88. 
 immaterial alterations, 88, n. 
 solicitor's lien on, 30. 
 boxes, 13. 
 
 of arrangement, 124. 
 stamp duty on, 124, 126. 
 Deer, 19, 20. 
 
 Defeazance to warrant of attorney, 99. 
 Degrees of kindred, how traced, 362. 
 Delivery, alienation of personal chattels by, 35. 
 constructive, 37, 42. 
 order, 37, 395. 
 Demonstrative legacy, 344. 
 Denizen may be bankrupt, 133. 
 Descent, remarks on law of, 365. 
 
 to distant heirs and kindred, 367. 
 Designs of articles of manufacture, copyright in, 255.
 
 INDEX. 44t 
 
 Detinue, action of, 3. 
 
 limitation of action of, 400. 
 Dilapidations, 67, 68, 69, 113. 
 Directors of joint stock companies, powers of, 311). 
 
 notice to, ib. 
 Disabilities, savings of, 400, 402, 403. 
 Disclaimer of title or specification of invention, 241. 
 Dishonour of bill or note, notice of, 86. 
 Dissolution of marriage, 389, 391. 
 Distant heirs and kindred, remarks on descent to, 367. 
 Distress for rent, 33. 
 
 by husband for arrears of wife's rent, 377. 
 Distribution, Statutes of, 353, 360. 
 
 remarks on the law, 365. 
 Distringas, 409. 
 
 on stock, 205. 
 Dividends, apportionment of, 263. 
 
 vinclaimed, of stock in the funds, 406. 
 Divorce, Court for, 389. 
 Dock warrants, 37. 
 Domicile, 325, 326. 
 Donation mortis causa, 327. 
 Dormant partner, liability of, 312, 314. 
 Dower, legacy in lieu of, 345. 
 
 limitation of actions for arrears of, 402. 
 Dramatic pieces, copyright in, 248. 
 Drawee of a bill, 84. 
 Drawer of a bill, ib. 
 
 liability of, 86. 
 Drawings, copyright in, 252. 
 Durante absentia, administrator, 358. 
 
 minnre cetate, administrator, 329, 358. 
 Dwellings Act, Labourers', 1855.. 233. 
 
 E. 
 
 East India Stock, what is, 284. 
 
 government notes, 336. 
 Ecclesiastical benefice, sequestration of, 168, 172, 173. 
 Education of children, provisions for, 278, 279, 391. 
 
 form of power of, in a settlement, 424. 
 Ejectment, by one executor, 330, n. 
 Election that lands should not be sold, 287. 
 Elegit, writ of, 51. 
 Emblements, 17. 
 EncycloPjEDIas, copyright in, 247. 
 Engravings, copyright in, 251.
 
 444 INDEX. 
 
 Equitable chose in action, 6, 377. 
 Equity, decree of Court of, 102. 
 life interest in, 261. 
 
 considers as done what is agreed to he done, 287. 
 of wife to a settlement, 377. 
 Erasure, 88. 
 
 Escape, limitation of action for, 404;. 
 Estates, none in personal property, 7, 259. 
 Evidence of proceedings in bankruptcy, 141, 160. 
 
 required on probate, 334. 
 Exchequer bills, 282, 284. 
 Exclusive appointment, 271. 
 Execution on a judgment, 50. 
 
 in case of bankruptcy, 171. 
 sale of goods, how affected by, 39G. 
 Executor, actions by, for injury to estate of deceased, 65. 
 actions against, for wrong done by deceased, G7. 
 liability of, carrying on trade, 315. 
 appointment of, 328. 
 assent of, ib. 
 of executor, 329. 
 appointment of debtor, 330. 
 survivorship of office of, ib. 
 
 renunciation by one in the lifetime of another, ib. 
 de son tort, 331. 
 acts of, before probate, 332. 
 power of, 339, 340. 
 purchase from, 339. 
 accounts, 340. 
 his year, ib. 
 liability of, 341. 
 
 his former right to the residue, 352. 
 now trustee for the next of kin, ib. 
 Executors, any one may perform acts of administration, 330. 
 all must join in bringing actions, ib. 
 as to ejectment, 330, n. 
 administrators and assigns, use of the words as words of 
 
 limitation, 266. 
 of objects of a power cannot take under an appointment, 
 
 272. 
 protection to, 341. 
 
 not bound to plead the Statute of Limitations, 405. 
 Executory bequests, 2G0. 
 
 interests in personal estate, 268. 
 Executrix, married woman, 329.
 
 INDEX. 445 
 
 F. 
 
 Factors, 398. 
 Farm buildings, 15. 
 
 Father, appointments by, must not be for his own benefit, 274. 
 bound to maintain his children, 280. 
 right of, under Statute of Distributions, 361. 
 Felony, forfeiture on conviction of, 4-7. 
 Feme covert, 369.— See Married Woman, and Wife. 
 FeRjE naturce, animals, 19. 
 Fiat in bankruptcy, 139.— See BANK.RUPTC5f. 
 Fieri facias, writ of, 51. 
 
 securities which can be taken under, 119. 
 limitation of action for money levied under, 404. 
 Fines for copyhold estates, limitations of actions for, ib. 
 Fire insurance, 179, 180. 
 Fish, 19. 
 Fixtures, 13, 50. 
 
 trade, 14. 
 agricultural, 15. 
 when demised, 16. 
 Foreign judgment, 102. 
 inventions, 239. 
 Forfeiture of goods, 47. 
 
 on marriage without consent, 370. 
 for non-insurance, relief against, ISO. 
 France, convention with, as to copyright, 254. 
 Fraud on a power, 275. 
 
 Frauds, Statute of.— See Statute 29 Car. TI. c. 3. 
 Fraudulent conveyance, an act of bankruptcy, 135. 
 debtors, punishment of, 104. 
 preference, 154. 
 Freehold land societies, 232. 
 Freight, 30, 62. 
 Friendly societies, 230. 
 Fruit, 18. 
 
 Funds, the.— See Stock in the Funds. 
 Future property, covenants to settle, 154, 295, 296. 
 
 G. 
 
 Game, 19, 20, 21. 
 
 Gaming, 93. 
 
 Garnishee, 119. 
 
 Gazette evidence of bankruptcy, 141. 
 
 General lien, 30. 
 
 ship, 62. 
 
 legacy, 345.
 
 44G INDEX. 
 
 Gift and delivery, 35. 
 
 for defrauding creditors, 48. 
 of personal estate, 259, 261, 2G2, 2G5. 
 to children, 343, 351, 
 to illegitimate children, 319, 350. 
 lapse of, 350. 
 
 for "sole use" of wife, 384. 
 Goods, property in, 23, 51. 
 
 constructive delivery of, 37. 
 sale of, 38-45, 82, 396. 
 what is an acceptance of, 41. 
 forfeiture of, 47. 
 mortgage of, 48. 
 gift of, for life, in law, 259. 
 
 in equity, 261,262. 
 stolen, 396. 
 
 limitation of actions for, 400. 
 Goodwill, 257, 258. 
 Government securities, what are, 281. 
 Grant of goods, 34. 
 Guardians, effect of concurrence of, in settlements, 371. 
 
 H. 
 
 Half blood, claim in distribution equally with the whole, 362, 364. 
 
 Hawks, 20. 
 
 Heir looms, 12, 13. 
 
 Heir, specialty debts in which he is bound, 105. 
 
 Heirs, word inapplicable to personal estate, 265. 
 
 remarks on descent to distant, 367. 
 Hire of goods, 27. 
 Holder of a bill or note, 85. 
 Horses, sale of stolen, 397. 
 Hotchpot, clause of, in settlements, 272. 
 
 advancements to be brought into, on intestacy, 361. 
 form of clause of, in a settlement, 423. 
 Hounds, 20, 
 
 Husband, covenant to settle his property, 296. 
 no duty on legacy to, 342, 
 ancient rights of, 372, 
 right to wife's chattels personal, 373, 
 gifts by, to wife of jewels and trinkets, t. 
 his right to wife's legal choses in action, 75. 
 
 equitable choses in action, 377. 
 effect of his assignment, 379. 
 
 his assignment of his wife's reversionary choses in action, 
 380.
 
 INDEX. 447 
 
 Husband, release of, 381. 
 
 his liability to his wife's debts, 382. 
 
 fraud on his marital rights, 383. 
 
 authority of, to wife, to dispose of personal estate by will, ib. 
 
 separation of husband and wife, 387. 
 
 covenant to indemnify, against wife's debts, ib. 
 
 his right to the custody of infant children, 388. 
 
 and wife, remarks on law of, 392. 
 
 I. 
 
 Idiot, 47. 
 
 transfer of stock of, 204, 
 Illegality of contracts, 73, 88, 89. 
 Illegitimate children, gift to, 349, 350. 
 Illusory appointments, 271. 
 Immoral publication, 90. 
 
 Importation of foreign reprints of English books, 249. 
 Imprisonment of debtor in execution, 102. 
 
 abolition of imprisonment for debt, 103, 173. 
 the Debtors Act, 1869, provisions of, 103. 
 discharge of insolvent from, 16(), 167. 
 saving of disability of, 400. 
 Income, apportionment of, 263. 
 Incorporation of joint stock companies, 216, 223. 
 Incorporeal personal property, 198. 
 
 anciently none, 4. 
 Indemnity of trustees, 294. 
 Indian government notes, 336. 
 
 what is East India stock, 284. 
 Indorsement of sale of ship on certificate of registry, 57. 
 of bills and notes, 84, 85, 86. 
 special, 85. 
 in blank, ib. 
 Industrial and provident societies, 231'. 
 Infancy, confirmation of debt incurred in, 77, 83. 
 
 saving of disability of, 400, 402. 
 Infant, 47. 
 
 cannot be a bankrupt, 133. 
 stock of, 204. 
 executor, 329. 
 legacy to, 343. 
 marriage settlements of, 371. 
 custody of, 388, 391. 
 Inferior courts of record, 96. 
 
 judgments of, 104, 
 Injunction, writ of, 63.
 
 448 INDEX. 
 
 Injury, actions by executors in respect of, 65. 
 
 actions against executors in respect of, 66, 67. 
 Insolvency, 166 — 174. 
 
 declaration of, 135. 
 in the colonies, 136. 
 Insolvent debtors, court for relief of, now abolished, 172. 
 schedule of, 169. 
 discharge of, 166, 169, 170, 172. 
 warrant of attorney formerly executed by, 170, 171. 
 Inspectorship, deed of, 121. 
 
 committee of inspection, 142, 144, 165. 
 Insurance, 175. 
 
 of life, 175, 176. 
 interest of creditor, 176. 
 of trustee, 177. 
 assignees of life policies may sue in their own names, 178. 
 fire, 179, 180. 
 
 relief against forfeiture by breach of covenant, 180. 
 lessor to have benefit of informal, ih. 
 protection of purchasers against breach of covenant, ib. 
 of .ships, 181. 
 
 assignee may sue in his own name, ih, 
 companies, 225. 
 Interest, legal rate of, 94. 
 
 on bills and notes, 94, 113. 
 on judgment debt, 101. 
 on bond, 107. 
 on debts, 113. 
 
 appropriation of payments towards, 120. 
 on debts proved in bankruptcy, 148. 
 always apportioned, 265. 
 limitation of actions for arrears of, 403. 
 International copyright, 253. 
 Intestacy, 354 — 368. 
 Inventor of patent, 239. 
 Investment of settled funds, 281, 282, 284, 285, 286. 
 
 form of trust to continue or vary with consent, 421. 
 consent to change, 285. 
 Ireland, real securities in, 282. 
 Irish patent, 243. 
 Issue, appointment to, 274. 
 
 Joint bequest, no lapse by decease of one legatee, 351. 
 bond, all must sue, 302. 
 
 release by one obligee bars all, ib. 
 form of, 308.
 
 INDEX. ^^^ 
 
 Joint and several bond, SOi. 
 
 form of, 310. 
 covenant, SOi. 
 
 form of, 310. 
 and several covenant, 301-. 
 and several debts in bankruptcy, 313. 
 creditor, bankruptcy of, 306. 
 debtors, 308, 309, 311. 
 
 in bankruptcy, 158. 
 liability, 308. 
 and several liability, 310, 311. 
 
 of partners, 312. 
 
 owners, 302. 
 
 trustees made, 303. 
 
 shares of, under a will, need not vest at the same t.me, th. 
 limitation to them, their executors, administrators and 
 assigns, ib. 
 
 Joint stock companies, 209. 
 
 incorporated by charter or act, ib. 
 
 companies clauses acts, 210, 211. 
 
 inconvenience of unincorporated, 213. 
 
 registration act, 214. 
 
 banking, 214, 217. 
 
 sale of shares in, 230. 
 
 letters patent, 213. 
 
 registry office, 215. 
 
 renstered office of, 224. 
 
 liability of shareholders in, 213, 216, 228, 229, 
 
 320. 
 transfer of shares, 216. 
 bankruptcy of, 217. 
 with limited liability, 218, 219. 
 shares in, not goods, wares or merchandize, 230. 
 settlement of shares, 263. 
 powers of directors of, 319. 
 liability of provisional committeemen of pro- 
 jected, 320. 
 provisional registration, 215. 
 complete registration, 215, 223. 
 incorporation, 216, 223. 
 acts, objects of, 217. 
 winding up acts, 218, 22S. 
 acts 1862 and 1867- -219. 
 liability may be limited, 220. 
 company may have directors with unlimited 
 
 liability, ib. 
 power to reduce capital, 222. 
 
 G G 
 W.P.P.
 
 450 INDEX. 
 
 Joint stock companies, subdivision of sliares, 222. 
 
 memorandum of association, 220, 221, 222. 
 
 articles of association, 223, 
 
 shares personal estate, 224. 
 
 register of members, ib, 
 
 name of limited company to be painted up, ib. 
 
 judgment debts, 233. 
 
 name may be changed, 222. 
 
 certificates of shares or stock, 224. 
 
 register evidence, ib. 
 
 register of mortgages, 225. 
 
 associations not for profit, registration of, ib. 
 
 special resolution, 225, 22t). 
 
 contracts, how made, 227. 
 
 transfer of shares, ib. 
 
 share vfarrants, ib. 
 
 liquidators, 228. 
 
 contributories, ib. 
 
 companies seals act, 1864. .229. 
 
 mortgage debenture act, 1865.. ii. 
 sale of shares not within statute of frauds, 230. 
 Judge's order, 98. 
 
 to be filed within twenty-one days, 101. 
 Judgment, eff"ect of, on goods, 50. 
 debtor summons, 136. 
 on warrant of attorney or cognovit, 98. 
 in case of bankruptcy, 136, 155. 
 debt, a debt of record, 97. 
 carries interest, 101. 
 
 entitled to preference in administration, 102. 
 but must be registered, ib. 
 foreign, ib. 
 
 creditors, remedies of, ih. 
 Scotch and Irish judgments, 104. 
 removal of judgments of inferior courts, ib. 
 registry of, in county courts, 105. 
 charge of, on stock, 206. 
 charge of, on shares, 233. 
 
 limitation of actions for money secured by, 401 . 
 ' Judicial separation of husband and wife, 390. 
 settlement on, 391. 
 
 K- 
 
 Kin, next of, their right to administration, 356. 
 
 how traced, 362. 
 Kindred, degrees of, how traced, ib. 
 
 remarks on descent to distant, 367.
 
 INDEX. 451 
 
 Labourers' Dwellings Act, 1855.. 233. 
 Lands, sale of, 38. 
 
 warranty on, 399. 
 
 investment of setlled funds in purchase of, 286. 
 Lapse, 350. 
 
 Leasehold property, succession duty on, 343. 
 Legacies, no action at law for pecuniary, 6. 
 
 payment of, 3W, 342. 
 
 duty on, 342. 
 
 no duty on, to husband, wife or royal family, 313. 
 
 to infants, ib. 
 
 duty on annuities, 344. 
 
 specific, ib. 
 
 ademption of, ib, 
 
 demonstrative, ib. 
 
 general, 345. 
 
 for valuable consideration, ib. 
 
 in lieu of dower, 346. 
 
 satisfaction of debts by, ib. 
 
 satisfaction of portions by, ib. 
 
 to charities, 347. 
 
 to illegitimate children, 349. 
 
 lapse of, 350. 
 
 to children, 351. 
 
 limitation of suits for, 401. 
 Legatee, rights of residuary, 350. 
 Lessor to have benefit of informal insurance, 180. 
 Letters Patent, 213, 235, 307.— See also Patent. 
 Levari facias, writ of, 52. 
 Liability, limitation of, by letters-patent, 214. 
 
 in joint stock company, 220. 
 
 joint, 308-311. 
 
 discharge by bankruptcy act, 308. 
 
 by statute of limitations^ 309. 
 
 joint and several, 310, 311. 
 
 of partners in trade, 312 — 318. 
 
 of executor carrying on trade, 315. 
 
 of executor for debts, 341, 342. 
 Licence, letter of, 121. 
 
 to use patent, 243. 
 Lien, 28. 
 
 how lost, 32, 44. 
 of solicitors, 30. 
 of vendor, 43. 
 
 on property from covenant to settle, 207. 
 G G 2
 
 452 INDEX. 
 
 Life insurance, 175. 
 
 policies, assignment of, 118, 409. 
 assignees may sue in their own names, 178. 
 defence or reply on equitable grounds may be pleaded, ih. 
 notice of assignment, ib. 
 acknowledgment of, 179. 
 
 principal places of business to be specified on policy, 178. 
 no estate for, in personal property at law, 259. 
 bequest of term for, 260. 
 interests in equity in personalty, 261, 265. 
 right of tenant for, as to bonus, 263. 
 apportionment of income of tenant for, ib. 
 Limitation to joint owners, 303. 
 Limitations, Statute of, 76, 82, 83, 309, 400. 
 
 as to choses in action, 400. 
 
 executors or administrators not bound to plead, 
 
 405. 
 operation of, barred by charge of real estate, 
 
 ib. 
 operation of, not barred by charge of personal 
 estate, 406. 
 Limited Liability Act, 218, 220. 
 Liquidated damages, 71. 
 Liquidation by arrangement, regulations as to, 161. 
 
 power of trustee under, 163. 
 Lithograph, copyright in, 253. 
 Loan societies, 231. 
 London, custom of, 321, 364. 
 Lords, House of, a superior court of record, 96. 
 Lost article, 24. 
 Lunatic, 47. 
 
 transfer of stock of, 204. 
 
 M. 
 
 Maintenance, crime of, 4. 
 
 of children, provisions for, 278, 279, 280, 2S1, 391. 
 form of power of, in a settlement, 424. 
 Maker of promissory note, 84. 
 
 Mala fides on receipt of money or negociable securities, 395. 
 prohibifa, 89. 
 in se, 89, 90. 
 Mandamus, writ of, 63. 
 Manufactured goods, property in, 39, 40. 
 
 contract to furnish, 400. 
 Manufactures, patent for new, 237. 
 
 copyright in designs for articles of manuf.icture, 255.
 
 INDEX. 
 
 453 
 
 Maps, copyright in, 251. 
 Marine insurance, 181. 
 
 policies, assignment of, 118, 181. 
 assignee may sue in his own name, 181. 
 Marines, wills of, and administration to, 321, 337, 360. 
 Marital rights, fraud on husband's, 383. 
 Market overt, sale of chattels in, 396. 
 
 sale of stolen goods in, ib. 
 Marks, trade, 256, 257. 
 Marriage, a valuable consideration, 74. 
 restraints on, 369. 
 consent to, 370. 
 brocage, ib. 
 
 agreement on, must be in writing, 78. 
 settlement on, 297, 371. 
 dissolution of, 389, 391. 
 form of a settlement on, 418. 
 Married woman, 47. 
 
 when she may be bankrupt, 133. 
 executrix, 329. 
 saving of disability of, 400. 
 See also Wife. 
 Matrimonial causes, court for, 389. 
 Memorandum in writing, what is, 42, 81. 
 Minor, will of, now invalid, 322. 
 
 See Children and Infant. 
 Models, copyright in, 252. 
 Money, title to, 395. 
 
 limitation of action for money secured by bond, 402. 
 Monopolies, statute of, 235. 
 Mortgage of goods, 48. 
 of ships, 59. 
 
 of ships, certificate of, 60. 
 of property of bankrupt, 144. 
 of leaseholds, deduction of amount of debt from probate 
 
 value, 338. 
 exempt from stamp duty, 61. 
 limitation of action for money secured by, 401. 
 Mortis causa, donation, 327. 
 Mortmain, statute of, 347. 
 
 Mother, right of, under Statute of Distributions, 361. 
 Musical compositions, copyright in, 248. 
 
 N. 
 Navy, wills and administration to seamen in the, 323, 324, 338, 360. 
 Necessaries, husband bound to supply his wife with, 382, 390. 
 Negociable securities, title to, 395. 
 
 See Bills of Exchange and PROMiseoRy Notes.
 
 454 INDEX. 
 
 Nephews, appointment to, 273. 
 Newspapers, copyright in, 255. 
 Next of kin, right of, to administration, 356. 
 
 their interest vests from the decease of the intestate, 357. 
 how traced, 362. 
 Note of a contract, what is, 42, 81. 
 Notes, promissory, 84, 110, 118. 
 
 Indian government notes, 336. 
 not preferred in administration, 110. 
 carry interest, 113. 
 title to, 395. 
 Notice of dishonour of bill or note, 86. 
 
 to debtor on assigning the debt, 118. 
 of assignment of life policies, 178, 179. 
 to one partner notice to all, 318. 
 to trustees on assigning stock, 407. 
 Nuncupative will, 322. 
 
 who may now make, 323, 324. 
 
 O. 
 
 Objects of a contract, lawful or unlawful, 90, 94. 
 Offer, acceptance of, 81. 
 Officer, bankrupt, 168, 173. 
 
 probate of will of, 337. 
 Official assignees, 141. 
 Order and disposition, goods in, of bankrupt, 54, 314. 
 
 choses in action in, of bankrupt, 408. 
 Ownership, personal property the subject of absolute, 7, 9, 259. 
 
 P. 
 
 Paintings, copyright in, 252. 
 
 Palatine courts, superior courts of record, 96. 
 
 Paraphernalia, 374. 
 
 Parliament, the supreme court, 96. 
 
 privilege of, does not prevent adjudication in bankruptcy, 
 
 160. 
 vacation of seat, by bankrupt, ib. 
 Parol contracts, 72. 
 Particular lien, 29. 
 Partners, liability of, 312 — 318. 
 
 bankruptcy of, 313, 317. 
 
 dormant, 312, 314. 
 
 ostensible, 314. 
 
 retiring, 315. 
 
 deceased, ib. 
 
 by participation in profits, S16.
 
 INDEX. ^^^ 
 
 Partners, liability for each other's acts, 318. 
 act to amend law as to, 316. 
 notice to one notice to all, 318. 
 Part owners of ships, 56. 
 Patent, 234, 235. 
 
 stamps on, 236. 
 term of, ib. 
 
 for new manufactures only, 237. 
 first inventor of, 239. 
 specification of, 238, 240. 
 disclaimer, 241. 
 register of, 242. 
 
 vesting of, in more than twelve persons, ib. 
 licence to use, 243. 
 Scotch and Irish, ib. 
 assignment of, 244. 
 register of proprietors of, 245. 
 tenants in common of, 307. 
 form of letters-patent, 413. 
 Pawn, 27, 28, 49. 
 Payee, 84. 
 Payment of debts, 120. 
 
 by executor, 339. 
 charge of real estate for, 405. . 
 of interest, 121. 
 Penalty, 71, 108. 
 
 Penalties, limitation of actions for, 404. 
 Pendente lite, administrator, 358. 
 Periodical works, copyright in, 247. 
 Perpetuities, 268. 
 
 in exercise of powers, 275. 
 Personal property, the subject of absolute ownership, 7, 259. 
 succession duty, 343. 
 annuity, 198. 
 Petitioning creditor in bankruptcy, 139. 
 Photographs, copyright in, 252. 
 Pious uses, 354. 
 Plans, copyright in, 251. 
 Pledge of goods, 27, 28, 49. 
 
 by factor or agent, 398. 
 Policy of insurance, 175. 
 
 assignment of, 409. 
 Portions, appointment of, 271. 
 
 vesting of, charged on land, 277. 
 satisfaction of, by legacies, 34G. 
 Possession, choses in, 4.-See Choses in Possession. 
 goods in, of bankrupt, 54.
 
 456 INDEX. 
 
 Possibility, 260. 
 
 how alienable, ib. 
 Post-office savings banks, 232. 
 Power of attorney, 117. 
 
 construed strictly, 398. 
 
 decease of person giving, ib, 
 
 payment by trustee, executor, or administrator, in 
 
 pursuance of, ib. 
 form of a, 420, 
 Powers, 23, 269. 
 
 over personal property, 270. 
 of appointment, 337. 
 
 of appointment amongst children, 271, 273, 271'. 
 trustee of bankrupt may exercise, 270. 
 frauds on, 275. 
 perpetuity in exercise of, ib. 
 to appoint new trustees, 289. 
 form of power to appoint new trustees, 429. 
 given to married women, 386. 
 form of, of appointment amongst children, 423. 
 form of, given to a wife, 424, 
 Primogeniture, remarks on, 366. 
 Prints, copyright in, 251. 
 
 Privilege of parliament does not prevent adjudication in bankruptcy 
 160. 
 vacation of seat by bankrupt, ib. ^ 
 
 Probate, Court of, 332, 333, 336, 356. 
 of wills, 332, 
 
 acts of executor before, ib. 
 in what court to be taken out, 333. 
 in principal registry, 334. 
 in district registry, ib. 
 evidence required on, ib. 
 in common form, 335. 
 per testes, ib. 
 county courts, ib. 
 stamp duties on, 336, 337. 
 when exempt from stamp duties, 337, 338. 
 civil service, and military allowances, 338. 
 of seamen's will, ib. 
 mortgage debt, deduction of amount of, from probate value, 
 
 ib. 
 duty attaches to estate of deceased legatee, 352, 
 Profits of partnership, participation in, 316—318. 
 Promise, implied, 72, 
 
 insufficient of itself to form a contract, 74, 76. 
 Promissory Notes, 84, 110, 118, 130.
 
 INDEX. 457 
 
 Promissory Notes, not preferred in adnriinistration, 110, 
 carry interest, 113. 
 title to, 395. 
 Proof of debts in bankruptcy, 146, 148, 149, 1G2. 
 Property, real and personal, 3, 7. 
 in British ships, 56. 
 in goods, 23, 33. 
 requisite to a grant, 34. 
 Protest, 86. 
 
 Provisional committee-man, liability of, 320. 
 P«BHC officer of banking company, 213, 214. 
 Publication, immoral, 90. 
 
 Purchase of land, investment of settled funds in, 286. 
 Purchaser from executor not bound to see to the application of liis 
 purchase-money, 339. 
 protection of, in bankruptcy, 150. 
 
 R. 
 
 Rasure of deeds, 88. 
 
 Rates and taxes due from bankrupt, 155. 
 
 Real estate, charge of, for payment of debts, 405. 
 
 Real securities, what are, 282. 
 
 in Ireland, 282, 283. 
 Receipt by surviving joint owner, when good, 306. 
 by one executor a good discharge, 330. 
 by executor on sale a good discharge, 339. 
 bv husband of wife's chose in action, 375, 376. 
 clause in settlements, 288. 
 
 form of a, 428. 
 Recognizance, 105. 
 
 limitation of actions on, 402. 
 Record, debts of, 96, 105. 
 courts of, 96. 
 
 of proceedings in bankruptcy, 160, 
 Reference to arbitration, 183, 184. 
 
 revocation of, 186. 
 Registration of bill of sale, 49, 50. 
 of ships, 56. 
 certificate of, 57. 
 of transfers of ships, 58. 
 of judgment debts, 102. 
 of judgments in county court';, 105. 
 of deeds of arrangement, 123, 124. 
 of joint-stock companies, 215, 223, 
 of banking companies, 219.
 
 458 INDEX. 
 
 Registration of patents, 242, 245. 
 of copyrights, 248. 
 of sculptures, 252. 
 in court of probate, 334. 
 Reimbursement of trustees, 294. 
 Release by one joint obligee bars all, 302. 
 
 of one joint debtor discharges all, 308. 
 of one joint and several debtor, 311, 
 by husband of wife's reversionary chose in action, 381. 
 of money charged on real estate, ib. 
 Rent, arrears of, 105, 113. 
 
 distraint for, in bankruptcy, 148, 155. 
 proof in case of rent, 148. 
 limitation of actions for, 403. 
 Renunciation of office of executor, 3.30. 
 Replevin, action of, 3. 
 
 limitation of action of, 400. 
 Reputed ownership, 54. 
 
 of chose in action, 408. 
 Residuary legatee, rights of, 350. 
 Residue, former right of executors to, 352. 
 
 right of next of kin to, 352. ^ 
 
 form of assignment of a share in, 419. 
 Respondentia, 182. 
 Restraint of trade, contract in, 91. 
 on accumulation, 268. 
 on anticipation, 385. 
 on marriage, 369. 
 Retainer by executor of his own debt, 332. 
 
 by administrator of his own debt, 357. 
 Reversionary chose in action of wife, assignment of, 379, 380. 
 Reviews, copyright in, 247. 
 Revocation of submission to arbitration, 186. 
 of the trusts of a settlement, 299. 
 of a will, 325. 
 Royal family, no duty on legacies to, 343. 
 Rule in Shelley's case, 267. 
 
 S. 
 
 Sale of goods, 38 — 45, 82. 
 
 of goods in market overt, ;j96. 
 
 of goods by factor or agent, 398. 
 
 of lands, direction for, converts them into money in equity, 28". 
 
 warranty on sale of lands, 399. 
 
 of ships, certificate of, 60.
 
 INDEX. "^^^ 
 
 Salvage, 29. 
 
 Satisfaction of debts by legacies, 346. 
 
 of portions by legacies, ib. 
 Savings banks, 231, 3G0. 
 Scire facias to revive a judgment, 99. 
 Scotch patent, 243. 
 Sculptures, copyrigbt in, 252. 
 Sea policies, assignment of, 118, 181. 
 Seamen, wills of, 323, 324. 
 
 probate of wills of, 338. 
 administration to effects of, 3fi0. 
 Securities of creditor, bow affected by composition, 122. 
 for money won at play, 93. 
 secured creditor in bankruptcy, 138, 150. 
 proof in bankruptcy by creditors holding, 150. 
 government, what are, 281. 
 real, what are, 282. 
 real, in Ireland, ib. 
 stolen, 397. 
 Separate use, trust for woman's separate, 384, 385. 
 
 gift for " sole use " does not create trust for, 381. 
 form of a trust for, 422. 
 Separation of husband and wife, 387, 390. 
 Sequestration of profits of bankrupt, 168, 172, 173. 
 Set-off in bankruptcy, 149. 
 Settlement of personal property, 259. 
 wife's equity for a, 377. 
 covenant for, of wife's future property, 295. 
 covenant for, of husband's property, 296. 
 voluntary, void as against creditors, 153, 154, 297. 
 voluntary, binding on settlor, 298. 
 for settlor's own benefit revocable, 299. 
 voluntary, of personal estate, not void against subsequent 
 
 purchasers, 300. 
 stamps on, ib. 
 on marriage, 297. 
 by infants, 371. 
 on judicial separation, 391. 
 antenuptial or postnuptial, inquiry into on dissolution of 
 
 marriage, 391. 
 form of a marriage settlement of residuary personal estate 
 and stock in the funds, 418. 
 Sh\res in joint stock companies, 6, 209, 224. 
 
 sale of, 230. 
 
 transferof, 216, 227, 409. 
 share warrants, 227. 
 title to, 410.
 
 460 IXDEX. 
 
 Shelley's case, rule in, 267. 
 Ships, 55. 
 
 colonial shipping, 55, n. 
 register, no trusts entered on, 56. 
 transfer of property in, 58. 
 
 equities may be enforced against owner and mortgagees, 57. 
 mortgage of, 59. 
 
 no stamp duty on transfer of, 61. 
 certificate of registry, 57. 
 certificate of mortgage of, 60. 
 general ship, 62. 
 insurance of, 181 . 
 
 assignee may sue in his own name, ib. 
 Shops in the city of London are market overt, 396. 
 Signature to contracts, 81. 
 Simple contract debts, 97, 110. 
 
 limitation of actions for, 403. 
 Sisters, right of, under Statute of Distributions, 361. 
 Soldiers, wills of, 323. 
 
 probate of wills of, 337, 338. ^ 
 
 administration to effects of, 360. 
 Sole use, gift for, 384. 
 Solicitor, lien of, 30. 
 
 not liable as such to bankrupt laws, 133. 
 cannot charge for professional trouble as trustee, 292. 
 may be paid for services as trustee in bankruptcy, 145. 
 Specialty debts, 97, 105, 110. 
 
 abolition of priority of specialty debts, 97, 106, 109, 113. 
 limitation of actions for, 402. 
 Specific legacy, 344. 
 Specification of patent, 238, 240. 
 Stamp duty, none on agreement for sale of goods, 42, n. 
 none on transfer of ships, 61. 
 on agreements, 78, n. 
 on bills and notes, 87, n. 
 on warrants of attorney, 99, n. 
 on bonds, 108, n. 
 on covenants, ib. 
 
 on deeds of arrangement, 124, 126. 
 on contract notes, 204. 
 on policies of life insurance, 177, n. 
 on fire insurance, repeal of, 181, n. 
 on sea insurance, ib. 
 on awards, 197. 
 
 on mortgage to building society, 233. 
 on letters-patent, 236. 
 on appointment of n€w trustees, 291.
 
 IXDEX. -i^^ 
 
 Stamp duty on settlements, 300. 
 on probates, 336. 
 on legacies, 301. 
 on letters of administration, 359. 
 on shares of intestate's estates, 36i. 
 Statute of Frauds.— See statute 29 Car. II. c. 3. 
 Statutes cited. 
 
 13 Edw. I. c. 18, (elegit,) 51. 
 
 c. 19, (intestates,) 355. 
 c. 45, {scire facias,) 99. 
 4 Edw. III. c. 7, (action by executors,) 05. 
 15 Edw. III. c. 5, (executors,) lb. 
 
 31 Edw. III. c. 11, (administrator,) 355. 
 21 Hen. VIII. c. 5, (next of kin,) 356. 
 
 27 Hen. VIII. c. 10, (Statute of Uses,) 11, 75, 262. 
 
 32 Hen. VIII. c. 37, (arrears of rent,) 376. 
 37 Hen. VIII. c. 9, (interest,) 5, 113. 
 
 2 .X 3 Phil. & Mary, c. 7, (stolen horses,) 397. 
 13 Eliz.c. 5, (gifts for defrauding creditors,) 48, 52, 75, 297. 
 c. 7, (bankrupts,) 135, 139. 
 c. 20, (charges on benefices,) 92. 
 27 Eliz. 0. 4, (voluntary settlements,) 299. 
 31 Eliz. 0. 12, (stolen horses,) 397, 398. 
 21 Jac. I. c. 3, (patents,) 235, 236. 
 
 c. 16, (Statute of Limitations,) 76, 82, 83, 400, 403. 
 -22 & 23 Car. II. c. 10, (distribution,) 357, 361. 
 29 Car. II. c. 3, (Statute of Frauds,) ss. 1, 2.. 35, 78, 204. 342. 
 s. 4, (contract in writing), 43, 297. 
 s. 16, (writ oi fieri facias,) 52. 
 s. 17, (sale of goods,) 39, 40. 
 ss. 19—21, (nuncupative testament,) 322. 
 s. 22, (revocation of will of personal estate,) 323. 
 s. 23, (soldiers and mariners,) 324. 
 s. 25, (husband,) 361, 376. 
 
 1 Jac. II. c. 17, (distribution,) 361. 
 
 2 Will. & Mary, sess. 1, c 5, s. 2, (distress for rent,) 33. 
 4 & 5 Will. & Mary, c. 2, (custom of York,) 321. 
 
 7 & 8 Will. III. c. 38, (custom of Wales,) ib. 
 
 8 & 9 Will. III. c. 11, (judgments,) 109. 
 
 9 & 10 Will. III. c. 15, (arbitration,) 185, 193. 
 
 2 & 3 Anne, c. 5, (custom of York,) 321. 
 
 3 & 4 Anne, c. 9, ^promissory notes,) 5, 118. 
 
 4 Anne, c. 16, (nuncupative testaments,) 322. 
 4 & 5 Anne, c. 16, (bond debts,) 108. 
 
 7 Anne, c. 25, (promissory notes,) 5, 118. 
 
 8 Anne, c. 19, (copyright,) 246. 
 
 9 Anne, c. 14, (money won at play,) 93.
 
 462 INDEX. 
 
 Statutes cited. 
 
 12 Anne, stat. 2, c. 16, (usury,) 93. 
 
 I Geo. I. Stat. 2, c. 19, (stock,) 201, 202, 208. 
 
 II Geo. I. c. 18, (custom of London,) 321. 
 
 7 Geo. II, c. 8, (stockjobbing,) 92, 203. 
 
 8 Geo. II. c. 13, (copyright in prints, &c.,) 251. 
 
 9 Geo. II. c. 36, (mortmain,) 347. 
 
 19 Geo. II. c. 37, (ship insurance,) 176, 181. 
 7 Geo. III. c. 38, (copyright in prints,) 251. 
 14 Geo. III. c. 48, (life insurance,) 176. 
 
 c. 78, (Metropolitan Building Act,) 179. 
 17 Geo. III. c. 30, (bills of exchange,) 85. 
 
 c 57, (copyright in prints, &c.,) 251. 
 36 Geo. III. c. 52, (legacy duty,) 328, 342, 344. 
 
 38 Geo. III. c. 71, (copyright in sculptures, &c,,) 252. 
 
 c. 87, (infant and absent executor,) 329, 358. 
 
 39 & 40 Geo. III. c. 98, (accumulations), 269. 
 41 Geo. III. c. 107, (copyright,) 246. 
 
 46 Geo. III. c. 135, (bankruptcy,) 150. 
 
 48 Geo. III. c. 88, (bills of exchange,) 84. 
 
 c. 123, (discharge of small debtors,) 172. 
 
 49 Geo. III. 0. 121, (bankruptcy,) 150. 
 
 54 Geo. III. c. 56, (copyright in sculptures, &c.,) 252. 
 
 c. 156, (copyright,) 216. 
 
 55 Geo. III. c. 184, (stamps,) 42, 336, 337, 343, 359, 360, 364. 
 
 56 Geo. III. c. 60, (unclaimed dividends,) 406. 
 
 c. 137, (bankruptcy,) 150. 
 
 3 Geo. IV. c. 39, (warrants of attorney and cognovits,) 99, 101. 
 
 4 Geo. IV. c. 83, (factors and agents,) 398. 
 
 6 Geo. IV. c. 16, (bankruptcy,) 49, 54, 76, 120, 124, 139, 150, 156, 
 
 270, 298, 309, 313. 
 0. 94, (factors and agents,) 398. 
 
 7 Geo. IV. c. 6, (bills and notes,) 85. 
 
 c. 46 (banking companies,) 214. 
 c. 57, (insolvency,) 166. 
 7 & 8 Geo. IV. c. 29, (stolen goods,) 397. 
 
 9 Geo. IV. c. 14, (written contracts,) 40, 77, 82, 83, 309, 404. 
 
 c. 32, (felony,) 47. 
 
 10 Geo. IV. c. 56, (friendly societies,) 230. 
 
 11 Geo. IV. & 1 Will. IV. c. 20, (seamen's wills,) 324, 338. 
 
 c. 38, (insolvency,) 166. 
 
 c. 40, (executors trustees of residue,) 352. 
 
 c. 46, (illusory appointments,) 271. 
 
 c, 65, (infants, idiots and lunatics,) 204. 
 
 1 & 2 Will. IV. c. 32, (game act,) 20, 22. 
 
 c. 56, (bankruptcy court,) 54, 120, 132, 139, 140. 
 
 2 & 3 Will. IV. c. 40, (seamen's wills,) 338.
 
 INDEX. 463 
 
 Statutes cited. 
 
 3 & 4 Will. IV. c. 15, (copyright in dramatic works,) 248. 
 
 0. 27, (limitations,) 401, 403. 
 
 c. 42, s. 2, (actions by and against executors,) 05, 
 67,401. 
 
 s. 3, (limitation,) 402, 404. 
 
 s. 4, (disabilities,) ih. 
 
 s. 5, (acknowledgment,) 402. 
 
 ss. 28, 29, (interest,) 114. 
 
 s. 39, (arbitration,) 186, 190. 
 
 s. 40, (witnesses on arbitration,) 187. 
 c. 47, (bankruptcy,) 132. 
 c. 74, (fines and recoveries,) 380, 382. 
 c. 98, (bills and notes,) 93. 
 c. 105, (dower,) 346. 
 
 4 & 5 Will. IV, c. 22, (apportionment of income,) 263, 2G4. 
 
 c. 25, (seamen's pay,) 338. 
 
 c. 29, (real securities in Ireland,) 283. 
 
 c. 40, (friendly societies,) 230. 
 
 c. 94, (public officer,) 213. 
 
 5 & G Will. IV. c. 41, (securities for illegal consideration,) 90, 93. 
 
 c.83 (patents,) 237,238, 241. 
 
 6 & 7 Will. IV. c. 32, (building societies,) 232, 233. 
 
 c. 59, (copyright in prints, &c.,) 251. 
 c. 76, ( newspapers,) 255. 
 
 7 Will. IV. & 1 Vict. c. 26, (wills,) 208, 266, 321, 322, 323, 324, 
 
 325, 334,335, 350, 351. 
 c. 73, (public officer,) 213, 214. 
 1 & 2 Vict. c. 26, (banking companies,) 214. 
 
 c. 110, (insolvent debtors,) 132, 166. 
 
 ss. 9, 10, (execution of warrants of attorney,) 
 
 100. 
 s. 12, (seizure of notes and securities,), 118,297. 
 s. 13, (judgments a charge on real estate,) 155. 
 ss. 14, 15, (charging stock,) 206, 207, 234, 297. 
 s. 16, (imprisonment,) 103. 
 s. 17, (interest on judgment debt,) 102. 
 s 22, (judgment of inferior courts,) 104. 
 s. 35, (discharge,) 167. 
 s. 36, (petition by creditor,) ib. 
 s. 37, (vesting order,) ih. 
 s. 45, (assignees,) 168. 
 s. 47, (sale,) ib. 
 s. 48, (mortgage,) ib. 
 s. 55, (benefice,) ih. 
 s. 56, (officer,) ib. 
 s. 59, (voluntary preference.) ih.
 
 484 INDEX. 
 
 Statutes cited. 
 
 1 & 2 Vict. c. 110, s. 62, (dividend,) 168. 
 
 s. 60, (schedule,) 169. 
 
 ss. 70, 71, 72, (examination,) ib. 
 
 s. 75, (discharge,) 196. 
 
 ss. 76, 77, 78, (postponement of discharge,) 169, 
 
 170. 
 s. 79, (costs,) 170. 
 s. 80, (annuities,) ib. 
 ss. 87, 88, 89, (future execution,) il>. 
 ss. 90, 91, (freedom from execution,) ib. 
 
 2 & 3 Vict. c. 11, (bankruptcy,) 150. 
 
 c. 29, (baniiruptcy,) 132, 150. 
 c. 37, (usury,) 94. 
 c. 54, (custody of infants,) 389. 
 c. 67, (patents,) 237. 
 
 3 & 4 Vict. c. 73, (friendly societies,) 230. 
 
 c. 82, (stock, judgments,) 207, 297. 
 c. 110, (loan societies,) 231. 
 c. Ill, (banking companies,) 214. 
 5 Vict. c. 5, (Court of Exchequer in equity,) 205. 
 
 5 & 6 Vict. c. 39, (factors and agents,) 398. 
 
 c. 45, (copyright,) 246, 247, 248, 249, 250, 
 
 c. 79, (stamps on probates,) 336. 
 
 c. 85, (banking companies,) 214. 
 
 c, 100, (copyright in designs,) 255, 256. 
 
 c. 116. (insolvency,) 170, 171. 
 
 c. 122, (bankruptcy,) 54, 76, 132, 140, 306, 309, 313. 
 
 6 & 7 Vict. c. 65, (copyright in designs,) 256. 
 
 c. 66, (index to warrants of attorney,) 101. 
 
 7 & 8 Vict. c. 12, (international copyright,) 253, 254. 
 
 c. 32, (bank notes,) 85. 
 
 c. 66, (aliens,) 46. 
 
 c. 69, (patents,) 237, 241. 
 
 c. 70, (arrangements between debtors and creditors,) 
 
 172. 
 c. 76, (transfer of property,) 260. 
 c. 96, (insolvency,) 103, 132, 170, 171. 
 c. 110, (joint stock companies,) 209,214, 215,216,218. 
 c. Ill, (bankruptcy of joint stock companies,) 218. 
 c. 113, (banking companies,) 209, 214, 217. 
 
 8 & 9 Vict. c. 16, (Companies Clauses Consolidation Act,) 210, 211, 
 
 212. 
 c. 18, (lands clauses consolidation,) 210. 
 c. 20, (railways clauses consolidation,) 30, 210. 
 c. 48, (bankrupt's oath,) 132.
 
 INDEX. 465 
 
 Statutes cited. 
 
 8 & 9 Vict. c. 62, (unclaimed dividends,) 407. 
 c. 76, (legacy duty,) 328, 342. 
 c. 93, (copyright in colonies,) 250. 
 c. 97, (stock,) 205, 208. 
 c. 106, (real property,) 35, 260. 
 c. 109, (gaming and wagering,) 93. 
 c. 127, (execution,) 53, 103. 
 
 9 & 10 Vict. c. 27, (friendly societies,) 230. 
 
 c. 93, (death by accident compensation,) 65, 66. 
 c. 95, (small debts,) 6, 97, 103. 
 
 10 & 11 Vict, c, 14, (markets clauses consolidation,) 210. 
 
 c. 15, (gas clauses consolidation,) ib. 
 c. 17, (water clauses consolidation,) ib, 
 c, 27, (harbours clauses consolidation,) ib. 
 c. 34, (paving clauses consolidation,) ib. 
 c. 65, (cemeteries clauses consolidation,) ib. 
 c. 78, (joint stock companies,) 214, 215, 216, 217. 
 c. 83, (aliens,) 46. 
 c. 95, (copyright in colonies,) 250. 
 c. 96, (trust funds,) 294, 295. 
 
 c. 102, (bankruptcy and insolvency,) 132, 167, 170, 
 171. 
 
 11 & 12 Vict. c. 29, (hares,) 20. 
 
 c. 45, (Winding-up Act,) 218. 
 c. 86, (bankruptcy,) 132. 
 
 12 & 13 Vict. c. 67, (sequestration,) 168. 
 
 c. 74, (trustees' relief,) 294. 
 
 c. 101, (small debts,) 97. 
 
 c. 106, (bankruptcy,) 132, 133. 
 
 s. 6, (court,) 96. 
 
 s, 8, (rules,) 140. 
 
 ss. 6 — 11, (commissioners,) 140. 
 
 s. 66, (who traders,) 133. 
 
 s. 67, (acts of bankruptcy,) 134. 
 
 s. 68, (composition deeds,) 124. 
 
 ss. 78, 79, (affidavit of debt,) 137. 
 
 s. 81, (admission of debt,) ib. 
 
 s. 125, (order and disposition,) 49, 54. 
 
 s. 126, (voluntary gifts,) 298. 
 
 s. 129, (one year's rent,) 155. 
 
 s. 133, (executions, &c.,) 151. 
 
 s. 140, (joint creditors,) 213. 
 
 s. 141, (assignees,) 120, 158. 
 
 s. 142, (assignees,) 158, 
 
 s. 147, (powers,) 270. 
 W.P.P. H H
 
 466 INDEX. 
 
 Statutes cited. 
 
 12 & 13 Vict. c. 106, s. 152, (joint debts,) 306. 
 s. 168, (clerk's pay,) 155. 
 s. 169, (labourer's wages,) ib. 
 s. 198, (certificate,) 156. 
 s. 199, (certificate,) ib. 
 s. 200, (certificate,) 156, 309. 
 s. 204', (promise to pay barred debt,) 76. 
 s. 224, (arrangements by deed,) 124, 
 sched. Z., 156. 
 c. 108, (winding-up amendment,) 218. 
 
 13 & 14 Vict. c. 21, (interpretation,) 190. 
 
 c. 35, (Court of Chancery,) 340, 357. 
 
 c. 60, (Trustee Act, 1850,) 291, 292. 
 
 c. 61, (small debts,) 6, 97. 
 
 c. 83, (railways,) 218. 
 
 c. 97, (stamps,) 99, 108, 300. 
 
 c. 104, (Designs Act, 1850,) 252, 256. 
 
 c. 115, (friendly societies,) 230. 
 
 14 & 15 Vict. c. 8, (designs,) 256. 
 
 c. 25, (agricultural fixtures, emblements,) 15, 18. 
 C.99, (evidence,) 187. 
 
 15 & 16 Vict. c. 3, (administration for crown,) 364. 
 
 c. 6, (designs,) 256. 
 
 c, 12, (international copyright,) 252, 254, 255. 
 
 c. 24, (wills amendment,) 323. 
 
 c. 31, (industrial societies,) 231. 
 
 c. 54, (small debts,) 97, 105. 
 
 c. 55, (trustees,) 291, 292. 
 
 c. 65, (friendly societies,) 230. 
 
 c. 76, (common law procedure,) 25, 70, 71, 72, 100, 
 
 120,330. 
 c. 83, (patent law amendment,) 235, 237, 238, 239, 
 
 240, 241, 242, 243, 244, 245. 
 
 16 & 17 Vict. c. 5, (stamps on patents,) 236, 244, 416. 
 
 c. 51, (succession duty,) 300, 303, 343, 344. 
 
 c. 59, (stamps,) 86, 177, 213. 
 
 c. 63, (stamps on life policies,) 177. 
 
 c. 70, (lunatics,) 204, 205. 
 
 c. 107, (copyright,) 250. 
 
 c. 115, (patents,) 237, 239, 240. 
 
 c. 123, (friendly societies,) 230. 
 
 17 & 18 Vict. c. 16, (county courts jurisdiction,) 97, 171. 
 
 c. 25, (industrial and provident societies,) 231 . 
 
 c. 36, (bills of sale,) 49. 
 
 c. 83, (bills of exchange and promissory notes,) 87.
 
 INDEX. 467 
 
 Statutes cited. 
 
 17 & 18 Vict. c. 90, (repeal of usury laws,) 94. 
 
 c. 101, (friendly societies,) 230. 
 
 c. 104, (Merchant Shipping Act,) 30, 55, 56, 58, 59, 
 
 60, 61, 325, 338. 
 c. 120, (Merchant Shipping Repeal Act,) 55. 
 c. 125, (Common Law Procedure Act, 1854,) 4. 
 ss. 3, 6, 7, (arbitration,) 185. 
 ss. 5, 8, 9, (award,) 193, 194. 
 s. 11, (proceedings at law may be stayed by 
 
 arbitration,) 184. 
 s. 12, (appointment of arbitrator by a judge,) 
 
 188, 195. 
 s. 13, (death of arbitrator,) 188. 
 s. 14, (appointment of umpire,) 194. 
 s. 15, (time for making award,) 190, 195. 
 s. 16, (possession of lands,) 197. 
 s. 17, (submission to arbitration by consent 
 may be made a rule of court,) 186. 
 s. 60, (court may examine judgment debtor as 
 
 to debts owing to him,) 119. 
 ss. 61, 65, (garnishee,) ib. 
 ss. 68, 69, (writ of mandamus,) 63. 
 s. 78, (order for restitution of chattels,) 4. 
 ss. 79 — 82, (writ of injunction,) 64. 
 
 18 & 19 Vict. c. 15, s. 7, (judgments,) 104. 
 
 c. 43, (marriage settlement of infants,) 371. 
 
 c. 63, (friendly societies,) 230, 231, 
 
 c. 67, (bills of exchange and promissory notes,) 87. 
 
 c. 91, (merchant shipping amendment,) 30, 55, 58. 
 
 c. Ill, (bills of lading,) 6, 37, 62. 
 
 c. 122, (fire insurance,) 179. 
 
 c. 132, (labourers' dwellings,) 233. 
 
 c. 133, (Limited Liability Act,) 218. 
 
 19 & 20 Vict. c. 40, (provident societies,) 231. 
 
 c. 47, (joint stock companies,) 218, 219. 
 c. 94, (administration,) 364. 
 
 c. 97, s. 1, (writ of execution, bo7ia fide purchaser,) 
 52, 396. 
 s. 2, (restitution of chattels,) 4. 
 s. 3, (consideration for promise,) 79. 
 s. 5, (surety,) 115. 
 s. 10, (infancy, coverture, lunacy,) 400, 402, 
 
 403. 
 s. 11, (joint debtor, absence beyond seas,) 309, 
 402. 
 
 II II 2
 
 468 INDEX. 
 
 Statutes cited. 
 
 19 & 20 Vict. c. 97, s. 12, (absent debtors,) 309, 400, 403. 
 
 s. 13, (debts, limitations,) 77, 82, 404. 
 s. 14, (co-contractor's interest,) 83, 312. 
 c. 108, (Small Debts Act,) 6, 97. 
 
 20 &21 Vict. c. 14, (winding-up acts,) 209, 218, 219. 
 
 c. 49, (joint stock companies,) ib. 
 
 c. 54, (fraudulent trustees, bankers,) 295. 
 
 0. 57, (disposition of wife's reversionary interest,) 
 
 379, 392. 
 c. 77, (Court of Probate Act, 1857,) 332, 356. 
 
 s. 3, (lords of manors,) 333. 
 
 s. 23, (court of record,) 96. 
 
 s. 29, (practice,) 335. 
 
 ss. 46, 47, (district registry,) 334. 
 
 s. 59, (abode of testator,) ib. 
 
 s. 70, (administrator penrfen/e lite,) 358. 
 
 s. 71, (receiver,) 359. 
 
 ss. 72, 74, (administrator,) 358. 
 
 s. 73, (administration,) 359. 
 
 s. 79, (executor,) 331. 
 
 s. 86, (voidable probates,) 334. 
 c, 78, (Joint Stock Companies Winding-up,) 218. 
 c. 79, (probates,) 336. 
 c. 80, (Joint Stock Companies,) 219. 
 c. 85, (Court for Divorce and Matrimonial Causes,) 
 388, 389. 
 
 s. 7, (decree for judicial separation,) 389. 
 
 s. 21, (protection order,) 390. 
 
 ss. 24, 32, (alimony,) ib. 
 
 s. 25, (wife /me sole,) 390, 391. 
 
 s. 26, (wife's necessaries, joint power,) 390. 
 
 s. 27, (petition,) 389. 
 
 s. 35, (custody and maintenance of children,) 
 391. 
 
 s. 45, (children's settlement,) 390. 
 
 s. 57, (petition,) 389. 
 
 21 & 22 Vict. c. 27, (Court of Chancery,) 48. 
 
 c. 56, (probates,) 336. 
 
 c. 60, (joint stock companies,) 218, 219. 
 
 c. 70, (copyright,) 256. 
 
 c. 74, (small debts,) 97. 
 
 c. 91, (joint stock companies,) 218, 219. 
 
 c. 95, (executors,) 331, 332, 336, 356, 357, 358, 
 
 360. 
 c. 101, (Court for Divorce,) 230.
 
 INDEX. 
 
 Statutes cited. 
 
 21 & 22 Vict. c. 108, (wife's property,) 389, 3J0. 
 
 22 Vict. c. 13, (patents, munitions of war,) 240. 
 22 & 23 Vict. c. 35, s. 6, (fire insurance,) 180. 
 
 s. 7, (informal insurance,) tb. 
 
 s. 8, (purchaser,) 181. 
 
 s. 12, (powers,) 270. 
 
 s. 21, (assignment to self,) 411. 
 
 S.23, (payment of money by trustees,) -bS. 
 
 s. 24, (concealment of deeds,) 411. 
 
 s. 26, (power of attorney,) 398. 
 
 ss 27,28, 29, (administration,) 341, di^.oo,. 
 
 s. 30, (trustees may apply for opinion of judge,) 
 
 295. 
 s. 31, (trustees,) 294. 
 s. 32, (investments,) 283. 
 c. 36, (stamps on probates,) 336. 
 c. 61, (divorce amendment,) 389, 391. 
 c. 57, (imprisonment for debt,) 97. 
 23 Vict. c. 5, (Indian government notes,) 337. 
 c. 15, (probate,) 37, 78, 87, 337. 
 c. 28, (stock jobbing,) 92, 203. 
 23 & 24 Vict. c. 38, ss. 3, 4, (registered judgment.) 102. 
 s. 8, (concealment of deeds,) 411. 
 s. 9, (trustees may apply for opinion of judge,) 
 
 295. 
 s. 10, (investments,) 284. 
 s. 11, (investments,) ib. 
 s. 12, (investments,) ib. 
 s. 13. (personal estate of intestate,) 401. 
 s. 14, (accounts in chancery,) 340, 357. 
 c. 58, (friendly societies,) 230. 
 c. 83, (infants' settlements, Ireland,) 371. 
 
 c. 106, (railways,) 210. 
 c lll,(stamps,)37,84, 87. 177, 204. 
 c. 126, s. 13, (Common Law Procedure Act, 1860 ; bill 
 of sale,) 53. 
 ss. 28—31, (garnishee,) 119. 
 s. 32, (costs,) 64. 
 c. 127, s. 28, (solicitor's lien,) 32. 
 c. 144, (divorce,) 391. 
 
 c. 145, s. 25, (investment of trust monies,) 2S&. 
 s. 26, (maintenance,) 280. 
 s. 27, (appointment of trustees,) 289. 
 s. 29, (receipt of trustees,) ib. 
 s. 30, (executors,) 340, 357.
 
 470 INDEX. 
 
 Statutes cited. 
 
 23 & 24 Vict. c. 145, s. 34, (date of operation,) 280, 285. 
 
 24 Vict. c. 3, (transfer of stock,) 202, 406. 
 
 c. 5, (exchequer bills,) 282. 
 c. 10, (Court of Admiralty,) 30, 61. 96. 
 c. 14, (post-office savings banks,) 232. 
 24 & 25 Vict. c. 73, (designs for articles of manufacture,) 256. 
 
 c. 91, s. 30, (stamps on appointment of new trustees,) 
 291. 
 s. 34, (fixtures, bills of sale,) 50. 
 c. 92, s. 3, (probate, voluntary debts,) 339. 
 c. 114, (domicile,) 325, 326. 
 c. 121, (domicile,) 326, 327. 
 c. 134, (Bankruptcy Act, 1861,) 132, 166, 172. 
 
 s. 2, (reduction of London commissioners,) 
 
 140. 
 s. 3, (jurisdiction of county courts,) ib. 
 s. 4, (county courts,) ib. 
 
 ss. 19 — 27, (abolition of insolvent court.) 172. 
 s. 69, (all debtors subject to bankrupt laws,) 
 
 ib. 
 s. 71, (acts of bankruptcy,) 135. 
 s. 72, (declaration of insolvency,) 136. 
 s. 73, (execution,) 50, 51, 112, 136. 
 s. 74, (sale of goods by auction,) 51. 
 s. 75, (insolvency in colonies,) 136. 
 s. 76, (judgment debtor summons,) ib. 
 s. 77, (decrees and orders,) 137. 
 s. 83, (summons, adjudication of bankruptcy,) 
 
 ib. 
 ss. 98 — 107, (pauper and lunatic prisoners,) 
 
 172. 
 s. 108, (official assignees,) 53. 
 s. 117, (assignees,) 53, 141. 
 s. 128, (debts under lOZ.,) 141. 
 s. 134, (half-pay, &c.,) 54, 172. 
 s. 135, (sequestration of benefice,) 172. 
 s. 157, (certificates,) 156. 
 s. 159, (after-acquired property,) 159. 
 s. 161, (order of discharge,) 156. 
 s. 163, (discharge,) 309. 
 s. 164, (barred debt,) 76. 
 s. 177, (joint estates,) 314. 
 s. 192, (trust deeds for creditors,) 125, 126. 
 s. 194, (registration,) 122. 
 s. 195, (stamps,) 124, 126. 
 s. 294, (registration,) 124.
 
 INDEX. "^^^ 
 
 Statutes cited. 
 
 25 Vict. c. 22, (inland revenue,) 337. 
 
 25 & 26 Vict. c. 63, (Merchant Shipping Act Amendment Act, 
 1862,) 30, 55. 
 s. 3, (equities against owners and mortgagees 
 
 of ships,) 57. 
 ss. 66—78, (lien for freight,) 30, 62. 
 c. 68, (copyright works of art,) 253. 
 c. 81, (divorce,) 391. 
 
 c. 86, ss. 12—14, (lunatics or idiots,) 205. 
 c. 87, (industrial and provident societies,) 231. 
 c. 88, (fraudulent marking of merchandise,) 257, 
 
 400. 
 c. 89, (Companies Act, 1862,) 209, 215, 217, 218, 
 219, 220. 
 s. 4, (partners,) 220. 
 
 s. 6, (memorandum of association,) 219. 
 s. 7, (liability may be limited,) 220. 
 s. 8, (shares,) 221. 
 s. 9, (guarantee,) ib. 
 s. 10, (memorandum of unlimited company,) 
 
 222. 
 s. 11, (effect of memorandum,) ib. 
 s. 12, (powers to alter memorandum,) ib. 
 s. 13, (change of name,) ib. 
 ss. 14, 15, (articles of association,) 223. 
 s. 16, (stamp on articles,) ib. 
 s. 17, (registration of articles,) ib. 
 s. 18, (certificate of incorporation,) ib. 
 s. 21, (licence to hold land,) 224. 
 s. 22, (shares personal estate,) ib. 
 s. 25, (register,) ib. 
 s. 26, (annual list of members,) ib. 
 s. 30, (register of members,) ib. 
 s. 31, (certificate of shares,) ib. 
 s. 37, (register, evidence,) ib. 
 s. 38, (liability of contributories.) 228. 
 
 s. 39, (registered office,) 224. 
 
 s. 41, (name of limited company,) 225. 
 
 s. 43, (mortgages and charges,) ib. 
 
 s. 44, (annual statement,) ib. 
 
 s. 47, (bills and notes,) 320. 
 
 s. 50, (special resolution,) 226. 
 
 s. 51, (special resolution,) ib. 
 
 s. 53, (registry of special resolution,) ib. 
 
 s. 54, (copies of ditto,) ib. 
 
 s. 74, (contributories,) 228.
 
 472 INDEX. 
 
 Statutes cited. 
 
 25 & 26 Vict. c. 89, ss. 79—128, (winding up by the court,) 228. 
 
 s. 81, (court,) ib. 
 
 ss. 92 — 97, 133— HI, (official liquidators,) ib. 
 ss. 129 — 146, (voluntary winding up,) ib. 
 ss. 147 — 152, (supervision of court,) ib. 
 
 26 Vict. c. 14, (post-office savings banks,) 232. 
 
 c. 28, (stock certificates,) 203. 
 
 26 & 27 Vict. c. 41, (lien of innkeepers,) 29. 
 
 c. 56, (loan societies,) 231. 
 
 c. 57, (regimental debts act,) 337. 
 
 c. 87, (savings banks acts amendment,) 232. 
 
 c. 92, (Clauses Consolidation Act, railways,) 210. 
 
 c. 93, (ditto waterworks,) ib. 
 
 0. 105, (bills and notes,) 85. 
 
 c. 118, (Companies Clauses Consolidation Act,) 211. 
 
 27 Vict. c. 18, (stamps,) 300. 
 
 c. 19, (companies' seals,) 229. 
 
 27 & 28 Vict. c. 32, (banks,) 214. 
 
 c. 36, (army prize,) 337. 
 
 c. 44, (property of wife deserted,) 390. 
 
 c. 56, (stamps,) 87, 176, 336. 
 
 c. 67, (game, trespass,) 21. 
 
 c. 95, (death by injury,) 65, 66. 
 
 c. 112, (register of writs of execution,) 101, 155, 310. 
 
 c. 114, (improvement of land,) 282. 
 
 c. 120, (railways,) 210. 
 
 c. 121, (railways,) ib. 
 
 28 Vict c. 40, (trustees. County Palatine of Lancaster,) 289. 
 
 28 & 29 Vict. c. 72, (seamen's wills,) 324. 
 
 c. 78, (Mortgage Debenture Act,) 229. 
 c. 86, (partnership,) 316, 317, 318. 
 c, 96, (stamps,) 61, 177, 197. 
 c. 99, (county courts,) 6, 97. 
 
 29 Vict. c. 28, (labouring classes dwellings,) 233. 
 
 29 & 30 Vict. c. 14, (small debts,) 97. 
 
 c. 32, (alimony,) 390. 
 
 c. 96, (registration of bills of sale,) 49, 50. 
 
 30 Vict, c, 23, s. 3 etseq., (stamps on sea policies, repeal of acts,) 181. 
 
 c. 28, (labouring classes dwellings,) 233. 
 
 c, 29, (sale and purchase of shares,) 230. 
 
 30 & 31 Vict c. 90, s. 23, (duty on transfer of bonds,) 109. 
 
 c. 117, (industrial and provident societies,) 230, 231. 
 s. 3, (application of provisions of Friendly 
 Societies Act,) 231. 
 c. 127, (railway companies,) 210. 
 c. 131, (Companies Act, 1862, amendment,) 218, 219.
 
 473 
 
 INDEX. ^"^ 
 
 '"7oT3fvtt.c.l31, ss. 4-8, (unlimited liability of directors ) 220 
 30 & 31 Vict.c. ^^^ ^^^^^ (reduction of capital and shares,) 
 
 222. 
 s. 21, (sub-division of shares,) 223, 
 s. 23, (associations not for profit,) 225. 
 ss. 27—33, (share warrants to bearer,) 227. 
 s. 28, (efifect of share warrant,) ib. 
 s. 37, (contracts,) 227, 320. 
 s. 40, (winding up petition,) 228. 
 ss. 41, 42, (winding up,) ib. 
 c. 132, (East India stock,) 285. 
 c" 142, (County Courts Acts amendment,) 6, 97. 
 
 s. 24, (payment into court by trustees,) 295. 
 s. 25, (extension of powers,) 295. 
 c. 144, (Policies of Assurance Act, 1867,) 6, 118. 
 ss. 1—4, (assignment of life policies,) 178. 
 s. 3, (notice of assignment,) 410, 
 s. 6, (acknowledgment of notice,) 179. 
 31 & 32 Vict. c. 54, (judgments extension ) 104, 178. 
 
 c. 71, (county courts admiralty jurisdiction,) J7. 
 c. 86*, (assignees of marine policies,) 6, 118. 
 
 s. 1, (assignees of marine policies,) 181. 
 c 90 s. 1, (public departments, payments,) 338. 
 
 ' s. 2, (sums under lOOL, powers of war depart- 
 ment,) ib. 
 c. 104, (bankruptcy act amendment,) 126. 
 
 s. 3, (assent to composition deeds,) 128. 
 c 111, (expiring laws continuance,) 85. 
 c. 124, s. 7, (mortgage debt on leaseholds, probate,) 
 339. 
 s. 11, (exemption of building societies from 
 stamp duties restricted,) 233. 
 c 129, (colonial shipping,) 55. 
 c' 130 (artizans' and labourers' dwellings,) 233, 
 32 Vict, c, 14. s. 12, (duty on fire insurances repeal,) 181. 
 32 & 33 Vict. c. 46, (specialty and simple contract debts,) .106, • 
 c 48, (Companies Clauses Act Amendment,) 210, 211, 
 c, 51, (County Court Admiralty Jurisdiction Act 
 
 Amendment,) 97. 
 c. 59, (savings banks and post-office savings banks,) 
 
 232. 
 c 61, (trades unions funds protection,) 230, 
 
 c' 60 (imprisonment for debt,) 103, 135, 157, 173. 
 ' ss. 4, 5, 6, 11, et seq. (exceptions,) 104. 
 
 s, 24, (execution of warrants of attorney,) 100. 
 s. 25, (informal execution of warrant,) ib.
 
 474 INDEX. 
 
 Statutes cited. 
 
 32 & 33 Vict. c. 62, s. 26, (filing warrant of attorney), 99, 101. 
 ss. 27, 28, (filing judge's order,) 101. 
 c. 71, (Bankruptcy Act, 1869,) 132, 173, 255. 
 s. 4, (interpretation,) 298. 
 s. 6, (petition for adjudication,) 135, 138. 
 
 par. 1, (act of bankruptcy,) 123. 
 
 par. 5, (act of bankruptcy,) 113. 
 s. 8, (proceedings on petition,) 139. 
 s. 10, (advertisement,) 141. 
 s. 11, (commencement of bankruptcy,) 151. 
 s. 14, (appointment of trustee,) 141. 
 s. 15, (property of bankrupt,) 54, 159, 270, 408. 
 s. 17, (devolution of property on trustee,) 53. 
 s. 25, (power of trustee,) 144. 
 s. 26, (management of property,) ib, 
 ss. 27 — 29, (compromise, composition,) 145. 
 s. 31, (debts,) 148. 
 s. 32, (preferential debts,) 155. 
 BS. 34 — 36, (distraint for rent, &c.,) 148, 155. 
 ss. 37 — 39, (distinct contracts, &c.,) 149. 
 s. 40, (secured creditor,) 150. 
 s. 45, (surplus,) 155. 
 s. 48, (discharge,) 157. 
 
 s. 49, (effect of order of discharge,) 155, 158. 
 s. 50, (joint debtors,) 158, 309. 
 s. 54, (status of undischarged bankrupt,) 160. 
 s. 59. (court,) 140. 
 
 s. 60, (London bankruptcy district,) lb. 
 s. 71, (appeal,) 154. 
 s. 79, (change of jurisdiction,) 140. 
 s. 80, (proceedings,) 131. 
 
 par. 1, (affidavit of petitioner,) 139. 
 s. 83, (trustees,) 53. 
 
 par. 7, (ofticial name of trustee,) 120. 
 s. 87, (proceeds of sale and seizure,) 146. 
 s. 88, (sequestration of ecclesiastical benefice,) 
 
 173. 
 s. 89, (pay of officers,) 174. 
 s. 90, (salary,) ib. 
 
 ss. 91, 92, (voluntary settlements and fraudu- 
 lent preferences,) 154. 
 ss. 94, 95, (protection of certain transactions,) 
 
 152, 153. 
 s. 100, (petition against one partner,) 313. 
 s. 103, (joint creditor,) 313. 
 s. 104, (joint and separate dividends,) 314.
 
 INDEX. 475 
 
 Statutes cited. 
 
 32 & 33 Vict, c. 71, s. 105, (suits by trustee and bankrupt's part- 
 ner,) 306. 
 s. 107, (evidence,) 160. 
 s. Ill, (power of assignee to sue,) 120. 
 s. 120, (privilege of parliament,) 160. 
 s. 121, (vacating seat,) 161. 
 s. 125, (liquidation by arrangement,) 165. 
 s. 126, (composition with creditors,) 128. 
 s. 128, (commissioners,) 140. 
 s. 130, (country district courts,) ib. 
 
 sched. 1, (description of traders,) 133. 
 c. 83, (insolvent debtors and bankruptcy repeal,) 100, 
 113,120,123, 124,125,126, 132, 172, 173,270. 
 c. 104, (dividends on public stocks,) 200. 
 c. 114, (railways abandonment,) 210. 
 Statutes merchant and staple, 105. 
 Stock in trade, assignment of, 34. 
 in the funds, 6, 199—208. 
 
 is personal estate, 201. 
 jobbing, 92, 203, 230. 
 transfer of, 202. 
 contract for sale of, 204. 
 distringas on, 205. 
 charge of judgment on, 206. 
 transmission of, by will, 207. 
 unclaimed dividends on, 406. 
 notice to trustee on assignment of, 407. 
 Stolen goods, sale of, 396. 
 Stop order, 409. 
 Stoppage in transitu, 44. 
 Submission to arbitration, 183, 186. 
 Succession Duty Act, 1853.. 300, 303, 343. 
 Superior courts of record, 96. 
 Sureties, 114, 115. 
 
 discharge of, 116. 
 Survivorship amongst joint owners, 302, 305. 
 
 none in equity of joint securities, 305, 306, 307. 
 
 none amongst owners in common, 308. 
 
 amongst joint debtors, 309. 
 
 as to joint and several debtors, 311, 312. 
 
 of office of executor, 330. 
 
 Tail, estate, none in personal property, 265. 
 Taxes due from bankrupt, 155
 
 476 INDEX. 
 
 Tenant without impeachment for waste, 19. 
 for years or for life, 18. 
 joint, 351. 
 
 in common, 306, 307. 
 bequest to, 351. 
 Tenterden, Lord, his act. — See statute 9 Geo. IV. c. 14. 
 Testamentary alienation, growth of right of, 321. 
 
 See Will. 
 Timber, 16, 18. 
 
 trees, what are, 18. 
 Title, 395. 
 
 to money and negociable securities, 395. 
 
 to chattels personal, 396. 
 
 to stolen goods, ib. 
 
 to horses stolen, 397. 
 
 under factors and agents, 398. 
 
 warranty of, 399. 
 
 under statutes of limitation, 400 — 405. 
 
 to unclaimed dividends, 406. 
 
 to choses in action by notice, 407, 408. 
 
 through deeds, wills, &c., 410. 
 
 abstract of, ib. 
 
 covenants for, ib. 
 
 to shares, ib. 
 
 comparison of, to real and personal estate, 411. 
 
 to goods bond fide acquired, 52, 395. 
 
 deeds, 9, 11. 
 
 solicitor's lien on, 30. 
 Tombstone, 13. 
 Tort, action for, 65. 
 Trade, contracts in restraint of, 91. 
 marks, 256, 257. 
 bankruptcy of partners in, 313. 
 liability of executor carrying on, 315. 
 customs of, 399. 
 Trader, who is, within the bankrupt laws, 132. 
 Transfer of stock, 202. 
 Trespass in pursuit of game, 21. 
 
 on the case, 24. 
 Trover and conversion, 23, 46, 49. 
 
 recovery in, 46. 
 Trust, though voluntary, enforced in equity, 36. 
 settlements by means of, 262. 
 funds, act for better securing, 294. 
 for payment of creditors, when revocable, 299. 
 for wife's separate use, 384, 385. 
 gift for '' sole use," 384.
 
 INDEX. 477 
 
 Trust, form of, of stock, 420. 
 
 none entered on ship's register, 56. 
 Trustee Act, 1850.. 291. 
 Trustee in bankruptcy, 141. 
 
 appointment of, 142. 
 security to be given, ib. 
 
 power to deal with property, 142, 144, 145, H8. 
 if a solicitor, may be paid for services, 145. 
 under a liquidation, 163. 
 Trustees, former liability of, not investing in consols, 201. 
 
 tranter of stock, refusal of Bank to recognize, 202. 
 
 infant, 205, 291. 
 
 power to appoint new, 289, 290. 
 
 costs of, 292. 
 
 responsibilities of, ib. 
 
 indemnity and reimbursement of, 294. 
 
 act for relief of, ib. 
 
 county courts, jurisdiction of, 295. 
 
 punishment for fraudulent, ib. 
 
 power to apply for opinion of judge, ib. 
 
 of personal estate made joint owners, 303. 
 
 notice to, on assignment of chose in action, 408. 
 
 inquiry of, as to prior assignments of choses in action, ib. 
 
 form of usual clauses in settlement as to, 429. 
 
 U. 
 
 Umpire, 194, 195. 
 
 Uncertificated bankrupt, 158, 159. 
 Unclaimed dividends, 406. 
 Unlawful contracts, 73, 89, 90. 
 Use, conveyance by way of, 11. 
 Usurious contracts, 93. 
 
 V. 
 
 Vendor's lien, 43. 
 Vested interests, 262. 
 
 the courts lean to, 277. 
 giving, to children by settlement, 278. 
 Vesting of shares of joint owners, 303. 
 Voluntary trust enforced, 36. 
 
 bonds and covenants, 110. 
 preference in bankruptcy, 168. 
 settlement, void as against creditors, 153, 154, 297. 
 binding on settlor, 298. 
 
 of personal estate not void as against subse- 
 quent purchasers, 300.
 
 478 INDEX. 
 
 w. 
 
 Wagers void, 93. 
 
 Wages to servants of bankrupt, 155. 
 Wales, custom of, 321, 364. 
 Warrant of attorney, 98. 
 
 to secure annuity, 100. 
 execution and attestation of, ib. 
 to be filed within twenty-one days, 101. 
 in case of bankruptcy, 170. 
 Warranty on sale of goods, 399. «j 
 
 Waste, tenant without impeachment of, 19. 
 
 being impleaded of, ih. 
 by incumbent, 68. 
 Widow, usually preferred in grant of administration, 356. 
 her share under the Statute of Distribution, 361. 
 when deprived of her distributive share by settlement, 371. 
 Widowhood, gift to a woman during, 369. 
 Wife, executrix, 329. 
 
 covenant to settle her future property, 295. 
 
 no duty on legacy to, 342. 
 
 a feme covert, 373. 
 
 lier chattels personal belong to her husband, ib. 
 
 her paraphernalia, 374. 
 
 her legal choses in action, 375. 
 
 her equitable choses in action, 377. 
 
 her equity to a settlement, ib. 
 
 disposition of her reversionary interests, 379, 380. 
 
 her husband's liability to her debts, 382, 387. 
 
 her will of her personal estate, 383. 
 
 trusts for her separate use, 384, 385. 
 
 restraint on her anticipation, 385. 
 
 powers may be exercised by, 270. 
 
 powers of appointment given to, 386. 
 
 separation of, 387. 
 
 settlement on, 391. 
 
 protection when deserted by her husband, 389. 
 
 her alimony, 390. 
 
 a feme sole, ib. 
 
 remarks on the law of husband and wife, 392. 
 
 acknowledgment by, on conveyance of real estate, 393. 
 See Married Woman. 
 Will, 321. 
 
 attestation of, 323. 
 
 revocation of, 325. 
 
 domicile, 325, 326. 
 
 executor of, 328.
 
 INDEX. 479 
 
 Will, probate of, 332—339. 
 
 ecclesiastical jurisdiction over, 333, 334. 
 registration of, in court of probate, 334. 
 of wife by husband's authority, 383. 
 Winding-up Acts, 218, 228. 
 Witnesses, examination of, by arbitrators, 187. 
 
 to a will, 323. 
 Writ of mandamus, 63. 
 of injunction, ib. 
 oi' fieri facias, 51. 
 of levari facias, .52. 
 of elegit, ib. 
 
 of capias ad satisfaciendum, 102. 
 Writing, what contracts to be in, 38, 40, 42, 76, 77, 78, 79. 80, 82, 84. 
 
 Year, agreement not to be performed within a, 43, 80. 
 
 of executor, 340. 
 
 of administrator, 357. 
 York, custom of province of, 321, 333, 364. 
 Younger children, 273.
 
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